[2022] KEPPDT 1038 (KLR)

Chege v UDA National Election Board & 2 others (Complaint E079 (NRB) of 2022) [2022] KEPPDT 1038 (KLR) (28 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1038 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E079 (NRB) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 28, 2022

Between

Kairu Peter Chege

Complainant

and

UDA National Election Board

1st Respondent

United Democratic Alliance Party

2nd Respondent

Moses Keya Ouma

3rd Respondent

Ruling

1. The complainant on the 22/04/2022 filed a notice of motion application brought under certificate of urgency and supported by his affidavit sworn on even date seeking the following orders:i.Spentii.Thatthis honorable court do issue interim ex-parte orders staying any further processing of the 3rd Respondent as the candidate for Korogocho Ward, Ruaraka Constituency for United Democratic Alliance Party in the first instance.iii.That this honorable courtdo issue interim ex-parte orders staying any further processing of the 3rd Respondent as the candidate for Korogocho Ward, Ruaraka Constituency for United Democratic Alliance Party pending the hearing and determination of this Application.iv.Thatthishonorable tribunal do review and set aside its judgment dated May 18, 2022. v.Thatthishonorable tribunal do compel the 2nd respondent herein to forward the name of the complainant for gazettement at the Independent Electoral and Boundaries Commission and remove the name of the 3rd Respondent.v.That this Honorable Tribunal do allow the Complainants Video Link provided showing the Deputy Returning Officer announcing him as the winner of the nomination for Korogocho Ward for the 2nd respondent Party.vi.Thatthe costs of this Application be provided for.

2. The application is based on the grounds set out on the face of it and supported by the affidavit of the complainant.

3. The application is opposed by the respondents who have filed their responses. the 1st and 2nd respondents replying affidavit is sworn on the 24/05/2022 and the 3rd respondents replying affidavit is sworn on the 24/05/2022.

Complainants Application 4. The complainant claims that his application dated 11/05/2022 was not heard by the Tribunal because the Tribunal came to the determination that it had no jurisdiction to hear the matter and therefore downed its tools without going into the merits of the case.

5. The complainant thereafter lodged a complaint with the Elections and Nomination Internal Dispute Resolution Committee and the same was received and payment of Kshs. 20,000/- for the complaint to be heard was made on 20/05/2022.

6. The complainant opines that the filing of the complaint before the Internal Disputes Resolution Committee is sufficient to grant this Tribunal jurisdiction to hear and determine the complaint.

7. The complainant contends that it will be a great prejudice to the people of Korogocho Ward if the person they chose through a free and fair nomination is not the one to represent them in the upcoming general elections with the other contestants having acknowledged him as the winner.

Respondents’ Response to the Application Dated 22/05/2022 1st and 2nd Respondent’s Response 8. The National Elections Board Chairman of the 1st and 2nd Respondent swore a replying affidavit to the Complainants Notice of Motion Application.

9. He averred that the complainant’s complaint presented vide a letter dated 20/05/2022 is pending hearing and determination and therefore the jurisdiction of this Tribunal has been prematurely invoked.

10. He states that the hearing of the complaint filed on the 20/05/2022 is scheduled for the 25/05/2022 at 10. 00 a.m and adds that the complainant has not exhausted the internal dispute resolution mechanism of the 2nd Respondent.

11. He maintains that thecomplainants application is bad in law and that this Tribunal lacks jurisdiction to hear and determine it.

12. He adds that the power of review is circumscribed under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and that the applicant must establish that there has been a discovery of new and important matter or evidence that after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the judgment was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason.

13. He contends that the complainant has not met the above threshold to warrant a review of the judgment delivered on 18/05/2022 and that the letter dated 20/05/2022 does not amount to new evidence as the same was filed after the issuance of the judgment. Furthermore, the complainant has not alluded to any error apparent on the face of the record.

14. The 1st and 2nd respondent want the application dated 22/05/2022 dismissed with costs and the decision of the Tribunal be upheld.

3RD Respondents Response 15. The 3rdrespondent maintains that the application for review does not meet the threshold for review as the applicant has not demonstrated which new material evidence has come to his possession which was not there at the time of hearing of the complaint or the mistake or error on the face of the record and or that there exist any other sufficient reasons to review the judgment.

