National Elections Board, Orange Democratic Movement Party v Odongo & another [2022] KEHC 11491 (KLR)

National Elections Board, Orange Democratic Movement Party v Odongo & another (Civil Appeal E317 of 2022) [2022] KEHC 11491 (KLR) (Civ) (3 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11491 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E317 of 2022

JN Mulwa, J

June 3, 2022

Between

National Elections Board, Orange Democratic Movement Party

Appellant

and

Kepher Ojil Odongo

1st Respondent

Kevin Njiro Mwangu Lelegwa

2nd Respondent

(Being an Appeal from the Judgment and Decree of the Political Parties Disputes Tribunal at Kakamega delivered on 27th April 2022 in PPDT Complaint No. E001 of 2022)

Judgment

1. Sometime in February this year, the 1st respondent wrote to the appellant expressing his interest to contest for the Member of County Assembly (MCA) for Luanda South Ward, Luanda Constituency, Vihiga County on the Orange Democratic Movement Party (ODM) ticket. Consequently, sometime in March, the appellant published a notice indicating that the ODM party’s primary elections in Vihiga County would be undertaken on April 12, 2022 through the method of universal suffrage of registered party members. However, before the nominations could be conducted, the 1st respondent filed in the Political Parties Dispute Tribunal (PPDT) a complaint dated April 6, 2022 vide Kakamega PPDT Complaint No. E001/2022.

2. He pleaded that he has been a life member of the ODM party since its inception in 2005 and that he had satisfied all the necessary requirements for participation in the nomination exercise. He claimed to have heard a rumour on February 25, 2022 that the Member of Parliament for Luanda Constituency, Hon. Christopher Omulele had promised to give the 2nd respondent a direct nomination to contest for the MCA position in his ward of interest on the ODM ticket. He alleged that he wrote to the Appellant twice protesting about the move and even raised an objection in a consensus meeting but his letters elicited no response.

3. The appellant herein responded to the complaint vide a replying affidavit in which it contested the PPDT’s jurisdiction to entertain the complaint and contended that it had been filed prematurely.

4. Upon hearing, the PPDT allowed the 1st respondent’s complaint and ordered the appellant to conduct a nomination process in Luanda South Ward, Vihiga County in line with the provisions of Rule 18 of the ODM Elections and Nominations Rules as adopted in 2014.

5. Being aggrieved by the decision of the PPDT, the appellant filed the instant appeal vide a Memorandum of Appeal dated May 9, 2022in which it raised 13 grounds. In summary, the Appellant is aggrieved that the PPDT erred in law and fact by:1. Allowing the complaint without sufficient evidence.2. Abrogating themselves jurisdiction over the matter.3. Establishing that there was a dispute capable of determination by the tribunal.4. Acting in excess of their powers and usurping the institutional autonomy of the ODM Party and the Appellant.5. Ordering a nomination process specifically through rule 18 of the ODM Elections and Nominations Rules as adopted in 2014 which is no longer in force yet such an order was neither pleaded nor prayed for.

6. There is also on record a supplementary affidavit sworn on May 25, 2022by the appellant’s chairperson, Catherine Mumma. She averred that the Appellant has since learnt that the 1st respondent is no longer a member of the ODM Party as he resigned to vie for the MCA position in Luanda South Ward as an independent candidate. That as a consequence, the 1st respondent no longer qualifies for any election or nomination for any elective position on the ODM party's ticket which renders moot the PPDT’s order above.

7. In opposition, the 1st respondent filed a replying affidavit and a further affidavit sworn on May 27, 2022. He averred that the appellant has a duty to him as a member of the ODM party to give him a fair chance to vie for any elective position through its ticket. He also faulted the Appellant for using party rules to sabotage him and contended that such rules should exist in harmony with elections laws and the Constitution. It was also his contention that his stepping aside did not change his status as a life member of the ODM Party since the certificate he was issued in that regard has never been revoked.

8. In its submissions, the appellant faulted the PPDT for ignoring the principle of justiciability and the centrality of jurisdiction in determining the complaint lodged by the 1st respondent. The appellant contended that there was no dispute that was capable of determination by the tribunal since as at the date of the filing of the complaint, nominations had not been conducted and no nomination certificate had been issued to any candidate. The appellant submitted that the PPDT failed to consider the fact that the appellant’s complaint was based on a rumour which was not justified by adduction of any election results or the direct nomination certificate issued to the 2nd respondent.

