[2023] KEHC 18619 (KLR)

Okacha v Democratic Action Pary Kenya (Dap –K) & 3 others (Election Appeal E008 of 2022) [2023] KEHC 18619 (KLR) (16 June 2023) (Ruling)

Neutral citation: [2023] KEHC 18619 (KLR)

Republic of Kenya

In the High Court at Kakamega

Election Appeal E008 of 2022

SC Chirchir, J

June 16, 2023

Between

Evans Okacha

Appellant

and

Democratic Action Pary Kenya (DAP –K)

1st Respondent

Clerk Kakamega County Assembly

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Joel Castine Okwako

4th Respondent

Ruling

1. Before this court is the appellant’s notice of motion dated June 2, 2023 and filed on June 8, 2023. It seeks for the following orders: -a.Spentb.The court do review and set aside the ruling dated May 16, 2023 and reinstate the petitionc.the court to determine the main petition on merit and or before June 16, 2023 while jurisdiction existsd.Since the substance of the petition is the same as the preliminary objection by the 4th respondent, the petition be allowed.

2. The application is supported by the grounds appearing on the face of the application and the supporting affidavit of the appellant.

The Applicant’s Case 3. In his affidavit, sworn on June 2, 2023 the applicant has deponed that there are massive errors apparent on the face of the record. One such error, it is alleged, is that the judge purported to have allowed an “application” while there was no such application on record.

4. It is further pointed out that the fact that the appeal was allocated a number by the Kakamega High Court shows that indeed the appeal was filed in Kakamega High court and any assertion to the contrary is an error apparent on the face of the record. The appellant further argues that the court made a reference to a date stamp for Milimani High Court on the notice of appeal and yet such a stamp does not exist. It is further contended that the court based its findings on the said notice of appeal yet a notice of appeal is not a prerequisite document for purposes of an appeal.

5. The applicant further submits that the Deputy Registrar of this court has since written a letter which letter confirms that the subject appeal was filed in Kakamega High Court. A letter from the Deputy Registrar of this court dated May 24, 2023 is annexed to the application. It is the appellant’s final submission that since documents are filed electronically, the court only needed to look at the date of receipts to ascertain the date when the appeal was filed.

The 4th Respondnt’s Case 6. The application is opposed by the 4th respondent (hereinafter referred to as the respondent for purposes of this ruling only) who has filed both grounds of opposition and a replying affidavit. It is the respondent’s case that this court cannot hear, review or set aside a ruling arising from Justice Ogembo’s ruling as one judge cannot review orders of a judge with a concurrent jurisdiction.

7. It is further contended that the high court is now functus officio in this case having heard the parties and decided on the preliminary objection.

8. The respondent further asserts that there are no new grounds to warrant a review.

9. It is further argued that the preliminary objection was also based on the issue of lack of service on the 2nd and 4th respondents. The court returned a finding in their favour on this issue, and such a finding cannot be revisited by way of review.

10. The respondent further states that the registrar’s letter purporting to provide the facts on the matter of filing of the appeal does not constitute new issues as the said issues were canvassed during the hearing of the objection.

Background 11. The applicant/appellant filed an election petition against the respondents in the lower court, under the Election Petition No E007/2022. Following a preliminary objection raised by the respondents, the petition was struck off for want of service.

12. Aggrieved by the findings of the trial court, the appellant filed the current appeal. The respondents, again, raised a preliminary objection in respect to the appeal. The objection was based on 3 main grounds which werea.That the appeal was filed in the wrong registry/ courtb.That the appeal was filed out of timec.That the appeal was not served on the 4th respondent.

13. On May 16, 2023, Justice D.O Ogembo delivered the ruling in which he upheld the preliminary objection on all the three grounds.

14. On June 8, 2023, the appellant filed the present application under certificate of urgency. The application was placed before me on June 8, 2023, and considering the stipulated time lines for the disposal of election petitions and which in this case was a falling on June 16, 2023, I certified the application as urgent and scheduled it for interpartes hearing on June 13, 2023. when the matter came up on June 13, 2023, the respondent sought for and was granted time to file a response before the close of business on June 14, 2023 and ruling scheduled for June 16, 2023.

