Kobimo v Constituency Returning Officer Alego Usonga & another [2022] KEHC 3270 (KLR)

Kobimo v Constituency Returning Officer Alego Usonga & another (Civil Appeal 29 of 2022) [2022] KEHC 3270 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3270 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Appeal 29 of 2022

FA Ochieng, J

July 14, 2022

Between

Christopher Odhiambo Kobimo

Appellant

and

Constituency Returning Officer Alego Usonga

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

(Being an application seeking to stay the decision of the Independent Electoral and Boundaries Commissions Internal Disputes Resolution Committee Nairobi delivered on 20 th June 2022 by Hon. George Murugu, Hon. Juliana Cherera, and Hon. Boya Molu in IEBC Complaint No. 201 of 2022)

Judgment

The appeal before me arises from the decision rendered by the Dispute Resolution Committee of the Independent Electoral And Boundaries Commission, on 20th June 2022. 1. The Committee dismissed the Complaint lodged by the Appellant, after the Constituency Returning Officer for the Alego Usonga Constituency had declined to have him registered as an Independent candidate for the Member of County Assembly, West Alego Ward.

2. It is common ground that the Appellant first presented his application on 6th June 2022. However, the Returning Officer rejected his application because there were 48 signatures short.

3. As the Committee noted in its decision, the Appellant was advised to cure the shortfall, and to re-submit the list of his supporters on 7th June 2022.

4. The Committee stated, in its decision that on 7th June 2022, the Appellant re-submitted his documents, which had still not been rectified.

5. However, the Appellant told this Court that when he re-submitted his documents, he had rectified the shortfall.

6. When the Respondents were served with the Appeal herein, they failed to file any response to it.

7. The Court takes note of the fact that the IEBC Disputes Resolution Committee does not have a record of the proceedings before it.

8. Ordinarily, when an appeal arises from the decision of a Tribunal, Committee or a Court, the proceedings from the body whose decision was being challenged on appeal, would be an integral part of the record of appeal.

9. The appellate Court would re-evaluate the evidence on record and then analyze the decision in issue, in order to determine whether or not the decision was wrong.

10. In this situation, in which there is no record of the proceedings before the Committee, I would have expected the Respondents to provide this Court with their response to the facts presented by the Appellant.

11. As the Respondents did not provide any answer to the facts presented by the Appellant, I find that the said facts were uncontroverted. Therefore, the said facts constitute an accurate summary of what had transpired when the Appellant submitted his documents to the Returning Officer.

12. I am fortified in my finding because I note from the Committee’s decision that the said Committee stated as follows;“14. He further confirms that the Complainant was scheduled for registration on 6th June, 2021 when the Complainant appeared and upon verification, he declined to allow his registration for the above-stated reasons.”

13. The only reason stated “above” was that there was a shortfall of 48 supporters.

14. It is because of that that the Appellant was advised to cure the shortfall and then re-submit the list of supporters on 7th June 2022.

15. It is thus curious that on 7th June 2022, the Appellant was being told that he also lacked a Proposer and a Seconder.

16. The Appellant was clear, in his statement, that he definitely had a Proposer and a Seconder.

17. I hold the considered view that, in all probability, the Appellant had a Proposer and a Seconder. I so hold because if it were otherwise, the Returning Officer would have, on 6th June 2022, advised him to remedy that deficiency.

18. The fact that he was only told to rectify the list of his supporters can only mean that there was no other deficiency.

19. At paragraph 25 of its decision, the Committee held that the Appellant had failed to sign the Form 19, and also that he presented himself way after the gazetted timelines.

20. The Appellant categorically denied the said findings; and the Respondents deemed it fit to refrain from answering the facts presented by the Appellant.

21. I find no basis upon which the Court can uphold the Committee’s findings, which are not founded upon facts.

22. In the result, the appeal is merited. I allow the appeal, and quash the decision delivered by the Committee on 20th June 2022.

23. I substitute the said decision with a finding that the Appellant met all the requirements for registration as an Independent Candidate for the position of Member of County Assembly, West Alego Ward.

24. The Respondents are directed to clear the Appellant, to run as a candidate for the aforestated electoral position.

25. The Respondents shall pay to the Appellant, the costs of the appeal.

DATED, SIGNED and DELIVERED at KISUMUTHIS 14TH DAY OF JULY 2022FRED A. OCHIENGJUDGE