1.On May 27, 2022, this court delivered a Judgment herein directing that the 2nd and 3rd Respondents herein to conduct fresh nominations by way of universal suffrage within seventy two (72) hours from the date of the Judgment and/or adopt any of the nomination methods set out in Rule 8 of the Orange Democratic Movement Party Primaries Election Rules as approved by the National Executive Committee held on February 12, 2021 with the consent of all the candidates who would be participating in the fresh nominations for East Kano/Wawidhi Ward.
2.On June 16, 2022, the 1st Respondent herein filed a Notice of Motion dated June 15, 2022 seeking orders that this court be pleased to cite the Chairperson of the 3rd Respondent, one Catherine Muyeka Mumma as well as the other members of the 3rd Respondent, that is Abdullahi Diriye, Richard Tairo, Syntei Nchoe and Emily Awita for contempt of the Judgment and Orders of this court issued on May 27, 2022, and commit them to civil jail and/or sentence them accordingly under the law. He also prayed that the Independent Electoral Boundaries Commission (IEBC) be barred from gazetting the Appellant as the 2nd Respondent’s nominated candidate for the position of Member of County Assembly East Kano/Wawidhi Ward pending the hearing and determination of his present application.
3.The said application was supported by an Affidavit that he swore on June 14, 2022. He averred that after the Appellant’s appeal was dismissed by this court on May 27, 2022, the court issued orders which the Appellant, the 2nd and 3rd Respondent had failed to obey to date. He added that the said 2nd and 3rd Respondents wrote to the IEBC on May 30, 2022 indicating that they had nominated the Appellant for the impugned position and requested that he be cleared for the August 2022 elections.
4.He was apprehensive that the IEBC intended to gazette the Appellant despite overwhelming evidence that the nomination process was unfair as the 2nd and 3rd Respondents had defied the court orders directing them to hold fresh nominations via universal suffrage.
5.It was his case that the 2nd and 3rd Respondents’ actions of ignoring court orders were highly prejudicial to him as they were meant to deny him his constitutional rights. He added that if the Appellant was gazetted by the IEBC as the 2nd Respondent’s candidate for the impugned position, he would suffer substantial loss by being evicted from the electoral process. He urged the court to grant him the orders he had sought in his application.
6.When the said application that had been filed under Certificate of Urgency was placed before the Duty Judge on June 16, 2022, it was directed that the same be placed before this court on 28th June 2022 as that is when it would be sitting. However, the 1st Respondent filed an Amended Notice of Motion application dated June 20, 2022 and filed on June 24, 2022 seeking that the Notice of Motion application dated June 15, 2022 and filed on 16th June 2022 be heard urgently as the deadline for the publication of nominees was June 24, 2022.
7.In the said Amended Notice of Motion dated June 20, 2021 and filed on 21st June 2022, the 1st Respondent sought that the Interested Party be barred from gazetting the Appellant’s name as the nominated candidate for the position of Member of County Assembly of East Kano/ Wawidhi Ward pending the hearing and determination of his Notice of Motion application dated June 15, 2022 and filed on June 16, 2022. This court thus determined that the substantive application it was required to hear and determine was the Notice of Motion application dated June 15, 2021 and filed on June 16, 2021.
8.The Appellant and the 1st Interested Party did not file any response in opposition to the said application.
9.On their part, on July 4, 2022, the 2nd and 3rd Respondents filed a Replying Affidavit sworn on their behalf by Abdullahi Diriye, a Commissioner at the Orange Democratic Party National Election Board of the Orange Democratic Party (NEB).
10.They averred that the 1st Respondent’s application was incompetent, an abuse of the court process and that the alleged contemnors were not parties in these proceedings. They added that the 1st Respondent had not tendered evidence of personal service upon the alleged contemnors and that neither the Judgment of the Political Parties Disputes Tribunal nor that of this court dated May 27, 2022, personally directed the alleged contemnors to undertake specific actions.
11.They further contended that they invited all aspirants for the position of Member of the County Assembly for East Kano, including the 1st Respondent herein, to a consensus-building meeting on 4th and 5th June 2022. They stated that it was from the aforesaid meeting that they escalated the question of party primaries for East Kano/Wawidhi Ward to the Central Committee for review and deliberation.
