[2022] KEPPDT 1058 (KLR)

Apudo v Democratic Action Party-Kenya (DAP-K) & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E028 (KSM) of 2022) [2022] KEPPDT 1058 (KLR) (28 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1058 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E028 (KSM) of 2022

W. Mutubwa, Vice Chair, F. Saman & S. Walubengo, Members

May 28, 2022

IN THE MATTER OF THE ELECTIONS ACT, 2011, THE ELECTION LAWS (AMENDMENT) ACTS AND THE ELECTIONS (GENERAL) REGULATIONS 2017. ANDIN THE MATTER OF THE POLITICAL PARTIES ACT, NO 11 OF 2011 AND IN THE MATTER OF THE NOMINATION FOR MEMBER OF COUNTY ASSEMBLY POSITION FOR MASOGO-NYANGOMA WARD, MUHORONI CONSTITUENCY, KISUMU COUNTY

Between

James Joram Apudo

Applicant

and

The Democratic Action Party-Kenya (DAP-K)

1st Respondent

The National Elections Board, Democratic Action Party –Kenya (DAP-K)

2nd Respondent

Collins Omondi Awendo

3rd Respondent

and

The Independent Electoral and Boundaries Commission

Interested Party

Judgment

Introduction 1. This matter concerns the nomination of the Applicant as Candidate for the Masogo -Nyangoma Ward within Muhoroni Constituency, Kisumu County. The Applicant was awarded a nomination certificate for the seat by the 2nd Respondent. Later on, the 2nd Respondent issued a nomination certificate to the 3rd Respondent for the same seat. Being aggrieved by this decision the Applicant approached us for orders declaring him as the duly certified nominee of the 1st and 2nd Respondents and the rightful flag bearer for Masogo Nyangoma Ward, Muhoroni Constituency.

2. The Applicant filed an affidavit of service dated May 25, 2022 confirming service upon the Respondents. Additionally, the Applicant filed a Notice of Motion application under cover of Certificate of Urgency both dated May 23, 2022, as well as Affidavits and Witness Statements in support thereof.

3. The matter came up for hearing on May 27, 2022, the Applicant was represented by Mr Odhiambo who appeared alongside Mr MakOwere. There was no representation on the part of the Defendants.

Applicant’s Case

4. Counsel for the Applicant began by giving a background to the suit. He stated that the Complaint was based on the Applicant’s legitimate expectation. He described how the 1st and 2nd Respondents conducted the nominations and that they had looked at all the candidates, including the Applicant and decided to award the nomination certificate to the Applicant herein. This decision was captured in minutes posted on the 1st and 2nd Respondent’s WhatsApp Group. Furthermore, they gave reasons for nominating the Applicant saying that he was the only candidate in good standing. Counsel for the Applicant pointed out that the 3rd Respondent had an issue with the EACC Certificate as well as a balance with the Party.

4. It is the Applicant’s submission that he later learnt that the 3rd Respondents had been issued with a nomination certificate dated April 9, 2022, while the Applicant’s certificate was dated April 19, 2022. Moreover, that the minutes confirming the Applicant as the nominee were issued on a WhatsApp Group on April 11, 2022.

4. He based his case on the doctrine of legitimate expectation. He further elucidated that there was a legitimate expectation created in the applicant by the minutes and certificate issued to him. He relied on the decision in the case of National Director of Public Prosecutions vs Phillips where the key elements for legitimate expectation were underlined. These were: (a) clear unambiguous communication; (b) Reasonability, which a reasonable man would act on such expectation, (c) expectation must have been induced by the decision maker; (d) It must be lawful. It was counsel’s submission that the Applicant’s had a legitimate expectation that satisfied all these elements.

5. Further, he stated that the purpose of the doctrine was reiterated in R vs CLE & 2 others ex parte Michelle(2019). EKLR, that the purpose of the doctrine of legitimate expectation was meant to prevent individuals against escaping representations that were made from past undertakings. He concluded by stating that the Applicant was the duly nominated candidate for the Ward seat in issue.

4. In the main, he therefore beseeches this Tribunal to nullify the 3rd Respondent’s nomination and, instead, to uphold his nomination as legitimate and direct the party to forward his name to the IEBC as the duly elected candidate for the seat.

Tribunal’s Analysis and Findings

9. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the Applicant has proved his case to the required standard of proof to be granted the Orders sought?ii.Who bears the costs of this case?

10. We will address the issues set out above in the sequence of their listing.Whether the Applicant has proved his case to the required standard of proof to be granted the Orders sought?

Legitimate Expectation

11. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2] where the Supreme Court stated that:-“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

12. Addressing the subject of legitimate expectation, H W R. Wade & C F Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation…. Second, clear statutory words, of course, override an expectation howsoever founded…. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

13. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation, which is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created.The representation itself must be precise and specific and importantly, lawful.

14. Once a reasonable expectation exists the administrator is required to act in accordance with that expectation. It is our considered view that the 1st and 2nd Respondent, created a reasonable expectation in the mind of the Applicant.

15. Furthermore, that the expectation was legitimate since the decision to award him with the nomination certificate was circulated to the party membership by a WhatsApp Group post. We, therefore, hold that the 1st and 2nd Respondents violated the Applicant’s legitimate expectation as well as his right to fair administrative action, by awarding a nomination certificate to the 3rd Respondent.

16. Additionally, we note that the Respondents herein did not enter appearance, despite being served with a hearing notice as evidenced by the Applicant’s affidavit of service. As a result, the Applicant’s allegations remain uncontroverted. We, consequently, allow the Complaint in its entirety and order that the Nomination Certificate for the subject seat be issued to the Applicant.Who bears the costs of this matter?

17. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

18. We thank learned Counsel for their well-articulated submissions and very cogent pleadings.

Disposition

19. In the upshot we make the following Orders:i.We allow the complaint and quash the decision of the 2nd Respondent to issue a nomination certificate to the 3rd Respondent with respect to Member of County Assembly, Masogo Nyangoma Ward within Muhoroni Constituency, Kisumu County.ii.We declare that the Applicant the duly nominated person to fly the 1st Respondent’s ticket for the Member of County Assembly, Masogo Nyangoma Ward within Muhoroni Constituency, Kisumu County in the August 9th 2022 elections.iii.We Order the 1st Respondent to forward the name of the Complainant to the Independent Electoral and Boundaries Commission (IEBC) as the duly nominated person to vie for Member of County Assembly for Nyangoma Ward.iv.Each party shall bear its own costs.

20. Those are the orders of the Tribunal.

Dated at Nairobi and delivered virtually this 28thday of May 2022. _____________________________________________Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – Presiding_____________________________________________Hon. Fatuma Ali Member______________________Hon. Walubengo SifunaMember5