Shimenga v Amani National Congress Party (ANC) & 2 others; Independent Election and Boundaries Commission (IEBC) (Interested Party) [2022] KEPPDT 1051 (KLR)

Shimenga v Amani National Congress Party (ANC) & 2 others; Independent Election and Boundaries Commission (IEBC) (Interested Party) (Complaint E002 (KK) of 2022) [2022] KEPPDT 1051 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1051 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 (KK) of 2022

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

May 4, 2022

Between

Davis Kubasu Shimenga

Complainant

and

Amani National Congress Party (ANC)

1st Respondent

Amani National Congress Party National Election Board

2nd Respondent

Ramadhan Butichi

3rd Respondent

and

Independent Election and Boundaries Commission (IEBC)

Interested Party

Ruling

1. On the April 26, 2022 the Complainant filed the complaint which was heard and final orders issued on April 28, 2022 as follows:a.A declaration be and is hereby issued that the decision of the Amani National Congress Party (ANC) to issue the nomination certificate for Ikolomani Constituency to Ramadhan Butichi, the 3rd Respondent herein is illegal and therefore null and void.b.An order issue and is hereby issued directing that the 1st and 2nd Respondents do issue the nomination certificate for Ikolomani constituency MP candidate on the Amani National Congress Party to David Kubasu Shimenga.c.That the costs of this complaint are awarded to the Complainant as against the 1st, 2nd and 3rd Respondents jointly and severally.d.That notification of this order issue to the Interested Party.

2. The decision of this Tribunal was read in an open virtual session where the Advocate for the Complainant as well the Advocate for the Respondent had recorded their presence.

3. Counsel for the Respondents/Applicants thereafter filed the Notice of Motion Application dated April 28, 2022 under Certificate of Urgency together with the Supporting Affidavit sworn by Simon Mwangi Kamau seeking a stay of execution of the orders in the said judgment.

4. On April 30, 2022, this Tribunal having listened to parties determined that the Notice of Motion applicant filed by the Respondents/Applicants on April 28, 2022 is dismissed with costs.

5. The matter could have rested there, however the Complainant moved this Tribunal on April 30, 2022 by way of a Notice of Motion seeking the following orders:a.Spent.b.The Honorable Tribunal be pleased to cite Simon Mwangi Kamau, in contempt of the Orders issued on April 27, 2022 and the Orders issued on April 28, 2022 3. c.Consequent upon Order 2 above being granted, the Honorable Tribunal be pleased to order that Simon Mwangi Kamau be summoned to attend the Tribunal to Show Cause why he should not be committed to civil jail for a term not exceeding six (6) months for disobeying the Tribunal’s Orders.d.Consequent upon Orders 2 and 3 above being granted, the Honorable Tribunal be pleased to order that Simon Mwangi Kamau be committed to civil jail for a term not exceeding six (6) months for disobeying the Tribunal’s Orders issued on April 27, 2022 and April 28, 2022. e.The Interested Party, the IEBC, be and is hereby directed to deem and gazette the Complainant, David Shimenga Kubasu, as the 1st Respondent’s nominee and candidate for the position of Member of National Assembly for Ikolomani Ward.f.The candidature of the complainant, David Shimenga Kubasu be processed by the Interested Party, the IEBC, be processed on the strength of the Orders of the Tribunal.g.The costs of this Application be borne by Simon Mwangi Kamau.

6. The said application is brought under Sections 41(3) of the Political Parties Act; Sections 1A, 1B & 3A; Article 159 2 (d) of the Constitutionand all other enabling provisions of the law.

7. The said application is founded on the following grounds: -i.There are strict electoral timelines that are cast in stone;ii.By the Order of this Court, vide the Judgment issued in the presence of Counsel for the Complainant and the Respondents on April 28, 2022 at about 4 PM, this Tribunal ordered the 1st and 2nd Respondent to issue the Complainant with the nomination certificate for Ikolomani Constituency Member of National Assembly.iii.By the same judgment, the nomination of the 3rd Respondent by the 1st and 2nd Respondents was found illegal and thus nullified.iv.The Tribunal had on April 27, 2022 granted orders restraining the 1st and 2nd Respondents from forwarding the name of the 3rd Respondent to the Interested Party as its nominee for the subject position.v.Knowledge of the Orders of the Court is not in dispute.vi.The Alleged Contemnor, one Simon Mwangi Kamau, the Secretary General of the 1st Respondent in defiance of the Orders of this Tribunal forwarded the name of the 3rd Respondent to the Interested Party as the 1st Respondent’s Nominee for Member of National Assembly for Ikolomani Constituency.vii.Section 41(3) of the Political Parties Act provides that;i.A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates Court but the Tribunal shall have the powers of the High Court to punish for any acts or omissions amounting to contempt of the Tribunal.viii.The contemnor has brought disrepute to the dignity of the Honorable Tribunal and this is a recipe to anarchy.ix.The Honourable Tribunal issued Orders and not Suggestions and this position has to be reiterated in the loudest voice possible.

8. The application is supported by the Affidavit of David Shimenga Kubasu sworn on April 29, 2022.

The Applicant’s Case 9. The Complainant submits that this Tribunal delivered its judgment and gave its orders in good time for the Respondents through the alleged contemnor to comply within the election timelines.

10. He goes on, through his Counsels on record, to note that by the Order of this Tribunal, vide the Judgment issued in the presence of Counsel for the Complainant and the Respondents on April 28, 2022 at about 4 PM, this Tribunal ordered the 1st and 2nd Respondent to issue him with the nomination certificate for Ikolomani Constituency Member of National Assembly.

11. By dint of the same judgment, the nomination of the 3rd Respondent by the 1st and 2nd Respondents was found illegal and thus nullified.

