[2022] KEPPDT 937 (KLR)

Mohamed v Mohamed & another (Complaint E004 (MSA) of 2022) [2022] KEPPDT 937 (KLR) (7 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 937 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E004 (MSA) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 7, 2022

Between

Asha Hussein Mohamed

Complainant

and

Zam Zam Chimba Mohamed

1st Respondent

Orange Democratic Movement National Elections Board

2nd Respondent

Judgment

1. This is a complaint raised against the 2nd respondent party arising from the 2nd respondents party primaries for the position of Woman Representative, Mombasa County held on the April 22, 2022 and which was not heard and determined by the 2nd respondents appeals tribunal on merits but was dismissed on account of the complainant having filed outside the allowed time limits.

2. The claimant herein participated in the 2nd respondent’s nominations held on the April 22, 2022 for the post of Women Representative, Mombasa County where the 1st respondent was declared the winner despite allegations of irregularities and election malpractices.

3. Being dissatisfied with the declarations the claimant filed an appeal at the 2nd respondents appeals tribunal but the same was not heard yet a determination was later made by the appeals tribunal who found that the appeal was filed out of time.

4. The Complainant seeks an order of injunction restraining the Independent Electoral and Boundaries Commission from accepting the name of the 1st respondent as the candidate for Orange Democratic Movement for the seat of Women Representative, Mombasa County.

5. She also seeks an order to quash the declaration and Party Certificate issued to the 1st respondent as the winner of the Women Representative Mombasa County in the ODM Party Primaries and an order declaring her the winner instead.

6. Lastly, she seeks orders directing the 2nd respondent to issue her with the party certificate to contest for the election of the Mombasa County Woman Representative and/or in the alternative an order directing the 2nd respondent to conduct fresh nominations.

7. The complainant’s complaint and the notice of motion application are opposed by the 1st respondent who has filed a preliminary objection and a replying affidavit dated April 28, 2022.

8. The Complainant is represented by Shabban Associates LLP whereas the 1st respondents are represented by the firm of AO Hamza & Co Advocates.

Complainants Case 9. The complainant and the 1st respondent are registered members of the Orange Democratic Movement (ODM) party and they both vied to be elected for the position of Women Representative for Mombasa County during the ODM primaries held on the April 22, 2022.

10. The complainant claims that she garnered the highest number of votes with clear majority wins in most polling centers against the 1st respondent who was polled second according to the votes counted in the polling stations by her agents. She states that she garnered 6,311 votes and the 1st respondent garnered 6,020 votes.

11. She adds that despite her having the highest votes the 1st Respondent was irregularly, illegally and maliciously declared the winner of those party primaries.

12. She contends that the voting process was marred with massive irregularities and was not free, fair and credible. She singles out the following irregularities she noted during the party primaries:i.That the notice for the party primaries was short and there was not enough time for a free process to be conducted which is against the law and the party’s nomination rules.ii.That the party used an alien biometric system of voter verification which was used without conducting sufficient voter education on the system and the biometric system raised serious data security issues.iii.She claims that her agents were not given an opportunity to verify the machines used for voting on whether they had pre-uploaded votes or not. She adds that her agents received 'you have already voted' message prompts when they tried voting.iv.She claims that there were extra spare biometric voting tablets which had been switched off at Mikindani Social Hall, Chaani Social Hall, and Kipevu Primary polling stations with the one at Mikindani Social Hall given to a stranger who walked out of the station with it.v.She claims that the gadgets at Kipevu Primary Polling Station and Chania Social Hall were opened after protests and on opening the same they were found to have pre-uploaded votes of 142 and 125 respectively.vi.She also claims that the Presiding Officer at Changamwe Social Hall was seen keying in into the voting tablet while looking at his phone repeatedly which showed that he was single-handedly voting ID Numbers sent to his phone.vii.That at Miritini World Bank Primary School, when voting ended at 4. 06 pm the voting tablet indicated that the total voters at the polling station were 131 and yet the total number of votes given to each candidate totaled to 598 meaning that the figures were inflated.viii.At Kiembeni Baptist the voting tablet showed that 47 voters turned up to vote at 4. 01 pm and at 4. 02 pm it indicated that there were 41 voters a clear manipulation of the votes and massive discrepancy.ix.That at Majengo Polling Station results were never announced and the result acknowledgement forms were never signed and this was witnessedin most polling stations across the county.x.Final results at Tononoka Social Hall was never announced as the process was disrupted when conflict arose regarding the manner of announcement. per ward instead of per polling station.

