[2022] KEPPDT 972 (KLR)

Obong'o & another v Orange Democratic Party & 4 others (Complaint E059 (NRB) & E065 (NRB) of 2022 (Consolidated)) [2022] KEPPDT 972 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 972 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E059 (NRB) & E065 (NRB) of 2022 (Consolidated)

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 12, 2022

Between

Morris Okiwi Obong'o

Complainant

and

Orange Democratic Party

1st Respondent

National Elections Board (Odm)

2nd Respondent

Peter Owera Oluoch

3rd Respondent

As consolidated with

Complaint E065 (NRB) of 2022

Between

David Ruong'o Okello

Complainant

and

Peter Owera

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Judgment

1. On the 22nd April 2022, the National Elections Board (NEB) of the Orange Democratic Movement (ODM) party carried out direct nominations for the position of Member of County Assembly, Huruma Ward, Mathare Constituency. One Peter Owera Oluoch (the 3rd Respondent in PPDT Nairobi A Complaint No. E059/22 and the 1st Respondent in PPDT Nairobi A Complaint No. E065 of 2022) emerged the winner.

2. The nomination exercise was successfully challenged at the ODM Appeals Tribunal vide Appeal Number 38 of 2022. In its Judgment delivered on 27th April 2022, the Appeals Tribunal ordered as follows:-i.The Appeals filed by the Appellants are merited.ii.The Nomination of the 3rd Respondent be and is hereby nullified.iii.The Nomination Certificate issued to the 3rd Respondent be and is hereby nullified.iv.This Judgment be and is hereby served on the National Elections Board for appropriate actions noting to keep in line with the necessary timelines issued by the Independent Electoral and Boundaries Commission on the conduct of the nomination exercisev.No orders as to costs

3. Subsequent to the nullification of the nominations, a nomination certificate was again issued to Peter Owera Oluoch. The Complainants are aggrieved with the issuance of the nomination certificate which they claim was irregular and they have filed their respective Complaints.

4. The Complainant in PPDT Nairobi A Complaint No. E059 of 2022 has moved this Tribunal vide a Complaint dated 29th April 2022 seeking the following orders:-i.A mandatory injunction compelling the 2nd Respondent to rescind, revoke and nullify the nomination certificate issued to the 3rd Respondent by themselves.ii.A permanent injunction restraining the Respondents from submitting the name of the 3rd Respondent to the Independent Electoral & Boundaries Commission (the IEBC) as the 1st Respondent’s nominee for the position of Member of County Assembly, Huruma Ward, Mathare Constituencyiii.That the Honourable Tribunal does make a declaration that the 3rd Respondent is ineligible to run for office of the position of Member of County Assembly, Huruma Ward.iv.That the Honourable Tribunal make a declaration of the Complainant MORRIS OKIWI OBONG’O as the duly nominated Member of County Assembly, Huruma Wardv.That the Honourable Tribunal does issue directions to the 2nd Respondent to forthwith submit the name of the Claimant to the IEBC as the 1st Respondent nominee for Member of County Assembly, Huruma Ward, Mathare Constituency.vi.Costs of the Complaint.

5. The Complainant in PPDT Nairobi A E065 of 2022 has similarly moved this Tribunal vide Complaint dated 4th May 2022 seeking the following orders:-i.That the nomination certificate for the ODM party aspirant for Huruma Ward in Mathare Constituency within Nairobi County issued on 22nd April 2022 to the 1st respondent Peter Owera be nullified and/or withdrawnii.That the 2nd Respondent –Orange Democratic Movement party- be directed to issue the Complainant David Ruong’o Okello with the Nomination Certificate as the duly nominated candidate for Huruma Ward, Mathare Constituency within Nairobi County.iii.That the Honourable Tribunal do issue appropriate and/or relevant orders that it deems fair, just and expedient in the circumstances to grant.iv.Costs of this Complaint.

