[2022] KEPPDT 949 (KLR)

Onditi v ODM National Elections Board & 2 others; Independent Electoral & Boundaries Commission (Interested Party) (Complaint E019 (KSM) of 2022) [2022] KEPPDT 949 (KLR) (8 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 949 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E019 (KSM) of 2022

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

May 8, 2022

Between

Hezron Okoth Onditi

Complainant

and

Odm National Elections Board

1st Respondent

Orange Democratic Party Movement

2nd Respondent

Michael Ojala Nyangi

3rd Respondent

and

The Independent Electoral & Boundaries Commission

Interested Party

Judgment

1. This matter regards the nomination of the 2nd Respondent’s candidate for the Member of County Assembly for Kochia Ward, Rangwe Constituency, Homabay County.

2. The matter was filed under a Certificate of Urgency dated May 1, 2022. Interim Orders of stay were issued against the submission or gazettement of the 3rd Respondent or any other person in respect of the subject nomination.

3. The Complaint was heard by way of oral arguments on May 5, 2022, and Judgment reserved. Mr Green Odera appeared for the Complainant, while Mr Arika appeared for the 3rd Respondents’ case. The 1st and 2nd Respondents neither filed responses nor appeared despite service.

Complainant’s Case 4. The gravamen of the Compliant is that despite the ODM Appeals Tribunal, in its decision delivered on April 25, 2022, finding merit and allowing his Appeal against the 3rd Respondent’s nomination, the 1st and 2nd Respondents have nonetheless proceeded to issue a directed nomination ticket to the 3rd Respondent.

5. He advances that the 1st and 2nd Respondents’ action aforesaid runs a foul Articles 27, 38 and 36 of theConstitution; and Article 4 of the 2nd Respondents own Constitution. The Complainant is aggrieved with the method employed by the 1st and 2nd Respondents in settling on the 3rd Respondent’s candidature yet no competitive nor consultative process was even used in reaching that decision.

6. The Complainant also avers that the direct nomination process offended his legitimate expectation of a fair process, and infringed on his right to be heard on this matter/decision that affected his political rights.

7. The Complainant urge us to allow his Complaint and direct the 2nd Respondent to conduct the nomination in the same manner, using universal suffrage, as was done in the impugned election.

The 3rd Respondents Case 8. The 3rd Respondent opposed the Complaint and maintained that the same was incurably defective and bad in law. He raised a preliminary objection filed herein to the effect that the nomination of the 3rd Respondent by direct ticket was a new matter which ought to have been referred to the 2nd Respondent’s Internal Dispute Resolution Mechanism, the ODM Appeals Tribunal, before being escalated to this Tribunal. The 2nd Respondent relied on Section 40(2) of the Political Parties Act to advance his arguments. He beseeched us to strike out the Complaint as being prematurely before us.

9. On the merit of the case, the 3rd Respondent underscored that the ODM Appeals Tribunal had indeed set aside the nomination, but allowed the party to elect the method to use to identify a candidate. That the party only used the direct nomination option due to the time constraints placed upon it by the 1st Interested Party. He added that the direct nomination process was provided for in Rules 8 and 23 of the ODM Party Primaries and Nomination Rules. As to the criteria used to identify the 3rd Respondent as being the most suitable, the 3rd Respondent argued that this was the prerogative of the 1st and 2nd Respondents; and that the procedure was captured in Rule 8 of the Party’s Primaries and Nomination Rules, 2021.

Tribunal’s Analysis and Findings 10. The factual basis of the Complaint is not in dispute. The facts are largely common. The ODM Appeals Tribunal nullified the nomination process and ordered the party to repeat the same, considering the stringent timelines set by the Interested Party.

11. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this court has the requisite jurisdiction to hear and determine this matter.ii.Whether the direct nomination was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

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

Whether this Tribunal possesses the requisite jurisdiction to hear and determine this matter? 13. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing. Ltd v 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.”

