[2022] KEPPDT 981 (KLR)

Wachiye v Orange Democratic Movement & 2 others (Complaint E088 (NRB) of 2022) [2022] KEPPDT 981 (KLR) (Civ) (27 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 981 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E088 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 27, 2022

Between

Tom Wafula Wachiye

Complainant

and

Orange Democratic Movement

1st Respondent

Orange Democratic Movement National Elections Board

2nd Respondent

Timothy Wanyonyi Wetangula

3rd Respondent

Judgment

1. The Complainant is a member of the Orange Democratic Movement Party and was one of the aspirants for the position of Member of Parliament, Westlands Constituency. He is dissatisfied by the direct nomination of the 3rd Respondent and he has accordingly moved the Tribunal vide the instant Complainant where he seeks the following reliefs: -i.Mandatory injunction do issue directing the 1st and 2nd Respondent to cancel the issued direct nomination certificate to the 3rd Respondent and carry out fresh party primaries election of Westlands parliamentary contest seat.ii.That a mandatory injunction do issue directing the 3rd Respondent to return and or surrender his direct nomination certificate to the Respondent and he should not proceed and present his name to the Independent Electoral and Boundaries Commission (IEBC) as the ODM Member of parliament Nominee for Westlands constituency PPDT Nairobi A Complaint No E088 of 2022iii.That in the alternative, this Honourable Tribunal do issue a declaration that the whole nomination process for the 1st Respondent be and is hereby declared a nullity band the direct nomination process be retaken for the position of member of parliament for Westlands Constituency and or the Complainant be compensated and or reimbursed his complain costs and the official payment made to the 1st Respondent by the said 1st and 2nd Respondent.

3. This matter was first presented before the Tribunal on 25th May 2022 when the following directions were issued: -i.That the Notice of Motion application dated 23rd May 2022 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.That the Complaint and Notice of Motion application dated 23rd May 2022 be served upon all the Respondents by 4pm today 25th May 2022. iii.That the Respondents to file and serve their responses to the entire Complaint and application by 2pm on 26th May 2022. iv.That the Complainant to file and serve a Further Affidavit if need be by 5pm on 26th May 2022v.That the Complaint be heard by way of oral submissions before Nairobi A Bench on 26th May 2022 at 6pm virtually via video link.vi.That this being a dispute involving party nominations with strict timelines, all parties to ensure strict observance of the directions herein and the Complaint to proceed for hearing without fail as scheduled based on documentation that will be on record by the stated hearing date.

4. Pursuant to the foregoing directions of the Tribunal, the matter proceeded for hearing on the 26th May 2022 when the Complainant prosecuted his claim in person. There was no appearance by the Respondents despite service as evidenced by the Affidavit of Service on record.

The Complainant’s Case 5. The Complainant claims that an election occurred on 21st April 2022, which was marred by extensive irregularities and was indefinitely suspended. He annexed communique dated 22nd April 2022 by Chairperson ODM National Election Board, on the update on the ongoing party primaries.

6. It is the Complainant’s contention that the 3rd Respondent was issued a direct certificate and dissatisfied with the decision, he filed an appeal at the 1st Respondent’s Nominations and Elections Appeals Tribunal (NEAT). He claims that the appeal succeeded and the 2nd Respondent was directed to conduct fresh nomination. However, in utter consternation, the 1st Respondent issued the direct nomination certificate to the 3rd Respondent in clear violation of NEAT’s decision. The Complainant produced communication dated 9th May 2022 by the party in respect of issuance of direct ticket to the 3rd Respondent.

7. The Complainant avers that he seeks redress from the Tribunal to stop or reverse any purported issuance of nomination certificate to the 3rd Respondent or any other person other than himself. His fear is that unless there in an urgent intervention by the Tribunal, the Respondents will forward the name of the 3rd Respondent to the IEBC based on the collective impugned actions of the Respondents.

8. It is the Complainant’s prayer that the Complaint be allowed or in the alternative he be refunded the money he paid for nomination.

The Respondent’s Case 9. The Respondents did not file any responses to the pleadings herein despite service of the same upon them. They further did not attend the hearing of the Complaint yet the pleadings and our directions were duly served upon them as evidenced by the return of service on record.

Analysis and Determination 10. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the Complaint is merited?ii.What are the appropriate remedies in the present instance?

Whether the Complaint is merited? 11. The Complainant claims that despite suspension of nominations in Westlands Constituency for the position of Member of Parliament, the 1st and 2nd Respondents nevertheless issued a direct nomination certificate to the 3rd Respondent. This is pleaded in paragraph 4 of his Supporting Affidavit where he has referred to a letter dated 22nd April 2022. We note that the supposed letter dated 22nd April 2022 is communique from the 2nd Respondent and it has nothing to do with direct nomination of the 3rd Respondent as purported or at all. It simply states that: -‘… further to the communication issued yesterday Thursday 21st April 2022 in respect to the Party Primaries in Nairobi City County we wish to inform Party members and aspirants the following: in line with the just concluded negotiations within the Azimio Coalition on Nairobi City County elections, the ongoing election for Member of Parliament for Westlands Constituency have been suspended.’

