[2022] KEPPDT 983 (KLR)

Muthoni v Orange Democratic Movement & 2 others (Complaint E096 (NRB) of 2022) [2022] KEPPDT 983 (KLR) (23 July 2022) (Judgment)

Neutral citation: [2022] KEPPDT 983 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E096 (NRB) of 2022

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

July 23, 2022

Between

Anthony Maragu Muthoni

Complainant

and

Orange Democratic Movement

1st Respondent

ODM National Elections Board

2nd Respondent

David Njilithia Mberia

3rd Respondent

Judgment

1. Vide a Complaint dated 28th June 2022, the Complainant seeks the following reliefs from this Tribunal:-i.That the Decision of the ODM Appeals Tribunal be quashed/set aside in its entirety.ii.An order that the Nomination of the Complainant as the 1st Respondent’scandidate in Karen Ward be reinstated/upheld.iii.An order that the Complainant’s Nomination as the 1st Respondent’s candidate in Karen Ward on 28th June 2022 was valid, procedural and legal.iv.An order finding that that the 3rd Respondent’s nomination certificate dated 19th May 2022 was quashed by the 2nd Respondent.v.An order to vacate the mandatory orders issued directing the 2nd Respondent to recall its letter dated 3rd June 2022 and send a letter confirming the 3rd Respondent’s nomination.vi.An order that the costs of this suit and the proceedings at the ODM Appeals Tribunal be borne by the Respondents.

2. The Complaint is opposed, and in response and opposition thereto, the 3rd Respondent filed a Preliminary Objection dated 21st July 2022 and a Replying Affidavit sworn by the 3rd Respondent, Mr. David Mberia, on 21st July 2022. The 1st and 2nd Respondents neither opposed nor supported the Complaint.

3. Pursuant to the directions of this Tribunal, the Complaint proceeded for hearing on 21st July 2022 by way of oral submissions. The Complainant was represented by Mr. Mwendwa Munene Advocate and Mr. Koome Muketha Advocate. The 1st and 2nd Respondents were represented by Ms. Masai Advocate and the 3rd Respondent was represented by Mr. Ayieko Advocate.

The Complaint and Submissions 4. On the 22nd April 2022, the 1st Respondent conducted party primary elections to nominate its candidate for the position of Member of County Assembly (MCA) Karen Ward. The 3rd Respondent garnered the highest number of votes and he was declared the winner. The 3rd Respondent’s nomination was, however, challenged by the Complainant and other aspirants before the 1st Respondent’s Appeals tribunal in Kisumu Tribunal Appeal No. 33 of 2022. The Tribunal delivered judgement on 26th April 2022 in which it allowed the appeal, set aside the interim nomination certificate and referred the matter back to the 2nd Respondent for appropriate action.

5. The 2nd Respondent was, however, slow in acting upon the ruling of its election’s tribunal and hence the Complainant and other aspirants lodged an appeal before this Tribunal, being PPDT Complaint No. E073 of 2022. This Tribunal delivered its Judgement on 14th May 2022 in which it directed that the 1st Respondent conducts fresh nominations by 18th May 2022.

6. On the 15th May 2022, the 1st Respondent, via its secretariat, invited all the candidates for nomination by consensus in consonance with Clause 8(a) of the ODM National Elections Rules, 2022. However, the aspirants failed to reach consensus and the 2nd Respondent was left to consider other modes of conducting nominations in accordance with Rule 8 of the ODM party Constitution and the ODM National Elections Rules, 2022.

7. To this end, the 1st Respondent, acting in accordance with its Party Nomination Rules, adopted indirect nomination as its preferred mode of conducting its party primaries after consensus building process of 15th May 2022 failed. The 2nd Respondent accordingly settled on the Complainant as its preferred candidate to vie for the seat of MCA Karen Ward in the upcoming General elections to be held on 9th August 2022 and the Complainant was issued a nomination certificate.

8. The Complainant’s case is that he was legally and validly nominated by the 2nd Respondent as its candidate and consequently invited to present his papers to the IEBC on 6th June 2022 when he was duly cleared by the IEBC as a candidate for the position of Member of County Assembly Karen Ward.

9. The 3rd Respondent approached the High Court in HCJRMISC E063 of 2022 seeking leave to institute Judicial Review proceedings to set aside the decision to include him in the list of candidates disqualified by the IEBC. The High Court delivered Judgment on the 18th June 2022 where it dismissed the matter wholly on the grounds that the Honourable Court was not clothed with Jurisdiction to hear the application. The court further held that the Application was not founded on valid grounds and no competent court could grant the orders sought.

