[2022] KEPPDT 1045 (KLR)

Gumo v Orange Democratic Movement (ODM) & 2 others; Wanyonyi & another (Interested Parties) (Complaint E041 (KK) of 2022) [2022] KEPPDT 1045 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1045 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E041 (KK) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 6, 2022

Between

Michael Magero Gumo

Complainant

and

Orange Democratic Movement (ODM)

1st Respondent

Chairman ODM

2nd Respondent

ODM National Elections Board

3rd Respondent

and

Tim Wanyonyi

Interested Party

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Background 1. The Complainant is a member of the 1st Respondent, a political Party. On the 22nd of April 2022 he participated in the said 1st Respondents party nominations for position of Member of Parliament for Westlands Constituency via the Orange Democratic Movement (ODM) ticket.

2. When the voting stopped the Complainant emerged winner after garnering 1,661 votes. Seven other contestants participated in the party nomination for the said ticket.

3. The Complainant has not been issued with a nomination certificate by the ODM National Elections Board, despite his win. He has lodged numerous requests to the Respondents to be issued with the certificate or in the alternative reasons as to why he has not been issued one, but there has been no reaction.

4. The Complainant, on 26 April, 2022, lodged a formal Appeal with the 1st Respondents elections dispute resolution organ being the ODM Appeals Tribunal.

5. The Tribunal only replied his appeal on 29th April, 2022 via a judgement sent to the complainant’s Advocate. It states in sections 6, 7 and 8 thereof that:i.From the pleading filed before us, we have noted that the 1st Respondent’s formal notice to aspirants dated 22nd April, 2022 in which it indicated that it would issue direct nomination tickets in Westlands Constituency as one of the method for nomination.ii.The Tribunal has established that no elections were scheduled for Westlands Constituency on 22nd April 2022 or any other date and any purported election was not sanctioned by the 1st Respondent and could not therefore be a basis for challenging any outcome at all as the 1st Respondent had already nominated its candidate for the said position.iii.In view of the foregoing we hereby find no merit in both the application and the appeal dated 26th April 2022 and the same are dismissed.

6. Being dissatisfied with the party organs decision the Complainant lodged this complaint before the PPDT on 28th April, 2022 together with a Notice of Motion application dated 28th April 2022 under certificate of urgency.

7. The said Notice of Motion application which was certified urgent sought the following:a.That pending the hearing and determination of this application this Honourable Tribunal be pleased to issue orders restraining the Respondents herein from forwarding the name of any person other than the Complainant herein to the 2nd Interested Party herein as the ODM party’s nominee/candidate for Westlands constituency Member of Parliament position.b.That pending the hearing and determination of the Complaint filed herewith, this Honourable Tribunal be pleased to issue orders restraining the Respondents from forwarding the name of any person other than the Complainant herein to the 2nd Interested Party herein as the ODM party’s nominee/candidate for Westlands constituency Member of Parliament position.

8. The Respondents, though served did not appear at the inter partes hearing and the application having been dispensed off the complaint was scheduled for hearing. The said complaint sought the following orders:-a.An order restraining the Respondents herein from forwarding and /or submitting to the 2nd respondent herein, the name of the Interested Party or any other person, other than the Complainant, as the ODM party nominee for the Westlands Constituency, Member of Parliament position;b.An order declaring that any certificate issued by the Respondents herein to the Interested Party or any other person, other that the Complainant, as the ODM party nominee for the Westlands Constituency, Member of Parliament position is null and void;c.An order compelling the Respondents herein to issue the party nomination certificate to the Complainant herein.d.An order compelling the 2nd Respondent to recognize the Complainant herein as the ODM party nominee for the Westlands Constituency, Member of Parliament position;e.An order directing the Respondent herein to refund the filing fee paid by the Complainant herein.f.Any other relief that the Honourable Tribunal may deem just and fit to grant in the circumstances.

9. The 1st 2nd and 3rd Respondents, through their Advocates on record, filed a Replying Affidavit sworn by the Chairperson of the NEB [National Elections Board] as well as their written submissions both dated 2nd May 2022.

10. The 1st Interested Party, through their Advocate on record filed a Replying Affidavit sworn on 1st May 2022.

11. The 2nd Interested Party though served, did not respond to the complaint.

The Complainant’s Case 12. The Complainant states that he is a member of the ODM Party and was one of the aspirants for the Member of National Assembly- Westlands Constituency.

13. The Complainant submits that he followed and partook in all requisite processes to be nominated as a party candidate in accordance with the party’s constitution.

14. On the 22nd day of April, 2022, the Complainant participated in ODM party primaries where the Complainant emerged as the winner amongst the seven (7) aspirants, having garnered 1,661.

15. He states that despite this win, the Complainant has not been issued with the nomination certificate or at the very least a provisional certificate by the Respondents.

16. The Complainant argues that this is prejudicial to him, considering the fact that he won in a fair manner and provisional certificates have already been issued to other successful aspirants in other constituencies in Nairobi whose nomination was done on the same day.

17. The Complainant also notes that his victory has not been disputed by the other aspirants.

18. The Complainant says that he has made numerous requests to the Respondents to be issued with the certificate or at the very least, reasons why he is yet to be issued with a provisional certificate but these attempts did not elicit any response.

19. He wrote a letter to the ODM National Elections Board on 25th April, 2022, enquiring why he had not been issued with an interim nomination certificate for Westlands Constituency.

20. The Complainant submits that he also followed up the matter informally at which point he heard that the 1st Respondent was planning to give a direct nomination to the current MP for Westlands Tim Wanyonyi, the 1st Interested Party.

21. On 26th April, 2022, the Complainant lodged a formal Appeal at the 1st Respondent’s Appeals Tribunal.

22. The Complainant heard back from the ODM Appeals Tribunal on 29th April, 2022 through a judgment sent to the Complainant’s Advocates via email.

23. In its decision, the Appeals Tribunal states that:“no elections were scheduled for Westlands Constituency on 22nd April, 2022 or any other date and any purported election was not sanctioned by the party’s National Elections Board and could not therefore be a basis for challenging any outcome at all as the board had already noted its candidate for the said position.”

24. The Complainant avers that;a.None of the parties was given a chance to be heard before the 1st Respondent’s Appeals Tribunal rendered itself on the matter, and any decision purportedly made therefore is affront to the parties right to fair hearing;b.The candidate allegedly nominated was on the list of the party’s gubernatorial candidates and there is no process in law that allows the Respondents to issue a certificate to a person who did not subject himself to the nomination process adopted by the party and already conducted; andc.The term of the said tribunal expired on the 27th day of April, 2022 and therefore, any decision purportedly made post the said date is null and void. It is for the aforementioned reasons that the Complainant herein subjects this as a crystallized dispute before this Honourable Tribunal.

25. The Complainant prays that his complaint be allowed.

The 1st 2nd and 3rd Respondent’s Case 26. It is the 1st, 2nd and 3rd Respondents case that key applicable laws during the ODM party nomination for purposes of the general elections slated for August, 2022, are the Orange Democratic Movement Party Primaries and Nomination Rules, 2021 and the Constitution of the Party.

27. The said laws allow the National Elections Board the liberty to consider the several factors set out under rule 22(2) and 23 (on Direct nominations) of the Rules. In particular, the Party may award a direct nomination ticket to a candidate where the Party leadership has for compelling reasons recommended that it is in the best interest of the Party to do so. By dint of rule 4 of the Rules, the overriding objective of the Party is to select the strongest candidates that will position the Party to win the relevant electoral seat. These considerations and principles were at all material times in the knowledge of all aspirants including the Complainant herein.

28. The said Respondents further submit that in any event unless and until a nomination certificate is awarded to a candidate, the said considerations and principles always apply and a right to a nomination would only crystallize once the nomination certificate is formally awarded to a candidate.

29. In the instant case it is not denied that the 1st Interested Party was awarded the direct nomination as the party’s candidate for Member of National Assembly - Westlands Constituency. A decision premised on relevant political exigencies and made in accordance with the party constitution and nomination rules in the best interests of the party.

30. They submit that at the heart of this case is the Complainant’s claim of legitimate expectation that he would be awarded the party’s nomination certificate having participated in the suspended nomination of the party’s candidate for Member of National Assembly - Westlands Constituency.

31. They cite the Supreme Court of Kenya which provided an instructive exposition of the concept of legitimate expectation and its application in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others[2014] eKLR and in essence submit that even where a legitimate expectation is established, the same can for rational and good reason be varied and/or withdrawn and each case to be considered on its peculiar facts and circumstances.

32. Applying this reasoning in the instant case, the Respondents submit that the decision to award the 1st Interested Party a direct nomination was made pursuant to rule 4 as read with rule 23 (direct nominations) and took into account all relevant circumstances including the party’s confidential evaluation of the suitability and the relative competitive positions of all other candidates for the said position made in good faith and in the best interests of the ODM party and its members.

33. It is their case that the complainant knew that the NEB had vide a public notice cancelled the scheduled elections in Westlands constituency for position of Member of Parliament. Taking into account the circumstances under which political decisions are made, the said notice was fairly and reasonably issued. The Rules do not in any way set out any limitations in the manner in which suspension or cancellation of elections ought to be undertaken. This was deliberately intended to allow the NEB sufficient latitude to exercise all express and incidental powers as may from time to time be necessary for the effective discharge of its mandate in the best interest of the Party.

34. There were no elections in Westlands constituency for the nomination of an ODM candidate for Member of National Assembly as envisaged under the Rules and no results were submitted to nor certified by NEB for the position of ODM candidate for Member of National Assembly as envisaged under Rule 47(3) of the Rules.

35. That, the Complainant’s expectations ought to be balanced against the public interest in the unfettered exercise of the Party’s discretion.

36. They conclude by urging the Tribunal to balance the complainant’s interests with the larger public interest of the ODM party, to effect the principle of political party autonomy and to defer to the political judgement and decision of the ODM Party to nominate the 1st Interested Party as its preferred candidate for Member of National Assembly, Westlands Constituency.

The 1st Interested Party’s Case 37. The 1st Interested Party adopts and relies in toto on the averments in the Replying Affidavit sworn by the Chairperson of the ODM National Elections Board in response to this complaint.

38. He relies on his Replying Affidavit sworn on 1st May 2022 and confirms his dedication and service to his party.

39. He prays that this complaint be dismissed with costs.

Issue For Determination 40. The Respondents submit that the initial nomination process by way of universal suffrage was stopped/cancelled and instead the party opted to directly nominate its candidate for the position in issue. The Complainant on the other hand submits that the nomination process by way of universal suffrage proceeded.

41. The issues we have identified for determination are:i.Were nominations by way of universal suffrage for the position of MP Westland’s on an ODM ticket carried out on 22nd April 2022?ii.If the answer to (i) above is in the affirmative, did the process identify a winner?iii.Was the issuance of a party nomination ticket for the position and seat in issue to the 1st Interested Party lawful?iv.What orders should be made?

Analysis Were nominations by way of universal suffrage for the position of MP Westland’s on an ODM ticket carried out on 22nd April 2022? And did the process identify a winner? 42. We have before us annex 1 in the Complainants bundle of documents being computer generated results showing that there was some nominations process as the said annex on the ODM letterhead is generated from polling returns for various positions within Nairobi county, with the position in issue included therein.

43. The said annex 1 indicates that the Complainant garnered the highest number of votes for the position in issue.

44. We have also seen the decision delivered by the ODM Appeals Tribunal which states at paragraph 7;“The Tribunal has established that no elections were scheduled for Westlands Constituency on 22nd April 2022 or any other date and any purported election was not sanctioned by the 1st Respondent and could not therefore be a basis for challenging any outcome at all as the 1st Respondent had already nominated its candidate for the said position”.

45. We note that the Respondents aver that they cancelled the said scheduled nomination albeit late in the process and actually on the very day that the said nominations were scheduled to take place. This is shown by the Chairperson of the NEB who has attached to her Affidavit, a communication on the party letterhead relaying the said resolution to cancel the said nomination and which communication is dated the date of the purported nomination process.

46. The said cancellation is supposed to have been occasioned by the meeting of the Central Committee held on 21st April 2022 as shown in the annexure attached to the affidavit of the said Catherine Mumma.

47. This information before us presents a picture that there were nominations scheduled for 22nd April 2022. That much is clear. This in effect means that the party had in line with section 38A of the Political Parties Act chosen to nominate a candidate for the position in issue by way of universal suffrage.

48. What remains unclear is whether the said nominations were cancelled in time for the process to have been rendered inconsequential as far as determination of the party nominee is concerned.

49. To gain some clarity we look to the party nominations rules to see what it provides on cancellation of a nomination. Perusal of the said rules shows that they do not speak to cancellation of an election. The closest process envisaged in the rules is postponement. The said rules as provided by the Respondents at part 30 thereof states as follows: Postponement of an election by the NEB (1) The NEB may, where a date has been appointed for holding an election, postpone the election for such period as it may consider necessary where— (a) there is a reason to believe that a serious breach of peace is likely to occur if the election is held on that date; and (b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies.(2) Where an election is postponed under sub-rule (1), the election shall be held at the earliest practicable time.

50. The provision above indicates that there could arise a situation where the party can postpone and election, we do not see any provision though, for cancellation of an election.

51. In the circumstances we are inclined to give the Complainant the benefit of doubt and find that there was a clear attempt by the ODM party to conduct an election so as to identify the party nominee for the position in issue. This attempt by the said party created some legitimate expectation among the membership and more particularly among the aspirants.

52. From the documents presented before us, in particular the computer generated results, it appears that the process identified one aspirant as being in the lead, that aspirant is the Complainant.

53. Could these results be deemed the final results after a successful day of voting? The rules provide the process by which the winner of such process is declared through the tallying process that concludes with officials and aspirants signing the form. This tallying provides, in our opinion, a process by which all aspirants can congregate at close of the exercise and identify the winner. We however, cannot, from the information presented before us conclude that a winner was identified and determined. This is because the tallying process outlined in the party laws is not shown to have taken place. We note that the said rules provide at part 23 (vi) that the results shall in sub-paragraph (v) above shall be digitally transmitted to NEB by the County Returning Officer who shall take a photograph of the results declaration form and share the photographic images of the results as reflected and signed by the Presiding Officer, candidates and/or their agents.

54. The results submitted by the Complainant are not signed. Not by any Officer or even any aspirant or agent. We cannot fail to take note of this.

55. Additionally it is odd that none of the other aspirants have been enjoined as witnesses, respondents or interested parties in this complaint and we also note that like the Complainant none of the other aspirants were heard before the party Tribunal. Could this be because the other aspirants were aware and accepted that the election was called off? From the information presented before us we cannot conclude that the voting on 22nd April in reference culminated in a final tally and thus identification of a ticket holder.

56. In the circumstances, on this second issue we find that the scales tilt in favour of the Respondents that the said nomination did not conclude in the identification of a ticket holder as they were stopped vide the communication sent out by the NEB Chairperson as shown in her attachment to her Replying Affidavit.

Was the issuance of a party nomination ticket for the position and seat in issue to the 1st Interested Party lawful?. 57. In order to apply our minds to unpacking this we ask ourselves, ‘what process initiated the identification of the 1st Interested Party as a nominee?

58. We are told by the Respondents that it is the outcome of talks among coalition partners that led to the party organ [central committee] meeting to adopt the resolutions arising from those talks and thereby resolve to issue a direct nomination to the 1st Interested Party.

59. This process as outlined by the Respondents is not one we can see in their rules.

60. According to party laws, the organ with the mandate of conducting party nominations is the NEB. The process by which they are to conduct such nominations is outlined in the party laws, which are required to align to the Political Parties Act.

61. The Political Parties Act at section 38 requires parties to nominate through direct party nomination method; or (b) indirect party nomination method.

62. Where a party nominates for one then changes its mind, it is expected that members and aspirants will be advised of the change. In deed the rule of law requires that aspirants and in deed the membership are adequately informed.

63. In fact we note that the party laws recognise the need to respect and uphold the rights of all its members even as the party leadership retains the duty and role of propelling the party to a win at each election in which it fields a candidate.

64. Part 8. of the party rules provides for ‘Methods of Conducting Party Primary Elections’ and list them in order of priority; 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 the delegates system through the Electoral College system.d.Universal suffrage of registered party members (certified by the Registrar of Political Parties).

65. The said party rules go on to provide as follows; in cases where there is direct nomination“(2)Where direct nomination is the method to be applied, the NEB shall carry out a due diligence exercise to justify the use of this method. The due diligence exercise shall take into consideration any of the following: (a) That there is consensus by candidates as set out above."

66. In deed these rules are in sync with the constitution of the land which at article 47 as read together with Section 4 of FAA Act No. 4 of 2015 makes provision for fair administrative action. An administrative action is defined under section 2 of the FAA Act to include any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. It therefore follows that the Respondents were bound to apply the principles of natural justice in making any decision that is likely to impact the rights of any of their members, each of whom is equally valuable.

67. In light of our analysis we find that the procedure applied by the party was not lawful

Disposition 68. In making our orders we have taken cognizance of the fact that the complaint has shown that there were at least 7 aspirants who expressed interest in and participated in the postponed nomination in issue.

69. In light of our analysis and findings we order as follows:a.That the certificate issued by the Respondents herein to the 1st Interested Party or any other person, as the ODM party nominee for the Westlands Constituency, Member of Parliament position is null and void;b.That the Respondents conduct a proper nomination process that adheres to their laws and recognizes the rights of all aspirants who expressed interest in participating in the party nominations for the identification of its ticket holder for Member of Parliament Westlands constituency forthwith and in any event within 72 hours of issuance of this order.c.That the costs of this complaint are awarded to the Complainant as against the 1st Respondent.d.That notification of this order issue to the 2nd Interested Party.

DATED THIS 6TH DAY OF MAY 2022. ........................................................M. L. ODONGO(PRESIDING MEMBER)........................................................TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)........................................................DR. LYDIAH WAMBUI(MEMBER)