[2022] KEHC 12082 (KLR)

Nzuki v Kibagendi & another (Civil Appeal E349 of 2022) [2022] KEHC 12082 (KLR) (Civ) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12082 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E349 of 2022

JK Sergon, J

June 7, 2022

Between

Joel Nzuki

Appellant

and

Francisca Kwamboka Kibagendi

1st Respondent

United Democratic Alliance

2nd Respondent

(Being an appeal against the entire ruling delivered on the 23rd May 2022 at Nairobi in the Political Parties Dispute Tribunal Complaint number PPDT no. E033 of 2022)

Judgment

1. Fransisca Kwamboka Kibagendi, the 1st respondent herein, filed a complaint before the Political Parties Disputes Tribunal (The Tribunal) whereof she sought for inter alia, the nullification of the certificate of nomination issued to Joel Nzuri for the position of the Member of the County Assembly for kwa Njenga Ward.

2. The respondent averred that the appellant was not eligible to participate in the United Democratic Alliance Party (U.D.A) primaries conducted on April 14, 2022 because he had not resigned from the employment of the Nairobi City County Assembly where he served as a ward manager, kwa Njenga Ward.

3. The Tribunal heard the dispute and agreed with the 1st respondent in its judgment delivered on May 9, 2022. The record shows that the appellant filed an application for review before the Tribunal which application the Tribunal heard and dismissed it vide its ruling delivered on May 23, 2022.

4. Being dissatisfied with the aforesaid ruling, the appellant preferred this appeal and put forward the following grounds:i.Thatthe honourable Tribunal erred in law in failing to recognize the entire scope of the grounds available to a review of a judgment.ii.Thatthe honourable Tribunal erred in law in failing to recognize that the grounds relied upon by the appellant in his review were a valid ground for review.iii.Thatthe honourable Tribunal erred in law in failing to recognize the extent of the wording of the Order 45 rule 1(1) of the Civil Procedure Rules 2010 in relation to the grounds available for a review.iv.Thatthe honourable Tribunal erred in law in failing to find that the appellant had proved that he had a valid ground for review.

5. This court gave directions to have the appeal disposed of by written submissions. I have re-evaluated the arguments presented before the Tribunal. I have also considered the rival written submissions. The four grounds of appeal put forward by the appellant revolve around the question as to whether the appellant made out a case for the grant the orders for of review before the Tribunal.

6. It is the submission of the appellant that he raised valid grounds of review in terms of Section 80 of the Civil Procedure Act and under Order 45 rule 1(1) of the Civil Procedure Rules.

7. The respondent on the other hand is of the submission that the appellant miserably failed to establish the application for review. The respondent also argued that the Tribunal appreciated that the appellant’s application and recognized the entire scope of the grounds available for review.

8. It is further pointed out by the respondent that the Tribunal identified the correct grounds upon which the review application was premised, that is the discovery of new and important evidence. It was pointed out that the appellant did not demonstrate due diligence in having the evidence produced on time.

9. Having considered the rival written submissions plus the authorities cited, it is apparent that the appellant’s application for review before the Tribunal was based on discovery of new evidence which after exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed.

10. The appellant was therefore required to establish two tests. First, discovery of new evidence which was not within his knowledge. Secondly, the exercise of due diligenceon the part of the appellant.

11. The record shows that the appellant admitted that he was aware of the existence and the whereabouts of the evidence which had been in his house in Mwingi throughout the case before the Tribunal. The record of the Tribunal further shows that the appellant filed a replying affidavit on time but he did not attach the said letter of resignation which he averred was in his house in Mwingi.

12. The record does not explain why he could not produce it. I am convinced that the appellant failed to prove the test of due diligence.

13. In its ruling delivered on May 23, 2022the Tribunal stated in part as follows:“We note that even with the supplementary / supporting affidavit considered, the application will still fail. The applicant has pointed out that two documents in the supporting affidavit, the resignation letter which was sneaked into the Tribunal’s portal without an affidavit and struck out thus not a new discovery but was evidence that the applicant already mischievously produced before the Tribunal of which counsel Idambo denied knowledge of it. Yet this resignation letter that was vehemently denied is being brought by the same counsel as new evidence.”

14. The Tribunal further stated inter alia as follows:“A simple read of the letter clearly in the words of counsel does not capture what is in the pleadings and submissions they speak parallel. The letter is addressed to the Nairobi City County, and not the Nairobi County Assembly in the first place, then the letter is addressing a resignation due to unavoidable circumstances not of his intention to vie as we are meant to believe. It is not disputed that the applicant’s employer as per the averments is the Nairobi County Assembly, there is no evidence on record of a letter to the said Nairobi County Assembly that the applicant resigned. Therefore, we find no proper resignation warranting a review.”

15. It is clear from the above excerpts that the Tribunal took into account the applicable principles in determining the appellant’s application for review and came to the correct decision to dismiss the same.

16. In the end, the appellant’s appeal is found to be without merit. The same is dismissed with each party bearing its own costs.

DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2022. J. K. SERGONJUDGEDELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF JUNE 2022. D. O. CHEPKWONYJUDGEIn the presence of:.............. for the Appellant.............. for the 1st Respondent.............. for the 2nd Respondent