[2022] KEPPDT 942 (KLR)

Ochogo v Orange Democratic Movement Party & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E004 (KSM) of 2022) [2022] KEPPDT 942 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 942 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E004 (KSM) of 2022

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

May 16, 2022

Between

Nicholas Kut Ochogo

Complainant

and

Orange Democratic Movement Party

1st Respondent

Samuel Onunga Atandi

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Ruling

Background 1. On May 1, 2022, we delivered our Judgement in this matter, and made the following Orders:i.We allowed the Appeal;ii.The nomination of the 2nd Respondent, Samuel Onunga Atandi, as the 1st Respondent’s nominee/candidate for Alego Usonga Constituency in Siaya County was set aside and annulled;iii.The decision of the 1st Respondent’s Appeals Tribunal sitting in Kisumu in Appeal number 6 of 2022 was also set aside and substituted with the decision of this Tribunal;iv.The 1st Respondent shall forthwith, in any event on or before May 4, 2022, conduct a fresh Nomination election exercise in Alego Usonga Constituency of Siaya County through a universal suffrage of its members; andv.Each party shall bear its own costs of these proceedings.

2. Subsequently, by way of an Application dated May 2, 2022, the 1st Respondent sought review of our Judgement aforesaid. When the application came up for hearing on May 5, 2022, the parties recorded the following order compromising the matter:By Consent the Application for Review be allowed in the following terms:i.The 1st Respondent do set up a consensus discussion meeting between the Complainant, Nicholas Kut Ochogo, and Samuel Onunga Atandi, within 48 hours to agree on a suitable method for selecting the Party’s nominee for Member of National Assembly for Alego Usonga Constituency;ii.In default of the consensus by the said parties within the said 48 hours of this consent; the 1st Respondent be at liberty to select a method consistent with and compliant with the rules of the party for nominating its candidate for the Member of National Assembly for Alego Usonga Constituency; and iii. There will be no orders as to costs.

3. We have reproduced the consent as read out to the Tribunal by Learned Counsel, Mr Okanda for the Complainant; and confirmed as accurate by counsel for the other parties, for ease of reference. Matters would have rested there.

4. However, the Complainant moved this Tribunal by an Application filed under a Certificate of Urgency, dated May 10, 2022. We certified the matter as being urgent and issued interim conservatory orders restrain the 1st Respondent from submitting the 2nd Respondent’s name to the Interested Party, and the Interested Party from publishing in the Kenya gazette, the third interested party or anyone else’s name as the 1st Respondent’s candidate for the seat the subject of this matter. It is this application that is the subject of this ruling.

5. In a nutshell, the Applicant seeks orders from this Tribunal directing the 1st Respondent to use consensus, as agreed between them, as the method of selecting its candidate for the seat in issue. In the alternative, that this Tribunal directs the 1st Respondent to select its candidate in the manner directed in our Judgement of May 1, 2022. In the Judgement, we had ordered that the fresh elections be conducted by way of universal suffrage by members of the 1st Respondent party in the subject constituency.

6. The matter was heard by oral submissions on May 15, 2022. Learned counsel Mr Okanda represented the Applicant; Mr Kouko held Mr Makori’ s brief for the 1st Respondent; Mr Nderitu, Mr Awele, and Mr Sumba appeared for the 2nd Respondent; while Mr Opondo represented the Interested Party.

Applicant’s Submissions 7. Mr Okanda began by retracing the history of this matter. He pointed to the Judgement of this Tribunal rendered on May 1, 2022. He also referred to the consent entered into by the parties on May 5, 2022. He further relied on his client’s affidavit in laying context to his case. He stated that the consent gave a pathway to resolving the matters between the parties. That pursuant to the consent, a meeting was held between the parties on May 6, 2022, in an effort to reach an agreement on the method of resolving the nomination stalemate. That the meeting yielded an agreement as to the method of identifying or selecting a candidate. That consensus, as a method, was settled upon.

8. Counsel stated that the agreement as to the method of selecting the candidate was reduced into a consent signed on the same said May 6, 2022, by counsel representing their respective clients. It was the Applicant’s expectation that the after the consent there would be a further meeting to engage in the consensus discussions.

9. The Complainant, however, avers that instead of calling consensus discussions, the 1st Respondent issued a Public Notice on May 9, 2022 to the effect that this Tribunal had given the it the free hand to select a candidate, and in compliance therewith, purported to issue the 2nd Respondent with a direct nomination ticket. That notice is what provoked the current application.

10. According to the applicant, the notice aforesaid was in violation of the consent. Counsel pointed to the fact that the Respondents admit, in their responses, that there was a consent reached and signed on May 6, 2022, and that they also admit to there being no consensus meetings held before May 9, 2022 public notice. That the minutes purportedly referred to in the Replying Affidavit of Richard Thairu on behalf of the 1st Respondent at paragraph 6 (2) are meant to justify the public notice by making a misrepresentation of the agreement reached. That the minutes are, in any event, not signed, and should, therefore, be disregarded.

11. Counsel also argued that the meeting called by the Honorable Oburu Odinga on May 13, 2022,at the Royal Tulip Hotel, was not the consensus meeting conceived in the consent reached on May 6, 2022. Instead, that it was a meeting called to try and persuade the Complainant to drop his bid and back the 2nd Respondent. Furthermore, that the meeting called by the Hon. Oburu Odinga was being called after the fact, being the notice of granting the 2nd Respondent a direct nomination, and could not, therefore, be a consensus meeting to agree on a candidate, but one meant to sanitize the illegality.

12. The Applicant was emphatic that his application did not seek to set aside the consent orders nor introduce a new case, but to enforce the consents entered into by the parties.

Respondent’s Submissions 13. Mr Awele largely agreed with Mr Okanda’s rendition of the facts, but differed with him on the interpretation of the same. He began by reminding this Tribunal of its special jurisdiction under Article 169 of the Constitution, and sections 39 and 40 of the Political Parties Act, 2011. He was particularly emphatic that this Tribunal is set up to resolve political party disputes which often take political dimensions. That such matters and decisions should mirror political realities.

14. Mr Awele stressed that the wording of the consents was clear. That the consents were meant to lead to an outcome. In other words, they were not academic but were to ensure a candidate is produced. He underscored that though consensus was agreed as the method or selecting a candidate, consensus does not connote agreement, nor does its product please everyone involved. He stated that the decision to nominate the 2nd Respondent was a product of consensus where the Complainant participated.

15. Mr Kouko largely agreed with Mr Awele, only adding that there cannot be a return to the Judgement of May 1, 2022, since the parties had reached further consents. That consensus was attempted in the manner set out in the affidavits and by the activities post the consent of May 5, 2022 enumerated therein.

16. On his part, Mr Opondo took a neutral stance since his client was not involved in the nomination processes. He, however, stated that his client had already received the name of the 2nd Respondent by the time the interim orders issued herein were served upon it.

Applicant’s Rejoinder Submissions 17. Mr Okanda stated that the question of compliance with consent orders is a legal and not political question as was suggested by Mr Awele. He emphasized that the actions of the 1st Respondent were not in keeping with the agreed consensus but were unilateral and arbitrary.

Tribunal’s Analysis And Findings 18. We have identified three questions for our determination:i.What is the legal status of the consents of May 5 and 6, 2022?ii.What orders should we make in this matter?iii.Who bears the costs of these proceedings?

What is the legal status of the consents of 5th and 6th May 2022? 19. There is no issue that two consents were concluded between the parties. The contents of the consents are also not disputed. The consent of May 5, 2022 recorded before this tribunal is succinct, clear and unambiguous.

20. It is an elementary legal proposition that a consent is an agreement, which creates a contractual relationship between the parties thereto. Obligations and rights, as would in a contract, crystallize upon signing a consent. A consent can only by discharged, vitiated or voided on the same grounds as a contract would.

21. There is a long line of judicial authorities in support of the preposition aforesaid. Suffices to cite one, if only for purposes of illustration. Samson Munikah practicing as Munikah & Company Advocates vs Wedube Estates LimitedNairobi Civil Appeal No 126 of 2005, in which the court stated that:“This appeal raises the vexed question: (of) what are the circumstances in which a consent judgment may be set aside? In BROKE BOND LIEBIG (T) Ltd V MALLYA (1975) E.A. 266 the then court of appeal for East Africa set out the circumstances in which a judgment freely entered into by parties to a dispute in court would be set aside: -“The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani V Kassan (1952) 19 EACA 131 where the following passage from Section on judgments and orders, 7th Edition vol. 1, P. 124 was approved:“Prima Facie, any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action, and on those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement”.For his part Ag. Vice President Mustafa had this to say:“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g. on the ground of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable the court to set aside or rescind a contract.In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all material facts and there could have been no mistake or misunderstanding.”

22. None of the grounds for setting aside the consents entered into have been advanced in this case. In fact, both parties argue their respective cases on the strength of either enforcement or compliance with the consents.

23. Our considered view is that the consents were self-executing, in the sense that they provided for their manner of implementation and the default mechanisms. For example, contrary to Mr Okanda and Mr Awele’s submissions, the consent recorded herein clearly identified consensus as the method of selecting a candidate. In our view, the supplemental consent of May 6, 2022, was unnecessary, since the parties had already settled on the method of nomination. In other words, the consent of May 5, 2022, was self-sufficient.

24. The consent of May 5, 2022, also had a second aspect to it, the default process in the event of failure to arrive at a candidate by consensus. It provided that in such a situation “…the 1st Respondent be at liberty to select a method consistent with and compliant with the rules of the party for nominating its candidate for the Member of National Assembly for Alego Usonga Constituency.”

25. It is clear from the consent fore-quoted that the parties gave the default authority of determining an alternative method of selecting a candidate to the 1st Respondent political party.

26. A distinction between an attempt at consensus, consultation and consensus must be drawn. Some confusion on these matters was evident in counsels’ submissions. What we see as happened on May 6, 2022 was an attempt at consensus. Indeed, some form of consultations. But consensus would connote agreement. The principal difference is that while consultations need not arrive at an agreement or agreed positions, consensus denotes agreement. It is in such consultations that political, gender, and other considerations alluded to by Mr. Awele are weighed.

27. Black’s law Dictionary defines consensus as: The middle ground between agreeing and disagreeing. The participants share a value and goal and work to get that goal to get a decision made. While Insider law is even sharper, thus: means unanimous concurrence among the interests represented.

28. In both definitions there are elements of participation and unanimity. Applying this test to the current scenario, it is obvious that the first limb of the consent failed to yield a unanimous concurrence. The parties had to then yield to the default, second part of the consent which is the discretion of the party to determine the best method to select the candidate. This should only have been with the caveat that the party strictly complies with the law, including its own Party Primaries and Nomination Rules, currently in force.

29. Whichever method used, including direct nomination, must accord with the law, be participatory, open, transparent and in accordance with ideals of democracy. After all, those are the edicts of ourConstitutionunder Articles 10, 39, 47, 81 and 86, which are relevant to elections and democratization. We referred to these provisions in extensu in our judgement and will not rehash them herein. The 1st Respondent’s own Party Primaries and Nomination Rules, 2021, in Rules 4, 8 and 23, underwrite these hallowed principles.

30. The role of this Tribunal, as indeed any court’s, is not to rewrite contracts between parties but to interpret and give them effect. Once the parties exercised their right to compromise the suit by consent, they departed from the Judgement of the Tribunal. The parties cannot go back to the Judgement. The consent binds them unless it is set aside. The Judgement of the Tribunal was superseded by the parties’ own voluntary exercise of the autonomy to contract away from the dictates of our Judgement.

31. Heavy weather was made by either side as to the import of the public notice of May 9, 2022, and the meeting of May 13, 2022. Going by our conclusions drawn above, we would have found the 1st Respondent party as having been within its rights under the 2nd limb of the consent of May 5, 2022, to proceed and directly nominate the 2nd Respondent. However, consensus having failed on May 6, 2022, any processes employed, in its stead including, direct nominations, should have strictly complied with the law and the party’s rules. We agree with the Applicant that the meeting convened under the leadership of the Honourable Oburu Odinga was neither a consensus building meeting nor consultations on the direct nomination of the 2nd Respondent. We say so because the meeting was being held post facto. Communication had already been released to the effect that the 2nd Respondent was the recipient of the ticket, yet consultations were being held 4 days later, on May 13, 2022; and as confirmed by the interested party the 2nd Respondent’s name had already been submitted as the 1st Respondent’s candidate for the subject seat.

32. We must be clear that, consensus having failed, the party was within its rights under the consent to adopt direct or any other method of nomination as agreed in 2nd limb of the consent of May 5, 2022. However, the only misstep was to declare the candidate in advance of communicating its preferred method of nomination; and observing the requirements that go therewith. In other words, the 1st Respondent put the cart before the horse. The party can still regularize this misstep.

Who bears the costs of this matter? 33. 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.

Disposition 34. In the upshot we make the following orders:i.The Consent entered into on May 5, 2022 is clear, unambiguous and remains binding upon the parties;iiThe parties are to comply with the Consent recorded on May 5, 2022, to wit-a.The parties were to first attempt consensus in reaching a preferred candidate;b.Failing which the 1st Respondent was to determine the method of identifying its candidate for the Alego Usonga seat, in strict compliance with the law, including its Primaries and Nomination Rules;iii.The 1st Respondent shall ensure compliance with the directions above and issue a final nomination certificate to the candidate and forward the said candidate’s name to the Interested Party within 72 Hours of this order; andiv.Each party shall bear its own costs.

35. It is so ordered.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 16TH DAY OF MAY 2022________________________________________HON. DR. WILFRED MUTUBWA OGW C. ARBVICE CHAIRPERSON – PRESIDING____________________________________HON. FATUMA ALIMEMBER______________________HON. WALUBENGO SIFUNAMEMBER