[2022] KEHC 9867 (KLR)

Namunyu & 3 others v Ndonji & 3 others; Namunyu & 2 others (Interested Parties) (Civil (Election) Appeal E413, E414, E430 & E433 of 2022 (Consolidated)) [2022] KEHC 9867 (KLR) (Civ) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9867 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil (Election) Appeal E413, E414, E430 & E433 of 2022 (Consolidated)

JK Sergon, J

July 18, 2022

Between

Shadrack Machanje Namunyu

Appellant

and

Joseph Ouma Ndonji

1st Respondent

Orange Democratic Movement

2nd Respondent

As consolidated with

Civil (Election) Appeal E414 of 2022

Between

Catherine Mumma

Appellant

and

Joseph Ouma Ndonji

Respondent

and

Shadrack Machanje Namunyu

Interested Party

Orange Democratic Movement

Interested Party

Stephen Otieno aka Vosti

Interested Party

As consolidated with

Civil (Election) Appeal E430 of 2022

Between

Joseph Ouma Ndonji

Appellant

and

Shadrack Machanje Namunyu

1st Respondent

Orange Democratic Movement

2nd Respondent

Returning Officer, Embakasi West Constituency

3rd Respondent

As consolidated with

Civil (Election) Appeal E433 of 2022

Between

Orange Democratic Movement

Appellant

and

Joseph Ouma Ndonji

1st Respondent

Shadrack Machanje Namunyu

2nd Respondent

Returning Officer Embakasi West Constituency

3rd Respondent

Ruling

1)This appeal and Nairobi H.C.C.A nos. 414, 430 and 433 all of 2022 were ordered to be consolidated since they involved the same parties and arose from similar proceedings. The subject matter of this ruling is the motion dated 4th July 2022 taken out by John Ouma Ndonji, the appellant in H.C.C.A no. E430 of 2022.

2)The appellant/applicant filed an affidavit he swore in support of the motion. When served, Catherine Mumma, the appellant in H.C.C.A no. E414 of 2022 filed a replying and a further affidavit to oppose the application. Orange Democratic Movement (ODM), the appellant in H.C.C.A no. 433 filed the replying sworn by Mr. Nderitu to oppose the motion. Shadrack Machanje Namunyu, the appellant in H.C.C.A no. E413 of 2022 also filed a replying affidavit he swore to oppose the motion.

3)When the motion came up for interpartes, learned counsels were invited to make oral submissions. I have considered the grounds stated on the face of motion plus the facts deponed in the rival affidavits. I have also taken into account the rival oral submissions.

4)It is the submission of the applicant that there is an error apparent on the face of record in that had this court considered the material on record it could have appreciated the fact that the Internal Dispute Resolution Mechanism (I.D.R.M) with ODM was sought and thus the law was complied with.

5)It is also the further argument of the applicant that this court misapprehended the facts thus misapplying the law therefore concluding that fresh nominations were conducted by the ODM party on 31st May 2022 necessitating the invocation of the political party’s IDRM yet that was not the case.

6)The applicant further pointed out that this court had expressed itself to the effect that the Political Parties Disputes Tribunal (P.P.D.T) had no jurisdiction to entertain the dispute of a nomination exercise whose existence is in doubt.

7)The applicant also submitted that the nomination certificate issued to Shadrack Machanje Namunyu is the one usually issued in respect of primaries conducted by universal suffrage yet ODM had issued a direct ticket.

8)The applicant was emphatic that there were no elections and or nominations conducted on 31st May 2022 in Umoja II Ward. On the basis of the above reasons this court was urged to review and set aside its judgment delivered on 1st July 2022.

9)It is the submission of Miss Olwe, learned advocate for Shadrack Machanje Namunyu, that the application is couched as an application for review but the same is more of an appeal. It is the learned advocate’s submission that the application does not meet the requirements necessary to be regarded as an application for review.

10)It was pointed out that Shadrack Machanje Namunyu was not permanently barred from participating in the ODM nomination exercise. Miss Arubri learned advocate who appeared for Catherine Mumma opposed on grounds to those put forward by Miss Olwe. She stated that the applicant should have approached the party I.D.R.M before approaching the PPDT.

