[2022] KEHC 11446 (KLR)

Susa v Mueni & another (Election Petition Appeal E285 of 2022) [2022] KEHC 11446 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11446 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Election Petition Appeal E285 of 2022

JN Mulwa, J

June 7, 2022

Between

Gideon Nzioka Susa

Appellant

and

Mahbub Musyoka Mueni

1st Respondent

Wiper Democratic Movement National Election Board

2nd Respondent

(Being an appeal against the decision of the Political Parties Disputes Tribunal (Honourable Stephen Ligunya, Honourable Amina Hashi, and Honourable Andrew Waruhi) in Complaint No A/E004/2022 delivered on May 5, 2022. )

Judgment

1. Both the appellant Gideon Nzioka Susa and the 1st respondent Mahbub Musyoka Mueni are members of Wiper Democratic Movement (WDM), a political party duly registered under the Political Parties Act.

2. The 2nd respondent Wiper Democratic Movement National Elections Board (NEAB) is the party’s creation under its party Elections, Nomination Procedures and Rules, 2021. Its Mandate is stated under rule 4. 1 of the rules being to plan, organize, direct and coordinate the WDM internal, presidential, gubernatorial, parliamentary and civic candidates nominations throughout the Republic of Kenya in preparation for the general elections, in this case, the August 9, 2022.

3. During the party nominations for the position of Member of the County Assembly (MCA) in Eastleigh South Ward that took place on the April 13, 2022, the Appellant and the 1st respondent presented themselves for the nominations. They were the only two contestants and vied for the said position. The appellant (both in thePPDT E004/2022, and in this appeal) emerged the winner.

4. Being dissatisfied with the results announced on the said date, April 13, 2022, the 1st respondent challenged the result at the NEAB in Nairobi/KAMR/Eastleigh South/001 of 2022. Upon hearing the complaint, the NEAB found and held that the nomination exercise was not free fair and credible, and directed the 2nd respondent to conduct a fresh nomination exercise in accordance with WDM rules and nomination procedures. This was on April 22, 2022. They determined that the fresh election nominations to take May 7, 2022.

5. The appellant was dissatisfied with the order and directions for repeat nominations. He proceeded to file on Appeal before the Political Parties Disputes Tribunal (PPDT) being Complaint No A/E004/2022, on grounds that the NEAB failed to consider all evidence placed before it, that it failed to call for proceedings from the NEAB. On the May 5, 2022, the PPDT delivered its judgment, ordering fresh nominations within 48 hours, being on or before the May 7, 2022.

6. On the May 7, 2022, the 1st respondent presented himself for the exercise but the appellant failed to. Upon conclusion, the 1st respondent’s name, having been the only contestant, and therefore unopposed, his name was forwarded to IEBC.

7. On the May 6, 2022, the appellant filed this appeal against the PPDT’s judgment by a memorandum of appeal, together with an application of even date, seeking orders for stay of execution and determination of the PPDT’s judgment pending hearing of the application and the appeal.

8. On the May 7, 2022, the court granted interim orders of stay of execution of the PPDT’s Judgment and directed service of the application and the orders upon the respondent’s and return for interpartes hearing on the May 10, 2022. Since then, two more applications by the appellant were filed seeking various reliefs. On the May 11, 2022, parties appeared before the court and directed for service upon the respondents who on the May 13, 2022, by consent, recorded orders that, due to strict timelines set by IEBC, all the applications would be heard simultaneously upon the Respondents filing their responses, if any, and for the appellant to file its record of appeal within 3 days, upon service the respondents to file their submissions also within 3 days.

9. The record of appeal was not filed in line with the court directions (taken by consent of counsel) up to the May 25, 2022 when it was eventually filed and served. The court was thus left with no alternative but to give directions on the disposal of the appeal and an order of status quo as at that date, being that the repeat nominations were conducted on the May 7, 2022 and the 1st respondent’s name forwarded to IEBC.

