[2022] KEPPDT 951 (KLR)

Ogendo v Koech & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E023 (KSM) of 2022) [2022] KEPPDT 951 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 951 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E023 (KSM) of 2022

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

May 17, 2022

Between

Jackton Ojwang Ogendo

Complainant

and

Ratib Boiton Koech

1st Respondent

Odm National Elections Board

2nd Respondent

and

Independent Electoraland Boundaries Commission

Interested Party

Judgment

1. This matter concerns the nomination of the 1st Respondent as Candidate for the Member of County Assembly Nyalenda Ward for the Orange Democratic Party. Both the Complainant and the 1st Respondent were contestants in the said election. Being aggrieved by the results of the nomination, the Complainant challenged the nomination of the 1st Respondent before the ODM Appeals Tribunal (Appeal Case No 10 of 2022). The Tribunal rendered its judgment on the 25th of April 2022, nullifying the nominations conducted on April 19, 2022.

2. Despite the nullification, the Complainant claims that he received communication from one of his supporters; stating that ODM Party had already nominated the 1st Respondent, as a member of County Assembly Nyalenda Ward. The Complainant was aggrieved by this decision and approached this Tribunal.

3. Later on, the Complainant filed an application before us challenging the 2nd Respondent’s decision to issue the Nomination Certificate to the 1st Respondent, he filed a Complaint dated May 3, 2022, as well as an affidavit in Support dated May 6, 2022. The Applicant is seeking relief from this Honourable Tribunal.

4. The 1st Respondent filed a Response to the Complainant’s Claim, as well as a Notice of Preliminary Objection both dated May 11, 2022. He also filed a Verifying Affidavit dated May 11, 2022 verifying his Response.

5. The Complainant sought the following orders from this Tribunal:a.A declaration that the ODM Party primaries for Member of County Assembly Nyalenda a Ward held on the 19th of April 2022 were not free, fair and verifiable.b.A declaration that the election of the 1st Respondent as the ODM Party flag bearer for MCA Nyalenda A Ward was not free, fair and verifiable and therefore the nomination certificate issued to the 1st Respondent is null and void.c.An order directing that the nomination exercise for Nyalenda A Ward be repeated and the method to be used in the repeat exercise be simple, accurate and verifiable.

6. Mr Magina represented the Complainant, while Mr Onyango appeared alongside Mr Onyari for the 1st Respondent. Mr Magina confirmed serving the 2nd Respondent on 10th of May 2022, and that he had not served the interested party as he saw no need to have them in these proceedings.

The Complainant’s Case 7. In the main, the Complainant asks us to nullify the 1st Respondent’s nomination and, instead, to order a fresh exercise to be conducted by the 2nd Respondent.

8. Counsel for the Complainant began by stating that the Complaint is based on a failure to comply with the decision of the ODM Appeals Tribunal nullifying nominations for Nyalenda A Ward, on account of there being no elections in 3 Polling stations. He submitted that the elections therein could not be held to be credible as the voters were not given an opportunity to vote for their candidate of choice.

9. Moreover, he stated that the 2nd Respondent chose to avoid universal suffrage as a nomination method and instead chose to issue a direct nomination ticket to the 1st Respondent. Furthermore, that it was incumbent upon the 2nd Respondent, to involve all the parties in the matter of Direct Nomination. He avers that the only communication that was issued in that regard was a Facebook post stating that the 1st Respondent had been nominated as the direct nominee and that this nomination was in direct contravention of the decision of the Party Tribunal on the matter.

1st Respondent’s Case. 10. Mr Onyango for the 1st Respondent began by stating that he had filed a Notice of Preliminary Objection dated May 12, 2022 challenging the jurisdiction of this Tribunal to hear the matter. Whats more, Mr Onyari for the 1st Respondent submitted that we lack the requisite jurisdiction under Section 40 of the Political Parties Act, since there had been no exhaustion of the Party IDRM processes. He further elucidated that the issuance of a direct ticket nomination to the 1st Respondent herein was a new cause of action. Additionally, he suggested, that the issuance of the direct ticket nomination was well within the powers of the Party and that this was clearly set out under the rules of the Party.