15. I pause here to address the issue of the timelines set out in the election laws and the role of the players involved in the presentation and /or resolution of the disputes. The courts are given 6 months to resolve an election dispute. The timelines are mandatory. It is the responsibility of all the players to keep the focus on the deadline and play their roles in such a way that each party is given ample time to do their bit. In regard to this application, the ruling which gave rise to the application was delivered on May 18, 2023. It took the applicant 14 days to file the present application. The delay was inordinate in the circumstances of an election dispute, and considering the then remaining days to the deadline. which deadline the applicant’s counsel, going by prayer C of the application, was very much alive to. To come to court at the eleventh hour is not being fair to the courts or to the other parties involved in the litigation of the dispute.

Determination 16. I have considered the application, the affidavits in support and the annexture, the repying affidavit, grounds of opposition plus all the authorities cited by each of the parties. The following issues arise for determination:(a).Whether Election Law Actand the rules thereunder provide for review.(b).Whether I have the jurisdiction to review the orders of a judge with concurrent jurisdiction(c).Whether the High Court is functus officio on this matter.(d).whether a review is warranted.

Whether the Election Act has a provision for Review. 17. This issue has been addressed by the appellant through the case digest. However, I did not see any response from the respondent in this regard. The Elections Act or rules thereunder do not provide for powers of review.

18. The High Court has taken divergent positions as to whether review is still possible despite the silence of the Elections Act and whether the provisions of the Civil Procedure Act can be borrowed for purposes of review.

19. In the case of Clement Kinywa Waibara & another v 3 Francis Kigo Njenga & 3 others (2013)eKLR. Justice Mwongo held that the election court has no power under the Elections Act to review its decision; and that the review provisions of the Civil Procedure Act and rules are not imported into the comprehensive, substantive and procedural electoral regime.

20. Justice Majanja in Patrick Ngela Kimanzi & Marcus Mutua Mutua & 2 others- Machakos High Court election petition No 8 of 2013 stated “similarly the petitioner cannot call to aid the provisions of Civil Procedure Rules. TheElection Act2011 and rules and regulations made thereunder is a comprehensive code of substantive and procedural election hence the Civil Procedure Act Cap 21 Laws of Kenya and rules made therein do not apply to Election Act 2011 except where expressly provided for in the Act or Rules.

21. However, in the case of Godfrey Masaba v IEBC & others (2013) cited by the appellant, the court while dealing with the failure of the Elections Act to provide for review stated “…for this reason notwithstanding lack of any express provisions for review in the Elections Act, and the Rules made thereunder, I hold the view, that an election court would , in the appropriate circumstances, review its orders if in so doing it would give effect to a right of fundamental freedom that the law in question had failed to recognize”.

22. The high court in Mohammed Ali Mursal v Saadia Mohamed and others (2013) eKLR while observing that the Election Act and the rules thereunder do not provide for review, resorted to the provisions of Civil Procedure Act to determine the application for review.

23. In Simon Nyaundi Ogari & another v Hon Omagwa Onyancha & 2 others- Kisii Election petition No 2 of 2008. the judge was dealing with the issue of computation of time which the Election Act does not provide for. The judge while citing with approval the decision in Alicen Chelaite v David Mangara & 2 others – CA No 150/1998 (unreported) held “whereas the Act is complete code for all matters election petitions, where the Act and the Rules thereunder are silent about a procedural matter, resort may be made to the Civil Procedure Rules.

24. The pertinent question is: what is the court to do when a given legislation is silent on a given subject which needs adjudication within that particular legislation? Should the court fold its hands and look away? I think not.

25. I arriving at the above conclusion I find support in the case of Nakumatt holdings v Commissioner of value Added Tax (2011) e KLR where the Court of Appeal was considering the Law Reform Act , which makes no provision for a review and like the elections law, is a special jurisdiction law. The court held: “Mr Otweka for the respondent in his submissions to us , seemed to suggest that where a law is silent on whether a review is permissible, then courts must decline jurisdiction where a review is sought. while we agree with him that judicial review is a special jurisdiction, we do not agree that in clear cases courts should nonetheless fold their arms and decline jurisdiction” . Am bound by the above court of appeal decision in any event.

26. Further article 159 (2) of the Constitution provides that in exercising judicial authority, the court and tribunals shall be guided by the following principles; -“(d)Justice shall be administered with undue regards to procedural technicalities.”

27. Section 80(1) (d) of the Elections Act is the implementing section within the Elections Act, of article 159(2) (d) of the constitution. The section requires an election court to decide all matters before it without undue regard to technicalities.

28. In Raila & others v IEBC & 3 others (2013) eKLR the supreme court held “a court of law should not allow the prescriptions of procedure and form to trump over the primary objective of dispensing substantive justice to the parties. This principle of merit however, in our opinion bears no meaning cast in stone and which suits all situations of dispute resolution. On the contrary the court as an agency of the process of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best course.”

29. It is an inescapable fact that judges make mistakes, including when they adjudicate on election disputes. To suggest that because the election laws are silent on review, then there is no room for correcting such mistakes, if any, is to sacrifice substantive justice at the altar of procedure. This is especially so in cases of election petitions arising from County Assembly Elections where the route of appeals ends at the High Court level.

30. It is my finding that notwithstanding the fact that the Elections Act is silent on the aspect of review, where circumstances warrant on election court should not hesitate in invoking article 159(2)(d) of the constitution and section 80(1)(d) of the Election Act to ensure the ends of justice are met. There is further no bar to borrowing the procedures provided in the Civil Procedure Act where the demands of justice calls for it.

Whether The Court Has Jurisdiction To Review Orders Of A Court Of Concurrent Jurisdiction 31. Section 80 of the Civil Procedure Act sets out the substantive law on review and order 45 of theCivil Procedure Rules lay down the procedure. Order 45 (2) provides as follows; - “(1)application for review of decree or order of a court, upon some ground other than the discovery of new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree or made the order sought to be reviewed.(2)if the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing”.

32. Justice Ogembo, who heard the- subject preliminary objection, was a visiting judge. He is no longer attached to this station. Consequently, it has fallen on me, as one of the judges currently in the station to handle this review. The application for review is premised on “an apparent error on the face of the record and impliedly upon the alleged “discovery of new facts”. Pursuant to the above provisions of order 45(2)(2) , I hold the view that I have the jurisdiction to adjudicate on this matter.

Whether The High Court Is Functus Officio In This Case. 33. The respondent has submitted that having heard the parties through their submissions and oral hearing, this court is now functus officio.The Black Law Dictionary (10th Edition) defines functus officio as “(of an officer of official body), without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

34. In Telkom (k) Ltd v John Ochanda (suing on his behalf and on the behalf of 996 former employees) the Court of Appeal defined the doctrine as follows:“functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision………..The doctrine is not meant to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself in. what it does bar, is merit based decisional engagement with the case once final judgment has been entered and a decree thereon issued.

35. It is my understanding that where the court seeks to correct an error, on the face of the record, or to consider some evidence that was inadvertedly left out by the parties or was not available at the time of the hearing within the context of section 80 of the Civil Procedure Act, it cannot be said to be re-engaging on the merits of the case. As it can be noted from the numerous past decisions on review, the exercise of such power is limited to correcting errors, considering new matters which for one reason or another the parties failed to bring to the attention of the court at the initial hearing or for any other justifiable reason.

36. In my considered view that whether a court would be said to have breached the functus officio doctrine would depend on the outcome of the review. If the court goes ahead to decide on an issue that it had already expressed itself in, then it would be said to have gone against the doctrine.

