[2022] KEHC 2958 (KLR)

Napwori v Muchungu & another (Civil Appeal E346 of 2022) [2022] KEHC 2958 (KLR) (Civ) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 2958 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E346 of 2022

JK Sergon, J

June 6, 2022

Between

Nevil Chemuku Napwori

Appellant

and

Samuel Kagwanja Muchungu

1st Respondent

Tujibebe Wakenya Party

2nd Respondent

(Being an appeal against the judgment, order and decree of the Honourable Rahma Jillo (Mrs.), Mr. Masafu Erik Wamalwa and Mr. Stephen Musau (the presiding member and members respectively of Political Parties Disputes Tribunal at Nairobi (A)) in PPDT Complaint no. E061 of 2022)

Judgment

1)The matter before this court is an appeal filed by Nevil Chemuku Napwori, the appellant herein, against the decision of the Political Parties Disputes Tribunal (PPDT) delivered on 23rd May 2022. The appellant put forward the following grounds in his memorandum of appeal:i.The members of the Political Parties Disputes Tribunal erred in law and in facts by demonstrating open bias in favour of the complainant (1st respondent) thereby making a wrong decision.ii.The members of the Political Parties Disputes Tribunal erred in law and in fact by finding and holding that the complainant (1st respondent herein) had demonstrated an attempt at Internal Disputes Resolution Mechanism of the 2nd respondent in satisfaction of Section 40(1) and (2) of the Political Parties Act before filing the complaint thereby making a wrong decision.iii.The members of the Political Parties Disputes Tribunal erred in law and in facts by failing to distinguish between their appellate jurisdiction from their original jurisdiction and proceeded to exercise their appellate jurisdiction by reversing the lawful judgment of the 2nd respondents Nominations Appeals’ Disputes Tribunal when the complaint had clearly been brought to them in their original jurisdiction thereby making a wrong decision.iv.The members of the Political Parties Disputes Tribunal erred in law and in fact by misapprehending the facts of the case before them and making a decision that had no basis in law or facts.v.The members of the Political Parties Disputes Tribunal erred in law and in fact going out of their way to amend the complaint suo moto and granting prayers that were not sought in the complaint thereby making a wrong decision.vi.The members of the Political Parties Disputes Tribunal erred in law and in fact by finding that they had jurisdiction to hear the complaint thereby making a wrong decision.

2)The court gave directions to have the appeal disposed of by written submissions. At the time of writing this judgment, the appellant was the only party who had filed his submissions. I think it is important at this state give the brief background of tis appeal.

3)The appellant and Samuel Kagwanja Muchungu, the 1st respondent herein are both members of Tujibebe Wakenya Party, the 2nd respondent herein.

4)In an undated list published by the 2nd respondent, the 1st respondent was named as the party nominee for the position of Member of County Assembly, Gitothua Ward of Ruiru sub-county, Kiambu County. The appellant felt aggrieved and was prompted to file a complaint with the 2nd respondent party’s National Election Board and the Nominations Appeals Tribunal on 20th April 2022.

5)The 2nd respondent’s Tribunal notified the appellant that his complaint would be heard on 22nd April 2022. It is said that the 1st respondent was informed by whatsup message sent by the appellant of the hearing of the appeal. It is said that the 1st respondent acknowledged receipt of the message but responded stating that he would not be in a position to attend the hearing.

6)The appellant attended the hearing. In the end, the 2nd respondent’s National Elections and Nominations Appeals Tribunal found merit in the appellant’s complaint and proceeded to render a ruling setting aside the 1st respondent’s nomination certificate and instead made orders for issuance of a nomination certificate to the appellant.

7)The 1st respondent being aggrieved filed a complaint before the Political Parties Disputes Tribunal PPDT whereof he sought for inter alia:i.The decision by the National Elections Board (Tujibebe Wakenya Party) declaring the respondent as the winner of the nomination be and is hereby set aside pending hearing and determination of the instant complaint.ii.A temporary injunction be and is hereby granted restraining Tujibebe party from submitting the particulars of the 1st respondent (now appellant) to the Independent Electoral and Boundaries Commission as the flag bearer of the 2nd respondent in Gitothua ward.iii.An order do issue by this honourable Tribunal that the complaint herein be subjected to a fair hearing.iv.That this honourable Tribunal grant any other order it may deem fit in the circumstances.v.The respondents bear the cost of this complaint.

8)The PPDT heard the complaint and 23rd May 2022 delivered its judgment which was in the following terms:a)That the judgment dated 22nd April 2022 be set aside and nomination of the 1st respondent is hereby nullified.b)That the certificate of nomination be issued to the complainant as the party’s nominee for Gitothua ward.c)That each party bears its cost.

9)The appellant is now before this court seeking to upset the aforesaid judgment. I have re-evaluated the arguments put forward before the PPDT. I have further considered the written submissions filed by the appellant.

10)It is the submission of the appellant that PPDT erred by granting orders/reliefs that were not sought. It is pointed out that the 1st respondent did not seek for the orders he was awarded thus denying the appellant an opportunity to defend himself against those reliefs.

11)He also complained that he was denied a chance of a fair hearing and further faulted PPDT for concluding that the 1st respondent made an attempt at IDRM yet there was no basis for such a holding.

12)The appellant also argued that PPDT erred in dismissing the two preliminary objections filed by the appellant and the 2nd respondent and in holding that it had jurisdiction to hear the complaint which it treated as an appeal yet the complainant had applied for his complaint to be subjected to a fair hearing.

13)It is the appellant’s submission also that the complaint was filed out of time thus offending Regulation 8(1) of the Political Disputes Tribunal(Procedure) Regulations, 2017 and no leave was sought. This court was urged to set aside the judgment of PPDT delivered on 23rd May 2022 and for the certificate of nomination be issued to the appellant as the 2nd respondent’s nominee for the Member of County Assembly Gitothua Ward.

14)I wish to begin by determining the question as to whether or not PPDT erred by concluding that the complainant had complied with the provision requiring a party to first exhaust the party’s IDRM.

15)The record shows that PPDT found and held that the complainant (1st respondent) had demonstrated an attempt at IDRM of the 2nd respondent in satisfaction of Section 40(1) and (2) of the Political Parties Act before filing the complaint. The appellant has faulted the Tribunal for arriving at such a conclusion.

16)I have carefully perused the record and it is clear that the appellant lodged a complaint against the nomination exercise conducted by the party and a decision was rendered. It is apparent from the record that the 2nd respondent’s IDRM was approached and therefore it cannot be said that there was no attempt at IDRM. I am satisfied that the complaint was properly before the PPDT and therefore the PPDT properly assumed jurisdiction pursuant to the provision of Section 40 (1) and (2) of the Political Parties Act.

17)The second issue which came up for determination is whether the Tribunal gave orders which were not sought by the complainant. The appellant has complained that the Tribunal granted orders which were not applied for. It is clear from the judgment that the PPDT gave an order which was not sought that is “That the certificate of nomination be issued to the complainant (Now 1st respondent) as the party’s nominee for Gothua ward”

18)It is also clear that the complainant had specifically sought from the Tribunal for the complaint to be subjected to a fair hearing. I am convinced that the Tribunal erred by granting an order which was not prayed for. Save for on this ground alone, the Tribunal properly determined the complaint which, in case, was properly before it.

19)I find merit in this appeal. The same is allowed thus giving rise to issuance of the following orders:i.The judgment of the PPDT delivered on 23rd May 2022 is set aside and the nomination certificate of the appellant is set aside.ii.The PPDT order issuing the certificate of nomination to the 1st respondent as the party’s nominee for Gitothua ward is also set aside.iii.The appellant’s complaint/appeal is remitted back to Tujibebe Wakenya Party’s National Elections and Nominations Appeals Tribunal for fresh hearing and determination within the next twenty four (24) hours.iv.Each party to bear its own costs.

DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2022. ............................J. K. SERGONJUDGEDELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF JUNE 2022. ............................D. O. CHEPKWONYJUDGEIn the presence of:...................... for the Appellant...................... for the 1st Respondent...................... for the 2nd Respondent