Mwai v The National Election Board (ODM) & 2 others; range Democratic Movement Party (Interested Party) [2022] KEPPDT 1048 (KLR)

Mwai v The National Election Board (ODM) & 2 others; range Democratic Movement Party (Interested Party) (Complaint E019 (NRB) of 2022) [2022] KEPPDT 1048 (KLR) (Civ) (28 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1048 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E019 (NRB) of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

April 28, 2022

Between

John Andiwo Mwai

Complainant

and

The National Election Board (ODM)

1st Respondent

The Returning Officer, Bondo Constituency

2nd Respondent

Hon. Gideon Ochanda

3rd Respondent

and

The Orange Democratic Movement Party

Interested Party

Judgment

1. This matter concerns the nomination of the Interested Party’s candidate for the Member of National Assembly for Bondo Constituency in Siaya County. The party primaries were held on 13th April 2022. The Complainant and the 3rd Respondent were contestants in the said primaries. The 3rd Respondent was declared the winner of the contest and awarded the 3rd Respondent’s Interim Nomination certificate. The Complainant was aggrieved by the outcome and challenged the result of the election before the Interested Party’s Appeals Tribunal sitting in Kisumu in Appeal number 7 of 2022.

2. The Interested Party’s Appeals Tribunal delivered its Judgement on 22nd April 2022. In the decision, the Tribunal dismissed the Complainant’s Appeal and upheld the nomination of the 3rd Respondent. The Complainant was still disenchanted and moved this Tribunal by way of Complaint dated 22nd April 2022, together with an Application brought under the cover of a certificate of Urgency.

3. The Tribunal issued the following orders on 24th April 2022:1. The Complainant's Application dated 22nd April 2022 is hereby Certified Urgent and service thereof is dispensed with in the first instance.

2. An interim Order is hereby issued staying the Judgement and Orders of the Interested Party's Appeals Tribunal made on 22nd April 2022, in Kisumu Tribunal Appeal Number 7. of 2022.

3. The 1st and 3rd Respondents are hereby restrained by injunction from issuing to the 3rd Respondent or any other person, the Interested Party's nomination certificate and/or presenting the 3rd Respondent or any other person to the Independent Electoral and Boundaries Commission, as the party's nominee or candidate for the Bondo Constituency Parliamentary (National Assembly) seat.

4. The Stay orders issued in 2 and 3 above shall have effect until Tuesday 26th April 2022 when this matter shall be heard inter partes, or upon such further orders as this tribunal may issue.

5. The Complainant shall serve upon all the Respondents and the interested Party, all the suit papers filed herein by 12. 00 noon, 25th April 2022.

6. The Complainant shall ensure the filing of an appropriate return of service evidencing service of the Application, Complaint and this Order upon the Respondents, and the interested party, before the time allotted for the hearing of this Complaint.

7. The Respondents and the Interested Party have the liberty to file and serve their Responses to both the Application and Complaint by 12. 00 noon, 26th April 2022.

8. Both the Application and Complaint shall be heard together on 26th April 2022 at 4. 00pm on the Tribunal's virtual platform; and by way of oral arguments by the parties.

9. Further orders of the Tribunal shall issue on 26th April 2022 when the matter comes up for hearing.

10. Costs of these proceedings shall be considered in the cause.

4. The matter came up for hearing on 26th April 2022 when the parties argued the matter orally. The Complainant was represented by Mr. Juma; the 1st and 2nd Respondent by Mrs. Ochieng; and the 3rd Respondent by Mr. Kuoko.

The Complainant’s Case 5. In the main, the Complainant beseeches this Tribunal to nullify the 3rd Respondent’s nomination and, instead, to a fresh exercise to be conducted by the 1st and Second Respondent.

6. Learned counsel Mr. Juma urged the Complainant’s case. He began by underpinning his client’s case on the constitutional provisions relevant to his case.Counsel stated that Article 81 of the Constitution provides for free and fair election, the doctrine of universal suffrage and freewill of people. He also cited Article 47 of the Constitution on the right to fair administrative action. To this end he submitted that the Complainant severally requested for results of the impugned nomination exercise from the 1st and 2nd Respondents, which results were never given. He further relied on Article 38 which grants Kenyans freedom to exercise political rights He emphasised that the legal provisions speak to free and fair elections free of violence, transparent, verifiable and administered by an impartial body. He also pointed to the Political Parties Act, schedule 1 on the Code of Conduct of Political Parties; the ODM Election rules and regulations.

7. The Complainant advanced that there was no voting in Bur Lowo and Nyangoma Polling centres. This fact, he added, was admitted to by the 3rd Respondent. Incidences of violence were also witnessed in the said Bur Lowo polling centre a fact that the 3rd Respondent admit to. That as a result of the violence the Complainant himself could not vote. That there were many polling centres where voters were turned away, passwords to the gadgets used in the election did not work, and where elections commenced late.

8. Critically, the Complainant observed that the 3rd Respondent did not have any results of the nomination exercise. That no results were declared and announced at the Constituency tallying Centre, since there were no results whatsoever. The Complainant stated that it was well aware that the burden of proof would have been with it to state what the result it was contesting, but in this case there were no results at all. It is for this reason that the Complainant moved the Interested Party’s Appeal’s Tribunal to direct the result to be made available to the Complainant and the said Tribunal. The tribunal agreed, ordered the 1st Respondent to avail the results. The 1st Respondent did not avail the results; and that to-date, no results exist. Counsel for the complainant then posed, rhetorically: On what basis was the 3rd Respondent declared a winner.

9. The Complainant complains that in whole judgment of the Interested Party’s Tribunal, it does not address its own order and the effect of the 1st Respondent’s failure to produce the results as ordered. According to the Complainant, the moment he asked for production of results and the tribunal agreed with him, the burden shifted from him to the1st Respondent in whose possession the results were. He also observed that throughout the previous and current proceedings the 3rd Respondent has not said how many votes he garnered to become the winner.

10. The complainant further argued that it is cardinal that accountability, through full disclosure and verifiability of the result and whole process, be achieved. That this fact alone vitiates the entire process that purported to make the 3rd Respondent a winner of an election whose results nobody knows.

11. The Complainant attacked the decision of the Interested Party’s Appeals Tribunal, pointing to page 3 of the Judgment in which it makes a finding that Complainant did not challenge the 3rd Respondent’s win. This, the Complainant states, is factually inaccurate. The very essence of the Complainant’s appeal was to challenge the purported declaration of the 3rd Respondent as the winner of the contest. The Complainant sees no basis in the finding by the Tribunal. In this regard the Complainant faults the conclusion by the Interested Party’s Tribunal when it concludes that the winner is determined by the person who has more votes. The Complainant does not agree with this view particularly since no results have been exhibited, nor does the number of votes, regardless of the procedural fairness of the exercise, always count.

12. The Complainant further faults the Interested Party’s Appeals tribunal for making a finding that there was no violence in the conduct of the elections, yet both sides have admitted there was violence, produced Occurrence Book numbers; and that there is a statement by the Returning Officer stating that he carried election materials to Bondo Police Station under Police escort.

13. The Complainant also compared and contrasted the decisions in Appeals No. 4 and 13 delivered by the Interested Party’s Tribunal, which, respectively, involved Sakwa West and Sakwa South Wards of Bondo Constituency. In the said decisions, the Interested Party’s Tribunal allowed similar complaints in the same area. It was noted that the wards form 2 of the 6 wards in the constituency. The Tribunal annulled the election in the wards. The Complainant stated that the Interested Party’s Tribunal was inconsistent in its conduct and that justice requires equal treatment based on the same facts. According to the Complainant, this inconsistency by the Interested Party’s Tribunal points to bias on its part.

14. While the Interested Party’s Tribunal makes a finding that voting did not take place in one polling centre, this, according to the Complainant is contrary to the facts. The Complainant listed several areas where voting allegedly did not take pace. He states that the 1st Respondent has not controverted this allegation. According to the Complainant, there could not have been a final tally of results without receiving results from all polling centres in the constituency. Declaration of results, he adds, must be done at the polling centre and at the constituency. Such declarations were never made at either places. That neither the Affidavit of the 1stRespondent’s Chairperson, Ms. Catherine Muma, nor the 3rd Respondent’s responses have stated what the results of the election were. That in any event the Chairperson of the 1st Respondent could not possibly tell with degree of certainty what was happening in Bondo since she only had a bird’s eye view of the process from Nairobi.

