[2022] KEPPDT 977 (KLR)

Ounda & 3 others v Orange Democratic Movement & 2 others (Complaint E053 (NRB) of 2022) [2022] KEPPDT 977 (KLR) (Constitutional and Human Rights) (8 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 977 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E053 (NRB) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 8, 2022

Between

Nicholas Ouma Ounda

1st Complainant

Matilda Achieng Aiyera

2nd Complainant

Richard Ouma Ongundi

3rd Complainant

Dennis Okidi

4th Complainant

and

Orange Democratic Movement

1st Respondent

Orange Democratic Movement National Elections Board

2nd Respondent

Kennedy Oyugi Odhiambo

3rd Respondent

Judgment

Introduction 1. The Complainants herein challenged the nomination of the 3rd Respondent herein at the 2nd Respondents Appeals Tribunal. On 27/04/2022 the 2nd Respondents Appeals Tribunal nullified the nomination of the 3rd Respondent. (See ruling in ODM Tribunal Case No. 35 of 2022).

2. The Complainants claim that on the 28/04/2022 in blatant disregard of the ruling by the ODM National Elections Appeals Tribunal dated 27/04/2022 nullifying the nomination of the 3rd Respondent and in total disregard of their Constitutional Rights the 1st and 2nd Respondent’s issued the Nomination Certificate for Nyayo High Rise Ward for ODM Party, to the 3rd Respondent.

3. The Complainants are seeking orders to suspend the decision of the Orange Democratic Movement Party from issuing the nomination certificate for Nyayo High-rise Ward to the 3rd Respondent, orders restraining the 1st and 2nd Respondent from presenting the name of the 3rd Respondent as the duly nominated candidate for the Orange Democratic Movement Party for Nyayo High-rise Ward and orders restraining the Interested Party from receiving or considering the name of the 3rd Respondent for the Orange Democratic Movement Party for Nyayo Highrise Ward.

4. The complaint is opposed. The 3rd Respondent has filed grounds of opposition, a response, and a replying affidavit all dated 30/04/2022. The 1st and 2nd Respondents entered appearance and filed a response to the complaints.

5. The Complainants were represented by Brian Njau & Co. Advocates, the 1st and 2nd Respondents were represented by Henia Anzala & Associates Advocates and the 3rd Respondents were represented by the firm of S.O Madialo Law Advocates.

Complainants Case 6. The Complainants and the 3rd Respondent are registered members of the Orange Democratic Movement (ODM) party the 1st Respondent. They all participated in the Party’s nomination exercise for Member of County Assembly for Nyayo High Rise Ward.

7. After the said nominations which took place on the 22/04/2022, the complainants were dissatisfied, and they challenged the results before the ODM Appeals Tribunal case number ODM Appeals Tribunal Case No. 35 of 2022.

8. The Appeals Tribunal found merit in the complaint and nullified the nomination exercise as well as the nomination certificate issued to the 3rd Respondent. The Tribunal ordered the National Elections Board to take appropriate action in nominating a candidate as per the rules of the ODM.

9. It is the complainants’ case that the 1st and the 2nd Respondents have disregarded the orders of the Appeals Tribunal issued on the 27/04/2022 and they have gone ahead and issued the 3rd Respondent with another nomination certificate without consultation or undertaking any democratic process allowable by the ODM Party Constitution and its nomination rules.

10. They contend that the actions by the 1st and 2nd Respondents are in gross violation of the democratic rights and political rights of the Complainants, ordinary members of the ODM party as well as the people of Nyayo Highrise Ward

11. The complainants seek the orders as prayed in the Complaint and in the Notices of Motion Application and in the alternative they seek orders to compel the 1st and 2nd Respondents to carry out fresh nominations at Nyayo Highrise Ward.

Respondents’ Case 3rd Respondent’s case 12. The 3rd Respondent filed his response to the complaint herein vide his pleadings dated 30/04/2022. He has filed a preliminary objection and seeks to strike out the complaint, the application, and all consequential orders on the grounds that “the complaint is statute-barred for want of compliance with mandatory provisions of section 40 of the Political Party’s Act and as such the Tribunal cannot determine the complaint”.

