[2022] KEPPDT 950 (KLR)

Agoro v The National Election Board & 2 others; Independent Electoral and Boundaries Commission (IEBC) (Interested Party) (Complaint E020 of 2022) [2022] KEPPDT 950 (KLR) (Civ) (8 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 950 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E020 of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

May 8, 2022

Between

Peter Odhiambo Agoro

Complainant

and

The National Election Board

1st Respondent

The Orange Democratic Movement Party ODM

2nd Respondent

Alice Weke Winga

3rd Respondent

and

Independent Electoral And Boundaries Commission (IEBC)

Interested Party

Ruling

1. This matter concerns the nomination of the 3rd Respondent as the 2nd Respondent’s Candidate for the Member of County Assembly Kabondo East Ward in Homa Bay County. This follows party primaries held on April 14, 2022. The Complainant and the 3rd Respondent, were contestants in the said primaries. The Complainant was aggrieved by the outcome and challenged the result of the election, and lodged an appeal at the ODM Appeals Tribunal (Appeal No 25 of 2022). Despite the Appeal being heard, the Party Tribunal is yet to give its verdict on the same despite several enquiries from the Complainant.

2. The 1st Respondent issued the 3rd Respondent with a Certificate as the duly nominated Member of the County Assembly, Kabondo East Ward seat and has even forwarded her name to the interested party herein for gazettement.

3. The Complainant proceeded to file an application before this Tribunal challenging the 1stRespondent’s decision to issue the Certificate to the 3rd Respondent, he filed an Affidavit of Service dated May 5, 2022 before this Tribunal, confirming service upon the Respondents. Further, the Applicant served an Application under cover of Certificate of Urgency both dated May 3, 2022, as well as a Statement of Complaint and Affidavits of even date. The Applicant is seeking relief from this Honorable Tribunal.

4. The Respondents filed a Response to the Complainant’s Claim dated May 5, 2022.

5. The Complainant sought the following orders from this Tribunal:a.A declaration do issue setting aside the decision of the 1st Respondent declaring the 3rdRespondent as duly nominated as the ODM Party’s flag bearer for Member of County Assembly, Kabondo East Ward.b.A fresh nomination exercise for member of County Assembly, Kabando East Ward for the ODM Party to be held at the earliest opportunity and/orc.The 1st and 2nd Respondent do issue the Complainant with the nomination certification for the ODM Party for Member of County Assembly, Kabondo East Ward.d.There be orders as to costs.

6. Mr Okoyo Omondi represented the Complainants, while Mr Nyamweya represented the 3rdRespondent, while there was no appearance for the 1st Respondent, 2nd Respondent and the Interested Party.

The Complainant’s Case 7. In the main, the Complainant asks us to nullify the 3rd Respondent’s nomination and, instead, to order a fresh exercise to be conducted by the 1st Respondent.

8. Counsel for the Complainant began by stating that an election is a process and that the ODM Party laid down the rules and procedures required for nominations. These rules are set out in Rule 47 and Rule 43 of the ODM Party Primaries and Nomination Rules. He explained that Rule 43 states that upon vote tally the Presiding Officer shall announce the result in Form9 A and request each of the Agents of the Candidates to append their signatures and take photographs of the same. Moreover, that according to Rule 47 (1) (j) the Presiding Officer should read and publicly declare the results in Form 10 B, and that this was not done in the present case. Furthermore, he stated that the Appeals Tribunal has never delivered a decision and that the 3rd Respondent did not appear in the proceedings.

9. Moreover, he asked, rhetorically, if the nominations were above board then, why didn’t the 3rdRespondent provide, form 9 A and Form 10 B verified by her agents as per the ODM Rules? Counsel submitted that the election was marred by irregularities including allegations of the gadgets going missing, as well as key procedures such as agents of candidates not signing the declaration forms. He submitted, that there was no verification and tallying, and that this eventually affected the votes garnered by the persons who participated in the election. Furthermore, that the election fell short of substantial compliance with the law as was laid in the case of Gatirau Peter Munya v Dickson Kithinji (2014) eKLRCase.

10. Counsel further stated that he had filed a Statement by Karl Max Okoth an ODM clerk who provided evidence from the polling station until the announcement of results.

