[2022] KEPPDT 978 (KLR)

Mungai & 5 others v Akhongo & another (Complaint E082 (NRB) of 2022) [2022] KEPPDT 978 (KLR) (22 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 978 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E082 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 22, 2022

Between

Samuel Kago Mungai

1st Complainant

Rogers Mutua

2nd Complainant

Peter Wachira Mwangi

3rd Complainant

Isaac Wafula Kayoye

4th Complainant

Anthony Kioko Kilonzi

5th Complainant

Geoffrey Odari Sande

6th Complainant

and

Julius Akhongo

1st Respondent

United Democratic Alliance

2nd Respondent

Judgment

1. The Complainants and the 1st Respondent are all members of the 2nd Respondent and were all cleared by the party to participate in the process of nomination for the position of Member of County Assembly, Ngei Ward. Party primaries were conducted by the 2nd Respondent on April 14, 2022, where the 1st Respondent emerged the winner. However, the Complainants were not satisfied with the nomination process and they challenged the same through the party’s Elections & Nominations Dispute Resolution Committee (EDRC) vide EDRC Application No 020 of 2022. The EDRC heard the parties and delivered its determination on April 20, 2022 dismissing the application for want of merit.

2. Aggrieved by the EDRC decision, the Complainant filed the instant Complaint together with a Notice of Motion Application under certificate of urgency dated May 12, 2022. They seek the following reliefs from this Tribunal: -i.An injunction issue stopping the inclusion of the 1st Respondent’s name in the party list as a successful candidate and/or the submission of the name to the Independent Electoral and Boundaries Commission for any purpose relating to the 2022 election in Kenya for Member of County Assembly/County Representative of Ngei Ward, Nairobi County.ii.The party nomination certificate issued to the 1st Respondent be quashed.iii.The entire nomination process held on April 14th be declared null and void.iv.The 1st Respondent be struck off from the ballot for failure to be a registered member of the party and/or for causing chaos, violence and unlawfully interfering with the nominations.v.The 2nd Respondent be compelled to issue the Complainant with the party nomination certificate; or, in the alternativevi.The 2nd Respondent be compelled to conduct a non-contentious nomination process in strict compliance with the law.vii.The costs of this Application be provided forviii.Any other or further relief that this Honourable Tribunal may deem fit

3. This matter was first presented before the Tribunal on May 16, 2022 when we issued the following directions in respect of filing of responses and exchange of parties’ submissions; -i.That the Notice of Motion application dated May 12, 2022 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.That the Complaint and Notice of Motion application dated May 12, 2022 be served upon all the Respondents by 5pm today May 16, 2022. iii.That the Respondents to file and serve their responses to the Complaint and application by 5pm on May 17, 2022. iv.That the Complainants to file Further Affidavit if need be together with Written Submissions on entire Complaint by 5pm on May 18, 2022v.That the Respondents to file and serve their Written Submissions on entire Complaint by 5pm on May 19, 2022vi.That the Complaint be heard by way of highlighting of written submissions before Nairobi A Bench on May 19, 2022 at 6pm virtually via video link.vii.That this being a dispute involving nominations with strict timelines, all parties to ensure strict observance of the directions herein and the Complaint to proceed for hearing without fail as scheduled based on documentation that will be on record by the stated hearing date.viii.That pending inter parties hearing and determination of the application simultaneously with the Complaint, interim orders are hereby issued restraining the United Democratic Alliance Political Party from submitting the name of any nominee for the position of Member of County Assembly, Ngei Ward in Nairobi County to the Independent Electoral & Boundaries Commission.

4. On May 19, 2022 when the matter came up for highlighting of the parties’ written submissions, the 2nd Respondent prayed for more time to file their written submissions as they were yet to be served with the Complainants’ submissions. With the concurrence of the parties, the Tribunal directed all parties to file and exchange their written submissions by close of day May 20, 2022 where-after the Tribunal would consider the same together with the pleadings on record and deliver Judgment.

5. The Complainant was represented by Johnstone Daniel Jr, Advocate, the 1st Respondent was represented by the firm of Mollo Ong’ele & Company Advocates, and the 2nd Respondent was represented by the firm of H&K Law Advocates.

The Complainants’ Case 6. The 1st Complainant swore a supporting affidavit authorized by the other complainant dated May 16, 2022.

7. The Complainants submit that the 2nd Respondent failed to conduct free and fair nomination on various grounds. They aver that the nomination exercise was not conducted in gazetted polling stations within Ngei Ward, but instead, at Daima Primary in Huruma Ward, which was therefore inaccessible to Ngei Ward residents. According to the Complainants, nominations ought to have been conducted at Lions Health Centre and AIPCA/Redeemed Church within Ngei Ward being the gazetted polling stations.

8. It is further alleged that the 2nd Respondent failed to restrain and/or allowed the 1st Respondent and his supporters to take over control of the polling station, conduct and tally of the vote from the party polling officials. The 2nd Respondent further failed to supply to aspirants with the appropriate list to be utilized, and relied on an incomplete list to the effect that, it could not be ascertained who voted on the day. This led to members of other parties and residents of other wards participating in what the Complainants considers a shambolic exercise.

9. The Complainants further submit that the 1st Respondent commanded and carried out a coordinated plan to disrupt the entire exercise through the use of a huge assembled horde of men nearing 80 who: -i.Threatened and committed actual violence against polling officials, fellow aspirants, agents and their supporters.ii.Falsely imprisoned polling officials, aspirants and agents for a period of four (4) hoursiii.Obstructed other aspirants and their supporters and denied them entry to the polling booth for purposes of voting.iv.Intimidated polling officials into being declared a winner and being issued with an interim certificate of nomination.v.Campaigned within the polling station with banners, chants and songsvi.Destroyed the premises by breaking all the glass window panes

10. They submitted that the entire nomination process was conducted for two hours from 2pm to 4pm and did not afford supporters sufficient time to assemble and vote. Some were sent away without voting despite having been there since morning when the horde closed the polling and began to tally the votes. That even the Complainants themselves were denied the sacred right to vote for themselves and be represented at the tallying of the vote.

11. The Complainants claim that the 1st Respondent’s campaign banner was placed right in the entrance of the polling station at Daima Primary School on April 14, 2022. The election officials present declined to have the banner removed. They further claimed that one of the voter registers that was used at AIPCA Church Ngei was not at the center, resulting in many voters’ names missing in the register. The Complainants claim that the 3rd Complainant’s agent was forced to sign the tallying forms.

12. The Complainants claim that during the voting chaos erupted and they reported the matter to the OCS Huruma who came to the scene but never intervened as the goons were too rowdy. They also reported their concerns and complaints to the party office via a letter to the Party Office dated April 15, 2022, signed by the Complainants.

13. The Complainants maintain that they are aggrieved by the EDRC decision as, despite the overwhelming evidence, the EDRC chose to uphold an election fraught with electoral malpractice. The EDRC determined that the nomination process was in substantial compliance with the provision of section 83 of the Election Act as read with the provisions of Article 38, 81, 86 of theConstitution of Kenya, 2010, and did not deem the alleged irregularities as being substantial enough to impeach the outcome of the nomination.

The 1st Respondent’s Case. 14. The 1st Respondent swore a replying affidavit dated May 17, 2022.

15. He affirms that on the nomination exercise of April 14, 2022, he was declared the candidate for the UDA seat of Member of County Assembly for Ngei Ward, Nairobi County.

16. He submits that the Complainants’ claims have not been accompanied by any material evidence. The changes in polling centers were witnessed across the entire Country, and were occasioned by circumstances beyond the control of the party and the 1st Respondent. He claims that all aspirants agreed to have the voting exercise at Daima Primary School. As Daima Primary School was not a pre-planned voting center for the nomination exercise, the possibility of the banners having been mounted at the gate during campaigns by supporters the previous day(s) was high. He claims that the banners were removed immediately the parties learnt of the change of venue for voting and that even posters for various aspirants could still be seen on various buildings around Daima Primary School since no aspirant prepared for the change of venue.

17. He claims that that AIPCA voter register was availed and used for the exercise. The NEB officials took necessary measures to ensure that eligible voters who had turned up to vote but their names were missing in the register had their names written at the back of the register against their National Identity Card numbers and that upon verification the said voter were allowed to vote.

18. He claims there was no intimidation, external influence and the secrecy in the voting room was maintained. There were no alleged goons, and the voting room had seven agents and two police officers who ensured order in the room. There was no report made at the police station and there was no OB produced. The OCS of Huruma police station witnessed the said exercise and made no adverse report or observation against the exercise.

The 2nd Respondent’s Case 19. The 2nd Respondent has raised a preliminary objection to our jurisdiction vide notice dated May 17, 2022. It is premised on the grounds that the Complaint offends the provisions of Rule 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 which provides that disputes should be filed at least one day before the day set aside by the Commission for submission of names of the party candidates who have been selected to participate in the general elections pursuant to Section 31(2A) of the Elections Act. That the IEBC gazetted deadline for submission of names of persons selected to contest in the general elections was on or before the April 28, 2022, and that this dispute filed on 13th May, 2022 was outside the stated timeline as read together with the timeline for filing dispute under Rule 8(1) of thePPDT (Procedure) Regulations 2017.

20. Without prejudice to the preliminary objection, the 2nd Respondents relied on their Replying Affidavit sworn by the Chairperson of the 2nd Respondent’s National Elections Board (NEB), Mr. Anthony Mwaura on May 17, 2022.

21. The 2nd Respondent confirms that the Complainants and the 1st Respondents were aspirants who were cleared for the nomination exercise that was conducted on April 14, 2022 as per Article 31 of the UDA Constitution. The Complainants lodged a complaint No 020 of 2022 before the EDRC to which it was heard and determined vide a ruling delivered on April 20, 2022 upholding the nomination of the 1st Respondent.

22. It is the 2nd Respondent’s averment that they already submitted the names of candidates to the IEBC and that the delay by the Complainant was unreasonable and no explanation had been given for the same. That the Complainants are in the circumstances abusing the court process which they have embraced as an afterthought.

23. The 2nd Respondent submits that the issues raised in this matter in respect of the alleged irregularities were the same issues that were raised before the EDRC and that the EDRC made a determination thereon. They claim that the allegations are mere statements which have been unsubstantiated. They relied on Trust Bank Limited v Paramount Universal Bank Limited & 2 others (2009) eKLR the court held that;“it is trite law that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleading.”

24. The 2nd Respondent submits that pursuant to Sections 107, 108 and 109 of the Evidence Act, the burden of proof is on the Claimants who terribly failed to discharge the burden as the averments were not supported by any evidence. They relied on Raila Odinga andanotherv The Independent Electoral and Boundaries Commission and others (2017) eKLR.

25. The 2nd Respondent submits that the nominations were conducted by UDA party’s NEB and not the 1st Respondent’s supporters as alleged, there is no evidence of any report made to the police of the allegations of violence or intimidation, and the allegations that the nominations were not by secret ballot and voters were forced to reveal who they voted for are unsupported by any evidence. They relied on Mohamed Ali Mursal v Saadia Mohamed & 2 othes (2013) eKLR.

26. The 2nd Respondent submits that the pictures annexed to the supporting affidavit did not provide any connection to the alleged electoral malpractices and could have been random pictures taken by any random person and are thus not credible. The Complainants have not only failed to discharge the burden of proof on the alleged electoral malpractices but have also failed to demonstrate how the same affected the outcome of the nomination process and are therefore not entitled to the reliefs sought.

27. It is the 2nd Respondent’s position that the nomination process with regard to Ngei Ward was free and fair, transparent and credible and was conducted in strict adherence to the Article 38, 81, 86 of theConstitution, Section 83 of the Elections Act and the party Constitution. They claim it is the duty of the Complainants to clearly demonstrate and prove that there was non compliance with theConstitution, Electoral Laws and UDA Constitutionand that affected the outcome of the entire nomination exercise. They relied onRaila Amolo vs IEBC and 3 others (2014) eKLR.

28. They submit that the Complainants did not only fail to support their allegations of irregularities and intimidation in the nominations process but have also failed to demonstrate how the alleged irregularities and intimidation affected the outcome of the nominations process. They pray that the Tribunal upholds the nominations and the EDRC decision.

Analysis and Determination 29. We have reviewed the parties’ pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to add?

Whether this Tribunal has jurisdiction to hear and determine this matter? 30. We have considered the objection to our jurisdiction on the grounds that the Complaint has been filed out of time contrary to the gazetted IEBC deadline of April 28, 2022 and also Rule 8(1) of thePolitical Parties Disputes Tribunal (Procedure) Regulations 2017.

31. This issue has been litigated before the Tribunal in numerous cases where we have found that the timelines set in Regulation 8 of the PPDT (Procedure) Regulations are inconsistent with the timelines set out in the Elections Act and cannot oust our jurisdiction as circumscribed under Section 40 of the Political Parties Act, 2011 (the PPA). In the case of Wang’ui B. Ng’ang’a v Jubilee Party & 3 Others, PPDT at Nairobi A Complaint No E076 of 2022 para 29-31, we observed as follows: -“…. The provisions of Rule 8 of the Political Parties Dispute Tribunal (Procedure) Regulations of 2017 need to be contrasted with the timelines set out in the Elections Act. The Elections Act sets a timeline of at least sixty days to the general election which would mean that a dispute can be filed with the Tribunal up to and including the 61st day before a general election. A complaint filed prior to 9th June, including the present complaint, would fall within these timelines. We note that there is some level of inconsistency between the Regulations and the Elections Act.Faced with such inconsistency, we turn to the Statutory Instruments Act No 23 of 2013 for guidance. Section 24(2) states that: - “A statutory instrument shall not be inconsistent with the provisions of the enabling legislation, or of any Act, and the statutory instrument shall be void to the extent of the inconsistency.” The Political Parties Disputes Tribunal (Procedure) Regulations, 2017 are statutory instruments as defined in section 2 of the Statutory Instruments Act thus: - “… any rule, order, regulation, direction… or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.”In view of the material inconsistency between the Elections Act and the Regulations, the provisions of the Regulations are void to the extent of that inconsistency. The effect would mean that the said inconsistency inherent in the Regulations cannot be used to limit the jurisdiction of the PPDT and deny an aggrieved party a substantive opportunity to be heard as this would cause a miscarriage of justice to the Complainant in line with her rights to a fair hearing…”

32. Similarly, in Samuel Muriithi Mwafrika v Lillian Omollo & 3 Others PPDT at Meru Complaint No E003 of 2022, we observed as follows: -“…29. In our opinion, a formalistic interpretation of regulation 8(1) as strictly any date set by the Commission without regard to section 31(2A) of the Elections Act and to the rights of aggrieved parties to have their disputes heard by the Tribunal would cause substantial miscarriage of justice. It would mean that parties who still have matter pending before their respective parties Internal Dispute Resolution Mechanisms after 28th April 2022 are forever locked out of this Tribunal. We want to believe that it would never be the intention of parliament to lock out parties from the seat of justice en masse…”

33. We agree with the above observation and we find no basis to depart from the same. In the circumstances, we find that we have jurisdiction to hear and determine this Complaint.

Whether the Complaint is merited? 34. As we consider issues raised by the parties to this nomination dispute, we are mindful that nomination, just like an election, is a process. Article 81 of theConstitution of Kenya, 2010, is the constitutional threshold against which the conduct of elections is to be measured, to determine whether it meets established standards of a democratic franchise.

35. Sight must also not be lost of the provisions of Section 83 of the Elections Act, 2011 which provides as follows:“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 theConstitution and in that written law or that the non-compliance did not affect the result of the election”.

36. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others[2014] eKLR, the Supreme Court stated: -“[210B]… In this case, as in other election matters coming up before the Courts, the question as to the nature or extent of electoral irregularities, and as to their legal effect, repeatedly arises. The crisp issue is: “how do irregularities and related malfunctions affect the integrity of an election" …

213. The Court observed that the practical realities of election administration are such that imperfections in the electoral process are inevitable; and on this account, elections should not be lightly overturned, especially where neither a candidate nor the voters have engaged in any wrongdoing…

217. If it should be shown that an election was conducted substantially in accordance with the principles of theConstitution and the Election Act, then such election is not to be invalidated only on ground of irregularities.

218. Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election. In this regard, we stand on the same plane as the learned Judges in Morgan, Opitz and Nana.

219. …Examples of irregularities of a magnitude such as to affect the result of an election, are not however, closed…”

37. In Raila Odinga v IEBC (2013) eKLR the court in declining to nullify the outcome of 2013 General elections stated: -“…A court is to consider the effect of the alleged irregularities on the election results before nullifying an election. It is only upon a finding that the irregularities proven affected the declared election results that a court will nullify an election...”

38. In consideration of the law and the reasoning in the above cases, we now proceed to address our minds to two fundamental questions. Firstly, have the Complainants satisfied the burden and standard of proof in respect of the irregularities alluded to in this matter? Secondly, if proven, are they such that they would affect the results of the nomination?

39. The Complainants have alluded to numerous forms of irregularities as already highlighted above. The evidence furnished by the Complainants in support of the irregularities are in two major forms. Firstly, there is reference to pictures and a video clip in the Complainant’s affidavit. Secondly, the Complainants filed various Witness Affidavits sworn on May 17, 2022 in addition to the Affidavits filed prior thereto.

40. With respect to the pictures produced by the Complainants, we note that the pictures are not dated and there is no evidence that they were taken on the nomination date. It was further noted the pictures produced contained other aspirants’ posters.

