[2022] KEHC 3125 (KLR)

Ayoi v Movement & 3 others; Independent Electoral & Boundaries Commission (Interested Party) (Civil Appeal E014 of 2022) [2022] KEHC 3125 (KLR) (Civ) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3125 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E014 of 2022

JK Sergon, J

July 1, 2022

Between

David Ayoi

Appellant

and

Orange Democratic Movement

1st Respondent

Orange Democratic Movement Party (ODM)

2nd Respondent

National Elections Board

3rd Respondent

Kennedy Swaka

4th Respondent

and

Independent Electoral & Boundaries Commission

Interested Party

Judgment

1. David Ayoi, the appellant herein filed an appeal to the 1st respondent’s Appeals Tribunal to challenge the manner in which the party primaries were conducted and the subsequent issuance of the nomination certificate to the 3rd respondent.

2. The ODM Appeals Tribunal heard and determined the appeal in favour of the appellant. The nomination certificate which was issued to the 3rd respondent on 27/4/2022 was nullified by the ODM Appeals Tribunal and the 1st respondent issued the nomination certificate to the 3rd respondent.

3. The appellant being aggrieved, proceeded to file a complaint before the Political Parties Dispute Tribunal hereinafter referred to as the “Tribunal” to challenge the nomination of the 3rd respondent. The Tribunal heard the complaint and made order that the 1st respondent be restrained from submitting the 3rd respondent’s name to the IEBC as its flagbearer for the MCA Gatina Ward seat and conduct fresh nominations.

4. The 1st and 2nd respondent again, issued the nomination certificate to the 3rd respondent and the appellant moved to the court and cited the 1st and 2nd respondent for contempt of court vide PPDT Miscellaneous Application Number E001 of 2022 where the Tribunal on 20th May ,2022 found the said officials in contempt of court.

5. On 7th June, 2022 the Tribunal heard the complaint and made orders that it affirms that the 1st and 2nd respondent have now carried out fresh nominations exercise in compliance with the orders of the Tribunal and that the orders of citation of contempt and committal are lifted.

6. The appellant was again aggrieved and he preferred this appeal and put forward the following grounds:a)That the Learned Tribunal erred in law and in fact in holding that the 1st and 2nd respondents did not err in deciding to issue a direct ticket to the 3rd respondent when the same Tribunal had ordered fresh nominations.b)That the Learned Tribunal erred in fact and in law by allowing the 1st and 2nd Respondents to submit the name of the 3rd respondent to the interested party herein before fresh nominations were properly conducted.c)That the Learned Tribunal erred in fact and in law in coming to a conclusion and/or making a wrongful assumption that the 2nd respondent adhered to the process leading to the forwarding of the 3rd Respondent’s name to the interested party herein for gazettement.

7. This court gave directions to have the appeal disposed of by written submissions. I have re-evaluated the arguments presented before the Tribunal. I have also considered the rival written submissions. The four grounds of appeal put forward by the appellant revolve around two main grounds:i.Whether the 1st and 2nd respondents purged their contempt as eventually determined by the PPDT on 7th June 2022;ii.Whether the appellant’s political rights were violated by the decision of the Political Parties tribunal

8. As regards the first ground of appeal, it is the submission of the appellant that,according to the rules, a due diligence exercise must be conducted before a direct ticket is issued, as the second respondent allegedly did. However, the Tribunal found that the process was legal despite the fact that there was no such exercise because the respondents failed to present any supporting documentation.

9. The appellant submitted that there is confirmation that there is only one candidate on the party ticket, that the issuance of such direct ticket is intended to achieve the 2/3 gender principle, that the rules further specify what the due diligence exercise should take into account and include consensus of the candidates, credible research is done in the relevant electoral areas through scientific survey,

10. The appellant cited rule 23 (4) of the party nomination rules also sanctions the transition from universal suffrage to direct nomination, which was accompanied by acts of violence, intimidation, and other measures that prevented the conduct of a free and fair election. The respondents did not present any evidence of such acts of violence or intimidation to the Tribunal, nor did they blame the appellant for them.

11. The appellant contends that there was a legitimate expectation that since universal suffrage was the originally selected method of nominations for the Gatina Ward Member of County Assembly seat then there was no room for switching to any other nomination method. Lord Diplock in Council of Civil Service Union & another v Minister for the Civil Service stated thus:”when legitimate expectation is created and then taken away abruptly without explanation the person to whom it was directed suffers injury”

12. On the other hand, the respondent pointed out that it was crucial to present the orders that the 1st and 2nd respondents were required to follow, which came from the PPDT E047 of 2022 and stated that the 1st respondent was required to conduct a new nomination process for the position of Member of County Assembly for the Gatina Ward within 72 hours of the said ruling's proclamation.

13. The respondent submittedafter the court granted permission, all of the candidates were invited to a consensus meeting, which was held on May 25, 2022. When the consensus failed to produce results, the matter was then forwarded to the second respondent, who called a meeting in accordance with the party's constitution. At this meeting, they noticed that the consensus had failed and moved forward with a direct nomination ticket in accordance with Rule 23 (2) (e) of the party's primary rules.

14. The respondent submitted that unless the court or Tribunal ruled otherwise, it was necessary to follow the party rules to determine how to make new nominations after an election was declared invalid.

15. On the second ground the appellant submitted that the respondent’s actions were designed to prevent the appellant from participating in affairs of the ODM party to which he is a member and that denying him a chance to fairly compete for the party ticket curtailed the enjoyment of his political rights as contemplated under Article 38 of the Constitution.

16. It is the appellant’s submissions that the respondents did not provide the appellant with any explanation for restricting his rights, let alone a valid one, and that the decision to issue a direct ticket was made arbitrarily and without cause.

17. The respondent on the other hand reiterates that in this situation, Rules 8 and 23 of the Party's Rules applied and were strictly adhered to. According to the respondent, if the appellant believed that the actual procedure used to arrive at the direct ticket was flawed, which they claim wasn't the same, that would constitute a new cause of action, which he is free to investigate by filing a new complaint with the party's IDRM and taking the matter up on appeal with the PPDT and the High Court.

18. I have carefully perused the ruling delivered by the Tribunal. The Tribunal was guided by previous pronouncements of the High Court and this Tribunal that the 1st and 2nd respondents that from the time the 1st nominations process was conducted on 22/04/2022 was nullified ,the same ceased to exist in the eyes of the law and that what was ordered by both the ODM appeals tribunal and upheld by this Tribunal was a fresh nomination exercise which has since been carried out to this Tribunal’s satisfaction.

19. I am in agreement with the respondent that that once an election is nullified there will be no election and one had to move back to the rules of the party to determine how the fresh nominations were to be done unless the court or Tribunal directed otherwise.

20. In the case of Thomas Ludindi Mwadeghu v John Mruttu & Another(2017) eKLR Lessit J (as she was then) stated that:“It is the duty of the party to decide one, the process to use to come up with a nominee, and two, who would represent them”

21. It is also apparent that the 2nd respondentconvened a meeting in accordance with the party's constitution, with the party committee present, as well as the National Elections Board. Following the said meeting, it became clear that consensus had failed, so they moved forward with the direct nomination of a ticket in accordance with Rule 23 (2)(e) of the Party's Primaries Rules.

22. It is clear that nowhere was a requirement to repeat the nomination by universal suffrage made as the order for the tribunal was for fresh nominations.

23. I am persuaded by the respondents’ argument that the decision by the 2nd respondent’s central committee to issue a direct ticket to the 1st respondent constituted a fresh cause of action, therefore any party aggrieved by that decision should have first approached the party’s IDRM pursuant section 40 (2) of the Political Parties Act.

24. In the case of Francis Mutuku vs Wiper Democratic Movement - Kenya & Others [2015] eKLR, Mumbi Ngugi J held thus:“The law is clear with regard to circumstances such as are now before me, and courts have expressed themselves quite succinctly on this point; where there are specialised procedures provided by law or the Constitution for the resolution of disputes they should be followed. See in this regard the case of Kones vs Republic & Another ex parte Kimani wa Nyoike & 4 Other (2008)3 KLR (EP); Speaker of the National Assembly vs Njenga Karume (2008) IKLR (EP); Speaker of the National Assembly vs Njenga Karume (2008) IKLR (EP) 425 and Alphonse Mwangemi Munga & 10 Others vs African Safari Club Ltd Petition No. 564 of 2004. ……The circumstances of this case dictate that this Court, despite its wide jurisdiction under the Constitution, does not assume such jurisdiction. The dispute is clearly a dispute that falls within the mandate of the institutions in which the Political Parties Act vests jurisdiction. It involves a member of a political party and his political party. That party has an internal dispute resolution mechanism. The law requires that the said mechanism be exhausted; that a party dissatisfied with the outcome of the internal party dispute resolution process takes his grievance to the Political Parties Tribunal, and if unhappy with the outcome, has a right to appeal to the High Court. It would be to undermine and defeat the mechanism and institutions provided by law, which are underpinned by the Constitution, to hold otherwise.”

25. I have re-evaluated the arguments of both parties presented in the Tribunal bearing in mind that the parties are entitled to demand of this court of first appeal a decision on both questions of fact and of law. I have therefore weighed the conflicting arguments to draw my own conclusions.

26. The court therefore finds that in the prevailing circumstances, the 1st and 2nd respondent have purged their contempt by conducting the nomination exercise afresh by direct nomination in compliance with the Tribunal’s orders. The Tribunal found that by being asked to identify its candidate, the party was given the opportunity to decide its mode afresh after the nullification of the primaries.

27. In the end, this appeal is found to be without merit. The same is ordered dismissed. In the circumstances of this dispute, a fair order on costs is to order which I hereby do, that each party should bear its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:.............................for the Appellant....................for the 1st Respondent...................for the 2nd Respondent....................for the 3rd Respondent.......................for the Interested Party