[2022] KEHC 565 (KLR)

Gari v National Elections Board (Orange Democratic Movement Party) & 3 others (Election Petition E003 of 2022) [2022] KEHC 565 (KLR) (Election Petitions) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 565 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Election Petitions

Election Petition E003 of 2022

HI Ong'udi, J

June 8, 2022

Between

Maurice Atieno Gari

Appellant

and

National Elections Board (Orange Democratic Movement Party)

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Constituency Returning Officer – Langata constituency

3rd Respondent

Rex Omolle

4th Respondent

(Being an appeal from the judgement and decree of the Political Parties Disputes Tribunal at Nairobi delivered on 23rd May 2022 in PPDT complaint No.E074 of 2022)

Judgment

1. The matter before this court is an appeal dated 30th May 2022 filed by Maurice Otieno Gari, the appellant herein, against the decision of the Political Parties Disputes Tribunal (PPDT) delivered on 23rd May 2022. The appeal raises the following grounds:-(i)The Honourable Tribunal erred in law in deciding and holding that nomination election process undertaken by the 1st respondent on 22nd April 2022 was accurately and competently conducted.(ii)The Honourable Tribunal erred in law in deciding and holding that the nomination election process undertaken by the 1st respondent on 22nd April 2022 had a proper and verifiable record made on prescribed forms and executed by the relevant authorized election officials.(iii)The Honourable Tribunal erred in law and fact in finding and holding that the nomination election process undertaken by the 1st respondent on 22nd April 2022 was accountable and had records capable of being audited.(iv)The Honourable Tribunal erred in law and fact in finding and holding that the nomination election process undertaken by the 1st respondent on 22nd April 2022 reflected the people’s free will through credibility, verifiability, efficiency and accuracy.(v)The Honourable Tribunal erred in law and fact by shifting the burden of proof form the 1st respondent to the appellant.(vi)The Honourable Tribunal erred in law and fact in failing to consider at all the appellant’s contention that the 1st respondent had tendered evidence by way of affidavit which evidence contained perjury, forgery and uttering of false documents designed to hoodwink and mislead the Tribunal.(vii)The Honourable Tribunal erred in law and fact in holding and deciding that the nominations in question were lawfully conducted when there was no evidence to support such a decision.(viii)The Honorable Tribunal erred in law and fact in holding and/or deciding that the 1st respondent complied with Rules 52(7), (8), (9), (10) and 11 of its own nomination rules when the evidence before the Tribunal did not support such a position.(ix)The Honourable Tribunal erred in law and fact by taking into account irrelevant matters and failing to consider matters of critical relevance.

2. The 1st and 3rd respondents filed submissions dated 6th June 2022 through Makori and Karimi Co. Advocates. Counsel submitted that the nomination exercise went on well save for a few isolated incidents that the nomination exercise went on well save for a few isolated incidents that were quickly suppressed. Further the presiding officer in the two stations forwarded the physical forms of the results to the returning officer as is required by the Rules. Results were tallied and announced in the presence of all the candidates and / or their agents. The 4th respondent emerged the winner over the appellant and was issued with a nomination certificate. Counsel submitted that the record of Appeal was uncomplete. He went on to submit that the appellant is not challenging the results but the process.

3. The appellant therefore prays for orders that:-(i)This appeal be allowed with costs to the appellant.(ii)The judgment/decree of the Hon. Tribunal dated 23rd May 2022 be set aside and in place thereof be substituted an order allowing the appellant’s complaint dated 7th May 2022 with costs to the appellant.

4. The Court gave directions for parties to file and exchange written submissions. This was duly complied with by them.

5. A brief background to this appeal will suffice. The appellant and 4th respondent were both Orange Democratic Party (ODM) candidates contesting for nomination to contest Nairobi West Ward County Assembly seat in the forthcoming general elections. The party nominations were held on 22nd April 2022 at Madaraka Primary School. The appellant was not satisfied with the voting process which he alleges was marred by irregularities, illegalities and non-compliance with the law.

6. The party declared the 4th respondent as the winner of the said party nomination. He was again dissatisfied and challenged the nomination at the ODM Appeals Board and thereafter to the PPDT. He was again dissatisfied with the decisions of the ODM Appeals Board and PPDT since they upheld the nomination of the 4th respondent. As a result of that he filed this Appeal.

7. The appellant’s submissions are dated 6th June 2022 and filed by S.O. Madialo advocates. Counsel has submitted that the voting process was marred with violence and disruption of the voting exercise. He relied on the appellant’s complaint to the 1st respondent’s returning officers on the violence. He also referred to the affidavits of the 1st respondent’s electoral officers. In particular was the affidavit by Fiona Sanyisa Kuya who was the respondent’s lead presiding officer at Madaraka Primary School confirming the violence.

8. One Samson Ochieng Ataly in his affidavit repudiated the assertion that he was an agent of Hamisi Juma. This was confirmed by Hamisi Juma also a contestant. Further Kennedy Okoth an alleged agent’s I.D. No. 14677008 could not be verified from the party register. He submitted that the document Exhibit “C” contained a lot of misleading information. Lastly that the Tribunal ignored the appellant’s evidence.

9. He wondered why the appellant did not have his own agent swear an affidavit as to what had transpired. Relying on Section 83 of the Elections Act Counsel submitted that non-compliance alone is not sufficient to annul an election. It must be shown how the non-compliance affected the election. He cited the case of Rozahh Akinyi Buyu v IEBC & 2 others where the court referred to Raila Odinga v IEBC & others Petition NO 5 of 2013 where the Supreme Court stated:-“Where a party alleges non-conformity with the electoral law the petitioner must not only prove that there had been non-compliance with the law, but that such failure of compliance did affect the validity of the election. It is on that basis that the respondent bears the burden of proving the contrary…… All acts are presumed to have been done rightly and regularly, so the petitioner must come out by raising firm and credible evidence of the public authorities departures from the prescription of the law.”

10. It’s his submission that the appellant had not discharged the burden of proof. See Julius Ochieng Omoro v IEBC & 3 others [2018] eKLR. He dismissed the appellant’s complaint on irregularities, illegalities, and non-compliance with the law as being unsubstantiated.

11. The 4th respondent’s submissions dated 6th June 2022 were filed by Omondi Ogutu & associates. It’s counsel’s submission that the 2nd & 3rd respondents were not parties in PPDT C E074/2022 and could not be enjoined without leave of the court. Besides that he argues that all the grounds are not specific and no law has been cited to show how the PPDT erred.

12. Counsel further submits that the appellant had a duty to prove his allegations against the respondents. He referred to Section 107, & 109 of the Evidence Act Cap which demand for proof of facts. It’s counsel’s contention that the allegation of violence has criminal elements in it, which must be proved beyond reasonable doubt. That there is no connection of the 4th respondent with the alleged violence. He cited the case of Moses Masika Wetangula v Musikari Nazi Kombo & 2 others [2015] eKLR where the court held:-“Election offences are, therefore, quasi-criminal in nature; and the Court ought not to enter a finding of guilt, if the evidence adduced is not definitive and cannot sustain a finding, or if there is any doubt as to whether such an offense was indeed committed, or by whom…”

13. He further referred toJohn Kiarie Wawereu v Beth Wambui & 2 others Election Petition No 13 of 2008; Section 83 of the Elections Act; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR; Raila Odinga v IEBC & 3 others S C Petition No 5 of 2013. On this he submitted that the appellant’s assertions are general and devoid of any evidence in support thereof. That they were actuated by malice and generally meant to discredit the 4th respondent. He prayed for dismissal of the appeal.

Analysis and Determination 14. From the foregoing parties account, a perusal of the record of appeal and the submissions by all counsel the issue that arises for determination is:-(i)Whether the alleged irregularities, illegalities and non-compliance with law render the Nairobi West Ward nominations void.

15. The law upon which elections are conducted in our nation find root in the Constitution. The electoral process is guided by the constitutional principles set out under Article 81 of the Constitution. With reference to an election process sub – Article (e) provides as follows:Free and fair elections, which are--(i)by secret ballot;(ii)free from violence, intimidation, improper influence or corruption;(iii)conducted by an independent body;(iv)transparent; and(v)administered in an impartial, neutral, efficient, accurate and accountable manner.

16. The petitioner’s central assertion is that although the party nominations were conducted in accordance with Rule 8(d) as read with Rule 25 of the 1st respondent’s Election and Nomination Rules of the 1st respondent’s, the outcome was vitiated by the irregularities and illegalities that ran through the voting process. In effect he contends that the process did not adhere to the principle of free and fair elections as set out above.

17. The record of appeal reflects that the alleged irregularities were based on the violence that occurred during the party nomination elections that were held on 22nd April 2022 at Makadara Primary School. There was a further assertion that the Returning Officer’s affidavit contained forged and false documents with regard to the nomination results of the polling station. The alleged false documentation related to the fact that the persons whose ID numbers were listed as having attested to the declaration of results and signed as agents were neither agents of the contestants or voters at the polling station.

18. These allegations are characterized as election offences and provided for under Section 5 and 6 of the Elections Offences Act No 37 of 2016. In view of this the appellant is aggrieved and states that these issues rendered the voting process inaccurate and unaccountable and not representing the will of the people of Nairobi West Ward in the final result.

19. The major contention therefore is whether the appellant’s claims if ascertained go to the core of the election process hence justifying nullification of the nomination results. To answer this it is imperative to determine the set legal parameters in such cases and the legal elements that would necessitate such a finding.

20. To begin with and as appreciated by the 4th respondent, the Elections Act (Act No 24 of 2011) under Section 83 provides that:-“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

21. The Supreme Court in the case of Gatirau Peter Munya (supra) affirmed this position and cited the exceptional cases as follows:“[211]In Morgan v Simpson (1975) 1 Q B 151, Lord Denning summarized the essence of Section 37 of Britain’s Representation of the People Act, 1949 (which is couched in similar language to Section 83 of Kenya’s Elections Act) in three propositions:a.If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not…..[214]Such comparative judicial perspective is consistent with this Court’s outlook which emerges clearly from the Raila case:“Judicial practice must not make it burdensome to enforce the principles of properly-conducted elections which give fulfilment to the right of franchise…[Where]a party alleges non-conformity with the electoral law, the petitioner must not only prove that there was non-compliance with the law, but that such failure of compliance did affect the validity of elections.”[215]In Nana Addo Dankwa v John Dramani Mahama, the Supreme Court of Ghana thus remarked:““An election being a process as opposed to it being an event, where all the stages have been gone through and therefore the elections could be said to have been substantially held in accordance with the regulations, to nullify the results on this ground per se, would amount to putting in the power of some unscrupulous presiding officer in some polling station to nullify the solemn act of the whole constituency by his single act of omission.”[216]It is clear to us that an election should be conducted substantially in accordance with the principles of the Constitution, as set out in Article 81 (e). Voting is to be conducted in accordance with the principles set out in Article 86. The Elections Act, and the Regulations thereunder, constitute the substantive and procedural law for the conduct of elections.[217]If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities.[218]Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election. In this regard, we stand on the same plane as the learned Judges in Morgan, Opitz and Nana.”

22. Unmistakably as guided by the Supreme Court the legal parameter upon which a nomination election or an election for that matter can be nullified is where a party shows that the alleged irregularities affected the election result. This therefore means that a party who seeks to challenge the election / nomination result must prove its case.

23. The Supreme Court of Kenya in the case of Raila Odinga (supra) speaking to the legal element of proof in election matters opined that:“[196]…Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections….This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.”

24. The Court went on to determine that:“[203] … a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question.”

25. In the same way, the Supreme Court maintained this position in the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR where it held that:“[203] Guided by these principles, and given the use of the word “or” in Section 83 of the Elections Act as well as some of our previous decisions[98],we cannot see how we can conjunctively apply the two limbs of that section and demand that to succeed, a petitioner must not only prove that the conduct of the election violated the principles in our Constitution as well as other written law on elections but that he must also prove that the irregularities or illegalities complained of affected the result of the election as counsel for the respondents assert. In our view, such an approach would be tantamount to a misreading of the provision.”

26. The appellant in view of this asserts that he lodged a complaint with the 1st respondent’s returning officers voicing his concern that the violence had impacted the voting outcome. Furthermore, to support his case the appellant relied on the 1st respondent’s electoral officers’ affidavits who stated under oath that the nomination process was marred with acts of violence.

27. The 1st and 3rd respondents on their part concurred with the appellant that there was indeed violence on the material day. It was however noted that the situation was contained by the security personnel and the voting exercise continued. The 1st respondent disputed the affidavits deponed by its officers since the same were drafted in contravention of its rules. Furthermore, it was noted that while the appellant argued that the tallying center could not be accessed, this averment was not supported by evidence from his agent confirming it.

28. The Tribunal after considering the facts of this case, made its observations as follows in its judgement:“21. The complainant participated in the said nomination exercise and secured 253 votes as against the interested party’s 262 votes. The complainant at the IDRM of the respondent sought orders that the interested party be disqualified from the nominations, that there be a recount of the votes cast, that he be issued with a direct certificate and that there be a repeat of the elections. What baffled the respondents Appeal Tribunal was the fact that the complainant then wanted to be declared the winner in a nomination exercise that he stated had anomalies and disparaged the same.22. Nominations as elections is an exercise that has several components and many at times faces hiccups which are not abnormal. The issue has always been the extent of the said hiccups whether the same affects the result. At the Appeals Tribunal the complainant complained of violence, violence has criminal elements. He equally complained of the results having not been announced. At the Appeals Tribunal it seems he had not pleaded his case with specifity. His plea of violence was generalized. From the evidence adduced it will be noted that the complainant seems to have procured medical documents to evidence the incidences of violence meted out as against his agent. It is the complainant’s further case that the persons who signed the results declaration forms were not agents and the same had been fabricated. The complainant procured affidavits from other persons to deny having signed the said forms, but could not procure affidavits from his own agents to deny that they actually were present and signed the said forms. The aspect of whether it was mandatory for one to be a voter at the said nomination exercise to be an agent was explained by the respondent to the satisfaction of the tribunal, all that one had to be was a member of the respondent. The complainant raised no issue as regards the said persons taking part in the voting, if that had been the case evidence of persons not eligible to vote in the voting process would have been a grave issue affecting the integrity of the vote, which was not the case. We only wish to restate that violence being a serious matter should be proved to the required standard with cogent evidence..” Support was placed on the Supreme Court case of Moses Masika Wetangula v Musikari Nazi Kombo & 2 others(2015)eKLR to this end.

29. I do not find any distinguishing facts in the instant appeal. The appellant asserted that the 1st respondent’s evidence of the nomination results ‘Exhibit ‘C’ contained forgeries and false documents. I find no difficulty in observing that no evidence was submitted to this effect neither was it proved. I note that the appellant from the record alluded to the violence being instigated by the 4th respondent’s people however no evidence was adduced to that conclusion. The 1st respondent’s officers did not in their affidavits state how the violence had affected the election result. It is not also shown that the cast votes were irregular or the election process came to a complete halt defeating the election process in totality.

30. What is more the appellant admitted that the nomination voting process was conducted in accordance with the 1st respondent’s rules and only took issue with the cited alleged irregularities. I am not persuaded that the appellant proved his case against the respondent to warrant nullification of the nomination results. In this regard I am of the considered view that the Tribunal’s pronouncement was legally sound, and I find no reason to make this Court interfere with it.

31. The result is that the appeal lacks merit and is dismissed with costs. The judgment of the PPDT delivered on 23rd May 2022 is upheld.

Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 8TH DAY OF JUNE, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT