The Orange Democratic Movement (ODM) has been awarded Sh4.1 billion by the Court of Appeal after a protracted battle.
The three-judge bench of the Court of Appeal was however split on whether ODM should benefit from the political parties fund. The majority — Justices Otieno Odek and Daniel Musinga — ruled that Parliament should pay the money backdated to November 1, 2011 until the arrears are cleared.“The appellant is entitled in arrears to all monies due pursuant to Section 25(1)(a) of the Political Parties Act from the financial year subsequent the effective date of the Act i.e. arrears from the 2012/13 financial year,” the judges ruled.But Justice Erastus Githinji, in a minority voice, disagreed with ODM, saying it slept on the job by failing to lodge claims for the money in successive financial years, since the party had the political muscle to agitate for an earlier payday. According to the judge, the party’s claim came too late in the day and the monies claimed for could not be ascertained.
“It is clear from the foregoing that the appellant and its Members of National Assembly had opportunity in each of the five financial years to make recommendation or even lobby for appropriation of sufficient funds for the Political Parties Fund. The law serves the vigilant and acquiescence may amount to a waiver of statutory rights,” said Justice Githinji.ODM moved to court, demanding that it should be paid the arrears which had accrued over four financial years, between 2011 and 2016.Lost the caseThe party told the court that it had received Sh100 million as opposed to the full amount set by law. It had initially lost the case at the High Court after Judge Roslyne Aburili ruled that she could not force the taxpayer to shoulder the arrears as ODM never demanded the money.Judge Aburili said the fund set aside from the National Treasury is not a debt and thus cannot be paid if it was not allocated by the National Assembly then. “The party waited for four financial years to demand the money, yet it had known that Parliament had not been allocating the correct figures,” said Justice Aburili. “It will not be in the interest of justice or public policy for the amount to be released to the party.”
Aggrieved, the party moved to the Court of Appeal, arguing that the lower court had erred by not enforcing a right it was owed.The 2010 Constitution and election laws demand that Parliament allocates not less than 0.3 per cent of the total revenue collected by the national government every year to the Political Parties Fund. The law requires that 95 per cent of the fund be distributed proportionately by reference to the total number of votes secured by each political party in the preceding General Election. The rest, five per cent, is retained for administrative costs.Only parties that have at least five per cent of the total vote in the poll are entitled to public funding. This refers to the tallies for President, MPs, governors and members of the County Assemblies.Yesterday, ODM Chairman John Mbadi said the party will only share with political parties that supported its presidential candidate in the 2013 election a third of the Sh4.1 billion. This will see Wiper and Ford Kenya share Sh1.35 billion. Mbadi said this is as per an agreement entered by the three parties.