[2022] KEPPDT 1041 (KLR)

Arati v National Elections Board (ODM) & 3 others (Complaint E054 (NRB) of 2022) [2022] KEPPDT 1041 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1041 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E054 (NRB) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 18, 2022

Between

Edinnah Bosibori Arati

Complainant

and

National Elections Board (ODM)

1st Respondent

County Returning Officer

2nd Respondent

Moses Ogeto

3rd Respondent

Orange Democratic Movement Party

4th Respondent

Judgment

Background 1. The complainant and the 3rd respondent are both members of ODM [Orange Democratic Movement] party, the 4th respondent herein. The said 4th respondent is a duly registered political party. The 2nd respondent is an official of the 4th respondent.

2. The 4th respondent, the ODM party, pursuant to its constitution gave a notice to the general public inviting its members, particularly those interested in being aspirants, to apply for nomination as party candidates for the positions of member of national assembly, the senate and the county assembly.

3. The complainant herein is a fully paid up member of the ODM party and one who has diligently and faithfully participated in party activities did on March 13, 2022 decide to vie for the Kilimani Ward Member of County Assembly on an ODM ticket.

4. The complainant having met the requirements set out by the said political party for all aspirants, including payment of registration fees of Kshs 25,000/= which was duly acknowledged by the party through the official issued receipt no 3xxxx6 dated March 13, 2022 expected to participate in the said nominations.

5. The party nominations were scheduled for April 22, 2022, by universal suffrage, but were on the day, marred with alleged violence, threats and intimidation, directed at the complainant.

6. In the face of the foregoing, on 28th April the complainant lodged the complaint herein seeking the following orders:-i.A declaration that the purported announcement of Moses Ogeto as the winner is illegal/and is void ab initio for failure to adhere to the strict provisions of the law, rules and regulations provided by the party.ii.An order to nullify forthwith the purported winiii.An order compelling the ODM party to undertake a transparent, accountable, democratic and an all-inclusive nomination process.iv.The costs of this complaint be provided for.v.Any other relief that this honourable tribunal deems fit to grant

7. The 1st, 2nd and 4th respondents filed their submission on May 9, 2022.

8. The 3rd respondent filed his replying affidavits and response to claim on April 30, 2022.

The Complainants Submission 9. The nomination exercise in issue was litigated before the ODM appeals tribunal which delivered its final decision on April 27, 2022. The complainant is aggrieved by the ruling of said tribunal which she submits erred in law and fact by failing to evaluate, analyze and investigate the evidence tendered by the complainant in reaching its irregular verdict.

10. The complainant submits that she was not heard before the said tribunal which openly favoured the 3rd respondent herein and failed to provide the complainant a fair hearing.

11. In particular the complainant submits that the ODM nomination exercise for the MCA seat in Kilimani Ward Dagoretti North Constituency was not free and fair. The primaries were conducted in an unprocedural manner and were full of irregularities which included rigging contrary to sections 91, 92 of the Constitution and in contravention of the Political Parties Act.

12. The 3rd respondent grossly violated the ODM code of conduct that he signed by involving violence against his opponents especially the complainant herein. The said violence was also occasioned against the presiding officers, and the complainants agents.

13. In addition the said 3rd respondent participated in blatant voter bribery and destruction, defacing and tearing of the complainant's campaign materials. Assault, threats and even interference with the party officials managing the voting during the said nomination.

14. The irregularities proceeded even into the tallying point with tailored results being declared such as the said 3rd respondent being declared as having garnered more votes that the votes cast as reflecting from the kit.

15. The irregularities were so widespread that the process cannot be said to have been one that could express the will of the membership within the ward in issue.

16. In support of her claim the complainant has submitted affidavits sworn by her agents alleging violence and intimidation that they witnessed.

The 1st 2nd and 4th Respondents Case 17. The 1st 2nd and 4th respondents submit that from the evidence on record, it is undisputed that the National Elections Board, an independent and impartial party, did conduct party primaries in Kilimani ward. The exercise was conducted in a simple and verifiable manner that crystallized in the tallying of results by the returning officer Dagoretti ward. The Returning Officer declared the results each candidate garnered in each of the polling stations in Kilimani Ward and the final tally. The complainant has not tendered any evidence rebutting the authenticity or the accuracy of the tallied results announced at the constituency level as the final results.

18. It is further submitted by the said respondents that the complainant alleges that the 3rd respondent and his agents and supporters used intimidation and acts of violence against herself. She bears the evidential burden of proof of these allegations. The said burden does not shift until unless discharged.