37. Further section 80 of the Civil Procedure Act and order 45 of Civil Procedure Rules presupposes that a court can indeed review its own orders.

Finally Are There Grounds For Review? 38. It is the applicant’s case that there is an error on the face of the record. The error that the applicant seems to refer to is where the judge in concluding his ruling stated that “the respondent will get the costs of this application” another error which the applicant has referred is on the judge’s reference to a date stamp from Milimani Law Courts, yet according to the applicant there was no such stamp on the said document

39. What is an error on the face of the record? In the case of A.G &O’rs v Boniface Banyima cited with approval in the case of Republic v Cabinet Secretary of National Government ex-parte Abulahi Said Said (2019) eKLR relied on by the respondent, the court held “the expression “mistake or error apparent on the face of record”refer to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment”.

40. Is the judge’s reference to “the application” instead of “preliminary objection” in his concluding remarks “an error apparent on the face of the record” ? The answer is in the affirmative. But with a lot of respect to the appellant, this is splitting hairs over a non-issue. The error is clearly a clerical one, which if the appellant found offensive, he could have written to the court for correction. Such errors are eligible for correction under section 100 of the Civil Procedure Act. An application was not necessary for the correction of such a small error

41. Further, a perusal of the ruling shows that the judge was, throughout his writing, conscious of the fact that he was determining a preliminary objection, not an application. Filing an application to correct such a minor error was misconceived and I dismiss this complain.

42. On the issue of which date stamp was used to stamp the memorandum of appeal, this issue was not canvassed in isolation. Ms Wanyonyi for the applicant in her submission threw the attention of the court to the receipts issued by the court while submitting that the date of filing, is determined by the date of the receipt.

43. The issue of receipts and stamps on the memorandum of appeal, the record of appeal and notice of appeal are not a case of errors on the record, neither are they cases of new evidence within the context of order 45 of the Civil procedure Rules. Those arguments had been made before the judge, and he decided on them. The appellant is obviously aggrieved by the outcome, but his remedy does not lie on review. To revisit the issue would tantamount to this court sitting on an appeal on the same issue. That, it cannot do.

44. The third issue that the appellant has raised as a ground for review is a letter issued by the registrar of this court confirming the date of filing of the appeal. The pertinent question in this regard is, why was such a letter, for whatever it would have been worth, not obtained before the hearing of the preliminary objection? The respondent filed the objection on February 1, 2023, while the 2nd respondent filed the objection on February 8, 2023. The hearing took place on April 18, 2023. The common ground on the two notices of objection were to the effect that there was no valid appeal on record. Thus, the applicant had been forewarned about the nature of the objection. He had a whole 2 months to obtain the letter in question if he considered that the letter would reinforce his evidence in that regard.

45. In the wording of order 45 rule 1(1) of the Civil ProcedureRules it is the “discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made…” that entitles an applicant to a review. No explanation has been offered as to why such evidence could not be obtained prior to the hearing of the preliminary objection. The applicant has not demonstrated that he exercised due diligence but still failed to get such a letter, prior to the hearing of the preliminary objection.

46. Further the letter simply gives the date of filing as being the same one that had been indicated in the receipts. Thus, in essence, there is nothing new that letter is saying. As earlier pointed out, the issue of receipts had been litigated upon during the hearing of the preliminary objection. This court has no jurisdiction to revisit it.

47. Finally, the respondents’ preliminary objection was also premised on the issue of service where the 2nd and 4th respondent had submitted that they were not served with the memorandum of appeal. The objection on this ground was upheld too. I notice that the applicant has remained, understandably, silent on this issue. It suffices to state that if the applicant is aggrieved by the outcome, the remedy does not lie with this court.

48. In conclusion, the application has no merit. The same is hereby dismissed with costs to the 4th respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 16TH DAY OF JUNE 2023. S. ChirchirJudgeIn the presence of:Eric- Court AssistantMr. Sore for the ApplicantMs Mburu for the Respondent.