[2022] KEPPDT 971 (KLR)

Abok v ODM National Elections Board & 3 others (Complaint E055 (NRB) of 2022) [2022] KEPPDT 971 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 971 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E055 (NRB) of 2022

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

May 10, 2022

Between

John Okoth Abok

Complainant

and

The Odm National Elections Board

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Abel Osumba Atito

3rd Respondent

Independent Electoral & Boundaries Commission

4th Respondent

Judgment

1. OnApril 22, 2022, the complainant participated in the 1st and 2nd respondent’s direct nomination exercise for the position of Member of County Assembly (MCA) Utalii Ward. The complainant avers that the nomination exercise was, however, marred with irregularities. He successfully challenged the subject nomination exercise before the 2nd respondent’s Appeals Tribunal (the Tribunal) and the Tribunal nullified the subject nomination vide its decision that was rendered on April 27, 2022 after hearing all parties.

2. The complainant is aggrieved by the fact that to-date, the 1st and 2nd respondents have not to-date acted on the Tribunal decision and he filed the instant complaint seeking the following orders:-i.A declaration that failure by the 1st, and 3rd respondents to comply with the judgment of the Party’s Appeals Tribunal is unlawful and infringes on the political rights of the complainantii.A declaration that the selection of the 3rd Respondent as the duly nominated Member of County Assembly candidate for Utalii Ward, Ruaraka Constituency is null and void for non-compliance with the Judgment of the Party’s Appeals Tribunaliii.An order restraining the 4th Respondent from gazetting and/or clearing the name of the 3rd Respondent as the duly nominated candidate of the ODM party for the seat of MCA, Utalii Ward, Ruaraka Constituency for purposes of 9th August 2022 elections.iv.An order compelling the 1st and 2nd respondents to grant the nomination certificate to the Applicant and to forward his name to the IEBC as the duly nominated candidate for Utalii Ward,OR in the alternative;v.An order directing the 1st and 2nd respondents to conduct a fresh nomination exercise in which the Applicant is facilitated to participate

3. The Complaint is opposed by the respondents who have filed their responses and written submissions.

3. Pursuant to the directions that were issued by this tribunal, the Complaint was heard on May 6, 2022 by way of highlighting of the parties’ written submissions on record. The complainant was represented by Mr. Otieno Aluoka Advocate, the 1st and 2nd Respondent was represented by Mr. Makori Advocate, and the 3rd Respondent was represented by Mr. Ochich Advocate. There was, however, no appearance by the 4th Respondent despite service.

The Complainant’s Case 4. The complainant, having been aggrieved by the nomination exercise that the 1st and 2nd respondents undertook on April 22, 2022 for the position of MCA Utalii Ward, filed a complaint with the ODM Party Appeals Tribunal being Tribunal Appeal Number 35 of 2022 challenging the legality of the subject nomination. After hearing the complaint, the ODM Party Appeals Tribunal delivered Judgment on April 27, 2022 and ordered, inter alia, as follows:-i.That the Appeal herein succeeds in terms of prayer 5(i) onlyii.The interim certificate issued to the 1st Respondent is hereby annullediii.The 3rd Respondent is hereby directed to take appropriate action for purposes of nominating the candidate of Utalii Ward in Nairobi City County in accordance with the ODM Party Election Rules

5. It is the complainant’s submission that he is not aware of what transpired after the afore-stated Judgment, as he did not hear from the 1st and 2nd respondents . He submits that the 1st and 2nd respondents ignored the orders that the Appeals Tribunal issued in its Judgment in Appeal No. 35 of 2022 and his prayer is for this Tribunal to give effect to the same and grant the reliefs sought.

6. The complainant contends that he only became aware later that the 3rd Respondent was awarded the nomination certificate. He brought to the attention of the Tribunal that the nomination certificate annexed to the 1st and 2nd respondents Replying Affidavit which they claim to have issued to the 3rd Respondent is the same certificate dated 22nd April 2022 that had been annulled by the Appeal’s Tribunal.

7. It was submitted that the award of the certificate to the 3rd Respondent was in breach of the Appeals tribunal Judgment, and further that the purported issuance of a direct ticket to the 3rd Respondent was in breach of rule 23 of the ODM Nomination Rules.The complainant further challenged the purported minutes of meeting that was relied on by the 1st and 2nd respondents to demonstrate how the 3rd respondent was awarded the nomination certificate.

8. The complainant relied on judicial authorities including the case of Joseph Obiero Ndiege vs ODM & Anor (2017) eKLR and urged the tribunal to uphold the need for fair administrative action and further the need for full realisation of the fruits of the Judgment of the Appeals Tribunal.

The 1st and 2nd Respondents ’ Case 9. The 1st and 2nd respondents relied on their replying affidavit sworn by Catherine Mumma on 4th May 2022 together with their Written Submissions dated May 5, 2022.

