[2022] KEHC 11450 (KLR)

Ogutu v Orange Democratic Movement & 2 others (Election Petition Appeal E274 of 2022) [2022] KEHC 11450 (KLR) (Election Petitions) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11450 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Election Petitions

Election Petition Appeal E274 of 2022

JN Mulwa, J

May 17, 2022

Between

Jacob Ochieng Ogutu

Appellant

and

Orange Democratic Movement

1st Respondent

National Election Board (ODM)

2nd Respondent

Geoffrey Odhiambo Majiwa

3rd Respondent

(Being an appeal from the judgment of the Political Parties Tribunal delivered on 3rd May, 2022 by Hon. M. L. Odongo, Hon. T. T. Kipchirchir & Hon. DR. L. Wambui at Kakamega PPDT Complaint No. E040 of 2022)

Judgment

Background to the Appeal 1. The background to this appeal is fairly straight forward. The appellant Jacob Ochieng Ogutu subjected himself to the 1st Respondent (ODM) nominations for Member of County Assembly (MCA) for Baba Dogo Ward which were conducted by Universal Suffrage on the 22nd April, 2022. Upon tallying he emerged as the winner, with the 3rd Respondent Geoffrey Odhiambo Majiwa being the runner up.

2. The 3rd Respondent challenged the outcome at the ODM Appeals Tribunal citing violence at the venue of nominations in Complaint No. 34 of 2022.

3. In a verdict dated 25/4/2022, but delivered on the 26/4/2022, the ODM Appeals Tribunal nullified and set aside the nomination on the following terms:a.The Appeal filed by the Appellant is hereby set aside and the Interim certificate issued to the 3rd respondent is hereby set aside.b.That this case is referred to the National Elections Board (2nd Respondent) for appropriate action noting to observe the necessary timelines as provided by the Independent Electoral and Boundaries Commission (IEBC).c.Each party shall bear its own costs in the appeal.

4. Upon the above verdict, the 1st Respondent, pursuant to its Nomination and Election Rules, and in consultation with the 2nd Respondent (NEB), issued a Direct Nomination Certificate to the 3rd Respondent.

5. The Appellant was aggrieved by the decision dismissing his complaint. He moved to the Political Parties Tribunal vide an Appeal, Kakamega PPDT, Complaint No. E040 of 2022 on the 28th/4/2022 citing five grounds of Appeal and reliefs sought appearing here below.

6. Upon hearing the complaint, the PPDT Tribunal dismissed the complaint vide a judgment dated 3/5/2022. It is the dismissal of the Appellant’s complaint by the PPDT on the 3/5/2022 that is the subject of this Election Appeal to this court.

7. The Memorandum of Appeal is dated and filed on the 4/5/2022. It states the grounds of Appeal as follows:1. That the learned members of the Hon. Tribunal erred in fact and law by failing to take into account sections 38E, F & G of the Political Parties Act which forbid the 1st and 2nd Respondents from changing the mode of nomination midway without notification to the Registrar of Political Parties and the candidates more particularly because;a)The 1st and 2nd Respondents conducted party nominations for Member of the County Assembly for Baba Dogo Ward by universal suffrage on 22nd April 2022 and after tallying of results the Appellant was declared the winner;b)The 3rd Respondent was the runner up in the party nominations for Member of County Assembly for Baba Dogo Ward under the ODM Party;c)The said result/outcome of the nomination was challenged by the 3rd Respondent at the ODM Appeals Tribunal and in a verdict dated 25th April 2022 but delivered on 26th April 2022 the ODM Appeals Tribunal referred the matter back to the 2nd Respondent for 'appropriate action'd)The 2nd Respondent subsequently proceeded to issue a direct ticket to the 3rd Respondent without notification to the Registrar of Political Parties and the candidates;2. Thatthe learned members of the Hon. Tribunal erred in fact and law by correctly holding that no candidate should have benefited from the violence which occurred during the nomination exercise on 22nd April 2022 but consequently made a decision which in effect benefits the 3rd Respondent who was a runner up in the nomination exercise by being issued with a direct ticket for MCA for ODM in Baba Dogo Ward.3. Thatthe learned members of the Hon. Tribunal erred in fact and law by failing to hold that the decision of the 2nd Respondent to issue a direct ticket to the 3rd Respondent contravened the ODM Party Primary Rules, the Political Parties Act and the Fair Administrative Action Act;4. Thatthe learned members of the Hon. Tribunal erred in fact and law by failing to take cognizance that the Appellant's political rights and legitimate expectation under Article 38 (3)(c) of the Constitution were breached by the 1st and 2nd Respondents who after they had declared him the winner proceeded to subsequently issue a direct certificate to the 3rd Respondent;

