[2022] KEPPDT 1035 (KLR)

Digale v United Democratic Alliance Party & 2 others; Mohamed (Interested Party) (Complaint E080 (NRB) of 2022) [2022] KEPPDT 1035 (KLR) (Civ) (22 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1035 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E080 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 22, 2022

Between

Hassan Abdikadir Digale

Complainant

and

United Democratic Alliance Party

1st Respondent

UDA Party Disputes Resolution Committee

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

and

Hussein Ahmed Mohamed

Interested Party

Judgment

1. The Complainant and the Interested Party were contestants in the United Democratic Alliance (UDA) party nominations in respect of the position of member of County Assembly, Eastleigh North Ward. Upon conduct of nominations, the 1st Respondent on the 15th April 2022 issued the Complainant the UDA party’s provisional nomination certificate for the subject position. It turns out that the 1st Respondent conducted a repeat nomination exercise without the Complainant’s knowledge and the 1st Respondent proceeded to issue another provisional nomination certificate to the interested party.

2. The Complainant raised this anomaly vide his lawyer’s letter dated 22nd April 2022 and the 1st Respondent upon consideration of his complaint issued him another provisional nomination certificate. It turns out that the 1st Respondent subsequently had a change of mind and secretly issued a final nomination certificate to the interested party. Aggrieved by this turn of events, the Complainant filed the instant Complaint together with a Notice of Motion Application under certificate of urgency. He seeks the following reliefs from this Tribunal: -i.This Honorable Court do issue an order restraining the 3rd Respondent from clearing the interested party to vie for the position of Member of County Assembly Eastleigh North Ward, Kamukunji Constituency in the 9th August 2022 elections on a United Democratic Alliance ticket.ii.This Honourable Tribunal be pleased to issue a declaration that the Complainant, Hassan Abdikadir Digale, as the duly nominated candidate on a United Democratic Alliance ticket to vie for the position of Member of County Assembly, Eastleigh North Ward, Kamukunji Constituency in the 9th August 2022 general elections.iii.This Honourable Tribunal be pleased to issue an order directing the 1st Respondent to issue a nomination certificate in respect of the Complainant Hassan Abdikadir Digale to vie for Member of County Assembly, Eastleigh North Ward, Kamukunji Constituency in the 9th August 2022 elections on its ticket and consequently forward his name to the 3rd Respondent.

3. This matter was first presented before the Tribunal on 16th May 2022 when we issued the following directions in respect of filing of responses and exchange of parties’ submissions: -i.That the Notice of Motion application dated 13th May 2022 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.That the Complaint and Notice of Motion application dated 13th May 2022 be served upon all the Respondents and Interested Party by 5pm today 16th May 2022. iii.That the Respondents and Interested Party to file and serve their responses to the Complaint and application by 5pm on 17th May 2022. iv.That the Complainant to file Further Affidavit if need be together with Written Submissions on entire Complaint by 5pm on 18th May 2022iv.That the Respondents and Interested Party to file and serve their Written Submissions on entire Complaint by 5pm on 19th May 2022iv.That the Complaint be heard by way of highlighting of written submissions before Nairobi A Bench on 19th May 2022 at 5pm virtually via video link.iv.That this being a dispute involving nominations 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.iv.That pending inter partes hearing and determination of the application simultaneously with the Complaint, interim orders are hereby issued restraining the 3rd Respondent from clearing the Interested Party to vie for the position of Member of County Assembly, Eastleigh North Ward, Kamukunji Constituency in the 9th August 2022 elections on a United Democratic Alliance ticket.

4. On the 19th May 2022 when the matter came up for highlighting of written submissions, the same could not proceed as some parties had not complied with our directions. Further directions were given allowing all parties to comply and exchange their pleadings and written submissions within strict deadlines where after the Tribunal would consider the same and render its Judgment.

4. The Complainant was represented by Abdullahi & Associates Advocates. The 1st and 2nd Respondents were represented by H&K Law Advocates. The 3rd Respondent was represented by the firm of Mwangi Wahome & Co. Advocates.

The Complainant’s Case 6. The Complainant is a member of the United Democratic Alliance (UDA) and one of the aspiring candidates for the position of Member of County Assembly (MCA), Eastleigh North Ward, Kamukunji Constituency. He claims that he was issued the Party’s provisional certificate on 15th April 2022. Upon issuance of the provisional certificate, the 1st Respondent went ahead to conduct repeat nominations without informing the Complainant. The 1st Respondent then proceeded to issue a provisional certificate to the Interested Party.

7. The Complainant avers that upon learning of the conduct of the 1st Respondent he lodged a complaint with the 1st and 2nd Respondents by a letter dated 22nd April 2022. The 1st Respondent issued the Complainant with another provisional certificate upon review of his complaint. The 1st Respondent then backtracked and secretly handed the nomination certificate to the Interested Party.

8. The Complainant is apprehensive that the 3rd Respondent may proceed to clear the Interested Party to vie in the forthcoming General Elections. Further, the Complainant is aggrieved by the 1st Respondent’s actions and seeks an intervention by this Honourable Tribunal to avoid any further damage and loss. He prays for the Tribunal to issue an order restraining the 3rd Respondent from clearing the Interested Party to vie for the position of MCA, Eastleigh North Ward, Kamukunji Constituency in the General Elections. That the Tribunal issue a declaration that the Applicant is the duly nominated candidate on a UDA ticket to vie for the said position. That the Tribunal issue an Order directing the 1st Respondent to issue a nomination certificate in respect of the Complainant to vie for the MCA position.

The 1st and 2nd* Respondents’ Case 9. The 1st and 2nd Respondents contend that the Complainant and the Interested Party were successfully cleared to participate in the nomination exercise of 14th April 2022 for the Party’s MCA candidate nominee for Eastleigh North Ward in the forthcoming general elections. The 1st Respondent conducted the nomination process. However, in their submissions they indicate a repeat nomination was conducted on 20th April 2022, where the Interested Party was declared the winner having majority votes and issued a provisional certificate.

10. The 1st and 2nd Respondents deny the claim by the Complainant that he filed a complaint in the form of a letter before the Party’s Electoral Dispute Resolution Committee. They aver that the statement of claim and the application by the Complainant went against the mandatory provision to file a matter before the Tribunal 14 days after the political party’s primaries decision.

11. They aver that the IEBC through the Statutory Timelines towards the General Elections issued on 5th April 2022 gave direction to political parties to submit the names of persons selected to contest in the General Elections on or before Thursday, 28th April 2022. The application by the Complainant was filed on 17th May 2022. This was contrary to the requirements of Rule 8(1) that a complaint against the decision of the Committee be filed before the Tribunal 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.

12. The 1st Respondent has submitted the names of the nominated candidates to participate in the August General Elections to the IEBC for gazettement. Thus, the application made by the Complainant is time barred and the Tribunal lacks jurisdiction to hear and determine the same. The Complainant has not exhausted the internal dispute resolution mechanisms. The Complainant has also not given any explanation for delaying in instituting the complaint before the Tribunal and should not be granted audience. Thus, the statement of claim should be struck out.

13. The 1st and 2nd Respondents pray that the complaint be dismissed with costs.

The 3rd Respondent’s Case 14. The 3rd Respondent avers that the Complainant enjoining it to the proceedings presupposes that he has a dispute against the Commission. The Tribunal has no jurisdiction to determine disputes between a candidate and the Commission. Thus, the claim against the 3rd Respondent should be struck out.

15. The 3rd Respondent contends that the matter was never placed before the 2nd Respondent and no determination was made and there is no evidence on the same. The 3rd Respondent avers that there is no evidence that it played any role in the nominations of the 1st Respondent. No request was made by the 1st Respondent for the 3rd Respondent to be involved in its party’s nominations. The nominations for the Eastleigh North Ward were conducted through the party mechanisms of the 1st Respondent. Thus, all disputes arising from the nominations should be solved by the party dispute resolution mechanism.

16. The Complainant has not disclosed any single nomination rule that was flouted and or disregarded to even move the 3rd Respondent as a quasi-judicial body to look into the nominations of Eastleigh North Ward, Kamukunji Constituency. The 3rd Respondent avers that the claim and application made against it is unwarranted and should be dismissed with costs.

The Interested Party’s Case 17. The Interested Party avers that the party primaries held on 14th April, 2022 was marred with violence and was cancelled by the 1st Respondent. Therefore, there were no party primaries for MCA for Eastleigh North Ward that were conducted on the said date and as such no results were declared by the 1st Respondent in respect of the said nominations.

