[2022] KEPPDT 947 (KLR)

Odhiambo v ODM National Election Board & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E016 (NRB) of 2022) [2022] KEPPDT 947 (KLR) (Civ) (4 July 2022) (Ruling)

Neutral citation: [2022] KEPPDT 947 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E016 (NRB) of 2022

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

July 4, 2022

Between

Edwin Odhiambo

Complainant

and

Odm National Election Board

1st Respondent

Orange Democratic Party

2nd Respondent

Eunice Rahel Achieng

3rd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Ruling

Introduction 1. This tribunal delivered its judgment in this matter on the May 26, 2022. Among other orders issued, the tribunal directed the 2nd respondent to conduct fresh nominations by way of universal suffrage within 72 Hours. The applicant herein was aggrieved and moved the High Court at Kisumu vide (Kisumu Election Appeal No E043 of 2022). The 1st and 2nd respondents also filed a Cross Appeal in the same matter. Both were dismissed.

2. Thereafter, the 1st and 2nd respondents moved the Court of Appeal in Election Appeal No E004 of 2022. This appeal was also dismissed. Despite our ruling nullifying the nomination certificate issued to the 3rd respondent and ordering fresh nominations, the 1st and 2nd Respondent did not conduct a fresh election, instead they proceeded to forward the name of the 3rd Respondent to the Interested Party, as the candidate for Member of County Assembly, South Sakwa Ward for the ODM Party. The interested party, then cleared the 3rd respondent to run as the candidate for the seat. Being aggrieved by these actions, the applicant filed the present application seeking to stop the publication, gazettement and printing of ballot papers bearing the name of the 3rd Respondent as a candidate in the 9th August General Elections, as well as seeking a conservatory order barring the interested party from conducting the elections of the Member of County Assembly of South Sakwa Ward during the August 9, 2022 General Elections.

3. The application is brought by way of a notice of motion under cover of certificate of urgency, dated June 24, 2022, as well as Affidavits in support.

4. In response and reply thereto the 1st and 2nd respondents filed a replying affidavit sworn by Mrs Catherine Mumma (Chairperson for the 1st respondent) as well as a list of authorities both dated June 30, 2022. The 3rd Respondents also filed grounds of opposition dated June 29, 2022, while the Interested Party filed, grounds of opposition dated June 29, 2022; and written submissions dated June 30, 2022 in support thereof.

5. This matter came up for hearing on June 30, 2022, when the parties argued the matter orally. The applicant was represented by Dr Miyawa; Mr Makori appeared for the 1st and 2nd respondents, while Mr Abande represented the 3rd respondent. Mr Oduor appeared for the Interested Party.

6. The applicant seeks the following orders from this tribunal:i.That this application be certified as urgent to be heard ex parte in the first instance.ii.That pending the inter-parties hearing and determination of this Application hereof, this Tribunal enforces it judgment and orders of 5th and May 26, 2022 by issuing conservatory order/injunction directed to and barring the interested party (IEBC) from publishing the name of the 3rd respondent, by way of Gazette Notice of otherwise , or printing ballot papers bearing the name of the 3rd Respondent, or in any other way allowing the 3rd respondent to participate or run as a candidate for the Member of county Assembly of South Sakwa Ward on the ODM party ticket during the 9 th August general elections.iii.That until this application is heard and determined, a conservatory order/injunction be and is hereby issued and directed to, and barring the interested party (IEBC) from conducting the elections of the Member of County Assembly of South Sakwa Ward in the 9th August General Elections.iv.That this Tribunal immediately issues any other orders under section 10 of the Magistrate court Act, 2015 that it may deem necessary and appropriate to restrain and punish the blatant contempt of court that has been committed by the 1st and 2nd respondents.

Complainants Case 7. Dr Miyawa urged the applicant’s case. He began by stating this tribunal’s ruling on May 26, 2022 found Mrs Catherine Mumma, the 1st and 2nd respondents guilty of contempt; and that instead of purging the contempt, by conducting fresh nominations, they issued a Nomination Certificate to the 3rd respondent and forwarded it to the IEBC. It was Counsel’s averment that the complainant’s application sought to enforce our judgment and decree. Furthermore, that since this was an ex post judgment application, the time limits under Rule 8 (4) of the Political Party Disputes Tribunal Rules did not apply.

