[2022] KEHC 3192 (KLR)

Ntabo v Maranga & 2 others (Civil Appeal 26 of 2022) [2022] KEHC 3192 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3192 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 26 of 2022

REA Ougo, J

June 2, 2022

Between

Benson Ongeri Ntabo

Appellant

and

Billiah Bochaberi Maranga

1st Respondent

Orange Democratic Movement Party National Election Board

2nd Respondent

Orange Democratic Movement Party

3rd Respondent

(Being an Appeal from the Political Parties Disputes Tribunal at Kisumu by the Hon. Members Dr. Willy Mutubwa, Fatuma Ali and Sifuna Walubengo dated and delivered on the 3rd day of May 2022 in PPDT E011 of 2022)

Judgment

1. The appellant has filed an appeal seeking to set aside the judgment of the Political Parties Disputes Tribunal in PPDT E011 of 2022. The 1st respondent was the claimant before the Political Parties Disputes Tribunal (‘Tribunal’) and the appellant was the 3rd respondent.

2. The appellant and 1st respondent, are members of the 3rd respondent. The 2nd respondent is established under Article 7. 11 of the 3rd respondent’s constitution with the mandate to plan, organize, direct, conduct, supervise and or coordinate all part elections and nomination of candidates.

3. The claim by the 1st Respondent before the Political Parties Disputes Tribunal (‘Tribunal’) was that nominations across the polling stations in Gesusu were set to be conducted on 7th April 2022. However on 6th April 2022, by a communication on a WhatsApp group created by the 2nd Respondent, the chairperson of the 2nd Respondent informed them that following review of opinion polls and consultations leading to consensus, some wards would not have party primaries. Gesusu ward was amongst the wards listed by the 2nd respondent as one of the wards that would not have nomination because of consensus.

4. The 1st respondent later on the 20th April 2022 learnt that the 2nd and 3rd respondent issued a direct ticket to the appellant without having consensus or considering an opinion poll as per the initial communication. According to the 1st respondent, the 2nd and 3rd respondents selectively nominated the appellant without conducting nominations or having opinion polls or consensus. This violated the 1st respondent’s right under Article 38 and 47 of the Constitution. It was further advanced that failing to give the candidates vying for the ODM ticket in Gesusu ward equal treatment amounted to violation of Article 27 if the Constitution. The 1st respondent thus sought the following orders:a)A Declarationthat the decision by the 1st and 2nd Respondent to issue the 3rd Respondent with the ODM party ticket to vie for the MCA seat on Gesusu Ward without conducting nominations, considering opinion polls and/or having consensus between the candidates is a violation of the Complainant’s rights under Articles 27, 38 and 47 of the Constitution of Kenya 2010, thus null and void;b)An Orderof injunction restraining the 1st and 2nd Respondents from submitting the name of the 3rd Respondent as a candidate issued a direct ticket for ODM in Gesusus Ward to the independent Electoral Boundary Commission (IEBC).c)An Orderdirecting the 1st and 2nd Respondents to conduct nominations for the candidates vying for the MCA seat in Gesusu Ward.d)In The Alternativeand in any event an order directing the 1st Respondent to refund the nomination fee to h Complainant, and;e)Costs of the Complaint be borne by the Respondent in any event.

5. The appellant responded to the claim by filing his reponse. He conceded to the fact that indeed a communication was made on 6th April 2022 by the 2nd respondent, however, he averred that the reasons for not conducting nomination primaries was arrived at following a review of the opinion polls and consultation. It was advanced that from the said communication it was clear that the 2nd Respondent had opted for ‘direct nominations’ based on the opinion polls.

6. According to the appellant, he was nominated through ‘direct nominations’ after the 2nd respondent consulted with the 3rd respondent on the method to be used for the party nominations. There was no need for consensus as the Party National Elections Board was allowed to use the method of consensus, direct nominations, universal suffrage and/or use of delegates. It was also averred that there was no evidence given by the 1st respondent demonstrating internal dispute resolution mechanisms were exhausted after the issuance of the nomination certificate to the appellant.

7. After conducting the hearing, the tribunal found that it had jurisdiction to handle the matter, that the procedure leading to the decision to conduct the elections by way of direct nominations, infringed the rights of the 1st respondent. The tribunal thus made the following award:i.We allow the complaintii.We hereby annul the Nomination of the 3rd Respondent(now appellant); and order that the 1st and 2nd respondent shall conduct fresh nomination exercise for Gesusu Ward, Kisii county within 48 hours of this order not later than 4th May 2022;iii.The nomination shall be by universal suffrage, unless all the candidates agree to some other method.

