[2022] KEHC 9833 (KLR)

Oguma v Opiyo; National Election Board ODM Party & 2 others (Interested Party) (Civil Appeal E034 of 2022) [2022] KEHC 9833 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9833 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E034 of 2022

JN Kamau, J

July 13, 2022

Between

Zakayo Ongondo Oguma

Appellant

and

Geoffrey Otieno Opiyo

Respondent

and

National Election Board Odm Party

Interested Party

Orange Democratic Movement Party

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

Ruling

Introduction 1. On May 27, 2022this court delivered its Judgment herein directing the 1st and 2nd Interested Parties to conduct fresh nomination by way of universal suffrage within seventy two (72) hours from the delivery of the said Judgment and only to employ any other nomination method with the consent of all the candidates who participated in the nomination exercise.

2. In his Notice of Motion dated and filed on June 21, 2022, the 1st Respondent sought for orders that pending the hearing and determination of the application herein, an injunction be issued restraining the 3rd Interested Party, its agents and/or employees from gazetting the name of the Appellant as the 2nd Interested Party’s candidate for the position of the Member of County Assembly for South Kasipul Ward in Kasipul Constituency within Homabay County.

3. He also sought orders that one Hon Catherine Muyeka Mumma, the Chairperson of the 1st Interested Party and one Rose Obari, the 3rd Interested Party’s Returning Officer for Kasipul Constituency, be held in contempt of court for willful disobedience of the court Judgment and orders issued on May 27, 2022, and upon being held in contempt, the said persons be jailed for a period of six (6) months or such period the court may deem fit.

4. In the alternative, he prayed that this court be pleased to mete out such punishment as it may deem appropriate to the contemnors and they be ordered to purge the contempt.

5. On June 21, 2022, he swore an Affidavit in support of his said application. He also swore a Further Affidavit on 3rd July 2022. His case was that after the delivery of Judgment and orders of May 27, 2022, he properly served the contemnors with the said orders but that they defied the same. He added that Rose Obari proceeded to clear the Appellant as the 2nd Interested Party’s candidate for the position of Member of County Assembly of South Kasipul Ward.

6. He contended that he and the citizens (sic) of South Kasipul were therefore unjustifiably prevented from enjoying the Judgment of the court to be given an opportunity to constitutionally elect their leader. He termed the actions of the contemnors as heavily tainted with illegality, irrationality, procedural impropriety and reasonableness.

7. In opposition to the said application, onJune 28, 2022, the Appellant filed a Replying Affidavit that he swore on June 24, 2022. It was his case that the 1st Respondent failed to disclose that he had filed a similar application at the Political Parties Disputes Tribunal (PPDT) which was dismissed for non-attendance wherein he sought to have the same reinstated.

8. He was apprehensive that in the event the latter application was allowed, there would be a possibility of conflicting outcomes. He stated that the 1st Respondent had deliberately failed to inform the court of the actions that he and the Interested Parties had taken to comply with the impugned orders.

9. He pointed out that before this Appeal was determined the Interested Parties convened a consensus meeting on May 19, 2022where all the aspirants voted for him and he emerged the winner. He added that the 1st Respondent actively participated and that it was at the instant of losing that he disputed the process.

10. He was emphatic that at the time of the delivery of this court’s Judgment, the Interested Parties had complied with the orders of court by engaging all the aspirants who had agreed on what mode of nomination to apply. He urged the court to dismiss the 1st Respondent’s application with costs to him.

11. Abdullahi Diriye, a Commissioner at the 1st Interested Party swore a Replying Affidavit on June 26, 2022 on behalf of the 1st Interested Party herein. It was their case that the 1st Respondent’s application was incompetent and an abuse of the court process as the alleged contemnors were not parties to these proceedings, that the 1st Respondent had not tendered evidence of personal service upon the alleged contemnors and that neither the Judgment of the PPDT nor that of the High Court directed them to undertake specific actions.

12. It added that there was inordinate delay in filing the said application which hampered the efficacy and efficiency of the administration of the 3rd Interested Party in the upcoming elections.