19. It is the said respondents submission that in fact the complainant while before the party organs was unable to link the 3rd respondents to the acts of violence complained of and the ODM Appeals Tribunal in its judgment dated April 27, 2022, concluded the complainant had not tendered sufficient evidence to support a conclusion of violent conduct by the 3rd respondent contrary to the party’s code of conduct.

20. In support the 1st, 2nd and 4th Respondents have attached testimonies of Jerusha Mogaka, returning officer Dagoretti constituency, and Evans Ontegi, presiding officer Lavington Primary polling station, both who testified to peaceful elections in Kilimani Ward. Mr. Ontegi, specifically clarified that on arrival at the polling station there was evidence of wear and tear as is likely in a primary school.

21. The said Respondents submit that that the complainant’s evidence of violence as alleged is tenuous at best. The affidavit testimony the complainant wishes to rely upon is a series of generalities identifying a hotchpotch of alleged electoral malpractices. The evidence on record also does not attest to the existence of any criminal act or ensuing proceedings connected with the nomination exercise of 22nd April 2022. The evidence also does not reveal the nature of criminal activity complained of or any victims/ complainants of criminal activity directly or indirectly associated with the nomination exercise. The medical examination report adduced does not disclose any conclusive facts or corroborate any systematic evidence of violence that affected voting or the outcome thereof. There are no police reports or evidence of incidences that warranted police investigations as result of criminal activity experienced during the nomination exercise. Indeed, no conclusive investigations have been carried out or convictions secured as to impute wrong doing on any person.

22. The said Respondents submit that the National Elections Board, undertook nominations in Kilimani Ward by universal suffrage in a fair, credible, transparent and accountable manner.

The 3rd Respondents Submissions. 23. The 3rd respondent submits that it is evident from the judgment of the party appeals tribunal that the said tribunal took into consideration the complainants submissions.

24. He submits that the violence alleged to have marred the voting on the day in issue remains unproven.

25. In addition it is the 3rd respondents submission that the complainant has not shown that any alleged violence impacted the outcome of the voting.

26. He has submitted substantial case law on each of the issues and in conclusion asks that the complaint be dismissed with costs.

27. In addition, the 3rd respondent produced an affidavit alleged sworn by the chief agent of the complainant denying the affidavit that had been produced by the complainant outlining widespread violence during the nomination in issue.

Issues for determination 28. In sifting through the pleadings and submissions which undoubtedly brought out many concerns including reference to numbers attained by various aspirants at different polling points, but which was not an substantially pleaded. We note therefore that the key concern is the alleged violence and irregularities and reliance on the outcome to determine the ticket holder.

29. In the circumstances, the issues for determination before us are:a.Was the decision of the party appeals tribunal lawful and proper?b.What orders should issue?

Analysis Was the decision by the ODM party appeals Tribunal lawful? 30. The complainant submits that the party appeals tribunal did not consider the evidence that she presented. The said party tribunal had in its decision stated that it had considered the evidence presented before it. Pictures can and often do tell a story. Is there a story that is told by the pictures submitted by the complainant that was not considered at the party level? Is the picture so clear that the complainant is justified in faulting the party tribunal? In order to understand this we look into what is presented before us.

31. The complainant submits that there was violence, intimidation and destruction of her campaign material. There are pictures of torn banners and of OB extracts (with somewhat unclear dates) but with at least one police report (clearly indicating that the report was lodged on April 21, 2022) indicating malicious damage to property. These may speak to the alleged intimidation during campaigns. They however do not point to a particular person being culpable of the alleged malpractices.

32. There is included in the complaint bundle a letter dated 21st April addressed to the political party wherein a complaint is raised about conduct of the 3rd respondent during campaigns.

33. This clearly indicates that the complainant had raised concern about violence and intimidation in the campaign period.

34. Even as we take note of this, we note that the video evidence presented from the complainants view shows that the intimidation had been ongoing even as at April 11, 2022 but that an official report was only lodged with the political party on April 21, 2022.

35. We note however, that nothing conclusively links any one person to these alleged campaign offences and further note that the same is called to the attention of the party just day before the scheduled nomination exercise.

36. Election is undoubtedly a process and the complainant herein raised concerns at that stage of the elections. However, we also note that there was no investigation or even evidence tendered by the complainant that could link any one person to the violence.

