[2022] KEPPDT 967 (KLR)

Ogutu v Orange Democratic Movement & 2 others; Independent Electoral & Boundaries Commission (IEBC) (Interested Party) (Complaint E040 (KK) of 2022) [2022] KEPPDT 967 (KLR) (3 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 967 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E040 (KK) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 3, 2022

Between

Jacob Ochieng Ogutu

Complainant

and

Orange Democratic Movement

1st Respondent

National Elections Board (ODM)

2nd Respondent

Odhiambo Majiwa

3rd Respondent

and

Independent Electoral & Boundaries Commission (IEBC)

Interested Party

Judgment

Background 1. The complainant is a member of the 1st respondent Political Party. On the 22 of April 2022 he participated in the said 1st respondent s party nominations for position of Member of County Assembly for Baba Dogo Ward for the Orange Democratic Movement (ODM) ticket in which he emerged a winner and was awarded an interim nomination certificate.

2. Following the said nomination process an appeal was lodged in the party Tribunal by the 3rd respondent on the grounds that the said party nominations were marred with violence and voting was only open for two hours. Further, that despite resumption to normalcy, voting did not resume. The tallying of votes was done at 5pm on April 22, 2022.

3. The said dispute presented to the ODM Appeals Tribunal by the 3rd respondent was registered as ODM Appeals Tribunal case no. 34 of 2022 and the Appeals Tribunal in consultation with the National Election Board and Central Committee determined that a direct ticket issue to the 3rd respondent . The said decision by the party Tribunal is dated 25th April and delivered on April 26, 2022 at 10:00 am.

4. The complainant being dissatisfied with the decision made by the party organ lodged this complaint on April 28, 2022under certificate of urgency.

5. The complainant seeks the following orders:a.A declaration that 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 herein is null and void.b.An order restraining the interested party from considering the name of Geoffrey Odhiambo Majiwa, the 3rd respondent as the duly nominated candidate for Baba Dogo ward on the Orange Democratic Movement Party.c.An order directed at the 1st and 2nd respondent s to issue the nomination certificate for Baba Dogo Ward on the Orange Democratic Movement Party to Jacob Ochieng Ogutu.d.Any other appropriate Order that the Tribunal may deem fit in the circumstancese.Costs of the Suit.

6. In response to the complaint the 1st and 2nd respondent s filed their response to the Complaint by way of a replying affidavitas a singular pleading. The Affidavit is dated the 30th of April, 2022 and is sworn by Catherine Mumma, the Chairperson of the National Elections Board of the 1st respondent .

7. The 3rd respondent on his part filed, through his Advocates, his Replying Affidavit, a Preliminary Objection and Grounds of Opposition.

8. It is the complainant s case that this Tribunal has jurisdiction by virtue of the fact that the dispute concerns members of a political party and their party and further by dint of the fact that the subject matter of the dispute had already been subjected to internal process.

9. He submits that the issue in dispute was subject matter before the party organ in case number 34 of 2022 and the party determined on it. This, in his submission, vest jurisdiction upon this Tribunal.

10. The complainant contends that the political party opted to identify their nominee for the position in issue vide universal suffrage and proceeded to conduct the voting exercise on April 22, 2022.

11. The complainant emerged winner and was issued with an interim nomination certificate. However the 3rd respondent s challenged the nomination vide the party organ.

12. The party organ (Tribunal) found that the violence had affected the process but that the same could not be attributed to the complainant . The organ thereafter referred the matter to the 2nd respondent .

13. The complainant submits that the 1st respondent then in an unexplained manner, proceeded to issue a direct ticket to the runner up of the voting process where he had won.

14. It is the complainant submissions that although voting only took place for two hours the voting material was secured and thus at the point of tallying the true will of the voters was clear.

15. He submits that it is unfair that he should be punished when the voting disruption was not occasioned by him, nor did he benefit from the said disruption.

16. The complainant opposes any attempt by the Respondents to refer to the decision to issue a direct nomination as a fresh or second nomination process and submits that in any even if this were the case then the PPA [Political Parties Act] provides a clear procedure as to how and what a party must do before embarking on or conducting a nomination process.

17. He goes on to state that the interested party is rightly enjoined in the proceeding by virtue of his Constitutional supervisory role over the electoral process.

18. He concludes by stating that his complaint is merited and that the prayers he seeks be granted.

The 1st & 2nd respondent s Case 19. The crux of the 1st and 2nd respondent s case as presented in the Replying Affidavit by the Chairperson of the NEB, Catherine Mumma sworn on their behalf is that:a.The 1st respondent carried out Party nominations for Baba Dogo Ward in Nairobi County and the candidates who presented themselves and were effectively vetted were: Jacob Ochieng’ Ogutu, Godfrey Ojiambo Majiwa, Anthony Omondi Olweny and Peter Ngigi Karanja.b.After the party primaries were concluded the 3rd respondent Mr. Godfrey Ojiambo Majiwa went to the Party’s National Appeals Tribunal with an array of complaints against the complainant Mr. Jacob Ochieng’ Ogutu.This included that the nominations were marred with violence and that the results presented by the Returning Officer were not a true reflection of the will of the Party Members in Baba Dogo Ward.c.The National Appeals Tribunal heard the matter and delivered a judgement to the following effect:i.The elections for Baba Dogo Ward were held for only two hours on account of violenceii.The incidents of violence significantly affected the resultsiii.The interim certificate issued to Mr. Jacob Ochieng Ogutu was nullifiediv.And the matter referred to the National Elections Board for appropriate action

20. The said respondent s submit that the National Elections Board considered all the factors relevant to the matter and in exercise of its mandate and powers issued a direct ticket to the 3rd respondent Mr. Godfrey Ojiambo Majiwa.

21. It is the 1st and 2nd respondent s submissions that this complaint is prematurely before this Tribunal as the issue that was determined by the party Tribunal was different to the issue before this Tribunal as it involved the impugned voting process. That the current issue is in respect of the issuance of direct nominations and as such an aggrieved person should have appealed before the relevant party organ before moving this Tribunal.

22. It is their further submission that the nomination having not been conducted in a peaceful process cannot have been free and fair and as such the complainant cannot benefit from it.

23. More particularly the 1st and 2nd respondent s submit as follows:a.It is not disputed that the Primaries in relation to Baba Dogo Ward were marred by violence. It is further not disputed that as a result the Primaries were not done to completion. In actual fact only Two (2) hours of the Primaries could be conducted.b.To ensure that the Nominations/Primaries are carried out in a manner that promotes the values of a democratic, free, fair, transparent, accountable, inclusive and participatory process the 1st respondent has promulgated Nomination and Election Rules that have been verified and approved by the Independent Electoral and Boundaries Commission (IEBC).c.The decision of the National Appeals Tribunal had the effect of nullifying in their entirety the attempt at the Primaries conducted on the 22nd April, 2022 and the complainant did not appeal the said decision from the NAT.d.As a consequence, with the referral of the matter to NEB the 1st respondent through its constituent Organs was entitled to adopt or employ any of the methods of Election set out in Rule 8 of the 1st respondent ’s Party Primaries and Nomination Rules, any of which is a perfectly valid method of nomination and are among the Rules in the Party’s Nomination Rules as approved by the IEBC and further recognized by the Political Parties Act.e.The results of the impugned process could not be relied on to determine the representative/nominee of the Party. It is clear from the evidence adduced at the National Appeals Tribunal that the will of the people of Baba Dogo was not demonstrated in the “two hour” results that the complainant seeks to rely on.

24. The 1st and 2nd respondent s have referred to the Wakiaga case where Justice Achode states as follows;"The PPDT noted that initially, in this case, the Party had opted to conduct primaries by way of universal suffrage. When the results of this exercise were nullified by NAT it made an order in which it directed the Party to proceed in a manner compatible with the Party Constitution, and Nomination and Election Rules. The PPDT found that by being asked to identify its candidate, the party was given the opportunity to decide its mode afresh after the nullification of the primaries held on the 24th April, 2017. The PPDT made the following findings: “It is our finding that in granting direct nomination, the party acted in compliance with the NAT decision, the party constitution, and Elections and Nomination Rules.” Having considered the grounds of the appeal and the rival arguments of counsels on record, I am in agreement with the findings of the PPDT, which in any case have not been challenged in the grounds of the Appellant. I also find that the appeal is prematurely before this court, the dispute having not been subjected to the IDRM."

25. The said respondent s submit that the complaint is fatally defective on grounds that the Honourable Tribunal does not have jurisdiction and the subsequent nomination after the nullification of results by the Party NAT was grounded in law.

26. They state that if the complaint was to be allowed it would have the effect of usurping legitimate Party processes which are statutorily protected and set a very dangerous precedent.

27. They conclude that it is evident that the complaint and Motion clearly lacks in merit and are and should be for dismissal and pray that complaint and Motion both dated 28th April, 2022 should be dismissed with costs.