8. It is this decision that has occasioned this appeal and the filing of the memorandum of appeal challenging the decision of the tribunal. The appellant has put forward the following grounds:1. The Learned Tribunal erred in law in finding that Hon. Tribunal has jurisdiction to entertain and determine the (sic) complainant as provided for under section 40 of the Political Parties Act, in disregard of the peremptory provisions of section 41 (2) of the Political Parties Act No. 11 of 2011. 2.The Learned Tribunal erred in law and fact in annulling the certificate of nominations issued on 3rd Respondents, without a prayer for the same in the body of the complaint.3. The Learned Tribunal erred in law in purporting to interpret the constitution in enforcement of fundamental rights which is the only (sic) the mandate of the High court.4. The Learned Tribunal erred in law in directing the 1st and 2nd Respondents to conduct nominations by use of universal suffrage in total disregard of the provisions of the Political Parties Act, and the Orange Democratic Movement Party Constitution and rule 23 of the Orange Democratic Party Elections and Nomination Rule, 2022. 5.The Learned Tribunal erred I law ad fact in directing that the 1t and 2nd Respondent conducts nominations in Gesusu Ward not later than 4th May 2022, which is practically impossible and contrary to the mandate given to the 2nd Respondent by its Party Constitution and Primary and Nomination Rules.6. The Learned tribunal erred in law in allowing the complaint pass as an Appeal without record to the provisions of Section 41 (2) of the Political Movement.

9. The appeal therefore seeks for the court to uphold the certificate of nominations dated 7th April 2022 and issued by the 3rd respondent to the appellant on 20th April 2022 nominating him, the appellant, as its candidate for Gesusu ward in Kisii County in the general elections to be held on 9th August 2022.

Submissions 10. When the appeal came before this court on 24th May 2022, I directed that the appeal be canvassed by way of written submissions and all the parties complied. The highlighting on parties’ written submissions was set for 26th May 2022.

11. Mr. Begi who appeared for the appellant submitted that the two main issues in the appeal was whether the tribunal had jurisdiction to deal with the issues before it; and secondly, whether it considered matters that were outside the 1st respondent’s pleadings.

12. The appellant in his written submissions argued that in the ODM Appeals Tribunal No 2 of 2022 the Appellant, that the 1st respondent’s complaint was the lack of nomination in Gesusu Ward by Universal suffrage. The issuance of a direct nomination certificate was not an issue canvassed before the party’s internal dispute resolution mechanism and neither was it raised before the Tribunal. The appellant contends that the 1st respondent invoked the internal dispute resolution mechanisms before the 2nd and 3rd respondents made a decision to issue him with a direct ticket. The ODM Appeals tribunal noted this fact and dismissed the 1st respondent’s claim. According to the Appellant the cause of action regarding the issuance of a nomination certificate to the appellant arose on 20th April 2022. The 1st respondent was thus obligated under the provisions of section 41 (2) of the Political Parties Act to appeal the decision of the Party made on 20th April 2022 to the party’s internal dispute resolution tribunal before resorting to the Political Parties Disputes Tribunal. It was therefore the appellant’s position that the 1st respondent failed to exhaust the internal dispute resolution mechanisms.

13. The appellant further submitted that the decision by the tribunal is one where the tribunal is interpreting the constitution. Mr. Begi submitted that enforcement of the bill of rights is a preserve of the High Court. He pointed out that the 1st respondent had sought orders of injunction; however the same cannot be issued in the event the 1st respondent could be compensated by way of damages. He submitted that the 1st respondent could be compensated by a refund of the nomination fees.

14. Finally, the appellant submitted that the reliefs granted by the tribunal were not sought by the 1st respondent. It is trite law that parties are bound by their own pleadings. He cited the case of Benjamin Gathiru Mwangi v John Ndirangu Kariuki & another [2017] eKLR where the court held that:“Having come to the conclusion to set aside the Judgment of the PPDT and in view of the order I am making herein, I would therefore leave the determination of the other issues to the outcome of the hearing of the Appeal on merit before PPDT save as to state that the Tribunal in their Judgment made orders that were not pleaded for by the appellant and fall into error by granting all the prayers and therefore the order was imprecise and incapable of Lawful implementation.”

15. On its part, the 1st respondent flagged two issues for this court’s consideration:a)Whether the Political Parties Tribunal had the jurisdiction to determine PPDT case No. E011 of 2022?b)Whether the prayer to annul the nomination of the Appellant was properly issued and/or justified.

16. Mr. Bonuke, counsel for the 1st respondent, submitted that the tribunal drew jurisdiction from section 40 of the Political Parties Act. He argued that approaching the ODM Appeals tribunal after the issuance of the nomination certificate on 20th April 2022 would have rendered the 1st respondent’s claim res judicata. It was argued that the complaint before the tribunal was as a result of the ‘nomination’ exercise that was never conducted. The issuance of a direct ticket to the appellant was done without any communication to the 1st respondent or consideration of an opinion poll.

17. It was also argued that the tribunal simply applied the provisions of the constitution in arriving at its decision. The tribunal was therefore within its mandate to allow the complaint filed before it. The 1st respondent relied on the case of Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another[2017] eKLR where the court held that:“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. [21] In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. [22] To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but one must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches.[23] My plea is to keep the path of justice clear of obstructions which could impede it.”

18. Miss Masai, submitted on behalf of the 2nd and 3rd respondents as follows: that the 1st respondent did not use any internal dispute resolution mechanism of the 3rd respondent after the nomination certificate was issued to the appellant. She also relied on the replying affidavit sworn by Catherine Muyeka Mumma, the chairperson of the 2nd respondent. According to the 2nd and 3rd respondent the party encouraged consultations between the aspirants and also commissioned a scientific survey that was conducted by infotrak which indicated that the appellant was the most popular candidate.

19. She further submitted that the 2nd respondent has the power to choose whichever method it wishes to apply for nomination of its candidates and called to aid the case of Samuel Owino Wakiaga v Orange Democratic Movement Party & 2 others [2017] eKLR where the court observed as follows:“29. I note that the PPDT considered the question of the legality of the direct nomination by the Central Committee and found that pursuant to Rules 3. 3 and 18. 1 of the Elections and Nomination Rules, the party may proceed to nominate a candidate by either automatic nomination or by conducting primaries by way of universal suffrage.30. The PPDT noted that initially, in this case, the Party had opted to conduct primaries by way of universal suffrage. When the results of this exercise were nullified by NAT it made an order in which it directed the Party to proceed in a manner compatible with the Party Constitution, and Nomination and Election Rules. The PPDT found that by being asked to identify its candidate, the party was given the opportunity to decide its mode afresh after the nullification of the primaries held on the 24th April, 2017. The PPDT made the following findings:“It is our finding that in granting direct nomination, the party acted in compliance with the NAT decision, the party constitution, and Elections and Nomination Rules.”31. Having considered the grounds of the appeal and the rival arguments of counsels on record, I am in agreement with the findings of the PPDT……….”

Analysis and Determination 20. This is an appeal from the tribunal under section 41(2) of the Political Parties Act touching on both facts and law. Having considered the appeal, the materials before the court and the submissions of parties, I find that the appeal raises the following issues:1)Whether the Political Parties Disputes Tribunal had the requisite jurisdiction to hear the complaint by the 1st Respondent, and if so;2)Whether the Political Parties Disputes Tribunal failed to confine itself within the pleadings before it.

21. The jurisdiction of the tribunal is well defined under section 40 of the Political Parties Act 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 a political party;c)disputes between political parties;d)dispute between an independent candidate and a political party;e)disputes between coalition partners; andf)appeals from decisions of the Registrar under this Act;(fa)disputes arising out of party nominations.

22. The dispute in question was between a member of a political party and the political party arising out of party nominations. Paragraph 9 and 10 of the 1st respondent’s claim indicate that the 2nd respondent made a decision to conduct the party nominations through indirect party nominations. The 1st respondent was of the view that this was illegal and sought for an order directing the 3rd respondent to conduct nominations. It is therefore misleading for the appellant, the 2nd and 3rd respondent to submit that the tribunal considered issues that were not pleaded by the 1st respondent.

23. At the onset, I note that the parties including the tribunal could not differentiate the methods of nomination available to a political party. The Political Parties Act provides for two methods of conducting nominations, i.e. direct party nominations and indirect party nominations (see section 38A of the Political Parties Act). Section 2 of the Act defines direct party nomination as the process by which a political party, through its registered members, elects its candidates for an election, while indirect party nomination is the process by which a political party, through the use of delegates selected from registered members of the political party and interviews, selects its candidates for an election.

