Obongoya v Orange Democratic Movement & another; Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 1050 (KLR)

Obongoya v Orange Democratic Movement & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E015 (KK) of 2022) [2022] KEPPDT 1050 (KLR) (Civ) (13 August 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1050 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E015 (KK) of 2022

M Lwanga O, Presiding Member, T K Tororey & L Wambui, Members

August 13, 2022

Between

Patrick Ockochi Obongoya

Complainant

and

Orange Democratic Movement

1st Respondent

ODM - National Elections Board

2nd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Ruling

1. The complaint herein was heard inter-parte and final judgment delivered on August 4, 2022in the presence of Counsels for both the complainant and respondents.

2. The final orders of this Tribunal were the following:-a.That the Orange Democratic Movement [ODM] Party Busia County Nominating Committee nomination list produced at the said Busia County Nominating Committee meeting held on June 10, 2022together with the list of nominees outlined therein is the valid ODM Busia County listand the said valid list be included in the final ODM party list for party nominations to be forwardedto the IEBC for publication in the Kenya Gazette in respect of the August, 2022 general elections.b.That notification of this decision issue to the Independent Electoral and Boundaries Commission.c.That the costs of this complaint are awarded to the Complainant as against the Respondents jointly and severally.

3. The matter would have rested there, however the respondents, subsequent to delivery of the said judgment, filed a notice of motion application datedAugust 5, 2022supported by the affidavit sworn by Oduor Ong’wen filed therewith seeking the following orders:-i.Spent.ii.Pending the inter-partes hearing of this application this Tribunal be pleased to stay its judgement and/or decree of August 4, 2022and all consequential orders therein.iii.The Tribunal be pleased to review and set aside its judgement and/or decree of August 4, 2022upholding the complaint dated July 28, 2022, in light of the fresh evidence placed before it and/or for sufficient cause.iv.Each party bears its own costs

4. It is the respondents case that the dispute before the Honourable Tribunal involves the conduct of Party Lists Elections by the County Party Lists Nominations Committee for Busia County and they are aggrieved that the Tribunal in arriving at its judgement did not have the benefit of the significant information that it ought to have considered so as to reach a fair and just determination in the matter.

5. The respondents submit that the said information was not readily available to counsel for the respondents in light of the very short timelines within which the proceedings were determined and that it is in the interest of justice that the subject dispute is resolved on merit at the earliest, in the interest of justice and fairness.

6. The Respondents’ application is supported by the affidavit sworn by the Executive Director of the ODM party who attaches minutes showing the party’s decision as to constitution of the county committee that was to conduct the party list nominations as well as the list that emerged from the allegedly properly constituted county committee.

7. It is alleged that this information was not available to the respondents Advocate on record at the time of the inter parte hearing, as the party secretariat was overwhelmed with complaints and given the speed with which the matters were proceeding the relevant information was not availed in support of their response.

8. The complainant submits that the application is defective as the order and decree ofthis Tribunal is not attached to it.

9. Further, it is the complainants averment that the alleged reconstitution of the Busia county party nomination committee was illegal and that any resultant outcome of such an illegality must fail.

10. The Interested Party was not served and thus did not participate in the hearing.

11. The issue before us is the review of our judgment. Section 80 of the Civil Procedure Act as read together with order 45 rule 1 of the Civil Procedure Rules, 2010 guide the process within which a review should arise.Section 80 CPA states-. Any person who considers himself aggrieved-a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

12. Order 45 rule 1 of the Civil Procedure Rules, 2010 provides as follows:-1. Any person considering himself aggrieved-

a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.”

13. Order 45 sets out the rules that restrict the grounds for review by laying down the jurisdiction and scope of review to the following grounds- (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.

14. The respondents allege new facts that, given the tight timelines guiding elections, they were, even with due diligence, unable to obtain.

15. The complainant urges us to disallow the application as the decision and decree is not attached.

16. In addition, we are urged, by the Complainant, to note that the action taken by the party was unlawful and thus any resultant outcome is unlawful.

17. In applying our mind to the merits and/or demerits of the application we have been guided by the spirit of article 159 of the constitution of Kenya 2010 even as we have made reference to Sow Chandra Kanta v Sheik Habib [1975] INSC 68 where that court held that review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or grave error has crept in by fact of judicial fallibility.

18. Is the information that the respondents wish to include glaring in the face of the issue which we determined? It is alleged, by the respondents/applicants that the information relates to an issue that we took into key account in reaching our determination sought to be reviewed; this is in relation to the party nomination process as outlined in the party laws. The Complainant/Respondent on the other hand say that the information would only be glaring in its illegality and lack of conformity to the party laws.

19. In addition, we have looked into the thinking in Rupa Ashok Hurra vs Asho Hurra & anor[2002] case No Writ Petition (Civil ) 509 of 1997 where the Court observed that situations may arise requiring reconsideration of final judgments to set miscarriage of justice complained of, and that it would therefore not only be proper but also obligatory, both legally and morally, to rectify the error.

20. Given the correlation between individual and group rights when it comes to nomination of political party nominees during elections, the need to afford parties realistically adequate opportunity, in the circumstances, to present their case is key.

21. Indeed we find that there is need for substantive consideration of the alleged new information so that our final judgment will have as realistically as possible looked at the entirety of the impugned process, subject matter of the complaint.

22. Allowing this application, would, as stated in the case of Rupa Ashok Hurra vs Asho Hurra & anor[2002] case No Writ Petition (Civil ) 509 of 1997 which we cited herein above, provide opportunity to set right any alleged miscarriage of justice as complained of by the respondents/applicants.

23. We thus find that the application is justified.

Disposition 24. In light of our analysis, and given the election timelines we order as follows.a.That the judgment of this Tribunal of August 4, 2022 upholding the complaint dated July 28, 2022is hereby set aside.b.That the Complainant/Respondent is hereby granted leave to file and serve a further affidavit forthwith and in any event by August 14, 2022at 10 am.c.That the matter be listed for full hearing before this Tribunals’ Kakamega Bench, virtually vide video link on August 14, 2022at 12 noon.d.The costs be in the cause.

Dated the 13th day of August 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)PPDT COMPLAINT NO. E015/22 ORIGINAL FINAL RULING KAKAMEGA 4