1.The subject matter of this ruling is the motion dated 25th May, 2023 taken out by the applicant in which he sought for the following Orders Inter alia:a.…..SPENT.b.…..SPENT.
2.The 1st, 2nd and 3rd Respondents filed a Replying Affidavit sworn on 19th June 2023 to oppose the motion. The 4th Respondent was in support of the Appellant’s application.
3.When the aforesaid motion came up for interpartes hearing, this court gave directions to have the application disposed of by written submissions.
4.The Appellant and the 1st, 2nd and 3rd Respondents filed submissions to oppose the aforesaid motion while the 4th Respondent together with the Appellant filed written submissions in support of the motion.
5.I have considered the grounds stated on the face of the appellant’s motion plus the facts deponed in the rival Affidavits. I have equally considered the rival written submissions.
6.It is the submission of the Applicant that it is obvious from the Judgment of this Court delivered on 24th May, 2023 that there are patent mistakes or errors of law or otherwise apparent on the face of record which ought to be corrected by way of review with the end result that the Appeal succeeds.
7.The Applicant argued that this Court has inherent power to recall its Judgment in order to give effect to what clearly manifests the intention to allow the appeal.
8.The Applicant pointed out that the 4th issue frame by this court for determination in the Judgment was whether persons with disability are nominated or otherwise appointed in priority over youths and other marginalized grounds.
9.The Applicant also pointed out that in the Judgment, this Court came to the conclusion that persons living with disabilities and youths are in the same category and therefore none of them ranks higher than the other and therefore it was upon the political to identify the special interest I broad sense and nominate the person falling within the special interest group to represent every person in the said group.
10.The Applicant further stated that the Court having come to that conclusion should have allowed the appeal in terms of grounds 10, 11 and 12 of the Memorandum of appeal.
11.The Applicant also pointed out that this court made a finding which is to the effect that the appellant/applicant was not served with the Pleadings and Proceedings in the trial Court despite having been directly affected.
12.This court is said to have come to the erroneous finding that it was inconsequential whether or not the appellant was heard.
13.The 4th Respondent is in support of the Appellant’s application arguing that the Application meets the threshold of an Application for review. The 4th Respondent pointed out that the error is so apparent that it does not require proof in a long-drawn process of debate and reasoning.
14.The 4th Respondent argued that the appellant/Applicant has demonstrated that the errors contained in the Judgment delivered on 24th May, 2023 speak for themselves and do not require any debate or long drawn reasoning.
15.On the other hand, the 1st, 2nd and 3rd Respondents opposed the Applicant’s Application. They pointed out that a dismissal of the main Grounds of Appeal renders the entire appeal a failure and its dismissal is the only result and any success on the fringe Grounds of Appeal does not change the outcome of the Appeal.
16.The 1st, 2nd and 3rd Respondent further argued that the Court may have reached a wrong conclusion of the law which should be a Ground of Appeal and not for review therefore, the Application for review must fail.
17.It was pointed out that the main Grounds of appeal failed after a Judicially conscious determination hence the success of Grounds 11, 12 and 13 of the Appeal were inconsequential as they only address a position in law.
18.Having considered the material placed before this court plus the rival submissions, it is not in dispute that on 24th May, 2023, this Court delivered its Judgment whereof it dismissed the Appeal and upheld the decision of the Chief Magistrate’s Court.
19.It is not in dispute that this Court framed the 4th issue as follows:[
20.After considering the arguments put forward, this court came to the conclusion that person with disability and the youths are in the same category and none ranks higher than the other and therefore it is upon the political party to identify the special interest in that broad sense and to nominate a person or persons falling within the special interest group to represent every person in the said group.
21.It is also apparent that the appellant put forward the following grounds interalia:-
22.It is not also in dispute that the learned Senior Resident Magistrate stated in his Judgment delivered on 10th February, 2023 that persons with disability are nominated or otherwise appointed in priority over youths and or other marginalized groups. With respect, I am persuaded by the Appellant/Applicant’s argument that there is an error or mistake which is apparent. It is obvious that the Learned Senior Resident Magistrat erred in finding that persons with disability rank in priority over youths and other marginalized group.
23.In the circumstances, this Court is entitled to recall its decision for purposes of correcting the error or slip to give effect to the manifest intention of the decision. It is obvious that the Court made an accidental slip which can be corrected by Review..
24.The finding that persons with disability and the youth are in the same category and none ranks in priority over the other should have led to the automatic allowance of the appeal in terms of Grounds 10, 11 and 12 of the Memorandum of Appeal. Those grounds cannot be treated as peripheral grounds as suggested by the 1st, 2nd and 3rd Respondents.
25.In the circumstances, the Judgment should be corrected and rectified by way of Review.
26.The second issue which was ably argued by the parties relate to this court’s finding that it did not matter whether the appellant was heard or not before the decision was made.
27.Having considered the rival arguments, I have come to the conclusion that ground does not merit to be treated as a ground for review. It is clear from the Judgment that this Court made a conscious decision before coming to the aforesaid conclusion.
28.The grounds is basically a ground for appeal which cannot be entertained as a ground for review.
29.In the end, I find merit in the Appellant/Applicant’s motion dated 25th May, 2023. The motion is allowed.
30.Consequently, this Court’s Judgment delivered on 24th May, 2023 dismissing the Appeal is set aside and is substituted with an Order allowing the appeal. The Judgment of Hon. F. M. Nyakundi, Senior Resident Magistrate delivered on 10th February, 2023 vide Kericho chief Magistrate Court, Election Petition No.E002 of 2022 is set aside and is substituted with an Order dismissing the Petition dated 16th September, 2022.
31.In the circumstances of this Appeal, a fair Order on costs is to Order which I hereby do that each party meets its own costs.