Wilson Ongele Ochola v Orange Democratic Movement, National Elections Board & Abel Osumba Atito [2017] KEPPDT 20 (KLR)

REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. 145 OF 2017

WILSON ONGELE OCHOLA..................................COMPLAINANT

VERSUS

ORANGE DEMOCRATIC MOVEMENT.............1STRESPONDENT

ORANGE DEMOCRATIC MOVEMENT

NATIONAL ELECTIONS BOARD.......................2NDRESPONDENT

ABEL OSUMBA ATITO.........................................3RDRESPONDENT

JUDGMENT

Background

1. The present Complaint relates to the 1st Respondent’s nominations for Member of the County Assembly, Utalii Ward, Ruaraka Constituency conducted on 30 April 2017.

2. The Claimant approached this Tribunal by way of a Statement of Claim dated 8 May 2017. He asserted that he had emerged the winner of the said nomination exercise. However, following an eruption of chaos at the polling centre, the results were not declared. Nevertheless, at the constituency tallying centre, the 3rd Respondent was declared winner by the Constituency Returning Officer contrary to the 1st Respondent’s nomination rules.

3. Being aggrieved by the said declaration, the Claimant approached the 1st Respondent’s Special County Appeals Tribunal (hereinafter IDRM) challenging the Constituency Returning Officer’s declaration. The IDRM, in its decision dated 6 May 2017, nullified the said declaration and nomination certificate issued to the 3rd Respondent and directed that the matter be referred to the 2nd Respondent for a determination as to the candidate for the said electoral post. However, pending the determination of the matter by the IDRM, the 3rd Respondent was issued with the nomination certificate dated 3 May 2017 by the 2nd Respondent.

4. The Claimant took issue with the issuance of the certificate to the 3rd Respondent on the basis that it was not in accordance with the 1st Respondent’s nomination rules and constitution and that it was done irregularly. In addition, the Claimant averred that the 3rd Respondent was disqualified from vying in the said nomination exercise, having failed to pay Kshs. 200,000 penalty imposed by the 1st Respondent’s Disciplinary Committee vide its verdict of 14 April 2017 as a precondition for his participation in the nomination exercise. It was therefore the Claimant’s assertion that the 3rd Respondent ought not to have even contested the said nomination exercise.

5. In support of his Claim, he annexed the IDRM finding dated 6 May 2017, the nomination certificate issued to the 3rd Respondent dated 3 May 2017 and a demand letter to the 2nd Respondent seeking the revocation of the 3rd Respondent’s nomination.

6. An affidavit purportedly signed by Counsel for the 1st Respondent, Anthony Moturi, dated 10 May 2017, contended that the certificate had been issued by the 2nd Respondent mistakenly and that the same was regretted. It was also averred that the 3rd Respondent had not complied with the Disciplinary Committee penalty within 7 days as contended. Moreover, it was conceded that the nomination certificate had been issued while the IDRM decision was pending and it should therefore not be allowed to stand.

7. The 3rd Respondent contended that he had, at the time of the nomination exercise, already paid the fine imposed by the Disciplinary Committee. Further, in relation to the issuance of the nomination certificate, he conceded that the same had been issued following the declaration of the Returning Officer in Ruaraka Constituency, but he maintained that the same had been recalled pursuant to the IDRM decision and that he was not in possession of the same.

8. He contended that this Tribunal does not have the jurisdiction to award a nomination certificate to the Claimant as that was the preserve of the 1st Respondent. He prayed that the 1st Respondent be directed to issue him with a nomination certificate as the duly nominated candidate for the 1st Respondent in respect of Utalii Ward.

9. The matter was heard and determined by a differently constituted bench of this Tribunal and a decision made on 13 May 2017. The Tribunal directed that the Claimant be issued with the nomination certificate. Being aggrieved by the said decision, the 3rd Respondent appealed to the High Court impugning the decision of the Tribunal on among other grounds: that the Tribunal erred in finding that he had not complied with the disciplinary decision, that the Tribunal erred in finding that he was not the declared nominee, that the Tribunal erred in directing that the nomination certificate be issued to the Claimant and that the Tribunal erred in relying on documents prepared by an unqualified person acting for the 1st Respondent.

10. By a judgment dated 24 May 2017, the High Court found that the Tribunal had failed to consider material evidence and directed that it be remitted to the Tribunal for hearing by a fresh panel.

