[2022] KEPPDT 1065 (KLR)

Odhiambo v ODM National Elections Board & another; Odinga & 2 others (Interested Parties) (Tribunal Case E002 of 2022) [2022] KEPPDT 1065 (KLR) (5 June 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1065 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal - Kisumu

Tribunal Case E002 of 2022

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

June 5, 2022

Between

Edwin Otieno Odhiambo

Claimant

and

ODM National Elections Board

1st Respondent

Orange Democratic Movement Party

2nd Respondent

and

Trfosa Osewe Odinga

Interested Party

Eunice Rachel Achieng

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

Ruling

Introduction 1. This matter came before us for an application for review to enlarge time to and to amend orders issued by this tribunal on the May 26, 2022 and substitute the order with an order directing that repeat nominations be conducted in any manner so long as it was compliant with the ODM Party Constitution. The 1st and 2nd respondents were cited for contempt by a ruling delivered on the May 26, 2022 and were directed to purge the contempt by conducting repeat nominations by way of universal suffrage within 72 hours of the ruling. The 1st and 2nd respondents therefore sought a review of the said orders and additionally, sought interim orders of stay so as to not render the application for review nugatory. The applicant also filed a supporting affidavit sworn by Mrs Catherine Mumma, the chairperson of the 1st respondent, in support of their application.

2. The 1st and 2nd respondent applicants, confirmed having served the complainant respondent with the present application and filed an affidavit of service dated June 1, 2022 before us proving the same.

3. The complainant respondent filed a replying affidavit in response thereto dated May 31, 2022.

4. This matter came up for hearing on June 1, 2022 when the parties argued the matter orally. The claimant respondent was represented Mr Oketch, the 1st and 2nd respondents/ applicants were represented by Mr Makori.

Respondent Applicant’s Case 5. Mr Makori began by referring to the decision in constitutional Misc application No 1 of 2022 Michael Ojala Nyang’i v Hezron Okoth Onditi & others in support of his application, Justice Thande stated that; “it was not for the PPDT to dictate to the respondents the method to use in the party’s nomination exercise.” He also referred to the supporting affidavit sworn by Mrs Catherine Mumma, urging us to go through paragraph 5, 6 and 7. He further pointed out that paragraph 8 (j) of the affidavit gave the reasons why the 1st and 2nd respondents were currently unable to carry out nominations by way of universal suffrage. He urged us to peruse the same.

6. It was his submission that nominations by way of universal suffrage is usually conducted in primary schools, which were the best places for the exercise. He explained that the 2nd respondent applicant, had written to the Ministry of Education requesting to use of educational institutions for the nominations and that they received a response by way of a letter from the Cabinet Secretary for Education, (Mr George Magoha) dated May 27, 2022, stating that they would not be allowed to use the schools for their nominations.

7. He further stated that 90% of the polling stations used by ODM are educational institutions, because they provide an environment that makes it easy for the party to conduct repeat nominations. He stated that his clients had to be satisfied that the repeat nomination conducted would meet the test set by this tribunal for fairness and accountability as well as being sure that it would be conducted according to current electoral laws.

8. It was also his submission that there were presently 3 decisions issued by the High Court which stated that one must adhere to the form of nomination that was used at the start of proceedings, which is universal suffrage in this case. Similarly, there were also 3 decisions against using the same method as the one that initiated the cause of action. He requested the tribunal to be guided by the decision in constitutional Misc case 001 of 200, and specifically paragraphs 27 to 30 of the decision.

9. Finally, he urged us to review our judgment, so as to allow the 1st and 2nd respondent to conduct the exercise using any other mode provided by the ODM Party Primaries and Nomination Rules. It was his submission that he had set out sufficient cause to warrant a review of the judgment. Furthermore, that the party runs a danger of not having a candidate for South Sakwa, due to the deadlines for submission of names to the IEBC which was almost expiring. Consequently, he pleaded with the tribunal to allow his clients to conduct nominations by means other than universal suffrage.

Complainant Respondent’s Response. 10. Mr Oketch began by pointing out that the application was couched as a review but is in effect an appeal. He went on to cite section 80 of the Civil Procedure Act which states that to succeed in an application for review one must produce before the court new and important matters and evidence which, despite diligence, could not be produced at the time of the hearing of the matter sought to be reviewed. He further stated that no new evidence had been produced by the 1st and 2nd respondents to succeed in the present application. Moreover, that a repeat nomination was always in the knowledge of the respondent applicants and that they knew there was a possibility that schools may not be used for the voting.

11. Furthermore, that there was no mistake or error on the face of the record and that the application does not disclose any sufficient reason warranting review of the orders. Additionally, he stated that citizens and not political parties, which are corporate entities, are guaranteed constitutional political rights under article 38 of the Constitution.

12. He further stated that where universal suffrage is chosen by the party, it must be free and fair and verifiable. He drew a distinction between this case and the decision issued by Justice Thande. In that decision, the respondent had not exhausted internal dispute resolution mechanism of the party. Secondly, the respondent therein was found to be an independent candidate hence he could not maintain grievance against the nomination process that was chosen.

13. It was his submission that litigation must come to an end and that each case must be looked at on its own merits. He stated that the tribunal had ruled that there was contempt of our orders on the May 26, 2022 and that the initial orders for a repeat nomination were still in place and that consequently the review should be dismissed.

1stand 2nd Respondent Applicant’s Rejoinder 14. In rejoinder, Mr Makori stated that the application was not an appeal but review and that section 80 and order 45 provide an avenue for pursuing an appeal or review. Additionally, that the question was whether one had provided new material or if there was sufficient reason. He stated that there was no way they could have already had the information from the Cabinet Secretary of Education, since the letter was dated May 27, 2022 and that consequently, the information qualifies as new material and evidence.

15. He stated that the 1st and 2nd respondents’ political rights stemmed from section 38 (a) of the Constitution of Kenya 2010 and that even the right to present a candidate is a constitutional right that has to be protected.

16. In reference to the complainant respondent’s submission that the review application was worded as an appeal, counsel explained that the preceding paragraphs in their pleadings were merely an attempt to set a background to the review application and were not the actual application but only meant to buttress the arguments.

17. He prayed for the application to be allowed.

Tribunal’s Analysis and Findings 18. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the 1st and 2nd respondent/ applicants have successfully made a case for review.ii.Who bears the costs of this application?

19. We will address the issues set out above in the sequence of their listing.Whether the 1st and 2nd respondent applicants have successfully proved their case to a sufficient degree to be granted a review.

20. Section 40(4) of the Political Parties Act stipulates as follows:“…shall apply the rules of evidence and procedure under the Evidence Act (cap 80) and the Civil Procedure Act (cap 21), with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities”

21. The power of review is circumscribed under section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules. To be heard on review a litigant must bring himself within any one or a combination of the three factors set out under rule 1 of order 45 of the Civil Procedure Rules.[order 45, rule 1] application for review of decree or order. 1. (1)Any person considering himself aggrieved—a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

22. Unlike appeals where an applicant may lodge and establish any ground to show that the decision maker made an error of fact or law, review applications are limited to prescribed and definitive grounds. The applicant must establish that there has been a discovery of a new and important matter or evidence, which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or made.

23. After reviewing the various submissions by counsel and pleadings in this case it is our view that the success of the application is pegged on the question of whether the application, satisfied the requirements set out in the Civil Procedure Rules for review.

24. It is our considered view that no new evidence, warranting a review has been submitted before us. Furthermore, that we have only been supplied with various reasons as to why the 1st and 2nd respondents /applicants have failed to comply with our orders. we are not convinced by the reasons presented. The unavailability of schools is no reason to review our orders. Nominations have been conducted during school terms, mostly on weekends, and in various places. It is not our role to advise the applicants with regard to their options. Those are admistrative matters.

25. We also agree with counsel for the complainant/respondent Mr Oketch, that the circumstances were different in the decision in the appeal constitutional Misc case 001 of 200, presided over by Justice Thande. Principally, the respondent in the appeal was an independent candidate. He, therefore, had no basis for challenging the party’s use of whatever means of nomination which would not affect his candidature. We, therefore, find that there are significant differences from the present application and constitutional Misc case 001 of 200. We are also aware of High Court decisions which have upheld our decisions to require political parties to abide the nomination process method used in the impugned nomination.

26. Additionally, there was an application for contempt and we gave the party an opportunity to purge the contempt. We did not pronounce ourselves on how the 1st and 2nd respondent/ applicants had to purge the contempt; only that they had to do so.Furthermore, it is our view that we have dealt with this matter in substance and that a review application should not be used to upset the fundamental character of our decision.

27. In the end, having considered the record and submissions by the parties herein, we find that the application for review dated May 28, 2022 lacks merit and is therefore dismissed. There shall be no order as to costs

Who Bears The Costs Of This Matter? 28. 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.

Disposition 29. In the upshot we make the following orders:i.We dismiss the application.ii.Each party shall bear its own costs.

30. Those are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 5TH DAY OF JUNE 2022Hon. Dr. Wilfred Mutubwa OGW C. ArbVice Chairperson – PresidingHon. Fatuma Ali -MemberHon. Walubengo Sifuna -Member