12.They stated that on June 7, 2022, the Central Committee as per its Party Constitution and the Party Primaries and Elections Rules resolved to nominate the Appellant as the preferred nominee for the position of member of the County Assembly for East Kano/ Wawidhi Ward.
13.They asserted that no admissions were made concerning the 1st Respondent serving the alleged contemnors with the application herein or a hearing notice and put him to strict proof thereof.
14.It was their contention that through his actions, the 1st Respondent had constructively waived his right to seek recourse in that the present application was brought after the 1st Interested Party had cleared the Appellant as the 2nd and 3rd Respondents’ candidate for the position of Member of the County Assembly for East Kano/Wawidhi Ward following the strict constitutional timelines imposed upon the 1st Interested Party.
15.They stated that as at May 30, 2022, the 1st Respondent was aware of the 2nd and 3rd Respondents’ decision to nominate the Appellant but that he filed his present application twenty five (25) days after the Judgment herein was delivered. They argued that the inordinate delay in filing the same flew in the face of the twin principles of legal certainty and repose by prejudicing and hampering the efficacy and efficiency of their and the 1st Interested Party’s administration in the upcoming general elections.
16.They were emphatic that the application was grounded on vague generalities that did not disclose the illegality, irrationality, or unreasonableness attributed to their acts. They urged the court to dismiss the said application.
17.The Appellant and the 1st Interested Party did not file any submissions. If they did, then the same were not placed in the court record. On the other hand, the 1st Respondent’s Written Submissions were dated July 6, 2022 and filed on July 7, 2022 while those of the 2nd and 3rd Respondent were dated July 4, 2022 and filed on July 5, 2022.
18.The Ruling herein is therefore based on the said Written Submissions which parties relied upon in their entirety.
19.The 1st Respondent pointed out in his submissions that he would not waste time explaining contempt of court but urged the court to move on its own motion and cite any persons who had disobeyed its orders. He added that it was not in contention that the court issued orders on May 27, 2022 and that all the parties were present and that they were further served via email but that the 2nd and 3rd Respondents disobeyed the said orders.
20.He pointed out that the Appellant, the 2nd and 3rd Respondent were aware of time limitations since the elections are in August, 2022 and therefore they could not use time constraints as an excuse to disobey court orders. In this regard, he placed reliance on the case of State v Zuma & others  ZACC 18 and Borrie and Lowe’s Law of Contempt 2nd Edition 1983 where the common thread was that the rules embodied in the law of contempt of court are intended to uphold the effective administration of justice and effectiveness and the legitimacy of the judicial system.
21.He was emphatic that an obvious injustice was occasioned in this case and the court must give an appropriate remedy. He added that the court had the power to revoke any certificate issued by IEBC and order that its orders issued on 27th May 2022 be followed to the letter and the issue of time not to be used as an excuse to cause an injustice to him.
22.On their part, the 2nd and 3rd Respondent submitted that the application for contempt herein was irreparable defective as it violated the rules of natural justice as espoused under Article 50(2)(b)(f)(j)(k) and 50(3) of the Constitution of Kenya. They argued that it was trite law that contempt proceedings were in the nature of criminal proceedings. In this regard they relied on the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui  eKLR where the court held that due to the gravity of consequences that ordinarily flow from contempt proceedings, it was proper that the order be served and the person cited for contempt should have had personal knowledge of that order.
23.They also placed reliance on the case of Jonathan Toroitich v Moses Lessonet & 2 others  eKLR where the court held that personal service was the preferred mode of service. They argued that the present application completely failed to accord the alleged contemnors their right to fair trial as none of them were parties to the substantive suit herein whether at its inception or after the court delivered its judgment on May 27, 2022 and that there was no evidence that they were personally served with the application for contempt herein and thus aware of the present proceedings.
24.It was their contention that service upon a party was a question of fact and there being no affidavit of service evidencing service of the applicant’s application, the only available conclusion before the court was that service was never effected upon the alleged contemnors. They added that the effect of the 1st Respondent’s failure to effect proper service was eruditely captured by Mativo J in the case of Wachira Karani vs Bildad Wachira  eKLR when he noted that it was a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge was made must be given a reasonable opportunity of appearing and presenting his case and that if this principle was not observed, the person affected was entitled to have any determination which affected him set aside.
