[2022] KEPPDT 979 (KLR)

Odhiambo v Orange Democratic Movement Party & 3 others (Complaint E052 (NRB) of 2022) [2022] KEPPDT 979 (KLR) (9 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 979 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E052 (NRB) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 9, 2022

Between

Lawrence Otieno Odhiambo

Complainant

and

Orange Democratic Movement Party

1st Respondent

Chairman, Orange Democratic Movement Party

2nd Respondent

Orange Democratic Movement Party National Elections Board

3rd Respondent

John Millar Otieno

4th Respondent

Judgment

Introduction 1. The Complainant herein participated in the 3rd Respondent’s nomination held on the April 22, 2022 for the post of Member of County Assembly for Sarang’ombe Ward where he emerged a winner defeating 13 other aspirants.

2. Being dissatisfied with the declaration and nomination of the Complainant, the 4th Respondent filed an Appeal at the 2nd Respondent’s Appeals Tribunal and the Appeals Tribunal dismissed the Appeal and upheld the Complainant’s nomination.

3. Despite the Complainant winning and the 1st Respondent Appeals Tribunal upholding the Complainant’s win the 1st, 2nd and 3rd Respondents have failed to issue the requisite Nomination Certificate to the Complainant for the position of Member County Assembly, Sarang’ombe Ward Nairobi County denying him without any good reason.

4. The Complainant seeks an order of injunction restraining the 1st, 2nd and 3rd Respondents from submitting the name of the 4th Respondent or any other person to the Independent Electoral and Boundaries Commission as their nominee and candidate of Member of County Assembly for Sarang’ombe Ward.

5. He also seeks orders directing the 1st, 2nd and 3rd Respondents to nominate the Complainant as its sole Candidate for Member County Assembly Sarang’ombe Ward Nairobi County for the August 2022 General Elections.

6. The claim is opposed. The 1st, 2nd and 3rd Respondents have filed a Replying Affidavit in response to the complainant’s claim sworn on the May 4, 2022.

7. The Complainant was represented by Asembo & Co Advocates, the 1st, 2nd and 3rd Respondents are represented by the firm of Makori & Karimi Advocates and the 4th Respondent did not enter any appearance nor file a Response.

Complainant’s Case 8. The Complainant filed his complaint under a certificate of urgency on the April 28, 2022 accompanied by a Notice of Motion Application, supported by his affidavit and annexures together with his verifying affidavit and witness statements which are properly on record. He also filed a further affidavit in response to the 1st, 2nd and 3rd Respondents’ response to the Complaint which he swore on the May 4, 2022.

9. The Complainant and the 4th Respondent are registered members of the Orange Democratic Movement (ODM) party the 1st Respondent. They were both cleared by the 3rd Respondent to participate as candidates for nomination for the position of Member of County Assembly Sarang’ombe Ward Nairobi County.

10. On the April 22, 2022 the 1st Respondent through the 3rd Respondent organized and held party primaries for the nomination of candidates to the August 2022 general elections

11. The Complainant emerged the winner with 720 votes and was issued with the Provisional Nomination Certificate at the Tallying Center, the Co-operative University, Karen, Nairobi on April 23, 2022.

12. The 4th Respondent was also an aspirant in the said primaries and he emerged second trailing the Complainant with 611 votes.

13. The 4th Respondent being dissatisfied with the outcome of the nomination exercise, lodged an appeal with the 1st Respondent’s Tribunal on April 24, 2022 being the legally constituted Internal Disputes Resolution Mechanism Organ. The Appeal was heard on the April 26, 2022 and a judgment delivered on the April 27, 2022 dismissing the 4th Respondents Appeal and upholding the Complainant's nomination.

14. The Complainant claims that the decision of the 1st Respondent’s Appeals Tribunal further directed the 3rd Respondent to take further action which meant that they issue the nomination certificate to the Complainant and also forward the name of the Complainant to the Independent Electoral and Boundaries Commission (IEBC) through the 1st Respondent’s mandated officials.

15. It is the complainant’s case that despite being declared the winner of the nominations and despite the fact that the Appeal by the 4th Respondent challenging the win of the Complainant being dismissed and the Complainants nomination upheld, the 1st, 2nd and 3rd Respondents have failed to issue the requisite nomination certificate thus breaching his legitimate expectation.

16. The Complainant states that the 1st, 2nd and 3rd Respondents have contacted other eligible aspirants from other wards within Nairobi and issued them with the party’s nomination certificates on the April 27, 2022 and April 28, 2022 but have failed to issue the same to the Complainant despite his frantic efforts to pursue his democratic entitlement.

17. The Complainant contends that the acts and/or omissions of the 1st, 2nd and 3rd Respondents infringe on his Political Rights and are couched in mischief to deny him the party ticket. This he contends has occasioned him great loss of resources in terms of time and financial expenditure.

18. The Complainant further contends that he had legitimate expectation to be the nominee for the Member of County Assembly for Sarang’ombe Ward Nairobi County and the responsibility of such nomination rests with the 1st, 2nd and 3rd Respondents.

19. The complainant claims to have made several phone calls, text messages to various officials of the 1st, 2nd and the 3rd Respondent challenging the drastic decision but has been denied audience and instead is being issued with threats and intimidation.

20. This has prompted him to approach the Tribunal for assistance as the Respondents are making arrangements to submit to the Independent and Electoral Boundaries Commission the final names of persons nominated to contest the General Elections which action will drastically disenfranchise the Complainant completely.

21. That unless this honourable Tribunal intervenes and grants the orders as prayed the Complainant will suffer great loss and prejudice and that the respondents will not suffer any prejudice if the orders are granted.

22. The Complainant seeks the orders as prayed in the Complaint and in the Notice of Motion Application.

Respondents’ Case. 1st, 2nd and 3rd Respondent’s case 23. The 1st, 2nd and 3rd Respondents filed their response to the complaint herein vide the affidavit of one Catherine Mumma the Chairperson of the National Elections Board of the Orange Democratic Movement Party the 3rd Respondent in this proceedings sworn on the May 4, 2022.

24. In her affidavit in response to the claim she confirms that the Complainant and others contested the party primaries for the nomination of the Member of County Assembly of Sarang’ombe Ward on the Orange Democratic Movement Party ticket which was held on the April 22, 2022.

25. She also confirms that after the primaries, the 4th Respondent moved the party’s National Appeals Tribunal on the April 23, 2022 on an Appeal contesting the nomination of the Complainant which was heard on the April 26, 2022 and a judgment rendered on the April 27, 2022.

26. She confirms that the Appeals Tribunal heard the matter and made a determination that the complainant should be handed over the party ticket for the said electoral area.

27. She gave a background to the matter herein by stating as follows:a.That the complainant is the incumbent for the electoral area Sarang’ombe Ward since the year 2017 and that during his term of office and as a member of the County Assembly his tenure has been characterized by cases of indiscipline, unbecoming conduct and a total disregard and violation of party principles and regulations. She has attached a bundle of documents in support of her claim which is marked 'A'.b.That as a result of the above issues the Party in accordance with the applicable rules deliberated on the manner and mode of the Elections for Sarang’ombe Ward.c.Having taken the above consideration and in accordance with the enabling provisions of the Party’s Constitution and rules that recognize that the Party Primary Election and Nomination can be conducted using the following methods (and in the following order of priority)-i.Declaration of no contestii.Consensus among candidates, Party and Community Representativesiii.Direct nominationsiv.Universal suffrage of registered party members (certified by the Registrar of Political Parties)As per Rule 8 of the Party Primary Election Rules order of priority, direct nominations come before Universal suffrage.d.That under Rule 23 of the Party Primary Election Rules the party may conduct primary election by Direct Nomination after due diligence and having conducted credible research providing an evidence based opinion that a particular candidate is best placed to deliver the relevant electoral seat for the party.e.That under the same provision, the Party can directly grant a ticket for compelling reason if it is in the best interest of the party to use direct party nomination (he asks the Tribunal to refer to Rule 26 under Direct Nominations under rule 23) See attachment 'B' the relevant pages of the ODM Party Primaries and Nomination Rules 2021 Rules 8 and 23. f.She states that in order to consider the nominations of candidates for the above seat and using either of the listed methods the party called for applications from interested candidates willing to run for various seats on the party ticket to apply.g.That after the party considered the various provisions on direct nomination and the matter at hand John Miller Otieno the 4th Respondent was best placed to be the party’s candidate for the Sarang’ombe County Assembly Seat and consequently a direct ticket was issued directly to him. Attachment marked 'C' is the Resolution by the Party and the Nomination Certificate.

