[2022] KEHC 10133 (KLR)

Namunyu & 3 others v Ndonji & 3 others; Namunyu & 2 others (Interested Parties) (Civil (Election) Appeal E413, E414, E430 & E433 of 2022 (Consolidated)) [2022] KEHC 10133 (KLR) (Civ) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10133 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil (Election) Appeal E413, E414, E430 & E433 of 2022 (Consolidated)

JK Sergon, J

July 1, 2022

Between

Shadrack Machanje Namunyu

Appellant

and

Joseph Ouma Ndonji

1st Respondent

Orange Democratic Movement

2nd Respondent

As consolidated with

Civil (Election) Appeal E414 of 2022

Between

Catherine Mumma

Appellant

and

Joseph Ouma Ndonji

Respondent

and

Shadrack Machanje Namunyu

Interested Party

Orange Democratic Movement

Interested Party

Stephen Otieno Aka Vosti

Interested Party

As consolidated with

Civil (Election) Appeal E430 of 2022

Between

Joseph Ouma Ndonji

Appellant

and

Shadrack Machanje Namunyu

1st Respondent

Orange Democratic Movement

2nd Respondent

Returning Officer, Embakasi West Constituency

3rd Respondent

As consolidated with

Civil (Election) Appeal E433 of 2022

Between

Orange Democratic Movement

Appellant

and

Joseph Ouma Ndonji

1st Respondent

Shadrack Machanje Namunyu

2nd Respondent

Returning Officer, Embakasi West Constituency

3rd Respondent

(Being an appeal against the judgment and decree delivered by the Political Parties Tribunal on 14th June, 2022 in Tribunal Case No. E044 of 2022)

Judgment

1. Before this court for determination are four (4) appeals which have since been consolidated: the first and second appeals are Civil (Election) Appeal No. E413 of 2022 and Civil (Election) Appeal No. E414 of 2022 lodged by Shadrack Machanje Namunu (“hereinafter referred to as Shadrack”) and Catherine Mumma (“hereinafter referred to as Catherine”) respectively, seeking to challenge the ruling and order delivered by the Political Parties Tribunal (PPDT) on 14th June, 2022 in Tribunal Case No. E044 of 2022.

2. In the memorandum of appeal dated 15th June, 2022 Shadrack raised 10 grounds essentially challenging the finding by the PPDT that it had the requisite jurisdiction to determine the contempt application dated 6th June, 2022. In the memorandum of appeal dated 16th June, 2022 Catherine has raised 11 grounds against the aforementioned finding equally on the subject of jurisdiction.

3. The third and fourth appeals are Civil (Election) Appeal No. E430 of 2022 and Civil (Election) Appeal No. E433 of 2022 lodged by Joseph Ouma Ndoji (“hereinafter referred to as Joseph”) and Orange Democratic Movement (“hereinafter referred to as ODM”) respectively, seeking to challenge the judgment and decree delivered by the Independent and Electoral Boundaries Commission Committee (“the Committee”) on 20th June, 2022 in Complaint No. 204 of 2022.

4. Joseph filed the memorandum of appeal dated 21st June, 2022 raising six (6) grounds arguing fundamentally that the Committee had acted in excess of its powers and that it further did not consider that the substratum of the complaint before it had been determined by the PPDT in Tribunal Case No. E044 of 2022 mentioned hereinabove and which matter was pending appeal by way of the first appeal lodged herein.

5. On its part, ODM challenged the abovementioned judgment in the same lines, by lodging the memorandum of appeal dated 21st June, 2022 raising seven (7) grounds of appeal.

6. This court directed the respective parties to dispense with the appeals through written submissions. It is apparent from the record that at the time of writing this judgment, not all the parties had complied with the directions given and hence this court could only consider the submissions which were availed.

7. Submissions were filed in the first appeal by Shadrack and Joseph, whereas in the second appeal Catherine put in written submissions, as did ODM.

8. On his part, Shadrack who supports both the first and second appeals submits that the PPDT lacked jurisdiction to make a finding on the dispute since Joseph did not exhaust all the internal dispute resolution mechanisms available to himself before filing the contempt application and cites the case of Gabriel Bukachi Chapia v Orange Democratic Movement & another[2017] eKLR where the Court of Appeal rendered that:“In effect the PPDT should not entertain disputes between members of a political party, disputes between a member of a political party and a political party, disputes between political parties and disputes between coalition partners, unless such dispute is in the first instance heard and determined by the internal political party dispute resolution mechanisms.”

9. Shadrack further submits that the claim which was before the PPDT emanated from fresh nominations that had been conducted on 31st May, 2022 and hence the PPDT had no mandate to nominate a party on behalf of ODM as it purported to do in the impugned ruling; rather, the PPDT ought to have simply ordered that fresh nominations be done.

10. In retort, Joseph argues that the reason for him filing the contempt application was for purposes of reinforcing the judgment delivered by the PPDT on 14th May, 2022 in Tribunal Case No. E044 of 2022 and hence the application was properly before the PPDT.

11. In her submissions in respect to the second appeal and in support of the first appeal, Catherine echoed the sentiments of her counterpart (Shadrack) on the lack of jurisdiction by the PPDT by virtue of the fact that the dispute in question emanated from fresh nominations.

12. Catherine further submits that in the present circumstances, it is IEBC and not the PPDT that assumes jurisdiction over disputes arising out of nominations, and cites inter alia, the case of Joseph Ibrahim Musyoki v Wiper Democratic Movement- Kenya & another [2017] eKLR in which the Court of Appeal held as follows:“…the jurisdiction of IEBC in settlement of electoral disputes is spelt out under Section 74(1) of the Elections Act and is derived from Article 88(4)(e) of the Constitution. It "includes disputes relating to or arising from nominations." Under the Act, "Nomination" means "the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act.”

13. Catherine also faulted the PPDT for finding her to be in contempt of court and yet it had earlier on issued orders to persons not before this court to comply with its earlier orders and that this did not apply to Catherine; and which contempt was purged by execution of the orders issued by the PPDT on 14th May, 2022.

14. ODM also filed submissions in support of both the first and second appeals while relying on similar arguments as those set out hereinabove.

15. When it came to the third and fourth appeals, the submissions on record belong to ODM; Shadrack and the Returning Officer, Embakasi West Constituency, being the 3rd respondent in the third appeal.

16. On the part of ODM, it is submitted that Joseph filed a complaint with the Committee during the pendency of the first and second appeals involving the same parties and during the pendency of the matter before the PPDT, seeking largely similar orders in both instances.

17. ODM is of the view that in view of the foregoing circumstances, the matter before the Committee was res judicata.

18. ODM is also of the view that the Committee has no mandate to determine the issue of candidacy in forthcoming elections as doing so would interfere with the internal dispute mechanisms of the party, and therefore urges this court to set aside the decision rendered by the Committee.

19. Shadrack associates himself with the above submissions and argues that the Committee did not have the jurisdiction to entertain the complaint filed by Joseph for the reasons given above.

20. The Returning Officer, Embakasi West Constituency contend in their submissions that the Committee had the requisite jurisdiction over the complaint, pursuant to the provisions of Article 88(4) of the Constitution which stipulates that:“The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.”

21. I have considered the rival submissions and authorities relied upon in the consolidated appeals.

22. I will first address the first and second appeals contemporaneously, which emanate from the ruling of 14th June, 2022 delivered by the PPDT.

23. It is clear that Joseph filed the contempt application dated 6th June, 2022 before the PPDT and sought inter alia, for orders that the Chairman of ODM be cited for contempt together with Catherine (being the Chairperson of ODM’s National Election Board) as well as Shadrack; and a further order that the PPDT directs IEBC to nullify the nomination of Shadrack and accept Joseph as the duly nominated candidate for ODM’s Umoja II ward.

24. In its impugned ruling, the PPDT found Catherine to be in contempt of the orders issued on 14th May, 2022 and ordered that a notice to show cause be issued against her. The PPDT also nullified the nomination of Shadrack and recognized Joseph as the duly nominated candidate for ODM’s Umoja II ward.

25. Upon my re-examination of the material placed before me, I note that by way of the judgment delivered on 14th May, 2022 the PPDT nullified the nomination of Shadrack and directed that ODM do resolve the dispute concerning nomination of its candidate for Umoja II ward.

26. Upon my further re-examination of the material placed before me, it remains unclear whether fresh nominations were undertaken by ODM.

27. Suffice it to say that I concur with the arguments put forth by Shadrack and Catherine that this being a nomination dispute, the proviso of Section 74(1) of the Elections Act would come into play, wherein IEBC would assume jurisdiction to entertain the dispute. In so finding, I borrow from the case of Joseph Ibrahim Musyoki v Wiper Democratic Movement- Kenya & another [2017] eKLR where the Court of Appeal succinctly stated that:“…the jurisdiction of IEBC in settlement of electoral disputes is spelt out under Section 74(1) of the Elections Act and is derived from Article 88(4)(e) of the Constitution. It "includes disputes relating to or arising from nominations." Under the Act, "Nomination" means "the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act.”

28. Further to the foregoing, the jurisdiction of the PPDT is clearly set out under the provisions of Section 40 of the Political Parties Act 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 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 decision of the Registrar under this Act; (fa) disputes arising out of party primaries.2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), or (e) unless the dispute has been heard and d determined by the internal political party dispute resolution mechanisms.”

29. That being the position, I am convinced that the PPDT did not have jurisdiction to make a determination in respect to the dispute, in the absence of anything to indicate that internal dispute resolution mechanisms were undertaken firstly.

30. On the subject of contempt of the orders of 14th May, 2022 by Catherine, upon my study of the record and in the absence of any evidence to the contrary, I am of the view that the allegations of contempt of the orders; being quasi-criminal in nature; were not proved to the required standard of proof.

31. In view of all the foregoing reasons, I am satisfied that it would be a proper exercise of my discretion to interfere with the ruling delivered by the PPDT on 14th June, 2022.

32. This brings me to the third and fourth appeals which I will also address simultaneously.

33. Joseph lodged the Complaint No. 204 of 2022 with the Committee and essentially sought for the revocation of the clearance of Shadrack and a further revocation of the decision by the Returning Officer clearing and registering Shadrack as a candidate to view in the upcoming general election.

34. Upon hearing the complaint, the Committee by way of the judgment delivered on 20th June, 2022 though dismissing the complaint, revoked the order clearing Shadrack to vie for the position of MCA Umoja II ward and further directed ODM to nominate an alternative candidate to IEBC for clearance for the subject position.

35. Upon my study of the record, it is apparent that subsequent to filing the contempt application before the PPDT, Joseph filed the complaint dated 9th June, 2022 with the Committee and by the time the PPDT was determining the contempt application, the Committee was yet to arrive at a determination on the aforementioned complaint.

36. Be that as it may, from my reading of the impugned judgment by the Committee, it is clear that in arriving at the decision it did, it acknowledged the existence of the application which had been filed before the PPDT.

37. On the subject of res judicata, I considered the decision by the Court of Appeal in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR where it offered the following interpretation on the legal term ‘res judicata’ in the manner hereunder:“Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits. That much is clear from Section 7 of the Civil Procedure Act, 2010;“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of the claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

38. From my perusal of the record and in view of the proviso of Article 88(4)(e) of the Constitution (supra), I am satisfied that the Committee had jurisdiction to make a determination on the complaint as it did. I see nothing to lead me to conclude that the matter is res judicata or that the Committee acted in excess of its powers as alleged on appeal. Consequently, the third and fourth appeals are hereby dismissed for want of merit.

39. The upshot therefore is that:a. Civil (Election) Appeal No. E413 of 2022 and Civil (Election) Appeal No. E414 of 2022 are hereby found to be meritorious and are allowed, with costs to the respective appellants therein.b.The ruling and order delivered by the PPDT on 14th June, 2022 in Tribunal Case No. E044 of 2022 is hereby set aside and is substituted with an order dismissing the application dated 6th June, 2022. c.Civil (Election) Appeal No. E430 of 2022 and Civil (Election) Appeal No. E433 of 2022 are hereby dismissed with no order on costs.d.The judgment delivered by the IEBC Committee on 20{{^th} June, 2022 in Complaint No. 204 of 2022 is hereby upheld.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd RespondentIN CIVIL (ELECTION) APPEAL NO. 413 OF 2022……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 1st Interested Party……………………………. for the 2nd Interested Party……………………………. for the 3rd Interested PartyIN CIVIL (ELECTION) APPEAL NO. 414 OF 2022……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent……………………………. for the 3rd RespondentIN CIVIL (ELECTION) APPEAL NO. 430 OF 2022……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent……………………………. for the 3rd RespondentIN CIVIL (ELECTION) APPEAL NO. 433 OF 2022