3rd Respondents Case. 11. Mr Nyamweya began by stating that he entirely relies on the 3rd Respondent’s response as filed. He submitted that the Complainant had not shown the allegations were capable of changing the results of the nomination. Furthermore, that the judgment was pending and hence the Complaint was premature, as the Complainant ought to have waited for the decision of the ODM Appeals Tribunal as provided for under Section 40 (2) of the Political Parties Act, 2011. He further stated that time only started running after the ODM Appeals Tribunal decision and that the Complainant was pre-empting the said Tribunal’s judgement. He further explained that there were so many matters pending before the ODM Appeals Tribunal and that we should be cognizant of that fact in our determination.

12. Moreover, that the 3rd Respondent was also eager for the decision from the Tribunal and that the Standard of Proof borne by the Complainant was one of 75% on a scale of 1 to 100. In addition to that, he questioned how this tribunal would deal with the issues that were raised before it in the Complaint when there was still a pending decision in the lower tribunal. Mr. Nyamweya also stated that the National Elections Board was a party to the proceedings herein. He faulted the Complainant for not annexing a copy of the proceedings of the Party Tribunal, going on to state that the Complainant was guilty of material non-disclosure, hence denying this tribunal the benefit of the proceedings.

13. He further, submitted that the complainant was making generalized allegations and that the complaint was merely a collection of allegations of facts extracted from some evidence and that none of the evidence was admissible. Moreover, that the contestants had an opportunity to avail agents who should have sworn affidavits or given viva voce evidence; and that none of them were presented before the Tribunal.

14. He submitted, that the present complaint must be seen as coming from a party who had lost an election and that it is bereft of evidence, since no single voter had been presented before the Tribunal. Furthermore, that the present complaint was meant to help the Complainant heal from his loss of the nomination. He challenged the jurisdiction of this Tribunal and urged the Tribunal to dismiss the complaint and allow the Party to issue its decision whereupon we would have the basis to hear the matter.

Complainant’s Rejoinder 15. Mr Okoyo in rejoinder stated that parties are bound by their pleadings, including the 3rd Respondent, and that the Complainant had attempted IDRM in the party by filing an appeal in the Party Tribunal (Appeal No 25 of 2022); whose decision was supposed to be rendered within 24 hours of the hearing. Furthermore, that prejudice is to the Complainant since elections take time and resources; and that additional time spent waiting would cause prejudice to the Complainant and deny voters the right to a democratic process. That public interest should therefore be considered in our decision

16. He urged the Tribunal to allow the complaint.

Tribunal’s Analysis And Findings 17. We note that the Party tribunal is yet to deliver its decision in ODM Appeals Tribunal Appeal No 25 of 2022. The issues raised herein are still pending before the said tribunal. We have not had opportunity to appreciate the difficulty of the said tribunal in rendering its decision timeously. From our experience with the ODM Tribunal, so far, such inordinate delays are not common.

18. While we may take jurisdiction under section 40(2) of the Political Parties Act, if there are inordinate delays or frustration at the party IDRM, in this case we wish to give the Party Appeals Tribunal an opportunity to render its decision. This is in keeping with section 40 (2) of the Political Parties Act, 2011; promoting IDRM and internal party democracy; avoiding the dissemination of conflicting decisions by tribunals; and allowing for harmony in the administration of justice. It also allows the parties an opportunity to avail themselves the full length of the judicial appeals process.

19. In light of our foregoing holding, we see no reason to delve into the substantive issues for determination until we have given the Party Tribunal an opportunity to pronounce itself on the matter. Of course, we will not hold our hands for ever. In the interest of Justice, noting the time constraints in the calendar of election events pronounced by the interested party, we will grant the party IDRM 48 hours from the date hereof to pronounce itself on the dispute, failing which we shall proceed and determine the matter on merit.

20. We make no orders as to costs.

Disposition 21. In the upshot we make the following Orders:i.We direct the ODM Party Appeals Tribunal to deliver its Judgement in ODM Appeals Tribunal Appeal No 25 of 2022, within 48 Hours of the date of this ruling, failing which the Political Parties Dispute Tribunal shall be seized of Jurisdiction and determine the matter on merit.ii.The Complainant shall ensure service of this order on the Respondents within 24 hours of its issuance; and file an appropriate return of service.iii.This matter shall be mentioned on Wednesday May 11, 2022 at 6. 00pm virtually to confirm compliance with our orders herein, and for further orders.iv.Interim orders are extended until then.

DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MAY 2022. ___________________________________________HON. DR. WILFRED MUTUBWA OGW C. ARBVICE CHAIRPERSON – PRESIDING____________________________________HON. FATUMA ALIMEMBER______________________HON. WALUBENGO SIFUNAMEMBER