[2022] KEPPDT 953 (KLR)

Omondi v National Elections Board - ODM Party & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E025 (KSM) of 2022) [2022] KEPPDT 953 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 953 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E025 (KSM) of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

May 19, 2022

Between

Erickson Odhiambo Omondi

Complainant

and

The National Elections Board - Odm Party

1st Respondent

The Orange Democratic Party

2nd Respondent

Otieno Benedict Francis

3rd Respondent

and

The Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. This matter concerns the nomination of the 3rd Respondent as a Candidate for the Member of County Assembly for Wasweta II Ward Homa Bay County, on the April 18, 2022, where he garnered 1980 votes. The Complainant was also a candidate in the same election and garnered 1951 votes. Being aggrieved by the results of the nomination, the Complainant lodged an appeal before the ODM Party Appeals Tribunal sitting in Nairobi. The said appeal was allowed on the April 25, 2022. The judgment directed the 1st and 2nd Respondent to tabulate and/or aggregate the total number of votes garnered by each candidate, at each polling centre and determine who validly won the nomination. The votes were never tabulated or aggregated.

2. Furthermore, on the April 27, 2022, the 1st and 2nd Respondent nominated the 3rdRespondent as the ODM flag bearer for Wasweta II Ward. The Complainant was aggrieved by this decision and lodged a Complaint before us, challenging the 1st and 2nd Respondent’s decision to nominate the 3rd Respondent without complying with the orders of the Party Tribunal. Consequently, he filed an Application, under cover of Certificate of Urgency, as well as a Complaint and Supporting Affidavit all dated May 11, 2022.

3. In response, the 3rd respondent filed a notice of preliminary objection, a replying affidavit and a response to the statement of complaint all dated May 15, 2022.

4. The Complainant sought the following orders from this Tribunal:a.A declaration that the ODM Party primaries results for Wasweta II Ward held on the April 18, 2022 were not accurately captured.b.A declaration that the election of the 3rd Respondent as the ODM Party flag bearer for Wasweta II Ward was not free and fair and thus the nomination certificate issued to the 3rd Respondent, if any was null and void.c.An order directing that the results for the nomination exercise for MCA of Wasweta II be those announced at the polling centers.d.An order directing that the nomination certificate for Wasweta II be issued to the Applicant having won by 12 votes at the polling stations. e. Costs.f.Such further costs or other relief or orders to be made as may be just.

5. The Complainant was represented by Mr Green Odera. The 3rd respondent was represented by Mr Kisera. The 1st and 2nd Respondents did not participate in the matter despite service. The Tribunal directed that the matter be canvassed by way of oral submissions.

Omplainant’s Case 6. Counsel for the Complainant, Mr Odera avers that the Complainant participated in the nomination exercise conducted by the 1st and 2nd Respondent in Migori County and that they declared the 3rd Respondent as the winner of that nomination process. He claimed that the 3rd Respondent garnered a total vote of 1180 votes in the said nomination. Being dissatisfied with how the nomination exercise was conducted, the Complainant filed an appeal before the 2nd Respondent’s Appeal Tribunal, which delivered its judgment allowing the Complainant’s appeal. Specifically, the Tribunal ordered the 1st Respondent to tabulate the total number of votes cast at each polling station and determine which candidate won the nomination process.

7. Mr Odera stated that contrary to the orders in the judgment of the Party Tribunal, filed as Annexure E001 of the complainant’s affidavit, the 2nd Respondent has since announced that it had proceeded to nominate the 3rd Respondent as its candidate for Wasweta Ward, on the 27th of April 2022, by a circular. Counsel submitted, that this decision was in defiance of the orders of the Party Tribunal, and that, ironically, the 3rd Respondent, in his Replying Affidavit claims that the nomination was following the orders of the ODM Tribunal and in line with both Rules 8 and Rule 23 of the ODM Party Primaries and Nomination Rules.

8. He further submitted that the 3rd respondent was allowed to participate in two (2) nomination processes. The first one being, Wasweta II Ward in Suna West Constituency and Got Kachola Ward in Nyatike Constituency.

9. Additionally, he submitted that the Tribunal had to answer the question; whether the 1st and 2ndRespondent were at liberty to violate the orders issued by the party tribunal. He stated that in his opinion the answer to that question was an emphatic no! And that even if the party wanted to conduct a direct nomination, it must follow the process set out in law.

10. He further elucidated that the provisions for nominations in the ODM Party Primaries and Nomination Rules had to be carried out in a sequential manner, after each of the other methods had been tried and failed. He advanced that the ODM Party had instead chosen to go for what was most convenient, instead of following the process which was required. He submitted that the Complainant had a legitimate expectation that the fresh nomination process would be by way of universal suffrage, since that was the process that was conducted in the impugned nomination that was set aside by the ODM Party Appeals Tribunal.

11. In response to the Notice of Preliminary Objection dated May 15, 2022, Mr Odera noted that one of the issues that was raised therein was that the Complainant had resigned as a member of the party and was contesting as an Independent Candidate. He cited the case of Mukhisa Biscuit on the requirements for a proper preliminary objection. One of the requirements being, that it must be on a specific point of law which when determined has the capability of determining the matter.

12. Furthermore, Counsel submitted that the interim certificate issued to the 3rd Respondent was of no legal consequence since the nomination that gave rise to the certificate had been set aside. He added that since the judgment of the party Tribunal was not challenged, the decision directing the 1st and 2nd Respondents to tabulate and aggregate the results of the elections and determine the winner of the nomination exercise still stands.

3rd Respondent’s Case. 13. Counsel for the 3rd Respondent Mr Kisera, submitted that the complaint was anchored on the decision of the ODM Party Tribunal, and that the complainant herein was overstretching the interpretation of that decision. Furthermore, that the nomination was not nullified and that what the Tribunal ordered was the tabulation and aggregation of votes.

14. He further submitted, that there was no evidence put before us of service of the judgment of the party tribunal on the 3rd Respondent. That the 3rd Respondent only came to learn of the appeal decision through the pleadings before us. He stated that it was imperative for the Complainant to show how the 3rd Respondent was served with the pleadings in that appeal. Moreover, that the Complainant was on a fishing expedition, since he didn’t disclose how many votes he got in any particular polling centre and that his request that votes be tabulated and aggregated was untenable, since the 2nd Respondent conducted nominations electronically.

15. Counsel also pointed out the fact that, the Party Tribunal did not nullify the results that had been declared and that even if the 3rd Respondent appeared in Wasweta II Ward and Got Kachola Ward, there was no evidence that he had participated in the polling station. He also submitted that there were no disputed issues in this matter, since the issues were dealt with at the appeals tribunal. Furthermore, that even if the 3rd Respondent won by a small margin this does not necessarily fault the election results.

16. Additionally, counsel submitted that they had evidence that the complainant had moved on and sought to contest as an independent candidate for the Wasweta II Ward Seat. Furthermore, that the Complainant has in more than 3 radio interviews announcing that he is contesting as an independent candidate and that his symbol was a brief case. Counsel posed the question, “If the Complainant is no longer a member of the party, why would he litigate that matter?”

17. Additionally, he submitted that it was in bad faith for the Complainant not to disclose the fact that he was running as an independent candidate. In conclusion, counsel urged this Tribunal to dismiss the complaint.

Complainant’s Response 18. In response, the Complainant stated the well-known legal maxim on burden of proof which states: “he who alleges, must prove.” He submitted that the allegation of the complainant being an independent candidate was made in the 3rd respondent’s pleadings and that it therefore fell upon the 3rd Respondent to prove those allegations. He submitted that such evidence would include evidence from the Office of the Registrar of Political Parties, stating that the Complainant had resigned from the party as well as evidence in form of a recording of the alleged radio interviews. He further stated that it was not the Complainant’s job to assist them to collect evidence for their case and that Sec 25 (a) of the Evidence Act protected the complainant in that regard.

19. On service of the decision of the appeals tribunal, counsel made reference to annexure E002 of the affidavit of the complainant Eric Odhiambo. He stated that the annexure is a copy of the ODM Circular on implementation of the decisions of the Party Tribunal. He submitted that this was evidence that they were well aware of the judgment and that the 1st and 2nd Respondents had been served and that is the reason why the circular refers to the implementation of the Tribunal decision. He noted that Waseta II County ward was placed second in the list provided for in the circular.

20. On the question of whether a re-tabulation of the results amounted to a nullification of the nomination process, counsel submitted that, the order of re-tabulation was a nullification of anything that happened on the April 18, 2022 and that there was no other possible interpretation, and that the purpose of the re-tabulation and aggregation was to establish which candidate validly won the nomination. Additionally, he stated that when tabulation and re-aggregation is ordered it does not mean a manual counting of the votes it means that the gadgets are collected and examined to determine how many votes were cast in each polling station.

21. Finally, he stated that the announced results were stated in the Statement of Appeal.

22. Mr Greene urged us to allow the complaint and grant the orders sought.

Tribunal’s Analysis And Findings 23. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this tribunal has jurisdiction to entertain this matter?ii.Whether the complainant has sufficiently proved his case to the required Standard of Proof?iii.What orders should issue herein?iv.Who bears the costs of this case?

24. We will address the issues set out above in the sequence of their listing.

Whether this Tribunal has jurisdiction to entertain this matter? 25. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696, where it was held that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

26. The main issue raised by the 3rd respondent in his Preliminary Objection is on the competency of the proceedings brought by the complainant before this Tribunal. The 3rd Respondent contends that, since the complainant has resigned as a member of the Party and obtained clearance to vie as an independent candidate in the general elections, slated for August 9, 2022, that the case is therefore bad in law, incompetent and incurably defective, as the complainant lacks the requisite capacity to file the instant suit.

27. He further submitted, that the complainant’s suit was filed out of time and without leave and was therefore incompetent.

28. In response the Claimant’s submits that it is the 3rd Respondents responsibility to prove that the Complainant is vying as an independent candidate since it is they who have made the allegation, and that they therefore have the burden of proving the same. Additionally, the Complainant submitted that no evidence was presented before this Tribunal proving that the Complainant has decided to vie as an independent candidate.

29. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v Karisa Chengo[2017] eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

30. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

31. InAgnes Mukami and 5 Others Vs Ngewahi And Company (2005) Eklr the court stated that“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

32. A reading of Section 40 of the Political Parties Amendment Actof 2022 which spells out the jurisdiction of this Tribunal states that:40. (1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and a political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners; andf.appeals from decisions of the Registrar under this Act.(2)Notwithstanding sub section (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”

33. From a reading of the above sections of the law as well as the cited authorities it is clear that the jurisdiction of this Tribunal extends, not only to disputes between members of political parties and political parties, but also to disputes between independent candidates and political parties. Consequently, it would not make a difference whether the Complainant was registered as an independent candidate or not, this Tribunal would still be seized of jurisdiction. This is captured in Section 40 (1) (d) as well as Section 40 (2) of the Political Parties Act.

34. We therefore find that this honourable tribunal has the jurisdiction to hear this matter, and that the requirements of the provisions of Section 40 (1) and Section 40 (2) of the Political Parties Act, have been satisfied. Furthermore, it is our decision that the Complainant has clearly demonstrated an attempt to pursue Internal Dispute Resolution Mechanisms with the Party by dint of the Appeal (Appeal No 17 of 2022) filed before the ODM Party Appeals Tribunal.

35. The Preliminary Objection is dismissed.

Whether the Complainant has sufficiently proved his case to the required Standard of Proof. Burden and Standard of Proof 36. In Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Other (2012) eKLR: Section 112 of the Evidence Act Chapter 80 of the Laws of Kenya provides:“In civil proceedings, when any fact is especially within the knowledge of a party to those proceedings, the burden of proofing or disproving that fact is upon him”

37. It was also stated inJoho v Nyange & another(2008) 3 KLR (EP) 500 that:“The burden of proof in election petitions lies with the Claimant as he is the person who seeks to nullify an election. While the proof has to be done to the satisfaction of the court, it cannot be said that the standard of proof required in election petitions is proof beyond reasonable doubt. Like in fraud cases, the standard of proof is higher than on a balance of probabilities and where there are allegations of election offences a very high degree is required.”

38. In ordinary proceedings the law is clear on where the burden of proof lies. This is well captured under the Evidence Act, Sections 107, 108 and 109 which provide as shown below:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

39. The law on the burden of proof in electoral disputes was again restated by the Supreme Court in Presidential Petition No 1 of 2017 thus:“Thus, a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged. In this case therefore, it is common ground that it is the petitioners who bear the burden of proving to the required standard that, on account of nonconformity with the law or on the basis the 3rd respondent’s election as President of Kenya should be nullified.Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant throughout a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting” and “its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”43. The Supreme Court further illuminated the law on Standard of Proof inRaila Odinga 2013 where it was held that:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”

40. From a reading of the above sections of the Evidence Act, as well as the above stated authorities, pleadings and the submissions presented by the parties herein, we find that the burden of proof lies on the Complainant, as it is he who would fail if no evidence were to be given on either side.

