[2022] KEHC 12355 (KLR)

Kariuki v Nganga & another (Civil Appeal E359 of 2022) [2022] KEHC 12355 (KLR) (Civ) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12355 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E359 of 2022

JK Sergon, J

June 20, 2022

Between

John Ndirangu Kariuki

Appellant

and

Samuel Mwangi Nganga

1st Respondent

Jubilee Party

2nd Respondent

(Being an appeal against the judgment of Hon. Desma Nungo Political Parties Dispute Tribunal at Nairobi delivered on the 25th day of May 2022 in Nairobi Tribunal Case no. PPDTC/E086/2022)

Judgment

1. On 25th May 2022 the Political Parties Dispute Tribunal (PPDT) hereinafter referred to as the ‘Tribunal’ sitting in Nairobi dismissed a complaint filed by John Ndirangu Kariuki, the appellant herein.

2. Being aggrieved, the appellant preferred this appeal and put forward the following grounds:i.That the learned members erred in law and fact by failing to request from the 2nd respondent the Jubilee party proceedings and/or ruling on the hearing that took place at the Jublilee party headquarters on the 14th day of May 2022 at 3m whereas the same was admitted by both the complainant and the 1st respondent who were in attendance.ii.That the learned members erred in law and fact by finding that the complainant did not plead when the consensus building process was conducted whereas both the complainant and the 1st respondent submitted in oral evidence that they attended the consensus meeting on the 18th day of April 2022. iii.That the learned members erred in law and fact by failing to take judicial notice of the fact that the 2nd respondent issued all its nomination certificates country wide on the 22nd day of April 2022 and the 25th day of March 2022 was clearly a clerical error in light of the fact that this was the date when the complainant became a member of the 2nd respondent clearly shown in the nomination fee receipt and on the nomination application adduced as evidence.iv.That the learned members erred in law and fact by failing to take into consideration the fact that the complainant was publicly awarded with a nomination certificate by a high ranking official of the 2nd respondent compared to the 1st respondent who did not attempt and/or avail any evidence or submit on how he came into possession of his nomination certificate dated the 22nd day of April whereas all other nomination certificates issued by the 2nd respondent were signed by party officials and undated.v.That the learned members erred in law and fact by failing to take into consideration the fact that there are two nomination certificates for the Member of National Assembly for Embakasi Central Constituency one of which has to be nullified.

3. This court issued orders directing the appeal to be disposed of by written submissions.

4. Before delving into the merits or otherwise of this appeal, I wish to set out in brief the background of this appeal. The appellant and Samuel Mwangi Nganga, the 1st respondent herein are members of the Jubilee Party of Kenya, the 2nd respondent herein. Both the appellant and the 1st respondent were aspiring candidates for the position of Member of National Assembly (MP) Embakasi Central constituency.

5. The appellant filed a complaint before the Tribunal alleging that the 2nd respondent conducted nomination by way of consensus which he participated and was accordingly issued with a certificate of nomination to contest the position of M.P Embakasi Central constituency on the 2nd respondent’s ticket. The appellant later came to learn that the 1st respondent was also issued by the 2nd respondent with a certificate of nomination for the same position.

6. This turn of events prompted the appellant to file an appeal before the 2nd respondent’s National Elections Appeals Tribunal (NEAT) challenging the existence of two nomination certificates. The 2nd respondent’s NEAT delayed in delivering its determination on the appellant’s appeal, prompting the appellant to file a complaint before the Tribunal.

7. The Tribunal found that it had jurisdiction to entertain the complaint having satisfied itself that the appellant had shown that he made an attempt at the 2nd respondent’s Internal Party Dispute Resolution Mechanism (IDRM). The Tribunal heard the complaint and by its judgment delivered on 25th May 2022, the appellant’s complaint was dismissed, prompting the filing of this appeal.

8. I have re-evaluated the case that was before the Tribunal. I have also considered the rival submissions plus the authorities cited by learned counsels.

9. In the first ground of appeal, the appellant is of the submission that the Tribunal erred by failing to call for the proceedings of the 2nd respondent’s NEAT held on 14th May 2022 to enable it determine the complaint.

