[2022] KEPPDT 948 (KLR)

Odhiambo v National Election Board & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E016 (KSM) of 2022) [2022] KEPPDT 948 (KLR) (Civ) (5 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 948 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E016 (KSM) of 2022

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

May 5, 2022

Between

Edwin Odhiambo

Applicant

and

The National Election Board

1st Respondent

Odm Movement Party

2nd Respondent

Eunice Rahel Achieng

3rd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. This matter concerns the issue of a direct ticket to the 3rd Respondent herein as ODM Nominee for South Sakwa Ward, by the ODM party following the judgment (Tribunal Appeal No.4 of 2022) of its tribunal issued on 20th April 2022. The Complainant and the 3rd Respondent were both contestants for the ticket. The Complainant was declared the winner of the nomination contest, but the Appeals Tribunal nullified his nomination and ordered for a fresh nomination exercise to be conducted.

2. Afterwards, the 1st Respondent directly nominated the 3rd Respondent on 27th April 2022. The Complainant was aggrieved by the 1st Respondent’s decision and challenged the decision before this Tribunal.

3. It was the Complainant’s allegation that the 1st Respondent erred by awarding the direct nomination ticket to the 3rd Respondent, further that he did not understand why the 3rd Respondent would be awarded the direct nomination certificate without him being giving an opportunity to be heard. Moreover, that the 3rd Respondent came in third in the election and he wondered why the ticket would be given her. He argued that this arbitrary decision violated his right to Fair Administrative Action as well as the rules of natural justice.

4. This matter came up for hearing on 4th May 2022 when the parties argued the matter orally before this Tribunal. The Complainant was represented by Mr. Felix Oketch; Mr. Kouko for the 1st Respondent and the 2nd Respondent; Mr. Abande for the 3rd Respondent.

Complainant’s Case 5. Mr. Oketch Counsel for the 1st Respondent began by stating that after the nomination on 13thApril 2022, the Complainant was not satisfied with the outcome and that the nomination was nullified by the ODM Tribunal and that a repeat nomination was ordered within 2 days. He submitted that the ODM Party failed or refused to conduct the nomination hence violating the decision of its own Appeals Tribunal.

6. Soon after, the Complainant was issued with an Original Certificate of Nomination on the 24thApril 2022 two days after the lapse of the statutory period within which parties had been required to conduct nomination. Thereafter, the 1st Respondent directly nominated the 3rd Respondent whose name is to be forwarded to the interested party herein. The Complainant avers, that he was not consulted and that the Party violated the ruling of its own organ.

7. Counsel for the Complainant submitted that it is the duty of this Tribunal to enforce the party tribunals’ decisions. He further stated, that the Complainant had done a letter to the 1st Respondent on the 28th April 2022 and that consequently, he had complied with Section 40 (1) and (2) of the Political Parties Act meeting the requirement of showing an attempt at Party IDRM. He cited the case of Elisha Odhiambo v Midiwo decision on the Preliminary Objection stating that the same falls on the same ground of evidence of an attempt. He further stated that the ODM Party has frustrated the Complainant.

8. He further submitted that the Central Committee had no role in the decision of declaring the candidate since that is the role of the National Elections Board (NEB) and that the notice of 27th April 2022, derives its authority from the Central Committee which was acting ultra vires.

9. Additionally, counsel submitted, that the Complainant has a legitimate expectation, and that 1st Respondent breached such expectation by issuance of the nomination certificate to the 3rd Respondent. And that, the Central Committee committed a fraud by purporting to issue the same and that the certificate issued to the 3rd Respondent is a nullity. Counsel explained that the notice speaks of a direct ticket and that the ODM Party Election and Nomination Rules provide the way for issuing certificates. Moreover, that universal suffrage had already been settled on and that is the method that had been commenced from the beginning. The Complainant expressed that universal suffrage should be used as the appropriate nomination method and that it would not be legally sound to go by any other method. Further, that the issuance of the direct nomination was a clear violation of his legitimate expectation as a member of the party and as a contestant for the same seat as the 3rd Respondent.

10. Counsel urged that the ODM Tribunal did not find any fault on the Complainant’s part unlike in other circumstances. That election by universal suffrage was the closest to the will of the people. Moreover, that it was not clear how the 3rd Respondent was identified and that her nomination was shrouded in mystery.

11. Additionally, that the Complainant had won the election with a large margin and that the party should have taken that fact into consideration when issuing the direct nomination ticket. He pointed out that the 1st and 2nd Respondents did not enter appearance before the ODM Appeals Tribunal and instead are punishing the Complainant for wrongs that he did not commit. He asked that the 3rd Respondent’s Certificate be cancelled and that the order of the Appeals Tribunal be enforced by way of fresh nominations.

