[2022] KEPPDT 944 (KLR)

Awuor v Orange Democratic Movement Party (ODM) & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E007 (KSM) of 2022) [2022] KEPPDT 944 (KLR) (1 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 944 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E007 (KSM) of 2022

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

May 1, 2022

Between

Peter Ayieko Awuor

Complainant

and

Orange Democratic Movement Party (Odm)

1st Respondent

Erick Omollo

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. This matter concerns the nomination of the 2nd Respondent as Candidate for the Member of County Assembly for Homa Bay Town East Ward in Homa Bay Town Constituency within Homa Bay County. The party primaries were held on 14th April 2022. The Complainant and the 2nd Respondent were contestants in the said primaries. The 2nd Respondent was declared the winner of the contest and awarded the 1st Respondent’s Interim Nomination Certificate. The Complainant was aggrieved by the outcome and challenged the result of the election before the 1st Respondent’s Appeals Tribunal, sitting in Kisumu on the 16th April 2022 in (Appeal No. 24 of 2022. )

2. The ODM Party’s Appeals Tribunal dismissed the Complainant’s Appeal and upheld the nomination of the 2nd Respondent. The Complainant was still disenchanted and moved this Tribunal by way of Complaint, dated 24th April 2022, brought under the cover of a Certificate of Urgency. The Complainant claims to have not received a Copy of the Ruling of that Tribunal.

3. The matter came up for hearing on 27th of April 2022 when the parties argued the matter orally. The Complainant was represented by Mr. Ayieko; Mr. Aguko for the 2nd Respondent; Miss. Khisa appeared for the Interested Party.

The Complainant’s Case 4. In the main, the Complainant beseeches this Tribunal to nullify the 2nd Respondent’s nomination and, instead, to order a fresh exercise to be conducted by the 1st Respondent.

5. The Complainant advanced that there was no voting in 10 of the Polling Centers and that voting started way past 12. 00 noon, and not at 7 .00 am as he had been informed, in a meeting held on 13th April 2022 by the officers of the 1st Respondent. Furthermore, that the voting tablet gadgets arrived with no passwords and that this further delayed the voting process up to 3. 00 pm.

6. The Complainant further avers that the Presiding Officers and Deputy Presiding Officers announced by the ODM National Elections Board were not those who eventually conducted the election and that strangers had taken control of the process. Moreover, that the Presiding Officers, who were taken to preside over the Polling Stations at Marindi Polling Centre, Chika Polling Centre and Ndiru Polling Centre were all related to the 2nd Respondent and that they expressed blatant bias and favoritism.

7. The Complainant avers that the Presiding Officers closed the polling stations before 5. 00 pm wholesome of the members of the party were in the queue waiting to vote and that over 200 members of the party in each polling station were locked out from the nomination process. He claimed that the Officer closed the Marindi Polling Centre at 4. 00 pm, and the Ogande Polling Centre at 4. 00 pm. Furthermore, that the Presiding Officers, took the election gadgets and left for the tallying center at Homa Bay High School at 5. 00 pm without allowing the Agents of the Aspirants; to verify, count and approve the votes cast, for each of the Aspirants, before the Presiding Office presented the tablets and votes at the Tallying Centre.

8. Moreover, the Complainant avers that the 2nd Respondent meted violence to him and his agents, to prevent him from taking part in the election. Furthermore, that the National Elections Board of the Party acknowledged that there had been violence in the said elections.

9. It is the Complainant’s Submission that on 15th April 2022, the Returning Officer of Homa Bay County read a piece of paper and declared the 2nd Respondent as the winner with 530 Votes and the Appellant having 480 votes and that there was no tallying done from the gadgets that were used for voting.

10. The Complainant avers that none of the Candidates know what votes were garnered for HomaBay County (ODM) Party Nominations. Being dissatisfied with the decision of the ODM Appeals Tribunal the Complainant prays for the following orders.i.An Order that the ODM Nominations conducted in Homa Bay Town east Ward within Homa Bay Town Constituency on 14th April 2022 was not free, fair, secure, credible, transparent, accurate, accountable and verifiable in compliance with the Constitution of Kenya 2010, Electoral Laws and the ODM Constitution and Primary and Nomination Rules and therefore that the said election be nullified and a fresh nomination be conducted.ii.Costs of this claim

11. The Complainant complains that he is yet to receive a copy of the ruling of the ODM Appeals Tribunal despite making several attempts at the same. Further that the Complainant’s lawyer has written to the Tribunal asking for the ruling to no avail.

