[2022] KEHC 12410 (KLR)

Ochola v Odhiambo & 3 others (Civil Appeal E384 of 2022) [2022] KEHC 12410 (KLR) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12410 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E384 of 2022

JK Sergon, J

June 20, 2022

Between

Nick Evance Okoth Ochola

Appellant

and

Ted Marvin Odhiambo

1st Respondent

ODM National Election Board

2nd Respondent

Orange Democratic Movement

3rd Respondent

Independent Electoral and Boundaries Commission

4th Respondent

(This appeal arises from the decision of the Political Parties Tribunal in PPDT Complaint No E029 of 2022)

Judgment

1. This appeal arises from the decision of the Political Parties Tribunal in PPDT Complaint No E029 of 2022 where the complaint was found to be merited and allowed. The 2nd and 3rd respondents were ordered to submit the name of the 1st respondent as their nominee to IEBC.

2. The appellant having been aggrieved by the said decision filed this appeal on June 8, 2022 seeking the decision of the tribunal be set aside, a declaration that the appellant is the duly nominated candidate for the 2nd and 3rd respondents for the elective position of North Gem Ward, Siaya County and that the interested party maintains and/or re-admits the nomination papers of the appellant as the ODM candidate for North Gem Ward, Siaya county.

3. The appeal herein is based on the grounds that the Political Parties Dispute Tribunal lacked jurisdiction for the following reasons;a)The IEBC having gazettes the April 28, 2022 as the deadline for nomination of candidates, the tribunal was pursuant to rule 8 (1) & (4) of thePPDTRegulations2017 divested of jurisdiction to hear and determine any matter after the April 27, 2022. b)As the appellant had as at April 28, 2022 been nominated by the 2nd and 3rd respondent, the dispute over that nomination if any had transited from party primaries to nomination and accordingly the jurisdiction to challenge the nomination lies with the IEBC pursuant to article 88 (4) (e) of theConstitution as read with section 74 of the Elections Act.

4. The appellants in their submissions cited rule 8 (1) and (4) of the Political Parties Disputes Tribunal (Procedure) Regulations 2017 provides Rule 8 (1)A complaint against the decision of an internal political party dispute resolution mechanism arising out of political party primaries shall be filed with the Tribunal not more than fourteen days from the date of the decision, and in any case, at least one day before the day set aside by the Commission for submission of names of the party candidates who have been selected to participate in the general elections pursuant to section 31 (2A) of the Elections Act (No 24 of 2011).Rule 8 (4)A dispute arising out of party primaries shall be heard and determined on priority basis and in any case not later than one day before the day set aside by the Commission for submission of names of the party candidates who have been selected to participate in the general elections pursuant to section 31 (2A) of the Elections Act.

5. The appellants argued that through Notice No 430 of 2022 dated January 20, 2022 the commission set aside April 28, 2022 as the date of submission of the names of the party candidates selected to participate in the general elections and therefore the last date for filing disputes before the tribunal was April 27, 2022. The complaint giving rise to the appeal herein was filed on May 27, 2022, over one month after the prescribed deadline.

6. The appellants submitted further that the party nominated the appellant as their candidate and section 74 (1) of the Elections Act gives jurisdiction to the commission to determine nomination disputes as it provides;“Pursuant to article 88 (4) (e) of theConstitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”Further the court in Joseph Ibrahim Musyoki v Wiper Democratic Movement- Kenya & another [2017] eKLR held“19. . .............. the jurisdiction of IEBC in settlement of electoral disputes is spelt out under section 74(1) of the Elections Act and is derived from article 88(4)(e) of theConstitution. It "includes disputes relating to or arising from nominations." Under the Act, "Nomination" means "the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act.29. ...... It follows that the process had transited from party primary to nomination as by law defined and that the jurisdiction to challenge the nomination lay with the IEBC.”

7. The appeal was opposed by the 1st respondent’s grounds of opposition dated June 13, 2022. In it the 1st respondents argued that the tribunal has jurisdiction to entertain all matters arising from nominations once the party internal dispute resolution is exhausted. The tribunal has jurisdiction to enforce party rules and decisions of the internal disputes resolution Mechanism such as the ODM Appeal Tribunal which upheld the 1st respondent’s nomination.

8. The 1st respondent argued that the appellant has not been cleared by the IEBC to run as the party’s candidate and in that case the process had not transited to have the IEBC to resolve the matter.

9. It was submitted that section 40(1) and (2) of the Political Parties Act as amended in 2022 provides that the tribunal has powers to entertain disputes between party and its members. In support they relied on Siaya HCCA No 26 of 2022 Dr Jalango Midiwo v Hon Elisha Ochieng Odhiambo.

10. That the 2nd and 3rd respondents never made the list of nominated candidates’ names public. It is the IEBC that published the list on May 23, 2022 when releasing the timetable for the candidates to present their nomination papers. The 1st respondent therefore went to the PPDT Tribunal for enforcement immediately he became aware that the 2nd and 3rd respondents had not submitted his name to IEBC which was an administrative responsibility as the nomination had ended and they could not conduct any new nomination process.

11. Having heard the parties and perused the documents on record, the issue that has arisen for determination is whether the Political Parties Dispute Tribunal had jurisdiction to determine PPDT Complaint No E029 of 2022?

12. It should be noted that the issue touching on jurisdiction was raised before the tribunal and the tribunal stated that it had jurisdiction to entertain the 1st respondent’s complaint. It is the submission of the appellant that dispute before the tribunal was filed outside the prescribed time hence the decision of the tribunal is null in its entirety and should therefore be set aside.

13. The appellant cited the provisions of regulation 8(1) and (4) of the Political Parties Disputes Tribunal (procedure) Regulations, 2017. The appellant pointed out that the complaint was filed over a month after the prescribed deadline of 14 days. It is said that 1st respondent neither sought for extension of time nor did he explain the inordinate delay.

14. The 1st respondent is of the submission that the tribunal had jurisdiction to entertain his complaint. It is also stated that the parties had exhausted the IDRM process and what was before the tribunal was for enforcement of the outcome of the IDRM process which is the decision of the ODM Appeals Tribunal.

15. The tribunal considered the competing arguments and concluded there was no express prayers seeking for the enforcement of the 2nd respondent’s appeal tribunal’s (IDRM) decision in which his will was upheld.

16. The tribunal also stated that complainant (now 1st respondent) demonstrated that he attempted to invoke the 2nd respondent’s IDRM by writing to the 2nd respondent via his letter dated May 23, 2022 sent by email.

17. On the above basis, the tribunal concluded that its jurisdiction was properly invoked. With respect, the tribunal came to the correct decision. It cannot be said that the complaint before the tribunal was time-barred. There was clear evidence that the complaint before the tribunal was filed after the 1st respondent attempted the 2nd respondent’s IDRM.

18. The second ground of appeal which was also argued before the tribunal is to the effect that once a political party has submitted the name of a candidate to IEBC, the decision can only be challenged and set aside by IEBC and not through the tribunal.

19. The appellant urged this court to find that the tribunal lacked jurisdiction to entertain the complaint. It is the submission of the 1st respondent the appellant had not been cleared by the IEBC to run as the party’s candidate therefore the process had not transited to have the IEBC resolve the matter.

20. Having considered the rival arguments, I am persuaded by the respondent’s argument that the tribunal had jurisdiction to entertain the complaint. It is clear that the appellant has not been cleared by IEBC to run as a candidate. The tribunal has jurisdiction to enforce party rules by even ordering IEBC to remove the name of a person found to have been unprocedurally and illegally submitted to IEBC by a political party like in this case.

21. Having come to the conclusion that the tribunal was clothed with jurisdiction to entertain the complaint, it goes without saying that this appeal is without merit. The same is hereby ordered dismissed. The decision of tribunal (PPDT) is upheld. Each party to bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 20TH DAY OF JUNE, 2022. ........................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent.................................... for the 2nd Respondent…………………………….. for the 3rd Respondent……………………………….for the 4th Respondent