Court of Appeal settles Mandera East ODM nomination tussle

The appellate court has revoked the nomination of Ms Dekha Khala to vie for the Mandera East parliamentary seat after the electoral commission cleared two candidates to run on an ODM ticket.

Both Mr Hussein Weytan and Ms Khala had claimed to be valid contenders nominated by ODM to fly its flag in the August 9 General Election and even the Independent Electoral and Boundaries Commission (IEBC) cleared the two.

Ms Khala had moved to the High Court, disputing her replacement by Mr Weytan as the party’s candidate and the court declared her a valid candidate, prompting Mr Weytan to appeal.
On Wednesday, justices Daniel Musinga, H.A. Omondi and Dr K.I. Laibuta of the Court of Appeal revoked Ms Khala’s nomination.

“The judgment of the High Court delivered on May 30, 2022 is hereby set aside and the appellant (Mr Weytan) be and is hereby deemed to have been validly nominated as the ODM party’s nominee for the position of Member of Parliament, Mandera East Constituency,” reads the ruling.

The three judges observed that despite the generality of section 41(2) of the Political Parties Act, the jurisdiction to determine disputes relating to the nomination of party members for election is reserved for the party’s internal dispute resolution mechanisms. 

“Having properly moved to the Tribunal and obtained a judgment with which the two aspirants complied, to the end of the repeat nomination process, that dispute stood resolved, leaving nothing subject to appeal,” the court said.

The Court of Appeal found that it was true that Ms Khala had accepted the benefit of the repeat nomination process as directed by the tribunal and, therefore, could not turn around (on appeal) and allege the invalidity of that decision that conferred the benefit.

It was established that the High Court had no jurisdiction to open a judgment delivered by the tribunal as both aspirants had voluntarily complied with the directions of the tribunal and submitted to a repeat nomination process, which had not been challenged.

“In effect, Ms Khala’s appeal from the already-executed judgment of the Tribunal was not founded on any constitutional or statutory right of claim. Moreover, a court’s jurisdiction flows from either the Constitution or legislation or both,” the justices ruled.

The sequence of events leading to Ms Khala’s appeal to the High Court suggest that it had no jurisdiction to reopen the judgment of the tribunal with which the parties had complied with the letter, the court noted.

“It matters not that the 1st respondent was unhappy with the repeat nomination process, which she is yet to challenge. In addition, we find no basis for the 1st respondent to drag the 4th respondent (IEBC) into the proceedings leading to the appeal,” the judges said.

“Having carefully considered the record of appeal, the parties’ submissions and the cited authorities, we reach the inescapable conclusion that the High Court had no jurisdiction to entertain Ms Khala’s appeal.

“Accordingly, we hereby order and direct that the appellant’s (Mr Weytan) appeal be and is hereby allowed.”

The High Court ruled on May 30 that Ms Khala was the valid ODM nominee for the Mandera East seat, but Mr Weytan and his team blocked her from accessing the IEBC’s Mandera East offices to serve the returning officer.

Mr Weytan was cleared on May 29, only for Ms Khala to be cleared the following day, with Mandera East Returning Officer Mohamed Olow claiming he had not noticed the court had barred the clearance of Mr Weytan.

Mr Weytan was among aspirants who lost in the Jubilee Party primaries and defected to ODM.
Others who joined ODM after losing in Jubilee nominations in Mandera included Mr Mohamed Ali alias Mohamed Qaras, and Ms Uba Ibrahim alias Uba Gedi.

At the Court of Appeal, Mr Weytan said he was a member of ODM just like Ms Khala.

ODM issued Ms Khala with a nomination certificate on April 20, the same day it conducted nominations, but it also gave Mr Weytan a nomination certificate on April 22.

Ms Dekha rushed to the Political Parties Disputes Tribunal (PPDT) and on May 15 it declared her nomination null and void.

The PPDT ruled that ODM’s action was contrary to the principles of fair administrative action.

It also barred the IEBC from accepting, registering or gazetting Ms Khala as the ODM candidate for the Mandera East seat and ordered the party to undertake fresh nomination within 48 hours.

ODM claimed it carried out a fresh nomination on May 16 in which Mr Weytan won.

Dissatisfied with the outcome of the repeat nomination, Ms Dekha appealed the tribunal’s decision but failed to challenge the outcome of the repeat nomination.

The Court of Appeal judges noted that Ms Khala preferred the appeal despite her willful submission to the repeat nomination process, whose outcome remained unchallenged.

In a judgment delivered on May 30, Justice Joseph Sergon set aside the PPDT’s decision directing the ODM to conduct fresh nominations and ordered the ODM’s National Election’s Board to declare Ms Khala as the only validly nominated candidate for the seat in accordance with the nomination certificate dated April 2022.

Dissatisfied with the High Court decision, Mr Weytan asked the Court of Appeal to set aside the High Court judgment that declared Ms Khala the valid ODM candidate.

He also asked the court to declare him the ODM nominee for Mandera East MP.

He also sought an order directing the IEBC to accept his nomination pursuant to the nomination conducted on May 16.

Represented by Prof Tom Ojienda and Associates, Mr Weytan claimed that the High Court judge erred in law when he failed to appreciate that only the IEBC had jurisdiction to entertain the complaint lodged with the PPDT.

“The learned judge erred in law and fact by entertaining the 1st respondent’s (Ms Khala) appeal against the PPDT’s decision which had been fully implemented, and while there was no decision to be appealed,” Prof Ojienda argued.

He argued that the High Court erred in law by granting orders that were not sought by Ms Khala on appeal and that he erred in fact and in law by failing to appreciate or find that Ms Khala’s nomination certificate had been revoked.

ODM had written to IEBC chairman Wafula Chebukati on June 2, protesting the clearance of Ms Khala as the party’s candidate for Mandera East.

In the letter signed by Ms Catherine Mumma, ODM said Mr Weytan was the valid candidate.

At the court, a Mr Tiego, representing the IEBC, said his client was needlessly dragged into the proceedings and sought costs against Ms Khala.

Ms Khala was represented by Mr Awele.

“Having carefully considered the record of appeal, the written and oral submissions of the parties, all relevant statute and case law, we hasten to observe that, despite the multiplicity of the grounds raised in the appeal before us on mixed points of law and fact, our considered judgment turns on the decisive question as to whether the High Court of Kenya at Nairobi (J.K. Sergon, J.) had jurisdiction to hear and determine Ms Khala’s appeal from the decision of the PPDT Complaint No. E075 of 2022 delivered on 15th May 2022 directing the ODM party to conduct fresh nominations to which Mr Weytan and Ms Khala voluntarily submitted,” the Court of Appeal judges said.