Mafutu v National Elections Board, Democratic Action Party – Kenya; Wanyonyi & another (Interested Parties) [2022] KEPPDT 1026 (KLR)

Mafutu v National Elections Board, Democratic Action Party – Kenya; Wanyonyi & another (Interested Parties) (Complaint E003 (KK) of 2022) [2022] KEPPDT 1026 (KLR) (8 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1026 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E003 (KK) of 2022

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

May 8, 2022

Between

Gasper Mafutu

Complainant

and

National Elections Board, Democratic Action Party – Kenya

Respondent

and

Erick Wafula Wanyonyi

Interested Party

Independent Election and Boundaries Committee (IEBC)

Interested Party

Ruling

1. On the 29th of April this Tribunal issued final orders having heard the complainant in the absence of the Respondents and Interested Party.

2. On May 3, 2022, the 1st Interested Party filed a Notice of Motion application seeking setting aside of the said judgment.

3. The said application by the 1st Interested Party was based on the grounds, among others, that the matter had proceeded exparte and as such this Tribunal did not benefit from having all facts relating to the case in issue presented before it upon retiring to deliberate.

4. Lord Hailsham of St Marylebone in Chief Constable of the North Wales Police v Evans(1982) 1WLR 1155 stated as follows: “ The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court.

5. These wise words above, we have read together with the provisions of the law which require that for review there need be discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the applicant, on account of some mistake or error apparent and any other sufficient reason.

6. It is obvious that the Interested Party was included in this case as he had an interest in the outcome of these proceedings, a fact that has not changed.

7. In addition, he acted diligently.

8. The parties, in the course of making oral submissions before us raised issues that touch on the substantive complaint, issues that we can only determine on if parties are given opportunity to be heard. These facts touch on the legality and constitutionality of the party organ whose findings were integral to the judgment in issues and in deed these are facts that were not in the knowledge of the Tribunal at the time it retired to decide.

9. In light of our analysis we order as follows.a.That the judgment of this Tribunal in respect of this complaint issues on April 29, 2022 is set aside.b.That leave is granted to the 1st Interested Party to file his Reply to the complaint herein as well as written submission and serve all parties in this case by 11. 00 am on May 9, 2022. c.The Complainant to file his written submissions and any further affidavit, if need be, and serve the same upon all parties, by 3. 00 pm on May 9, 2022. d.That the matter be mentioned on May 10, 2022 at 9. 30am for compliance and further directions.e.Costs be in the cause.

DATED THIS 8TH DAY OF MAY 2022. M. L. ODONGO(PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)DR. LYDIAH WAMBUI(MEMBER)