Opiyo v Orange Democratic Movement Party (ODM) & another; Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 946 (KLR)

Opiyo v Orange Democratic Movement Party (ODM) & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E012 (KSM) of 2022) [2022] KEPPDT 946 (KLR) (3 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 946 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E012 (KSM) of 2022

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

May 3, 2022

Between

Geofrey Otieno Opiyo

Complainant

and

Orange Democratic Movement Party (Odm)

1st Respondent

Zakayo Ong’Ondo Okuma

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

INTRODUCTION 1. This matter concerns the nomination of the 2nd Respondent as Candidate for the Member of County Assembly for South Kaispul Ward, in Kaispul Constituency under the Orange Democratic Party. The party primaries were held on 14th April 2022. The Complainant and the 2nd Respondent were contestants in the said primaries. The 2nd Respondent was declared the winner of the contest and awarded the 1st Respondent’s Interim Nomination Certificate. The Complainant was aggrieved by the outcome and challenged the result of the election before the 1st Respondent’s Appeals Tribunal, sitting in Kisumu on the 16th April 2022 in (Appeal No. 21 of 2022. )

2. The ODM Party’s Appeals Tribunal allowed the Complainant’s Appeal, and nullified the nomination of the 2nd Respondent and the certificate that was issued to him. The said judgment was served upon the National Election Board of the 1st Respondent on the 26th April 2022. Afterwards, The National Elections Board vide a notice dated 27th April 2022 gave a direct nomination to the 2nd Respondent. The NEB claimed, that it was doing so pursuant to the orders of the ODM Appeals tribunal which had directed them to conduct fresh nominations, and that after consulting with the Party’s Central Committee, they had decided to adopt direct nomination as their preferred method for South Kaispul Ward. The Complainant was aggrieved by this decision and approached this Tribunal for relief.

3. The matter came up for hearing on 30th April 2022 when the parties argued the matter orally. The Complainant was represented by Mr. Ayieko; Mr. Odera and Mr. Kopere for the 2nd Respondent; Mr. Donex Juma appeared for the Interested Party. There was no appearance for the 1st Respondent.

4. The Complainant filed an affidavit of service dated 27th April 2022 confirming service upon the Respondents.

THE COMPLAINANT’S CASE 5. In the main, the Complainant urges this Tribunal to nullify the 2nd Respondent’s direct nomination and, instead, to order a fresh exercise to be conducted by the 1st Respondent by way of universal suffrage.

6. Counsel for the Complainant Mr. Ayieko advanced, that the nomination of the 2nd Respondent did not meet the threshold set by the Constitution of Kenya 2010. Further, that nomination was only conducted in 5 out of 14 polling centres which are listed in the Complaint. Moreover, that nominations did not start on time rather that they started way past 12. 00 pm.

7. Apart from that, counsel submitted that the Presiding Officers and Deputy Presiding Officers announced by the ODM National Elections Board, were not those who eventually conducted the election, but that strangers had taken control of the process. Moreover, that they expressed blatant bias and favoritism for the 2nd Respondent. The Complainant also claims that his agents were not allowed to inspect the voting gadgets.

8. It is the Complainant’s submission, that the Presiding Officers closed the polling stations before5. 00 pm while some of the members of the party were in the queue waiting to vote and that the tablets were taken at 5. 00 pm, without allowing the agents of the aspirants to check or verify the votes. Furthermore, that the results were not declared at the polling station, and that even though the tallying centre was only 45 minutes away from Ayoro Polling Centre they arrived at 8. 00 pm raising further questions as to the validity of the results. Furthermore, that these actions disenfranchised the voters.

9. Counsel explained that chaos erupted at the Tallying centre after it was seen that the Returning Officer was reading the results from a piece of paper, without any verification from the polling centre. What is more, that the results differed from the results Complainant had received from his agents, which he claims shows he had won the nomination with 1069 votes. In spite of that, the Returning Officer claimed that the 2nd Respondent got 370 votes and that the Complainant only got 350 votes. A difference of 20 Votes.

