[2022] KEHC 10801 (KLR)

Misare v Orange Democratic Movement Party; The Registrar of Political Parties & another (Interested Parties) (Petition 2 of 2020) [2022] KEHC 10801 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10801 (KLR)

Republic of Kenya

In the High Court at Migori

Petition 2 of 2020

RPV Wendoh, J

June 2, 2022

Between

Willies Oloo Misare

Petitioner

and

Orange Democratic Movement Party

Respondent

and

The Registrar of Political Parties

Interested Party

The Independent Electoral and Boundaries Commission

Interested Party

Ruling

1. On 31/5/2022, the petitioner filed the Notice of Motion dated 31/5/2022 seeking orders that the determination of the application and judgment in Petition No. E002 of 2022 scheduled for 2/6/2022 be stayed or arrested; that the court be pleased to review its order dated 30/5/2022 and order that the petitioner ‘s submissions filed on 30/5/2022 be deemed as properly on record.

2. The grounds for the application are that failure to include the petitioner’s submissions on record would violate his rights to fair trial as enshrined in article 50(1) of the court to file submissions was too short and contrary to article 50 (c) of the Constitution that requires a party to a trial to be accorded adequate time and facilities to prosecute their case; that the delay was not inordinate and did not prejudice the Respondent and that the Respondent had not met the timelines when the court first made its orders; that the petitioner resides and conducts business in Nairobi City and though the matter had been filed in Nairobi, the Constitutional court saw it fit to transfer the Petition to Migori High Court; that the petition is filed in public interest and it is not only the petitioner who stands to lose.

3. This application was placed before me under certificate of urgency. As noted by the applicant, there were timelines that were to be observed in this matter. In his own submissions the petitioner’s counsel urged the court that the final date that these matter should have been concluded is 7/6/2022.

4. It is the petitioner who wasted time when he preferred to file this petition E215 of 2022 in the Constitutional and Human Rights Division in Nairobi instead of filing it in Migori High Court which has jurisdiction in the matter. He cannot blame anyone for the lost time.

5. The court gave directions on the filing of pleadings and submission bearing in mind the timelines.

6. On 24/5/2022 when the matter first came up for compliance, it was noted that though the respondent had filed his reply and served on the petitioner, the same was not on the file due internet challenges. The court gave fresh directions and it is noteworthy that the petitioner already had filed skeletal submissions on the file. It was upto counsel to burn the midnight oil to ensure compliance. Besides when the matter came up for highlighting of submissions the petitioner’s counsel was not available for the highlighting of submissions and the same had not been served on Respondent’s counsel. The court must balance the rights of both parties. How did the Petitioner expect the respondent to proceed yet he had not been served with the counsel submissions? That is why the court expunged the said submissions and many case. The court indicated that it would consider the skeletal submissions filed by the petitioner earlier on the matter and the petitioner will not suffer any prejudice. In any event all the material that the court needs is on the pleadings. Submissions are not pleadings. The Judgment will not be based on submission but on the evidence. In the Court of Appeal inDaniel Toroitich Arap Moi v Mwangi Stephen Muriithi &another [2014] eKLR“Submissions cannot take the place of evidence. the 1st respondent had failed to prove his claim by evidence. what appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language,” each side endeavoring to convince the court that its case is better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cased decided without hearing submissions but based only on evidence presented.”

7. The Court of Appeal in Avenue Car Hire &another v Slipha Wanjiru Muthegu Civil Appeal No 302 of 1997 held that no judgement can be based on written submissions and that such a judgement is a nullity since written submissions is not a mode of receiving evidence as set out under Order 17 Rule 2 (now Order 18 Rule 2 of theCivil Procedure Rules).

8. In the end, I find that the court will not grant the application to arrest the judgment as it is likely to be caught up with timelines.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 2ND DAY OF JUNE, 2022R. WENDOHJUDGERuling delivered in the presence ofNo appearance for the Petitioner.Mr. Kisia holding brief Mr. Makori for the 1st Respondent.No appearance for the 1st Interested Party.No appearance for the 2nd Interested Party.Nyauke Court Assistant**