[2022] KEPPDT 1053 (KLR)

Kambi v Orange Democratic Movement & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Tribunal Case E014 (KSM) of 2022) [2022] KEPPDT 1053 (KLR) (Civ) (5 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1053 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Tribunal Case E014 (KSM) of 2022

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

May 5, 2022

In The Matter Of The Elections Act, 2011; The Election Laws (amendment) Act; And The Elections (general) Regulations, 2017 And In The Matter Of The Nominations For Member Of National Assembly Position For Borabu Constituency, Nyamira County

Between

Dr. Yabesh Nyandoro Kambi

Applicant

and

Orange Democratic Movement

1st Respondent

Borabu Constituency Returning Officer

2nd Respondent

Patrick Osero

3rd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Background 1. This matter involves a dispute over the nomination of the 1st Respondent’s candidate/nominee to contest in the 9th August 2022 general election for member of National Assembly for Borabu Constituency in Nyamira County.

2. The Complainant and the 3rd Respondent were desirous of clinching the ticket to flag the 1stRespondent party’s flag in the aforesaid elections, and, thus, submitted their candidature therefor. In the ensuing contest, held on April 7, 2022, the 3rd Respondent was declared the winner. The Complainant, aggrieved by the declaration of the 3rd Respondent as the 1st Respondent’s nominee, filed a Complaint before the 1st Respondent’s Appeals Tribunal. Its Application was unsuccessful; and was dismissed by the said tribunal on 27. 4.2022.

3. The Complainant was not satisfied with the decision of the 1st Respondent’s Appeals Tribunal and moved this tribunal by way of a Complaint brought under Certificate of urgency together with an Application seeking interim reliefs.

4. This tribunal considered he Complainant’s Application for interim reliefs and on 28. 4.2022 exparte, issued the following orders and direction:i.The matter is certified urgent and service thereof dispensed with in the first instance.ii.There shall be an interim order restraining the 1st Respondent from presenting the name of the3rd Respondent or any other candidate as to the Independent Electoral and Boundaries Commission or the nominated candidate for the party for Member of National Assembly Borabu Constituency in the 9th August General Elections to the Interested Party, pending inter partes hearing of the matter.iii.The Complainant shall serve this order and all papers filed in this suit upon the Respondents and Interested Party within 24 hours of this order, i.e. on or before end of day 29th April, 2022; and shall file an appropriate return of service.iv.The Respondents and Interested Party shall file and serve their responses to both the Application and Complaint within 24 hours of being served, in any event not later than 30th April 2022. v.This matter (both Complaint and Application) shall be heard on May 1, 2022 at 4. 00pm(vi) Costs shall be in the cause.

5. The Parties appeared before us on May 1, 2022 when they argued their respective cases. The Complainant was represented by learned Counsel Mr. Okullo appearing alongside Mr. Mwachofi. The 1st and 2nd Respondents did not participate in the proceedings despite being served and an Affidavit of Service filed in demonstration of proper service. Mr. Kwaro represented the 3rd Respondent.

6. The prayers sought by the complainant in his statement of claim are as follows:i.An Order do issue restraining the 1st Respondent or its employees and agents from submitting the name of the 3r Respondent to the IEBC as the valid nominee of the 1st Respondent for the position of the member of National Assembly, Borabu Constituency.ii.A declaration do issue that the Appellant is the valid nominee of the 1st Respondent for the position of the Member of National Assembly, Borabu Consistency.iii.A declaration that the award of the nomination certificate to the 3rd Respondent or any other person, other than the Appellant, as the candidate for Member of National assembly, Borabu Constituency, if any is null and void. iv. Costs be borne by the Respondent

The Complainant’s Case 7. The cause of the Complainant’s case as urged by Mr. Okullo and Mr. Mwachofi is as follows:i.That the election did not meet the standards set in article 81 and 38 of the Constitution of Kenya as read with sections 83 of the Elections Act, 2011. ii.That the Complainant was never supplied with forms 9A and 10A as required under the 1stRespondent’s Party Tribunal and Nomination Rules, 2921, despite request in writing.iii.That the 1st Respondent’s Appeals tribunal was first scheduled to deliver its decision on24. 4.2022 but only did so 3 days later.iv.That the matter before the 1st Respondent’s Tribunal was undefended by the 1st and 2ndRespondents yet the Party’s Appeals Tribunal nonetheless dismissed the Complaint.v.That the election was not by secret ballot, there was no civic education, the presiding officers were openly bias, stations did not open until 10. 00am; some voters were allowed to vote without producing original IDs, and that the party register was not used in the election.vi.That one David Osano the 3rd Respondent’s chief campaigner conducted the election on behalf of the 1st Respondent.vii.That one Philip Ataya was allowed to polling station with a mobile gadget which contained a list of names and IDs of voters.

8. The Complainant relied on forms Affidavits sworn by his agents; and asked us to find merit in his complaint.

The Respondent’s Case 9. Mr. Kwaro argued the 3rd Respondent’s case. He first observed that most of the allegations by the Complainant are so generalized that it is difficult to respond thereto. He stated that grievances related to an election should be particularized; for example:i.The names of the Presiding Officer that were alleged to have been bias.ii.The names of persons who were election officers who spent a night at the 3rd Respondent’s home.iii.The names and relatives of persons who voted without IDs.iv.Details including affidavits of persons who were affected by delays in opening of polling stations.v.The names of persons who were bribed and the elections officers, OB numbers of reports made on those accounts.

10. He observed that the allegations regarding Mr Osana and Ataya were never raised with the Returning Officer who was in charge of the elections.

11. He stated that the Complainant was at the tallying centre when results were declared and he was aware of the results.

12. Counsel submitted that the Petition relied on only 4 affidavits of his own agents and hearsay. He urged us to uphold the nomination of the 3rd Respondent and to grant the 3rd Respondent costs of these proceedings.

Tribunal’s Analysis And Findings. 13. We have considered all the materials placed before us and submissions made by Counsel on behalf of the parties. We are of the view that the following matters fall for our consideration and determination:i.Whether the election substantially complied with the law.ii.What orders should we make in this case?iii.Who bears the costs of these proceedings?

14. We will address each issue in the order listed above.

Whether the election substantially complied with the law? 15. Article 81 of the Constitution of Kenya underscores the general principle of our electoral systemin the following words:General principles for the electoral systemThe electoral system shall comply with the following principles— (a) freedom of citizens to exercise their political rights under article 38;b.not more than two-thirds of the members of elective public bodies shall be of the same gender;c.fair representation of persons with disabilities;d.universal suffrage based on the aspiration for fair representation and equality of vote; ande.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; andv.administered in an impartial, neutral, efficient, accurate and accountable manner. (Emphasis added)

16. Article 38 (3) of the Constitution of Kenya is succinct the right to vote in any election by secret ballot as an integral part of the citizens’ enjoyment of political rights. It provides:(3)Every adult citizen has the right, without unreasonable restrictions—a.to be registered as a voter;b.to vote by secret ballot in any election or referendum; (Emphasis added)

17. All elections, without exception, are to be held to the foregoing standard. Section 83 of the Elections Act, 2011, 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 written law or that the non-compliance did not affect the result of the election.”

18. All elections are therefore required to substantially comply with the law. Minor incidences of on- compliance which do not affect the validity of the election may be overlooked.

19. The primary burden of proof is borne by the person challenging the election result. The standard is one above balance of probabilities though not as high as beyond reasonable doubt. This unique standard arises out of the sui generis nature of election related cases, being neither civil nor criminal cases. This standard was affirmed by the Supreme Court of in Raila Odinga & Another Vs. IEBC & Others SC Petition No. 1 of 2017.

20. Where a party alleges non-conformity with the election laws, he must not only prove that there has been non-compliance with the law, but that such failure of compliance affected the validity of the elections (see also, Gatirau Peter Munya Vs. Dickson Mwenda Kithinji & Others (2014) eKLR).

21. The parties agree that a political party nomination through universal suffrage is an election, for all intents and purposes. Indeed, in Emmanuel O. Achayo v. Orange Democratic Party & 4others(2017) eKLR the High Court, stated that party primaries where part of the election management cycle. In essence, that an election is a process and not an event.

22. Generally, the parties agree that an election, just like any other human effort, is not always perfect, it many times is with human, procedural and administrative mistakes. What is in important is to determine the extent of the breaches, and the substantial compliance of the processes with the electoral laws. That is the burden that is primarily borne by the Complainant.

23. It is with the foregoing established legal propositions in mind that we address the grievances advanced by the Complainant.

24. As we observed in our recent decision in PPDTC 019 of 2022 John Andiwo v The National Elections Board (ODM) and Others:The Constitution of Kenya is the grund norm from which all laws spring and must conform to. The principles of the Kenyan electoral system with which all laws must align is set out in Article 81 of the constitution afore-quoted. While we appreciate that a political party has the right to choose an appropriate method of election, in this case electronic or digital, the fundamental overarching constitutional principles that govern such elections remain the same and are immutable. The election must be free and fair, underpinned by a verifiable and accountable process. In other words, it must be able to withstand scrutiny and a forensic audit.

25. The Complainant herein was long on allegations but short of proof. The matters complained of were generalized. In election litigation, proof of allegations to the required standard is critical. It is more critical considering the edict of sections 83 of the Elections Act. It is not enough to making passing allegations since not all irregularities would led to the nullification of an election. A competent Complaint would have to paint a picture of an election that was so badly organized or executed that it cannot be easy or possible to tell who the winner was, or that completely discolored the outcome, irretrievably. It is never an easy task to prove fault in election cases.

26. In the current case, we expected to see evidence of widespread bribery as alleged, complete with police OBs reports and eye witnesses. Allegations of bribery of the polling officers required affidavit evidence to corroborate the accounts of the Complainant’s agents. All allegations by the Complainant were largely lacking in evidence.

27. While we sympathize with the Complainant not securing statutory result forms from the 1stRespondent, we do not see how that act alone would upset the credibility of the election.

28. We note that the election was conducted through electronic gadgets. As we noted in PPTDC No.004 of 2022 Nicholas Kut Ochogo v ODM and others; both Section 38C and the ODM Party Primaries and Nomination Rules do not exclude the use of a digital register.

29. No Independent evidence of the allegations against the said Philp Ataya and David Osano were put before us. No reports to the police on the alleged crimes was presented. No evidence at all to show that what they were doing was unlawful or that the gadget Mr. Ataya carried, if any, contained material not allowed in the voting area.

30. We are not, therefore, satisfied that the Complainant has discharged his evidentiary burned of proof. We agree with the 1st Respondent’s Appeals Tribunal and equally find that the Complaint herein is for dismissal.

Who bears the costs of this matter? 31. 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.

32. In the upshot we make the following determinations and orders:i.We dismiss the Complaint.ii.Each Party shall bear its own costs.

DATED AND DELIVERED AT KISUMU ON THIS 5TH DAY OF MAY 2022. Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – PresidingHon. Fatuma Ali MemberHon. Walubengo Sifuna Member