[2022] KEPPDT 1003 (KLR)

Oduk & 13 others v Movement & 2 others; Independent Electoral & Boundaries Commission (Interested Party) (Cause E073 (NRB) of 2022) [2022] KEPPDT 1003 (KLR) (14 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1003 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Cause E073 (NRB) of 2022

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

May 14, 2022

Between

Johnson Oginga Oduk & 13 others

Complainant

and

Orange Democratic Movement

1st Respondent

National Elections Board, ODM

2nd Respondent

David Mberia

3rd Respondent

and

Independent Electoral & Boundaries Commission

Interested Party

Judgment

1. The complainants being aspirants for the nominee of the 1st respondent in respect of the position of Member of County Assembly (MCA), Karen Ward filed their complaint in the form of a plaint before the tribunal on May 7, 2022. By that complaint, they prayed that this tribunal: -i.Compel the 1st and 2nd respondents and the interested party to comply with the orders given on April 26, 2022 in ODM National Appeals Tribunal (NAT), No 33 of 2022;ii.Revoke the nomination certificate awarded to the 3rd respondent;iii.Disqualify the 3rd respondent as a candidate for the 1st respondent’s nominee for MCA, Karen Ward;iv.[Compel] the interested party to extend time for nomination of the 1st respondent’s candidate for MCA, Karen Ward;v.[Compel] the 1st and 2nd respondents to nominate one of the complainants as its candidate for MCA, Karen Ward.

The Complainants’ Case 2. In support of the complaint, the complainants filed an affidavit sworn by the 1st complainant. By that affidavit, the following facts were presented to the tribunal: that the eligibility of the 3rd respondent to vie as an aspirant had been challenged on account of his conviction in Milimani Anti-Corruption Case Number 7 of 2019 – Republic versus David Njilitha Mberia; on April 22, 2022. The sentence in this conviction included a bar to him holding public office; that on April 22, 2022, the 2nd respondent held primaries with the complainants and the 3rd respondent on the ballot; that those primaries were marred by malpractices and irregularities instigated by the respondents; that the 2nd respondent announced the 3rd respondent as the winner of those primaries and awarded him with an interim certificate; that the complainants dissatisfied with the results filed an appeal with the 1st respondent’s NAT, being Tribunal Appeal No 33 of 2022, which appeal succeeded (on April 26, 2022) with the NAT setting aside the interim certificate issued to the 3rd respondent and referring the matter back to the 2nd respondent to “take appropriate action noting to observe the necessary timelines as provided by the interested party.” Despite this judgment, the complainants state that they learnt about the nomination of the 3rd respondent and the submission of his name to the interested party. The complainants did not provide a copy of the certificate allegedly awarded to the 3rd respondent.

3. Through a supplementary affidavit filed on May 12, 2022, the complainants also provided a video recording to the tribunal which purports to show the 3rd respondent receiving a nomination certificate. The video is undated.

4. The complainants filed written submissions which were highlighted before the tribunal on May 12, 2022 by which they asked the tribunal to grant the prayers sought.

The 1st and 2nd Respondents’ Case 5. In response to the complaint, the 1st and 2nd respondents filed a replying affidavit sworn by Catherine Mumma, the Chair of the 2nd respondent’s National Elections Board (NEB) on May 11, 2022. By this affidavit, the 1st and 2nd respondents admitted the facts as stated by the complainants but denied that they had, further to the delivery of the IDRM judgment, issued the 3rd respondent with a nomination certificate, or submitted his name to the interested party. In summary, the 1st and 2nd respondents stated that they are yet to make any decision and submitted that the doctrine of ripeness applied to disallow the determination of the complainants’ dispute as it was premature. The 1st and 2nd respondents stated that they expected to resolve the impasse and make their decision further to the judgment of the NAT by May 16, 2022.

6. The 1st and 2nd respondents filed written submissions on May 12, 2022. They prayed that the complaint be dismissed with no order as to costs in the interest of party unity.

The 3rd Respondent’s Case 7. The 3rd respondent filed a replying affidavit and a response to complaint on May 11, 2022 and a further affidavit and written submissions on May 12, 2022. His case may be summarized as follows: that he had not, further to the judgment of the 1st respondent’s NAT,received a nomination certificate and therefore there was no valid dispute before this tribunal. He stated that the video provided by the complainants was likely taken on April 22, 2022 when he received the interim certificate which has since been set aside by the judgment of the NAT. He did not deny his conviction in Milimani Anti-Corruption Case Number 7 of 2019 – Republic versus David Njilitha Mberia but submitted that this conviction could not disqualify him from running for office given the provisions of article 193 (3) and 50 (2) (q) of the Constitution, and that he had already filed an appeal. He did not deny that the conviction aforementioned barred him from running for public office.

The Interested Party’s Case 8. The Interested Party filed neither pleadings nor submissions. At the hearing of May 12, 2022, the interested party stated that it had extended its timelines for the submission of names to May 23, 2022.

