[2022] KEPPDT 1054 (KLR)

Gare v National Election Board & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Tribunal Case E017 (KSM) of 2022) [2022] KEPPDT 1054 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1054 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E017 (KSM) of 2022

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

May 6, 2022

Between

John Ombewa Gare

Complainant

and

The National Election Board

1st Respondent

The Orange Democratic Party

2nd Respondent

Trufosa Osewe Odinga

3rd Respondent

and

The Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. This matter concerns the nullification of the nomination of the Complainant as the 2nd respondent’s candidate for the position of Member of County Assembly for West Sakwa Ward. The Complainant and 3rd Respondent were both candidates in the ODM primaries held on the 13th April 2022. The 3rd Respondent was aggrieved by the outcome of the same and Appealed to the ODM Appeals Tribunal (Tribunal Appeal No 13 of 2022). The Tribunal rendered its verdict on the 20th April 2022 allowing the appeal and nullifying the decision of the 1st and 2nd Respondents to award the Nomination Certificate for West Sakwa to the Complainant. The Tribunal ordered for fresh nominations, but the Complainant was later issued with the nomination certificate two days after the lapse of the statutory period upon which the parties sought to conduct nomination.

2. Thereafter, the 1st Respondent directly nominated the 3rd Respondent whose name is to be forwarded for gazettement by the interested party. The Complainant was aggrieved by this decision and approached this tribunal, seeking orders restraining the 1st Respondent from submitting the name of the 3rd Respondent to the IEBC pending the hearing and determination of his application and complaint.

3. Interim orders were granted restraining the 1st Respondent from submitting the 3rd Respondent’s name to the Interested Party, pending the determination of the matter before us. The matter came up for hearing on 4th May 2022 when the parties argued the matter orally before this Tribunal.

4. The Complainant was represented by Mr. Oketch, while the 3rd Respondent was represented by Mr. Arika. Advocates for the Complainant confirmed filing an Affidavit of Service upon the Respondents.

5. Mr. Oketch for the Complainant began by explaining, that on the 13th April 2022 there was a nomination for West Sakwa and that the Complainant was declared the winner with 694 votes; with Aringo Odere garnering 602 Votes; and the 3rd Respondent getting 533 votes. He stated that these were the results declared by the Returning Officer and that the decision was nullified by the ODM Appeals Tribunal. Furthermore, by dint of the ruling of the Tribunal, there was to be a fresh nomination which did not happen, and that two days later the Complainant was issued with a final certificate of nomination by the National Elections Board of the ODM party. The Certificate was dated 13th April 2022.

6. Counsel explained, that all the Certificates issued were dated 13th April 2022, since all the nominations by the in Siaya county, were held on that date. He submitted that parties are bound by their pleadings and that the only persons who could challenge the certificates or deny their legitimacy are those who issued them. He avers that the notice of 27th April 2022 issued by the Party in violation or disobedience of the decision of its judicial organ, and that there is no justifiable basis for nominating anyone else.

7. Further, that the nomination certificate for the Complainant was duly signed by NEB which is the appropriate body in election matters and confirms the legitimate expectations of the Complainant. Additionally, that once a certificate was issued to him he had a legitimate expectation that he would be consulted before any decision. It was the Complainant’s allegation that the 1st Respondent erred by awarding the direct nomination ticket to the 3rd Respondent. Counsel stated that he did not understand why the 3rd Respondent would be awarded the direct nomination certificate without the Complainant being giving an opportunity to be heard.

8. In addition to that, he argued, that the arbitrary decision of awarding the certificate to the 3rdRespondent without consulting him violated his right to fair administrative action as well as the rules of natural justice. He stated that this court had the power to quash that decision. He also pointed out that the 3rd Respondent’s Certificate was dated 25th April 2022 yet the decision to award was made on the 27th April 2022.

9. On the issue of the Preliminary Objection, by the Respondents, counsel explained that the decision to award was made on the 27th April 2022 and being vigilant; the Complainant filed a letter addressed to the party on the 29th April 2022.

10. Furthermore, that the letter was proof showing compliance with the requirements of the Political Parties Act in regard to showing an attempt at IDRM. He stated that the 3rd Respondent was position 3 in the election and he wondered why she was awarded the nomination and that the process for issuing a direct nomination was shrouded in mystery.

11. Counsel submitted that Rule 8 of the ODM Party Primary Nomination rules speaks to the hierarchy of the choice of party nomination processes. Further, that the Complainant was not faulted by the ODM Tribunal decision as he was the one who was victimized. He urged the Tribunal to uphold the Complainant’ nomination and annul the 3rd Respondent’s Certificate and that the Tribunal should give effect to the ODM Appeals Tribunal’s decision.

