IN THE COURT OF APPEAL

AT NAIROBI

 (CORAM: KIHARA KARIUKI, PCA, GATEMBU & MURGOR, JJ.A.)

CIVIL APPEAL NO. 154 OF 2017

HON. JOHN NDIRANGU KARIUKI………....….…..........………APPELLANT

VS

BENJAMIN GATHIRU MWANGI………………...….…... 1^ST RESPONDENT

JUBILEE PARTY…..……………………………………...2^ND RESPONDENT

 (An appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (the Hon Mr. Justice J. Wakiaga dated 29^th May, 2017

in

Election Petition Appeal No. 60 of 2017)

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JUDGMENT OF THE COURT

(1) This appeal arises out of the political parties primaries carried out by the  Jubilee Party (the 2^nd Respondent) on diverse dates within the month of April, 2017.

(2) Under Section 41 (2) of the Political Parties Act, this Court is vested with jurisdiction to hear appeals from the High Court sitting on appeal from decisions emanating from the Political Parties Disputes Tribunal (the Tribunal). However this jurisdiction is restricted on points of law only.

(3) Briefly the facts leading to this appeal are that the Hon. John Ndirangu  Kariuki (the Appellant) and Benjamin Gathiru Mwangi (the 1^st Respondent) being members of the 2^nd Respondent took part in party primaries conducted by the 2^nd Respondent on the 26^th April, 2017, for the position of Member of the National Assembly for the Embakasi Central Constituency. The 1^st Respondent was declared the winner and was issued with the Party’s Nomination Certificate. The Appellant being aggrieved by that declaration  filed an Appeal with the 2^nd Respondent’s Appeals Tribunal. The 2^nd Respondent’s Appeals Tribunal dismissed the Appellant’s Appeal after finding that the Appellant did not prove his case beyond the required standards.

(4) On the 9^th May, 2017, the Appellant lodged a complaint at the Tribunal under a certificate of urgency. The matter was certified urgent and the Tribunal directed the Appellant to serve the Respondents and the parties to  file their submissions. On the 12^th May, 2017, when the matter was scheduled for hearing the Respondents did not appear and the matter  proceeded undefended. The Tribunal rendered its decision on 15^th May, 2017, and allowed the complaint by the Appellant and directed the 2^nd Respondent to determine its nominee for the Embakasi Central Parliamentary seat in a manner compatible with its Constitution, Election and Nomination Rules.

(5) The 1^st Respondent was aggrieved by this decision of the Tribunal and proffered an appeal against it in the High Court. The 1^st Respondent contended inter-alia that the Appellant did not serve him with the pleadings filed before the Tribunal which was the reason why he did not enter appearance culminating in the matter proceeding ex-parte. The Appellant on the other hand argued that there was proper service of the pleadings and an affidavit of service was filed to that effect.

(6) The High Court allowed the Appeal after making a determination that there  was no service of the hearing notice upon the 1^st Respondent. The High Court further directed that the Nomination Certificate that had initially been  issued to the 1^st Respondent be reinstated and directed further that the matter be heard afresh on merit before the Tribunal.

(7) The Appellant being dissatisfied with that decision now brings this appeal before us. The Appeal is based on four grounds namely, that:

a) the learned judge erred in law by holding and finding that the Respondents were not served with the hearing notice for the case when in fact the said Respondents had ignored appearing at the date and time appointed by the Tribunal’s orders;

b) the learned judge erred in law by holding that there was no service of the hearing notice whereas there was no holding of the non-service of the  initial  pleadings  which  by  themselves  had  indications  and directions as to hearing on account of the affidavit of service on record;