[2022] KEPPDT 934 (KLR)

Amolo v Orange Democratic Movement National Election Board & another; Ralak (Interested Party) (Complaint E001 (MSA) of 2022) [2022] KEPPDT 934 (KLR) (3 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 934 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (MSA) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 3, 2022

Between

Francis Oduor Amolo

Complainant

and

Orange Democratic Movement National Election Board

1st Respondent

Bernard Ochieng Ogutu

2nd Respondent

and

Mr Derek Ralak

Interested Party

Judgment

Introduction 1. The Complainant is a member of the 1st Respondent Party and has filed a Complaint dated 19/04/2022 accompanied by a Certificate of Urgency and a Notice of Motion Application sworn on the same date together with annexures supporting the application and the complaint. He seeks orders to suspend the provisional certificate issued to the 2nd Respondent by the interested party.

2. He also seeks to set aside the judgment issued by the Internal Disputes Resolution Mechanism Organ of the Orange Democratic Movement party dated 16/04/2022 and the nullification of the party primaries held on the 9/04/2022 and a fresh one be conducted.

3. The Complaint is opposed. The 2nd Respondent has filed a Notice of Preliminary Objection dated 25/04/2022 and maintains that the Appeal is incurably defective as the same is res judicata and it contravenes the civil procedure Act (2010) as the appeal ought to have been filed in the form prescribed under order 42 Rule 1 of the Civil Procedure Rules thus it should be struck off. The Interested Party on the other hand has filed a Replying Affidavit sworn on the 25/04/2022 challenging the allegations raised by the complainant and has equally filed a preliminary objection to the effect that the interested party is a stranger to the appeal and or these proceedings and that the appeal is incompetent, fatally defective, misconceived in law and badly constituted and the same is an abuse of the process of this tribunal.

4. Pursuant to the directions of the Tribunal, the Complaint was heard on 1st May 2022 by way of Written Submissions.

5. The complainant is represented by the firm of Makori Omboga & Co. Advocates, and the 2nd Respondent is represented by Daniel Orenge & Co. Advocates and the Interested Party is represented by the firm of John Kebaso & Co. Advocates.

Complainants Case 6. The Complainant participated in the party primaries held by the 1st Respondent party on the 9/04/2022. He claims that the said exercise was marred by irregularities such as the absence of a voter register, breakdown of the voting gadgets and double voting and violence that was reported in Changamwe Polling Station.

7. He claims that in the process of voting they noted these anomalies in all the three polling stations that the ODM party had assigned i.e Changamwe Social Hall, Changamwe Primary School, and Magongo Primary School.

8. The Complainant contends that the lack of the voter register in the polling stations encouraged double voting from one polling station to another and since there was no ink markings once a voter voted he could easily vote twice.

9. He also claims that there were no polling clerks to assist the Presiding Officer who is the interested party herein thus putting a question on the credibility of the process. He avers that there was a lorry Number KBB 115K white in colour that was ferrying foreigners to Magongo polling station and it brought tension at that polling station whereby chaos erupted and the voting was stopped and his supporters left.

10. The Complainant contends that as a result of the violence and disruptions the results and counting of the votes in the said polling station was never conducted properly and neither was the applicant or his supporters present at the said polling station.

11. It is the complainant’s case that as a result of the violence and disruptions the entire election process was compromised and various election materials were mishandled.

12. That despite all these irregularities, the interested party went ahead and declared the 2nd Respondent as the candidate to contest under ODM party ticket for Changamwe Ward and presented him with a provisional certificate for the seat of Member of County Assembly.

13. Aggrieved and dissatisfied with the interested party’s decision the Complainant lodged a complaint with the Orange Democratic Movement Party Tribunal 1st Respondent herein on 10/04/2022 being Appeal No. 3 of 2022 but he claims that his complaint through a judgment made on the 16/04/2022 was dismissed. He has therefore moved this Tribunal to seek the orders as prayed in the complaint and Notice of Motion Application.

14. He claims that despite there being issues raised on the ipad gadgets being faulty the voting process continued and this compromised the results. He has singled out Changamwe Social Hall where he claims the voter identification gadget (IPAD) experienced a series of breakdowns and several passwords were keyed in which resulted in different results which were not tallying.

