[2022] KEPPDT 1052 (KLR)

Maranga v Orange Democratic Movement Party & 2 others (Tribunal Case E011 (NRB) of 2022) [2022] KEPPDT 1052 (KLR) (3 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1052 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E011 (NRB) of 2022

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

May 3, 2022

Between

Billiah Bochaberi Maranga

Complainant

and

Orange Democratic Movement Party

1st Respondent

The ODM National Elections Board

2nd Respondent

Benson Ongeri Ntabo

3rd Respondent

Judgment

Introduction 1. This matter concerns the issuance of a direct nomination ticket to the 3rd Respondent as the Candidate the 1st Respondents for the Member of County Assembly for Gesusu Ward Kisii County without having consensus or an opinion poll. The Complainant and the 3rd Respondent with contestants for the said seat. The Complainant was aggrieved by the outcome and challenged the issuance of the direct ticket to the 3rd Respondent before the 1st Respondent’s Appeals Tribunal, sitting in Kisumu on the 12th April 2022 in (Appeals Tribunal No. 2 of 2022. )

2. The ODM Party’s Appeals Tribunal dismissed the Complainant’s Appeal, and directed as follows:i.That the instant appeal is premature as the National Elections Board has not concluded its process of identifying candidates.ii.The Appeal being premature is hereby dismissed.iii.Each party shall bear its own costs.

3. The Complainant was still disenchanted and moved this Tribunal by way of Complaint, dated 22nd April 2022, brought under the cover of a Certificate of Urgency. The matter came up for hearing on 29th of April 2022 when the parties argued the matter orally. The Complainant was represented by Mr. Bonuke; Mr. Begi appeared for the 3rd Respondent; there was no appearance for the 1st and 2nd Respondents.

4. The Complainant filed a Return of Service dated 26th April 2022 confirming service upon the Respondents.

Complainant’s Case 5. In the main the Complainant requests this Tribunal to restrain the 1st and 2nd Respondent from issuing a direct ticket to the 3rd Respondent for the Member of County Assembly Seat for Gesusu ward in Kisii County, since there was no consensus between the candidates or even Opinion Polls conducted. Further, that the Tribunal orders the 1st and 2nd Respondents to conduct nominations for the above-mentioned seat.

6. Counsel for the Complainant Mr. Bonuke, submitted that the complaint arose as a result of a meeting held on the 20th April 2022, where the 3rd Respondent was issued with a direct ticket for ODM Party. Further, that on the 7th April 2022 nominations were set to happen at the ward, but that on 6th April 2022 a task force communication was received by the Complainant; from a Whats App Group created by the 2nd Respondent, stating that following the review of Opinion Polls and consultations, leading to consensus; some wards would not have Party Primaries and that one of the wards listed was Gesusu Ward.

7. Counsel went on to state that their efforts were thwarted by the 3rd Respondent who had declared himself the winner of the nominations exercise, and that consequently they moved the ODM Appeals Tribunal to challenge the election. The Appeals Tribunal dismissed the Appeal noting that the 2nd Respondent had not concluded the consensus or the issuance of the direct ticket nomination yet.

8. Nonetheless, the 1st and 2nd Respondents held a meeting on the 20th April 2022 at the Bomas of Kenya and ruled to issue a direct ticket to the 3rd Respondent. Counsel submitted that it was unfair that the 1st and 2nd Respondent did not consider her as a part of the process. Furthermore, that the Complainant had a legitimate expectation in being consulted in the process and that she was therefore subjected to discrimination by the issuance of the ticket to the 3rd Respondent.,

9. The Complainant sought to challenge the decision which she claims violated her Constitutional rights enshrined under Articles 27, Article 38 (2) and Article 47 of the Constitution of Kenya 2010.

Respondent’s Case 10. Counsel for the 3rd Respondent, Mr. Begi argued that the methods for nominations are clearly stated in ODM Party Primaries and Nomination Rules. Further, that according to Rule 23 of the ODM Party Elections and Nomination Rules, the Party was at liberty to give Direct Nominations to Parties without conducting polls. Moreover, that the party had opted to set aside universal suffrage and opted to use direct nomination as its preferred method and that the Complainant had not satisfied the requirement of subjecting herself to Party IDRM and that consequently, she was prematurely before this Tribunal.

11. Counsel for the 3rd Respondent submitted that he would be moving to dismiss this matter for want of jurisdiction.

Complainant’s Rejoinder 12. In response, Mr. Bonuke asked, rhetorically, why the party would ask contestants to pay nomination fees, prepare for nominations and then issue a direct nomination ticket without consensus or even opinion polls. He further stated, that it was okay for the party to issue a direct nomination but not without consultation and communication. Additionally, that it was wrong for the Party to tell the Complainant to wait for communication then issue the direct nomination ticket to someone else.

13. In response to the issue of jurisdiction counsel stated that they had been before the Party IDRM which stated that communication was to come from the party, and that no communication was received. He submitted that this Tribunal had the jurisdiction to hear this matter.

Issues For Determination 14. The Tribunal has carefully considered the Preliminary Objection raised by the 3rd Respondent as well as all the pleadings in this case and the evidence presented by the respective parties; and will now determine the following issues.a.Whether this Tribunal has the jurisdiction to hear and determine this matter?b.Whether the Direct Nomination was conducted in substantial compliance with the law?c.Who bears the costs of this proceedings?

Whether this Tribunal has the jurisdiction to hear and determine this matter? 15. e 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.”

16. In R v. Karisa Chengo [2017] eKLR, the learned court stated as follows;“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.”

17. 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”

18. From a reading of the above it is already clear that the dispute at hand being a dispute between a Member of a Political Party and a Political Party falls within the definition of Section 40(1) (b) of the Act. The issue as to whether this Tribunal has jurisdiction to entertain this matter thus falls to the question; whether the Complainant has provided sufficient evidence of an attempt at subjecting the dispute to the Party IDRM as provided for under Section 40 (2) of the Act. The purported nomination of the 3rd Respondent was pursuant to the process impugned before the party tribunal and the subject of the current proceedings.

19. It is this Tribunal’s considered opinion that the Complainant has demonstrated an attempt to pursue Internal Dispute Resolution Mechanisms with the Party since she had already filed an Appeal with the ODM Appeals Tribunal (Appeals Tribunal No. 2 of 2022) prior to approaching this Tribunal. We find that, this meets the requirement of a sufficient attempt at IDRM and rule that this Tribunal has the required jurisdiction to hear and determine this matter.

20. The Preliminary Objection is dismissed.

Whether the Direct Nomination was conducted in substantial compliance with the law? 21. After hearing the parties herein and considering the submissions as well as the pleadings filed, the main issue that arises is whether the 1st and 2nd Respondent made the decision to issue a direct nomination to the 3rd Respondent in a fair and just manner.

Constitution of Kenya 22. Article 27 of the Constitution of Kenya speaks on the issue of equality and freedom from discrimination, where it provides as follows:Article 27. 1. Every person is equal before the law and has the right to equal protection and equal benefit of the law.

2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.

5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

23. Additionally, Article 47 of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that if a person is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

24. Fair administrative action gives life to Article 47 of the Constitution of Kenya and Section 4(3) of the Fair Administrative Act and where an administrative act is likely to affect a person, the Administrator shall give the affected person notice and an opportunity to be heard.

Case Law 25. The landmark case of Ridge –vs- Baldwin (1964) AC 40 identified three pillars of natural justice;i.The right to be heard by an unbiased tribunal;ii.The right to have notice of charges of misconduct; andiii.The right to be heard in answer to those charges.

26. In the case of Pashito Holdings Ltd. & Another –vs- Paul Nderitu Ndungu & Others [1997] 1 KLR(E&L) the Court pronounced itself thus;“An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared to be no decision….”

27. A similar outcome was derived in Mbaki & Others –vs- Macharia & Another [2005]2 EA 206 where the Court was of the opinion that the right to be heard is a value right and that it would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.

28. When the 1st and 2nd Respondents decided that they would determine the 1st Respondent’s candidate not by universal suffrage but by direct nomination, it became an administrative action and should have therefore been subjected to fair procedure. The fact that the Complainant was not given a chance to state why she thought she was the better person to fly the Party’s flag, was a breach of her Constitutional right to equal treatment before the law.

29. In our decision in PPDTC E003 of 2022 Elisha Ochieng Odhiambo v Dr. George Jalango Midiwo and Others, we stated, at paragraph 68, as follows:Once a party invites candidates to put in their applications for party nominations, collects fees from them, and sets dates for nomination, it creates in the candidates/aspirants a legitimate expectation that there will be a level playing field to compete for the positions. It guarantees that it has the ability to hold free and fair nomination processes and to respect the outcome of elections and subsequent decisions of party election and judicial organs, notwithstanding the desires of a few of those who occupy top echelons of its leadership. It also assures candidates of the independence, objectivity and impartiality of its judicial and other decision-making organs. The will of the majority is always the essence of democracy. A usurpation thereof by a few in a committee cannot be allowed to stand.

30. We have given this matter due consideration; we agree with the Complainant.

Disposition 3143. In the upshot we make the following Orders:i.We allow the complaint;ii.We hereby annul the Nomination of the 3rd Respondent; and order that the 1st and 2nd Respondent shall conduct a fresh nomination exercise for Gesusu Ward, Kisii county within 48 hours of this order; not later than 4th May 2022;iii.The nomination shall be by universal suffrage, unless all the candidates agree to some other method.iv.Each party shall bear its own costs.

3244. Those are the orders of the Tribunal.

DATED AT KISUMU AND DELIVERED IN OPEN COURT THIS 3RD DAY OF MAY 2022. ..........................HON. DR. WILFRED MUTUBWA OGW C. ARB - VICE CHAIRPERSON – PRESIDING....................HON. FATUMA ALI - MEMBER..................................HON. WALUBENGO SIFUNA - MEMBERSIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBER