[2017] KEHC 9051 (KLR)
The court found that while the Political Parties Dispute Tribunal was correct in setting aside its earlier judgment due to lack of service on the 2nd Respondent, it erred by proceeding to grant orders in favour of the 2nd Respondent without hearing the Appellant on the merits of her complaint. This amounted to...
Source-derived case information.
- Citation
- [2017] KEHC 9051 (KLR)
- Parties
- Appellant: Jackline Atieno Ongoro; Respondent: Orange Democratic Movement (ODM); Respondent: Bassil Otieno Odero
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 97 of 2017
- Procedural Posture
- Election Petition Appeal / Judgment
- Outcome
- appeal partially allowed
- Judges
- LK Kimaru
- Legal Topics
- Right to Be Heard, Procedural Fairness, Review of Tribunal Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackline Atieno Ongoro
Appellant
Orange Democratic Movement (ODM)
Respondent
Bassil Otieno Odero
Respondent
Procedural Posture
Election Petition Appeal / Judgment
Legal Issues
- 1 Whether the Political Parties Dispute Tribunal erred by granting orders in favour of the 2nd Respondent without hearing the Appellant on the merits of her complaint.
- 2 Whether the Appellant was denied the right to be heard before the tribunal.
Ratio Decidendi
The court found that while the Political Parties Dispute Tribunal was correct in setting aside its earlier judgment due to lack of service on the 2nd Respondent, it erred by proceeding to grant orders in favour of the 2nd Respondent without hearing the Appellant on the merits of her complaint. This amounted to condemning the Appellant unheard, violating her right to a fair hearing. The appropriate course was for the tribunal to hear the complaint on its merits before making any substantive orders. Consequently, the High Court set aside the impugned orders and directed the tribunal to hear the complaint afresh on its merits.
Court Disposition
appeal partially allowed
Orders
- The orders made in Paragraph 21 of the Ruling dated 8th June 2017 are set aside.
- The matter is remitted to the Political Parties Dispute Tribunal to hear the Appellant's complaint on its merits.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION
ELECTION PETITION APPEAL NO.97 OF 2017
JACKLINE ATIENO ONGORO...............................................APPELLANT
VERSUS
ORANGE DEMOCRATIC MOVEMENT (ODM)........1ST RESPONDENT
BASSIL OTIENO ODERO..............................................2NDRESPONDENT
JUDGMENT
It was clear to this court that the tribunal (Political Parties Dispute Tribunal) erred when, upon setting aside its judgment of 13th May 2017, it proceeded to grant orders in favour of the 2nd Respondent without hearing the merits of the complaint lodged by the Appellant in her initial complaint. The 2nd Respondent’s application seeking to review the judgment of the tribunal was predicated upon his contention that he had not been served, and that the earlier judgment issued by the Political Parties Dispute Tribunal was issued without his knowledge. The Political Parties Dispute Tribunal upheld the 2nd Respondent’s assertion that he was not served. This court having read the passage of the Ruling of the tribunal agrees with the finding in that regard. However, this court notes that the Political Parties Dispute Tribunal proceeded to grant orders in favour of the 2nd Respondent without the benefit of hearing both parties in accordance with the merits or otherwise of their respective cases. The Appellant has a case when she says that she was condemned unheard by the tribunal. This court sees no basis upon which the Political Parties Dispute Tribunal issued the orders in favour of the 2nd Respondent after setting aside its judgment.
In the premises therefore, the Appellant partially succeeds in her appeal as a result of which the orders made in Paragraph 21 of the Ruling dated 8th June 2017 is set aside and substituted by an order of this court requiring the tribunal to hear the complaint lodged by the Appellant on its merits. The parties shall appear before the Political Parties Dispute Tribunal on 15th June 2017 at 9. 00 a.m. for directions regarding the hearing, on merits, of the complaint that was lodged by the Appellant. The Political Parties Dispute Tribunal is directed to render its decision as soon as possible in any event not later than 4. 00 p.m. on 16th June 2017. There shall be no orders as to costs.
DATED AT NAIROBI THIS 14TH DAY OF JUNE 2017
L. KIMARU
JUDGE