Mwai v National Election Board (ODM) & 5 others [2022] KEHC 11184 (KLR)

Mwai v National Election Board (ODM) & 5 others (Constitutional Petition 1 of 2022) [2022] KEHC 11184 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11184 (KLR)

Republic of Kenya

In the High Court at Siaya

Constitutional Petition 1 of 2022

RE Aburili, J

June 6, 2022

(ORIGINATING FROM NAIROBI CONST. PETITION NO. E259/2022) IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 38(3), 10(2), 19, 20, 21, 75 & 232 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 159 AND 165 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 13 & 31 OF THE ELECTIONS ACT, 2013 AND IN THE MATTER OF SECTION 5 OF THE JUDICATURE ACT, CAP 8 LAWS OF KENYA, AND IN THE MATTER OF ORDER 52 OF THE RULES OF THE SUPREME COURT OF ENGLAND, 1965 PRACTICE AND PROCEDURE RULES AND IN THE MATTER OF THE NOMINATION OF THE ORANGE DEMOCRATIC MOVEMENT (ODM) PARTY CANDIDATE FOR THE BONDO CONSTITUENCY (NATIONAL ASSEMBLY) SEAT FOR THE AUGUST 9TH 2022 GENERAL ELECTIONS BETWEEN

Between

John Andiwo Mwai

Petitioner

and

National Election Board (ODM)

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Gideon Ochanda

3rd Respondent

Jonathan Odiwuor Amoke

4th Respondent

Constituency Returning Officer, IEBC Bondo Constituency

5th Respondent

Independent Electoral & Boundaries Commission

6th Respondent

Ruling

1. The application dated June 2, 2022 by the petitioner John Andiwo Mwai in this constitutional petition seeks for various orders among them, a temporary order injuncting theIEBC from presenting for gazettement the name of the 3rd respondent Hon Gideon Ochanda as a parliamentary candidate for Bondo constituency. The application is brought under certificate of urgency; which urgency has been submitted on by the applicant’s counsel Mr Juma.

2. According to the applicant, the respondents being the ODM national elections board and the ODM party who have disobeyed orders of the Political Parties Disputes Tribunal for repeat of party primaries nominations for Bondo constituency should not be allowed to continue disobeying lawful orders and that the 3rd respondent is benefitting from the said disobedience hence, being in contempt. The applicant argues that this is a constitutional petition for vindication of political rights which rights have been and continue to be violated by the respondents herein, by their refusal to hold repeat party primary nominations for the Bondo parliamentary candidates.

3. On the part of the respondents, they argue that the applicant already has a remedy as per the orders made by the Political Parties Disputes Tribunal and that the remedy lies in the enforcement of that judgment made on April 28, 2022 and not through the constitutional petition for vindication of rights said to be violated.

4. That is the short of what each of the parties have argued before me this afternoon.

5. I have considered the application dated June 3, 2022 filed before the constitutional and human rights division of the High Court at Nairobi and as transferred to this court by H I Ong’udi J on June 3, 2022 and received this morning. I have also considered the rival arguments by both the applicant and the respondent’s counsel on whether to certify this matter as urgent and if so, what orders should this court make.

6. I must first and foremost appreciate and I do appreciate that indeed, elections are emotive in this country. I equally appreciate the fact that electoral disputes and matters generally have strict timeliness as stipulated in the Constitution and the Elections Act. It follows that each act or action or decision must be made within the set timeliness. The people of Bondo too, have a right to be represented by a leader of their choice. Nobody can choose a leader for them, not even this court as jurisdiction of the courts and tribunals is not to impose leadership but to assert the law.

7. In this respect, and before I determine the urgency or otherwise of this matter, I must ask myself whether at this stage, this court is clothed with jurisdiction to deal with a matter essentially dealing with what is overly, a contempt of court issue.

8. Section 41(2) of the Political Parties Act provides for a procedure for challenging of decisions of the Political Parties Disputes Tribunal which is to appeal to the High Court and finally to the Court of Appeal.

9. In this case, the respondents who were aggrieved by the decisions of the Political Parties Disputes Tribunal have indicated that they have filed an appeal before Kisumu High Court Civil Appeal No E042/2022.

10. However, the applicant herein is the person in whose favour the impugned decision was made hence his remedy does not lie in an appeal.

11. His remedy lies in the enforcement of that decision of the Political Parties Disputes Tribunal issued on April 28, 2022. On enforcement of the decision of the Political Parties Disputes Tribunal, under section 41(2) of the Political Parties Act, the tribunal has powers to enforce its decisions in the same manner as the Magistrate’s Court would enforce its decisions.

12. Under section 10 of the Magistrate’s Court’s Act No 26 of 2015, a Magistrate’s Court has powers to punish any person who is in willful disobedience of its judgment, decree, order or direction.

13. What this section means is that the tribunal can punish the respondents herein if it finds that they have disobeyed its judgments, decree, order or directions.

14. This court, on the other hand, as stipulated in section 40(2) of the Political Parties Act, can only deal with an appeal arising from the tribunal’s orders in the contempt proceedings. Nothing short of that procedure. There is no provision or jurisdiction for this court to deal with contempt proceedings other than in the manner stipulated above.

15. This is not to say that the applicant cannot seek for a remedy from court where his political or other rights have been violated or threatened to be violated but that where the allegation of violation of rights emanates directly from alleged disobedience of the tribunal’s decision or decree, then the applicant’s remedy entirety lies in contempt proceedings and where such proceedings are overtaken by events as it appears in this case that virtually, the entire process of clearing the 3rd respondent is complete save for the gazettement, then the applicant’s remedy lies in an election petition should the 3rd respondent be elected.

16. Jurisdiction of this court cannot be arrogated. It is conferred and or limited by the Constitution and statute.

17. To grant any conservatory orders at this stage stopping the process which is said to be marred with contempt, and in the absence of any evidence that the tribunal is incapable of and has failed to punish for contempt of its decisions, will be usurping the powers of the tribunal.

18. For the above reasons, I find that there is no urgency involved in this matter and for that reason, I decline to certify the application dated June 3, 2022 as urgent for reasons that the applicant has not demonstrated that unless the conservatory order is issued as prayed, then he will suffer prejudice as a result of the violation or threatened violation of this rights under the Constitution, as his remedy entirely lay and still lies in pursuing contempt proceedings first, before the Political Parties Disputes Tribunal. I find that no prima faciecase has been established to warrant the orders sought and to be granted in the interim at this stage.

19. In the end, the prayers that this court certify the application as urgent is declined. The prayer for an interim conservatory order is equally declined.

20. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 6TH DAY OF JUNE, 2022R.E. ABURILIJUDGE