[2022] KEPPDT 992 (KLR)

Omondi & another v Mumma & 2 others (Complaint E125 (NRB) of 2022) [2022] KEPPDT 992 (KLR) (Civ) (10 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 992 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E125 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

August 10, 2022

Between

Samuel Nundu Omondi

1st Complainant

David Ochieng Ngesa

2nd Complainant

and

Catherine Muyeka Mumma

1st Respondent

Orange Democratic Party Movement

2nd Respondent

Odm National Elections Board

3rd Respondent

Judgment

1. This matter arises out of the nomination of the 1st Respondent for the 2nd Respondent’s Party List to the Senate, which nomination the Complainants found to be improper because the 1st Respondent is the Chairperson of the ODM National Elections Board - 3rd Respondent herein, which is responsible for conducting the said nominations.

2. Displeased by the outcome, the Complainants moved to the 2nd Respondent’s Appeal Tribunal to challenge the declaration. The said Tribunal dismissed the appeal by way of judgment dated August 5, 2022 and issued the following orders:a.The Complainants have no locus to institute the instant Complaint.b.The Complainants have invoked the jurisdiction of the Honorable Tribunal wrongly.c.This decision be shared with the National Party Lists Nomination Committee for further action as per the requirements of the National Elections Timelines of the IEBC.d.Each party to bear their own costs.

3. Aggrieved by this determination, the Complainants have moved this Honorable Tribunal by way of Complaint dated August 5, 2022, seeking the following orders:a.It be declared and determined that the 1st Respondent, Catherine Muyeka Mumma, is not duly nominated and the nomination is void.b.The Honorable Tribunal be pleased to issue a declaration that the 1st Respondent cannot be nominated as she is the Chairperson of the 3rd Respondent responsible for conducting the said nominations.c.That costs should be borne by the Respondents.

4. The Complaint herein was filed together a Supporting Affidavit and a Notice of Motion application filed under a Certificate of Urgency. The Complaint and the application are both opposed by the Respondents who have filed their respective responses thereto.

5. Pursuant to the directions issued by this Tribunal, the matter came up for hearing on August 7, 2022 when the parties made their oral submissions. The Complainants were represented by Mr Oloo; the 1st Respondent by Mr Okore; while the 2nd and 3rd Respondent were represented by Mrs Ochieng.

The Complainants’ Case 6. The matter relates to the nomination of the 1st Respondent for the 2nd Respondent’s Party List to the Senate as a woman nominee. Counsel submitted that there exists a conflict of interest as the 1st Respondent nominated herself and yet as she is involved in the nomination process.

7. The Complainants argue that the 1st Respondent is the Chairperson of the 3rd Respondent, which is tasked with supervising all party elections and nominations of candidates including Party Lists (pursuant to the ODM Party Primary and Nomination Rules 2021). That as the Chairperson, she has the mandate of receiving applications for the Party List of the applicants who wish to be nominated to various positions and subsequently preparing a shortlist for the National and County Party Lists Nomination Committees who then nominate.

8. The Complainants contend that the decision of the 1st Respondent to nominate herself for the Party List was unjust and unfair and does not promote democracy as it amounts to bias occasioned upon other applicants. The Complainants further contend that the actions of the 1st Respondent go against the Party Constitution, Party Rules, the Elections Act and the Constitution of Kenya and is aimed at circumventing the will of the people. The Complainants argue that the drafters of the Nomination Rules did not envisage that a Chairperson would nominate herself to any position while supervising such an important process.

9. Counsel submitted that the 1st Respondent acted selfishly when she nominated herself in the first position for the Senate Nomination List knowing that Party Lists favour order of priority and that because of the party’s popularity, she is assured of a nomination slot in the Senate of Kenya.

10. Counsel further submitted that the 1st Respondent’s self-nomination is discriminatory and biased to other applicants for the nomination to the Senate position who lack the kind of advantages that she enjoys in the nomination process. The Complainants also argue that the 1st Respondent lacks integrity as evidenced by her decision to nominate losers of the primary elections despite the 2nd Respondent’s Appeal Tribunal pronouncing itself.

11. The Complainants contend that the 1st Respondent’s actions are contrary to the integrity and leadership guiding principles as envisaged in Chapter Six of the Constitution as demonstrated by her lack of objectivity and impartiality in decision making; as well as her lack of accountability to the public and ODM members in particular, by nominating persons contrary to Party Rules. The Complainants argue that the 1st Respondent has as a result of her actions, compromised the office of Chairperson and therefore lacks the personal integrity or competence to be nominated to the Senate.

12. On the issue of locus standi, learned Counsel maintained that the Complainants have locus standi to institute the Complaint as they are registered members of 2nd Respondent and that nominations affects all members of the parties. Counsel further submitted that the 2nd Respondent draws funds from public, and that the foregoing qualify the matter as one of public interest.

13. In their rejoinder, the Complainants noted that it was not in doubt that the first person on the Party List was the 1st Respondent. They questioned whether the 1st Respondent had the first right to be nominated, as opposed to a woman with disabilities. The Complainants argued that the Respondents had a responsibility to forward names of Persons with Disabilities (PWDs) or persons from other marginalized groups. The Complainants further argued that the Respondents had not adduced the minutes of the nominations deliberations as evidence nor had they given reasons to explain why the 1st Respondent qualified to be nominated with such a high rank.

The 1st Respondent’s Case 14. Learned Counsel Mr Okore argued that the Complainants made assumptions regarding the 3rd Respondent’s nomination process by presuming that the decisions of the 3rd Respondent as the Elections Board are synonymous with the individual decisions of the 1st Respondent. Counsel maintained that the 3rd Respondent makes its decisions independently and that there is no conflict of interest.

15. Counsel further argued that the Complainants did not cite any provision in law that bars the 1st Respondent from participating in the nomination process or from being placed in the Party List in the women nominees to the Senate. On the issue of locus standi, Counsel relied on Rule 12(3) of the Party’s Nomination Rules that states that the only party that can bring a complaint is an aspirant. Counsel noted that no aspirant had laid a claim in this matter.

16. Counsel also relied on the case of Hezron J. Opiyo Asudi & another v Peter Anyang’ Nyong’o & 6 others [2017] eKLR, where the issue of locus standi was considered. The Court found where a party is not a subject of the process or acting on the subject’s behalf, then they are considered “busy bodies” and therefore lack the locus standi needed to institute a Complaint. Counsel contends that the Complainants in this matter do not have locus standi and are on a witch-hunting mission.

17. Counsel further argued that any decision made regarding the contested Party List will offend rules of natural justice as the remaining 19 people on the List had not been enjoined as parties.

The 2nd and 3rd Respondents’ Case 18. Learned Counsel Mrs Ochieng, submitted that as a Political Party, the 2nd Respondent has structures in place in line with both the National Constitution and its Constitution and Rules to conduct Party Lists nominations and among them is the National Party Lists Nomination Committee whose purpose is to nominate individuals to the Senate, among other places.

19. Counsel maintained that the 3rd Respondent’s responsibility in the formulation of the Party Lists is only limited to:a.Sending out the Expression of Interest to members to apply;b.Confirming whether all the applicants are members of the Party and whether the requisite nomination fees has been paid;c.Dispatching the applications to the respective County Party List Committees in the case of County Assembly applicants and to the National Party List Committee in the case of National Assembly and Senate applicants.

20. Counsel contends that the 1st Respondent applied and was nominated in accordance with the Party’s Constitution and Rules. She further maintained that contrary to the allegations of the Complainants, the 1st Respondent did not individually nominate herself as the nomination was conducted collegially by the National Party Lists Nomination Committee.

21. In their Replying Affidavit, the Respondents argue that 1st Respondent applied to be considered for the nomination just like anyone else and that there is nothing under the law that stops her from being nominated and placed on the Party List.

22. Additionally, the Respondents contend that the 2nd Respondent’s Appeals Tribunal was right in its determination made on the 5th August, that found that the Complainants did not demonstrate, to the satisfaction of the Tribunal that they had the requisite locus standi to lodge the Complaint and particularly;a.They did not demonstrate whether they applied and followed the due process of application as provided for under the Party Primaries and Nomination Rules for the Nairobi Senate Nomination.b.The Complainants were not Aspirants in the Nairobi Senate Nomination Party List of the 2nd Respondent.

23. The Respondents depone in their Affidavit that the Complaint herein has been brought in bad faith and is an abuse of the process. As such, it should be dismissed or struck out with costs.

Issues for Analysis and Determination 24. Having gone through the complaint, supporting affidavits and submissions by the party’s legal representatives, we have isolated the following issues for determination:i.Whether the Tribunal has jurisdiction to determine this matter?ii.Whether the Complaint has merit and what are the appropriate reliefs?iii.Who bears the cost of this matter?Whether the Tribunal has jurisdiction to determine this matter?

25. Jurisdiction is sacrosanct as pertains to the powers that a Tribunal has to determine the merits of a case. In this matter, it is the Complainants’ position that this Tribunal has jurisdiction owing to the fact that the present dispute is between party members and the party. Further, since the ODM Appeals Tribunal had heard and dismissed the complaint in the first instance. The 2nd and 3rd Respondents on the other hand argue that the Tribunal lacks jurisdiction for two reasons. First of all, the Complainants failed to sufficiently demonstrate that they applied and followed due process of application as provided for in the Party Primaries and Nomination Rules. Secondly, the Complainants do not have locus standi to bring a dispute before the Tribunal for reasons that they are not aspirants in the Nairobi Senate Nomination Party List of the 2nd Respondent.

26. The jurisdiction of this Tribunal flows from Article 159 (1) of the Constitution of Kenya that provides that “Judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Emphatically, the Political Parties Act provides in Section 40 that;1. The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and 2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

27. The present matter qualifies to be determined by the Tribunal since it is a dispute between; members of a political party – under section 40 (1)(a) by virtue of the Complainants and the 1st Respondent being members of ODM, members of the party and the political party – under section 40 (1)(b) as the Complainants are members of the 2nd Respondent and finally it arises out of party nominations 40 (1)(fa). Moreover, section 40 (2) of the Political Parties Act has been satisfied as evidenced by the Complainants’ letter dated 1st August 2022 addressed to the Orange Democratic Movement Party declaring a dispute and requesting for a Tribunal to be constituted within 24 hours for purposes of IDRM. Further, because the dispute was first heard and determined by the ODM Appeals Tribunal which rendered its decision on August 5, 2022. That said, this is sufficient evidence that the Complainants attempted to subject the matter to IDRM.

28. The 2nd and 3rd Respondent also claim that the 1st and 2nd Complainants do not have locus standi to bring a dispute before the Tribunal. To dispense with this issue, the Tribunal is guided by the provisions of Chapter 4 of the Constitution of Kenya, specifically Article 22 which provides as follows;1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or infringed, or is threatened.2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by –(a)A person acting on behalf of another person who cannot act in their own name;b.A person acting as a member of, or in the interest of, a group or class of persons.”

29. In accordance with the above Constitutional provisions, specifically Article 22 (2)(b), it is the Tribunal’s position that the Complainants are not at all ‘busybodies’ but indeed have locus standi by virtue of being members of the Orange Democratic Movement Party. It is important to point out that the Constitution of Kenya is the grundnorm and cannot be overridden by party regulations that provide otherwise. The Tribunal is thus seized of jurisdiction of the present matter and will proceed to determine the merits of this case.

Whether the Complaint has merit and what are the appropriate reliefs? 30. It is the Complainants’ case that the 1st Respondent as the Chairperson of the National Elections Board for the ODM Party, a body mandated to plan, organise, direct, conduct, supervise and coordinate all party primaries and nominations of candidates for both elective posts and the Party List nominations, cannot possibly nominate herself as the first person for the Party List of ODM nominees to the Senate. This is unjust, unfair and contravenes the principles of natural justice due to the existence of overt conflict of interest.

31. The 2nd and 3rd Respondents on the other hand state that the 1st Respondent did not nominate herself. On the contrary, she applied to be nominated like every other nominee. Besides, there is nothing in the law that prohibits the 1st Respondent, by virtue of her position as chairperson of ODM’s National Elections Board from applying for nomination. It is also the 2nd and 3rd Respondents’ case that the Complainants are not likely to suffer any harm due to the 1st Respondent’s nomination. Consequently, it would have been prudent to enjoin the other 19 nominees whose interests are likely to be affected by the determination of the present dispute.

32. The essentials of what ordinarily amounts to a conflict of interest can be discerned from legal instruments (including the Constitution) regulating the conduct of state officers and other public officials. For instance, Article 75(1)(a), indicates that state officers should avoid “any conflict between personal interests and public or official duties.” Similarly, the Mwongozo Code on Governance for State Corporations states a conflict interest may arise where a board member or state corporation employee has private interests that could improperly influence … [their] official duties … [or] … where board member or employee use their office for personal gain.”

33. Conflict of interest is defined in the Black’s Law Dictionary as a situation that can undermine a person due to self-interest and public interest. In the case of Philomena MbeteMwilu v Director of Public Prosecutions & 2 Others; Stanley Muluvi Kiima (Interested Party) [2018] eKLR, conflict of interest was defined as: “A situation where one is confronted by 2 different interests so that serving one interest would be against the other interest.”

34. Turning to this case, it is not in dispute that the 3rd Respondent is the 2nd Respondent’s party organ that supervises the nomination process, shortlists successful candidates, and forwards the list to the National Party Lists Nomination Committee. It is also not in dispute that the 1st Respondent sits in both the 3rd Respondent and the National Party Lists Nomination Committee as the Chairperson and Secretary respectively. The question that begs determination is whether her nomination was unlawful and in conflict of interest by virtue of her sitting in the stated positions.

35. We note that both the party criteria and the law are silent on the issue of conflict of interest. Similarly, {the {>/akn/ke/act/2010/constitution Constitution}} and relevant statutory instruments have no express provision restraining the actions of parties preparing party lists in this regard. This is clear from the relevant provisions addressing the matter of party lists such as Article 90 (2) of the Constitution of Kenya which provides that:“The Independent Electoral and Boundaries Commission shall ensure that,a.Each political Party participating in a general election nominates and submits a list of all persons who would stand elected if the party were to be elected to all the seats provided for under clause (1) within the time prescribed by national legislation.”

36. Further, Article 97 (1)(c) provides that;“The National Assembly shall consist of;c.Twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disability and workers.”

37. Additionally, a close look at the ODM Party Primaries and Nomination Rules reveals that the issue of conflict of interest is not addressed. Clause 60 of the rules merely provide that an aspirant should be, “an ODM member for at least a year before the upcoming elections, be qualified for election for the seat which he or she has been nominated, and be a member of good standing.”

38. Amidst this silence in the law and party’s rules, the Tribunal observes that aspiring nominees could be persons serving in high positions within the party. Given that a criterion for prioritising persons on the party list includes one’s contribution to the cause of the party, individuals in such positions may find their way to the party list given contributions they make in this capacity. In our view, there is no express provision of law or flowing from the party’s rules that has been laid before the Tribunal, that disqualifies such persons from being successfully shortlisted to Party lists.

39. In the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 2 Others; Stanley Muluvi Kiima (interested party) (supra), the Court held that a party alleging a conflict of interest bears the burden of presenting clear evidence that the person said to be acting in conflict of interest is acting in a manner prejudicial to the interests of the other party. We have gone through the record and we note that save for the mere allegations, there is no clear evidence adduced to demonstrate that the 1st Respondent acted in a manner prejudicial to the Complainants’ interests.

40. It is further clear that the preparation of party lists is within the province of political parties. In the case of Lydia Mathia vs Naisula Lesuuda & another, [2013] eKLR Court of Appeal observed that;“The definition of “party lists” under section 2 of the Elections Act suggested ownership of the list by the political party that has prepared it. The practice, indeed the law is that the power over who gets the reserved seats resides with the parties themselves and no other authority.”