10. The respondents have challenged the jurisdiction of this Tribunal to hear and determine this matter. They submitted that the moment the elections were annulled, the electoral process in respect to that election was completed. That taking this into account, section 40(2) of the Political Parties Act (PPA) provides that a party should first attempt the party’s internal dispute resolution mechanism (IDRM) before moving the Tribunal. It is therefore the Respondent’s submission that the first nomination process having been completed, the complainant should have invoked IDRM.

11. It is the respondents ’ case that the party’s Appeals Tribunal referred the matter back to the 1st respondent to conduct repeat nominations in compliance with the party constitution and rules. That the 2nd respondent’s committee on April 28, 2022 conducted a new nomination process by way of issuing a direct ticket to the 3rd respondent in a manner fully compliant with rule 23 of the party primary election rules. The respondents annexed the resolution of the 2nd respondent’s Central Committee dated April 28, 2022 in that regard.

12. The Tribunal was invited to refer to the case of Samuel Owino Wakiaga vs. ODM & 2 Others (2017) eKLR where it was stated that the moment a matter is referred back to the party and the party exercises its right, that right should be protected. It is the respondents ’ contention that if the complaint is allowed, it would have the effect of usurping legitimate party processes which are statutorily protected and set a very dangerous precedent.

13. The respondents accordingly submitted that the complaint is unmerited and prayed that the same be dismissed with costs.

The 3rd Respondent’s Case 14. The 3rd respondent relied on his replying affidavit and Written Submissions in opposition to the Complaint.

15. It is the 3rd Respondent’s case is that the Complaint is res judicata and contrary to section 7 of the Civil Procedure Act having been determined by the party’s IDRM to the satisfaction of the parties, and that this Tribunal can only be moved where a party is not satisfied with the IDRM determination. He relied on the case of Robert Kulinga vs. Musembi Mutunga & Anor (2022) eKLR where it was held that ‘… the suit was res judicata having been heard and determined by a competent quasi-judicial institution...’

16. The 3rd respondent further submitted that the Tribunal had no jurisdiction to hear and determine the dispute in relation to the fresh nomination process that was undertaken noting that no IDRM had been attempted in respect thereto prior to moving the Tribunal. He submitted that the process had in any event not been challenged. He takes issue with the prayer by the complainant to have the direct ticket issued to him and submits that the same is ridiculous and unfounded.

17. It is the 3rd respondent’s prayer that the Complaint is premature and ought to be dismissed with costs.

The 4th Respondent 18. The 4th respondent neither entered appearance nor filed any response to the Complaint despite service.

Tribunal’s Analysis and Findings 19. We have considered the parties’ pleadings and identified the following issues as falling for our consideration and determination:i.Whether this Tribunal has the requisite jurisdiction to entertain the complaint?ii.Whether the Complaint is merited?iii.What are the appropriate remedies available in the present circumstances?

Whether this Tribunal has the requisite jurisdiction to entertain the complaint 20. The 1st to 3rd respondents aver that this Tribunal does not have jurisdiction to hear and determine this matter for the reason that no IDRM was attempted. The 3rd Respondent further avers that the Complaint is res judicata as the same was already heard and determined at the party’s IDRM. In response to the objections to our jurisdiction, the complainant’s position is that the complaint before the Tribunal is intended to give effect to the Appeals Tribunal’s judgment so that the fruits thereof are enjoyed by the complainant and other aspirants. He contends that there was IDRM and that res judicata does not arise in the circumstances of this case.

21. The jurisdiction of this Tribunal is provided for under section 40 of the PPA which provides as follows:-1. The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and (fa). disputes arising out of party nominations2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

22. We note that in the instantcomplaint, the complainant is essentially aggrieved by what he considers to be the non-compliance with the Judgment of the Appeals Tribunal. The 1st and 2nd respondent on the other hand states that they complied and have taken the Tribunal through the fresh nomination process that was undertaken in compliance therewith.

23. To the extent that the complaint seeks to give effect to the Judgment of the Appeals Tribunal in respect of the nomination exercise ofApril 22, 2022, we do not agree with the 1st and 2nd respondent that we have no jurisdiction over the complaint. The nomination exercise of April 22, 2022 was already subjected to the party’s IDRM vide Appeal Number 35 of 2022 which Appeals Tribunal delivered its decision on April 27, 2022. It is the implementation of this decision that all parties were otherwise satisfied with that the complainant has an issue with.

24. As regards the argument by the 3rd Respondent that the instant complaint is res judicata, we note that the substance of this Complaint does not in essence litigate the same issues that were litigated upon before the 2nd respondent’s Appeals Tribunal Appeal Number 35 of 2022. The Complaint as we have already observed is presented to give effect to the determination that was made in Appeal No. 35 of 2022.

