[2022] KEHC 15149 (KLR)

Abdi v Kamalik (Election Appeal E001 of 2022) [2022] KEHC 15149 (KLR) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 15149 (KLR)

Republic of Kenya

In the High Court at Kajiado

Election Appeal E001 of 2022

SN Mutuku, J

June 6, 2022

Between

Abdisalam Hassan Abdi

Appellant

and

Jemnyango Moses Kamalik

Respondent

Judgment

Introduction 1. Both the Appellant and the Respondent are members of the Orange Democratic Movement (ODM). They both contested for nomination as Member of the County Assembly, Ongata Rongai Ward, Kajiado County in the Party Primaries that were conducted on April 20, 2022. The Respondent was declared the winner after garnering 147 votes against the Appellant who was second with 126 votes. The Appellant, together with four others, raised a complaint with the ODM Internal Dispute Resolution Mechanism (IDRM) Appeal Tribunal in Tribunal Appeal No 37 of 2022.

2. By a judgment delivered on April 27, 2022, the said Tribunal found in favour of the Appellant and issued the following orders:i.The Appeal filed by the Applicant is hereby allowed.ii.The nomination conducted in Ongata Rongai Ward is nullified.iii.The interim certificate issued to the interested party (the Respondent herein) is hereby set aside.iv.The Tribunal recommends to the National Elections Board to disqualify the 3rd Respondent (the Respondent herein) because he engaged in elections offences.v.The Tribunal recommends that the National Elections Board to issue the 1st Appellant Abdisalam Hassan Abdi with the ODM nomination certificate for Ongata Rongai Ward.vi.Each party shall bear its own costs in the appeal.

3. The Respondent was aggrieved by the said judgment. He moved to the Political Parties Disputes Tribunal (PPDT) in PPDT Complaint No E077 of 2022. In a judgment delivered on May 20, 2022, PPDT overturned the judgement of the ODM IDRM and revoked the Certificate of Nomination issued to the Appellant and ordered that the name of the Respondent be forwarded to the Independent Electoral and Boundaries Commission (IEBC) as the ODM nominee to vie for the Member of County Assembly for the Ongata Rongai Ward, Kajiado County.

4. It is that judgment that is the reason that the Appellant filed this instant appeal.

Memorandum of Appeal 5. By a Memorandum of Appeal dated May 27, 2022 and filed on May 31, 2022, the Appellant has raised seven grounds of appeal, namely:i.That the Tribunal erred in law and in fact in entertaining the Appeal without having a record and especially copies of proceedings from the Tribunal Appeal No 37 of 2022. ii.That the Political Parties Dispute Tribunal erred in law and in fact in finding that the Complainant had not been served and had not taken part in the Tribunal Appeal No 37 of 2022 when it had the judgment of the said Tribunal and which judgment clearly showed that the Respondent herein took part in the said Appeal.iii.That the PPDT erred in fact and in law in choosing to be selective in parts of the evidence to use and which to ignore and specifically choosing to look at parts of the judgment dated April 27, 2022 touching on the WhatsApp messages and choosing to ignore the contradiction in the said judgment and the Respondent’s Affidavit on the Respondent’s involvement in Tribunal Appeal No 37 of 2022. iv.That the PDDT also erred in law and in fact in choosing to elect and dwell on the evidence from the same WhatsApp messages on bribery and the standard of proof for bribery but again chose to ignore the rest of the evidence on double voting and voting for voters who did not make it to the polling stations.v.That the PPDT erred in law and in fact in trashing the ODM Rule Book on election and nominations which parties had sworn to abide by.vi.That the Tribunal’s action in the matter is a subversion of the law and the Constitution.

6. The Appellant seeks that the Appeal be allowed; the Judgment and order of the PPDT dated at Nairobi and delivered virtually on the 22nd day of May 2022 in PPDT E077 of 2022 be set aside and that costs of this Appeal be awarded to the Appellant.

7. Contemporaneously with the Memorandum of Appeal, the Appellant filed a Notice of Motion under Certificate of Urgency both dated May 27, 2022 and filed on the May 31, 2022. Directions were given by this court om May 31, 2022 that the Notice of Motion be served on the Respondent and the same be mentioned on June 2, 2022 at 9. 30am for directions given that the 1st of June 2022 was a National Holiday.

8. On June 2, 2022, Mr Odindo, learned counsel for the Appellant, appeared before the court and informed the court that he had served the Respondent’s lawyers, M/s Wambui Shadrack & Associates via their email shadrackwambui@gmail.com. He presented in court an Affidavit of Service sworn on May 31, 2022 showing that the said firm was served. He also attached email communication between himself and Mr Shadrack Wambui.

9. This court sought to know from counsel for the Appellant whether, given the tight timelines and the day of the week, June 2, 2022, being a Thursday, and the urgency in having the appeal concluded in time to have the names of candidates for the MCA presented before the deadline of June 7, 2022, he still wished to pursue the Notice of Motion first before the Appeal was entertained.

10. Mr Odindo informed the court that he was willing to compromise the Notice of Motion dated May 27, 2022 in favour of the Appeal and file the Record of Appeal and Submissions and leave the matter to the court to make a decision on the Appeal.

11. This court allowed the withdrawal of the Notice of Motion dated May 27, 2022 in favour of having the Appeal determined. The Appellant was directed to file and serve the Record of Appeal and submissions by close of business on Thursday the June 2, 2022. This court further directed that the Respondent, upon service, file and serve the Response and submissions by 4pm on June 3, 2022. Judgment was scheduled to be delivered on June 6, 2022 at 2. 30pm. Due to the urgency of the matter and to ensure that all documents are not left out in the system, this court directed parties to file physical copies instead of using the court’s email. The court has had difficulties with internet services during that week.

12. The Appellant filed his documents as directed. The Respondent did not file his Response or Submissions by 4pm on June 3, 2022 as directed. As at the time of writing this judgment I have not received any response. Counsel for the Respondent did not alert the court before the lapse of time at 4pm that he was facing any difficulties in filing physical copies of his documents.

Submissions 13. Before considering the submissions, I wish to point out that the PPDT draws its jurisdiction from section 40 of the Political Parties Act, No 11 of 2011 which provides under section 40 (1) (fa) that the Tribunal shall determine disputes arising out of party nominations. Parties seeking the intervention of the Tribunal under that provision must first subject or attempt to subject the dispute to the internal political party dispute resolution mechanisms. Under Section 41 (2) of the said Act, an appeal lies from the decision of the Tribunal to the High Court on points of law and facts.

14. In his submissions the Appellant has highlighted on two major issues and costs, namely;i.The Tribunal (PPDT) entertained an Appeal improperly before it.ii.The Respondent misguided the Honourable Tribunal in the extent of his participation.iii.Costs of this appeal.

15. On the first issue it was submitted that among the documents attached by the Respondent before the PPDT Complaint No E077 of 2022, are the following:i.An Interim Certificate of elected ODM candidate for the Member of County Assembly dated April 20, 2022 and marked JMK1ii.Certificate of Nomination of Elected ODM candidate for Member of County Assembly dated April 20, 2022 and marked JMK2iii.ODM IDRM Statement of Appeal (ODM Appeal Tribunal No 37 of 2022) filed by the Appellant herein and dated April 23, 2022, marked JMK3. iv.Letter to the National Elections Board dated April 21, 2022 marked JMK4. v.A handwritten further Complaint, not marked.vi.Eight pages of WhatsApp screenshot printout, not marked.vii.Judgment of the Tribunal from Tribunal Appeal No 37 of 2022 marked JMK5.

16. It is the submission of the Appellant that among the above documents presented to the PPDT by the Respondent, it is notable that the most important document, certified copies of proceedings from the ODM IDRM is not one of the documents filed before the PPDT. On this issue the Appellant has cited Order 42 Rule 13 of the Civil Procedure Rules on the contents of the Record of Appeal.

17. The Appellant submitted that the PPDT occupied the position of the 1st Appellate Court since the matter had been decided by the ODM IDRM and was coming to PPDT on appeal and that the PPDT did not have the privilege of sitting at the IDRM. He cited Samuel Mathenge Nderitu v Martha Wangare Wanjiru & another[2017] eKLR where the court determined a similar issue.

18. It was submitted that the court in the above cited authority struck out the appeal for being incompetent instead of dismissing it.

19. On the second issue, it was submitted that there is a purpose for the insistence of the law of having among the documents filed during an appeal, the certified copies of the proceedings before the trial court. The Appellant has quoted excerpts of the judgment of the PPDT on the issue of the presence of the Respondent before the IDRM and pointed out that on paragraph 2 of the IDRM judgment it is stated that, “the 3rd Respondent has filed a statement of Response to the Appeal together with his supporting Affidavit.” He also referred to paragraph 8 of the PPDT proceedings where the issue of who was present and who was not present during the IDRM proceedings. The Appellant has invited this court to make a determination on this issue.

20. On the issue of costs, the Appellant submitted that costs follow the event. However, he submitted that his view is that this appeal ought to be allowed with costs to the Appellant.

Determination 21. In determining this matter, I will handle the two issues regarding the completeness of the records of Complaint filed before the PPDT and the lack of participation of the Respondent before the IDRM together. These issues are intertwined. I will also determine whether the PPDT addressed all the issues placed before it.

22. I have read thePPDT(Procedure) Regulations 2017. Regulation 9 (1) provides for Form and Contents of a Complaint as follows:1. A complaint under Regulation 7 shall state –a.the name and address of the complaint;b.the name and address of the respondent;c.the date when the decision or action upon which the complaint is based arose;d.the decision, if any, complained against;e.the ground on which the complaint is presented; andf.the name and address of the advocate for the complainant, if any, which shall be the address for service.

23. Regulation 9 (2) provides that:(2)A complaint shall be –a.Supported by an affidavit by the complainant containing the grounds on which relief is sought and setting out the facts relied on by the complainant;b.Accompanied by witness statements signed by the witnesses;c.Accompanied by copies of any supporting documents to be relied on at the hearing; andd.Signed by the complainant or by a person duly authorized by the complainant.

24. I have considered all the documents filed by the Appellant in this appeal. I have considered the submissions and the authorities relied on. I will base my decision on the three issues highlighted by the Appellant. On the issue that the Appeal before the PPDT was incompetent, I have considered the law as shown in the PPDT(Procedure) Regulations, 2017, specifically Regulation 9 (2) (c). To determine that issue, I have read the proceedings of the PPDT. It is clear to me that the issue relating to copies of the proceedings before the ODM IDRM was a life issue before the PPDT.

25. On May 17, 2022, the proceedings show that PPDT, through its Presiding Member requested for ODM Constitution, Nomination Rules and IDRM decision and proceedings. At 2. 00pm of the same day, Mrs Ochieng holding brief for Mr. Makori for the 1st and 2nd Respondents (being ODM Appeals Tribunal and ODM National Elections Board, respectively) informed PPDT that she had managed to get the Party Constitution and Rules but not the IDRM proceedings. She stated that the documents were bulky and she was trying to upload them. These documents were later served on the other counsel, Mr Shadrack Wambui for the Respondent who was the Complainant before the PPDT and Mr Odindo for the Appellant herein.

26. This record of proceedings is clear that the proceedings from the ODM IDRM were not available to the PPDT. For PPDT to ask to be supplied with the proceedings of the ODM IDRM after hearing the parties and pending delivery of judgment is a clear indication that the Respondent had not filed these proceedings together with his other documents accompanying his Complaint before the PPDT. This lends credence to the issue by the Appellant that the Respondent had filed his Complaint without a certified copy of the proceedings from the IDRM.

27. I have the assertion by the Respondent before the PPDT that he was not aware of the dispute filed in the ODM IDRM. The Appellant claims that the Respondent was served and was present. Mr Odindo submitted before the PPDT that the Respondent was part of the hearing leading to the ruling of the PPDT on April 27, 2022 and that he got a chance to respond to the appeal but did not respond to the appeal.

28. On this issue the PPDT rendered itself thus:“………. The issue for the Complainant’s attendance is questioned and by the text in the decision it is not clear whether he attended or not and as such in cases like where the document is ambiguous, courts have interpreted it against the authors of such documents. We find the Complainant was not accorded a forum to ventilate his side.”