41. It is clear to us that the Orders of the ODM Tribunal were meant to determine the winner of the contest by re-tabulation and re-aggregation of the votes. This was not done by the party. There is no evidence that this was done. Hence, we find that the Complainant herein has proved to the required standard of proof that the 1st and 2nd Respondents have failed to comply with the orders of the ODM Party Tribunal.

42. Furthermore, we agree with the complainant’s submissions, where he submitted that the fact that the elections were conducted with electronic gadgets is not an impediment to tabulation of votes as alleged by the 3rd Respondents, since the gadgets can still be examined and the relevant data extracted to determine the votes. In any event, it is a constitutional edict in Article 81 of the Constitution that every electoral process must be accountable and verifiable, notwithstanding it being manual or electronic.

Validity of Nomination Ticket Issued to 3rd Respondent 43. Another contested issue in this dispute, is the validity of the nomination certificate issued to the3rd Respondent. The Complainant alleges that the Certificate was issued in defiance of the orders of the Party Tribunal and hence cannot be considered valid.

44. The 3rd Respondent in response, submits that since the Tribunal did not nullify his nomination in its judgment, the nomination was not a direct ticket nomination, but the same one he had won by way of universal suffrage on the election date. Furthermore, that there was no evidence on record that the 2nd Respondent was served with the Appeal and the Judgment of the Party Tribunal (Appeal No 17 of 2022) and that they therefore, could not be faulted for non-compliance.

45. Upon consideration of the various arguments on this matter, we note that it is indeed true that the orders of the Party Tribunal did not expressly nullify the nomination certificate that was issued to the 3rd Respondent. However, the orders of the tribunal had the logical effect of abeyance any nomination made out of the impugned election until it is determined from the tabulation and aggregation exercise ordered, who actually won the nomination. The results of that process would determine the valid nominee for the contested seat. Consequently, we rule that any nomination certificate issued to any party in respect to the Seat of Member of County Assembly for Wasweta II Ward to IEBC is null and void.

46. On the issue of the 2nd Respondent not being served the Appeal and decision of the ODM Party Tribunal, we note that the tribunal is an organ of the 2nd Respondent. Furthermore, that the 2nd Respondent issued a circular referring to the decision of the Tribunal in the nominations for the MCA seat for Wasweta II Ward. We find that this demonstrates that the Party was well aware of the judgment of the Tribunal. That notwithstanding, the orders of the tribunal in (Appeal No 17 of 2022), issued on the 25th day of April 2022, remain in force. Consequently, the 1st Respondent and 2nd Respondent are still obligated to fulfill the directions therein.

47. We, therefore, direct the 1st and 2nd Respondent to comply with the orders of the ODM Party Tribunal by tabulating and aggregating the total number of votes garnered by each candidate at each polling station and determine which candidate validly won the election. Furthermore, that the candidate who will emerge with the highest number of votes from the tallying and /or aggregation process be issued with a nomination certificate for the ODM Member of County Assembly seat for Wasweta II Ward within Migori County Assembly.

Who bears the costs of this matter? 48. We make no orders as to costs.

Disposition 49. This Tribunal allows the Complaint and finds that it has merit. We proceed to grant orders as follows:In the upshot we make the following Orders:i.We uphold the Judgement and consequent orders of the ODM Appeals Tribunal in Appeal No 17 of 2022. ii.We set aside and annul the Nomination certificates issued to the 3rd Respondent.iii.We order the 1st Respondent, the ODM National Elections Board, to tabulate and aggregate the total number of votes garnered by each candidate at each polling centre and determine which candidate validly won the election, within the next 72 Hours from the date of this judgment.iv.That the candidate who will emerge with the highest number of votes from the tabulation and aggregation process be issued with a nomination certificate for the ODM Member of County Assembly Seat for Wasweta II Ward within Migori County Assembly and his name be forwarded to the interested party.v.Each party shall bear its own costs.

50. Those are the orders of the Tribunal.

Dated at Nairobi and delivered virtually this 19th day of May 2022________________________________________Hon. Dr. Wilfred Mutubwa OGW C. ArbVice Chairperson – Presiding____________________________________Hon. Fatuma Ali Member______________________Hon. Walubengo SifunaMemberThe Judiciary of Kenya 7/7Doc IDENTITY: 1909074644904632044268400772 Tracking Number: