[2022] KEHC 11859 (KLR)

Maina v Parties & another; Maendeleo Chap Chap (Interested Party) (Civil Case E303 of 2022) [2022] KEHC 11859 (KLR) (Civ) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11859 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Case E303 of 2022

JK Sergon, J

June 20, 2022

Between

Martin Mugo Maina

Appellant

and

Registrar of Political Parties

1st Respondent

Azimio La Umoja One Kenya Coalition Party

2nd Respondent

and

Maendeleo Chap Chap

Interested Party

Ruling

1. The subject matter of this ruling is the motion dated May 11, 2022 taken out by the appellant/applicant in which he sought for a conservatory order to stay the Gazette Notice No 4442 dated April 14, 2022 and or the coalition party agreement in so far as it provides that the interested party is a constituent member of the Azimio La Umoja One Kenya Coalition Party pending appeal.

2. The motion is supported by the affidavit sworn by Martin Mugo Maina. The 1st respondent filed the replying affidavit sworn by Joy Onyango to resist the motion. The 2nd respondent filed the replying affidavit sworn by Junet Mohammed to too oppose the application.

3. The interested party indicated it was in support of the application. Learned counsels appearing in this matter made oral submissions.

4. I have considered the grounds stated on the face of the motion plus the facts deponed in the rival affidavits. I have further considered the rival oral submissions made by learned counsels. It is the submission of the appellant/applicant that the interested party was included in the Coalition Party without procedural and substantive compliance with the party constitution as well as the provisions of the Political Parties Act and without the sanction of the relevant organ of the party hence the coalition agreement is a nullity, void ab initio and the legality of the said coalition agreement was thus contested by the applicant.

5. The appellant/applicant stated that the issue was raised before the Political Parties Disputes Tribunal but their complaint was dismissed. The appellant averred that the interested party and their members may be locked into a coalition party against their will, endorsement, ratification and fundamentally, against their right of association and political rights as guaranteed under theConstitution.

6. It is further argued by the appellant that the same will have grave impact not only now but post the general election of August 9, 2022. The appellant stated that unless the order for stay is granted the appeal may be rendered nugatory on the strength of the judgment and orders that were issued by the Political Parties Dispute Tribunal.

7. It is further stated that the respondents will suffer no prejudice if the order is granted. The Interested Party put forward arguments similar to those stated by the appellant in support of the application.

8. The 1st respondent opposed the application stating that a similar application was made before the High Court vide HC Misc Application No E048 of 2022 and that the court declined to grant an interim order. It is pointed out that the court is scheduled to deliver its judgment on May 31, 2022. This court was urged not to grant an interim order as sought because it may result in the courts giving conflicting decision.

9. The 1st respondent argued that the application does not meet the threshold for granting conservatory orders of stay. It is argued that if the orders sought are granted the 1st respondent and members of the interested party who are not before this court will be prejudiced. It is also said that it is against public interest to grant the orders. It is also argued that the timelines for party nominations and legal timelines for submissions of coalition agreements to the 2nd respondent have since lapsed.

10. The 2nd respondent urged this court to dismiss the appellant’s application arguing that the appellant is guilt of material non-disclosure. It is said that he failed to disclose the existence of Nairobi HCC Misc Appl No E048 of 2022 which matter is pending before Justice Ndungu whose judgment is scheduled or May 31, 2022.

11. It is stated that in the judicial review proceedings(HC Misc No E048 of 2022), a similar application for staying the aforesaid gazette notice had been made exparte but the Judge declined to grant on May 10, 2022. The appellant/ applicant was accused of forum shopping after failing to obtain a temporary order.

12. It is the submission of the 2nd respondent that the appellant/applicant’s application is res subjudice. The 2nd respondent further argued that the applicant failed to show the nexus on how this appeal would be affected should the Gazette Notice not be stayed. It is further pointed out that there is no urgency demonstrated in the matter as the deadline for the registration and deposit of coalition agreement by the political parties on May 8, 2022 hence the applicant cannot be prejudiced in any way.

13. The appellant has been accused of trying to by-pass the Internal Party Dispute Resolution procedures under his own political party pursuant to section 40 of the Political Parties Act.

14. The background of this matter is that the appellant herein filed a complaint before the Political Parties Disputes Tribunal whereof he sought to have the Interested Party to be delisted as a member of the 2nd respondent. The appellant also sought for an order to quash the contents of Gazette Notice No 4442 of April 14, 2022 as far as it includes the interested party as a constituent political party of the 2nd respondent.

15. The appellant also applied for an order to restrain the 2nd respondent from representing to members of the public or IEBC that the coalition agreement was lawfully entered. The Political Parties Disputes Tribunal heard the complaint and proceeded to strike it out on the basis that it had no jurisdiction to entertain the complaint for want to exhaustion. Being aggrieved, the appellant filed this appeal.

16. The appellant has now urged this court to issue a conservatory order to stay the Gazette Notice No 4442 dated April 14, 2022 and or the coalition party agreement in so far as it provides that the interested party is a constituent member of the Azimio la Umoja One Kenya Coalition party.

17. I have considered the rival arguments over the aforesaid application. One of the grounds which was raised to oppose the aforesaid application is to the effect that a similar application was made before Justice AK Ndungu vide Nairobi HC Misc No E048 of 2022 R v The Registrar political parties and 3 others. It is said that Justice AK Ndungu, declined to grant an interim order but instead opted to consider the substantive application and reserved his judgment for May 31, 2022.

18. The appellant/applicant did not controvert the pendency of the aforesaid matter. He merely stated that he was not a party to the matter. He did not further deny that he has knowledge of the existence of the proceedings. It is apparent from the material placed before this court that the Interested Party through its vice-chair person sought for the following orders in the JR proceedings (Misc E048 of 2022) inter alia:-i.An order of mandamus directing and compelling the registrar political parties to remove, delete and delist the name of Maendeleo Chap Chap from the list of constituent political parties of Azimio La Umoja One Kenya Coalition Party contained in the Gazette Notice No 4442 of April 14, 2022. ii.An order for leave do operate as a stay of enforcement of the said orders and any proceedings founded thereon until the determination of the application.

19. Justice AK Ndungu has reserved his judgment on the substantive application on May 31, 2022. It is clear that the honourable judge will be required to make a decision on an application similar to what this court is now being asked to grant as an interim conservatory order for stay.

20. With respect, I am persuaded by the arguments put forward by the 1st and 2nd respondents that this court should refrain from granting the orders to avoid a situation where the court may issue conflicting decisions. It is only prudent to await the decision of Justice AK Ndungu.

21. In the circumstances, I decline to grant the interim orders sought. Consequently, the motion dated May 11, 2022 is hereby ordered dismissed with costs abiding the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 20TH DAY OF MAY, 2022. …………………JK SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondents