[2022] KEPPDT 1010 (KLR)

Kawaka & another v Ouma & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Tribunal Case E066 (KSM) of 2022) [2022] KEPPDT 1010 (KLR) (1 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1010 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E066 (KSM) of 2022

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

May 1, 2022

Between

Loice Akoth Kawaka alias Nyasuba

1st Complainant

Roseline Akoth Awino

2nd Complainant

and

Oscar Oluoch Ouma

1st Respondent

Orange Democratic Movement Party (ODM)

2nd Respondent

ODM National Elections Board

3rd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. This matter concerns the nomination of the 1st Respondent Candidate for the Member of County Assembly Seat for South Kabuoch / Pala Ward. The party primaries were held on 14th April 2022. The 1st Complainant, 2nd Complainant and the 1st Respondent were contestants in the said primaries. The 1st Respondent was orally declared the winner of the contest and awarded the 2nd Respondent’s Interim Nomination Certificate, with 1006 votes against the 1st Complainant’s 600 votes and the 2nd Complainant having 34 votes. The 1st and 2nd Complainant were aggrieved by the outcome and challenged the result of the election before the Party’s Appeals Tribunal sitting in Nairobi.

2. The ODM Party’s Appeals Tribunal dismissed the Complainant’s Appeal on the 22nd April 2022 and upheld the nomination of the 1st Respondent. The Complainants were still disenchanted and moved this Tribunal by way of Complaint dated 24th April 2022, together with an Application brought under the cover of a Certificate of Urgency.

3. The matter came up for hearing on 27th of April 2022, when the parties argued the matter orally.The 1st Complainant was represented by Mr. Ochiel; Mr. Julius Juma for the 2nd Complainant, Mr. Nyamweya for the 1st Respondent and Mr. Donex Juma for the Interested Party.

The 1st Complainant’s Case 4. In the main, the Complainant herein, beseeches this Tribunal to nullify the 1st Respondent’s nomination and, instead, to order a fresh exercise to be conducted by the 2nd Respondent.

5. Learned counsel Mr. Ochiel urged the 1st Complainant’s case. He began by underpinning his client’s case on the constitutional provisions relevant to his case. Counsel stated that Article 81 of the Constitution provides for free and fair elections free from violence and intimidation and administered in an impartial, neutral, efficient, accurate and accountable manner. He also cited Article 86 of the Constitution which requires that in every election the voting method used has to be simple, accurate, verifiable, secure, accountable and transparent.

6. He further relied on Article 38 of the Constitution of Kenya 2010, which grants Kenyans freedom to exercise political rights. He emphasized that these legal provisions speak to free and fair elections free of violence, transparent, verifiable and administered by an impartial body. He also pointed to the Political Parties Act, schedule 1 on the Code of Conduct of Political Parties; the ODM Election Rules and Regulations, The Elections Act 2011, the Election Offences Act 2016, The ODM Party Constitution and the ODM Party Primaries and Nomination Rules 2021. He also relied on the ODM code of conduct.

7. The 1st Complainant advanced that there was no voting in 4 out of 5 polling stations in the ward and that no results were declared at any polling station, or at the County Tallying Centre in Homa Bay High School. Furthermore, that at the first three polling stations namely Gina, Ogando and Malele, the 1st Respondent and his goons violently assaulted presiding officers, the Complainant’s agents and supporters and then hijacked polling gadgets. Counsel produced evidence of the assaults having been reported and entered at the Occurrence Book (OB) of Pala Police Station by various witnesses and victims to the violence.

8. Moreover, that at Ogango Polling Centre the 1st Respondent directed one of his goons to hack Ornarice Odote, who was the 1st Complainant’s Chief Agent and robbed her of her phone. The assault and robbery were reported at Pala Police Station (OB/07/14/04/2022). Furthermore, that the 1st Respondent had committed and directed his goons to commit various violent attacks at Gina Polling Centre, Malele Polling Centre as well during the day of the elections.

9. The 1st Complainants avers that on the night before nominations, on 13th April 2022 at 9. 00 pm and later at 2. 00 am, the 1st Respondent sent a horde of over forty thugs to kill her and burn her house that the thugs were only repulsed by her supporters, this incident was reported at Pala Police Station (OB 14/14/04/2022).She further alleged that she received a call from one of the 1st Respondent’s goons threatening to murder and assault her if she did not drop out of the elections, this incident was reported at Pala Police Post as OB/06/21/01/2022.

10. Additionally, she avers that on the 13th of April 2022 five of the 1st Respondent’s goons hacked and chopped off one Mr. Odoyo Jakobita’s ears to punish him for supporting her, and that the victim had publicly named the 1st Respondent’s agents as his attackers. In her pleadings she submitted a video link taken by the Complainant’s agent moments after the incident.

11. Critically, the 1st Complainant observed that the 2nd Respondent did not have any results of the nomination exercise. That no results were declared and announced at the Constituency tallying Centre, since there were no results transmitted from the polling centres whatsoever, and that the National Elections Board of ODM Party does not have and has never shared a photographic of the nomination result slip. Furthermore, that no written declaration or nomination result slip accompanied the oral declaration of results at the Tallying Centre and that National Elections Board (NEB) of the Party did not verify the results or project them in the tallying hall.

12. The 1st Complainant stated that it was well aware that the burden of proof would have been with it to state what the result it was contesting, but in this case there were no results at all. Counsel for the 1st Complainant further argued that it is cardinal that accountability, through full disclosure and verifiability of the result and whole process, be achieved. That this fact alone vitiates the entire process that purported to make the 1st Respondent a winner of an election whose results nobody knows.

13. The 1st Complainant attacked the decision of the 2nd Respondent’s Appeals Tribunal, for dismissing her appeal on flimsy grounds while avoiding the contest that no voting occurred and that no results were declared. Furthermore, that the Tribunal skated over the plea to refer the matter to the DPP and DCI for investigations even though ODM’s Nomination Code of Conduct (on violations) provides that “if the default borders on a criminal offence, the party shall hand over the case to the state.”). In this regard, the Complainant faulted the conclusions by the 2nd Respondent’s Tribunal.

14. The 1st Complainant further submits that she has clearly demonstrated through evidence submitted before this Tribunal that there was violence in the conduct of the elections, having produced several Occurrence Book numbers; and Witness Statements.

15. The 1st Complainant listed several areas where voting allegedly did not take place. She further submitted, that the 1st Respondent has not controverted this allegation. According to her, there could not have been a final tally of results without receiving results from all polling centres in the constituency tallying centre. Declaration of results, she adds, must be done at the polling centre and at the constituency. Such declarations were never made at either place.

16. The 1st Complainant insisted that the process was badly tainted and could not, therefore stand. Reasons wherefore she prays for the following orders:

17. Counsel for the 2nd Complainant aligned with the submissions of the 1st Complainant but went on to add that Article 81 of the Constitution of Kenya 2010 provides that elections should be free and fair and free from violence and corruption. He submitted further that the 2nd Complainant’s cows were stabbed and died and further that the 2nd Complainant’s car was crashed in the presence of the 1st Respondent and on his instructions. He submitted that the elections did not meet the standards set out in Article 86 of the Constitution of Kenya 2010.

18. He urged this Tribunal to take note of the fact that elections did not occur in 4 out of the 5 Polling Stations and that there were no returns submitted b y the Returning Officers to prove that the election did in fact of occur it was therefore his submission that the burden of proof therefore shifts to the 2nd Respondent to prove that there was an election.

19. He urged the court to allow this Appeal and rule in the favour of the Complainants herein.

Respondents’ Case 20. Learned, Counsel, Mr. Nyamweya made submissions on behalf of the 1st Respondents. He submitted that the Complaint herein was nothing more than a fishing expedition. Further, that the complainants did not present the proceedings of the ODM Appeals Tribunal before this tribunal, rather that they only filed the pleadings and the judgment. He went on to state that a serious complaint must be based on facts and that those facts, must be extracted from the evidence before the Tribunal. He submitted that the present complaint is bereft of evidence as most of the Complainants’ evidence is not admissible and that the complaint should be dismissed with punitive costs.

21. It was counsel’s submission that the affidavits and complaints filed by the Complainants are a generalized statement of laws, rules and regulations; to which he called the Complainants to strict proof thereof. Counsel placed reliance on their response filed on 25. 4.2022.

22. Moreover, it was the 1st Respondent’s submission that the Complainants have resigned from ODM Party, and have submitted papers to vie as independent candidates after losing the ODM Party Nominations to him. He further submits that, this is therefore a dispute brought by non-party members against a life member of the party and that as a result the tribunal lacks jurisdiction in this matter.

