[2022] KEHC 9873 (KLR)

Owino v Returning Officer Kisumu East Constituency (Civil Appeal 2 of 2022) [2022] KEHC 9873 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9873 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 2 of 2022

FA Ochieng, J

July 15, 2022

Formerly Nairobi HCCA NO. E465 of 2022

Between

George Abuogo Owino

Appellant

and

Returning Officer Kisumu East Constituency

Respondent

(Being an Appeal from the Decision of the Hon. Wambua Kilonzo, Hon. Irene Masit & Hon. Justus Nyangaya, Panel Chairperson and Members Respectively Delivered on 17th June 2022 but dated 20. 06. 2022 in Nairobi (Panel 1) DRCC No. 250 of 2022)

Judgment

1The Appellant has faulted the Returning Officer for Kisumu East Constituency, for refusing to register him as a candidate for the position of Member of County Assembly (MCA) for Kajulu Ward in Kisumu County.

2. The said decision was thereafter upheld by the IEBC Dispute Resolution Committee.

3. The appeal arises from the decision of the Committee.

4. It was the finding of the Committee that both the Complainant and the Returning Officer testified that the list of supporters which was presented by the Complainant had 485 supporters.

5. Before this Court, the Appellant blamed the alleged shortfall in the number of his supporters, to the failure of technology.

6. He said that he had presented a list of more than 500 supporters. He had made the presentation by both hard copies and a soft copy.

7. It was his case that both the physical count and his own laptop reflected the correct number of supporters.

8. However, the Appellant says that when the flash disc was entered onto the Returning Officer’s laptop, the results kept on changing.

9. The Appellant expressed the view that the problem could be attributed to the fact that the Respondent was using a “Toshiba” laptop, which could be using the 2010 Windows Version, as opposed to the 2013 Version.

10. The other possible explanation, provided by the Appellant was that the Respondent’s laptop might have been attacked by a virus.

11. In my considered view, these hypothesis being put forward by the Appellant, at this stage, cannot be taken into account by the Court, because by giving consideration to them, the Court might stand accused of receiving further evidence, which was being presented from the bar.

12. First, it is not the function of the appellate Court to receive fresh evidence, unless an appropriate application had been canvassed successfully.

13. And, in any event, evidence ought not to be presented by the advocate representing any of the parties. In principle, evidence ought to be presented by the witnesses, who may include the parties in the case.

14. I have had the opportunity to peruse the record of the proceedings before the Committee.

15. The Appellant’s advocate told the Committee that his client had 2 grounds of appeal, as follows;“One is discrimination by the Commissionand two, failure of technology, which wasinadvertent and beyond the complainant’scontrol.”

16. The advocate told the Committee that whenever the Appellant’s flash disc was inserted onto the Respondent’s laptop, there were fluctuations in the numbers of the persons on the Appellant’s list of supporters.

17. As the Appellant told the Committee, the malfunction of the Respondent’s laptop was a matter that was beyond the Appellant’s control.

18. But the Respondent told the committee that the laptop did not malfunction as alleged by the Appellant. He said that the laptop showed that there was duplication of names in the Appellant’s list of supporters.

19. Whenever the laptop detected a duplication, it would result in a reduction to the extent of such duplicity.

20. According to the Respondent;“There were duplicates in both soft and hard copy.”

22. Ultimately, the Respondent explained that he declined to clear the Appellant because his list was short of 15 supporters.

22. At page 9 of the record of the proceedings, the advocate for the Appellant said;“Perhaps if we were given earlier days.We were short of only 15 supporters,and now has 30 verified.That means that if we were given even30 minutes we would have done thewhole process.”

23. It is on account of that express concession by the Appellant’s advocate, that the Committee made the finding that both parties testified that the Appellant’s list of supporters had 15 persons less than the minimum requirement of 500 supporters.

24. I find that the said shortage is not attributable to any malfunction of the Respondent’s laptop. It is a reality which was readily conceded by the Appellant.

25. The Appellant submitted thus;“82. We finally submit, that if the Respondent insists that the Appellant must have 500 ID cards of supporters then the Appellant has at least 30 ID verified extra cards on top of the 485 that he already has at the moment, which he is ready to submit if given the chance by the court to present his papers.”

26. To my mind, it was not the Respondents who were insisting that there should be at least 500 supporters. It is a constitutional requirement pursuant to Article 193 (1) (c) (ii) that;“Unless disqualified under Clause (2), a person is eligible for election as a member of a county assembly if the person –a.…………..b.……………c.is eitheri.nominated by a political party; orii.an independent candidate supported by at least five hundred registered voters in the ward concerned.”

27. When the Appellant presented a list of supporters which had less than 500 persons, he failed to meet the constitutional threshold.

28. In the circumstances, the Returning Officer was right to have rejected the Appellant’s nomination.

29. The Appellant has now submitted that there is new developing jurisprudence, to the effect that independent candidates should not be required to present the signatures of supporters.

30. As the candidates nominated by political parties were not required to meet a similar rule, the Appellant has submitted that it was discriminatory for the Respondent to require him to do so.

31. First, as I have already held above, it was not the Respondent who imposed the rule.

32. Secondly, the Appellant did not raise the issue either in his grounds of appeal, or before the Committee.

33. A matter which is not a ground upon which an appeal was founded, does not call for determination.

34. Furthermore, an appellate court is called upon to determine whether or not the impugned decision, was wrong.

35. When an Appellant had not canvassed an issue before the Committee whose decision he was appealing against, I hold the view that the Appellant would not be arguing an appeal because the said new issue had not yet been determined by the Committee.

36. By asking an appellate Court to determine a new matter, the Appellant would be calling upon the said Court to exercise an original jurisdiction, as opposed to an appellate jurisdiction.

37. I decline the Appellant’s invitation, to exercise an original jurisdiction when I am required to exercise an appellate jurisdiction.

38. None of the grounds of appeal have any merit.

39. Accordingly, the appeal is dismissed.

40. I uphold the decision of the Committee.

41. However, as the Respondent did not take part in these proceedings, I make no order as to the costs of the appeal.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF JULY 2022FRED A. OCHIENGJUDGE