8. He went on to state that section 41 (3) of the Political Parties Act equates the Tribunal’s powers in enforcing its decisions to those of the High Court, and that the orders sought herein were competent and had a lawful basis. Moreover, he explained, that he had looked at the responses by the Respondents, specifically their claim that this Tribunal was functus officio and urged that the PPDT cannot be functus officio when it comes to enforcing its own orders. He emphasized that the enforcement orders and Judgments has no time limit in law.

9. It was the complainant’s submission that since there was a clear disobedience of court orders, the acts of the respondents were illegal and should not be condoned by any Judicial Authority. Furthermore, that if the respondents’ acts were not restrained it would amount to abetting an illegality. That the interested party’s action of clearing the 3rd respondent was a nullity in law, as it sought to give effect to an illegal action that had been nullified by this Tribunal.

10. Counsel advanced the argument that we should grant the orders sought in the Application because we have inherent powers to ensure that the ends of justice are met.

11. He prayed for the application to be allowed in its entirety.

1st And 2nd Respondents’ Case 12. Mr Makori for the 1st and 2nd respondents began his submissions by stating that he had filed a replying affidavit dated June 30, 2022, sworn by Mrs Catherine Mumma who (Chairperson of the 1st respondent). Furthermore, he submitted that he only saw two issues for determination when it came to the Application under consideration. The first issue being, whether this Tribunal has the jurisdiction to entertain the application? He stated that jurisdiction was everything and that it gives the court impetus in making its decisions; and that the fact that the 3rd Respondent’s name had already been submitted to the IEBC was undisputed by the parties herein. Consequently, it was Mr Makori’s submission that this matter moved from Party Primaries to Nomination stage, and that as a result only the IEBC has the exclusive jurisdiction to hear and determine the matter. He read out the statutory definition of a primary as provided for in section 2 of the Political Parties Act , 2011, as amended, as the process through which a Political Party selects or elects a candidate, except when such a process includes a party list. He further defined a nomination as the submission to the IEBC of the name of a candidate. It was his submission that in light of the fore, we did not have the jurisdiction to hear and determine this matter.

13. According to counsel, the second issue for determination was, whether the application was merited. It was Mr Makori’s submission that issues relating to contempt in this matter were res judicata having been disposed of by this tribunal. Additionally, Counsel pointed out to the fact that a review application made in this matter was dismissed and so was an appeal, Kisumu Election Appeal No E043 of 2022, filed by the complainant. And a further Appeal to the Court of Appeal in Election Appeal No E 004 of 2022. Counsel argued that the Complainant supported the 1st and 2nd respondents in the Court of Appeal; and that he was thus estopped by his conduct; and could not approbate and reprobate, by seeking to enforce our judgement while he had challenged the same in the superior courts.

14. With regard to prayer 4 of the application counsel Makori stated that it was not merited since it was akin to contempt proceedings, which were res judicata. He cited the decision in Samuel NN Mweru vs NLC and 2 Others made by Justice Mativo for the proposition that unintentional or accidental disobedience of court orders cannot amount to contempt.

15. In conclusion, he submitted that there was no deliberate disobedience of this Tribunal’s orders and that the application should therefore be dismissed with costs.

3rd Respondent’s Case 16. Mr Abande appearing for the 3rd respondents stated that he associated himself with the submissions of the 1st and 2nd respondent and chose to rely on the Replying Affidavit filed on behalf of the 3rd respondent. He further stated that the application herein seeks injunctive orders and that it is trite in law that when injunctive orders are sought they cannot be left hanging. Additionally, he submitted that on the face of the motion this tribunal is called to give injunctive orders, even though the purpose of those orders is not stated. It was his submission that there was no issue pending requiring the injunction to be given and that there were no substantive prayers in the application.

17. Moreover, it is Mr Abande’s submission that by appealing the orders of this Tribunal and specifically pleading that a certificate that was nullified by the Party Tribunal be issued to the applicant, the matter transited into a new cause of action. Mr Abande asked rhetorically; in case the hon tribunal agrees with the applicant, what would be the result since the 3rd Respondent has already been cleared and the nomination exercise has been dispensed with? It was his submission that the real intention of the applicant was to ensure that the party does not field a Candidate for the seat.

18. He further advanced that there was no willful disobedience of our orders and that the fact that the 3rd respondent has been issued with a certificate had not been denied, nor was the fact that the IEBC used the certificate to clear the 3rd respondent as the flag bearer for ODM Party for the subject seat. In conclusion he stated that this was a new cause of action which cannot be subject to the proceedings before us.

19. He urged us to dismiss the application.

Interested Party’s Case 20. Mr Oduor stated that he wished to rely on the ground of oppositions and Written Submissions dated June 30, 2022. He went on to state that in our ruling delivered on 26th May 2022, we made 2 orders. First, that we found the 1st and 2nd respondents in contempt and as a result we gave the respondent 72 Hours to purge the contempt, failing which notice to Show Cause, would issue. It was counsel’s submission that the complainant had a recourse available to him and that what he should have done was seek for a notice to show cause to issue and not institute this Application.

21. He urged us to dismiss the application with costs.

Complainant’s Rejoinder 22. In rejoinder Dr Miyawa advanced that the complainant was merely seeking to enforce the Judgment of this tribunal and that there was no fresh dispute. Moreover, it was his submission that the tribunal cannot just sit back and allow its orders to be violated. He further stated that prayer 4 of his application was not res judicata and that the 1st and 2nd Respondent were already in contempt of court and that the contempt hadn’t been purged.

23. On the issue of estoppel raised by the respondents’ advocates, counsel submitted that a party can agree with a judgment but be partially aggrieved by the same judgment. He stated that the complainant’s appeal was limited to the quashing of its nomination certificate. It was his further submission that an appeal does not take away the right of a party to realize the fruits of his judgment

24. He submitted that there was already willful disobedience of our orders by Mrs Catherine Mumma and that if a nomination has been conducted contrary to our judgment and orders, then such nomination would be a nullity in law. Consequently, he urged us to stop the election process to prevent the misuse of public funds in that regard.

25. In conclusion, the complainant submitted that he has never been part of any consensus meeting. Counsel stated that the complainant had filed a further affidavit underscoring this position. Moreover, it was his submission, that if the respondents claim that there was a consensus meeting they should table evidence proving the same.

26. He therefore urged us to grant the application and the orders sought therein.

Tribunal’s Analysis And Findings 27. 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 application has merit?iii.Who bears the costs of this case?

28. We will address the issues set out above in the sequence of their listing.Whether this tribunal has the requisite jurisdiction to hear and determine this matter?

29. Naturally, we will start with the first question as framed above. 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.”

30. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of this matter. In the Court of Appeal’s decision in Civil Appeal E 326 of 2022, it was determined that once a matter had transitioned from the PPDT to the registration of candidates by the IEBC, the former is bereft of Jurisdiction. Furthermore, it is only the IEBC exercising its jurisdiction under Article 88(4) (e) of theConstitution; and section 74 of the Elections Act, that can deal with a dispute that has transited to the registration stage. The only element that distinguishes the jurisdiction of the two organs is whether the matter has transitioned from nominations to the registration of candidates.

31. Section 74 (1) of the Elections Act provides as follows:(1)Pursuant to article 88(4)(e) of the Constitution, 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”

32. Article 88 4 (e) of the Constitution of Kenya 2010 also states as follows;(4)The commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(e)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;”

33. In our considered view, there are two situations that arise out of the set of facts before us. We will draw a dichotomy, since it is critical to do so. There is the question of disobedience of our orders. And, there is the matter of enforcement of our Judgement through the application under consideration. The latter also involves the nature of reliefs that we can issue at this stage.

34. There are certain facts and trite legal propositions that are common, uncontested or even incontestable. We delivered a judgment in this matter, in which we ordered a repeat of the nomination exercise by universal suffrage. In the Judgment, we set out our reasons for that conclusion. A review application was filed and rejected. Appeals and cross appeals to the High court, and a further appeal to the court of appeal met the same fate. We have also adjudicated over an application for contempt of our Judgement and orders. In our ruling on that aspect, we found the 1st and 2nd respondent’s and its relevant officers as being in contempt of our Judgement and orders contained therein.

35. There is no dispute that this tribunal has powers similar to those of the High court to punish for contempt. Indeed, we have held on numerous occasions that we shall not hesitate in enforcing our decisions, as every court should. In this case we have, indeed, flexed our muscles in this regard. We gave the contemnors 72 hours to purge the contempt failing which the Complainant was at liberty to take out notices to show cause. We say no more on that aspect as the matter remains alive and may as well come before us. We do not wish to prejudice the parties’ rights or offer preemptive views.