11. He faulted the Complainant for having not attempted to engage the ODM Party for IDRM as required by Rule 5 of the ODM Party Primaries and Nomination Rules. Counsel cited the case of Samuel Owino wa Kiaga vs ODM and 2 others. Where initially, the ODM Party had awarded a direct ticket nomination and the ODM Party National Appeals Tribunal nullified the decision; in the matter the Political Parties Dispute Tribunal said that it didn’t have jurisdiction to hear and determine the matter.

12. He further advanced the point that the ODM Party Nomination Rules of 2021 provided for the alternative of Direct Nomination. Nonetheless, he conceded that the Complainant had appealed to the ODM Party Tribunal.

13. Counsel for the 1st Respondent averred that on the 27th of April 2022, communication regarding the conduct of direct nomination was communicated to all members of the party. He submitted that the effect of the foregoing was that this Tribunal could not proceed to determine the complaint. He cited the case of Owners of Motor Vehicle vs Lillian Sin support of his submission herein. Moreover, he submitted that the Complaint does not raise any new cause of action, since the Complainant had just lifted the complaint that was before the ODM Appeals Tribunal in its entirety and presented it before us. Counsel asked rhetorically, whether this Tribunal would be sitting as an Appellant Court to the decision of the ODM Appeals Tribunal in this instance?

14. Whats more counsel submitted that the complaint was filed out of time contrary to Rule 8 (1) of thePolitical Parties Dispute Tribunal (Procedure) Rules 2017, which requires that disputes be filed at least one day before the day set aside by the Interested Party for submission of names of the selected candidates to participate in the general election. Moreover, that since the Complainant did not seek extension of time in his pleadings the complaint should be dismissed.

15. It is the 1st Respondent’s submission that the ODM Party complied with the decision of the Appeals Tribunal pursuant to Rule 1 and Rule 23 of its nomination rules and that the allegations of non-compliance were not true. Furthermore, that since this Tribunal was not sitting as an appellant court it could not determine the matter and that since there are no prayers sought for nullification of the Direct Nomination Ticket, we cannot issue prayers not sought in the pleadings.

16. He sought the following orders from the Tribunal.I.An order dismissing the complaint with costs to the 1st Respondent.II.An order affirming the direct nomination of the 1st Respondent as the ODM Party Candidate for the Member of County Assembly for Nyalenda “A” Ward in the August 9, 2022 general elections.

Complainant’s Rejoinder 17. Mr Magina advanced that Rule 8 (1) of the Political Parties Dispute Tribunal Ruleswas clear instating, that a complaint should be filed within 14 days from the date of the decision at the Party Tribunal. In this instance this was on the 27th of April 2022 and that since the complaint was filed on 6th of May 2022, it was well within the deadline. Further, that on the issue of Direct Nomination, Rule 23 of the ODM Nomination Rules, was categorical on how direct nomination should be conducted. He submitted that the proper process was not followed by the party.

18. He further avers that no compelling reasons were issued by the Party to show why a direct nomination ticket was given to the 1st Respondent and not the other parties to the nomination process.

19. In conclusion, he submitted that this complaint was the same process that had been commence date the Party Tribunal and was not a new cause of action, he noted that once we decided the matter it would quash everything that the Party had done up to that point and hence cannot be considered to be an entirely new matter.

20. He urged the Tribunal to allow the complaint

Tribunal’s Analysis And Findings 21. 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 Jurisdiction to entertain this matter?ii.Whether the complaint is filed out of time?iii.Whether the Complaint herein is merited?iv.Who bears the costs of this case?

22. We will address the issues set out above in the sequence of their listing.

Whether this Tribunal has jurisdiction to entertain this matter? 23. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit ManufacturingCo. Ltd vs West End Distributors Ltd(1969) EA 696, where it was held that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

24. The issues raised by the 1st Respondent in his Preliminary Objection are on the competency of the proceedings, brought by the Complainant before this Tribunal. He submits that since the Complainant has not challenged the issuance of a direct ticket nomination to the 2nd Respondent, at the ODM Party Appeals Tribunal and or any other party organ, that the complaint is consequently premature as the remedy of exhaustion of internal dispute resolution mechanisms have not been exhausted to permit the Complainant to approach this Tribunal, and that as a consequence we lack the jurisdiction to hear this matter pursuant to the provisions of Section 40 (2) of the Political Parties Act.

25. The Complainant asserts, that this Tribunal has the jurisdiction to hear and determine this matter and that this complaint is a part of the same process initiated at the ODM Party Appeals Tribunal and it is therefore not a new cause of action. Furthermore, that the Complaint had satisfied the requirements set out under Section 40 (2) of the Political Parties Act for invoking the jurisdiction of this Tribunal.