12. Mr. Arika for the 3rd Respondent began by stating that he opposed the Application and that he had filed a Preliminary Objection dated 30th April 2022, as well as a Replying Affidavit and List of Authorities on the same date. He further made reference to Section 40 (2) of the Political Parties Act and stated that IDRM had not been complied with. He went on state that the buck stops with the Complainant to demonstrate that there was compliance. He further submitted that a Supplementary Affidavit was filed without leave but that he had no problem with that. He also noted that the Complainant’s email was addressed to the Tribunal but not to the National Elections Board of the Party. Furthermore, that there was a good range of authorities where the Tribunal has been seized with this issue.

13. Moreover, that the manner of fresh elections to be conducted as ordered by the party’s Appeals Tribunal allowed it to initiate whatever process it wished. In addition, that the Party’s decision and of its organs affirmed the legitimate expectation of all the other aspirants as well as the Complainant as it was in compliance with the orders of the Appeals Tribunal.

COMPLAINANT’S REJOINDER 14. Mr. Oketch explained that the application was dated 27th April 2022 but filed on 29th April 2022 and that he sent the letter to the ODM Party on the 28th April 2022 and that ODM had simply not acknowledged the receipt. Moreover, that where enforcing a fundamental right one can move even by letter. He, therefore, stated there was complete compliance with section 40 (2) of the Political Parties Act.

15. Mr. Oketch posed the question whether failure to comply with IDRM is a fresh matter that should be taken back to the Tribunal? He also drew our attention to the fact that the precedents used by opposing counsel were before the amendment of Section 40 (2) of the Political Parties Act. Moreover, that the issue is not the date of the complaint but the date which it was filed, and that if the Preliminary Objection fails then the Complaint has not been defended at all. Moreover, that opposing counsel have not stated how their client got the certificate in the first place.

16. He urged the Tribunal to allow the Complaint.

TRIBUNAL’S ANALYSIS AND FINDINGS 17. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this court has the requisite jurisdiction to hear and determine this matter.ii.Whether the direct nomination was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

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

Whether this Tribunal possesses the requisite jurisdiction to hear and determine this matter? 19. 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.”

20. The issues raised by the 3rd Respondent in her Preliminary Objection are on the competency of the proceedings brought by the Complainant before this Tribunal. The 3rd Respondent submits that the issue herein is a new matter relating to a fresh nomination. Moreover, that it is an entirely new dispute, which has to first be subjected to the IDRM process in the ODM Party Appeals Tribunal, before being brought before us. And that consequently, this Tribunal lacks the required jurisdiction to hear and determine this matter.

21. The Complainant in response contends that he has approached the Tribunal by virtue of a letter written to the 2nd Respondent and that this was a sufficient attempt at IDRM. Further, that it was the party who refused to receive the letter and that he has therefore been frustrated. In response the 3rd Respondent alleges that the letter by the Complainant cannot be considered as an appropriate attempt at IDRM since the letter was not written to the appropriate party organ and that there was no definitive evidence showing that the letter was received.

22. The issue of jurisdiction is key as it is everything. Indeed, 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.”

23. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

24. In Agnes Mukami and 5 Others Vs Ngewahi And Company (2005) Eklr the court stated that:“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

25. A reading of Section 40 of the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that:40. (1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and a political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners; andf.appeals from decisions of the Registrar under this Act.(2)Notwithstanding sub section (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms”

26. From a reading of the above sections of the law as well as the cited authorities it is clear that the dispute at hand is one between a member of a Political Party and a Political Party and therefore falls within the definition set out in Section 40(1) (b) of the Political Parties Act. The issue is whether the letter by the Complainant can be considered as a sufficient attempt at IDRM.

27. We have held before that a letter sent out setting out grievance is sufficient attempt at IDRM under section 40 (2) of the Political Parties Act, 2011. In Moses Saoyo Kusero v Jubilee Party of Kenya & another (Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that: It is clear that the Claimant’s attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

28. We find that this tribunal has the jurisdiction to hear this matter, and the requirements of the provisions of Section 40 of the Political Parties Act have been satisfied. Therefore, it is our finding that the Complainant has clearly demonstrated an attempt at pursuing Internal Dispute Resolution Mechanisms within the Party by dint of the letter dated 28th April 2022.

29. Service on any organ of the party is sufficient. The party is a corporate entity. We cannot insist on service of specific organs in the party. In any event the bigger picture of doing substantive justice over procedural technicalities as commanded by Article 159 of the Constitution and the overriding principle in section 1, 1A and 3 of the Civil Procedure Rules, 2010 militate in favor of the complainant.

30. The Preliminary Objection is, therefore, dismissed.

Whether the issuance of the Direct Nomination ticket was in substantial compliance with the law? 31. There is no contest that the first nomination process was found to have fallen short of the legal standards and was set aside by the part tribunal. It is also common ground that the said tribunal ordered a repeat of the nomination exercise. It is the implementation of the latter directive of the party’s tribunal that is problematic and the subject of the current proceedings. The complainant expected that a repeat process would involve his participation; while the 1st Respondent sees the direct nomination as being in compliance with the Party Tribunal’s Judgement and orders.

32. Also, 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.

33. It is our view that the Direct Nominations by the Party, failed the test of a free, fair, transparent and accountable process as provided for under Article 81, Article 86 of the Constitution of Kenya 2010; as well as Rule 4 of the ODM Party Primaries and Nomination Rules which provides for the guiding principles aforesaid and requires the Party to conduct Party Primaries and Party Nomination to Party lists in a manner that is democratic, free and fair and provides equal opportunities for all party candidates.

34. We would like to point out that 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.”

Legitimate Expectation 35. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2] where the Supreme Court stated that: -“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

36. Addressing the subject of legitimate expectation, H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation …. Second, clear statutory words, of course, override an expectation howsoever founded …. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

37. A procedural legitimate expectation rests on the presumption that a public authority will follow ascertain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation; that is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created. The representation itself must be precise and specific and importantly, lawful.

38. Once a reasonable expectation exists, the administrator is required to act in accordance with that expectation. It is our view that the 2nd Respondent has denied the Complainant his legitimate expectation to fair administrative action since his concerns were not taken into account and no consultations between the contestants on how the nomination would be conducted. Furthermore, in flagrant violation of the expectation, they issued of a Direct Nomination to the 3rd Respondent without consensus or conducting opinion polls as provided for by the ODM Party Elections and Nomination Rules. We therefore hold that his legitimate expectation was violated.

Fair Administrative Action 39. In the case of Kisumu, High Court, Petition No.1 Of 2017, Inganga Alfred Arunga – Versus - University of Nairobi it was the court’s holding that;” a declaration be granted to the Petitioner that his right of fair administrative action under Article 47(1) of the Constitution was violated when the Respondent arbitrarily and without due process confiscated his degree certificate and refused to release his original transcripts. It was the Petitioner’s submission that by virtue of the fact that the Petitioner was admitted by the Respondent’s University, it signifies that indeed there was a contract entered between the two parties.”

40. It is therefore our view, that the Complainant was never given an opportunity to offer his candidature to fly the Party’s flag despite being an aspirant in the same elective seat as the 3rd Respondent. Further, that Article 47(1) of the Constitution and section 4(1) of the Fair Administrative Action Act provides for a right to administrative action, which is expeditious, efficient, lawful, reasonable and procedurally fair. In addition, Section 4(3) of Fair Administrative Action Act requires a person against whom an administrative action has been taken to be given an opportunity to be heard and to make representations in that regard. The Complainant herein was denied this opportunity; and we find that this was a violation of his fundamental rights.

41. This Tribunal finds that the Complainant has satisfied discharged his burden of proof to the required standard in this matter hence, the Direct Nomination ticket to the 3rd Respondent, was not only illegal but contrary to the principles of Fair Administrative Action, and that it failed to meet the requirements provided for in Articles 27, Article 38 and Article 81 of the Constitution of Kenya, 2010.

42. Our assessment of the facts as a whole draw us to the inescapable conclusion that we must set aside the Direct Nomination exercise that resulted in the nomination of the 3rd Respondent as well as nullify any and all certificates issued to both the Complainant and the 3rd Respondent.

43. In conclusion, while a political party has the right to choose the appropriate method of nomination under Rule 8 of the ODM Election and Nomination Rules. These options are hierarchical. This means that universal suffrage is the last option, if all else have failed and that since the Party had resorted to universal suffrage, it cannot purport to go back to Direct Nomination after the elections have been nullified by the Appeals Tribunal and an order to conduct fresh nominations issued. The same manner of nomination should be used.

44. Furthermore, that the 1st and 2nd Respondent have not explained how they settled on the 3rd Respondent as their candidate. It is our view that whatever process is used, has to take into account the interests of all of the parties involved. It is also our holding that the decision of the party tribunal has not been challenged. The Central committee of the party had no right to interfere or originate the process of fresh nomination as it purported to do. Under Rule 8 and 23 of the ODM Party Primaries and Nomination rules, only the National Elections Board has powers to conduct elections or nominations.

45. We set aside the nomination and order that a fresh nomination be conducted by way of universal suffrage.

Who bears the costs of this matter? 46. 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.

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

DISPOSITION 48. In the upshot we make the following Orders:i.We allow the complaint and direct the 2nd Respondent to conduct a fresh nomination by way of universal suffrage within the next 72 Hours.ii.We nullify the nomination certificate issued to the 3rd Respondent as well as the Nomination Certificate issued to the Complainant herein.iii.Each party shall bear its own costs.

49. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 6TH DAY OF MAY 2022. Hon. Dr. Wilfred Mutubwa OGW C. ArbVice Chairperson – PresidingHon. Fatuma Ali MemberHon. Walubengo SifunaMemberThe Judiciary of Kenya