Barawah v Mnyazi & another [2022] KEPPDT 935 (KLR)

Barawah v Mnyazi & another (Appeal E001 (MSA) of 2022) [2022] KEPPDT 935 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 935 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Appeal E001 (MSA) of 2022

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

May 6, 2022

Between

Stephen Sanga Barawah

Appellant

and

Amina Laura Mnyazi

1st Respondent

Odm National Elections Board

2nd Respondent

Judgment

1. The Appellant filed the Statement of Appeal herein under certificate of urgency on the 27/04/2022 and a Notice of Motion Application supported by his affidavit and annexures.

2. He contends that despite being a registered member of the 2nd Respondent Party and having paid up the nomination fee to vie for the position of Member of Parliament for Malindi Constituency, the nomination exercise slated for 04/04/2022 and later moved to 05/04/2022 was not done but instead the 1st Respondent was issued with a certificate of nomination.

3. He wants the declaration and Party Nomination Certificate issued to the 1st Respondent quashed and the 2nd Respondents National Elections Board compelled to conduct free, fair and just party primaries for the Member of National Assembly Malindi Constituency.

4. The Appeal is opposed by the 1st Respondent who filed her Responses on the 29/04/2022 and swore an affidavit to that effect on the same day. There are witness statements filed by the 1st Respondents witness one Naftali Owino resident of Malindi Township.

5. The Complainant was represented by the firm of Shabaan Associates LLP and the1st Respondent was represented by the firm of Binyenya Thuranira & Co. Advocates. The 2nd respondent was represented by Awele Jackson Advocates LLP.

Appelant / Complainants Case 6. The Complainant and the 1st Respondent are registered members of the Orange Democratic Movement Party who is the 2nd Respondent in this proceedings. They were both cleared by the 2nd Respondent party to participate as candidates fornomination for the position of Member of National Assembly Malindi Constituency.

7. The Nomination Exercise was scheduled to take place on the 04/04/2022 but it was moved to the 05/04/2022. The Appellant claims that the same has not taken place to date.

8. The Appellant avers that on the 20/04/2022, he learnt that the 1st Respondent had been issued with the party’s nomination certificate for Malindi Member of Parliament.

9. He claims that the nomination certificate bears grave errors an indication that it was done in haste to defeat justice and fairness. He claims that before the 1st Respondent was issued with the said certificate of nomination, some of the party officials were campaigning for her an act which goes against the party code of conduct.

10. He maintains that they had been promised that party primaries would be held and all candidates would be subjected to universal suffrage process. He adds that the decision of the 2nd Respondent to issue the 1st Respondent with a nomination certificate was illegal, null and void ab initio and ought to be quashed by the Tribunal.

11. The complainant wants the Party Nomination Certificate quashed and a fresh nomination exercise that is free and fair be undertaken by the 2nd Respondents National Elections Board.

12. The Appellant enumerated his prayers to the tribunal as follows:a.An order quashing the declaration and Party nomination certificate issued to the 1st Respondent as the party flag bearer for the member of parlianment Malindi constituency;b.An order compelling the National Elections board to conduct free, fair and just party primaries for the Malindi Member of Parliament constituency.c.Any other order deemed just and fair be granted by the Tribunal.d.Costs to be awarded to the Appellant.

Respondents’ Case 1st Respondent’s case 13. The 1st Respondent filed her response to the complaint herein vide her affidavit sworn on the 29/04/2022. She also filed a Supporting Affidavit, Verifying Affidavit and Witness Statements and written submission.

14. She states that on 07/04/2022 she registered to be nominated for the position of Member of National Assembly for Malindi Constituency. That the 2nd Respondent caused a poll to be conducted of the aspirants for the seat of Member of the National Assembly for Malindi Constituency.

15. According to the opinion polls carried out by the Orange Democratic Movement Party she claims that she emerged the most popular candidate for nomination.

16. She claims that the Orange Democratic Party invited all the aspirants who were eyeing the seat of Member of National Assembly for Malindi Constituency to hold consensus talks.

17. She has referred this Tribunal to Rule 23 of the Orange Democratic Movement Party Primaries and Nomination Rules 2021 which provides the several methods that the party can use to conduct party primaries and points out election by consensus or direct nomination as some of the methods available to the Orange Democratic Movement to conduct its Party Primaries.

18. She states that after the aspirants reached a consensus and in the presence of one Naftali Owina and Ms Lucky M. Thoya they signed an agreement indicating the outcome of the consensus building process on the 31/03/2022.

19. She has referred to Paragraph (i) of Annexure “SSB-9” of the complainants Statement Affidavit where it is stated that the Orange Democratic Party for compelling reasons it is in its best interest to issue direct nomination to the 1st Respondent.

20. She states that the Complainant was already aware that the Orange Democratic Movement Party had decided to issue the 1st Respondent with a direct nomination to vie for the seat of Member of National Assembly for Malindi Constituency come the August 9 2022 elections.

21. She further states that the Complainants Appeal at the Orange Democratic Movement Appeals Tribunal was brought without leave of the ODM Appeals Tribunal and in contravention of Rules 6(2) and 12 (3) of the Orange Democratic Movement Party Appeals Tribunal (Practice and Procedure) Rules 2021. The Appeal is not attached to the complainant’s affidavit.

22. She has referred to Rule 27 of the ODM Party Appeals Tribunal (Practice and Procedure) Rules 2021 on computation of time and asks this Tribunal to dismiss the Appeal with costs.

2nd Respondent’s case 23. The 2nd Respondent made oral submissions to the court where he fully associated with the submissions of the 1st respondent.

24. The 2nd respondent further emphasised on political parties’ autonomy and that the 1st respondent was given a direct nomination by the party and that the Tribunal should uphold the principle of political party autonomy and should not descend to the political arena.

25. He further submitted that electoral disputes must be heard timeously, expeditiously with judicial notice being taken by the timelines set by the IEBC and that if the appellant was indolent in filing the complaint out of time, that the respondents should not be punished for his indolence.

26. He further submitted that the complainant was trying to run away from what he had already agreed to which he termed as political bad manners and that no cogent reason had been presented to warrant interference of the decision to give the 1st respondent the nomination certificate.

27. The 2nd respondent further drew the tribunal’s attention that counsel for the appellant one Mr Masake David Parapara has an inactive status with the Law Society of Kenya contrary to Section 9, 24, 34 and 31 of the Advocates Act. He went further and quoted Civil Appeal 22 of 2013 Peter Karuri Wachira v Leonard Wanjohi Murage and another 2016 eKLR where it was held that an unqualified person cannot draw pleadings and that such an act is a criminal offence.

Issues for Analysis and Determination 23. Having gone through the pleadings and the rival submissions by Counsel for the parties the following issues are for determination:i.Whether the complaint has been properly filed given the inactive status of the Appellants Counsel One Masake David Parapara.ii.Whether there was unreasonable delay in filing the Appeal before the ODM Appeals Tribunal.iii.Whether the Tribunal should quash the certificate of nomination and order for the conducting of a nomination exercise.iv.Whether the Complainant is entitled to the prayers sought?v.Who bears the costs of the complaint?

Disposition Whether the complaint has been properly filed given the inactive status of the Appellants Counsel One Masake David Parapara. 29. The 2nd respondent drew the tribunal’s attention to the fact that counsel for the appellant one Mr Masake David Parapara has an inactive status with the Law Society of Kenya contrary to Section 9, 24, 34 and 31 of the Advocates Act. He went further and quoted Civil Appeal 22 of 2013 Peter Karuri Wachira v Leonard Wanjohi Murage and another 2016 eKLR where it was held that an unqualified person cannot draw pleadings and that such an act amounts to a criminal offence.

30. The tribunal has checked and noted that the appellant is represented in this case by Shaban & Co Advocates. The Appellant further provided a CR12 form which shows Shaban & Co Advocates is duly registered as a law firm Business Registration No LLP-MG1LE2 with the partners being:a.Masake Alex Okapesi Shabanb.Mokaya Diana Moraa

31. The tribunal has checked the status of the two partners appearing on form CR12 and noted that both Masake Alex Okapesi Shaban ADM NO P.105/8961/11 and Mokaya Diana Moraa ADM NO P.105/16813/19 who are the registered partners of the firm of Shaban & Co Advocates have an active status with LSK.

32. The Tribunal therefore makes a finding that this complaint is properly filed before it in this respect.

Whether there was unreasonable delay in filing the Appeal before the ODM Appeals Tribunal 33. The ODM Appeals Tribunal (Tribunal and Procedures) Rules, 2022 (the Rules)Rule 13 (2) provides that;“An aspirant who is aggrieved by the decision of an election official in respect of party primary election and/or nomination of candidate may appeal to theTribunal within 36 hours of the notice of the decision”The Appellant states in his pleadings that he became aware of the decision to hand the 1st Respondent the certificate of Nomination on the 19th April 2022 and further that it was until 20th April 2022 that the same was confirmed through a newspaper article. He approached the ODM Tribunal on the 21st April 2022 for recourse but the tribunal dismissed his claim for being filed after an unreasonable delay of time.

34. We have had the chance to read the judgement of the ODM Appeals Tribunal and we note a lot of discrepancies and inconsistencies. Rule 13 (2) of ODM Appeals Tribunal (Tribunal and Procedures) Rules, 2022 provides that a party aggrieved of the decision of an election official on party nomination to appeal within 36 hours of the notice of the decision. However, it is not clear when the notice was issued. The tribunal was only supplied with a newspaper article dated 20th April 2022 confirming the issuance of the certificate of nomination.

35. Further, it is quite confounding that in the judgement of the ODM Appeals Tribunal they state that the decision to hand the 1st Respondent the ticket was made on the 31st of March 2022 while there are ODM notices to wit, dated 30th March 2022 rescheduling the nominations from 4th to 5th April 2022 another one is dated 2nd April 2022 which changed the date for nominations from 5th April 2022 to 6th April 2022 so as to allow consultations and consensus building. So then one asks how possible is it that a decision was made on the 31st of March 2022 and there is a notice dated 2nd April 2022 that was meant to postpone the nominations for consensus building? Was the decision to award the certificate of nomination made unilaterally or through consensus? Is it possible to insinuate that the time started running from the 31st of March 2022 when a unilateral decision was made? Our answer is to the negative.

36. It is also captured in the judgment that the 1st Respondent was issued with the certificate of Nomination on the 11th of April 2022 but there is no evidence indicating that the Appellant was notified of the same. Political parties are like a family and are therefore expected to conduct their affairs in unity. The Appellant has adduced evidence of a newspaper article indicating that indeed his fears were confirmed on the 20th April 2022 vide the article and therefore time should have started running from the 20th April 2022.

37. Moreover, the Appellant had written a letter dated 2nd April 2022 to the National Elections Board of ODM which was received by the Board alleging among other issues bribery and intimidation pending the nominations exercise. At this instance, the 2nd Respondent should have notified the Appellant that a certificate of nomination had already been issued to the 1st Respondent.

38. The question of unreasonable delay was dealt with in the case of Jaber Mohsen Ali & another v Priscillah Boit& another E&L NO. 200 OF 2012[2014] eKLR where it was stated:“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.

39. In the circumstances of the instant case, it is our view that the delay was not inordinate or excessive and that the Appellant was driven away from the seat of justice unfairly.

Whether the Tribunal should quash the certificate of nomination and order for the conducting of a nomination exercise. 40. Article 38(2) of the Constitution of Kenya 2010 provides as follows: -“Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—a.any elective public body or office established under this Constitution; orb.any office of any political party of which the citizen is a member.”(Emphasis added)Elections are supposed to be free and should be premised on universal suffrage and free expression of the will of the people.

41. Article 91(1)(d) of the Constitution of Kenya, 2010 states that:-“Every political party shall:-…d)abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party.”Every political party is therefore expected to be guided by democratic principles of good governance and promotion of democracy through regular, fair and free elections within the party.

42. Section 13 (1) of the Elections Act No. 24 of 2011 states as follows: -“A political party shall nominate its candidates for an election under this Act at least ninety days before a general election under this Act in accordance withits constitution and nomination rules.”Political parties are allowed to nominate candidates for election at least ninety days before the general elections and the nomination exercise should be in accordance with its Constitution and nomination rules.

43. Further, Section 31(1) of the Elections Act states as follows: -“A person qualifies to be nominated by a political party for presidential, parliamentary and county elections for the purposes of Articles 97, 98, 137, 177 and 180 of the Constitution if that person—a.is selected in the manner provided for in the constitution or rules of the political party concerned relating to members of that party who wish to contest presidential, parliamentary and county elections; andb.subject to subsection (4), the party certifies the nomination to the Commission.….(4)The authorised person or persons referred to in subsection (4) shall, in writing, certify that a candidate has been nominated by the party.”It is clear from the provision of law that a person qualifies to be nominated if that person is selected in the manner provided for in the Constitution or rules of the Political party and the party certifies in writing that the person has been duly nominated by the party.

44. The Orange Democratic Movement Party Primaries and Nomination Rules, 2021 specifically Rule 23 outlines the procedure for party primary elections.“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 party5. 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.”4. Following the consensus-building process the candidates and other parties to the process shall sign an agreement indicating the outcome of the consensusbuilding process5. All the candidates to the consensus agreement shall sign a formal resolution giving effect to the agreement in Form 15 in the Schedule.6. The Party will refund any application fees paid by the candidates who have not been selected by consensus.7. The candidates who withdraw their candidature in favour of another shall give a formal undertaking not to participate in the ensuing elections either as independent candidates and/or on the tickets of other political parties.

