Ndonji v Namunyu & another [2022] KEPPDT 969 (KLR)

Ndonji v Namunyu & another (Complaint E044 (KK) of 2022) [2022] KEPPDT 969 (KLR) (8 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 969 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E044 (KK) of 2022

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

May 8, 2022

Between

Joseph Ouma Ndonji

Complainant

and

Shadrack Machanje Namunyu

1st Respondent

Orange Democratic Movement

2nd Respondent

Ruling

1. On the 25th of April the complainant filed the complaint following which it was heard exparte and judgment delivered on April 28, 2022.

2. On May 2, 2022, the 1st Respondent filed a Notice of Motion application seeking setting aside of the said judgment ex debito justiciae.

3. The said application by the 1st Respondent 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. The application by the said 1st Respondent was heard and a ruling date given.

5. When the said ruling was pending, on May 3, 2022, another Notice of Motion application under certificate of urgency was filed by one Stephen Otieno aka Vosti through his Advocates on record seeking among other prayers to be joined to the case as an Interested Party having been as aspirant in the party nomination process in respect of the ward in issue [ie Umoja 2 Ward in Nairobi].

6. Lord Hailsham of St Marylebone inChief 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.

7. 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.

8. It is obvious that a party sued, as the 1st Respondent was herein, need be given opportunity to be heard, if, where and when they have acted diligently.

9. On the second pending application for joinder, we note that joinder of parties is permitted by law and it can be done at any stage of the proceedings. But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties. This is the test we shall apply in this case.

10. The application for joinder is in reference to the same nomination process by the same political party and by a person who was also an aspirant. There cannot be conflict of interest in any event what we see is opportunity to conclusively determine on this issue at this level.

11. In light of our analysis we order as follows.a.That the notice of Motion application dated May 2, 2022 filed by the 1st Respondent herein is allowed to the extent that leave is granted 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. b.That the Notice of Motion application dated May 3, 2022 seeking joinder is allowed to the extent that the applicant Stephen Otieno Aka Vosti is included in the complaint as an Interested Party.c.The said Stephen Otieno Aka Vosti is hereby given leave to file his Replying Affidavit in respect of the complaint and counter claim if need be, together with his written submissions and serve the same upon all parties by 9. 00 am on May 9, 2022. d.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. e.In the interim pending the hearing and determination of this complaint, the 2nd Respondent is restrained from forwarding the name of the 1st Respondent to the IEBC as the ODM party nominee for Umoja II ward in Embakasi West constituency.f.That the matter be mentioned on May 10, 2022 at 9am for compliance and further directions.g.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)