36. This tribunal is not a toothless dog, and will bite in appropriate circumstances within the powers granted to it by law.

37. With respect to the interpretation of Regulation 8(4) of the PPDT Regulations 2017, we agree with Dr Miyawa that in PPDTC E019 of 2022, John Andiwo v The National Elections Board of the ODM and Others, we held that:“… our view is that the timelines set out there in refer to the filing of the complaint or original action and not enforcement or post judgement applications. In other words, an application is a continuum of the suit filed, and cannot, therefore, be time barred when the originating action has been timeously commenced. “

38. The current application is, therefore properly before us, and is not caught up by the time-bar in Regulation 8(4) of the PPDTRegulations, 2017.

39. It is appreciated, as the applicant has submitted, that the current application is not one of contempt. If it were, we would not have hesitated to take up Jurisdiction.

40. Perhaps the more significant consideration is the question of our jurisdiction vis a vis that of the IEBC in the resolution of pre-election disputes. This has for a long time been a problematic, and sometimes blurry area, owing largely to conflicting decisions by superior courts, especially the High Court. However, the situation seems to have been clarified by the court of Appeal in Civil Appeal E 326 of 2022 The court demarcated our Jurisdiction with that of the IEBC by stating that that once a matter had transitioned from the PPDT to the registration of candidates by the IEBC, the former is bereft of Jurisdiction. This demarcation is particularly important since courts should always act in harmony, while sustaining the jurisdiction and competency of other constitutional and statutory organs.

41. There is no dispute that the 3rd respondent’s name has been forwarded to the IEBC, and that he has been cleared to run on the ODM ticket by the IEBC. It is a matter of public knowledge, and which we take judicial notice of, that the IEBC has constituted a Dispute Resolution Committee whose function is primarily to deal with disputes post registration of candidates in accordance with its mandate under article 88(4) (e) of the Constitution. Recourse from the Committee’s decisions is to the High Court, and not the PPDT.

42. Jurisdiction is the root of all authority, without which nothing can stand. The dichotomy we sought to draw in the earlier parts of this ruling is as follows. This Tribunal has jurisdiction to enforce its decisions under section 41 (3) of the Political Parties Act, 2011. However, the tribunal has no jurisdiction to deal with matters of nomination and registration of candidates by the IEBC. In other words, this tribunal cannot set aside or fault the IEBC’s decision to clear the third responded. That jurisdiction is exclusively the IEBC’s under Article 88 (4) (e); and it is a constitutional mandate. In this case, the registration and clearance of the 3rd Respondent by the IEBC is not a matter in our province.

43. It must be appreciated that the facts informing our jurisdiction to punish for contempt my very well be the same founding a cause of action before the IEBC. But the Jurisdictions are entirely different. If the nomination of the 3rd respondent is in contempt of our Judgement, we can deal with it, as we have. If the clearance of the 3rd respondent by the IEBC is tainted with illegality, the same can be prosecuted before the IEBC. The Complainant is not without recourse. Nor are we abetting illegality, impunity and contempt of our Judgement. After all, we have already acted in contempt proceedings herein

44. It is for the foregoing reasons that we decline the invitation to encroach on the jurisdiction of the IEBC. Furthermore, the orders sought by the applicant would supplant our judgement. By their very nature, injunctive orders as equitable reliefs, are either interlocutory or permanent; issued on interim or final basis in rulings and judgements. To issue an injunction post Judgement, in the absence of an appeal or review application upon which to substantively anchor the prayers, would be tantamount to issuing fresh final orders in a suit, post Judgement, outside the pleadings and timeframes set by the rules in approaching the tribunal. In essence, it would allow parties to frame new causes of action, complete with fresh orders with far reaching consequence, in the guise of enforcement proceedings.

45. We therefore dismiss the application for want of jurisdiction. Having so found, we see no need to address the second issue for determination Who bears the costs of this matter?

46. 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.

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

Disposition 48. In the upshot we make the following Orders:i.We dismiss the application.ii.Each party shall bear its own costs.

49. Those are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 4TH DAY OF JULY, 2022_____________________HON. Dr WILFRED MUTUBWA, OGW C. ArbVICE CHAIRPERSON – PRESIDING_____________________HON. FATUMA ALI,MEMBER_____________________HON. WALUBENGO SIFUNAMEMBER