[2022] KEPPDT 1047 (KLR)

Khalif v Orange Democratic Movement Party & another; Kapeen (Interested Party) (Complaint E037 (NRB) of 2022) [2022] KEPPDT 1047 (KLR) (Civ) (16 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1047 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E037 (NRB) of 2022

G. Gathu, Presiding Member, W Ngige & L. Kinyulusi, Members

May 16, 2022

Between

Abdi Osman Khalif

Complainant

and

Orange Democratic Movement Party

1st Respondent

Ibrahim Abass Khalif

2nd Respondent

and

Dianah Kapeen

Interested Party

Judgment

1. This dispute concerns the nomination of a candidate to vie for the position of Member of County Assembly, South-C Ward, Nairobi County Assembly by the 1st Respondent. The Complainant was one of the people who were interested in vying for the position.

The Complainant’s Interest was also shared by the 2nd Respondent. 2. The Claimant herein claims to have participated in the 1st Respondent’s nomination held on the 22/04/2022 for the post of Member of County Assembly for South C Ward within Langáta Constituency where he was declared a winner after the votes were tallied through the electronic gadgets provided by the 1st Respondent. The Complainant claims that in spite of the votes for the South C Ward having been tallied and a winner determined, the 1st Respondent issued the 2nd Respondent with the final nomination certificate.

3. Being aggrieved, the Complainant filed an application by way Notice of Motion under a Certificate of Urgency dated 27th April 2022. On 4th May 2022, the Complainant filed a Complaint. Inter alia, the following orders were sought: -a.That this application be certified urgent and heard ex parte in the first instance.b.That this Honourable Court be and is hereby pleased to grant a temporary interlocutory injunction barring the 1st Respondent from presenting any Nomination Certificate; Provisional and/or Final to the Independent Electoral and Boundaries Commission (“IEBC”) declaring the 2nd Respondent as the winner of the 1st Respondent’s Party Nominations held on 22nd April 2022 (“the Party Primaries”) for the position of Member of County Assembly of Nairobi for the South-C ward pending hearing and determination of this Application/Complaint.c.That the Honourable Court be pleased to declare that the Applicant/Complaint herein was the validly nominated Member of County Assembly of Nairobi for the South-C ward that took place in South-C Ward and therefore there is no basis for the 1st Respondent to award the 2nd Respondent with the nomination certificate.d.That the Honourable Court be pleased to direct that the 1st Respondent do issue the Nomination Certificate to the Hon. Abdi Osman Khalif as the validly nominated Member of County Assembly of Nairobi for the South-C ward.e.That in the alternative and in case the 1st Respondent has already forwarded the 2nd Respondent’s name to the 1st Respondent the Honourable Court be pleased to issue orders nullifying the said issuance.f.That the Honourable Court be pleased to issue a Mandatory Order compelling the 1st Respondent to submit the name of the Appellant to the IEBC as its nominee for the position of the Member of County Assembly of South -C Ward Langata Constituency.g.Costs of the Claim.

4. The Complaint and the aforementioned application are opposed. The 1st and 2nd Respondents’ have filed their responses to the Complaint and the application.

5. The Complainant applied to cross-examine one Caroline Angote and Catherine Mumma on the contents of their Replying Affidavits. The 2nd Respondent also applied to cross-examine the Complainant on the contents of his Supporting Affidavit. Both applications were allowed.

6. On 5th May 2022 one Dianah Kapeen through the firm of Okonji Wanjira & Associates made an application to be enjoined as an Interested Party. Via a ruling delivered on 7th May 2022, the said application was allowed.

7. When the Complaint was filed on 4th May 2022, the 2nd Respondent also filed a Notice of Motion application dated 5th May 2022, seeking orders to strike out the entire Complaint on grounds that the same is bad in law, fatally defective, incompetent a non-starter and an abuse of the court process.

8. The Tribunal directed that the application by the 2nd Respondent dated 5th May 2022 and the 1st Respondent’s Preliminary Objection dated 5th May 2022 would be heard together with the Complaint.

The Complainant’s case 9. The Complainant and the 2nd Respondents are registered members of the Orange Democratic Movement (ODM) party the 1st Respondent. Amongst other aspirants, they wished to vie for nomination for the position of Member of County Assembly South C Ward Langata Constituency under the umbrella of the 1st Respondent.

10. It is the Complainant’s case that on 22nd April 2022 he contested in the 1st Respondents’ nomination exercise for the position of the Member of County Assembly seat, South C Ward within Lang’ata Constituency, which he alleges was conducted by way of an election. The Complainant alleges that the votes for the said elections were tallied through the electronic gadget provided by the 1st Respondent and the results announced wherein the Complainant emerged as the winner. The Complainant states that despite this, the 1st Respondent issued the 2nd Respondent with the nomination certificate.

11. The Complainant claims to have written a complaint letter to the 1st Respondent asking why it had taken them more than 24 hours to issue the interim certificate to him and yet other aspirants had been issued with the Certificates. The Complainant claims that the 1st Respondent will present a list of the party members nominees for various elective seats to the Independent Electoral and Boundaries Commission (“the Commission”) and he is most likely to lose out yet he was duly elected as a nominee for the 1st Respondent for the South C Ward.

12. The Complainant claims that he has a legitimate expectation that he would be issued with the nomination certificate by the 1st Respondent. The Complainant states that unless this court intervenes and grants him the orders he has applied for he stands to suffer substantial loss. He adds that if the orders sought are not granted the unlawful, and irregular issuance of the final nomination certificate to the 2nd Respondent would be legitimized disenfranchising the will of the people of South C Ward. The Complainant maintains that the 1st Respondent’s actions are unlawful, and illegal and must be restrained by an order of this Tribunal to restore the sanctity of the nomination process as provided by law and to restrain the 1st Respondent from continuing with the illegalities. He maintains that he stands to suffer irreparable loss unless the Tribunal intervenes and issues the orders sought in the complaint. He prays for the orders sought in the Complaint and the Notice of Motion application.

The 1st Respondent’s case 13. The 1st Respondent filed its response to the Complaint through the affidavits of Catherine Mumma and Caroline Angote both sworn on 2nd May 2022. The 1st Respondent also filed a Notice of Preliminary Objection dated 5th May 2022 as aforesaid. The 1st Respondent states that it is a political party governed by a Constitution and Rules passed by its National Delegates Convention pursuant to section 9 of the Political Parties Act. It avers that for the purpose of the forthcoming general elections slated for August 2022, the Orange Democratic Movement Party Primaries and Nomination Rules (2021) and the Constitution of the Party are the applicable rules guiding the nomination and/or election of candidates.

14. It is the 1st Respondents case that pursuant to clause 6(2) of the Party Primaries and Nomination Rules 2021, the National Elections Board (NEB) has the mandate to plan, organize, direct, conduct, supervise and/or coordinate all party primaries and nomination of candidates for all elective seats where the party fields a candidate. The 1st Respondent further states that in so doing, the NEB is at liberty to inter-alia consider the several factors set out under rule 22(2) and 23 (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. The 1st Respondent avers that these considerations and principles were at all material times in the knowledge of all aspirants including the Complainant herein. In the 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.

15. The 1st Respondent states that the NEB issued a Public Communique to all aspirants in Nairobi County that clearly indicated the areas and positions for which the party would be carrying out nominations by universal suffrage. The 1st Respondent states that nomination of the MCA candidate for South C Ward was not included in the said communique.

16. The 1st Respondent indicates that contrary to the Complainant’s allegations, no results were announced or submitted to nor certified by the NEB for the position of Member of County Assembly South C Ward as envisaged under Rule 47(3) of the aforesaid Rules.

17. On the alleged results produced by the Complainant in support of its case, the 1st Respondent indicates that the same were not generated by the NEB or any of its authorized representatives and maintains that they are concocted.

18. The 1st Respondent maintains that the Central Committee’s decision to award the 2nd Respondent direct nomination for the stated position was made in good faith and in the best interest of the ODM Party having taken into account all relevant circumstances including the party’s confidential evaluation of the suitability and relative competitive positions of all other candidates for the said position.

19. The 1st Respondent states that in the instant case it is not denied that the 2nd Respondent was awarded the direct nomination as the party’s candidate for Member of CountyAssembly - South C Ward. The 1st respondent submits that the said decision was premised on relevant political exigencies and made in accordance with the party constitution and nomination rules in the best interests of the party.

20. As regards the Complainant’s claim to a legitimate expectation that he would be awarded the nomination certificate, the 1st Respondent relies on the decision of the Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR to argue that a legitimate expectation can for rational and good reason be varied and/or withdrawn. The 1st Respondent therefore states that no legitimate expectation can be said to have been violated by dint of the Party’s exercise of a legitimate mandate intended to give effect to the objectives of the party under rule 4 of the Rules in the larger interest of its membership.

