Lawises Juma Otete v Orange Democratic Movement [2017] KEHC 8882 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISC. ELECTION PETITION APPEAL NO. 7 OF 2017

IN THE MATTER OF CONTEMPT OF COURT ACT,

NO. 46 OF 2016

AND

IN THE MATTER OF POLITICAL PARTIES ACT, 2011,

LAWS OF KENYA

AND

IN THE MATTER OF POLITICAL PARTIES DISPUTES TRIBUNAL COMPLAINT NUMBER 178 OF 2017

BETWEEN

HON. LAWISES JUMA OTETE................................................CLAIMANT

VERSUS

ORANGE DEMOCRATIC MOVEMENT............................ RESPONDENT

IN THE MATTER

REPUBLIC ............................................................................APPLICANT

AND

ORANGE DEMOCRATIC MOVEMENT..................... 1ST RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION...................................2ND RESPONDENT

Exparte:-

LAWISES JUMA OTETE

RULING

1. The exparte applicant Lawises Juma Otete was a claimant before the Political Parties Disputes Tribunal (“Tribunal”)  in Complaint No. 178 of 2017 in which he complained against the Orange Democratic Party (the 1st respondent).  This followed the nomination conducted on 30th April 2017 to pick the Member of County Assembly candidate for West Karachuonyo Ward in Karachuonyo Constituency in Homa Bay County during the forthcoming general elections.  He alleged that he had won in the nomination by garnering 2000 votes but the returning officer had declared one Samuel Okuta Leita to be the winner.  He complained to the 1st respondent’s Special County Appeals Tribunal which declared him the winner.  He followed up the decision to be issued with the provisional certificate to no avail.  That was when he complained to the Tribunal where a consent order was entered on 10th May 2017 restraining the 1st respondent from issuing a provisional certificate to any other aspirant pending the hearing and determination of the matter.  The other orders were that the 1st respondent be restrained from forwarding any other name to the 2nd respondent Independent Electoral and Boundaries Commission (“the IEBC”); that the 1st respondent be ordered to issue the provisional certificate to the exparte applicant; the 1st respondent be ordered to forward the exparte applicant’s name to the IEBC; and the consent be forwarded to the IEBC.  On that basis, the matter was settled.  The order was issued in the presence of all counsel, and was served on the IEBC.

2. The exparte applicant’s case was that, notwithstanding the order, the 1st respondent had refused to issue him with the nomination certificate and had instead gone ahead and published the name of Samwel Okuta Leita as the nominee for the seat.

3. There was no dispute that the consent order was served on the 1st respondent.  The 1st respondent did not, although served, defend this application.  The application sought that the 1st respondent’s Secretary General, Executive Officer and/or Chairman National Elections Board be summoned to show cause why they should not be held in contempt of the consent order; the IEBC be restrained and prohibited from receiving and accepting the certificate of nomination issued by the 1st respondent to any other person than him; the above officials of the 1st respondent be cited for contempt; and the respondents be ordered to fully comply with the consent order.

4. I have considered the application which was prosecuted by M/s Mburu.  I have considered counsel’s written submissions.

5. When the Tribunal heard the complaint by the exparte applicant it was acting in pursuant to its jurisdiction conferred under section 40of the Political Parties Act (No. 11 of 2011).  Under section 41(3) of the Act, it is provided that –

“3. A decision of the Tribunal shall be enforced    in the same manner as a decision of a Magistrate’s Court.”

The magistrates’ courts’ powers are contained in the Magistrates’ Courts Act No. 26 of 2015.  Under section 10 (1), (2)and(3) of the Act, it is provided as follows:-

“(1) Subject to the provisions of any other law; the Court

shall have power to punish for contempt.

(2) A person who, in the face of the Court –

(a) assaults, threatens, intimidates, or insults a magistrate, court administrator, judicial officer, or a witness, during a sitting or attendance in Court, on in going to or returning from the Court;

(b) interrupts or obstructs the proceedings of the Court; or

(c) without lawful excuse disobeys an order or direction of the Court in the course of the hearing of a proceeding, commits an offence.

(3) In the case of civil proceedings, the wilful disobedience of any judgment, decree, direction order, or other process of a court or wilful breach of an undertaking given to a court constitutes contempt of court.”

6. It follows that the Tribunal has powers to enforce its own orders, and has powers to punish any person who is in wilful disobedience of its judgment, decree, direction or order.  This is the same way a magistrate’s court can punish for contempt.

7. Under section 41(2) of the Political Parties Act, this court has only appellate jurisdiction over the decisions of the Tribunal.  The present application is not an appeal.  Consequently, the court lacks the jurisdiction to hear and determine the exparte applicant’s application.  The same is struck out.

DATED, DELIVERED and SIGNED at NAIROBI this 25TH day of MAY 2017.

A.O. MUCHELULE

JUDGE