[2022] KEPPDT 968 (KLR)

Ndonji v Namunyu & another; Otieno aka Vosti (Interested Party) (Complaint E044 (NRB) of 2022) [2022] KEPPDT 968 (KLR) (20 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 968 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E044 (NRB) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 20, 2022

Between

Joseph Ouma Ndonji

Complainant

and

Shadrack Machanje Namunyu

1st Respondent

Orange Democratic Movement

2nd Respondent

and

Stephen Otieno Aka Vosti

Interested Party

Ruling

1. The complaint herein was lodged before this Tribunal on April 28, 2022.

2. The said complaint being PPDT Com. No. E044/2022 had the following prayers:i.That the nomination certificate for the ODM party aspirant for Umoja Il ward in Embakasi West Constituency within Nairobi County issued on 22/04/2022 to the Respondent- Shadrack Machanje Namunyu be nullified and/or withdrawn.ii.That the 2nd respondent- the Orange Democratic Movement be directed to issue the complainant- Joseph Ouma Ndonji with the nomination certificate as the duly nominated candidate for Umoja Il ward, Embakasi West Constituency, Nairobi County.iii.That the Interim Independent and Boundaries Commissions be ordered and/or directed to gazette the names of the complainant- Joseph Ouma Ndonji as the duly nominated candidate for Umoja Il ward, Embakasi West Constituency, Nairobi County.iii.That the Honourable tribunal do issue appropriate and/or relevant orders that it deems fit, just and expedient in the circumstances to grant

3. The parties cited, at the point of filing, did not include the Interested Party herein who was enjoined as a party after his successful application to be so enjoined. He was enjoined by virtue of the fact that he was a fellow aspirant for the ticket in issue.

4. During the pendency of the complaint herein another complaint, being Complaint no. E045 of 2022 [PPDT Com. No. E045/22] was also filed before this Tribunal. This second complaint was lodged in the portal and remained inactive for non-payment of requisite fees until a NTSC {notice to show cause] issued. The said NTSC was sent in line with the strict timelines within which election disputes need be determined. Due to the fact that the status of this second complaint had not been regularized it could not, at the date of the hearing of the said NTSC, be merged with the complaint herein which was at an advanced stage of proceedings.

5. The said PPDT Com. No.E045/2022 had the following prayers:v.That a declaration issue that the decision of the Orange Democratic Movement Party [ODM] to issue a nomination certificate for Umoja East to Shadrack Machanje Namunyu, the 3rd Respondent herein is null and void.v.That an order issue restraining the Interested Party from considering the name of Shadrack Machanje Namunyu the 3rd Respondent as the duly nominated candidate for Umoja East Ward on the Orange Democratic Movement Party.vii.That an order issue directing the 1st and 2nd respondents to issue the nomination results in respect to Tumaini and Unity polling stations.vii.Any other appropriate order that this Honourable Tribunal may deem just in the circumstances.vii.Costs.

6. The subject matter in this complaint was the ODM nomination process in respect of Umoja II Ward Embakasi West Constituency Nairobi County. The subject matter in respect of PPDT Com. No. E045/22 as stated in the pleadings was Umoja East. The Respondent in both complaints was Shadrack Machanje Namunyu.

7. At the hearing of the complaint herein, the crux of the submissions by the Complainant herein and the Interested Person herein was that the ODM party attempted indirect nominations twice; on April 22, 2022 and on April 23, 2022 [by universal suffrage] and in each of those instances the exercise was faulted. This led to a complaint being filed before the party appeals organ.

8. The said party organ annulled the alleged nomination processes held on 22 and April 23, 2022.

9. This history is key for purposes of this ruling.

10. The crux of the 1st respondents here in’s case, in this instant, was that after the said annulment vide the ruling of the party organ, the ODM party opted for an indirect nomination method which was conducted at an unspecified date and that saw him emerge the front runner and be issued with a nomination certificate.

11. At the point when this Tribunal retreated to consider the pleadings and evidence before it and to write its judgment in determination of the complaint herein, it looked into the conduct of this alleged indirect nomination process [that is the 3rd attempt by the ODM party to nominate its candidate]. From analysis of what was before it, this Tribunal went ahead in its judgment to outline the provisions of the ODM nomination rules as to how a direct nomination process need be conducted. The said ODM nomination rules provide a transparent and inclusive direct nomination method which if applied can easily be presented to scrutiny by any external party.

12. The 1st Respondent was unable to show any evidence of such a process having been conducted in line with the party rules.

13. In PPDT Com. No. E045/22, the Complainant therein consented that after the 2 botched attempts at indirect nomination by universal suffrage, the party organ directed that another nomination process be undertaken and that such nomination process was undertaken. There is no information or detail provided by the Complainant in PPDT E045/22 as to whether the third nomination attempt was direct or indirect. In deed no detail at all on that alleged 3rd attempt by the ODM party to nominate its candidate for the seat in issue was tendered. BUT statement was made by the Complainant in PPDT E045/22 that the nomination was conducted in so shoddy a manner that he had no faith in the internal organ helping resolve the matter. He therefore opted to seek legal recourse before this Tribunal.

14. The core concern before this Tribunal was that where a party alleges action or inaction by which they are aggrieved, the law [PPA 40 (2)] requires that they first approach the party organ.

15. In PPDT Com. No. E045/22 this Tribunal did not look into determining whether it can be said that any nomination process as directed by the party organ was carried out or not. In deed if we did, the finding may very well have been the same.

16. The focus of this Tribunal in determining PPDT Com. No. E045/22 was the pleadings by the parties. It is trite principle of law that parties are bound by their pleadings and in fact are not allowed to depart from their pleadings. In deed the Supreme Court of Kenya in its ruling of Raila Amolo Odinga & another vs IEBC & 2 Others (2017) eKLR held that “in absence of pleadings, evidence if any, produced by the parties cannot be considered”.

17. While analyzing the issues for determination the Tribunal looked into pleadings in the said complaint PPDT Com. No. E045/22. The pleading was that in the face of a wrong crystalizing he opted to come before this Tribunal rather than go before a party organ as he had no faith in it. The law is firm on the fact that when a wrong is identified by the party they must take certain steps within certain timelines. The pleadings in E045/22 were evident to the fact of the Complainant therein making an obvious choice as to which redress avenue they opted to explore. It is at that point that we proceeded to down tools as is by law required of this Tribunal.

18. In the circumstances we at pains to see the new important information emanating from PPDT Com. No. E045/22 that was unavailable before this Bench at the time it made its determination. In deed we cannot see any error apparent in our said judgment subject matter of this review application.

19. In light of the above, we direct as follows:a.The application for review vide Notice of Motion application dated May 17, 2022 filed by the 1st respondent herein is hereby dismissed with costs.

DATED THIS 20TH DAY OF MAY 2022==================================M. L. ODONGO (PRESIDING MEMBER)====================================TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)===============================DR. LYDIAH WAMBUI (MEMBER)