[2022] KEPPDT 1022 (KLR)

Amukhale v Amani National Party N.E.B & another (Complaint E011 (KK) of 2022) [2022] KEPPDT 1022 (KLR) (Civ) (26 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1022 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E011 (KK) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 26, 2022

Between

Joab Mwamito Amukhale

Complainant

and

Amani National Party N.E.B

1st Respondent

Moses Musundi

2nd Respondent

Judgment

Background 1. The complaint herein is based on the ground that the Complainant having vied for position of Member of County Assembly [MCA] Shieywe Ward and having won after garnering 553 votes, has been denied his rightful nomination slot despite the fact that he had been declared the winner by the party Returning Officer, one Levy Juma.

2. The complaint is further premised on the fact that the political party has since issued a provisional Nomination Certificate to the 2nd Respondent herein.

3. Attempt to resolve the matter internally flopped after a complaint that was lodged with the party has never been determined as the party Dispute Resolution organ collapsed and since the filing before it has failed to deliver its verdict one month after it heard the parties.

4. Therefore the Complainant filed the complaint herein and prays that the political Party issues him with the Party Nomination Certificate since he was declared the winner of the nomination exercise and that the party clears him as its nominated candidate for Shieywe Ward and include him in the party list.

5. The Respondents were served and affidavits of service have been filed to that effect.

The Complainants Submissions 6. The Complainant submits that on 20th April 2022, the political party conducted its nomination exercise for the position of MCA Shieywe Ward. The nomination exercise took place in four polling stations and the final vote results numbers were as follows:i.Joab Mwamto….. 553ii.Reuben Imbumi…..22iii.Wycliffe Givedi… 15iii.Azangala Christabel.. 01iv.Moses Musundi…. 164

7. When the political party failed to issue the nomination certificate to the Complainant, he filed a complaint on 20th April, 2022 with the Party complaints organ and wrote letters on this matter.

8. The party set down the dispute for hearing on 06/04/2022, on which date the Complainant was heard and directed to file written submissions. The written submissions were filed on the even date and the committee promised to deliver its verdict within 2 days thereof.

9. The Complainant submits that despite spirited attempts to follow up with the party through letters and phone calls he remains unanswered.

10. It is the Complainants submission that the Party issued Notice to Show Cause to the person who issued fake results and certificate to the 2nd Respondent, in which letter the Committee notes that the person invited to show cause has committed an offence in purporting to issue the party nomination Certificate to the 2nd Respondent. This is a clear legitimization of this complaint.

11. The party goes on to state that the results that were announced by the person called Moses Oburu were not the correct results as captured in the Kakamega County Official Tally Form, and that the said Moses Oburu was not designated as the Returning Officer.

12. The Complainant submits that in the face of the facts as presented he deserves to have the prayers sought in the complaint issue.

13. The Respondents though served as shown by the affidavit of service filed, did not respond to the complaint.

Preliminary Issue 14. The 1st Respondent did on 25th May 2022 file a memorandum of appearance vide their Advocate on record and also raised a preliminary issue on points of law on account of Article 88 (4) of the Constitution of Kenya and Section 40 (fa) of the Political Parties Act.

15. The issue of jurisdiction over determination of electoral nomination disputes has been litigated in the Superior Courts of the land and the Courts, more particularly in Fredrick Odhiambo Oyugi v Orange Democratic Movement & 2 others (Civil Appeal No 199 of 2017), para 27, where the Court of Appeal noted:‘On the face of those provisions conferring jurisdiction on the IEBC and PPDT respectively, there is no doubt that both the IEBC and the PPDT are clothed with the power to deal with disputes arising from nominations.’

16. In deed the legislators of the land went on vide the 2022 amendments to the Political Parties Act to squarely place disputes arising from political party nominations within the ambit of the Political Parties Disputes Tribunal.

17. Although by written law the PPDT and IEBC have concurrent jurisdiction relating to adjudication of electoral disputes, in practice, the PPDT’s jurisdiction relates to disputes concerning party primaries and party list nominations, while the IEBC has jurisdiction after it receives names of party candidates or party lists for clearance. While the PPDT may adjudicate over disputes relating to party primaries and party list nominations; that jurisdiction stops once IEBC has cleared a political party nominee.

18. The current dispute concerns the determination of the final party nominee as its candidate for the seal in issue in the coming general elections in August 2022.

19. This Tribunal is therefore properly seized of this matter and the Preliminary Objection is dismissed.

Issues for Determination 20. This being an un defended suit, the only issue before us is whether the prayers sought are justified.

Analysis and Determination 21. The Complainant has attached to his affidavit and bundle of documents a receipt showing payment of membership, vote tallying returns and his various correspondence addressed to the NEB [National Elections Board of the Party] seeking issuance of his nomination certificate.

22. We are thus inclined to find that his claim is justified

Conclusion 23. In light of the aforesaid analysis and findings we order as follows:a.That the 1st Respondent herein Amani National Congress (ANC) forthwith forward the name of the Complainant Joab Mwamto Amukhale to the Interested Party – the Independent Electoral and Boundaries Commission, for gazettement as their nominee candidate for the position of Member of County Assembly Shieywe Ward, Kakamega County in the August 2022 general election.b.That Amani National Congress forthwith issue a nomination certificate in respect of the Member of County Assembly position in Shieywe Ward Kakamega County in the name of Joab Mwamto Amukhale the Complainant herein.c.That any purported nomination certificate issued by Amani National Congress in respect of the Member of County Assembly seat in the coming August 2022 general elections to Moses Musundi is hereby revoked.d.That notification of this order issue to the Independent Electoral and Boundaries Commission.e.Costs are awarded to the Complainant as against the 1st Respondent.It is so ordered.

DATED AND DELIVERED (VIRTUALLY) ON THIS 26TH DAY OF MAY 2022M. L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)