10. Parties filed and highlighted their submissions on the appeal on the June 3, 2022; thus:

The Appeal 11. The grounds for the appeal are stated in the memorandum of appeal dated the May 6, 2022:"a)That the honourable members of the tribunal erred in law and fact in failing to call for the proceedings before the National Elections Appeals Board and thereby formed an opinion devoid of the relevant evidence.b)That the honourable members of the tribunal erred in law and fact by failing to re-evaluate, reanalyze, and re-assess the proceedings and all evidence that had been placed before the National Elections Appeals Board of Wiper Democratic Movement Party and to determine whether the conclusions reached by the board are to stand or not.c)That the honourable members of the tribunal erred in law and fact by misinterpreting the report of the Returning Officer of the Kamukunji Constituency which had been produced as evidence by the appellant and which had been produced by the 2nd respondent before the National Elections Appeals Board of Wiper Democratic Movement Party.d)That the honourable members of the tribunal erred in law and fact by reaching a finding that the nomination exercise of April 13, 2022 held in Eastleigh South Ward ought to be cancelled and that there be repeat elections.e)That the honourable members of the tribunal erred in law and fact in arriving at a finding without calling or considering the evidence that had been presented before the National Elections Appeals Board of Wiper Democratic Movement Party.f)That the honourable members of the tribunal erred in law and fact in reaching a finding that the nomination exercise of April 13, 2022 conducted by Wiper Democratic Movement in Eastleigh South Ward was marred with irregularities and could not have been termed as free, fair and credible.g)That the honourable members of the tribunal erred in law and fact in failing to analyse, contextualize and appreciate the evidence that had been adduced by all the parties and the totality of the claim that had been placed before the National Elections Appeals Board of Wiper Democratic Party.Reasons wherefore the appellant humbly prays:1. That the appeal be allowed.2. That the judgment of May 5, 2022 of the Political Parties Disputes Tribunal delivered by the Honourable Stephen Ligunya, Honourable Amina Hashi, and Honourable Andrew Waruhi, be quashed and set aside in its entirety.3. That the appellant be allowed costs of this appeal and the Appeal before the Political Parties Disputes Tribunal.4. That this honourable court grants any other orders as it may deem fit."

The Appellant’s Case And Submissions 12. By written submissions dated May 26, 2022 by his appointed advocates, M/s Chesika & Kiprop Advocates, it is submitted that the repeat nominations for the May 7, 2022 were so done contrary to court orders issued on even dates and that the appellant did not participate.

13. That the PPDT misinterpreted the report of the Returning Officer by failing to appreciate that the unrest took pace, not at Zawadi Primary Polling Station but at Airport Primary School Polling Station where the unrest was caused by a member of the National Assembly and not the 1st respondent.

14. Further, it is submitted that the PPDT erred in finding that the loss of the booklet with ballot papers serial numbers 1 to 100 resulted to election that could not be termed as free and fair despite measures taken to ensure the said booklets were not used in the voting exercise.It is also submitted that the PPDT erred to appreciate that the appellant was indeed a Member of WDM who was entitled to vote in the nomination exercise of April 13, 2022, yet the tribunal failed to call for evidence produced before the NEAB to support the claim that persons not appearing in the party’s register of voters were allowed to vote.

15. The appellant’s case ultimately is that without the NEAB proceedings, the PPDT could not re-evaluate, re-analyse and re-assess the evidence in order to make a proper and informed decision.

16. The appellant stated that NEAB could not comprehend the Returning Officer’s Report and therefore erred by concluding that the nominations of the April 13, 2022 were marred by violence and unrest, and therefore, no evidence was produced to NEAB for the PPDT to conclude that the nominations were not free, fair and credible, and thus the direction for a repeat nomination was not well informed. The court was thus urged to allow the Appeal, and set aside the PPDT’s judgment in its entirety.

The 2nd Respondent’s Case And Written Submissions 17. The 2nd respondent questioned the appellant’s failure to subject himself to the repeat nominations of the May 7, 2022, and submitted that as a result, his applications for stay of execution were thus overtaken by events as the 1st respondent’s name was forwarded to IEBC upon conclusion of the repeat nominations on the May 7, 2022, there having been no stay orders, against conducting the repeat nominations being served upon the WDM before or during the repeat nominations.