41. Similarly, in the case of In the case ofLinet Kemunto Nyakeriga & another v Ben Njoroge & 2 others[2014] eKLR, the Court of Appeal stated:-“…Two new concepts have emerged in our electoral laws; party list and priority of the names in the list. Party list voting systems are widely used elsewhere in the world (particularly in Western democracies) and are designed to ensure that parties are represented proportionally in the legislature and all groups are also fairly represented. There are two broad types of party list system; closed list and open list. Whatever the case, in the party list, as the name suggests, each party lists its candidates as it may be entitled…It follows that it is the responsibility of the parties to choose their preferred candidate and rank them in order of priority of preference. The seats won by each party are filled by candidates in the order they appear on the parties’ respective list. The definition of “party list” under Section 2 of the Elections Act suggests ownership of the list by the political party that has prepared it. The practice, indeed the law, in jurisdictions with a closed list system is that the power over who gets the reserved seats resides with the parties themselves and no other authority…”

42. Emphatically, we observe based on the foregoing judicial pronouncements that the making of party lists is an exercise of discretionary powers unless it can be demonstrated that such discretion was exercised in a faulty manner, for example that the persons on the list undermine constitutional provisions, or the discretion has been poorly exercised as against another nominee who is more deserving. The former instance would entail a challenge based upon provisions such as Article 90 and 97 of the Constitution which require such list to reflect gender, regional and ethnic diversity and to represent special interest groups. The latter instance would necessitate a comparison between two or more persons seeking either inclusion or prioritisation on a party list, to assess who is more suitable.

43. As to the first instance, no evidence has been presented that demonstrates how the 1stRespondent’s nomination would contravene the inclusion of groups contemplated in Article 90 and 97 of the Constitution. Moreover, and importantly, in the present complaint, the Complainants are not contesting for the inclusion of their names in the party list, or for a more deserving priority in the list. They are not persons who had applied to be included on the list nor persons who seek priority over the 1st Respondent. Were this to be the case, several aspects around the instant complaint, such as the fitness of the 1st Respondent to be nominated, would merit further contemplation viz. a viz. other prospective nominee.

44. Without the involvement of persons with a direct interest in the outcome of the party primary list, it is difficult to delve into matters uniquely related to the suitability of persons to be included or prioritised on a party list. This dilemma is evident by the fact of the Complainants, request for the 2nd and 3rd Respondents minutes of meetings held by the nominating committee preceding the shortlisted candidates whose names were to be forwarded to the IEBC, instead of adducing further evidence to buttress allegations around the 1st Respondent’s aptness. In this regard, The Tribunal is guided by the provisions of Section 107 and 112 of the Evidence Act, which essentially places upon a party a burden of proving the facts alleged before the burden shifts to the other party. A mere statement alleging the 1st Respondent’s unsuitability does not shift this burden of proof, whose onus clearly remains upon the Complainants.

45. Considering the foregoing, the Tribunal finds no grounds for granting the prayers within the instant Complaint for the removal of the 1st Respondent from the party list. Subject to the constitutional provisions we have outlined above, a party exercises its discretion in nominating suitable persons (including their priority on the party list) bearing in mind amongst other things an individual’s past and potentially future contribution. In the present matter, and based on the reasons outlined above, it has not been demonstrated that the party did not exercise its discretion accordingly in its nomination of the 1st Respondent.

46. In reaching this conclusion, the Tribunal has also critically analysed the question of harm that the Complainants are likely to suffer by the 1st Respondent’s nomination noting that they are members of the ODM party but not nominees on the party list. It is the Tribunal’s position that such harm is not clear. Additionally, the Complainants failed to address the Tribunal on the course of action for example who should replace the 1st Respondent in the list and to what end. In any case, such person should have been joined in this complaint as their priority standing may directly or indirectly be affected by such orders.

Who bears the cost of this matter? 47. With regard to costs, whereas costs follow the event, having critically looked at the circumstances of the case, we are of the view that each party should bear its own costs in these proceedings. In reaching this determination, the Tribunal is keen to ensure that it is careful not to discourage complaints in exercise of citizen’s democratic rights as enshrined in the Constitution of Kenya, 2010. Disposition

48. In light of the foregoing, we order as follows:-i.The Complaint herein is hereby dismissed.ii.Each party is to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF AUGUST 2022. DESMA NUNGO…… ………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…… ……….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)