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Amoo & another v United Democratic Alliance Party (Complaint E005 (KK) of 2024) [2024] KEPPDT 512 (KLR) (Admiralty) (26 August 2024) (Judgment)

Amoo & another v United Democratic Alliance Party (Complaint E005 (KK) of 2024) [2024] KEPPDT 512 (KLR) (Admiralty) (26 August 2024) (Judgment)
Citation
Amoo & another v United Democratic Alliance Party [2024] KEPPDT 512 (KLR)
Media Neutral Citation
[2024] KEPPDT 512 (KLR)
Court
Political Parties Disputes Tribunal
Outcome
Dismissed
Case number
Complaint E005 (KK) of 2024
Judges
D. Nungo, S Musau, AA Abdikadir, MM Yusuf Jin
Judgment date
26 August 2024
Language
English
Type
Judgment
Original source file
Download DOCX (45.3 KB)
Collections
Date published
27 June 2025
Case action
Judgment
Court division
Admiralty
Filing county
Nairobi
Order
i. That the Complaint herein be and is hereby dismissed. ii. That each party to bear its own costs of the proceedings.
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1.This matter was filed by way of a Petition dated 22nd May, 2024 and amended vide an Amended Petition dated 18th July, 2024 (hereinafter referred to as the Petition). In Petition, the Complainant seeks orders that:i.The elections poised to be held at Subcounty Level (Constituency Level) Angurai North Ward in Busia County on 31st May, 2024 be nullified.ii.That the elections undertaken at the Busia County, Angurai North West Ward level which was held at KAKURIKIT PRIMARY SCHOOL on 18th May 2024 be nullified.iii.Fresh elections be held for the ward level Angurai North west in Busia County.iv.Any further order or directions that the Tribunal deems fit.v.Costs be provided for.
2.In support of the Petition, the Complainants rely on the Supporting Affidavit sworn by Moses Oude Amoo on 18th July 2024 and their Written Submissions dated 10th August 2024.
3.The Petition is opposed by the Respondent who filed a Replying Affidavit (In Response and Opposition to the Petition dated 27th May, 2024) sworn by Anthony Mwaura on 18th July 2024, and the Respondent’s Replying Affidavit (In Response to the Amended Petition dated 18th July, 2024) sworn by Anthony Mwaura on 5th August, 2024.
4.The matter came up for hearing by way of highlighting submissions on 15th August, 2024 and during the hearing hereof, the Complainants were represented by Mr. Onindo, Advocate, and the Respondent was represented by Mr. Sanare Advocate. Counsel for the Complainants adopted their Written Submissions dated 11th August, 2024 without highlighting the same. Counsel for the Respondent on the other hand made oral submissions highlighting their responses on record.
The Complainants’ Complaint and Submissions.
5.The Complainant relied on the Amended Petition dated 18th July 2024, the Supporting Affidavit sworn by Moses Oude Amoo on 8th July, 2024, the documents attached to the main Petition dated 22nd May 2024, and the Supplementary Affidavit sworn by Moses Oude Amoo on 12th June 2024. The Complainants further reiterate the submissions dated 12th June 2024 in respect of the application dated 27th May, 2024.
6.The Complainants submit that their Complaint is genuine, that the Respondent was served with the Court Order, that they were never served with the ruling alleged dated 22nd May 2024, that the said ruling was served upon a party not party to the proceedings and that the same was served on 29th May 2024. That it is not in dispute that the elections at the constituency level were held on 31st May 2024 and that the Complainants herein did not participate in the said elections as they were yet to be served with the said ruling. That in the circumstances, the Complainants rights were flouted and they were denied their rights to participate in an election.
7.In the submissions dated 12th June 2024 to the Notice of Motion Application dated 27th May 2024 the Complainants aver that they filed a Petition dated 22nd May 2024 against one Lilian Apalei, Jimmy Karani, Andrew Edukata, the United Democratic Alliance (UDA) National Elections Board and the UDA before the UDA Election Disputes Resolution Committee (EDRC). They disclose that the nature of the dispute before the EDRC was that on 18th May 2024, the 1st to 3rd Respondents before the EDRC were elected as Chairlady, Vice Chairman and Secretary respectively. This was following an announcement by the 3rd Respondent through the 2nd Respondent that the ward level elections in Busia County would be held at Karukirit Primary School on the stated 18th May 2024. They contended before the EDRC that Angurahi North Ward had two locations, that is Moding which had 11 polling center stations, and Angurai which had 8 polling center stations, thus totaling 19 polling stations. Each polling center station was required to have 20 delegates thus giving a total of 380 delegates from the 19 polling center stations in Angurahi North Ward.
8.Their case before the EDRC was that a prior agreement had been reached in pre-election meetings that had been held on 12th and 26th April 2024, that any position not filled during the polling center station elections would be filled up later. However, in the first grassroot elections held on 26th April 2024, only 108 out of the 380 positions were filled, leaving a total of 272 vacancies. In light of the agreement, this implied that at the next ward level elections, eligible voters were to be 108. However, it was noted in the second grassroots elections that was held on 18th May 2024 that votes cast were 150 meaning that more than 42 people who had not participated in the first grassroot elections cast their vote, and further that some of the original 108 voters did not vote either due to absence or failure to produce original ID. It was their case before the EDRC that there was selective inclusion of voters contrary to the agreement that had been reached during the stated pre-election meetings, which influenced the outcome of the elections in a discriminatory manner and therefore in breach of Articles 1.2, 2.6, and 3 of the party constitution. They accordingly contended before the EDRC that the elections were not free, fair and transparent, and prayed that the subject elections be declared null and void.
9.It is averred that the EDRC heard the Petition orally on 22nd May 2024 and a ruling thereon was to be delivered on notice and/or emailed to the parties. That as at the date of filing the initial Complaint, no ruling had been forwarded to the Complainants. They contend that after the ward level, the next elections were scheduled on 31st May 2024 at sub-county level, and they stand to be prejudiced if the elections proceeded before the EDRC ruling. They aver that the date for closure of the applications is 28th May 2024 and they will not be able to select the positions they prefer before 28th May 2024 as they do not know their fate in the EDRC Petition that they had filed. It is therefore their contention that it is pertinent that the elections of 31st May 2024 be suspended pending delivery of the EDRC ruling. They further contend that if a right or fundamental freedom of a person has been or is likely to be adversely affected, it is his/her right to be given written reasons for the action.
10.In the Supporting Affidavit sworn on 12th June 2024 responding to the Respondent’s Replying Affidavit, the Complainants maintain that the EDRC ruling referred to by the Respondent was neither served upon and/or forwarded to themselves or their lawyers, Onindo & Onindo Associates who represented them before the EDRC. They note that even though the produced EDRC ruling is dated 22nd May 2024, it was forwarded to one Rebeccah Naanyu, who was not a party to the EDRC Petition, vide email sent on 29th May 2024 at 5.41pm. The said Rebeccah Naanyu was not known to their lawyers and they believe that the EDRC had no intention to inform them of the ruling so that they do not participate in the elections of 31st May 2024.
11.It is further averred that despite the tribunal orders of 29th May 2024 which were served upon and stamped as received by the Respondent party on the same date, the Respondent proceeded with elections on 31st May 2024. That this tribunal has the powers to issue the orders sought in the application.
12.Vide their Written Submissions dated 12th June 2024, the Complainants stated that they relied entirely on the averments in the application and the two affidavits on record. They highlighted that the EDRC ruling dated 22nd May 2024 was forwarded to Rebecca Naanyu on 29th May 2024 at 5.41pm yet she was not a party to the EDRC Petition. They submit that despite the fact that they had legal representation before the EDRC, their lawyers were not served with the EDRC ruling and/or informed that the ruling had been forwarded to the said Rebecca Naanyu who was in any event not known to their lawyers. They wondered why the EDRC ruling was forwarded to a stranger to the EDRC proceedings, and submitted that it must have been EDRC’s intention not to inform them of the ruling so that they do not participate in the elections of 31st May 2024. They submit that the elections of 31st May 2024 proceeded despite the tribunal orders of 29th May 2024 which were served upon the Respondent who acknowledged receipt of the same on the same date of 29th May 2024.
