[2022] KEHC 11452 (KLR)

Makau v Mohamed; Wiper Democratic Movement & another (Interested Parties) (Election Appeal E001 of 2022) [2022] KEHC 11452 (KLR) (Election Petitions) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11452 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Election Petitions

Election Appeal E001 of 2022

AC Mrima, J

July 8, 2022

Between

Marcos Kithuku Makau

Appellant

and

Mohammed Adan Mohamed

Respondent

and

Wiper Democratic Movement

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

(Being an appeal from the judgment and decree of the Political Parties Disputes Tribunal in PPDT No E085 of 2022 delivered on May 25, 2022)

Judgment

1. This judgment is in respect of an appeal that was lodged by one Marcos Kithuku Makau, the Appellant herein, against the decision of the Political Parties Disputes Tribunal in Nairobi (Milimani) PPDT No E085 of 2022. The decision was rendered on May 25, 2022.

2. The proceedings before the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’) were instituted by one Mohammed Adan Mohamed, the Respondent herein.

3. It was the Respondent’s case at the Tribunal that he had twice emerged the winner in the nominations carried out by theWiper Democratic Movement (hereinafter referred to as ‘the 1st Interested Party’ or ‘the Party’) for the position of the Member of County Assembly of Nairobi County for Kwa Njenga Ward. He was eventually issued with the Party’s Declaration of Winner Form and a Certificate of Nomination.

4. The Respondent contended that despite his double win and the eventual issuance of the Certificate of Nomination, the Party had clandestinely issued another Certificate of Nomination to the Appellant herein without involving the Respondent or at all. The Party and its National Elections Board were further accused of refusing to accord the Respondent herein an opportunity to lodge a complaint against the issuance of the subsequent Certificate of Nomination within the Party internal dispute resolution mechanism.

5. Whereas the Appellant herein and the Independent Electoral & Boundaries Commission opted not to participated in the matter before the Tribunal, the Party and the Party’s National Elections Board which were sued as the 1st and 2nd Respondents respectively participated in the hearing.

6. The matter was fully heard and a decision rendered. The Tribunal, in a comprehensive and impressive decision, rendered the following orders in the end: -(i)That the objection to our jurisdiction be and is hereby overruled.(ii)A Declaration be and is hereby issued that the complainant herein MOHAMED ADAN MOHAMED is the duly nominated Wiper democratic Movement candidate for Kwa Njenga Ward, Embakasi South Constituency.(iii)That the purported nomination of the 3rd Respondent as the Wiper Democratic Movement nominee for the position of Member of County Assembly, Kwa Njenga Ward, Embakasi South Constituency be and is hereby nullified and declared void ab initio.(iv)An order be and is hereby issued to the Interested party to remove the name of the 3rd Respondent as the nominated wiper Democratic Movement Member of County Assembly for Kwa Njenga Ward, Embakasi South Constituency and replace it with that of the Complainant.(v)Costs of the complaint are awarded to the Complainant.

7. Being dissatisfied with decision, the Appellant herein lodged the appeal subject of this judgment. He preferred the following grounds of appeal: -1. That, the Appellant is a member of the Wiper Democratic Movement, who participated in the party primaries, which later turned out a contentious exercise, however after successful deliberations and voting from the Party delegates, the Appellant emerged victorious and was duly nominated as the Wiper Democratic Movement candidate for Kwa Njenga Ward in Embakasi South Constituency, and his name forwarded to the Independent Electoral and Boundaries Commission.2. That the Respondent failed to lodge a complaint at the 1st Interested Party's Internal Dispute Resolution Mechanism which was available.3. That, the Respondent herein Appealed the Results of the party primaries at the Political Parties Disputes Tribunal at Nairobi and which Tribunal delivered a ruling in the dispute on May 25, 2022. 4.That, the Appellant was dissatisfied with the said Ruling as delivered by the Honourable Chairlady Desma Nungo and other members of the Hon Tribunal, and wishes to appeal against the same on its entirety.5. That, given the strict timelines that the Honourable Court is obligated to observe in determining the above Nominations and/or party primaries disputes, it now calls that the Application before the Honourable Court be disposed of on priority basis, and in the first instance.6. That the Appellant stands to suffer irreparable loss and damage should the Honourable Court not adjudicate and issue appropriate orders in this Application.