18. The Interested Party avers that the provisional certificate of the nomination allegedly issued to the Complainant on 15th April 2022 could only be fraudulently issued to him as the nominations for 14th April 2022 were cancelled by the 1st Respondent. The 1st Respondent’s National Election Board issued a press statement on 17th April 2022 scheduling a repeat of the Party’s nomination for MCA for Eastleigh North Ward on 20th April 2022. It is therefore untrue that the nominations were held in secret as the Complainant was aware of the nomination process.

19. The Interested Party avers that the Complainant took part in the 1st Respondent’s nominations on 20th April, 2022. The Complainant sent his agents to the polling station to oversee the nominations. The Interested Party was declared as the winner after the votes were counted and tallied. He was issued with a Provisional Certificate of the nomination by the Returning Officer on 20th April 2022. He was issued the original and final Certificate of Nomination on 27th April 2022 and his name was submitted to the 3rd Respondent as a validly nominated candidate for Eastleigh North Ward. The Complainant came in fourth place in the repeat nominations held on 20th April 2022. Thus, there is no way he was issued with a provisional certificate of nomination.

20. The Provisional Nomination Certificate issued to the Complainant on 22nd April 2022 was illegally and unlawfully issued to him because he was never declared the winner. The Returning Officer Mr. P.W Mugo who allegedly issued the Complainant with the Provisional Nomination Certificate on 22nd April 2022 has never been appointed by the 1st Respondent as a Returning Officer for Kamukunji Constituency thus had no authority to issue a certificate. The certificate issued was also not signed by Mr. P.W Mugo.

21. The Interested Party contends that the party nominations held were free and fair and the results declared from the exercise were credible as no complaints have been lodged challenging the results. The Complainant has never attempted to lodge and resolve the dispute with the 2nd Respondent in accordance with the 1st Respondent’s Constitution. The Complainant did not exhaust the 1st Respondent’s internal dispute resolution mechanism before invoking the jurisdiction of this Honourable Tribunal.

22. Thus, the Complainant’s application lacks merit and should be dismissed with costs.

Analysis and Determination 23. We have reviewed the parties’ pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs in the present circumstances?Whether this Tribunal has jurisdiction to hear and determine this matter?

24. The Black's Law Dictionary, Sixth Edition, defines Jurisdiction as follows: - "A term of comprehensive import embracing every kind of judicial action. It is the power of the Honourable Court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties.”

25. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011, which provides 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 nominations2. 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.

26. Vide a preliminary objection dated 18th May 2022, the 1st and 2nd Respondents have both challenged our jurisdiction to hear and determine this matter on the grounds that the claim offends the provisions of Rule 8 of the Political Parties Dispute Tribunal (Procedure) Regulations of 2017 i.e. that a Complaint against the decision of an internal party dispute resolution mechanism arising out of political parties shall be filed with the Tribunal not more than fourteen days from the date of the decision, and in any case, 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.

27. The Complainant, on the other hand, asserts that this Honourable Tribunal has jurisdiction to preside over this matter.

28. The Tribunal now chews over whether an objection to our jurisdiction on the grounds outlined above is merited. Rule 8 of the Political Parties Dispute Tribunal (Procedure) Regulations of 2017 indicates that the last date for filing a dispute arising out of party primaries is at least one day from the date set by the Commission as the date for submission of party candidates’ names. IEBC, the 3rd Respondent herein, issued a gazette notice setting the deadline for the submission of names of the party candidates to the Commission to be the 28th of April 2022. This would mean that the last date for filing a dispute arising out of a party-primaries was 27th April 2022. As noted the complaint herein was filed before this Tribunal on the 13th of May 2022.

29. The provisions of Rule 8 of the Political Parties Dispute Tribunal (Procedure) Regulations of 2017 need to be compared with the timelines set out in the Elections Act. The Elections Act sets a timeline of at least sixty days to the general election which would mean that a dispute can be filed with the Tribunal up to and including the 61st day before a general election. A complaint filed prior to 9th June, including the present complaint, would fall within these timelines. We note that there is some level of inconsistency between the Regulationsand the Elections Act.

30. Encountered with such inconsistency, we turn to the Statutory Instruments Act No. 23 of 2013 for guidance. Section 24(2) states that: - “A statutory instrument shall not be inconsistent with the provisions of the enabling legislation, or of any Act, and the statutory instrument shall be void to the extent of the inconsistency.” The Political Parties Disputes Tribunal (Procedure) Regulations, 2017 are a statutory instrument as defined in section 2 of the Statutory Instruments Act thus: - “… any rule, order, regulation, direction… or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.”

31. In view of the substantial discrepancy between the Elections Act and the Regulations, the provisions of the Regulations are void to the extent of that inconsistency. The effect is that the said inconsistency inherent in the Regulations cannot be used to limit the jurisdiction of the PPDT and deny an aggrieved party a substantive opportunity to be heard as this would cause a miscarriage of justice to the Complainant in line with his rights to a fair hearing.

32. Be that as it may, the Tribunal has to scrutinize the attempt made by the Complainant to exhaust the 1st and 2nd Respondents’ internal dispute resolution mechanism. In the case of John Mworia Nchebere & Others vs. The National Chairman Orange Democratic Movement & Others (Nrb PPDT Compliant No. E002 of 2022), the Tribunal held that: -“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that among others:a)The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

33. The Complainant has alleged that following the issuance of a provisional certificate to him, the 1st Respondent proceeded to conduct repeat nominations without his knowledge and issued another provisional nomination certificate to the Interested party herein. However, we note that the Complainant has not stated when and where the purported repeat nominations took place.

34. In response, the Interested Party avers that the nominations that were to take place on the 14th of April were marred with violence and were cancelled by the 1st Respondent. That the 1st Respondent further issued a press statement on 17th April 2022 scheduling a repeat of the Party’s nominations for Member of County Assembly for Eastleigh North Ward on 20th April 2022 which he emerged as the winner.

35. The Complainant has adduced as evidence a letter lodged as a Complaint dated 22nd April 2022 addressed to the 1st Respondent and avows that the 1st Respondent read, took it into consideration, and issued him with another provisional nomination certificate. However, this claim is denied by the 1st and 2nd Respondents in their Replying Affidavit that they ever received the letter dated 22nd April from the Complainant.

36. The 1st and 2nd Respondents Replying Affidavit is silent on whether a repeat nomination was conducted. However, in their submissions they state that these were conducted on 20th April 2022 where the Interested Party emerged the winner and was issued a provisional certificate. What is undisputed though is that the name of the Interested Party was forwarded to the 3rd Respondent. The 3rd Respondent in their Response to the Memorandum of Claim confirm that the 1st and 2nd Respondents forwarded the Interested Party’s name as their preferred candidate for the Member of County Assembly for Eastleigh North Ward.

37. This can be interpreted to mean that whereas the party’s IDRM was available before the deadline set by the 3rd Respondent, it was effectively inoperative as of the 28th of April 2022, and furthermore, any remedies sought may not have sufficed to alleviate the harm suffered by the Complainant. We say so with the understanding that from the evidence before us, it is evident that the 1st Respondent has already forwarded the Interested Party’s name to the 3rd Respondent and in any case, the party IDRM does not have jurisdiction over the 3rd Respondent. In the circumstances, the Complainant had no other recourse than to bring their complaint before this Tribunal. Further, due consideration has also been taken to the urgency of this matter in arriving at the determination that we have jurisdiction to hear and determine this matter.

38. In summary, this Honourable Tribunal finds that from the foregoing occurrences, and in line with section 40(2) of the PPA it does have jurisdiction to hear this matter.Whether the Complaint is merited?

39. The Tribunal has established that it has jurisdiction to preside over this matter, and has to now determine if the Complainant’s case has merit and is premised on the law.It is not in dispute that Complainant and the Interested Party were among the aspirants who applied for consideration as the party’s candidate for the position of Member of County Assembly, Eastleigh North Ward, Kamukunji Constituency.

40. The 1st and 2nd Respondents have confirmed that the Complainant and the Interested Party were successfully cleared to participate in the nomination exercise on the 14th of April 2022, for the party’s nominee for Member of County Assembly, Eastleigh North Ward in the forthcoming general elections in August 2022. The 1st Respondent further states that they have already submitted the names of the nominated candidates who are to participate in the August General Elections to the IEBC, the 3rd Respondent herein for gazettement.

41. Article 31 of the UDA Constitution provides that:“The Party may undertake nomination of its candidates through universal suffrage, electoral college, direct nominations, and any other method as may be directed by the National Elections Board and in the best interest of the party”.

42. It is clear that nominations were conducted by way of universal suffrage meaning that citizens within Eastleigh North Ward voted for their candidate of choice. Both the Complainant and Interested Party have adduced nomination results Form 6A that show that they emerged as winners. The Complainant has adduced two provisional nomination certificates: one dated 15th April 2022, and another dated 22nd April 2022 after a complaint made to the 1st and 2nd Respondent. The validity of both certificates has been contested by the Interested Party. The Interested Party states that an election of 15th April 2022 was cancelled by the 1st Respondent as it was marred with violence, and no results were declared. For this reason, he states that the provisional nomination certificate allegedly issued to the Complainant could only be fraudulent. The Interested Party goes on further to state that 1st Respondent issued a press statement on 17th April 2022 calling for a repeat nomination on 20th April. This exercise was conducted on 20th April 2022 where he claims he emerged the winner amongst various contenders including the Claimant and was issued a provisional certificate. The Claimant has denied receiving any notice of the repeat nomination conducted on 20th April 2022.

43. From the evidence laid before the Tribunal, it is necessary to ascertain the facts in relation to the contradictory positions held by the parties. The first of these relates to the cancellation of the nominations of 15th April 2022 and the second relates to the holding and outcome of repeat nomination held on 20th April 2022. The Interested Party attests that the nominations of 15th April 2022 were cancelled by the 1st Respondent. The 1st and 2nd Respondent affirm this to be position. The Complainant has provided no specific evidence except an alleged complaint made to the 1st and 2nd Respondent. We note that in line with Article 20. 1 of the UDA’s constitution it is within the party’s domain to manage matters concerning the planning and coordination of internal elections, including issuance of certificates duly nominated. In the absence of specific and cogent evidence, including specifics around the IDRM proceedings relating to the complaint lodged, or other evidence directly challenging the statement made by the 1st and 2nd Respondent in this respect, the Tribunal is inclined to accept that the nominations were cancelled by the party and a repeat nomination held on 20th April 2022.

44. We now turn to examine the contradictory positions taken by the parties in relation to the repeat nominations of 20th April 2022. In their letter of complaint to the party, the occurrence of these nominations is acknowledged by the Complainant, but they allege that they were not provided prior notice of the same. Receipt of this complaint by the 1st and 2nd Respondents has been denied. Furthermore, while the Complainant indicates that they were issued a second provisional certificate after the complaint they instituted with the party, they have provided no evidence in relation to the proceedings or outcomes of that dispute. It is therefore difficult to conclude that IDRM proceedings annulling the repeat nominations of 20th April took place.

45. On the other hand, the Tribunal has been treated to substantial evidence by the Interested Party in support of the repeat nomination. The Interested Party has adduced evidence of a press statement by the 1st Respondent party scheduling repeat elections on the 20th of April 2022. Further, while there is no evidence adduced by the 1st Respondent showing results of the nomination results, the Interested Party has shown evidence of the nomination results showing him in first position. Although, the 1st and 2nd Respondent’s Replying Affidavit is silent as to specifics attested to by the Interested Party regarding the repeat nomination such as the number of contestants etc., they have indicated that the Interested Party was declared the winner having a majority vote. This evidence has not been rebutted by the Complainant and in the absence of the same, the Tribunal is inclined to believe the evidence adduced by the Interested Party. We say this having taken cognizance of the Interested Party’s explanation as to the events that led to his own issuance of a nomination certificate and further noting the position taken by the 1st Respondent granting the nomination certificate to the Interested Party as party’s organ tasked with the conduct of the election.

46. It is the Tribunal’s view that given the circumstances surrounding this case and the explanation as to how the Interested Party was issued with a nomination certificate after the repeat nomination that even the Complainant participated in, we find that this Complaint has no merit.What are the appropriate reliefs in the present circumstances?

47. Having found that the Complaint has no merit, the only available option is to dismiss the same. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings.

Disposition 48. In light of the foregoing, we order as follows: -i.That the Objection to our Jurisdiction be and is hereby overruled.ii.That the Complaint herein be and is hereby dismissed.iii.Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)