13. She maintains that the decision of the 2nd respondent to declare the 1st respondent as the winner of the party primaries was illegal null and void ab initio and ought to be quashed by the tribunal.

14. For these reasons she seeks the orders sought in the complaint.

Respondents’ Case 15. The 1st respondents raised a preliminary objection on a point of law and also filed a replying affidavit sworn on April 28, 2022. The preliminary objection is based on the grounds that this Honorable Tribunal does not have jurisdiction to hear and determine the complaint because the complainant has not exhausted the internal disputes resolution mechanism.

16. In her response to the complaint, the 1st respondent explains that it was well within the knowledge of the complainant that the 2nd respondent was using 4 types of nominations to identify the most preferred candidate for the position of Women Representative for Mombasa County. These were opinion polls, consensus, delegates and universal suffrage.

17. She states that several opinion polls undertaken in March 2022 showed that she won by 39% against the complainants 27% and the complainant was not satisfied and she requested for a second opinion poll where the 1st respondent claims she won.

18. She states that immediately after the polls they were summoned in Nairobi by the Deputy Party leader amongst others for a consensus where the Complainant was offered a nominated Senator’s position since she became second but she declined and walked.

19. She states that on the April 19, 2022 she received a text message requesting her to collect her nomination certificate at Treasury Square at 2 pm but upon arrival she was informed that they were going for elections by Universal Suffrage.

20. She maintains that the Complainant was aware of the party primaries even before April 21, 2022.

21. She claims that the biometric system used by the ODM was very much user friendly and easier to handle and the complainant did not complain at the time of the nomination exercise and she therefore cannot complain now. She adds that the sensitization of the BVRS used by ODM was offered and that the Complainant was aware of this.

22. She claims to have won the said nomination by 6,945 votes while the complainant garnered 6,203 votes and she has annexed of the final results contrary to the results by the Complainant.

23. She adds that she signed the interim certificate on April 22, 2022 at 22. 30 pm and not way past midnight as is being alleged. She also denies the allegations that the results as announced excluded the results of four (4) polling stations.

24. She states that the voting process was very peaceful except for the disruptions by the complainant’s supporters who were using improper channels to influence voters.

25. She claims to be a stranger to the appeal by the complainant to the ODM’s appeals tribunal.

26. It is the 1st respondents case that allowing the notice of motion application shall subject her to suffer pain as well as lose her nomination candidature given that there are deadlines for submission of names to the IEBC.

27. She maintains that the complaint lacks merit and should be dismissed with costs to the 1st respondent.

28. The 2nd respondent did not enter appearance nor file any response to the complaint.

Issues for Analysis and Determination 29. The tribunal has gone through the complaint as presented by the complainant together with the notice and the affidavits in support with the bundle of annexures and the submissions on record. From the submissions by the complainant the following issues are for determination:i.Whether the tribunal has jurisdiction to determine the complaint as presented by the complainant.ii.Whether the complainant has proved her case to the required standard?

Disposition Whether the Tribunal has jurisdiction to determine the Complaint as presented by the complainant. 30. The Complainant has submitted that she could not file the said appeal at the party’s tribunal within the stipulated 36 hours from the time the decision was made as she was in the process of consolidating the documents necessary to accompany the said Appeal and hence filed on April 25, 2022.

31. The complainant further submits that the party appeals tribunal never served the 1st respondent with any appeal from the Appellant.

32. This tribunal has also looked at the judgement issued by the party’s Tribunal and its conclusion that the appellant failed to file the appeal within the stipulated timeline and termed the delay as an inexcusable delay.

33. The ODM Appeals Tribunal (Tribunal and Procedures) Rules, 2022 (the Rules) Rule 13 (2) provides that;'An aspirant who is aggrieved by the decision of an election official in respect of party primary election and/or nomination of candidate may appeal to the tribunal within 36 hours of the notice of the decision'

34. The complainant became aware of the 1st respondent’s nomination somewhere around midnight April 22, 2022 but filed the complaint on April 25, 2022 because in her own admission she was in the process of consolidating the documents necessary to accompany the said appeal and hence filed on April 25, 2022.

35. The word deadline was first recorded in 1864 from the American Civil War when it was used to refer to a designated ‘do not cross’ lines in prisoner of war camps and anyone who touched, fell upon or crossed these boundaries known as 'deadlines' suffered fatal consequences. A deadline therefore portended certain death. The word would later be adopted to mean time limits not because our fore fathers approved the confederate actions but to lay emphasis on the importance of a particular timeline.

36. Similarly, deadlines are an essential component of any legal and political processes and neglect of the same can have fatal consequences on a claim unless extraneous circumstances beyond the control of a party are demonstrated to have excusably caused the delay.

37. Political parties are guided by the Constitution of Kenya 2010 , Political Parties Act 2011 , Elections Act, their own party constitution and nomination and procedure rules.

38. This tribunal holds to a very high standard of compliance to the political parties and expects full compliance of the same by the political parties. Any departure from any of the provisions by the political party is almost always adversely interpreted against the political party sometimes with far reaching consequences. The same standard of compliance cannot be relaxed when it comes to members of the same political parties.

39. The reason provided for filing outside the mandatory 36 hours is in our opinion not satisfactory as the complainant was in full control of the same and no extraneous reason has been provided to excuse the delay.

40. This tribunal is alive to article 22 (3) (d) and Article 159 (2) (d) of the Constitution of Kenya 2010 which emphasizes that 'Justice shall be administered without undue regard to procedural technicalities'

41. It is however our considered view that calling for compliance of party rules and procedures which the complainant herself prescribes to by virtue of being a member of the party does not amount to as giving undue regard to procedural technicalities.

42. This Tribunal’s Jurisdiction has been established pursuant to section 40 of the Political Parties Act which provides as thus: -'(1)The Tribunal shall determine—a.Disputes between the members of a political party;b.Disputes between a member of a political party and the political party;c.Disputes between political parties;d.Disputes between an independent candidate and a political party;e.Disputes between coalition partners;f.Appeals from decisions of the Registrar under this Act; and(fa)Disputes arising out of party nominations.(2)Notwithstanding subsection (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.'

43. The 1st respondent has urged us to down our tools and she has premised her position on grounds that the complainant never exhausted the IDRM of the ODM before approaching this Honourable Tribunal. In her preliminary objections she gives the following particulars: -a)This honorable tribunal does not have jurisdiction to hear the suit here in on the ground that the Appellant did not exhaust the internal party proceedings ie, the Appellant has not brought a decision from the ODM Appeals' Tribunalb)The 1st respondent is not aware of any proceedings before the ODM Appeals' Tribunal'

44. In her submissions under the subheading of whether the appellant explored the party’s IDRM she says the following: -'The appellant herein states in his application under certificate of urgency that he failed to lodge his Appeal before the tribunal within the mandatory 36 hours from the time the decision was made as per Rule 12 (3) of the ODM Appeals Tribunal Rules. In fact, the decision to award the 1st Respondent with the nomination certificate was made on the April 22, 2022. The Appellant only managed to lodge an appeal on the April 25, 2022. The Appeals Tribunal never served the 1st Respondent with any Appeal from the Appellant. There was no notice of any hearing whatsoever and the tribunal never communicated to the 1st respondent that it had received an Appeal from the Appellant herein.'