8. In seeking that the appeal be allowed, the Appellant sought the following further reliefs: -1. A declaration that the Nomination of the Appellant herein was lawful and or legal.2. An order compelling the 2nd Interested Party’s to gazette the Appellant as the duly nominated candidate for the 1st Interested Party’s Member of County Assembly for the Kwa Njenga Ward in Embakasi South Constituency.3. Costs of the Appeal be provided for.

9. The appeal before the High Court was, in the first instance, handled by Hon Ong’udi, J who delivered a judgment on June 8, 2022.

10. The decision of this Court was appealed against to the Court of Appeal. In a judgement delivered on June 27, 2022 the appeal was allowed and the appeal remitted back to this Court for hearing.

11. As the Judge who had handled the matter was on leave, I took over the conduct of the matter more so given the urgency involved.

12. The appeal was heard on July 5, 2022, hence, this judgment.

13. At the hearing of the appeal, all the parties were duly represented by Counsel.

14. Counsel highlighted on their respective filed submissions in urging their cases. Several decisions were, as well, referred to.

15. Appeals from the Tribunal to the High Court are provided for in Section 41(2) of the Political Parties Act. The provision state as follows: -41. Determination of disputes:(1)…….(2)An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to the Court of Appeal and the decision of the Court of Appeal shall be final.

16. The Political Parties Disputes Tribunal (Procedure) Regulations, 2017 also provide for appeals to the High Court as follows: - 34. Appeals:(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.

17. Drawing from the foregoing, the applicable law, therefore, on appeals to the High Court from the Tribunal is the Civil Procedure Act, Cap 21 of the Laws of Kenya (hereinafter referred to as ‘the Act’) and theCivil Procedure Rules, 2010 (hereinafter referred to as ‘the Rules’).

18. The High Court, as the first appellate Court, is enjoined to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano vs Associated Motor Boat Co Ltd (1968) EA 123).

19. This Court, nevertheless, appreciates the settled principle that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348).

20. This Court has certainly perused and understood the contents of the pleadings, proceedings, judgment, grounds of appeal, submissions and the decisions referred to by the parties.

21. The Court has also perused the original file from the Tribunal.

22. In the course of perusal of the record with a view to satisfy itself of its sufficiency, this Court did not come across any decree extracted from the judgment of the Tribunal either in the filed Record of Appeal or in the Tribunal file.

23. Although the issue was not brought up by any of the parties, this Court is duty bound to look into it since it relates to how the jurisdiction of this Court was invoked. I will, therefore, consider the effect of the absence of the decree in the record of appeal and the Tribunal file as well.

24. Section 65(1) of the Act provides as follows: -Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court-(a)(Deleted by 10 of 1969, Sch.);(b)from any original decree or part of a decree of a subordinate court, other than a magistrate’s court of the third class, on a question of law or fact;(c)from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.

25. Appeals from orders are provided for in Sections 75 and 76 of the Act and Order 43 of the Rules.

26. Order 42 Rule 1 of the Rules provide that an appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading.

27. Once an appeal is lodged aforesaid, a Record of Appeal is then filed. The contents of the Record of Appeal are provided for in Order 42 Rule 13(4) of the Rules as follows: -Before allowing the appeal to go for hearing the Judge shall be satisfied that the following documents are on the court record and that such of them as are not in the possession of either party have been served on that party that is to say:a.the memorandum of appeal;b.the pleadingsc.the notes of the trial magistrate made at the hearing;d.the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;e.all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal;Provided that-(i)a translation into English shall be provided of any document not in that language;(ii)the Judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

28. A Record of Appeal is essentially supposed to be complete with all necessary documents. Courts have severally dealt with cases of incompleteness of Records of Appeal.

29. The Supreme Court in Civil Application No 20 of 2014 Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others (2014) eKLR referred to its earlier finding in Law Society of Kenya vs Centre for Human Rights and Democracy & Others, Supreme Court Petition No 14 of 2013 where it held as follows: -(16) For a competent appeal to lie before this Court it must comply with the provisions of Rule 33(1) of the Supreme Court Rules, 2012 which provides that:An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal –(a)a petition of appeal;(b)a record of appeal; and(c)the prescribed fee.(36) The use of the word ‘shall’ in Rule 33(1) suggests the mandatory nature of the rule, requiring strict adherence to the completeness of the rule. Thus, a strict reading of rule 33(1) leads to the conclusion that an appeal comprises the Petition, the Record of Appeal, and the prescribed fee.(38) The Record of Appeal is the complete bundle of documentation, including the pleadings, submissions, and judgment from the lower Court, without which the appellate Court would not be able to determine the appeal before it.