10. The 3rd Respondent filed another application before the IEBC Disputes Resolution Committee (DRC) on the 8th June 2022 which was heard on 18th June 2022 and a decision delivered on 20th June 2022. The DRC found that it lacked the jurisdiction to deal with the matter since it was a not a nomination dispute as contemplated under Section 74(1) of the Elections Act.

11. The 3rd Respondent then lodged a complaint with the 1st Respondent’s Appeals Tribunal on 23rd June 2022, which Tribunal found that it had the jurisdiction to hear the matter.

12. According to the Complainant, the ODM Tribunal lacked the jurisdiction to hear the complaint as presented before it by operation of law, noting that the Complainant was nominated by the 1st Respondent on 28th May 2022 and given a nomination certificate on the same day, which decision was communicated to the IEBC on 3rd June 2022. Consequently, the IEBC duly cleared the Complainant on 6th June 2022 and issued him with a nomination certificate which the Complainant avers was upheld by the IEBC DRC. He referred to the Court of Appeal decision in the case of Joseph Ibrahim Musyoki v Wiper Democratic Movement- Kenya & another [2017] eKLR where it was found that once the nomination is received by the IEBC on the nomination day then the party primary is deemed to have ended automatically. He accordingly submitted that once the party primary period extinguishes by operation of law, then the ODM Appeals Tribunal cannot abrogate jurisdiction upon itself to determine that which is no longer available for determination.

13. It was submitted that Section 13(2) of the Elections Act provides against substitution of the name of a candidate after the IEBC has cleared the said candidate on the nomination day, and that the orders of substitution cannot be acted upon by the IEBC which has already cleared the 3rd Respondent.

14. The Complainant submitted that the ODM Appeals Tribunal lacked jurisdiction to issue an order which is unenforceable by dint of the law and this order must be overturned to prevent chaos.

15. The Complainant contends that the ODM appeals tribunal erred in finding without any fault of the Complainant that his nomination certificate was invalid, and further that the tribunal erred in failing to allow the 1st Respondent to appear and make a confirmation on whether both nomination certificates were issued, whether the 1st Respondent had revoked any of the certificates, and what were the criteria used to make this determination. According to the Complainant, the ODM Appeals tribunal, by upholding one certificate and dismissing the other, usurped the role of the 2nd Respondent against the 1st Respondent’s Constitution. He submitted that the ODM tribunal could not purport to make a substantive finding as to who should be the 1st Respondent’s candidate given that, that is the sole mandate of the 2nd Respondent.

16. On eligibility, the Complainant submitted that the 3rd Respondent was included in the EACC report of aspirants with integrity issues released on 4th June 2022 and thus disqualified by the IEBC from participating in elections. The press release was subject of litigation in the High Court in HCJRMISC E063 of 2022 and the IEBC DRC Complaint Number 123 of 2022 and that both the Court and the IEBC refused to vacate the disqualification. The High Court in particular found that there were no sufficient grounds to allow judicial review of that decision among others. Accordingly, the 3rd Respondent remains disqualified by the IEBC from contesting as a candidate on the 9th August 2022 general elections.

17. The Complainant further submitted that the ODM Appeals tribunal lacks the jurisdiction to revoke a decision of the IEBC and that there was no court order or IEBC Tribunal order vacating the disqualification. It was submitted that this Tribunal and the ODM Appeals tribunal lack the jurisdiction to challenge the decision to disqualify the 3rd Respondent.

18. It is the Complainant’s contention that the decision of the ODM Appeals tribunal was erroneous, illegal, unprocedural and unmerited decision and that this Honourable Tribunal ought to quash, set aside and dismiss the same.

The 1st and 2nd Respondents’ Case 19. No pleadings were filed on behalf of the 1st and 2nd Respondents. Counsel for the 1st and 2nd Respondent Ms. Masai attended the hearing but indicated that they were neither in support nor in opposition to the Complaint.

The 3rd Respondent’s Response and Submissions 20. The 3rd Respondent has raised a preliminary objection on two limbs. First, that the Tribunal has no jurisdiction to hear and determine this dispute as the same is statute barred and offends the provisions of Rule 8 of the PPDT (Procedure) Regulations. In this regard, it was argued that the ODM Appeals Tribunal decision being challenged was delivered on 27th June 2022 yet the Complaint was filed on 19th July 2022 outside the prescribed timelines. Secondly, that the Complaint is in breach of Article 88(4) of the Constitution and Section 74 of the Elections Act as the 1st and 2nd Respondents have since forwarded the 3rd Respondent’s name to the IEBC as their nominated candidate thus divesting this Tribunal the jurisdiction.

21. It is the 3rd Respondent submission that party primaries in respect of the position of MCA Karen Ward were conducted on 22nd April 2022 when the 3rd Respondent won and was consequently declared the winner. Dissatisfied with the results, the Complainant herein amongst other aspirants lodged Appeal No. 33 of 2022 before the ODM Appeals Tribunal.

22. Vide a decision delivered on 26th April 2022, the Appeal was allowed and the nomination of the 3rd Respondent was nullified and the matter referred back to the party’s National Elections Board (NEB) to take appropriate action whilst observing the IEBC timelines. The 3rd Respondent was dissatisfied with the decision and filed a Complaint before this Tribunal, PPDT Complaint Number E073 of 2022. The Tribunal heard the matter and delivered its decision which upheld the ODM Appeals Tribunal’s decision and directed that a fresh nomination process be conducted. Consequently, fresh nominations were conducted in accordance with the party laws and the 3rd Respondent again emerged successful and was issued with a nomination certificate on 19th May 2022 and his name forwarded to the IEBC.

23. On 31st May 2022, the 3rd Respondent received communication calling on him to appear before the IEBC’s Returning Officer (RO) on 6th June 2022 for the registration exercise. He complied and presented himself before the IEBC on 6th June 2022 only to be informed that the party had revoked his nomination and substituted his name with that of the Complainant. He submits that the decision to remove his name was made irregularly and that no communication had been made to him on the same.

24. The 3rd Respondent was aggrieved and lodged Complaint No. 324 of 2022 before IEBC’s Dispute Resolution Committee (DRC). However, the DRC found that the dispute was within the jurisdiction of the party and the Complaint before DRC was accordingly dismissed on that ground, and further, that there was no determination upholding the Complainant’s nomination as purported. The 3rd Respondent subsequently filed Appeal Number 60 of 2022 before the ODM Appeals Tribunal. The ODM Tribunal rendered its decision thereon allowing the Appeal. The Complainant’s nomination was accordingly revoked and the 3rd Respondent’s nomination was upheld. The 1st and 2nd Respondents have since complied with the decision which was communicated to the IEBC vide the party’s letter dated 19th July 2022 withdrawing the nomination of the Complainant.

25. According to the 3rd Respondent, the High Court matters relating to this case being Judicial Review Case No. E063 of 2022 and Judicial Review Case No. E081 of 2022 were not determined on merits. The 3rd Respondent accordingly submits that the complaint was properly before the Appeals Board which had jurisdiction anchored in Rules 5 and 6 of the ODM Appeals Tribunal (Practice and Procedure) Rules, 2022 to hear and determine the matter in view of the IEBC DRC decision and the fact that it concerned the party’s nomination processes.

26. On the question of eligibility, the 3rd Respondent submitted that this Tribunal rendered itself in PPDT No. E073 of 2022 and that in any event, the matter is currently alive before High Court Constitutional Petition Number 366 of 2022.

Analysis and Determination 27. We have considered the pleadings and parties’ submissions and isolated the following key issues for determination:i.Whether this Tribunal has Jurisdiction to hear and determine the instant Complaint?ii.Whether the Complaint is merited?iii.What are the appropriate remedies in the present instance?

SUBDIVISION - Whether this Tribunal has Jurisdiction to hear and determine the instant Complaint? 28. As we have already highlighted above, the 3rd Respondent has challenged the jurisdiction of this Tribunal in two respects, firstly, that the claim is statute barred and secondly, that this Tribunal lacks jurisdiction to hear and determine this matter given that the name of the 3rd Respondent has already been forwarded to the IEBC vide letter dated 18th July 2022 received by the IEBC on 19th July 2022.

29. In the case of Phoenix of E.A Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR the court defined jurisdiction as follows:-“It is a truism, jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction? 2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

30. And in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Court stated that:-“A Court’s jurisdiction flows from either the Constitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.”

31. This Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011, which provides as follows: -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.

