[2022] KEHC 537 (KLR)

Otieno v Odhiambo & 3 others (Civil Appeal E328 of 2022) [2022] KEHC 537 (KLR) (Civ) (3 June 2022) (Judgment)

Neutral citation: [2022] KEHC 537 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E328 of 2022

JK Mulwa, J

June 3, 2022

Between

John Millar Otieno

Appellant

and

Lawrence Otieno Odhiambo

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Chairman, Odm Party

3rd Respondent

Odm Party National Election Board

4th Respondent

Judgment

1. The Appellant John Millar Otieno and 1st Respondent Lawrence Otieno Odhimabo were both cleared by their party – Orange Democratic Movement Party (ODM) the 2nd Respondent to vie for the position of Member of the County Assembly (MCA) for Sarang’ombe Ward within Nairobi County.

2. On the 21/4/2022, pursuant to the ODM Party Nomination Rules, the party nominated Appellant John Millar Otieno and issued him with a Direct nomination provisional certificate. On the same day, the party (ODM) issued a Notice for nomination of candidates by universal suffrage on the 22/4/2022 for the same Ward. John Millar Otieno participated in the nominations by Universal Suffrage, but lost to the 1st Respondent. John Millar Otieno raised a complaint to the ODM National Elections Board (NEB) whereupon deliberations were held on the 26/4/2022. In a decision dated the 27/4/2022, the complaint was dismissed, and upheld the complainant’s nomination.

3. The 1st Respondent (Lawrence Otieno Odhiambo) then appealed to the Political Parties Dispute Tribunal (PPDT) vide Complaint No. E052 of 2022 (Nairobi). His complaint as may be seen from the Tribunal’s proceedings was that despite being the winner, the party and NEB failed to issue him with the Nomination Certificate for the MCA position of the Sarang’ombe Ward, for no good reason, and that ODM and its NEB failure to issue him with the requisite nomination certificate was in breach of his legitimate expectation, and an infringement of his political rights and are couched in mischief to deny him the party ticket. Further, such denial had caused him great loss of resources and time.

4. Upon hearing the complaint, the PPDT made its findings by its judgment dated and delivered on the 9/5/2022 in the following terms; thusa.The complaint herein is allowed.b.The decision of the 1st Respondent Appeals Tribunal is upheld.c.The decision by the 3rd Respondent to issue the 4th Respondent with a direct nomination is hereby declared null and void.d.The 1st, 2nd and 3rd Respondents are hereby directed to forthwith issue to the Complainant the final nomination certificate to contest for the Member of County Assembly for Sarang'ombe Ward, in any event within 24 hours of this order, and to forward his name to the Independent Electoral and Boundaries Commission.e.Ordinarily, this tribunal equates political parties with families and is reluctant in most cases to award costs against the members of the same party. But in the instant case, the Respondents have caused unnecessary suffering to the complainant and therefore the 1st Respondent ought to compensate the complainant in terms of cost of this proceedings and the Tribunal hereby so orders.

5. The above orders are the subject of the appeal hereof. The Memorandum of Appeal raises several grounds, being:-1. The learned Tribunal erred in law and fact by failing to appreciate the provisions of Rules 8 & 23 of the ODM Party primaries and Nomination Rules 2021 in so far as the nomination exercise of the parties are concerned.2. The Learned Tribunal erred in law by failing to appreciate that the modes of nominations under Rule 8 of the ODM Party Primaries and Nomination Rules, 2021 can be applied inclusively and not exclusively.3. The Learned Tribunal's judgment erred in fact and law by failing to consider overwhelming evidence to impeach the character of the 1st Respondent in his past conduct as an incumbent MCA of the party.4. The Learned Tribunal erred in fact and in law in failing to consider the views and submissions of the 2nd, 3rd, and 4th Respondents, being the Representatives of the Party, on the errors in the conduct of Party Nominations, which ultimately created conflicting expectations from both the Appellant and the 1st Respondent through no fault of the Appellant.5. The Learned Tribunal erred in fact and in law in apply the doctrine of legitimate expectation to favor the 1st Respondent without noting that it also applies to the Appellant.6. The Learned Tribunal erred in law in failing to appreciate the effect of its judgment on the doctrine of party autonomy and internal governance.7. The Learned Tribunal erred in law in failing to appreciate that one of the fundamental factors that coalesce members into a political party is 'ideology' which it was clearly demonstrated at the Tribunal that the 1st Respondent and the Party have divergent ideologies from his past conduct.8. The learned Tribunal erred in law in misconstruing and misapplying the provisions of the Political Parties Act, 2011.

6. It is proposed to ask the Court for an order that: -i.The Appeal be allowed.ii.The whole of the judgment and/or orders of the Political Parties Disputes Tribunal be set aside and/or vacated in its entirety.iii.The nomination exercise of the Sarang’ombe ward be nullified and the party be directed to conduct a fresh, free, and fair nomination exercise that meets the legitimate expectations of all parties involved and within a reasonable time.

7. The said grounds may be summarized into three, which will also be the issues for determination:a.Whether the ODM party and its NEB conducted two nomination exercises, and if so, which ought to take precedence, and/or be upheld?b.Whether the ODM party and its NEB erred in undertaking two nomination exercises.c.Whether the PPDT Judgment should be set aside and if the answer is in the affirmative, what orders commend themselves for issuing, in the circumstances of the appeal.d.Costs.

8. Parties filed written submissions which I have considered. There is no dispute that ODM party conducted two nomination exercises; a fact admitted by all the parties to this appeal. Indeed, in their submissions the 2nd, 3rd and 4th Respondents conceded to the above in the following terms:“However, due to an inadvertent error, the Sarang’ombe Ward nomination process proceeded by universal suffrage wherein erroneously including the 1st Respondent, who during his term in office, had violated the party principles, ideologies and interest (paragraph 1. 2).

9. And, based on the erroneous nomination process, the 1st Respondent appealed to the Political Parties Dispute Tribunal wherein it unpled his complaint thus provoking this Appeal (paragraph 1. 3).In no uncertain terms the 2nd, 3rd and 4th Respondents support the Appeal, for the obvious reasons stated above.

10. It is also conceded by the above Respondents that on the 21st April 2021, a day before the nominations, a direct ticket had been issued to the Appellant citing Section 38A of the Political Parties Act, the Respondents submitting that it was within their mandate and discretion to conduct the nominations by any of the following methods;a.Direct party nomination, orb.Indirect party nomination

11. The above is further buttressed by the Party’s Nomination Rules to wit, Rule 8(b) and 23. Rule 23 clearly provides that the party may use Direct Nomination method where due diligence exercise has been carried out to justify the use of the said method, upon consideration of the following factors:a.Where there is confirmation that the aspirant is the only qualified candidate for the position that is the subject of the electoral exercise or stands elected.b.That the party leadership has for compelling reasons recommended that it is in the best interest of the party to issue direct party nomination to certain candidates.

12. The Appellant while conceding to the methods a party may use to nominate a candidate. Pursuant to the Party Nomination Rules, it is submitted that the party had made a resolution, clearly admitted by the Respondents in the affidavit of Abdullahi Diriye, and therefore no mistake had been made in error or inadvertently in directly nominating the Appellant, but that his participation in the Universal Suffrage nomination exercise was as a result of the confusion caused by the party and its organs to call for the nominations after the direct ticket had been issued.

13. As a result, it is submitted by the Appellant that he was validly nominated by the ODM Party, in the first instance, and whatever came thereafter was in his view immaterial, and should be ignored, and further that theTribunal’s holding that the 1st Respondent’s legitimate expectation was infringed without considering his rights and legitimate expectation cannot stand. I was urged to consider the order of nomination stated under clause 8 of the 2021 ODM Rules; and find that Direct Ticketing comes first, before Universal Suffrage method.

14. These errors on the part of the party and its NEB caused the confusion. No party in that case ought to be punished or benefit from the confusion or errors; save for the ODM and its NEB, to the exclusion of the Appellant and the 1st Respondent.

15. On the matter of legitimate expectation, the Supreme Court of Kenya in the case Communications Commission of Kenya & 5 others vs Royal Media Services & 5 others said;“legitimate expectation would arise when a body, by representation or by practice has aroused an expectation that is within its powers to fulfil. Therefore, an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation.”

16. To that extent then, the Appellant who had been issued with the Direct Ticket held the party to fulfil its promise, and by practice, was under no obligation to heed to the notice to participate in the Universal suffrage nominations before his Direct Ticket was either withdrawn or cancelled.

17. As I have alluded above, whether served or not with notice that a dispute had been filed at the PPDT, in my considered view, there was no necessity for him to defend himself therein. Nevertheless, the PPDT went ahead to issue adverse pronouncements or decision against him, without proper investigation as to whether the Appellant was properly served with the notice of the institution of the complaint and the hearing date. This is another procedural flaw committed by the PPDT, to the disadvantage of the Appellant.

18. I have looked at Rule 8 of the ODM Primaries and Nominations Rules. Rule 8 (a), (b), (c) and (d) state the methods of nominations. They are stated in the following order of priority;a.Consensus among candidates, party and community representatives.b.Direct nominationsc.The use of delegates system through the Electoral College System.d.Universal Suffrage of registered party members.

19. By the above, Direct Nomination method ranks high above Universal Suffrage. The party was well aware of the rules when it gave a Direct Ticket to the Appellant. I am not persuaded that, it was an inadvertent error when it ordered a second nomination by Universal Suffrage. Those errors should not be visited upon the candidate who was given the Direct Ticket that dushed his legitimate expectation.No doubt then, that the 2nd - 4th Respondents conceded and supported the appeal, for setting aside the PPDT’s decision, nor to the one who won in the universal nominaitons.

20. What is at issue in my considered opinion is whether the PPDT properly exercised its discretion to issue the orders it did, despite the clear material facts before it. I am persuaded that the Party undertook a due diligence exercise on the Appellant before handing him with the Direct Ticket; unlike in the case of the 1st Respondent whose character during his service as the incumbent were wanting. Further, it is submitted that the 1st Respondent was no longer a member of the Party, thus, had the PPDT interrogated those facts and submissions by counsel placed before it, it would have come to a different finding.

