[2022] KEHC 10742 (KLR)

Odongo v Murimi & another (Civil Appeal 72 of 2022) [2022] KEHC 10742 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10742 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 72 of 2022

JN Onyiego, J

June 3, 2022

Between

Fredrick Oduor William Odongo

Appellant

and

Eliud Kimari Murimi

1st Respondent

ODM National Elections Board

2nd Respondent

Ruling

1. Both the appellant and 1st respondent are voters and registered members of Orange movement Democratic party (hereinafter ODM) Mkomani ward Nyali Constituency Mombasa county. Having expressed interest to contest for the position of ward representative as member of county Assembly Mkomani ward, the appellant herein and the 1st respondent took part in the party primaries nomination exercise held on April 9, 2022 in preparation for the forth coming national general election exercise scheduled for August 9, 2022.

2. Upon conclusion of the nomination exercise, the Second respondent (hereafter the BOARD) a body charged with the responsibility of overseeing party primary nomination exercise for ODM, pronounced the appellant as the winner and therefore cleared him by giving him a nomination certificate to represent the party from Mkomani ward during the national general election exercise scheduled for August 9, 2022.

3. Aggrieved by that decision, the 1st respondent who believed that he had won the nomination by garnering 403 votes against the appellant’s 374 votes, lodged an appeal to the ODM appeals tribunal thus challenging the nomination exercise arguing that he was robbed of victory. Having heard the appeal in the absence of the appellant and the 2nd respondent herein who allegedly failed to challenge the appeal by filing a response, the tribunal delivered its verdict on April 16, 2022 thus nullifying the nomination results and declared the 1st respondent the winner.

4. Consequently, the 2nd respondent was directed to cancel the nomination certificate issued to the appellant and issue the 1st respondent with a fresh one within 48 hours. For some reason, the 2nd respondent did not comply with the party’s appeals tribunal’s verdict culminating to the 1st respondent seeking intervention from the political parties disputes tribunal (hereafter PPDT) for orders to compel the second respondent to obey and implement the orders of the party appeals tribunal. Vide PPDT Complaint No. E003 of 2022, the PPDT heard the 1st respondent’s complaint also in the absence of the appellant and the 2nd respondent who again did not participate. The PPDT delivered its Judgment on April 29, 2022 upholding the ODM’S appeals tribunal’s judgment thus compelling the 2nd respondent to implement the said judgment and the orders arising therefrom.

5. Unfortunately, the PPDT’s Judgment was equally not honoured hence necessitating filing of contempt proceedings vide a notice of motion dated May 6, 2022. Again, without the appellant’s and 2nd respondent’s participation, a ruling was delivered on May 20, 2022 declaring; the 1st respondent as the duly nominated candidate for ODM Mkomani Ward; IEBC restrained from gazetting anybody else save for the 1st respondent Eliud Kimari Murimi as ODM candidate for Mkomani ward; IEBC to subsequently gazette Eliud Kimari Murimi to contest as such candidate; summons to issue specifically to the ODM National Elections Board officials to show cause why they could not be committed to civil jail for contempt of the tribunal’s orders and; the said summons to issue specifically to Abdullahi Diriye, Richard Tairo and Syntei Nchoe to appear on May 24, 2022 for mitigation. Subsequently, the cited officials surrendered as commanded and eventually complied.

6. Later on May 25, 2022, the appellant moved to this court vide a memorandum of appeal dated May 24, 2022 citing 6 grounds of appeal. Contemporaneously filed with the said appeal is a notice of motion the subject of this ruling seeking stay of execution of the judgment rendered on April 29, 2022 pending interpartes hearing and finally upon interpartes hearing pending hearing of the appeal; the honourable court to call for the original record from the PPDT to expedite the process.

7. The application is premised upon grounds set out on the face of it and averments contained in the affidavit in support sworn by the applicant on April 24, 2022. Basically, the appellant/applicant denied ever being served with any of the tribunal’s filed pleadings and orders as alleged. That he came to learn of the PPDT’s judgment on May 23, 2022 from an official of the 2nd respondent. He stated that he was condemned unheard yet it was not his fault; that his appeal is arguable and has high chances of success and therefore will be rendered nugatory if stay is not granted.

