Ochogo v Orange Democratic Movement Party & another; Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 943 (KLR)

Ochogo v Orange Democratic Movement Party & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E004 (KSM) of 2022) [2022] KEPPDT 943 (KLR) (1 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 943 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E004 (KSM) of 2022

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

May 1, 2022

Between

Nicholas Kut Ochogo

Complainant

and

Orange Democratic Movement Party

1st Respondent

Samuel Onunga Atandi

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. This matter relates to the election of the nominee/candidate for the 1st Respondent party to contest the 9th August 2022 General Election for Member of National Assembly for Alego Usonga Constituency.

2. The Complainant, a candidate in the aforesaid nomination exercise, filed a Complaint herein dated 21st April, 2022, accompanied by a Notice of Motion and Affidavit under the cover of a Certificate of Urgency. The Complainant sought the following reliefs:a)The appeal be allowed.b)That the determination made by the 1st Respondent’s Appeals Tribunal on 20th April 2022be set aside.c)That this Honourable Tribunal Orders the 1st Respondent to produce and provide to the Appellant and the Tribunal for scrutiny the transaction logs from the computer-enabled voting kits deployed for voting on 13th April, 2022 in Alego Usonga Constituency.d)That this Honourable Tribunal Orders a fresh nomination exercise in a manner that complies with the law in Alego Usonga Constituency.e)In the alternative to the foregoing, this Honorable Tribunal Order that the Appellant was the validly nominated candidate for the ODM Party ticket in the nomination exercise conducted on 13th April 2022. f)Any other order the Tribunal deems fit.g)Costs of this appeal be awarded to the Complainant.

3. This Tribunal considered the application ex-parte and issued the following Orders on 22nd April, 2022:i.This matter is certified urgent and service thereof dispensed with in the first instance. ii. The Complainant shall forthwith serve all the Respondents with all the documents he has field in these proceedings, in any event before end of day Saturday 23rd April, 2022. iii.The Respondents shall file and serve their Responses, Affidavits and any other documentary evidence in response to both the Notice of Motion and Complaint/Memorandum of Claim, on or before end of day Sunday 24th April, 2022. iv.The Complaint shall be heard on Monday 25th April, 2022 at 4. 00 pm virtually by way of oral arguments.v.Further orders and directions will issue on 25th April, 2022 when the matter comes up for hearing.

4. The parties complied with the Tribunal’s directions. Responses were filed together with affidavits; and the matter was heard by way of oral arguments. Mr. Okanda appeared for the Complaints; Mr. Makori appeared for the 1st Respondent; Mr Awele and Mr Sumba appeared for the 2nd Respondent; while Mr. Opondo held brief for Mr. Cheruiyot for the Interested Party.

5. Judgment was reserved for 30. 4.2022 when the same was not ready; and rescheduled to 1. 5.2022.

6. The Complainant has raised several grounds. We shall address each one of them in sequence.

Complainant’s Case 7. Mr. Okanda appeared for the Complainant. Counsel began by generally stating that the nomination fell short of the Article 81 of Constitution which provides the general principles for an election. That according to Article 81(e) of the Constitution, an election must be free and fair. That a free and fair election is through secret ballot. He stated that the importance of secret ballot is one of the elements of enjoyment of political rights under Article 38 of the Constitution and the Party Primaries and Nomination Rules of the 1st Respondent.

8. He further submitted that the election was in utter violation of secrecy of the ballot. He pointed to the Affidavits of Aggrey Onyango, John Ouma Ogeya, Maureen Heryn Amuom, Dan Oyoo and Ben Oriendi, who depone that the election did not observe secret ballot. That the 1st Respondent deployed a computer enabled system. The manner of its deployment was that the presiding officers and clerks in the stations would loudly call out voters on the queues to state their preferred candidate and voters would loudly respond with the name of their preferred candidate. That the importance of secret ballot cannot be disputed. It safeguards against intimidation, harassment; and also safeguards the enjoyment of political rights.

9. Counsel stated that Ms. Catherine Muma’s replying affidavit does not confirm that the election was by secret ballot. That, instead, she shifts blame in paragraph 7 of her Affidavit to Presiding Officers.

10. The Complainant noted that 2nd Respondent has filed 19 Affidavits by his agents saying that voting was by secret ballot. That the 1st Respondent should have instead called presiding officers to rebut that evidence. He stated that that limb of the Constitution was violated.

11. He proceeded by arguing that the computer system deployed was configured to have a window for Member of National Assembly (MNA), Woman Representative (WR) and Member of County Assembly (MCA). That one had to vote in one category before moving on to the next one. The system was so rigid and did not allow a voter to skip a category at all. Consequently, the number of votes cast for MNA, WR & MCA had to tally. That this was not the case in the impugned election. He pointed to, as an example, the results for Dibuoro polling center. That the 1st Respondent’s replying affidavit does not challenge that limb. That the 2nd Respondent too, has not addressed that limb. Hence, this tribunal should not be misled by the number of votes garnered by the 2nd Respondent.

12. Counsel argued that Section 38 C (2) of Political Parties Act, 2011 mandates the 1st Respondent to conduct its nomination using the party register certified by the Office of the Registrar of Political Parties. That the provision also provides access to the Register. That only the 2nd Respondent admits to have been given access to the register. The availing of the register was meant to ensure transparency. That the 1st Respondent does not rebut this allegation.

13. Counsel noted that there is no presiding officer who swore to voter verification at the polling station. He added that the Complainant had requested the Returning Officer to supply him with results for the election since he was the custodian thereof. He stated that no single candidate or agent of candidate had appended his signature to verify the results. That the results were not tallying hence the reason for the refusal by the Returning Officer to supply.

14. The Complainant argued that his agents were denied entry into the constituency tallying Centre or were roughed up by agents of the 2nd Respondent. To this end, he relied on the affidavits of Aggrey Onyango, Dan Oyoo, and John Ouma who were allegedly physically assaulted by supporters of the 2nd Respondent and forced to vote for the 2nd Respondent.

15. He concluded that the Complainant has made out a basis upon which the election of the 2nd Respondent should be set aside. That complaints were written on the day of nomination. That Aggrey Onyango’s letter was received on the same day but it has never responded to.

16. Counsel urged that the Appeal at the Party Appeals Tribunal sought, inter alia, to have the transaction logs of the gadgets, but the judgment of the tribunal does not address this relief. He saw basis upon which the tribunal reached the findings it did.

17. Counsel cited the decision in the Gatirau Peter Munya v Dickson Mwenda (2014) eKLR – in which the Supreme Court stated that elections must be conducted in substantial compliance with the law.

1st Respondent’s Case 18. The 1st Respondent relied on the replying affidavit of Ms. Catherine Muma, dated 26. 4.2022.

19. Mr. Makori underscored that a nomination is, for all intents and purposes, an election. That the Complainant must demonstration the well settled principle for setting aside an election as laid in Rosa Akinyi Buyu v IEBC (2013) eKLR – which borrowed from Section 83 of Elections Act to the effect that an election can only be declared void if:i.there was non-compliance with the law governing the election; andii.the non-compliance was so manifest that it would impact the result of the election.

20. That this threshold has not been met.

21. On the use of the voter register, the 1st Respondent pointed to the steps taken to ensure compliance with the law. That there were various platforms – availed to aspirants to confirm the register’s completeness or substantial compliance. That there was no complaint prior to the election with respect to register.

22. Counsel argued that the system deployed conformed with Rules 25(3) (a-c) of 1st Respondent’s Party Primaries and Nomination Rules. That while there was insistence by the Complainant on secret ballot, the party was free to use various systems including, (i) Show of hands (ii) secret ballot (ii) manually cast balloting (iii) computer enable system.

23. That Rule 25 (4) of the Party Primaries and Nomination Rules laid out the voting procedure, while Rule 32 deals with the process. That it is important to draw this distinction. That the party tribunal had the opportunity to hear witnesses and look at documents. That the principles in the Rosa Buyu case were well applied.

24. Counsel emphasized that numbers do matter. That a violation must be such that it materially affected the result. The difference of 14,000 votes was big. That the Complainant was to demonstrate that the irregularities were substantial and would have overturned the election.

25. That the computer kits used were configured to allow a voter to vote only once. That the Complainant did not, at the National Appeals Tribunal of the party, challenge the use of the kits in the first instance.

26. Counsel pointed to the replying affidavit of the Chairperson of the National Elections Board of the 1st Respondent to which is annexed the Returning Officer’s affidavit, one Osborne Otembo, who responds line by line, paragraph by paragraph, to all matters raised.

27. That Rule 47 of the Party’s Primaries and Nomination Rules, set out in detail the process used when a computer enabled system is used. That the provisions were complied with. That free, fair credible elections were conducted.

2nd Respondent’s Case 28. Learned counsel Mr. Awele and Mr. Sumba urged the 2nd Respondent’s case. That the proceedings are in the nature of an Appeal. That the Complainant should have filed the documents filed in the tribunal below. That has not been done. Counsel Agreed with Mr. Makori that nominations were for all intents and purposes an election. They were only on a smaller scale compared to what the Interested Party does nationally. That the elections of the 1st Respondent cannot be measured on a perfect standard. Counsel relied on the decision of Majanja J., in Richard Kalembe Ndile and Dhadho Godana wherein the Judge stated that an election is a human endeavor and not perfect. Counsel stated that the Tribunal cannot, however, close its eyes to irregularities.

29. Counsel stated that the circumstances in which political parties operate should allow for trivial irregularities that do not affect the election. That the following principles were settled Raila 2017 as follows:i.The standard of proof is not ordinary proof; it is above a balance of probabilities but not beyond reasonable doubt;ii.Where a criminal allegation is raised, it is beyond reasonable doubt;iii.The Burden of Proof is on the person alleging; andiv.Even where that burden is met, one must satisfy that what has been produced was substantial enough to warrant the interference with the will of the people.

30. That the allegation on secrecy of the election has been rebutted by 19 witnesses of the Respondent. The presiding officers had to demonstrate to the voters how the gadgets would be used. As soon as the voter was identified, he was given sufficient room to cast his/her ballot.

31. That mere fact that booths are the norm, it is not the only way of guaranteeing secrecy. Someone can turn his back to allow another to vote. The allegations that presiding officers aided voters and called out loudly is not supported by any cogent evidence. No voter has alleged to have been disfranchised. All the 19 deponents confirm that they cast their votes as they wished. No voter has deponed to not voting. That the will of the people of Alego Usonga was overwhelmingly expressed.

32. That nothing in the pleadings move speculative and premised on unsubstantiated suspicions than the allegation of the computer enabled kits being interfered with. There is no evidence of systematic interference with the kits so as to compromise its efficiency.

33. Counsel stated that it has been held, times without number, in electoral disputes, that the mere discrepancy in numbers cannot be a ground to nullify the results. No cogent basis has been laid for the allegation that the gadgets were interfered with. There must be a basis or reason. There is no allegation before the tribunal how the gadgets worked. This should have been raised substantially in the tribunal below. The discrepancy in votes was no more than 11 votes between the categories, 2 votes between MCA and CWR. That this cannot meet the threshold of systematic failure. That it cannot be said to have affected the outcome of the election.

34. Counsel argued that this was an electronic election. The party register included a digital version of the register. That notwithstanding that the affidavits are sworn by the Complainant’s agents, they also confirm that they actually voted. No one alleges that he was not a member of ODM and voted. This is no more than a desperate attempt at a second bite at the cherry. That Ms. Catherine Muma has set out the results of the election in Alego Usonga.

35. That Rule 47 of the Party Primaries and Nomination Rules is very clear for purposes of electronic announcement of results, and transmission to the tallying center. Under the said rule, the Returning Officer is required to publicly announce results from polling centres. That the results are not announced but the polling centres but are scanned and sent to the Returning Officer at the tallying Centre. The purposes of the Returning Officer it to verify the results and publicly announce. That these are the rules of the ODM Party primaries.

36. That the letters by the Complainant did not complain about the results at the tallying center. That no cogent evidence has been given to substantiate the allegations that the Complainant’s agents were denied entry into the polling station. There were 3 candidates. It is only the Complainant who complains that his agents were denied entry. The mere absence of an agent from a station, under Rule 27 of the foresaid party’s primaries rules does not invalidate the election.

37. Counsel stated that an Application for scrutiny has to be based on cogent evidence. The fact that the tribunal below did not find merit in the application for scrutiny does not invalidate an election. He added that the application cannot be a fishing expedition. He noted that the prayer for scrutiny was made in the substantive Appeal and it was not anchored on any pleadings, and was a matter the tribunal had discretion to address.

38. Counsel invited us to considered his submissions in the tribunal below. That over 20,000 voters turned out to vote. That cannot be a turn out in an election marred by violence as claimed by the Complainant, nor where kits were interfered with.

39. Counsel pleaded with us to consider the totality of the evidence before us. That no voters not affiliated with the Complainant who claim to have been disenfranchised in any way have sworn affidavits.

40. Mr. Awele, urged us to tread very cautiously on the allegation of inference with the voting kit since that would put a blot on all the elections conducted by the party in the entire country. He also stressed that we should let the will of the people prevail.

41. Mr. Sumba addressed us on the burden of proof that ought to be met or discharged by the Complainant. That the Complainant cannot make sweeping statements without evidence and expect the tribunal to set aside the election. The burden is beyond a balance of probability. That bribery and violence are not only election offices but criminal conduct. That there are no complaints to the police. That OB numbers was mentioned in the tribunal below. He opined that the Complainant ought to have gone beyond the sweeping statements.

42. That there was no complaint of harassment made to the retuning officer. That the Complainant is not being truthful in terms of his averments. That the decision of the party Tribunal was not only fair and reasonable but judicious. All considerations were made. The Complainant was on a fishing expedition. The Complaints were general statements as found by the tribunal. That the margin is over 14,000 votes, how this impacted on the outcome has not been said.

3rd Respondent’s Case 43. Mr. Opondo was brief. That his client had not been adversely mentioned, nor did it participate in the nomination process. That his client is willing to abide by the findings of this tribunal which he believed would be just and fair in the circumstances.

Complainant’s Rejoinder 44. Mr. Okanda stated that under paragraph 28 of ODM Party Primaries and Nomination Rules, the basis for scrutiny is set out. One had to vote for all positions on the ballot for the day. The total number of votes had to tally. That he gave an example of one polling centre.

45. That the Complaints are not trivial. The elements of free and fair election, includes the right of voters to vote. That the 19 Affidavits adduced are all by partisan agents and by the 2nd Respondent. That the figures of the purported results do not reflect the true picture of the wishes of the people of Alego Usonga.

TRIBUNAL’S ANALYSIS AND FINDINGS 46. We have carefully sifted through the filings and submission herein. We have also reflected on the law as we understand it, and find the following issues as commended to our determination: i. Whether the election was in substantial compliance with the law?Who bears the costs of this suit? 47. We will address each issue separately before postulating our conclusions.

Whether the election was in substantial compliance with the law? 48. Several grounds were argued in respect of this issue. We will take each one at a time.

Alleged failure to use the ODM certified Register 49. The gist of this limb of the complaint is that no register at all was used in identifying voters in the election. This aspect of the complaint seems to be anchored on Section 38 C of the Political Parties Act, 2011. For ease of reference the provision reads:1. A registered member of a political party shall be entitled to participate in the nominations conducted by the political party.2. A political party that intends to conduct political party nominations under this Act shall use a certified register of members for the nominations.3. A political party that intends to conduct political party nominations under this Act shall apply in writing to the Registrar for a certified copy of the register of members at least twenty-one days before the date of the nominations.4. The Registrar shall issue the political party with a certified copy of the register of the political party’s members within seven days after the application under subsection (3).5. A political party shall not allow any person who is not a registered member of the political party to participate in the party nominations.6. Notwithstanding the provisions of subsection, a person may only participate in the nominations of a coalition political party if such person is a registered member of a party forming the coalition political party.38D.A political party shall ensure that the register of members used in party nominations is accessible to the registered members of the party.

50. The foregoing provision, enacted through the Political Parties (Amendment) Act, 2022, introduces three significant aspects; a certified register of members of a political party, the use of a certified copy thereof in party nominations, and the accessibility of the register by party members.

51. Mr. Awele, learned counsel for the 2nd Respondent asserted that the method of nomination chosen by the party was by use of electronic voting as provided for under the 1st Respondent’s Party Primaries and Nomination rules. That the register was uploaded in the gadgets used in a digital format.

52. Indeed, a political party, under section 38 of the Political Parties Act, has two choices in terms of the methods of nomination to be used: Direct or indirect. Section 2 of the Act defines a direct nomination process as “the process by which a political party, through its registered members, elects its candidates for an election”. The process chosen by the 1st Respondent was direct nomination but through an electronic gadget. Under Rules 23 and 25 of the 1st Respondent’s Party Primaries and Nominations Rules, 2021, various methods of nominating candidates are enumerated, including universal suffrage by electronic voting.

53. The digital voting method was, thus, grounded both in the law of the state and the 1stRespondent’s governing instruments. There is no evidence led by the Complainant, and we accept Mr. Awele’s submission, that not a single party member has sworn an affidavit stating that he/she was a member of the party but could not vote since his/her details were not captured in the gadget. We also have not seen a single request under either section 38 D of the Political Parties Act afore-quoted, nor Article 35 (Access to Information) of the Constitution by any member of the party requesting to inspect the 1st Respondent’s register. For this proposition, we have good authority in the Court of Appeal’s recent pronouncement in the now famous BBI case, Independent Electoral and Boundaries Commission & 4 others v David Ndii & 82 others; Kenya Human Rights Commission & 4 others (Amicus Curiae) [2021] eKLR:482. From the foregoing, if anyone wishes to have access to any information held by the State or a public body, then one is required to follow the laid down procedure and make a formal application to be provided with the information or for publication of the same.483. There is no demonstration at all by Mr. Morara that he requested for any information from the President, Hon. Raila Odinga and the BBI Steering Committee regarding the budget and public funds allocated and utilized in promoting the impugned Bill. The learned judges cannot therefore be faulted for declining to issue the aforesaid orders. Consequently, I would dismiss Mr. Morara’s cross appeal on the issue.

54. We are also aware of the decision of the High Court sitting in Machakos in Petition No. E002 of2022 Centre for Minority Rights Development and Others versus The Attorney General and Others where the court held that political parties are to use their party registers and other alternative means to conduct their party primaries, and not solely depend on the Integrated Political Parties Members Register (IPPMS) digital register provided for in section 38C of the Political Parties Act.

55. Moreover, the Complainant did not discharge its burden of proof by leading any evidence to show that the register used was not the 1st Respondent’s members’ register. We, accordingly, do not find any merit on this ground and dismiss it.

Voter Bribery 56. There was no evidence led on allegations of voter bribery beyond the general allegation impleading. This ground too, fails.

Lack of Accountable, Verifiable and Transparent Processes 57. The essence of the Complainant’s grievances on this account fall into several parts. Firstly, that the system deployed by the 1st Respondent did not assure the voters of the secrecy of the ballot. To this end, affidavits were sworn in an effort to demonstrate that the 2nd Respondent’s presiding officers were openly asking and assisting voters, while others were threatened and intimidated against their wishes. Secondly, that the election was not verifiable since no declarations were made at the polling centre. Thirdly, that his agents were roughed up and excluded from monitoring the process in polling stations and the tallying centre.

58. We will commence our analysis of this ground, where’re we must. Article 81 of the Constitution of Kenya 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—f (i)by secret ballot;ii.ree 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)

59. Article 38 (3) of the Constitution of Kenya underscores the right to vote in any election by secret ballot as an integral part of the citizens’ enjoyment of political rights. It provides:(3)Every adult citizen has the right, without unreasonable restrictions—a.to be registered as a voter;b.to vote by secret ballot in any election or referendum; (Emphasis added)

60. All elections, without exception, are to be held to the foregoing standard. Section 83 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 written law or that the non-compliance did not affect the result of the election.”

61. 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. We, therefore, do not agree with learned counsel Mr. Awele that party primary elections are to be held to a lower standard.

62. 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 in Raila Odinga & Another Vs. IEBC & Others SC Petition No. 1 of 2017.

63. 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, Gatirau Peter Munya Vs. Dickson Mwenda Kithinji & Others (2014) eKLR).

64. 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. Indeed, in some areas where political parties are strong, the nomination elections may as well be the main election contest.

65. 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.

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

67. As we observed in our recent decision in PPDTC 019 of 2022 John Andiwo v The National Elections Board (ODM) and Others: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.

68. The epicenter of 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:b.the 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;

69. The Respondents argued that there was no requirement under the 1st Respondent’s Party Primaries and Nomination Rules, for the declaration of results at polling stations, and yet Rule 43 (1) of the 1st Respondent’s own Primaries and Nomination Rules, 2021 provides for declaration of results at polling stations, including where elections were conducted by electronic means, and the requirement for Agents and or candidates present to confirm the results 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 electronic method.d.provide each candidate, or their agent with a copy of the form of announcement of the results; ande.Place the original copies 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)

70. The afore-quoted provision of the 1st Respondent’s Party Primaries and Nomination Rules,2021 accord with Articles 38, and 81 of the Constitution of Kenya. It is, thus, not true, as suggested by the Respondents, that the 1st Respondent’s procedures excluded declaration of results in polling stations/centres for electronically conducted elections. Nor is it true that the same rules excluded the use of Form 9A to declare results at the polling station.

71. This Tribunal cannot, therefore, countenance the argument, as advanced by the Respondents, that the practice of announcing results for the first time at the constituency tallying centre without declarations ascertained by candidates or their agents at the polling stations, substantially conforms with the constitutional principles of a transparency, verifiability and accountability of elections.

72. To reiterate our words in PPDTC 019 of 2022 John Andiwo v The National Elections Board (ODM) and Others: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.

73. 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. They, however, state that an amorphous transmission process only known to them and the persons wielding the gadgets and their passwords was done to the tallying centre, where the eventual winner of the contest was announced.

74. It was even suggested by counsel for the 2nd Respondent that to set aside the election on the basis of the matters raised on the election platform used, would have a domino or ripple effect on the entire elections held by the 1st Respondent throughout the country since the same system was throughout. We do not agree with counsel. The work of a court or tribunal is to determine questions before it on the basis of the evidence and law. The consequences of a decision and its likely impact are not matters for the Tribunal to consider outside the context of the evidence and law obtaining in the current case. In other words, this Tribunal cannot shut its eyes to breaches of law, or derelict its duty so as to sustain harmony in an illegality, however widespread.

75. On the issue of polling officials, presiding officers and clerks asking voters on queues to state their preferred candidates and then assisting them to vote, the Complainant advanced that lack of polling booths compromised the secrecy of the election. The response by the 1st and 2nd Respondents was that the digital process adopted required voters to be explained to the process; and that this was necessary for illiterate and technologically challenged voters. The said Respondents further argued that the process was secret since one was given a short distance to vote. Mr. Awele even suggested that it was possible for the officers and other persons present to turn their backs while the voter used the gadget.

76. Mr. Makori for the 1st Respondent insisted that the digital process conformed with Rule 25 (3) of the 1st Respondent’s Party Primaries and Nomination Rules. The Complainant filed 4 affidavits by voters in support of the allegation of lack of secrecy while the 2nd Respondent file 19 affidavits to the contrary. The Complainant observed that the deponents of the 19 affidavits are agents on the payroll of the 2nd Respondent hence the objectivity and quality of their evidence in rebuttal is severely diminished. He also notes that no single presiding officer has sworn an affidavit on behalf of the 1st Respondent in rebuttal of this allegation.

77. It is our considered view that while voting booths increase the privacy and secrecy of the process, the same can still be achieved even without a booth. What we find most concerning is the conduct of presiding officers and clerks in assisting voters to vote and asking them to state their preferred candidates in the open, while on the queue. The explanation by counsel for the Respondents does not persuade us. Voter education cannot be conducted on the election day. In other words, the 1st Respondent ought to have educated voters on the system and its operations, and possibly tested it, in the presence of candidates and agents, in advance of its deployment, and not on election day. This would have underscored its commitment to a transparent and accountable process, and enhanced confidence in the system used.

78. Furthermore, voter assistance standards are such that election officials do not assist voters. A voter who needs help has to come with a person to help him/her. Such a person has to take an oath of secrecy, which has to be acknowledged by agents and kept for record in the returns. A person can also only assist one voter in an election. Rule 36 of the 1st Respondent’s own Party Primaries and Nomination Rules, 2021 is instructive on this. This standard seems not to have applied in this case.

79. The allegation by the Complainant to the effect that his agents were roughed up and violently ejected from the constituency tallying centre have not been seriously controverted, except for Mr. Sumba’s submissions to the effect that violence was a serious criminal offence, beyond being an election offence. He stated that no such complaint was made to the Returning Officer. While acknowledging that the Complainant had cited OB numbers of reports to the police, he defaulted to the standard of proof required for criminal cases being beyond reasonable doubt.

80. While this tribunal does not purport to exercise criminal jurisdiction, it will require a higher threshold for election offences alleged that border criminal conduct. Somewhere above a balance of probability but not as high as beyond reasonable doubt.

81. The Complainant has put in affidavits on oath by three of his agents testifying to the allegation of violence at the tallying centre and their ejection therefrom. Admittedly, OB report numbers have also been referred to. As a complainant in a criminal case, it is enough that one reports to the police and allows the police to undertake investigations. No further obligation is placed on a complainant.

82. What is more critical, however, is the absence of a candidates’ agents in the tallying Centre, to witness the collation of results and the declaration of a winner. This is particularly important in an election where, as admitted by the 1st and 2nd Respondents, there was hardly paper trail returns nor declarations at the polling centre. In our considered view, the violence in the tallying centre definitely affected the quality of the election.

83. The 1st and 2nd Respondents urged us to find that a difference of 14,000 votes between the 2nd Respondent and the Complainant militated against the setting aside of the election, after all elections are about numbers, they opined. We, respectfully, 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. An election must, at the bare minimum, as commanded by Article 81 of the Constitution, meet the standards of accountability, transparency and verifiability. It must also be free of violence coercion, intimidation or corruption. These are both quantitative and qualitative imperatives. Accountability, scrutiny, verifiability are quantitative matrices; while elements such as transparency, integrity (lack of corruption), lack of intimidation, coercion, violence and harassment; are qualitative parameters. Both parameters must exist contemporaneously and are of equal value.

84. The Complainant also raised issues as to the configuration of the gadgets used in the polling exercise. He explained that there were three elections in the portal; for the Member of National Assembly; for the Woman Representative; and for the Member of County Assembly. He asserted that the manner of their configuration allowed for a voter to only move from one to the next election after voting in the first category, then the next. In other words, it was impossible to vote only in one or two categories. Logically, therefore, the tally of votes casts for the three elective positions had to tally. This was not the case herein. Citing Ribworo polling centre as an example, the votes cast did not match for the three elective positions.

85. The Respondents answer to this allegation was that the deviations were minor. However, there was no specific response to the allegation that the system could not allow one to vote in one category and skip the other. It may very well be that the deviation in Ribworo was slight, but the net or cumulative effect can be significant. It may also show that the malpractice was widespread, systemic and substantial. It may also point to the gadget have pre or post entries or deletion of votes in it. Such a conclusion may not be far-fetched. It must be recalled that the test of a substantially compliant election is both qualitative and quantitative.

86. With the matters observed herein; particularly in the discrepancies in the votes cast returned by the electronic records of the gadgets used, lack of declaration forms, failure to announce and have declarations made at the polling centres, and the cogent evidence of the Complainant’s agents kicked out of the tallying centre; it is difficult to fathom how, at the very least, the 1st Respondent’s Tribunal did not order for the scrutiny and recount of votes as was requested by the Complainant, or suo moto. That the Tribunal was completely mum in its Judgement on a prayer before it, is surprising to say the least.

87. Looked at objectively, disjunctively, and conjunctively, the breaches cited were not clerical, administrative or procedural. The 1st Respondent not only breached its 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.

88. Our words in our recent pronouncement in PPDTC E003 of 2022 Elisha Odhiambo v Dr. George Jalango Midiwo and Others, para. 68 bears repeating:Once a party invites candidates to put in their applications for party nominations, collects fees from them, and sets dates for nomination, it creates in the candidates/aspirants a legitimate expectation that there will be a level playing field to compete for the positions. It guarantees that it has the ability to hold free and fair nomination processes and to respect the outcome of elections and subsequent decisions of party election and judicial organs, notwithstanding the desires of a few those who occupy top echelons of its leadership. It also assures candidates of the independence, objectivity and impartiality of its judicial and other decision-making organs. The will of the majority is always the essence of democracy. A usurpation thereof by a few in a committee cannot be allowed to stand.

89. In a nutshell, the election was not accountable, transparent, verifiable, free and fair. The effect of the wrongs was pervasive and substantially permeated the election. There was no declaration of a winner on merit.

90. Our assessment of the facts as a whole draw us to the inescapable conclusion that we must set aside the nomination exercise and order a fresh election. It is important that the 1st Respondent’s members in Alego Usonga are given a chance to exercise their political right to nominate their candidate for Member of National Assembly in the forthcoming elections through a credible process.

Who bears the costs of this matter? 91. Ordinarily, costs follow the event. However, in 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.

92. Before we pen off allow us to make a comment in obiter, as to the nature of our jurisdiction under section 40 (2) of the Political Parties Act, 2011, particularly since there is recurring confusion as to whether our remit is appellate from party dispute resolution organs, or whether our jurisdiction is original.

93. Section 40(2) of the Political Parties Act, currently reads as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

94. The same provision previously read as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

95. Notice the difference in the wording. The architecture of section 40 (2) as it is currently framed does not necessarily or expressly confer appellate jurisdiction to this Tribunal from political party Internal Dispute Resolution Mechanisms (IDRMs). For good reason, the amendment was meant to give the Tribunal the powers to deal with matters, in exceptional circumstances, when party IDRMs prove a hindrance to access to expeditious justice. All that a grievant now needs to show is an honest and good faith attempt at accessing IDRM, unlike previously when the IDRM mechanism had to be exhausted and a determination made. This law reform was informed by decisions by this Tribunal and superior court. See our decisions 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; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24; PPDTC E003 of 2022 Elisha Odhiambo v Dr. George Jalango Midiwo and Others; and PPDTC E002 of 2022 John Mworia Nchebere v The National Chairman ODM and Others.

96. It is thus worth noting this Tribunal only exercises express appellate jurisdiction undersection 40 (1) (f) of the Political Parties Act, 2011, on appeals emanating from the decisions of the Registrar of Political Parties. This Tribunal, therefore, exercises a hybrid, sui generis, jurisdiction that is neither, strictu sensu, original or appellate only under section 40(2) of the said Act.

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

DISPOSITION 98. In the end we make the following Orders:i.We allow the Appeal;ii.The nomination of the 2nd Respondent Samuel Onunga Atandi as the 1st Respondent’s nominee/candidate for Alego Usonga Constituency in Siaya county is hereby set aside and annulled;iii.The decision of the 1st Respondent’s Appeals Tribunal sitting in Kisumu in Appeal number 6 of 2022 is also hereby set aside and substituted with the decision of this Tribunal; iv. The 1st Respondent shall forthwith, in any event on or before 4th May 2022, conduct a fresh Nomination election exercise in Alego Usonga Constituency of Siaya County through a universal suffrage of its members; andv.Each party shall bear its own costs of these proceedings.

99. It is so ordered.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 1ST DAY OF MAY 2022. ........................HON. DR. WILFRED MUTUBWA OGW C. ARB VICE CHAIRPERSON – PRESIDING.......................HON. FATUMA ALI MEMBER.........................HON. WALUBENGO SIFUNA MEMBER