[2022] KEPPDT 982 (KLR)

Odeny v Ochieng & 2 others (Complaint E094 (NRB) of 2022) [2022] KEPPDT 982 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEPPDT 982 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E094 (NRB) of 2022

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

July 8, 2022

Between

Daniel Odeny

Complainant

and

Jalone Onyango Ochieng

1st Respondent

The Democratic Action Party

2nd Respondent

The Independent Electoral & Boundaries Commission

3rd Respondent

Judgment

1. The Complainant is a member of the Democratic Action Party of Kenya (DAPK) and it is his claim that he was successfully nominated by DAPK to vie for the position of Member of County Assembly (MCA) East Gem Ward in Siaya County in the general elections to be held on August 9, 2022.

2. He is aggrieved that despite having been nominated, his party subsequently purported to nominate another candidate in his place under circumstances unknown to him. The consequence is that the 3rd Respondent declined to clear him. He therefore seeks the following reliefs from this tribunal: -i.A determination that the clearance of the 1st Respondent by the 2nd Respondent was unlawful, ultra vires, unprocedural, and an abuse of discretion hence null and void ab initio.ii.A finding that the nomination certificate issued to the 1st Respondent on April 9, 2022 remains cancelled.iii.An order for injunction against the 1st Respondent from contesting as a Member of County Assembly for East Gem Ward in the general elections scheduled for August 9, 2022. iv.A writ of mandamus obliging the 2nd Respondent to substitute the 1st Respondent’s name with the Complainant’s name as the 2nd Respondent’s duly nominated candidate to contest for the seat of Member of County assembly East Gem Ward.v.A writ of mandamus obliging the 3rd Respondent to fairly, procedurally and lawfully take the Complainant through its clearance procedures for purposes of flying the 2nd Respondent’s flag in the contest for the seat of Member of County Assembly East Gem Ward.vi.Any other relief that the Tribunal may deem appropriate.vii.Costs of this claim be provided for.

3. Parties filed their respective pleadings and the Complainant gave viva voce evidence. Parties thereafter presented their oral submissions on the Complaint on the July 6, 2022.

4. The Complainant was represented by Mr Kevin Omwanza Advocate. The 1st Respondent was represented by Mr Juma Advocate who did not however appear before the Tribunal on the date when parties presented their oral submissions on the Complaint. The 2nd Respondent was represented by Mr Njoroge Advocate holding brief for Ms Biwott Advocate.

The Complainant’s Case 5. The Complainant, the 1st Respondent and one George Siambe were all aspirants for the position of member of County Assembly East Gem Ward under the DAPK party ticket. Pursuant to the party constitution, the aspirants were subjected to a vetting exercise that was conducted on April 9, 2022 with a view to determining the party’s nominee. It is the Complainant’s case that he emerged the best candidate during the vetting exercise. However, instead of recommending only the Complainant for nomination for the subject position, the vetting report recommended both the Complainant and the 1st Respondent for nomination, solely on the basis of what was reported as interference BY some party officers.

6. The Complainant submits that upon consideration of the vetting report, the 2nd Respondent’s National Elections Board (NEB) nominated the 1st Respondent as the party’s flagbearer and he was subsequently issued with a nomination certificate to contest for the position of MCA East Gem Ward.

7. One of the aspirants referred to above as George Siambe was, however, dissatisfied with the Complainant’s nomination and he lodged a complaint with the 2nd Respondent’s internal dispute resolution mechanism (IDRM). Save for the 1st Respondent who did not participate in the IDRM proceedings, all parties were heard on the complaint before the party’s IDRM. DAPK’sIDRM decided that the Complainant was the party’s rightful flagbearer to contest for the position of MCA East Gem Ward. The Complainant avers that the nomination certificate that had been issued to the 1st Respondent was accordingly cancelled. The Complainant was then issued a nomination certificate and his name was forwarded to and subsequently published by the 3rd Respondent.

8. However, on June 5, 2022 when the Complainant presented himself before the 3rdRespondent for clearance, the 3rd Respondent invalidated his nomination and declined to clear him citing the presentation of two certificates by both the Complainant and the 1st Respondent. The Complainant went back to the party to have the matter addressed and the party wrote a letter dated June 7, 2022 confirming his nomination. However, by the stated date, the 1st Respondent had obtained another letter dated June 6, 2022 that he presented to the 3rd Respondent for clearance. It is the Complainant’s case that the 3rd Respondent wrongfully, unprocedurally, and illegally cleared the 1st Respondent.

The 1st Respondent’s Case 9. On July 4, 2022 when the matter proceeded for hearing of the Complainant’s case by way of viva voce evidence, the 1st Respondent was represented by one Mr Juma Advocate. Counsel for the 1st Respondent informed the Tribunal that he had been instructed in the matter but was unable to file his documents which were ready for filing as he was still waiting to be mapped into the e-filing system. He stated that he nevertheless ready to proceed subject to the Tribunal allowing him time to ensure his documents are placed on record. In the interest of justice, the Tribunal allowed Counsel to participate in the proceedings. Upon request by the Complainant’s Counsel and with the consent of the parties, the Complainant gave his oral testimony and he was cross examined by the said Mr Juma Advocate acting on behalf of the 1st Respondent.

10. After the viva voce hearing, directions were issued to parties to appear before the Tribunal on July 6, 2022 for further hearing of the Complaint by way of oral submissions. However, on the July 6, 2022 when the matter came up for submissions, Counsel for the 1st Respondent was not present despite the date having been given in his presence. The Tribunal further noted, as confirmed by counsel for the Complainant, that whereas the 1st Respondent’s Counsel had committed to filing his responses, none had been placed on record. As the date was given in court in the presence of the parties, the matter proceeded for submissions as scheduled in the absence of counsel for the 2nd Respondent.

11. The 1st Respondent therefore participated in these proceedings only to the extent of cross examining the Complainant. The Tribunal will in its analysis of evidence adduced take into consideration the 1st Respondent Counsel’s points of cross examination as they already form part of the record.

The 2nd Respondent’s Case 12. The 2nd Respondent did not enter appearance or participate in these proceedings despite service.

The 3rd Respondent’s Case 13. The 3rd Respondent has filed a Replying Affidavit sworn by its Returning Officer (RO) for Gem Constituency one Ezekiel Juma Otieno on the June 29, 2022.

14. It is the 3rd Respondent RO’s position that vide a letter dated 6th June 2022, the 2nd Respondent submitted the name of the 1st Respondent as its nominee for the position of MCA East Gem Ward in the general elections scheduled for August 9, 2022. The RO avers that the 2nd Respondent also created the name of the 1st Respondent in the 3rd Respondent’s Candidate’s Registration Management System (CRMS).

15. The RO averred that on June 7, 2022, the 1st Respondent submitted his application for registration as a candidate for MCA East Gem Ward and having qualified, he was duly registered as a candidate and issued with the Certificate of Registration for County Elections. The registration documents for the 1st Respondent were forwarded to the 3rd Respondent for publication in the Kenya Gazette and for necessary subsequent processes in preparation for the general elections.

16. The 3rd Respondent’s submission is that the dispute at hand is between the party and its members and that there is no cause of action against the 3rd Respondent who stands impartial and only cleared a candidate whose name was presented to it by the party.

Issues for Analysis and Determination 17. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Who was validly nominated by the 2nd Respondent to vie for the position of Member of County Assembly, East Gem Ward/Whether the clearance of the 1st Respondent by the 3rd Respondent was valid?ii.What are the appropriate remedies in the present instance?

Who was validly nominated by the 2nd Respondent to vie for the position of Member of County Assembly, East Gem Ward / Whether the clearance of the 1st Respondent by the 3rd Respondent was valid? 18. The dispute at hand is twofold. Firstly, the Complainant stands aggrieved with the party processes that led to the nomination and submission of the name of the 1st Respondent as the 2nd Respondent’s flagbearer for the position of MCA East Gem Ward. Secondly, the Complainant is aggrieved by the 3rd Respondent’s processes leading to clearance of the 1st Respondent as the candidate to vie for the position of MCA East Gem ward under the 2nd Respondent’s party ticket.

19. With respect to the party processes, we have examined the evidence on record and we note that it is not in dispute that both the Complainant and the 1st Respondent were aspirants for the position of Member of County Assembly, East Gem Ward. The 2nd Respondent adopted interviews/vetting as a method of nomination of its preferred candidate in accordance with the party constitution.

20. The Complainant pleaded that the vetting exercise was conducted on the April 9, 2022 and that he emerged successful. Whereas the Complainant claims to have been the winner, we note that no record, report or any form of documentation has been produced in support of this claim. Furthermore, there is no evidence produced before this Tribunal to substantiate the outcome of the vetting exercise that has been alluded to by the Complainant. We are therefore not able to determine from the evidence adduced who emerged the best candidate after the vetting exercise.

21. It has further been pleaded that after the vetting exercise, the 2nd Respondent’s National Elections Board nominated the 1st Respondent who was issued with a nomination certificate dated April 9, 2022. The certificate has been produced on record and the Complainant claims that the same was cancelled after a complaint was lodged in respect thereto. To support this allegation, the Complainant has annexed extract of IDRM proceedings wherein there appears to have been a holding that the Complainant was the valid nominee for the position of Member of County Assembly, East Gem Ward under the 2nd Respondent party’s ticket. We, however, note that from the extract, there has been no mention whatsoever of any certificate that was allegedly issued to the 1st Respondent and/or cancelled. The extract does not even mention the 1st Respondent. In essence, even though the Complainant has pleaded that the 1st Respondent’s certificate was cancelled, it is not clear to this Tribunal whether the 1st Respondent’s certificate was the subject of challenge before IDRM. We also note that we have not been furnished with the full IDRM decision and the extracts bear no signature.

22. The record reflects that the Complainant’s name was published by the 3rd Respondent as per the extracts of the publication that have been produced. Be that as it may, we further note that subsequent to the publication, the 2nd Respondent wrote two contradictory letters to the 3rd Respondent, one dated June 6, 2022 which claims that the 1st Respondent is the party’s rightful flagbearer and another dated June 7, 2022 which claims that the Complainant is the party’s rightful flagbearer.

23. With respect to the processes leading to the clearance of the 1st Respondent, we note from the record that on June 5, 2022, the Complainant presented his nomination form to the 3rd Respondent and the same was invalidated as per the returning officer’s remarks thereon. The returning officer acknowledged that there were in existence two nomination certificates. Subsequent thereto and as we have already observed, both the Complainant and the 1st Respondent obtained letters from the party confirming them to be the rightful flagbearers. The 1st Respondent’s letter dated June 6, 2022 was presented to the 3rd Respondent and the 3rd Respondent cleared him. By the time the Complainant was securing his letter dated June 7, 2022, the Respondent had already been cleared by the 3rd Respondent.

24. In a nutshell, the Tribunal finds itself in a position where it has been presented with two nomination certificates on record and two contradictory letters from DAPKin support thereof. There is, however, no evidence on record to substantiate the circumstances pursuant to which either of the nomination certificates were issued.

25. In the absence of any evidence around the circumstances that the nomination certificates were issued, the Tribunal is unable to affirm that the 2nd Respondent conducted a lawful, fair, open, transparent and democratic process leading to the nomination of its candidate for the position of MCA East Gem Ward. For this reason, we find that the 2nd Respondent’s nomination exercise was void. In this regard, we note the dicta in Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation Ltd & 2 Others (1998) eKLR and Paramount Bank Ltd v Mohammed Ghias Qureishi, Civil Appeal No 239 of 2001 where it was held that if an act is void, it is a nullity in law and any proceeding founded on such act is also a nullity in law.

26. In Macfoy vs United Africa Co Ltd [1961] 3 All ER 1169 Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

27. Consequently, it is our finding that no valid nominee could arise out of an unlawful process. We also find the subsequent clearance of the 1st Respondent by the 3rd Respondent to be of no legal effect as it was founded on unlawful party processes.

What are the appropriate remedies in the present instance? 28. We have considered the reliefs sought in the Complaint and having found that the party processes leading to the nomination of the 1st Respondent or the Complainant were unlawful, we find no sufficient basis for issuance of any of the orders in favour of the Complainant as prayed.

29. Matters pertaining to the nomination of candidates are within the purview of political parties. This Tribunal will not be dragged into resolving issues well within the ambits of the 2nd Respondent’s mandate in favour of one candidate or the other,simply due to the pressure of timelines. The 2nd Respondent must deal with this matter squarely or face the consequences. Our only option therefore is to return this matter back to the party to work within the stringent timelines and undertake a fresh nomination process in accordance with the party constitution.

Disposition 30. Considering the foregoing, we grant the following orders: -a.That the nomination certificates dated April 9, 2022 and April 19, 2022 issued to the 1st Respondent and the Complainant herein respectively be and are hereby revoked and all consequent processes founded on the subject nomination certificates including the purported clearance and issuance of a Certificate of Registration for County Elections to the 1st Respondent are declared a nullity.b.An order is hereby issued directing the 2nd Respondent to expeditiously undertake a fresh nomination process to determine the party’s flagbearer for the position of Member of County Assembly East Gem Ward in accordance with the party constitution and to forthwith issue the successful candidate the Final Nomination Certificate not later than close of business on July 10, 2022. c.That upon compliance with order number (b) above, the 2nd Respondent to forthwith and in any event not later than the July 11, 2022 submit to the 3rd Respondent the name of the party’s nominated candidate for the position of Member of County Assembly East Gem Ward and the 3rd Respondent to immediately undertake the pre-requisite statutory and administrative processes leading to the registration, clearance and subsequent gazettement of the 2nd Respondent’s nominee.d.That each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…… ……….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)