[2022] KEHC 12057 (KLR)

Okello v Owera & another (Civil Appeal E352 of 2022) [2022] KEHC 12057 (KLR) (Civ) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12057 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E352 of 2022

JK Sergon, J

June 6, 2022

Between

David Ruong’o Okello

Appellant

and

Peter Owera

1st Respondent

Orange Democratic Movement

2nd Respondent

(Being an appeal from the judgment and decree of the Political Parties Disputes Tribunal at Nairobi (Desma Nungo, Dr. Kenneth Mutuma, flora M. Maghanga-Mtuweta) delivered on 12th May, 20222 in PPDT Complaint No. E065 of 2022)

Judgment

1. Orange Democratic Movement party (ODM), the 2nd respondent herein conducted its party primaries for Huruma Ward, in Mathare constituency within Nairobi County on April 22, 2022 in which Peter Owera, the 1st respondent herein, as result was thereafter issued with an interim nomination certificate.

2. David Ruong’o Okello, the appellant herein together with other aspirants filed a joint appeal to the 2nd respondent’s appeals tribunal to challenge the manner in which the party primaries were conducted and the subsequent issuance of the interim nomination certificate to the 1st respondent.

3. The ODM appeals tribunal heard and determined the appeal in favour of the appellant. The interim nomination certificate which was issued to the 1st respondent on April 27, 2022 was nullified by the ODM appeals tribunal and the issue of nomination was referred back to the 2nd respondent.

4. On April 28, 2022 the 2nd respondent proceeded to issue a direct ticket to Peter Owera, the 1st respondent.

5. The appellant being aggrieved, proceeded to file a complaint before the Political Parties Dispute Tribunal hereinafter referred to as the “tribunal” to challenge the nomination of the 1st respondent. The tribunal heard the complaint and made orders striking out the complaint on the basis that it lacked jurisdiction to entertain the complaint since the appellant had failed to first approach the 2nd respondent’s internal dispute resolution mechanism (I.D.R.M).

6. The appellant was again aggrieved and he preferred this appeal and put forward the following grounds:i.Thatthe learned trial bench erred in fact by consolidating Nairobi PPDT E059 of 2022 and Nairobi PPDT E065 of 2022. ii.Thatthe learned trial bench erred in fact by advising themselves that Nairobi PPDT E059 of 2022 and Nairobi PPDT E065 of 2022 had similar facts.iii.Thatthe learned trial bench erred in law and in fact to consider the 2nd respondent’s appeals tribunal being its internal dispute resolution mechanism’s decision which found the April 22, 2022 nomination exercise irregular.iv.Thatthe learned trial bench erred in law by failing to note that the 2nd respondent did not conform with rule 4, 8 and 23 of its party primary election rules.v.Thatthe learned trial bench erred in law and in fact by failing to observe that the appellant had complied with section 40 of the Elections Act since alternative disputes resolution mechanism (IDRM) was sought in respect of the 2nd respondent’s nominations exercise conducted on April 22, 2022. vi.Thatthe learned trial bench erred in law and in fact by absolving itself of the jurisdiction to determine PPDTC E065 of 2022. vii.Thatthe learned trial bench erred in law and in fact by striking out Nairobi PDTC E065 of 2022.

7. This court gave directions to have this appeal determined by written submissions.

8. I have re-evaluated the complaint that was before the tribunal. I have further considered the rival submissions plus the authorities cited by the parties. Though the appellant put forward a total of seven (7) grounds of appeal those grounds may be summarized to two main grounds:i.Whether the tribunal erred in consolidating Nairobi PPDT E059 with Nairobi PPDT 065 both of 2022. ii.Whether there was compliance with the provisions of section 40 of the Political Parties Act in regard to internal dispute resolution mechanism (IDRM)

9. As regards the first ground of appeal, it is the submission of the appellant that the tribunal erred by consolidating Nairobi PPDT E059 with Nairobi PPDT E 065 of 2022. The respondents are of the submission that the appellant’s argument cannot stand because it is clear that parties appeared and fully participated in the proceedings before the tribunal and in fact agreed to have the two complaints consolidated.

10. A careful perusal of the tribunal’s record will reveal that parties actually consented to have the two complaints to be consolidated. The appellant is therefore estopped from challenging what he had agreed to be done before the tribunal. In any case, the appellant has failed to show the prejudice he suffered by the order of consolidation.

11. In respect of the second ground of appeal, the appellant is of the submission that he complied with the provisions of section 40 of the Political Parties Act in regard to internal disputes resolution mechanism. He argued that the subject matter of the instant dispute is the conduct of the nomination exercise undertaken by the 2nd respondent on April 22, 2022 and its outcome.

12. He further pointed out that the 2nd respondent’s appeals tribunal upon hearing his complaint, nullified the nomination exercise and the interim nomination certificate issued to the 1st respondent on April 27, 2022.

13. He further stated that subsequent to the nullification exercise, on April 28, 2022, the 1st respondent was issued with the nomination certificate dated April 22, 2022 and in which it is stated that the said nomination certificate is issued to the 1st respondent as the winner of the nomination exercise conducted on April 22, 2022 which had been nullified by the 2nd respondent’s IDRM.

14. In short, the appellant stated that an appeal from the nomination exercise was undertaken by the ODM party’s appeals tribunal and a decision was rendered on April 27, 2022 nullifying the said exercise.

15. It is further the submission of the appellant that the issuance of the nomination certificate to the 1st respondent and the same having arisen from the impugned nomination exercise whose result was successfully contested before the 2nd respondent’s appeals tribunal is a clear demonstration that the IDRM was sought hence the PPDT erred in ruling otherwise.

16. The 1st respondent on the other hand is of the submission that the tribunal properly found that the appellant had not exhausted the 2nd respondent’sIDRM before approaching PPDT.

17. The 1st respondent stated that the decision by the 2nd respondent to issue a direct ticket to the 1st respondent on April 28, 2022 constituted a fresh nomination which the appellant should have first challenged using theODM party IDRM.

18. The 2nd respondent on the other hand adopted near similar arguments like those of the 1st respondent. It argued that the issuance of a direct ticket through a resolution of the central committee constituted a new cause of action hence the first port of call could only be the 2nd respondent’s IDRM.

19. I have carefully perused the judgment delivered by the tribunal. It is apparent that the tribunal noted that the pleadings filed by the parties disclosed three different modes of nominating vizly: first universal suffrage on April 22, 2022, secondly, consensus on April 28, 2022 and thirdly, direct nomination on April 28, 2022.

20. The tribunal further noted that the nomination exercise conducted on April 22, 2022 was nullified by the ODM national appeals tribunal vide its decision delivered on April 27, 2022.

21. It is also apparent that the 2nd respondent through a resolution by its central committee issued direct nomination certificate to the 1st respondent on April 28, 2022.

22. I am persuaded by the respondent’s argument that the decision by the 2nd respondent’s central committee to issue a direct ticket to the 1st respondent constituted a fresh cause of action, therefore any party aggrieved by that decision should have first approached the party’s IDRM pursuant section 40 (2) of the Political Parties Act. The appellant did not discharge this obligation. The tribunal was therefore right to decline jurisdiction in the circumstances.

23. In the end, this appeal is found to be without merit. The same is ordered dismissed. In the circumstances of this dispute, a fair order on costs is to order which I hereby do, that each party should bear its own costs.

DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2022. ………….…………….J. K. SERGONJUDGEDelivered online via Microsoft Teams at Nairobi this 6th day of June 2022. .........................................D. O. CHEPKWONYJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent..................................... for the 2nd Respondent