37. We then look into the actual voting day, to see whether the evidence tendered shows of consequence, that there was such violence and disruption on the voting day that the will of the people could not be clearly and convincingly expressed. Towards this we note that there are several affidavits sworn in support of the complainant. These include by; Victor Owara Osogo of ID No 2xxxxx8, the complainants chief agent; Gloria Bundi an agent to the Complainant; Timothy Okwiri an agent to the complainant; Abdulahi Drame Salim the complainants ground coordinator; Brandon Ochieng another agent to the complainant; Peter Oginga Nyamweya whose role is not defined and Serah Wairimu Wambui another agent to the complainant.

38. They all make general allegations largely to intimidation on the polling day. In addition we note that they speak to police intervention in the course of the day and one speaks to police intervention during the day concluding with escort to the tallying centre. The complainants chief agent for example states at paragraph (g) of his affidavit that a police officer accompanied the presiding officer with the ballots to the tallying point.

39. It is obvious from these affidavits that though there may have been some intimidation, there was available police support.

40. Much as we give requisite weight to these statements we note that they do not state or show that voters were intimidated or even that voting paused.

41. To understand or discern the existence of factors that may have impacted the voter expression we look at the affidavits sworn by two persons who describe themselves as the party clerks and who swore affidavits in support of the complaint.

42. One Faith Sarah Opiyo an ODM clerk alleged the following irregularities:a.The 3rd respondent had four agents per polling station as opposed to the others aspirants who had one agent for each station.b.Non-agents/members being allowed into the voting room.c.Voters being locked out on claims that they had already voted.d.Voters finding their credentials had already been used.e.No emergency contact phone.f.Absence of returning officerg.Absence of security personnelh.Harassment of a Deputy Presiding Officer by the 3rd respondent’s supporters.i.After elections the presiding officer and the kits were accompanied by police officers. The rest of the team we were told to use other means of transport to the tallying center.j.The number of votes did not tally with the results breakdown shared amongst the aspirants.k.The report was handed over to the returning officer without the other clerks’ consent.

43. While the said Faith Sarah decries absence of security personnel she refers to police offices accompanying the presiding officer at the close of elections. We find this a bit confusing and not necessarily supportive of the Complainants case.

44. One Chris Kodhek, also described as an ODM clerk decries the following irregularities;a.Non-agents/members being allowed into the voting room.b.No emergency contact phone.c.Absence of returning officerd.Absence of security personnele.Harassment of a Deputy Presiding Officer by a voter allegedly supported by a candidate.

45. There is no link of any irregularities to the ability of the voters to express their wish. Indeed they speak more to administrative hiccups on the part of the political party. There is in fact no allegation that voters could not vote. The intimation alleged was directed at a fellow aspirant, the complainant herein. But was managed by the presence and with the support of police officers.

46. There is also attached a P3 report showing that one Brenda Mwango reported to the police on 22nd April at 1330 hours. This speaks for itself as to injuries. We are unable to clearly see its relation to the complaint.

47. We also note that there are included pictures of police sitting, men at an entrance behind some bars and these do not speak clearly to any of the allegations raised by the complainant.

48. Can the complainant then be said to have discharged her burden of proof?

49. The Supreme Court of Kenya in Raila Odinga & 5 others v Independent Electoral And Boundaries Commission & 3 others (2013) eKLR at paragraph 195 had this to say.“There is, … a common thread in … comparative Jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause; the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the court to determine whether a firm and unanswered case has been made.”Further at paragraph 196, the court stated,“...where a party alleges non-conformity with the electoral law, the Petitioner must not only prove that there has been non-compliance, but that such failure of compliance did affect the validity of the elections. ....”.

50. InJohn Kiarie Waweru v Beth Wambui Mugo & 2 others [2008] eKLR it was held-“The burden of establishing all these allegations regarding the conduct of the said election and the results announced thereafter is on the petitioner”.

51. Given the authorities cited above, it is clear that in this instant, the complainant has not discharged her burden of proof to the required standard. The irregularities prior the voting are not clearly linked to any one competing aspirant. While the voting day irregularities point more to some shortfalls in administration that were seemingly sorted out ,than to voting outcome.

52. The affidavits by political party officials sworn in support of the 1st 2nd and 4th respondents case deny that the voting day was impacted by illegalities that affected the turnout or even the voting. In fact voting proceeded to the end and tallying was done.

53. In the circumstances we order as follows;a.The complaint herein is dismissed.b.We make no orders as to costs.

DATED THIS 18TH DAY OF MAY 2022. ....................................................M. L. ODONGO(PRESIDING MEMBER)....................................................TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)....................................................DR. LYDIAH WAMBUI(MEMBER)