13. On June 24, 2022, Rose Obari, Returning Officer Kasipul Constituency, swore a Replying Affidavit on behalf of the 3rd Interested Party herein. The 3rd Interested Party averred that an election process was dictated by timelines and that on January 20, 2022, its Chairman gazetted the electoral timelines in Kenya Gazette Notice Number 435/2022. It added that it had finalised the hearing and determination of nomination disputes and was now in the process of gazetting the names of the candidate as nominated.

14. It was its case that by dint of Article 38 of the Constitution the voters of South Kasipul Ward had the political right to know who their candidate for election of Member of the County Assembly would be and therefore, this dispute had of necessity to come to an end. It was emphatic that it did not in any way participate, engage and/or conduct the impugned party primaries. It added that in its decision of May 27, 2022, the court did not direct it to act in any manner whatsoever and thus the orders that had been sought against it had no basis at all.

15. It further contended that on June 7, 2022, the Appellant presented himself for nomination as was directed by the 2nd Interested Party and on the basis of the documents he carried along, it proceeded to clear him for the 2nd Respondent’s Member of County Assembly for South Kasipul Ward. In this respect, it averred that the 1st Respondent had deliberately misled the court and was guilty of non-disclosure of material facts.

16. It added that he failed to disclose to this court that the 1st Respondent had filed a similar application before the PPDT being PPDT No 012 of 2022 (Kisumu) Geoffrey Otieno Opiyo vs Zakayo Okuma and Others and a further complaint at the Dispute Resolution Committee which were both dismissed.

17. It was emphatic that the court having delivered its Judgment and the same perfected, it was now functus officio. It urged the court to dismiss the said application with costs.

18. The Appellant’s submissions were dated July 4, 2022and filed on 5th July 2022. The 1st Respondent’s Written Submissions were dated July 3, 2022. The 1st and 2nd Interested Party Written Submissions were dated July 4, 2022 while those of the 3rd Interested Party were dated July 6, 2022.

19. The Ruling herein is based on the said Written Submissions which parties relied on in their entirety.

Legal Analysis 20. The 1st Respondent submitted that the conditions for granting an injunction were settled in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358 where the court stated that firstly, an applicant must show a prima facie case with a probability of success, a likelihood of him suffering irreparable loss which could not adequately be compensated by an award of damages if the injunction was not granted and that if the court was in doubt, the court would determine an application for injunction on a balance of convenience.

21. He submitted that the Interested Parties deliberately failed to honour this court’s decision which established a prima facie case against them. He added that being that he was one of the contestants for nomination exercise conducted in respect of South Kasipul Ward by the 2nd Interested Party, failure by the Interested Parties to abide by the decision of the court denied him his constitutional political right to vie and be elected in his ward as a result of which he was likely to suffer irreparable harm which could not adequately be compensated by an award of damages.

22. He added that as this court had already delivered a decision in this matter, there was no doubt that it would determine the application on a balance of convenience and in his favour.

23. It was his case that this court issued orders on May 27, 2022directing the 1st and 2nd Interested Parties to conduct fresh nominations by way of universal suffrage within seventy two (72) hours of its Judgment and only to employ any other nomination method with the consent of all the candidates who participated in the nomination exercise.

24. He argued that the alleged meeting of May 19, 2022by the Interested Parties was purposely called to try to settle the issue out of court and it was way before this court’s decision. He submitted that when it was concluded there was no consensus from the aspirants, the Chairperson of the meeting informed all the aspirants that the matter would be referred to the Central Committee for further deliberations as clearly indicated in the minutes annexed to the affidavit of Abdullahi Diriye on behalf of 1st and 2nd Interested Parties.

25. He further contended that one Oliver Tambo Bhibhi’s affidavit evidence corroborated his evidence that there was no consensus and as such the only option available for the 1st and 2nd Interested Party was to conduct fresh nomination by way of universal suffrage. To buttress his point, he added that even after the meeting of May 19, 2022, both the Appellant and the Interested Parties continued to prosecute the appeal and a decision rendered on May 27, 2022 which was way after the meeting of May 19, 2022.

