[2022] KEPPDT 1018 (KLR)

Omar v Ondiek & 2 others (Miscellaneous Application E002 (MSA) of 2022) [2022] KEPPDT 1018 (KLR) (20 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1018 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Miscellaneous Application E002 (MSA) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 20, 2022

Between

Abrari Mohamed Omar

Applicant

and

Kelvin Ondiek

1st Respondent

Orange Democratic Movement National Elections Board

2nd Respondent

and

Independent Electoral and Boundaries Commission

Intended Respondent

Ruling

1. This Tribunal on the 29/04/2022 issued orders directed to the 2nd Respondent which declared the 1st Respondent not the bonafide Orange Democratic Movement Party elected candidate to contest the seat of Member of County Assembly representing Kongowea Ward.

2. The Orders further directed the 2nd Respondent to give effect to the orders of its appeals Tribunal in the case of Mombasa Appeals Tribunal No.8 of 2022 Abrari Mohammed Omar vs Kevin Ondieki & Returning Officer Kongowea Ward.

3. These Orders were served upon the 2nd Respondent who have chosen to disregard and ignore them.

The Applicant’s Application 4. The Applicant herein filed his Notice of Motion Application under certificate of urgency dated May 6, 2022 and supported by his affidavit sworn on the same date.

5. The Notice of Motion is brought under the provisions of Section 1A,1B,3,3A of the Civil Procedure Act, and Order 1 Rule 10, Order 51 Rule 1 of the Civil Procedure Rules, and ALL other enabling provisions of the Law.

6. The applicant seeks for Orders that:1. Spent2. The Independent Electoral and Boundaries Commission (IEBC) be enjoined in the suit as the 3rd Respondents.3. A declaration order be issued declaring Abrari Mohamed Omaras the ODM nominated candidate for Member of County Assembly Kongowea Ward.4. An order of temporary injunction be issued against the 3rd Respondent restraining the 3rd Respondent from gazetting any other name save Abrari Mohamed Omar as ODM candidate for Member of County Assembly Kongowea Ward.5. The Independent Electoral and Boundaries Commission (IEBC) be directed to nominate and subsequently gazette Abrari Mohamed Omaras the Orange Democratic Movement party elected candidate to contest the seat of Member of County Assembly representing Kongowea Ward.6. The 2nd respondents commissioners; Mr. Abdulahi Diriye, Mr. Richard Tairo and Ms. Syntei Nchoe be cited for contempt of court orders.7. The 2nd respondents Commissioners be committed to six months civil jail and/or pay a fine of one million Kenya Shillings for contempt of court.8. Any such orders as this honourable courtmay deem fit to issue9. The cost of this application be provided for.

7. The Application is supported by the affidavit of Abrari Mohammed Omarand premised on the grounds on the face of it which can be summarized as follows:i.That the applicant herein participated in the 2nd respondent’s nomination held on the 09/04/2022 for the post of Member of County Assembly for Kongowea Ward have being cleared by the 2nd Respondent.ii.He garnered 563 votes while the 1st respondent got 142 votes, however, the 1st respondent was granted the interim certificate of nomination for the post of Member of County Assembly for Kongowea Wardiii.Aggrieved by the 2nd respondents decision to issue the 1st respondent with the interim nomination certificate, the applicant appealed to the ODM Appeals Tribunal on the 12/04/2022. iv.The ODM Appeals Tribunal delivered its judgment on the 16/04/2022 directing the cancellation of the Interim Certificate issued to the 1st respondent and directing the 2nd respondent to declare and issue the certificate to the Applicant who was declared the winner according to the party results. This was to be done within 48 hours of the judgment.v.The 2nd respondent was served with the orders but they chose not to comply with them which compelled the applicant to move to the Tribunal and file a complaint on the 19/04/2022vi.Orders dated 29/04/2022 were issued by the PPDT which declared that the 1st respondent was not a bonafide Orange Democratic Movement party elected candidate to contest the seat of Member of County Assembly representing Kongowea Ward.vii.The orders further directed the 2nd respondent to give effect to the orders of its appeals tribunal in the case of Mombasa Appeals Tribunal in the case of Mombasa Appeals Tribunal No. 8 of 2022 Abrari Mohamed Omar vs Kevin Ondiek & Returning Officer Kongowea Ward.

8. The 1st and 2nd Respondents did not respond and the application was by consent withdrawn as against the intended 3rd Respondent and as such the application is unopposed.

Issues for Analysis and Determination 9. Having read through the pleadings together with the annexures and having heard counsel for the parties present in the absence of the 1st and 2nd Respondents the following issues are for determination in this claim:i.Whether the applicant’s Application has merit and whether the 2nd respondent is in contempt of the Tribunals Orders?ii.What orders can the Tribunal issue in the circumstancesiii.Who bears the costs of this claim?

Disposition Whether the Applicants Application has merit and whether the 2nd Respondents are in contempt of this Tribunals Orders. 10. It is not in dispute that this Tribunal heard and determined the applicants Complaint and issued orders to the effect that the 2nd respondents were expected to comply.

11. Despite being served with the said orders the 2nd respondents refused and ignored the same and has not complied with them but have decided to issue the nomination certificate to the 1st respondent whereas the Tribunal had ordered for fresh nomination exercise.

12. It is coming out clearly that from the acts of the officials of the 2nd respondent they are not moved by their own tribunal orders nor the orders of this tribunal or the courts.

13. It was not disputed that there were orders that came from their own Appeals Tribunal that they also ignored and which led the complainant to the Political Parties Disputes Tribunal.

14. This Tribunal takes notice of the behaviour of the officials of the 2nd Respondents who despite not complying with this court’s orders they have not even filed any responses to the allegations made both in the complaint and now in this application.

15. They have also not sort for clarification on the orders made yet they are aware of the complaint filed and the application filed but they choose to ignore and do as they desire flaunting even their own rules and orders.

16. It should be noted that orders of court and tribunals are not issued in vain. Unless reviewed and/or appealed against the same ought to be obeyed.

17. The Court of Appeal in the case of Fred Matiang’i, The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4others [2018] Eklr stated“……. when courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex-cathedra, are compulsive, peremptory, and expressly binding. It is not for any party, be he high or low, weak or mighty and quiet regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts will deal firmly and decisively with any party deigns to disobey court orders and will do so not only to preserve its authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law and the upholding under the rule of law are not mere platitudes but present realities…”

18. Having said that and without much further ado this court is satisfied that the application is merited and the same is allowed as prayed.

What orders can the Tribunal issue in the circumstances 19. In PPDT Complaint No.48/17 John Murutu vs Thomas Ludindi Mwadeghu & 2 others it was held that in every matter over which the Tribunal has jurisdiction, the Tribunal can grant any order that is just and equitable in accordance withsection 11 (1) of the Fair Administrative Action Act 2015.

20. The proper discharge of this Tribunal is to grant effective remedies which means the most appropriate remedy in the circumstances of the case. Accordingly, the justice of this case requires us to make the following orders:i.A declaration be and is hereby issued declaring the applicant Abrari Mohamed Omaras the ODM nominated candidate for Member of County Assembly Kongowea Ward.ii.An order be and is hereby issued restraining the (IEBC) from gazetting any other name save for Abrari Mohamed Omar as ODM candidate for member of county assembly Kongowea Ward.iii.For the avoidance of doubt, The Independent Electoral and Boundaries Commission (IEBC) be and is hereby directed to gazette Abrari Mohamed Omaras the Orange Democratic Movement Party elected candidate to contest the seat of Member of County Assembly representing Kongowea Ward.iv.That summons be issued to the officials of the 2nd Respondent specifically the National Elections Board to show cause why they should not be committed to civil jail for being in contempt of this Tribunal Orders.v.That the said summons be extracted and served immediately to the officials of the 2nd Respondent (Mr. Abdulahi Diriye, Mr. Richard Tairo and Ms. Syntei Nchoe) to appear in court on Tuesday May 24, 2022 at 9. 30am for purposes of mitigation and sentencing.

Who bears the costs of this application? 21. Ordinarily, this tribunal equates political parties with families and is mostly reluctant to award costs against members of the same party. But in the instant case, the respondents have caused unnecessary suffering to the applicant and therefore the 2nd respondent ought to compensate the applicant in terms of cost of this application and the Tribunal hereby so orders.

22. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF MAY 2022. HON. ERASTUS ORINA(PRESIDING MEMBER)HON. THERESA CHEPKWONY (MEMBER)HON. DANIEL KAGACHA(MEMBER)