2nd Respondents Case 12. The 2nd Respondent was represented by learned Counsel Mr. Aguko, who filed a Preliminary Objection Dated 26th April 2022 challenging the jurisdiction of this tribunal to hear this matter on the following grounds:i.The Appeal/Complaint as filed and served is incurably defective as it was served on the 26th of April 2022 contrary to the Order (v) of the Order of Tribunal dated 25th April 2022 and is thus in contempt.ii.The Appeal herein offends Regulations 24 (3) of the Orange Democratic Movement Appeals Tribunal (Practice and Procedure) Rules 2022 to which the Appellant is a subscriber and thus applies to him. iii) The Honorable Tribunal therefore lacks jurisdiction

13. Counsel placed reliance on the response filed on the 26th April 2022. He affirmed that a slight delay in the commencement of the nomination exercise affected all the Candidates to the nomination process and not just the Complainant and that the 2nd Respondent would still have won without the delay. Furthermore, that the late arrival of the polling devices, were part of logistical challenges experienced across the country and not just in Homa Bay Town East Ward.

14. The 2nd Respondent submitted that it was in fact the Complainant who had caused violence in the said polling station, and that there existed video evidence of his agents being arrested.Furthermore, that the allegations that the 2nd Respondent’s Relatives were officials in the elections, were untrue and that the Complainant had not provided any evidence in support of these assertions.

15. The 2nd Respondent avers that despite there being an election process and despite the Complainant’s claims of unfairness violence and nepotism in the process that he has not submitted any evidence in support of these allegations. And that whatever information is contained in his Statement of Appeal and Supporting Affidavit are but wild claims which cannot be relied upon.

16. Counsel for the 2nd Respondent further submitted that even though a photo was annexed by the Complainant as Annexure PJA2, there was no evidence connecting the photo to the elections that occurred on the 14th of April 2022. He further submitted that the principles for overturning an election are clearly set out in Bowen David Kangogo vs Sammy Kemoboi Kipkeu &2 Others (2018) where it is stated that“it would be necessary to demonstrate how a figure of 3,436 (winning) votes would have so diminished as to reverse the victory outcome in favour of the Claimant.”

17. The 2nd Respondent argued that a Complainant must strictly prove that there was material or substantial non-compliance with the law; and that the failure to comply with the law affected the validity of the election. On that basis, he stated, that the Complainant has alluded to a number of irregularities that happened during the exercise, however, that there is no evidence attached to the said allegations.

18. Counsel denied the jurisdiction of this Tribunal subject to their Notice of Preliminary Objection dated 26th April 2022 and prays for the Complaint dated 24th April 2022 be dismissed with costs.

Tribunal’s Analysis and Findings 19. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Honourable Tribunal has the Jurisdiction to entertain this Matter?ii.Whether the election was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

20. We will address the issues set out above in the sequence of their listing

Whether this Honourable Tribunal has the Jurisdiction to entertain this matter? 21. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing. Ltd –vs.- West End Distributors Ltd (1969) EA 696, where it was held that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… 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 had to be ascertained or if what is sought is the exercise of judicial discretion.”

22. Mr. Aguko submitted that he had filed a preliminary Objection in this matter because under Order No 5 of this Tribunal’s Order the Tribunal made it mandatory that the Complainant shall serve the Order and Proceedings by 25th April 2022 on all the Respondents and that service was only effected on the2nd Respondent at 11. 45 on the 26th April 2022. The Order was mandatory.

23. In deed the learned court did in R v. Karisa Chengo [2017] eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

24. Article 159 (2) (d) of the Constitution provides that courts shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities. We can think of no better example of a technicality than in this instance. The Complainant herein needs to be given an opportunity to defend her Complaint. Accordingly, we dismiss the Preliminary Objection and rule that we have the jurisdiction to hear this matter.

Whether the election was conducted in substantial compliance with the law? Burden Of Proof 25. In Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Other (2012) eKLR:"Section 112 of the Evidence Act Chapter 80 of the Laws of Kenya provides: “In civil proceedings, when any fact is especially within the knowledge of a party to those proceedings, the burden of proofing or disproving that fact is upon him”

26. It was also stated in Joho v. Nyange & another (2008) 3 KLR (EP) 500 that:“The burden of proof in election petitions lies with the Claimant as he is the person who seeks to nullify an election. While the proof has to be done to the satisfaction of the court, it cannot be said that the standard of proof required in election petitions is proof beyond reasonable doubt. Like in fraud cases, the standard of proof is higher than on a balance of probabilities and where there are allegations of election offences a very high degree is required.”

27. In ordinary proceedings the law is clear on where the burden of proof lies. This is well captured under the Evidence Act, Sections 107, 108 and 109 which provide as shown below:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

28. The law on the burden of proof in electoral disputes was again restated by the Supreme Court in Presidential Petition No. 1 of 2017 thus:“Thus, a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged. In this case therefore, it is common ground that it is the petitioners who bear the burden of proving to the required standard that, on account of nonconformity with the law or on the basis of commission of irregularities which affected the result of this election, the 3rd respondent’s election as President of Kenya should be nullified.Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant throughout a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting” and “its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”

29. From a reading of the above sections of the Evidence Act as well as the above stated authorities it is clear that the burden of proof lies on the Complainant herein, as it is he who would fail if no evidence were to be given on either side. Generally, the parties agree that an election, just like any other human endeavor, is an imperfect undertaking, fraught with human procedural and administrative frailties. What is in contest is the extent of the breaches and the substantial compliance with the electoral laws. That is the burden that is primarily thrust upon the Complainant to establish.

30. It is with the foregoing established legal propositions in mind that we address the grievances advanced by the Complainant. The Complainant avers that the election failed the test of a free, fair, transparent and accountable process. He states that to date none of the contestants, including the 2nd Respondent, is aware of how many votes he garnered. He blames this situation on the management of the election by the 1st Respondent’s officers and the violence experienced during the election process, which he alleges was caused by the 2nd Respondent.

31. On the issue of irregular opening and closing of polling stations, the Complainant alleges that the elections commenced much later than 7. 00 am, as had been previously assured by the Representative of the National Elections Board (NEB). He submitted that some of the election gadgets were arriving as late as 12. 00 pm and passwords used to operate them arriving as late as 2. 00 pm; specifically, at Ogande Primary Polling Centre and at Ndiru Polling Centre. Nonetheless, no concrete evidence was provided by the Complainant demonstrating that they or their voters were denied an opportunity to vote as a result of any changes in the opening or closing of voting.

32. In the case at hand, it appears that irregularity may have occurred in respect to the some of the polling stations. However, there was no evidence tendered to show that failure to adhere to the polling hours disenfranchised any voter. It is our view, that the Complainant has not sufficiently demonstrated that the election was affected by this breach of the ODM Party Regulations. There is also no evidence proving that late opening or early closing of a few polling stations was intended to disenfranchise the voters.

33. On the allegation of violence and voter intimidation this Tribunal notes that this is a serious allegation amounting to an accusation of commission of an electoral offence. In such a situation the standard of proof required is beyond reasonable doubt. That standard has not been discharged by the Complainant. The election cannot therefore be overturned on these grounds.

34. The right to vote is not a right be trifled with. It signifies the power of the people to pick those they desire to lead them for a given period of time. The importance of protecting the right to vote was emphasized in the South African case of Richter v Minister for Home Affairs and 2 others (2009) ZACC, where it was stated that:“We should accordingly approach any case concerning the right to vote mindful of the bright, symbolic value of the right to vote as well as the deep, democratic value that lies in a citizenry conscious of its civic responsibilities and willing to take the trouble that exercising the right to vote entails.”

35. It goes without saying that he who alleges must prove. It was thus the duty of the Complainant and his witnesses to prove their allegations to the required standard. It was not enough for the Complainant to state that there was violence at the polling stations. He ought to have backed his case with documentary evidence. Only party members are allowed to vote, he therefore needed to avail the register of voters to support his evidence. He failed to do so.

36. In the case of Gatirau Peter Munya (supra), an allegation had been made that the total number of votes cast exceeded the number of registered voters. The Supreme Court held that the allegation was a serious one and ought not to be taken lightly. The Court found the allegation had not been proved stating that:“Can it be said that an electoral register, a public document, is a fact ‘especially’ within the knowledge of the IEBC in the context of the provisions of Section 112 of the Evidence Act? In our view, what is within the power of the IEBC is the custody of the register, and its production will be a matter of course, upon an application by a party who wishes to rely on its contents. We would agree with the learned Judges of Appeal, however, that the evidential burden regarding the contents of the register and declared results lies on the IEBC; save that this burden is activated, in an election petition, only when the initial legal burden has been discharged.”

37. The Court went ahead and concluded that:“In the instant case, the petitioner was content to rely on a document that had no evidential value, when he could have made an application for the production of the authentic register, to aid his cause in discharging the initial burden.”

38. The Supreme Court further illuminated the law on Standard of Proof in Raila Odinga 2013 where it was held that:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”

39. This Tribunal notes that the evidence provided by the Complainant herein did not sufficiently prove his allegations. The averments made in his Claim and Supporting Affidavits are not corroborated by further statements and are not supported by any credible and reliable evidence. The Complainant has not provided any proof of the Polling Officers being related to the 2nd Respondent, nor has he provided any contrary evidence, supporting a higher score in the election results, than those that were declared.

40. In summary, we found that there is no evidence independent of the averments of the Complainant, that voters were disenfranchised by the election, no voters register, nor affidavits sworn by voters demonstrating that they were disenfranchised, were filed by the Complainant herein.

Who bears the costs of this matter? 41. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

42. We thank learned Counsel for their well-articulated submissions, cogent pleadings and patience during the long hours of sittings.

Disposition 43. In the upshot we make the following Orders:i.We dismiss the complaintii.Each party shall bear its own costs.

44. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 1ST DAY OF MAY 2022. ...................................................HON. DR. WILFRED MUTUBWA OGW C. ARB(VICE CHAIRPERSON – PRESIDING).....................................................HON. FATUMA ALI(MEMBER).....................................................HON. WALUBENGO SIFUNA(MEMBER)