[2022] KEPPDT 918 (KLR)

Cheruiyot v United Democratic Alliance Party & 2 others; Commission & another (Interested Parties) (Complaint E012 of 2022) [2022] KEPPDT 918 (KLR) (Civ) (7 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 918 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E012 of 2022

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

August 7, 2022

Between

Risper Jepkener Cheruiyot

Complainant

and

United Democratic Alliance Party

1st Respondent

United Democratic Alliance Party

2nd Respondent

Independent Boundaries & Complaints Commission

3rd Respondent

and

Commission

Interested Party

Commission

Interested Party

Judgment

Introduction 1. This matter concerns the nomination of the complainant as the respondent’s party list nominee under category of youth in Baringo County.

2. The complainant is a 28 year old female member of the Respondent Party, her membership number being UDA 1209114.

3. It is the complainants’ case that she applied for youth nomination slot in the respondent party in its party list in Baringo. That she was shortlisted as No 1 by the IEBC on July 4, 2022. To her surprise and chagrin, she was later removed and her name replaced by that of one Venaline Cherop. We note that the said Venaline Cherop was not made a party to this suit.

4. The complainant indicates that she promptly lodged her complaint with the respondent, but her request fell on deaf ears, prompting her to then move this tribunal for relief. Her prayer is for her name to be reinstated and that what she terms unfair removal be remedied.

5. The respondent and interested party in this matter did not enter any appearance and did not file any response.

6. The tribunal issued the following orders on August 5, 2022 when the matter was filed at first instance:a.That the complaint dated August 4, 2022 be and is hereby certified urgent.b.That the complaint be served upon the respondents by 1. 00 pm on August 5, 2022. c.That the respondents to file and serve their responses to the pleadings by close of day on August 5, 2022d.That the complainant to file and serve further affidavit if need be together with written submissions the complaint by 1. 00 pm on August 6, 2022e.That the respondents to file and serve their written submissions on the complaint by close of business on August 6, 2022f.That the matter be heard by way of highlighting of written submissions on August 7, 2022 at 9. 00 am virtually via video link.g.That this being a dispute involving party primaries with strict timelines, all parties to ensure strict observance of the directions herein and the complaint to proceed for hearing without fail as scheduled based on documentation that will be on record by the stated hearing date.

7. The matter came up for hearing on August 7, 2022 at 10. 00 am when the complainant indicated that she had served the respondent through its email address, but she had not filed an affidavit of service. The tribunal took cognizance of the fact that the complainant was appearing in person and unrepresented by counsel. Her lapse on procedure was pardoned.

The Complainants Case 8. The complainant’s case as already hinted to herein, is that she is a 28 year old female Kenyan, a party member of the respondent. She annexed a certificate of life membership to the Respondent Party dated March 25, 2022 in support of her claim of membership. It is her case that on the initial party list formulated by the respondent on July 4, 2022, she was included therein, having applied for consideration under the category of youth. To this end she did annex to her claim a list that bears her name as youth nominee.

9. It was her case that in a subsequent list published by the respondent, for reasons not known to her, her name was surreptitiously removed and replaced by that of one Venaline Cherop. That she did immediately lodge a complaint with the respondent vide her letter dated August 2, 2022 which went unrequited, prompting her to file the case currently before this tribunal.

10. The complainant states that she was neither afforded a hearing nor an explanation for the decision to remove her name hence her dissatisfaction.

Analysis And Findings 11. Having looked at the complaint and the documents filed therein, the tribunal distils the following legal questions for determination;i.Whether the complainant has proven her case on a balance of probabilitiesii.Whether the removal of the complainants name was justified

Whether the Complainant has proven her case on a balance of probabilities 12. As already stated earlier, the respondent and the interested party did not file any document to oppose the complaint. It consequently means that the claim was unopposed as a matter of fact. However it still behooves this tribunal to analyze the claim on its own merits to confirm whether or not the claim is substantiated.

13. The claimant has provided unequivocal evidence that she is a member of the respondent party. Equally she has provided prima facie evidence that by a list of July 4, 2022 her name did feature as a nominee for the respondent in Baringo County under the special category of youth. It is also unrebutted that the complainant is 28 years old and as such is legally within the age group of youth, as legally defined.

14. The claimant did not provide us with the evidence of the list in which her name was removed and replaced by the name of one Venaline Cherop as she alleged. The tribunal did however acquire a copy of the party lists that was submitted to the Interested Party on July 27, 2022. On review of the said list, the Tribunal noted that it shows that in Baringo the Respondent has as its nominee under the category of youth one Seuri Evans Kipyegon and Jerop Venaline. The complainants’ name is clearly missing.

15. This tribunal derives its jurisdiction from section 40 of the Political Parties Act No 11 of 2011 as follows;1. The tribunal shall determine-a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and (fa) disputes arising out of party nominations.2. 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 mechanisms.

16. The tribunal is well aware that under section 40 (2) of the Political Parties Act, it is the obligation of the parties to exhaust or attempt to exhaust internal dispute resolution mechanisms before moving this tribunal. The complainant satisfied this requirement through her letter of August 2, 2022 that was duly received by the respondent. Argument may be heard on whether or not ample time was allowed for the respondent to act on the matter.

17. It is our opinion that given the proximity to the general elections scheduled for August 9, 2022, it was necessary for the respondent to acknowledge and in the least revert to the complaint. It was necessary that they give a direction on the same so as to calm the anxiety in its member who expected expeditious action in a limited time span. We opine that the complainant has shown a genuine attempt at exhausting IDRM and as such is properly before this tribunal. In any event, from then to now, there still is no response by the Respondent to the letter lodged by the complainant.

18. In George Okode & Others vs Orange Democratic Movement & Others Petition No 294 of 2011, Majanja, J clarified those provisions of section 40(2) of the Political Parties Actby stating that“The same should be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism.”

19. It is therefore our finding that the complainant has indeed proven her case to the extent that she was on an original list, but was somehow deleted from the eventual list published by the Interested Party in the dailies on July 27, 2022.

Whether the removal of the Complainants name was justified 20. The brief response to this issue, must be in the negative. The silence of the respondent in this matter leaves us only with the assertions of the complainant. The letter of complaint presented by the Complainant went unanswered and that denied her a fundamental right as enshrined in article 47 of the Kenyan Constitution. The said article provides as follows: article 47(1)“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

21. The respondent traversed this clear boundaries when it removed a name that it had earlier published. It is beyond peradventure that at some point the respondent did create a legitimate expectation on the claimant that she would be its nominee under the youth category. Having created such an expectation, article 47 obligated the respondent to give her reasons on why her name was removed and replaced by another. This was not done and consequently the legitimate expectation of the claimant was violated.

22. We accordingly find that the removal of the claimants’ name from the list that was published by the interested party was not justified and must be rectified.

Final Orders 23. The complainants complaint succeed and is allowed and the respondent is hereby directed to reinstate the complainants name to its youth category under Baringo County as it earlier was and the same to be communicated to the Interested Party within 48 hours of this decision.

24. Each party to bear their own costs.Those are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 7TH AUGUST, 2022. HON.S.LIGUNYA – PRESIDING MEMBERHON.HASHI A — MEMBERHON.ANDREW .WARUHIU - MEMBER