6. Pursuant to the directions that were issued by this tribunal, the two Complaints were consolidated with the concurrence of the parties for the reason that the subject matter in issue concerned nominations held in the same ward and the reliefs sought in both Complaints were somewhat similar. Parties were granted time to exchange their pleadings and written submissions and the hearing of the Complaints as consolidated proceeded on 10th May 2022 by way of highlighting of the parties’ written submissions.

7. The Complainants were represented by Ms. Omondi Advocate and Mr. Makori Advocate. The Orange Democratic Movement Party and NEB was represented by Mr. Makori Advocate and Peter Owera was represented by Mr. Ochich Advocate.

The Complaint in PPDT Nairobi A Complaint No. E059 of 2022 8. The Complainant has challenged the decision to issue a direct ticket to the 3rd Respondent. He contends that there was no fair administrative action contrary to Article 47 of the Constitution of Kenya as read together with Sections 2 and 4 of the Fair Administrative Action Act (FAA). In this regard, he relied on the case of Kenya Human Rights Commission & Another vs. Non-Governmental organisations Co-ordination Board & Anor (2018) eKLR and Judicial Service Commission vs. Mbalu Mutaza & Anor (2015) eKLR.

9. According to the Complainant, it would have been ideal if the 2nd Respondent informed the aspirants how and why they chose the 3rd Respondent. He submits that the next ideal method of nomination in order of priority as per the party laws should have been consensus building. It is the Complainant’s contention that direct nomination can only be conducted after the consensus building method fails.

10. The Complainant avers that in light of strict timelines, the ODM Secretary Mathare Branch, Mr. Rone Achoki Hussein, invited all 12 aspirants to a consensus meeting on 28th April 2022 with the concurrence of one NEB commissioner identified as Cherop. The meeting proceeded and two persons, namely the Complainant and one Polycarp Otieno Onyango were fronted for the position of MCA, Huruma Ward, one of them being the Complainant.

11. It is the Complainant’s contention that soon after the consensus meeting, the outcome thereof was sent to NEB through the said Cherop and that no response has been forthcoming to-date. The Affidavits on record sworn by the Complainant, Rone Achoki Hussein, and the Witness Statements of Rone Achoki Hussein and Devaine Apondi have detailed what transpired at the consensus meeting.

12. The Complainant maintains that the aspirants’ legitimate expectation that the nomination process would be free, fair, inclusive and participatory was not met, and that if the party decided to move to direct nomination, the party should have refunded the nomination fees.

13. The eligibility of the 3rd Respondent was also challenged and it is the Complainant’s contention that the 3rd Respondent having failed to resign from his position as Deputy Organising Secretary Mathare Branch, he was not eligible to run for the position of MCA Huruma Ward.

14. Vide his Written Submissions on record, the Complainant has identified two main issues for determination, that is, Whether the process of issuance of a direct ticket to Peter Owera was legal, and secondly, whether the said Peter Owera is eligible to be an aspirant running for MCA Huruma Ward.

15. It is the Complainant’s prayer that the reliefs sought be granted.

The Complaint in Nairobi A PPDT Complaint No. E065 of 2022 16. The Complainant contends that the nomination certificate issued to Peter Owera indicates that it is based on the nomination exercise of 22nd April 2022 whose outcome and/or results are unknown. The nominations of 22nd April 2022 had been nullified by the NAT Judgment delivered on 27th April 2022.

17. It is the Complainant’s case that ODM’s actions are illegal and shambolic, and are orchestrated to deny him his right to vie in a free, fair, credible and transparent elections/nominations.

18. The Complainant submits that there was no compliance with the ODM party nomination rules. The Tribunal was taken through forms used for various methods of nomination including Form 14(at page 116) for an elected nominee, Form 15(at page117)for a nominee elected through consensus, Form 16(at page 118) for a nominee elected by direct nomination. It is the Complainant’s submission that in this case Peter Owera was issued with a certificate based on a nomination exercise whose results and outcome had been nullified. He urged the Tribunal to refer the matter back to the party to comply with its own rules, and that a certificate cannot be issued based on nullified results.

19. With respect to IDRM, it was submitted that the cause of action and sequence leading to the filing of the Complaint was the same. That whereas the party claimed that Peter Owera was issued with a direct ticket, his nomination certificate dated 22nd April 2022 is with respect to elections held on 22nd April 2022 yet the decision of NAT was on 27th April 2022. It was submitted that the certificate was a fraud to the people of Huruma.

20. The Complainant further submits that pursuant to Rule 8(4) of the PPDT Regulations, the Tribunal is sufficiently clothed to determine disputes to do with party primaries. It would be a new issue if there was issued a direct nomination certificate or one acquired through consensus. The present certificate relates to nomination of 22nd April 2022 which has already been subjected to NAT being the only IDRM process available to the Complainant. It was further submitted that the issue of timelines also did not give room for an aggrieved party to seek IDRM and that the circumstances of this case call for an exemption from IDRM.

21. The Complainant seeks the Tribunal’s intervention to ensure that he is not illegally and unlawfully denied a chance to fairly vie for political office as the ODM candidate for Huruma Ward in the forthcoming August 2022 elections by granting orders sought.The Response on behalf of the Orange Democratic Movement and the National Elections Board ODM (the 1st Respondents in PPDT Nairobi A E059/22 and the 2nd Respondent in PPDT Nairobi A Complaint No. E065 of 2022)

22. The ODM relied on the Replying Affidavits sworn by Catherine Muyeka Mumma and their Written Submissions.

23. It was submitted that this Tribunal has no jurisdiction to hear and determine this matter as the dispute related to a fresh nomination process that had not been subjected to the party’s internal dispute resolution mechanisms (IDRM). According to the Respondent, whereas the nomination certificate was issued to Mr. Peter Owera on 27th Aril 2022, none of the Complainants attempted IDRM. Instead, they proceeded and filed the Complaints subject hereof on 5th May 2022 and 6th May 2022.

24. The Respondents submit that this case is distinct from PPDT Nairobi A Complaint No. E055 of 2022 as it is not a case for implementation or enforcement of the National Appeals Tribunal (NAT) decision, and further that in this case unlike in E024/22, the Complainants were aware of the conduct of a new method of nomination and the issuance of certificates to the 3rd Respondent. They contend that the moment the Complainants knew that a new method of nomination had been used which constituted a new cause of action, the Complainants should have subjected the matter to IDRM. They have relied on the case of Samuel Owino Wakiaga vs. Orange Democratic Movement Kenya & 2 Others (2017) eKLR.

25. It is the Respondents contention that the purported consensus was not conducted in accordance with the party rules and in any event, persons who allegedly attended the consensus meeting have distanced themselves from the same. This therefore demonstrates that consensus was not reached.

26. The Respondents maintain that the next available process as per the nomination rules was the issuance of a direct party ticket, which process the party undertook in compliance with the rules. They submit that the nomination ticket currently held by Mr. Peter Owera was issued on the basis of the fresh nomination process that was undertaken, not on the basis of the nullified results of 22nd April 2022. Extracts of the Minutes of the Central Committee meeting held on 28th April 2022 were referred to where “members resolved to issue a direct ticket to Peter Owera as the party’s candidate for MCA Huruma Ward”.

27. It was further submitted that the issues of content, form and method of nomination as per party rules are not analogous and that there are various ways a party can nominate. The Respondents submit that allowing the Complaint would usurp legitimate party processes which are statutorily protected, and accordingly prays that the same be dismissed.The Response on behalf of Peter Oluoch Owera (the 3rd Respondent in PPDT Nairobi A E059/22 and the 1st Respondent in PPDT Nairobi A Complaint No. E065 of 2022)

28. Mr. Peter Owera has challenged the purported consensus meeting that has been alluded to by the Complainants. He avers that no proper consensus could be conducted without involving him bearing in mind that he garnered the most number of votes during the nomination exercise of 22nd April 2022. It is his submission that in any event, five aspirants who are claimed to have attended the consensus meeting have since distanced themselves from the same and they now aver that his direct nomination was in fact proper. He has in this regard filed an Affidavit sworn by Polycarp Otieno Onyango, Jack Mburu Maina, Michael Odhiambo Onditi, Oloo David Ouma and Hillary Ochieng.

29. The Respondent maintains that the process leading to his direct nomination to vie for the position of MCA Huruma Ward under the party ticket was conducted in accordance with Rule 8 and 23 of the party nomination rules. He believes that the decision to nominate him was based on his performance as a candidate amongst other factors that were considered. It is his submission that he sees no prejudice likely to be suffered by the Complainants and none has been demonstrated.

30. With respect to eligibility, the Respondent maintains that he is eligible to run for the position of MCA Huruma Ward. He avers that the issue of form and date on his nomination certificate is immaterial in this case. Due process was followed leading to his nomination and he is entitled to hold the nomination certificate.

31. The Respondent submitted that the instant case does not associate him with any anomalies and he therefore prays that the Tribunal finds that he is the correct candidate.

Tribunal’s Analysis and Findings 32. We have considered the parties’ pleadings and identified the following issues as falling for our determination:i.Whether this Tribunal has the requisite jurisdiction to entertain the complaints?ii.Whether the Complaints are merited?iii.What are the appropriate remedies available in the present circumstances?

Whether this Tribunal has the requisite jurisdiction to entertain the complaint 33. The jurisdiction of this Tribunal is circumscribed by Article 169 (1) (d) of the Constitution of Kenya as read with Sections 40 of the Political Parties Act, 2011which 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 the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa).disputes arising out of party nominations2. Notwithstanding subsection (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.3. A coalition agreement shall provide for internal dispute resolution mechanisms

34. From the parties’ pleadings, it is evident that the dispute at hand arises out of party nominations for the position of Member of County Assembly Huruma Ward. Three different nominations have been pleaded in the various pleadings filed in this matter. There is the nomination exercise that was conducted on 22nd April 2022 by way of universal suffrage, another nomination exercise that was allegedly conducted on 28th April 2022 by way of consensus building, and another nomination that was allegedly conducted on the same date of 28th April 2022 by issuance of a direct party ticket. Pursuant to Section 40(2) of the PPA, the Tribunal shall not hear and determine a dispute arising out of party nominations unless a party to the dispute adduces evidence of an attempt to subject the dispute to the party’s internal dispute resolution mechanism (IDRM).

35. The Respondents objected to our Jurisdiction to hear and determine this matter arguing that a fresh nomination exercise was undertaken and that should the Complainants feel aggrieved, they should first attempt IDRM prior to moving the Tribunal. The Complainants on the other hand maintained that the Tribunal has jurisdiction as the question of nominations was already subjected to IDRM vide Appeal Number 38 of 2022 and Judgment delivered. They claim that their case is not a new one but arises from circumstances connected with the nominations held on 22nd April 2022. They claim that the essence of their case therefore is that the Judgment of the NAT was not complied with in the purported nomination exercise of 28th April 2022 when Peter Oluoch Owera was issued with a direct ticket. They have also challenged the form of the ticket for want of compliance with the party laws.

36. We note that all parties are in agreement that the nomination exercise of 22nd April 2022 was already subject of an appeal that was lodged with the party’s IDRM being the National Appeals Tribunal vide Appeal Number 38 of 2022, and that parties were heard thereon and Judgment delivered on 27th April 2022. There is therefore no doubt that there is evidence of an attempt at IDRM in so far as the nominations of 22nd April 2022 are concerned. The question that begs determination is whether this single attempt at IDRM covers the nomination processes that were subsequently conducted. To what extent are the Complaints subject hereof intertwined with the nominations that were held on 22nd April 2022 and NAT’s Judgment delivered on 27th April 2022?

37. Contrary to the Complainants’ assertion that their claims are grounded on alleged disobedience of NAT orders issued on 27th April 2022, we note that none of the Complainants have sought any orders directing compliance therewith. Neither have they prayed that the matter be referred back to the party with directions to pursue a new method of nomination that involves the participation of all the aspirants. The Complainant in PPDT Nairobi A Complaint No. E059 of 2022 seeks specific prayers including a nullification of Peter Owera Oluoch’s certificate and an order to have a nomination certificate issued in his favour. Similarly, the Complainant in PPDT Nairobi A Complaint No. E065 of 2022 seeks specific prayers for nullification of Peter Owera Oluoch’s certificate and issuance of a nomination certificate to him. Interestingly, they both pray that a nomination certificate be issued in their favour. We are not therefore convinced that the claims herein are in furtherance of and/or are directly connected with the NAT orders issued on 27th April 2022. It is our considered view that the substratum of the Complaints herein is to challenge the new nomination method that was employed by the party leading to the issuance of a direct ticket to the said Peter Owera Oluoch.

38. In the case of Samuel Owino Wakiaga v Orange Democratic Movement Party & 2 others [2017] eKLR, Achode, J stated as follows:-“…22. On whether the IDRM was exhausted I note that the Appellant being aggrieved by the 1st Respondent’s decision challenged the said decision through the 1st Respondent’s IDRM, the NAT which delivered its judgment and ordered that:“the provisional certificate issued to Hon. Cyprian Awiti as the Homa Bay Gubernatorial Candidate be and is hereby withdrawn.the party does proceed to determine a party nominee for ODM Homa Bay Gubernatorial elections in a manner compatible with the party Constitution, nomination and elections (sic)”Pursuant to the judgment of the NAT the 1st Respondent declared the 2nd Respondent the winner relying on the resolution of a meeting of its organ, the Central Committee which met on 29th April, 2017. 23. It is my considered view that from that moment on the first process of nomination ended and the second process of identifying a nominee begun pursuant to the orders of the NAT. The Central Committee which deliberated and identified a nominee is created under Article 7. 5.3(f) of the 1st Respondent’s Constitution and does have powers under Article7, 5 A.2 of its Constitution where its functions are outlined. It is not the duty of the court to micro-manage parties and direct them on such mundane matters such as how to communicate with its organs.24. Section 40(2) of the Political Parties Act on the other hand provides in my view not merely in directory but in mandatory terms inter alia that, “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 determined by the internal political party dispute resolution mechanism.”It was therefore necessary to subject the new decision to the IDRM before it was escalated to the PPDT and the High Court…”

39. We agree with the Learned Judge in the Samuel Wakiaga Case that the nomination exercise of 28th April 2022 being a new process, all the complaints relating thereto including due process, participation or engagement of aspirants, the form of certificate to be issued, amongst other claims that featured in these proceedings should have first been subjected to IDRM prior to moving this Tribunal.

40. There is, however, no record whatsoever of any attempt to subject the impugned nomination process of 28th April 2022 to IDRM. There is further no evidence that the Complainants attempted IDRM but were frustrated by the party organ or anycircumstances that would allow us to assume jurisdiction. In the circumstances, we find that we do not have jurisdiction to determine this matter.

41. In R v. Karisa Chengo [2017] eKLR, the court 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.”

42. Based on the foregoing, we shall not determine the rest of the issues as framed as we have downed our tools.

43. As regards costs, whereas costs follow the event, we take into consideration the fact that the cases have been struck out and that most importantly, there is need to foster party unity. Accordingly, we direct that each party bears its own costs.

Disposition 44. In light of the foregoing, we make the following orders:i.That the Objection to our Jurisdiction be and is hereby upheldii.That the Complaints herein being PPDT Nairobi A Complaint No. E059 of 2022 and PPDT Nairobi A Complaint No E065 of 2022 be and are hereby struck out.iii.That each party bears their own costs.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………….(MEMBER)RUTH WAIRIMU MUHORO…………………………...(MEMBER)