[2022] KEHC 10200 (KLR)

Republic v Independent Electoral and Boundaries Commission & 3 others; Ounda & 4 others (Exparte) (Judicial Review E086 of 2022) [2022] KEHC 10200 (KLR) (Judicial Review) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10200 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E086 of 2022

AK Ndung'u, J

July 13, 2022

Between

Republic

Applicant

and

Independent Electoral and Boundaries Commission

1st Respondent

Orange Democratic Movemnet (ODM) Party

2nd Respondent

National Elections Board (ODM)

3rd Respondent

Kennedy Oyugi Odhiambo

4th Respondent

and

Nicholas Ouma Ounda

Exparte

Matilda Achieng Aiyera

Exparte

Richard Omuma Ouguindi

Exparte

Dennis Okidi

Exparte

Maurice Otieno

Exparte

Judgment

1. The ex parte Applicants (hereinafter “the Applicants”) moved this court vide a notice of motion application dated June 28, 2022seeking the following Orders:1. A declaration does hereby issue that the 1st Respondent’s decision to decline jurisdiction in hearing and determining disputes relating to or arising from nominations, upon IEBC’s receipt of the name of a candidate nominate by a political party is null and void ab initio for being in violation of Article 88 (4) (e) of the Constitution of Kenya (2010), Section 13 (1), 13 (2), 74 (1) of the Elections Act, No. 24 of 2011 as read with Regulation 9 (1) (d) of the Rules of Procedure on Settlement Disputes [LN 139/2012].2. A declaration that the 1st Respondent's Decision delivered on 20th June 2022 offends Article 88 (4) (e) of the Constitution of Kenya (2010), Section 13 (1), 13 (2), 74 (1) of the Elections Act, No. 24 of 2011 as read with Regulation 9(1) (d) of the Rules of Procedure on Settlement Disputes [LN 139/2012].3. An Order of Certiorarito bring into the High Court for the purposes of quashing the Decision of the 1st Respondent delivered on June 20, 2022. 4.An Order of Certiorarito bring into the High Court for the purposes of quashing the duly filled and publicized Form 11M to the extent that it includes the name of the 4th Respondent as the ODMCandidate for Nyayo Highrise Ward, Lang'ata Constituency, Nairobi City County in the August 9th General Elections.5. An Order of Certiorarito bring into the High Court for the purposes of quashing the Clearance Certificate issued to the 4th Respondent by the 1st Respondent's Returning Officer for Lang'ata Constituency.6. An Order of Prohibitionprohibiting the 1st Respondent either by itself, its agents or servants from in any manner proceeding with the publishing in the Kenya Gazette the name of the 4th Respondent and/ or presenting his name to any other party responsible for printing the ballot papers for the August 9th General Elections as the ODMParty candidate for Nyayo Highrise Ward within Lang’ata Constituency, Nairobi City County until this matter is dispensed with. 7. An Order of Mandamuscompelling the 2nd and 3rd Respondent to conduct fresh nominations for the position of the Member of County Assembly for Nyayo Highrise Ward within Lang’ata Constituency, Nairobi City County in accordance with the Orange Democratic Movement Party Constitution and Orange Democratic Movement Party Primaries and Nomination Rules, 2021 within timelines set by this Honorable Court.

8. An Order of Mandamuscompelling the 1st Respondent, through its Returning Officer for Lang'ata Constituency, to forthwith clear the candidate duly nominated, upon the conduct of fresh nominations, for the position of the Member of County Assembly for Nyayo Highrise Ward within Lang’ata Constituency, Nairobi City County.

9. That the leave so granted do act as a stay of the 1st Respondent's decision delivered on June 20, 2022; issuance and legal validity of the Clearance Certificate to the 4th Respondent; and any impending action to publish in the Kenya Gazette the name of the 4th Respondent and/ or presenting his name to any other party responsible for printing the ballot papers for the August 9th General Elections as the ODMParty candidate for Nyayo Highrise Ward within Lang’ata Constituency, Nairobi City County until this matter is dispensed with.

10. That leave be granted to file the Certified Typed proceedings together with the substantive application, upon receipt from the 1st Respondent.

11. That this Honourable Court be and is hereby pleased to issue directions necessary towards ensuring the expeditious disposal of this matter.

