Automated Summary
Key Facts
The case involves a dispute over the Orange Democratic Movement (ODM) party nomination for Member of County Assembly in Nairobi West Ward. Appellant John Rex Omolleh challenged the nomination process, alleging malpractices such as unfair voting procedures and voter intimidation. The Special County Appeals Tribunal initially ruled in Omolleh's favor, awarding him the nomination certificate. However, the Political Parties Dispute Tribunal overturned this decision on 12th May 2017, nullifying Omolleh's certificate and ordering ODM to issue the nomination to Maurice Gare Otieno, who received 477 votes compared to Omolleh's 245 votes. The final appeal dismissed Omolleh's claims, affirming the validity of Otieno's nomination due to lack of credible evidence for malpractice allegations.
Issues
- The court examined whether the 2nd Respondent (Maurice Gare Otieno) was properly served with notice of the Special County Appeals Tribunal hearing and whether he participated in the proceedings. The Appellant argued that the 2nd Respondent was served via an affidavit by George Koko Mogire, who claimed to have delivered the notice at Gracia Hotel. However, the court found no evidence that the 2nd Respondent attended or participated, noting the affidavit was sworn post-judgment and by an unlicensed process server. The court dismissed this claim, affirming the Political Parties Dispute Tribunal's finding that the 2nd Respondent was not served.
- The Appellant contended that the Political Parties Dispute Tribunal ignored findings by the Special County Appeals Tribunal regarding irregularities in the nomination process, including allegations of voter transportation, unauthorized voting methods, and intimidation. The court acknowledged the malpractice claims but emphasized the Appellant failed to provide credible, specific evidence to support them. It concluded that generalized allegations without substantiation could not overturn the tribunal's decision, which focused on procedural fairness and the right to a fair hearing rather than malpractice.
Holdings
- The court upheld the Political Parties Dispute Tribunal's decision to nullify the nomination certificate issued to John Rex Omolleh and award it to Maurice Gare Otieno, finding that the 2nd Respondent was not served with the hearing notice in the Special County Appeals Tribunal, violating his right to fair administrative action under Article 50(1) of the Constitution. The court dismissed the Appellant's challenge to this decision, concluding the affidavit of service submitted was not filed during the tribunal proceedings and was an afterthought.
- The court rejected the Appellant's contention that the Special County Appeals Tribunal's finding of electoral malpractices was valid, noting these allegations were generalized and lacked cogent evidence. It affirmed that the will of the ODM members was expressed through the valid vote tally (477 votes for Maurice Gare Otieno vs. 245 for the Appellant) and that the Political Parties Dispute Tribunal correctly avoided pre-judging the malpractice allegations to maintain procedural integrity.
Remedies
- The court ordered the Orange Democratic Movement Party to issue a final nomination certificate to Maurice Gare Otieno for the Member of County Assembly, Nairobi West Ward, Nairobi County, within 12 hours of the judgment's pronouncement.
- The court declared the Orange Democratic Movement Party's decision to nominate any candidate other than Maurice Gare Otieno for the Nairobi West Ward Member of County Assembly position as null, void, and of no effect in law.
Legal Principles
- The Political Parties Dispute Tribunal's decision was upheld based on its finding that the Appellant was denied a fair hearing, a fundamental principle of natural justice. The court affirmed that the right to administrative fairness under Article 50(1) of the Constitution necessitated nullifying the disputed nomination process.
- The court emphasized that generalized allegations of election malpractice must be supported by cogent, credible, and consistent evidence to meet the required standard of proof in election petitions. The Appellant failed to discharge this burden as the evidence presented was insufficient and unverified.
- In election disputes, the court applied a high standard of proof, requiring specific and verifiable evidence rather than general accusations. The Appellant's allegations of unfair nomination procedures were deemed too vague to overturn the Political Parties Dispute Tribunal's decision.
Precedent Name
- Wanguhu Nganga & Another Vs George Owiti & Another
- Joho Vs Nyange & another
- Kibaki Vs Moi
Cited Statute
Article 50(1) of the Constitution of Kenya
Judge Name
- Kyalo Mbobu
- Hassan Abdi
- James Atema
- S N Riechi
Passage Text
- The following are findings of the Tribunal:- 1. There were election malpractices and the voting process was not free and fair. 2. There was sufficient evidence to show that the Applicant won the nomination fairly.
- We nullify the decision as well as the resulting nomination certificate issued to the 2nd Respondent or any other candidate... As the Complainant properly contends, the 1st Respondent action was a violation of his right to fair administrative action under Article 50(1) of the Constitution of Kenya.
- In the final analysis, I agree with the judgment of Political Parties Dispute Tribunal that the will of the ODM members of Nairobi West Ward was expressed clearly by nominating Maurice Gare Otieno... I make no order as to costs.