[2023] KEPPDT 1277 (KLR)

Nchore & another v Democratic Party & 2 others; Office of the Registrar of Political Parties (Interested Party) (Complaint E016 (NRB A) of 2023) [2023] KEPPDT 1277 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1277 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E016 (NRB A) of 2023

G. Gathu, Presiding Member, MM Yusuf Jin & S Musau, Members

November 10, 2023

Between

Jesse Saruni Nchore

1st Complainant

Kipng’etich Sigey

2nd Complainant

and

Democratic Party

1st Respondent

Dr. Jacob Haji, Secretary General

2nd Respondent

Esau Kioni, Chairman

3rd Respondent

and

Office of the Registrar of Political Parties

Interested Party

Ruling

Introduction 1. The Complainants have filed a Notice of Motion application dated 30th October 2023 seeking leave to amend the Complaint. The application is supported by the unsigned affidavit of Wanjiru Gitahi dated 30th October 2023.

2. The Respondents are opposed to the application. The 1st Respondent filed Grounds of Opposition dated 6th November 2023. The 2nd and 3rd Respondents have also filed Grounds of Opposition dated 6th November 2023. The Interested Party indicated that it would not participate in this application. The Complainants and the Respondents also filed written submissions on the said application as directed by the Tribunal.

3. The Complainants argue that the amendments sought are necessary.

4. The 1st Respondent argues that the Complainants have not given sufficient particulars to enable the 1st Respondent respond and is therefore prejudicial. The 1st Respondent also states that the claim for refund of nomination fees is not justiciable and that this Tribunal does not have jurisdiction to grant some of the orders sought. Further the 1st Respondent has also indicated that resolutions of the meeting held on 8th September 2023 have already been implemented.

5. The 2nd and 3rd Respondents have raised the issue of the Supporting Affidavit of Wanjiru Gitahi dated 30th October 2023 and have urged the Tribunal to strike it out. The said Respondents also argue that the amendments sought will oust the jurisdiction of the Tribunal on account of the subject matter not having been subjected to Internal Party Dispute Resolution Mechanism (IDRM). They have also argued that the application seeking leave to amend is res judicata.

Issues for determination 6. The Tribunal has considered the application and the parties submissions and determined the issues for determination as below:-a.Whether the unsigned affidavit of Wanjiru Gitahi should be struck out.b.Whether the application for amendment should be allowed.

Analysis and determination. Whether the unsigned affidavit of Wanjiru Gitahi should be struck out. 7. The supporting affidavit of Wanjiru Gitahi dated 30th October 2023 is not signed. The Supreme Court in Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR stated thus:-“We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has not legal value in the matter before us. We have cheeked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent.”

8. The Court of Appeal in Pharmacy and Poisons Board & another; Mwiti & 21 others (Respondent) (Civil Appeal E144 of 2021) [2021] KECA 97 (KLR) (22 October 2021) (Ruling) stated thus:-“With regard to the unsigned supporting affidavit, the unmarked and unsealed annexures, it would suffice to observe that such an affidavit is fatally defective and of no value to the applicants’ Motion.”

9. In the circumstances, we have no hesitation in finding that the supporting affidavit is incompetent and should be struck out.

10. What happens to the Notice of Motion application then? Under Order 8 of the Civil Procedure Rules which deals with amendment of pleadings, there is no requirement for an application seeking leave to amend pleadings to be accompanied by a supporting affidavit. Indeed, contrary to common practice, a supporting affidavit is not compulsory for all applications. It is only required where a specific rule requires that a supporting affidavit accompanies an application or where an application refers to evidence in which case the evidence can only be introduced vide an affidavit. The court in Ashioya & Co. Advocates v Busia Sugar Co. Ltd & 2 Others [2007] eKLR stated thus:-“My interpretation of this rule which appears to be supported by Mr. Makokha is that if one is not relying on any evidence – i.e if there are no facts involved whatsoever, then the grounds on the face of the application suffice to support the application. If however one needs to refer or rely on any factual issue, then an affidavit becomes indispensable.”

11. In this case, there are no factual issues involved. As such, the grounds on the face of the application would be sufficient to dispose of the application even in the absence of an affidavit. This therefore means that the application can stand without the affidavit.

Whether the application for amendment should be allowed. 12. The High Court in Trinity Pharam Limited & 2 Others v Giro Commercial Limited [2006] eKLR quoted with approval the decision of Justice Ringera in Jane Wambui Macharia v Giro Commercial Bank Ltd, Milimani Commercial Courts HcccNo. 739/03 where the judge stated thus:-“.... leave to amend will be granted even if it is necessitated by negligence or carelessness on the pat of the party seeking to amend so as to enable the right question to go to trial unless the party applying was acting mala fide or by his blunder he had done some injury to his opponent which could not be compensated by costs or otherwise.”

13. The Tribunal is of the opinion that the amendments sought will assist it in determining the real issues in controversy and the Respondents will not suffer any prejudice that cannot be compensated by costs.

14. In the circumstances, the Tribunal issues the following orders:-a.The Complainants shall file and serve an amended complaint by close of business on 12th November 2023. b.The Respondents shall file and serve their responses within five days.

15. Costs shall be in the cause.

DATED AND DELIVERED VIRTUALLY THIS 10TH DAY OF NOVEMBER 2023. GAD GATHU..............................................PRESIDING MEMBERMUZNA JIN..............................................MEMBERSTEPHEN MUSAU..............................................MEMBER