[2022] KEPPDT 1063 (KLR)

Gare v ODM National Elections Board & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Tribunal Case E017 (KSM) of 2022) [2022] KEPPDT 1063 (KLR) (4 July 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1063 (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

July 4, 2022

Between

John Ombewa Gare

Petitioner

and

ODM National Elections Board

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Trufosa Osewe Odinga

3rd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Ruling

1. This Tribunal delivered its judgment in this matter on the 6th of May 2022. Among other orders issued the Tribunal directed the 2nd Respondent to conduct fresh nominations by way of universal suffrage within 72 Hours. The Respondents failed to comply with the said decree. Aggrieved by our Judgment, the Respondents pursued an Appeal at the High Court in Kisumu being Election Appeal No 001 of 2022 and further to the Court of Appeal, being Election Appeal 002 of 2022. The Court of Appeal upheld the decision of this Tribunal. An application for review of our orders was also unsuccessful; we dismissed the 1st and 2nd Respondent’s application on May 30, 2022.

2. The 1st and 2nd Respondent did not conduct a fresh election as ordered, but proceeded to forward the name of the 3rd Respondent to the Interested Party, as the candidate for Member of County Assembly, West Sakwa Ward for the ODM Party. The Interested Party, thereafter, cleared the 3rd Respondent to run as the candidate for the aforementioned seat. The Applicant was aggrieved by these actions and instituted the present application in principal seeking to stop the publication, gazettement of, and the printing of ballot papers bearing the name of the 3rd Respondent as a candidate in the 9th August General Elections, as well as seeking enforcement orders for our judgment issued on May 6, 2022.

3. The Applicant instituted the present claim by filing a Notice of Motion Application under cover of Certificate of Urgency, as well as Supporting Affidavit all dated June 24, 2022. Additionally, he filed a further affidavit dated June 30, 2022.

4. In response and reply thereto the 1st and 2nd Respondents filed a Replying Affidavit while the 3rdRespondents filed Grounds of Opposition dated June 30, 2022. Additionally, the Interested Party filed Grounds of Opposition dated June 28, 2022.

5. This matter came up for hearing on June 30, 2022, when the parties argued the matter orally. The Applicant was represented by Dr Miyawa; Mr Arika represented the 3rd Respondent while Mr Anyoka represented the Interested Party.

6. The Applicant sought the following orders from this tribunal:i.That this Application be and is hereby certified urgent to be heardex parte in the first instance.ii.That pending the inter-parties hearing and determination of this Application, the Tribunal enforces it judgment and orders of May 6, 2022 by issuing conservatory order/injunction directed to and barring the Interested Party (IEBC) from publishing the name of the 3rd Respondent, by way of Gazette Notice of otherwise , or printing ballot papers bearing the name of the 3rd Respondent, or in any other way allowing the 3rd Respondent to participate or run as a candidate for the Member of county Assembly of West Sakwa Ward on the ODM party ticket during the 9th August general elections.iii.That this Tribunal immediately issues any other orders under Section 10 of the Magistrate Court Act, 2015 that it may deem necessary and appropriate to restrain and punish the blatant contempt of court that has been committed by the 1st and 2nd Respondents. The Applicant’s Case

7. Dr Miyawa for the Applicant began his application by outlining the background to this matter. He further stated that there were certain facts that had been admitted by the parties and that our judgment and orders were still in force, there being no stay or successful appeal of the same. It was his submission that in spite of our orders, the Interested Party cleared the 3rd Respondent to run for elections and was in the process of printing and gazetting the name of the 3rd Respondent.

8. It is the Applicant’s submission that these actions are done in willful disobedience of this Tribunal’s Orders and amounts to Contempt of Court. Counsel clarified that the present Application was not one of contempt, but one that seeks the enforcement of our Orders dated May 6, 2022. He went on to state, that enforcement of a Judgment and Decree has no timelines in law. Furthermore, he cited our decision inJohn Andiwo Mwai vs. The National Elections Board (ODM) and others by stating that Rule 8(4) of the PPDTRegulations, 2017, only applies to the hearing and determination of a complaint and not the enforcement of a post judgment application. It was his argument that the present Application was, thus excluded from the regulation.

9. Dr Miyawa further cited Section 41 (3) of the Political Parties Act, 2011; and Section 10 of the Magistrate Courts Act, which empowers this Tribunal to enforce its Judgment through several means with contempt of court being one of them. He further averred that this was an Application brought under Section 10 of the Magistrate Courts Act and was thus merited and properly before this Tribunal. Additionally, Counsel submitted that the PPDT was not functus officio in this matter. Furthermore, that the Complainant had not been driven out of judgment by review or appellate court orders and that the only action that was left is the enforcement of our judgment.

10. It was his submission that enforcement of judgments happens ex post hearing and determination and that consequently, this Tribunal was properly seized of this matter. He further stated that disobedience of court orders violates constitutional values such as the rule of law, good governance and accountability and that if these acts were not restrained it would amount to an abetment of an illegality by the Interested Party, hence undermining judicial authority and violating national values.

11. It was the Applicant’s submission that the decision to forward the name of the 3rd Respondent isa nullity in law, an Illegality and cannot be allowed to stand. Moreover, that the Tribunal has the powers to grant orders sought, such as restraining the Respondents from committing an illegality, as long as the injury is related to the issues in question.

12. The Applicants prayed for the Application to be allowed with costs.

1st And 2nd Respondents’ Submissions. 13. Mr Anzala for the 1st and 2nd Respondent began by stating that upon delivery of judgment the Tribunal became functus officio in regard to reopening the issues and that the Application could thus not be granted because it seeks an injunction under prayer 2 and 3. He cited our decision in PPDT Case NO 019 of 2022 in support thereof.

14. Mr Anzala went on to state that contempt must be shown to have been deliberate. It was his averment that in this matter the 1st and 2nd Respondent had written a letter to the minister of education, with the intention of conducting the elections by using Primary Schools, it was Mr Anzala’s submission that this request was denied. He further averred that the 1st and 2nd Respondents attempted to negotiate with churches around West Sakwa Ward, who also refused to grant their premises for the nomination exercise. He advanced that this was not the conduct of a party willfully disobeying the Tribunal’s orders.

15. Counsel further castigated the conduct of the Complainant in this matter. He stated that the Complainant had filed an Appeal at the High Court (Appeal No 44 of 2022) and that in the Appeal, the Complainant had stated that our judgment was wrong and should be set aside. Mr Anzala further averred having gone to the Court of Appeal in this matter and argued side by side with Counsel for the Applicant Dr. Miyawa, the Complainant was estopped from seeking the enforcement of orders he sought to have dismissed.

16. In summary Mr Anzala urged us to dismiss the Application with costs for being devoid of merit.3rd Respondents Submissions

17. Mr Arika associated himself with the submissions of the 1st and 2nd Respondents he further stated that the Complainant’s Application was opposed in terms of the 3rd Respondent’s Grounds of Opposition.

18. It was also Mr Arika’s submission that the Complainant’s appeal was not partial, and that he could therefore not approach this Tribunal, claiming that the Respondents were not complying with the PPDT’s orders. Furthermore, that the orders sought in the Application amounted to a different cause of action which should be dealt with by the 2nd Respondent’s Internal Dispute Resolution Mechanisms.

19. . Consequently, it was his submission that the Application had no merit and should be dismissed with costs.

Interested Party’s Submissions 20. Mr Anyoka left the matter to the tribunal.

Complainant’s Rejoinder 21. Dr Miyawa in rejoinder stated that the interested party is the implementing authority of the orders of this Tribunal and that it has been mandated to carry out National Elections. Further, that if elections are allowed to be carried out it would be happening in an environment tainted with illegality. He clarified that the orders the Complainant was seeking was that the 3rd Respondent be prevented from participating as a candidate, and that for that to happen, this Tribunal has to prevent printing of ballot papers of the 3rd Respondents by issuing an injunction until this matter is heard and determined, since the IEBC was aware of the illegality and did nothing about it.

22. He averred that the Complainant seeks to have the Tribunal enforce its orders. He pointed to Section 41 (3) of the Political Parties Act, for the submission that the Tribunal has the same powers as the High Court in enforcing its decisions. Furthermore, that elections do not necessarily have to be conducted in schools, but can be conducted anywhere else.

23. With regard to the allegation that the Complainant had appealed our decision and was estopped from going back on that decision, Counsel stated that the appeal had only been a partial appeal which is permitted in law. Moreover, that filing an appeal does not mean one is approbating and reprobating, neither does it mean that one foregoes their rights to enforce judgment and orders of this Tribunal.

24. He further emphasized, that our Orders had been disobeyed and that we should not hesitate to enforce them. It was counsel’s submission that the principle of res judicata does not apply to this matter. He cited the decision in PPDT E019 of 2022 which he distinguished from this case as being completely different since the parties had decided to go for consensus unlike in the current case, where no consensus was attempted. That the said decision was only relevant on the question of there being no time bar in bringing enforcement proceedings post judgment.

25. He urged us to allow the Application and grant the orders sought therein.

Tribunal’s Analysis And Findings 26. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has the requisite jurisdiction to hear and determine this matter?ii.Whether the Application has merit?iii.Who bears the costs of this case?

27. We will address the issues set out above in the sequence of their listing.Whether this Tribunal has the requisite jurisdiction to hear and determine this matter?

28. Naturally, we will start with the first question as framed above. Jurisdiction is key as it is everything. In deed the learned court did inR 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 thesecharacteristics…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.”

29. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of this matter. In the Court of Appeal’s decision in Civil Appeal E 326 of 2022, it was held that once a matter had transitioned from the PPDT to the registration of candidates by the IEBC, the former is bereft of Jurisdiction. Furthermore, it is only the IEBC exercising its jurisdiction under Article 88(4) (e) of the Constitution; and Section 74 of the Elections Act, that can deal with a dispute that has transited to the registration stage. The only element that distinguishes the jurisdiction of the two organs is whether the matter has transitioned from nominations to the registration of candidates.

30. Section 74 (1) of the Elections Act provides as follows:“(1) Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results”

31. Article 88 4 (e) of the Constitution of Kenya 2010 also states as follows;(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by thisConstitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;”

32. In our considered view, there are two situations that arise out of the set of facts before us. We will draw a dichotomy, since it is critical to do so. There is the question of disobedience of our orders. And, there is the matter of enforcement of our Judgement through the application under consideration. The latter also involves the nature of reliefs that we can issue at this stage.

33. There are certain facts and trite legal propositions that are common, uncontested or even incontestable. We delivered a Judgment in this matter, in which we ordered a repeat of the nomination exercise by universal suffrage. In the Judgment, we set out our reasons for that conclusion. A review application was filed and rejected. Appeals and cross appeals to the High court, and a further appeal to the court of appeal met the same fate.

34. There is no dispute that this Tribunal has the powers similar to those of the High court to punish for contempt. Indeed, we have held on numerous occasions that we shall not hesitate in enforcing our decisions, as every court should. We say no more on that aspect as the matter remains alive and may as well come before us. We do not wish to prejudice the parties’ rights or offer preemptive views.

35. This Tribunal is not a toothless dog, and will bite in appropriate circumstances within the powers granted to it by law.

36. With respect to the interpretation of Regulation 8(4) of the PPDT Regulations 2017, we agree with Dr. Miyawa that in PPDTC E019 of 2022, John Andiwo v The National Elections Board of the ODM and Others, we held that: “… our view is that the timelines set out there in refer to the filing of the complaint or original action and not enforcement or post judgement applications. In other words, an application is a continuum of the suit filed, and cannot, therefore, be time barred when the originating action has been timeously commenced. “

37. The current application is, therefore properly before us, in terms of the timelines for filing enforcement proceedings, and is not caught up by the time-bar in Regulation 8(4) of thePPDTRegulations, 2017.

38. Perhaps the more significant consideration is the question of our jurisdiction vis a vis that of the IEBC in the resolution of pre-election disputes. This has for a long time been a problematic, and sometimes blurry area, owing largely to conflicting decisions by superior courts, especially the High Court. However, the situation seems to have been clarified by the Court of Appeal in Civil Appeal E 326 of 2022 The court demarcated our Jurisdiction with that of the IEBC by stating that that once a matter had transitioned from the PPDT to the registration of candidates by the IEBC, the former is bereft of Jurisdiction. This demarcation is particularly important since courts should always act in harmony, while sustaining the jurisdiction and competency of other constitutional and statutory organs.

39. There is no dispute that the 3rd Respondent’s name has been forwarded to the IEBC, and that she has been cleared to run on the ODM ticket by the IEBC. It is a matter of public knowledge, and which we take judicial notice of, that the IEBC has constituted a Dispute Resolution Committee whose function is primarily to deal with disputes post registration of candidates in accordance with its mandate under section 88(4) (e) of the constitution. Recourse from the Committee’s decisions is to the High court, and not the PPDT.

40. Jurisdiction is the root of all authority, without which nothing can stand. The dichotomy we sought to draw in the earlier parts of this ruling is as follows. This Tribunal has jurisdiction to enforce its decisions under Section 41 (3) of the Political Parties Act, 2011. However, the tribunal has no jurisdiction to deal with matters of nomination and registration of candidates by the IEBC. In other words, this Tribunal cannot set aside or fault the IEBC’s decision to clear the third responded. That Jurisdiction is exclusively the IEBC’s under Article 88 (4) (e); and it is a constitutional mandate. In this case, the registration and clearance of the 3rd Respondent by the IEBC is not a matter in our province.

41. It is appreciated, as the applicant has submitted, that the current application is not one of contempt. If it were, we would not have hesitated to take up Jurisdiction.

42. It must be appreciated that the facts informing our jurisdiction to punish for contempt my very well be the same founding a cause of action before the IEBC. But these Jurisdictions are entirely different. If the nomination of the 3rd Respondent is in contempt of our Judgement, we can deal with it, as we have. If the clearance of the 3rd Respondent by the IEBC is tainted with illegality, the same can be prosecuted before the IEBC. The Complainant is not without recourse. Nor are we abetting illegality, impunity and contempt of our Judgement.

43. It is for the foregoing reasons that we decline the invitation to encroach the jurisdiction of theIEBC. Furthermore, the orders sought by the applicant would supplant our judgement. By their very nature, injunctive orders as equitable reliefs, are either interlocutory or permanent; issued on interim or final basis in rulings and judgements. To issue an injunction post Judgement, in the absence of an appeal or review to substantively anchor the prayers, would be tantamount to issuing fresh final orders in a suit, post Judgement, outside the pleadings and timeframes set by the rules in approaching the tribunal. In essence, it would allow parties to frame new causes of action, complete with fresh orders with far reaching consequence, in the guise of enforcement proceedings.

44. We therefore dismiss the Application for want of jurisdiction. Having done so found, we see no need to address the second issue for determination.

Who bears the costs of this matter? 45. 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.

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

DISPOSITION 47. In the upshot we make the following Orders:i.We dismiss the Application.ii.Each party shall bear its own costs.

48. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 4TH DAY OF JULY 2022. ......................HON. DR. WILFRED MUTUBWA OGW C. ARBVICE CHAIRPERSON – PRESIDING.......................HON. FATUMA ALI MEMBERMEMBER.......................HON. WALUBENGO SIFUNAMEMBER