Republic v Independent Electoral and Boundaries Commission & Michael Kosgei (Returning Officer Homa Bay County) Ex-Parte Shem Odongo Ochuodho [2017] KEHC 9221 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW MISC. APPLICATION NO. 370 OF 2017

REPUBLIC …………………………....……….................…..APPLICANT

VERSUS

INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION………...….........1ST RESPONDENT

MICHAEL KOSGEI

(RETURNING OFFICER HOMA BAY COUNTY)….....2ND RESPONDENT

AND

SHEM ODONGO OCHUODHO…….....…..….....EX PARTE APPLICANT

RULING

(Reasons for decision)

1. The legal principle to be followed when a court is faced with an application for review under Order 45 of the Civil Procedure Rules on the basis of “ an error apparent on the face of the record” was well captured by the Court of Appeal inMuyodi vs. Industrial and Commercial Development Corporation & Another [2006] 1 EA 243. The court then spoke of an error apparent on the face of the record thus:

“InNyamogo & Nyamogo -vs- Kogo (2001) EA 174this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”(emphasis mine)

2. The court however assigned no particular definition allowing each case to be determined on its own set of facts.

3. Across the borders and slightly earlier inChandrakhant Joshibhai Patel -v- R [2004] TLR 218, the High Court in Tanzania had held that an error stated to be apparent on the face of the record:

‘...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions.’

4 The Applicant in the instant case is back before this court asking the court to review the judgment and decree of this court rendered on 26 June 2017 and read on 27 June 2017. The judgment dismissed the Applicant’s application to have the orders of the 1st Respondent judicially reviewed. The 1st Respondent had on 1 June 2017 declined to vacate an order by its returning officer declining to allow the Applicant to present his nomination papers outside the prescribed timeline for candidates seeking clearance to contest the general elections scheduled for 8 August 2017.

5. The instant application is supported by the affidavit of the Applicant. He states that this court failed to place on record that he was before the Returning officer at 1500hrs. His counsel, Dr Khaminwa urged the court to find that to be an error on the face of the record as the court missed the fact that the Applicant was only one and half hours late. Senior counsel insisted that the error was excusable and urged the court to so hold, whilst referring the court to Black’s Law Dictionary 8th Ed as to the meaning of “ excusable”.

6. Mr Obondi for the 1st Respondent however contended that there was no error apparent on the record.

7. Having heard the parties’ counsel, I immediately dismissed the application. I am still convinced it warranted a dismissal.

8. In my decision of 26 June 2017, I was relatively clear that the Applicant was before the 1st Respondent on the material day. I was also very clear on what happened on the material day including the frantic calls made by the Applicant as well as the tete-a tete with the 1st Respondent’s returning officer all the way to the time the Applicant finally obtained the banker’s draft.

9. No less than six paragraphs of my judgment was dedicated to the   history. It was then taken into account as I ultimately made my determination. I considered what had happened on the material day and returned the verdict that the Applicant did not deserve to be excused. I concluded that the 1st Respondent had not acted irrationally or unreasonably.

10. The Applicant has not shown me any obvious and patent on the record. What the Applicant seeks of me to do is to re-evaluate the evidence.

11. I am unable to see how my failure to expressly state that the Applicant was before the Returning Officer at 1500hrs would have made a difference. It was certainly not an error on the face of the record. Synchronization of time through a precise indication of the hour and the minute in this case would have made no difference. What was material was to appreciate that the applicant appeared before the 1st Respondent’s returning officer without all the required nomination documents.

12. In my view, it would be inappropriate to reopen the judgment dated 26 June 2017 and reconsider the points urged by Dr Khaminwa during oral submission. They do not fall within the factors anticipated by Order 45 Rule 1 of the Civil Procedure Rules. I decline to exercise my discretion of review. The application by way of Motion dated 28th June 2017 stays dismissed. Each party shall bear its own costs.

Dated, signedand read at Nairobi this 12th day of July 2017

J. L. ONGUTO

JUDGE