[2022] KEHC 12157 (KLR)

Ondiek v Omar & another (Civil Appeal 73 of 2022) [2022] KEHC 12157 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12157 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 73 of 2022

OA Sewe, J

June 14, 2022

Between

Kevin Ondiek

Appellant

and

Abrari Mohammed Omar

1st Respondent

ODM National Elections Board

2nd Respondent

(Being an appeal from the Order of the Political Parties Dispute Tribunal (Hon. Erastus Orina, Hon. Theresa Chepkwony and Hon. Daniel Kagacha) in PPDT Complaint No. E002 of 2022 dated 29th April, 2022)

Judgment

1. The appellant, Kevin Ondiek, a member of the Orange Democratic Party (ODM), was one of the individuals that offered themselves for nomination as aspirants for the position of Member of County Assembly for Kongowea Ward in Nyali Constituency of the County of Mombasa. In his Supporting Affidavit filed herein to support his interlocutory application, the appellant had averred that, after a competitive nomination process, he was declared the winner and was issued with an interim Certificate of Nomination on April 10, 2022. He was unaware that, being aggrieved by that decision, the 1st respondent, who was also a contestant for the same position, had lodged a complaint with the party’s Appeal’s Tribunal in Appeal No 8 of 2022.

2. TheODM Appeals Tribunal rendered its judgment on April 16, 2022 in favour of the 1st respondent. That judgment shows that no appearance was made by the appellant, who was the 1st respondent in the appeal. The Appeals Tribunal was therefore persuaded by the uncontroverted submissions made by the 1st respondent to the effect that he had won the nomination exercise; having garnered a total of 563 votes as against the appellant’s 143 votes. Consequently, the Appeals Tribunal allowed the 1st respondent’s appeal and ordered the 2nd respondent to officially announce the 1st respondent as the party’s nominee for the Kongowea Ward within 48 hours of the order, in a judgment delivered on April 29, 2022.

3. And, because the 2nd respondent neglected to act on the order, the 1st respondent approached the Political Parties Disputes Tribunal in PPDT Complaint No E002 of 2022: Abrari Mohamed Omar v Kevin Ondiek and Orange Democratic Movement National Elections Board. In its judgment dated April 29, 2022, the PPTD endorsed the decision of the ODM Appeals Tribunal and held that:19. From the evidence placed before the Tribunal the Complainant won the Party Primaries and garnered 563 votes but he was not issued with the certificate of nomination as is required by law and the Party’s Constitution.20. Instead the Interim Certificate was issued to the 1st Respondent who was the 7th in the contest. The Complainant was aggrieved by the decision of the 2nd Respondent to issue the Interim Certificate to the 1st Respondent and he lodged an appeal at the ODM Appeals Tribunal.21. The ODM Appeals Tribunal heard the Appeal and directed that the Interim Certificate be issued to the Complainant but the 2nd Respondent has failed to comply with the said direction from the party.”

4. In the premises, the PPDT granted the following orders in favour of the 1st respondent:(a)That a declaration be and is hereby issued to the Orange Democratic Movement National Elections Board declaring that it is in contravention of the orders issued by the Appeals Tribunal in the case of Mombasa Appeals Tribunal No 8 of 2022: Abrari Mohammed Omar v Kevin Ondiek & Returning Officer Kongowea Ward.(b)A declaration be and is hereby issued declaring that the 1st Respondent is not thebona fide Orange Democratic Movement party’s elected candidate to contest the seat of Member of County Assembly representing Kongowea Ward.(c)The 2nd Respondent is hereby directed to give effect to the orders of its Appeals Tribunal in the case of Mombasa Appeals Tribunal No 8 of 2022: Abrari Mohammed Omar v Kevin Ondiek & Returning Officer Kongowea Ward.(d)That in the interest of party unity, each party shall bear its own costs.