26. The issue of jurisdiction is key as it is everything. In deed the learned court did inR 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.”

27. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

28. In Agnes Mukami and 5 Others Vs Ngewahi And Company (2005) Eklr the court stated that“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

29. A reading of Section 40 of the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that:40. (1) The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and a political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners; andf.appeals from decisions of the Registrar under this Act.(2)Notwithstanding sub section (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms”

30. From a reading of the above sections of the law, as well as the cited authorities it is clear that the dispute at hand, is a dispute between a member of a Political Party and a Political Party and therefore falls within the definition set out in Section 40(1) (b) of the Political Parties Act. The decision of whether this Tribunal has jurisdiction to entertain this matter thus falls to the question of whether the complaint herein can be considered as having attempted internal political partyIDRM.

31. We find that this honourable tribunal has the jurisdiction to hear this matter, and that the requirements of the provisions of Section 40 of the Political Parties Act have been satisfied. It is our finding that this is not a new matter but a continuation of proceedings that were commenced before the ODM Party Tribunal and that the complaint therefore, satisfies the requirement of having attemptedIDRM by dint of (Appeal No 10 of 2022) filed before the ODM Party Appeals Tribunal. Indeed, the party purported to issue the direct nomination in implementation of its Tribunal’s decision. Further, contrary to the view expressed by Mr Onyari, one need not exhaustIDRM before approaching the PPDT but only to attempt the same in good faith.

32. It is clear from the submissions and the pleadings filed before us that the Complainant has appeared before the Party Appeals Tribunal; we note that this fact is uncontroverted by the 1st Respondent. We hereby find that this Tribunal has the jurisdiction to entertain this matter.

33. The first limb of the Preliminary Objection is, thus, dismissed.

Whether the Complaint is filed out of time? 34. Mr Onyari further argued that the Complaint herein was filed out of time contrary to rule 8 (1) of the Political Parties Disputes Tribunal (Procedure) and Regulations 2017, which requires that the dispute be filed at least one day before the day set aside by the interested party for submission of names of the selected candidates to participate in the general elections pursuant to Section 31(2A) of the Elections Act.

35. Moreover, that Rule 8 (1) of thePolitical Parties Dispute Tribunal Rules, provided that a complaint should be filed within 14 days from the date of the decision, which is on the 27th of April 2022 and that since the complaint was filed on 6th of May 2022 it was well within the deadline.

36. A reading of Rule 8 (1) of the Political Parties Dispute Tribunal (Procedure) Regulations, 2017 states as follows:8. (1) A complaint against the decision of an internal political party dispute resolution mechanism arising out of political party primaries shall be filed with the Tribunal not more than fourteen days from the date of the decision, and in any case, at least one day before the day set aside by the Commission for submission of names of the party candidates who have been selected to participate in the general elections pursuant to section 31 (2A) of the Elections Act.

37. We are guided by the Constitution of Kenya 2010, Article 159 (2) (d) which states:159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.justice shall be done to all, irrespective of status;b.justice shall not be delayed;c.alternative forms of dispute resolution including reconciliation, Constitution of Kenya, 2010 mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.

38. As well as Section 41 (4) of the Political Parties Act 2011 as amended by the Political Parties(Amendment) Act 2022 which provides that:“The Tribunal shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80 Laws of Kenya) and the Civil Procedure Act (Cap. 75), with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities.”

39. Moreover, this Tribunal takes judicial notice of the fact that the interested party extended itsdeadline for the submission of names of candidates by candidates to Sunday May 14, 2022. This was done by way of a press release issued on the 10th of May 2022. In light of this development, it is clear that the Complaint was filed within the required deadlines provided in our Regulations. Furthermore, we hold that our jurisdiction is neither limited nor governed by the deadlines of theInterested Party, rather it is exclusively regulated by the provisions of the Political Parties Act 2017(as amended) by thePolitical Parties (Amendment) Act of 2022 from which we derive our jurisdiction.

40. We associate ourselves with the provisions of both the Constitution of Kenya as well as thePolitical Parties Act and Regulations and find that even if the dispute was not filed in the required time, this Tribunal is guided by the provisions of Article 159 (2) (d) of the Constitution of Kenya 2010 which provides, that courts shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities. We can think of no better example of a technicality than in this instance.

41. We therefore find that the complaint was filed in time and that this Tribunal is interested in providing substantive justice to the parties.

Whether the Complaint herein is Merited?Burden and Standard of Proof 42. InKenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Other (2012) eKLR: it was stated:Section 112 of the Evidence Act Chapter 80 of the Laws of Kenya provides:“In civil proceedings, when any fact is especially within the knowledge of a party to those proceedings, the burden of proofing or disproving that fact is upon him”

43. It was also stated in Joho v Nyange & another (2008) 3 KLR (EP) 500 that:“The burden of proof in election petitions lies with the Claimant as he is the person who seeks to nullify an election. While the proof has to be done to the satisfaction of the court, it cannot be said that the standard of proof required in election petitions is proof beyond reasonable doubt. Like in fraud cases, the standard of proof is higher than on a balance of probabilities and where there are allegations of election offences a very high degree is required.”

44. In ordinary proceedings the law is clear on where the burden of proof lies. This is well captured under the Evidence Act, Sections 107, 108 and 109 which provide as shown below:107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

45. The law on the burden of proof in electoral disputes was again restated by theSupreme Court in Presidential Petition No 1 of 2017 thus:“Thus, a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged. In this case therefore, it is common ground that it is the petitioners who bear the burden of proving to the required standard that, on account of nonconformity with the law or on the basis of commission of irregularities which affected the result of this election, the 3rd respondent’s election as President of Kenya should be nullified.Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant throughout a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting” and “its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”

46. From a reading of the above sections of the Evidence Act as well as the above stated authorities it is clear that the burden of proof lies upon the Complainant, as it is he who would fail if no evidence were to be given on either side. It is with the foregoing established legal propositions in mind that we address the grievances advanced by the Complainant.

47. The Complainant avers that by issuing a direct ticket nomination to the 1st Respondent, the 2ndRespondent failed to comply with the judgment delivered by the ODM Appeals Tribunal nullifying the nomination of the 1st Respondent as a candidate for Member of County Assembly for Nyalenda Ward. In his pleadings, he submits that the Party Tribunal directed the 2nd Respondent to conduct fresh nominations and or consider consensus building among the aspirants for the said nominations.

48. Furthermore, the Complainant was aggrieved by the Party’s decision to issue a direct nomination to the 1st Respondent without consultation or consensus building with him.

49. In his pleadings he put forward various irregularities as to how the elections were conducted, including: the availability of only one polling center during nominations; violence against his supporters and the area chief and a failure to declare the actual results of the election.

50. In response to these allegations the 1st Respondent argued that the ODM Party did not contravene the orders of its tribunal since the ODM Party Primaries and Nomination Rules provide for various alternative nomination methods and that the Party had elected to use direct nomination as its preferred method. Furthermore, that the complaint does not raise any new cause of action and that the complainant had just lifted the complaint that was before the Party Tribunal.

Res Judicata 51. In determining this matter, we relied on the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another(2016) eKLR, where the Supreme Court held as follows;“The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”

52. In the case of Omondi v National Bank of Kenya Limited and Others, (2001) EA 177 the Court held that,“Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the Court quoted Kuloba J., in the case ofNjangu v Wambugu and Another Nairobi HCCC No 2340 of 1991 (unreported) where he stated,‘If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata…...”.

53. We agree with the submissions of the 1st Respondent and note that the Complainant has copy pasted the same matters, that were before the Party Tribunal and that no party has appealed against the judgment. Consequently, those matters are res judicata. The Complaint here substantially consists of the same matters and the same prayers before the party’s tribunal, furthermore the complainant has not asked us to set aside the decision of the party tribunal. Moreover, there is no evidence that was produced before us to show that there was an inconsistency between the direct nomination of the 1st respondent and the orders of the ODM Party Tribunal. The Party Tribunal’s orders were open ended.

54. We hold that the Complainant has not proved his case to the standard required by law and hold that the Complaint lacks merit and is effectivelyres judicata.

Who bears the costs of this matter? 55. 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 56. In the upshot we make the following Orders:i.We dismiss the complaintii.Each party shall bear its own costs.

57. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 17TH DAY OF MAY 2022Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – PresidingHon. Fatuma Ali MemberHon. Walubengo SifunaMember