15. He maintains that at the end of the exercise he was leading prior to the breakdown of the machines which had given the vote tally as follows:a.Francis Oduor Amolo – 347 Votesb.Bernard Ogutu - 216 Votesc.Irene Karani - 177 Votesd.Francis Haji Oundo - 26 Votes

16. At the end of the polling he was told that he had garnered a total of 417 votes while the 2nd Respondent had 537 votes. He claims that the presiding officer concluded the voting process prematurely.

17. He maintains that the manner in which the nomination exercise was conducted was in gross violation and breach of the Constitution of Kenya and the ODM Party

Primary Rules. 18. He referred to Rule 9 (1) of the ODM Party Primary Rules which states that:“Party primaries shall be conducted using the party’s Register of Voters which shall be derived from the ODM Party Members Register, as certified by the Registrar of Political parties”.He has also referred to Rule 26 on Election material and which requires that the Presiding Officer shall provide each polling center with a hard copy of the Party Register of Voters for the polling center.

19. It is worth noting at this juncture that the Complainant made an application to amend his statement of claim. The same was considered and found not to prejudice any party and therefore has been allowed.

Respondents’ Case 2nd Respondents Case 20. The 2nd Respondent filed a Notice of Preliminary Objection dated 26/04/2022 and a Replying Affidavit dated 22/04/2022. In the Notice of Preliminary Objection, he has raised the issue of res judicata and wants this Tribunal not to determine the matter. The 2nd Respondent did also file a Response to the claim dated 21st April 2022 and served upon the Complainant on the 22nd April 2022.

21. It is the 2nd Respondent’s case that there were three polling stations in Changamwe ward and no irregularities or illegalities were reported by either agents or returning officer of the ODM party personnel.

22. He stated that there was no concrete evidence adduced at the IDRM process linking him to the election irregularities. He avers that the complainant has introduced new evidence before the tribunal which should be disregarded.

23. He contends that the complaint is a review of the IDRM decision in regard to party primaries and maintains that he was properly declared as the winner.

24. He stated that the electronic gadgets used in the primaries had issues and the internet would sometimes go down but the process went on through hot spotting by mobile phones. He had no issue with the non ODM staff helping with the internet connectivity.

25. The 2nd Respondent averred that the ODM election board were not part of the IDRM process but agrees that they were the ones who adjudicated on the matter and majority of the blame on irregularities is on the 1st Respondent’s ODM National Elections Board and not him.

26. The 2nd Respondent contends that the complainant has not demonstrated how his constitutional rights together with those of the people of Changamwe have been infringed. He avers that the issue of delivering judgment by the panelists of the IDRM late was a none- issue and maintained that the same was res judicata, lacked merit and should be struck off.

Interested Party’s Case 27. The Interested Party who is the duly appointed presiding officer for the ODM Party primaries for Changamwe Social Hall filed his replying affidavit on the 25/04/2022.

28. He contends that during the party nominations on 9/04/2022 they used a voter identification gadget containing an official password to a list of the ODM party members entitled to vote during the nominations exercise and the participating contestants.

29. He maintains that the said gadgets were functional and facilitated the election exercise despite interruptions. He maintains that the nomination exercise went on well and finally he announced the results each candidate had garnered which were the correct figures contained in the gadget and which he handed over to the 1st Respondent.

30. He claims to have been impartial during the said exercise and he did not favor any candidate. He only declared the votes the contestants garnered in his polling station and forwarded them to the Returning Officer who collated and announced the winner.

31. He claims that this being an appeal against the judgment of the ODM Party Tribunal it is fundamentally against the Law to enjoin him at this stage. He claims to have followed the ODM Party Primary and Nomination Election Rules in conducting the nomination exercise.

Issues for Analysis and Determination 32. From the submissions by the parties the following issues are for determination:a.Whether the 2nd Respondent and the Interested party’s preliminary objections are merited.b.Whether the Nomination Exercise held on 09/04/2022 was conducted in accordance to the provisions of the ODM Party Primary and Nomination Election Rules.c.Whether the Complainant has discharged the burden of proof to the required standard to demonstrate that the elections were marred with irregularities and illegalities.d.What orders can the Tribunal give in the circumstances.e.Who bears the costs of the suit.

Disposition Whether the 2nd Respondent and Interested party’s preliminary objections are merited. 33. The 2nd Respondent and Interested party have filed Preliminary Objection on points of law challenging the Appeal as being incurably defective, incompetent and misconceived in law. They have raised the issue of form and made arguments on the issues raised in the appeal being res judicata and that the Political Parties Disputes Tribunal is an appellate court.

34. A preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West-End Distributors Limited [1969] EA 696, as one which "consists of a point of law which has been pleaded, or which arises by clear implication, and which if argued as a preliminary point, may dispose of the suit”.The court further stated that; -“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion".

35. The 2nd Respondent filed a Notice of Preliminary Objection dated 26/04/2022 wherein he averred that the matter before this Tribunal is Res Judicata and should be struck out. Res judicata halts the jurisdiction of the Court and that is why it is one of the factors affecting jurisdiction of the Tribunal and therefore it is prudent that we determine it in limine before we delve into the merits of the case before us.

36. This Honourable Tribunal in Complaint 200 of 2017 Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others [2017] eKLR observed as follows as regards to jurisdiction: -“Jurisdiction is what legitimizes a court or Tribunal’s adjudicatory powers over any political party dispute before it. It is what breathes life, not just into the disputes before the Tribunal turning them into justiciable claims, but also validates the orders issued by the Tribunal in the final determination of the rights and interests of the parties to the dispute before the Tribunal. Accordingly, we must first satisfy ourselves that we have the jurisdiction to this complaint or we would be bound to down our tools. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. ”

37. The 2nd Respondent through his Preliminary Objection has termed the Complaint before us as Res Judicata. The Black’s law Dictionary defines res Judicata as:-“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

38. The conditions for the application of the doctrine of Res Judicata were further authoritatively laid down in the case of the Estate of James Karanja alias James Kioi (Deceased) [2014] eKLR as follows:“For the doctrine of Res Judicata to apply, three basic conditions must be satisfied. The party relying on it must show:-a.That there was a former suit or proceeding in which the same parties as in the subsequent suit litigated.b.The matter in issue in the latter suit must have been directly and substantially in issue in the former suit.c.That a court competent to try it had heard and finally decided the matters in controversy between the parties.”

39. It is clear from the foregoing that the doctrine of Res Judicata applies in situations where a current suit is directly and substantially the same with the former suit and the matter was heard and determined by a court or tribunal of competent jurisdiction. The 2nd Respondent herein has averred that since the matter was heard and determined by the IDRM the same should be held as Res Judicata. We hold a contrary view; the internal dispute resolution mechanisms have not been established to be a bar or a hindrance to a party who may want to approach this Tribunal for justice. The same also cannot fall under the purview of Res Judicata, the 2nd Respondent herein made a long shot and stretched the law too far. A party who has been aggrieved by the decision of the National Elections Board has the liberty to approach the Tribunal for recourse and in no circumstance that amounts to Res Judicata.

40. At this point it will be prudent to point out that no party primaries disputes are supposed to be heard and determined by the Tribunal unless the complainant shows that indeed he or she tried to resolve the issue through the internal dispute resolutions mechanism of the parties. Section 40 of the Political Parties Act states 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 nominations.(2)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.”

41. It is therefore our holding that the Complaint before us is not res judicata and the tribunal shall delve into its finer details and determine it on merit.

42. The Political Parties Tribunal is a quasi-judicial entity established under section 39 of the Political Parties Act and has same powers as those of a Magistrates Court it exercises original and appellate jurisdiction in determining complaints raised after party nomination.

43. In Complaint No 250 of 2017 Jamleck Kamau & 4 others v Jubilee Party & 3 others in terms of jurisdiction it was held that: -“We assert that this Tribunal has both original and appellate jurisdiction over disputes from party primaries. Consequently, the Tribunal’s jurisdiction is not in any way affected, by the validity or invalidity of any proceedings before the party’s internal dispute resolution mechanism.”

44. Rule 34(2) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 states as follows: -“The law applicable to appeals before the High Court in civil matters shall, with the necessary modifications, apply in appeals before the Tribunal.”

45. From Rule 34 as stated herein above it is clear that the Tribunal is not strictly guided by the rules of procedure as captured both in the Civil Procedure Act and the Civil Procedure Rules. One of the Tribunal’s objectives is to administer justice and in the interests of furthering that principle this Tribunal hereby rejects the position of the 2nd Respondent in not considering the newly introduced evidence.

46. The issue of form also is cured by Article 159 2(d) which clearly states that “in exercising judicial authority, the courts and tribunals shall be guided by the following principles-d)justice shall be administered without undue regard to procedural technicalities” The same is also captured under Rule 4 of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 on the objectives and guiding principles which states that the Tribunal is to administer justice without undue regard to technicalities.

47. Therefore, this Tribunal finds that both the preliminary objections by the 2nd Respondent and the Interested party are devoid of merit and cannot stand and are therefore dismissed with no orders as to costs.

Whether the Nomination Exercise held on 09/04/2022 was conducted in accordance with the provisions of the ODM Party Primary and Nomination Election Rules. 48. Rule 9 (1) of the ODM Party Primaries rules state that: -“Party primaries elections shall be conducted using the party register of voters which shall be derived from the ODM member register as certified by the registrar of political parties”

49. The Complainant has stated that the Interested Party whose duty is provided for under Rule 18 and Rule 26 of the ODM Nomination Rules is expected to provide each polling center with a hard copy of the party register of voters.

50. He contends that none of the three polling station had the hard copies of the register as required by the ODM Nomination. The Interested Party on the other hand says that they used the IPADs to conduct the said election.

51. We wish to state that the IPAD’s are not hard copy voter registers. The issue of the said registers has not been challenged by the 1st Respondent who should have come clear and explained to the Tribunal on the process of nominations at the polling centres.

52. This Tribunal therefore finds that the Nomination Exercise was conducted without the hard copy registers. As per rule 25 of the ODM Nomination Rules failure to have a voter register certified by the Registrar of Political Parties was a grave irregularity that allowed the voters to even vote twice. These allegations have not been refuted by the Respondents and the Interested Party.

53. As submitted by the Complainant, the 1st Respondent has a constitutional duty to ensure that its elections are simple, accurate, verifiable, secure, accountable and transparent. What emerges in this Complaint, however, is that the nomination exercise conducted by the 1st Respondent on the 9th April 2022 do not come close to meeting the constitutional standard. These nominations were marred by several malpractices which render the nominations unfair, unverifiable and unaccountable contrary to the constitutional as well statutory thresholds, not to mention the 1st Respondent’s own rules.

54. The Court of Appeal in Moses Masika Wetang’ula v Musikari Nazi Kombo [2014] eKLR at 33 held as follows:“It is an accepted fact that no human activity can be perfect. The conduct of an election is therefore no exception. That notwithstanding, however, for an election to be valid, substantial compliance with the law governing that election is mandatory.” (Emphasis Supplied)

55. The 1st Respondent did not adduce any evidence before us in support of their claims that the digital list in the election IPADS they employed in conducting of the party primaries was certified by the Registrar of Political parties and it is the one sent to the commission as required by law and/or was only comprised of ODM party members.

56. Section 28A of the Elections Act provides as follows: -“(1)A political party that nominates a person for an election under this Act shall, at least fourteen days before submitting the party membership list to the Commission under section 28(1), submit the party membership list to the Registrar of Political Parties for certification.(2)The Registrar shall verify the names contained in the party membership list submitted by a political party under subsection (1) and, where the names are of members of that political party, certify the membership list within seven days after receiving the application under subsection (1).”

57. This Tribunal has previously recognized the statutory underpinning of the party membership list in Complaint No 250 of 2017 Jamleck Kamau & 4 others v Jubilee Party & 3 others at para 27“We note that the requirement for submission of party list or party membership list has statutory underpinning, both under section 7 of the Political Parties Act, 2011 and under section 28 of the Elections Act, 2011. We also note that under section 34(d) of Political Parties Act, 2011, the functions of the Registrar of Political Parties is to verify and make publicly available the list of all members of political parties. To “verify” according to Black’s Law Dictionary, means to “confirm or substantiate by oath; to show to be true”. (Emphasis Supplied)

58. In Complaint No 218B Benard Muia Tom Kiala v Wiper Democratic Movement Kenya the tribunal held as follows:“The party list is the narrow gate that grants access to participation in political party affairs. It gains even greater significance in relation to party primaries where it serves as the party’s register of votes. A political party primary or other political party election conducted in disregard of the party membership list is prima facie a sham and is liable to be quashed by the Tribunal when so moved.”

59. We are satisfied that the nominations were unlawfully conducted without any reference to the party register. This infraction permitted non-party members to vote. We hold that party members were disenfranchised by the failure to use the party Register. Nominations are exclusive party-member only affairs. Only those whose names appear in the party Register submitted to the Commission under section 28 of the Elections Act, 2011 are eligible to vote.

60. The Tribunal has had an opportunity to look at the ODM Constitution and the party primary rules and makes a finding that the 1st Respondent breached its own rules while conducting the Nomination at Changamwe ward especially on the issue of the party register.

