[2022] KEPPDT 1061 (KLR)

Gordon v Ochele & 2 others (Tribunal Case E021 (KSM) of 2022) [2022] KEPPDT 1061 (KLR) (Constitutional and Human Rights) (10 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1061 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Tribunal Case E021 (KSM) of 2022

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

May 10, 2022

Between

Allan Ojuki Gordon

Applicant

and

Moses J. Odhiambo Ochele

1st Respondent

Orange Democratic Movement Party (ODM)

2nd Respondent

National Elections Board, Orange Democratic Movement Party (ODM)

3rd Respondent

Judgment

Background 1. The matter involves the nomination of the 2nd Respondent’s candidate for the East Kano/Wawidhi Ward. The Complainant and 1st Respondent were candidate in the contest held on April 19, 2022.

2. The Complainant was declared winner. The Complainant, dissatisfied with the declaration moved the ODM Appeals Tribunal which delivered its decision on April 26, 2022 setting aside and annulling the said nomination exercise.

3. On April 27, 2022, or thereabouts, the 2nd Respondent issued the 1st Respondent, a direct nomination ticket, which drove the Complainant to this tribunal under Certificate of Urgency in proceedings dated April 29, 2022.

4. Interim orders were issued restraining the submission of the 1st Respondent’s name or any other person to the Independent Electoral and Boundaries Commission, pending the hearing and determination of this matter.

5. The matter was heard on the May 8, 2022 by way of oral arguments by Counsel representing the parties. Mr Jaoko appeared for the Complainant; Mr Odeny appeared for the 1st Respondent, while Mr Juma held brief for Mr Awele for the 2nd Respondent.

Complainant’s Case 6. It was Mr Jaoko’s submissions that on April 26, 2022, the ODM tribunal sitting in Nairobi (Appeal No 25 of 2022) made a decision setting aside the nomination exercise in the Ward merits. The main reasons for the decision was that the party only provided a photograph of the Complainant but not his name and other details on the ballot paper. The tribunal said that no free and fair nominations took place. Subsequently, the Party purported to nominate the 1st Respondent against the existence of the said tribunal’s Judgment which has not been appealed against, nor set aside. The Complainant seeks that the nomination certificate be cancelled, and the party be ordered to carry out fresh elections or give the nomination certificate to the Complainant.

7. The Complainant insisted that it had exhausted Internal Dispute Resolution Mechanisms (IDRM) by referring the dispute to the ODM Appeals Tribunal which rendered its decision on April 26, 2022.

8. The Complainant disputed the results exhibited in the 2nd Respondent’s Affidavit by Catherine Muma as being cooked and that the same were not presented to the Party Appeals Tribunal.

1st Respondent Case 9. The 1st Respondent challenged the case on 3 grounds:i.The case was prematureii.Violation of this tribunal’s regulationsiii.That the 1st Respondents nomination in compliance with the law.

10. Counsel stated that the Complaint did not comply with the requirement of the format set out in the schedule to the%2011%20of%202011 Political Parties Tribunal’s Regulations, (%2011%20of%202011 PPDT%2011%20of%202011 ) 2017.

11. Secondly that the Complainant had not exhausted IDRM as required by Section 40(2) of the Political Parties Act, 2011. That direct nomination is one of the ways in which a candidate can be chosen. That initially, the 1st Respondent had chosen universal suffrage but after the election was nullified, it meant everything was reserved back to the 2nd Respondent to proceed and elect the process of choosing its candidate.

12. Thirdly, that the nomination was conducted in accordance with rules 8 and 23 of the 3rdRespondent’s Party Primaries and Nominations Rules, 2011. That having said that he was the most popular candidate, there was nothing wrong in the 1st Respondent being handed the direct ticket.

13. There is no evidence showing what the 1st Respondent did anything wrong or that direct nomination is wrong.

2nd Respondent’s Case 14. The 2nd Respondent, represented by Mr Juma, relied on Ms. Catherine Muma’s affidavit.

15. Counsel, Mr Juma, submitted that the Choice of the nomination mode is exclusively the discretion of the party. That this is the position in the Party Primaries Nominations Rules.

16. Counsel added that the Tribunal cannot interfere with that discretion.

17. That nominations are the part of the party exercising its autonomy. That the party has discretion to choose the means of nomination. That once the party has decided to exercise the discretion, that choice cannot be challenged particularly since the discretion is based on said political reasons.

18. Counsel cited Charles Okwemba vs ODM – (2017) eKLR, where a direct nomination was found to be legitimate. He noted that the Complainant’s name was not captured in 4 polling stations only. That the Complainant is only entitled to a refund of his nomination fees.

Complaint’s Response 19. The Complainant’s response was brief. That the Complaint had all the ingredients required in the schedule to the PPDT Regulations. In any event, form cannot defeat substance. Counsel relied on Article 159 of theConstitution for this proposition.

Tribunal’s Analysis And Findings 20. 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 direct nomination was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

21. 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? 22. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v 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.”

23. The issues raised by the 1st Respondent in his Preliminary Objection are on the competency of the proceedings brought by the Complainant before this Tribunal. The 1st 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.

24. The issue of jurisdiction is key as it is everything. In deed 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.”

25. InAgnes Mukami and 5others vsNgewahi 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”

26. 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”

27. 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.

28. We are also of the considered view that the purported nomination of the 1st Respondent is not anew matter. Indeed the 2nd Respondent purported to nominate the 1st Respondent in implementation of its Tribunal’s decision. Hence, 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. It is also our finding that the Complainant has clearly demonstrated an attempt at pursuing Internal Dispute Resolution Mechanisms within the Party by dint of the matter filed, heard and determined by the Party’s Appeals Tribunal.

29. The Preliminary Objection is, therefore, dismissed.

Whether the issuance of the Direct Nomination ticket was in substantial compliance with the law? 30. 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. There is, therefore, no need to rehash the decision of the Tribunal, which is uncontested, anyway. It is the implementation of the 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.

31. 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 theConstitution of Kenya, 2010; as well as Rule 4 of the ODM Party Primaries and Nominations Rules, 2021 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.

32. We have addressed the decision from the twin principles of legitimate expectation and Fair Admistrative Action.

Legitimate Expectation 33. 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."

34. 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)

35. 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.

36. We draw the conclusion that the Party rules, the Political Parties Act and the constitutional provisions fore quoted, created a lawful or legitimate expectation of a participatory process. The past conduct of the Party employing universal suffrage in the impugned nomination exercise, created a promise and expectation that a competitive process would be adopted. The qualifications set in the fore cited authorities have been met.

37. 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 was undertaken. Furthermore, in flagrant violation of the expectation, it issued of a Direct Nomination to the 1st Respondent without consensus or even conducting opinion polls as provided for by the ODM Party Primaries and Nominations Rules. We therefore hold that the Complainant’s legitimate expectation was violated.

Fair Administrative Action 38. In the case of Kisumu, High Court, Petition No 1 of 2017, Inganga Alfred Arunga v 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 theConstitution 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.”

39. 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 1st Respondent. Further, that Article 47(1) of theConstitution 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.

40. 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 1st 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, 38 and 81 of theConstitution of Kenya, 2010.

41. In the upshot, we reiterate that all the contestants in the contest for the subject seat have a legitimate expectation to participate in a free and fair nomination process and to be involved in any decision that materially affects their rights and/or interests.

42. Indeed, the party has several modes of nomination to choose from. Rule 8 of the ODM Party Primaries and Nomination Rules provides:The party primary elections and elections for nominations to Party Lists shall be conducted using the following methods (and in the following order of priority) –a.Consensus among candidates, Party and community representatives.b.Direct nominations.c.The use of delegates system through the Electoral College system.d.Universal suffrage of registered party members (certified by the Registrar of Political Parties)

43. The fore-quoted provision does not give options but a hierarchy or order of priority. Our understanding is that the party would only resort to the last option - universal suffrage - if it had exhausted or failed to identify a candidate for the subject seat using the first three methods. The method used in the impugned election was universal suffrage. It, therefore, logically follows that the party cannot return to the first process in the hierarchical order of priority but repeat what it had conducted, an election by universal suffrage.

44. We, therefore reject the argument that the 2nd Respondent had a right to choose any of the methods outlined in Rule 8 of the ODM Party Primaries and Nomination Rules, 2021. We also find that the socio-political reasons advanced by Mr Juma are not anchored in any provision of law cited, nor do they justify the disregard of constitutional, or statutory provisions. In any event, even if the Party was exercising discretion, the same must always be exercised lawfully and judiciously. Here is a case of caprice and whim, other than consultation and consensus. After all, political parties are supposed to be crucibles of democracy, idealism and inclusivity. It is a paradox that entities created to champion and promote democratic ideals would sacrifice the same on account of some obscure, and unexplained, social political considerations

45. 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 1st Respondent as well as nullify any and all certificates issued to both the Complainant and the 1st Respondent.

46. 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.

47. It is, therefore, an incorrect interpretation to state that the ODM Appeals Tribunal gave the 2ndRespondent a blank cheque in terms of the person to select for the nomination ticket. Furthermore, the 2nd Respondent has not explained how it settled on the 1st Respondent as its 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.

48. Our words in our recent pronouncement in PPDTC E003 of 2022 Elisha Odhiambo v Dr. George Jalango Midiwo and Others, para 68 bears repeating:Once a party invites candidates to put in their applications for party nominations, collects fees from them, and sets dates for nomination, it creates in the candidates/aspirants a legitimate expectation that there will be a level playing field to compete for the positions. It guarantees that it has the ability to hold free and fair nomination processes and to respect the outcome of elections and subsequent decisions of party election and judicial organs, notwithstanding the desires of a few those who occupy top echelons of its leadership. It also assures candidates of the independence, objectivity and impartiality of its judicial and other decision-making organs. The will of the majority is always the essence of democracy. A usurpation thereof by a few in a committee cannot be allowed to stand.

49. 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? 50. 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.

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

Disposition 52. 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 1st Respondent as well as the Nomination Certificate issued to the Complainant herein.iii.Each party shall bear its own costs.

53. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 10TH DAY OF MAY 2022. .................................................HON. DR. WILFRED MUTUBWA OGW C. ARBVICE CHAIRPERSON – PRESIDING..................................................HON. FATUMA ALI MEMBER..................................................HON. WALUBENGO SIFUNAMEMBERSIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBERTHE JUDICIARY OF KENYA.POLITICAL PARTIES DISPUTES TRIBUNAL (PPDT)KISUMU (SIAYA,KISII, NYAMIRA, HOMABAY, MIGORI) DATE: 2022-05-10 20:55:25+03THE JUDICIARY OF KENYA