21. The 1st Respondent says that this is more so where the Complainant knew that the NEB had via a public notice cancelled the scheduled elections in South C Ward for position of Member of County Assembly. Taking into account the circumstances under which political decisions are made, the 1st Respondent submits that the said notice was fairly and reasonably issued.

22. The 1st Respondent states that for all intents and purposes therefore, there were no elections in South C Ward for the nomination of an ODM candidate for Member of County Assembly as envisaged under the Rules and no results were announced, submitted to nor certified by NEB for the position of ODM candidate for Member of County Assembly for South C ward as envisaged under Rule 47(3) of the Rules.

23. The 1st Respondent states that in any event, the Complainant’s expectations ought to be balanced against the public interest in the unfettered exercise of the Party’s discretion.The 1st Respondent accordingly urges 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 2nd Respondent as its preferred candidate for Member of County Assembly, South C Ward.

The 2nd Respondent’s case. 24. The 2nd Respondent filed a Replying Affidavit sworn on 3rd May 2022. The 2nd Respondent also filed a Notice of Motion dated 5th May 2022 as aforesaid seeking to strike out the Complaint.

25. The 2nd Respondent states that he is a life member of the 1st Respondent and states that he had applied to the party to be nominated as an aspirant for the position of Member of County Assembly for South C Ward. After his registration was accepted, he campaigned within the South C Ward area in preparation for the nomination exercise.

26. He claims that it was in the public domain that the 1st Respondent indicated that it would give direct nominations for various positions as will be dependent on various factors including the strength of a candidate, demographics, popularity of an aspirant and also results of the opinion polls that were to be conducted by the Party.

27. It is the 2nd Respondent’s case that it is from the above background that he was duly nominated by the 1st Respondent as its candidate for the South C Ward Member of County Assembly seat. He maintains that the decision to nominate him was publicized by the party and he was duly issued with a nomination certificate as per the 1st Respondent’s Constitution and Regulations.

28. He also makes a case, similar to the 1st Respondent’s as to the 1st Respondent’s power to issue direct nominations. He contends that the Complainant was fully aware of the party’s position on the issue of conducting universal suffrage for the MCA position in respect of the South C Ward noting that the Party NEB issued a public communique to all aspirants in Nairobi County that clearly indicated the areas and positions for which the party will be carrying out nominations by universal suffrage, Nomination of the MCA candidate for South C Ward was not included in the said communique.

29. He reiterates that contrary to the assertions by the Complainants on the elections in South C Ward, the same were strictly in respect of the position of Member of National Assembly Langata Constituency and not for Member of County Assembly South C Ward. He states that the pictures annexed by the Complainant to demonstrate that elections took place are inconclusive for purposes of his Complaint.

30. He confirms that contrary to the complainant’s allegations, no results were announced or submitted to nor certified by the National Elections Board for the position of Member of County Assembly South C Ward as envisaged under Rule 47(3) of the Rules.

31. He maintains that the Complainant has not challenged the ODM Party decision to award him a direct nomination for South C MCA seat and neither does he deny the fact that the Party is empowered by its constitution to award him the said direct nomination.

32. He adds that a cause of action cannot arise from an non–existent process and that this Tribunal can refuse to exercise jurisdiction from a non-existent cause of action more so in a situation where an applicant prays for orders that cannot be enforced by this Tribunal.

The Interested Party’s Case 33. The Tribunal gave directions that the Interested Party's role would be limited to filing Submissions on legal issues. The Interested Party however went ahead to file a Replying Affidavit sworn on 8th May 2022 by the Interested Party.

34. An issue was raised as concerns this affidavit having been filed outside of the directions issued by the Tribunal. The Tribunal will address this issue later in this judgement.However, the Interested Party’s case is that she was an aspirant for the position of Member of County Assembly in South C ward. She learnt that the 1st Respondent would not be using universal suffrage to identify its candidate and had instead settled on direct nomination. She states that she was happy with this decision and confirms that no elections took place as regards the said position on 22nd April 2022.

Issues for DeterminationHaving reviewed the pleadings, read the Parties’ submissions and listened to the cross - examination of witnesses, the Tribunal finds the following as the issues for determination:-a.Whether the Tribunal has jurisdiction to hear and determine this matter.b.Whether the Complainant is properly before the Tribunal.c.Whether there was an election by way of universal suffrage for the position of the 1st Respondent’s candidate for election of Member of County Assembly in South C Ward.d.Whether the nomination of the 2nd Respondent for the position of the 1stRespondent’s candidate for election of Member of County Assembly in South C Ward was lawful.