10. The appellant pointed out that the 2nd respondent’s NEAT sat on the aforesaid date and gave the appellant and the 1st respondent audience regarding the two nomination certificates. It is said that the 2nd respondent’s NEAT informed the parties that it would give its decision within 48 hours from the date of hearing but so far no decision has been delivered.

11. The appellant further submitted that had the Tribunal compelled the 2nd respondent to provide the proceedings, it would have arrived at a finding that the appellant is the validly nominated candidate and his nomination certificate valid. This court was urged to issue an order directing the 2nd respondent’s NEAT to provide the proceedings of 14th May 2022 to verify the factual questions that were before it based on the hearing at the 2nd respondent’s NEAT.

12. The respondents did not address this court over this ground of appeal. I have perused the judgment of the Tribunal and it is clear that the Tribunal did not call for the proceedings of NEAT. It is also apparent from the Tribunal’s judgment that the Tribunal noted that both the appellant and the 1st respondent admitted in their pleadings and submissions that they were heard and that the 1st respondent claimed that his nomination certificate was upheld and that they were only awaiting the decision of NEAT on the authenticity of the appellant’s certificate.

13. It is also noted that the appellant had indicated that the 2nd respondents NEAT was to deliver its decision within 48 hours from the date of hearing but that has not done so. The Tribunal further noted that the 2nd respondent’s IDRM was ineffective. The Tribunal proceeded to consider the material placed before it to determine the authenticity of the two certificates of nomination.

14. It is clear that none of the parties had applied to the Tribunal to call for the proceedings of the 2nd respondent’s NEAT held on 14th May 2022. The Tribunal indirectly alluded that the 2nd respondent’s NEAT did not deliver its decision hence it was declared to have been ineffective as an IDRM.

15. In the absence of any application made by the parties to the Tribunal to all for the records of the 2nd respondent’s proceedings held on 14th May 2022, the Tribunal could not make such an order suo moto. The Tribunal cannot be faulted for failing to make such a decision. I find the first ground to be without merits.

16. In the second ground of appeal, the appellant argued that the Tribunal erred when it found that the appellant did not plead as to when the consensus building process was conducted yet both the appellant and the 1st respondent made oral submissions and submitted affidavit evidence that they attended the consensus meeting held on 18th April 2022.

17. The appellant pointed out that the Tribunal outrightly erred to reach at such a finding yet both the appellant and the 1st respondent were in agreement that the consensus meeting took place where he was declared the winner. I have re-evaluated the case that was presented before the Tribunal.

18. The Tribunal stated in part in its judgment in part as follows:“In consideration of this issue and the parties’ contested positions, it is inescapable to evaluate the pleaded facts and evidence adduced before the Tribunal ... we have noted that the complainant has simply pleaded that he was awarded the nomination certificate after a consensus process where he emerged the preferred candidate. We have gone through all his pleadings in respect of this instant case and we therefore note that he has conspicuously failed to plead when the consensus building process that led to is issuance of the nomination certificate was concluded. Strangely, his counsel stated in his oral submission that the complainant was awarded his certificate on 22nd April 2022 vide that is alluded to by the 1st respondent. These fundamental facts have not been pleaded anywhere in the complainant’s pleadings filed herein.Further, what is striking is that as evident in the complaint filed in PPDT complaint no. E058 of 2022 produced by the complainant in these proceedings, we note that the complainant stated on oath that he was awarded his certificate after a consensus process that was held on 23rd March 2022 yet in the instant complaint as we have already observed, he did not plead on the issue and that his counsel simply stated in the course of his oral submissions that he was awarded on 22nd April 2022. We find the lack of consistency on the part of the complainant on the very basic yet the fundamental issue of date of award of his nomination certificate unsettling.”

19. I have carefully gone through the proceedings and leading plus the rival affidavits placed before the Tribunal and it is apparent that both the appellant and the 1st respondent are in agreement that they both attended a consensus building process conducted by the 2nd respondent on 18th April 2022.

20. The appellant averred that out of the aforesaid process he emerged the winner of the 2nd respondent’s party ticket and was declared as the official party candidate for MP, Embakasi Central constituency.