The Respondent’s Response and Submissions.
13.The Respondent relied on the Replying Affidavit sworn by Anthony Mwaura on 5th August 2024 and submitted that the Electoral & Nominations Disputes Resolution Committee (EDRC) issued a notice notifying the members of the information necessary in filing disputes including the email address, fees payable and the timelines within which parties are needed to comply. The Respondent supplied a copy of the said notice. That the Complainants herein filed a Complaint dated 20th May 2024 before the EDRC through the provided email address and supplied a copy of the Complaint. That the Complainants through the same channel were invited to attend the hearing on 22nd May 2024 and were accordingly accorded a hearing and that the EDRC issued the ruling dated 22nd May 2024 to the Complainants on 29th May 2024 through the same email which was used by the Complainants to file their Complaint before the EDRC. The Respondent provided a print out of the email and the ruling issued by EDRC.
14.The Respondent further submitted that that the Complainants should have moved this Tribunal through an Appeal against the decision of the EDRC of the Respondent. That the institution of this Complaint as a fresh complaint before the Tribunal is an undue advantage given to the Complainants to have a second bite at the cherry.
15.The Respondent stated that the EDRC indeed served on the Complainants the ruling on the complaint filed before them, and that the Respondent’s actions have not prejudiced the Complainants in any way. That the elections were conducted in compliance with all relevant laws and procedures, and suspending all elections based on a single dispute would be an excessive and unjustified measure, unnecessarily impacting other elections that are not in contention. That the allegations contained in the Complaint are lacking of substance and thus, a waste of the precious judicial time of this Tribunal.
16.The Respondent stated the Complainants have terribly failed in their primary duty to discharge the burden of proof placed on them by the law by substantiating the allegations raised in the Complaint at the first instance, and the Petition should be dismissed.
Analysis and Determination.
17.We have considered the parties pleadings and submissions and we isolate the following issues for determination: -i.Whether the Complainants were granted a fair hearing before the EDRC?ii.What is the effect of the breach of the Complainants’ right to fair hearing on the elections, and what are the appropriate reliefs to grant in the circumstances?
Whether the Complainants were granted a fair hearing before the EDRC?
18.In order to establish whether there was legal compliance in the EDRC proceedings against the Complainants, it is necessary to first and foremost highlight the various constitutional, statutory and party laws that we consider of relevance to the subject matter herein.
19.Article 47 of the Constitution provides for the right to fair administrative action as follows:(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
20.Additionally, the Fair Administrative Action Act, 2015 at Section 4(3)&(4) details the ingredients of fair administrative action thus:(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to—(a)attend proceedings, in person or in the company of an expert of his choice;(b)be heard;(c)cross-examine persons who give adverse evidence against him; and(d)request for an adjournment of the proceedings, where necessary to ensure a fair hearing.
21.Section 7(2) of the Fair Administrative Action Act, 2015 provides grounds upon which a court or tribunal may review an administrative action. The grounds include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power.
22.The importance of the constitutional right of fair administrative action was appreciated in the South African case of President of the Republic of South Africa & others v South African Rugby Football Union & others (CCT16/98) 2000 (1) SA 1 where it was held that:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”
23.In our view fair administrative action imports the principles of natural justice. In Onyango Oloo vs. Attorney General [1986-1989] EA 456, it was held:“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...To “consider” is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion... “Consider” implies looking at the whole matter before reaching a conclusion...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decision-making body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”
24.In Republic vs. The Honourable The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004, the Court expressed itself as follows:“Whereas the rules of natural justice are not engraved on tablets of stones, fairness demand that when a body has to make a decision which would affect a right of an individual it has to consider any statutory or other framework in which it operates. In particular it is well established that when a statute has conferred on a body the power to make decision affecting individuals, the courts will only require the procedure prescribed to be introduced and followed by way of additional safeguards as that will ensure the attainment of fairness. In essence natural justice requires that the procedure before any decision making authority which is acting judicially shall be fair in all circumstances. .…Although the courts have for a long time supplemented the procedure that had been laid down in a legislation where they have found that to be necessary for that purpose, before this unusual kind of power is exercised, it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of legislation. Additional procedural safeguards will only ensure the attainment of justice in instances where the statute in question is inadequate or does not provide for the observance of the rules of natural justice. The courts took their stand several centuries ago, on the broad principle that bodies entrusted with legal powers could not validly exercise them without first hearing the people who were going to suffer as a result of the decision in question. …. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing just as much a cannon of good administration is unchallengeable as regard its substance. The courts can at least control the primary procedure so as to require fair consideration of both sides of the case. …. As part of a reasonable, fair and just procedure the court has a cardinal duty to uphold the constitutional guarantees, the right to fair hearing which entails a liberal and dynamic approach in order to ensure the rights enjoyed by an individual is not violated...”It follows that this Court has the powers to interfere with the decision of the Respondent arrived at in the exercise of its statutory mandate where the Respondent’s powers are not validly exercised. To make a decision adversely affecting the applicant without affording the applicant an opportunity of being heard is in my view such invalid exercise of power warranting this Court to interfere.In my view the respondent broke all the procedural rules relating to fairness in its proceedings. It issued prejudicial orders on a mention date; it did not bother to confirm whether its directions were complied with in order to ensure the fairness of the process; and it did not confirm whether the Applicant was duly notified at every stage of the proceedings. Accordingly, its decision cannot be allowed to stand…”
25.The Complainants in this case contend that whereas they participated in the EDRC process, they were not informed of the EDRC decision thus leading to the conduct of elections without their participation. We have considered the response by the Respondent who claims that the EDRC decision was emailed to the parties. It is not in dispute that the Complainants were represented by Counsel before the EDRC. It is further not in dispute that no notice of decision was communicated to the Complainants’ Counsel. In essence, the Complainants and their Legal Counsel did not become aware of the decision until after the institution of the instant proceedings. Even if we were to consider the Respondent’s allegation that they sent the decision on email to the parties’ email address, we note that the subject decision was sent to an email address belonging to a stranger to these proceedings, one Rebecca Naanyu, on the 29th May 2024, and the decision is dated 22nd May 2024. We find it strange that the Respondent elected to send the decision 7 days after its delivery notwithstanding that the same was likely to affect the right of the Complainants to participate in the elections scheduled for 31st May 2024. We are therefore persuaded by the Complainants’ argument that the Respondents deliberately strategized not to timely inform them of the decision to disable them from participating in the elections scheduled for 31st May 2024. We find it most unprocedural that EDRC did not communicate to the Complainants its decision yet the decision went to the root of affecting the Complainants’ rights under Article 38 of the Constitution of Kenya. The question of failing to furnish a party with a decision arising from an internal dispute resolution process of a political party and its reasoning in good time has not been without litigation. In Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] at para 11 the Tribunal held that: -“… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.”
26.Similarly in PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, we stated:-‘…Whereas the Complainant alleges that the reasoned decision subject hereof was not availed to him despite having requested for the same, the Respondent argues that the subject decision was communicated to the Complainant vide the Respondent’s letter dated 19th March 2019. From the record, there seems to be no reasoned decision but a record of the purported disciplinary proceedings and a verdict dated 19th March 2019 signed by the Disciplinary Committee. The complainant avers that he only had sight of this record two months later when he was in the process of filing the instant proceedings. We agree with the Complainant that the right to be supplied with a decision under Sections 5(1)(d) and 6(1) of FAA Act is a substantive right intended to determine whether the decision was made in compliance with the law and to facilitate the right to review or appeal…”
27.In the case of Republic vs. Firearms Licencing Board and & others exparte Julius Okeyo Owidi (2018) e KLR the Court expressed itself in the following words relating to this issue.“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”. Disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.”
28.Taking into consideration the wholesomeness of the facts and circumstances of this case, the law and the foregoing judicial authorities, we find that the disciplinary process against the Complainants was tainted with a procedural irregularity and the same was conducted in breach of Article 47 and 50 of the Constitution of Kenya, and Section 4 and 7 of the Fair Administrative Action Act, and the principles of natural justice.What is the effect of the breach of the Complainants’ right to fair hearing on the elections, and what are the appropriate reliefs to grant in the circumstances?
