[2022] KEPPDT 999 (KLR)

Ochola & 6 others v Orange Democratic Movement Party (ODM) & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E050(NRB) of 2022) [2022] KEPPDT 999 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 999 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E050(NRB) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 5, 2022

Between

Benson Ochola

1st Complainant

Julius Onyango Abok

2nd Complainant

Kennedy Otieno Olango

3rd Complainant

Fredrick Muhanji Mangala

4th Complainant

Leornard Odiwuor Onyango

5th Complainant

Chrispine Odhiambo Odawa

6th Complainant

Fredrick Onyango Okeyo

7th Complainant

and

Orange Democratic Movement Party (Odm)

1st Respondent

Collins Ogenga

2nd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Introduction 1. The complainants are bona fide members of the Orange Democratic Movement Party who were vying for the Member of the County Assembly for Kayole South Ward, Embakasi Central Constituency Nairobi County under the Orange Democratic Movement Party.

2. They filed the complaint herein on 28/04/2022 under a certificate of urgency accompanied by a Notice of Motion Application, supported by the affidavit of Benson Ochola the 1st Complainant on behalf of the complainants sworn on the same date and annexures. There were also affidavits in support of the complaint sworn by the following persons:i.Kennedy Otieno Olango - Aspirant the 3rd Complainantii.Fredrick Muhanji Mangala – Aspirant the 4th Complainantiii.Vidah Achieng – Presiding Officer/Clerk ODM National Elections Boardiv.Kakiriga Paul – 7th Complainants Agentv.George Otieno Adede – 7th Complainants Agentvi.Boas Ochieng Ndwala - 7th Complainants Agentvii.Monica Atieno – Member of ODM & Registered Voter Mwangaza Primary Polling CenterAll these affidavits were sworn on the 28/04/2022.

3. They claim that the nomination exercise undertaken by the ODM National Elections Board on 22/04/2022 in Kayole South Ward was unlawful and marred with irregularities and electoral malpractices and the same were not free, fair or credible

4. They want the said nomination exercise to be nullified and a fresh nomination be conducted and they want to be paid costs for the suit.

5. The Complaint is opposed, the 1st Respondent filed two replying affidavits dated 30/04/2022 sworn by Catherine Muyeka Mumma, the Chairperson of the National Elections Board (NEB) and Peter Osire Amila, Returning Officer Kayole South Ward.

6. The 2nd Respondent also swore an affidavit opposing the complaint sworn on 30/04/2022. There were no responses by the Interested Party

7. The Complainants were represented by the firm of Lumumba & Ayieko Advocates, the 1st Respondent was represented by the firm of Henia Anzala & Associates and the 2nd Respondents were represented by Ogada Meso Advocate .

Complainants’ Case 8. The Complainants and the 2nd Respondent are registered members of the Orange Democratic Movement (ODM) party the 1st Respondent. They were both cleared by the 1st Respondent party to participate as candidates for nomination for the position of Member of County Assembly Kayole South Ward Embakasi Constituency within Nairobi County.

9. They have stated that there are three gazetted polling stations in Kayole South Ward as per Gazette Notice No. 6396 Vol. CXIX-No, 86 published on 30/04/2017 which are:i.Thawabu Primary School Polling Centerii.Mwangaza Primary School Polling Centeriii.Mwangaza Secondary School Polling Center

10. It is the complainants’ case that on the 22/04/2022 the ODM nomination exercise for Kayole South Ward was only conducted in two polling centers that is Thawabu Primary Polling Center and Mwangaza Primary Polling Center and no reasons were given why there were no elections at Mwangaza Secondary Polling Center.

11. It is the complainant’s case that the voting exercise did not start at 7 a.m in the morning as provided under Regulation 32 of the ODM Primaries and Nomination Rules and that at Mwangaza Primary Pollng Center, voting started at 12. 00 while at Thawabu Primary Polling Center voting started at 1. 00 p.m.

12. The complainants aver that contrary to party regulations, the Chairperson ODM Embakasi Central Mr. Collins Ogenga, who is the 2nd Respondent, participated in the nomination exercise for Kayole South Ward as an aspirant without vacating his office as the ODM chairman Embakasi branch.

13. That in the build up to the nomination exercise the 2nd Respondent was the one who recruited both polling clerks and returning officers and forwarded the list to ODM National Elections Board, he intercepted electoral materials including an Electoral Tablet/Gadget Serial No.2928377 which the complainant’s claim was used to cast 336 votes in favor at Thawabu Primary Polling Station and 218 votes in his favor at Mwangaza Primary Polling Station, which votes they disputed.

14. The Complainants state that the electoral offenses were reported at Masimba Police Post and captured under OB No. OB/11/22/04/2022 and further that the 2nd Respondent’s agents are ODM grass-root officials in Embakasi Constituency and Kayole South Ward.

15. The complainants have pointed out the following malpractices they experienced at various polling stations within Kayole South Ward:At Thawabu Polling Center;i.The complainants claim that the person recruited to conduct and oversee the nomination exercise at this polling station was the 1st Respondent’s nephew by the name of Tonny Owuor.ii.They also claim that voter bribery was rampant at this polling center and there were incidents of violence witnessed where one Erick Owino the Youth leader for the ODM Party and a supporter of the 2nd Respondent was intimidating voters and created chaos. The said Erick Owino also denied Benson Ochola an opportunity to vote and also beat him.iii.They contend that the 2nd Respondent was the one who carried the votes and voting materials with a motor vehicle make Fielder Black in color Registration Number KCP 598R and that they were caught enticing party members with money in order to secure their votes.At Mwangaza Primary Polling Center;iv.In this polling station the complainants claim that the persons who were recruited to oversee the nomination exercise were the 2nd Respondent’s immediate family members and friends, that is one Calvince Oseyo, ODM ward Chairman, Kayole South and Caroline Amol, an ardent supporter of the 2nd Respondent.v.It is claimed that voter bribery was rampant and violence witnessed, which called for the Intervention of Police.v.The electoral malpractices and electoral offences were reported at Masimba Police Post under OB No; OB/11/22/04/2022 at 1658 hours.At Mwangaza Secondary Polling Center;vii.It is claimed that no voting took place in this polling center and no reason was given by the election officials as to why there was no voting at this particular center.vii.This according to the Complainants disenfranchised several voters who otherwise would have voted at this center.

16. The complainants dissatisfied with the nomination exercise lodged an appeal before the ODM Appeals Tribunal at Nairobi Tribunal No.49 of 2022 on the 25/04/2022 which appeal was dismissed on the 27/04/2021.

17. For these reasons, the complainants seek the orders sought in the complaint and the notice of motion application.

Respondents’ Case 1st Respondent’s case 18. The 1st Respondent through the Chairperson of the National Elections Board (NEB) filed their response to the complaint and notice of motion application herein vide her affidavit sworn on the 30/04/2022.

19. It is the 1st Respondent’s case that they duly conducted party nominations in Kayole South Ward on the 22/04/2022 where upon conclusion the 2nd Respondent was declared the overall winner after garnering 626 votes. She has tabulated the results of the voting at paragraph 4 of her affidavit and annexed an extract of the results marked “CMM1”.

20. She contends that the complainants being aggrieved by the results filed a complaint before the ODM Appeals Tribunal where they raised the following issues:i.That the 2nd Respondent had not resigned as the Chairman of the ODM Embakasi Branch:ii.The 2nd Respondent was involved in the election offense of bribery; andiii.The second respondent intercepted a voting tablet serial number 2928377 which he used to cast votes in his favor.

21. The Appeals Tribunal upon considering all the issues raised dismissed the complaint for lack of evidence. She has attached a copy of the judgment of the Appeals Tribunal being annexure “CMM2”.

22. The 1st Respondent contends that the complainant has raised new issues in her complaint which they never raised in the Appeal before the ODM’s Appeals Board. She claims this is an afterthought and the new complaints should be disregarded and dismissed in limine.

23. She has however responded to the issues raised in the notice of motion and the complaint as follows:a.On the issue seeking an order for scrutiny, the 1st Respondent contends that the Complainants have not laid a proper basis for the request and that the request is not properly anchored on any pleading and should thus be dismissed.

24. On the issue of there being no voting at Mwangaza Secondary School, the 1st Respondent states that Mwangaza Primary School and Mwangaza Secondary School are adjacent to each other and due to logistical reasons the NEB made a decision to merge the two polling centers and all voters were directed to vote at Mwangaza Primary School.

25. She further claims that the NEB created a Nairobi County Aspirants Forum on the mobile platform “Telegram” through which consultations and communication with aspirants were made and that on the 19/04/2022 all polling stations were shared with the aspirants including the merger of Mwangaza Primary school and Mwangaza Secondary School and no Aspirant raised an issue.

26. On the issues raised on voting starting late, she contends that where voting started late the voting period was extended and no voter was disenfranchised at all.

27. On the issue of the 2nd Respondent not resigning from the Chairman of Kayole Central Ward she states that no complaint was forwarded to NEB by the complainants on the issue and that the 2nd Respondent resigned on 11/03/2022 as shown in the letter annexure marked “CMM3”.

28. She further stated that the recruitment of election personnel is the sole preserve of the NEB and at no point did the Board delegate this duty either to the 2nd Respondent or any other individual or body.

29. On the issue of intercepting voter material by either the 2nd Respondent or any other person, the 1st Respondent maintains that she was not aware nor did NEB receive any complaint to that effect.

30. She also claims that there were no reports of rigging during the nominations that were received and the claims made by the Complainants have no basis.

31. On the issue of close friends/relatives of the 2nd Respondent manning and/or overseeing the elections the 1st Respondent maintains that the Complainants have not placed any evidence before the Tribunal to verify the same.

32. She adds that there is no evidence to support the bribery and violence claims by the Complainants and that no party member was denied the right to vote. She maintains that NEB had full control of the nomination exercise and the voting materials were not transported using candidates’ motor vehicles as claimed.

33. She maintains that the Complainants have not met the threshold to warrant the interference with the decision of the Appeals Tribunal nor nullification of the nomination exercise. She wants the complaint to be dismissed.

2nd Respondent’s Case 34. The 2nd Respondent swore his replying affidavit on the 30/04/2022. He has challenged the form of the complaint claiming that it is incurably defective and ought to be struck out and/or dismissed with costs.

35. He also claims that the Complainants have introduced new material facts that were never pleaded at the 1st Respondents Appeals Tribunal at Nairobi and he points to the inclusion of Fredrick Onyango as a party to this Complaint which he claims goes against the rules of joinder of parties at an appeal stage.

36. He adds that the Complainants having appealed at the 1st Respondent’s Appeals Tribunal on the 25/04/2022 have not sought to set aside the decision of the said Tribunal nor have they filed an Appeal against it.

37. He explains that before the nomination exercise he was a member and Chairman of the 1st Respondent in its Embakasi Central in accordance with Rule 8 (d) of the ODM Election and Nomination Rules and that he resigned from the position on the 14/02/2022 as required in Rule 8 (e ) of the said rules. He also claims that for one to be cleared by the National Elections Board to contest for a seat he has to resign from any party position he holds.

38. He contends that following his resignation another person was elected to act as Chairman of the branch in a meeting attended by the 1st, 2nd and 5th Complainants and he has attached copies of the minutes of the said meeting.

39. He contends that contrary to the allegations that there was no explanation as to why there was no voting at Mwangaza Secondary School polling Center, he reiterates the 1st Respondent’s position that Mwangaza Secondary School and Mwangaza Primary School are adjacent to one another and that the two were merged because of logistical reasons. This was communicated to all aspirants on the Telegram platform which was created for Aspirants in Nairobi County.

40. On the allegations that the 2nd Respondent communicated with aspirants and managed the office of the ODM Constituency Chairperson and that on the 26/04/2022 he sent a message to other aspirants calling them to pick campaigning materials from the party, he states that that is a new issue and should not be litigated by the Tribunal as it was not among the allegations of the alleged electoral malpractices and irregularities complained of by the appellant.

41. He maintains that the said WhatsApp message does not demonstrate how it was an act of electoral malpractice and he has explained the true account of the message.

42. He maintains that the nomination exercise was free, fair, transparent and verifiable and the outcome thereof reflected the will of the people of Kayole South Ward.

43. He has denied the allegations that he had in his possession the Gadget Serial No.2928377 and that he used it to give himself the 336 votes and has explained that at Thawabu polling station he garnered only 63 votes. He has attached the polling results form from Thawabu polling station.

44. He also disputes the OB/11/22/04/2022 and maintains that the Complainants have not proved their allegations on his immediate family members overseeing the nomination exercise.

45. He adds that they have not tendered any evidence on the issue of the bribery

allegations and their averments remain mere allegations.

Issues for Analysis and Determination 46. The Tribunal has considered the pleadings filed herein, parties’ arguments through their respective written submissions and the list of authorities in support of their cases and has framed the following issues for determination;a).Whether this matter is an appeal from the 1st Respondent’s internal disputes resolution mechanism organs (IDRM).b).Whether the nomination process was marred with massive irregularities and electoral malpractices.c).Whether the complainants have laid a basis for recount and scrutiny. d). What orders will the tribunal grant in the circumstances?

Disposition. Whether this matter is an appeal from IDRM 47. The Respondents have raised issues in regard to the new issues being introduced in this complaint, which issues according to the Respondents did not form part of the ODM Appeals Tribunal at Nairobi Tribunal No.49 of 2022 , which is the party’s internal disputes resolution mechanism proceedings. The 2nd Respondent particularly points out the inclusion of Fredrick Onyango as a party to this Complaint which he claims goes against the rules of joinder of parties at an appeal stage. In his view, this is an appeal from the IDRM process and therefore no new issues should be raised at this stage except with the leave of the tribunal. This is the same position taken by the 1st Respondent. They have particularly urged that the new issues be disregarded. This tribunal holds a contrary opinion.

48. Section 40 of the Political Parties Act states 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 nominations.2. 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.”This provision lays the foundation of this tribunal’s jurisdiction which is both original and appellate and it is very particular that the appellate jurisdiction is exercisable in respect of appeals from the decisions of the Registrar under the Act.A reading of s. 40 (2) of the Act does not bestow appellate jurisdiction upon this tribunal but it rather makes it mandatory that before a party approaches the tribunal has to adduce evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanism. It is therefore erroneous to hold that a matter that has been subjected to IDRM is escalated to the tribunal on appeal. The IDRM process is a mandatory condition precedent before the tribunal can assume jurisdiction and the jurisdiction is original except for the specifically provided for appellate jurisdiction.

49. In Complaint No 250 of 2017 Jamleck Kamau & 4 others v Jubilee Party & 3 others in terms of jurisdiction it was held that: -“We assert that this Tribunal has both original and appellate jurisdiction over disputes from party primaries. Consequently, the Tribunal’s jurisdiction”.is not in any way affected, by the validity or invalidity of any proceedings before the party’s internal dispute resolution mechanism.”This tribunal fully associates itself with the above court’s assertion as regards jurisdiction and this tribunal shall accordingly disregard the Respondents objections and assume original jurisdiction there being evidence of an IDRM process and the judgement from the IDRM having been brought to our attention as an attachment, we have considered the same and we see no fault in its finding. We uphold the same.

Whether the nomination process was marred with massive irregularities and electoral malpractices. 50. The Respondents have in their written responses responded to each and every issue raised in regard to the conduct of the nomination exercise. This tribunal has already reproduced in this judgment the explanations offered by the Respondents and it is of the view that the explanations are plausible. As it has been previously stated in a number of decided cases the burden of proof always lies on whoever wants the court to believe a fact. It is this tribunal finding that the complainants have not sufficiently discharged this burden and demonstrated to this tribunal that this nomination process was marred by massive irregularities and electoral malpractices. For instance, there was no evidence that those who presided over the exercise were close relatives of the 2nd Respondent. What the complainants raised were general statements which were reputed by the Respondents. Cogent evidence was required to prove the allegations.

51. The Tribunal in Complaint No. 28 of 2017 Bob Micheni Njagi v Kakuta Ole Maimai & 2 Others [2017] eKLR stated the following: - .“In reference to the other allegations by the complainant we find that the complainant has failed to specifically prove to this Tribunal how the irregularities affected the entire results of the polling stations within Kajiado East Constituency to warrant the nullification of the nomination exercise within the entire constituency. We find that the complainant’s statements are more geared towards general statements which fail to explain how the irregularities affected the results. We are guided by the Supreme Court decision in the Raila Odinga. Independent Electoral Boundaries Commission & Others, Supreme Court Election Petition No. 5 of 2013, which enjoins that; a Court is to consider the effect of the alleged irregularities on the election result, before nullifying an election. It is only upon a finding that the irregularities proven affected the declared election results, that a Court will nullify an election.” We hold a similar view in this matter.

52. The 1st Respondent has stated in her response that the 2nd Respondent had resigned from his position in the party whereby she annexed a letter of resignation, which was the same position held by the 2nd Respondent. We have no reason to doubt this piece of evidence. It was further explained why there was a change of the Thawabu secondary polling venue and that the same was communicated to the parties. This has not been contested and given that the number of votes garnered by each candidate has not been seriously contested we shall not delve into the issue save to state that in the absence of a contest on the number of votes garnered the order for recount and scrutiny may not be appropriate, and that effectively disposes off issue number (c) leaving us with issue number (d).

What orders will the Tribunal grant in the circumstances? 53. The Tribunal finds no merit in the Complaint and the same is herby dismissed.

54. Each party shall bear its own with costs.

55. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF MAY 2022. HON. ERASTUS ORINA…………………………………………………………………………...(PRESIDING MEMBER)HON. THERESA CHEPKWONY…………………………………...……………….……………...(MEMBER)HON. DANIEL KAGACHA……………………………………………………………………….(MEMBER)