Ondiek v Omar & another [2022] KEHC 11488 (KLR)

Ondiek v Omar & another (Civil Appeal 73 of 2022) [2022] KEHC 11488 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11488 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 73 of 2022

ACA Onginjo, J

June 6, 2022

Between

Kevin Ondiek

Appellant

and

Abrari Mohammed Omar

1st Respondent

ODM Nation Elections Board

2nd Respondent

(Being an Appeal from the decision of the Political Parties dispute tribunal in PPDT COMPLAINT NO. EOO2 of 2022 (Hon. Erastus Orina (Chair); Hon. Theresa Chepkwony; Hon. Daniel Kagacha)

Ruling

1. The Appellant/Applicant vide Notice of Motion Application dated 24th May 2022 sought interim orders of stay of execution and implementation of the judgment rendered on 29th April 2022 by the PPDT in Mombasa PPDT Complaint No. E002 of 2022 pending the hearing and determination of the application and hearing and determination of the appeal.

2. Costs of the application were also sought for. The Application was premised on the ground that the Appellant was declared as ODM candidate for Kongowea Ward Member of County Assembly nominations and was issued with an interim certificate dated 9th April 2022.

3. That pursuant to a judgment rendered by PPDT on 29th April 2022, the PPD 9 allowed an appeal that had been lodged by the 1st Respondent herein challenging the nomination of the Applicant/Appellant without hearing the Appellant/Applicant at all.

4. The Applicant/Appellant claimed he was not served with any pleadings/complaint, was never informed that the same was coming up for hearing, was never informed that an appeal had been lodged against him nor was he heard or presented any evidence in support of his case.

5. The Applicant/Appellant also claimed that he was condemned unheard and his certificate of nomination was revoked by PPDT. The Applicant claimed he learnt of the judgment on Monday 23rd May 2022 when he was informed by an official of the 2nd Respondent that his nomination certificate had been revoked by the PPDT and that they were required to appear before the said Tribunal on 24th May 2022.

6. That on 24th May 2022 the Appellant instructed his advocates who were informed by the Tribunal that judgment was rendered on 29th April 2022. The Applicant argued that there was imminent danger that the 2nd Respondent shall proceed to enforce and execute the judgment by the PPDT and thereby rendering the instant Appeal nugatory and a mere academic exercise.

7. The Applicant urged the court to admit the and certify the application and appeal as urgent owing to the strict electorate timelines involved and stay the judgment of 29th April 2022 pending the hearing and determination of the Application and appeal.

8. The Application was heard exparte and certified urgent and fixed for hearing on 30/05/2022. On 30/05/2022 matter did not proceed and as per instructions of the trial judge and the urgency same was placed for 31/05/2022.

9. On 31/05/2022 hearing was slated for 2/06/2022 but the trial judge was indisposed and as such I gave directions for filing of submissions on 3/06/2022 and a ruling date fixed for 6/6/2022 at 11. 00am.

10. The 1st Respondent had filed his Replying Affidavit sworn on 30th May 2022 on 31/05/2022 and the 2nd Respondent didn’t file any response and on 2/06/2022 when matter came up Ms. Masai Advocate hold brief for Mr. Anzala Advocate for the 2nd Respondent said that they left the application for determination of the court as they were not a party to the Tribunal.

11. The 1st Respondent opposed the Application in his 27 paragraphs affidavit and the pertinent issues are that during ODM party primaries for Kongowea Ward of Nyali constituency he garnered 563 votes as against the Applicants 142 votes and yet the 2nd Respondent irregularly, maliciously and illegally issued the party’s nomination certificate to the Applicant.

12. That the 1st Respondents complaint to 2nd Respondent Appeals Tribunal No. 8 of 2022 and his complaint was allowed. The 1st Respondent said he was aware the 2nd Respondents appeals Tribunal served all parties and set the matter to hearing and the Applicant chose not to attend or even file a response to his claim.

13. That the 2nd Respondents returning officer testified before the 2nd Respondents Appeals Tribunals and the 2nd Respondents Appeals Tribunal upheld his complaint and the Appellants certificate dated 10th April 2022 was cancelled and 2nd Respondent ordered to declare 1st Respondent the winner within 48hours.

14. That when 2nd Respondent failed to execute the order of the partys Appeals Board the 1st Respondent approached the PPDT with a Complaint against the party and the Respondents were served on 21st day of 2022 and on 29th April 2022 a judgment was delivered in favour of 1st Respondent requiring 2nd Respondent to give effect the orders of its Appeals Tribunal.

15. The 1st Respondent averred that the Applicant and 2nd Respondent were served but they chose to ignore the express orders of the PPDT and contempt proceedings were filed against them. That the Applicant and the 2nd Respondent also refused to attend hearing of contempt proceedings and a ruling was delivered on 20th May 2022 and mitigation and sentence reserved for 24th May 2022.

16. That whereas the 2nd Respondent and its commissioners appeared to avert possibility of being jailed the Applicant only appeared when he realized there were orders restraining IEBC from accepting him as a candidate.

17. The 1st Respondent urged the court to dismiss the appeal as being an afterthought and kicks of a dying horse.

18. None of the parties had filed their submissions by close of business on 3/06/2022 as directed. However on 4/6/2022 at 14. 24 my Court Assistant Mr. Elijah Ogwel drew to my attention to submissions that he had forwarded to my email at 14. 24hours dated 5th June 2022 filed by Ogello Awiti Advocates for the Applicant/Appellant.

19. I have considered the application, the grounds of Application, the supporting affidavit and the submissions dated 5th June 2022 and forwarded to my email on 4th June 2022 and I have also considered the Replying Affidavit of the 1st Respondent and the submissions in court by the second Respondent’s advocate that they had no response and that they left the court to make a fair and just decision.

20. I do find that the Applicant has not shown he will suffer substantial loss. He has not specified what substantial loss he will suffer if he had no proof he garnered more votes at the primaries than the 1st Respondent. The 1st Respondent has provided evidence to prove that the 2nd Respondents Appeals Board /Tribunal served all parties when he lodged his complaint and a finding was made in his favour.

21. The Applicant was issued with an interim certificate after garnering 142 votes against the 1st Respondents 563 votes and he decided to ignore summons from the Board of the party that allegedly issued him with interim certificate? That is display of impunity. 1st Respondent also proved that service was effected on the Applicant and 2nd Respondent proceedings before the PPDT but they ignored the same. There is no evidence to controvert the fact that Applicant was served via WhatsApp on a mobile phone number that is registered in his name.

22. The 2nd Respondent which issued the Applicant with interim certificate was served and they acknowledged service. This court finds that Applicant has not satisfied the threshold for grant of stay of execution for this matter which he acknowledges has timelines. The application is dismissed with costs to the 1st Respondent.

23. The parties to attend before the trial judge in Civil & Commercial Divisions at 2. 00pm for directions on the appeal.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT THIS 06TH DAY OF JUNE 2022HON. LADY JUSTICE A. ONG’INJOJUDGEAt. 11. 47amIn the presence of:-Ogwel - Court assistantMs. Awiti Advocate for Applicant/Appellant present onlineMr. Anzala Advocate for 2ndRespondent – No appearanceMr. Masake Advocate for 1stRespondent – No appearanceApplicant/Appellant -1stRespondent -2ndRespondent -Hon. Lady Justice A. Ong’injo J06/06/2022A. ONG’INJO J