Issues for Determination 9. Having perused the pleadings, read the parties’ submissions and listened to the oral highlighting of those submissions at the hearing of May 12, 2022, the tribunal finds the following as the issues for determination: -i.Whether the dispute before the tribunal is ripe for determination; andii.Whether the orders sought by the complainant may be granted.

Analysis and Findings Whether the dispute before the tribunal is ripe for determination 10. The respondents submitted that the dispute herein has not “ripened” enough for it to be considered by this tribunal as no determination has been made on the 1st respondent’s candidate for MCA, Karen ward. The respondents cite the decision of the court in Republic v National Employment Authority & 3 others ex parte Middle East Consultancy Services Ltd [2018] eKLR in support of their submission. The complainants on the other hand claim that the 1st and 2nd respondents have issued a nomination certificate to the 3rd respondent hence the dispute is ripe for consideration by this tribunal.

11. In Kiriro wa Ngugi & 19 others v Attorney General & 2 others [2020] eKLR the court held as below in relation to the doctrine of ripeness: -““Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.”

12. Having considered the evidence before the Tribunal, we are persuaded that the 1st and 2nd respondents have not yet made a decision in accordance with the judgment of the 1st respondent’s NAT on April 26, 2022. The video clip produced by the complainants vide the supplementary affidavit of Johnson Oginga sworn on May 12, 2022 is undated. Given that it is not disputed that the 3rd respondent emerged the winner in the elections conducted on April 22, 2022, it is not possible to state with certainty that the video was taken after 26th of April 2022 and not on April 22, 2022 when the 3rd respondent emerged as the winner in the election exercise. The complainants have also not shown the tribunal any nomination certificate issued after April 26, 2022 when the nomination certificate issued to the 3rd respondent was set aside by the 1st respondent’s NAT. Conversely, the 1st and 2nd respondents have indicated that they will be making a decision on the matter on May 16, 2022.

13. On this basis, we find that there is no dispute between the complainants and the 1st and 2nd respondents as the said respondents have yet to render their final decision (see the decision of Republic v National Employment Authority & 3 Others ex parte Middle East Consultancy Services Ltd [2018] eKLR).

Whether the orders sought by the complainants can be granted. 14. Having found that there is no dispute capable of being determined before the tribunal, prayers number 2 and 5 of the complaint are incapable of being granted.

15. In respect of the complainants’ prayer for the tribunal to ‘disqualify’ the 3rd respondent from vying as a candidate for the 1st respondent’s nominee for MCA, Karen Ward, the tribunal has perused the judgment in Milimani Anti-Corruption Case Number 7 of 2019, Republic versus David Njilitha Mberia, as well as the ruling in ACEC Appeal No E005 of 2021 David Njilitha Mberia v Republic. The tribunal is of the view that the orders sought by the complainants in respect of the 3rd respondent’s qualifications to vie for public office are sufficiently addressed by those two decisions and the appropriate action for enforcement of those orders may be undertaken before the appropriate forum. The tribunal says no more about prayer number 3 of the complaint.

16. As the interested party stated that it has extended timelines for the submissions of names, prayer number 4 of the complaint is moot.

17. Given the timelines issued by the interested party and the circumstances of this matter, the tribunal finds that the complainants, even without a dispute ripe for determination, cannot be kept in limbo, awaiting the decision of the 1st and 2nd respondents (see section 4 (1) of the Fair Administrative Actions Act, 2015 which provides for the right to expeditious administrative action). There must be a point of departure from the doctrine of ripeness within the realm of Fair Administrative Action. However, the interested party is not bound by the judgment of the 1st respondent’s NAT and the tribunal accordingly declines to issue any orders against the interested party.

18. In the circumstances, the tribunal finds it appropriate to issue timelines for compliance with the orders of the 1st respondent’s NAT. This is in accordance with the tribunal’s inherent jurisdiction under section 3A of the Civil Procedure Act which applies to this tribunal by virtue of section 41(4) of the Political Parties Act. The tribunal therefore allows prayer number 1 of the complaint in terms of directing the 2nd respondent to make a determination on the position of its candidate for MCA, Karen ward expeditiously and in any event not later than May 16, 2022.

Orders 19. The tribunal thus makes the following orders: -a.The 2nd respondent shall make a determination on the position of the 1st respondent’s candidate for MCA Karen ward in accordance with the Constitution of the 1st respondent, its nomination rules and all relevant laws by May 16, 2022 at 5:00 pm and communicate this determination to the Complainants;b.In the event that the 1st and 2nd respondents decide to conduct a nomination exercise in respect of MCA, Karen Ward, such nomination exercise shall be conducted and concluded in accordance with the Constitution of the 1st respondent, its nomination rules and all relevant laws, by May 18, 2022, at 5:00 pm;c.The complaint is otherwise dismissed;d.In the interests of party unity and given the fact that the complainants were, in part, acting under the imperatives under article 3 (1) and chapter 6 of the Constitution, the tribunal orders that each party will bear its own costs.

DATED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MAY 2022. GAD GATHU(PRESIDING MEMBER)WANJIRŨ NGIGE(MEMBER)DR. LEONARD KINYULUSI(MEMBER)