Obongoya v Orange Democratic Movement & another; Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 930 (KLR)

Obongoya v Orange Democratic Movement & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E015 (KK) of 2022) [2022] KEPPDT 930 (KLR) (15 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 930 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E015 (KK) of 2022

M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members

August 15, 2022

Between

Patrick Ockochi Obongoya

Complainant

and

Orange Democratic Movement

1st Respondent

Odm -National Elections Board

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. The Complaint herein was first heard, inter partes and judgement delivered on August 4, 2022.

2. The complaint seeks the following orders:-a.That a declaration to be issued directing ODM party to submit the correct list forwarded by the bona fide Busia County Nominating Committee as per the list and minutes herein attached according to the Party Regulations.b.That an order to be issued by this Honourable Tribunal stopping IEBC from gazetting that wrong list presented by the party to it, pending hearing and determination of this complaint. c. Costs.d.Any other order as the Tribunal may direct.

3. Subsequent to our delivery of the said judgment, a Notice of Motion application dated August 5, 2022 together with an affidavit sworn by the Executive Director of the ODM Party Oduor O’gwen on August 8, 2022 was placed before us.

4. The said application successfully seeks review of this Tribunals orders.

5. In our said judgment of August 4, 2022, we had considered the issue of jurisdiction, merit of the complaint and the nature of the orders that should issue.

6. The review does not open up the issue of jurisdiction.

7. The key additional issue opened before us is whether the ODM party adhered to its own laws and processes in their population of the Busia County Assembly Party nomination list.

The Respondents Submission 8. It is submitted by the Respondents that a Central Committee meeting was held wherein the constitution of the County Nominations Committee in certain regions was discussed.

9. It is further averred that the correctly constituted county committee was advised by the chairperson of the NEB to populate the county nomination list as anticipated in law.

10. A list of nominees subsequently emanated from the said properly constituted committee.

The Complainants Submissions 11. The Complainant vide his replying affidavit to the application for review denies that such a party process occurred.

12. The Complainant submits that the party regulations were adhered to as expected and thus the Complainants case is warranted.

Our Analysis 13. The Complainant opposed the opening up of our analysis of the judgment to consider new/additional information.

14. We have already ruled and allowed the review.

15. Additionally, noting the time lines within which this Tribunal has to proceed under the current electoral cycle, this Tribunal in the interest of justice, granted the Complainant opportunity to file a comprehensive further affidavit, which opportunity they chose to disregard.

16. We thus find that the opposition is not justified.

Whether ODM party followed its rules and procedures in populating the ODM Busia County Assembly Nomination List 17. At the time we considered the case and delivered judgment of August 4, 2022, we had considered the party nomination process as provided in the party laws. This is because party nominations is purely a party process, which must be conducted according to the law and in line with the rule of law.

18. The new information provided by the Respondents aims to show that the nomination process was conducted in accordance to the party laws.

19. The main facet of the new information is that the county committee constitution had been determined in a manner deemed as best suited to realize the party agenda.

20. We have seen minutes of the Central Committee, a key party organ determining the chairpersonship and constitution of the Busia County party Nominations Committee. 21) We have also seen a letter from the Chairperson of the NEB to the Busia County Nominations Committee designated chairperson inviting the committee to execute its mandate and update the national level committee.

22. We have not seen any communication from the NEB to any other select County Chairperson to support the Complainants claim as to their list having been populated by an alternative alleged properly constituted committee.

23. It is apparent from the information provided by the Respondent and which is not specifically controverted by the Complainant, that the ODM party did adhere to its rules and procedures in population the party nominations list for Busia County Assembly.

24. We thus find that the complaint is not justified.

Disposition 25. In light of our analysis, we order as follows.a.That the judgment of this Tribunal in this complaint dated August 4, 2022 is hereby set aside.b.That the complaint herein is dismissed.c.That in order to foster party unity each party bear its own costs.

DATED THE 15TH DAY OF AUGUST 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)