[2022] KEPPDT 945 (KLR)

Nyambok v Orange Democratic Movement Party (ODM) & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E008 (KSM) of 2022) [2022] KEPPDT 945 (KLR) (1 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 945 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E008 (KSM) of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

May 1, 2022

Between

Julius S Nyambok

Complainant

and

Orange Democratic Movement Party (Odm)

1st Respondent

Monoflorita Ondiek

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

Introduction 1. This matter concerns the nomination of the 2nd Respondent Candidate for the Member of County Assembly for Homa Bay Town Central Ward This follows party primaries held on April 14, 2022. The Complainant and the 2nd Respondent were contestants in the said primaries. The 2nd Respondent was declared the winner of the contest and awarded the 1st Respondent’s Interim Nomination certificate. The Complainant was aggrieved by the outcome and challenged the result of the election before the 1st Respondent’s Appeals Tribunal sitting in Kisumu on the April 16, 2022 in Appeal No 23 of 2022.

2. The Tribunal dismissed the Complainant’s Appeal and upheld the nomination of the 2ndRespondent. The Complainant moved this Tribunal by way of Complaint dated April 24, 2022, together with an Application brought under the cover of a Certificate of Urgency. The Complainant claims to have not received a Copy of the Ruling.

3. The matter came up for hearing on 27th of April 2022 when the parties argued the matter orally. The Complainant was represented by Mr Ayieko; Mr Oginga held brief for Mr Ogutu for the 2nd Respondent; Mr Mutiso for the Interested Party.

4. Mr Ayieko confirmed having served the 2nd Respondent and the Interested Party and filed an Affidavit of Service.

The Complainant’s Case 5. In the main, the Complainant asks us to nullify the 2nd Respondent’s nomination and, instead, to order a fresh exercise to be conducted by the 1st Respondent.

6. The Complainant advanced that there was voting in 9 of the Polling Centers. However, that voting started way past 12. 00 noon and not at 7 .00 am as he had been informed in a meeting held on April 13, 2022 by the officers of the 1st Respondent. Furthermore, that the voting tablet gadgets arrived with no passwords and that this further delayed the voting process.

7. The Complainant further avers, that the Presiding Officers and Deputy Presiding Officers that were announced by the ODM National Elections Board, were not conducting the election and that strangers had taken control of the process. Moreover, that the Presiding Officers and Deputy Presiding Officers who were taken to preside over the Polling Stations at Kuja Primary Polling Centre, Ajungo Polling Centre and Wiga Primary Polling Centre were all related to the 2nd Respondent and that they expressed blatant bias and favoritism and campaigned for the 2nd Respondent.

8. The Complainant avers that the Presiding Officers closed the polling stations before 5. 00 pm while some of the members of the party were in the queue waiting to vote and that over 200 members of the party in each polling station were locked out from the nomination process. He claimed that the Presiding Officers who were brought in the said polling stations insisted on assisting the voters to vote and that they used that opportunity to mislead voters to vote for the 2nd Respondent. Furthermore, that they closed the polling stations before 5. 00 pm.

9. It was the Complainant’s submission that the Presiding Officers, left for the tallying center at Homa Bay High School at 5. 00 pm, without allowing the Agents of the Aspirants including the Claimants Agent; to verify, count and approve the votes cast, for each of the Aspirants, before the Presiding Officer presented the tablets and votes at the Tallying Centre in Homa Bay High School.

10. Moreover, the Complainant avers that the Presiding Officers refused to display the vote cast at Arujo Primary Polling Station, Sero Primary Polling Station and Makongeni Primary Polling Station upon the abrupt closing of the polling station. The Complainant further avers that there was a lot of tension and chaos when he arrived at the Tallying Centre in Homa Bay High School at 6. 30 pm. Furthermore, that the National Elections Board of the Party acknowledged that there had been violence in the said elections.

11. It is the Complainant’s submission that on April 15, 2022, the Returning Officer of Homa Bay County read a piece of paper and declared the 2nd Respondent as the winner with 531 Votes and the Appellant having 360 votes. This was done with no counting or tallying from the gadgets that were used for voting.

12. The Complainant avers that none of the Candidates know what votes were garnered for Homa Bay County (ODM) Party Nominations. Being dissatisfied with the decision of the ODM Appeals Tribunal the Complainant prays for the following orders.i.An Order that the ODM Nominations conducted in Homa Bay Town Central Ward within Homa Bay Town Constituency on April 14, 2022 was not free, fair, secure, credible, transparent, accurate, accountable and verifiable in compliance with the Constitution of Kenya 2010, Electoral Laws and the ODM Constitution and Primary and Nomination Rules and therefore that the said election be nullified and a fresh nomination be conducted.j.Costs of this claim

2nd Respondents Case 13. The 2nd Respondent was represented by learned Counsel Mr Oginga, submitted as follows that the complaint was full of generalized allegations. Mr Oginga was of the view commenced properly and that there had only been a slight delay in the commencement of the nomination exercise. Further, that all the Candidates were affected. Furthermore, that the late arrival of the polling devices, were part of logistical challenges experienced across the country and not just in Homa Bay Town Central Ward.

