[2022] KEPPDT 957 (KLR)

Gichia v United Democratic Alliance; Wanjiku (Interested Party) (Complaint E008 (NRB) of 2022) [2022] KEPPDT 957 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 957 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E008 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 6, 2022

Between

Evans S Wainaina Gichia

Complainant

and

United Democratic Alliance

Respondent

and

John Njuguna Wanjiku

Interested Party

Ruling

1. On April 7, 2022, a consent order was duly adopted by this tribunal in the following terms:-i.That the complaint is hereby withdrawn with no orders as to costsii.That the complainant should be included in the respondent party’s nominations for the Kiambaa Parliamentary seat in accordance with the party’s constitution and the party’s nomination rules and the laws of Kenya.

2. Subsequently, the complainant filed a notice of motion application dated April 14, 2022 claiming that the respondent had not complied with the consent order and he sought various orders to enforce the same. We heard the application inter partes and a ruling was delivered on April 26, 2022 in the following terms:-i.That United Democratic Alliance (UDA) Party, the respondent, is in breach of the consent order dated April 7, 2022. ii.That the nomination certificate issued to John Njuguna Wanjiku, the interested party, for UDA MP Kiambaa nominee, in breach of the consent order dated April 7, 2022 be and is hereby nullified.iii.That the respondent to forthwith include the applicant in the list of aspirants and conduct direct nominations for Member of Parliament Kiambaa Constituency.iv.That each party shall bear its own costs of these proceedings in the interest of fostering party unity.v.Notice to issue to the IEBC.

3. The respondent/applicant has now moved this tribunal vide notice of motion application dated April 29, 2022 seeking orders for review and/or setting aside of our orders of April 26, 2022. The application is opposed by the complainant who has filed a replying affidavit.

4. Pursuant to the directions of the tribunal, the application was heard inter partes on May 3, 2022. The complainant appeared in person. The respondent and the interested party (the applicants in the instant application) on the other hand were represented by Mr Kibett Advocate.

The Application 5. The application is grounded on the provisions of rule 33 of thePPDT(Procedure) Regulationsas read together with the provisions of section 80 of the Civil Procedure Act and order 45 rule 1(b) and (c) of the Civil Procedure Rules. The applicant contends that no appeal has been preferred by either party to the High Court, and that the application for review is therefore proper before the tribunal.

6. The applicant avers that there exists sufficient reason for review of the aforesaid tribunal orders issued on April 26, 2020. The tribunal was referred to the cases Vehicle & Equipment Leasing Limited v Jamii Bora Bank Limited (2017) eKLR and Nairobi City Council v Thabiti Enterprises Limited (1997) eKLR where the court observed that it has a wide discretion on what may be sufficient reason for review.

7. It was submitted that the specific order for direct nomination as captured in order number 3 of the tribunal’s order and the consent order of April 7, 2022 were divergent. According to the applicant, the consent order would give the National Elections Board (NEB) discretion to determine the mode of nomination under article 31 of the party Constitution unlike the order for direct nomination as issued by the tribunal. The respondent submits that they are unable to comply with both orders contemporaneously because as per the party constitution, they elected the mode of interview and if the past interview did not comply, they can conduct another one. That it was improper for the tribunal to order direct nomination yet the application in issue was to give effect to the consent order.

8. It is the respondent’s argument that given the foregoing circumstances, there is sufficient reason to warrant a review of the tribunal orders issued on April 26, 2022. It is the respondent’s prayer that they be directed to comply with the consent order which givesNEB the discretion to choose method for nomination. The tribunal has been invited to consider and grant prayer number 3 of the application.

The Response 9. The claimant filed his replying affidavit in response and opposition to the application. It is the respondent’s contention that article 31(3) of the party constitution was not included in the respondent’s evidence and that in the circumstances, the issues relating thereto cannot now be brought up. He submits that the party constitution is not a new discovery that could not have been introduced during the hearing of the application that gave rise to the ruling subject of the instant review application.

10. The claimant avers that the application offends the provisions of section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules as there is no new and important evidence that has come up. That there is instead an attempt by the respondent to re-open an application which has already been determined. According to the complainant, section 3A of the Civil Procedure Act grants the tribunal jurisdiction to vary, expound or give orders depending on prevailing evidence and that the tribunal can issue any orders in the interest of justice and to prevent abuse of court process. He contends that the application was based on failure by the respondent to include his name and that there was no option put across during the discussions leading to entry into the consent order other than direct nomination. That his application that led to the grant of orders sought to be reviewed was necessitated by the respondent’s failure to include his name and conduct direct nominations

11. The complainant maintain that the tribunal orders subject hereof were in order and carried the spirit of the discussions that were held on April 6, 2022 giving rise to the consent order of April 7, 2022, and that he had a legitimate expectation that direct nominations would be conducted on April 14, 2022. He submits that he is ready for direct nomination and that his right as a voter and as an aspirant should not be disregarded.

Analysis and Determination 12. The key issue for determination is whether the applicant has demonstrated that there is sufficient reason to warrant a review of our order directing the party to conduct direct nominations.

13. As correctly observed by learned counsel for the applicant, this tribunal has power to review its orders. Review proceedings are not by way of an appeal and have to be exercised within the framework of section 80 Civil Procedure Act as read together with regulation 33 of the PPDT (Procedure) Regulations and order 45 rule 1 of theCivil Procedure.

14. Section 80 gives the power of review while order 45 sets out the rules. The rules restrict the grounds for review to; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.

15. The Supreme Court of India in Ajit Kumar Rath v State of Orisa& others had this to say on the scope of review:-“the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule”

16. In Tokesi Mambili and others v Simion Litsanga the Court of Appeal held:-"i.In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.(Emphasis added)ii.Where the application is based on sufficient reason it is for the court to exercise its discretion."

17. In Nyamogo & Nyamogo v Kogo discussing what constitutes an error on the face of the record, the court rendered itself as follows:-“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”

18. In Sadar Mohamed v Charan Signh and another where the court held that:-“Any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter).”

19. We note that all the grounds advanced by counsel to support a request for review were also advanced during the hearing of the application dated April 14, 2022. For instance, parties led evidence and we made a determination on the question of the interpretation of the letter and spirit of the consent order of April 7, 2022. Parties also took us through the various modes of nomination which are provided for under the party laws and we applied our minds thereto. We also applied our mind to the circumstances of this case leading to entry into the consent order of April 7, 2022.

20. Taking into consideration the foregoing, we find no sufficient basis for us to review our orders. We accordingly decline this invitation to reconsider our finding in a manner that is tantamount to the tribunal sitting on appeal against its own determination. We find that the application has no merit and is for dismissal.

Disposition 21. In light of the foregoing, we order as follows:-i.That the notice of motion application dated April 29, 2022 be and is hereby dismissed.ii.That each party shall bear their own costs of these proceedings.iii.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MAY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO…………………………...(MEMBER)