26. He pointed out that the matter before the PPDT was a contempt application and not connected to the matter before this court and that in any event, on May 28, 2022, in its Judgment, the PPDT found that the Chairperson of the 1st Interested Party was in contempt of the Tribunal’s orders and was given an opportunity to purge the contempt.

27. He was emphatic that the orders of this court had not been complied with and the Interested Parties were trying to circumvent the wheels of justice to defeat the sound judgment of the court. He added that if the 1st and 2nd Interested Parties had been dissatisfied with the orders of the court, then nothing prevented them from appealing the said orders.

28. He further submitted that the issue of contempt of court’s Judgment should be pegged on terms of the Judgment, whether the contemnors knew of the terms of the Judgment and their failure to comply with the Judgment. In this respect, he placed reliance on the case of Samuel M. N. Mweru & Others vs National Land Commission & 2 Others [2020] eKLR where the court therein held that it was an established principle of law that in order to succeed in civil contempt proceedings, the applicant had to prove the terms of the order, knowledge of these terms by the Respondent and failure by the respondent to comply with the terms of the order.

29. He contended that the Interested Parties were served with a copy of a letter outlining the outcome of the Appeal and a copy of the Judgment through his Advocates. He added that the alleged contemnors were served by the 1st Respondent’s Advocates through WhatsApp and Email pursuant to provisions of Order 5 Rule 22B of the Civil Procedure (Amendment) Rules, 2022.

30. He was emphatic therefore that the Interested Parties ought to have learned the contents of the Judgment but they deliberately chose to ignore the contents of the Judgment and proceeded to gazette the Appellant onJune 7, 2022for the position of Member of County Assembly of South Kasipul Ward.

31. He pointed out that though the 3rd Interested Party claimed that the court did not mention or direct them in any way whatsoever, the Judgment affected all the parties in the Appeal and therefore the 3rd Interested Party ought to have waited for the 1st and 2nd Interested Parties to conduct a fresh nomination before clearing and gazetting the Appellant.

32. He explained that he had proved beyond a balance of probability the ingredients that one must prove for the court to issue an order of committal against a contemnor hence his application should be allowed.

33. He urged the court to direct that the costs of his application be borne by the contemnors. In this regard, he placed reliance on the case of Republic vs Rosemary Wairimu Munene, Ex-parte Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No 6 of 2014 (eKLR citation not given) where the court held that the issue of costs was the discretion of the court.

34. On his part, the Appellant relied on the case of Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others [2014] eKLR where the court pointed out that leave now called “permission” was not required where committal proceedings related to a breach of a judgment, order or undertaking. On that basis, he submitted that the 1st Respondent’s application was therefore incompetent and an abuse of the process of the court as it was premised on a non-existent procedure and therefore a nullity. In this regard, he placed reliance on the case of Macfov vs United Africa Co Ltd 3 All ER 1169 where the court held that if an act was void, then it was a nullity in law.

35. He further relied on Halsbury’s Law of England, Vol 9(1) 4th Edition and several cases amongst them the case of North Tetu Farmers Co Ltd vs Joseph Nderitu Wanjohi [2016]eKLR where the court laid out the four (4) elements that must be proved to make out a case civil contempt as being that the terms of the order must have been clear and binding on the defendant, that the defendant had knowledge or proper notice of the terms of the order, that the defendant had acted in breach of the terms of the order and that the defendant’s conduct was deliberate.

36. He also cited the case of Mutitika vs Baharini Farm Limited [1985] KLR 229, 234 where the court stated that the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. He argued that the only evidence that the 1st Respondent had placed before the court was the existence of the court order issued on 27th May 2022 and that the service via email was service on an electronic platform which is governed by Section 106B of the Evidence Act (Cap 80) and requires that a Certificate be made of any document printed from an electronic device.

37. He pointed out that the exhibits GO 2, GO4 and GO 5 being the email extract, the WhatsApp extract and photographs that were purported to have been generated from an electronic device were not accompanied with the requisite certificate and hence inadmissible in quasi-criminal proceedings as this.

38. He contended that the impugned application had not meet the threshold on the standard of proof of contempt of court orders and urged the court to dismiss the same with costs.

39. On their part, the 1st and 2nd Interested Parties submitted that the 1st Respondent’s application was irreparably defective as it violated the rules of natural justice as espoused under Article 50(2)(b)(f)(j)(k) and 50 (3) of the Constitution of Kenya. They added that it was trite law that contempt proceedings were in the nature of criminal proceedings and in that respect placed reliance on several cases among them the case of Sheila Cassat Issenberg & Another vs Antony Machatha Kinyanjui [2021] eKLR and the case of Jonathan Toroitich vs Moses Lessonet & 2 Others [2008] eKLR where the common thread was that personal service was the preferred mode of service.

40. They contended that the impugned application failed to accord the alleged contemnors their right to fair trial as neither of the two (2) alleged contemnors were parties to the substantive suit herein nor any evidence tendered to prove that they were personally served with the application for contempt herein and thus aware of the present proceedings. They added that service upon a party is a question of fact and there being no evidence of an affidavit of service to prove service of the application, the only available conclusion by the court was that service was never effected upon the alleged contemnors.

41. They argued that the singling out of one Catherine Mumma was discriminatory and contrary to Article 27 of the Constitution. In this regard, they placed reliance on the case of EG & 7 Others vs Attorney General; DKM & 9 Others (Interested Parties); Katiba Institute & Another (Amicus Curiae) (eKLR citation not given) where the court defined discrimination as treating differently, without any objective and reasonable justification, persons in similar situations.

42. They invoked Article 62 and 62(2) of the 2nd Respondent’s Constitution which established the 1st Interested Party herein and argued that all its members were equal and that the Chairperson was only first among equals. They added that Rule 6 of the Party Primary Election Rules 2021 as read with Article 62 revealed that the 1st Interested Party’s functions were a collective responsibility. They further argued that it was equally noteworthy that the judgment of the court on May 27, 2022 did not expressly require Catherine Mumma, either in her personal capacity or as the chairperson of the 1st Interested Party to act or refrain from taking any specific action.

43. They were emphatic that Article 10 as read with Article 159(2) (sic) behove this court to uphold Catherine Mumma’s constitutional right under Article 27(sic). They also placed reliance on the case of Samuel M. N. Mweru & Others vs National Land Commission & 2 Others (Supra) where the court laid down the four (4) elements that must be proved in civil contempt cases.

44. They further contended that on May 19, 2022, they invited the 1st Respondent and all the aspirants for the position of Member of County Assembly for South Kasipul Ward for a consensus building exercise and that all candidates except the 1st Respondent agreed to the nomination of the Appellant as the ODM candidate for South Kasipul. They added that given the impasse the presiding Chairperson, one Richard Tairo, referred the question of nomination to the Central Committee.

45. They pointed out that the events of May 19, 2022 and May 21, 2022 revealed their willingness and actual compliance with the court’s Judgment. They added that the facts of this case fell within the category of unintentional disobedience and that the 1st Respondent did not lead any evidence that they willfully failed, refused and/ or neglected to obey the court order.

46. They placed reliance on several cases among them the case of Nicholas Kiptoo Arap Salat vs IEBC & 7 Others [2014] eKLR and the case of Lemaken Aramat vs Harun Meitmei Lempaka & 2 Others [2014] where the common thread was that the courts therein underscored the duty of parties to electoral disputes to comply with electoral timelines. They argued that within the context of election related judicial proceedings, a period of a week amounted to inordinate delay.

47. They pointed out that in Paragraph 84 of this court’s Judgment of May 27, 2022was cognisant of the timelines in election petitions and thus provided a three (3) day window for the conduct of party primaries for South Kasipul Ward. They added that essentially, any alleged non-compliance on their part, satisfied the tenets of the principle of ripeness and justiciability on May 31, 2022.

48. They were emphatic that since May 27, 2022the IEBC had gazetted the names of the candidates for the various elective positions and subsequently commenced printing of ballot papers as at the June 24, 2022. It was therefore their contention that the 1st Respondent had prejudiced the 3rd Interested Party’s preparation and the electorate participation for South Kasipul Ward and that on a balance of probabilities, the prejudice occasioned on the 3rd Interested Party and South Kasipul electorate far outweighed any prejudice against the 1st Respondent.

49. On its part, the 3rd Interested Party submitted that its averments in its Replying Affidavit had not been controverted by the 1st Respondent herein. It contended that it was trite law that an application for contempt of court could only exist where there was a finding that the alleged contemnor willfully failed, refused and/or neglected to obey a court order. In this regard, it also placed reliance on the case of Gatharia K Mutitika vs Baharini Farm Limited (Supra).

50. It was its case that the subject matter of this case concerned the 2nd Interested Party’s Party Primaries for South Kasipul Ward conducted on April 28, 2022 and that it did not in any way conduct or participate in the said elections and was merely enjoined in the matter for purposes of awareness.

51. It reproduced the order of this court issued on May 27, 2022and argued that the same did not in any way direct it or one Rose Obari to do anything. It therefore argued that the contempt order sought against the said Rose Obari was bereft of any basis whatsoever and was merely an abuse of the process of court because as she could not be in contempt for orders that had not been directed against her.

52. In this regard, it relied on the case of Sheila Cassat Issenberg & Another vs Antony Machatha Kinyanjui Civil Case No 19 of 2020 Kajiado (eKLR citation not given) where the court stated that the order alleged to have been breached must clearly and unequivocally state what should and should not be done.

53. It further argued that in any event, the Judgment of the court was duly perfected and/or performed as directed and therefore the application was bereft of merit. It further asserted that essentially if the 1st Respondent was dissatisfied with the fresh nomination exercise, he was under duty to expend the necessary procedures in law and that the issue of contempt had been dealt with by its Dispute Resolution Committee which dismissed his complaint.

54. In this regard, it relied on the case of Speaker of the National Assembly vs James Njenga Karume Civil Application No 92 of 1992 NAI 40 of 92 (U.R) (eKLR citation not given) where the court held that there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, which procedure ought to be followed.

55. Right at the outset, this court agreed with the 1st and 2nd Interested Parties that due to the strict election timelines, applications must be filed timeously. Be that as it may, this court was hesitant to dismiss the present application on the ground that the same was not filed immediately the 1st Respondent purported that there was a breach of the court order and instead found that it was in the interests of justice to consider the same on merit.

56. Turning to the substantive issues in the said application, Section 5(1) of the Judicature Act Cap 8 (Laws of Kenya) provides as follows:-“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England (emphasis court), and that power shall extend to upholding the authority and dignity of the court.”

57. Whereas Mwita J declared the Contempt of Court Act, which had been enacted in 2016, unconstitutional on November 9, 2018, this court had due regard to the case of Kiru Tea Factory Company Limited vs Stephen Maina Githiga & 14 Others [ 2019] eKLR in which the Court of Appeal rendered itself as follows:-“Consequently, the Contempt of Court Act having been declared unconstitutional, it follows that anything done under or pursuant to it is a nullity and for that reason Section 5 of the Judicature Act, section 36 of the High Court (Organization and Administration) Act as well as section 35 of the Court of Appeal (Organization and Administration) Act were never deleted and remain in force as the legal framework for this Court to punish for contempt.”

58. The legal framework and/or power to punish for contempt under the Judicature Act, the High Court (Organisation and Administration) Act and the Court of Appeal (Organisation and Administration) Act thus returned to the same position as they were before they were repealed by the Contempt of Court Act.

59. Notably, no leave was required before contempt of court proceedings relating to a breach of court order could be instituted as was held in the case of Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. Such permission was only required where a committal application had been made in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or Court of Appeal as provided in Rule 81. 17 of the English Civil Procedure (Amendment No 2) Rules, 2012 (hereinafter referred to as “the English Civil Procedure Rules”).

60. This court was not persuaded by the 1st and 2nd Interested Parties’ submissions that the present application was a nullity in law merely because the 1st Respondent had sought leave to commence contempt of court proceedings. contrary to the provisions of the law. Notably, a court can always dismiss an order that has been sought if the same is not anchored on any provision of the law. Courts ought to exercise caution in dismissing matter in limine especially where there were other substantive prayers that had been sought in an application that contained an order that has no basis in the law. This court therefore found that it was proper for it to determine the present application on merit.

61. On the question of whether or not the contemnors were duly served with the court orders, this court had due regard to Rule 81. 8 of the English Civil Procedure Rules which provides as follows:-“In the case of a judgment or order requiring a person not to do an act, the court may dispense with service of a copy of the judgment or order in accordance with rules 81. 5 to 81. 7 if it is satisfied that the person had notice of it-a.By being present when the judgment or order was given or made;b.By being notified of its terms by telephone, email or otherwise.”

62This court’s interpretation of use of the word “otherwise” in Rule 81. 8 of the English Civil Procedure Rules envisaged many other modes how a person could be notified of judgment and order and that it was not only limited to notification by telephone and email. In fact, restricting the mode how notification could be done in this technological era would be foolhardy as the means of electronic communication evolve with each passing day.

63. The Appellant’s submissions that no certificate was tendered in court in accordance with Section 106B of the Evidence Act were neither here nor there. This is because when the court delivered its decision on May 27, 2022, the parties herein were present personally and/or represented by counsel. Personal service was dispensed with as was contemplated under Rule 81. 8 of the English Civil Procedure Rules and for all purposes and intent, the contemnor, namely, Catherine Muyeka Mumma was deemed to have been duly aware and notified of the court’s orders in her capacity as the 1st Interested Party’s Chairperson, a position that she acknowledged she held, as she was ably represented by counsel.

64. Arguing that the said Catherine Muyeka Mumma was a first among equals in the 1st Interested Party did not negate the fact that she was aware of the court orders and being the Chairperson of the 1st Interested Party that was charged with the duty of conducting the 2nd Interested Party’s party primaries, she deliberately failed to comply with the said orders. Arguing that the orders were not directed to her was splitting hairs as the 1st and 2nd Interested Parties were artificial persons who could only comply with court orders through its officials who were natural persons.

65. Indeed, in its decision of June 27, 2022, this court directed as follows;-“The 1st and 2nd Interested Parties be and hereby directed to conduct fresh nominations by way of universal suffrage within seventy two (72) hours from the date of this decision and only adopt any of the nomination methods set out in Rule 8 of the Orange Democratic Movement Party Primaries Election Rules As Approved by the National Executive Committee held on February 12, 2021 with the consent of all candidates who shall be participating in the fresh nominations for South Kasipul Ward, in Kasipul Constituency within Homabay County.”

66. The purport of the said order was that the first point of call for South Kasipul Ward, in Kasipul Constituency was for the nominations to be conducted by universal suffrage within seventy two (72) hours from the date of judgment. Nomination by any of the other methods set out in Rule 8 of the 2nd Respondent’s Party Primaries Nomination Rules was to be by consent of the participating candidates of South Kasipul Ward, in Kasipul Constituency. In other words, it was only the parties who could consent to dispensing the nominations by way of universal suffrage and adopt other methods provided in the aforesaid Rules.

67. If there no such consent by the participating candidates was arrived at, the only route for the nominations of South Kasipul Ward, in Kasipul Constituency was by way of universal suffrage. The court order was self-regulating and needed no further interpretation and/or action by the 1st and 2nd Interested Parties.

68. There was no indication by the 1st and 2nd Interested Parties that they even attempted to conduct the party primaries nominations by way of universal suffrage in the first instance as had been ordered by the court. The Extract of the Minutes of the Central Committee on Consideration of the Report on Party Primaries held on Saturday May 21, 2022 at Emory Hotel, Nairobi City County were well before the court delivered its decision on May 27, 2022, a fact that was clearly stated by the 1st Respondent herein.

69. The issue of strict time lines of the 1st Interested Party and the popularity of the Appellant herein hence the adoption of nomination by way of issuing a direct ticket to the Appellant herein was immaterial because parties cannot disobey orders on the ground that time was running out and/or because the Appellant was best placed as a candidate to deliver the ticket for the 2nd Interested Party in South Kasipul Ward. Indeed, this court was well aware that the nominated candidates for members of county assemblies were to submit their papers to the 1st Interested Party herein by June 7, 2022 and hence there was sufficient time for the 1st and 2nd Interested Parties to have complied with its orders of May 27, 2022.

70. This court was persuaded that the 1st and 2nd Interested Parties’ decision to issue a direct ticket to the Appellant herein was deliberate and intended for the reason that the terms of the court order were clear, they had proper notice of the court order and they acted in breach of the court order. This was not an accidental or unintentional disobedience.

71. This court’s view was fortified by the fact that the 1st and 2nd Interested Parties disobeyed the orders of the 2nd Interested Party’s Appeal Tribunal and the Political Parties Disputes Tribunal (PPDT) that had expressly directed them to conduct fresh nominations where the legitimate expectation was by way of universal suffrage. Both the PPDT and this court’s decision were crystal clear that the said nominations were to be by way of universal suffrage. It could not be that the 1st and 2nd Interested Parties had misunderstood all the orders directing them to conduct fresh nominations by universal suffrage at all stages.

72. In that regard, this court came to the firm conclusion that the 1st Respondent had proved to the required standard, which standard was higher than a balance of probability and below proof beyond reasonable doubt as was held in the case of Gatharia K Mutitika vs Baharini Farm Limited (Supra), that the said the said Catherine Muyeka Mumma, in her capacity as the Chair of the 2nd Interested Party, was in contempt of the court orders of May 27, 2022.

73. It was not clear to this court if the Appellant’s name had already been gazetted. Even if the same was gazetted, the court took the firm view that the same was contrary to its orders of May 27, 2022and ought not to be allowed to go unchallenged. Although courts should be slow to punish contemnors, they must not forget that elections are in Kenya are so emotive and if no consequences attach to disobedience of court orders, there is potential of violence breaking out thus destablising the country.

74. It is also important to maintain the integrity of courts hence the need to take such action to ensure that the authority of the court is not frowned upon. Indeed, courts are called upon to safeguard the fundamental rights and freedoms of its citizens. It was for the said reasons that this court found and held that failing to order the 1st and 2nd Interested Parties to purge their contempt of court was a breach of the 1st Respondent’s political rights that are enshrined in the Constitution of Kenya.

75. Indeed, the Appellant’s rights stop where the 1st Respondent’s rights start. The fact that the court ordered fresh nominations by way of universal suffrage did not translate to the 1st Respondent’s winning the said nominations. That was a matter for the 2nd Interested Party’s members to express their will as to who would be their representative in the County Assembly of Homabay. All that the court was called upon to do was to ensure that all the candidates for the position of Member of County Assembly of South Kasipul Ward in Homabay County were provided a level playing ground.

76. Courts have a duty to ensure that the electoral process is fair and complies with the law ab initio. The question of whether the Appellant was validly nominated can only be dealt with before the elections are held. This is not an issue that can be addressed after elections had been held because the jurisdiction of electoral courts is limited to the question of whether a candidate for whatever seat had been validly elected or not.

77. The aspect of process of elections is therefore a critical one. An election is not an event. It is a process that must comply with the principles laid down in the Constitution of Kenya, the provisions of the electoral laws and nomination rules of political parties so that the election of candidates is above board and above reproach like Caesar’s wife.

78. In a majority decision by the Supreme Court of Kenya in the case of Raila Amolo Odinga & Another vs Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, it was held that the 2017 Presidential Election was not conducted in accordance with the principles laid down in the Constitution of Kenta and the law relating to elections whereupon the court directed that the Presidential elections be held afresh. Process is then not an issue that can be taken lightly in this case even at the stage of nomination of candidates because the process must instill and/or inspire the confidence of voters.

79. In her decision in the said case of Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others, Njoki Ndungú SCJ rendered herself as follows:-[701]Mr. Slobodan Milacic a Professor Emeritus at Montesquieu University, in “Justice Coming face to face with electoral norms” a Chapter in the Book, The Cancellation of Election results The Science and Technique of Democracy No. 46; (2010) Council of Europe pages 25-67, states that the will of the electorate is ultimately the core of any electoral process and it should be jealously guarded by the Courts in order to maintain public confidence in the electoral process (emphasis court). In that regard he makes the following remarks, which I cite with approval:“The importance, in a democracy, of a transparent and fair electoral process for both individual and collective rights to be respected immediately takes on real shape if one but thinks of electoral crises. The guiding principle in the exercise of a constitutional jurisdiction is that the function of the court is ultimately to ensure the prevalence of the will of the electorate. If this were not so, public confidence in the election process would be heavily compromised. It is important that the public perception remains throughout that it is the decision of the electorate that has prevailed.” [Emphasis added] (emphasis court)

80. The 3rd Interested Party’s arguments that this court was functus officio were not correct as contempt of court proceedings could only be filed after a court had issued an order or delivered a decision and the same was disobeyed by a party. The question of whether the decision had been complied with and/or perfected was a matter of evidence for determination by the court.

81. As regards the said Rose Obari, the 3rd Interested Party’s Returning Officer for Kasipul Constituency, this court found and held that she could not be held to have been in contempt as the 1st Interested Party’s role was to accept names of nominated candidates presented to them by respective political parties. The 3rd Interested Party was not in any way involved in conducting the 2nd Interested Party’s party primaries and merely acted pursuant to the 1st and 2nd Interested Parties’ directions as per the 2nd Interested Party’s Nomination Rules.

82. The 1st Respondent’s Written Submissions in support of his argument that he had demonstrated that he was entitled to injunctive orders restraining the 3rd Interested Party, its agents and/or employees from gazetting the name of the Appellant as the 2nd Interested Party’s candidate for the position of the Member of County Assembly for South Kasipul Ward in Kasipul Constituency within Homabay County was rendered moot for the reason that the said orders had been sought pending the hearing and determination of the present application. Its hands were tied by the nature of the proceedings that were placed before it and by virtue of how the orders had been drafted.

Disposition 83. For the foregoing reasons, the upshot of this court’s decision was that the 1st Respondent’s Notice of Motion application that was dated June 21, 2022 was merited and the same be and is allowed in terms of Prayer No (4) as follows:-a.Thatthe said Catherine Muyeka Mumma, the Chairperson of the ODM National Elections Board be and is hereby held in contempt for wilful disobedience of the court judgment and order of May 27, 2022. b.Thatthe said Catherine Muyeka Mummathe Chairperson of the ODM National Elections Board be and is hereby fined a sum of Kshs 200,000/= within seventy two (72) hours from the date of this decision and in default thereof to serve six (6) months imprisonment.c.Thatalthough the interim orders that were issued herein be and are hereby discharged, set aside and/or vacated, the 1st and 2nd Interested Parties be and are hereby directed to purge the contempt of court orders of May 27, 2022 within seventy two (72) hours from the date of this decision.d.Thatthe 1st and 2nd Interested Parties will bear the 1st Respondent’s costs of this application.

84. Matter to be mentioned on July 19, 2022before the Presiding Judge of High Court Homabay to confirm compliance and/or for further orders and/or directions. The file be and is hereby transferred to High Court Homabay forthwith.

85. It is so ordered.

J. KAMAUJUDGEDATED AND DELIVERED AT KISUMU THIS 13TH DAY OF JULY 2022F. OCHIENGJUDGE