14. The issues raised by the 3rd Respondent in his Preliminary Objection are on the competency of the proceedings brought by the Complainant before this Tribunal. The 3rd Respondent submits that the issue herein is a new matter relating to a fresh nomination. Moreover, that it is an entirely new dispute, which has to first be subjected to the IDRM process in the ODM Party Appeals Tribunal, before being brought before us. And that consequently, this Tribunal lacks the required jurisdiction to hear and determine this matter.

15. The Complainant in response contends the Party Tribunal concluded its determination of the matter and ordered the repeat of the nomination process, which the 1st and 2nd Respondents chose to disregard by purporting to nominate the 3rd Respondent directly. As such, the Complainant argues, the matter of that nomination was communicated by the 1st and 2nd Respondents as an implementation of the ODM Appeals Tribunal decision. The direct nomination the subject hereof, is, therefore, not a new cause of action but a part of the proceedings that were before the said Tribunal.

16. The issue of jurisdiction is key as it is everything. Indeed, the learned court did inR 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.”

17. 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.

18. In Agnes Mukami and 5 Others v 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”

19. A reading of Section 40 of the Political Parties Amendment Act of 2022which 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”

20. From a reading of the above sections of the law as well as the cited authorities it is clear that the dispute at hand is one between a member of a Political Party and a Political Party and therefore falls within the definition set out in Section 40(1) (b) of the Political Parties Act. The issue is whether the letter by the Complainant can be considered as a sufficient attempt at IDRM.

21. From a reading of the above sections of the law as well as the cited authorities, it is clear that the dispute at hand being a dispute between a member of a Political Party and a Political Party falls within the definition set out in section 40(1) (b) of the Political Parties Act. The issue is; whether the cause of action constituted in the Complaint can be considered as an entirely new matter, or is a continuation of the previous proceedings, commenced by the Complainant before the ODM Appeal’s Tribunal.

22. It is our considered view, that the matter before the ODM Tribunal related to the nomination the subject hereof. That tribunal made a decision on 25. 4.2022 which, to-date, stands. The purported direct nomination of the Complainant, according to the ODM circular of 27. 4.20222 was in furtherance or in an attempt to give effect to the decision of its tribunal.

23. For this reason, the purported issuance of the direct nomination ticket to the 3rd Respondent is neither a new cause of action nor a new matter requiring to go to the ODM Appeals Tribunal first before coming to us. It is our view that the matter before us, is a continuation of the previous complaint.

24. We find that this tribunal has the jurisdiction to hear this matter, and the requirements of the provisions of Section 40 of the Political Parties Act have been satisfied. Therefore, it is our finding that the Complainant has clearly demonstrated an attempt at pursuing Internal Dispute Resolution Mechanisms within the Party by dint of the concluded proceedings before the ODM Appeals Tribunal.

25. The Preliminary Objection is, therefore, dismissed.

Whether the issuance of the Direct Nomination ticket was in substantial compliance with the law? 26. There is no contest that the first nomination process was found to have fallen short of the legal standards and was set aside by the part tribunal. It is also common ground that the said tribunal ordered a repeat of the nomination exercise. It is the implementation of the latter directive of the party’s tribunal that is problematic and the subject of the current proceedings. The complainant expected that a repeat process would involve his participation; while the 3rd Respondent sees the direct nomination as being in compliance with the Party Tribunal’s Judgement and orders.

27. It is our view that the Direct Nominations by the Party, failed the test of a free, fair, transparent and accountable process as provided for under Articles 81, and 86 of the Constitution of Kenya 2010; as well as Rule 4 of the ODM Party Primaries and Nomination Rules; which provides for the guiding principles aforesaid and requires the Party to conduct Party Primaries and Party Nomination to Party lists in a manner that is democratic, free and fair and provides equal opportunities for all party candidates.

Legitimate Expectation 28. There is also the angle of legitimate expectation. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others[2] where the Supreme Court stated that:"Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

29. Addressing the subject of legitimate expectation, H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation …. Second, clear statutory words, of course, override an expectation howsoever founded …. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.”

30. A procedural legitimate expectation rests on the presumption that a public authority will follow ascertain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation; that is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created. The representation itself must be precise and specific and importantly, lawful.

31. Once a reasonable expectation exists, the administrator is required to act in accordance with that expectation. It is our view that the 1st and 2nd Respondents have denied the Complainant his legitimate expectation to fair administrative action since his concerns were not taken into account and no consultations between the contestants on how the fresh nominations ordered by the party tribunal would be conducted were ever held. Furthermore, in flagrant violation of the expectation, they issued of a Direct Nomination to the 3rd Respondent without consensus or conducting opinion polls as provided for by the ODM Party Primaries and Nomination Rules. We, therefore, hold that his legitimate expectation was violated.

Fair Administrative Action 32. In the case of Kisumu, High Court, Petition No.1 of 2017,Inganga Alfred Arunga – Versus -University of Nairobi it was the court’s holding that;“a declaration be granted to the Petitioner that his right of fair administrative action under Article 47(1) of the Constitution was violated when the Respondent arbitrarily and without due process confiscated his degree certificate and refused to release his original transcripts. It was the Petitioner’s submission that by virtue of the fact that the Petitioner was admitted by the Respondent’s University, it signifies that indeed there was a contract entered between the two parties.”

33. It is therefore our view, that the Complainant was never given an opportunity to offer his candidature to fly the Party’s flag despite being an aspirant in the same elective seat as the 3rd Respondent. Further, that Article 47(1) of the Constitution and section 4(1) of the Fair Administrative Action Act provides for a right to administrative action, which is expeditious, efficient, lawful, reasonable and procedurally fair. In addition, Section 4(3) of Fair Administrative Action Act requires a person against whom an administrative action has been taken to be given an opportunity to be heard and to make representations in that regard. The Complainant herein was denied this opportunity; and we find that this was a violation of his fundamental rights.

34. This Tribunal finds that the Complainant has discharged his burden of proof to the required standard in this matter, hence, the Direct Nomination ticket to the 3rd Respondent, was not only illegal but contrary to the principles of Fair Administrative Action, and that it failed to meet the requirements provided for in Articles 27, 38 and Article 81 of the Constitution of Kenya, 2010.

35. Our assessment of the facts as a whole draw us to the inescapable conclusion that we must set aside the Direct Nomination exercise that resulted in the nomination of the 3rd Respondent as well as nullify any and all certificates issued to both the Complainant and the 3rd Respondent.

36. In conclusion, while a political party has the right to choose the appropriate method of nomination under Rule 8 of the ODM Election and Nomination Rules. These options are hierarchical. This means that universal suffrage is the last option, if all else have failed. In this case, since the Party had resorted to universal suffrage, it cannot purport to go back to Direct Nomination after the elections have been nullified by the Appeals Tribunal and an order to conduct fresh nominations issued. The same manner of the impugned nomination should be used.

37. Furthermore, that the 1st and 2nd Respondent have not explained how they settled on the 3rdRespondent as their candidate. It is our view that whatever process is used, has to take into account the interests of all of the parties involved. It is also our holding that the decision of the party tribunal has not been challenged. The Central committee of the party had no right to interfere or originate the process of fresh nomination as it purported to do. Under Rule 8 and 23 of the ODM Party Primaries and Nomination rules, only the National Elections Board has powers to conduct elections or nominations.

38. We set aside the nomination and order that a fresh nomination be conducted by way of universal suffrage.

Who bears the costs of this matter? 39. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

40. We thank learned Counsel for their well-articulated submissions, cogent pleadings and patience during the long hours of sittings.

Disposition 41. In the upshot we make the following Orders:i.We allow the complaint and direct the 1st and 2nd Respondents to conduct a fresh nomination by way of universal suffrage within 72 Hours of this Judgment.ii.We nullify the nomination certificate issued to the 3rd Respondent as well as the Nomination Certificate issued to the Complainant herein.iii.Each party shall bear its own costs.

42. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 8TH DAY OF MAY 2022. .....................................................HON. DR. WILFRED MUTUBWA OGW C. ARB(VICE CHAIRPERSON – PRESIDING).....................................................HON. FATUMA ALI(MEMBER).....................................................HON. WALUBENGO SIFUNA(MEMBER)