[2022] KEHC 9783 (KLR)

Saiya v Independent Electoral and Boundaries Commission & 2 others (Election Petition 5A of 2022) [2022] KEHC 9783 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9783 (KLR)

Republic of Kenya

In the High Court at Migori

Election Petition 5A of 2022

RPV Wendoh, J

July 15, 2022

(FORMERLY NAIROBI HCCA NO. E450 of 2022)

Between

Mogendi Wilson Saiya

Appellant

and

Independent Electoral and Boundaries Commission

1st Respondent

Orange Democratic Movement

2nd Respondent

William Mwita Abed Maroa

3rd Respondent

Judgment

1. Mogendi Wilson Saiya (the appellant) filed the instant appeal dated 24/6/2022 through the firm of Matwere Asiyo & Co. Advocates. The appellant was dissatisfied with the entire ruling and/or decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee delivered on 20/6/2022 in Complaint No. 5 of 2022. The appeal is premised on the following grounds:-i.That the 1st respondent’s Dispute Resolution Committee misdirected itself on both law and facts by finding it did not have the requisite jurisdiction to hear and determine the complaint thereby arriving at an erroneous decision.ii.That the 1st respondent’s Dispute Resolution Committee misdirected itself both on law and facts by dismissing the appellant’s complaint by erroneously and selectively interpreting the relevant constitutional and statutory provision of the law thus arriving at a skewed decision.iii.That the 1st respondent’s Dispute Resolution Committee misdirected itself both on law and facts by finding that the complaint related to party nominations and thus engaged in dereliction of duty purporting to decline to be seized of the requisite jurisdiction, whilst the 1st respondent had already received and included the complainant’s name amongst those of the other political party nominees.iv.That the 1st respondent’s Dispute Resolution Committee misdirected itself on both law and facts by basing their impugned decision on extraneous matters, thereby arriving at an erroneous decision.v.That the 1st respondent’s Dispute Resolution Committee misdirected itself both on law and facts by failing to keenly interrogate and scrutinize the totality of the evidence tendered before it by the complaint and thus subsequently arrived at an erroneous decision.

2. The appellant prayed:-i.That this appeal be allowed in its entirety with costs in favour of the appellant.ii.That the 1st respondent’s Dispute Resolution Committee ruling/decision in Complaint No. 5 of 2022 delivered on 20/6/2022 be set aside and be substituted with an order directing the 1st respondent to clear and publish the appellant’s name in the Kenya Gazette as the 2nd respondent’s candidate for the Kuria West Constituency National Assembly seat during the August 9, 2022 general elections.iii.Costs of both the notice of motion application and the appeal herein be met by the respondents.

3. The 1st respondent entered appearance but did not file any responses. The 2nd respondent did not enter appearance despite service.

4. The firm of Lumumba & Ayieko Advocates entered appearance on behalf of William Mwita Abed Maroa, the 3rd respondent. He filed a replying affidavit dated 1/7/2022. The 3rd respondent deponed that he agreed with the findings of the 1st respondent’s Dispute Resolution Committee that it lacked jurisdiction to hear and determine the complaint before it; that the complaint raised by the appellant was primarily a dispute arising out of Party Nominations as contemplated under Section 40 (1) of the Political Parties Act, 2011 since the complaint was against the decision of the 2nd respondent to nominate him as its National Assembly candidate for Kuria West Constituency; that the appellant ought to have initiated the dispute to the Internal Political Party Dispute Resolution Mechanisms as stipulated under Section 40 (2) of the Political Parties Act as read with Section 13 (2A) of the Elections Act; that upon being dissatisfied with the decision of the Political Party’s Internal Dispute Resolution Committee, proceed and appeal the said decision/ruling at the Political Party’s Dispute Tribunal pursuant to Section 40 (1) (f) (a) of the Political Parties Act as read together with Regulations 7 and 8 of the Political Parties Dispute Tribunal (Procedure) Regulations, 2017 and if further dissatisfied proceed with an appeal to the High Court pursuant to Section 41 (2) of the Political Parties Act as read together with Regulation 34 of the Political Parties Dispute Tribunal (Procedure) Regulations, 2017.

5. It was further deponed that the appellant did not file a complaint with the 2nd respondent’s Internal Dispute Resolution Committee and/or the Political Parties Dispute Tribunal; that after the appellant realized that he had failed to file a complaint with the 2nd respondent’s Internal Dispute Resolution Committee and the Political Parties Dispute Tribunal, he filed as an afterthought a complaint before the 1st respondent’s Dispute Resolution Committee which has no jurisdiction to hear the matter; that the 1st respondent through its Kuria West Returning Officer stated that the appellant’s name had not been forwarded by the 2nd respondent to the 1st respondent.