13. In his response to the complaint the 3rd Respondent reiterates what the complainants have raised in their complaint on the nomination exercise that took place on the 22/04/2022 and the decision of the ODM Appeals Tribunal which he does not deny.

14. It is the 3rd Respondents case that on the 27/04/2022 the ODM Appeals Tribunal nullified his nomination and the provisional nomination certificate issued to him and it made the following order at paragraph 4 of the judgment“This judgment be and is hereby served on the National Elections Board for appropriate actions noting to keep in line with necessary timelines issued by the IEBC on the conduct of the nomination exercise.”

15. He claims that in compliance with the said orders the National Elections Board (NEB) undertook a fresh nomination process as outlined in the ODM party primaries elections rules 2021 and issued him with a nomination certificate.

16. He adds that the decision by the party and its organs to issue him with a nomination certificate was a decision grounded on the relevant and applicable provisions of the ODM Constitution and Party Nomination Rules.

17. He states that the grievance herein that arose from the fresh nomination exercise should have been determined before the ODM Appeals Tribunal as required by law.

18. The 3rd Respondent contends that his nomination was in accordance with the Party Constitution and the Nomination rules which does not in any way amount to gross violation of the complainants’ democratic and political rights nor threatened political rights of the people of Nyayo High rise Ward.

19. He maintains that the complaint does not disclose any grounds and is vexatious and an abuse of the court process.

20. He maintains that the Complainants complaint has no basis and should therefore be dismissed.

Issues for Analysis and Determination 21. Having read through the pleadings together with the annexures the following issues are for determination in this claim:i.Whether the Tribunal has jurisdiction to hear and determine this complaint?ii.Whether the 2nd Respondent issued the nomination certificate to the 3rd Respondent in clear violation of its own appeals tribunal decision?iii.What orders can the Tribunal issue in the circumstances?iv.Who bears the costs of this claim?

Disposition Whether the Tribunal has jurisdiction to hear and determine this complaint? 22. The Respondent has raised a preliminary objection on a point of law that “the complaint is statute-barred for want of compliance with mandatory provisions of section 40 of the Political Party’s Act and as such the Tribunal cannot determine the complaint”.

23. The issue being raised by the 3rd Respondent is that the orders issued by the Appeals Tribunal on the 27/04/2022 were new orders which led to a fresh nomination that may have had disputes.

24. He contends that these disputes from the fresh nomination should have been appealed against and afresh at the ODM Appeals Tribunal and failure to do this by the complainants ousted the jurisdiction of this Tribunal to hear and determine the matter.

25. The jurisprudence in section 40(2) of the Political Party’s Act is now well settled and it is trite that any dispute that arises from a nomination has to go through IDRM of the party otherwise the jurisdiction of this Tribunal is ousted by lack or an attempt of the IDRM process.

26. The complainants aver that this Tribunal has both original and Appellate Jurisdiction. In supporting their position, they relied on the case of Jekconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others[2017] eKLR (complaint 200 of 2017).

27. The 1st and 2nd Respondents submitted that they will rely on their submissions on record which have aptly dealt with the issue of Jurisdiction and that without IDRM the Tribunal lacks jurisdiction.

28. The 3rd Respondent associated himself with the submissions of the 1st and 2nd Respondent that without IDRM the tribunal lacks jurisdiction, in support he relied on the case of Hezron J. Opiyo Asudi & another v Peter Anyang Nyongo & 4 others [2017] eKLR. He further contends that after the issuance of the direct nomination the complainants ought to have started the process of IDRM afresh.

29. The Complainants opposed the position of the 3rd Respondent and submitted that there has never been a 2nd Nomination in law and that the two processes are intertwined.

30. We agree. The issue of jurisdiction, being the source from which this Tribunal derives its authority must first be settled. In the words of the Court in KakutaNMaimai Hamisi v Peris Pesi Tobiko & 2 others[2013] eKLR (Civil Appeal No. 154 of 2013): The court pronounced itself as follows:“So central and determinative is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it, once it appears to be in issue, is a desideratum imposed on courts out of a decent respect for economy and efficiency and a necessary eschewing of a polite but ultimately futile undertaking of proceedings that will end in barren cul de sac. Courts, like nature, must not act and must not sit in vain.”

