[2022] KEPPDT 1020 (KLR)

Murimi v Oduor & another (Complaint E003 (MSA) of 2022) [2022] KEPPDT 1020 (KLR) (29 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1020 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E003 (MSA) of 2022

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

April 29, 2022

Between

Eliud Kimari Murimi

Complainant

and

Fredrick Oduor William Oduor

1st Respondent

Orange Democratic Movement National Elections Board

2nd Respondent

Judgment

1. This is a complaint raised by the Complainant against the 2nd Respondent party arising from the 2nd Respondent party primaries for the position of Member of County Assembly Mkomani Ward, Mombasa County held on the April 9, 2022 and determined by the 2nd Respondents Appeals Tribunal on the April 16, 2022.

2. The Complaint was served upon the Respondent and there is an affidavit of service on record sworn by Thomas Otieno on April 21, 2022 which confirms that the 1st and 2nd Respondents were properly served.

3. The 1st Respondent who refused to disclose his location was served through his whatsapp number 0704-128-800 and the 2nd Respondent were served at their offices situated at Nairobi off Banda Road along Magadi Road in Karen and they received the complaint by stamping using their official stamp on the face of the order and the statement of claim.

4. His main Complaint seeks declaratory orders that Orange Democratic Movement National Elections Board is in contempt of its orders issued by the ODM Appeals Tribunal in the case of Mombasa Appeals Tribunal No 10 of 2022, Eliud Kimari Murimi v Fredrick Oduor Wiliam Odongo and Returning Officer Mkomani Ward.

5. The complainant also wants the Tribunal to declare that the 1st Respondent is not the bonafide ODM Party elected candidate to contest the seat of MCA representing Mkomani Ward and lastly orders directing the 2nd Respondent to give effect to its orders in Mombasa Appeals Tribunal No 10 of 2022, Eliud Kimari Murimi v Fredrick Oduor William Odongo and Returning Officer Mkomani Ward.

6. The Complainant was represented by Shabban Associates LLP. The matter was heard on the on the April 26, 2022.

Complainants Case 7. The Complainant is a registered member of the Orange Democratic Movement (ODM) party the 2nd Respondent herein and a voter in Mkomani Ward Nyali Constituency Ward Mombasa County.

8. He was cleared by the 2nd Respondent party to vie for the seat in the party primaries as a Member of County Assembly for Mkomani Ward which were held on 9/04/2022.

9. He garnered the majority of votes being 403 votes while the 1st Respondent garnered 374 votes and was second in the contest. Apparently, the 1st Respondent was issued with the interim certificate as the purported winner.

10. Aggrieved by the decision of the 2nd Respondent to issue the 1st Respondent with the Interim Certificate as the purported winner the complainant lodged an appeal at the ODM Appeals Tribunal on the April 13, 2022 and he served the 1st Respondent with the Appeal papers but the 1st Respondent refused and/or neglected to appear at the hearings of the Appeals Tribunal.

11. Judgment was entered on the April 16, 2022 directing the cancellation of the interim certificate issued to the 1st Respondent and directing the 2nd Respondent to declare and issue the certificate to the complainant having emerged the winner according to the Partys Results Acknowledgement form within 48 hours of the judgment.

12. The complainant claims that despite the 2nd Respondent having been served with the orders from the ODM Appeals Tribunal they have failed to comply with them but instead confirmed the certificate issued to the 1st Respondent.

13. For these reasons he seeks the orders sought in the complaint.

Respondents’ Case 14. The Respondents were served and the Tribunal Interrogated the Affidavit of service by Thomas Otieno sworn on the April 21, 2022 and was satisfied that the Respondents were duly served.

15. Despite service the 1st and 2nd Respondent have failed and/or ignored to respond to the complaint as none has entered appearance nor filed a response or defence to the complaint.

16. The complaint is therefore uncontested and the Tribunal will consider it as such as it delivers this judgment.

Issues for Analysis and Determination 17. 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 Complainant who won the ODM Party Primaries for the post of Member of County Assembly Mkomani Ward moved the Party’s Appeals Tribunal to contest the decision of the Returning Officer Mkomani Ward to award the interim nomination certificate to the 1st Respondent.ii.What orders can the Tribunal issue in the circumstances.iii.Who bears the costs of the complaint?

Disposition Whether the Complainant who won the ODM Party Primaries for the post of Member of County Assembly moved the Party’s Appeals Tribunal to contest the decision of the Returning Officer Mkomani Ward to award the interim nomination certificate to the 1st Respondent. 18. The issues in this complaint are undisputed and straightforward. The Complainant is a member of the ODM Party the 2nd Respondent. The party held its primaries for the post of Member of County Assembly Mkomani Ward in Nyali Constituency Mombasa County.

19. From the evidence placed before the Tribunal the Complainant won the Party Primaries and garnered 403 votes but he was not issued with the certificate of nominations as is required by law and the Party’s Constitution.

20. Instead the Interim Certificate was issued to the 1st Respondent who was the 2nd in the contest after garnering 374 votes. The Complainant was aggrieved by the decision of the 2nd Respondent to issue the Interim Certificate to the 1st Respondent and he lodged an appeal at the ODM Appeals Tribunal.

21. The ODM Appeals Tribunal heard the Appeal and directed that the Interim Certificate be issued to the Complainant but the 2nd Respondent has failed to comply with he said direction from the party.

22. The Tribunal finds that the Complainant exhausted the party’s IDRM and was issued with an order whose effects were that he be issued with the Interim Nomination Certificate which the Party has refused to comply with.

What orders can the Tribunal issue in the circumstances? 23. The Complainant has satisfied this Tribunal that he exhausted the party’s IDRM processes where he was granted the orders he sought.

24. The judgment entered on the April 16, 2022 by the Appeals Tribunal in the case of Mombasa Appeals Tribunal No 10 of 2022 Eliud Kimari Murimi v Fredrick Oduor William Odongo & Returning Officer Mkomani ward is hereby upheld.

25. The Tribunal will therefore grant the Complainant the orders as sought in the complaint as follows:i.That a declaration be and is hereby issued to the Orange Democratic Movement National Elections Board declaring that it is in contravention of the orders issued by the Appeals Tribunal in the case of Mombasa Appeals Tribunal No 10 of 2022 Eliud Kimari Murimi v Fredrick Oduor William Odongo & Returning Officer Mkomani Ward delivered on April 16, 2022. ii.A declaration be and is hereby issued declaring that the 1st Respondent is not the bonafide Orange Democratic Movement party elected candidate to contest the seat of Member of County Assembly representing Mkomani Ward.iii.The 2nd Respondent is hereby directed to give effect to the orders of ODM Appeals Tribunal in the case of Mombasa Appeals Tribunal No 10 of 2022 Eliud Kimari Murimi v Fredrick Oduor William Odongo & Returning Officer Mkomani Ward delivered on April 16, 2022’iv.That in the interest of party unity, each party shall bear its own costs.

26. Orders accordingly

DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF APRIL 2022. HON. ERASTUS ORINA…………………………………………………………………(PRESIDING MEMBER)HON. THERESA CHEPKWONY………………….………………………………………(MEMBER)HON. DANIEL KAGACHA………………………………………………………………...(MEMBER)