15. The Complainant insisted that the process was badly tainted and could not therefore stand.

The 1st and 2nd Respondent’s and Interested Party’s Case 16. Learned Counsel, Mrs. Ochieng made submissions on behalf of the 1st and 2nd Respondents, and the Interested Party. She began by defending the creditability of the Affidavit by Ms. Catharine Muma, by stating that the deponent was both competent and fully aware of what happened in Bondo since she had a representative on the ground in the name of a retuning officer. On that basis alone, counsel stated, the affidavits were properly on record.

17. Counsel placed reliance on the response filed of 26. 4.2022. She set off by affirming that party primaries are as good as the general election. The principles are the same. She relied on the decision of Rose Akinyi Buyu v IEBC and Others [2017] eKLR for the standard or the threshold of proof for overturning on elections. The Claimant argued that a Complainant must strictly prove that there was material or substantial non-compliance with the law; and that the failure to comply with the law affected the validity of the election. Counsel made reference to section 23 Elections Act in aid of her assertion. On that basis, she stated, the Complainant has alluded to a number of irregularities that happened during the exercise, however, there is no evidence attached to the said allegations.

18. According to learned counsel, Rule 47 and 44 (2) of the Interested Party’s nomination rules, the Complainant is given recourse to appeal to its Appeals Tribunals, as he did. The fact that the tribunal heard the complainant and drew its conclusions, as it did, was in order in the circumstances. That the decision of the Appeals tribunal was based on the law and circumstances at hand.

19. Counsel urged us to dismiss the complaint and motion with costs.

The 3rd Respondent’s Case 20. Mr. Kuoko argued on behalf of the 3rd Respondent. He stated that he had sought from the Interested Party’s Appeals Tribunal whether it had served its own order dated 19th April 2022 on the 1st Respondent, to which the said Tribunal answered in the affirmative. That although the tribunal stated that the order had been served, the tribunal did not provide proof of service. That it is the Complainant who should now show how the order was served.

21. Counsel stated that there was a declaration of results. That the election was conducted on 13th April 2022 and the Complainant presented himself on 14th before the Appeals Tribunal of the Interested Party. That the Complainant would not have done so if he was not aware that he had lost the elections.

22. Counsel confirmed that there was no election in Bur Lowo polling centre. That the Complainant’s vast allegation are without evidence, they are sweeping statements. Claims of voter briery, and turning way of voters are unsubstantiated. Counsel confirmed allegations of violence in Bur Lowo. He stated that this was the reason why results were not received from that centre. He blamed the violence on the Complainant.

23. He added that the elections were substantially compliant with the laws regulating the exercise. Out of 34 centres, elections took place in all but one. That, in his view, did not affect the result of the elections. Counsel stated that although the exact results of the election have not been stated, the declaration of the 3rd Respondent as the winner was based on estimates with the 3rd Respondent garnering about 12,000 votes, while the Complainant garnered around 5,000 votes. Counsel stated that the 3rd Respondent too does not have an exact number. Counsel relied on his response and replying affidavits. He urged us to dismiss the complaint and to uphold the 3rd Respondent’s Appeals Tribunal’s decision.

Complainant’s rejoinder 24. Mr. Juma reiterated that Rule 47 of the Interested Party’s Party Primaries Rules dictates that there must be tallying of final results at each polling centre and declaration forms must be signed by agents under the same rule. That the allegations on non-service of the order are made from the bar, outside any affidavit. He urged us to look at the totality of the evidence and draw fair conclusions.

Tribunal’s Analysis and Findings 25. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the election was conducted in substantial compliance with the law?ii.What reliefs should we grant in the circumstances of this case; andiii.Who bears the costs of this case?

26. We will address the issues set out above in the sequence of their listing.

Whether the election was conducted in substantial compliance with the law? 27. The law on the threshold of upsetting an election is fairly settled and the beacons clearly laid in a litany of decisions handed down by superior courts of this country. While there seems to be unanimity on the principles, it bears rehashing the same, if only to demarcate the province of the discourse to follow, and to curve context.

28. It is perhaps convenient to start with Article 81 of the Constitution of Kenya which underwrites the general principle of our electoral system in the following words: General principles for the electoral systemThe electoral system shall comply with the following principles—a.freedom of citizens to exercise their political rights under Article 38;b.not more than two-thirds of the members of elective public bodies shall be of the same gender;c.fair representation of persons with disabilities;d.universal suffrage based on the aspiration for fair representation and equality of vote; ande.free and fair elections, which are—i.by secret ballot;ii.free from violence, intimidation, improper influence or corruption;iii.conducted by an independent body;iv.transparent; andv.administered in an impartial, neutral, efficient, accurate and accountable manner. (Emphasis added)

29. All elections, without exception, are to be held to the foregoing standard. Section 83 of the Elections Act, 2011, of the Elections Act 2011, provides that:“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

30. All elections are therefore required to substantially comply with the law. Minor incidences of non- compliance which do not affect the validity of the election may be overlooked.

31. The primary burden of proof is borne by the person challenging the election result. The standard is one above balance of probabilities though not as high as beyond reasonable doubt. This unique standard arises out of the sui generis nature of election related cases, being neither civil nor criminal cases. This standard was affirmed by the Supreme Court of Kenya in the Supreme Court decision in Raila Odinga & Another v IEBC & Others SC Petition No. 1 of 2017.

32. Where a party alleges non-conformity with the election laws, he must not only prove that there has been non-compliance with the law, but that such failure of compliance affected the validity of the elections (see also, Gitau Peter Munya v Dickson Mwenda Kithinji & Others [2014] eKLR).

33. The parties agree that a political party nomination through universal suffrage is an election, for all intents and purposes. Indeed, in Emmanuel O. Achayo v Orange Democratic Party & 4 Others [2017] eKLR the High Court, stated that party primaries where part of the election management cycle. In essence, that an election is a process and not an event. It commences perhaps at the registration of party members/voters, through the choice of the election system to be deployed, nominations and, ultimately, the general election. It is an open secret that in some areas where political parties are strong, the nomination elections may as well be the main election contest.

34. Generally, the parties agree that an election, just like any other human endeavour, is an imperfect undertaking, fraught with human procedural and administrative frailties. What is in contest is the extent of the breaches and the substantial compliance with the electoral laws. That is the burden that is primarily thrust upon the Complainant to establish.

35. It is with the foregoing established legal propositions in mind that we address the grievances advanced by the Complainant.

36. The Complainant avers that the election failed the test of a free fair, transparent and accountable process. He states that to date none of the contestants, including the supposed winner, the 3rd Respondent, is aware of how many votes he garnered. He blames this situation on the management of the election by the 1st Respondent’s officers. That there was no voting in the polling centres of Bur Lowo and Nyangoma. Results were not declared as required in the polling stations and that the 1st Respondent’s returning officer could not account for the process in the absence of results being declared at the polling station before transmitting the same to the tallying centre.

37. Our view on this ground of the Complaint is as follows. The Constitution of Kenya is the grund norm from which all laws spring and must conform to. The principles of the Kenyan electoral system with which all laws must align is set out in Article 81 of the constitution afore-quoted. While we appreciate that a political party has the right to choose an appropriate method of election, in this case electronic or digital, the fundamental overarching constitutional principles that govern such elections remain the same and are immutable. The election must be free and fair, underpinned by a verifiable and accountable process. In other words, it must be able to withstand scrutiny and a forensic audit.

38. The focal point of the elections in Kenya as prescribed by Article 86 of the Constitution, is the polling station. Article 86 (b) of the Constitution is clear in this stipulation, while Article 86 (c) provides for tallying at the constituency level. For ease of reference the provision read as follows:bthe votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;c.the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; 39. This Tribunal cannot, therefore countenance an argument, as advanced by the Respondents, that the results announced at the tallying centre without declarations at the polling stations substantially conform with the Constitution.

39. The forgoing Constitutional yardstick also finds place in Rule 43 (1) of the Interested Party’s own Primaries and Nomination Rules, 2021. The provision provides for declaration of results, including where elections were conducted by electronic means, and the requirement for Agents and or candidates present to confirm by signing the form 9A (declaration) or contesting its contents. The Rule reads:The presiding officer shall—a.immediately announce the results of the voting at the polling centre in form 9A;b.request each of the candidates or agents present to append his or her signature;c.Take a photo shot of the results and send the same to the relevant Returning officer by Short Messaging Service (SMS) or any other electron method.d.provide each candidate, or their agent with a copy of the form of announcement of the results; ande.Place the original copy/ ies of the results in an envelope marked with the name of the polling centre and the names of the polling centres that voted at that centre and deliver to the Returning officer (Emphasis added)

41. It is not true, as suggested by the Respondents, that the Interested Party’s procedures excluded declaration of results in polling stations for electronic elections. Nor is it true that the same rules excluded the use of Form 9A to declare results at the polling station.

42. The use of declaration forms and the requirement for agents to sign thereon is a mechanism used to ensure transparency and accountability of the process, all these processes are not mere bureaucracies but are meant to ensure the election is free and fair. A free and fair election is one which both the winner and loser are assured that every vote was counted and the election was above board.

43. In the current case, the 1st and 2nd Respondents admitted that there was no declaration of elections in the polling centres, that there were no declaration forms 9A collated at the tallying centre, and therefore none were available for agents and candidates to compare and ascertain with the final result. In any event, it was also admitted that a winner was declared on the basis of estimated votes since no actual result was tallied. According to the 1st and 2nd Respondents, the 3rd Respondent’s estimate was about 12,000 votes while the estimate for the complainant was 5000 votes.

44. To uphold the election of the 3rd Respondent would be a dereliction and mockery of our constitutional duty, and an abdication of our constitutional mandate. It would regress our democratic gains.

45. We also reject the argument that all that counts in an election are numbers. With due respect, while an election is a game of numbers, numbers that cannot be accounted for do not count for much.

46. We also find fault in the Interested Party’s Appeals Tribunal’s findings that the Complainant did not contest the 3rd Respondents win. This is factually inaccurate on the face of it. The crux of the Appeal before the said tribunal sought to impugn the entire election process.

47. The Interested Party’s Appeals tribunal was also inconsistent in its findings. While it annulled the elections in two of the five wards, South and West Sawka, in this very constituency over allegation similar to those raised by the complainant, on the same election, carried out on the same day, by the same officers and using the same gadgets, the tribunal inexplicably found no fault in election of the nominee for Member of National Assembly.

48. The breaches cited were not clerical, administrative or procedural. The 1st and 2ndRespondent’s not only breached their own regulations but also the minimum constitutional standard of a free and fair election. The election fell way below the bar set by the Constitution. Both sides adduced evidence of widespread violence spread across the length and breadth of the constituency including Police Station Occurrence Book numbers (OB) yet the party Tribunal still held that there was no violence experienced to warrant the annulling of the election.

49. The Interested Party’s Tribunal issued an Order to the 1st Respondent to avail results to it in the course of the proceedings. Although the tribunal confirmed that the order was served with the 1st Respondent, it does not address the effect of the non-compliance with its orders in its Judgement. One would have expected the Tribunal to at least draw adverse inferences against a party that fails to comply with its orders as it is entitled to under section 112 of the Evidence Act.

50. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Other [2012] eKLR:

51. Section 112 of the Evidence Act Chapter 80 of the Laws of Kenya provides:“In civil proceedings, when any fact is especially within the knowledge of a party to those proceedings, the burden of proofing or disproving that fact is upon him” Where a party has custody or is in the control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inferences that if such evidence was produced, it would be adverse to such a party”

52. In a nutshell, the election was not accountable and was held in a noxious environment of violence. The effect of the wrongs was pervasive ans substantially permeated the election. There was no declaration of a winner on merit.

53. Our assessment of the facts as a whole draws us to the inescapable conclusion that we must set aside the nomination exercise and order a fresh election.

Who bears the costs of this matter? 54. Ordinarily, costs follow the event. However, I the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

55. We thank learned Counsel for their well-articulated submissions, cogent pleadings and patience during the long hours of sittings.

Disposition 56. In the upshot we make the following Orders:i.We allow the complaint and set aside the declaration and nomination by the 1st and 2nd Respondent of the 3rd Respondent as the nominee of the Interested Party for the Bondo Member of National Assembly seat in the August 9th General Election;ii.The 1st, 2nd, and Interested Party shall conduct a fresh election of theInterested Party’s nominee for Member of National Assembly, within 72 hours of this Order; this is to say, on or before 1st May 2022;iii.Each party shall bear its own costs.

57. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 28TH DAY OF APRIL 2022. ...............................................Hon. Dr. Wilfred Mutubwa OGW C.ArbVice Chairperson – Presiding................................................Hon. Fatuma AliMember................................................Hon. Walubengo SifunaMember