12. Be that as it may, the Complainant confirmed that he was aware that two cases were filed before this Tribunal in respect to the nominations for Westlands Constituency. In the case of Michael Magero Gumo vs. Orange Democratic Movement & Others PPDT at Nairobi A Complaint No E041 of 2022, this Tribunal vide its Judgment delivered on 6th May 2022 found that the procedure applied by the party to issue a direct ticket to the 3rd Respondent herein (who was in that case cited as the 1st Interested Party) was not lawful and accordingly nullified his nomination. The party was directed to conduct a fresh process. In essence, the direct nomination certificate that was issued to the 3rd Respondent on or about the 22nd April 2022 of concern to the Complainant in this case had already been nullified.

13. The Complainant further avers that he was dissatisfied with the direct nomination and he filed an appeal at the NEAT and that NEAT made an order for fresh nominations. Strangely, the proceedings or Judgment of NEAT have not been produced. Instead, the Complainant annexed another communique dated 9th May 2022 by ODM Chairperson National Election Board, which stated that: -‘… following the conclusion of the following cases lodged at the Party’s Appeals Tribunal and the Political Parties Dispute Tribunal, the NEB was directed to conduct fresh nominations in line with the Party Primaries and Nomination Rules. Further to this the Central Committee met on Sunday 8th May 2022, reviewed the cases pursuant to the directions issued by the Tribunals and guided by Rules 8(b) and 23(2)(c) of the Party Primaries and Nomination Rules on Direct Nominations, nominated the candidates listed…”

14. From the communication dated 9th May 2022, there is an acknowledgment that there were cases filed in respect of position of Member of Parliament, Westlands and that orders were made for fresh nominations. Indeed, this Tribunal delivered Judgment in case of Michael Magero Gumo vs. Orange Democratic Movement & Others PPDT at Nairobi A Complaint No E041 of 2022, and directed that a fresh nomination process be conducted as already alluded to above. The communication dated 9th May 2022 demonstrates that there was a fresh nomination exercise that was carried out through indirect nomination, and once again the 3rd Respondent became the party’s preferred candidate and was given a direct ticket in accordance with the party laws. The Complainant does not in fact dispute that fresh nominations were conducted as stated.

15. Considering that the previous nomination of the 3rd Respondent had already been nullified and another process conducted on 8th May 2022, it is not clear whether the Complainant is also challenging the nomination that was conducted on 8th May 2022 by the party leading to the issuance of the ticket to the 3rd Respondent. We note that this is not clearly pleaded in the Complainant’s pleadings. In any event, it has not been demonstrated in the pleading and in evidence how the nomination process of 8th May 2022 breached the party laws. The record consists of mere statements without any substantiation.

16. Interestingly, it seems that the Complainant’s principal concern is that whichever direct nomination that was conducted was in breach of the appeals tribunal’s order. For instance, at paragraph 7 of his affidavit, he avers that “in utter consternation, the 1st Respondent has now issued a direct nomination certificate to the 3rd Respondent in clear violation of its own appeals tribunal decision”. As we have already observed, the Complainant has not produced a copy of the party tribunal decision that he has referred to in these proceedings. In any event, having demonstrated that a fresh exercise was conducted, the allegations of disobedience of any order do not therefore arise.

17. Sections 107, 108 and 109 of the Evidence Act, Cap. 80 Laws of Kenya, specifies which party to a suit bears the burden of proof. The spirit of these provisions of the law are captured in the case of Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017] eKLR, where the court stated that:“The starting point is that whoever desires any court to give judgement as to any legal right or liability, dependent on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

18. The standard of proof depends on the nature of the dispute, whether criminal or civil in nature. Electoral disputes are in a category of their own. They are suis generis and courts and this tribunal must bear this in mind when deciding an election or nomination related dispute. In various pronouncements by the courts on the issue of burden of proof and standard of proof, it has been held that the standard of proof lies between proof beyond reasonable doubt and prove on a balance of probabilities. The Supreme Court of Kenya had this to say about the standard of proof in election petitions:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question.”(See Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others[2013] eKLR).

19. Bearing in mind the law and decisions of the courts on the issue of burden and standard of proof, this tribunal poses the question as to whether the Complainant in this case has discharged the burden and standard of proof. As reasoned above in this judgment, our answer to that question is in the negative. After considering all the pleadings before us, the evidence presented and the Complainant’s oral submissions, and guided by the law and decided authorities, it is our finding that there is no sufficient evidence to prove, to the standard required, that nominations in Westlands Constituency for the position of member of Parliament were conducted in breach of the law and the ODM Nominations Rules. We find that the Complainant has not provided sufficient proof to warrant the nullification of the 3rd Respondent’s nomination.

What are the Appropriate Relief in the Present Circumstances? 20. Having found that the claim lacks merit, the only option left is to dismiss the same.

21. Turning to the question of costs, the general rule is that costs follow the event. However, noting that the Respondents did not participate in these proceedings, we shall not make an award of costs.

Disposition 22. In light of the foregoing, we order as follows: -i.The Complaint herein be and is hereby dismissed.ii.No orders as to costs.

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF MAY 2022. DESMA NUNGO - CHAIRPERSONDR. KENNETH MUTUMA - MEMBERFLORA M. MAGHANGA-MTUWETA - MEMBERRUTH WAIRIMU MUHORO -MEMBER