9. Further, theappellant contended that the PPDT failed to appreciate that the body mandated with the duty of resolving the dispute of this nature in the first instance was the ODM Party Appeals Tribunal established under Rule 5(1) of the Orange Democratic Movement Appeals Tribunal (Practice and Procedure Rules, 2021). It submitted it was erroneous and ignorant of the tribunal to give credence to the letters written to the party as proof of exhaustion of internal dispute resolution mechanisms as they are mere correspondence between the 1st respondent and the ODM Party. Further, it submitted that in any event, the letters do not meet the standards of an appeal under Part III of the Orange Democratic Movement Appeals Tribunal (Practice and Procedure Rules, 2021).

10. In addition, theappellant urged that even assuming the PPDT was to find that the complaint was merited, its order for a fresh nomination in line with Rule 18 of the ODM Party Election and Nomination Rules as adopted in 2014 which is no longer in force, is unreasonable and incapable of being implemented. It stated that the rules currently governing a nomination process in the party are the ODM Party Primaries and Nomination Rules 2021 pursuant to which the Gazette Notice which advertised for nominations for Vihiga County where Luanda South Ward falls was issued. For this reason, the Appellant urged that courts do not make orders in vain.

11. The appellant further stated that it reserves the operational independence to determine which method to employ in any election of party candidates and when to do so. As such, the 1st respondent cannot seek to impose or compel it to use a specific method to nominate candidates. It submitted that the overriding objective of the party nominations/primaries is to select the strongest candidates that will position the party to win the relevant electoral seat. It relied on the case of Thomas Ludindi Mwadeghu v John Mruttu & another[2017] eKLR.

12. Lastly, theappellant contended that the Tribunal’s decision has been overtaken by events since the 1st respondent has been cleared by the Independent Electoral and Boundaries Commission (IEBC) to vie as an independent candidate for his position of interest. The Appellant relied on the recent decision by Thande J. in Kisumu Misc. Petition E001/2022: Michael Ojala Nyangi v Hezron Okoth Onditi.

13. On the other hand, the 1st respondent’s submissions mainly supported the impugned judgment. In addition, he contended that the appellant cannot be the sole decision maker on which of its members is to get the party ticket when it has already advertised that a nomination exercise will be conducted through a different method and the party has in fact received money from an aspirant for the party ticket. He argued that if this appeal succeeds, the voters of Luanda south ward will have been denied a democratic right to vote for a person of their choice. It was also his submission that his efforts to engage the party machinery were ignored and that is why he sought refuge in the PPDT where he obtained a favourable judgment which should be upheld by this court. During the oral highlighting of the submissions, the 1st respondent submitted that the Kisumu case is not applicable to this case. He also submitted that he has not been cleared by IEBC although they gazetted him as an independent candidate.

14. As for the 2nd respondent, he submitted that the orders made in the impugned judgment were unwarranted and associated himself with the submissions of appellant.

Analysis and Determination 15. The only issues that arise for determination in this appeal are:a.Whether the PPDT had jurisdiction to hear and determine the 1st respondent’s complaint?b.What is the effect of the 1st respondent’s gazettement as an independent candidate for the MCA Luanda South Ward?Whether the PPDT had jurisdiction to hear and determine the 1st respondent’s complaint?

16. It is well settled that jurisdiction is everything and without it, a court or tribunal must down its tools. (See Owners of the Motor Vessel “Lillian S”vCaltex Oil (Kenya) Ltd [1989] eKLR. Jurisdiction flows from either the Constitution or legislation. The jurisdiction of the PPDT is provided for under section 40 of the Political Parties Act which provides as follows:(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.(3)A coalition agreement shall provide for internal dispute resolution mechanisms.”

17. In Gabriel Bukachi Chapia v ODM &another (2017) eKLR the Court of Appeal held that“…the PPDT should not entertain disputes between members of a political party, disputes between a member of a political party and a political party, disputes between political parties and disputes between coalition partners, unless such dispute is in the first instance heard and determined by the internal political party dispute resolution mechanism.”

18. Did the 1st respondent exhaust the party’s internal dispute resolution mechanism before filing the complaint? To answer this question, the court first needs to interrogate the manner in which the party’s internal dispute resolution mechanisms ought to be invoked. Rule 12 of the ODM Appeals Tribunal (Practice and Procedure) Rules, 2021 provides as follows:“Appeals(1)All appeals to the Tribunal shall be done only through electronic means details whereof shall be communicated to all parties through the Party’s website.(2)Appeals to the Tribunal shall be filed by presenting a statement of appeal signed by the appellant and/or recognized representative in the Form AT 2. (3)An aspirant who is aggrieved by the decision of an election official in respect of party primary election and/or nomination of candidates, may appeal to the Tribunal within thirty six hours of notice of the decision.(4)Where any decision or order by an election official is appealed against, the execution of decision or order shall be stayed until the Tribunal has fully heard and determined the appeal.”

19. Rule 12(2) clearly states that the appeal filed in the party’s Appeals Tribunal shall take the form of an Appellant’s statement of appeal or Form AT2 whilst Rule 12(3) can be interpreted to mean that where party primaries and/or nomination of candidates are concerned, the decision of an election official is what sets the party’s appeal process in motion. This means that there cannot be a dispute capable of being appealed to the ODM Party’s Appeal Tribunal in such instances unless and until an election official makes a formal decision in respect to the process.

20. The next thing is to determine whether a dispute that was capable of being lodged in the party’s Appeals Tribunal had arisen and whether the 1st respondent demonstrated an attempt to subject the same to the internal dispute resolution mechanism. I have carefully perused the documentation filed by the 1st respondent in the PPDT. I note that the 1st respondent merely wrote letters to the party complaining about an alleged rumour that the Appellant was considering granting the 2nd respondent direct nomination to contest for the Member of County Assembly, Luanda South Ward on the ODM ticket. However, there was no evidence that a decision had formally been made in that regard by an election official. It is therefore safe to conclude that no dispute had arisen in respect to the ODM nominations or party primaries in the 1st respondent’s ward of interest as at the time the 1st respondent filed the complaint in the PPDT.

21. Further, the 1st respondent did not produce any evidence of an appeal electronically lodged by himself in the ODM Appeals Tribunal vide a Statement of Appeal in the form envisaged under Rule 13 of the ODM Appeals Tribunal Rules or by his representative vide Form AT2 under Schedule 2 of the Rules. The 1st Respondent being a life member of the ODM party was bound by its rules and could not therefore purport to skip the party’s laid down dispute resolution mechanism. Indeed, I do not agree with the PPDT’s view that the numerous letters written by the 1st Respondent to the party satisfied the requirement under section 40(2) of the Political Parties Act. In my view therefore, the 1st Respondent did not demonstrate that he made any attempt to subject any purported dispute to the internal dispute resolution mechanisms.

22. Having found as above, it follows that the 1st Respondent’s complaint in the PPDT was unprocedurally and prematurely lodged. The PPDT erred by abrogating itself jurisdiction in the matter and by failing to find that there was no dispute between the parties capable of determination by the Tribunal. Further and in any event, courts have held that the PPDT’s role is limited to ensuring that the nomination method used by parties complies with the party’s constitution and rules but not to dictate to parties which method to adopt. (See Thomas Ludindi Mwadeghu v John Mruttu & another [2017] eKLR). For the foregoing reasons, this court finds and holds that the PPDT had no jurisdiction to entertain the complaint lodged by the 1st respondent. The entire decision of the PPDT was thus a nullity ab initio and the orders made in its impugned judgment are incapable of being implemented.What is the effect of the 1st respondent’s gazettement as an independent candidate for the MCA Luanda South Ward?

23. Nothing has been presented before this court to show that the 1st respondent lodged a fresh appeal in the party’s Appeals Tribunal or a fresh complaint in the PPDT after the 2nd Respondent was given a direct nomination to contest for the MCA Luanda South Ward on the ODM Party ticket. What has been presented before the court by the Appellant is a Special Issue of the Kenya Gazette Notice No. 92 Volume CXXIV of May 18, 2022 in which the 1st respondent is listed as one of the independent candidates who have been cleared to contest the general election scheduled for August 9, 2022. This evidence has not been controverted by the 1st respondent.

24. In Kisumu Misc. Petition E001/2022: Michael Ojala Nyangi v Hezron Okoth Onditi, Thande J. allowed an appeal against a decision of the PPDT in Kisumu which annulled the direct nomination of Appellant therein as the ODM Party candidate for Member of County Assembly, Kochia Ward, for among other reasons, that the 1st respondent therein had resigned from the ODM Party and is contesting as an independent candidate. Similarly, in the present case, even assuming that the 1st respondent had successfully challenged the direct nomination of the 2nd respondent in the PPDT, the fact that he has already been gazetted as contesting for the subject seat as an independent candidate bars him from participating in any nomination process conducted by the ODM party.

25. Further, the Independent Electoral and Boundaries Commission’s deadline for political parties’ submission of their nominated candidates is nigh. The appellant is now at liberty to use any mode of its choice in nominating a candidate to contest for the MCA seat in Luanda South Ward on the ODM Party’s ticket provided it is within the party’s Rules and Constitution.

Conclusion 26. In view of all the foregoing, the Appeal herein is allowed with no order as to costs.

DATED SIGNED AND DELIVERED THIS 3RD DAY OF JUNE 2022. J.N. MULWAJUDGE