41. As regards the video clip referred to in the Complainants’ affidavit, we note that the Complainants did not file a Certificate of Production of Electronic Evidence in respect thereto. We are therefore not able to confirm its authenticity and integrity and cannot admit it in evidence if at all it was produced. In this regard, we rely on the case of Idris Abdi Abdullahi v Ahmed Bashane & 2 others[2018] eKLR, where the court stated: -“…The CD video recording in the instant case ought to have the certificate that will confirm its authenticity and integrity before admission as such evidence shall also establish the validity and integrity of the election process in these proceedings….The certificate is mandatory requirement in the absence of which the CD video recording cannot be admitted as evidence. The objection to production of the CD video recording is upheld. It shall not form part of the evidence in these proceedings…”

42. Turning to the witness affidavits sworn on 17th May 2022, we note that the same were objected to by the 1st Respondent claiming that they were filed after close of pleadings. From the record, corresponding leave had been granted to the Complainants to file Further Affidavit if they so wished (in response to any new issues that would have arisen from the responses) together with their Written Submissions. This grant of leave did not give the Complainants a blanket authority to file or introduce additional affidavits and witnesses without considering whether the Respondents would have an opportunity to respond thereto in the interests of a fair hearing. Be that as it may, we note that whereas the 1st Respondent raised this objection in his submissions, he did not highlight or seek an opportunity to respond to the supposedly new issues.

43. Whereas the Complainants allude to wrong polling stations being used, no evidence was produced to show the gazetted polling stations that were to be used for the nomination exercise. In any event, such a change would ordinarily affect all aspirants and it has not been demonstrated that the change worked solely to the advantage of the 1st Respondent to the exclusion of all other aspirants.

44. Further, it has been admitted in the witness affidavits of the Complainants that by the time voting materials were arriving, all the 7 aspirants and their agents were present and they have confirmed in the affidavits that they were allowed to enter and inspect the ballots. Their only concern is that the numbers that were allowed entry were beyond the expected numbers and they aver that an additional number of people affiliated to the 1st Respondent were allowed in. We do not have a record of persons who were present in the hall and we cannot therefore verify this allegation. In any event, the Complainants have given contradictory figures in the affidavits that were filed. Whereas the 1st Complainant alludes to 80 or so goons, the 2nd Complainant Rogers Mutua has alluded to 40 or so goons who harassed people. This huge variation in numbers cannot go unnoticed.

45. It is further alleged that the goons continuously harassed people in the hall and also the Complainants’ voters. There has not been produced any evidence of any report on violence, intimidation, harassment, etc. at the polling station. If the Complainants were held hostage or if there was violence and intimidation as they claim, why wasn’t the matter reported to the police station soon after their securing their release? Is it enough to state that the OCS was present and was informed and he failed to act? We do not think so.

46. In addition to the cases we had referred to above, we add that in the case of Emmanuel O Achayo v Orange Democratic Movement & 4 others(2017) eKLR, the High Court equally emphasized that;‘In election petitions or nominations disputes the burden of proof rests with the party making the allegations at challenging the outcome or alleging, misconduct on the other.’

47. And in John Kiarie Waweru v Beth Wambui Mugo & 2 others, the High Court held‘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 that applicable in ordinary civil cases i.e. 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 practices, like for instance bribery, require higher proof.’

48. In a nutshell, taking cue from the findings in the afore-referenced judicial authorities, it is our observation that the affidavits produced constitute mere statements without substantiation and the same do not in our opinion meet the standard of proof that is expected of electoral malpractices. Many of the allegations alluded to would have easily been demonstrated by for instance pictures, police reports on violence, video clips, apart from mere testimonies of witnesses some of whose evidence were contradictory as already demonstrated. We accordingly find that the Complainants have failed to meet the burden and standard of proof.

49. We have further applied our mind to the question of the impact of any of the malpractices to the results of the nomination. Even if we were wrong in our finding that the Complainants did not meet the burden and standard of proof required in nomination election cases, we note that no evidence was led to demonstrate how the malpractices alluded to affected the results of the nomination. In the Raila Odinga vs IEBC Case(2013) and in Gatirau Peter Munya Case referred to above, the Supreme Court found that the court ought to consider the effect of alleged irregularities on the results before nullifying the same. In this case, it has not been demonstrated that the concerns to do with voter registers, polling stations, violence, etc. affected only the Complainants and their voters to the exclusion of the 1st Respondent and his voters, and/or that the results would have significantly changed. We accordingly find that the threshold for nullification of an election or nomination as set in law and precedents has not been met in this case.

50. Turning to the question of costs, whereas costs follow the event, we are of the considered view that it is in the interest of fostering party unity that all the parties hereto meet their own costs of these proceedings.

Disposition 51. In light of the foregoing, we order as follows: -i.That the Complaint herein be and is hereby dismissed.ii.That each party to bear its own costs of the proceedings.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2022. DESMA NUNGO………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)