21. The appellant was emphatic that as a result he was issued with a nomination certificate. The record also shows that the appellant’s advocate orally submitted before the Tribunal that there was a consensus building process adopted by the 2nd respondent on 18th April 2022 and that on 22nd April 2022 the appellant was publicly issued with an official certificate of nomination.

22. The record shows that the 1st respondent in a replying affidavit admits that there was a consensus building process conducted on 18th April 2022. It is therefore clear that both the appellant and the 1st respondent pleaded that a consensus building process was conducted on 18th April 202. The Tribunal therefore fell into error when it ruled otherwise.

23. The third ground of appeal is to the effect that the Tribunal erred by failing to take judicial notice that the 2nd respondent issued to all nomination certificates countrywide on 22nd April 2022 and that the certificate issued to the appellant had clerical error in light of the fact that this was the date when the appellant became a member of the 2nd respondent as shown in the nomination fee receipt and on the nomination application adduced as evidence.

24. The appellant submitted that the error on the date on the initial certificate was a mere technicality since the clerical error was clarified by the appellant at the hearing before the Tribunal. The respondents of the submission that the Tribunal did not err because there was no evidence presented by the appellant that the error on the date stated on the nomination certificate was a typographical error.

25. It is also the 1st respondent’s submission that the appellant failed to show what attempts he took to have the error corrected by the issuing authority. The record shows that the Tribunal went in detail on the issue touching on the date as to when the certificate was issued. The Tribunal indicates that the appellant had stated on oath that he was awarded the certificate after consensus process that was held on 23rd March 2022, yet his advocate orally stated before the Tribunal that the appellant was issued the certificate on 22nd April 2022.

26. This court was urged to fault the evidence relied upon by the Tribunal. The appellant pointed out that the Tribunal relied on an affidavit which was in the previous matter and assumed the clarification in the current affidavit in the instant matter. I have perused the Tribunal’s judgment and its noted that the Tribunal expressed itself in part as follows:“Further, what is striking I that as evident in the complaint filed in PPDT complaint no. E058 of 2022 produced by the complainant in the proceedings, we note that the complainant stated on oath that he was awarded his certificate after a consensus process that was held on 23rd March 2022. ”

27. It is not in dispute that PPDT complaint no. E058 of 2022 was heard and dismissed. With respect, I agree with the appellant that the Tribunal erred when it relied on an affidavit in a matter which had been heard and dismissed. The Tribunal ought to have used pleadings and documents before it to determine the matter before it instead. The finding therefore on the issue touching on dates must be set aside.

28. The Tribunal further noted that the appellant had submitted photographs showing that he was publicly given a certificate of nomination. The Tribunal rejected that piece of evidence on the basis that there was no certificate of production of electronic evidence. The Tribunal stated the photographic evidence were not reliable.

29. The Tribunal also took account the evidence tendered by the 1st respondent. It is noted that he gave a chronological sequence of events that on March 25, 2022 was the deadline for submission and payment of requisite fees for candidate nomination and that consultation took place on April 18, 2022.

30. The 1st respondent is further quoted to state that the appellant, the 1st respondent and other aspirants underwent interviews on April 18, 2022 where the 1st respondent was declared a winner and on April 22, 2022 was issued with the certificate. The Tribunal also stated that the certificate issued to the appellant was not dated but signed.

31. The question is whether the Tribunal erred by not taking judicial notice that the 2nd respondent had issued nomination certificates to all its candidates countrywide on April 22, 2022.

32. Having considered the material placed before this court, it is now clear that the 2nd respondent did not deny issuing two nomination certificates, one to the appellant and the other to the 1st respondent. It is also not in dispute that disputants appeared and participated in the consensus building process on April 18, 2022. If by March 25, 2022, the appellant had been issued with a nomination certificate, it would make no sense for him to appear for a consensus building process on April 18, 2022.

33. It is also clear from the proceedings on record that the 2nd respondent denied that it issued to all its aspirants country wide nominating certificates on 22nd April 2022. I am persuaded by the appellant’s argument that the Tribunal should have deemed the error as a typographical error. In other words, the error is not attributed to fraud or forgery on the part of the appellant. Consequently, I find the Tribunal to have erred in its findings over the issue. I find that the appellant had given plausible explanation on how he came into possession of the nomination certificate.

34. The final ground of appeal is whether the Tribunal erred by failing to take into consideration the fact that there are two nomination certificates issued for the Member of the National Assembly for Embakasi Central constituency of which one has to be nullified. The appellant further stated that the 1st respondent had failed to avail evidence on how he came into possession of is nomination certificate he was allegedly issued.

35. It is the submission of the 2nd respondent that the fact of the complaint having been dismissed with no order on which of the two certificates is valid, the prayers by the appellant was for the nullification of the 1st respondent’s certificate and with the court dismissing the complaint, it follows then that the prayer stood disallowed and the 1st respondent’s certificate remained undisturbed.

36. The 2nd respondent stated that since it has forwarded the 1st respondent’s name to IEBC, the dismissal of the complaint left the status quo undisturbed.

37. The 2nd respondent further argued that since it forwarded the name of the 1st respondent to IEBC for clearance therefore the orders sought by the appellant cannot be granted having been overtaken by events. The thorny issue in this appeal is that the existence of two nomination certificates was not resolved by the Tribunal. It is clear from the record that the appellant had sought for the nullification of the nomination certificate issued to the 1st respondent.

38. The record shows that the Tribunal attempted to resolve the dispute by examining how the two certificates were issued. The Tribunal eventually dismissed the appellant’s complaint without making any determination as to which of the two certificate should be nullified. The Tribunal faulted the appellant’s certificate of nomination on the error in respect of the date it was issued but it did not proceed to issue an order to nullify it.

39. The appellant has argued that the Tribunal failed to take into account that the 1st respondent did not explain how he obtained the certificate. Let me re-examine how the appellant and the 1st respondent explained the process used leading to issuance of the certificates of nomination.

40. According to the appellant he was awarded the certificate of nomination after a consensus process where he emerged the preferred candidate. The appellant stated that the consensus process was conducted on 18th April 2022 and even produced photographs of him being issued with the certificate by the 2nd respondents senior party officials in the party headquarters. The two photographs were never disputed by the 2nd respondent.

41. On the other hand, the 1st respondent stated that he together with the appellant attended the consensus building meeting called by the 2nd respondent on 18/4/2022. He stated that he was duly nominated by the 2nd respondent party on 22nd April 2022.

42. Having re-evaluated the evidence presented by both the appellant and the 1st respondent, it is clear to this court that both disputants were able to give plausible explanations on the process followed until the stage of issuance of the nomination certificates. The Tribunal critically examined the certificate of nomination issued to both disputants and faulted the one issued to the appellant but did not issue any order of cancellation.

43. I have considered the errors touching on the date and deemed the error as a typographical error and also took judicial notice of the fact that the 2nd respondent issued to all its aspirants country wide with certificates of nomination on 22nd April 2022. However, the one issued to the appellant though signed is not dated by each signatory.

44. The appellant has now urged this court to fault the Tribunal for failing to determine which certificate is valid. I have already pointed out that the appellant lodged a complaint before the Tribunal seeking to nullify the certificate issued to the 1st respondent. The appellant is and was enjoined to tender credible evidence to impugn the certificate of nomination issued to the 1st respondent but he miserably failed to discharge that burden of proof therefore the certificate of nomination issued to the 1st respondent cannot be nullified since it was validly issued.

45. The Tribunal therefore had no basis to issue orders nullifying the certificate of nomination issued to the 1st respondent. The respondent did not file any counter-claim with a view of beseeching the Tribunal to nullify the certificate of nomination issued to the appellant. In the absence of such a prayer the Tribunal could not issue orders to nullify the certificate given to the appellant. The Tribunal cannot therefore be faulted in that respect. The respondents did not also file any cross-appeal before this court to seek for such orders.

46. Having failed to prove his complaint the Tribunal was right to dismiss the appellant’s complaint. In the end, I find no merit in the appeal. The same is dismissed. In the circumstances of this appeal, a fair order on costs is to order which I hereby do is that each party should meet its costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 20TH DAY OF JUNE, 2022. ..........................J. K. SERGONJUDGEIn the presence of:...................... for the Appellant.............. for the 1st Respondent.............. for the 2nd Respondent