8. Together with the Appeal, the Appellant filed a Notice of Motion dated 4/5/2022 seeking interim orders suspending the decision of the Orange Democratic Movement Party (ODM) to issue the Nomination Certificate for Baba Dogo Ward to Geoffrey Odhiambo Majiwa, the 3rd Respondent, and a further order to restrain the 1st and 2nd Respondents from presenting the name of the 3rd Respondent to the Interested Party (IEBC) for consideration as the duly nominated candidate for the ODM for Baba Dogo Ward; pending the hearing and determination of the application as well as the appeal.

9. It was further sought that an order do issue to restrain the Interested Party from processing and gazetting the name of the 3rd Respondent as the duly nominated candidate for the ODM, for Baba Dogo Ward.

10. Replying Affidavits and Grounds of Opposition to the application were duly filed by the Respondents.

11. On the 9/5/2022, the Advocates for the parties recorded a consent order stating the manner of the fastest mode of disposal of the Appeal, due to the IEBC’s timelines in respect of the Party Nominations.

12. Among the consent orders was the timeline upon which the appellant would file its Record of Appeal, upon receipt of the proceedings and certified copy of the PPDT’s judgment delivered on the 3/5/2022, with a directive to the Registrar of Political Parties to provide the proceedings by 10/5/2022, 12. 00 noon.

13. However, the Registrar of Political Parties could not provide the proceedings in time, necessitating the Appellant to file the Record of Appeal, on the 10/5/2022 as agreed, but without the proceedings, which were supplied to him at 6. 00 pm on the 10/5/2022. Moving with lightning speed, I must say, the Appellant’s Advocate compiled and filed a Supplementary Record of Appeal on the 11/5/2022 being outside the time stated in the consent, and without leave of the court (late by a few hours).

14. Mr. Mboya Advocate for the 3rd Respondent objected vehemently to the Admission of the Supplementary Record of Appeal. Upon consideration of the strict timelines, the parties advocates gave to themselves, and the failure by the Registrar of Political Parties to prepare the proceedings by having them typed and certification of the Judgment, and taking into account that without the said proceedings and judgment of the PPDT being filed, the appeal would have been a non-starter; and upon my fettered discretion to do substantive justice, as opposed to relying on procedural technicalities – Article 159 Constitution of Kenya and to protect the rival parties interests, I allowed the Supplementary Record of Appeal to be filed out of time (by a few hours) and was thus duly deemed as filed and served within time.

15. In these appeal proceedings, Mr. Malenya Advocate represents the Appellant, Mr. Makori represents the 1st and 2nd Respondents, while Mr. Mboya represents the 3rd Respondent.

16. All the parties filed written submissions and highlighted them. The Respondents further sought to rely on their Replying Affidavits in response to the Appellant’s application dated 4/5/2022 and submissions filed in the PPDT No. E040 of 2022. Issues For Determinationa.Whether this court has jurisdiction to entertain this appealb.Whether the appeal is meritedc.Whether the appellant is entitled to the prayers sought in the Appeal dated 4/5/2022. d.Costs.

17. Applicable Legal Statutesa.The constitution of Kenya 2010; Article 27, 47,77,88b.Political Parties Act, No. 11 of 2011c.Political Parties (Amendment) Act, 2022 - Sections 38E, 38F & 38G.d.ODM Nomination and Party Rules (Party Primary Election Rules)e.Fair Administrative Action Act, 2015

Applicable Legal Provisions 18. Section 40(1) of the Political Parties Act, 2011 provides for the jurisdiction of the Political Parties Tribunal, to determine disputes between members of the political Party and a Political Party, between members of Political Party and a Political Party, between a Political Party and a Political Party, between Independent Candidate and a Political Party, disputes between Coalition Parties and (f) appeals from decisions of the Registrar under this Act.

19. Section 40(2) provides that, notwithstanding subsections (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b),(c) or (e) unless the dispute has been heard and determined by the Internal Political Party Disputes Resolution Mechanisms. Section 41(2) provides: “An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court.”

20. The Political Parties (Amendment) Act,2022 amended Section 38 of the 2011 Act by inserting new part –Part Iv A – Party Nominations–Methods of conducting party nomination thus:38A -“A political Party may conduct party nominations using any of the following methods:-a.Direct party nomination method; orb.Indirect party nominations method 38(B)38(B)(1) when conducting party nominations, a political party shall:-a.Establish mechanisms for the resolution of disputes arising out of the nominations,b.Designate the person who shall issue nomination certificates to candidates after political party nominations; andc.Prescribe the functions of the body within the political party that shall be responsible for conducting the nominations.38E – Notification on party nominations38E(1)“A political party shall, not less than ten days before the date of party nominations, notify the Registrar in writing of:a.The method it intends to use in conducting party nominations, which method shall be in accordance with the nominations rules of the political party;b.The date of the party nominations;c.The venue or venues for the party nominations; andd.The list of members of the party who wish to be nominated by the party.

21. Section 27 Election Act, 2011A political party shall submit its nomination rules to the Commission at least three months before the nomination of its candidates.

22. The Election Act, 2011 was amended at Section 27(1) to read;(1A) the Registrar of Political Parties shall certify the nomination rules submitted under Subrule (1).

23. Orange Democratic Movement Party Primaries and Nomination Rules at;Rule 8 provides for Methods of Conducting Primary Elections by -a.Consensus among candidates, Party and community representativesb.Direct nominationsc.The use of delegates system through the Electoral Systemd.Universal Suffrage of registered party members.1. The National Election Board (ODM) Section 23 – Direct Nominations-where direct nomination is the method to be applied, the NEB shall carry out a due diligence exercise to justify the use of this method. The due diligence exercise shall take into consideration any of the following(e)that the party leadership has for compelling reasons recommend that it is in the best interest o the party to issue direct party nomination to certain candidates

Appellant’s Submissions 25. The submissions are dated 4/5/2022. It is submitted that Section 41(2) of the Political Parties Act grants power to the court to hear and determine disputes arising from the PPDT Judgment and therefore that this court has jurisdiction to entertain the appeal.On the matter of issuance of Direct Nomination Certificate to the 3rd Respondent, it was submitted that it was erroneous as the ODM party never commenced a fresh nomination process in compliance with Sections 38E & G of the Act. The ODM on the 26/4/2022 directed;“The case is referred to the National Elections Board for appropriate action noting to observe the necessary timelines as provided by the Independent Electoral and Boundaries Commission.”.

26. It is further submitted that the ODM party ought to have conducted fresh elections that entailed issuing notifications to the Registrar of Political Parties, the National Election Board and the PPDT and the candidates on the method it would use in terms of Section 38E, F & G of the Act, but that was not done.

27. The appellant submits that once the ODM Party determined that it would select its candidate for the Baba Dogo Ward by Universal Suffrage, they ought to have stuck to the said method, and not change to Direct nomination, particularly without notification to the Registrar of Political Parties, as stated under Rule 25(1) of the ODM Party primaries and Nomination Rules that provide that Universal Suffrage is “employed as a last measure of last resort.”

28. It is a further submission that the only remedy following the PPDT decision to nullify the nominations was to conduct a repeat nomination by Universal Suffrage as none of the candidates was held to have been involved in the violence that marred the voting, and therefore none ought to benefit from the violence.

