[2022] KEPPDT 1033 (KLR)

Oginga v Orange Democratic Movement & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E097 (NRB) of 2022) [2022] KEPPDT 1033 (KLR) (12 July 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1033 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E097 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

July 12, 2022

Between

Johnson Oduk Oginga

Complainant

and

Orange Democratic Movement

1st Respondent

National Elections Board Orange Democratic Movement

2nd Respondent

Anthony Maragu Muthoni

3rd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant is a member of the Orange Democratic Movement Party (hereinafter 'ODM Party') and was one of the aspirants for the position of Member of County Assembly (MCA) Karen Ward. He claims that notwithstanding his successful nomination to the subject position by way of consensus, the 1st and 2nd Respondents ignored his nomination and presented the name of the 3rd Respondent as its preferred nominee. He is aggrieved and has filed the instant Complaint seeking the following orders:-i.An order that the nomination of the 3rd Respondent as the ODM party nominee for MCA Karen Ward Nairobi is invalid, null and void and his nomination certificate dated May 28, 2022 is cancelled and set aside, and that order shall be effected forthwith, notice of which is hereby given to the interested party.ii.The 1st and 2nd Respondents are directed to appoint the Claimant, Mr Johnson Oduk Oginga, as its nominee for the position of MCA Karen Ward pursuant to the decision by consensus of the aspirants of June 6, 2022, to issue him with a valid nomination certificate, to place his name in the ODM party list for MCA Karen Ward, and that he be gazetted as the candidate for MCA Karen Ward in the general elections scheduled for the August 9, 2022. iii.A permanent injunction stopping the gazettement or enforcement or implementation of the gazettement of the 3rd Respondent Anthony Maragu Muthoni, as ODM Party’s MCA Karen Ward nominee/candidate pursuant to the nomination certificates dated May 28, 2022 declared invalid for the forthcoming general elections of the August 9, 2022. iv.Costs and interest.

2. Pursuant to the directions of the Tribunal, parties filed their respective responses and the matter proceeded for hearing on July 10, 2022 by way of oral submissions. The Complainant was represented by Mr Otieno Advocate and Mr Kibera Advocate both holding brief for Mr Ombwayo Advocate. The 1st and 2nd Respondents were represented by Mr Anzala Advocate, and the 3rd Respondent was represented by Mr Muketha Advocate. There was no appearance by the Interested Party who did not enter appearance despite service.

The Complainant’s Case 3. Party primaries for the position of MCA Karen Ward were held on April 22, 2022 when one Mr David Njilithia Mberia was declared the winner. This win was contested vide a dispute that was lodged at the ODM Party’s Appeals Tribunal vide Appeal Case No 33 of 2022. Vide Judgment delivered on April 26, 2022, the ODM Tribunal nullified the nomination and referred the matter to the 2nd Respondent. The 2nd Respondent nominated the said David Njilithia Mberia whose nomination was once again challenged before this Tribunal vide PPDT Complaint No E073 of 2022. In its Judgment delivered on May 14, 2022, the Tribunal found the complaint premature and the same was referred back to the party. The 1st and 2nd Respondents then informed the aspirants that consensus had been chosen as a mode of nomination. The aspirants were accordingly asked to engage in a consensus exercise which led to the nomination of the Complainant as the party’s nominee. Meanwhile on June 4, 2022, the interested party disqualified David Njilithia Mberia

4. The Complainant claims that notwithstanding his nomination, the 1st and 2nd Respondents ignored his nomination and instead presented the name of the 3rd Respondent to the interested party as the party’s nominee for the subject position. It is the Complainant’s case that the 3rd Respondent was not eligible for nomination as he had not attained one year as a life member of the 1st Respondent as at April 16, 2022 being the last date of the party primary nominations. He had applied to be a life member on May 6, 2021 and the 1st and 2nd Respondents accordingly erred in nominating him directly.

5. He further submits that the Complainant was not validly nominated on May 28, 2022 as purported by the 1st and 2nd Respondents since by that date, the 1st and 2nd Respondents had already nominated the said Mr. David Njilithia Mberia who was disqualified by the interested party on June 4, 2022. There is therefore no way the 1st and 2nd Respondents could have validly had two nominees simultaneously for the same position unless a nominee was imposed on a party as was in this case where the 3rd Respondent was imposed as the party’s nominee despite the Complainant and his co-aspirants refusing to accept the nomination.

6. The Complainant further submitted that the 3rd Respondent had been involved in voter bribery during his campaigns and thus violated the code of conduct on elections contrary to the requirements of a democratic electoral process.

7. The Complainant avers that the Respondents have acted in breach of Clauses 4(b) and (c) and Clauses 5(a), (c) and 6(a) of the Code of Conduct for Political Parties, by inter alia, failing to respect and uphold the democratic processes within itself.

8. The Complainant maintains that this Tribunal has jurisdiction to hear and determine this dispute under Section 40(1) (fa) of the Political Parties Act 2011 (PPA). He avers that after the interested party’s Dispute Resolution Committee ruling in IEBC DRC No 123 of 2022 referring the matter back to the party, he has sought audience with the 1st and 2nd Respondents over the Complaint dated June 7, 2022 that was filed with the interested party in vain.

The 1st and 2nd Respondents’ Case 9. The 1st and 2nd Respondents relied on the Replying Affidavit sworn by the Chairman of the 2nd Respondent, Ms Catherine Muyeka Mumma, on July 7, 2022.

10. It is the Respondents submission that the Tribunal has no jurisdiction to hear and determine this matter. At paragraph 9(e) of the Statement of Complaint, the Complainant admitted that the name of the 3rd Respondent had been forwarded to the interested party, a position which was confirmed at paragraph 14 of the Replying Affidavit sworn by Catherine Mumma and also evidenced vide letter to the interested party at page 11 of the 1st and 2nd Respondents’ Affidavit. Accordingly, the matter had transitioned from the realm of party nominations to the interested party thus taking away the jurisdiction of the Tribunal to adjudicate over the matter.

11. The Respondents relied on the recent decision of this Tribunal in PPDT at Kisumu Complaint No E017 of 2022 and another recent decision of the Court of Appeal delivered on July 8, 2022 in Civil Appeal No E389 of 2022 where it was held that once a candidate’s name has been forwarded to the IEBC, the tribunal has no jurisdiction to adjudicate over the dispute. The Respondents accordingly pray that the Complaint be struck out for want of jurisdiction.

12. The Respondents further submitted that party primaries for the position of MCA Karen ward that were conducted on April 22, 2022 were nullified vide ODM Appeals Tribunal decision rendered on April 26, 2022 and the matter was referred to the party’s National Elections Board (NEB) for action. They contend that with the referral of the matter to NEB, it fell within the ambit of NEB to determine the manner and mode of the subsequent nomination. The 1st Respondent’s Central Committee met and made a decision to call all the aspirants to discuss the issue of nomination for the position of MCA Karen Ward. In this regard, the Central Committee tasked the 2nd Respondent to reach out and meet with the aspirants with a view to reaching a consensus on the nomination method.

13. The aspirants met and failed to reach a consensus, thus occasioning the Central Committee to move to the next nomination method under Rule 8 of the applicable ODM Party Primary and Nomination Rules, being indirect nomination and which led to the nomination of David Njilithia Mberia. However, by a press release dated June 4, 2022, the IEBC notified the 2nd Respondent that it would not clear the said David Njilithia Mberia on account of his conviction. Taking into account the timelines, the 2nd Respondent went ahead and nominated the 3rd Respondent as the candidate for the position of MCA Karen Ward and his name was forwarded to the interested party on June 13, 2022 and he was cleared to vie.

14. The Respondents aver that it is not true that the 3rd Respondent was nominated on May 28, 2022 as alleged by the Complainant. They are not aware of any nomination of the Complainant by way of consensus by the aspirants and aver that no minutes of the consensus meeting or letter was forwarded to the 1st and 2nd Respondents in that respect. It is the Respondents’ further contention that the requirement of one year life membership was waived by the Central Committee whose extract of the minutes have been produced.

15. The Respondents maintain that the 3rd Respondent was eligible for and was validly nominated by the 1st and 2nd Respondents to vie for the position of MCA Karen Ward and that the claim lacks merit and is for dismissal.

The 3rd Respondent 16. The 3rd Respondent associated himself with the submissions by the 1st and 2nd Respondents.

17. He further submitted that the Complainant had not lodged any dispute with the party’s IDRM and that this Tribunal therefore had no jurisdiction to hear and determine the matter.

18. It was submitted that the 3rd Respondent was validly nominated and communication to that effect sent to the interested party vide the letter produced by the 1st and 2nd Respondents. Consequently, he appeared before the interested party on June 6, 2022 and was cleared to vie for the position of MCA Karen ward. The 3rd Respondent contends that the Complainant filed a complaint with the interested party’s Dispute Resolution Committee (DRC) and the same was dismissed.

19. On the question of eligibility, it was submitted that the 3rd Respondent was eligible to be nominated as the Central Committee waived the requirement of life membership of one year. The Respondent further submits that allegations of voter bribery as pleaded are serious allegations which cannot be prosecuted by way of affidavit evidence.

20. It is the 3rd Respondent’s prayer that the Complaint be dismissed with costs.

The Interested Party’s Case 21. The Interested Party neither entered appearance nor attended the hearing of the Complaint despite service.

Analysis and Determination 22. We have evaluated the evidence laid before us and distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has Jurisdiction to hear and determine the instant Complaint?ii.Whether the Complaint is merited?iii.What are the appropriate remedies in the present instance?

Whether this Tribunal has Jurisdiction to hear and determine the instant Complaint? 23. The Respondents have challenged the jurisdiction of this Tribunal in two respects, firstly, that given that the name of the 3rd Respondent had already been sent to the interested party for gazettement and further processes, the matter had transitioned from the realm of party nominations to the interested party thus taking away the jurisdiction of the Tribunal to adjudicate over the matter. Secondly, it was submitted that the Complainant did not in any event demonstrate an attempt to have the dispute resolved through the party’s internal dispute resolution mechanism (IDRM).

24. With respect to the status of the matter, all parties hereto have stated that the 3rd Respondent’s name had been forwarded to the interested party. A letter has been produced by the 1st and 2nd Respondents demonstrating the same. This fact is therefore not in dispute. The question that we need to address our mind to is whether the fact that the 3rd Respondent’s name had been forwarded to the interested party takes away the jurisdiction of this Tribunal.

25. This issue has not been without litigation. In a recent determination in the case of Hussein Wenton Mohamed Abdirahmed vs. Deka Ali Khala & 3 Others Civil Appeal No E326 of 2022, the Court of Appeal pronounced itself as follows:-'Despite the generality of Section 41(2) of the Political Parties Act, the jurisdiction to determine disputes relating to nomination (at party primaries) of party members for election is reserved either to the party’s internal dispute resolution mechanism pursuant to section 38(i); or, by reference to the Tribunal pursuant to section 40(1)(fa) of the Act; but, where a nominee’s name has already been submitted to the IEBC, and a dispute arises in that regard, then the process is deemed to have transited from party primaries to nominations, and accordingly, the jurisdiction to challenge the nomination lies with the IEBC pursuant to Article 88 (4)(e) of the Constitution.'

26. In another very recent determination by the Court of Appeal in the case of Nick Evance Okoth Ochola vs Ted Marvin Odhiambo & 3 Others Civil Appeal No E389 of 2022, the Court held as follows:-'The nomination process in which the appellant and the 1st respondent were involved had gone beyond the party primaries as the name of the appellant had been submitted to IEBC. The Jurisdiction of IEBC to determine the dispute between the parties had been invoked in accordance with Article 88 (4)(e) of the Constitution which stipulates that… The pleadings and the Affidavit evidence lead us to the inescapable conclusion that as at May 27, 2022, the appellant’s name had been submitted to IEBC as ODM’s nominee. It follows therefore that the process had transited from party primary to nomination as by law defined and that the jurisdiction to challenge nomination lay with the IEBC.'

27. Taking cue from the foregoing and noting that we are bound by the determination of the Court of Appeal on this issue, we find that we do not have jurisdiction to hear and determine this matter given that the 3rd Respondent’s name was already submitted to the interested party. As held by the Court of Appeal, the process had transited from party primaries to nomination as defined under Section 2 of the Elections Act.

Conclusion 28. As has been judicially underscored in numerous judicial authorities, jurisdiction is key and is everything. Having found that we do not have jurisdiction, we cannot move further and the only option left for us is to down our tools. We will therefore not proceed to analyze the rest of the issues as framed.

29. In light of the foregoing, we order as follows: -i.The Complaint herein be and is hereby struck out.ii.No orders as to costs.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JULY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)