[2022] KEPPDT 940 (KLR)

Obare v National Chairman ODM; Nyakoe (Interested Party) (Appeal E001 (KSM) of 2022) [2022] KEPPDT 940 (KLR) (29 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 940 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Appeal E001 (KSM) of 2022

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

April 29, 2022

Between

Thomas Obare

Appellant

and

The National Chairman ODM

Respondent

and

Blancoe Nyakoe

Interested Party

(An Appeal of the decision of the ODM Appeals Tribunal (Tribunal Appeal No. 4 of 2022) made on the 13th of April 2022 in Kisii.)

Judgment

1. This is an Appeal arising out of ODM Party Primaries in Bassi Boitangare Ward in Kisii County based on the decision of the ODM Appeals Tribunal (Tribunal Appeal No. 4 of 2022) made on the 13th of April 2022 in Kisii.

2. The Appellant approached this Honorable Tribunal by way of Memorandum of Appeal to challenge the decision of the ODM Appeals Tribunal.

3. The Interested Party herein filed a Replying Affidavit dated 25th April 2022 in Response and Opposition to the Appellant’s Memorandum of Appeal.

4. The Tribunal Ordered that the Appeal be canvassed by way of oral submissions on the 26th of April 2022.

5. The Tribunal further ordered that in the event of failure to file documents by the parties that the matter proceed on the basis of the evidence that was before it.

6. The Appellant was represented by the firm of Messrs.’ Maroko and Company Associates Advocates. The Interested Party was represented by the firm of Messrs.’ Sagana Biriq and Company Advocates. No appearance was entered on behalf of the Respondent.

Background 7. The Appellant lodged his Appeal before the ODM Appeals Tribunal on the 8th of April 2022 where he moved the Tribunal to issue orders in his favor, granting him an Interim Certificate and thereafter The Party’s Nomination Certificate for the Bassi Boitangare Member of County Assembly Seat in which he was declared a winner during the Party Primaries.

8. After hearing the matter, the Appeals Tribunal of the Party rendered its decision dismissing the Appeal, finding that no elections were held for Bassi Boitangare Ward.

9. The Appeals Tribunal went on to state that it was not a contested fact that no elections took place in two of the Polling Stations that is, Riamyachura and Kiongongi.

10. Additionally, the Tribunal directed the National Elections Board (NEB) of the Party to organize fresh Party Primaries for the Ward in question in accordance with Rule 8 and Rule 23 of the ODM Party Primaries and Nomination Rules.

11. Being aggrieved by the decision of the Tribunal the Appellant filed an Appeal based on the following grounds:a.That the ODM Tribunal erred in fact and in law by interpreting the non-appearance of the Respondent and its failure to file any papers or tender any evidence regarding the elections conducted on 7th April 2022 as an indication that there were no results.b.That the ODM Tribunal erred in law by making a finding based on the evidence of an intended interested party who had not been granted leave to be enjoined as a party in the proceedings.c.That the learned Tribunal erred in law and fact by making a finding based on the hearsay of the2nd Interested Party who was not present at any of the polling stations during the elections held on the 7th of April 2022. d.The learned Tribunal erred in law by making a finding that there were four candidates in the election one of whose names was missing in the portal a fact that was not supported by any Tangible evidence at the hearing.e.That the Tribunal erred in law by misinterpreting the law applicable where the Respondent vested with the power to conduct elections does not enter appearance nor file any papers.f.The Tribunal erred in law in disregarding the Appellant’s evidence and submissions.

12. In support of his Appeal the Appellant advanced that no objections were raised by any of the aspirants, to him being declared the winner of the said contest and that this fact was a clear indicator that the election had been free and fair and that the Appellant had won the Party Primaries.

13. Furthermore, that the Respondent failed to appear before the Tribunal and did not file any documents in response to the Appellant’s Appeal, despite being served by the same, and that consequently the Appeal should have been held as uncontested and granted in the Appellant’s favor.

14. Moreover, it was the Appellant’s Claim that the Tribunal based its findings on the fact that there were no elections in the Ward, because a Candidate to the Elections was missing on the ballot.

15. He further submitted that no evidence was presented to support this claim and that the said Candidate did not lodge a Complaint in the Tribunal nor was he enjoined in the proceedings.

16. He then sought that:i.This Appeal be allowed.ii.The decision of the Honourable Tribunal in the ODM Appeals Tribunal at Kisii Appeal No.4 of2022 be set aside. iii. The election results announced at the Kisii County Tallying Centre in KIHBT declaring the Appellant as the winner of the ODM Nominations for the MCA Bassi Boitangare Ward be upheld.iv.The Respondents bears the cost of this Appeal.

Interested Party’s Case 17. The Interested Party herein raised a number of issues in their submissions before the ODM Appeals Tribunal.

18. First of all, that the elections were marred by violence and were thus not free and fair.

19. Moreover, that under Ground (b) of the Memorandum of Appeal a finding based on the evidence of an intended Interested Party, who had not been given leave to be enjoined as a party to the proceedings was a misapprehension of facts.

20. And that the Appeals Tribunal had indicated in its decision dated 13th April 2022 that it heard the Appellant ex parte on 12th April 2022, in the absence of interested parties and that the parties had agreed by consent that the Appeals Tribunal set aside the ex-parte proceedings, and thereafter the parties were heard afresh on the 13th of April 2022.

21. Regarding Ground (d) of the Appeal the Interested Party submitted that the claim was baseless since during the hearing of the 13th April 2022, the Appellant never adduced any evidence to counter the Appeal Tribunal’s finding that there were four candidates in the election, one of whose names was missing in the portal.

22. He further submitted that if one of the candidates was not on the Ballot on the day of the election the election could not be not be found to have been free and fair.

23. Furthermore, that the finding of the ODM Appeals Tribunal still had no bearing on the issuance of the Certificate of Nomination by the ODM Party to the Interested Party.

24. In his Replying Affidavit dated 25th April 2022 the Interested Party submitted that in compliance with the Ruling issued by the Appeals Tribunal the Orange Democratic Party proceeded to conduct opinion polls and issued the Interested Party with a Direct Certificate of Nomination for Member of County Assembly Bobasi Boitangare Ward, Kisii County dated 7th April 2022.

25. Moreover, that the Orange Democratic Movement (ODM) Constitution as Read with the Political Parties Amendment Act, 2022 permits ODM as a party to use various methods of issuing the Party Nomination Certificate including but not limited to universal suffrage through elections, the issuance of Direct Certificates of nominations and negotiations or consensus.

26. The Interested Party further avers that the present Appeal was prematurely before this Court as the Appellant had not exhausted the ODM Party Internal Dispute Resolution and as such the Appeal is bad in law, defective and untenable before this Tribunal.

27. The Interested Party therefore asked this Tribunal to dismiss the Appellant’s Appeal dated 19thApril 2022 and award costs.

Issues for Analysis and Determination 28. The Tribunal has gone through the Record of Appeal as presented by the Appellant as well as all accompanying documents therein including the Respondent’s Affidavits and submissions before this Honourable Tribunal. We identified the following issues for determination:i.Whether this Tribunal has Jurisdiction to entertain this matter.ii.Whether the Evidence presented before this Tribunal meets the Required Standard of Proof to Warrant Granting the Orders Sought.iii.Who bears the costs of the complaint?

Disposition Whether this Tribunal has the Jurisdiction to entertain this matter. 29. The issue of jurisdiction is key as it is everything. Indeed, the learned court did in R v. Karisa Chengo [2017] eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

30. A reading of Section 40 of the Political Parties Act 2011 as amended by the Political Parties (Amendment) Act 2022 spells out the jurisdiction of this Tribunal states that:40. (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 decisions of the Registrar under this Act.(2)Notwithstanding sub section (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”

31. From a reading of the above provisions of the law as well as the submissions of the parties, it is our considered view that the Appeal herein falls within the Jurisdiction of this Honorable Tribunal being an Appeal from the decision of the ODM Party’s Appeal Tribunal.

Whether the Evidence presented before this Tribunal Meets the Required Standard of Proof to Warrant Granting the Orders Sought by the Appellant. 32. One of the Appellant’s main limbs of his Appeal are captured under Grounds (a), (b) and (c) where he contends that the ODM Appeals Tribunal erred in law and fact by making a finding based on evidence tabled by the Interested Party herein.

33. Black’s Law Dictionary, 8th Edition, defines an Interested Party as:‘A party who has recognizable stake and therefore a standing in a matter.’

34. In the case of Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR the court referred to the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR defined an interested party as” ...one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause...”

35. From the Record of the Proceedings of the ODM Appeal’s Tribunal, it is evident that there was no leave of court sought by the Intended Interested Party to be enjoined in the suit.

36. However, since the Interested Party was a participant in the elections therein and can clearly be seen to have a stake in the proceedings it is our opinion that he does meet the definition of an interested party.

37. Furthermore, we are guided by the Constitution of Kenya 2010 Article 159 (2) Sub Section (d) which states:159. (1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.justice shall be done to all, irrespective of status;b.justice shall not be delayed;c.alternative forms of dispute resolution including reconciliation, Constitution of Kenya, 2010 mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.

38. As well as Section 41 (4) of the Political Parties Act 2011 as amended by the Political Parties (Amendment) Act 2022 which provides that:“The Tribunal shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80 Laws of Kenya) and the Civil Procedure Act (Cap. 75), with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities.”

39. We associate ourselves with the provisions of both the Constitution of Kenya as well as the Political Parties Act and find that the failure to seek leave to enjoin the Interested Party was not sufficient to defeat the ODM Appeals Tribunal’s decision.

Burden and Standard of Proof 40. Having considered the Appeal Tribunal’s Record, the Grounds of Appeal and submissions for and against this appeal, it is this Tribunal’s view, that the main issue for determination rests on whether the Appellant herein has satisfied the required Standard of Proof for his Appeal to succeed.

41. It was stated in Joho v. Nyange & another (2008) 3 KLR (EP) 500 that:“The burden of proof in election petitions lies with the petitioner 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.”

42. 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 believein its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

43. From a reading of the above sections of the Evidence Act it is clear that the burden of proof lieson the Appellant as it is he who would fail if no evidence were to be given on either side.

44. This Tribunal finds that the Appellant herein has not demonstrated the required Standard ofProof in this matter and has not provided sufficient evidence demonstrating that the elections were free and fair as required by the provisions of Article 27, Article 38 and Article 81 of the Constitution of Kenya 2010.

45. The evidence taken by the Tribunal was in our view well evaluated. The fact that a candidate was not on the voting gadget’s portal is uncontroverted as well as the fact that the elections did not proceed in two of the polling stations namely Riamyachura and Kiongongi Wards. It is therefore our finding that the election did not substantially conform to the constitutional standard and was properly upset.

46. This Tribunal finds that the Appeal lacks merit and is hereby dismissed. We proceed to grant Orders as follows.

Conclusion 47. It is therefore this Tribunal’s finding thati.The Appeal herein is dismissed.ii.Each Party shall bear the costs.iii.It is so ordered.

DATED AT NAIROBI THIS 29TH DAY OF APRIL 2022HON.DR WILFRED MUTUBWA(VICE CHAIRPERSON PRESIDING)......................................................HON. SIFUNA WALUBENGO(MEMBER).....................................................HON. FATUMA SAMAN(MEMBER).....................................................