8. When the matter came up for directions on May 26, 2022, the court certified it urgent and directed for service to be done. Consequently, the 1st respondent filed his replying affidavit on May 31, 2022 stating that; all through the appellant and 2nd respondent were served but opted to stay away; justice is not for the indolent and the application is an afterthought meant to waste precious judicial time. He averred that on April 24, 2022 his process server effected service upon the 2nd respondent who acknowledged service by stamping a copy and the appellant on whatsapp after evading service. A copy of whatsapp printout was attached as annexture EKM4 and affidavit of service thereof. That on May 14, 2022, his process server again served the appellant and 2nd respondent through whatapp but none of them responded (See annexture EKM-7).

9. When the matter came up for hearing, m/s Awiti for the applicant reiterated the content of the affidavit in support and the grounds set out thereof. Counsel opined that the applicant will be prejudiced if the order of stay is not granted. That the 1st respondent cannot benefit from an irregularity and that her client will suffer if IEBC gazettes the 1st respondent’s name on 10th of June 2022

10. On his part, Mr. Masake also adopted the content contained in the affidavit in reply to the application. Learned counsel contended that the application is overtaken by events as his client has since been issued with the nomination certificate and eventually cleared by IEBC who issued him with a clearance certificate yesterday. Counsel stated that he had the IEBC certificate and was ready to file it in court. The second respondent did not file any response and instead opted not to participate.

11. I have considered the application herein, response thereof and oral submissions by both counsel. It is trite law that a party seeking stay of execution orders under O42 rule 6 (2) of the CPRs must prove that; he is likely to suffer substantial loss if the order is not granted; the application seeking such order has been filed within reasonable time and; security for due performance of the decree has been furnished. See James Wangalwa & another v Agnes Naliaka Cheseto(2012) e KLR.

12. In the instant case, the impugned judgment was delivered on April 29, 2022 and the application filed on May 26, 2022. Accordingly, the application was filed within reasonable time.

13. As to whether the applicant is likely to suffer substantial loss, he contended that if the 1st respondent is cleared by IEBC and then gazetted by June 10, 2022, he will stand to lose out. It has been said time and again that the power to issue or not to issue stay of execution orders is purely discretionary depending on the circumstances and merits of each case. In that regard, I am guided by the holding in the case of Tarbo Transporters LTD v Dova Lumbasi(2012)e KLR.

14. In this case, the 1st respondent claimed that the application has been overtaken by events as IEBC has already issued the 1st respondent with a clearance certificate. The said certificate was filed after parties had argued the application hence not admissible as the other party did not have an opportunity to comment on it. Nevertheless, what loss is the applicant likely to suffer if the order is not granted. I do not see any loss likely to be suffered because the IEBC is yet to gazette the names of candidates. By June 10, 2022 when IEBC is expected to gazette the names of successful candidates, the appeal would have been determined and appropriate orders made. In other words, there is a remedy available.

15. As regards the appeal being arguable with high chances of success, it is not sufficient on its own to warrant stay in the absence of proof of likelihood to suffer substantial loss. See Carter and sons Ltd v Deposit Protection Fund Board & 2 others civil appeal no. 291 of 1997 where the court held that the fact that there are strong grounds of appeal alone is not aground to grant stay.

16. Concerning the issue that the appeal will be rendered nugatory, the same will not as the appeal will be fast tracked to beat the deadlines. Regarding depositing security, none of the parties ever raised it hence not relevant in the circumstances.

17. For the above reasons stated, the application for stay is rejected. Parties are advised to fast track the appeal. The deputy registrar is hereby directed to call for the Original file from the PPDT urgently for the hearing of the appeal on June 6, 2022 at 2. 30 pm before judge Sewe the in-charge civil division. Costs shall be in the cause.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RD DAY OF JUNE 2022………………………J.N. ONYIEGOJUDGE