45. Therefore, in essence she is saying that an appeal was filed to the ODM Tribunal, but it was filed on the April 25, 2022 and she further avers that the Tribunal never issued them any notice or communication indicating that they had received an appeal. Her position is that the appeal was filed late, and it flies in the face of Rule 12(3) of the ODM Appeals Tribunal that provides that an Appeal should be filed within 36 hours from the time the decision to issue a certificate of nomination is made.

46. On record there is a judgement by the ODM Appeals tribunal dated April 27, 2022 and the parties were Asha Hussein Mohammed as the appellant and Zamzam Chimba Mohammed, Returning Officer, Mombasa County and Odm National Election Board as the Respondents wherein the Tribunal notes the following:'We therefore arrive at the conclusion that the Appellant’s having failed to file the appeal within the stipulated timeline is contrary to rule 12 and 27 of the Rules therefore inexcusable as the same flies in the face of the laid down procedure of the 3rd Respondent and is likely to prejudice the 1st Respondent.'

47. At this point it is clear, that the complainant herein filed an appeal before the IDRM of the 2nd respondent and the same was dismissed.

48. Although this Honourable Tribunal does not see merit in interfering with the internal party’s appeal decision. The cardinal rule in establishing jurisdiction is whether an attempt at IDRM has been made with the proceedings and conclusion of the same being of no consequence on this tribunal’s jurisdiction. In the upshot, we find that the preliminary objection dated April 28, 2022 is not merited and is hereby dismissed with no order as to costs.

49. The tribunal will therefore proceed to evaluate the other issues for determination.

Whether the Complainant has proved her case to the required standard 50. It is trite law that he who alleges must prove. The claimant before us has levelled a number of allegations on irregularities of the said nomination exercise that we shall determine if they are proved to the standard of proof.

51. In the case of Raila Odinga & Others v. Independent Electoral and Boundaries Commission & Others, Petition No 5 of 2013 (as consolidated with Petition No 3 and 4 of 2013) In that case, the Supreme Court held that; -'A petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. 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.'It is now accepted and settled that in an Election dispute the burden of proving the allegations in a claim lies throughout with the claimant.

52. In the case of John Kiarie Waweru v Beth Wambui Mugo & 2 Others(2008) EKLR 4, the court set out the standard of proof on page 5 in the following words:'As regards the standard of proof which ought to be discharged by the petitioner in establishing allegations of electoral malpractices, there is consensus by electoral courts that generally the standard of proof in electoral petition cases is higher than that applicable in ordinary civil cases ie that proof on a balance of probabilities. The standard is higher than proof on a balance of probabilities but lower than the standard of proof beyond reasonable doubt required in establishing criminal cases. Allegations of electoral malpractices like for instance bribery require higher proof.'

53. The threshold of proof should in principle be above a balance of probability that is applicable in civil cases though not as high as beyond reasonable doubt that is applicable in criminal cases.

54. The complainant alleges that she garnered the highest number of votes in most of the polling stations and that the same was indicated in the acknowledgment forms however the 1st respondent was issued with the nomination certificate. However, she adduced no evidence to support her claims as the aspirant who won the elections and in fact what is on record is a screenshot that indicates the 1st respondent won the nomination exercise and therefore the complainant has not discharged the burden of proof under this allegation.

55. The complainant also states that the notice of the election was too short and was in contravention of the ODM nomination Rules. She also states that the party introduced an alien biometric system without sensitization and education of the clerks which and that it was evident as other Clerks were unable to use the tablet which ended up creating a situation where only one out of the three polling stations was in use. No evidence has been adduced on the clerks who were unable to use the tablet, what we have is mere allegations which amounts to mere words of mouth without evidence.

56. She also states that in Mikindani polling station a stranger was aided by the presiding officer and the police officers in walking out with one of the gadgets that the same was witnessed at around 11:57 am when the voting process was still ongoing. She goes ahead to allege that the action which were witnessed in Mikindani polling station led to chaos in the centre which necessitated the intervention of police officers. However, no evidence to prove the same was adduced before us.

57. In the case of Mokwaledi Bagwasi v Seabe Morueng & Anor Miscellaneous Applic No F228 of 2004 from the High Court seating at Botswana it was held as follows:'Where a petitioner asserts that an election official was biased against him, he should adduce evidence to show the manner in which the election official was biased. In the instant case, the petitioner made what amounted to bald allegations and did not adduce any evidence to prove those allegations.'

58. In her submission she states that the massive irregularities which were witnessed in the polling stations and as the agents were not allowed to sign the vote acknowledgement forms and all declaration forms affected the outcome of the elections

59. In the case of Thomas Malinda Musau & 2 Others Vs. IEBC & 2 Others (2013) eKLR, the Court held at Paragraph 77 that:-'Though it was crucial for the agents/candidates to sign the form 35, failure to do so does not necessarily nullify the elections.'

60. She further claims that at Kipevu and Chaani, the presiding officer refused to allow the agents to check whether the voting machines had pre-loaded ballots. They were obliged to enable the agents to verify after insisting, only to discover that the gadgets had 142 and 125 preloaded votes, respectively. She also claims that one of the Clerks was allowed to sit behind the voting booth while operating one of the voter gadgets that had previously been reported as broken, and that it took the intervention of agents and police officers to remove her from the enraged voters who were being robbed of their civic duty. The complainant also claims that the ODM party primaries rules of 2022 contain explicit procedures for announcing results, but that the presiding officers never did so at the polling sites. The claimant has not moved the tribunal to prove that no results were announced and no evidence on the preloaded votes was submitted.

61. The issue that this Tribunal has to determine is whether the irregularities exposed during the nomination exercise materially affected the results.Section 83 of the Elections Act provides: -'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 the constitution and in that written law or that the non-compliance did not affect the result of the election.'

62. In a Nigerian Court of Appeal in the case of Olusola Adeyeye v Simeon Oduoye (2010) LPELR-CA-/1/EPT/NA/67/08in which the court stated as follows:'It is not enough to merely catalogue instances of malpractices and breaches of the Electoral Act without adding up or tallying the number of votes involved or affected and their impact on the overall result of the election against his interest. The reason for tying such malpractices to votes affected thereby is because irregularities affecting minority votes would not upset the election of a candidate with majority of lawful votes. An election cannot be cancelled on the mere speculation of the probable effect of uncertain or unlawful votes procured through alleged malpractices.'

63. According to our interpretation of the aforementioned authority, when read in conjunction with Section 83 of the Elections Act, the claimant is required to tie alleged malpractices to the votes affected and their impact on the overall results, because irregularities affecting minority votes would not affect the election of a candidate who received a majority of lawful votes. In other words, the claimant must show not only that there were irregularities committed during the elections, but also that the irregularities (non-compliance with the law) were of such scale that they influenced the outcome of the polls.

64. In the case ofJoho v Nyange (No 4) (2008) 3 KLR (EP)500 where the court stated as follows:'Error is to human. Some errors in an election are nothing more than what is always likely in the conduct of human activity. If the errors are not fundamental, they should be excused or ignored.''It is not every non-compliance or every act in breach of the election regulations or procedure that invalidates an election for being non-compliant with the law. As I have said minor breaches will be ignored.' 'And the result of an election is affected when the cumulative effect of the irregularity reverses it. For instance when a large portion of the voters are by some blunder in the conduct of the election as happened in do not turn up to vote, the result is said to have been affected.'

65. The claimant has not discharged her burden of proof to show how the alleged irregularities substantially affected the final outcome.

66. Having found that the claimant has not discharged her burden of proof, the claim before us is bound for dismissal.

67. The Complaint is hereby dismissed with no orders as to costs.

68. Orders accordingly

Dated and delivered at Nairobi this 7th day of May 2022. HON. ERASTUS ORINA(PRESIDING MEMBER)HON. THERESA CHEPKWONY(MEMBER)HON. DANIEL KAGACHA(MEMBER)10PPDT Mombasa Complaint No. E004 of 2022