[2022] KEPPDT 1009 (KLR)

Koyoo v Mcobewa & 2 others (Tribunal Case E009 (KSM) of 2022) [2022] KEPPDT 1009 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1009 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E009 (KSM) of 2022

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

May 5, 2022

Between

James Onyango Koyoo

Complainant

and

Hezron Otieno Mcobewa

1st Respondent

Odm Neb

2nd Respondent

Orange Democratic Movement

3rd Respondent

Judgment

1. This matter concerns the nullification of the Complainant’s nomination as the 3rd Respondent’s nominee for Member of National Assembly for Muhoroni Constituency by the ODM Appeals Tribunal in their Judgment (Tribunal Appeal No.05 of 2022) delivered on 25th April 2022. The Complainant and the 1st Respondent were both contestants for the ticket. The Complainant was declared the winner of the nomination contest, but the 3rd Respondent’s Appeals Tribunal nullified the Complainant’s nomination.

2. The Complainant was aggrieved by the outcome of the Tribunal’s decision and challenged the decision before this Tribunal. On 29th April 2022, when this matter came up for hearing, the Complainant sought to withdraw the complaint. The first Respondent challenged the Application and also filed Cross – Complaint.

3. It was the 1st Respondent allegation that the Complainant was attempting to withdraw the case because he had been issued with a Direct Ticket Nomination and that this was an abuse of the court process and a violation of his rights to fair administrative action.

4. This matter came up for hearing on 1st May 2022 when the parties argued the matter orally. The Complainant was represented by Mr. Oruenjo and Mr. Sagana; Mr. Okach and Maua appeared for the 1st Respondent (Counter-complainant). There was no appearance for the 2nd and 3rd Respondent despite service.

COMPLAINANTS CASE 5. Mr. Okach, Counsel for the 1st Respondent, began by stating that the Tribunal had given orders and that he had complied with them. He stated that the would rely on the 1st Respondent’s Replying Affidavit and Annexures of 28th April 2022. He went on to state that there was an intended abuse of the process of this Tribunal. Moreover, that the basis of the present complaint was the election that had been nullified and a repeat election ordered.

6. He further, explained that while the proceedings before this Tribunal were still pending the Complainant was issued with a Direct Nomination Certificate. Counsel claimed that the Complainant was now “in bed “with the very persons that he had complained against. Additionally, counsel submitted that the Complainant had not sought leave to withdraw the case and that this was untenable.

7. He further, stated that nominations had been done and the Party Tribunal had rendered a decision on the 25th April 2022 nullifying the Complainant’s nomination. He submitted that there was ample evidence of violence, voter intimidation and that these were matters that were already admitted at the Party Tribunal by the Complainant. Further, that this was a case in which there was clear evidence of violence being directly attributable to the Complainant. That there were OB Reports on the particulars of violence alleged.

8. He further submitted that elections are not a result but a process and that the process must be followed. That the ODM Party Tribunal was right in their ruling and that the manner of the conduct of the repeat nominations should not be any other form of nomination than the one in which the cause of action arose from, that is universal suffrage.

9. He urged the Tribunal to order for nomination by way of universal suffrage adding that the announcement of votes during the election did not meet the requirements of Rule 6, 7 and 8 of the ODM Party Primaries and Nomination Rules, he therefore urged the Tribunal to nullify the nominations and issue costs.

10. Mr. Maua for the 1st Respondent in his submissions stated that the matter had already been filed and heard and determined in the Party Tribunal, and that the 1st Respondent had satisfied the requirement of attempting IDRM. In support of this submission, he cited the case of Cornel Rasanga Amoth v Jeckonia Okungu Ogutu & 6 others [2017] eKLR which underscored that where there is an attempt at IDRM, the Tribunal will take jurisdiction.

11. Counsel reiterated that a Direct Nomination Certificate was issued while this matter was still pending before us. He further elucidated that the main issue was the non-compliance with the decision of the Party Tribunal and that consequently, it was not a new cause of action but an implementation of the decision of the ODM Appeals Tribunal, where its decision to conduct nominations was stayed by this Tribunal. Consequently, he submitted, that the Preliminary Objection is a non-starter, and that a counter claim could always be filed at any time during the pendency of the proceedings.

RESPONSE 12. Counsel for the Complainant began by stating that the cross complaint was an afterthought and that the Claimant has not been issued with a final certificate as it was only an interim certificate that had been issued. He went on to submit, that by virtue of Section 40 (2) of the Political Parties Act, there was no attempt to serve or invoke IDRM and that ODM’s decision, to grant a Certificate to 1st Respondent is a different decision because the Orders of the Tribunal were clear that parties were to go back to nomination. Furthermore, that the decision of the Party Tribunal did not specify the method of nomination that would be used. He prayed for the cross complaint to be dismissed.

13. He further submitted that he has not heard the basis of the complaint and that the orders sought by the 1st Respondent were general and not for enforcement. Furthermore, that the 1st Respondent’s is not seeking enforcement of the decision of the Tribunal and that their Complaint was depriving the people of Muhoroni of a candidate from the Party and that the complaint is a violation of Article 38 of the Constitution.

Response from 1st respondent 14. Mr. Okach, in response, stated that the 1st Respondent’s submission stated that once the Orders of this Tribunal were issued nothing should have gone forward, sideways or backwards, and that the direct nomination was contemptuous of and in direct disobedience of the Tribunal’s orders, since the wording of the orders was very clear on staying any implementation of the ODM Tribunal’s decision. Further, that the decision of this Tribunal stands in regards to the stay of the Party Appeals Tribunal’s decision.

Tribunal’s analysis and findings 15. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this court has the requisite jurisdiction to hear and determine this matter.ii.Whether the election was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

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

Whether this court has the requisite jurisdiction to hear and determine this matter? 17. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs.- 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.”

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

19. The Complainant submits that since the matter herein is a cross complaint, it is an entirely new dispute, that has to first be subjected to the IDRM process in the ODM Party Appeals Tribunal, before being brought before us. And that consequently, this Tribunal lacks the required jurisdiction to hear and determine this matter.

20. The 1st Respondent in response contends that the cross complaint, is a continuation of the previous matter and an attempt to enforce the orders of this Tribunal that provided for a stay of execution of the decision of the Party Tribunal made on 26th April 2022, pending the determination of the matter.

21. Further, that the Order of the Tribunal dated 26th April 2022, staying the Judgment and Orders of the 3rd Respondent’s Appeal Tribunal effectively meant that a nomination could not be conducted during the pendency of the proceedings, since the Appeal had succeeded and fresh nominations were so ordered. Furthermore, that the rules requiring Direct Nomination had to be satisfied and conducted as provided for by the relevant sections of the law and that by failing to conduct a consensus or inform the relevant parties of the intention to give a Direct Nomination to the Complainant, the 2nd and 3rd Respondent were in breach of the law.

22. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v. Karisa Chengo [2017] eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

23. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

24. In Agnes Mukami and 5 Others Vs Ngewahi And Company (2005) Eklr the court stated that“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

25. A reading of Section 40 of the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that:40. (1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and a political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners; andf.appeals from decisions of the Registrar under this Act.(2)Notwithstanding, sub section (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms”

26. From a reading of the above sections of the law as well as the cited authorities, it is clear that the dispute at hand being a dispute between a member of a Political Party and a Political Party falls within the definition set out in Section 40(1) (b) of the Political Parties Act. The issue, whether the cause of action constituted in the cross complaint can be considered as an entirely new matter, or is a continuation of the previous proceedings, commenced by the 1st Respondent before the ODM Appeal’s Tribunal.

27. It is our considered view, that the matter before the ODM tribunal related to the nomination the subject hereof. That tribunal made a decision which, to-date, stands. The purported direct nomination of the Complainant, according to the ODM circular of 27. 4.20222 was in furtherance or in an attempt to give effect to the decision of its tribunal. This, notwithstanding our interim orders issued herein on 26. 4.2022 staying the tribunal’s decision.

28. For this reason, the purported issuance of the direct nomination ticket to the Complainant is neither a new cause of action nor a new matter requiring to go to the ODM tribunal first before coming to us. It is our view that the matter before us, is a continuation of the previous complaint.

29. While we are not currently seized of contempt proceedings, we note that the party may have proceeded to “implement” its tribunal’s orders while the same stood stayed by this Tribunal. This Tribunal, like any other court, jealously guards the integrity of its orders and its authority, absent which is a recipe for lawlessness anarchy and the breakdown of the rule of law. We do not accept Mr. Sagana’s argument that the certificate issued by the party while our orders subsisted was no more than interim. Once stay orders are issued, not even an inch, interim or otherwise of the stayed matter can be implemented. Not even in good faith. If dissatisfied by a court order, a party has recourse in appeal or seeking setting aside. Prima facie, an act made in defiance or infraction of court orders is void. We say no more, for now.

30. We find the words of the Court of Appeal in the case of Fred Matiang’i, The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government –vs- Miguna Miguna & 4 Others [2018] eKLR, very illuminating:“…When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”

31. We cannot put it any better. It is the responsibility of every judicial authority to underwrite the observance of its orders; and to jealously guard the integrity and reputation of its decisions. This obligation, and, indeed, power, is immutable, unfettered, non derogable and non-negotiable.

32. We find that this honorable Tribunal has the jurisdiction to hear this matter, and the requirements of the provisions of Section 40 of the Political Parties Act have been satisfied.Therefore, it is this Tribunal’s considered opinion that the Complainant has clearly demonstrated an attempt to pursue Internal Dispute Resolution Mechanisms within the Party, which was concluded and a decision rendered.

33. The Preliminary Objection is, therefore, dismissed.

Whether the issuance of the Direct Nomination ticket was in substantial compliance with the law? 34. In Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Other (2012) eKLR: it was stated: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 proving or disproving that fact is upon him”

35. It was also stated in Joho v. Nyange & another (2008) 3 KLR (EP) 500 that: “The burden of proof in election petitions lies with the Claimant as he is the person who seeks to nullify an election. While the proof has to be done to the satisfaction of the court, it cannot be said that the standard of proof required in election petitions is proof beyond reasonable doubt. Like in fraud cases, the standard of proof is higher than on a balance of probabilities and where there are allegations of election offences a very high degree is required.”

36. In ordinary proceedings the law is clear on where the burden of proof lies. This is well captured under the Evidence Act, Sections 107, 108 and 109 which provide as shown below:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

37. The law on the burden of proof in electoral disputes was again restated by the Supreme Court in Presidential Petition No. 1 of 2017 thus:“Thus, a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged. In this case therefore, it is common ground that it is the petitioners who bear the burden of proving to the required standard that, on account of nonconformity with the law or on the basis of commission of irregularities which affected the result of this election, the 3rd respondent’s election as President of Kenya should be nullified.Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant throughout a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting” and “its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”

38. From a reading of the above sections of the Evidence Act as well as the above stated authorities it is clear that the burden of proof lies on the 1st Respondent, as it is he who would fail if no evidence were to be given on either side. 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 1st Respondent to establish.

39. It is with the foregoing established legal propositions in mind that we address the grievances advanced by the 1st Respondent. He avers that the Direct Nomination failed the test of a free, fair, transparent and accountable process as provided for under Article 81, Article 86 of the Constitution of Kenya 2010; as well as Rule 4 of the ODM Party Primaries and Nomination Rules which provides for guiding principles and compels the Party to conduct Party Primaries and Party Nomination to Party lists in a manner that is democratic, free and fair and provides equal opportunities for all party candidates.

40. The right to vote is not a right be trifled with. It signifies the power of the people to pick those they desire to lead them for a given period of time. The importance of protecting the right to vote was emphasized in the South African case of Richter v Minister for Home Affairs and 2 others (2009) ZACC, where it was stated that:“We should accordingly approach any case concerning the right to vote mindful of the bright, symbolic value of the right to vote as well as the deep, democratic value that lies in a citizenry conscious of its civic responsibilities and willing to take the trouble that exercising the right to vote entails.”

41. In the case of Gatirau Peter Munya (supra), an allegation had been made that the total number of votes cast exceeded the number of registered voters. The Supreme Court held that the allegation was a serious one and ought not to be taken lightly. The Court found the allegation had not been proved stating that:“Can it be said that an electoral register, a public document, is a fact ‘especially’ within the knowledge of the IEBC in the context of the provisions of Section 112 of the Evidence Act? In our view, what is within the power of the IEBC is the custody of the register, and its production will be a matter of course, upon an application by a party who wishes to rely on its contents. We would agree with the learned Judges of Appeal, however, that the evidential burden regarding the contents of the register and declared results lies on the IEBC; save that this burden is activated, in an election petition, only when the initial legal burden has been discharged.”

42. The Court went ahead and concluded that:“In the instant case, the petitioner was content to rely on a document that had no evidential value, when he could have made an application for the production of the authentic register, to aid his cause in discharging the initial burden.”

43. The Supreme Court further illuminated the law on Standard of Proof in Raila Odinga 2013 where it was held that:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”

Legitimate Expectation 44. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2] where the Supreme Court stated that: -“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation." 45. Addressing the subject of legitimate expectation, H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation…... Second, clear statutory words, of course, override an expectation howsoever founded…. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

45. A procedural legitimate expectation rests on the presumption that a public authority will follow ascertain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation, that is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created. The representation itself must be precise and specific and importantly, lawful.

46. Once a reasonable expectation exists the administrator is required to act in accordance with that expectation. It is our view that the 3rd Respondent has denied the 1st Respondent his legitimate expectation to a fair administrative action since his concerns were not taken into account and no consultations between the parties on how the nomination would be settled. Furthermore, in flagrant violation of the expectation, the 3rd Respondent issued of a Direct Nomination to the Complainant without consensus or even conducting opinion polls as provided for by the ODM Party Primaries and Nomination Rules. We therefore hold that his legitimate expectation was violated.

47. The decision of the ODM Tribunal has not been challenged. The Complainant having withdrawn his complaint, leaves the decision of the ODM Tribunal intact, final and binding. The countercomplaint is, therefore, based on uncontroverted and determined matters which are for all intents, res judicata.

48. This Tribunal finds that the 1st Respondent has demonstrated to the required Standard of Proof that the issuance of the Direct Nomination ticket to the Complainant, was not only illegal but contrary to the Rules of Fair Administrative Action, and failed to meet the requirements provided by Article 27, Article 38 and Article 81 of the Constitution of Kenya, 2010. Moreover, that the Direct Nomination issued was in contravention of the stay orders issued by this Tribunal.

49. Before we pen off allow us to make a comment in obiter, as to the nature of our jurisdiction under section 40 (2) of the Political Parties Act, 2011, particularly since there is recurring confusion as to whether our remit is appellate from party dispute resolution organs, or whether our jurisdiction is original.

50. Section 40(2) of the Political Parties Act, currently reads as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

51. The same provision previously read as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

52. Notice the difference in the wording. The architecture of section 40 (2) as it is currently framed does not necessarily or expressly confer appellate jurisdiction to this Tribunal from political party Internal Dispute Resolution Mechanisms (IDRMs). For good reason, the amendment was meant to give the Tribunal the powers to deal with matters, in exceptional circumstances, when party IDRMs prove a hindrance to access to expeditious justice. All that a grievant now needs to show is an honest and good faith attempt at accessing IDRM, unlike previously when the IDRM mechanism had to be exhausted and a determination made. This law reform was informed by decisions by this Tribunal and superior court. See our decisions in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4; Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (Complainant No 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24; PPDTC E003 of 2022 Elisha Odhiambo v Dr. George Jalango Midiwo and Others; and PPDTC E002 of 2022 John Mworia Nchebere v The National Chairman ODM and Others.

54. It is thus worth noting this Tribunal only exercises express appellate jurisdiction under section40 (1) (f) of the Political Parties Act, 2011, on appeals emanating from the decisions of the Registrar of Political Parties. This Tribunal, therefore, exercises a hybrid, sui generis, jurisdiction that is neither, strictu sensu, original nor appellate only, under section 40(2) of the said Act.

55. Our assessment of the facts as a whole draw us to the inescapable conclusion that we must set aside the Direct Nomination exercise that resulted in the nomination of the Complainant and order a fresh election.

Who bears the costs of this matter? 56. 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.

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

58. This Tribunal allows the cross complaint and finds that it has merit. I proceed to grant Orders as follows:

DISPOSITION 59. In the upshot we make the following Orders:i.We allow the cross complaint and direct the 3rd Respondent to conduct a fresh nomination by way of universal suffrage within 72hours of this order, on or before Sunday 8th May 2022. ii.Each party shall bear its own costs.

60. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 5TH DAY OF MAY 2022. HON. DR. WILFRED MUTUBWA OGW C. ARB VICE CHAIRPERSON – PRESIDINGHON. FATUMA ALIMEMBERHON. WALUBENGO SIFUNAMEMBER