21. In the case of Thomas Ludindi Mwadeghu vs John Mruttu & another[2017] e KLR, the court held:“it is the duty of the party to decide on one, the process to use to come up with a nominee, and two, who would represent them.”Further in Samuel Owino Wakiaga vs ODM & 2 others,[2017] e KLR, Achode J statedIt is my considered view that form that moment on, the first process of nomination ended and the second process of identifying a nominee began pursuant to the orders of the NAT. the Central Committee which deliberated and identified a nominee I its powers under Article 7. 5, A.2 of its Constitution where its functions are outlined.It is not the duty of the court to micromanage parties and direct them on such mundane matters such as how to communicate with its organs, themselves or in law in their constitution and rules.”The only rider is that the method employed by the party must be in conformity with the law and its rules of nomination and its constitution.

22. The above was further held and expanded in different decisions; among them Michael Ojala Nyangi vs Hezron Okoth Onditi & others[2022] e KLR (Thande J) and Jacob Ochieng Ogutu vs ODM & 2 others [2022] e KLR (Mulwa J.).In the latter case, the Court considered the case Francis Gitau Parsimei vs National Alliance Party & another,Nbi Petition No. 356 of 2012 [2012] e KLR, where Majanja J. held:“at the core is whether the court should intervene to stop the electoral process so that a party who claims his or her rights have been infringed can agitate his rights before the court… it must be clear that political rights are exercised through a political process involving many actors – the citizens and institutions. This is the process provided for under the provisions of Chapter Seven of the Constitution cited “representation of the people” these provisions are operationalized by the Independent Electoral and Boundaries commission Act, 2011, the Elections Act and the Political Parties Act 2011… it is therefore proper that Political rights are realized within a structured process that takes into account the larger interests of society and the need for a free and fair election which is enhanced by a self-contained dispute resolution mechanism underpinned by the Constitution itself enacted to give effect to its provisions. See also Francis Mutuku vs Wiper Democratic Movement Kenya [2015] e KLR.

23. It is now trite and settled that the court will not ordinarily interfere with the internal processes, procedures and dispute resolution mechanisms of a Political Party. Where there is a clear procedure for redress of any particular grievance prescribed under the Constitution or an Act of Parliament, that procedure should be strictly followed. See Speaker of the National Assembly vs James Njenga Karume[1992] e KLR.

24. Direct and Indirect Nomination process are well provided in the ODM Party Nomination Rules. However, both cannot be invoked at the same time, and this, as stated under Rule 8, Direct Nomination takes precedence. There would be no basis at all to hold otherwise. The 2nd ,3rd and 4th Respondents support the Appeal as earlier on stated, obviously due to the errors they committed in conducting the two nominations at the same time, thus creating the confusion to the candidates, notably the Appellant and the 1st Respondent.

25. To that end, the 2nd, 3rd and 4th Respondents’ proposal that with view to maintaining peace and harmony amongst its members, the court has been urged to refer the matter back to the party for an amicable solution of the dispute between the party members.On the part of the Appellant, I have been urged to find that the PPDT has no authority to direct the ODM party what to do or who to nominate, or what method it ought to use for its nominations

26. I am bound by the provisions stated under the Party’s Nomination Rules and its constitution, notably Rule 8 and Rule 23 where the methods for party nominations are stated – see paragraph 18 above.Section 2 of the Political Parties Act defines a Political Party as:“An association of citizens with an identifiable ideology or programme that is constituted for the purpose of influencing public policy of nominating candidates to contest elections”

27. Having stated and held that the party processes and procedures on nominations ought to be followed, I find the PPDT decision, particularly Paragraph 64(d) where it directed a direct final nomination ticket to be issued to the complainant out of place and misplaced.The PPDT has no authority or mandate to decide for the party what method it ought to use in the nomination exercise of its various candidates to the political positions. That falls under the jurisdiction of the party itself, guided by its nomination rules and its constitution. It is also outside the Court’s mandate to direct the method the party ought to employ in the nomination exercises.

28. I repeat here the holding in Francis Mutuku (Supra) that the law is clear with regard to circumstances such as are now before me, that courts have expressed themselves quite succinctly on this point, that where there are specialized procedures provided by the law or the constitution for the resolution of disputes they should be followed (emphasis provided)

29. For the above reasons, I find that the appeal is merited.a.The PPDT judgment delivered on the 9/5/2022 is set aside in its entirety.b.The dispute is hereby referred back to the Orange Democratic Movement Party and the National Elections Board for them to decide which of the methods stated under its Primary Nomination Rules and Constitution they will employ to resolve the dispute between the Appellant and the 1st Respondent taking into account the strict timelines stated by the Independent Electoral and Boundaries Commission.

30. The dispute having been brought about by admitted errors by the 2nd, 3rd and 4th Respondents, the said parties shall pay costs of these proceedings to the Appellant.

Orders accordingly.DATED SIGNED AND DELIVERED THIS 3RD DAY OF JUNE 2022. J.N. MULWAJUDGE