[2022] KEPPDT 1059 (KLR)

Odhiambo v National Elections Board & 2 others; Independent Electoral And Boundaries Commission (Interested Party) (Complaint E029 (KSM) of 2022) [2022] KEPPDT 1059 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1059 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E029 (KSM) of 2022

G. Gathu, Presiding Member, W Ngige & L. Kinyulusi, Members

June 8, 2022

Between

Ted Marvin Odhiambo

Complainant

and

Orange Democratic Movement National Elections Board

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Nick Evans Okoth Ochola

3rd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. This dispute concerns the nomination of a candidate to vie for the position of Member of County Assembly, North Gem Ward, Siaya County Assembly by the 2nd Respondent. The nomination method adopted by the 2nd Respondent was one of universal suffrage.

2. The nomination exercise was held on April 13, 2022 and the Complainant emerged the winner thereof. The process was challenged before the 2nd Respondent’s appeals tribunal and the outcome of the nomination process was upheld by the said tribunal. Ultimately, the 2nd Respondent forwarded the name of the 3rd Respondent to the Interested Party thus giving rise to this Complaint. By a Statement of Complaint dated May 27, 2022, the Complainant seeks the following prayers: -a.The 2nd and 3rd Respondents be and are hereby ordered to forthwith submit the name of the Claimant, Ted Marvin Odhiambo, to the Independent Electoral and Boundaries Commission, as the 2nd Respondent’s, Orange Democratic Movement Party, nominee for North Gem Ward Member of County Assembly.b.The Independent Electoral and Boundaries Commission be and is hereby ordered to accept nomination paper of the Claimant, Ted Marvin Odhiambo, as the 2nd Respondent’s nominee for North Gem Ward Member of County Assembly.c.The Honourable Tribunal be pleased to issue further orders as it shall deem fit and just in the circumstances.d.The Respondents be ordered to pay costs of this claim.1. Together with the Statement of Complaint, the Complainant also filed a Notice of Motion application dated May 27, 2022 filed under Certificate of Urgency seeking the orders on the face of the said application. This Tribunal issued directions that the Complaint and the aforesaid Notice of Motion application would be heard together.2. When the matter came up for hearing on June 2, 2022, Counsel for the Complainant indicated that he wished to have the Interested Party struck off from the proceedings. There was no opposition to this prayer and the Tribunal duly marked the Interested Party as having been struck off from the proceedings.3. The matter was adjourned to June 4, 2022 to allow the 2nd and 3rd Respondents put in their responses. On June 4, 2022 when the matter came up for hearing, Counsel for the Complainant and the 2nd and 3rd Respondents consented to having the Tribunal deliver its judgment based on the parties’ pleadings and submissions. Counsel for the 3rd Respondent was not present. However, the 3rd Respondent was present in person. The Tribunal therefore directed that it would proceed to make a determination based on the parties’ pleadings and submissions on record.

The Complainant’s case 6. In addition to the aforementioned pleadings, the Complainant also filed a further affidavit that he swore on June 1, 2022 and written submissions dated June 1, 2022.

7. The Complainant’s case is that he participated in a nomination exercise for the 2nd Respondent’s nominee for the elections for Member of County Assembly (MCA) North Gem Ward. He states that he emerged the winner of this exercise and was issued with an interim nomination certificate whereupon the 3rd Respondent lodged an appeal with the 2nd Respondent’s Appeals Tribunal.

8. The 2nd Respondent’s Appeals Tribunal dismissed the 3rd Respondent’s challenge to the nomination exercise. The 3rd Respondent subsequently filed an application for review which was also dismissed on April 25, 2022. The 2nd Respondent thereafter issued the Complainant with a final nomination certificate.

9. The Complainant contends that having been issued with a final nomination certificate, he embarked on campaigns in the ward. The Complainant states that on May 23, 2022 he realized from the timetable published by the Independent Electoral and Boundaries Commission that the 2nd Respondent had forwarded the name of the 3rd Respondent as its candidate for North Gem ward instead of the Complainant.

10. The Complainant also says that he attempted to invoke the 2nd Respondent’s Internal Dispute Resolution Mechanism (IDRM) via his letter dated May 23, 2022 which he delivered a physical copy and also via email. The attempt was unsuccessful. However, he also submits that his attempt to invoke IDRM was a “kind” gesture as his complaint regards the disobedience of the orders issued by the 2nd Respondent’s appeals tribunal.

The 1st and 2nd Respondent’s case 11. The 1st and 2nd Respondents swore an affidavit in response to the Complaint. The affidavit was sworn by Catherine Mumma on June 2, 2022, the Chairperson of the 2nd Respondent’s National Appeals Board (NEB). The 1st and 2nd Respondents also filed written submissions dated June 2, 2022.

12. The 1st and 2nd Respondent’s Case is that while the Complainant did indeed emerge the winner of the nomination exercise held on April 13, 2022, the 1st and 2nd Respondents made a determination that the 3rd Respondent was best placed to be the 2nd Respondent’s candidate in the elections for MCA North Gem ward.

13. The 1st and 2nd Respondents contend that the Complainant was aware of this fresh nomination exercise but did not raise any complaint as regards the same.

14. The 1st and 2nd Respondents have also raised an objection to the jurisdiction of this Tribunal on the basis that the Complainant has not exhausted the 2nd Respondent’s IDRM and therefore the Tribunal has no jurisdiction to hear and determine the matter pursuant to section 40(2) of the Political Parties Act, 2011.

15. The 1st and 2nd Respondents therefore urge the Tribunal to dismiss the Complaint.

The 3rd Respondent’s case. 16. The 3rd Respondent filed a Response to the Complaint and a Notice of Preliminary Objection both dated May 31, 2022. The 3rd Respondent also filed written submissions dated June 1, 2022.

17. In the Preliminary Objection, the 3rd Respondent objected to this Tribunal’s jurisdiction on the basis that the Complaint was lodged contrary to regulation 8(1) of thePolitical Parties Disputes (Procedure) Regulations 2017 (“the Regulations”) as the same was filed on May 27, 2022 while the last date that it should have been filed was April 27, 2022.

18. In his response to the Complaint, the 3rd Respondent also raised the issue of the Complaint having been filed out of time. The 3rd Respondent prayed that the Complaint be struck out and/or dismissed with costs.

Issues for Determination. 19. The Tribunal has considered the parties ‘pleadings and also the parties’ oral highlights of their submissions and framed the following as the issues for determination: -a.Whether the Tribunal has jurisdiction to hear and determine this dispute.b.Who between the Complainant and the 3rd Respondent is the lawfully nominated 2nd Respondent’s candidate for MCA?Analysis and FindingsWhether the Tribunal has jurisdiction to hear and determine this dispute.

20. The challenge to this Tribunal’s jurisdiction is two-pronged. There is a challenge to the Tribunal’s jurisdiction under section 40(2) of the Political Parties Act and Regulation 8(1) of the Political Parties Disputes (Procedure) Regulations2017.

21. We must deal with the question of jurisdiction first as a Court or Tribunal must satisfy itself that it has jurisdiction. Jurisdiction is everything. InSamuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the court held that: -“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

22. Given the two-pronged nature of the challenge to this Tribunal’s jurisdiction as previously indicated, we will first examine whether the Tribunal has jurisdiction to hear and determine this dispute considering the provisions of section 40(2) of the Political Parties Act.

23. The jurisdiction of the Political Parties Disputes Tribunal (PPDT) flows from section 40 (1) of the Political Parties Act. The nature of the dispute herein concerns party primaries. The PPDT is specifically clothed with jurisdiction to deal with disputes concerning party primaries under section 40(1) (fa) of the Political Parties Act. Section 40 (2) of the Political Parties Act provides as follows:“Notwithstanding subsection (1) the Tribunal shall not hear and determine a dispute under paragraph (a), (b), (c), and (e) or f (a) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the Internal Political Party Dispute Resolution Mechanism”

24. The 1st and 2nd Respondents contend that the Complainant has not attempted to have this dispute resolved by the 2nd Respondent’s IDRM. The Complainant on the other hand contends that what he has brought before this Tribunal is not a fresh dispute; rather it is a Complaint in which it seeks to enforce the decision of the 2nd Respondent’s Appeals Tribunal. The Complainant further contends that in any event, he did write to the 2nd Respondent via letter dated May 23, 2022 raising the Complaint.

25. We have examined the prayers sought by the Complainant and we cannot find any express prayers that seek enforcement of the 2nd Respondent’s appeals tribunal. Nevertheless, the Complainant has referred to the decision of the 2nd Respondent’s Tribunal in which his win in the primaries was upheld; he has prayed that the Tribunal orders that his name be forwarded to the Independent Electoral and Boundaries Commission (the Commission) as the 2nd Respondent’s nominee. None of the Respondents sought to challenge the decision of the 2nd Respondent’s appeals tribunal. This is pertinent noting that the Respondents were parties to the aforesaid appeal.

26. Moreover, the Complainant has demonstrated that he attempted to invoke the 2nd Respondent’s IDRM by writing to the 2nd Respondent via his letter dated May 23, 2022. The Complainant has availed evidence that he sent the letter via email to the 2nd Respondent. There is no challenge to the form of the attempt by any of the Respondents.

27. In the circumstances, we are inclined to find that this Tribunal’s jurisdiction has been properly invoked and that this Complaint does not fall within the exception at section 40(2) of the Political Parties Act.

28. On the second limb of the challenge to this Tribunal’s jurisdiction, we have previously made determinations on the import of regulation 8(1) of the Regulations (see MERU PPDT Complaint No E003 of 2022 Samuel Mwafrika vs Lillian Mbogo & Others and KISUMU PPDT Complaint No E027 of 2022Geoffrey Ochieng vs ODM & Others). The second part of Regulation 8(1) of theRegulations refers to a date which is a moving target as set by the Commission. We have previously declined to lock out parties from this Tribunal on that basis alone. In the same breath, we decline the invitation to lock out a party from the seat of justice on the basis of a date which is a moving target.

29. We therefore dismiss the Preliminary Objections and hold that the Tribunal has jurisdiction to hear and determine this matter.Who between the Complainant and the 3rd Respondent is the lawfully nominated 2nd Respondent’s candidate for MCA?

30. Having found that the Tribunal has jurisdiction, we now move to the second issue. It is not in dispute that the Complainant emerged as the winner of the party primaries that were conducted on April 13, 2022 by way of universal suffrage. The 3rd Respondent filed an appeal before the 2nd Respondent’s appeals Tribunal which appeal was dismissed. The 3rd Respondent then filed an application for review which was also dismissed.

31. In a strange twist of events, the 2nd Respondent forwarded the name of the 3rd Respondent as its nominee for North Gem Ward. The 1st and 2nd Respondents state that the reason for this twist, was that upon their “keen consideration” it was determined that the 3rd Respondent was the best candidate.

32. It is not stated which particular organ of the 2nd Respondent made this particular consideration and whether the Complainant was given a hearing at all prior to the decision to grant the nomination certificate to the 3rd Respondent. There are no minutes that can guide this Tribunal in considering whether indeed such a decision was made by relevant party organs and whether such decision was fair and just.

33. The 1st, 2nd and 3rd Respondents were also parties before the 2nd Respondent’s appeals tribunal over the same issue. We have not been shown any evidence that any of them filed a Complaint with this Tribunal arising out of the determination by the 2nd Respondent’s appeals tribunal. None of the Respondents has proffered any reason as to why the 1st and 2nd Respondents would blatantly disregard a finding of the 2nd Respondent’s own IDRM.

34. The 1st and 2nd Respondents state that the nomination of the 3rd Respondent was a fresh nomination and that the Complainant was aware of it. With respect, we cannot agree with those contentions. There was no lawful basis for conducting a fresh nomination exercise. The Tribunal has not been shown what method was used to ‘nominate’ the 3rd Respondent and whether that method was in keeping with the 2nd Respondent’s own constitution, nomination rules and the Political Parties Act.

35. In the circumstances, we find that the Complaint is merited and we order that the 1st and 2nd Respondents shall forthwith forward the name of the Complainant as the 2nd Respondent’s candidate for North Gem ward to the Independent Electoral and Boundaries Commission. The application dated May 27, 2022 is consequently spent.

Orders 36. The final orders of the Tribunal are that: -a.The Complaint is merited and is hereby allowed in terms of an order that the 1st and 2nd Respondents shall forthwith, and in any event not later than twenty-four (24) hours from the date of this judgment being 10:00 am on June 9, 2022, forward to the Independent Electoral and Boundaries Commission the name of the Complainant as the 2nd Respondent’s nominee for the position of Member of County Assembly, North Gem Ward.b.Each party will bear its own costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF JUNE 2022. GAD GATHU ……………………………(PRESIDING MEMBER)WANJIRŨ NGIGE…………………(MEMBER)R. LEONARD KINYULUSI ……………(MEMBER)