[2022] KEPPDT 998 (KLR)

Ayoi v Orange Democratic Movement & 2 others (Complaint E047 (NRB) of 2022) [2022] KEPPDT 998 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 998 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E047 (NRB) of 2022

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

May 6, 2022

Between

David Ayoi

Claimant

and

Orange Democratic Movement

1st Respondent

Orange Democratic Movement National Elections Board

2nd Respondent

Kennedy Swaka

3rd Respondent

Judgment

1. The Claimant herein participated in the 1st Respondent’s nomination held on the April 22, 2022 for the post of Member of County Assembly for Gatina Ward where the 3rd Respondent was declared a winner despite allegations of irregularities and election malpractices.

2. Being dissatisfied with the declarations, the claimant filed an Appeal at the 1st Respondents Appeals Tribunal and succeeded and the nomination of the 3rd Respondent and the nomination certificate issued were nullified.

3. Despite succeeding at the Parties Appeals Tribunal the 1st Respondent proceeded and issued the nomination certificate to the 3rd Respondent.

4. The Claimant seeks an order of injunction restraining the 1st Respondent from submitting the name of the 3rd Respondent or any other person to the Independent Electoral and Boundaries Commission as the valid nominee of the 1st Respondent for the position of Member of County Assembly for Gatina Ward.

5. He also seeks orders directing the 2nd Respondent to issue the nomination certificate to him and to proceed and present his name to the Independent Electoral and Boundaries Commission as the ODM Member of County Assembly nominee for Gatina Ward.

6. That in the alternative the Tribunal do issue a declaration that the whole nomination process by the 1st Respondents is a nullity and orders a fresh nomination exercise for Member of the County assembly for Gatina Ward.

7. The claim is opposed by the 3rd Respondent who has sworn and filed an undated Replying Affidavit in response to the claimant’s claim. The 1st and 2nd Claimants did not enter appearance neither did they file a defense in response to the complainant’s Claim.

8. The Complainant was represented by Dome & Kedogo Advocates, the 1st and 2nd Respondents did not enter any appearance and the 3rd Respondents were represented by the firm of Ashioya ,Biko & Kedogo Advocates.

Complainants Case 9. The Complainant and the 3rd Respondent are registered members of the Orange Democratic Movement(ODM) party the 1st Respondent. They were both cleared by the 2nd Respondent party to participate as candidates for nomination for the position of Member of County Assembly Gatina Ward.

10. It is the complainant’s case that despite the elections being marred by extreme irregularities, the 3rd Respondent was declared the winner. The Claimant being dissatisfied with that declaration filed an appeal at the 1st Respondents Appeals Tribunal and succeeded.

11. The nomination of the 3rd Respondent and the nomination certificate he had been issued with was nullified.

12. That in a turn of events the 1st Respondent has again issued the nomination certificate to the 3rd Respondent in clear violation of its own appeals tribunal decision.

13. The Claimant seeks the orders as prayed in the Claim and in the Notice of Motion Application.

Respondents’ Case 1st and 2nd Respondent. 14. The 1st and 2nd respondent were served through their official email and the tribunal has interrogated the affidavit of service by one Kelvin Balongo on May 2, 2022 and was satisfied that the 1st and the 2nd respondent were duly served.

15. Despite service, the 1st and 2nd respondent have failed and / or ignored to respond to the complaint as neither has entered appearance nor filed a response to the complaint.

3rd respondent’s case 16. The 3rd Respondent filed his response to the complaint herein vide his undated affidavit which is on record.

17. In the said affidavit he confirms that he participated in the nomination exercise held on the April 22, 2022 in respect of Member of County Assembly Ward which elections he claims were free, fair and verifiable and were never marred with extensive irregularities as claimed by the complainant.

18. He admits that he was declared the winner having garnered 1395 votes against the Claimants 838 votes. He also admits that the Claimant filed an Appeal with the 2nd Respondent which Appeal nullified his nomination and also nullified the certificate that he was issued with.

19. He admits that he read the judgment of the 1st Respondents ‘s Appeals Tribunal where he states that he noted very pertinent issues highlighted by the 1st Respondents Tribunal that he would like this Tribunal to note which are:i.The Presiding Officer for one Polling Center, Mr. Linford disappeared with the polling kits for a period of two hours and it took the intervention of the Returning Officer for the Presiding Officer to return with the Kits.ii.This cast a lot of question on the integrity of the electoral process.iii.Voting materials including polling kits should not be under the sole preserve of a party (This is paragraph 4 of the Judgment which he has highlighted in yellow)

20. He contends that in conclusion the 1st Respondents Appeals Tribunal based its findings on the issues above and made a finding that the integrity of the election process was interfered with in one Polling Center based on the conduct of the Presiding Officer.

21. He maintains that in no one point did the judgment blame him for either instigating or aiding any irregularities or compromising the integrity of the election process for Gatina Ward.

22. He has criticized the said judgment as being erroneous because the Appeals Tribunal Never relied on any evidence or any corroborative testimony to ascertain the allegations before it to nullify the election.

23. He contends that the matter was referred to NEB and upon consideration of the judgment awarded him with the final ODM nomination Certificate and that in awarding him the 1st and 2nd Respondents were only complying with the recommendations of the ODM Appeals Tribunal of the April 27, 2022 which Tribunal had directed that the judgment be served upon NEB for appropriate action.

24. He further states that by handing him the nomination certificate the 1st and 2nd Respondent deemed it as the most appropriate action to take in the circumstances and they cannot, therefore, be blamed for it. He adds that the NEB of the 1st Respondent passed a resolution on the selection of its candidates for the various positions which included direct tickets after ascertaining the popularity of candidates through opinion polls, Universal Suffrage and nomination consensus.

25. He also alludes to the strict timelines set by the Independent Electoral and Boundaries Commission (IEBC) in its press release of Tuesday April 5, 2022 towards the August 9, 2022 General Elections for the proposition that it was legally sound for the 1st and 2nd Respondents to issue the nomination certificate to him being the popular candidate in Gatina Ward.

26. He maintains that the Complainant’s complaint has no basis and should therefore be dismissed.

27. This Tribunal notes that the 1st and 2nd Respondents did not file a response to the claim herein.

Issues for Analysis and Determination 28. Having read through the pleadings together with the annexures, the following issues are for determination in this claim:i.Whether the 1st Respondent issued the nomination certificate to the 3rd Respondent in clear violation of its own appeals tribunal decision?ii.What orders can the Tribunal issue in the circumstancesiii.Who bears the costs of this claim?

Disposition Whether the 1st respondent issued the nomination certificate to the 3rd respondent in clear violation of its own appeals tribunal decision? 29. The Complainant claims to have moved the 1st Respondents Appeals Tribunal because he was dissatisfied with the manner in which the nomination process for the post of Member of County Assembly Gatina Ward was carried out.

30. After the 1st Respondents Appeals Tribunal heard the matter it gave its judgment on the April 27, 2022 in the following terms;Tribunal’s decision and final orders1. The Appeal filed by the Appellant are merited.

2. The nomination of the 1st Respondent, Kennedy Swaka be and is hereby nullified.

3. The nomination certificate issued to the 1st Respondent, Kennedy Swaka be and is hereby nullified.

4. The judgment be and is hereby served on the National Elections Board for appropriate action noting to keep in line with the necessary timelines issued by the Independent Electoral and Boundaries Commission on the conduct of the nomination exercise.

5. No orders as to costs.

31. In its ratio decidendi the party’s tribunal made a finding that the total turnout was below 1200 yet the votes cast for the complainant were 838 votes and 1395 votes for the 3rd respondent thus exceeding the turnout. The tribunal went further to link this anomaly to the conduct of the presiding officer disappearing with the voting kit. This has not been sufficiently rebutted by the 3rd respondent and the 1st and 2nd respondent being the ones that conducted the primaries have not availed themselves to offer clarity on this anomaly.

32. The judgment was signed by the Chairperson and two members of the Appeals Tribunal and the same has been annexed by both the complainant and the 3rd Respondents in their supporting affidavits and replying affidavits respectively.

33. The 3rd Respondent is seen as criticizing the 1st Respondents Appeals Tribunal decision claiming that it never relied on any evidence to make its findings but he never questioned nor appeal against the said judgment immediately it was rendered neither did he contest the same in the proper forum.

34. He cannot now be seen to be criticizing the Appeals Tribunals Orders for lack of evidence yet he had the chance of giving evidence at the Tribunal contrary to the complaint.

35. The orders were served upon the NEB for appropriate action which the 3rd Respondents wants this Tribunal to believe that the appropriate action was an order to grant him with the nomination certificate.

36. This is a misconception on the part of the 3rd Respondent because the Appeals Tribunal nullified the elections and the certificate issued to him. After nullification of the election and the certificate, the appropriate action would be to conduct another nomination exercise.

37. In Complaint No 47 of 2017 Hezron J Opiyo Asudi & another v Peter Anyang Nyongo & 4 others[2017] eKLR the Tribunal while interpreting its jurisdiction as provided under Section 40 of the Political Parties Act held as thus: -“Clearly, while Sub-Section (1) outlines the delimitation of the Tribunal’s jurisdiction, Sub-Section (2) is emphatic that for that jurisdiction be invoked, the party internal dispute resolution mechanism MUST have first been invoked. Hence, while a matter may out rightly be before this tribunal under Sub-Section (1), the tribunal may decline to assume jurisdiction on the basis that the internal party dispute resolution mechanisms have not been invoked. The requirement for invocation of parties’ IDRM has its rationale. Article 4(2) of the Constitution declares in no uncertain words that Kenya shall be a multiparty democratic State founded on the national values and principles of governance referred to in Article 10. Hence there is need for everyone, this Tribunal included, to promote and protect the multiparty system in our country. This is the rationale of Section 40 of the Political Parties Act; promoting political parties’ internal democracy and autonomy.”

38. The ODM Appeals Tribunal after considering the evidence that had been adduced before it came to the conclusion that the integrity of the elections had been interfered with. They proceeded to nullify the nomination exercise and the certificate of nomination that had been issued to the 3rd Respondent. Any person who would have been aggrieved and/or dissatisfied with the decision would have appealed or made an application for review of the decision and in the instant case none was made. The NEB proceeded to illegally and unlawfully hand the certificate of nomination to the 3rd Respondent in a clear violation of the judgement of their own Tribunal. This Tribunal therefore holds the view that the decisions of ODM Tribunal must be complied with and the utter disregard of it reeks impunity from the NEB. This tribunal is supposed to promote political parties’ internal democracy and autonomy and since the decision of the ODM Tribunal was not challenged and the 1st and 2nd Respondent did not file any response as to why they disregarded the decision of their Tribunal we hereby affirm the decision of the ODM Tribunal and direct that a fresh nomination exercise be conducted.

39. The 1st and 2nd Respondents have not responded to the claim to shed light on the allegations by the 3rd Respondent that the appropriate action they took was to award the nomination certificate to the 3rd Respondent.

40. Thus the allegations of the 3rd Respondent cannot stand and this Tribunal finds that the nomination certificate awarded to him was awarded irregularly and illegally.

41. From the fore going the Tribunal finds that 1st Respondent issued the nomination certificate to the 3rd Respondent in clear violation of its own Appeals Tribunal decision.

42. The claim by the Claimant has merit and the same is allowed.

What orders can the tribunal issue in the circumstances? 43. The Tribunal having allowed the Complaint as presented by the Complainant now issues the following orders:a.A declaration be and is hereby issued that the 1st and the 2nd respondent did not conduct verifiable, free or fair nominations for the member of county assembly Gatina Ward.b.That the nomination certificate issued to the 3rd Respondent by the 1st Respondent be and is hereby nullified.c.An order be and is hereby issued directing the 1st Respondent to conduct a fresh nomination exercise for the position Member of County Assembly, Gatina ward, within 72 hours following the pronouncement of this judgment.d.The 1st Respondent is further directed to forthwith submit the name of the duly nominated candidate to the IEBC.e.A copy of this judgment be transmitted to the IEBC forthwith. For the avoidance of doubt, in the event that the 3rd Respondent’s name has already been submitted to the IEBC, the same shall not to be gazetted pending the implementation of this judgment.f.This being a party dispute and in the spirit of fostering party unity each party shall bear its own costs for the claim.

44. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MAY 2022. HON. ERASTUS ORINA……………………………………………………………(PRESIDING MEMBER)HON. THERESA CHEPKWONY….………………………………………………………(MEMBER)HON. DANIEL KAGACHA…………………………………………………………(MEMBER)