32. As we apply our minds to the foregoing provisions of Section 40 of the PPA, we are also alive to the recent determination of the Court of Appeal in the case of Hussein Wenton Mohamed Abdirahmed v Deka Ali Khala & 3 Others Civil Appeal No. E326 of 2022, where the Court of Appeal pronounced itself as follows:-“…Despite the generality of Section 41(2) of the Political Parties Act, the jurisdiction to determine disputes relating to nomination (at party primaries) of party members for election is reserved either to the party’s internal dispute resolution mechanism pursuant to section 38(i); or, by reference to the Tribunal pursuant to section 40(1)(fa) of the Act; but, where a nominee’s name has already been submitted to the IEBC, and a dispute arises in that regard, then the process is deemed to have transited from party primaries to nominations, and accordingly, the jurisdiction to challenge the nomination lies with the IEBC pursuant to Article 88 (4)(e) of the Constitution…”

33. In another very recent determination by the Court of Appeal in the case of Nick Evance Okoth Ochola v Ted Marvin Odhiambo & 3 Others Civil Appeal No. E389 of 2022, the Court held as follows:-“… The nomination process in which the appellant and the 1st respondent were involved had gone beyond the party primaries as the name of the appellant had been submitted to IEBC. The Jurisdiction of IEBC to determine the dispute between the parties had been invoked in accordance with Article 88 (4)(e) of the Constitution which stipulates that… The pleadings and the Affidavit evidence lead us to the inescapable conclusion that as at 27th May 2022, the appellant’s name had been submitted to IEBC as ODM’s nominee. It follows therefore that the process had transited from party primary to nomination as by law defined and that the jurisdiction to challenge nomination lay with the IEBC….”

34. Turning to the facts of this case, we note that whereas the instant Complaint may have been couched as an appeal against the decision of the ODM Appeals Tribunal, the fact remains that the Complainant had already been cleared by the IEBC. It is also not in dispute that notwithstanding the Complainant’s clearance, the 1st Respondent subsequently forwarded the name of the 3rd Respondent to the IEBC for clearance. In essence, whichever way we may want to look at it, whether from the lenses of the Complainant or the 3rd Respondent, this dispute is coming before us after the process has transited to the IEBC. As observed by the Court of Appeal in the above cases, where a nominee’s name has already been submitted to the IEBC, and a dispute arises in that regard, then the process is deemed to have transited from party primaries to nominations, and accordingly, the jurisdiction to challenge the nomination lies with the IEBC pursuant to Article 88 (4)(e) of the Constitution.

35. We have further taken cognizance of the fact that we have previously handled a similar complaint concerning ODM MCA nominations at Karen Ward, being, PPDT Nairobi A Complaint No. E097 of 2022 Johnson Oduk Oginga v ODM & 3 Others. In this case involving the same nominations subject hereof and wherein the Complainant herein was cited as the 3rd Respondent, we observed as follows at paragraphs 24 to 27 of our Judgment: -“…24. With respect to the status of the matter, all parties hereto have stated that the 3rd Respondent’s name had been forwarded to the interested party. A letter has been produced by the 1st and 2nd Respondents demonstrating the same. This fact is therefore not in dispute. The question that we need to address our mind to is whether the fact that the 3rd Respondent’s name had been forwarded to the interested party takes away the jurisdiction of this Tribunal.25. This issue has not been without litigation. In a recent determination in the case of Hussein Wenton Mohamed Abdirahmed v Deka Ali Khala & 3 Others Civil Appeal No. E326 of 2022, the Court of Appeal pronounced itself as follows:- “…where a nominee’s name has already been submitted to the IEBC, and a dispute arises in that regard, then the process is deemed to have transited from party primaries to nominations, and accordingly, the jurisdiction to challenge the nomination lies with the IEBC pursuant to Article 88 (4)(e) of the Constitution…” 26. In another very recent determination by the Court of Appeal in the case of Nick Evance Okoth Ochola v Ted Marvin Odhiambo & 3 Others Civil Appeal No. E389 of 2022, the Court held as follows:-“… The nomination process in which the appellant and the 1st respondent were involved had gone beyond the party primaries as the name of the appellant had been submitted to IEBC. The Jurisdiction of IEBC to determine the dispute between the parties had been invoked in accordance with Article 88 (4)(e) of the Constitution…”

27. Taking cue from the foregoing and noting that we are bound by the determination of the Court of Appeal on this issue, we find that we do not have jurisdiction to hear and determine this matter given that the 3rd Respondent’s name was already submitted to the interested party. As held by the Court of Appeal, the process had transited from party primaries to nomination as defined under Section 2 of the Elections Act…”

36. Taking into consideration the foregoing, we find no basis to depart from the above judicial pronouncements. We accordingly find that we do not have jurisdiction to hear and determine this matter.

37. Having found that we do not have jurisdiction, we shall not purport to delve into the merits or otherwise of the Complaint as any determination arising therefrom will be a nullity. We accordingly have no option but to down our tools.

38. In light of the foregoing, we order as follows: -i.The Complaint herein be and is hereby struck out.ii.No orders as to costs.

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY 2022. DESMA NUNGO…… ………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………….(MEMBER)RUTH WAIRIMU MUHORO……………………………….(MEMBER)