59. The 1st Respondent who was in charge of the election and who has custody of the electoral material used in the nomination process did not rebut the allegations that digital system employed was faulty and different passwords were keyed in which resulted to different results that were not tallying and/or adding up as was pointed out in Changamwe Social Hall. It was also contended that there were no polling clerks to assist presiding officers. It is a sad picture for a political party of the 1st Respondent’s standing and stature.

62. In Complaint No 48 John Mruttu v Thomas Ludindi Mwadeghu & 2 others the Honourable Tribunal held as follows:“Political parties not only enjoy a constitutional status, but also get funds from the public purse and their members. They owe it to their members to invest in proper systems and employ competent personnel who can conduct primaries efficiently and fairly while allowing adequate time for the party to resolve any disputes arising from those primaries.”

63. We state that the 1st Respondent was not prepared as he undertook a computer enabling voting system under rule 52 of the party primary election rules which used voter gadgets which relied on electricity and internet.

Whether the Complainant has discharged the burden of proof to the required standard to show that the elections were marred with irregularities and illegalities. 64. The complainant has to a large extent discharged the burden of proof to the required standards to show that the elections were marred by irregularities and illegalities.

65. The claims by the Complainant that there were no polling clerks to assist the Presiding Officer who is the interested party herein thus putting a question on the credibility of the process and the allegations that a lorry Number KBB 115K white in colour that was ferrying foreigners to Magongo polling station and it brought tension at that polling station whereby chaos erupted and the voting was stopped were not rebutted. Additionally, on the IPAD gadgets being faulty was not also rebutted a fact which seems to have been tacitly agreed by the 2nd Respondent but who continued to say that the problem was solved by hot spotting via mobile phones. The complainant has discharged his burden of proof and due to the said illegalities and irregularities it is not easy to determine who won the election as it was marred with chaos, faulty technological systems that did not determine to the required threshold that the election was free, fair, transparent, accurate, verifiable, secure and accountable.

66. He has demonstrated that the 1st Respondent did not abide and/or comply with the provisions of its own constitution thus allowing glaring irregularities and illegalities to be experienced during the nomination process.

67. The 1st Respondent though served failed to enter an appearance nor file a defence and as such the allegations made against it were not refuted or negated.

68. The Kenya Legal system is an adversarial system and requires that a party in any suit to respond and deny or agree to the allegations raised against them but the 1st Respondent chose not to reply.

69. In a nutshell, this tribunal finds that the election was not accountable and was held in a noxious environment of violence and technological mishaps. The effect of the wrongs was pervasive and substantially permeated the election and hence there was no declaration of a winner on merit.

70. Be that as it may this Tribunal finds that the Complainant has proved his case to the required threshold and therefore makes the following orders.

What orders can the Tribunal give in the circumstances. 71. The Honourable tribunal concluded in Complaint No 48 John Mruttu v Thomas Ludindi Mwadeghu & 2 others that under section 11(1) of the Fair Administrative Action Act, 2015, the Tribunal can make any order that is just and equitable in any case over which it has jurisdiction. The correct execution of this Tribunal's mandate necessitates the provision of efficient remedies, which implies the most appropriate remedy in each case.

72. We therefore make the following orders: -a.The Judgement issued by the Internal Disputes Resolution Mechanism Organ of the Orange Democratic Movement party on Appeal No. 3 of 2022 dated 16/04/2022 be and is hereby set aside.b.A declaration be and is hereby issued that the 1st Respondent did not conduct free or fair nominations for the position of Member of County Assembly, Changamwe ward on 9th April, 2022. c.A declaration be and is hereby issued that the nomination certificate issued by the 1st Respondent to the 2nd Respondent is null and void and of no effect in law.d.An order be and is hereby issued directing the 1st Respondent to conduct a fresh nomination exercise for the position Member of County Assembly, Changamwe ward, within 72 hours following the pronouncement of this judgment.e.The 1st Respondent is further directed to forthwith submit the name of the duly nominated candidate to the IEBC.f.A copy of this judgment be transmitted to the IEBC forthwith. For the avoidance of doubt, in the event that the 2nd Respondent’s name has already been submitted to the IEBC, the same shall not to be gazetted pending the implementation of this judgment.g.In the interest of party unity, each party to this dispute shall bear their own

costs of this Complaint.

Dated and delivered at Mombasa this 3rd day of May 2022. HON. ERASTUS ORINA(PRESIDING MEMBER)HON. THERESA CHEPKWONY(MEMBER)HON. DANIEL KAGACHA(MEMBER)