Ochieng v Orange Democratic Movement Party & 2 others [2022] KEPPDT 1042 (KLR)

Ochieng v Orange Democratic Movement Party & 2 others (Complaint E045 (NRB) of 2022) [2022] KEPPDT 1042 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1042 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E045 (NRB) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 16, 2022

Between

Kevin Onyango Ochieng

Complainant

and

Orange Democratic Movement Party

1st Respondent

National Elections Board (ODM)

2nd Respondent

Shadrack Machanje Namunyu

3rd Respondent

Judgment

Background 1. The Complainant and the 3rd Respondent Party are all members of the 1st Respondent and were all aspirants for the ODM party ticket in respect of the MCA[Member of County Assembly] for Umoja East Ward Nairobi County.

2. The complaint herein is premised on the fact that on April 22, 2022, the 2nd Respondent attempted to conduct nomination exercise in Umoja East ward, but the exercise failed and led to the 2nd Respondent postponing the exercise and calling for a repeat on April 23, 2022.

3. The repeat nominations of 23rd April did not conclude in a final announcement of any winner. The Returning Officer announced the results of only one polling center; Busara Primary School while stating that the remaining results would be read at the tallying center which was at Cooperative University.

4. The only results that were read from the Busara Primary School saw the Complainant in the lead. However in a turn of events on April 25, 2022 the 3rd Respondent was awarded a nomination certificate.

5. Being dissatisfied with the turn of events, aspirants among them the Complainant herein lodged Appeals Nos. 1, 2 and 3 of 2022 with the 1st Respondent's Appeals Tribunal on the said 25th April, 202. The said Tribunal gave its judgement on April 27, 2022 in favor of the Complainants side nullifying the interim nomination certificate issued to the 1st Respondent.

6. The 1st and 2nd Respondents then proceeded to conduct another nomination exercise on April 28, 2022 which saw the said 3rd Respondent re-issued with the nominations certificate, recognizing him as the duly elected candidate for the Member of County Assembly for the seat in issue under the ODM Party.

7. The conduct of the direct nomination process was unprocedural and the Complainant was not included and or allowed to participate for some undisclosed reason.

8. In the face of the foregoing, on 28th April the Complainant lodged the complaint herein seeking the following orders:-i.That a declaration issue that the decision of the Orange Democratic Movement Party [ODM] to issue a nomination certificate for Umoja East to Shadrack Machanje Namunyu, the 3rd Respondent herein is null and void.ii.That an order issue restraining the Interested Party from considering the name of Shadrack Machanje Namunyu the 3rd Respondent as the duly nominated candidate for Umoja East Ward on the Orange Democratic Movement Party.iii.That an order issue directing the 1st and 2nd Respondents to issue the nomination results in respect to Tumaini and Unity polling stations.iv.Any other appropriate order that this Honourable Tribunal may deem just in the circumstances.v.Costs.

9. The 3rd Respondent concurs that a party nomination process in respect of the position in issue was conducted on 22nd April as well as on April 23, 2022. His point of departure is that he emerged winner in the process of 22nd April.

10. The 3rd Respondent further concurs with the Complainant that aspirants for the said ticket in issue being dissatisfied with the party nomination process thus far, presented an appeal before the party Tribunal and that the party Tribunal nullified the nomination process of 22nd and April 23, 2022.

11. It is the 3rd Respondents case that the party, in line with the outcome of the appeal process before the party Tribunal, thereafter proceeded to conduct fresh nominations by way of direct nomination and it that second process that resulted in the issuance of a nomination certificate to him.

12. He says that any party dissatisfied with the outcome of the direct nomination process conducted by the party should as a requirement of both the party laws and the Political Parties Act first attempt to resolve the issue internally.

13. The said 3rd Respondent has counter claimed as against the Complainants and seeks orders that:a.A declaration be and is hereby issued that the nomination of the cross-claimant was conducted in a free, fair and transparent manner.b.An order that the cross -Complainant be hereby issued with the nomination certificate as the 1st Respondent nominee for the Member of the County Assembly Umoja East ward.c.An order that the 1st Respondent herein submits the name of the cross- Complainant as its nominee for the position of the Member of the County Assembly Umoja East Ward to the Independent Electoral and Boundaries Commission.d.Any other relief that this Honorable Tribunal may deem just and fit to grant in the circumstances

14. It is the 1st Respondents case that the party applied its laws and procedures to grant him the ticket vide direct nomination and that given the timelines as provided by IEBC, the process was applied as realistically as possible as such this complaint is ripe for dismissal with costs.

15. The 1st and 2nd Respondents though served, as shown by the affidavits of service, chose not to respond to the complaint.

Issues for determination 16. The issues for determination before us are:a.Does this Tribunal have jurisdiction?b.Is this complaint merited?c.Is the counter claim merited?d.What orders should issue?

Analysis 17. Noting that we must first be seized of jurisdiction before we can delve into other issues arising from the pleadings we will address this first.

On jurisdiction 18. It has been accepted by the Complainant and the 3rd Respondent that the political party in issue proceeded to a second nomination process. A process the 3rd Respondent holds was properly executed but which the Complainant avers was conducted in so unprocedural a manner that he read mischief in the party intention and opted to come before this Tribunal.

19. There are ample authoritative pronouncements on the issue of IDRM before the party in order that this Tribunal can be seized of jurisdiction. This Tribunal has stated, times without number, that it takes seriously the legal edict in section 40(2) of the Political Parties Act, 2011. The Tribunal will always require parties to demonstrate compliancewith the provision of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

20. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4; Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others(Complainant No 247 of 2017), para 6; andGabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that:We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

21. In this instant the Complainant states that he did not even attempt to resolve the matter after the second nomination process which was a direct nomination, yet, oddly, he subjected himself to IDRM after the first nomination process.

22. Indeed, jurisdiction is everything and without it, as stipulated under section 40 sub section 2 of the Political Parties Act, we cannot move another step.

23. In the circumstances;a.The complaint herein is dismissed.b.We make no orders as to costs.

DATED THIS 16TH DAY OF MAY 2022_______________==================================M. L. ODONGO (PRESIDING MEMBER)====================================TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)===============================DR. LYDIAH WAMBUI (MEMBER)