29.From the parties’ pleadings, it is not in dispute that the complaint filed before the EDRC revolved around the Busia County ward level elections that were conducted at Kakurikit Primary School on 18th May 2024. It is further not in dispute that the subject elections would lead to the sub county (constituency) level elections and that the candidates in the constituency level elections would be drawn from persons who participated in the ward level elections. The Complainants herein were aggrieved by the ward level elections and sought to nullify the same before the EDRC even as they moved to suspend the constituency elections scheduled for 31st May 2024. Having filed at the EDRC and the instant proceedings, the Complainant did not accordingly proceed to register themselves as candidates for the constituency elections. It was the Complainants’ expectation that there would be compliance with the orders of this Tribunal staying elections of 31st May 2024, which was not the case. In essence, there is no gainsaying that the Complainants right to participate in the constituency elections were adversely affected by the irregularity in the EDRC processes and subsequent non-compliance with the interim orders that were issued by this Tribunal suspending the elections poised for 31st May 2024.
30.The question that now begs to be answered is whether the breach of the Complainants’ right to a fair hearing before the EDRC which also led to an infringement of their rights to participation in elections should in itself have the consequential effect of invalidating the entire elections that were conducted on 31st May 2024 and the implications of this.
31.In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court stated: -“… [210B] In this case, as in other election matters coming up before the Courts, the question as to the nature or extent of electoral irregularities, and as to their legal effect, repeatedly arises. The crisp issue is: “how do irregularities and related malfunctions affect the integrity of an election" …(213)The Court observed that the practical realities of election administration are such that imperfections in the electoral process are inevitable; and on this account, elections should not be lightly overturned, especially where neither a candidate nor the voters have engaged in any wrongdoing…(217)If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities.(218)Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election. In this regard, we stand on the same plane as the learned Judges in Morgan, Opitz and Nana.(219)…Examples of irregularities of a magnitude such as to affect the result of an election, are not however, closed…”
32.In Raila Odinga vs. IEBC (2013) eKLR the court in declining to nullify the outcome of 2013 General elections stated: -“…A court is to consider the effect of the alleged irregularities on the election results before nullifying an election. It is only upon a finding that the irregularities proven affected the declared election results that a court will nullify an election...”
33.And in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission &4 Others & Attorney General & Another Election Petition No. 1 of 2017 the Supreme Court considered the circumstances under which an election may be nullified for failure to adhere to provisions of the Constitution and the law or on account of irregularities stating;“…[209] therefore, while we agree with the two Lord Justices in the Morgan v Simpson case that the two limbs should be applied disjunctively, we would, on our part, not take Lord Stephenson’ route that even trivial breaches of the law should void an election. That is not realistic. It is a global truism that no conduct of any election can be perfect. We will also go a step further and add that even though the word “ substantially” is not in our section, we would infer it in the words “ if it appears” in that section. That expression in our view requires that, before vitiating it, the court should, looking at the conduct of the whole election, be satisfied that it substantially breached the principles in the Constitution, the Elections Act and other electoral law. To be voided under the first limb, the election should be what Lord Stephenson called “a sham or travesty of an election” or what Prof. Ekirikubinza refers to as “a spurious imitation of what elections should be…”
34.Further in Bernard Kibor Kitur v Alfred Kiptoo Keter & another [2018] eKLR, the Supreme Court observed thus:-“…[90] The upshot of this is that the invalidation of an election follows substantial irregularities malpractices, and non–compliance with law.(91)Looked at as whole, this matter at the High Court and at the Appellate Court turned on the issue of campaigning outside of the gazetted period. While the High Court found that the alleged campaigning, affected the ‘free and fair’ aspect of the election, the Appellate Court was of a different view finding that not only was it not proved in light of the 10,051 votes margin, and the small crowd addressed at these gatherings, the supposed illegality, could not have affected the result. Further, that the Petitioner did not call any witnesses to prove those allegations. The Court of Appeal also made a finding that both the affidavit and the oral evidence of the petitioner was not direct evidence but hearsay.(92)The question we must then ask ourselves then is, whether the issue is substantial enough to nullify an election" The impugned decisions of this court indicate that elections are voided when they are a sham or a travesty, or a poor imitation of what an election ought to be. Invalidation of an election follows considerable irregularities, malpractices and non-compliance with the law.(93)In light of the foregoing, we find that a single issue, even where the effect is criminal, where it does not amount to massive or substantial non-compliance with the law or irregularities is not enough to dissuade from the fact that an election was conducted largely in accordance with the law. This is the case in this present matter…”
35.Guided by the above decision, whereas we have found that the Complainants’ right to a fair hearing was breached, thus leading to breach of their political rights under the Constitution, such breach in itself is not in our opinion substantial enough to nullify the entire elections subject of this Complaint. We say so for various reasons. Firstly, pursuant to the Complaint filed herein, the gravamen of this Complaint is that the Complainants were not accorded a fair hearing before the EDRC. From our reading of the Complaint, the Complainants simply highlighted their pleadings before the EDRC (which included pleadings on election irregularities), confirmed that they were heard on the issues, and their main concern is that they were not notified of the EDRC decision in time.
36.Secondly, no evidence was led before us to demonstrate the alleged irregularities in the actual electoral process. As we have already observed, the parties focused their pleadings and submissions on the improper conduct of proceedings before the EDRC, without leading evidence on actual irregularities that allegedly befell the elections. In other words, even if we were to consider the merits of the highlighted electoral irregularities that formed the basis of the EDRC proceedings, there is no gainsaying that the Complainants have not discharged the now well settled standard of proof. In so stating, we are guided by the finding in the case of Emmanuel O Achayo v Orange Democratic Movement & 4 others (2017) eKLR, where the High Court emphasized that;‘In election petitions or nominations disputes the burden of proof rests with the party making the allegations at challenging the outcome or alleging, misconduct on the other.’
37.And in John Kiarie Waweru v Beth Wambui Mugo & 2 others, where the High Court held: -‘As regards the standard of proof which ought to be discharged by the Petitioner in establishing allegations of electoral malpractices, there is consensus by electoral courts that generally the standard of proof in electoral petition cases is higher that applicable in ordinary civil cases i.e. that proof on a balance of probabilities. The standard is higher than proof on a balance of probabilities but lower than the standard of proof beyond reasonable doubt required in establishing criminal cases. Allegations of electoral practices, like for instance bribery, require higher proof.’
38.Thirdly, the elections that the Complainants seek to nullify affect other elections, candidates and delegates (both at the ward and sub county (constituency level)) whose election are not in contention. The affected are not even party to these proceedings. It is also instructive to note that there is another case pending before this Tribunal, being PPDT Nairobi Appeal No. E003 of 2024 Eugene Wandera & 4 Others vs. Owaret Stephen & 17 Others, which substantively challenges the subsequent elections conducted in Busia County. In essence, a large number of candidates and delegates who participated in the Busia County Elections stand to be affected by the Judgment we deliver without being granted an opportunity to be heard. The Tribunal may therefore find itself in an awkward situation.
39.Whereas we found fault in the EDRC process, we note that the Complainant did not seek any specific orders for setting aside the EDRC decision. We have already found that there is no sufficient evidence to nullify the elections. The sum total of the foregoing is that we are not able to grant the orders sought as framed in the Complaint. We therefore have no option but to dismiss the Complaint.
40.Turning to the question of costs, whereas costs follow the event, we are of the considered view that it is in the interest of fostering party unity that all the parties hereto meet their own costs of these proceedings.
Disposition.
41.In light of the foregoing, we order as follows: -i.That the Complaint herein be and is hereby dismissed.ii.That each party to bear its own costs of the proceedings.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF AUGUST 2024.DESMA NUNGO(CHAIRPERSON)STEPHEN MUSAU(MEMBER)ABDIRAHMAN ABDIKADIR(MEMBER)MUZNA JIN(MEMBER)
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