29. Citing Article 91 of the Constitution, it is submitted that Political Parties should at all times abide by the democratic principles of good governance, promote and practice through regular, fair and free elections within the party. The case, Tom Odege vs Edick Peta Omondi Anyango & 2 others [2017] eKLR was cited to support the submissions, that a party cannot change the mode of nomination then decide to issue direct ticket. It is further submitted that the appellant having been a winner, had legitimate expectations that if repeat nomination was undertaken, he would have been involved and therefore, the 1st and 2nd Respondents by giving the 3rd Respondent a direct certificate were in breach of the provisions of the Fair Administrative Action Act, Sections (3) and 13(3), to advance the proposition that the 1st and 2nd respondents are bound by the Act in that all state organs, non-state agencies and persons exercising administrative authority, performing judicial quasi Judicial functions or any written law.

1st and 2nd respondents submissions dated 11/5/2022 30. Mr. Makori for the above parties submitted that upon nullification of the first nomination by the National Elections Board, the entire exercise stood cancelled and the party was at liberty to take out fresh nomination process in accordance with the Party’s Constitution and Election Rules provided under Rule 3 of the Election Rules and Article 7. 5 of its Constitution – as directed to take “appropriate action” in the PPDT judgment, subject of this appeal. It is stated that Section 8 of the Rules provide for Direct Nomination Method among others.It is further submitted that the Decision of the National Appeals Tribunal was not appealed from by any of the parties in this matter, and is binding to all parties including the appellant.

31. It is a further submission that the PPDT held that the relevant party organ (National Appeals Tribunal) was right to hold that the Political and Civil rights of the voters at Baba Dogo could not be determined in the first nomination exercise, and determined that the party organ was within its mandate to carry out the nomination exercise in the manner it did. He cited the case Samuel Owino Wakiaga vs Orange Democratic Movement Party & 2 others to support the proposition.

32. It is stated that pursuant to Section 27 of the Elections Act the ODM party submitted its Party Primary Rules on Elections, which were approved by IEBC and that Rule 23 provides for Direct Nominations, and therefore the party acted within its rules.The 1st and 2nd Respondents also cited Section 2 of the Political Parties Act to define Indirect Party Nominations as well as Section 38G of the Amended Act, 2022 to state that the provisions are applicable where the party wishes to issue Indirect Nomination by way of a delegate caucus only.

33. Further, it is submitted that the party was in order to issue the Direct Ticket to the 3rd Respondent pursuant to Rule 23(4) as it was constrained by timelines and limitations, as compelling reasons, and others being financial and logistical reasons. He therefore urged for dismissal of the appeal as lacking in merit.

3rd Respondent Submissions 34. The submissions are dated 11/5/2022. Together with the submissions, reliance was placed to the Replying Affidavit sworn on the 3/5/2022 and another sworn on the 29/4/2022 in respect to the application dated 4/5/2022. Several authorities were cited to buttress the submissions.It is submitted that this appeal is incompetent as the Appellant seeks to set aside Kakamega PPDT’s judgment dated 3/5/2022, that the appellant ought to have appealed against the ODM Appeals Tribunal Judgment dated 25/4/2022, but delivered on the 26/4/2022, setting aside the interim certificate of nomination issued to the 3rd Respondent.

35. Further, the Tribunal referred the case to the National Elections Board for “appropriate action” that resulted to the Direct Nomination of the 3rd Respondent pursuant to Article 7. 5 of the Party’s Constitution and Rule 3. 3 of its Nomination and Election Rules. It is a further submission that the 2nd Respondent acted within its powers to issue a direct ticket to the 3rd Respondent when it held that that the PPDT was correct to affirm the decision of the 2nd Respondent and held that it could not interfere with the decision arrived at pursuant to the Party Rules.

36. Further, it is submitted that the court cannot interfere with the internal affairs of the party election board, unless it is demonstrated that a violation of the parties constitutional rights under Article 38 which ought to be interpreted as a double edged sword targeting both persons and the Political party.It is further submitted that there is no competent appeal before this court as the court’s power donated under Section 40 Political Parties Act presumes that the jurisdiction of the Political Parties Tribunal has been properly invoked.

37. The 3rd Respondent relied on HCA No. 7 of 2017 – Hezron Opiyo vs Prof. Peter Anyang Nyongo, Francis Gitau Poisimei vs National Alliance Party & Another, Nairobi Petition No. 356 of 2012 [2012] eKLR, Francis Mutuku vs Wiper Democratic Movement & Others [2015] eKLR, George Okode & 5 others vs Orange Democratic Moment Party & another [2012] eKLR and David Ochieng Babu vs Lorna Achieng Ochieng & 2 others[2017] eKLR. The court has thus been urged to find no merit in the appeal and dismiss it.

Analysis And Determination 38. It is not in dispute that the 2nd Respondent conducted party nominations for Baba Dogo Ward for the position of Member of County Assembly on the 22/4/2022 by Universal Suffrage method. The Appellant emerged the winner, but the 3rd Respondent being dissatisfied filed a complaint to the 2nd Respondent, Dispute Tribunal Vide Complaint No. 34 of 2022. On the 26/4/2022, the decision dated 25/4/2022 was delivered with the result that the complaint’s complaint was allowed, and the Interim Certificate issued to the 3rd Respondent set aside. The case was then referred to the National Elections Board for “appropriate action”, noting to observe the necessary timelines as provided by the Independent Electoral and Boundaries Commission.

39. Following thereafter, the ODM Party in consultation with the National Election Board (ODM), and the 2nd Respondent determined to nullify the nominations, and issued a Direct certificate of Nomination to the 3rd Respondent.Without a doubt, the Appellant was dissatisfied with the turn of events, as he had legitimate expectation that there would be a repeat and or fresh nominations by universal Suffrage where he would have participated.

40. It is these events that gave birth to Kakamega PPDT Complaint No. E040/2022 dated 28/4/2022. Upon hearing the complaint, the Tribunal made a finding that; “in light of and given the information before us, we see no reason to overturn the party organ observation” and proceeded to dismiss the complaint.The Appellant did not give up. On the 4/5/2022, he filed this Appeal, Election Petition Appeal No. E 274 of 2022 against the Respondent’s upon grounds stated earlier – (paragraph 7) and sought the reliefs stated therein.

41. Having considered the proceedings and judgment of the Kakamega PPDT complaint No. 040 of 2022 and complaint No. 34 of 2022 at the 2nd Respondents Dispute Resoluton organ, the submissions by counsel for the parties, the relevant legal provisions and case law cited by the parties, I now proceed to analyse the issues raised.

42. As stated in the case of Francis Gitau Parsimei vs National Alliance Party & Another, Nairobi petition No. 356 of 2012 [2012] eKLR, Majanja J rendered:…at the core is whether this court should intervene to stop the electoral process so that a party who claims that his or her rights have been infringed can agitate his rights before the court… it must be clear that political rights are exercised through a political process involving many actors; the citizens and institutions. This is the process provided for under the provisions of Chapter Seven of the Constitution cited” “representation of the people” these provisions are operationalized by the Independent Electoral and Boundaries Commission Act, 2011, the Elections Act, 2011 and the Political Parties Act, 2011… It is therefore proper that Political rights are realized within a structured process that takes into account the larger interests of the society and the need for a free and fair election which is enhanced by a self-contained dispute resolution mechanism underpinned by the Constitution itself and statutes enacted to give effect to its provisions

43. Section 40(2) of the Political Parties Act allows parties to file their grievances before the Political Parties Dispute Tribunal where the Political Party has no active Internal Party Dispute Resolution Mechanism.On the part of the 1st Respondent (ODM) there is in place an active Internal Party Dispute Resolution Mechanism vide its Rules on party nominations. I have perused the RulesThe above positon was well stated in various election petition decisions to the effect that such organs must not only be invoked, but also followed. See Francis Mutuku vs Wiper Democratic Movement – Kenya & Others [2015] eKLR.

44. It is prudent here to state that the 1st Respondent (ODM) has such an organ by the Central Committee founded on Rules 8(b) and 23(2) (e) at its Party Elections Rules on the matter of Direct Nominations through which the 3rd Respondent was issued with a Direct nomination certificate.As stated in the above decision, the 1st and 2nd Respondents followed their own rules to issue the direct nomination certificate to the 3rd Respondent.

45. The Appellant argued that the cancellation of the nomination by universal suffrage, and referring the matter to the party organ for “appropriate action”, and the issuance of a direct ticket to the 3rd Respondent was contrary to the ODM Party Nomination Rules, the Political Parties Act, and the Fair Administrative Action Act.However, this assertion was not supported by any legal or factual submissions. The appellant did not point to any rule in the ODM’s party election rules that the party contravened in issuing the direct ticket. The Appellant having a legitimate expectation that he would have won had the party ordered a repeat nomination is, but an allegation.Neither the appellant nor the 3rd Respondent were cited for having taken part in the violence that marred the party nominations on the 22/4/2022.

46. By referring the matter to the 2nd Respondent for “appropriate action” the PPDT was aware of the several ODM Nomination Rules and methods of nomination that it could have employed, and not necessarily issuing the direct ticket.In its wisdom and discretion, it decided on a direct ticket method upon consideration of circumstances pertaining to the nominations including, and not limited to timelines, economic and logistical issues – see Section 38A, 38B, 38G of the Political Parties (Amendment) Act, 2022.

47. It is therefore not in dispute the ODM National Election Board by dint of Rule 23 had the mandate to decide which of the nomination methods suited it at the time in point.The PPDT in its judgment noted that when the Party (ODM) was directed to proceed in a manner compatible with the party constitution, the Nomination and Election Rules, it was thus given an opportunity to decide its mode afresh after the nullification of the primaries held on 22/4/2022.

48. The appellant rushed to the PPDT to challenge its findings aforestated, yet the decision it ought to have challenged belonged to the party organ the 2nd Respondent, when it decided to issue direct ticket to the 3rd Respondent, thus the submission by the 3rd Respondent that there is no appeal herein. In so far as this court’s jurisdiction is donated under Section 40 – Political Parties Act, it is presumed that the jurisdiction of the Political Parties Tribunal was properly invoked – See Hezron Opiyo vs Prof. Peter Anyang Nyongo case (Supra).

49. The PPDT was seized of these material facts and rightly rendered that the appellant had not exhausted the Internal Dispute Resolution mechanism before going to the PPDT for redress.This is supported under Section 40(2) PPA that states:(2) Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs a, b, c, or e, unless a party to the dispute adduces evidence of an attempt to subject to the Internal Political Party Dispute Resolution Mechanism (emphasis added).

50. In the caseSamuel Owino Wakiaga vs ODM & 2 others [2017] eKLR, in respect to Section 40(2), the Learned Justice Achode J, in very similar circumstances as in this appeal rendered;the Central Committee which deliberated and identified a nominee is created under Article 7. 5.3(f) of the 1st Respondent’s Constitution and does have powers under Article 7. 5 A.2 of its constitution where its functions are outlined. It is not the duty of the court to micro-manage parties and direct them on such mundane matters such as how to communicate with its organs.

51. Further, the court continued to state that;Section 40(2) of the Political Parties Act on the other hand provides in my view not merely in directory but mandatory terms in inter alia that,“Not withstanding subsection (1) the Tribunal shall not hear or determine a dispute under paragraphs (a), (b),(c) or (e) unless the dispute has been heard and determined by the Internal Political Party Dispute Resolution mechanism” (emphasis added)

52. By the foregoing, without first subjecting the complaint to issue direct party nomination certificate to the 3rd Respondent by the 1st and 2nd Respondents to the Internal Dispute Resolution Mechanism, PPDT had no jurisdiction, as it rightfully determined. See also Francis Gitau Poisinei (Supra).On the matter of lack of notification by the 1st Respondent of the mode it was to use during the fresh nominations, I am persuaded that the appellant has failed to establish and demonstrate that 1st and 2nd Respondents did not notify the Registrar of Political Parties and the candidates of its change of mode of nomination from Universal Suffrage to direct nomination.

53. In any event, it is clear that the party complied with its election and nomination Rules, by sending notification through the 2nd Respondent’s website and WhatsApp platform to all the relevant parties, that included the appellant. The said notice, which I hereby reproduce, is an exhibit “GOM 3” in the 3rd Respondent’s Replying Affidavit mentioned earlier thus:“Following the conclusion of the following cases before the Appeals Tribunal, the National Election Board was directed to conduct nominations, and has in consolation with the Central Committee and pursuant to Rules 8(b) and 23(2)(e) of the Party Election Rules on Direct Nominations, nominated the candidates listed in the table below to represent the party in the respective electoral areas. The affected candidates are advised to conduct National Election Board offices to collect their certificates”.

54. The Appellant never disputed having received and or seen the above notification. To that end, I agree with the 3rd Respondent that the court cannot be invited to decide and direct the party how it is supposed to communicate to the parties and other institutions.The 1st Respondent invoked its powers under Party’s Constitution, Article 7. 5 and Rules 3. 3 of its Nomination and Election Rules to issue the direct ticket to the 3rd Respondent. Once again, the Appellant failed to find any fault in the use of the said Rules in the subsequent nomination by the ODM Party.

Reliefs sought by the appellant in its memorandum of appeal dated 4/5/2022 55. I have considered submissions by counsel. In the first instance, the PPDT lacked jurisdiction to hear and determine the complaint as it rightly held at paragraph 33 of its judgment dated 25/4/2022, citing Section 40(2) PPA stated;Notwithstanding subsection 91), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or € unless a party to the dispute adduces evidence of an attempt to subject to the Internal Party Dispute Resolution Mechanism.

56. Having read through the whole Record of Appeal, the proceedings and the certified judgment, I find nowhere, where the appellant attempted, in any way or mode, to invoke the Internal Dispute Resolution mechanism of the 1st Respondent, to complain about the Direct nomination of the 3rd Respondent during the 2nd/fresh nomination process, after the first nomination by Universal Suffrage was nullified and set aside. It was a fresh process, not a repeat process.It was therefore misleading by the PPDT when it held that the impugned nomination and IDRM was conducted (paragraph 36). No evidence was adduced of any attempt or at all to support such finding.If indeed such IDRM was conducted, it was so done as stated in PPDT No. 34 of 2022, wherein the complaint was over the cancellation and setting aside of the first nominations by Universal Suffrage.

57. The complainant therein was the Appellant in this appeal – Jacob Ochieng Ogutu, and sought to challenge the declaration of the 3rd Respondent (Jacob Ochieng Ogutu) now the Appellant, as the winner.Upon hearing the parties, the Tribunal’s final orders were;a.The Appeal filed by the Appellant is hereby allowed and the interim certificate issued to the 3rd Respondnet is hereby set aside.b.This case is referred to the National Elections Board for appropriate action noting to observe the necessary timelines as provided by the Independent, Electoral and Boundaries Commission.c.Each party shall bear own costs in the appeal.d.This decision was dated 25/4/2022but delivered on the 26/4/2022. Had this decision been challenged by either of the parties at the PPDT could have had jurisdiction to hear and determine the dispute, the Internal Dispute Mechanism having been exhausted, see the Wakiaga case (Supra).

58. However, the Appeal herein challenges the PPDT decision rendered on the 3/5/2022 in Kakamega PPDT complaint No. 040 of 2022, at the face of the record.The decision subject of this appeal is against the issuance to the 3rd Respondent of direct ticket by the 1st Responded in the 2nd round of party nomination, which I have held was a fresh nomination, the 1st nominations having been set aside by the PPDT by its judgment dated 25/4/2022.

59. As to the second nominations (fresh nominations), it is clear from the proceedings that none of the parties challenged the decision through the Party Mechanism as provided under its election and nomination rules. The aggrieved party, now the Appellant, by passed the ODM Party Dispute Resolution Mechanism, and filed the complaint vide Kakamega PPDT Complaint No. 040 of 2022, whose judgment, delivered on the 3/5/2022 is the subject of this appeal.

60. Contrary to what the PPDT Tribunal held, that it had jurisdiction to hear and determine the complaint, I am of the considered opinion that it did not have such jurisdiction. I say so because, had the complainant (now appellant) filed a complaint to the ODM Dispute Resolution Organ, registered and duly heard and determination rendered, such proceedings would have been provided to this court.If so, no evidence has been placed before the court, and the court cannot act in a vacuum. Under Section 107 of the Evidence Act, he who alleges must prove. The Tribunals finding is therefore baseless. At the tail end of the decision, the PPDT complaint was dismissed with costs, albeit on different reasons from my findings. It therefore follows that the Political Parties Dispute Tribunal in this Appeal had no jurisdiction to hear and determine the complaint as filed.

61. The remedies sought by the Appellant are stated in the Memorandum of Appeal dated 4/5/2022. The Appellant seeks a declaration that the direct nomination certificate issued to the 3rd Respondent be nullified and the Appellant be issued with Direct Nomination Certificate, and further an order restraining the Interested Party from accepting and considering of the 3rd Respondent as the duly nominated candidate for member of County Assembly for Baba Dogo Ward under ODM Party.In Essence, the decision of the ODM party issuing the Direct ticket to the 3rd Respondent stands, having not been set aside. I have already rendered that the PPDT had no jurisdiction to entertain the complaint, despite its holding that it had the requisite jurisdiction.

62. In the cases Hezron Opiyo vs Prof. Peter Anyang Nyongo, David Ochieng Baabu vs Lorna Achieng Ochieng [2017] eKLR as well as Samuel Wakiaga (Supra), the courts in similar circumstances held that the High Court has no jurisdiction to entertain an appeal directly from the Internal Party Dispute Mechanism organ unless it has also brought an appeal to the PPDT from which an appeal may be filed at the High Court.

63. In the absence of compliance with the procedural requirements under the Political Parties Act, 2011, and the Amendments of 2022, it follows that this court too has no jurisdiction to entertain the appeal before it.This court has not been told that the appellant attempted, and if so, in what manner, to subject his dispute to the party dispute mechanism, so as to have reason to bypass it and approach the PPDT.

64. In the case Francis Mutuku (Supra), the court rendered;the law is clear with regard to circumstances such as are now before me, and courts have expressed themselves quite succinctly on this point, where there are specialized procedures provided by the law or the constitution for the resolution of disputes they should be followed (emphasis added)The dispute in this appeal falls squarely under the institutions that the Political Parties Act invests jurisdiction.The law requires that the said mechanism be exhausted and only upon being dissatisfied would the complainant take the grievance to the Political Parties Tribunal, and if still not satisfied, the party has a right of appeal to the High Court from which an appeal lies to the Court of Appeal. To do otherwise would in effect defeat the purpose of the mandate given to the various institutions provided under the law and the constitution.

65. Similar to the finding in the Samuel Wakiaga case (Supra), I find this appeal to be pre-mature, for reasons stated above, notably that the decision of the 1st and 2nd Respondents has not been challenged through the Party’s Internal Dispute Resolution Mechanism, before it could be filed with the PPDT, then on appeal to this court.

66. That being the case then, the reliefs sought by the Appellant cannot be availed to him. For the same reasons, the court holds and finds that it has no jurisdiction, at least at this stage, to entertain the appeal.Consequently, the appeal filed hereof lacks merit and is thus dismissed.

67. Due to the nature and circumstances pertaining to the appeal, the order that presents itself on costs, is that each party does bear own costs of the Appeal.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF MAY 2022. J.N.MULWAJUDGE.