ODM National Election Board & another v Odhiambo & 2 others (Election Petition Appeal (Application) E004 of 2022) [2022] KECA 737 (KLR) (22 July 2022) (Reasons)
Neutral citation:
[2022] KECA 737 (KLR)
Republic of Kenya
Election Petition Appeal (Application) E004 of 2022
PO Kiage, M Ngugi & F Tuiyott, JJA
July 22, 2022
Between
ODM National Election Board
1st Applicant
Orange Democratic Movement Party
2nd Applicant
and
Edwin Otieno Odhiambo
1st Respondent
Eunice Rahel Ochieng
2nd Respondent
The Independent Electoral and Boundaries Commission
3rd Respondent
(Being an Application for Certification of the Main Appeal for hearing on an urgent basis against the Judgment of the High Court of Kenya at Kisumu, (Ochieng, J.) dated 23rd June, 2022 in HC Civil Appeals Division Civil Appeal No. 43 of 2022)
Reasons
1.The single substantive issue raised in this second appeal is whether the first appellate court erred in law in upholding a decision by the Political Parties Disputes Tribunal (PPDT) which directed the ODM National Elections Board (The Election Board) of Orange Democratic Movement (ODM or the 2nd appellant) to conduct a fresh nomination for the party nominee for the position of Member of County Assembly (MCA) for South Sakwa Ward through universal suffrage.
2.Vincent Odhiambo Kanyangonda (Vincent), Eunice Rahal Achieng (Eunice) and Edwin Odhiambo (Edwin) were candidates for nomination for the position in the forthcoming 2022 national elections. The party decided that the nomination would be by way of universal suffrage. The Bondo Constituency Returning Officer for the party declared Edwin Odhiambo as the nominee in an election conducted for the nomination.
3.Unhappy with that outcome and alleging violence and other irregularities, Vincent and Eunice filed an appeal before the ODM Appeals Tribunal (the Appeal Tribunal) being Tribunal Appeal No. 4 of 2022. The appeal succeeded and one of the orders made by the Appeals Tribunal was a direction to the Elections Board to conduct fresh nominations for South Sakwa Member of County Assembly.
4.Seven days later, on 27th April 2022, the Elections Board directly nominated Eunice. This aggrieved Edwin who filed a complaint before the PPDT. The complaint succeeded and the PPDT directed the party to conduct a fresh nomination by way of universal suffrage. There was delay in compliance and Edwin successfully cited the Elections Board and the party for contempt. The PPDT granted the two contemnors 72 hours to purge the contempt, failing which a notice to show cause would issue. The Elections Board did not purge the contempt and instead, on 28th May 2022, moved the PPDT through a Notice of Motion for review of the orders of 26th May 2022, a Motion that failed.
5.On the other side, Edwin himself was unhappy about certain aspects of the PPDT judgment of 5th May 2022 and preferred an appeal against it being the appeal which is the subject of the proceedings before us. In the meantime, the Elections Board and the party were granted leave to cross appeal.
6.The cross appeal raised four grounds: -1.That the PPDT in denying the 1st and 2nd Respondents an opportunity to be heard and also to present documents and evidence violated their right to a fair hearing and consequently issued orders that were prejudicial.2.That taking into account that the Appeals tribunal and their decision of 20th April 2022 had directed a fresh nomination be undertaken the PPDT fell into error by directing that fresh nomination could only be by way of universal suffrage.3.That further to Ground (2) above the Honourable Tribunal erred in law and fact in any event in failing to allow the 1st Respondent to exercise and carry out the fresh nomination using any of the nomination methods allowed in their rules.4.That the Honourable Tribunal erred in law and fact by failing to consider the oral submissions of the 1st and 2nd Respondents thus arriving at a manifestly erroneous decision.
7.In a decision rendered on 23rd June 2022, Ochieng.J (as he then was) dismissed both the appeal and cross-appeal. Regarding the cross appeal- and in agreeing with the PPDT, the learned Judge held;
8.As stated at the beginning of this decision, the single substantive issue in this appeal is whether the learned Judge erred in law in upholding the decision of the PPDT directing the party to conduct a fresh nomination by way of universal suffrage. But we must first dispose of one other minor ground raised; that the learned judge erred in law in holding that the cross appeal was lodged against the PPDT’s ruling of 21st May 2022 and not the judgment dated 5th May 2022 and consequently erred in his disposition.
9.We cannot agree. The clarity of mind of the learned Judge that the subject of the cross appeal before him was the judgment of 5th May 2021 is evident in the following passage of his decision;
10.Back to the substantive matter. Learned senior counsel Ojienda, appearing for the appellant, urged us to find that the Appeals Tribunal directed the conduct of a fresh nomination exercise and not a repeat nomination. It being so the party could, consistent with section 38 of the Political Parties Act and its Election and Nomination Rules, choose which method to use in the fresh nomination exercise. The methods available being through consensus, direct nomination or universal suffrage.
11.Citing the decisions in High Court Election E274 of 2020 Jacob Ochieng Ojuki of Orange Democratic Movement & 2 others and High Court Misc. Application No. 1 of 2020 Michael Ojala Nyansi v Hezron Okoth Onditi & Others, it was contended that the PPDT had no authority or mandate to decide for the party what method to use in conducting its nomination.
12.All the parties to the appeal supported the appeal.
13.Our jurisdiction to entertain and determine this appeal is section 41(2) of the Political Parties Act which reads: -(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 the Court of Appeal and the decision of the Court of Appeal shall be final.
14.The issue raised in this appeal is purely on a point of law and is squarely within the contemplation of the statutory provision.
15.In similar context, the same issue arose and similar arguments were made before us in Civil Appeal No. E003 of 2022 ODM National Elections Board & another v Hon. John Ombewa Gare & 2 others.
16.The answer we gave to the arguments apply in equal force to this matter and we cannot do any better than to, in extenso, reproduce our holdings in ODM National Elections Board (supra).
17.In respect to a party’s undoubted right to choose the method for party nominations, we held:-
18.On the question whether a party, which has attempted a nomination by way of universal suffrage but which attempt has for some reason aborted or is nullified, can carry out the repeat nomination directly, we held:
19.Clearly, the appeal is for dismissal. We do hereby dismiss it but with no order as to costs as it was not opposed.
DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF JULY, 2022.P.O. KIAGE..............................JUDGE OF APPEALMUMBI NGUGI..............................JUDGE OF APPEALF. TUIYOTT..............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed. DEPUTY REGISTRAR