[2022] KEHC 9968 (KLR)

Elisha v Mukabwa & 2 others (Election Petition Appeal E004 of 2022) [2022] KEHC 9968 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9968 (KLR)

Republic of Kenya

In the High Court at Kakamega

Election Petition Appeal E004 of 2022

PJO Otieno, J

July 7, 2022

Between

Lidzanga Bonface Elisha

Appellant

and

Johnstone Alusola Mukabwa

1st Respondent

Democratic Action Party of Kenya

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

(Being an appeal from the Ruling and Orders of the Political Parties Disputes Tribunal (Hon. Milly Lwanga, Hon. Timothy Tororey and Hon. Dr. Lydiah Wambui) dated 10. 6.2022)

Judgment

1. The appeal before the court challenges the decision of the political Parties Dispute Tribunal dated June 10, 2022 in Complaint No. E012 of 2022, by which the Tribunal dismissed an application dated June 6, 2022 seeking to set aside ex parte proceedings conducted against and in the absence of the Appellant.

2. In the application, besides the prayer for interim orders of stay of the decision dated May 24, 2021, the only substantive prayer was couched as follows:-“That the Judgment made by this Honourable Tribunal (Hon. M. L. Odongo Tororey; Hon. Timothy Kipchirchir; and Hon. Dr. Lydiah Wambui) on 24th May 2022 and adopted by the Chief Magistrates Court at Kakamega on 26th May 2022 in Political Parties Tribunal Complaint No. E012 of 2022, Johnstone Alusola Mukabwa v Democratic Action Party of Kenya & 2 others be set aside in its entirety.”

3. A reading of the application on the disclosed grounds and the affidavit of the appellant sworn and filed in support thereof disclose the gist of the grounds to be that the complaint was lodged and prosecuted to conclusion without any notice by way of service upon the appellant to give him a chance to defend himself in utter contravention of articles 47 and 50 of the Constitution as well as Rules 12 and 16 of the Political Parties Dispute Tribunal (Procedure) Regulations 2017 which entitled him to a right to reply within seven (7) days and be heard by the Tribunal. There were other grounds advanced which I consider immaterial for this determination.

4. When served with the application, the 1st Respondent opposed same by a Replying Affidavit sworn on the June 7, 2022. In that Affidavit the 1st Respondent contended that the Appellant had never at any time been nominated by the 2nd Respondent but had had his name irregularly and fraudulently entered in a subsequent party list in place of that of the 1st Respondent. It added that when the alleged illegality was noticed by the 2nd Respondent, the Party wrote to the 3rd Respondent notifying it of the illegal alteration of the Party list contrary to the law. It was then contended that upon the Judgment by the Tribunal being rendered, the Party forwarded a notification to the Commission on May 26, 2022 received on May 30, 2022 and the 3rd Respondent complied with the decree and nominated the 1st Respondent as the 2nd Respondent’s nominee for Murhanda Ward on the June 7, 2022 hence the matter now before the court has been overtaken by events.

5. For good measure it was added that on the advice of Counsel, the Tribunal lacked the jurisdiction to determine the matter which he sought to be dismissed with costs to him.

6. On the basis of those two affidavits the matter was set for hearing before the Tribunal on the 8/6/2022 and a ruling dismissing same was delivered on the June 10, 2022.

7. In that decision, the Tribunal did discern the Complaint by the Appellant to have been lack of service but in isolating the issues for determination, it isolated the only issue to be whether or not the 1st Respondent had been duly nominated. The Tribunal then went into the merits of who between the Appellant and 1st Respondent had been nominated by the 2nd Respondent and bemoaned lack of evidence of nomination of the Appellant as opposed to the available evidence showing that the 1st Respondent had been nominated. It then reached a rendition and said:-“The form issued by IEBC is merely a registration processing form that would confirm receipt of a title that conferred through a party process. Where, pray, is the information from the political party conferring any alleged title upon the Applicant? We do not see any.”

8. I have had the advantage of reading the record availed to court, the Memorandum of Appeal and the Submissions by the Counsel, for which I am very grateful, and I consider the only issue for determination to be whether the Tribunal did appreciate its task on setting aside by applying the principles relevant thereto

9. A reading of the ruling clearly shows that the Tribunal never address its mind to the crux of the matter before it – service. The reading of the ruling suggest that the Tribunal either glossed over the issue or evaded answering that question which it could do by merely looking at its records. In doing so, the Tribunal fell into error that demonstrate either abdication of duty or total misapprehension of the dispute. That must be corrected on appeal.

10. The principles to be observed in an application for setting aside are now well established. I understand the principles to be that the discretion upon the court is wide and unfettered and intended to meet the ends of justice so that even where there is a lapse on a party, the court still has the discretion to consider if the lapse is excusable or even where the lapse is not excusable if the applicant has an arguable point to present to the court. However, the wide and unfettered discretion dissipates where there is demonstration of lack of service of process. The Court is said to have no discretion to exercise but is obligated to set aside bila maneno1, ex debito justitiae and as of right2. InJames Kanyiita Nderitu & another v Marios Phitolas Ghikas & another [2016] eKLR; Civil Appeal 6 of 2015; [2016] KECA 470 (KLR) the Court of Appeal reiterated the position that an irregular decision presents to the court no discretion to exercise in the following words:-1Kimaru J, in Francis Kipkemoi Ruto v Jeremia Langat & others [2004] eKLR2Kwanza Estates Ltd v Dubai Bank Kenya Ltd [2019] eKLR“In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.” (emphasis added)

11. In this matter, the 1st Respondent has not made any allusion to having effected the service of the complaint on the Appellant. In fact it was content to say, before the Tribunal and here, that the Appellant had fraudulently and irregularly had the party list altered in his favour without the blessings of the Political Party. He gave, as it were, a wide berth to the accusation that he denied to the Appellant his constitutional right to be heard on the Complaint. However clear and blatant the accusation against the Appellant were, he was entitled to be heard. That failure to controvert or challenge the allegation on oath was compelling upon the Tribunal to interrogate the complaint. It did not with the consequence that it failed on its duty to determine the dispute presented to it by the Appellant.

12. It has been said, times without number, by the superior courts of Kenya, including the Supreme Court3 that parties and included this court are bound by the pleadings because as an arbiter the court has no dispute of its own. It must only determine the dispute as framed by parties in the pleadings or those left to it by the parties by implication4. 3Raila Odinga vIEBC [2017] eKLR4Ushago Diani Investments Ltd v Jabeen Manan Abdulswahab [2018] eKLR

13. This Court finds that the Tribunal was bound in law to consider the question whether or not there had been service. In the absence of evidence controverting the assertion by the Appellant, the Tribunal was bound by the principle of law that what is asserted and not denied is deemed admitted. In doing so, there was a glaring error in principle and application of the law which entitles this court to interfere with the decision thereby reached.

14. In coming to this conclusion, the court finds it appropriate to point out on the facts before the Tribunal, there was no discretion to be exercised and therefore the appeal here is not once challenging a discretional finding.

15. I would stop here but there was a contention by the 1st Respondent that the Appellant ought to have sought to exhaust internal dispute resolution of the 2nd Respondent or gone for dispute resolution by the 3rd Respondent pursuant to article 88 (4) of the Constitution. To that challenge, the court finds that once there had been a complaint before the Tribunal where a decision had been rendered to the Appellant’s disadvantage, it would have been untidy and an act towards the proliferation of disputes to initiate a new matter and let a judicial determination by the Tribunal uncontested. The Appellant would be caught up with all manner of legal hiccups and obstacles including res judicata. His approach to set aside was the appropriate challenge at the time.

16. But more importantly, the 3rd Respondent being starved of luxury of time, did set its calendar of events toward preparation to deliver on its mandate and set timelines for resolution of disputes under article 88 (4) of the Constitution in the gazette Notice No. 431 of January 20, 2022.

17. By that notice, complaint to the 3rd Respondent were to be received not later than the June 9, 2022 to enable determination not later than June 20, 2022. It is thus openly clear that by the time the ruling was delivered by the Tribunal the window for approaching the forum envisaged by article 88 (4) had closed. That forum was thus not available and doctrine of exhaustion became inapplicable. The Appellant thus cannot be faulted for having initiated and pursued the setting aside and this appeal as it did. In any event Regulation 34 of the Political Parties Dispute Tribunal (Procedure) Regulations 2017 permits one aggrieved by a decision of the Tribunal to bring an appeal to the High Court5. That is a right that is equally guaranteed by the Constitution. It is difficult to fathom the contention that the court lacks jurisdiction in the appeal.534. (1) A person aggrieved by a decision of the Tribunal may, within thirty days from the date of the decision or order, appeal to the High Court.(2) The law applicable to appeals before the High Court in civil matters shall, with the necessary modifications, apply in appeals before the Tribunal.(3) A decision of the High Court shall be final.

18. In conclusion, I find the appeal to be merited and I do allow it with the consequence that the ruling of June 10, 2022 by the Tribunal is set aside and in its place substituted with order allowing the application dated June 6, 2022 with costs. The other consequence of the appeal being allowed is that the Tribunal shall, within its mandate, hear the complaint by the 1st Respondent within the shortest time practicable. For that reason let this decision be served upon the Tribunal forthwith for it to give directions as may be necessary.

19. On costs, I appreciate that the active participants in the dispute remain the Appellant and the 1st Respondent. In fact, the failure to serve which has anchored this decision was by the 1st Respondent. Now that the Appellant has succeeded the success is against the 1st Respondent who shall pay the costs of this appeal.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Wamunga for the AppellantMr. Wukoko for the 1st RespondentNo appearance for the 2nd RespondentMs. Odek for the 3rd RespondentCourt Assistant: Kulubi