25.They further relied on the case of Samuel M. N. Mweru & others v National Land Commission & 2 others  eKLR where the court therein stated that in civil contempt cases, an applicant had to prove to the required standard which was higher than civil cases that the terms of the order were clear and binding to the defendant, that the defendant had knowledge of or proper notice of the terms of the order, that the defendant had acted in breach of the terms of the order and that the defendant’s conduct was deliberate.
26.It was their argument that the present application had failed to satisfy the last two elements of the fundamental elements for civil contempt. They pointed out that the letter dated May 30, 2022 showed their willingness and actual compliance with the court’s judgment. In this respect, they referred this court to the case of Samuel M. N. Mweru & others (Supra) where the court therein observed that unintentional acts of disobedience negated any suggestions of contumacy and would amount to a contempt in theory only and did not render the contemnor liable to punishment.
27.It was their case that the 1st Respondent had not led evidence of their willful failure, refusal and/or neglect to obey the court order or by any of its officers. They were emphatic that the contempt of court was not merely a mechanism for the enforcement of court orders as it not only considered the individual interest of the frustrated successful litigant but also as importantly acted as a guardian of the public interest.
30.They argued that within the context of election related judicial proceedings, a period of a week was inordinate delay. They pointed out that in Paragraph 70 of its Judgment of May 27, 2022, this court was cognisant of the timelines in election petitions and thus provided a three (3) day window for the conduct of party primaries for East Kano/Wawidhi Ward. They added that essentially, any alleged non-compliance on their part, satisfied the tenets of the principle of ripeness and justiciability on May 31, 2022.
31.They were emphatic that since May 27, 2022 the IEBC has gazetted the names of the candidates for the various elective positions and as of the June 24, 2022, it had commenced the printing of ballot papers. It was thus their contention that 1st Respondent had prejudiced the 1st Interested Party’s preparation and the electorate of East Kano’s participation in the elections for East Kano/Wawidhi Ward and that on a balance of probabilities, the prejudice occasioned on the IEBC and East Kano electorate far outweighed any prejudice against the 1st Respondent.
32.Right at the outset, this court agreed with the 2nd and 3rd Respondents that due to the strict election timelines, applications must be filed timeously. Be that as it may, this court was hesitant to dismiss the present application on the ground that the same was not filed immediately the 1st Respondent purported that there was a breach of the court order and instead found that it was in the interests of justice to consider the same on merit.
33.Turning to the substantive issues in the said application, this court noted that the 1st Respondent herein had sought to have the firm of M/S Nyareru & Associates Advocates come on record post judgment. It was evident that the said firm of M/S Nyareru & Associates Advocates filed a Notice of Appointment dated June 15, 2022 on June 16, 2022, the same date the present Notice of Motion application dated June 15, 2022 was filed.
34.The Appellant, the 2nd and 3rd Respondents and the Interested Party did not pick up this issue in their Written Submissions and it was not clear they opted to overlook the same. That notwithstanding, this court found the same to have been pertinent to the proceedings herein and addressed the same.
43.Notably, no leave was required before contempt of court proceedings relating to a breach of court order could be instituted as was held in the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others  eKLR. Such permission was only required where a committal application had been made in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or Court of Appeal as provided in Rule 81.17 of the English Civil Procedure (Amendment No 2) Rules, 2012 (hereinafter referred to as “the English Civil Procedure Rules”).
