[2022] KEPPDT 974 (KLR)

Abdullahi v National Elections Board Orange Democratic Movement & 3 others; Independent Electoral & Boundaries Commission (IEBC) (Interested Party) (Complaint E078 of 2022) [2022] KEPPDT 974 (KLR) (15 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 974 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E078 of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 15, 2022

Between

Hon Musdaf Hussein Abdullahi

Complainant

and

The National Elections Board Orange Democratic Movement

1st Respondent

The Orange Democratic Movement

2nd Respondent

Hon Hassan Noor Hassan

3rd Respondent

Hon Mohammed Hussein Ali

4th Respondent

and

Independent Electoral & Boundaries Commission (IEBC)

Interested Party

Judgment

1. The Claimant and the 3rd Respondent are members of the 2nd Respondent. The Complainant was issued with a nomination certificate dated 20th April 2022 for the position of Deputy Governor, Mandera County. Notwithstanding, he has come to learn that the 3rd Respondent nominated the 4th Respondent as his Deputy Governor.

2. Aggrieved by the 4th Respondent’s nomination in his place, the Complainant filed this Complaint under certificate of urgency accompanied by a Notice of Motion application supported by his affidavits on record. He seeks the following reliefs from this Tribunal:i.An order quashing the decision of the 1st and 2nd Respondents to replace the name of the Complainant with that of the 4th Respondent as the nominated Deputy Governor, Mandera County.ii.An order directing the Respondents to recognize and ratify the nomination certificate issued to the Complainant on 20th April 2022. iii.An order annulling the nomination of the 4th Respondent as the Deputy Governor, Mandera County.iv.An order directing the 1st and 2nd Respondents to submit the Complainant’s name as the ODM nominee for the position of Deputy Governor, Mandera County.v.Costs of this Complaint.

3. Pursuant to the directions that were issued by this Tribunal in light of the strict timeline for resolution of disputes arising out of nominations, parties exchanged their pleadings and written submissions and this Complaint proceeded to hearing on 13th March 2022 by way of highlighting of parties’ written submissions.

3. The Complainant was represented by Mr. Otieno Advocate and Mr. Onderi Advocate. The 1st and 2nd Respondents were represented by Mr. Nderitu Advocate and Mr. Awele Advocate. The 3rd and 4th Respondents were represented by Mr. Kinaro Advocate, and the Interested Party by Ms. Wanyama Advocate.

The Complainant’s Case 4. It is the Complainant’s case that he paid the requisite nomination fees for the position of Deputy Governor, Mandera County in accordance with the ODM nomination rules and that the ODM National Elections Board (NEB) issued him a valid certificate of nomination. He submitted that the nomination of candidates and issuance of nomination certificate is a process towards realization of Article 38 of the Constitution of Kenya and that the Complainant having been issued with the nomination certificate, his rights thereunder, particularly his right to vie in the forthcoming elections crystallized. His position is that his nomination certificate has never been challenged or disowned.

5. However, notwithstanding that he had a nomination certificate for the position of Deputy Governor Mandera County, he came to learn on or about the 10th May 2022 that the 4th Respondent had been issued with a nomination certificate and that the 4th Respondent’s name had been submitted to the Interested Party, the IEBC, in his place. He challenged the decision to replace his name with that of the 4th Respondent arguing that there was no fair administrative action as he was not informed of the decision to nominate the 4th Respondent in his place yet that decision affected him as the ticket holder. He submitted that his rights under the Constitution were in the circumstances grossly violated. He referred the Tribunal to the finding in Jairus Omaya v. Orange Democratic Movement & Another (2017) eKLR where the court determined that Article 47 of the Constitution must be considered even in nomination processes by political parties

6. The Complainant’s position is that this Tribunal is properly clothed with the jurisdiction to hear and determine this matter as they attempted internal dispute resolution mechanism (IDRM) for the party prior to filing this Complaint in vain. He referred to his letter dated 4th May 2022 which he avers was duly served upon the 1st Respondent but the 1st Respondent did not action the same. According to the Complainant, a letter suffices as a Complaint and in this regard, he relied on the decision in the case of Samuel Kalii Kiminza vs. Jubilee Party & Another (2017) eKLR where the court considered that the contents of the letter in issue would amount to a Complaint and allowed the letter to suffice as an honest attempt at IDRM.

7. The Tribunal was further directed to what the Complainant considered to be contradictory depositions in paragraphs 8 and 11 of the 1st and 2nd Respondent’s Replying Affidavit where one paragraph stated that there was no provision for nomination of Deputy Governor under the ODM nomination rules and another paragraph stated that the ODM issued a certificate of nomination for the position of Deputy Governor.

The 1st and 2nd Respondent’s Case 9. The 1st and 2nd Respondents submitted that they are in support of the preliminary objection to our jurisdiction, noting that Rule 5 of the ODM Appeals Rules 2022 was clear that the ODM Appeals Tribunal was the party organ with jurisdiction to handle nomination disputes, and that Rule 12 of the rules made provision for the mode and procedure of filing an appeal. They submitted that the letter dated 4th May 2022 did not suffice as an appeal and further that service of the same upon the party is also contested.

9. The Tribunal was referred to the Replying Affidavit sworn by Catherine Muma annexing the nomination rules and the notice dated 9th March 2022 to the Deputy Governors on party primaries. They submitted that pursuant to Article 180(5) of the Constitution, it is the Governor to nominate his deputy and that the ODM cannot nominate Deputy Governor on behalf of the Governor. That the ODM nomination rules did not make provision for nomination of Deputy Governor but only for the Governor and that the issuance of the certificate was unlawful. They further submitted that Section 18 stops the party from changing the person nominated as Deputy Governor candidate after the nomination of that person has been received by the IEBC.

10. The Respondents emphasized that the question of nomination of a Deputy Governor is a Constitutional or legal question governed by Article 180(5) of the Constitution and that to that extent, the party is only involved in the nomination of Deputy Governor at the point the Governor tenders his application to the party indicating his preferred choice. The party only becomes aware when the candidate submits his papers to the party, and that the deadline of submission is 16th May 2022 yet the Complainant seems to be already aware of the Governor’s nominee even before the party. It is therefore the Respondents contention that the question of notice or information by the party to the Complainant that his certificate is no longer tenable cannot arise. The party cannot have violated the Complainant’s rights yet the information sought subject hereof was not yet available to the party.

11. The Tribunal was urged to interpret the provisions of the Constitution harmoniously noting that, no one provision of the Constitution, can be interpreted in a manner that undermines other provisions of the Constitution. That nomination of the Deputy Governor is governed by the Constitution and that ODM’s purported nomination was in error. The Complainant cannot assert his rights under Articles 38, 47 amongst other Constitutional provisions whilst undermining the provisions of Article 180(5) of the Constitution. The party maintains that it cannot consent to continue to commit an illegality, and that the risk of proceeding with the illegality would have an impact on and may affect the 3rd Respondent’s candidature in an irreparable manner, and that the Tribunal shouldn’t countenance an illegality in the interests of justice. They relied on inter alia the case of Royal Media Services Ltd & 2 Others vs. Attorney General & 8 Others [2014] eKLR, arguing that the Complainant should not claim legitimate expectation where there is an illegality.

12. The Respondents further raised issue with the averments in the Complainant’s Supplementary Affidavit arguing that the same was not founded on his claim and raised new issues regarding the 4th Respondent’s party membership which the 4th Respondent had no opportunity to rebut. The Respondents position is that the 4th Respondent is a member of the ODM party and that in any event, there is no restriction in the Elections Act or the party nomination rules that the Deputy Governor must be from the same party as the Governor. The Tribunal was informed that it cannot impose a candidate to the 3rd Respondent as that would be against his Constitutional right. Their prayer is that the Complaint be dismissed.

The 3rd and 4th Respondents Case 13. The 3rd and 4th Respondents are in support of the 1st and 2nd Respondents submissions on the preliminary objection, and they submitted that the Complainant being a member of the ODM should be alive to the party structures, party rules and regulations in so far as dispute resolution mechanisms are concerned. The Complainant has not pleaded, that he was not aware that disputes ought to be filed with the ODM Appeals Tribunal established under the party laws, with the mandate to handle disputes arising out of nominations. The Respondents stated that the letter alluded to by the Complainant to constitute IDRM was dead on arrival as NEB had no mandate or jurisdiction to entertain such complaints. They submitted that the provisions of Article 159 of the Constitution did not intend that every procedural process should be flouted, that there was no reason why the Complainant did not apply the party’s laws. They relied on inter alia the case of Wambui & Another v Jubilee Party; Secretary General, Jubilee Party & 2 Others (Interested Party) [2021] eKLR and accordingly maintained that the Complaint is premature.