3rd Respondent’s Case 12. Mr. Abande for the 3rd Respondent began by stating that he had filed a Notice of Preliminary Objection, as well as a Response to the Complainant’s Application and Complaint all dated 30th April 2022. He challenged the jurisdiction of this Tribunal to entertain the complaint because the applicant did not exhaust IDRM in the Party and that this was not in dispute. Furthermore, that the election of South Sakwa was nullified and that no decision other than the one nullifying the election could issue from this Tribunal.

13. Moreover, that the issue before this Tribunal is new and that it ought to have been in the Party IDRM before being brought before us.

14. He submitted that Complainant had annexed a copy of the letter dated 28th April 2022 as evidence of having attempted IDRM. Counsel stated that the letter was an afterthought and that they had also not served the 3rd Respondents with the letter and that it was simply an allegation that the letter had been taken to ODM Party as there was no proof it was ever received. In addition to that, the letter was not addressed to the 1st Respondent but to the Party, and that on the face of the letter it was not intended to be shared. In the circumstances, he submitted that the letter was concocted and intended to mislead this tribunal.

15. Counsel averred that the issues raised by the complainant can be comfortably dealt with in the party internal mechanism. He prayed that the Preliminary Objection be allowed. He went on to state that on the face of the application, it refers to West Sakwa specifically order no 2, he clarified that the 3rd Respondent is in fact a candidate for South Sakwa ward and that this error was detrimental to their application. Furthermore, that they had annexed a copy of the communication to the party in their response to this application and that it stated the criteria of awarding the 3rd Respondent with the Certificate. It referred to rule 8 (b) and 23 (2) of the ODM Nomination Rules, and that the Party preferred direct nomination as their desired method in this instance. He also stated that he had looked at the certificate presented by the Complainant and wondered how they got the certificate and who issued it as it was not indicated. Further, that there were two certificates issued to the Complainant, interim and final, but both were issued before the election was nullified and that they thus had no effect.

1st, 2nd Respondent; and Interested Party’s Case 13. Mr. Kouko agreed with Mr. Abande and opposed the application on grounds of jurisdiction of the Tribunal. He stated that this Tribunal had been addressed on the issue of attempt in the Complainant’s complaint dated 28th April 2022. Further, that there was no proof of service and that the Complainant’s letter was an afterthought. He elucidated that this court can only have jurisdiction, where there is an attempt at IDRM. Moreover, that there was no proof of service and that the party may have needed time to respond to the letter

13. Counsel submitted that the Party needed time to respond to the Complainant’s Letter and that there was an email in the Supplementary Affidavit, where the ODM Tribunal is addressed at 4. 22 pm on 28th April 2022, and that the Complainant had filed this complaint immediately after sending the letter. Consequently, that on that basis alone, there was no attempt made at IDRM.

Complainant’s Rejoinder 13. Mr. Oketch explained that the application was dated on the 27th April 2022 but filed on 29thApril 2022 and that he sent the letter to the ODM Party on the 28th April 2022 and that ODM had simply not acknowledged receipt. Moreover, that where one seeks to enforce a right one can approach by way of a letter; and that the Complainant thereby gave the ODM Party an opportunity to consider his complaint. He, therefore, states that the Complainant complied with section 40 (2) of the Political Parties Act.

14. On the issue of the authenticity of the Certificates, counsel stated that it was incumbent upon ODM to dispute the Certificate’s Authenticity. He submitted that the issue of the date of the Certificate was non-consequential and that the reference to West Sakwa in the Notice of Motion is a clerical error by the Complainant. He also submitted that he had not seen the 3rd Respondent’s certificates

13. He urged the Tribunal to allow the complaint.

Tribunal’s Analysis And Findings 13. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has the requisite jurisdiction to hear and determine this matter.ii.Whether the direct nomination was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

22. We will address the issues set out above in the sequence of their listing.

23. Whether this Tribunal possesses the requisite jurisdiction to hear and determine this matter?

24. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing. Ltd v West End Distributors Ltd [1969] EA 696, where it was held that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

22. The issues raised by the 3rd Respondent in her Preliminary Objection are on the competency of the proceedings brought by the Complainant before this Tribunal. The 3rd Respondent submits that since the matter herein related to matters subsequent to the ODM Tribunal decision, it was an entirely new dispute, which has to first be subjected to the IDRM process in the ODM Party Appeals Tribunal, before being brought before us. And that consequently, this Tribunal lacks the jurisdiction to hear and determine this matter. Furthermore, that in the Complainant’s Application it is not clear whether he is challenging the nomination in South Sakwa Ward or West Sakwa Ward.

23. The Complainant in response contends that he has approached the Tribunal by virtue of a letter written to the 2nd Respondent dated 28th April 2022 and that this was a sufficient attempt at IDRM. Further, that it was the party who refused to receive the letter and that he has therefore been frustrated. The 3rd Respondent alleges that the letter by the Complainant cannot be considered as an appropriate attempt at IDRM since the letter was not written to the appropriate party organ and that there was no definitive evidence showing that the letter was received.

24. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v. Karisa Chengo[2017] eKLR, 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.”

22. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

23. In Agnes Mukami and 5 Others v Ngewahi And Company [2005] Eklr the court stated that“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

22. A reading of Section 40 of the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that:40. (1) The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and a political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners; andf.appeals from decisions of the Registrar under this Act.“(2)Notwithstanding sub section (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”

31. Counsel for the 3rd Respondent also submitted on the error on the face of the Complainant’s pleadings stating that the nomination was for West Sakwa and not South Sakwa. Article 159 (2) (d) of the Constitution provides that courts shall be guided by the principle that justice shall be administered, without undue regard to procedural technicalities. We can think of no better example of a technicality than in this instance. We shall, therefore, consider the Complaint on its merit.

32. From a reading of the above sections of the law as well as the cited authorities it is clear that the dispute at hand is one between a member of a Political Party and a Political Party and therefore falls within the definition set out in Section 40(1) (b) of the Political Parties Act. The issue is whether the letter by the Complainant can be considered as a sufficient attempt at IDRM.

33. We have held that letters are good enough in meeting the standard of attempt laid in section 40(2) of the Political Parties Act, 2011. In Moses Saoyo Kusero v Jubilee Party of Kenya & another (Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that: It is clear that the Claimant’s attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

31. We find that this honorable tribunal has the jurisdiction to hear this matter, and the requirements of the provisions of Section 40 of the Political Parties Act have been satisfied. Therefore, it is our decision that the Complainant has clearly demonstrated an attempt to pursue Internal Dispute Resolution Mechanisms with the Party by dint of the letter dated 28th April 2022.

31. The Preliminary Objection is, thus, dismissed.Whether the issuance of the Direct Nomination ticket was in substantial compliance with the law?

31. The Complainant advances that the Direct Nomination issued to the 3rd Respondent failed the test of a free, fair, transparent and accountable process as provided for under Articles 81, and 86 of the Constitution of Kenya 2010; as well as Rule 4 of the ODM Party Primaries and Nomination Rules which provides for guiding principles and requires the Party to conduct Party Primaries and Party Nomination to Party lists in a manner that is democratic, free and fair and provides equal opportunities for all party candidates.

32. We would like to point out that the right to vote is not a right be trifled with. It signifies the power of the people to pick those they desire to lead them for a given period of time. The importance of protecting the right to vote was emphasized in the South African case of Richter v Minister for Home Affairs and 2 others [2009] ZACC, , where it was stated that: “We should accordingly approach any case concerning the right to vote mindful of the bright, symbolic value of the right to vote as well as the deep, democratic value that lies in a citizenry conscious of its civic responsibilities and willing to take the trouble that exercising the right to vote entails.”

Legitimate Expectation 43. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2] where the Supreme Court stated that: -“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

43. Addressing the subject of legitimate expectation, H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation…. Second, clear statutory words, of course, override an expectation howsoever founded…. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

43. A procedural legitimate expectation rests on the presumption that a public authority will follow ascertain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation; that is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created. The representation itself must be precise and specific and importantly, lawful.

44. Once a reasonable expectation exists, the administrator is required to act in accordance with that expectation. It is our view that the 2nd Respondent has denied the Complainant their legitimate expectation to a fair administrative action since his concerns were not taken into account and no consultations between the contestants on how the nomination would be happen was undertaken. Furthermore, in flagrant violation of the expectation, the 2nd Respondent issued a Direct Nomination to the 3rd Respondent without consensus or conducting opinion polls as provided for by the ODM Party Primaries and Nomination Rules. We therefore hold that his legitimate expectation was violated.

Fair Administrative Action 43. In the case of Kisumu, High Court, Petition No.1 of 2017, Inganga Alfred Arunga – Versus University of Nairobi it was the court’s holding that; “a declaration be granted to the Petitioner that his right of fair administrative action under Article 47(1) of the Constitution was violated when the Respondent arbitrarily and without due process confiscated his degree certificate and refused to release his original transcripts. It was the Petitioner’s submission that by virtue of the fact that the Petitioner was admitted by the Respondent’s University, it signifies that indeed there was a contract entered between the two parties.”

44. Our words in our recent pronouncement in PPDTC E003 of 2022 Elisha Odhiambo v Dr. George Jalango Midiwo and Others, para. 68 bears repeating:Once a party invites candidates to put in their applications for party nominations, collects fees from them, and sets dates for nomination, it creates in the candidates/aspirants a legitimate expectation that there will be a level playing field to compete for the positions. It guarantees that it has the ability to hold free and fair nomination processes and to respect the outcome of elections and subsequent decisions of party election and judicial organs, notwithstanding the desires of a few those who occupy top echelons of its leadership. It also assures candidates of the independence, objectivity and impartiality of its judicial and other decision-making organs. The will of the majority is always the essence of democracy. A usurpation thereof by a few in a committee cannot be allowed to stand.

43. It is our view that the Complainant was never given an opportunity to be considered for the nomination despite being an aspirant in the same elective seat as the 3rd Respondent. Further, that Article 47(1) of the Constitution and Section 4(1) of the Fair Administrative Action Act provides for a right to administrative action, which is expeditious, efficient, lawful, reasonable and procedurally fair. In addition, Section 4(3) of Fair Administrative Action Act requires a person against whom an administrative action has been taken to be given an opportunity to be heard and to make representations in that regard. The Complainant herein was denied an opportunity to be heard. We find that this was a violation of his fundamental rights.

44. Our position as stated in PPDT E003 of 2022 Elisha Odhiambo v Dr. George Midiwo stands. We stated that: A reading of the Respondent’s Party Primaries and Nomination rules shows that the role of determining candidates elected or nominated to fly the party’s flag in elections is the sole preserve of the 2nd Respondent, not the NEC or central committee. This role is crafted in Article 7. 11 of the 4th Respondent’s constitution in the following words: “There is hereby established the Orange Democratic Movement National Elections Board whose mandate is to plan, organize, direct, conduct, supervise and or coordinate all Party elections and nominations of candidates.”

45. We further stated: Even if the Central Committee were exercising legitimate powers, it would have been incumbent upon it to ensure compliance with the universal basic rules of natural justice, particularly by granting the complainant a right to be heard before condemning him or significantly affecting his rights. Although it was submitted that the 3rd Respondent invited the Complainant to the central committee’s meeting by telephone call, there is no evidence laid before us to substantiate that claim. It is the obligation, always, of the person alleging to prove his allegation. See sections 107,108 and 109 of the Evidence Act Cap. 80 of the laws of Kenya. It is trite that proceedings affecting people’s rights and interests that do not meet these basic rules of natural justice, and which are taken in contravention of the Fair Admistrative Action Act, are a nullity.

46. This Tribunal finds that the Complainant has satisfied, to the required Standard of Proof, in this matter, that the issuance of the Direct Nomination ticket to the 3rd Respondent, was not only illegal but contrary to the principles of Fair Administrative Action, and that the action failed to meet the requirements provided by Articles 27, 38 and 81 of the Constitution of Kenya, 2010.

47. Our assessment of the facts as a whole draw us to the inescapable conclusion that we must set aside the Direct Nomination exercise that resulted in the nomination of the 3rd Respondent as well as nullify any and all certificates issued to both the Complainant and the 3rd Respondent.

48. In conclusion, we appreciate that the political party has the right to choose the appropriate method of nomination under Rule 8 of the ODM Election and Nomination Rules. These options are hierarchical, this means that universal suffrage is the last option, if all else have failed. Since the party had resorted to universal suffrage it cannot purport to go back to Direct Nomination after the elections have been nullified by its own Appeals Tribunal, and an order to conduct fresh nominations issued. The same manner of nomination should be used.

49. Furthermore, the party has not explained how it settled on the 3rd Respondent as its candidate. It is our view, whatever process is used, has to take into account the interests of all of the parties involved. It is also our finding that the decision of the party tribunal has not been challenged. The Central committee of the party had no right to interfere or originate that process of fresh nomination as it purported to do. Under Rule 8 and 23 of the ODM Part Primaries and Nomination rules, only the National Elections Board has powers to conduct elections or nominations.

50. We set aside the nomination and ask a fresh nomination be conducted by way of universal suffrage.

Who bears the costs of this matter? 51. 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.

52. We thank learned Counsel for their well-articulated submissions, cogent pleadings and patience during the long hours of sittings.

53. This Tribunal allows the Complaint and finds that it has merit. I proceed to grant Orders as follows:

Disposition 54. 45. In the upshot we make the following Orders:i.We allow the complaint and direct the 2nd Respondent to conduct a fresh nomination by way of universal suffrage for its ticket for South Sakwa Ward within the next 72 Hours.ii.Each party shall bear its own costs.

55. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 5TH DAY OF MAY 2022. .............................................Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – Presiding................................................Hon. Fatuma Ali Member................................................Hon. Walubengo SifunaMember