Analysis and Findings a.Whether the Tribunal has Jurisdiction to hear and determine this Matter 35. The 1st Respondent has raised a Preliminary Objection to this Tribunal’s jurisdiction based on the fact that the Complainant did not attempt to address his Complaint through the 1st Respondent’s Internal Dispute Resolution Mechanisms (IDRM) prior to institution of this suit.

36. We will deal with this issue first as a Court or Tribunal must satisfy itself that it has jurisdiction. Jurisdiction is everything. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR held that: -“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

37. The jurisdiction of the Political Parties Disputes Tribunal (PPDT) flows from section 40 (1)of the Political Parties Act. The nature of the dispute herein concerns party primaries. The PPDT is specifically clothed with jurisdiction to deal with disputes concerning party primaries under section 40(1) (fa) of the Political Parties Act. Section 40 (2) of the Political Parties Act provides as follows:“Notwithstanding subsection (1) the Tribunal shall not hear and determine a dispute under paragraph (a), (b), (c), and (e ) or f (a) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the Internal Political Party Dispute Resolution Mechanism”

38. It has not been disputed that the Complainant did write to the 1st Respondent seeking to be issued with his nomination certificate. It is, of course, arguable that the Complainant was not instituting a dispute but was demanding for his nomination certificate and that the said letter was not addressed to the proper IDRM forum. However, the 1st Respondent did not deny having received this letter and never responded to the same to inform the Complainant of its position as regards his demands. As such, guided by the decision of this Tribunal in John Mworia Nchebere & Others v The National Chairman Orange Democratic Movement & Others (Nairobi PPDT Complaint No E002 of 2022) we have no hesitation in finding that the Preliminary Objection dated 5th May 2022 is not merited and we dismiss it with no orders as to costs.

Whether the Complainant is properly before the Tribunal. 39. The 2nd Respondent filed a Notice of Motion application dated 5th May 2022 seeking to have the entire Complaint struck out for non-compliance with the provisions of Regulation 7 of the Political Parties Disputes Tribunal (Procedure) Regulations 2017(“the Regulations”).

40. The Tribunal notes from its record that on 4th May 2022 it did enquire from the Complainant whether he had filed a Complaint. The Complainant’s Counsel indicated that he had indeed filed a Complaint. However, it would turn out not to be the case and the Complainant went ahead to file a Complaint on 4th May 2022 at 16:38 hours. This triggered the application dated 5th May 2022 by the 2nd Respondent.

41. In making the enquiry on 4th May 2022, the Tribunal was not wading into the arena of conflict but was fulfilling its implied duty under regulation 9 of the Regulations which provides that: -“Where an aggrieved party makes a complaint in writing to the Tribunal other than in the prescribed form, the Tribunal may, after holding a preliminary hearing with the complainant, require that the complaint be reduced into the prescribed form and proceed with it in accordance with these Regulations.”

42. In accordance with the aforesaid rules, the record is clear that the Tribunal never ordered the Complainant to file a Complaint in the prescribed form. This is because the Complainant’s Counsel was very clear that he had filed a Complaint. Nevertheless, upon realizing that a Complaint had not actually been filed, the Complainant went ahead to file one without leave of the Tribunal.

43. The Complainant in his submissions and during cross examination of witnesses, attempted to show that what he filed on 27th April 2022 before this Tribunal was a Complaint. We have looked at the documents filed by the Complainant on 27th April 2022 and none is a Complaint within the meaning of regulation 7 of the Political Parties Disputes Tribunal) Procedures Regulations 2017.

44. Whilst we have no hesitation in finding that the documents filed before the Tribunal on 27th April 2022 were not a Complaint, we are reluctant to strike out the Complaint on that basis alone. We have indicated that we are alive to the provisions of regulation 9 of the Regulations as well as section41(4) of the Political Parties Act, 2011 and Article 159 (2)(d) of the Constitution of Kenya 2010.

45. We therefore dismiss the 2nd Respondent’s Notice of Motion application dated 5th May 2022 with no orders as to costs.

Whether there was an election by universal suffrage for the position of the 1stRespondent’s candidate for election of Member of County Assembly in South C. 46. The Complainant alleges that elections for South C ward did take place and he has provided what he claims are results from the said exercise. The Complainant’s results have been disputed by the 1st Respondent which has provided what it states are the authentic results.