18. It is the 2nd respondents further submission that by his failure to willingly participate in the repeat nomination exercise on the May 7, 2022, the appellant waived his legal rights thereof without any explanation, citing Halsbury’s Laws of England 4th Edition, Volume 16; and decisions; Sarah Njeri Mwobi v John Kimani Njoroge [2013] eKLR.

19. The 2nd respondent is therefore that the appeal before this court is frivolous, scandalous and an abuse of court process and ought to be dismissed with costs to itself.

Issues For Determination 20. Whether the appellant has made out a prima facie case with probability of success against the PPDT’s judgment dated the May 5, 2022.

21. Whether the appellant waived his political rights by his failure to willingly participate in the repeat nomination of the May 7, 2022.

22. Costs

Analysis And Determination Issue No 1 23. In the case Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR the Court of Appeal held;“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case”It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

24. Further, the court opined that;“… a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case”

25. I have considered the impugned PPDT’s proceedings, the subject of this appeal culminating to the judgment dated May 5, 2022, and the grounds of appeal, summarized by the appellant into two;a)Whether the Hon members of the tribunal erred in failing to call for the proceedings before the National Elections Appeals Board for proper re-evaluation, re-analysis and re-assessment of the evidence presented before it.b)Whether the Hon members of the tribunal misinterpreted the report of the Returning Officer of Kamukunji and by so doing erred in finding that the nomination exercise of April 13, 2022 could not be termed as free, fair and credible.

26. On the above, it is the duty of the applicant/plaintiff or appellant to provide the court or tribunal with all the materials, documents and concrete evidence for it to be able to scrutinize the same to arrive at a well informed decision. It is never the duty of the court or tribunal to do so.

27. To that extent then, the appellant failed to perform its duty and can therefore not fault the tribunal for its failures.

28. Nevertheless, I have seen that in its proceedings, the PPDT, referred to several documents and pleadings placed before it; notice of motion application dated April 26, 2022 and supporting affidavits and several annextures by the appellant as well as written submissions on the entire complaint before it.

29. It is also on record that the complainant’s, as well as the respondent’s cases before the NEAB were very well analysed; the facts as well as the rules and constitution of the WDM in regard to Party Primary Nomination Rules, and theConstitution of Kenya, 2010.

30. Article 81(e) of the Constitution of Kenya, 2010states the mandatory elements for a fair, free and credible election;a)By secret ballot,b)Free from violence, intimidation, improper influence or corruption,c)Conducted by an independent body,d)Transparent; ande)Administered in an impartial, neutral, efficient, accurate and accountable manner.

31. Article 38 provides that every citizen has a right to participate in a free, fair and regular election based on universal suffrage.At the end, it is the person alleging that the election was not fair, free and credible to prove the said allegations. This is only possible if the proceedings, the process and procedures are scrutinized – Moses Masika Wetangula v Musikari Nazi Kombo [2014] eKLR.

32. Coming to the appellant’s averments on the nominations of the April 13, 2022, the appellant, before the NEAB, averred that the process was fair, free, proper and he won the said nomination, although he admitted that his name was not in the register used for the nominations – yet he voted.

33. When a repeat nomination was ordered, and he lost to the 1st respondent using the same procedures, he turned tune and claimed the nomination was not proper or fair, a matter of double speak.

34. I have considered the report of the Returning Officer and what the PPDT had to say on the matter of violence and voter bribery during the nominations.At paragraph 26 of page 216 of the record of appeal, the PPDT stated to have perused and considered to great length the report of the Returning Officer, and at paragraph 27 says that what it was straining to emphasize is that even the much-vaunted report tends to confirm that the process of nominations had its fair share of hiccups. The PPDT went ahead to analyse paragraph by paragraph of the report to come to its findings. It further states that at paragraph 31, that these observations in the judgment we consider to have been grave omissions, which were not traversed by the complainant (appellant).

