[2022] KEPPDT 973 (KLR)

Bett v United Democratic Alliance; Independent Electoral and Boundaries Commission (Interested Party) (Miscellaneous Application E001 (NRB) of 2022) [2022] KEPPDT 973 (KLR) (Civ) (11 September 2022) (Ruling)

Neutral citation: [2022] KEPPDT 973 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Miscellaneous Application E001 (NRB) of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

September 11, 2022

Between

Ann Jepleting Bett

Applicant

and

The United Democratic Alliance

Respondent

and

The Independent Electoral And Boundaries Commission

Interested Party

Ruling

1. The Complainant is Ann Jepleting Bett claims to be a registered member of the Respondent, United Democratic Alliance (UDA) party since its inception, and ascribes to the values and principles of the party as enshrined in the party's constitution. She expressed interest by applying to be considered fo nomination for the position of Member of County Assembly for Nandi County Assembly under the Gender Top Up List Category.

2. Upon presentation of her credentials to the relevant party organ of the Respondent, she claims that her name was published, and appeared at Number 15 of the eligible nominees for election by way of nomination for the position of Member of County Assembly for Nandi County Assembly (Gender Top Up List), in the Standard Newspaper of July 27, 2022.

3. She further avers that on or about August 23, 2022, she came across another list published by the Interested Party and her name was omitted from the list and that upon such realization, she approached the Respondent's Electoral and Nomination Dispute Resolution Committee, EDRC, by way of a complaint letter dated August 24, 2022. The Respondent's EDRC heard her complaint and rendered a Ruling on August 28, 2022 directing that Respondent IEBC to utilize the list as initially submitted to the Interested Party by the UDA Party. She seeks that the Interested Party utilize the initial list as provided by the Respondent and to abide by the ruling of the Respondent’s EDRC as sh feels that political rights as enshrined under Article 38 are under great threat of violation in case the Interested Party proceeds and utilizes the second purported list. She filed a notice of motion supported by an affidavit with several annexures dated September 7, 2022.

Complainant’s Case 4. The Complainant is Ann Jepleting Bett who states to be a registered member of the Respondent, United Democratic Alliance (UDA) party since its inception, and ascribes to the values and principle of the party as enshrined in the party's Constitution.

5. She expressed interest, and applied to be considered for nomination for the position of Member of County Assembly for Nandi County Assembly under the Gender Top Up List Category. Upon presentation of her credentials to the relevant party organ of the Respondent, she claims that her name was published, and appeared as Number 15, of the eligible nominees for election by way of nomination for the position of Member of County Assembly for Nandi County Assembly (Gender Top Up List), in the Standard Newspaper of July 27, 2022.

6. Due to her name appearing as number 15 on the list she legitimately expected to be elected by way o nomination for the position of Member of County Assembly for Nandi County Assembly under the Gender Top Up List category, in case the Respondent was eligible to nominate nine members to Nandi County Assembly.

7. She states that after the elections on August 9, 2022, the Respondent garnered majority elected members for the position of Member of County Assembly for Nandi County Assembly and was confident that she would be nominated for the position of MCA for Nandi County Assembly.

8. However, on or about August 23, 2022, she states that she came across another list published by th Interested Party and her name was omitted from the list and that upon such realization, she approached the Respondent's Electoral and Nomination Dispute Resolution Committee, EDRC, by way of a complaint letter dated August 24, 2022.

9. The Respondent's EDRC heard her complaint and rendered a Ruling on August 28, 2022. The EDR Committee directed that Respondent utilise the list as initially submitted to the Interested Party. Sh avers that even having being furnished with the list, the Interested Party is yet to amend or utilise th initial list as submitted by the Respondent. She seeks that the Interested Party utilize the initial list a provided by the Respondent and to abide by the ruling of the Respondent’s EDRC as she feels that political rights as enshrined under Article 38 are under great threat of violation in case the Interested Party proceeds and utilizes the second purported list.

10. The Complainant is apprehensive that if the orders sought in this motion application are not grante the Interested Party will proceed and nominate ineligible Members of County Assembly for Nandi County Assembly thus making the Applicant suffer irreparable loss.

11. The Complainant sought the following orders:1. This application be certified urgent and service of the same be dispensed with in the first instance;2,This Application be heard ex-parte in the first instance.3,That this Honourable Tribunal be pleased to adopt the decision by the Respondent's Electoral andNomination Dispute Resolution Committee dated August 28, 2022 as the Ruling of the Honourable Tribunal4,Consequent to granting of prayer (3) above, the Honourable Tribunal be pleased to grant an order enforcing the decision of the Respondent's Electoral and Nomination Dispute Resolution Comrnittee a adopted by the Honourable Tribunal5. This Honourable Tribunal be pleased to grant an order of prohibition prohibiting the Interested Party whether by themselves, agents, servants and/or employees from utilizing the Respondent's amended Party List for election by way of nomination for the position of Member of County Assembly for Nandi County Assembly (Gender Top Up List) published on or around August 24, 2022. 6.The Applicant be awarded costs of this suit

Respondent’s CaseThe Respondent did not make an appearance and did not file any submissions

Interested Party’s CaseThe Interested Party did not make an appearance and did not file any submissions

Issues For Determination: 12. On an analysis of the Complaint, Application and all other documents put before this Tribunal, the following emanate as the issue for determination:i.Does the Tribunal have jurisdiction to entertain this Complaint and grant the orders as framedi.Does the Tribunal Have Jurisdiction to entertain this Complaint and grant the orders as framed?

13. The words of Justice Nyarangi JA in The Motor Vessel “Lilian S” case still hold good and as a Tribunal, we stand guided by them. The good Judge opined, “Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

14. On a Plain reading of the record before this Tribunal, it is clear that the complaint before us constitutes a dispute between a party member and a political party. The Complainant is protesting the decision of the Party to remove her name from the Party’s nomination list. The dispute thus falls within the jurisdiction of the Tribunal as per Section 40(1) of the Political Parties Act.

15. However, Section 40(2) of the same statute provides that a dispute between a Political Party and a member of the Party must demonstrate an attempt of having subjected the dispute to the Party’s Internal Dispute Resolution Mechanism (IDRM) in hope to resolve the dispute. Only after attemptin to use the Party’s IDRM can this Tribunal’s jurisdiction be invoked.

16. The Respondent's EDRC – (the party) heard the complainant and rendered a Ruling on August 28, 2022. The EDR Committee directed that Respondent being IEBC to utilise the list as initially submitted to the Interested Party.

17. The Complainant herein avers that even having being furnished with the list, the Interested Party is yet to amend or utilise the initial list as submitted by the Respondent being the UDA Party. A perus of the record before this Tribunal no evidence has been tendered to support this averment by the claimant of having furnished the IEBC with the decision of the EDRC or the List initially furnished by the UDA party. Notably no evidence has been presented to show that the IEBC acted contrary to the ruling of the EDRC of the Party issued on the August 28, 2022.

18. In totality of the foregoing, the Tribunal sits to determine the legality or otherwise of the decision o the EDRC if a party to that decision is aggrieved by it. It is clear that the Claimant is Not Aggrieved by the decision of the EDRC therefore no dispute exists between the political party and the member of the political party as per section 40 of the Political Parties Act.

19. The Tribunal is asked to affirm the decision of the EDRC and adopt the same as an order of the Tribunal, this is not a known remedy available for the Tribunal to issue. Had the parties recorded th decision of the EDRC as a consent between the parties before this Tribunal then we would consider adopting such a consent with terms therein as an order of this tribunal. Counsel ought to have thought of this, and explored this avenue.

20. Before we pen off, we recommend and advise that the Complainant and the Political Party who are harmoniously in sync to forward the undisputed decision of the EDRC issued on the 28th August 202 to the IEBC for compliance that is the best this Tribunal can do.

21. Having made our recommendation and advisory we note that this Tribunal’s Jurisdiction has been invoked where no dispute has arisen and parties are content with the decision of the IDRM as such we have no option but to down our tools and subsequently cannot issue the orders as framed andss prayed.

FindingIn conclusion, we make the following orders:i.The Application dated 7th day of September 2022 is hereby dismissed, with a note of the recommendation above.ii.No order as to costs.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 11TH DAY OF SEPTEMBER 2022. Hon. Ligunya Stephen -Presiding MemberHon. Hashi Amina -MemberHon. Andrew Waruhiu -Member