[2022] KEHC 3317 (KLR)

Ouma v Electoral & Boundaries Commission; Party & 2 others (Interested Parties) (Constitutional Petition 1 of 2022) [2022] KEHC 3317 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3317 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Constitutional Petition 1 of 2022

KW Kiarie, J

July 6, 2022

Between

Oscar Oluoch Ouma

Petitioner

and

Electoral & Boundaries Commission

Respondent

and

Odm Party

Interested Party

Loice Akoth Kawaka

Interested Party

Roseline Akoth Awino

Interested Party

Judgment

1. Oscar Oluoch Ouma, the petitioner herein petitioned the court on June 21, 2022. He was seeking orders as follows:a)A declaration that the decision made by the respondent through its Dispute Resolution Committee (DRC) on June 17, 2022 has violated the petitioner’s rights under articles 19, 20, 24, 25, 38, 40, 47 & 50 of the Constitution and the same is hereby quashed and set aside.b)A writ of Mandamus do issue to compel the respondent to list the petitioner as a candidate running for the position of MCA for South Kabuoch ward on an Orange Democratic Party (ODM) ticket for the August 9th general election.c)Costs of the petition be provided for.

2. The petition was premised on the following grounds:a)On the 14th day of April, 2022, the 2nd. Interested party herein conducted its party primaries in South Kabuoch/ Pala Ward, Ndhiwa Constituency in order to determine its nominee for the position of Member of County Assembly (MCA) in light of the general elections slated for the 9th day of August, 2022. b)The said exercise was conducted by way of universal suffrage and the petitioner herein won and was consequently declared as the winner of the exercise.c)Aggrieved by the said results, the 3rd and 4th interested parties herein proceeded to appeal at the Political Parties Disputes Tribunal (PPDT).d)Consequently, the Tribunal held that the 2nd interested party herein was to conduct a repeat nominations exercise, still by way of universal suffrage.e)However, in exercise of the discretion conferred to it by the Orange Democratic Movement Party Primaries and Nomination Rules, 2021, the 2nd interested party directly nominated the petitioner herein as its candidate for South Kabuoch/ Pala Ward.f)Aggrieved by the decision of the party, the 3rd and 4th interested parties herein once again proceeded to the Independent Electoral and Boundaries Commission’s Disputes Resolution Committee and lodged Complaint No. 77 of 2022. g)On the 17th day of June, 2022, the said Committee rendered itself and upheld the nullification of the petitioner’s nomination and subsequent clearance due to the failure by the 2nd interested party to conduct nominations by way of universal suffrage.h)However, it is imperative to note that the 2nd interested party herein acted within its mandate and in accordance with its rules in directly nominating the applicant herein.i)Quite unfortunately, the committee failed to give directions as to the approach to be taken by the 2nd interested party herein to redress the nullification. The said decision thereby renders the party without a candidate for the position of Member of County Assembly (MCA) for South Kabuoch/ Pala Ward.j)The said decision was delivered just before the respondent officially gazettes candidates whose names will appear on the ballot during the elections slated for the 9th day of August, 2022. k)The petitioner is thus apprehensive that unless this Honourable Court intervenes, there is imminent risk that the 2nd interested party herein will not have a candidate for the position of Member of County Assembly (MCA) for South Kabuoch/ Pala Ward in the forthcoming general elections yet he was duly nominated for the said position.l)There is imminent risk that registered voters in South Kabuoch/ Pala Ward will have their political rights undermined by limiting the number of aspirants available to contest for the said position.

3. The second interested party supported the petition. It was however opposed by the respondent, 1st, 3rd and 4th interested parties.

4. The respondent and the 1st interested party opposed the petition on grounds that:a)That it is a common ground that the Political Parties Dispute Tribunal (PPDT) nullified the nomination of the petitioner by the 2nd Interested Party (ODM) on 1st May 2022 on grounds of electoral violence during the Party’s primaries.b)That the PPDT directed IEBC and ODM’s Elections Board to conduct a fresh election of ODM’s nominee for member of county assembly for South Kabuoch/Pala Ward through a universal suffrage of its members within 72 hours.c)That the 2nd interested party defied the findings and lawful orders of the Tribunal and instead handed a direct nomination to the petitioner. IEBC only cleared the petitioner for registration as a candidate for the elections on the mistaken belief that the 2nd interested party had complied with the directions of PPDT.d)That the order by the Tribunal is an order binding on the petitioner and the interested parties and which order was never obliged to rendering any action in disregard of the order otiose.e)That the respondent’s Committee has the statutory obligation under article 88 to ensure enforcement of lawful orders of judicial bodies pursuant to the national values and principles of governance under article 10 of the Constitution which includes rule of law, good governance, integrity, transparency and accountability.f)That the right to universal suffrage provided under articles 38(2) and 81(d) of the Constitution denotes the right of every citizen to vote. A direct ticket to the petitioner as issued by the 2nd interested party goes against this principle especially in light of an express court order.

5. On their part the third and the fourth interested parties herein raised only one ground of opposition and contended that the impugned decision is justified in law, fairness and equity.

6. The petitioner raised the following issues for determination:a)Whether the PPDT had powers to dictate the method to be used by the 2nd interested party in the conduct of fresh nominations;b)Whether the petitioner’s direct nomination therefore was in conformity with the law;c)Whether the petitioner should be punished for the choices of the 2nd interested party; andd)Who should bear the costs of the petition.

7. The respondent raised the following two issues for determination:a)Whether the nomination of the petitioner met the constitutional threshold and the principles under election legislation in Kenya; andb)Whether the petition meets the constitutional threshold to warrant determination?

