[2022] KEPPDT 1013 (KLR)

Gare v Odm National Elections Board & another; Odinga & another (Interested Parties) (Tribunal Case E003 (KSM) of 2022) [2022] KEPPDT 1013 (KLR) (26 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1013 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E003 (KSM) of 2022

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

May 26, 2022

Between

John Ombewa Gare

Petitioner

and

Odm National Elections Board

1st Respondent

Orange Democratic Movement Party

2nd Respondent

and

Trufosa Osewe Odinga

Interested Party

Independent Electoral and Boundaries Commission

Interested Party

Ruling

1. This Tribunal delivered its judgment on this matter on May 6, 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. The Applicant herein was aggrieved and approached this Tribunal, seeking to cite the 1st Respondent’s Chairperson, Mrs Catherine Mumma for contempt as well as a Notice to Show Cause, why she should not be committed to civil jail.

2. This matter came up for hearing on Nay 23, 2022 when the parties argued the matter orally. The Applicant was represented by Mr Oketch; Mr Anzala represented the 1st and 2nd Respondents; while Mr Arika represented the 1st Interested Party.

3. The Applicant sought the following orders from this tribunal:i.That this Application be and is hereby certified urgent to be heard ex parte in the first instance.ii.That summons do issue to the 1st Respondent’s Chairperson, Mrs. Catherine Mumma, to attend this Honourable Tribunal in person or on the next hearing date of this application to explain why there has been no compliance to date with the orders emanating from the Honourable Tribunal dated May 5,2022. iii.That the 1st Respondent Chairperson, Mrs Catherine Mumma to show cause why she should not be held in contempt of this Honourable Tribunal and thereafter be committed to civil jail for a term of six months or such term as the Honourable Tribunal may direct for gross disobedience of the orders emanating from this Honourable Tribunal dated 6th May 2022. iv.That this Honourable Tribunal do issue an order directing the Secretary of this Honourable Tribunal to forward the name of the Claimant /Applicant Hon John Ombewa Gare, to the Independent Electoral and Boundaries Commission as the 2nd Respondent’s duly nominated candidate for the West Sakwa Ward member of County Assembly.v.That in the alternative, Hon John Ombewa Gare be deemed as the 2nd Respondent’s duly nominated candidate for the West Sakwa Ward Member of County Assembly and the Independent Electoral Boundaries Commission accept the Claimant’s final certificate as the final nomination certificate at the time of registration. vi. The Costs of the application be provided for.

4. Counsel for the Applicant moved this Tribunal by way of a Notice of Motion Application undercover of certificate of urgency dated May 14, 2022 as well as a Supporting Affidavit of even date. He also filed an affidavit of service dated May 23, 2022.

5. The 2nd Respondent field grounds of opposition dated May 23, 2022.

The Applicant’s Case 6. In the main, the Applicant asks us to find the Chairperson of the 2nd Respondent guilty of contempt and direct the secretary of this Tribunal to forward the name of the Applicant John Ombewa Gare, to the 2nd interested party, as the Party’s duly nominated candidate.

7. Counsel for the Applicant began by stating the background that culminated in the filing of this matter. He stated that on May 6, 2022 this Tribunal directed the 2nd Respondent to conduct nominations by way of universal suffrage within 72 Hours of the date of the judgment herein.

8. Moreover, that after the 72 hours deadline had lapsed without the said nominations being conducted, the Applicants also requested the 2ndRespondents by way of a letter to conduct the nominations as per our orders. This request was disregarded.

9. It is the Applicant’s prayer that the Chairperson of the National Elections Board (NEB) of the Party be found guilty of contempt and committed to Civil Jail for violating the orders of the tribunal.

10. Furthermore, that in the event the 2nd Respondents do not conduct nominations, that the Applicant be declared the winner of the annulled nomination exercise, since it was he who had garnered the most votes in the nomination.

11. Counsel pointed out the fact that the Applicant was not cited for any electoral malpractice, and that it is the Interested Party that was blatantly disregarding the orders of this tribunal. In that regard, he urged us to find that the presentation of names to the IEBC be declared null and void.

Respondents Case 12. Mr Anzala for the 1st and 2nd Respondents began by stating that he would rely on the Affidavit of Catherine Mumma (sworn on May 3, 2022). He further elucidated that the 1st and 2nd Respondents were not represented in the proceedings of the suit and that as a result Mrs. Mumma was not aware of the proceedings.

13. Furthermore, that the burden thrust upon the Applicant was to demonstrate that service of the judgment and decree was effected not only on the 1st and 2nd Respondent but also personally on Mrs Catherine Mumma. Counsel also stated that he had filed a list of authorities and referred to Page 4 of the list, where Lady Justice Lesit pronounced that personal service of the alleged contemnor is necessary in contempt proceedings.

14. Additionally, he referred to the Affidavit sworn by the Applicant, he stated that there was no averment that the Judgment was served on either the 1st and 2nd Respondent or Mrs. Catherine Mumma, and that since her liberty was at stake he submitted that this application did not meet the threshold set out under the law.

15. He referred to Page 10 of his Bundle Authorities and cited the case of Republic vs Ahmed Abdulfaha in support of his argument. He avers that the Chairperson is interested in reaching an agreement with the Applicant.

16. In conclusion, he prayed for our holding to be that Mrs. Catherine Mumma did not receive the proceedings, and that she can therefore not be held to be in contempt of the orders of this Tribunal.

2nd Interested Party’s Case 17. Mr. Arika stated that he concurred with the legal points raised by the Respondents with regard to prayer 2 and 3 of the Application. He further made reference to the prayer requesting to have the name of the Claimant taken to the IEBC, it was his submission that the Political Parties Dispute Tribunal, had no jurisdiction to determine whose name could be submitted to the IEBC. Neither could we deal with this matter because the nomination had been nullified.

18. He urged us to dismiss the present Application for not meeting the legal threshold.

Applicant’s Response 19. Mr. Oketch for the Applicants responded to the submissions by the Respondents and the Interested Party stating that the issue of service was fundamental. It was his submission that the judgment and decree was served physically to the 1st and 2nd Respondents.

20. Furthermore, that Applicant wrote a letter to the Respondents on the 19th May 2022 informing them that they had been directed to conduct the said nominations by this Tribunal. He submitted that no action had been taken by them since being so informed. Moreover, that the Chairperson had almost 4 days to attempt to carry out the orders of the Tribunal and had still failed to do so, even before the filing of this application. He faulted the interested party for accepting the name of a Party even though there was no repeat nomination and there was a judgment

21. He urged us to allow the Application.

Tribunal’s Analysis And Findings 22. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the Applicant has successfully proved that there was contempt of the orders of this Tribunal?ii.Who bears the costs of this case?

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

Whether the 1st Respondent has successfully proved that there was contempt of the orders of this Tribunal? 23. During the hearing, Mr. Oketch, learned counsel for the Applicant, submitted that the alleged contemnors were in contempt of court, for not complying with the order of PPDT to carry out fresh nomination although the order had been served. In counsel’s view, the dignity and authority of the tribunal was under challenge due to that breach and ought to be protected and safeguarded.

24. Learned Counsels Mr. Arika and Mr. Anzala argued that there was no contempt. They averred that the judgment and decree was not served upon their clients. In our view the main point of contention is whether service was effected upon the Respondents.

25. Black’s Law Dictionary 2nd Edition, defines contempt as;“Contempt of court is committed by a person who does any act in willful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court’s authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given…”

26. Ibrahim J (as he then was) dealing with the issue of contempt in the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828, underscored the importance of obeying court orders when he stated: -“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void”. (Emphasis)

27. In Mutitika -vs. - Baharini Farm limited[1985] KLR 229. 234 as cited in TSC –vs.- KNUT, It was held that, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, as beyond reasonable doubt.”

28. Additionally, in the case of Katsuri Limited (supra) it was stated as follows:“Contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases.”

29. In the case of Carey v Laiken, 2015 SCC 17 (April 16, 2015) the Supreme Court of Canada expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, that is;“the order alleged to have been breached must state clearly and unequivocally what should and should not be done.”

30. From a reading of the above stated authorities, pleadings and the submissions presented by the parties herein, we find that the burden of proof lies on the Applicant, as it is he who would fail if no evidence were to be given on either side. It is our considered view that the Applicant has not met the required standard of proof required to establish contempt, especially since Contempt is quasi criminal in nature and may lead to the deprivation of the liberty of the alleged contemnor. The Respondent did not participate in the trial. The Applicant’s Advocate did not furnish sufficient proof of service of our Judgement and Decree on the alleged contemnors. He even sought to furnish better evidence at close of hearing. It is, thus, our finding that some doubt has been created with regard to service of the Judgment.

31. Accordingly, we hold that the Applicants contempt application should fail, we therefore dismiss the application for contempt. With regard to the prayers requesting the name of the Applicant be forwarded to the IEBC, we find we cannot accede to this prayer since it is founded on the results of a nullified nomination exercise, and it, therefore, would have no legal basis or standing.

32. Furthermore, we note that the 1st and 2nd Respondents only learned of the Judgment after the proceedings had been concluded. However, now that they are aware of our Judgment and orders, we hereby give them 72 Hours to comply with the judgment, failing which contempt proceedings would issue.

Who bears the costs of this matter? 33. 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.

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

Disposition 35. In the upshot we make the following Orders:i.We dismiss the application.ii.The Respondents are to conduct fresh nominations for West Sakwa Ward Member of County Assembly within Kisii County in accordance with our Judgement, within 72 Hours of this order.iii.Each party shall bear its own costs.

36. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 26TH DAY OF MAY 2022Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – PresidingHon. Fatuma AliMemberHon. Walubengo SifunaMemberSIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBERThe Judiciary of Kenya