28. She avers that the carrying out an election by way of universal suffrage was in error as a determination had been made on the nomination method by the party and that the said error was not deliberate but unintentional and as a result of earlier preparations that had been made the decision to issue a direct party ticket was arrived at in accordance with the Constitution and Party Rules.

29. She claims that the 1st Respondent was served late and therefore was unable to express this position at the National Appeals Tribunal when the 4th Respondent filed an Appeal against the Party.

30. She maintains that it is evident from the fore going that the party’s preferred candidate for the electoral area in question is not the Complainant but the 4th Respondent.

31. That it is further evident that the subject primaries were conducted in error and due to the inadvertent oversight, the party asserts and implores this Honourable Tribunal to consider the Party’s Right to have its preferred candidate in the said electoral area.

32. On those grounds she wants the Claimant’s Complaint dismissed with costs.

33. This Tribunal notes that the 4th Respondents did not file a response to the complaint herein.

Issues for Analysis and Determination 34. Having read through the pleadings together with the annexures and this Tribunal having ascertained that it is well seized of the matter in accordance with Section 40 and 41 of the Political Parties Act the following are the issues the Tribunal has identified for determination in this claim:i.Whether there were nominations by way of Universal Suffrage for the position of Member of County Assembly Sarang’ombe Ward on an ODM ticket carried out on April 22, 2022ii.What orders can the Tribunal issue in the circumstances

Disposition Whether there were nominations by way of Universal Suffrage for the position of Member of County Assembly Sarang’ombe Ward on an ODM ticket carried out on April 22, 2022. 35. The Complainant is a registered member of the Orange Democratic Party and he was cleared to vie for the seat of Member of County Assembly Sarang’ombe Ward, Nairobi County after having paid the duly required nomination fees of Kshs 50,000/= and Kshs 25,000/= Life member fee evidence of payment has been produced.

36. It is not in dispute that on the April 22, 2022 the 1st Respondent through the 3rd Respondent organized and held party primaries for the nomination of candidates to the August 2022 General Elections.

37. It is also not in dispute that after the party primaries the Complainant emerged the winner amongst the 13 contestants with 720 votes against the 4th Respondent who came second and who garnered 611 votes. Thereafter the complainant was issued with a provisional certificate at the Tallying Center.

38. It is not in dispute that the said nomination was challenged by the 4th Respondent at the 1st Respondent’s Appeals Tribunal where after hearing the parties the Tribunal dismissed the complaint by the 4th Respondent and upheld the win by the Complainant and directed that the complainant be issued with the nomination certificate.

39. Following the determination of the Appeal at the 1st Respondent’s Appeals Tribunal the complainant has never been issued with the final nomination certificate as directed by the said Tribunal and even after winning the nomination at the Secret ballot

40. Instead of issuing the nomination certificate to the Complainant, the 1st ,2nd and 3rd Respondent are telling the Tribunal that the entire nomination exercise by way of universal suffrage on the April 22, 2022 was a mistake as it did not rank in priority as provided for in their nomination rules.

41. The 1st ,2nd and 3rd Respondents wants this Tribunal to believe that the nomination for Sarango’mbe was done by the Party’s Central Committee on April 21, 2022 and yet again the nomination exercise was carried out by the 2nd Respondent on April 22, 2022.