44.On the question of when service of an order was deemed to have been effected, this court looked at Rule 81.8 of the English Civil Procedure Rules which provides as follows:-a.By being present when the judgment or order was given or made;b.By being notified of its terms by telephone, email or otherwise.”1.This court’s interpretation of use of the word “otherwise” in Rule 81.8 of the English Civil Procedure Rules envisaged many other modes how a person could be notified of judgment and order and that it was not only limited to notification by telephone and email. In fact, restricting the mode how notification could be done in this technological era would be foolhardy as the means of electronic communication evolve with each passing day.2.The parties herein and/or their counsel were present when this court delivered its Judgment on 27th May 2022. Personal service was thus dispensed with as was contemplated under Rule 81.8 of the English Civil Procedure Rules and for all purposes and intent, the said contemnors, namely, Catherine Muyeka Mumma, Abdulahi Diriye, Richard Tairo, Syntei Nchoe and Emily Awita were deemed to have been duly aware and notified of the court’s orders through their counsel.3.As can also be seen in the Minutes of the extract of the Central Committee on the consideration of the Report of the Party Primaries that was held on 7th June 2022 at Emory Hotel, Nairobi City County that was annexed to the 2nd and 3rd Respondents’ Replying Affidavit addressed hereinbelow, both Catherine Muyeka Mumma and Abdulahi Diriye were present at the meeting when the contents of the court’s Judgment were discussed. As none of the contemnors denied having been associated with the 2nd and 3rd Respondents herein, the 2nd and 3rd Respondents’ submissions that the contemnors were not personally served with the said orders thus fell by the wayside.4.Having established that the contemnors were duly served with the court orders, the question that arose was whether they were in contempt of court orders. In the aforesaid 2nd and 3rd Respondents’ Replying Affidavit, the 2nd and 3rd Respondents also a Report dated 7th June 2022 by 2nd Respondent’s Executive Director Oduor Ong’wen which indicated that all the aspirants for the East Kano/Wawidhi Ward were invited for a consensus meeting n 4th and 5th June 2022. The matter was referred to the Central Committee when they failed to arrive at a consensus.5.The Report indicated that the said Central Committee opted to issue a direct ticket to the Appellant herein having had due regard to Rule 8(b) and 23(2) (e) of the 2nd Respondent’s Party Primaries Nomination Rules, the applicability of Section 38A of the Political Parties Act, the need for a strong candidate to vie for the East Kano/Wawidhi Ward and the fast approaching time lines of the 1st Interested Party. They argued that what the 1st Respondent was dissatisfied with was the manner of compliance and not complete non-compliance of the court orders.6.Notably, in its decision of June 27, 2022, this court directed as follows:-
51.The purport of the said order was that the first point of call for East Kano/Wawidhi Ward was for the nominations to be conducted by universal suffrage within seventy two (72) hours from the date of judgment. Nomination by any of the other methods set out in Rule 8 of the 2nd Respondent’s Party Primaries Nomination Rules was to be by consent of the participating candidates of East Kano/Wawidhi Ward. In other words, it was only the parties who could consent to dispensing with the nominations by way of universal suffrage and adopt other nomination methods provided in the aforesaid Rules.
52.If no such consent by the participating candidates was arrived at, the only route for the nominations of East Kano/ Wawidhi Ward was to be by way of universal suffrage. There was no role of the Central Committee in issuing a direct ticket to the Appellant herein in the event parties were unable to arrive at a consensus.
53.The court order was self-regulating and needed no further interpretation and/or action by the 2nd and 3rd Respondents. It was their purported attempt to interpret the court order in a manner that was not intended by this court that led to the filing of the contempt of court proceedings and thus put the entire process of gazettement of the candidate for Member of County Assembly for East Kano/Wawidhi Ward in jeopardy.
54.Notably, that the 1st Respondent did not file a Supplementary and/or Further Affidavit to rebut the 2nd and 3rd Respondents’ assertions regarding the efforts that were purportedly made to build consensus and/or whether or not the 2nd and 3rd Respondents in fact called for nominations under universal suffrage as was directed by the court.
55.That notwithstanding, the said Report was silent on the question of whether or not the 2nd and 3rd Respondents even attempted to conduct the party primaries nominations by way of universal suffrage in the first instance as had been ordered by the court. In the 2nd Respondent’s Report, it was stated as follows:-1.The National Elections Board (NEB) advised the members of the Ruling by the High Court delivered on the May 27, 2022 in ….2.In the above decision the Chairperson of the NEB advised the members that the High Court had directed that the National Elections Board should conduct a fresh nomination for the above electoral area within seventy two (72) hours from the date of the decision and only adopt any of the nomination methods set out in Rule 8 of the ODM Party Primary and Nomination Rules with the consent of the candidates who shall be participating in the fresh nomination exercise for East Kano Wawidhi Ward.3.The NEB proceeded to invite all aspirants of East Kano Wawidhi Ward for a consensus meeting that was held on 4th and 5th June 2022 where members discussed and failed to reach a consensus and agreed to refer the matter to the Central Committee.”
56.There was a lacuna as to what transpired between 27th May 2022 when the court delivered its Judgment and on 4th and 5th June 2022 when the consensus meeting was called. It was apparent from the said Report that universal suffrage was not a mode of nomination that was considered by both the 2nd and 3rd Respondents.
57.The issues of strict time lines of the 1st Interested Party and/or the popularity of the Appellant herein hence the adoption of nomination by way of issuing a direct ticket to the Appellant herein were immaterial because parties cannot disobey orders on the ground that time was running out and/or because the Appellant was best placed as a candidate to deliver the ticket for the 2nd Respondent in East Kano/ Wawidhi Ward.
58.Indeed, this court was well aware that the nominated candidates for members of county assemblies were to submit their papers to the 1st Interested Party herein by June 7, 2022 and hence there was sufficient time for the 2nd and 3rd Respondents to have complied with its orders to conduct fresh nominations by way of universal suffrage.
59.In that regard, this court came to the firm conclusion that the 2nd and 3rd Respondents did not comply with the court order of 27th May 2022 and they deliberately and intentionally disobeyed its court order and/or circumvented the court’s orders to issue the Appellant herein a direct ticket so as to lock out the 1st Respondent, action that infringed on the 1st Respondent’s fundamental and constitutional rights.
60.This court was persuaded that the 2nd and 3rd Respondents’ decision to issue a direct ticket to the Appellant herein was deliberate and intended for the reason that the terms of the court order were clear, they had proper notice of the court order and they acted in breach of the court order. This was not an accidental or unintentional disobedience as the 2nd and 3rd respondents had submitted.
61.This court’s view was fortified by the fact that the 2nd and 3rd Respondents disobeyed the orders of the 3rd Respondent’s Appeal Tribunal and the Political Parties Disputes Tribunal (PPDT) that had expressly directed them to conduct fresh nominations where the legitimate expectation was by way of universal suffrage. Both the PPDT and this court’s decision were crystal clear that the said nominations were to be by way of universal suffrage. It could not be that the 2nd and 3rd Respondents had misunderstood all the orders directing them to conduct fresh nominations by universal suffrage at all stages.
62.Due to the strict timelines, parties opted that the contempt of court application proceed by way of affidavit evidence and Written Submissions. The 2nd and 3rd Respondents were thus given full opportunity to present their cases through the affidavit evidence that they adduced and consequently, the contempt of court proceedings did not violate their right to fair trial as envisaged in Article 50 of the Constitution of Kenya, 2010 as they had contended.
63.This court therefore found and held that the affidavit evidence showed that Catherine Muyeka Mumma, the 1st Respondent’s Chairperson, and Abdullahi Diriye, the 2nd Respondent’s Secretary were clearly aware of the court order and what was required to be done.
64.The fact that the 3rd Respondent operated as a team was in the mind of this court irrelevant. Catherine Muyeka Mumma was the 3rd Respondent’s Chairperson and could not escape liability as she was in charge of managing the nomination exercise. The 2nd and 3rd Respondents were artificial persons who could only comply with court orders through its officials who were natural persons.
65.The 1st Respondent did not demonstrate the role of Abdullahi Diriye, Richard Tairo, Syntei Nchoe and Emily Awita as far as compliance of the court orders of May 27, 2022 were concerned and hence this court was not persuaded that it should find them to have been in contempt of the court orders.
66.From the affidavit evidence that was placed before this court, this court came to the firm conclusion that contrary to the 2nd and 3rd Respondents’ assertions, it was they who had prejudiced the 1st Interested Party’s preparation and the electorate of East Kano’s participation in the elections for East Kano/Wawidhi.
67.Notably, whereas the court ordinarily had power to revoke any certificate issued by the 1st Interested Party herein as had been ably argued by the 1st Respondent, no such prayer was placed before this court for consideration. This court therefore found and held that it could not therefore grant such an order.