[2022] KEPPDT 1000 (KLR)

Chege v UDA National Elections Board & 2 others (Complaint E079 (NRB) of 2022) [2022] KEPPDT 1000 (KLR) (Constitutional and Human Rights) (18 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1000 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E079 (NRB) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 18, 2022

Between

Kairu Peter Chege

Complainant

and

Uda National Elections Board

1st Respondent

United Democratic Alliance Party

2nd Respondent

Moses Keya Ouma

3rd Respondent

Judgment

Introduction 1. The Complainant is a registered member of the 2nd Respondent Party and was cleared by the 1st Respondent to participate in the party primaries for Member of County Assembly Korogocho Ward in Ruaraka which were to take place on the 14/04/2022.

2. The nomination exercise was conducted as planned in a free, fair, and transparent manner and the results at the tallying centre showed that the Complainant was the winner he was declared as the winner by the Returning Officer and his 1st Runners up was the 3rd Respondent.

3. Upon being declared the winner by the Returning Officer he was issued a provisional certificate as he waited for the final certificate.

4. The Complainant was told to pick up his nomination certificate at the party headquarters on 27/04/2022 and he did so on that day. On 29/04/2022 he saw on the social media photos of his opponent the 3rd Respondent holding a certificate.

5. On visiting the Party Headquarters, he was told by an employee of the party that his name had not been submitted

6. Despite the fact that votes for the Korogocho Ward were tallied and a winner determined, the 1st Respondent issued the 3rd Respondent with the final nomination certificate.

7. The Complainant in his Notice of Motion seeks the following orders:i.an order of injunction restraining the 1st Respondent from presenting any nomination certificate, provisional and/or final to the Independent Electoral and Boundaries Commission declaring the 3rd Respondent as the winner of the 2nd Respondent’s Party Nominations held on 14/04/2022 (“the Party Primaries”) for the position of Member of County Assembly for Korogocho Ward.ii.He also seeks orders of this Tribunal compelling the 2nd Respondent to forward his name to the Independent Electoral and Boundaries Commission as the UDA Member of County Assembly nominee for Korogocho Ward in Nairobi County.

8. The complainant seeks the following orders in the main complaint:a.An order that the nomination of the 3rd Respondent Moses Ouma as the United Democratic Alliance nominee for Korogocho Ward conducted on 14/04/2022 was not in compliance with the law and is hereby nullifiedb.An order of mandamus compelling the 2nd Respondent to nominate and issue a certificate thereof to the complainant to vie for the position of Member of County Assembly for Korogocho Ward or alternatively,c.The Complainant be declared as the duly nominated candidate to vie for the position of Member of County Assembly for Korogocho Ward under the United Democratic Party Alliance.

9. The claim is opposed by the 3rd Respondent who has filed a response to the claim and a replying affidavit together with a notice of preliminary objection all filed and sworn on the 13/05/2022.

10. The Complainant is represented by the firm of M/S Khaminwa and Khaminwa Advocates whereas the 3rd Respondent is represented by the firm of M/S Nelson Otieno and Associates Advocates.

11. Despite being served and there being an affidavit of service on record the 1st and 2nd Respondents never filed a response nor a replying affidavit to the complaint.

Complainants Case 12. The Complainant and the 3rd Respondents are registered members of the United Democratic Alliance party the 2nd Respondent. They were both cleared by the 1st Respondent party organ to participate as candidates for nomination for the position of Member of County Assembly for Korogocho Ward which exercise took place on the 14/04/2022.

13. It is the Complainant’s case that on the 14/04/2022 he contested in the 1st Respondents’ nomination exercise for the position of the Member of County Assembly seat, Korogocho Ward within Nairobi County.

14. They were four contestants in the said exercise and the complainant garnered 135 votes and his closest contender who is the 3rd Respondent garnered 126 votes.

15. The Complainant claims that he was immediately issued with a provisional certificate of nomination on 14/04/2022 and later on the 20/04/2022 a certificate of nomination numbered MCA 1405 which is marked as annexure “KPC1” and “KPC2” in his supporting affidavit.

16. In his further affidavit he contended that two of his competitors i.e. Anastacia Patrick Kamau and Simon Kinyanjui conceded defeat and accepted the results of the said nominations. Their affidavits are attached and marked” PCK -1 a and b” in the further affidavit.

17. The complainant claims that he learnt that the 3rd Respondent was issued with a nomination certificate for UDA as nominee to contend for the Korogocho Ward on the 29/04/2022 on social media where the 3rd Respondent had posted photos holding the certificate.