12. Costs be in the cause.

13. Any other order that this Honourable Court will be pleased to issue in the circumstances.

2. The application is founded on the grounds set out on the face therein and the Supporting Affidavit sworn by Nicholas Ouma Ounda on even date. The Applicants’ case is that on April 22, 2022, having complied with the party requirements they participated in party’s nomination exercise for Member of County Assembly for Nyayo Highrise County Assembly Ward seat within Lang’ata Constituency, Nairobi City County. However, the nominations were shambolic and marred with serious irregularities which rendered the whole exercise a façade and no credible results were rendered from that exercise. That notwithstanding, Kennedy Oyugi Odhiambo, the 4th Respondent herein was issued with the Provisional Nomination Certificate.

3. Aggrieved by the same, all aspirants save for the 4th Respondent herein lodged a formal complaint vide a letter to the ODMNational Elections Board Chair objecting to the outcome and seeking a fair, credible process to be conducted which complaint elicited no response. The said six aspirants moved the ODM Elections Appeals Tribunal and a verdict was rendered on April 27, 2022 annulling the nominations exercise for Nyayo Highrise Ward and a repeat nomination exercise was ordered or in the alternative, the Party was to employ any other formula for arriving at a party candidate for the ward seat, pursuant to ODM Constitution and rules thereunder provided that the process was fair, credible, verifiable and accountable. Despite the said verdict being served on the National Elections Board, the 3rd Respondent herein, they still proceeded to award the party ticket to the 4th Respondent.

4. Aggrieved by the 2nd and 3rd Respondents’ actions, they challenged the decision before the Political Parties Disputes Tribunal (”PPDT”) who on May 8, 2022 nullified the nominations of the 3rd Respondent and directed fresh nominations relating to Nyayo Highrise Ward for Orange Democratic Movement Party to be conducted within 72 hrs. However, on May 18, 2022 in total disregard of the constitutional rights of the Applicants, the 2nd and 3rd Respondents, by way of an unprocedural and irregular direct ticketing method, proceeded to purportedly issue the Nomination Certificate for Nyayo Highrise Ward for ODM Party to the 4th Respondent and forwarded his name to the 1st Respondent. The 4th Respondent has already been cleared and even issued with a clearance certificate by the 1st Respondent’s Returning Officer for Lang'ata Constituency.

5. On 30th May 2022, the Applicants filed a complaint with the Independent Electoral and Boundaries Commission Dispute Resolution Committee (“IEBC DRC”). In their view, the IEBC DRC, upon hearing the parties, unreasonably, illegally and irregularly dismissed the complaint for want of jurisdiction by misapplying, misinterpreting and misdirecting itself on the applicable law being: Article 88 (4) (e) of the Constitution of Kenya (2010), Section 13 (1), 13 (2), 74 of the Elections Act and Regulation 9 (1) (d) of the Rules of Procedure on Settlement Disputes [LN 139/2012]. That failure by the IEBC DRCto substantively adjudicate on the complaint infringed on the rights of the Applicants to a fair hearing as well as their political rights guaranteed under Article 37 of the Constitution of Kenya (2010).

6. Further, the 1st Respondent’s decision prejudices the Applicants’ rights and legitimate expectation to participate in a fair party primary and infringes on the rights of the voters and registered ODMparty members’ resident in Nyayo Highrise Ward, Lang'ata Constituency, Nairobi City County. Accordingly, they urged that the application be allowed.

7. The Applicants also filed written submissions dated July 3, 2022in support of the motion. On the issue whether the 1st Respondent through its Dispute Resolution Committee had jurisdiction to hear and determine the complaint before it, counsel cited Section 13(2) and 74(1) of the Elections Act as read with Article 88(4)(e) of the Constitution and Regulations 2 and 9(1)(d) of the Rules of Procedure on Settlement Disputes. To that end, counsel submitted that pursuant to the above provisions, theIEBC DRC misapplied and misinterpreted the provision of the Constitution as well as statute vis-à-vis the role or stage which they play resolving disputes arising out of nominations. In counsel’s view, IEBC DRC had the jurisdiction to hear and determine the complaint before it.

8. On whether the nomination of the 4th Respondent was regular and/or legal, counsel submitted that the nomination and submission of the name of the 3rd Respondent was to be conducted within 72 hours from the May 8, 2022, therefore the deadline for complying with the order of the PPDT was on May 10, 2022 at 11:59 PM and any nomination process conducted after the stated date and time would be considered as illegal, irregular null and void.

9. It was also counsel’s submission that Rule 23 of the ODM Party Primary Election Rules 2021 sets out conditions to be considered while issuing a direct ticket, such as the scenario in this complaint. However, the said rule was never complied with as no research or opinion poll was conducted and no evidence has been presented by the Respondents to rebut the Applicants’ assertion.