The 3rd respondent s Case 28. The 3rd respondent s raised a Preliminary Objection to the complaint and application on the grounds that:a.Pursuant to section 40 (1) & (2) of the Political Parties Act, this Honorable Tribunal is divested of jurisdiction where. Party has failed to exhaust the internal political party dispute resolution mechanism [IDRM]; to wit the ODM National Appeals Tribunal.b.A fresh nomination process having been done and the 3rd respondent nominated as the ODM candidate for the Baba Dogo Ward any dispute thereunder should be filed at the ODM National Appeals Tribunal.c.Section 9 (2) of the Fair Administrative Action Act makes it compulsory for parties to exhaust internal mechanisms available to them before moving to the Court.d.Article 159 (2) of the Constitution requires the courts to exercise judicial authority while promoting alternative methods of dispute resolution.Those effectively vetted were: Jacob Ochieng’ Ogutu, Godfrey Ojiambo Majiwa, Anthony Omondi Olweny and Peter Ngigi Karanja.

29. He thus prays that the application and complaint be struck out and should be dismissed in limine with costs.

30. He further relies on his grounds of opposition dated April 29, 2022 together with his verifying affidavit.

Issues for determination 31. We have identified the following as the issues before us for determination:i.Does this Tribunal have jurisdiction?ii.Is the complaint warranting of the orders sought?

Analysis Does this Tribunal have Jurisdiction? 32. Whereas it is not contested that the parties before this Tribunal have right of audience having properly been identified as persons over whom this Tribunal can exercise jurisdiction, all being members of a political party, the question of jurisdiction turns on section 40 (2) of the Political Parties Act [PPA].

33. The current wording of section 40 (2) PPA states as follows: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 mechanisms.In effect what is in question is whether first available remedy was exhausted or even applied.

34. The exceptions to the exhaustion requirement are not clearly delimited, however the Court of Appeal gave guidelines when they would apply in Republic vs. National Environment Management Authority, Civil Appeal No. 84 of 2010, as follows:"...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it..."

35. The complainant has submitted, which is not controverted, that the internal party organ delivered the impugned decision on the April 26, 2022. In issuing its final orders the said party Tribunal notes that necessary timelines as provided by IEBC be taken into consideration. The next option was to come before this Tribunal.

36. The respondent s on the other hand submit that the current complaint is in reference to a 2nd nomination process, which said second process they have not shown. There is no evidence submitted before this Tribunal to show what required steps if any the ODM party took in initiating the second nomination process. The only nomination process detailed before us is the process as outlined by the complainant and by the party Tribunal in its decision. We are thus not persuaded by the respondent s argument. The issue was the impugned nomination and IDRM was conducted.

37. Attempt at IDRM as stipulated in the PPA is evident and as such this Tribunal is properly seized of this matter.

Is The Complaint Warranting of the Orders Sought? 38. It is not in dispute that the ODM nomination process in issue was marred with violence even though the violence was not attributed to any one individual aspiring for the ticket in issue.

39. We look into the pleadings and documentation placed before this Tribunal and note that the parties all concede, both before the party organ and before this Tribunal, that violence and irregularities subsisted. The complainant s’ main contention is that it did not impact the outcome of the voters preference and thus did not impact the final outcome of the vote by those that had turned out. Curiously he presents no evidence to support any claim that voting trend would have continued in a pattern to support his alleged potential to winning the race for the party ticket.

40. The respondent s on the other hand submit that the irregularities in the process impacted the possibility of voters turning up to express their preference.

41. From these, more specifically, what we can clearly determine from the information that was before us, is that there was violence and irregularities and these were key factors before the party Tribunal.

42. Should any party benefit from such irregularities? The party organ determined no.

43. Was this determination by the ODM Tribunal in error? In answering this we ask; Was it illegal? No, this was the right body mandated to make such determination. Was there procedural unfairness? None has been raised or claimed.

44. We then ask ourselves, Was the decision irrational? In answering ourselves as to this last segment, we refer to what was stated by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2others [2010] 1 KLR 526: that“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place’

45. It is apparent that the party organ having reviewed the evidence before it found that the process was insufficient to determine as one having presented ample opportunity to the party members and aspirants to realise their political and civil rights. The violence undoubtedly had impact on the process. The party organ, unlike this Tribunal, likely had fuller information relating to the said nomination process, including factors like the number of registered party members in the said Ward.

46. In light of and given the information before us, we see no reason to overturn the party organs observation.

Disposition 47. We make the following orders:a.The Complaint herein dated April 28, 2022 is hereby dismissed with costs.

DATED THIS 3RD DAY OF MAY 2022. ......................................................M. L. ODONGO(PRESIDING MEMBER)......................................................TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)......................................................DR. LYDIAH WAMBUI(MEMBER)