47. We did indicate that we would address the issue of the Interested Party’s Replying Affidavit later in this judgement and this is the place to do so. While the Interested Party filed the said affidavit outside the directions of this Tribunal, we note that the same raises factual issues that would have aided the Tribunal in arriving at a just determination of the issues. However, for the reason that the Complainant did not get an opportunity to rebut the averments in the said affidavit, we find that it is only fair and just that we do not consider the said affidavit.

48. Back to the issue of elections, the 1st Respondent’s returning officer testified under oath and confirmed that no elections took place in South C ward for the seat of MCA and she did not declare any results for such. That evidence was not shaken even under intense cross-examination by the Complainant’s able Counsel. It is not disputed that the 1st Respondent’s Returning Officer is the custodian of results and that she had the powers to declare results.

49. The photographs that the Complainant relies on to point out that an election did indeed take place cannot be relied on to confirm with certainty that they relate to the election of Member of County Assembly for South C Ward. The 1st Respondent did state that elections for Member of Parliament for Lang’ata Constituency did take place at South C ward and this was not disputed by the Complainant. What then is the distinguishing feature that is to establish that those photographs were not for the elections of Member of Parliament as opposed to Member of County Assembly? There is none whatsoever and the Tribunal cannot make a finding that elections for MCA in South C ward did take place on the basis of the said photographs.

50. Moreover, the Complainant states that he got the results that he claims were the final results from the same social media pages that the 1st Respondent claims to have posted its communique stating that there would be no elections for Member for County Assembly for South C ward. It is therefore puzzling how the Complainant did not see the communique about the elections but saw the one posting results.

51. In the circumstances, we are minded to hold that the Complainant has not proved on a balance of probability that elections for the 1st Respondent’s candidate for Member of County Assembly for South C ward did take place. We find that these elections did not take place.

Whether the direct nomination of the 2nd Respondent was in accordance with the 1st Respondent's Rules 52. An issue emerged during cross examination of the 1st Respondent’s witnesses as to the qualification of the 2nd Respondent to be nominated as the 1st Respondent’s candidate for the position of Member of County Assembly, South C ward.

53. This issue was not pleaded in the Complaint and only arose as aforesaid. The same also goes for the issue of whether the process of nominating the 2nd Respondent was proper and lawful.

54. It is trite law that parties are bound by their pleadings. In Independent Electoral and Boundaries Commission & Ano. v Stephen Mutinda Mule & 3 others [2014] eKLR the Court of Appeal cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

55. The Supreme Court of Kenya in Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR found and held as follows in respect to the essence of pleadings: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’” Without proper amendments as authorized by law, it is not fair or proper for a case to change character in the course of hearing in such a way that at the conclusion of the case, the initial complaint is barely recognizable. Despite Article 159 (2) (d) and the Regulations, parties must frame their cases with sufficient particularity to enable the other party to respond appropriately and allow the Tribunal sufficient material in order that it may make a fair finding.

56. Without proper amendments as authorized by law, it is not fair or proper for a case to change character in the course of hearing in such a way that at the conclusion of the case, the initial complaint is barely recognizable. Despite Article 159 (2) (d) of the Constitution and the Regulations under the Political Parties Act, 2011, parties must frame their cases with sufficient particularity to enable the other party to respond appropriately and allow the Tribunal sufficient material in order that it may make a fair finding.

57. It is not disputed that under section 38A of the Political Parties Act as well as regulation 23 of the 1st Respondent’s nomination rules, the 1st Respondent can issue a direct nomination. Nothing has been placed before the Tribunal that faults the process through which the 1st Respondent carried out the direct nominations. The issues to do with the 2nd Respondent’s qualifications for nomination as well as his direct nomination were only raised in the submissions and not in the Complainant’s pleadings. As such we are minded to hold that this case was not pleaded at all and that the nomination of the 2ndRespondent as the 1st Respondent’s candidate for MCA South C ward was lawful and proper.

58. The upshot of the foregoing is that in view of our finding that no election took place and that the nomination of the 2nd Respondent was lawful, the Complaint fails and is hereby dismissed.

59. In the interest of the unity of the Party, the Tribunal directs that each party shall bear its own costs.

Orders 60. The Complaint is hereby dismissed with each party bearing its own costs.

DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF MAY 2022. GAD GATHU ……………………………………………… (PRESIDING MEMBER)WANJIRŨ NGIGE…………………………………… (MEMBER)DR. LEONARD KINYULUSI …………………………………… (MEMBER)