45. The Counsel for the 2nd Respondent who appeared before us gave a spirited argument that we should give effect to the independence and autonomy of Political Parties. Further, that Political Parties have made provisions on how to undertake their autonomy including their processes of nominations pursuant to the political parties and the Constitution and nothing can be further from the truth.

46. The Learned Counsel also submitted that 1st Respondent was given a direct nomination by the National Election Board which is the mandated body to do so in accordance with Rule 23 of the ODM nomination Rules. He also contended that Direct Nomination and Consensus are different. He urged us not to descend to the political arena and to uphold the principle of party autonomy.

47. This Tribunal’s Jurisdiction has been established pursuant to Section 40 of thePolitical Parties Act which 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.” 48. The tribunal has powers to hear and determine disputes between a member of a political party and the political party after subjecting the same to an IDRM. We are satisfied that the Appellant subjected his dispute to the ODM Appeals Tribunal and being dissatisfied with its decision he has approached the tribunal for a recourse. This tribunal is are therefore properly clothed with the powers to hear and determine the matter and that wouldn’t amount to descending to the political arena as was submitted by the learned counsel of the 2nd Respondent.

49. The 1st Respondent submitted before us that the culmination to her being issued with the direct nomination was from consensus building and she presented a document that was signed between her and the Appellant. The Appellant does not seem distance himself from the document he only states the document does not meet the standard prescribed in law and form 15. He further alleged that the document is drawn close to a manner of an undertaking and or agreement and one cannot discern easily what it is.

50. At this juncture, we must then ask ourselves how the 1st Respondent was issued with the certificate of nomination was it through consensus or was it through direct nomination? The procedure for consensus is provided for under Rule 23 of the Nomination Rules which provides for the following procedure: -a.Parties to the Consensus building shall sign an agreement indicating the outcome of the consensus.b.Parties to sign a formal resolution to the consensus giving effect to the agreement in Form 15 in the Schedule.c.Party to refund the application fee to parties not selected after consensus.d.The candidates who withdraw their candidature in favour of another shall give a formal undertaking not to participate in the ensuing elections either as independent candidates and/or on the tickets of other political parties.

51. The document presented before us indicates that the Appellant was promised a position of Speaker and agrees to step down in favour of the 1st Respondent. The document is not in line with form 15 in the schedule, there is no evidence from the 2nd Respondent that application fees have been refunded and there is no undertaking by the Appellant not to run as an independent candidate and/ or ticket of another political party. Having considered the evidence presented the same cannot amount to a consensus agreement.

52. The 2nd Respondent submits that the 1st Respondent was issued with a direct nomination and the same was issued after a poll was conducted. The ODM nomination Rules provide for the procedure of issuing direct nomination which is to be issued by NEB after conducting due diligence that shall into consideration 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 party5. 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.”

53. 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. Therefore, the certificate of nomination issued to the 1st Respondent falls short of the rules and amounts to breach of legitimate expectations of the Appellant.

54. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others Petition 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."

55. 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.”

56. If a party advertised for a position for people to apply, pay application fee to participate in a competitive process, they then have a legitimate expectation that the process will be followed anything less will amount to 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 1st Respondent.

57. Having considered rival submissions, pleadings and authorities we hereby quash the certificate of nomination issued to the 1st Respondent and direct that a nomination exercise that is compliant with the law be conducted. Whether the Complainant is entitled to the orders sought? 58. Having found that the 2nd Respondent issued a certificate of nomination in a clear violation of the provisions of the law and its own party constitution and nomination rules we find that the Appeal before us is merited and hereby issue the following orders:a.A declaration be and is hereby issued that the 2nd Respondent did not conduct the party nomination exercise in accordance with established laws.b.A declaration be and is hereby issued that the nomination certificate issued by the 2nd Respondent to the 1st Respondent is null and void.c.An order be and is hereby issued directing the 2nd Respondent to conduct a fresh nomination exercise for the position Member of Parliament , Malindi Constituency, 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 1st Respondent’s name has already been submitted to the IEBC, the same not to be gazetted pending the implementation of this judgment.f.In the interest of party unity, each party to this dispute shall bear their own costs of the Complaint.

58. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MAY 2022. HON. ERASTUS ORINA …………………………………………………………………...(PRESIDING MEMBER)HON. THERESA CHEPKWONY….………………………………………………………(MEMBER)HON. DANIEL KAGACHA ………………………………………………………………(MEMBER)