30. The Court further held, at paragraph 39, that: -(39) If an intending appellant were to present the Court with a Notice and Petition of Appeal, but without the Record of Appeal, and expect the Court to determine ‘the appeal’ on the basis of these two, such an appeal would be incomplete and hence incompetent. Indeed, this is the gist of Rule 33(1) of the Supreme Court Rules.

31. Ngaah, J in Nyeri High Court Civil Appeal No 51 of 2013 Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo (2016) eKLR dealt with how the Court of Appeal in Kyuma vs Kyema (1988) KLR 185 dealt with the interpretation of Section 79G of the Act.

32. Before looking at what the Court said I will first reproduce the said Section.Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

33. The Court of Appeal then held as follows: -The question is what documents must the appellant file within thirty days or within the time lawfully extended by the certificate of delay” Since the question contemplates that the appeal is against a decree or order, the appellant is obliged to apply first, Memorandum of Appeal in the form set out in appendix F No 1 of the Civil Procedure Rules and second, a copy of the formal order of the court, if available. Rule 1A of Order 41 permits this latter document to be filed as soon “as possible and in any event within such a time as the court may order”. Therefore, a certificate of delay within the true intendment of section 79G must certify the time it took to prepare and deliver to the appellant “a copy of the order” of the magistrate. But the certificate of delay exhibited by the appellant, did not speak of a decree or order. No such order was sought or extracted. What the appellant, in error, sought and what the court dutifully supplied, were the proceedings and judgment.

34. Sitati, J in Kakamega Election Petition Appeal No 3 of 2018Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others(2016) eKLR dealt with the same issue in an election petition appeal from the surbodinate court. In that appeal the Record of Appeal did not include the decree of the judgment appealed against. The Learned Judge held as follows: -32. What then am I saying about the failure by the appellant to attach a certified copy of the decree appealed from? I am saying that that omission is not a mere technicality for if it were so, the drafters of the rules would not have made its attachment a mandatory requirement. I am therefore satisfied that the applicant has satisfied this court that the said omission is fatal to the petition and I so find.

35. I will also add my voice on the subject. First, from the reading of Section 65(1) of the Act it is the decree or part thereof that is appealed from the surbodinate court or the Tribunal, as in this case, to the High Court. Second, under Order 42 Rule 13(4) of the Rules a Court may dispense with any document to be part of the Record of Appeal except the memorandum of appeal, the pleadings and the judgment, order or decree appealed from and in appropriate cases the order giving leave to appeal. Third, the saving grace under Article 159(2)(d) of the Constitution is inapplicable in this case. That is because the provision only applies to matters relating to procedure or form and not the substance thereof as in this matter. Fourth, despite clear provisions on extension of time, the Appellant never sought for any extension of time to file the decree neither did it explain any difficulty in obtaining the decree.

36. In fact, the letter by the Appellant’s Counsel dated May 25, 2022 to the Executive Officer of the Tribunal, which appears on Page 119 of the Record of Appeal, only sought for the proceedings and judgement. There was no request for the decree. (See the Court of Appeal in Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo case (supra).

37. The upshot is, therefore, that the Record of Appeal is incomplete. In the words of the Supreme Court in Civil Application No 20 of 2014 Bwana Mohamed Bwana (supra) ‘such an appeal would be incomplete and hence incompetent.’

38. Having said so, this Court finds and hold that there is no competent appeal for consideration. The appeal is hereby struck out with costs.Orders accordingly.

DELIVERED, DATED and SIGNED at NAIROBI this 8th day of July, 2022. A C MRIMAJUDGEJudgment virtually delivered in the presence of:Miss Mango for Mr Katisya, Learned Counsel for the Appellant.Miss Ng’ang’a for Mr Anyeaga Ondieki, Learned Counsel for the Respondent.Miss Mango for Mr Wanyanga, Learned Counsel for the 1st Interested Party.Mr Bosir for Mr Ngigi, Learned Counsel for the 2nd Interested Party.Faustine Rotich –Court Assistant.