29. Taking the issue further, I have read the decision of the ODM IDRM. On paragraph 2, that judgment reads that: “The 3rd Respondent has filed a statement of Response to the Appeal together with his supporting affidavit.” The 3rd Respondent under reference is the Respondent in this Appeal. Again, the said judgment reads that “There was no representation for the 2nd and 3rd Respondents.”

30. The Judgment further on the 3rd paragraph from the top on the second unpaginated page, the IDRM stated that:“Counsel for the 3rd Respondent submitted that the election was free and fair and that the voting kits were not manipulated in favour of the 3rd Respondent. it was further submitted by the counsel for the 3rd Respondent that the Appellants have not corroborated their allegations and the evidence adduced fly against the provisions of the Evidence Act. The 3rd Respondent thus prayed for his nomination be upheld.”

31. Reading this judgment with a keen eye, it seems to me that there are typographical errors in reference to 2nd and 3rd Respondents on paragraph 28 above. My reason for saying this is because of the statement that “The 3rd Respondent has filed a statement of Response together with his supporting affidavit.” My interpretation of this leads me to the conclusion that this statement can only refer to an individual. To give this interpretation more emphasis, above quotation of the decision of the ODM IDRM above by its last sentence that “The 3rd Respondent thus prayed for his nomination be upheld” can without a doubt refer to the 3rd Respondent. I come to this conclusion because the other Respondents, being ODM and the Returning Officer Kajiado North are not parties to the nomination and none of them can tell the Tribunal that they pray that their nominations be upheld.

32. It is clear to me that PPDT was unclear as to whether the Respondent participated in the ODM IDRM. What I have stated above shows that he participated. The burden of proof lies on he who asserts. The Respondent claimed that he did not participate in the proceedings of the IDRM. To lay this issue to rest, nothing would have been satisfactory than the proceedings from that body. This would have laid this issue to rest that indeed the Respondent was not a party to those proceedings. In the absence of those proceedings, this court sitting on appeal, will go by the materials placed before it.

33. By commanding the parties to file copies of any supporting documents to be relied on at the hearing, which to my mind includes copies of the proceedings from the trial court/tribunal, the law expects the party to disclose all the materials that party wishes to rely on. This plays the role of disclosure to the other party and also facilitates the court or tribunal in determining the matter with all the facts within its knowledge.

34. I agree with the Appellant in his reliance of the case of Samuel Mathenge Ndiritu case, above and all authorities relied on by the court in that decision. The court struck out the Appeal in that case for the reason that the appeal was incompetent for being filed without attaching the proceedings from the Tribunal. It was the opinion of the court in that case that the omission to attach the proceedings went to the substance of the matter because the court, while sitting on appeal, lacked jurisdiction to entertain the appeal without the proper record of appeal.

35. The Complaint before the PPDT was incompetent, in my view, for failure to comply with Regulation 9 (2) of the PPDT(Procedure) Regulations 2017. PPDT ought not to have entertained that Complaint in that form.

36. It is clear to me that the two issues, whether the record of the Complaint filed before the PPDT in this matter was complete and whether the Respondent participated before the IDRM proceedings have been resolved in favour of the Appellant.

37. I have considered the issue of the standard of proof. I agree with the PPDT that the standard of proof in election disputes is above proof on a balance of probabilities in ordinary civil cases and below proof beyond reasonable doubt in criminal cases. In this matter it is clear to me that PPDT dwelt on the issue of standard of proof in respect to WhatsApp messages and ignored the issues of voting outside the polling stations.

38. I am satisfied that the Appellant has persuaded this court that his appeal is meritorious. Given that there is no evidence to the contrary for the reasons given in this judgment, it is my view that this appeal succeeds. I make the following orders:a.That this appeal is hereby allowed.b.That the judgment and order of the PPDT dated at Nairobi and delivered on May 22, 2022 be and is hereby set aside.c.That each party bears own costs of this appeal.

39. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED AT KAJIADO, THROUGH VIRTUAL PROCEEDINGS, THIS 6TH DAY OF JUNE 2022. S. N. MUTUKUJUDGEIn the presence of:Mr. Odindo for the AppellantMr. Shadrack Wambui for the Respondent.