5. As the orders of thePPDT were similarly disobeyed, the 1st respondent filed an application for contempt before the PPDT seeking the following orders, among others:(a)That the Independent Electoral and Boundaries Commission (IEBC) be enjoined in the suit as the 3rd respondent;(b)A declaration that Abrari Mohamed Omar (the 1st respondent herein) be decared as ODM’s duly nominated candidate for Member of the County Assembly for Kongowea Ward;(c)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;(d)That IEBC be directed to nominate and subsequently gazette Abrari Mohamed Omar as the ODM party’s nominee to contest the seat of Member of County Assembly representing Kongowea Ward;(e)That the 2nd respondent’s commissioners, namely Mr. Abdulahi Diriye, Mr Richard Tairo and Ms Syntei Nchoe, be cited for contempt of the Tribunal; and be committed to civil jail for six months and/or be ordered to pay a fine of Kshs 1,000,000/=.

6. The said application was also heard ex parte and determined on May 20, 2022 in the 1st respondent’s favour after thePPDT was satisfied that the respondents to the said application were duly served. The PPDT consequently ordered that:(a)A declaration be and is hereby issued declaring the applicant Abrari Mohamed Omar as the ODM nominated candidate for Member of County Assembly, Kongowea Ward;(b)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;(c)For the avoidance of doubt, theIEBC be and is hereby directed to gazette Abrari Mohamed Omar as the Orange Democratic Movement Party’s candidate to contest the seat of Member of County Assembly representing Kongowea Ward;(d)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 the orders of the Tribunal;(e)The said orders be extracted and served immediately on the officials of the 2nd respondent, namely Abdulahi Diriye, Richard Tairo and Syntei Nchoe, to appear before the Tribunal on May 24, 2022 at 9. 30 a.m. for purposes of mitigation and sentencing.

7. In an apparent knee-jerk reaction to the aforestated orders, the appellant lodged this appeal on the May 25, 2022. He challenged the decision of the PPDT dated April 29, 2022 on the following grounds:(a)That the Tribunal erred both in law and fact in allowing the Complaint filed by the 1st respondent herein;(b)The Tribunal erred in law and fact in arriving at the decision absent the participation of the appellant, contrary to the rules of natural justice;(c)The Tribunal erred in law and in fact in issuing orders that the appellant is not thebona fide ODM Party candidate for Member of County Assembly, Kongowea Ward;(d)The Tribunal erred in invalidating the nomination of the appellant and the Nomination Certificate issued to the appellant.

8. In the premises, the appellant prayed that his appeal be allowed and the decision of thePPDT in Complaint No E002 of 2022 be set aside or vacated. The appellant also prayed for costs and any such other or further orders as the Court may deem fit to grant.

9. Pursuant to the directions given herein on June 6, 2022, the appeal was canvassed by way of written submissions. Thus, Ms Awiti, learned counsel for the appellant relied on her written submissions dated June 7, 2022. Her main argument, in support of the 1st ground of appeal, was that the appellant was never given notice of the proceedings before the ODM Appeals Tribunal or thePPDT; and was therefore denied an opportunity to be heard before the impugned decision was taken. She relied on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR to underscore the importance of the right to fair hearing; particularly in the circumstances of this appeal.

10. In support of the 2nd, 3rd, and 4th Grounds of Appeal, it was the submission of Ms. Awiti that the decision as to who was the bona fide candidate for the ODM party for the position of Member of the County Assembly for Kongowea Ward was a decision that could only be made by the 2nd respondent in the first instance; and thereafter the ODM Appeals Tribunal, upon hearing all the parties concerned. She therefore faulted both the ODM Appeals Tribunal and the PPDT for basing their decisions on one-sided evidence. Counsel further pointed out that, since the appellant’s nomination had been done pursuant to Rule 8 of the ODM party’s Primary Election Rules, it was erroneous for the two Tribunals to nullify the same without affording the appellant a hearing.

11. Thus, Ms Awiti concluded her submissions by asserting, in terms of the 6th ground of appeal, that, on account of the foregoing, the Tribunal erred both in law and fact in allowing the complaint filed by the 1st respondent. She therefore urged the Court to allow the appeal and set aside the decision of the Tribunal dated April 29, 2022. Ms. Awiti further proposed that the matter be referred to the PPDT for a fresh hearing; considering that the gazettement by IEBC for purposes of printing of the ballot papers is scheduled for June 22, 2022. She was therefore confident that there is sufficient time for a re-hearing.

12. On his part, Mr Masake filed written submissions on June 7, 2022 on which he relied. He pointed out that, what the appellant is seeking vide this appeal, is to reverse an enforcement judgment, without addressing the root cause of that judgment; namely, the primary decision of the ODMAppeals Tribunal. He made reference to the cases of Violet Wanjiru Kanyiri v Kuku Foods Limited [2022] eKLR and Mureithi Charles & Another v Jacob Atina Nyagesuka [2022] eKLR to support his argument that, whereas the Court has wide discretion to set aside judgment, the discretion must be exercised judiciously and upon terms that are just. In his submission, the appellant has not demonstrated justifiable cause for the setting aside of the judgment of the PPDT dated April 29, 2022; particularly because he failed to rebut the 1st respondent’s assertion that he was the outright winner. He urged the Court to dismiss the appeal with costs, contending that it is not only an afterthought but also a waste of the Court’s time.

13. On behalf of the 2nd respondent, Mr Anzala filed written submissions dated June 8, 2022 in which he reiterated the 2nd respondent’s stance that it only became aware of the PPDT proceedings when it was served with the orders arising from the contempt proceedings. He underscored the centrality of the right to fair administrative action as enshrined in Article 47 of the Constitution and relied on Joseph M’Rukiri v Thangicia M’Imunya [2021] eKLR in urging the Court to allow the appeal and direct for a re-hearing in the interest of justice.

14. This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the tribunal with a view of arriving at its own findings and conclusions thereon; while giving due consideration for the fact that it did not have the advantage of seeing or hearing the witnesses. This is in line withSelle & Another vs Associated Motor Boat Co Ltd & Others[1968] EA 123 wherein it was held that:...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

15. As has been pointed out herein above, the original record of the PPDT is yet to be availed. The parties consequently opted to rely on the affidavits filed herein and the documents annexed thereto. As the facts are largely not in dispute, the issues for consideration are:(a)Whether the appellant was condemned unheard as alleged by him;(b)Whether the PPDT erred in invalidating the appellant’s nomination.

16. There is no gainsaying that the right to fair hearing is sacrosanct as one of the non-derogable rights enshrined in Chapter 4 of the Constitution. Thus, Article 50(1) provides that:Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

17. Accordingly, in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR the Supreme Court, in a discussion as to what constitutes the right to fair hearing, had the following to say:[86] We are also minded that the interests of justice dictate that this Court ensures that all parties to a dispute are accorded a fair hearing so as to resolve the dispute judiciously. This is particularly so because what is at stake is the Appellant’s right to a fair election as well as the right of the voters to non-interference with their already cast votes, the will of the people, so to speak. It is on this breath that we must consider whether the Appellant’s right to a fair hearing and trial will be infringed upon by the denial of admission of new evidence.[87] In the circumstances, was there a reasonable opportunity of hearing given to the Appellant? In this regard, what then are the norms or components of a fair hearing? In the matter of Indru Ramchand Bharvani & Others v Union of India & Others, 1988 SCR Supl (1) 544, 555, the Supreme Court of India, found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v Collector of Customs, Calcutta & Others, AIR 1962 Cal 460). It is important to restate that a literal reading of the provisions of the Constitution of Kenya show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that:“it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court.”(See Steel and Morris v United Kingdom, [2005] ECHR 103, paragraph 59).”

18. And, inKoinange Investments & Development Ltd v Robert Nelson Ngethe [2014] eKLR the Supreme Court underscored the point that:…service of Court documents is an important component in the administration of justice, and is a common aspect of litigation that confronts courts of all cadres, in the normal business schedule. Service as a procedural function, is regulated by law and other relevant instruments…”

19. Starting with the judgment of the Appeals Tribunal of the ODM party dated April 16, 2022, Rule 13(2) and (3) of the Orange Democratic Movement Appeals Tribunal (Practice and Procedure) Rules, 2022 provides that:Upon receipt of a statement of appeal, the Secretary shall—(a)print it out and stamp it with the date and time of receipt;(b)serve all aspirants with the appeal documents through electronic means;(c)inform all affected aspirants of their right to respond to the appeal within twenty-four hours of service;(d)enter the particulars of the appeal in a register kept by the Tribunal for the purpose; and(e)advise the affected parties of the address to which notices and communications to the Tribunal shall be sent.(3)Upon receipt of the response by the affected parties, the Tribunal shall notify all parties to the appeal of the time, date and place for the hearing of the appeal.

