REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

ELECTION PETITION APPEAL NO 56 OF 2017

FREDRICK OKOLLA OJWANG………………………...……..APPELLANT/APPLICANT

VERSUS

ORANGE DEMOCRATIC MOVEMENT …………………....……………1^ST RESPONDENT

FADHILI MWALIMU MAKARANI………………………….……………2^ND RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION…...3^RD RESPONDENT

RULING

1. This is the third time this matter is finding its way back into court, but this time for an application to committal for contempt of court. By Notice of Motion taken out on behalf of Fredrick Okoth Ojwang, dated 8^th June 2017 and filed in court on 9^th June 2017, brought under  Articles 10, 27(1) &(2), 47, 48, 159, 165 of the Constitution of kenya 2010, sections 4, 5 and 28 of the contempt of Court Act, Sections 1A, 1B and 3A of the Civil Procedure Act, (Cap 21), Order 51 of the Civil Procedure Rules, Section 4, 5, and 6 Fair Administrative Action Act and all other enabling provisions of the law) the applicant has sought to cite Judy Pareno and Dr Robert Arunga for contempt of court for disregard of court orders. There is also a prayer that the court restrains IEBC from acting upon any nomination certificate, processing or gazetting a nominee by ODM, the 1^st respondent herein.

2. The application is supported by an affidavit of the applicant sworn on 8^th June 2017 and filed together with the Motion. The applicant deposed that by the ruling of 2^nd June 2017, this court ordered the 1^st respondent ODM to conduct MCA nomination for Port Reitz Ward in Chagamwe Constituency within 36 hours after the 1^st respondent had failed to comply with the judgement and decree issued by the court on 24^th May 2017.

3. The applicant further deposed that during delivery of the ruling, the 1^st respondent and interested party were represented in court by counsel and were later served with the order, and on 5^th June 2017 a letter was written to the 1^st respondent on behalf of the applicant seeking the party position on the nomination as directed by the court. The applicant stated that despite service and knowledge of the court order, there has not been compliance of that order. The applicant now beseeches the court to hold the 1^st respondents and the contemnors in contempt because they have disobeyed the court order.

4. The 1^st respondent filed a replying affidavit to the motion sworn by Dr. Robert Arunga Secretary to National Election Board(NEB) of the 1^st respondent on 12^th June 2017, and filed in court on the same day.  The deponent stated that the 1^st respondent, (ODM), in exercise of its mandate under Article 91 of the constitution, the Political parties Act and the Elections Act, undertook nominations which accorded participants their constitutional rights.

5. He further deposed that in order to implement the court order, National Executive Council (NEC) acted pursuant to Article 7.5.3(i) of the party constitution and directed that there be direct nomination for Port Reitz ward, a method that would not prejudice the party from submitting a candidate to IEBC for election due to the strict timelines.

6. Dr Arunga deponed that the Central Committee acting in accordance with the directive of NEC, nominated Fadhili Mwalimu Makarani, the 2^nd respondent herein as the nominee for Port Reitz Ward. He stated that the decision  was reasonable, legal and justified in the circumstances  due to  the time constraint and is consistent with section 31 of the Elections Act.

7. Before dealing with submissions by counsel for the parties, It is necessary to set out brief facts of this case.  ODM, the 1^st respondent, held its nomination for Port Reitz ward on 29^th April 2017. Fredrick Okolla Ojwang, was handed a provisional certificate although there was a dispute about the results and a complaint lodged.  According to the record, the difference in votes between Fredrick Okola and Fadhili Mwalimu Makarani the two leading candidates was 7 votes.  The dispute escalated to the PPDT and in its decision of 16^th May 2017, the complaint was dismissed.

8. An appeal was filed in this court which was heard by Mwongo, PJ and in his judgment given 24^th May 2017, the nomination result was nullified and ODM ordered to repeat Port Reitz MCA nominations, within 72 hours.  Immediately after delivery of the judgment, the 2^nd respondent’s counsel applied for stay of that decision for 3 days to enable them file an appeal to the court of appeal.  The court acceded to their request and granted stay  until Monday 29^th May 2017,  12.00Noon.

9. In the meantime, it would appear, the 2^nd respondent presented his nomination documents including the nomination certificate that had been nullified to IEBC, and was cleared to stand for MCA Port Retiz Ward.  No appeal was lodged.  Stang by the turn of events, the applicant moved the court by an application dated 29^th May 2017 for review and other orders. including an order restraining IEBC from processing the 2^nd respondent’s papers or gazetting his name as dully cleared to stand for the general election on the 1^st respondent’s ticket.

10. After hearing the application, the court allowed it and directed the 1^st respondent to comply with the decree of 24^th May 2017 and hold nominations within 36 hours.  IEBC was also restrained from gazzeting the 2^nd respondent as a nominee for MCA Port Retiz ward.  The applicant has now said that order was not complied with and has, therefore, filed the present application seeking the orders mentioned above.

11. During the hearing of this application, Mr Kanjama, learned counsel for the applicant, submitted that the respondents are in breach of the court order and urged that the alleged contemnors Judy Pareno and Dr Robert Arunga be punished for contempt of court.  Learned counsel submitted that once the order for repeat nominations was made, it was served and the 1^st respondent was aware of it.  Counsel submitted that there was also no question about the knowledge of the court order since it was made in the presence of counsel for 1`st and 2^nd respondents.

12. Counsel reiterated that even the replying affidavit sworn on behalf of the 1^st respondent acknowledges that they aware of the order.  On the allegations in the replying affidavit that the order was complied with, learned counsel submitted that the import of the order was that there be repeat nomination and any suggestion that there was direct nomination could not have been in compliance with the court order.  Counsel cited various rules of the 1^st respondent to show that in this particular case there could not have been direct nomination because rules required notice to issue 21 days before such nomination, and no such Notice was issued.  In learned counsel’s view, once the party opted to do primaries, it could not hand a direct certificate when it had been ordered to do repeat nomination.

13. The rules counsel referred to included rules 18.1, 18:2 and 3:3, 18:1A and 2^nd schedule to demonstrate that direct nomination was a process that could not have easily applied in the circumstances of this case, given that Port Reitz did not fall under the zone where direct nomination was contemplated.

14. Learned Counsel further submitted that if any direct nomination was done, it violated the applicant’s rights and breached the Fair Administrative Actions Act and violated the applicant’s rights under Article 38 of the constitution. Learned Counsel urged the court to grant the orders and preserve its dignity and authority.

15. Miss Momanyi, learned counsel for the 1^st respondent, opposed the application and submitted that indeed the 1^st respondent was aware of the order, but due to strict timelines, it opted to do a direct nomination.  Counsel  also admitted that counsel for the 1^st respondent was in court when the order was made which means knowledge of the court was not an issue in this application.

16. According to learned counsel, NEC met and directed that a direct nomination be given  to Fadhili Mwalimu Makarani in justifying the decision to go for direct nomination, learned counsel submitted that the strict timelines could not allow repeat nomination to be carried out hence the only possible method was through direct nomination.  Counsel argued that the Fair Administrative Actions Act did not apply and the party could not have used any other method to pick a candidate.  Counsel submitted that the court could only punish for contempt if there was willful disobedience of the court order. to hold fresh nomination which is not the case here.  In counsel’s view, the court order was followed and argued that where a party exercises discretion in complying with a court order, like in this case where direct nomination was given, the aggrieved party could only move the PPDT to challenge that nomination. She prayed that the application be dismissed contending that granting prayer 5 would mean the 1^st respondent would end up not presenting a candidate for MCA for Port Reitz ward in the general election.

17. Mr Cohen, learned counsel for the 2^nd respondent, submitted in opposition to the application that the order of the court talked of nomination and not fresh nomination. According to counsel, the party used one of its available methods and granted direct nomination to the 2^nd respondent.  Counsel contended that since there was already nomination, the dispute could only have been referred to PPDT under section 41 of the Political Parties Act.

18. Learned Counsel contended that contempt of court is about willful disobedience of an order and argued that the 1^st respondent’s constitution and nomination rules were followed hence there was no contempt. Counsel referred to rules 18:1, 18:2 and 3:3 to support his argument.  He urged that the application be dismissed to bring this matter to a close since litigation has to finally come to an end.

19. I have considered the application, the response there to and submission by counsel for the parties. What is before court is contempt proceedings initiated by the applicant to enforce the orders of the court directing the 1^st respondent to repeat nomination for MCA, Port Reitz Ward, Changamwe Constituency in Mombasa County.

20. Contempt is the willful disobedience or disregard of a court order, judgment decree or direction and courts punish for contemptuous actions in order to maintain its dignity, authority, the rule of law and administration of justice. And because contempt proceedings are quasi criminal in nature, where a proved contemnor may loses liberty, courts require that contempt be proved satisfactorily and at a higher degree than that of balance of probabilities.  Courts will not hesitate to punish for contempt where it is proven that there was willful disobedience of a court order.  Moreover, court orders should be obeyed without qualification unless reviewed or set aside – Econet Wireless Kenya Ltd v Minister for Information and Communication of Kenya & Another [2005]KLR 828.

21. It is also the position held by courts that the power to punish for contempt should be used cautiously and with great restraint and only as a last resort to enforce its orders – Carey v Laiken [2015]SCC17.

22. The judgment of the court directed the 1^st respondent to hold repeat nomination within 72 hours which was not done. The applicant’s counsel submitted that the court order was disobeyed in that no nomination was carried out as directed. Mr Kanjama submitted that this was deliberate disobedience of the court order since the 1^st respondent never conducted repeat nomination. The 1^st and 2^nd respondents have held the position that there was no breach of the court order because the party complied and handed a direct nomination to the 2^nd respondent.

23. First and foremost, there is issue of knowledge of the existence of the court order.  The judgment of the court was made on 24^th May 2017 when the court  ordered  the  1^st respondent  to  carry  out  repeat  nomination  for Port Reitz ward.  Although stay was granted up to Monday 29^th May 2017, no nomination was held.  Instead, the 2^nd respondent presented his documents to IEBC in clear breach of the order of the court.  The 2^nd respondent had applied for stay to allow him appeal but no appeal was filed, and that judgment and decree remain in force. The 1^st respondent though bound by that judgment, did not do anything about it.

24. The applicant still moved the court again on 29^th May 2017 and in its ruling of 2^nd June 2017, the court directed the 1^st respondent to comply with the judgment of 24^th May 2017 and hold nomination within 36 hours, which the applicant says was not again done despite the fact that the 1^st respondent and its officers were aware of the order.

25. I have perused the affidavit of Dr Robert Arunga sworn on 12^th June 2017, and it is clear from that affidavit that the 1^st respondent and its officers were indeed aware of the court’s decisions, and that is why he deposes that there was compliance by issuance of direct nomination.  Counsel for the 1^st and 2^nd respondent have also supported the position of the 1^st respondent that there was compliance which means knowledge of existence of the court order is not in dispute.

26. The question that arises for determination is whether there was compliance with the court’s judgment and decree directing that there be repeat nomination. The court’s judgment made on 24^th May was not complied with. An order directing the 1^st respondent to comply with that judgment within 36 hours was again made on 2^nd June 2017. The 1^st and 2^nd respondents’ counsel submitted that due to strict timelines, nomination was not be possible hence a direct ticket was given to the 2^nd respondent, and according to counsel for the respondents, that amounted to compliance with the court’s judgment. The 1^st respondent’s counsel went as far as arguing that the order only talked of nomination as opposed to fresh nomination.

27. The judgment of 24^th May 2017 ordered repeat nomination. the court had said in the judgment.

“I order the ODM party to repeat the Port Reitz MCA nominations exercise within 72 hours of the delivery of this judgment in accordance with the law and party rules…”

28. Repeat nomination could not mean anything else other than to do the nomination a second time in the same way it had done in the first nomination. The 1^st respondent had chosen to conduct primaries to pick its candidate for  Port Reitz ward, and repeat of nomination could only  mean going through the same process  the 1^st responded  had attempted to do. Concise Oxford English Dictionary, Twelfth Edition, defines the word “repeat” to mean “say or do the something again” or do again or more than once.”  That means the party could only do what it had done earlier and in the same manner it had done it. Moreover, the applicant had prepared himself to contest for nomination, and had possibly employed both human and financial resources, including contesting nomination in court. The 1^st respondent cannot argue that handing a direct nomination is the same as holding repeat nomination.

29. Secondly, the 1^st and 2^nd respondents have argued that the 1^st respondent’s rules were followed. However, it was submitted by counsel for the applicant that Port Reitz ward falls in the category of counties where direct nomination is not permissible, and that a notice of 21 days for the method of nomination to be used, had to issue.  The 1^st respondent did not submit evidence that there was compliance with party rules, that a notice was issued and that there was a meeting to sanction direct nomination. There are no minutes or resolutions of any meeting, names of people in attendance and what rules were applied.  There is not even a mention of the date of such a meeting.  The rules the 1^st and 2^nd respondents are relying on could not be summoned to excuse the 1^st respondent from complying with a valid judgment and decree of the court. There is simply no evidence that indeed there was compliance with the decree.

30. Political parties are obliged to observe the constitution and the law including their own internal rules.  The 1^st respondent’s rules required it to hold free, fair and democratic nominations. Where there is an allegation that the party complied with its rules, it has an obligation to show by evidence that it indeed did comply. It is not enough to merely state that it did.

31. Article 4(2) of the constitution declares Kenya as a multiparty democratic state founded on the national values and principles of governance.  For Kenya to be a true multiparty democracy, democracy must germinate and grow in individuals, flower through political parties and fruition in the republic.  The country cannot be a democratic if political parties do not embrace democracy. When political parties that form the core of the democratic state are not democratic themselves, and do not cherish democratic principles, there cannot be democracy in a country.

32. Article 159 grants judicial authority to courts to be exercised on behalf of the people of Kenya, and therefore, decisions made by courts are made on behalf of the people and must be obeyed by all in order to enhance  democracy, the rule of law and administration of justice. The importance of this was aptly captured  in the case of  Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & Another CCT 19/11(75/2015). Justice Nkabinde, writing for the Constitutional Court of South Africa, stated:-

  “The Rule of law, a foundational value of the constitution, requires that the dignity and authority of the courts be upheld.  This is crucial, as the capacity of courts to carry out their functions depends upon it. As the constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts.  It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.  The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.”

33. Judge O’leary of Canada Stated in the case of Canadian Metal Co. Ltd v Canadian Broadcasting Corp(N0.2 [1975] 48D.LR(3d) that;

To allow court orders to be disobeyed would be to tread the road toward anarchy.  If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… if the remedies that the courts grant to  correct… wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands.  Loss of respect for the courts will quickly result into the destruction of our society”.

34. The Supreme Court of Nigeria emphasized on why the court should protect its authority and dignity and punish for contempt in the case of Louis Ezekiel Hart v Chief George 1 Ezekiel Hart Sc 52/2983 (2^nd February 1990) thus;

“Where an individual is enjoined by an order of the court to do or to refrain from doing a particular act, he has a duty to carry out that order.  The court has a duty to commit that individual for contempt of its orders where he deliberately fails to carry out such orders.”

35. Cramwell J, speaking for the Supreme Court of Canada in Carey v Laiken(supra) stated that;

“Contempt of court rests on the power of the court to uphold its dignity and process.  The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect… the purpose of contempt is first and foremost a declaration that a party has acted in defiance of a court order.

36. And Justice Nkabinde made it clear that Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of state.  In doing so, courts are not only giving effect to the rights of the successful litigant but also more importantly, by acting as guardians of the constitution, asserting their authority in the public interest. (Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & Another) (supra)

37. Back home, the case of Commercial Bank of Africa v Ndungu (1990 – 1994) EA 64 contains the principle that it is a fundamental rule of law, that court orders be obeyed.

38. In Hon. Martin Nyaga Wambora and Another v Justus Kariuki Mate & Another [2014]eKLR the Court of Appeal stated:

“The duty to obey the law by all individuals and institutions is cardinal in the maintenance of rule law and due administration of justice.

39. The Court of Appeal went on to cite its own decision in the case of Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another (Civil application No 39 of 1990) which held that:

“It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times.”

40. From the long line of decisions above the court’s singular duty is to ensure that its orders are obeyed for the maintenance of the rule of law administration of justice, good order and development of society.  What is in question in this application is the conduct of the 1^st respondent and its officers with regard to the judgment and decree of the court.  It is clear that there was a deliberate intent from the very beginning not to comply with the court’s judgment.  That is why a party whose nomination certificate had been nullified and applied for stay to go on appeal, took advantage and presented his documents.

41. After that act was challenged and the court ordered that the judgment be complied with, the 1^st respondent did not conduct repeat nomination as ordered and when challenged through these proceedings, the answer given was that it handed the same person who had tried to circumvent the judgment of the court, a direct nomination without showing that it complied with its own rules.  Rule 18.1 stipulates how nominations should be conducted while Rule 18:2 is clear that there be a notice of method of  nomination in an electoral area and NEB is obliged to publish resolutions by NEC on such methods, twenty one (21) days prior to nominations.  As pointed out earlier, Port Reitz falls outside zone C where direct nomination may be done.  Once the party decided to hold primaries, it could not change to direct nomination without notification since it would be against its own rules. The applicant as a member of the 1^st respondent had legitimate expectation that the party would follow its own rules in complying with the judgment and decree of the court which it did not.

42. Counsel for the 1^st respondent submitted that the 1^st respondent exercised its discretion in complying with the court order and that due to shortage of time, it had to use direct nomination.  I am afraid that submission cannot be correct.  There is no discretion when it comes to compliance with court orders.  There is only one duty – to comply and not to decide how to comply. on time, again this is neither here nor there.  The judgment was made on 24^th May, 2017, it was stayed to 29^th May 2017 at 12noon to allow the dissatisfied party to appeal.

43. On 29^th May 2017 at 12.01 there being no appeal, the 1^st respondent had an obligation to comply with the courts judgment.  On 2^nd June 2017 it was given 36 hours to comply and again if there was shortage of time, it could have approached the court for extension of time or variation of the order.  It did not do so.

44. As stated in the case of Re: Vinay Chandra Mishra [(1995) 2 SCC 584];

“Whenever there are obstructions or difficulties in compliance with the orders of the court, least that is expected …is to approach the court for extension of time or clarifications, if called for. But, where the party neither obeys the orders of the court nor approaches the court making appropriate prayers for extension of time or variation of order, the only possible inference in law is that such party disobeys the orders of the court. In other words, it is intentionally not carrying out the orders of the court. Flagrant violation of the court’s orders would reflect the attitude of the concerned party to undermine the authority of the courts, its dignity and the administration of justice.”

I fully agree with the above observations, and on that, I am satisfied that the 1^st respondent and its officers are in contempt of court.

45. Regarding the appropriate orders to make in this matter, the applicant has asked that IEBC, the 1^st interested party, be restrained from acting upon the impugned nomination certificate and exclude any other MCA nominee for Port Reitz Ward except himself. This prayer has twin effects; one excludes the 2^nd respondent and in his place, allows the applicant to stand as nominated.

46. The 1^st respondent has argued that if the order is granted excluding the 2^nd respondent, the party will suffer because it may not present a candidate. First, the court cannot order that the applicant be granted a certificate because that is not the mandate of this court.  It is the responsibility of a political party to nominate candidates while the duty of the court is to resolve disputes and make appropriate orders.

47. Second, on the 1^st respondent’s concern that if the order is made barring 2^nd respondent’s inclusion, the party will not have a candidate, I wish to state that the courts mandate is to determine whether a party, complied with the law or not.  It is not to tell the party how to do its business but it must act in accordance with the law and comply with court orders.  If not the court will say so and nullify any purported action done in contravention of the law or court orders.

48. The people of Port Reitz ward deserved no less than democratic  nomination in accordance with party nomination rules.  It is not too late, the 1^st respondent can still do that.  But for now, I am satisfied, that for the ends of justice and to make court orders have meaning, I am persuaded that prayer 5 is for granting though with variation.  The orders that the Court makes are as follows:

“1. The application dated 12^th June 2017 is hereby allowed.

2.  Judy Pareno and Dr Ronert Arunga Chairperson and Secretary, National Election Board (NEB) of the 1^st respondent (ODM) respectively, are hereby formerly cited for Contempt of Court for disobedience of the Judgment and Decree of Court dated 24^th May 2017, and are hereby called upon to Show Cause Why they should not be punished.

3. The Independent Electoral and Boundaries Commission, (IEBC), the 1^st Interested Party herein, is hereby restrained from gazetting the name of FADHILI MWALIMU MAKARANI the 2^nd Respondent herein as the 1^st Respondent ODM’s Nominee for Port Reitz Ward, Changamwe Constitution, Mombasa County pursuant to a Nomination Certificate issued by the 1^st Respondent in violation of the Judgment and Decree of the Court dated 24^th May 2017 and the subsequent Order of 2^nd June 2017, until full compliance.

4. Judy Pareno and Dr Robert Aruya, do attend Court on 16^th June 2017 at 3.00p.mto show cause why they should not be punished for contempt of court. Summons do issue accordingly.

5.  The 1^st Respondent do pay costs of the applications.

Dated, Signed and Delivered at Nairobi this 14^th Day of June, 2017

E C MWITA

JUDGE