Odhiambo v Midiwo & 3 others [2022] KEPPDT 1011 (KLR)

Odhiambo v Midiwo & 3 others (Tribunal Case E003 (KSM) of 2022) [2022] KEPPDT 1011 (KLR) (Civ) (30 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1011 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Tribunal Case E003 (KSM) of 2022

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

April 30, 2022

Between

Hon. Elisha Ochieng Odhiambo

Claimant

and

Dr. George Jalango Midiwo

1st Respondent

Odm National Elections Board

2nd Respondent

Odm Appeal Tribunal

3rd Respondent

Orange Democratic Movement Party

4th Respondent

Judgment

1. This matter arises out of a nomination contest for the 1st Respondent’s ticket for the Member of National Assembly for Gem Constituency held on 13th April, 2022.

2. Following the nomination election exercise, the Complainant was declared the winner. Dissatisfied with the declaration, the 1st Respondent moved to the 4th Respondent’s Appeals Tribunal to challenge the said declaration. The said tribunal dismissed the 1st Respondent’s Appeal and affirmed the Claimant’s victory, on 20th April, 2022.

3. The 1st Respondent yet again filed an application seeking to review the decision of the 3rdRespondent Appeals tribunal of the 1st Respondent. The Tribunal dismissed the request for review on 24th April 2022.

4. The Complainant moved this tribunal by way of a Complaint dated 22nd April, 2022 seeking the following Orders:a.A declaration that the decision of the ODM Appeals Tribunal that the nomination of the 1stClaimant as the 4th Respondent’s nominee for the position of the Member of National Assembly for Gem constituency be upheld.b.A declaration be and is hereby issued that the nomination of the 1st Claimant was conducted in a free, fair and transparent manner.c.A declaration be and is hereby issued the interim nomination certificate issued to the 1st Claimant by the 4th Respondent be recognized as legally, justly and rightly obtained.d.The Claimant be and is hereby issued with the nomination certificate as the 4th Respondent’s nominee for the position of the Member of National Assembly for Gem Constituency.e.The 4th Respondent be and is hereby directed to forthwith submit the name of the 1st Claimant to the Independent Electoral and Boundaries Commission as the 4th Respondent’s nominee for the position of the Member of National Assembly for Gem Constituency.f.The Honorable Tribunal be pleased to issue such further orders as it shall deem fit and just in the circumstances.g.The Respondents be condemned to pay costs of this claim.

5. The Complaint herein was filed together with a Notice of Motion application and Affidavits, under the cover of a Certificate of Urgency.

6. The matter was certified urgent in the first instance and the following orders/directions were issued:i.That the Application filed herein on 22nd April, 2022 is certified urgent.ii.The Complainant’s application dated 22nd April, 2022 shall be heard on Saturday 23rd April, 2022at 4. 00pm.iii.The Complainant shall serve the suit papers upon the Respondent by end of day, today, 22ndApril, 2022. iv.The Respondent shall file and serve their responses to the Complainant’s Application and Complaint, on or before 12. 00pm on Saturday 23rd April, 2022. v.The Claimant shall file and serve any further documents, responses and/or Affidavits by 3. 00pm on Saturday 23rd April, 2022. vi.Further orders will issue upon hearing the parties on Saturday 23. 4.2022 at 4. 00pm.

7. The Parties complied with our directions foregoing and also filed amended pleadings, further and supplementary affidavits, which have all been considered by the Tribunal.

8. The matter was heard on 27th April 2022 by way of oral arguments. Mr. Were and Mr. Oruenjo appeared for the Complainant; Mr. Maua and Mr. Abira for the Respondent; and Mr. Anzala for the 2nd, 3rd and 4th Respondents.

Complainant’s Case 7. Learned Counsel Mr. Were began his address by stating that the matter relates to Gem Constituency nomination conducted on 12. 4.2022. That a Complaint to the 3rd Respondent tribunal was dismissed, and a subsequent Review was also dismissed. The 3rd Respondent held that the Complainant was validly elected yet the 2nd and 4th Respondents have admitted that they are acting against the decision of the 3rd Respondent. That the facts are clear and the rules of the Party provide that decisions of the party Appeals Tribunal will be final.

8. That the Defence of the Respondent’s is that this tribunal has no jurisdiction under Section 40 of the Political Parties Act, 2011 to entertain the Complaint. Further, that it is clear that the Complainant is properly before us. That he had exhausted the Internal Political Party Dispute Resolution Mechanisms (IDRM) and, therefore, this is not its first port of call. He added that there is no other organ in the ODM hierarchy that would interfere with the decision of its Appeals Tribunal. That ODM has to respect its constitution and the rules made for party primaries.

9. Counsel submitted that a political party which is benefiting from public coffers has to abide by the law and cannot act contrary to the law. That this tribunal can enforce orders as a magistrate court and has supervisory jurisdiction over parties misbehaving as the one before us. All political parties, he added, are bound by the code of conduct of Political Parties Nomination Rules under the Elections Act, 2011. That the rule of law and transparency have to been adhere to. That it cannot be said that a person not close to a leader of a party cannot be trusted with a nomination.

10. The replying affidavit of Mr. Oduor Ong’wen is in contradiction of the Returning Officer’s affidavit that there was no violence. Mr. Ong’wen does not state how the Central Committee of ODM came to consider the matter and who complained. That the threats alleged therein do not bear proof or factual foundation. That Mrs. Catherine Muma who alleges to have been threatened by the Complainant does not state when, where and how she was threatened. That her evidence is hearsay. Nothing, according to the Complainant, has been placed before us to show that the people stated were ODM members nor have witnesses of the alleged violence sworn affidavits. That the uncontroverted fact is that the Complainant’s win was confirmed by the 3rd Respondent Tribunal. That the Central Committee has no powers in the ODM Constitution to reverse the decision of the Tribunal. That they should have moved a higher body and not to contravene the decision instead.

11. Counsel concluded by stating that there was collusion between party officials to deprive the people of Gem their will. He added that there is no provision in the ODM Constitution to have two parallel processes of handling disputes. That the Complainant was never called or notified that the Central Committee wanted to meet him to clarify any matter. Counsel urged us to allow the Complaint.

12. Mr. Oruenjo appearing alongside Mr. Were added that Rule 17 of the ODM Party Primaries and Nomination Rules requires the National Elections Board to enforce decisions of the Appeals Tribunal. The rule, he added, cannot be relied upon in these proceedings since it is only invoked when nominations are nullified and fresh nominations are ordered. That does not apply to this case.

1St Respondent’s Case 13. Mr. Maua relied on the 1st Respondent’s Preliminary Objection, Replying Affidavit and list of authorities. He stated that the objection is based on the Section 40(2) of the Political Parties Act. He noted that these proceedings were filed while the IDRM processes were still ongoing.

14. That a review application was filed by the 1st Respondent on 21st April 2022 before the 3rd Respondent Tribunal, was heard and dismissed on 24th April, 2022. That while it was ongoing, the Claimant filed the claim herein on 22/4/2022 seeking to stop the review pending before the 3rd Respondent. That the IDRM was not completed when this claim was filed.

15. Learned counsel argued that the Complainant wishes to rubbish the committees of the ODM party. That the 2nd, 4th Respondents started a suo moto process of identifying a candidate after complaints of violence were received. The decision was made on 24/4/2022. The Claimant was already before us when the central committee of the party nullified his nomination. That the complainant is skipping a process. That the Central Committee has powers under Article 7 (5) (6) of the ODM Constitution read with Section 17(5) of ODM Primary Rules, where it can make a decision on the nomination. That the ticket has not been issued; and that it may still be issued to the Complainant. The decision made was to issue a direct nomination. What decision is being appealed?There is no decision being appealed? he posed. That the application and claim should be dismissed. Counsel also urged us to see Rule 8 of the ODM Party Primaries and Nomination Rules.

2Nd To 4th Respondent’s Case 16. Mr. Anzala for the 2nd to 4th Respondents stated that they acknowledged the decisions of the ODM Appeals Tribunal. That indeed, the Complainant was announced winner of the party primaries. He argued that the Central Committee did not usurp the powers of the Appeals Tribunal. In the Central Committee resolution at page 130-131 of Oduor Ong’wen’s further affidavit, the Central Committee acknowledges the decision of the Tribunal. That after the 3rd Respondent announced the Complainant as winner, a 2nd event, para 8 of Affidavit of Oduor Ong’wen, happened. The central committee, immediately received complaints against the Complainant. Grave among them was a threat of death to the chair of the National Elections Board, Mrs. Catherine Muma. The Complaint was, therefore, subject to disciplinary mechanisms of the party. That the Committee met and discussed the issues brought to light and made a decision to recall the nomination certificate issued to the Complainant.

17. Counsel added that any individual who is sponsored by a party must meet the threshold in terms of the conduct provided for by the party. That where the party has evidence that the individual who seeks to be sponsored by the party has acted contrary to the party’s rules and regulations, it has the power to discipline the member. That is the premises upon which the decision of 24th April 2022 was made.

18. Mr. Anzala proceeded that, as to whether the Central Committee’s decision was valid or procedural, is a matter that cannot be litigated before this Tribunal in the first instance. That in the event the Complainant is aggrieved by the second event; Section 40 of the Political Parties Act, 2011 gives guidance on the procedure that is to be applied. i.e. it has to be initiated at the party. So that parties are not denied an appeals mechanism as provided by the Act. Counsel sought to persuade us to hold that the Complaint is not ripe for this Tribunal to delve into. He urged us to dismiss the Complaint with costs.

Claimant’s Rejoinder 19. Mr. Oruenjo replied that the decision of the 3rd Respondent Tribunal cannot be overruled by the decision of the Central Committee. That the central committee ought to constitute a disciplinary tribunal which will find the Complainant culpable. That the allegations of violence were determined conclusively by the Tribunal. That the threats on Mrs. Muma are new; and are denied in a supplementary Affidavit filed by the complainant herein. Counsel was emphatic that the party can only constitute a disciplinary committee when allegations requiring discipline emerge. That threats of death are criminal in nature. That the Complaint ought to have been investigated, charged and convicted before disciplinary proceedings are taken. That the Central Committee does not deal with the matters of party primaries.

20. Mr. Were added that there is no provision in the ODM Constitution for the Central committee overriding the 3rd Respondent’s tribunal’s decisions. That the Complainant is here to enforce the decision of the tribunal. He added that these proceedings are not an Appeal from the 3rd Respondent’s decision. He cited Article 47 of the Constitution, and stated that the Complainant did not know of the Central Committee’s proceedings a fact he stated as having been confirmed by Mr. Anzala.

21. Counsel noted that the Central Committee’s power to deal with the matter was not cited or shown nor did Mrs. Catherine Muma produce an O.B from the police showing that she had reported such a serious threat. That the complainant’s phone was always on, but no call or message was ever received from the party summoning him to the Central or Disciplinary committees.

Tribunal’s Analysis And Findings 22. We have scoured the length and breadth of the parties’ filings herein and have identified the following matters as falling for our consideration and determination:i.Whether this Tribunal has the requisite jurisdiction to entertain the complaint?ii.What orders should issue in this matter?iii.Who bears the costs of this matter?

23. The issues identified shall be addressed in the order in which they appear above.Whether this Tribunal has the requisite jurisdiction to entertain the complaint?

24. The gravamen of this aspect of the objection oscillates on the interpretation of our remit undersections 40 (1) and (2) of the Political Parties Act, 2011 (as amended in 2022).

25. The essence of the Respondent’s objection is that the questions regarding the decision of the Central Committee of the 4th Respondent to annul the Complainant’s nomination and instead offer the nomination to the 1st Respondent is a matter that should have first been taken to the 3rd Respondent’s Appeals Tribunal before being escalated to this Tribunal. According to the Respondents, the decision by the 4th Respondent’s Appeals Tribunal constituted a fresh cause of action that was not the subject of the 4th Respondent’s Appeals Tribunal’s decision that upheld the Complainant’s nomination. That without having exhausted the 4th Respondent’s IDRM processes, this dispute is prematurely before us, and we are therefore bereft of the requisite jurisdiction to entertain the complaint.

26. The complainant takes a contrary view. To him, these proceedings are an enforcement of the 3rdRespondent’s decision. That only this Tribunal in its mandate under Section 41 can enforce decisions of Party Tribunals as would a Magistrate’s court.

27. The substance of the Respondent’s objection is not novel. It is a well-trodden path for this Tribunal. We have pronounced ourselves on similar situations, albeit in slightly different circumstantial permutations. It may, therefore, help to lay a background as to the law surrounding the requirement for exhaustion of IDRM before approximating the same to the facts at hand.

28. There are ample authoritative pronouncements on this question, both by this Tribunal and by superior Courts. 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 compliance with the provisions of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

29. 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; and Gabriel 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.

30. Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions. This tribunal and courts have spoken to some of these exceptions. We shall refer to a few of them for purposes of illustration.

31. In Ibrahim Abdi Ali v Mohamed Abdi Farah & Another (Complaint No 29 of 2015), we held, that: Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.

32. In Jared Kaunda Chokwe Barns v Orange Democratic Movement & 2 Others, we made the following pronouncement on the question:‘In light of this we find that by writing to the Party, the Complainant made an attempt to engage the Party in resolving the dispute. Indeed, if the 1st Respondent was to act on the dispute the presumption is, the same would have been resolved. We therefore find that the Complainant tried to engage the Party internal dispute mechanism and thus, we have the jurisdiction to determine this complaint.’

33. In Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7, we confirmed that:Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.

34. In Moses Saoyo Kusero v Jubilee Party of Kenya & another (Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that:It is clear that the Claimant’s attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

35. The silver lining and constant theme running through the maze of the fore-quoted decisions is that, the requirement to exhaust internal dispute resolution mechanisms is a principle with exceptions. As we noted in our recent decision in Complaint No. E020 of 2021 Oscar Kambona v Schola Nyenze and Others:The exceptions are founded on good reason. At times, the internal mechanisms prescribed in party constitutions and other governing instruments are either non-existent, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute.

36. It merits noting that the fore-cited cases were delivered before the Political Parties Act was amended vide the Political Parties (Amendment) Act 2022. There was a significant shift in the wording of section 40(2) of the Act. The Section 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.39. The current wording of section 40 (2) is 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.

37. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment was meant to accord the law with our previous pronouncements and those of the courts. It is, therefore, necessary to restate the import of the amendment to the province of the doctrine of exhaustion as reset by the statute. A brief background is, therefore, essential.

38. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly vs Karume (1992) KLR 21. The said Court further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR as follows:It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brew… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

39. Nyamweya J in Republic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd [2021] eKLR, dealt with the exceptions to the general rule, including the adequacy of the remedy sought in the internal process vis-à-vis court intervention. The learned Judge observed that: In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the claimant with the outcome sought as a matter of substance. It is for this reason that section 9 (4) of the Fair Administrative Action Act, provides that the Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. (Emphasis added).

40. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic vs. National Environment Management Authority, Civil Appeal No. 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

41. Likewise, it was held by the High Court in the matter of the Mui Coal Basin Local Community (2013) eKLR; R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya and Mohamed Ali Baadi and others vs The Attorney General & 11 others [2018] eKLR that in reaching a decision as to whether an exception applies, courts will undertake an analysis of the facts, regulatory scheme involved, the nature of the interests involved including the level of public interest involved, and the polycentricity of the issues and the ability of a statutory forum to determine them.

42. In our considered view, while section 40 (2) has been amended, the fundamentals that informed the need for IDRM being the first port of call remain intact. The need to underwrite party harmony and cohesion while ensuring strong structures of democratization within political parties remains critical.

43. The amendment to section 40(2) renders it necessary for us to offer guidance on what, in our understanding, an attempt at invoking IDRM would involve.

44. Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law.

45. Furthermore, the party to a dispute should also show that, among others:i.The unavailability of the organ to resolve disputes;ii.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute; iii. Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;iv.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.

46. The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011.

47. We emphasize that IDRM is neither a dress rehearsal, pit stop nor an ornamental provision in the Act. It serves a functional utility under Articles 38 and 159 of the Constitution of the Republic of Kenya.

48. The yardstick has been set in statute and the contours refined in case law. In the current case, there is no doubt that the 3rd Respondent was moved at least twice and returned a verdict in favor of the Complainant’s candidature. Whether the decision of the Central Committee nullifying the nomination of the Complainant and replacing the same with the 1st Respondent constitutes a fresh cause of action that should first be dealt with by the 3rd Respondent, is the issue.

49. Both the Complainant and 1st Respondent were contestants for the nomination to vie for the seating issue. Both were parties in the proceedings before the 3rd Respondent, where the issue in dispute was the party’s ticket for the seat. We have perused the statement of claim and can only see the Complainant seeking to enforce decisions of the 3rd party, as it is entitled to under section 41 of the Political Parties Act, 2011. Indeed, there is no contest to our powers to enforce party judicial organ’s decisions. It is also note-worthy that none of the Respondents have challenged the decisions of the 3rd Respondent, as they were entitled to. The same are, therefore, deemed final and binding on the parties.

50. We are, therefore, unequivocally clear that the Complainant is properly before us. His dispute was properly processed by the 3rd Respondent and he now seeks to enforce the same through this Tribunal. We are also of the view that this Tribunal is properly seized of the matter both under section 40 and 41 of the Political Parties Act, 2011.

51. We now turn to the second issues as framed.

hat orders should issue in this matter? 52. The Respondents advance that the central committee of the party decided to annul the nomination of the Complainant on account of violence attributable to him. This, is of course, is denied by the complainant.

53. Fundamentally, though, three issues arise out of this line of argument by the Respondents. Firstly, were the issues of violence fully decided by the 3rd Respondent? In other words, did the central committee possess the requisite mandate to overturn the decision of the 3rd Respondent?

54. Secondly, if the answer to the first question is in the affirmative, was the complainant given an opportunity to defend himself before the said central committee? And, thirdly, what is the effect of the decision of the central committee on the decisions of the 3rd Respondent, and, by extension, on these proceedings?

55. On the first issue, there is no doubt that the 3rd Respondent is the sole judicial organ of the party established under Rule 19 of the ODM Party Primaries and Nomination Rules, and charged with the responsibility of resolving disputes that arise out of the party’s primaries and nominations.It is an organ specifically recognized under section 40 (2) of the Political Parties Act, 2011. Disputants are required to first settle their grievances with respect to party primaries through the 3rd Respondent. If dissatisfied, a disputant, including the political party, can escalate the dispute to this Tribunal and, thereafter to the High court, and court of Appeal, if need be.

56. There is no role for any other organ of the party to exercise the judicial function of the 3rdRespondent. If a party organ is aggrieved with the decision of the 3rd Respondent, an Appeal mechanism is provided. No party organ can usurp, countermand or even supplant the decisions of lawfully established judicial organs. To entertain the alternative argument would be a recipe for chaos and undermine the judicial authority of tribunals and courts. Court decisions would amount to nothing as executive organs would willy-nilly set them aside and replace them with their own findings. We dare add that the rule of law would also be under acute threat.

57. We reiterate that if the party hierarchy was unhappy with the decision of its IDRM Appeal’s Tribunal it should have followed the law and challenged the decision before this Tribunal, not to purport to circumvent the decision through decisions of amorphous organs purporting to exercise appellate judicial powers.

58. When the Tribunal asked counsel to clarify where the central committee of the party drew its powers to discipline or withdraw the nomination of a candidate, it was explained that these powers were delegated by the National Executive Committee. No provision of the ODM party constitution were cited in support of this proposition.

59. We have perused the ODM constitution and it clear to us that the party has an elaborate disciplinary process and organs established. The rules governing the discipline of members are also very succinct. While the party argued before us that it had invoked the central committee’s powers to discipline the complainant over allegations of violence leading to withdrawal of his nomination, it is clear that the committee possess no such powers nor was it the party’s disciplinary committee. Neither Article 7. 5 nor 7. 5A that establish the 4th Respondent’s National Executive Committee and its Central committee, respectively donate disciplinary powers to either organ. Article 8. 3 of the 4th Respondent’s constitution establishes a disciplinary committee, with its powers and procedures detailed in Article 8. 4. The purported actions of the Central Committee were, therefore, not only ought rightly, ultra vires, and a breach of the party’s constitution, but were also unlawful, bereft of jurisdiction, null and void ab initio.

60. We also find that the central committee’s usurpation of the 3rd Respondent’s duties and those of the party’s disciplinary committee is an act that violates at least two principles of good governance of political parties: separation of powers; and fair trial. Political parties are creatures of the Constitution. Articles 38 and 91 give the general principles of governance of political parties, while the Elections Act, 2011, augments the Constitution by supplying specific regulatory edicts.

61. Political party organs mimic or approximate state organs in the fashion of Montesquieu ’shall owed doctrine of separation of powers. The party constitution creates, allocates, disperses powers, while creating checks and balance to the powers allocated. Judicial organs play a critical role in this framework of checks and balances. It is the vanguard and bulwark of the rights of members against potential excesses of the executive’s organs.

62. While the aspirations of deepening democratic engagement through strong idealistic political parties is an aspiration we have curved out for ourselves in Articles 10, 38, and 91 of our Constitution 2010, twelve years later, political party leadership should have evolved to appreciate that leadership in political party organs is a shared responsibility that is held in trust for the party members who have chosen to exercise their freedom to associate under the party so as to achieve their political rights and aspirations as guaranteed under Article 36 and 38 of the Constitution.

63. Of course, party organs don’t operate in silos. While working in harmony to achieve the goals of the party, the party organs must exercise restraint, a healthy social distancing and respect of the roles and boundaries of each organ created under its constitution and other instruments. The executive cannot lord itself over judicial or other bodies, nor can it exercise the role of the National Elections Board. The 4th Respondent, a party significantly funded by the state should, more than others, be acutely aware of this principle.

64. A reading of the Respondent’s Party Primaries and Nomination rules shows that the role of determining candidates elected or nominated to fly the party’s flag in elections is the sole preserve of the 2nd Respondent, not the NEC or central committee. This role is crafted in Article 7. 11 of the 4th Respondent’s constitution in the following words:“There is hereby established the Orange Democratic Movement National Elections Board whose mandate is to plan, organize, direct, conduct, supervise and or coordinate all Party elections and nominations of candidates.”

65. Even if the Central Committee were exercising legitimate powers, it would have been incumbent upon it to ensure compliance with the universal basic rules of natural justice, particularly by granting the complainant a right to be heard before condemning him or significantly affecting his rights. Although it was submitted that the 3rd Respondent invited the Complainant to the central committee’s meeting by telephone call, there is no evidence laid before us to substantiate that claim. It is the obligation, always, of the person alleging to prove his allegation. See sections 107,108 and 109 of the Evidence Act Cap. 80 of the laws of Kenya. It is trite that proceedings affecting people’s rights and interests that do not meet these basic rules of natural justice, and which are taken in contravention of the Fair Admirative Action Act, are a nullity.

66. 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.

67. We find merit in the Complainant’s claims.

Who bears the costs of these proceedings? 68. Costs follow the event. These proceedings would have not been necessarily had the Respondents not taken the decisions and positions they did and respected the will of the party electorate in Gem constituency. We, therefore, find no difficulty in awarding the complainant costs of these proceedings.

69. We wish to thank counsel on both sides for their well-researched, reasoned and persuasively put submissions.

Disposition 70. In the upshot, we make the following orders:a.The Complaint herein is allowed.b.The decisions of the 3rd Respondent are upheld.c.The 2nd and 4th Respondents are hereby directed to forthwith issue to the Complainant the final nomination certificate to contest for the Member of National Assembly for Gem Constituency, in any event within 24 hours of this Order, and to forward his name to the Independent Electoral and Boundaries Commission.d.The Respondent shall bear the Complaints costs of this Complaint.It is so ordered.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 30TH DAY OF APRIL 2022Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – PresidingHon. Fatuma Ali MemberHon. Walubengo SifunaMember