20. The judgment of the ODMAppeals Tribunal shows that the appellant herein, as one of the two respondents in that appeal, was duly notified of the appeal but opted to not file a response. Accordingly, the Tribunal proceeded with the hearing of the appeal ex parte and found in favour of the 1st respondent herein. On that account, the decision of the Appeals Tribunal cannot be faulted because Rule 15 of the ODM Appeals Tribunal (Practice and Procedure) Rules recognizes that:If a party or their recognized representatives do not appear before the Tribunal at the appointed time without reasonable cause, the Tribunal may proceed to determine the appeal the party’s absence notwithstanding.”

21. If, as is apparent, the appellant was unhappy with the decision of the Appeals Tribunal, then he ought to have sought either the setting aside of the judgment on account of what he deems lack of service or applied for review pursuant to Rule 25(1) of the ODM Appeals Tribunal (Practice and Procedure) Rules. It states that:Any person who is aggrieved by a decision or order of the Tribunal, but from which no appeal has been preferred may apply for a review of the decision or order to the Tribunal, and the Tribunal may make such orders thereon as it deems fit.”

22. Turning now to the judgment of the PPDT, again it is plain therefrom that the Tribunal was satisfied that service had been effected on the two respondents to the dispute. At paragraphs 2 and 3 of the said judgment, it is stated thus:The Complaint was served upon the Respondent and there is an affidavit of service on record sworn by Thomas Otieno on April 21, 2022 which confirms that the 1st and 2nd Respondents were properly served.The 1st Respondent who refused to disclose his location was served through his whatsapp number ... and the 2nd Respondent were served at their offices situated at Nairobi off Banda Road along Magadi Road in Karen and they received the complaint by stamping using their official stamp on the face of the order and the statement of claim.”

23. Consequently, the PPDT proceeded with the hearing of the Complaint ex parte and made a determination in favour of the complainant, who is 1st respondent herein. Given that outcome, the recourse available to the appellant, granted his contention that he was never served, was to seek the setting aside of the judgment of the PPDT, pursuant to Regulation 24 of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017, which provides that:(1) A party against whom a decision has been made under regulations 20 and 21 may apply to the Tribunal to set aside the decision.(2) The Tribunal shall not set aside any decision unless it is satisfied that the party has given sufficient cause for non-appearance.”

24. Thus, in both instances, the appellant had the opportunity to take advantage of and fully exhaust the dispute resolution mechanisms provided for under internal party structures of the ODM party as well as under the Political Parties Act before approaching this Court for relief. This is in accord with the doctrine of exhaustion; as was aptly captured by the Court of Appeal inSpeaker of National Assembly v Karume [1992] KLR 21. Here is what the Court of Appeal had to say in this regard:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”

25. Likewise, inGeoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal restated its position thus:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

26. In the premises, it is manifest that the appellant jumped the gun, so to speak, firstly in not diligently adhering to the doctrine of exhaustion; and secondly in appealing the judgment of the PPDT, which is essentially an enforcement decision, and yet the decision of the ODM Appeals Tribunal remains intact for all intents are purposes. Moreover, it is impermissible for the appellant to take up the issue of service for the first time on appeal since this Court, in its appellate jurisdiction, is not the right forum for conducting first-hand factual inquiry as to whether indeed service was properly effected.

27. In arriving at this conclusion, I have taken into account the persuasive decision of Joseph M’Rukiri v Thangicia M’Imunya (supra) that Mr Anzala brought to my attention. It was an appeal to the High Court in which judgment was delivered ex parte pursuant to Order 42 Rule 20(2) of the Civil Procedure Rules. In an application for setting aside that judgment, Hon Muriithi, J. held that:…it is possible that a number of the notices that the Appellant received were not likewise received by the Applicant/Respondent. In one of the notices, there is a clear hand written note or indication of ‘no address’. In addition, there are no affidavits of service on record by the process server attached to the Court to confirm that the Respondent was indeed served. The evidence of factual issues arising would require this Court to order for a fresh hearing in fulfilment of the Constitutional right to a fair trial. Order 42 Rule 23 makes provision for re-hearing upon application by a Respondent against whom an ex parte judgment has been entered without them having been served…This Court finds that the interest of justice demands a rehearing of the appeal owing to the apparent fact of non-service.”

28. Hon Muriithi, J relied on Order 42 Rule 23 of the Civil Procedure Rules which provides that:Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the court to which the appeal is preferred to re-hear the appeal; and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it deems fit.”

29. It is noteworthy, therefore, that the the application for setting aside the ex parte judgment inJoseph M’Rukiri v Thangicia M’Imunya was made, not to the Court of Appeal but to the High Court; it being the Court that entered the ex parte judgment. The Court was therefore in a position to make a factual inquiry as to whether or not service had been effected. Needless to say, therefore, that the said authority supports my conclusion herein that the application for setting aside the decision of the PPDT ought to have been made to the PPDT itself, pursuant to Regulation 24 of the Political Parties Disputes Tribunal (Procedure) Regulations, as opposed to being brought up for the first time on appeal to this Court. Indeed, the Court of Appeal had occasion to speak to this issue in Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & Othersex-parteTom Mbaluto, [2018] eKLR and stated that:… As has been stated time and again, there is a philosophy and logical reason behind our appellate system, which except in exceptional cases and upon proper adherence to the prescribed procedure, restricts the appellate court to consideration of the issues that were canvassed before and decided by the trial court. If that were not the case, the appellate court would become a trial court in disguise and make decisions without the benefit of the input of the court of first instance.”

30. In the light of the foregoing, and taking into account all the matters aforesaid, it cannot be said that the appellant was condemned unheard. To the contrary, he had an opportunity under the rules of procedure to present and argue his case; and if indeed he was not notified as he now asserts, then he ought to have sought the setting aside or review of the impugned decisions before approaching this Court on appeal on the merits. Consequently, I would echo the expressions of Hon Kiage, JA inNicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR that:…it is in the even-handed and dispassionate application of rules that Courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity.”[b] On Whether thePPDT erred in invalidating the appellant’s nomination:

31. As has been pointed out hereinabove, the decision of the PPDT was in effect an enforcement decision. The appellant and the 1st respondent had presented themselves for nomination to contest the seat for Member of County Assembly, Kongowea Ward in Nyali Constituency. The judgment of the ODM Appeals Tribunal shows that the 1st respondent had convinced it that he had garnered 563 votes as against the appellant’s 142 votes. It was on that account that the ODM Appeals Tribunal allowed the appeal and directed the 2nd respondent to:...within 48 hours from the date of this decision, officially announce the winner of Kongowea Ward party primaries strictly guided by the Results Declaration Forms signed by the Agents of the Aspirants.”

32. As, has been pointed out hereinabove, it is not in dispute that the 2nd respondent failed to comply within the 48-hour period; or that the 1st respondent thereafter filed a complaint with the PPDT for enforcement purposes. The judgment of the PPDT is largely in tandem with the judgement of theODM Appeals Tribunal. It accordingly issued an order, among others, directing the 2nd respondent to give effect to the orders of the ODM Appeals Tribunal. In the absence of a setting aside or review of the decision of the ODM Appeals Tribunal aforementioned in the manner stipulated by law, there is absolutely no basis for this Court to find fault with the decision of the PPDTon the merits.

33. In the result, I find no merit in the appeal. The same is hereby dismissed with an order that each party shall bear own costs of the appeal.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 14THDAY OF JUNE 2022. .........................................OLGA SEWEJUDGE