Joseph Ouma Ndonji v Kingsley Wellington Odida , Thomas Obwao, Orange Democratic Movement (ODM) & National Executive Committee (NEC) [2017] KEPPDT 21 (KLR)

REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. 154 OF 2017

JOSEPH OUMA NDONJI..........................................................COMPLAINANT

VERSUS

KINGSLEY WELLINGTON ODIDA..................................1ST RESPONDENT

THOMAS OBWAO................................................................2ND RESPONDENT

THE ORANGE DEMOCRATIC MOVEMENT (ODM)

NATIONAL EXECUTIVE COMMITTEE (NEC)..............3RD RESPONDENT

JUDGMENT

Summary of the Complaint

1.     This complaint arises out of nomination exercise held on 30th April, 2017 in respect of the position of Member of County Assembly, Umoja II Ward in Embakasi West Constituency, Nairobi County.  The Complainant in his amended memorandum of complaint dated 9th May, 2017 avers that he was declared the winner by the Returning Officer.

2.     An appeal was lodged by the 2nd Respondent to the Special County Appeal’s Tribunal (CAT) challenging the nomination exercise. The decision of CAT dismissed the appeal upholding the nomination of the Complaint.  A copy of the said decision of CAT and the Provisional Certificate issued to him were adduced in the affidavit of William Sipai Kisakua filed on 9th May, 2017.  The said William Sipai Kisakua averred that he was a Returning Officer for the 3rd Respondent and that he had been mandated to oversee the nomination exercise.  In essence, the Returning Officer supports the complaint. The 3rd Respondent has since issued the nomination certificate to the 1st Respondent as per the copy of nomination certificate dated 3rd May 2017 annexed by the Complainant in his Supporting Affidavit dated 8th May 2017.

3.     The Respondents did not appear or participate in the proceedings despite being served.

Issues for determination

4.     The only issue for determination is whether the complainant should be issued with the nomination certificate for the 3rd Respondent.

Analysis

5.     We have considered what has been adduced before the Tribunal.  The Complainants testimony is corroborated by the Returning Officer.  The complaint has not been rebutted by the Respondents who have been afforded an opportunity to do so.  It appears that there has been no basis for not issuing the certificate to the claimant and the 3rd Respondent’s actions in issuing the said certificate to any other person apart from the Claimant is not justified.  The Complainant’s fears are well founded on a balance of probabilities.

Reliefs

6.     Taking the above into consideration, we find that the Amended memorandum of complaint filed on 9th May, 2017 is merited.  We therefore make the following orders as prayed.

a)     The 3rd Respondent be and is hereby ordered to forthwith issue a nomination certificate to the complainant for the position of member of County Assembly, Umoja II Ward in Embakasi West Constituency, Nairobi County.

b)    The nomination certificate issued to the 1st Respondent be and is hereby nullified.

c)     A notification to issue to the Independent Electoral & Boundaries Commission.

d)    No orders as to costs.

DATED and DELIVERED AT NAIROBI this 10th day of May, 2017

1.     M.O. LWANGA……………………………………… (PRESIDING MEMBER)

2.     PAUL NGOTHO ……………………………………. (MEMBER)

3.     DR. ADELAIDE MBITHI …………………………. (MEMBER)