14. It was further submitted that the 4th Respondent was nominated by the 3rd Respondent to be his Deputy Governor pursuant to the provisions of Article 180(5) of the Constitution. They poked holes on the nomination certificate purportedly issued to the Complainant stating that a section thereof was handwritten ‘Deputy” just before Governor and that it is possible that the certificate was for nomination of Governor and not Deputy Governor.

15. They stressed that the nomination of a Deputy Governor by the Governor was anchored in the Constitution and that there was no room for a third party to purport to nominate the Deputy Governor. That the action by NEB was not founded on the nomination rules as NEB did not have such powers and was therefore invalid, and should the Tribunal allow the prayers sought by the Complainant, the Tribunal would be validating an illegality. They further submitted that the interpretation of the provisions of Articles 38, 47 and 50 of the Constitution must be wholistic without undermining the provisions of Article 180(5) of the Constitution.

16. The 3rd and 4th Respondents stated that the ODM had already conceded that they made a mistake which they have corrected and had they not corrected the same, the 3rd Respondent would have been before the Tribunal. The 3rd Respondent contends that he is okay with his choice of Deputy Governor and that his choice should be respected noting that any contrary position would disenfranchise his supporters.

The Interested Party’s Case 17. The Interested Party is in support of the preliminary objection on jurisdiction.

18. It was further submitted on behalf of the Interested Party that it is the Governor that nominates his/her Deputy and not the ODM party, and that there was no evidence to show that the ODM party had forwarded a name of a Deputy Governor. The deadline of submission was still open until 16th May 2022.

19. They submitted that the Complaint against the interested party was premature and the orders sought against the interested party could not be granted and are for dismissal with costs.

Analysis and Determination 21. We have reviewed the parties pleadings and submissions and isolated the following key issues for determination:-i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to grant?

Whether this Tribunal has jurisdiction to hear and determine this matter? 22. The Respondents have challenged the jurisdiction of the tribunal arguing that there was no effort by the Complainant to invoke the party’s internal dispute resolution mechanism (IDRM). The Complainant maintains that he attempted IDRM but the 1st and 2nd Respondents frustrated the same by refusing to accept service and/or attending to his Complaint thus necessitating the move to this Tribunal. They have relied on their letter dated 4th May 2022 to demonstrate an attempt at IDRM. The Respondents on the other hand have argued that the letter under reference does not constitute IDRM under the ODM Appeals Tribunal procedure rules.

23. The jurisdiction of this Tribunal is grounded on Section 40 of the Political Parties Act (PPA). Section 40(2) of the PPA is express that the Tribunal shall not hear a nomination dispute unless the Complainant has attempted IDRM. The instant dispute being a nomination dispute, the Complainant should demonstrate evidence of an attempt at IDRM.

24. In the case of John Mworia Nchebere & Others v The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022), we issued guidelines on what amounts to an attempt at IDRM. In the stated case, we held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

25. In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto. In the instant case, we have evaluated the pleadings and evidence adduced and we note that the Complainant has stated that he wrote a complaint letter to the party dated 4th May 2022 but the party declined to accept service thereof. He has produced an affidavit of service sworn by Oscar Otieno on the 10th May 2022 stating that the 1st and 2nd Respondents declined to receive service. That due to the fact that deadline was fast approaching, he could not wait for the party’s response in vain and he had no option but to move the Tribunal.