24. It is not contested that the 2nd respondent had made a communication that nominations will not be through its registered members electing a candidate for the position of Member of County Assembly (MCA) Gesusu Ward. It was this decision that caused the 1st respondent to utilize the 3rd respondent internal dispute resolution mechanism when she appealed the 2nd respondent’s decision. The appellant argues that the cause of action arose on 20th April 2022 when the 3rd respondent made a decision to issue a direct ticket to the appellant. I disagree with the submissions of the appellant that the cause of action arose on the 20th April 2022 when he was issued with a nomination certificate. In my view, the cause of action arose when the 2nd respondent communicated that it will use indirect party nomination to select its candidate. The tribunal was therefore clothed with the requisite jurisdiction to entertain the 1st respondent’s claim touching on the method of nomination used as it is that decision that led to the issuance of a nomination certificate to the appellant. In the case of George Okode &others v orange Democratic Movement &othersPetition No 294 of 2011, thus:“To my mind, the provisions of Section 40(2) of the Political parties Act must be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism. The section must be read as contemplating assumption of jurisdiction by the Tribunal where the internal party mechanism has failed to hear and determine a dispute. Indeed, I do not believe that this court has jurisdiction to entertain this Petition at all in view of the nature of the petitioners’ grievance and the parties involved.”

25. Although the 1st respondent filed a complaint before the ODM Appeals tribunal, her complaint was not considered for reasons that it was premature. I find that the complaint on the method to be used during the nomination of the 3rd respondent’s candidate was properly presented for internal dispute resolution. I however note that her complaint was dismissed.

26. I agree with the submissions of the 2nd and 3rd respondent that they have the power to choose the method the 3rd respondent should use to nominate its candidate. As stated earlier in this judgment, the methods of nomination are either direct or indirect party nomination. A scrutiny of the judgment of the tribunal and the parties herein reveal that the word direct party nomination was not understood in the context of the Political Parties Act.

27. Although the 2nd and 3rd respondents submitted that it has the power to choose whether the 3rd respondent would conduct direct or indirect party nominations, they must conduct nominations in strict compliance with the provisions of the Political Parties Act, in particular Part IVA of the Act.

28. The 3rd respondent through the use of delegates selected from registered members of the political party and interviews, was required to selects its candidate. They were to comply with the provisions of section 38G of the Political Parties Act and select delegates who were responsible for selecting its candidate. Section 38G of the Political Parties Act provides as follows:“38G.(1)A political party that intends to conduct indirect party nominations shall —(a)select delegates who shall participate in the party nominations from among the registered members of the party;(b)submit the list of delegates to the Registrar at least seven days before the date of the party nominations;(c)specify the date and venue of the delegates’ meeting;(d)specify the polling process used by the delegates during the nominations;(e)specify the mode of interviews; and(f)specify the body within the party that shall conduct the interview s of potential candidates.(2)The procedure for the selection of delegates to participate in the indirect party nominations shall be provided for in the party nomination rules of the political party.(3)The list of delegates shall contain the names, addresses and identifying particulars of the delegates.”

29. The 2nd and 3rd respondent submitted that the appellant was issued with a nomination certificate after conducting opinion polls. The procedure set out in the Political Parties Act was therefore not followed by the 2nd and 3rd respondent. The 2nd and 3rd respondents conducted the indirect party nominations in a manner that is not in compliance with the provisions of the Political Parties Act, section 2, 38A and 38G. The process of conducting the indirect party nomination was therefore unlawful as they failed to select delegates, who would then select the 3rd respondent’s candidate for the seat of Member of County Assembly for Gesusu Ward.

30. Despite the tribunal failing to consider the lawfulness of the procedure to conduct indirect party nominations as per the Political Parties Act, I cannot fault its decision directing the 2nd and 3rd respondent to conduct fresh party nomination.

31. Finally, having found that the two methods for conducting party nominations under the Political Parties Act is through direct and indirect party nominations, I hereby set aside the finding of the tribunal to the extent that the fresh elections for the position of Member of County Assembly in Gesusu Ward be conducted by the 2nd and 3rd respondents by way of direct or indirect party nomination within 10 days from date of judgment.

32. The appeal is partly successful and each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT KISII THIS 2ND DAY OF JUNE 2022. R.E. OUGOJUDGEIn the presence of:Mr. Begi For the AppellantMr. Bonuke For the 1st RespondentMiss Masai For the 2nd & 3rd RespondentMs. Aphline Court Assistant