10. Furthermore, even if the Rule had been complied with, the nomination on the May 18, 2022or any date after the May 10, 2022 would be void ab initio since the date for conducting party primaries provided for under Section 13(1) of the Elections Act, being 90 days before the General Elections had already passed. Further, having breached the 72-hour timeline as demanded by PPDT, that nomination was void and the party could not have extended the statutory timelines suo moto. Accordingly, it was urged that the application be allowed with costs.

The 1st Respondent’s case 11. The 1st Respondent filed Grounds of Opposition dated July 4, 2022 and written submissions of even date opposing the motion. They contended that the Disputes Resolution Committee of IEBC. was correct on its interpretation of inapplicability of the Sections 2 of the Elections Act as read with Article 88(4) (e) of the Constitution of Kenya to the present dispute and its preliminary determination that it lacked the requisite jurisdiction to determine the Applicants’ grievance.

12. It was counsel’s submission that it is clear from the nature of complaint raised by the Applicants that the grievance was an alleged non-compliance by the 2nd and 3rd Respondent with orders that were issued by the PPDT regarding party primaries. In their view, this grievance ought to have been directed to the pertinent political party’s internal dispute resolution mechanisms and eventually the PPDTfor adjudication. Counsel further submitted that since the 1st Respondent herein is not and was not involved at all in the party primaries that is a political preserve as held in the decision in Sammy Ndung’u Waity v Independent Electoral and Boundaries Commission & 3 Others 2019 eKLR. Accordingly, it was urged that the application be dismissed with costs.

The 2nd & 3rd Respondent’s case 13. The 2nd and 3rd Respondents filed a Replying Affidavit sworn Catherine Muyeka Mumma on June 30, 2022 opposing the motion. The deponent is the Chairperson of the 3rd Respondent. Its their case that the 2nd & 3rd Respondents conducted party primaries in Nyayo Highrise Ward on April 22, 2022 and the 4th Respondent was declared the winner. However, the result of the nomination process were contested by the other aspirants before the 2nd Respondent’s National Appeal Tribunal and the Tribunal nullified the results and the 3rd Respondent directed to conduct fresh nominations.

14. However, the 2nd Respondent had extensive consultations with the Central Committee of the 1st Respondent, and taking into consideration all the applicable factors made a decision to issue a direct ticket to the 4th Respondent as provided for under Rule 8 of the Party Primaries and Nomination Rules. The complainants being aggrieved by the said decision filed a complaint before the PPDT who nullified the decision of the 2nd and 3rd Respondents and directed that fresh nominations be conducted.

15. As a result, the 2nd Respondent elected the method of consensus and directed all the aspirants to agree on a singular candidate suitable for nomination. The aspirants never reached a consensus. That failure of consensus amongst the candidates led the 2nd and 3rd Respondents to go to the next method provided under Rule 8 of the 2nd Respondent’s Nomination and Party Primary Rules and their decision to issue a direct ticket to the 4th Respondent was made in good faith and in adherence to the party’s rules.

16. It is urged that the Applicants have not filed any complaint before the 2nd Respondent’s National Appeal Tribunal or the PPDT to challenge the decision to use direct nomination to nominate the 4th Respondent. It was her contention that while the IEBC DRC has the jurisdiction to hear and determine disputes relating the actions of the Returning Officer’s in clearing candidates, the issues raised by the Applicants is a dispute between members of a political party and the party and Section 40 of the Political Parties Act is clear on the manner of initiation and resolution of such disputes. Consequently, the IEBC DRC’s decision was well founded in law. Accordingly, it was urged that the application be dismissed with costs.

17. The 2nd and 3rd Respondents filed written submissions dated July 1, 2022 opposing the motion. On jurisdiction of theIEBC DRC, counsel submitted that once the National Appeal Tribunals nullified the primaries, the said cause of action was spent and the issuance of a direct ticket by the party through its constituent organs constituted a new cause of action. As such, the first port of call therefore could only be by IDRM before moving to the Tribunal as required by Section 40(2) of the Political Parties Act. Counsel also submitted that while Applicants have exhibited a letter that has never been received by the 2nd and 3rd Respondents, paragraph 7 of the said letter crystallises the Applicants’ cause of action which is a refund of the nomination fees and the 2nd Respondent at paragraph 11(iv) of the affidavit of Catherine Muyeka Mumma has committed to refunding the Applicants’ the nominations fees which should fully settle the Applicants’ claim.

