Khabweri v Wanga & 2 others (Complaint 22 (NRB) of 2017) [2017] KEPPDT 54 (KLR) (28 April 2017) (Judgment)
Neutral citation:
[2017] KEPPDT 54 (KLR)
Republic of Kenya
Complaint 22 (NRB) of 2017
K Mbobu, Chair, Hassan Abdi & J Atema, Members
April 28, 2017
Between
Christoper Nakitari Khabweri
Complainant
and
David Joash Oniang'i Wanga
1st Respondent
The Returning officer Port Victoria
2nd Respondent
Orange Democratic Movement Party
3rd Respondent
Judgment
Complaint
1.This is a complaint against the judgment and order of the Busia County Appeals Tribunal for the 3rd respondent in petition no.5 of 2017. In his statement claim filed on 21st April 2017, the complainant was an aspirant in the 2nd respondents party nominations for a Member of County Assembly Bunyala West Ward that were undertaken on 13 th April 2017. The Complainant, the 1st respondent and three other aspirants contested at the close of which exercise the Complainant was announced as the winner and duly conferred with the provisional nomination certificate dated 13th April 2017, authenticated by the 2 nd respondent.
2.The 1st respondent filed an appeal dated 14th April 2017, which was heard and determined by the 3rd respondent’s County Appeals Tribunal on 17th April 2017. The Complainant denies any knowledge or notice of the appeal or its hearing as he alleges that he was never served but only Christopher Nakitari Khabweri v David Joash Oniang’i Wanga & 2 others [2017] eKLR PPDT Complaint No. 22 Of 2017 – Judgment 2 received a copy of the judgment of the County Appeals Tribunal dated 18th April 2017.
3.The Complainant argued that the impugned decision of County Appeals Tribunal was accordingly in gross violation of the rules of natural justice, audi alteram partem, and accordingly void ab initio per Court of Appeal of Kenya in Mirugi Kariuki vthe Attorney General Civil Application No.70 of 1991 as none of the named parties had any knowledge of hearing of the appeal. The Complainant further faults the decision on merit in many respects arguing that the decision is draconian.
4.The complainant prays for the setting aside of the judgment of the 3 rd Respondents Busia County Appeals Tribunal and a permanent injunction restraining the 3rd respondent or its County Elections Board from organising or conducting any other nomination exercise for the position of Member of County Assembly for Bunyala West Ward as a consequence of the judgment by the Busia County Appeals Tribunal in Petition No.5 of 2017.
Response
5.The 1st respondent filed a replying affidavit on 26th April 2017. The crux of the reply is that the Claimant was obliged to invoke Internal Dispute Resolution Mechanism under rules 18 and 19 of the 3 rd respondent’s election and Nomination Rules 2014 and the Complainant had failed in that respect. The 1st respondent supports the decision of the County Appeals Tribunal and urged this tribunal to adopt the same inter alia arguing that the 3rd respondent’s tribunal made every effort and endeavour to have the Complainant appear before it. In this regard, the 1st respondent makes reference to the annexed affidavits of Calistus Nyegenye and Janetrix Nasirumbi. Further, the 1st respondent states that the local community radio station, Bulala FM ceaselessly broadcasted the dispute against the Complainant. Christopher Nakitari Khabweri v David Joash Oniang’i Wanga & 2 others [2017] eKLR PPDT Complaint No. 22 Of 2017 – Judgment 3
6.The 2nd and 3rd respondent filed a replying affidavit on 26 th April 2017 sworn by Anthony Moturi, the 3 rd respondents Legal and Parliamentary Officer. The 2nd and 3rd respondent’s take the position that the Complainant has not invoked the Internal Dispute Resolution Mechanism as contemplated by section 40(2) of the Political Parties Act. These respondents therefore urge us to adopt the decision of the 3rd respondent’s County Appeals Tribunal.
Issues for determination
7.At the hearing, Mr. Echessa, Advocate for the Claimant argued three issues for our determination. These are whether this tribunal has jurisdiction to hear the matter, whether service to the Complainant was proper and whether the County Appeals Tribunal was properly constituted.
8.The parties through their advocates addressed us on these three main issues along the positions adopted by the parties respectively. Mr. Asembo Advocate appeared for the 1st respondent while Mr. Makori Advocate appeared for the 2 nd and 3rd respondent.
Analysis
9.On the first issue of jurisdiction, it is evident that the matter went through the 3rd Respondent’s County Appeals Tribunal which tribunal already pronounced itself on the matter in which the Complainant was a party, regardless of whether he participated or not. This in our view amounts to the internal dispute resolution mechanism contemplated under section 40(2) of the Political Parties Act. We are satisfied that the matter is properly before the tribunal.
10.In any event, the County Appeals Tribunal having delivered the decision affecting the Complainant, the respondents did not point out how the Complainant was expected to invoke the internal dispute resolution mechanism or the rules under the 3rd respondent’s constitution upon Christopher Nakitari Khabweri v David Joash Oniang’i Wanga & 2 others [2017] eKLR PPDTComplaint No. 22 Of 2017 – Judgment 4 which the Complainant should have relied upon. Specifically, there is no mechanism for appeal or review of the decision by the County Appeals Tribunal and we agree with the Complainant that he only had recourse to this tribunal.
11.On whether the Complainant was properly served, we have perused the judgment dated of the County Appeals Tribunal as annexed to the 2 nd and 3rd Respondent’s affidavit. The judgment indicated that the Complainant and the 2nd Respondent had been informed of the Petition but did not put in a response.
12.We have also perused the Affidavit of Service relating to service of process to the Complainant relating to the Petition before the County Appeals Tribunal as annexed to the 1 st respondent’s replying affidavit. Accordingly, service was effected by one Calistus Nyegenye, an Advocate of the High Court of Kenya and the Secretary to the County Appeals Tribunal. In paragraph 9 of the Affidavit of Service, service upon the Complainant was purportedly effected as follows:“9.That we immediately called Mr. Christopher Nakitari Khabweri (the Respondent) and informed him that a Petition had been filed against him and that he needed to come to HotelAfrique in Busia Town and pick it and respond to it within 1hours.” (Emphasis ours) There is another affidavit dated 26th April 2017 by Janetrix Nasirumbi Rajwais who also states that she telephoned the Complainant to inform him that a complaint had been filed and invited him to obtain a copy of the complaint and reply appropriately. In paragraph 4 of her affidavit she states:“4.That I telephoned Chris Nakitari on XXXXXXXXX and XXXXXXXXX and informed him that a complaint had been filewith us as a Tribunal regarding Bunyala West Ward nominatio Christopher Nakitari Khabweri v David Joash Oniang’i Wanga & 2 others [2017] eKLR PPDT Complaint No. 22 Of 2017 – Judgment 5 and invited him to come and obtain a copy of the Complaint and reply appropriately. Thereafter a hearing would take place.”
13.We had difficulties fathoming how such process amounts to proper service in many respects. For instance, the service was purportedly effected by members of the Tribunal, being the Secretary who is also an Advocate of the High Court and a member of the Tribunal who actually alleges to have called the Complainant. It is not clear that the Complainant was ever informed of a date, time and place of hearing, which is the fundamental objective of any proper service, in addition to mere information of the existence of proceedings. We reiterate that service is a very important tenet in litigation especially in an adversarial system and has to be satisfactory and proper for any process emanating therefrom to be validated. Service by the County Appeals Tribunal was irregular as it exposes the tribunal to possible cross examination and embarrassment in the event that there is a dispute on service as is the present situation.
14.We are not persuaded by the respondents’ arguments to consider the exigencies of the process such as the timelines within which these disputes need to be resolved by the 3rd respondents. In the end, we hold that the service was not proper and the 3rd respondent’s actions did not conform to the provisions of the Fair Administrative Act.
15.On the last issue, the Complainant argues that the decision by the County Tribunal was irregular as it was signed off by four members yet Rule 19.1.1 of the 3rd respondent’s Election and Nomination Rules establishes a County Appeals Tribunal to comprise five members. In addressing this issue, the respondents did not dispute the fact that the County Appeals Tribunal is established with a composition of five members. The respondents did not also dispute that the impugned decision was made by four members of the Tribunal. Christopher Nakitari Khabweri v David Joash Oniang’i Wanga & 2 others [2017] eKLR PPDT Complaint No. 22 Of 2017 – Judgment 6
16.The respondents, however, tries to explain the anomaly by arguing that there was nothing barring County Appeals Tribunal for adopting any number of the members to constitute quorum. In any event the decision having been made by four members, the same was made by a majority of the members and the decision of the 5 th Member would not really alter the decision. In our view, the respondents’ position cannot hold. For as long as the rules did not specify the quorum, we take it that the quorum is the five members who constitute the County Appeals Tribunal. More so, any ambiguity in the rules can only be interpreted against the maker of the rules being the 3rd respondent.
Reliefs
17.The upshot of the decision is that the judgment and consequential orders of the Busia County Appeals Tribunal in Petition No.5 of 2017 is set aside and the 2nd and 3rd respondents are restrained from organising, ordering, conducting or holding any other nomination exercise for the position of Member of County Assembly Bunyala West Ward as a consequence of the Judgment of the Busia County Appeals Tribunal in Petition No.5 of 2017.It is so ordered.Costs in the cause in the interest of party unity.
DATED AT NAIROBI THIS 28 THDAY OF APRIL 2017. 1. KYALO MBOBU - (CHAIRMAN) . HASSAN ABDI - (MEMBER) JAMES ATEMA - (MEMBER)