18. The complainant claims to have written a complaint letter to the 2nd Respondents Internal Disputes Resolution Mechanism organ vide a letter marked “PCK-2” in the further affidavit. But since no action was taken he decided to approach the Tribunal for redress.

19. He maintains that the action of awarding the 3rd Respondent the Nomination Certificate through unscrupulous means is unlawful and infringes on the complainant’s rights and specifically the right to participate in the General Elections of 9/08/2022.

20. He maintains that he stands to suffer irreparable loss unless the Tribunal intervenes and issues the orders sought in the complaint and the Notice of Motion Application.

21. He prays for the orders sort in the complaint and the notice of motion application.

Respondents’ Case. 3rd Respondent’s case. 22. The 3rd Respondent filed his response to the complaint herein and a replying affidavit he swore on the 13/05/2022. He also filed a Notice of Preliminary Objection on the 13/05/2022.

23. The Preliminary Objection by the 3rd Respondent is based on a pure point of law and is intended to strike out the complaint on the following grounds:i.That this Tribunal lacks the statutory jurisdiction to hear and determine the complaint as the local remedies on exhaustion of internal dispute resolution mechanism envisaged under section 40 (2) of the Political Parties Act 2011 was not exhausted by the Complainant.ii.That this Tribunal lacks the statutory jurisdiction to hear and determine the complaint as the local remedies on exhaustion of internal dispute resolution mechanism envisaged under Article 30 (2) of the 2nd Respondents Constitution which is establishes the Electoral and Nomination Dispute Resolution Committee was not exhausted by the Complainant.iii.The Complaint filed herein was filed out of time contrary to rule 8 (1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017which requires the dispute to be filed at least one day before the day set aside by the Interested Party for submission of names of the selected candidates to participate in the general elections pursuant to section 31 (2A) of the Elections Act.

24. In his response, to the Notice of Motion Application and the main complaint, the 3rd Respondent reiterates the preliminary objection on the doctrine of exhaustion and the jurisdiction of the Tribunal to hear and determine the complaint.

25. He admits having participated in the nominations for a member of the county assembly of Korogocho Ward within Ruaraka Constituency in Nairobi County which was conducted on 14/04/2022.

26. He claims that the said nomination exercise was a free, fair, transparent and credible process as per the 2nd Respondent’s party Constitution and the nomination rules.

27. He states that he garnered Four Hundred and Forty-Eight votes (448 Votes) and was declared the winner whereas the Complainant garnered Four Hundred and five votes (405 votes) becoming the second in the nomination.

28. He contends that upon being declared the winner he was issued a provisional certificate of nomination on 15/04/2022 and a final certificate of nomination was issued to him on the 27/04/2022.

29. He alleges that the Complainant disrupted the function at the polling station on the evening of 14/04/2022 when the 3rd Respondent was declared the winner after snatching the results from the Returning Officer.

30. He reiterates the ground on his preliminary objection that this complaint was filed on the 11/05/2022 way past the days when his name was forwarded to the IEBC.

31. He contends that the Complaint was filed out of time contrary to Rule 8 (1) of the Political Parties Disputes Tribunal (Procedure) Rules 2017 which requires the dispute to be filed at least one day before the day set aside by the Interested Party for submission of names of the selected candidates to participate in the general elections pursuant to section 31 (2A) of the Elections Act.

32. He adds that the provisional certificate of nomination dated 15/04/2022 attached by the complainant is not genuine nor authentic as the same was not signed by the Returning Officer nor Stamped by the 2nd Respondent.

33. He states that the final certificate of nomination dated 20/04/2022 issued to the Complainant was cancelled by the 2nd Respondent after the UDA Party realized that the 3rd Respondent was the winner of the nominations and not the complainant.

34. It is the 3rd Respondents case that the Complainant’s Complaint is not proved with evidence.

35. The 3rd Respondent seeks orders affirming the results of Korogocho Ward as announced, tallied and declared on 14/04/2022 and further orders affirming the provisional and final certificate of nomination of the 3rd Respondent as the 2nd Respondent’s Party Candidate for the Member of County Assembly of Korogocho Ward in the 9/08/2022 general elections.

Issues for Analysis and Determination. 36. Having read through the pleadings together with the annexures and also heard the parties highlight their submissions the following issues are for determination in this complaint:i.Whether this tribunal has jurisdiction to hear and determine this matter?ii.What orders can the Tribunal issue in the circumstancesiii.Who bears the costs of this claim?

Disposition Whether the Tribunal has jurisdiction to hear and determine the Complaint. 37. It has been submitted that the Tribunal can only exercise jurisdiction as conferred by the constitution or other written law.

38. The jurisdiction of the Political Parties Disputes Tribunal (PPDT) flows from Section 40 (1) of the Political Parties Act. The nature of the dispute herein concerns party primaries. The PPDT is specifically clothed with jurisdiction to deal with disputes concerning party primaries under section 40 (1) (fa)of the Political Parties Act

39. Section 40 (2) of the Political Parties Act states as follows: “Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e), or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanism”.

40. In Samuel Kamau Macharia & Another v Kenya Commercial Limited & 2 others [2012] eKLR the Court held that: - “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

41. The Complainant has attached in his further affidavit a copy of a letter marked PCK-2 addressed to the Chairman of the National Elections Board United Democratic Alliance Party, its addressed to the National Management Committee of the Party the National Executive Committee and the National Secretariat.

42. The letter is written by S.M.Muhia & Co. Advocates and is dated 9/05/2022 and it refers to nominations for member of County Assembly Korogocho Ward – UDA primaries. The same was received on the 9/05/2022 wherein it is claimed that the complainant’s name was removed from the party list and replaced by that of his opponent the 3rd Respondent.

43. The 3rd Respondent contends that the Complainant did not lodge any complaint or dispute challenging the nominations that were held on the 14/04/2022 before the 2nd Respondent’s Electoral and Nomination Disputes Resolution Committee.

44. The 3rd Respondent also claims that the Complaint herein was lodged after this complaint was filed on the 11/05/2022 way past the days when his name was forwarded to the IEBC.

45. He contends that the Complaint was filed out of time contrary to Rule 8 (1) of the Political Parties Disputes Tribunal (Procedure) Rules 2017 which requires the dispute to be filed at least one day before the day set aside by the Independent and Electoral Boundaries Commission for submission of names of the selected candidates to participate in the general elections pursuant to section 31 (2A) of the Elections Act.

46. Although the letter dated 9/05/2022 has not been challenged and has been addressed to the various organs of the UDA Party it was not addressed to the organ that deals with the Internal Disputes Resolution which is the 2nd Respondent’s Electoral and Nomination Disputes Resolution Committee.

47. That ground alone ousts the jurisdiction of this Tribunal to hear and/or determine the dispute herein as the Complainant has not made a good attempt or exhausted the internal disputes mechanisms of the party as required by section 40 (2) of the Political Parties Act and Article 31 of the UDA Party Constitution.

48. The complaint has therefore been brought prematurely before the Tribunal. The Tribunal has stated time and again that it takes seriously the legal edict in section 40 (2) of the Political Parties Act 2011.

49. The Tribunal will always require parties to demonstrate compliance with the provision of the statute before moving this Tribunal.

50. In Jeconia Okungu Ogutu & Another vs Orange Democratic Movement Party & 5 Others Complaint No. 200/2017 at paragraph 7 this Tribunal stated that “we note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, toBgive the party a good faith chance to resolve it in the first instance. In those circumstances we find that this dispute was filed prematurely.

51. As already stated herein above a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

52. This Tribunal finds that the Complainant did not attempt to resolve the dispute he had with the party as required by Section 40(2) of the Political Parties Act 2011.

53. The 3rd Respondent has raised a preliminary objection that the complaint and the application herein were filed after the 28/04/2022. Having regard to the date set by IEBC for submission of party list for the aspirants going to vie for various seats for the upcoming 2022 general elections and the provisions of regulation 8 (1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 the complaint herein ought to have been filed by 27/04/2022 being at least one day before the day set aside by the Commission for submission of names of the party candidates who have been selected to participate in the general elections.

54. This issue has previously been dealt with by this Tribunal in Complaint No E048 of 2022 Nairobi A at paragraph 57 to 62 where it was observed as follows:“Para 62: In the circumstances of the case Rule 8(1) of the political parties dispute Tribunal (procedure) Regulations, 2017 is void to the extent that it is inconsistent with Section 31 (2A) of the elections Act ………….”

55. Having established lack of jurisdiction due to lack of a good attempt at IDRM, this tribunal finds it needless to delve into the issue of Rule 8(1) and its inconsistency with Section 31 (2A) of the elections Act.

What orders can the Tribunal issue in the circumstances 56. The jurisdiction of this Tribunal is ousted by dint of Section 40 (2) of the Political Parties Act.

57. Since jurisdiction is everything this court cannot make any step and therefore downs its tools.

Who bears the costs of the claim? 58. Each party to bear its own costs.

59. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF MAY 2022. ………………………………………………………HON. ERASTUS ORINA(PRESIDING MEMBER)……………………………………………………………HON. THERESA CHEPKWONY(MEMBER)……………………………………………………………..HON. DANIEL KAGACHA(MEMBER)