18. On whether the 4th Respondent was properly nominated, counsel submitted that Rule 8 of the 2nd Respondent’s Party Primary Rules provides for various ways in which a candidate may be selected by the party. Therefore, upon the issue of nomination being referred back to the NEB for determination, the Board had the power to choose from any of the methods of selecting a candidate and the Board exercised its power and issued a direct ticket to the 4th Respondent who in counsel’s view was procedurally and validly selected as the nominee for the position of Member of County Assembly, Highrise Ward.

19. On the orders sought, counsel submitted that the Applicants have not shown or demonstrated how the decision by the 1st Respondent’sDRC was irrational, unreasonable or ultra vires. Indeed, counsel submitted that the Applicants are invoking an appellate jurisdiction which is not within the purview of judicial review. As such, they are not deserving of the orders of this court and urged that the application be dismissed with costs.

The 4th Respondent’s case 20. The 4th Respondent filed Grounds of Opposition dated June 29, 2022 opposing the motion. He contended that the application offends the doctrine of exhaustion and does not satisfy the exceptional circumstances within which a party can directly move the High Court under Section 9(4) of the Fair Administrative Actions Act. Further, the application has failed to demonstrate that the 1st Respondent’s impugned decision was tainted with illegality, irrationality or procedural impropriety.

21. It is contended that the application as framed and the reliefs sought amount to inviting this Honorable Court to fall into great error and usurp the duty of the appropriate court by opening and enforcing a decision of the PPDT that was already spent when the parties compiled and subjected themselves to a fresh a repeat nomination process that remains unchallenged to date.

22. It was also his contention that IEBC DRC was right in declining jurisdiction on account of the dispute herein not being a nomination dispute as contemplated by Article 88(4)(e) of the Constitution and sections 2 and 74(1) of the Elections Act. As such, the dispute was required to be determined as provided under sections 40 and 41(3) of the Political Parties Act. Therefore, by dint of section 13(2A) of the Elections Act, section 331 of the Political Parties Act, the Party's IDRM was the first port of call in resolution of the dispute and there is no evidence that the Applicants exhausted the Party’s IDRM mechanism. Consequently, the IEBC DRC was correct in downing its tools.

23. The 4th Respondent also filed written submissions dated June 29, 2022 opposing the motion where counsel reiterated their grounds of opposition and which I have duly considered.

Analysis and Determination 24. I have considered the pleadings and the arguments advanced by the parties herein. The issue for determination is whether the IEBC DRC had jurisdiction to entertain the Applicants’ complaint and if so, whether the orders sought should be granted.

25. Article 88(4)(e) of the Constitution as read with Section 74 of the Elections Act establishes the IEBC DRC and bestows on it the jurisdiction to settle certain electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.

26. Section 40 of the Political Parties Act on the other hand establishes the PPDT and its jurisdiction includes:(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; and(f)appeals from decisions of the Registrar under this Act;(g)disputes arising out of party primaries.

27. The Act, further in subsection (2) of section 40, gives a condition for the jurisdiction of the Tribunal with regard to disputes covered in (a), (b), (c), and (e), to have them first subjected to internal political party dispute resolution mechanisms. (emphasis mine). As such, for the Tribunal to assume jurisdiction, there is need for there to have been an internal dispute resolution mechanism, or an attempt at the same.

28. I am also cognizant of the Supreme Court decision in Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR where it was observed as follows:“60Coming to pre-election disputes, including disputes relating to, or arising from nominations, the Constitution is clear. These are to be resolved by the IEBC (through its Committee on Dispute Resolution as provided for by Section 12 of the enabling Act) or where applicable, by the Political Parties Disputes Tribunal. Where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can lawfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.

61That an election is a process, a continuum, which begins from the registration of voters right up to the declaration of results, is a truism. But this fact is not in itself capable of conferring jurisdiction on an Election Court, to inquire into the entire electoral process. Again, while we agree with the assertion that an election is a process, in the context of dispute resolution, it must be a structured process. That is why, the framers of the 2010 Constitution, were mindful of the need, for a clear roadmap for the resolution of disputes along this continuum. Hence those disputes that arise before an election are to be resolved by the organs established for that purpose. By the same token, those that arise, during and after the elections, are reserved for the Election Court. Indeed, the “Election Court” itself, comes into real existence, after the elections proper. It is for this reason that the Constitution restricts every organ to its operational sphere. Hence, the IEBC is only responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. The latter are definitely a preserve of the Election Court, which means that the former, are a preserve of the IEBC or the PPDT as the case may be. This in our view is what this Court held in George Mike Wanjohi v. Steven Kariuki [supra].

