[2022] KEPPDT 1070 (KLR)

Mwangagi & another v Wiper Democratic Party & 4 others (Cause 016 (NRB) of 2022) [2022] KEPPDT 1070 (KLR) (20 April 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1070 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Cause 016 (NRB) of 2022

G. Gathu, Presiding Member, A M Mbithi & W. Mutubwa, Members

April 20, 2022

Between

Alex Wambua Mwangagi

1st Complainant

Philip Nguli

2nd Complainant

and

Wiper Democratic Party

1st Respondent

Peter Kilonzo Mwikya

2nd Respondent

Clerk of the County Assembly of Kitui

3rd Respondent

Stephen M.Musili

4th Respondent

Speaker of the County Assembly of Kitui

5th Respondent

Ruling

1. On December 2, 2021, the Tribunal gave a judgment in favour of the Complainants. It also awarded costs of the complaint to them.

2. On February 4, 2022 the 1st ,2nd, and 3rd Respondents/Applicants (hereinafter referred to as ('the Applicants') filed a Notice of Motion Application under Certificate of urgency seeking inter alia the following orders, that:i.This Honourable Tribunal be pleased to exercise its discretion to review and/or set aside the award of costs in its judgment delivered on the 2nd December 2021 stating that: 'The costs of the claim hereby awarded to the Complainant against the 1st, 2nd and 3rd Respondents jointly and severally.' And the same be reviewed to state that:' Each party to bear its own costs.'ii.The Tribunal be pleased to grant the orders sought subject to any condition as the court may deem just.ii.The costs of this application be provided for.

3. The Notice of Motion Application was grounded on the grounds set on the face of the application and supported by the affidavit of Dr Justus Kyambi the Executive Director of the 1st Applicant herein sworn on the same date. The Applicants also filed a further affidavit sworn on March 28, 2022.

4. The Notice of Motion Application is opposed by the Complainants/Respondents (hereinafter referred to as 'the Respondents') who have filed an affidavit sworn by the 1st Respondent on February 26, 2022.

3. The Notice of Application was canvassed by way of written submissions which the parties highlighted on April 7, 2022.

Applicants’ Submissions 6. The Applicants filed their submissions in support of the Notice of Motion on the March 28, 2022. Counsel for the Applicants highlighted his submissions and stated that the crux of the application was based on the fact that the Honourable Tribunal ought not to have awarded costs to the Complainants.

7. Counsel indicated that the Applicants were alive to the fact that the Civil Procedure Rules as read together with the Political Parties Disputes Procedures Regulations of 2017 do direct that costs should follow the cause. However, he submitted that in this instance, the law allows for exceptions to that general rule which is the main focus of the Applicant’s application to the effect that the Tribunal ought to have interrogated the conduct of the parties in deciding whether to award costs.

8. Counsel stated that the evidence that was adduced by the Respondents during the hearing of the complaint showed that the Respondents had openly declared their affiliation to a party that was in competition with the 1st Applicant.

9. Counsel added that video and photographic evidence was tendered before the Tribunal of a meeting that was held at the residence of the Deputy President of the Republic of Kenya where the Respondents openly declared that they had joined another political party contrary to the Constitution of their own party which is the 1st Applicant.

10. Counsel drew the attention of the Honourable Tribunal to the case ofJabir Singh Rai & Others vs Tarlochan Rai & Others [2002] eKLR where the court found that the conduct of parties was a material consideration in deciding whether to award costs. He submitted that based on the conduct of the Respondents before and during the hearing of the complaint, the Tribunal ought not to have awarded costs to the Respondents.

Respondents’ Submissions 11. The Respondents are opposed to the application.

12. Counsel for the Respondents submitted that section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules provide for review. Counsel stated that they both limit the remedy of review to the grounds that there is a discovery of new evidence, mistake or error apparent, or any other sufficient reason

13. Counsel submitted that review cannot be sought merely for purposes of hearing of arguments and correction of a view that has already been taken. It can only be claimed when the three grounds have been met.

14. Counsel submitted that the Applicants were raising issues that had already been extensively canvassed before the Tribunal. Counsel further submitted that while the general rule is that costs follow the event; the award of costs is discretionary.

15. Counsel cited the case of Jabir Singh Rai supra for the proposition that the court could depart from the general rule on costs for good reasons however indicating that the Applicants had not shown any good reasons. Counsel urged the Tribunal to dismiss the Applicants’ Application with costs.

Issues for Determination 16. The Tribunal finds that the issue for determination is whether the award of costs to the Complaints/Respondents as per the Tribunal’s judgment delivered on December 22, 2021 ought to be reviewed.

Whether the award of costs to the Complaints/Respondents as per the Tribunal’s judgment delivered on December 22, 2021 ought to be reviewed. 17. The Applicants in their present application seek to review the judgment of this Tribunal specifically on the question of costs. Indeed, this Tribunal does have powers to review its decisions.

18. Section 41(4) of the Political Parties Act No 11 of 2011 provides for the application of the rules of civil procedure to proceedings before the Tribunal. Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules provide the basis upon which this Tribunal may review its decision.

19. Section 80 of the Civil Procedure Act provides that:-Any person who considers himself aggrieved—a.By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

20. Order 45 Rule 1 of the Civil Procedure Rules on the other hand provides that:-'Any person considering himself aggrieved—a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred;b.By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.'

21. The question is whether the Applicants have brought themselves within these limited grounds for review.

22. On the first ground, the Applicants have not demonstrated what new or important matter of evidence they have discovered which after the exercise of due diligence was not within their knowledge or could not be produced by them at the time the judgment herein was passed.

23. The issues they have raised were indeed raised during the hearing of this matter. Indeed, paragraph 4 of the affidavit of Dr Justus Kyambi sworn on February 4, 2022, confirms that there are no new matters being raised. A further perusal of the Applicants various pleadings on record show that the matters they are raising as regards the conduct of the Respondents were raised at the hearing of this matter. There is therefore, no new and important matter for the Tribunal to consider. If the Tribunal were to consider the matters, it would amount to rehearing the matter afresh.

24. The Tribunal in arriving at this finding is guided by the case ofEvan Bwire –V-Andrew Nginda, Civil Appeal No 103 of 2000, Kisumu, where the court held that:-'An application for review will only be allowed on very strong grounds particularly if its effect will amount to re-opening the application or case afresh’.

25. As regards any error apparent on the face of the record, the Applicants have not claimed that there is any error apparent on the face of the record. In any event, we have perused the record and are satisfied that there is no error on the face thereof. The Applicants have not claimed that there is any error apparent on the face of the record and the second ground therefore does not apply.

25. On the third ground to wit, 'any other sufficient reason,' the same should be analogous to the other two grounds. In Nasibwa Wakenya Moses vs University of Nairobi & Another [2019] eKLR, the court observed that:'An application for review may be allowed on any other 'sufficient reason.' The phrase ‘sufficient reason’ within the meaning of the above rule means analogous or ejusdem generis to the other reasons stipulated in Order 45 Rule 1:'

27. The Applicants have not demonstrated any sufficient reason as to cause the Tribunal to review its decision to award costs to the Respondents. The Tribunal carefully considered the principles in awarding costs and arrived at a decision to award costs to the Respondents. The Tribunal exercised its discretion judiciously and not capriciously. The Applicants contend that the Tribunal failed to consider the evidence that they tendered. If that were the position, then the same would be a ground for appeal and not review.

28. The Tribunal therefore finds that no sufficient reason has been availed to review its award of costs to the Respondents.

28. Having found that the Applicants’ application is without merit and is ripe for dismissal, we therefore, proceed to order as follows:-a.The 1st, 2nd, and 3rd Respondents/Applicants Notice of Motion dated February 4, 2022 is without merit and is hereby dismissed.b.The costs of the application are awarded to the 1st and 2nd Complainants/Respondents.It is so ordered.

DATED AND DELIVERED AT NAIROBI ON THE 20TH DAY OF APRIL 2022GAD GATHU……………………………………………(PRESIDING MEMBER)DR. ADELAIDE MBITHI:(MEMBER)DR. WILFRED MUTUBWA……………………………(VICE CHAIR-MEMBER)