8. On their part the 3rd and the 4th interested parties raised the following issues:(a)Did the Committee have jurisdiction over the complainants standing before it?(b)Is Abote’s direct nomination in violation of a court order valid?(c)Could the Returning Officer validly clear Abote before resolving the objection filed against his clearance?(d)Is Abote automatically disqualified under ODM’s Rule 17(1) (f) for his and his agents’ use of violence, threats, and intimidation, and was he eligible for a direct nomination under ODM’s rules barring perpetrators of violence from direct nominations?

9. From the issues framed by the parties it is clear that there is a consensus on issues except the issue as to whether the petition meets the constitutional threshold to warrant determination. I will therefore not belabour to frame the issues for determination.

10. Whenever a party approaches court with a constitutional petition, for it to be sustainable it must satisfy some basic threshold. It must identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation or threatened violation. This must be done with some reasonable degree of precision. In the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others[2013] eKLR the Court of Appeal at paragraph 44 stated:We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent.

11. From reading of the petition, I find that it was pleaded with precision as required in constitutional petitions. Equally I have perused the supporting affidavit and concluded that the petitioner provided adequate particulars of the claims relating to the alleged violations of the Constitution. It is therefore properly placed before the court. It is the duty of the court now to make a finding whether it is merited or not.

12. On April 14, 2022the Orange Democratic Party (2nd interested party) held primary nomination in respect of South Kabuoch/Pala ward. Massive violence was reported. On May 1, 2022 the PPDT nullified the nomination of Oscar Aluoch Obote Auma as a nominee for South Kabuoch/Pala ward on account of violence and ordered a repeat.

13. The Orange Democratic Party (2nd interested party) after the order to repeat the nomination exercise granted the appellant a direct nomination certificate. This, it was argued was a disobedient to the order to conduct nomination by universal suffrage.

14. Another dispute was filed with the Political Parties Disputes Tribunal (PPDT) and the nomination of the petitioner was nullified on grounds that the 2nd respondent violated the orders of the PPDT issued on 1st May, 2022.

15. On May 1, 2022the Political Parties Disputes Tribunal (PPDT) at paragraph 72 (ii) delivered itself as follows:The 2nd and 3rd respondents shall conduct a fresh election of the 2nd respondent’s nominee for Member of County Assembly for South Kabuoch/Pala ward through a universal suffrage of its members, within 72 hours of this Order; this is to say on or before May 3, 2022.

16. The Political Parties Disputes Tribunal (PPDT) is created under section 39 of Political Parties Act. The Tribunal’s jurisdiction is provided at section 40 of the Act as follows:(1)The Tribunal shall determine—(a)disputes between the members of a political party;(b)disputes between a member of a political party and the political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners;(f)appeals from decisions of the Registrar under this Act; and (fa) disputes arising out of party nominations.(2)Notwithstanding subsection (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.i.(3) A coalition agreement shall provide for internal dispute resolution mechanisms.

17. It was argued that the order of PPDT of 1st May, 2022 exceeded its jurisdiction. It was argued for the petitioner that the PPDT should have left the party to choose their preferred nomination method because section 38A of the Political Parties Act provides as follows:A political party may conduct party nominations using any of the following methods—(a)direct party nomination method; or(b)indirect party nomination method.

18. The respondent and the 1st interested party contended that when the PPDT ordered the 2nd interested party's Election Board to conduct fresh nominations for the seat of Member of County Assembly for South Kabuoch/Pala Ward through universal suffrage of its members within 72 hours, this order was binding on all the parties.

19. When the Tribunal ordered that the 2nd interested party's Election Board to conduct fresh nominations through universal suffrage of its members, it exceeded its jurisdiction. The Political Parties Act has left it open to a political party to choose one of the two options to fulfill its mandate without direction from any quarter.

20. The Supreme Court case ofSamuel Kamau Macharia v Kenya Commercial Bank & 2others [2012] eKLR observed:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law...a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation."

21. In the case of Sir Alibin Salim v Shariff Mohamed Shary[1938] KLR9 the court stated as follows:-“If a court has no jurisdiction over a subject matter of the litigation, its judgment and orders, however preciously certain and technically correct are mere nullities and not only voidable, they are void and have no effect either as estoppel or otherwise, and may not only be set aside at any time by the court in which they are rendered but be declared void by every court in which they may be presented. It is well established law that jurisdiction cannot be conferred on a court by consent of parties and any waiver on their part cannot make up for the lack or defect of jurisdiction.

22. In the instant case I find that the order of PPDT of May 1, 2022 was null and void ab initio since it exceeded its jurisdiction.

23. Subsequently, I find that order of the Dispute Resolution Committee (DRC) on June 17, 2022 was standing on quicksand and cannot be allowed to stay.

24. The upshot of the foregoing analysis of evidence I find that the petition is merited and I make the following orders:a)A declaration that the decision made by the respondent through its Dispute Resolution Committee (DRC) on June 17, 2022 has violated the petitioner’s rights under articles 19, 20, 24, 25, 38, 40, 47 & 50 of the Constitution and the same is hereby quashed and set aside.b)A writ of Mandamus do issue to compel the respondent to list the petitioner as a candidate running for the position of MCA for South Kabuoch ward on an Orange Democratic Party (ODM) ticket for the August 9th general election.c)Costs of this petition be borne by the respondent.

DELIVERED AND SIGNED AT HOMA BAY THIS 6TH DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE