An election petition carries two separate payments. The filing fee is K1,000; the security deposit is K5,000. They are not the same thing and they are paid in different ways.
Deposit as security for costs
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.
The figure was raised to K5,000 by the Organic Law on National and Local-level Government Elections (Amendment) Law, section 66.
The security deposit required by Section 209 of the Organic Law shall be paid in cash or by bank cheque into the National Court Registrar’s Trust Account at the appropriate bank and evidence of the deposit shall be filed with the petition.
Section 209 fixes the moment. Rule 5 gives effect to it: a petition shall be filed together with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.
So the deposit is made before the petition is lodged, and the evidence of it goes in with the petition. A petition lodged with a promise to pay has not complied.
Section 210
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
The deposit stands with the requisites of the petition as a precondition to the petition being heard.
And because it is a requirement of the Organic Law, Rule 22 of the Election Petition Rules 2017 cannot excuse it: subrule (4) provides that nothing in this rule excuses a failure to comply with a requirement of the Organic Law.
A failure to deposit is therefore a ground for an objection to competency.
Two different payments
| Filing fee | Security deposit | |
|---|---|---|
| Amount | K1,000.00 — r 6(1) | K5,000.00 — s 209 |
| Source | The Rules | The Organic Law |
| Where paid | A provincial finance office; or where circumstances do not permit, by bank cheque at a registry or into the Registrar’s Trust Account — r 6(2), (3) | In cash or by bank cheque into the National Court Registrar’s Trust Account — r 7 |
| Proof filed | Official receipt | Evidence of the deposit |
| Recoverable? | No | Yes — if no costs are awarded against the petitioner, the deposit shall be paid to the petitioner — s 224 |
Section 224 and Rule 20
Section 224: if costs are awarded to a party against the petitioner, the deposit lodged under Section 209 is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.
(1) Where the parties agree in writing for the deposit to be paid out to any party, the Registrar shall pay out the security deposit as agreed between the parties without requiring any further authority or action.
(2) Where there is a dispute as to distribution, the parties awarded costs may share the deposit in equal proportion to the number of parties.
(3) Where a party is awarded costs, after the taxation of those costs, the Registrar shall pay out the share of the security deposit of that party up to the taxed costs amount without further order.
Section 225: all other costs awarded by the National Court, including any balance above the deposit payable by the petitioner, are recoverable as if the order of the Court were a judgement of the National Court, and the order may be entered as a judgement of the National Court and enforced accordingly.
So an unsuccessful petitioner’s exposure is not limited to K5,000. Costs above the deposit are enforceable through the ordinary machinery of Order 13 of the National Court Rules 1983.
See costs of an election petition, and note the scale in Schedule 3 to the Rules.
Getting it right
- Arrange the money before drafting. K6,000 in total must be paid before the petition is lodged, and the 40 days does not stop for banking.
- Use the correct account. Rule 7 requires the National Court Registrar’s Trust Account at the appropriate bank — not a general revenue account.
- Keep the deposit slip. Rule 5 accepts an official receipt or stamped bank deposit slip. It must be filed with the petition.
- Check the amount against the current provision. The figure has been amended before and may be again.
- Warn the client about section 225. Losing a petition can cost considerably more than the deposit.
- Deal with the deposit in any settlement. Where a petition is withdrawn or resolved, a written agreement under Rule 20(1) lets the Registrar pay out without further order.
Every petition has at least two respondents — the successful candidate and the Electoral Commission — and there may be more with leave under Rule 3(c).
Rule 20(2) is the answer where costs are awarded to several: the parties awarded costs may share the deposit in equal proportion to the number of parties. Each then recovers the balance, if any, under section 225.
Sources
- Organic Law on National and Local-level Government Elections — ss 208–210, 223–225
- Election Petition Rules 2017 — rr 3, 5–7, 19, 20, 22; Sch 3
- National Court Rules 1983 — O 13
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.