11. The parties appeared before us on 25 May 2017. They were directed to file their written submissions by 26 May 2017. Noteworthy is the fact that the 1st and 2nd Respondents had also filed a review application dated 16 May 2017, seeking to have the Replying Affidavit of Mr Antony Moturi dated 10 May 2017 expunged from the record and that the Tribunal reconsider the matter in the absence of the said affidavit. It was their contention that the affidavit was not executed by an officer of the 1st Respondent, and therefore it was in the interests of justice that the same be expunged. This review application had not been prosecuted by the time that the High Court decision directing a retrial by a fresh panel emanated.

12. With regard to the current proceedings, counsel for the 1st and 2nd Respondents prayed that the affidavit dated 16 May 2017 serve as their reply to the Claim. The affidavit dated 16 May 2017 contended that the 3rd Respondent was declared the winner and a nomination certificate issued to him. Thereafter, the same was withdrawn following the IDRM decision directing that a fresh nominee be arrived at by the party in accordance with the election and nomination rules.

13. The Claimant contends that no documentary evidence was adduced to indicate that the counsel on record at the time was not authorised to act on behalf of the 1st and 2nd Respondents.

Issues for Determination

14. From a review of the documents on record it appears to us that two issues present for determination:

a. Whether the issuance of the nomination certificate to the 3rd Respondent was lawful

b. What reliefs, if any, should the Tribunal grant

Analysis

a. Whether the issuance of the nomination certificate to the 3rdRespondent was lawful

15. The Claimant contends that the 3rd Respondent should have been disqualified on account of not having paid a penalty conferred by the Disciplinary Committee. The 3rd Respondent maintained that he paid the said fine and adduced a receipt dated 16 April 2017 evidencing the same. The Claimant has taken issue with this receipt on the basis that it was issued on a Sunday, a non-working day. He therefore contended that the same was not authentic.

16. We note that the issuance of a nomination certificate to the 3rd Respondent was not in line with the party laws and indeed the 3rd Respondent himself did aver that the same had been withdrawn.

17. We also note that the issue of non-payment of fines was raised at the IDRM, and had also been referred to the Disciplinary Committee. It is noteworthy that the IDRM did not address itself to the issues that had already been determined by the Disciplinary Committee (which had the competency to address it and indeed had) but restricted itself to issues of electoral malpractices and proceeded to find that the 3rd Respondent’s nomination need be suspended and interim certificate withdrawn.

18. The decision by the Disciplinary Committee had been delivered on 14 April 2017. On 3rd May 2017 the 3rd Respondent was issued with a nomination certificate. This was at a time when the IDRM process was yet to concluded. The IDRM process culminated in its decision of 6 May 2017.

19. The Claimant prayed that this Tribunal issue him with a nomination certificate as the duly nominated candidate for Member of the County Assembly, Utalii Ward. The basis for this prayer is that the tallying of results revealed that he was the winner. We note that he did not supply the said tallies in support of his assertion. While the IDRM decision is adduced, it never confirmed his alleged win, but did proceed to annul the 3rd Respondent’s certificate.

20. The 3rd Respondent conceded that he participated in the IDRM proceedings wherein his provisional nomination certificate was cancelled. Moreover, he contends that he did not submit evidence before that Tribunal which if he had, would have altered the finding of the IDRM. However, he does not explain, to the satisfaction of the Tribunal, why the DVD evidence he relies on was not adduced at the IDRM proceedings; neither did he seek a review of the IDRM’s findings on the basis of this evidence.

21. In addition, it is unclear on what basis a nomination certificate dated 9 May 2017 was issued to the 3rd Respondent. By his own admission, the 3rd Respondent was issued with a nomination certificate dated 9 May 2017, on 25 May 2017, when there was in effect a High Court decision directing that the Tribunal consider the matter afresh. The issuance of the said certificate can therefore not be said to have been done in accordance with the party constitution and election and nomination rules.

22. Moreover, it would defeat the directive of the High Court for a fresh hearing of the matter for the 1st Respondent to issue him with a certificate while proceedings before this Tribunal are still pending. We therefore find that the issuance of the nomination certificate to the 3rd Respondent was not lawful, and the same cannot be allowed to stand.

Orders

23. In light of the foregoing, we order as follows:

a. The nomination certificate currently issued to the 3rd Respondent be and is hereby declared null and void.

b. The 1st Respondent will forthwith proceed, in accordance with its constitution, election and nomination rules, to nominate its candidate for Member of County Assembly for the Utalii Ward, Ruaraka Constituency.

c. We make no orders as to costs.

Dated at NAIROBI this 31st DAY of MAY 2017

1. M. O. Lwanga ……..……….…………………………..(Presiding Member)

2. Desma Nungo ………….………….………….………. (Member)

3. Paul Ngotho ………….…………………….…………. (Member)

4. Dr. Adelaide Mbithi ………….………….…………. (Member)