16. He opines that the only new evidence that the applicant has brought before the Tribunal is a copy of the receipt for payment of fees for lodging a dispute together with an unsigned letter addressed to the 2nd respondent’s Internal Disputes Resolution Committee.

17. He maintains that the applicant ought to have first followed up on the complaint he filed with the 2nd respondent and have it heard before approaching this honorable Tribunal with the Application for Review.

18. He states that the application lacks merit and is an abuse of the Tribunals process and should be dismissed with costs.

Issues for analysis and determination 19. Having read through the pleadings together with the annexures and also heard the parties highlight their submissions the following issues are for determination in this complaint:i.Whether the Notice of Motion Application dated the 22/05/2022 meets the threshold for review of the judgment and whether this Tribunal has the jurisdiction to hear this application?ii.What orders can the Tribunal issue in the circumstancesiii.Who bears the costs of this claim?

Disposition Whether the Notice of Motion Application dated 22/05/2022 meets the threshold for review of the Judgment and whether this Tribunal has the jurisdiction to hear this application. 20. Order 45, Rule 1(b) is clear that for the court to review its decision, certain requirements should be met. This section provides as follows:(1).Any person considering himself aggrieved-a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed.and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2).A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

21. The aforesaid rule is based on section 80 of the Civil Procedure Act, cap. 21 Laws of Kenya which states as follows:“Any person who considers himself aggrieved-a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act.may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

22. Under section 80 of the Civil Procedure Act, the court has unfettered discretion to make such order as it thinks fit on sufficient reason being given for review of its decision. However this discretion should be exercised judiciously and not capriciously.

23. In Court of Appeal, Civil Appeal No. 2111 of 1996, National Bank of KenyavNdungu Njau, the Court of Appeal held that;“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evidence and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law”.

24. The upshot of the above is that the applicant has failed to demonstrate that there is mistake or error apparent on the face of the record and/or any sufficient reason to enable this court set aside its decision.

25. The preliminary objection for lack of jurisdiction by the 1st and 2nd respondent has also been considered and has been subsumed in the consideration for threshold for review. In any case, we note that dispute resolution organ of the 2nd respondent has not declined to hear the appeal and had even set a date of May 25, 2022at 10am for hearing at 10am before the applicant moved this tribunal on May 22, 2022.

26. Be that as it may, the question that arises in the circumstances, what becomes of the complaint lodged at the Elections and Nomination Internal Dispute Resolution Committee. Can it be considered as evidence of an attempt to have the matter resolved internally?

27. In the case of Musalia Mudavadi & 4 others v Angela Gathoni Wambura & 2 others [2019] eKLR, the following observations were made by the High Court when a party refuses to set in motion its IDRM: -“…I must however add that though this court in determining appeals such as the present one must have regard to parliament’s intention in creating the tribunal, the court must also be alive to the fact that there may be situations where political parties may for their own reasons refuse to set in motion their IDRM when called upon to do so by aggrieved parties. If the court were to be confronted by such a situation, it would not be powerless and would be in a position to grant the aggrieved party a remedy that would best serve the ends of justice. Each case must however be considered on its own merits…”

28. Similar sentiments were echoed in the case of Ibrahim Abdi Ali v Mohamed Abdi Farah &another (Complaint No 29 of 2015), where this tribunal held, that:“Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.”

29. In the instant case, the complainant lodged the complaint before the party internal dispute resolution committee on May 20, 2022. This is after this tribunal’s judgement on May 18, 2022. The party IDRM hearing was set onMay 25, 2022and the complainant filed this application on May 22, 2022just before the said hearing date.

30. There applicant has not demonstrated that its is impracticable to follow the internal IDRM process or the party has refused to set in motion the hearing of his complaint to warrant the exemptions to the doctrine of exhaustion of the Internal Party IDRM and therefore this Tribunal is unable to assume jurisdiction.

What orders can the Tribunal issue in the circumstances? 31. In the Upshot, the Notice of Motion dated 22/05/2022 lacks merit and the same is hereby dismissed.

Who bears the costs of the claim? 32. Costs of this application are hereby awarded to the 1st, 2nd and 3rd respondent against the complainant / applicant.

33. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2022. HON. ERASTUS ORINA(PRESIDING MEMBER)HON. THERESA CHEPKWONY(MEMBER)HON. DANIEL KAGACHA(MEMBER)