25. Further in any event, in consideration of our original jurisdiction under section 40 of the PPA, we observed as follows in the case of PPDT Nairobi A Complaint No. E020 of 2022 Agnes Nailentei Shonko Wachira vs. John Njoroge Chege where similar claims were made: -“…Article 162 of the Constitution of Kenya 2010 provides on systems of court to include superior courts (Supreme Court, Court of Appeal, and High Court), and subordinate courts established under Article 169 of the Constitution of Kenya. Such subordinate courts include the Magistrates Courts, the Kadhis Courts, the Courts Martial, and any other court or local tribunal established by an Act of Parliament. With due respect to the 1st respondent, the 2nd respondent’s EDRC is not a court and therefore Section 7 of the Civil Procedure Rules does not apply to its proceedings…”

26. We have further considered the case relied on by the 3rd respondent and we note that the finding was to the effect that res judicata arises in respect of only courts and quasi judicial bodies established under an Act of Parliament.

27. In light of the foregoing, we accordingly find that the Complaint is properly before us.

Whether the Complaint is merited? 28. The complainant’s major concern is that the Judgment of the Appeals Tribunal in Appeal No. 35 of 2022 has not been complied with. He submitted that whereas the Judgment directed that the nomination certificate issued to the 3rd Respondent be nullified, the same has not been nullified and that it is in fact annexed to the 1st and 2nd respondent’s replying affidavit. He further avers that whereas the Judgment directed the 1st Respondent to take appropriate action for purposes of nominating the candidate of Utalii Ward in Nairobi City County in accordance with the ODM Party Election Rules, he did not receive any communication from the party on the matter after the delivery of the Judgment.

29. The 1st and 2nd respondents on the other hand aver that they complied with the Appeals Tribunal Judgment and undertook a process leading to the issuance of a direct ticket to the 3rd respondent. They have annexed the subject nomination certificate that was issued, claiming that the same was validated and taken to be the nomination certificate for the electoral area and therefore was for all intents and purposes the nomination certificate issued and valid after the nomination by the 1st respondent following the Central Committee meeting of April 28, 2022.

30. We note that the Certificate of Nomination (marked as Annex C) that was issued to the 3rd respondent after the conduct of a fresh process as alluded to by the 1st and 2nd respondent is dated April 22, 2022. It expressly reads “The National Election Board hereby declares that Abel Atito Osumba of ID No. 20204057 has been duly elected as the ODM Party Candidate for member of County Assembly for Utalii …Ward in the election held on April 22, 2022…” (emphasis ours). Needless to note, reference is still made therein to an election held on April 22, 2022. With due respect to the 1st and 2nd respondents , taking into consideration the express contents of the certificate, we do not find the 1st and 2nd respondents ’ justification of validating the same certificate that had otherwise been nullified convincing. On the contrary, the retention of the same certificate that was otherwise nullified by the 2nd Respondent’s own organ is to us a clear demonstration that the 1st and 2nd respondents did not annul the same in breach of the decision of the Appeals Tribunal. To this extent, we find that the claim on breach of the Appeals tribunal determination is merited.

31. The complainant has further averred that he never heard from the party after the Judgment of the Appeals Tribunal in so far as the conduct of a fresh nomination process is concerned. That he later learnt that the ticket was issued to the 3rd respondent. These averments have not been controverted by the 1st and 2nd respondents who confirmed that a direct ticket was given to the 3rd respondent.

32. We acknowledge that the party constitution allows the 1st and 2nd Respondent to issue a direct ticket. However, noting that the complainant was an aspirant who successfully contested the nominations held on April 22, 2022 that were annulled at the Appeals Tribunal and that there were already other aspirants in the contest who were looking forward to the repeat nomination exercise in accordance with the party constitution, fair administrative action required that the party engages the aspirants in an appropriate nomination method that complies with the party laws and also gives due regard to all aspirants’ interests.

33. In the foregoing circumstances, we find that the Complaint herein has some merit save for the prayer sought without basis to have the nomination certificate issued to him.

34. As a rule, costs follow the event. In the present case, we are of the considered view that each party bears its own costs of these proceedings in the interest of fostering party unity.

Disposition 35. In light of the foregoing, we make the following orders:i.The Tribunal has jurisdiction to preside over this matter.ii.A declaration that the selection of the 3rd respondent as the duly nominated Member of County Assembly candidate for Utalii Ward, Ruaraka Constituency vide the otherwise annulled nomination certificate dated April 22, 2022 is null and void for non-compliance with the Judgment of the Party’s Appeals Tribunaliii.An order restraining the 4th Respondent from gazetting and/or clearing the name of the 3rd Respondent as the duly nominated candidate of the ODM party for the seat of MCA, Utalii Ward, Ruaraka Constituency for purposes of 9th August 2022 elections.iv.An order directing the 1st and 2nd respondents to conduct a fresh nomination exercise that involves the participation of the Claimant, the 3rd respondent and other aspirants that were cleared for nominations in accordance with the party laws not later than 3 days from the date of delivery of this Judgment.v.That each party bears their own costs.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MAY 2022. DESMA NUNGO(CHAIRPERSON)DR. KENNETH MUTUMA(MEMBER)FLORA M. MAGHANGA-MTUWETA(MEMBER)RUTH WAIRIMU MUHORO(MEMBER)