12. The Complainant submits that even before the judgment this Honourable Tribunal had on April 27, 2022 granted orders restraining the 1st and 2nd Respondents from forwarding the name of the 3rd Respondent to the Interested Party as its nominee for the subject position.

13. The Complainant states that the Honourable Tribunal issued Orders and not Suggestions and this position has to be reiterated in the loudest voice possible.

14. In concluding he submits, through his Counsels on record that the prayer for deeming nominated is very much legal as was confirmed by the Court of Appeal inKatiba Institute v President of Republic of Kenya & 2 others; Judicial Service Commission & 3 others (Interested parties)(Petition 206 of 2020) [2021] KEHC 442 (KLR) (Constitutional and Human Rights) (21 October 2021) (Judgment).

15. He thus asks that his application succeed.

16. The Respondents though served did not file any response.

The Alleged Contemnors Case 17. The alleged Contemnor through his Advocate on record submits that the application herein is fatally defective as the applicant has not moved court under the appropriate applicable law namely; section 5(1) of the Judicature Act and part 81 of the Englandcivil procedure rules of 2012.

18. He submits that the application is fatally defective for reason that the applicant has not provided evidence of personal service of the application as required under part 81. 6 of the England Civil procedure Rules and the alleged presence of the alleged contemnor in the proceedings during delivery judgement is not evidence or substantiated.

19. He further submits that the application is fatally defective as the applicant has neither adduced evidence of the breached order nor an order with a penal notice as required under rule 81. 9(1) of the rules.

20. It is their case that the application is based on mere conjecture as no evidence of the alleged submission of the 3rd respondent’s name to the Independent Election and Boundaries Commission has been provided.

21. As such the application has not satisfied the threshold of the grant of the orders sought in a contempt of court application namely; the terms of the orders, knowledge of the orders, evidence of disobedience and that the alleged contemnor acted deliberately as enumerated in the case ofSamuel MN Mweru Vs National Land Commission & 2 others (2020) eklr

22. He submits that the application herein be for dismissal with costs.

Issues For Determination 23. The following are issues before us:i.Whether the said Simon Mwangi Kamau is in contempt of this Honourable Tribunal’s orders.ii.What orders should issue.

Analysis Whether the said Simon Mwangi Kamau is in contempt of this Honourable Tribunal’s orders issued in its Judgement of April 28, 2022 24. As we start analysis of this issue, we find the words of the Court of Appeal in the case of Fred Matiang’i, The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 Others [2018] eKLR, very illuminating:“…When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”

25. We cannot put it any better. It is the responsibility of every judicial authority to underwrite the observance of its orders; and to jealously guard the integrity and reputation of its decisions. This obligation, and, indeed, power, is immutable, unfettered, non derogable and non-negotiable

26. The orders set out in the operative part of our Judgement were clear. No request for clarification or review was made to us at all. The Advocate for the alleged Contemnor was of the view that alleged technicalities in the application, such exclusion of certain laws in the citation on the face of the application and proof of service should be the focus in determining this application.

27. In other words, the alleged contemnor, through his counsel on record wants the fact that the alleged contemnor swore the affidavit in support of the application for stay to be disregarded in determining whether he knew that the Tribunal had issued judgment that required his action. That the Respondent cannot, therefore, be found to be in contempt.

28. Breach or contempt of orders of courts and tribunals depict through direct acts of violation or omissions. In our Judgement, we quashed or annulled the ANC party’s decision to issue a nomination certificate to the 3rd Respondent in the complaint and that a certificate issue to the Complainant, for the position in issue. The orders were succinct.

29. The alleged contemnor, responsible for executing the party mandate and in deed swore affidavits confirming such authority has not shown how if at all the party has proceeded to execute this Tribunal’s directives issued vide the said judgment delivered in the presence of his counsel and in respect of which he swore an affidavit seeking stay. Our order required the party to issue a certificate to the Complainant as its nominee for the position in issue. This was an obligation borne by the Contemnor as the Secretary General of the ANC party which was the import of our judgement. Failure to do so is in contravention of our Judgement.

30. The alleged contemnor chose not to file an Affidavit in response to the application, instead choosing to file a Grounds of Opposition. The facts as advanced by the Applicant are, thus, uncontroverted.

31. The inescapable conclusion that we must reach, as we do, is that the said Simon Mwangi Kamau is in breach and contempt of our orders made in our Judgement of April 28, 2022.

What orders should issue in this matter? 32. We have been invited by the Applicant to find the said Simon Mwangi Kamau in contempt of the orders of this Tribunal and to issue a notice to show cause why he should not be committed to civil jail for at least six (6) months.

33. Additionally, we have been asked to order that the Interested Party, the IEBC, be directed to deem and gazette the Complainant, David Shimenga Kubasu, as the 1st Respondent’s nominee and candidate for the position of Member of National Assembly for Ikolomani Ward.

34. We have reviewed this matter in its totality. We are guided by the need to deepen our democratic ideals through judicial pronouncements that ensure the respect and obedience of decisions of the Tribunal, while issuing proportionate reliefs.

35. Which a Notice to Show Cause why she should not be committed to civil jail shall issue.

Disposition 36. In the upshot, Application dated April 30, 2022 succeeds, and we make the following Orders:i.The said Simon Mwangi Kamau, Secretary General of the 1st Respondent, is found to be in Contempt of the Judgement and Orders of this Tribunal made on April 28, 2022;ii.A Notice to Show Cause to issue against the said SImon Mwangi Kamau to appear before the PPDT Kakamega Bench sitting at the Milimani Law Courts on May 9, 2022 at 9 am.iii.Costs of this application.

DATED THIS 4TH DAY OF MAY 2022. M. L. ODONGO(PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)DR. LYDIAH WAMBUI(MEMBER)