10. Counsel submitted that the 2nd Respondent is not qualified for election, further facts of which were captured in the Complainant’s pleadings. Moreover, that as per the affidavit of Collins Ogweno who was the Complainant’s agent; passwords arrived at the polling centers at 1. 00 pm, and that by 5. 00 pm the Presiding Officers had closed the polling stations while other voters were still in line to vote. He submits that this disenfranchised the voters.

11. Furthermore, that no results were declared at the polling stations the complainant listed several witnesses in his pleadings who swore affidavits to that effect. Moreover, that one of the Presiding Officers at Ayoro Polling Station tried to convince him to vote for the 2nd Respondent, not knowing that he was also a candidate in the election.

12. Consequently, the ODM Appeals Tribunal nullified the election of the 2nd Respondent granting the following orders.i.An Order that the ODM Nominations conducted in South Kaispul Ward Kaispul Constituency on14th April 2022 was not free and for failure to accord the Appellant equal treatment and his competitors an unfair advantage.ii.An Order of Nullification of the ODM Nominations conducted in South Kaispul Ward Kaispul Constituency on 14th April 2022. iii.An Order of fresh Nominations for South Kaispul Ward Kaispul Constituency on 14th April 2022. iv.An Order of Fresh Nominations for South Kaispul Ward Kaispul Constituency. v. Costs of this Appeal.

13. In spite of that, the 1st Respondent proceeded to issue a direct ticket nomination to the 2ndRespondent. Counsel submitted, that the parties were to be restricted to universal suffrage as the nomination method and that the 1st Respondent’s actions, denied the voters of Kaispul their choice in electing who they wished to represent them. Furthermore, that the previous elections had been nullified due to the irregularities and illegalities in the nomination process as submitted herein and that the way forward was to subject the parties to nominations by way of universal suffrage.

Respondent’s Case 14. Mr. K’opere for the 2nd Respondent began by stating that orders of this tribunal were given on27th April 2022 and served on 28th April 2022, and that the list of direct ticket nominees had already come out before the orders were issued. He also stated, that the proceedings were served on the 28th April 2022. Furthermore, that all the issues raised had been litigated and defended in the ODM Tribunal which nullified the election and allowed the Appeal. Additionally, he stated that the judgment directed the National Elections Board (NEB) to nominate candidates for South Kaispul Ward.

15. Further, that Rule 23 and Rule 19 (2) of the ODM Party Primaries and Election rules allows the party dissatisfied by the mode of nominations to file an appeal to the National Appeals Board. He avers that the rules were very clear and that the National Elections Board had various options, when it came to conduct of nominations. Consequently, the complainant ought to have gone to the ODM Appeals Board. What is more, that they effectively violated Section 40 (2) of The Political Parties Act by coming to this Tribunal.

16. Counsel submitted that the Complainant could not re litigate the same matters before us, he went on to say that the Complainant had conveniently chosen not to read the last paragraph of the Tribunal’s judgment where it was stated that, “NEB would nominate a candidate to represent the Party in South Kaispul Ward pursuant to Rules 8 and 23 of the ODM Primaries Nomination Rules.”

17. Counsel submitted on the issue of competency to qualify for an election, stating that Rule 16 (5) was a replica of Article 191 (3) of the Constitution and that the level of competency required was a matter for the party to determine. He explained that under Rule 21 the National Elections Board verifies the documents and is able to allow the party to participate in the nomination process from the documents submitted. Also, that it was not the Claimant who should raise the issue of competency. Accordingly, counsel submitted that the matter should be dismissed.

18. Mr. Odera for the 2nd Respondent began by stating that the Complaint is an attempt to relitigate a decided matter, and that no appeal or review has been done. Apart from that, he submitted that the Complaint was defective and that the Complainant has made averments based on information that he got from his agents, which amounts to hearsay. Further, that on the issue of votes obtained from each polling station, the Complainant relied on hearsay evidence, from people who were in his direct employ and therefore derived a personal benefit from him.

19. Counsel explained, that the standard of proof in election matters is slightly below Beyond Reasonable Doubt and slightly above a Balance of Probability and that the evidence has not met this standard. He stated that the Complaint amounted to harassment as the matter had already been heard and determined in (PPDT 005 of 2022) by this Tribunal.

