[2022] KEPPDT 1057 (KLR)

Odongo v Orange Democratic Movement (NEB) & another (Complaint E001 (KK) of 2022) [2022] KEPPDT 1057 (KLR) (27 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1057 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (KK) of 2022

M Lwanga O, Presiding Member, T K Tororey & L Wambui, Members

April 27, 2022

Between

Kepher Ojil Odongo

Complainant

and

Orange Democratic Movement (NEB)

1st Respondent

Njiro Mwangu Elegwa

2nd Respondent

Judgment

1. The Complainant is a member of the 1st Respondent political party; the Orange Democratic Movement Party. On the 6th of April 2022 he filed a complaint under certificate of urgency accompanied by a notice of motion supported by his own affidavit together with a plaint, verifying affidavit, list of witnesses, list of documents and a bundle of documents as annexures.

2. The 1st Respondent is the National Elections Board of the said political party. The 2nd Respondent is also a member of the said Orange Democratic Movement party. Both the Complainant and the 2nd Respondent are aspirants for the Member of County Assembly seat on an Orange Democratic Movement ticket, for the Luanda South Ward in Vihiga County Assembly.

3. The Preliminary Objections filed by the Respondents having been determined and the pending Notice of Motion application filed with the Complaint herein having been dispensed with parties consented to proceeding with the substantive Complaint, by way of written submissions and brief oral highlights of the same.

4. The Complaint is premised on the fact that the 1st Respondent did announce through a media advertisement that it would conduct party nominations on 12/04/2022 and proceeded to accept applications/expressions of interest for consideration from interested members of the said political party.

5. Subsequently the said nomination process has been bogged with opaqueness and confusion and has thus occasioned the Complainant to file this suit, where he prays:a.That the court be pleased to nullify the purported direct nomination certificate issued to Kelvin Njiro Mwangu Elegwa for Luanda South Ward in Vihiga Countyb.That the court be pleased to order the party to conduct a free and fair party nomination exercise for its candidate in Luanda South Ward in the coming general elections to be held on 09/08/22c.That the court in ordering prayer (b) above to also order that the Complainant herein KEPHER OJIL ODONGO be allowed to participate in the said party nominations where party members [registered] will choose the candidate of their choice.d.In the alternative the party be ordered by this honorable court to give the direct nomination certificate to Kepher Ojil Odongo for the Luanda South Ward as the record as a party member gives him an edge over the other aspirantse.Costs of this suitf.Any further relief that the honorable court may deem fit and appropriate in the circumstances of the case

6. The 1st and 2nd Respondents filed their respective Replying Affidavits, further affidavits, written submissions and supplementary affidavits in response to this complaint following which oral highlights presented.

The Complainants’ Case 7. The Complainant submits that in response to the political party’s call to its membership to express interest in the party ticket for Vihiga within which the ward in issue is situate, he did submit all required documents including the clearances from the various government agencies and also made payment of the requisite fees.

8. On the 27th March 2022, a date well before the advertised party nominations, aspirants were invited to a consensus meeting at Sosa Resort in Vihiga County.

9. The Complainant lodged his dissatisfaction with the choice of identification of the party flag bearer for the said Luanda South Ward as he (the Complainant) was popular on the ground. His displeasure was outlined in his letter to the ODM National Nomination Committee.

10. A second consensus seeking session, in pursuit of a party nominee for the said ward was conducted at Ebusakami Girls Secondary School on 11/4/ 2022 when again no consensus was arrived at. The Complainant has uploaded unsigned minutes allegedly recorded by the Returning Officer of the said date.

11. It is the Complainants case that the 1st Respondent has failed to take into account his interest/concerns and as such has denied him an opportunity to take a stab at representing the party in the MCA position in the coming general elections.

12. It is his submission, that the two meetings merely occurred because he had raised concerns when rumors were rife that the party ticket had already been issued to the 2nd Respondent and as such no serious consensus was sought by the party.

The 1st Respondents Case 13. It is the 1st Respondents case that the Complainant has not subjected this complaint to the party organ in line with the Orange Democratic Movement, Appeals Tribunal (Practice and Procedure) Rules, 2022. It is therefore their submission, that the matter is prematurely before this Tribunal.

14. Further, it is the 1st Respondent’s submission that the meetings conducted cannot amount to dispute resolution as anticipated under the party laws as these were merely processes to identify the party flag bearer for the said ward. Any party dissatisfied with the outcome of the said consensus building process could then seek recourse with the right party organ [that is the Appeals Tribunal].

15. The 1st Respondent has, through a Replying Affidavit sworn on 25th April 2022 by Catherine Mumma, the Chairperson of the 1st Respondent, averred that the complaint is based on rumours and allegations and that the Complainant has not shown how any law has been broken.

16. It is the crux of the 1st Respondents submissions that the complaint is anticipatory as nomination is yet to be done.

17. In any event, the Respondent submits that under part 3 rule 18 of the party nomination rules, the party can opt to make direct nominations and if they chose to so do it would be well within their rules and laws.

18. The 1st Respondent thus asks that the complaint be dismissed with costs.

The 2nd Respondents case 19. The 2nd Respondent avers that he is a life member of the ODM party and an aspirant for the ODM ward representative position for the ward in issue. He goes on the aver that the party has, to the best of his information and knowledge followed their laid down nomination rules.

20. The said 2nd Respondent further submits that the Complainant has jumped the gun and should have addressed his concerns if any with the party which has full information and is best placed to first address the matter.

21. He submits that the party would, in any event, be well within the law to directly nominate a representative for the position in issue

22. He thus prays that the complaint be dismissed with costs.

ISSUES FOR DETERMINATION 23. The Tribunal has considered all the pleadings as well as the submissions filed by the parties including issues that they submit need be considered and identified the following as the issues for determination:i.Whether this Tribunal has jurisdictionii.Whether the Complaint has established a case worthy of the orders soughtiii.What orders should issue?

ANALYSIS AND DETERMINATION Whether This Tribunal Lacks Jurisdiction 24. Whereas it is not contested that the parties before this Tribunal have right of audience having properly been identified as persons over whom this Tribunal can exercise jurisdiction, all being members of a political party, the question of jurisdiction turns on section 40 (2) of the Political Parties Act [PPA].

25. The current wording of section 40 (2) PPA states as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

26. In effect what is in question is whether first available remedy was exhausted or even applied. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly vs Karume (1992) KLR 21. The said Court went on and clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR as follows:It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

27. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic vs. National Environment Management Authority, Civil Appeal No. 84 of 2010, as follows: ...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

28. Where then does the contention lie? In our considered view, while section 40 (2) has been amended, the fundamentals that informed the need for IDRM being the first port of call remain intact. The need to underwrite party harmony and cohesion while ensuring strong structures of democratisation within political parties remains critical.

29. It is not disputed that there has been an ongoing nomination process in reference to the ward in issue. What remains unclear is whether the meetings called by the 1st Respondent and in which the Complainant was present were dispute resolution processes or ongoing consensus building. We must say that the parties, in their submissions have not been clear on this. The Respondents contend that the party candidate is yet to be determined/identified and no certificate is issued. The process of identification of the candidate is not revealed by the Respondents. However, what is clear is that the Complainant submitted, a number of times, his written dissatisfaction with the manner in which the said nomination process was proceeding. The 1st Respondent has not refuted receipt of these communication from the Complainant, other than describing them as being full of rumours.

30. In his letters to the party the Complainant states that the consensus building is riddled with opaqueness and further that the so called consensus meetings were called in response to and to address his concerns with the process.

31. The Complainant in showing his attachment and understanding of his party has attached in his bundle of documents a receipt for Kshs. 20,000 being life membership payment, a letter to the party dated 25 February 2022 alleging rumours of ticket having been issued to the 2nd Respondent, another letter dated 23rd March 2022, addressed to the Chairman National Nomination Committee again making reference to issuance of certificates contrary to ODM elections and nominations rules adopted in 2014. We have noted that attached to his affidavit in support of his Notice of Motion application filed together with this complaint is a receipt dated 7. 3.22 for nomination fees Luanda-Vihiga together with his nomination form for the position in dispute. Also attached are the party nomination and elections rules adopted in 2014 which he has referred to in his pleadings.

32. In determining whether the letters by the complainant could have been the cause for the meetings. And in trying to understand the actions of the 1st Respondent in so far as the nomination is concerned, we have looked at Part 12 of the ODM Appeals Tribunal [practice and procedure] rules, on ‘Appeals’ presented by the 1stRespondent, which provides as follows;1. All appeals to the Tribunal shall be done only through electronic means details whereof shall be communicated to all parties through the Party’s website.2. Appeals to the Tribunal shall be filed by presenting a statement of appeal signed by the appellant and/or recognized representative in the Form AT 2. 3.An aspirant who is aggrieved by the decision of an election official in respect of party primary election and/or nomination of candidates, may appeal to the Tribunal within thirty six hours of notice of the decision.4. Where any decision or order by an election official is appealed against, the execution of decision or order shall be stayed until the Tribunal has fully heard and determined the appeal.

33. The Complainant has attached several letters directed to the party raising concerns with the nomination process and its outcome. The Respondents aver that these are mere allegations and rumours but have on their part attached nothing to show this Tribunal the progress of the said nomination despite not controverting the fact that there was an ongoing nomination process. They lay emphasis on the fact that no certificate has issued. We do note that the Complainant attached unlabelled picture claiming that it shows the 2nd Respondent and other candidates in the county holding their certificates. We do not place any weight on this picture, but do take note of the fact that the Respondents persistently state that nominations have not concluded.

34. Where then should the scales tilt? It is our finding that the scale tilts in favor of the Complainant, he did legitimately attempt to initiate some internal party dispute resolution process and we are thus properly seized of this matter.

Whether The Complainant Has Established A Case Worthy Of The Orders Sought 35. From our analysis of the process above, we note that the Complainant has been hyper vigilant throughout the nomination process that is in issue. He seems not to be new to his party’s mode of conducting such nominations, for as we have noted from his annexures and bundle of documents, he has in previous elections paid to participate in other ODM nomination processes [reference to receipts for nomination dated 2012 and 2016]. In reference to the instant case, he has presented his case including his personal records of what transpired as the party proceeded to identify its candidate for the position in issue. His evidence are labelled mere rumours by the Respondents, who have, on the other hand, not presented their record of the undisputedly ongoing nomination process, which they submit is yet to result in the issuance of a ticket to any candidate. For, we have noted, it is not disputed that ODM has expressed interest in presenting a candidate. It is also a fact that political party nominations were ongoing. We, thus have only the case of the Complainant to guide us as to what the process, if at all, has been.

36. The evidence before us does not open the nomination process to any external scrutiny by a third party, particularly given that the 1st Respondent who would have been best placed to provide such clarity offers no insight into the process. We must however ask whether the evidence before us warrants issuance of orders as sought by the Complainant.

37. We have seen no evidence of any process supported by laws of the party that could identify a clear nominee of the party.

38. The 1st Respondent submits that the burden of proof lies with the Complainant and he has failed to discharge it. It is within public knowledge that political parties are currently conducting their nominations so as to identify the candidates who will fly their flags in the coming general elections. In deed the said 1st Respondent did submit through the affidavit sworn on its behalf by one Catherine Mumma, the Chairperson of the 1st Respondent, that they had various nomination options in their relevant rules and law . The said 1st Respondent did not indicate what option they had applied despite their knowledge that electoral process at this stage of the electoral cycle are subject to tight time lines. In deed we have taken note that the party rules [at 18. 2 of their said nomination rules] requires that information as to the mode of elections be relayed to the membership at least 21 days before the party nominations.

39. Has the Complainant been rush? In assessing this we are guided by the wisdom in Mohamed Farrah –vs- Kenya Ports Authority [1988-1992] 2 KAR 283 where the court opined that a man is not bound to wait until disaster befalls him and then attempt to extricate himself from it. He is entitled, and indeed bound, if he is not to be guilty of any contributory negligence to take reasonable precautions to avoid injury to himself.

40. The Complainant has shown, within his capacity, what opaqueness may subsist in the nomination process in issue. The Respondents have on the other hand stuck to their position that the process has not concluded without shedding any light as to where or at what stage the nomination is. This even as they filed their affidavits at a date when presumably party nominations should have concluded, unless otherwise. The only document we have to refer to as to the party date for nomination, is the party notice annexed by the Complainant in his bundle of documents and remains uncontroverted. Kimaru, J in William Kabogo Gitau vs.George Thuo & 2 Others [2010] 1 KLR 526 stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

41. We are thus persuaded to lean to the side of the Complainant to the extent that there is opaqueness in the process that would raise question to its likelihood to credibility in outcome.

What Orders Should Issue? 42. Although the Complainant has shown that his concern with the process is justified, what orders are just in light of the evidence placed before this Tribunal? There is clear evidence that the party advertised for members to express interest in participating in the party nomination process to identify its flag bearer in the coming general elections scheduled for 9 August 2022.

43. It is also clear that at least two members expressed interest in representing the party at the coming general elections for the ward in issue. The party has not revealed the total number of persons who expressed interest.

44. Every registered political party has a right to participate in elections and in deed its members have a right to fair chance to securing the party ticket, in a manner clearly outlined under the party laws and that is in line with the spirit of the laws of the land.

45. The process in issue before us cannot be described as a legitimate process that adheres to the rule of law.

DISPOSITION 46. In light of our findings above we make the following orders:a.That the ODM National Elections Board conduct a nomination process in line with the provisions of rule 18 of the ODM elections and nominations rules as adopted in 2014, in Luanda South Ward in Vihiga County.b.That the cost of the complaint be awarded to the Complainant jointly as against the Respondents.c.That notification of this decision issue to both the office of the Registrar of Political Parties [ORPP] and the Independent Electoral and Boundaries Commission [IEBC].

DATED AT NAIROBI THIS 27TH DAY OF APRIL 2022M. LWANGA. O. (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)