[2022] KEPPDT 924 (KLR)

Shimenga v Amani National Congress Party (ANC) & 2 others; Independent Election and Boundaries Committee (IEBC) (Interested Party) (Complaint E002 of 2022) [2022] KEPPDT 924 (KLR) (30 April 2022) (Ruling)

Neutral citation: [2022] KEPPDT 924 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

April 30, 2022

Between

Davis Kubasu Shimenga

Complainant

and

Amani National Congress Party (Anc

1st Respondent

Amani National Congress Party National Election Board

2nd Respondent

Ramadhan Butichi

3rd Respondent

and

Independent Election And Boundaries Committee (Iebc)

Interested Party

Ruling

1. Final judgment in the complaint herein having been delivered on April 28, 2022 in open virtual session in the presence of Counsel for the Complainant and Counsel for the Respondents but in the absence of Counsel for the Interested Party, counsel for the Respondents/Applicants thereafter filed the Notice of Motion Application dated April 28, 2022 under Certificate of Urgency together with the Supporting Affidavit sworn by Simon Mwangi Kamau seeking a stay of execution of the orders in the said judgment.

2. Parties having been served with the said application the Complainant through his Counsel on record vehemently opposed the grant of stay as detailed in his Replying Affidavit sworn on April 29, 2022 in response to the said Notice of Motion .

Submissions By Respondents/Applicants 3. The Respondents/Applicants submits that they intend to appeal the decision of this Tribunal expressed in the its judgment delivered on April 28, 2022 in respect of the complaint and that unless a stay is granted the Respondents stand to suffer substantial loss, great injustice and extreme prejudice as the Complainant will demand compliance with the said judgment, which would lead to extreme and highly prejudicial consequences that would subvert the ends of justice and render the appeal nugatory.

4. They argue that they have brought their application promptly, diligently and expeditiously and without delay bearing in mind that elections and nominations process operate under strict statutory timelines which could prejudice the rights of the 1st and 2nd Respondents.

5. In concluding they attach a Notice of Appeal and confirm willingness to abide by set conditions for the purpose of granting the orders sort and the Complainant/Respondent would not suffer any prejudice as it would simply be in the interest of justice

By Complainant/Respondent 6. The Complainant vehemently opposes the Respondent’s Application for the following reasons;a.A grant of stay of execution of the Judgment of this Tribunal will imply that the name of the 3rd Respondent be forwarded to the Interested Party, IEBC, for processing. That is tantamount to asking the Tribunal to set aside and treat its Judgment as nothing simply because the Respondents’ are dissatisfied.b.A crucial factor for consideration in grant of stay of execution is there being an appeal or intended appeal with likelihood of success. The Respondents have not annexed a memorandum of appeal or a draft memorandum of appeal.c.Further, the Respondents has not set out the sufficiently set out their grievances on the face of the application as was stated in the Court of Appeal cases ofSomak Travels Ltd v Gladys Aganyo [2016] eKLR and in Abercombie & Kent Limited v John Wanjau Maina [2020] eKLR wherein it was noted that while it is desirable for an applicant to annex a draft proposed memorandum of appeal to its application, the omission to do so is not fatal, and is curable in so far as the applicant has sufficiently set out its grievances on the face of the application. The Respondents do not fault the Tribunal even in one circumstance. Thus the Tribunal is unable to consider the important factor of “there being an arguable appeal”.d.The Respondent’s Application is overtaken by events as the dateline for submitting the names of the nominees to the IEBC was the midnight of April 28, 2022 and that is why this Tribunal in its immense wisdom burnt the midnight oil to deliver the Judgment at 4 PM.e.This Application is contemptuous to this Tribunal because it is proof that the Respondents have defied the Orders of this Court and treated them as mere suggestions by persons with no legal authority. If the Respondents had complied with the Orders of the Tribunal, they would not be seeking stay because the date for submitting name to the IEBC was midnight of April 28, 2022. They should have issued me with the Nomination Certificate.

7. The Complainant further avers that he is informed that the Respondents in full and blatant defiance of the orders of the Court forwarded the name of the 3rd Respondent as the candidate for Member of National Assembly for Ikolomani Constituency. Consequently, they have no audience before this Tribunal for contempt of Court. Before the Respondents can be granted any audience, they must first confirm and provide evidence that they forwarded his name to the IEBC and that they have not forwarded the name of the 3rd Respondent.

8. In conclusion, the Complainant asks that the Tribunal be guided by the finding in Carol Construction Engineers Ltd v Naomi Chepkorir Langat [2016] eKLR that; Whether or not to hear a party in contempt is up to the discretion of the court, after considering all the surrounding circumstances of the particular case. This case is one in which audience should be denied.

Our Analysis 9. Having read through the pleading and documents annexed in support and listened to the oral submissions on the same as presented by the Counsel for the Complainant/Respondent in the absence of Counsel for Respondents/Applicants, we are guided by the words of the Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as ageneral rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

10. Section 99 of the Civil Procedure Act provides exceptions to the doctrine of functus officio in the following terms- “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

11. Accordingly we order as follows:-That the Notice of Motion applicant filed by the Respondents/Applicants on April 28, 2022 is hereby dismissed with costs.

DATED AT NAIROBI THIS 30TH APRIL 2022. ...................................................M. L. ODONGO (PRESIDING MEMBER)...................................................TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)...................................................DR. LYDIAH WAMBUI (MEMBER)PPDT KAKAMEGA COMPLAINT NO. E002/22 ORIGINAL FINAL RULING ON STAY