20. Consequently, the 2nd Respondent filed a Notice of Preliminary Objection dated 29th April 2022, on the grounds that an appeal to this Honorable Tribunal is not an excuse to re litigate matters, which were raised before the party’s IDRM, rather it was to litigate on any alleged fault with the decision of the IDRM of the Party.

21. In conclusion, Counsel urged us to uphold the decision of the 1st Respondent to issue the 2nd Respondent with a direct nomination and dismiss the appeal with costs

Tribunal’s Analysis And Findings 22. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Honourable Tribunal has the Jurisdiction to entertain this Matter?ii.Whether the Direct Nomination was conducted in substantial compliance with the law?iii.Who bears the costs of this case?

23. We will address the issues set out above in the sequence of their listing

Whether this Honourable Tribunal has the Jurisdiction to entertain this matter? 24. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors Ltd (1969) EA 696, where it was held that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

25. In deed the learned court did in R v. Karisa Chengo [2017] eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

26. Section 40 of the Political Parties Act states as follows.40. (1)The Tribunal shall determine—((b)Disputes between a member of a political party and a political party;(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.41. (1)The Tribunal shall determine any dispute before it expeditiously, but in any case, shall determine a dispute within a period of three months from the date the dispute is lodged.(2)An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court.(3)A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates Court

27. The Respondent submits that the Complainant ought to have gone to the ODM National Appeals Tribunal and that they effectively violated Section 40 (2) of the Political Parties Act by coming to this Tribunal. However, the Complainant challenged that assertion stating that the Party doesn’t have proper enforcement mechanisms in the event of the violation of the orders of their Appeals Tribunal. And that this necessitated the filing of this matter before this Tribunal.

28. From a reading of the aforementioned sections of the Political Parties Act, as well as cited authorities it is clear that the dispute at hand is a dispute between, a Member of a Political Party and a Political Party and falls within the definition of Section 40(1) (b) of the Act. The issue of whether this Tribunal has jurisdiction to entertain this matter thus falls to the question of whether the Complaint has provided sufficient evidence of an attempt at subjecting the dispute to the Party IDRM, under Section 40 of the Act. It is our opinion that the Complainant has demonstrated an attempt to pursue Internal Dispute Resolution Mechanisms with the Party by filing an Appeal in the 1st Respondent’s Tribunal.

29. Further, that the issue in question is whether this action is a fresh action before this Tribunal or continuing matter by virtue of being filed in PPDTC E005 of 2022. We find that this is not a fresh matter rather it is an application seeking the enforcement of orders granted by the Appeals Tribunal due to the absence of a proper enforcement mechanism by the ODM Appeals Tribunal and is therefore not a fresh action.

30. We also note that Section 40 (2) of the Political Parties Act does not limit the jurisdiction of this Tribunal to appeals, and is clear that the Tribunal has jurisdiction to determine disputes in the circumstances provided for under that section, including where IDRM is not available, unsuitable, will occasion delay or frustrate the ends of justice. Furthermore, that the Political Parties Act grants this Tribunal powers to enforce its decisions in the same manner as that of the Magistrates Court.

31. The purported nomination of the 3rd Respondent was pursuant to the process impugned before the party tribunal and the subject of the current proceedings.

32. Accordingly, we dismiss the Preliminary Objection and rule that we have the jurisdiction to hear and determine this matter.

33. The Preliminary Objection is accordingly dismissed.

Whether the Direct Nomination was conducted in substantial compliance with the law? 34. It is the Complainant’s argument that the terms settling the ODM Tribunals Order were not complied with by the Respondents. Furthermore, that the National Elections Board of the ODM Party proceeded with the nominations without communication, consensus or opinion polls as provided for in the ODM Party Primaries and Nomination Rules.

35. After hearing the parties herein and considering the submissions as well as the pleadings filed, our view is that the main issue that arises for consideration, is whether the 1st Respondent made the decision to issue a direct nomination to the 2nd Respondent in a fair and just manner.

36. Article 27 of the Constitution of Kenya speaks on the issue of equality and freedom from discrimination, where it provides as follows:Article 27. 1. Every person is equal before the law and has the right to equal protection and equal benefit of the law.

2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.

5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

37. Additionally, Article 47 of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that if a person is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

38. In the case of Pashito Holdings Ltd. & Another –vs- Paul Nderitu Ndungu & Others [1997] 1 KLR(E&L) it was stated as follows;“An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared to be no decision….”

39. Our view is that when the 1st Respondent decided that it would determine its candidate not by universal suffrage but by direct nomination, it became an administrative action and should have therefore, been subjected to fair procedure. The fact that Complainant was not given a chance to state why he thought he was the better person to fly the Party’s flag was a breach of his Constitutional Rights to equal treatment before the law.

40. We also sought to answer, what fresh nominations will entail, knowing that the 1st Respondent has interpreted this as an open cheque to determine which process in its nomination menu to use.

41. In Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others Petition 2B of 2014 [2014] eKLR the Supreme Court of Kenya adopted the words of Lord Griffiths in Pepper vs. Hart [1992] 3 WLR 1032 thus:“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted. (Emphasis added).”

42. The Supreme Court also referred to the House of Lords decision in Maunsell v. Olins [1975] AC373 where Lord Simon of Glaisdale stated that: “The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language.”

43. Furthermore, Aharon Barak in the text “Purposive Interpretation in Law” at page 111 explains that: “According to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose).”

44. The purposive interpretation avoids the shortcomings of the literal approach, namely absurd interpretations or those that appear to run counter to the purpose and functioning of the legislative regime.

45. Upon considering this matter, it is our view that a purposive interpretation reading of the judgment of the Appeals Tribunal, specifically the order instructing the 1st Respondent to conduct nominations, should be measured against contextual, schematic, and purposive considerations. Moreover, that the Appeal that was instituted on account of the irregularities and illegalities in the conduct of the nomination process, leading to the nomination of the 2nd Respondent as the Member of County Assembly for the South Kaispul Ward Seat. A purposive reading of the Order of the Tribunal, allowing the Appeal and directing the party to conduct nominations, cannot be held as having the meaning of conducting a direct nomination in the favour if the 2nd Respondent herein. It would defeat the whole essence of the annulment of his nomination, and make a mockery of the tribunal’s decision. Furthermore, that in allowing the Appeal, it was the Author’s intention to grant the reliefs prayed for by the Complainant on his Appeal and that the process that was being appealed against was a nomination by universal suffrage and not direct nomination.

46. In our decision in PPDTC E003 of 2022 Elisha Ochieng Odhiambo v Dr. George Jalango Midiwo and Others We stated at paragraph 68 as follows: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.

47. We therefore, find in favour of the Complainant and hereby dismiss the Preliminary Objection and set aside the direct nomination of the 2nd Respondent.

Who bears the costs of this matter? 48. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

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

Disposition 50. In the upshot we make the following Orders:i.We dismiss the 2nd Respondent’s Preliminary Objection;ii.We set aside and nullify the direct nomination of the 2nd Respondent;iii.We allow the Complaint and direct that the 1st Respondent conducts nominations by way of universal suffrage within 72 hours of this Judgement, and only employ other forms of nomination with the express consent of all candidates; andiv.Each party shall bear its own costs.

51. Those are the orders of the Tribunal.

DATED AT KISUMU AND DELIVERED IN OPEN COURT, THIS 3RD DAY OF MAY 2022_______________________________________HON. DR. WILFRED MUTUBWA OGW C. ARB VICE CHAIRPERSON – PRESIDING____________________________________HON. FATUMA ALI MEMBER_____________________HON. WALUBENGO SIFUNA MEMBERSIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBERTHE JUDICIARY OF KENYA.POLITICAL PARTIES DISPUTES TRIBUNAL (PPDT)KISUMU (SIAYA,KISII, NYAMIRA, HOMABAY, MIGORI) DATE: 2022-05-03 17:34:18+03The Judiciary of KenyaDoc IDENTITY: 1892726630339732044268267465 Tracking Number: