Kawaka & another v Ouma & 3 others [2022] KECA 623 (KLR)

Kawaka & another v Ouma & 3 others (Civil Appeal E168 of 2022) [2022] KECA 623 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KECA 623 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Appeal E168 of 2022

PO Kiage, HA Omondi & F Tuiyott, JJA

July 14, 2022

Between

Loice Akoth Kawaka

1st Appellant

Roseline Akoth Awino

2nd Appellant

and

Oscar Oluoch Ouma

1st Respondent

Orange Democratic Party

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Returning Officer Ndhiwa Constituency

4th Respondent

(An Appeal from the Judgment and Orders of the High Court of Kenya at Homa Bay (Waweru Kiarie, J.) Dated 6th July, 2022 in Petition No. 1 of 2022 Constitutional Petition 1 of 2022 )

Judgment

1We have carefully considered the memorandum of appeal, the record of appeal, the written submissions and authorities filed by the parties herein.

2We have also paid careful attention and given due consideration to the oral arguments made by learned counsel who appeared before us, namely; Mr. Ochiel Dudley for the appellants and Mr. Muganda for the 3rd and 4th respondents, who also support the appeal, as well as Mr. Duncan Okatch for the 1st respondent and Ms. Masaai, for the 2nd respondent who are opposed to it.

3Our decision on the appeal is that the learned Kiarie J, erred in allowing with costs the petition that was before him, quashing the decision of the 3rd Respondent’s Dispute Resolution Committee made on 17th June, 2022 and issuing a writ mandamus against the 3rd Respondent.

4We accordingly allow this appeal and set aside in entirety the learned Judge’s judgment and decree dated 6th July, 2022. We substitute therefor an order dismissing the petition, but with no order as to costs. The parties herein shall bear own costs of this appeal.

5This decision is rendered pursuant to Rule 34 (7) of the Court of Appeal Rules, 2022, the reasons wherefor shall be given on 29thJuly, 2022.

DATED AND DELIVERED AT KISUMU THIS 14THDAY OF JULY, 2022. P.O. KIAGE...............................JUDGE OF APPEALH. OMONDI...............................JUDGE OF APPEALF. TUIYOTT...............................JUDGE OF APPEAL.I certify that this is a true copy of the original.SIGNEDDEPUTY REGISTRAR.