62We are also in total agreement with the assertion that disputes relating to nominations or eligibility go to the root of an election. However, as we have observed elsewhere, this fact does not confer jurisdiction on an Election Court to determine “nomination related” disputes, precisely because, “these disputes” are reserved for the IEBCby Article 88 (4) (e) of the Constitution. An Election Court ought not to trample upon the electoral process like a colossus, in the face of clear and unambiguous provisions of the Constitution regarding its jurisdiction.”

29. The dispute before the IEBC DRC was one between members of a political party and a political party which is covered by Section 40(1)(b) of thePPA. The Applicants had initially invoked their party’s IDRM and even went before thePPDTwhere it was directed that fresh nominations be conducted. Through their party, the 4th Respondent herein was issued with a direct ticket meaning the 2nd and 3rd Respondents complied with the order of PPDT to conduct fresh nominations save that they elected a direct ticketing method according to Rule 8 of the 2nd Respondent’s Party nd and 3rd Respondent to conduct a repeat nomination exercise, or in the alternative, the Party was to employ any other formula for arriving at a party candidate for the ward seat, pursuant to ODM Constitution and rules thereunder, provided that the process was fair, credible, verifiable and accountable. In my considered view the issue of fresh nominations was now spent, the Party having elected to award the certificate to the 4th Respondent by direct ticket. Being aggrieved by the second repeat nominations awarding the direct ticket to the 4th Respondent, the question is whether the dispute was rightfully before the IEBC DRC.

Primary Rules. The order by the PPDT required the 2 30. It is not in contention that IEBC DRC has the mandate to settle electoral disputes including disputes arising out of nominations. The question then is in what instances can the jurisdiction of IEBC DRC be invoked. I agree with the holding of the court in Hezron J. Opiyo Asudi & another v Peter Anyang’ Nyongo & 6 others [2017] eKLRwhere the Court of Appeal observed as follows:29. What then was the intention of the legislature in introducing section 40(1) (fa) of the Act? The object is discernible from the memorandum of objects and reasons of the Political Parties (Amendment) Bill, which was as follows:“Clause 19 seeks to amend section 40 of the Principal Act by adding disputes arising out of party primaries in order to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes.”

30. Given the above clear intent of the legislature, we cannot see how it can rightly be argued that disputes arising out of party primaries were intended to be commenced at the PPDT, without having to first, submit such disputes to a party’s IDRM. If that were the case, it would be tantamount to giving concurrent jurisdiction to several bodies, including the Independent Electoral and Boundaries Commission, which under Article 88(4) (e) of the Constitution, is empowered to settle disputes relating to or arising from nominations. In order to realize the objective of the aforesaid amendment, which was to “to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes”, we think that it is only proper that all disputes arising out of party primaries be commenced at party level. We think the legislature may have inadvertently failed to include paragraph (fa) under subsection (2) of section 40.

31. It is noteworthy that under section 9 of thePolitical Parties Act as read with regulation 23 of the Second Schedule to the Act, every political party must have an internal party dispute resolution mechanism. Further, section 13 (2A) of the Elections Act requires political parties to hear and determine “all intra party disputes arising from political party nominations” within thirty days. That in essence implies that any form of dispute between members of a political party, including disputes arising out of party primaries, must first be placed before the party’s IDRM, unless, and for good reason, the nature of the dispute is such that the party’s IDRM cannot grant the disputants or one of them a fair hearing.

32. In our view therefore, disputes under paragraphs (a), (b), (c), (e) and (fa) of section 40 should first be instituted before a party’s IDRM. If a disputant demonstrates to the party’s IDRM’s satisfaction that the dispute ought to be heard and determined by the PPDT, the matter may thereafter be filed before the PPDT. The sieving mechanism provided by section 40(2) must be respected and safeguarded. To the extent that all disputes arising out of party primaries are disputes between members of a political party, then the party’s IDRM must be the first port of call.

33. Being of that considered view, we are satisfied that both the PPDT and the High Court did not err in their interpretation of section 40 of the Political Parties Act.”

31. In my view therefore, when a dispute arose regarding the second repeat nominations, the Applicants ought to have invoked their party’s IDRM before approaching the IEBC DRC. A fresh cause of action or dispute had arisen between the members of a political Party and the Party. The aggrieved Members first port of call was the Party’s IDRM and IEBC DRCwas spot on in declining jurisdiction.

32. With the result that the application dated June 28, 2022 is without merit and is hereby dismissed. Each Party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY 2022. A. K. NDUNG'UJUDGE