42. The 1st ,2nd and 3rd Respondents have alleged that issues of indiscipline are the reason that they refused to issue the nomination certificate to the Complainant yet the Complainant before being cleared went through a rigorous process of party vetting and even paid nomination fees.

43. The 1st, 2nd and 3rd Respondents cannot allow a very serious process like the nomination exercise to take place to the point where a winner is identified and issued with a nomination certificate and then turn around and say that it was a mistake. The nomination exercise is a process that the party prepares for in advance and therefore the doctrine of estoppel applies.

44. The allegations by the 1st ,2nd and 3rd Respondents are unclear and it seems to us that the intention was to deprive the Complainant his rights under Article 38 of the Constitution by denying him the nomination certificate.

45. The 1st ,2nd and 3rd Respondents cannot misinterpret their constitution to suit their circumstances. They had the opportunity to choose which method to use to get their preferred candidate and they chose the Universal Suffrage. Therefore, they cannot be allowed to go back to issuing direct nomination after conducting nominations through a universal suffrage mechanism.

46. In the circumstances it is clear that there was a nomination exercise which exercise upon completion identified the most preferred candidate for the seat of Member of County Assembly Sarang’ombe Ward who is the complainant herein.

What orders can the Tribunal issue in the circumstances 47. The Tribunal finds that the Universal Suffrage method that was used on the April 22, 2022 and identified a winner who is the complainant herein.

48. The complainant was issued with a provisional certificate thereafter at the tallying center and no sooner had he received it there was a complaint by the 4th Respondent at the Orange Democratic Party Appeals Tribunal, which upheld the nomination of the Complainant.

49. That According to the 3rd Respondent, the party resolved to void the complainant's nomination due to violence attributed to him and his unfitting character of indiscipline. In these instances, the questions we must consider are: what effect does the NEB's resolution have on the ODM Appeals Tribunal, and did the party give the complainant a fair hearing?

50. On the first question, the ODM tribunal is the party's sole judicial organ, with the mandate and obligation of resolving disputes arising from the party's primaries and nominations under Rule 10 of the ODM party primaries and nomination rules. The Political Parties Act makes it the sole organ that is specifically recognized.

51. Parties who are aggrieved by a nomination process must first resolve their issues with the party IDRM, and any party that is dissatisfied with the IDRM's decision may appeal to this Honourable tribunal.

52. No organ inside the Party has the authority to overturn the Tribunal's decisions. To entertain such a line of argument would be opening a Pandora's box, encouraging the undermining of the party’s own tribunal's and, by extension, the courts' judicial power. The court judgements will be rendered meaningless within the party's organs, which will choose which parts of decisions to follow and which to ignore, replacing them with their own conclusions.

53. This tribunal holds that if any party within the party hierarchy was dissatisfied with its own IDRM's decision, it should have appealed or applied for review rather than attempting to circumvent the decision by bringing in organs within the party structure to exercise judicial powers that they do not have.

54. On the second question, the ODM Rules have a detailed disciplinary mechanism and organs tasked with maintaining party discipline. The disciplinary committee is established under Article 8. 3 of the ODM constitution, and it has disciplinary powers. The 3rd Respondent has failed to present evidence that the Complainant was subjected to a disciplinary process and given a fair trial. As a result, the 3rd Respondent took over the functions of another organ in order to reprimand the Complainant. It is an act that goes against political party values of good governance, which include the separation of powers and the right to a fair trial.

55. Recently in differently constituted Tribunal in Complaint Number 003 Of 2022 Hon. Elisha Ochieng Odhiambo V Dr George Jalango Midiwo & 3 othersit was observed as follows: -'Political party organs mimic or approximate state organs in the fashion of Montesquieu’s hallowed doctrine of separation of powers. The party constitution creates, allocates, disperses powers, while creating checks and balances to the powers allocated. Judicial organs play a critical role in this framework of checks and balances. It is the vanguard and bulwark of the rights of members against potential excesses of the executive’s organs.'

56. The role of establishing suitable or eligible candidates for elections is reserved for the ODM NEB, and this role is supposed to be carried out to the expected standards of the party's nomination rules, and it will be considered dereliction of duty if the NEB clears a candidate to run and then deny him the nomination certificate on grounds of misconduct after he has been elected.

57. Even if we presume the 3rd Respondent was acting lawfully, it was their responsibility to guarantee that the universal basic standards of natural justice were followed, such as the right of a party who has been blamed for a wrong, in this case the complainant, to be heard before being condemned. There is no evidence to back this up; in fact, there is no evidence that the complaint was invited to the disciplinary processes, or he was invited and never showed up.

58. When a political party invites candidates and posts nomination notices, then instructs them to pay the application costs, the candidates have a legitimate expectation of a level playing field. It also guarantees the opportunity to hold a free and fair nomination process, as well as respect for the election results.

59. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others Petition Nos 14, 14A, 14B & 14C of 2014eKLRstated 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.'

60. The court inRepublic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR held as thus: -'A procedural legitimate expectation rests on the presumption that a public authority will follow a certain 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. Once a reasonable expectation exists the administrator is required to act in accordance with that expectation, except if there are public interest considerations which outweighs the individual’s expectation.'

61. If at all we were to be convinced that the 3rd Respondent issued a direct nomination the question we must ask ourselves is ‘did they comply with their own rules? The Orange Democratic Movement Party Primaries and Nomination Rules, 2021 specifically Rule 23 outlines the procedure to be followed before issuance of a direct nomination. The rule provides as thus:'Where direct nomination is the method to be applied, the NEB shall carry out a due diligence exercise to justify the use of this method. The due diligence exercise shall take into consideration any of the following:a.That there is consensus by candidates as set out above.b.Credible research has been carried out in regards to the relevant electoral area through a scientific survey conducted by a competent entity, to provide an evidence-based opinion that a particular candidate is best placed to deliver the relevant electoral seat for the Party.c.There is a confirmation that the aspirant is the only qualified candidate for the position that is the subject of the electoral exercise or stands elected.d.That such a direct nomination shall aid the Party to comply with the provisions of Article 81(b) of the Constitution of Kenya, 2010 as to gender thresholds provided that the candidate under consideration is qualified and capable of delivering the seat for the party 5. The Party Central Committee shall meet to consider and approve the list of persons to be given direct party nomination certificates after consideration of the report that shall have been compiled by the NEB in line with the provisions of the sub-rules on direct nominations.

6. Where the Party issues a direct nomination to a candidate the other candidates who had applied for that position shall be refunded the application fees paid.'

62. There is no evidence that a scientific survey was conducted. Further, no evidence was presented before us that the Party Central Committee met, considered and approved the list of persons to be issued with the direct party nomination Certificates after considering the report compiled by NEB, if there was any, in accordance with the rules. No evidence has been adduced that the Complainant has been refunded the application fee that he had paid. Therefore, the direct nomination issued to the 4th Respondent flies on the face of their own rules.

63. We find merit in the complainant’s claim.

64. In the circumstances we make the following orders: -a.The complaint herein is allowed.b.The decision of the 1st Respondent Appeals Tribunal is upheld.c.The decision by the 3rd Respondent to issue the 4th Respondent with a direct nomination is hereby declared null and void.d.The 1st, 2nd and 3rd Respondents are hereby directed to forthwith issue to the Complainant the final nomination certificate to contest for the Member of County Assembly for Sarang’ombe Ward, in any event within 24 hours of this order, and to forward his name to the Independent Electoral and Boundaries Commission.e.Ordinarily, this tribunal equates political parties with families and is reluctant in most cases to award costs against the members of the same party. But in the instant case, the respondents have caused unnecessary suffering to the complainant and therefore the 1st respondent ought to compensate the complainant in terms of cost of this proceedings and the Tribunal hereby so orders.

65. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MAY 2022. ………………………………………………………………HON. ERASTUS ORINA(PRESIDING MEMBER)……………………………………………………………HON. THERESA CHEPKWONY(MEMBER)……………………………………………………………..HON. DANIEL KAGACHA(MEMBER)