26. We have considered the letter as against the ODM procedure rules and we agree with the Respondents that the letter does not comply with the form of appeal as prescribed. Be that as it may, its contents speak to the elements of a complaint. We note that both the 1st and 2nd Respondent are stated as having refused to accept service thereof. The affidavit of service sworn by Oscar Otieno referred to above states this refusal. This affidavit of service has not been challenged. This in our opinion is an example of a case where the Complainant has demonstrated that the 1st and 2nd Respondents were not interested in engaging with the Complainant with a view to attending to his complaint. They cannot now come and say that the letter was not in the correct form yet they refused to accept it in the first instance. Even if it was in the wrong form and/or addressed to the wrong body, the contents thereof were clear it was a complaint. The 1st and 2nd Respondent should have at least accepted service then responded to the letter advising the Complainant the right way to go. Such was the consideration of the Court of Appeal in the case of Samuel Kalii Kiminza v Jubilee Party & Another [2017] eKLR, where it was observed as follows:-“…25. …. Article 159 (2) (d) of the Constitution enjoins courts in their exercise of judicial authority, to administer justice without undue regard to procedural technicalities. We are therefore of the view that if there was any failure by the Appellant to lodge the appeal in the prescribed format, such failure is easily cured by Article 159 (2) (d) of the Constitution, considering that the substance of the Appellant’s appeal included all the ingredients necessary for one to decipher what his complaint was and the remedies he was seeking. We therefore make a finding that the Appellant filed an appeal with the 1st Respondent’s Appeals Tribunal.

27. Further, we cannot help but note that the Appellant wrote to the 1stRespondent not once but twice and none of these letters elicited any response from the 1st Respondent. The Appellant is a member of the 1st Respondent having paid the requisite fees. The Appellant had also paid Kshs. 250,000/= in order to be eligible to take part in the nomination exercise for the position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1st Respondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters and advise him on the right way to go about the appeal. Having failed to do so we hold that the Appellant was entitled to approach the PPDT and that the PPDT therefore had jurisdiction to hear and determine the matter…”(emphasis ours)

28. We agree with the above observation and we find no basis to depart from the same. In the totality of the foregoing circumstances, noting that there was urgency in the matter and yet the party deliberately avoided and/or refused to accept service of the letter detailing the complaint or advise the Complainant otherwise, and further noting that time was already running out and any further delay would compromise the subject matter of the complaint, we find that we can assume jurisdiction in this case.

Whether the Complaint is merited? 29. The gravamen of the Complainant’s case, is that, he had been issued with a certificate of nomination and was not aware of and/or informed of any decision that led to the nomination of the 4th Respondent in his place, contrary to the dictates of fair administrative action as enshrined in Article 47 of the Constitution as read together with the Fair Administrative Action Act. He believes his certificate ought to be upheld.

30. It is not in dispute that the Complainant was issued with a nomination certificate dated 20th April 2022. We note that the nomination certificate is signed by three party officials including the Chairperson National Elections Board (NEB). The Chairperson NEB has not disowned the certificate. She has, however, sworn an Affidavit dated 12th May 2022 stating that the 1st and 2nd Respondent’s role is limited to communicating the 3rd Respondent’s choice to the IEBC, that there are no forms for nomination for position of deputy governor. She has further stated that the certificate was issued in error, which error was duly communicated and is regretted.

31. Does that, however, mean that we shut our eyes to the unfair manner in which the 1st and 2nd Respondents handled the Complainant? We doubt that the 1st Respondent was not aware of the provision of Article 180(5) of the Constitution at the time of issuance of the certificate. In fact, as we have already highlighted, the Chairman of NEB has stated in her Affidavit that she is alive to the Constitutional provisions on nomination of Deputy Governor. It is thus difficult to fathom why the Chairman NEB would knowingly proceed with an obvious irregularity to the detriment of the Complainant. We equally find it difficult to believe that the party being aware of the provisions of Article 180(5) of the Constitution would have in the first instance issued the Complainant with the nomination certificate as simply put in these proceedings without the knowledge of the 3rd Respondent in this case. Whereas Article 180(5) empowers the Governor to choose his/her Deputy, it is common knowledge that the exercise of that right is ordinarily not an impulsive but a consultative process and the party is usually involved in the same. The party cannot pretend that they were in the dark about it. The 3rd and 4th Respondents have alluded to this consultative process.

32. That said, even if the certificate was issued in error, the dictates of fair administrative action, enjoin the party to inform the Complainant of whatever decision it wishes to make, in respect of what he held as his nomination certificate. Whereas the NEB Chairman in acknowledgement of the error avers that she communicated the error to the Complainant, there is no evidence of any such communication. The Complainant wrote a letter dated 4th May 2022 and there is no evidence that the same was ever responded to.

33. In Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that:-‘… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.’

34. Further in Zaituni Abdallah Kabocho v Jubilee Party [Complaint No 545 of 2017] at par 12, we observed as follows;‘As we have in several cases, including Elijah Omondi v Orange Democratic Movement another Complaint 251 of 2017, political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours. The Claimant was not informed of the reasons the Respondent now puts forward as justifications for removing the Claimant’s name from the list.’

35. The Respondents have in their submissions majorly dwelt on the provision of Article 180(5) of the Constitution which grants the 3rd Respondent the power to nominate his Deputy. This Constitutional right of the 3rd Respondent is duly acknowledged by the Tribunal. We further agree with the Respondent’s submission that Constitutional provisions should be interpreted holistically without causing one provision of the Constitution to undermine the other.

36. We reckon that at the center of this Complaint is the call to uphold the provisions of Articles 47 and 50 of the Constitution in so far as the Complainant’s right is concerned vis a vis a call to uphold the provisions of Article 180(5) of the Constitution in so far as the 3rd Respondent’s right is concerned. In consideration of these provisions, we are of the view that the 1st and 2nd Respondent should have struck a balance even as they were moving towards regularizing what they claim was irregular. Nothing was so difficult to grant the Complainant a hearing prior to arriving at the decision whilst also remaining alive to the rights of the 3rd Respondent under Article 180(5) of the Constitution. We accordingly find that the claim is merited to the extent that the Complainant was not granted a hearing notwithstanding the fact that the party appears to be sanctioning the 3rd Respondent’s choice which obviously affected the Complainant.

37. Having made this finding, we have applied our minds to the timeliness parties submitted, on with a view to establishing whether there is any opportunity to grant any remedies to address the Complainant’s situation. We have in addition considered the 1st and 2nd Respondents and the Interested Party’s submission that pursuant to Section 18 of the Elections Act, the 3rd Respondent cannot substitute his nominee once submitted to IEBC. We note that it has not been demonstrated by way of evidence or otherwise that the name of the 4th Respondent was already sent to the interested party. Counsel for the interested party alluded to the deadline of 16th May 2022 and did not mention that the 4th Respondent’s name had in fact been received by the IEBC. Counsel for the 1st and 2nd Respondent also orally submitted that the date of submission is 16th May 2022, and that in the circumstances the question of notice or information by the party to the Complainant that his certificate is no longer tenable cannot arise. We further take note of the acknowledgment by the Chairman NEB in her Replying Affidavit that the matter can only be cured if the 3rd Respondent opts to nominate the Complainant. Based on the stated facts, we are of the view that there is room for the conduct of an expeditious process towards the regularization of the matter whilst taking into consideration the interests and legal rights of all concerned.

What are the appropriate reliefs to grant? 37. Since the Complainant is justifiably aggrieved as we have already found and is equally in need of protection under Articles 47 and 50 of the Constitution, and also bearing in mind the 3rd Respondent’s rights under Article 180(5) of the Constitution, this Tribunal in the exercise of its discretion to grant appropriate orders in the interests of justice adopts what it considers to be a balanced approach in resolving this dispute in a manner in which all parties hereto will be accommodated.

38. We accordingly order as follows: -i. That the implied decision and/or action by the 2nd Respondent towards invalidating and/or rendering worthless the Complainant’s certificate dated 20th April 2022 without granting him an opportunity to be heard be and is hereby nullified.ii. That the 1st and 2nd Respondents to invite the Complainant and the 3rd and 4th Respondents to an immediate virtual or physical meeting to listen to all the concerned parties and make a determination on the question of validity or otherwise of the nomination certificate that was issued to the Complainant dated 20th April 2022 whilst taking into consideration the relevant laws, and in any event not later than 11am on 16th May 2022. iii. That the 3rd Respondent to immediately consider any representations by the Complainant and the 4th Respondent on the one hand and any representations by the 1st and 2nd Respondents on the other hand, and forthwith exercise his right under Article 180(5) of the Constitution to nominate his Deputy Governor and communicate his decision to all parties not later than 1pm on the 16th May 2022. iv. That the 1st and 2nd Respondent to forthwith forward the name of the Governor and his nominee Deputy Governor to the IEBC not later than close of business on 16th May 2022. iv. That each party shall bear its own costs of these proceedings.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2022. DESMA NUNGO....................................(CHAIRPERSON)DR. KENNETH MUTUMA.............................(MEMBER)FLORA M. MAGHANGA-MTUWETA........................(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)