23. He further submitted, that it was unconstitutional for the Complainants to require the Appeals Tribunal to refer the matter to the Office of the DPP since it is an independent constitutional office; that does not take directions from ODM Party. Moreover, that the ODPP has its own mechanisms of investigating and prosecuting complaints.

24. Further, that it has not been demonstrated how the allegations of assault and stabbing of cows affected the outcome of the results that were conducted and that those crimes should have been prosecuted in the right forums/courts. He further avers, that he has never been summoned to record any statement, arrested in connection with any crime or prosecuted for any offence and that consequently he was innocent in the eyes of the law.

25. He submits further that from his knowledge the electronic voting system used by the ODM Party in the primaries is the most transparent nomination process ever conducted in Kenya and that the Complainants were frustrated by the efficiency of the system and their inability to interfere with the process as they would have if it was manual balloting. Moreover, that the Complainants’ allegations merely consist of newspaper reports, media reports and social media reports whose source cannot be authenticated and whose evidentiary value is nil.

26. It is his submission that the elections took place peacefully in all polling centers and that the results were collated and announced as per the programs of the party. Furthermore, that from the proceedings there is a serious issue of misjoinder as the Complainants have heaped accusations on various parties, who have not made parties to the suit and have thus been denied a right to fair hearing.

27. He avers that the present complaint is incurably, defective, bad in law and is based on baseless generalized allegations without evidence in support of the same. Furthermore, that Applicant has failed to discharge the evidentiary burden placed upon him under Section 107 and Section 109 of the Evidence Act Cap 80 of the Laws of Kenya. Additionally, that the present application is an abuse of the Tribunal’s process and merely meant to drag and delay the nomination exercise.

28. In support of his submission the 1st Respondent drew the Tribunals attention to several cases such as John Kiarie Waweru vs Beth Wambui Mugo & 2others Election Petition No.13 of 2002 which elaborated on the required standard of proof which ought to be discharged by the Claimants in establishing allegation of electoral malpractices, as well as Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others.

29. He also cited Section 83 of the Elections Act which is to the effect that,” no election should be declared 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….”, he submitted that this was to be read alongside the provisions under Articles 81 and 86 of the Constitution of Kenya 2010. On that basis, he stated, that the Complainants have alluded to a number of irregularities that happened during the exercise, however, that they have failed to prove the allegations or how the same affected the elections that were conducted.

30. The 1st Respondent submits that the pictures of cows that were reportedly injured, as submitted by the 2nd Complainant; was as a result of inter communal cattle rustling crimes, and that the affidavit of the owner of the cows was not submitted before this Tribunal. Additionally, that the Complainants evidence is largely based on hearsay and that sufficient evidence has not been produced on the same. Further, that the laws of equity do not permit one to benefit from their own misconduct and that the Complainants were guilty of misconduct by documenting lies to the Tribunal.

31. In conclusion it is learned counsel’s submission that according to Rule 47 and 44 (2) of the Interested Party’s Primaries and Nomination rules, the Complainants are given recourse to appeal to its Appeals Tribunals, as they did. The fact that the tribunal heard the complainant and drew its conclusions, as it did, was in order in the circumstances. And that the decision of the Appeals tribunal was based on the law, and circumstances at hand.

32. Counsel urged us to dismiss the complaint and motion with costs.

The Interested Party’s Case 33. Mr. Juma argued on behalf of the Interested Party he stated that since are no specific orders affecting the interested party that they would abide with whatever decision the Tribunal saw fit to grant.

Complainant’s Rejoinder 34. Mr. Ochiel in rejoinder submitted that Counsel for the 1st Respondent’s claims that this Tribunal lacks jurisdiction since this matter has been referred to internal party IDRM is in fact evidence of said jurisdiction as per the provisions of Sec 40 of the Political Parties Act.

35. Furthermore, that Regulation 10(1) of the Elections (Party Primaries and Party Lists) Regulations2017 states that electoral officials shall conduct the primary, tally the votes and present the results to an election board and that the election board; shall declare the results in Form 2 set out in the Schedule to the Regulations. He submitted that results were not accompanied by Form2 and Photographic evidence as required by the Nomination Rules and was thus in breach of the said provision.