11)Mr. Juma learned advocate appearing for ODM party is of the submission that the application should not be treated as an application for review. He also pointed out that there is no error apparent on record and that the applicant should have simply approached the I.D.R.M route before approaching the PPDT.

12)The substantive matter before this court is an application for review. The Court of Appeal in National Bank of Kenya Ltd =vs= Ndungu Njau, Nairobi C.A no. 211 of 1996 (unreported) at page 8 stated inter alia as follows:“A review may be granted whenever the court considers that is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provisions of the law cannot be a ground for review.”

13)The Court of Appeal inOkello & Another =vs= Osonga (1988) KLR page 199 also held inter alia“That the power of review in the High Court is not limited to reviewing decisions at first instance but includes decisions on appeal.”

14)The Court of Appeal further in Kithoi =vs= Kioko (1982) KLR page 177 held inter alia:“The civil procedure rules order XLIX (now Order 45) demands inter alia that an application for review must be based on the discovery of new and important evidence which was not within the applicant’s knowledge or could not be produced by him 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. The application for review must strictly prove the grounds for review, except for review on the grounds of mistake or error apparent on the record, failing which the application will not be granted.”

15)It is specifically pleaded in the instant application that this court misapprehended the facts and thus misapplied the law hence concluding that fresh nomination were conducted by the ODM party on 31st May 2022 thus necessitating the invocation of IDRM yet that was not true.

16)The applicant pointed out that this is an error apparent on the face of record. It is also argued that the nomination certificate issued to Shadrack Machanje Namunyu is that in respect of a nomination exercise conducted by way of universal suffrage which was not done in the instant case.

17)I am persuaded that the application prima facie qualifies to be regarded as an application for review. If it is true that the court misapprehended the facts of the case then that is an issue which a court can examine its record and make a determination whether or not to review its decision based on facts misrepresented. While examining such facts, a court will basically be perusing the record to see whether the error is apparent on the face of record.

18)Having come to the conclusion that the application qualifies to be regarded as an application for review, I now wish to examine whether this court misapprehended the facts in its judgment.

19)It is apparent from this court’s judgment delivered on 1st July 2022 that this court stated as follows in page 10 paragraphs 25 and 26:“25. Upon my re-examination of the material placed before me, I note that by way of the judgment delivered on 14th May 2022 the PPDT nullified the nomination of Shadrack and directed that ODM do resolve the dispute concerning nomination of its candidate for Umoja II Ward.

26. Upon my further re-examination of the material placed before me, it remains unclear whether fresh nominations were undertaken by ODM.”

20)In page 11 paragraph 29 this court further stated as follows:“29. That being the position, I am convinced that the PPDT did not have jurisdiction to make a determination in respect to the dispute, in the absence of anything to indicate that Internal Dispute Resolution mechanisms were undertaken firstly.”

21)Having carefully examined the record of appeal, it is now apparent that the Internal Dispute Resolution Mechanism (IDRM) with the ODM party in respect of the nomination certificate issued to Shadrack Machanje Namunyu was sought as shown by the further affidavit filed before the PPDT which the Tribunal considered on its merits. It is therefore clear that this court made a factual mistake when it concluded that a fresh nomination was conducted on 31st May 2022 which therefore required parties wishing to challenge the same to first approach the party IDRM.

22)A further re-examination of the record will also reveal that the nomination certificate of 31st May 2022 issued to Shadrack Machanje Namunyu cannot arise vide the judgment of PPDT of 14th May 2022 because the ODM party was barred from forwarding his name since he did not meet the requirements of the provision of Regulation 15(5) (b) of the ODM Party Nomination Rules.

23)Upon this court’s perusal of the record it is apparent that this court inadvertently failed to consider the further affidavit of John Ouma Ndonji (the applicant) which affidavit was filed before the PPDT. Had this court considered the aforesaid affidavit it would have arrived at a different conclusion.

24)It is not in dispute that IEBC cleared Shadrack Machanje Namunyu to vie as MCA Umoja II Ward on the basis of the nomination certificate of 31st May 2022 which necessitated the filing of a complaint before the IEBC dispute resolution committee to point out that the nomine had been barred from being a candidate having failed to meet the memberships requirements of the ODM party.

25)In the end I find the motion dated 4th July 2022 to be meritorious. It is allowed thus giving rise to issuance of the following orders:i.This court’s orders allowing Nairobi H.C.C.A no. E413 of 2022 and Nairobi HCA E414 of 2022 are reviewed and set aside and substituted with an order dismissing those appeals.ii.The ruling and orders of the Political Parties Dispute Tribunal(PPDT) delivered on 14th June 2022 are upheld.iii.This court’s order dismissing H.C.C.A no. E430 of 2022 is reviewed and set aside and is substituted with an order allowing the appeal. Consequently, the decision of IEBC dispute resolution committee delivered on 20th June 2022 is substituted with an order upholding the decision of PPDT’s decisions of 14th May 2022 and 14th June 2022. For the avoidance of doubt the decisions of PPDT of 14. 5.2022 and 14/6/2022 are reproduced hereinunder:a)PPDT’s judgment delivered on 14. 5.2022 vide PPDT complaint no. E044 of 2022 Nairobi is reproduced as follows:“a) The nomination certificate for the ODM party aspirant for Umoja II Ward seat in Embakasi West Constituency within Nairobi County issued and dated 22/4/2022 to the 1st respondent Shadrack Machanje Namunyu, be and is hereby nullified.b)That the process applied by ODM NEB in issuance of the said certificate in (a) above is irregular, unlawful and unprocedural and thus void.c)That consequential to (a) and (b) above the ODM party is barred from forwarding the name of Shadrack Machanje Namunyu as its nominee for the seat of MCA (Member of County Assembly) Embakasi West Constituency within Nairobi County to IEBC in respect of the general elections in August 2022. d)That the resolution of the dispute concerning the nomination of the ODM party candidate and ticket holder for the Umoja II ward in Embakasi West constituency within Nairobi County be referred to the ODM Central Committee for determination forthwith and in any event within 48 hours of the date of this decision.e)That the ODM Party national chairman in line with his duty as outlined in part 3 of the ODM party constitution oversee the resolution of the candidate for Umoja II Ward Embakasi West Constituency within Nairobi County.f)We make no orders as to costs.g)That a notification of this order issue to the IEBC.”

26)PPDT’s ruling delivered on 14. 6.2022 vide PPDT complaint no. E044 of 2022 (Nairobi) is reproduced as follows:i.That the 2nd respondent’s NEB (National Elections Board) chairperson, Mrs. Catherine Mumma is hereby cited for contempt of our orders of 14. 5.2022 and a Notice to Show cause issues for her to appear before this Tribunal in person on 16. 6.2022 at 4. 30pm so as to state why she should not be committed to civil jail for a period of 6 months and or be fined appropriately.ii.That we hereby revoke, cancel and nullify the nomination, clearance and or gazettement of the 1st respondent Shadrack Machanje Namunyu as the duly elected and or nominated member of the ODM party for member of the County Assembly seat for Umoja II Ward.iii.That the complainant, Joseph Ouma Ndonji be recognized as the duly nominated ODM candidate for Umoja II ward in Embakasi West Constituency in Nairobi County, in the coming August 2022 general elections.iv.That the Independent Electoral and Boundaries Commission (IEBC) do note the orders herein.v.Costs of this application are awarded to the complainant as against the 2nd respondent.”

27)This court’s order dismissing Nairobi H.C.C.A no. E433 of 2022 is upheld.

28)Each party to bear their own costs of the motion dated 4th July 2022.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF JULY, 2022. ................................................J. K. SERGONJUDGEIn the presence of:.................... for the Appellant.................... for the 1st Respondent.................... for the 2nd RespondentIN CIVIL (ELECTION) APPEAL NO. 413 OF 2022. ................... for the Appellant.................... for the 1st Respondent.................... for the 1st Interested Party.................... for the 2nd Interested Party.................... for the 3rd Interested PartyIN CIVIL (ELECTION) APPEAL NO. 414 OF 2022. ................... for the Appellant.................... for the 1st Respondent.................... for the 2nd Respondent.................... for the 3rd RespondentIN CIVIL (ELECTION) APPEAL NO. 430 OF 2022. ................... for the Appellant.................... for the 1st Respondent.................... for the 2nd Respondent.................... for the 3rd Respondent