14. The 2nd Respondent further submitted, that the allegations that the 2nd Respondent’s relatives and village mates were officials in the elections were untrue and that the Complainant had not provided any evidence in support of these assertions and that the same should be treated as mere allegations.

15. The 2nd Respondent avers that despite there being an election process and despite the Complainant’s claims of unfairness violence and nepotism in the process, that he has not submitted any evidence in support of these allegations.

16. Counsel for the 2nd Respondent further submitted that even though the 1st Respondent admitted that there was violence during the nomination process in Homa bay County it was across the board and the Complainant must show that he was affected more. Furthermore, that the late opening of polling stations was compensated by excessive hours before closing.

17. Counsel for the 2nd Respondent argued that the Complainant must strictly prove that there was material or substantial non-compliance with the law; and that the failure to comply with the law affected the validity of the election. On that basis, he stated, that the Complainant has alluded to a number of irregularities that happened during the exercise, as well as mentioned names of people in his pleadings yet they are not joined in the proceedings and therefore do not have an opportunity to defend themselves. Consequently, that this Tribunal could not draw inferences about any people not before it as that would taint the entire process.

18. Additionally, that in regard to the allegations made by the Complainant against the Presiding Officers and Deputy Presiding Officers in their pleadings, they have also not been presented before this tribunal to defend themselves. Furthermore, in response to the Complainant’s claim that over 200 people were denied a right to vote, no names or details were provided showing that they were voters during the process. Neither were any affidavits sworn to that effect.

19. Counsel further submitted that no evidence was presented in support of the allegations of violence and that the Complainant seeks to rely on Social Media Reports Which Counsel submits does not meet the threshold of evidence that can be used to nullify an election. Moreover, he avers that the election was conducted in accordance with the law and he drew attention to the precedent set in the case of Gatirau Peter Munya n regard to the standard for setting aside elections.

20. Moreover, that according to the Access to Information Act, where information is sought from a public body, a party should exhaust the reliefs provided therein and that the Complainant had failed to do so.

Complainant’s Rejoinder 21. Mr Ayieko in rejoinder stated that the Complainant had pleaded his case with specificity and had listed the people accused of carrying out the election malpractices as well as their status. In response to the matter that was raised regarding the Access to Information Act. Counsel submitted that this Tribunal was an electoral court litigating an election issue and the information sought was within the context of electoral materials.

22. In conclusion counsel for the Complainant urged this Tribunal to look at the uncontroverted evidence and determine if the process was fair and met the standards set out in the Constitution of Kenya 2010.

23. He therefore prays for the following orders:i.An Order that the ODM Nominations conducted in Homa Bay Town Central Ward within Homa Bay Town Constituency on April 14, 2022 was not free. Fair, secure, credible, transparent, accurate, accountable and verifiable in compliance to the Constitution, Electoral Laws and ODM Constitution and Primary and Nomination Rules and therefore the said election be nullified and a fresh nomination conducted. ii. Costs of this Claim.

Tribunal’s Analysis And Findings 24. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the election was conducted in substantial compliance with the law?ii.Who bears the costs of this case?

25. We will address the issues set out above in the sequence of their listing.

Whether the election was conducted in substantial compliance with the law? 26. In Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Other (2012) eKLR: it was stated:Section 112 of the Evidence Act Chapter 80 of the Laws of Kenya provides: “In civil proceedings, when any fact is especially within the knowledge of a party to those proceedings, the burden of proofing or disproving that fact is upon him”

27. It was also stated in Joho v. Nyange & another (2008) 3 KLR (EP) 500 that:“The burden of proof in election petitions lies with the Claimant as he is the person who seeks to nullify an election. While the proof has to be done to the satisfaction of the court, it cannot be said that the standard of proof required in election petitions is proof beyond reasonable doubt. Like in fraud cases, the standard of proof is higher than on a balance of probabilities and where there are allegations of election offences a very high degree is required.”

28. In ordinary proceedings the law is clear on where the burden of proof lies. This is well captured under the Evidence Act, Sections 107, 108 and 109 which provide as shown below: 107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

29. The law on the burden of proof in electoral disputes was again restated by the Supreme Court inPresidential Petition No 1 of 2017 thus:“Thus, a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged. In this case therefore, it is common ground that it is the petitioners who bear the burden of proving to the required standard that, on account of nonconformity with the law or on the basis of commission of irregularities which affected the result of this election, the 3rd respondent’s election as President of Kenya should be nullified.Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant throughout a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting” and “its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”

30. From a reading of the above sections of the Evidence Act as well as the above stated authorities it is clear that the burden of proof lies on the Complainant herein, as it is he who would fail if no evidence were to be given on either side. Generally, the parties agree that an election, just like any other human endeavor, is an imperfect undertaking, fraught with human procedural and administrative frailties. What is in contest is the extent of the breaches and the substantial compliance with the electoral laws. That is the burden that is primarily thrust upon the Complainant to establish.

31. It is with the foregoing established legal propositions in mind that we address the grievances advanced by the Complainant. The Complainant avers that the election failed the test of a free, fair, transparent and accountable process as provided for under Article 81, Article 86 of the Constitution of Kenya 2010; as well as Rule 4 of the ODM Party Primaries and Nomination Rules which provides for guiding principles and compels the 1st Respondent to conduct Party Primaries and Party Nomination to Party lists in a manner that is democratic, free and fair and provides equal opportunities for all party candidates.

32. He further submitted that to date none of the contestants, including the 2nd Respondent, is aware of how many votes he garnered. He blames this situation on the management of the election by the 1st Respondent’s officers and the violence experienced during the election process.

33. On the issue of irregular opening and closing of polling stations, the Complainant alleges that the elections commenced much later than 7. 00 am as had been assured by the Representative of the National Elections Board (NEB) He submitted that some of the election gadgets were arriving as late as 12. 00 pm and passwords used to operate them arriving as late as 2. 00 pm. Nonetheless, no concrete evidence was provided by the Complainant demonstrating that they or their voters were denied an opportunity to vote as a result of any changes in the opening or closing of voting. .

34. In the case at hand it appears that, irregularity may have occurred in respect to some of the polling stations. However, there was no evidence tendered to show that failure to adhere to the polling hours disenfranchised any voter. It is our view, that the Complainant has not sufficiently demonstrated that the election was affected by this breach of Rule 32 of the ODM Nomination Rules. There is also no evidence proving that late opening or early closing of a few polling stations was intended to disenfranchise the voters.

35. On the allegation of violence and voter intimidation this Tribunal notes that this is a serious allegation amounting to an accusation of commission of an electoral offence. In such a situation the standard of proof required is beyond reasonable doubt. That standard has not been discharged by the Complainant. The election cannot therefore be overturned on these grounds.

36. The right to vote is not a right be trifled with. It signifies the power of the people to pick those they desire to lead them for a given period of time. The importance of protecting the right to vote was emphasized in the South African case of Richter v Minister for Home Affairs and 2 others (2009) ZACC, where it was stated that:“We should accordingly approach any case concerning the right to vote mindful of the bright, symbolic value of the right to vote as well as the deep, democratic value that lies in a citizenry conscious of its civic responsibilities and willing to take the trouble that exercising the right to vote entails.”

37. It goes without saying that he who alleges must prove. It was thus the duty of the Complainant and his witnesses to prove their allegations to the required standard. It was not enough for the Complainant to state that there was violence at the polling stations. He ought to have backed his case with documentary evidence. Only party members are allowed to vote, he therefore needed to avail the register of voters to support his evidence. He failed to do so.

38. In the case of Gatirau Peter Munya (supra), an allegation had been made that the total number of votes cast exceeded the number of registered voters. The Supreme Court held that the allegation was a serious one and ought not to be taken lightly. The Court found the allegation had not been proved stating that:“Can it be said that an electoral register, a public document, is a fact ‘especially’ within the knowledge of the IEBC in the context of the provisions of Section 112 of the Evidence Act? In our view, what is within the power of the IEBC is the custody of the register, and its production will be a matter of course, upon an application by a party who wishes to rely on its contents. We would agree with the learned Judges of Appeal, however, that the evidential burden regarding the contents of the register and declared results lies on the IEBC; save that this burden is activated, in an election petition, only when the initial legal burden has been discharged.”

39. The Court went ahead and concluded that:“In the instant case, the petitioner was content to rely on a document that had no evidential value, when he could have made an application for the production of the authentic register, to aid his cause in discharging the initial burden.”

40. The Supreme Court further illuminated the law on Standard of Proof in Raila Odinga 2013 where it was held that:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”

41. This Tribunal notes that the evidence provided by the Complainant herein did not sufficiently prove his allegations. The averments made in his Claim and Supporting Affidavits are not corroborated by further statements and are not supported by any credible and reliable evidence. The Complainant has not provided any proof of the Polling Officers being related to the 2nd Respondent nor has he provided any contrary evidence supporting a higher score in the election results, than those that were declared.

42. In summary, we found that there is no evidence independent of the averments of the Complainant, that voters were disenfranchised by the election, no voters register, or affidavits sworn by voters demonstrating that they were disenfranchised, were filed by the Complainant herein.

Who bears the costs of this matter? 43. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

44. We thank learned Counsel for their well-articulated submissions, cogent pleadings and patience during the long hours of sittings.

Disposition 45. In the upshot we make the following Orders:i.We dismiss the complaintii.Each party shall bear its own costs.

46. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 1ST DAY OF MAY 2022_____________________HON. DR. WILFRED MUTUBWA OGW C. ARB VICE CHAIRPERSON – PRESIDING____________________________________HON. FATUMA ALI -MEMBERHON. WALUBENGO SIFUNAMEMBER