31. The jurisdiction of this Tribunals flows from section 40 of the Political Party Act. A matter relating to party primaries can only be presented before us after it has been submitted and or attempted to be submitted to IDRM as a condition precedent. Section 40 of the Political Parties Act provides as thus: -“(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.”

32. On record there is a judgement dated 27/4/2022 from the ODM Appeals Tribunal that nullified the nomination exercise and the nomination certificate issued to the 3rd Respondent.

33. It is therefore clear that the Complainants first approached the IDRM of the party and in breach of the directions of the Tribunal the 1st and 2nd Respondents awarded the 3rd Respondent a direct nomination.

34. The 3rd Respondent contended that the Complainants should kick start the IDRM process afresh after they learnt that a direct nomination had been issued. A position which was opposed by the Complainants who posited that the processes are intertwined and don’t amount to two nomination exercises, a position that we agree with. The complainants had already subjected themselves to the IDRM process of the party and obtained favourable orders which orders were disobeyed and therefore the only way they could have obtained recourse is through approaching this tribunal. Therefore, the argument that they should have moved the IDRM process afresh is untenable, and it is not legally sound.

35. The Complainants having established that they first attempted to resolve the dispute through the IDRM this tribunal is well seized of the matter.

36. We shall now go ahead to determine the other issues in controversy.

Whether the 1st Respondent issued the nomination certificate to the 3rd Respondent in clear violation of its own appeals tribunal decision? 37. After the 1st Respondents Appeals Tribunal heard the matter it gave its judgment on the 27/04/2022 in the following terms;1. The Appeal filed by the Appellant are merited.2. The nomination of the 1st Respondent, Kennedy Oyugi Odhiambo be and is hereby nullified.3. The nomination certificate issued to the 1st Respondent, Kennedy Oyugi Odhiambo be and is hereby nullified.4. The judgment be and is hereby served on the National Elections Board for appropriate action noting to keep in line with the necessary timelines issued by the Independent Electoral and Boundaries Commission on the conduct of the nomination exercise.5. No orders as to costsThe judgment was signed by the Chairperson and three members of the Appeals Tribunal and the same has been annexed by both the complainant and the 3rd Respondents in their supporting affidavits and replying affidavits respectively.

38. The orders were served upon the ODM NEB for appropriate action which the 3rd Respondent wants this Tribunal to believe that the appropriate action was to grant him with the nomination certificate.

39. The Complainants submitted that the 1st Respondent issued the 3rd Respondent the nomination certificate in clear violation of their own Appeals Tribunal’s directions. Further, they contend that interim certificate and the nomination process were nullified.

40. On timeliness the Complainants submitted that this Tribunal has powers under Regulation 37 of PPDT Regulations 2017 to extend time. The said provision provides as thus:The Tribunal may, for sufficient reason, extend or reduce the time prescribed by these Regulations for the doing of any act upon such terms and conditions as may appear to it just and expedient.

41. 1st and 2nd Respondent urged us to be guided by the case of Samuel Owino Wakiaga v Orange Democratic Movement Party & 2 others [2017] eKLR that upheld the position of PPDT in upholding the position of the party in issuing a direct nomination after the results of the nomination exercise were nullified by ODM NEB.

42. However, in light of the recent amendments which were undertaken in 2022 to the Political Parties Act which introduced section 38F and 38G on the conduction of direct and indirect nominations have to be followed which were not available when the judgement in Samuel Owino Wakiaga v Orange Democratic Movement Party & 2 others[2017] eKLR was arrived at and therefore the judgement is distinguishable. Further, the Orange Democratic Movement Party Primaries and Nomination Rules, 2021 specifically Rule 23 outlines the procedure to be followed before issuance of a direct nomination. The rule provides as thus:“Where direct nomination is the method to be applied, the NEB shall carry out a due diligence exercise to justify the use of this method. The due diligence exercise shall take into consideration any of the following:a.That there is consensus by candidates as set out above.b.Credible research has been carried out in regards to the relevant electoral area through a scientific survey conducted by a competent entity, to provide an evidence-based opinion that a particular candidate is best placed to deliver the relevant electoral seat for the Party.c.There is a confirmation that the aspirant is the only qualified candidate for the position that is the subject of the electoral exercise or stands elected.d.That such a direct nomination shall aid the Party to comply with the provisions of Article 81(b) of the Constitution of Kenya, 2010 as to gender thresholds provided that the candidate under consideration is qualified and capable of delivering the seat for the party(5)The Party Central Committee shall meet to consider and approve the list of persons to be given direct party nomination certificates after consideration of the report that shall have been compiled by the NEB in line with the provisions of the sub-rules on direct nominations.6. Where the Party issues a direct nomination to a candidate the other candidates who had applied for that position shall be refunded the application fees paid.”

43. There is no evidence that a scientific survey was conducted. Further, no evidence was presented before us that the Party Central Committee met, considered and approved the list of persons to be issued with the direct party nomination certificates after considering the report compiled by NEB, if there was any, in accordance with the rules. No evidence has been adduced that the Complainants have been refunded the application fee that they had paid. Therefore, the direct nomination issued to the 3rd Respondent falls short of the rules and amounts to breach of legitimate expectations of the Complainants.

44. The Supreme Court inCommunications Commission of Kenya & 5 Others v Royal Media Services & 5 OthersPetition Nos. 14, 14A, 14B & 14C of 2014 eKLR 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."

45. The court in Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR held as thus: -“A procedural legitimate expectation rests on the presumption that a public authority will follow a certain 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. Once a reasonable expectation exists the administrator is required to act in accordance with that expectation, except if there are public interest considerations which outweighs the individual’s expectation.”

46. If a party advertised for a position for its own members to apply, pay application fees to participate in a competitive process, they then have a legitimate expectation that due process will be followed. Anything less would amount to a breach of their legitimate expectation. We hold that the 2nd Respondent created a legitimate expectation by issuing notices that party nominations will be conducted and in turn breached that legitimate expectation and decided unilaterally to issue a direct nomination to the 3rd Respondent.

47. In a recent judgement by this Tribunal in a differently constituted bench in Complaint No. E041/2022 Michael Magero GumovOrange Democratic Movement (ODM) & 4 others held as thus:- “61)The Political Parties Act at section 38 requires parties to nominate through direct party nomination method; or (b) indirect party nomination method.

62. Where a party nominates for one then changes its mind, it is expected that members and aspirants will be advised of the change. In deed the rule of law requires that aspirants and in deed the membership are adequately informed.

63. In fact we note that the party laws recognise the need to respect and uphold the rights of all its members even as the party leadership retains the duty and role of propelling the party to a win at each election in which it fields a candidate.”

48. We agree with the judgement and further state that it is a blatant violation of the political rights of the members of a party when a political party acts unilaterally without involving the members and without following the laid-out procedure in dishing out a direct nomination. The ODM NEB acted in clear violation of its own nomination rules, Political Party Act and their own Appeal Tribunal directions.

What orders can the Tribunal issue in the circumstances 49. In the circumstances we issue the following orders:a.A declaration be and is hereby issued that the 1st and the 2nd respondent did not conduct verifiable, free or fair nominations for the member of county assembly Nyayo Highrise Ward.b.That the nomination certificate issued to the 3rd Respondent by the 1st and 2nd Respondent be and is hereby nullified.c.An order be and is hereby issued directing the 1st Respondent to conduct a fresh nomination exercise for the position Member of County Assembly, Nyayo Highrise ward, within 72 hours following the pronouncement of this judgment.d.The 1st Respondent is further directed to forthwith submit the name of the duly nominated candidate to the IEBC.e.A copy of this judgment be transmitted to the IEBC forthwith. For the avoidance of doubt, in the event that the 3rd Respondent’s name has already been submitted to the IEBC, the same shall not to be gazetted pending the implementation of this judgment.f.This being a party dispute and in the spirit of fostering party unity each party shall bear its own costs for this complaint.

49. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MAY 2022. ………………………………………………………………HON. ERASTUS ORINA(PRESIDING MEMBER)……………………………………………………………HON. THERESA CHEPKWONY(MEMBER)……………………………………………………………..HON. DANIEL KAGACHA(MEMBER)