[2017] KEHC 5237 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION APPEAL NO. 80 OF 2017

BETWEEN

CAROLINE OJENGE OGOT............................................APPELANT

VERSUS

HYPOLITUS OWITI OBUNGA...................................RESPONDENT

AND

ORANGE DEMOCRATIC MOVEMENT.....1ST INTERESTED PARTY

INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION...........................................2ND INTERESTED PARTY

JUDGMENT

1. This is an appeal and cross appeal from the judgment and decree of the PPDT dated 20th May, 2017. In that judgment, PPDT dismissed a complaint filed by Caroline Ojenge Ogot (Caroline) and directed the 1st respondent, ODM, to hold fresh nomination for MCA for Central Nyakach ward, Nyakach constituency, Kisumu County. Hypolitus Owiti Obunga (Hypolitus) was also affected by the same decision because it meant his nomination certificate was invalidated.

2. After hearing the appeal and cross appeal on 30th May, 2017, the court dismissed both the appeal and cross appeal and upheld PPDT’s decision. The court further ordered the 1st respondent, Orange Democratic Movement to hold fresh nomination within 36 hours thus upholding the PPDT’s decision and reserved reasons for its decision.

3. According to the record and as admitted by the parties, the 1st respondent held nomination forCentral Nyakach Ward for the position of MCAon 26th April, 2017. When it came to results, bothCarolineand Hypolitus claimed victory in the nomination.Caroline claimed to have garnered 2235 votes and said that Hypolitus garnered 1116 votes hence according to her, she emerged the winner and was so declared.

4. When Hypolitus filed a complaint to the IDRM, it did not resolve the issue but he was issued with a nomination certificate. Caroline had also been issued with a final certificate. Hypolitusfiled a complaint before PPDT where he claimed to have won with 1116votes but Caroline had been declared the winner despite having garnered fewer votes,(327). After considering the complaint, PPDT allowed the complaint holding that it was not possible to tell who had won, and directed that fresh nominations be held promoting this appeal and cross appeal.

5. In the memorandum of appeal dated 26th May, 2017, Caroline complained that PPDT erred in failing to appreciate thatHypolitus had not proved that he won the nomination, that PPDT erred by shifting burden of proof to her, that there were no justifiable circumstances for nullifying the nomination results, and that PPDT was wrong in ignoring evidence. Thus arrived at a wrong decision.

6. In the cross appeal, Hypolitus complained thatPPDT erred in nullifying his certificate issued on 29th May, 2017 and that it ignored evidence before it.

7. During the hearing of the appeal, Mr. Ombwayo learned counsel for Carolinefaulted PPDT for nullifying his Clients nomination certificate yet she had won the nomination with 2235 votes against Hypolitus’ 327 votes. He referred to the affidavit of the returning officer to support their case. He also referred to the tallying sheet which showed that Caroline had garnered 2237 votes against Hypolitus’ 327 votes. He therefore urged that the appeal be allowed and Caroline’s certificate be reinstated.

8. Mr. Omollo, learned counsel forHypolitus submitted that his client produced evidence before the PPDT to demonstrate that he had won the nomination with 1116 votes which were the highest votes and should have been declared the winner. According to Mr. Omollo, Caroline garnered 327 votes and therefore she did not deserve to be declared the winner. He also leaded that his client’s cross appeal be allowed.

9. I have considered this appeal and cross appeal as well as submissions by counsel. I have also perused the record myself. What is clear is that both the appellant and respondent claim to have won the nomination. Each has exhibited a tallying sheet to show the votes garnered.Caroline claims to have garnered2237 votes against her opponent’s 1116 votes, while Hypolitusclaims to have garnered 1116 votesagainstCaroline’s 327 votes.

10. Both parties to this appeal were issued with certificates making it difficult to ascertain who had won. The purpose for which Political Parties carry out nomination, is to allow party members exercise their democratic right to decide who should represent them in an election, and possibly, be their elected leader after election. In carrying out nominations, political parties are supposed to embrace democratic principles by holding open free fair and credible nominations. Article 91(1)of the constitution binds political parties to promote principles and objects of the constitution. These principles and objects include democracy and the right to exercise civil and political rights to vote and elect leaders of their choice.

11. The Political Parties Act binds political parties to these principles of democracy. Rule 18. 6 of the ODM Party’s nomination Rules provides thatpresiding officers shall count and tally votes cast at each polling stations and forward them to the constituency returning officer who shall make a final tally before announcing the result of the elections.

12. The appellant, Caroline, has attached a handwritten tallying sheet showing only totals. It has no polling centers. It shows that she garnered 2237 votes and the respondent, Hypolitus, got 1116 votes. On the other hand, the tallying sheet produced by the respondent is typed and has all polling centers and votes garnered by each candidate. It is not, however, signed by the presiding officer or returning officer, it is only signed by agents.

13. With this sort of evidence, it is not possible to tell, first, which tallying sheet is the official one, and it could not be said with certainty that a particular candidate between the appellant and respondent won. The PPDT Could not ascertain either, the will of party members of Central Nyakach Ward.

14. I have perused the judgment of PPDT and noted that it considered all these facts and came to the conclusion that it was not possible to tell which tallying sheet was the official one, that it could also not understand why two certificated were issued yet one person was supposed to have won.

15. I have given due consideration to this appeal, perused the record and evaluated the evidence on record. I am satisfied that PPDT arrived at the correct decision I see no reason to interfere.

16. Dated, Signed and Delivered at Nairobi this 2nd Day of June 2017

E C MWITA

JUDGE