[2017] KEHC 4341 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION APPEAL NO. 73 OF 2017

ORANGE DEMOCRATIC MOVEMENT PARTY……....1ST APPEALANT

LUMUMBA PATRICK OWADE…………………...…...2ND APPEALANT

VERSUS

PAUL OTIENO OBIA……………………………..……....RESPONDENT

(Appeal from the judgment of the Political Parties Tribunal (Hon. M. O. Lwanga, Paul Ngotho, Dr. Adelaide Mbithi & Desma Nungo delivered on 10th day of May, 2017 in PPDRT Case No. 214 of 2017)

J U D G M E N T

1. This appeal arises out of the decision made on 19th May 2017 by the Political Parties Dispute Tribunal (hereinafter PPDT) in which the PPDT dismissed the 1st Appellant’s application for review. The 1st Appellant prays that the said orders be set aside and/or reviewed and the nomination certificate for the position of Member of County Assembly of Woodley Ward, Kibra Constituency Nairobi County issued to the 2nd Appellant be confirmed.

2. The grounds of the appeal are that the orders made on 19th May 2017 by the PPDT were in breach of Article 50(1)of the Constitution on fair trial; that the 1st Appellant was not accorded sufficient time to explain its case and the PPDT did not consider its oral evidence; that the PPDT failed to appreciate the 1st Appellant’s Internal Dispute Resolution Mechanism (hereinafter IDRM) which it had employed to discipline the Respondent and disqualify him from vying on their ticket after he was found guilty of instigating and participating in violence.

3. The 1st Appellant also states that the PPDT failed to consider matters relevant to the case and instead considered irrelevant matters and failed to appreciate new and important matters that warranted a review of their earlier decision. That it failed to properly exercise its discretion under Order 45of theCivil Procedure Rules in regard to this matter.

4. In opposing the appeal the Respondent filed a replying affidavit sworn on 26th May, 2017. He avers that he participated in the 1st Appellant’s primaries held on 30th April 2017 for the position of member of County Assembly, Woodley Ward and emerged victorious having garnered 1156 votes against the 2nd Appellant’s 217 votes in a free, fair and credible process. He was duly declared the winner by the Returning Officer in accordance with Rule 18. 6of theODM ElectionandNomination Rules and was awarded the Provisional Nomination Certificate.

5. The Respondent charges that the 2nd Appellant lodged a complaint with the Special County Appeals Tribunal (SCAT) of the 1st Appellant challenging the Respondents nomination to which the Respondent was not accorded an opportunity to respond. In its decision of 6th May 2017 the SCAT revoked his nomination and recommended that a certificate be issued to the 2nd Appellant. The Respondent moved the SCAT for review of its decision and on 8th May 2017 he was cleared of any wrong doing and his nomination upheld.

6. The Respondent asserts that if at all there was a meeting of the National Elections Board held on 2nd May 2017 to deliberate on allegations raised against him, then he was condemned unheard as he only learnt of the meeting and its decision on 16th May 2017. He urges that the NEB acted in contravention of Article 50(1) of the Constitution on the right to fair trial and the provisions Fair Administrative Action Act 2015. That in any case, both the SCAT and the PPDT cleared him of any wrong doing in subsequent decisions and the 1st Appellant’s application to the PPDT to review its decision was heard and dismissed.

7. On 29th May, 2017 the parties made brief submissions before me. Mr. Yogo learned Counsel for the 1st Appellant argued that the Review before the PPDT was necessary on two grounds. First, that there had been lack of service in the proceedings that led to the decision sought to be reviewed and second, that there were material facts not brought before the PPDT, which if placed before it the PPDT would have reached a different decision.

8. Counsel also states that from the SCAT the Respondent went directly to the PPDT bypassing the National Appeals Board of ODM in contravention with the ODM Constitution which makes it mandatory for parties to exhaust its IDRM before going to the PPDT.

9. Miss Opar learned Counsel for the 2nd Appellant aligns herself with the submissions of Mr. Yogo and in addition states that the life of the SCAT expired on 6th May 2017 after it first pronounced itself in this matter. That there can therefore be no other review which was carried out by the SCAT on its decision after the 6th May 2017 and any decision allegedly made on 8th May 2017 cannot stand.

10. Miss Opar further argues that there was no evidence that the Respondent paid the requisite Kshs.30,000/= to entitle him to participate in the proceedings before the SCAT. Any purported participation in the said proceedings by the Respondent was therefore through the back door.

11. Mr. Ayieko learned Counsel for the Respondent submits that when the Respondent learnt on 6th May 2017 that a decision had been made which nullified his nomination, he wrote to the SCAT to contend that he had been condemned unheard. In that letter he also submitted his evidence, which led the SCAT to review its earlier decision on 8th May 2017. Counsel asserts that although the SCAT had stopped hearing fresh matters it was still in operation. They recommended that the NEB do revoke the Nomination Certificate issued to the 2nd Appellant.

12. Counsel contends that at the time of the meeting by the NEB on the 2nd May 2017 the Respondent had not been heard. Upon hearing both parties the SCAT exonerated the Respondent. When the 1st Appellant showed reluctance to comply with the orders of the SCAT the Respondent moved the PPDT to enforce the decision. The PPDT upheld the decision of the SCAT directing the 1st Appellant to issue the Respondent with the Nomination Certificate. The PPDT subsequently dismissed the 1st Appellant’s application for review of its decision upon hearing both sides. He urges the court to dismiss the appeal with costs.

13. I have considered the grounds of the appeal, the affidavit in reply and the rival arguments advanced in submission. The issue that does commend itself for determination is whether the PPDT failed to properly exercise its discretion in regard to the provisions of order 45of theCivil Procedure Rules with regard to this matter.

14. The evidence in the matter is that following the nomination process the Respondent emerged as the winner having garnered 1156 votes as evinced by the polling results both tabulated and announced by the Returning Officer. The Returning Officer issued the Respondent with a provisional nomination certificate as the winner.

15. The 2nd Appellant filed a complaint with the SCAT and without hearing the Respondent the SCAT nullified the results and recommended that the NEB do revoke the Respondent’s nomination certificate and issue one to the 2nd Appellant. Upon the Respondent lodging his response urging that he had been condemned unheard and providing his evidence, the SCAT did review its earlier decision and uphold his nomination. The SCAT had stopped hearing fresh matters but there was nothing to stop it from reviewing what was already before it.

16. The decision of the SCAT was subsequently upheld by the PPDT which considered the Tally Sheets adduced in evidence, which indicated that the Respondent had won. It also considered the judgment of SCAT including the review issued on 8th August, 2017 in favour of the Claimant. The 2nd Appellant filed a replying affidavit in support of the 1st Appellant. The PPDT considered all the information presented in the review application and found that there was no new and important evidence tendered by the 1st Appellant herein. The application was dismissed.

17. What the 1st Appellant calls material facts were that the Presiding Officer had declared that it was not possible to tell who the winner was in the nomination process and had left the decision to the NEB. This declaration led to the meeting of 2nd May 2017 by the NEB in which the Respondent was disqualified unheard for gross misconduct at the recommendation of the Presiding Officer.

18. I note however that not only did the Presiding Officer tabulate, but he also announced the results which from annexture “POB 2” indicate that the Respondent won. He also issued him with a provisional nomination certificate which has been upheld by both the SCAT and the PPDT. The Appellants cannot approbate the decision of the SCAT only when it suits them and reprobate it upon review. The earlier decision of the SCAT was arrived at without benefit of evidence from both sides as was the decision of the NEB following its meeting of 2nd May 2017.

19. Having considered the material before me I find that the two Tribunals did consider the evidence placed before them and properly directed themselves to arrive at the decisions that they did. I also find that on the evidence before it the PPDT properly directed itself with regard to the provisions of Order 45of theCivil Procedure Rules.The appeal is therefore found to be lacking in merit and is accordingly struck out.

DATED, SIGNEDandDELIVERED at NAIROBI this 31st DAY OF May, 2017.

…………………

L. A. ACHODE

JUDGE

In the presence of ……………for the 1st Appellant

In the presence of ……………for the 2nd Appellant

In the presence of ……………for the Respondent