6. The 3rd respondent stated that the appellant had not produced any Nomination Certificate or any communication from the 2nd respondent confirming that the 2nd respondent had made a decision that he would be its National Assembly Nominee for the Kuria West Constituency Elections; that the documents produced by the appellant with regards to his name imprinted in the list of nominees can be considered doctored to the extent that the appellant’s name is included; that the appellant does not state where he got the list from, from which official of the 2nd respondent signed and forwarded his name to the 1st respondent, why the 2nd respondent did not issue him with a nomination certificate and why he did not query on his status of the nomination certificate since he knew or ought to have known he had to be issued with a nomination certificate; that without proof that a nomination certificate was issued by the 2nd respondent to the appellant and the same communicated to the 1st respondent pursuant to Section 31 (1) (4) of the Elections Act, 2011 there is no way the 1st respondent could prove that the appellant had been nominated by the 2nd respondent as its nominee.

7. The 3rd respondent produced documents marked as “LAW-01” - “LAW-04” being his copies of ODM Life Membership Certificate and ID Card, receipts for payment of nomination fees, nomination certificate issued by the 2nd respondent and copy of registration certificate for Kuria West Parliamentary Elections issued by the 1st respondent. The 3rd respondent deponed that from the documents, there was nothing wrong with his clearance by the 2nd respondent; that this court cannot order the 1st respondent to clear and publish the appellant’s name in the Kenya Gazette as the 2nd respondent’s candidate for Kuria West Constituency National Assembly seat as prayed by the appellant when he was not cleared and/or nominated by the 2nd respondent, neither was he cleared by the 1st respondent.

8. In his supplementary affidavit, the appellant deponed that his complaint was properly lodged with the 1st respondent’s Dispute Resolution Committee and it has nothing to do with the internal dispute resolution mechanism of the 2nd respondent as his name had already been forwarded as the party’s nominee and duly received by the Commission within the plain meaning of Section 13 of the Elections Act 2011 and therefore the 2nd respondent was “functus officio” in so far as nominating the 3rd respondent was concerned.

9. It was further deponed by the appellant that his name had been duly nominated and forwarded to the 1st respondent who received it and included it in its own list of other political nominees for various seats as indicated in FORM 11K and in particular at page 49; that pursuant to Section 13 (2) of the Elections Act, the 2nd respondent was precluded from changing his name as its nominated candidate whose name had already been received by the 1st respondent.

10. The 1st respondent entered appearance but did not file any responses. The 2nd respondent did not enter appearance despite service.

11. I have carefully considered the appeal, the responses, the annexures relied upon by each party and the written submissions. The issues for determination are:-i.Whether the 1st respondent had jurisdiction to hear and determine the complaint filed by the appellant.ii.Whether the 1st respondent acted within the law in clearing the 3rd respondent under the Orange Democratic Movement Ticket as a nominee of the Kuria West Member of Parliament.

12. Jurisdiction is what gives authority to the courts, tribunals or any other body tasked with performing quasi-judicial functions to hear and determine disputes. Once a question of jurisdiction has been raised in any dispute resolution forum, it behoves the sitting umpire to address it first as it is its lifeline. Jurisdiction opens the gates to litigants to approach the court to articulate their cases. In the absence of jurisdiction, the decision which arises from the dispute resolution forum, is a nullity for it did not have the power and/or authority to hear the matter in the first instance.

13. This position was succinctly expressed by the court in the much-celebrated case of Owners of Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Limited (1989) 1 KLR where Nyarangi J held:-“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented to it in a formal way for its decision. The limits of this authority are imposed by statute, charter, or commission under which the court is constituted and may be extended or restricted…if no restriction or limit is imposed, the jurisdiction is said to be unlimited…if the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but except where the court has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given…Jurisdiction is everything, without it a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

14. Similarly, the Supreme Court in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR expressed itself:-“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…”

15. Therefore, the issue of jurisdiction, is not a mere procedural technicality but it goes to the very heart of the matter.

16. The 3rd respondent submitted that the 1st respondent properly found that it had no jurisdiction to hear the matter as the complaint before it arose from party nominations. The appellant contends that the 2nd respondent’s Internal Dispute Resolution Committee and the Political Party’s Dispute Tribunal are functus officio since the nominees names were already submitted to the 1st respondent. In support of this, the appellant produced Form 11K being a list of nominated candidates in party primaries.

17. The appellant’s case was that he was the duly elected Candidate for the Kuria West Member of Parliament seat under the 2nd respondent’s Party Ticket but it was given to the 3rd respondent. Section 2 of the Political Parties Act defines Party Primaries as:-“The process through which a political party elects or selects its candidates for a forthcoming general election or for a forthcoming by - elections.”

18. It is now settled that the Political Parties Dispute Tribunal (PPDT) has jurisdiction to hear and determine disputes arising from party primaries prior to the general elections. Section 40 (fa) of the Political Parties Act No. 11 of 2015 provides that the Tribunal has the jurisdiction to determine disputes arising out of party primaries. Section 40 (2) precludes the Tribunal from determining disputes which have not been heard and determined through the political party’s internal dispute resolution mechanism in the first instance. In the event a party is not satisfied, then a right of appeal lies to the High Court on points of law and fact but on points of law only to the Court of Appeal and Supreme Court.

19. It is not clear from the pleadings whether the candidates desirous of contesting the Kuria West Parliamentary seat under the 2nd respondent’s ticket were subjected to a popular vote or it was a direct nomination exercise. The court cannot speculate which process was used.

20. In his supplementary affidavit of 6/6/2022, the appellant deponed at paragraph 10 that he did not pursue or raise any concerns with the 2nd respondent as he had hoped that his name would be forwarded to the 1st respondent. From this averment, it is clear that the appellant knew the procedure for raising issues related to nominations; the first port of call being at the 2nd respondent’s Internal Dispute Resolution Mechanism but he slept on this rights. There being no dispute, the 2nd respondent issued the nomination certificate to the 3rd respondent as its nominee.

21. If at all the appellant was convinced that awarding the nomination certificate to the 3rd respondent violated his legitimate expectation of being the nominee for the Kuria West Parliamentary Seat, he should have lodged his complaint with the 2nd respondent’s internal dispute resolution in the first instance.

22. The appellant produced a List of Nominated Candidates in Party Primaries being Form 11K of the 1st respondent which allegedly carries the names of all the nominees of the Member of National Assembly position in various constituencies. The appellant’s name is highlighted on page 4 of the list as the nominee for Kuria West under the 2nd respondent’s ticket. The 3rd respondent stated that the list is a fraud but he has not produced any evidence to counter the said list.

23. However, the document produced by the appellant, bears no date or stamp of the 1st respondent to indicate that the list is a true reflection of what was presented to the 1st respondent. Unfortunately, the 1st and 2nd respondents have also not assisted this court in defending their positions and/or actions by filing their responses. On the other hand, the 3rd respondent has also put up a strong case by producing a certificate of nomination “LAW-003” which shows that he was declared the winner to be the flag bearer of the 2nd respondent’s party ticket in Kuria West Member of National Assembly position. The said ticket was issued on 18/4/2022. Whether the said ticket was issued through a voting process or direct nomination, it is still unknown.

24. On that basis, since the 1st respondent’s Dispute Resolution Committee was confronted with names of two nominees claiming clearance under the same political party’s ticket it means that the issue was one of nomination and hence an intra - party dispute. They should have been referred to the 2nd respondent’s Internal Dispute Resolution Mechanism created by the Rules made by the 2nd respondent. If dissatisfied with the decision of the tribunal, then the appellant would have appealed to the Political Parties Dispute Tribunal under Section 40 (f) (a) of the Political Parties Act. From the Political Parties Dispute Tribunal, the appellant would then move to the High Court. In my view, the 1st respondent correctly declined to entertain the matter because it lacked jurisdiction.

25. On the first issue for determination, it is this court’s finding that the 1st respondent lacked the jurisdiction to hear and determine the nomination complaint before it.

26. Turning to the second issue for determination, had the appellant proved that the list of nominated candidates was presented to the 1st respondent before the 18/4/2022, then the 2nd respondent would have been precluded from giving the name of another candidate as the law prohibits it under Section 13 (2) of the Political Parties Act which provides:-“A Political Party shall not change the candidate nominated after the nomination of that person has been received by the Commission.”

27. In the same manner, the 1st respondent would not have any basis to clear the candidature of the 3rd respondent. The 3rd respondent presented himself for clearance by the 1st respondent on 30/5/2022. This is almost a month after the 3rd respondent was given the nomination certificate dated 18/4/2022.

28. As is the norm in the political season, when a candidate has been cleared to vie on a particular political party, presentation of the nomination certificate is not a secretive affair. The occasion is ordinarily pompous with the supporters of the nominee celebrating the victory. Even if it is a quiet and secretive affair, the rumours of clearance of a particular candidate are always known. Why did the appellant have to wait until the time when the 3rd respondent was cleared to file a dispute? This is an afterthought. As stated by the appellant at paragraph 10 of his supplementary affidavit, he hoped that he would be issued with the nomination certificate, which promise did not come to pass.

29. It is this court’s finding that the clearance of the 3rd respondent by the 1st respondent to vie for the Kuria West Member of Parliament under the 2nd respondent’s political party was procedural and in accordance with the law.

30. The upshot is that:-i.The 1st respondent lacked the jurisdiction to hear and determine the complaint before it.ii.The clearance of the 3rd respondent as the nominee candidate for the Kuria West Member of Parliament Seat under the 2nd respondent’s ticket is hereby upheld.iii.The appellant will bear the costs of this appeal.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 15TH DAY OF JULY, 2022R. WENDOHJUDGEJudgment delivered in the presence ofNo appearance for Mr. Matwere for the Appellant.No appearance for the 1st Respondent.Mr. Kitinya for the 2nd RespondentMr. Ayieko for the 3rd RespondentNyauke Court Assistant