36. Counsel for the Complainant’s Mr. Ochiel urged this Tribunal to find the 1st Respondent culpable of the offences alleged and that he should consequently be disqualified as there are still threats being against the Complainants of violence and rape.

37. In rejoinder to the issue of the Complainants’ being independent candidates who have resigned from the party, Counsel urged the Tribunal to be guided the evidence resented in the Complainants affidavit showing photographs of the Complainants party status. Nonetheless, he submitted that even if the Complainants were Independent Candidates, Section 39 of the Political Parties Act still confers jurisdiction on this Tribunal.

38. In conclusion he urged us to look at the totality of the evidence and draw fair conclusions.

Tribunal’s Analysis and Findings 39. 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 jurisdiction?ii.Whether the election was conducted in substantial compliance with the law?iii.What reliefs should we grant in the circumstances of this case? andiv.Who bears the costs of this case?

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

Whether this Tribunal has Jurisdiction to entertain this matter? 41. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing. 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.”

42. The 1st Respondent argues that the Complainant has not followed the 1st Respondent’s party’s regulations for the IDRM process and therefore cannot approach this Tribunal.

43. 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.”

44. A reading of Section 40 of the Political Parties Act of 2011 as amended by 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”

45. Similarly, in Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another [2015] eKLR the Court of Appeal reiterated the foregoing as follows:“……This court has in the past emphasized the need for aggrieved parties to strictly follow any procedures that are specifically prescribed for resolution of particular disputes (Speaker of the National Assembly V Karume) (supra), was a 5(2) (b) applicant for stay of execution of an order of the High Court issued in Judicial Review proceedings rather than in a petition as required by the Constitution. In granting the order, the court made the often –quoted statement that:“[W] here there is a clear procedure for the redness of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

46. The issue of whether this Tribunal has jurisdiction to entertain this matter thus falls to the question of whether the Complainants have provided sufficient evidence, of an attempt to subject the dispute to the Internal Political Party Dispute Resolution Mechanisms as provided under Section 40 (2) of the Political Parties Act as well as the above cited authorities.

47. It is this Tribunals decision that the requirement for an attempt at IDRM has been satisfied by the Complainant through filing an Appeal before the ODM Appeals Tribunal (Nairobi Tribunal Appeal Number 06. Of 2022 South Kabuoch Ward).

48. This Tribunal hereby rules that it has the jurisdiction to hear this matter, the 2nd Respondents Preliminary Objection is dismissed.

Whether the election was conducted in substantial compliance with the law? 49. The law on the threshold of upsetting an election is fairly settled and the beacons clearly laid in a litany of decisions handed down by superior courts of this country. While there seems to be unanimity on the principles, it bears rehashing the same, if only to demarcate the province of the discourse to follow, and to curve context.

50. It is perhaps convenient to start with Article 81 of the Constitution of Kenya which underwrites the general principles of our electoral system in 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)

51. 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 that written law or that the non-compliance did not affect the result of the election.”

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

53. 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 Kenya in Raila Odinga & Another Vs. IEBC & Others SC Petition No. 1 of 2017.

54. 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, Gitau Peter Munya v Dickson Mwenda Kithinji & Others [2014] eKLR).

55. 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 & 4 Others [2017] eKLR the High Court stated that party primaries were part of the election management cycle. In essence, that an election is a process and not an event. It commences perhaps at the registration of party members/voters, through the choice of the election system to be deployed, nominations and, ultimately, the general election. It is an open secret that in some areas where political parties are strong, the nomination elections may as well be the main election contest.

56. Generally, the parties agree that an election, just like any other human endeavor, is an imperfect undertaking, fraught with human procedural and administrative frailties. What is in contest is the extent of the breaches and the substantial compliance with the electoral laws. That is the burden that is primarily thrust upon the Complainant to establish.

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

58. The 1st Complainant avers that the election failed the test of a free, fair, transparent and accountable process. She states that to date none of the contestants, including the supposed winner, the 1st Respondent, is aware of how many votes he garnered. She blames this situation on the management of the election by the 1st Respondent’s officers. She further submitted that there was no voting in 4 out of 5 of the polling centres, with a combined 3,540 voters; a number which is sufficient to vary the outcome the election). Results were also not declared as required in the polling stations and that the 2nd Respondent’s returning officer could not account for the process in the absence of results being declared at the polling station before transmitting the same to the tallying centre.

58. Our view on this ground of the Complaint is as follows. The Constitution of Kenya is the grundnorm 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.

59. The focal point of elections in Kenya as prescribed by Article 86 of the Constitution, is the polling station. Article 86 (b) of the Constitution is clear in this stipulation, while Article 86 (c) provides for tallying at the constituency level. For ease of reference the provision read as follows:(b)the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;(c)the results from the polling stations are openly and accurately collated and promptly announced by the returning officer;

60. This Tribunal cannot, therefore, countenance an argument, as advanced by the Respondents, that the results announced at the tallying centre without declarations at the polling stations substantially conform with the Constitution.

61. The forgoing Constitutional yardstick also finds place in Rule 43 (1) of the Interested Party’s own Primaries and Nomination Rules, 2021. The provision provides for declaration of results, including where elections were conducted by electronic means, and the requirement for Agents and or candidates present to confirm by signing the form 9A (declaration) or contesting its contents. The Rule reads:The presiding officer shall—a.immediately announce the results of the voting at the polling centre in form 9A;b.request each of the candidates or agents present to append his or her signature;c.Take a photo shot of the results and send the same to the relevant Returning officer by Short Messaging Service (SMS) or any other electronic method.d.provide each candidate, or their agent with a copy of the form of announcement of the results; ande.Place the original copies of the results in an envelope marked with the name of the polling centre and the names of the polling centres that voted at that centre and deliver to the Returning officer (Emphasis added)

62. The use of declaration forms and the requirement for agents to sign thereon is a mechanism used to ensure transparency and accountability of the process, all these processes are not mere bureaucracies but are meant to ensure the election is free and fair. A free and fair election is one which both the winner and loser are assured that every vote was counted and the election was above board.

63. In the current case, it is an uncontroverted allegation that there was no declaration of elections in the polling centres, and that there were no declaration forms 9A collated at the tallying centre, and therefore none were available for agents and candidates to compare and ascertain with the final result. In any event According to the 2nd and 3rd Respondents, the 1st Respondent won by 1006 votes, while the estimate of the 1st Complainant was 600 votes and that of the 2nd Complainant, was 34 votes.

64. It is our view that to uphold the election of the 1st Respondent would be a dereliction and mockery of our constitutional duty, and an abdication of our constitutional mandate. It would regress our democratic gains.

65. In the conduct of these elections the 2nd and 3rd Respondent’s not only breached their own regulations but also the minimum constitutional standard of a free and fair election. The election fell way below the bar set by the Constitution. The Complainants herein adduced evidence of widespread violence spread across the length and breadth of the constituency including Police Station Occurrence Book numbers (OB), and yet the ODM Party Tribunal still held that there was no violence experienced to warrant the annulling of the election.

66. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Other (2012) eKLR: Section 112 of the Evidence Act Chapter 80 of the Laws of Kenya provides: “In civil proceedings, when any fact is especially within the knowledge of a party to those proceedings, the burden of proofing or disproving that fact is upon him”Where a party has custody or is in the control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inferences that if such evidence was produced, it would be adverse to such a party”

67. In a nutshell, the election was not accountable and was held in a noxious environment of violence. The effect of the wrongs was pervasive and substantially permeated the election. There was no declaration of a winner on merit.

68. Our assessment of the facts as a whole draw us to the inescapable conclusion that we must set aside the nomination exercise and order a fresh election.

Who bears the costs of this matter? 69. 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.

70. We thank learned Counsel for their well-articulated submissions and cogent pleadings.

Disposition 71. In the upshot we make the following Orders:i. We allow the appeal and set aside the declaration and nomination by the 2nd and 3rd Respondent of the 1st Respondent as the nominee of the Orange Democratic Movement Party (The 2ndRespondent herein) for the South Kabuoch /Pala Ward Member of County Assembly seat for the August 9th General Election;ii. The 2nd and 3rd Respondents shall conduct a fresh election of the 2nd Respondent’s nominee for Member of County Assembly for South Kabuoch/Pala Ward through a universal suffrage of its members, within 72 hours of this Order; this is to say, on or before 3rd May 2022; iii. Each party shall bear its own costs.

72. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 1ST DAY OF MAY 2022. ........................................Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – Presiding.........................................Hon. Fatuma Ali Member.........................................Hon. Walubengo SifunaMember