35. I therefore come to a finding that the PPDT had considered the proceedings and findings of the NAEB to arrive at the decision it did. Having stated as above, no (b) above falls by the way. I find and hold that the NAEB arrived at a fair, just and justifiable decision. For the above reasons, I find and hold that the appellant’s complaint against the PPDT was not genuine nor arguable based on the materials placed before the PPDT. The appellant failed to show what right, as a voter, were infringed by the respondents at any one time.

36. Indeed, the appellant on his own will, willingly failed to participate in the fresh nomination exercise as directed by PPDT. He offered no explanation at all. It is no wonder that he could not lay any blame on the 1st respondent who was declared the party’s nominee, and whose name has since been forwarded to IEBC, see Mrao Ltd case (supra).

37. Based on the above, I find that the appellant has failed to present before this court credible evidence and material facts to facilitate it to conclude that indeed his rights as a voter under the WDM umbrella were infringed.

38. The PPDT upon analysis of the happenings during the April 13, 2022 nomination made a finding that the errors, including some voters allowed to cast their votes when their names were not in the party list, were enough evidence that the nomination exercise was not fair and just outcome, and that these affected the overall outcome, and proceeded to annul the entire nomination exercise of the April 13, 2022 as having been unfair, marred with errors, violence and had sufficient evidence before it to call for a repeat nomination.

Issue No 2 39. It is not in dispute that the Appellant was well aware of the PPDT’s judgment, and the date set for the repeat nomination by the NAEB. If he had won fairly in the first round of nominations, it is not clear why he opted to boycott the repeat election nominations. He tendered no reason at all that the court is aware of, either by his affidavits or by his submissions. I agree with the 2nd respondent’s submissions that, the conduct exhibited by the appellant was nothing less than a waiver of his rights as a voter. The House of Lords in the case of Bannin v Wright [1972] 2 ALL ER 987 pg 998 rendered:“the primary meaning of the word waiver in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted. Waivers are not always in writing … a person’s action can be interpreted as a waiver by conduct”.

40. Back at home, the case Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR rendered that;“… in our understanding, the doctrine of waiver operates to deny a party his rights on basis that he had accepted to forgo the same rights having known of their existence…”

41. All the parties having been accorded equal opportunity to exercise their political/voting rights, the appellant cannot be heard to argue that he should be granted the orders he seeks by this appeal. The appellant has failed to persuade this court to set aside the PPDT’s judgment.

42. I have been urged by the 2nd respondent to find that the appeal as filed is frivolous, scandalous and an abuse of the court process. This matter revolves around a political dispute with very strict timelines as set out by the IEBC. Section 1A and 1B of the Civil Procedure Act, and article 159 of the Constitution of Kenya, 2010 mandates courts to facilitate just, expeditious proportionate and affordable resolution of disputes. Parties too are obligated to assist the court in the efficient disposal of the cases before it. The case of County Council of Nandi v Ezekiel Kibet Rutto & 6 others [2013] eKLR defines the meaning of a scandalous, and vexatious pleading or case.

43. Briefly, a scandalous and frivolous case is one that lacks legal basis or foundation hence can be termed to be frivolous. A vexatious case is a pleading whose only purpose is to annoy or irritate the other party to the suit. Its main aim is to harass the other party for no good reason or upon no sound grounds. Together, a frivolous and scandalous case is an abuse of the court process, the applicant using the processes of the court in the wrong way, not for agitating a right but for other extraneous reasons – See case above – County Council of Nandi (supra).

44. For the foregoing, I come to the conclusion that the appellants’ appeal lacks merit, is scandalous, frivolous, vexatious and an abuse of the court process. It is dismissed.

44. Section 27 of the Civil Procedure Act provides that costs follow the event, with few exceptions as the court may determine. The circumstances pertaining to this appeal are clear and straight forward. I am therefore persuaded to make an order that each party bears own costs on the appeal.

DATED SIGNED AND DELIVERED THIS 7TH DAY OF JUNE 2022. JN MULWAJUDGE