[2022] KEHC 12430 (KLR)

Elisha v Mukabwa & 2 others (Election Petition Appeal E005 of 2022) [2022] KEHC 12430 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12430 (KLR)

Republic of Kenya

In the High Court at Kakamega

Election Petition Appeal E005 of 2022

WM Musyoka, J

July 21, 2022

Between

Lidzanga Bonface Elisha

Appellant

and

Johnstone Alusola Mukabwa

1st Respondent

Democratic Action Party-Kenya

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

(An appeal from the judgment and decree of the Political Parties Disputes Tribunal (Hon. Milly Lwanga, Hon. Timothy Tororey and Hon. Dr. Lydiah Wambui), in Kakamega Political Parties Disputes Tribunal Complaint No. E012 OF 2022, of 17th July 2022)

Judgment

1. The complaint before the Political Parties Disputes Tribunal had been brought by the 1st respondent, who is a member of the 2nd respondent. His case was that he had been validly nominated by the 2nd respondent to vie of Member of County Assembly, Murhanda Ward of Shinyalu Constituency, Kakamega County, and a nomination certificate, serial number 2022/511, had been issued to him on April 19, 2022. A list of the nominees, including his name, was forwarded to the 3rd respondent, in proper form, and in accordance with the relevant rules. The 3rd respondent then published all the nominees forwarded to it by the 2nd respondent, including his, on its website. Thereafter, the 3rd respondent, after scrutiny of the list, advised the 2nd respondent that the list was not compliant with the constitutional requirement on gender. The 2nd respondent reworked the list to bring it to compliance, and resubmitted the same, on May 9, 2022. After the list was resubmitted, the 1st respondent noted that his name had been removed, and substituted with that of the appellant. The 1st respondent engaged with the officials of the 2nd respondent over that issue, whereupon the 2nd respondent wrote to the 3rd respondent, requesting for rectification of that error. He sought, in his complaint, that the 3rd respondent be informed by the 2nd respondent that he was the nominee for the 2nd respondent to contest for the Member of County Assembly for Murhanda Ward, mShinyalu, Kakamega County.

2. It would appear that the Political Parties Disputes Tribunal did make a determination, on June 10, 2022. A copy of that determination has not been exhibited to any of the affidavits that are on record, and I cannot tell its purport. However, it would appear that the appellant herein filed an appeal in Kakamega HC Election Petition Appeal No E004 of 2022, against that determination of June 10, 2022, the appeal was successful, and that determination was set aside. It was directed that the 3rd respondent do revoke and recall the certificate of registration for county elections issued to the appellant herein. The Political Parties Disputes Tribunal was directed to hear the complaint by the 1st respondent afresh.

3. The Political Parties Disputes Tribunal gave directions for the fresh hearing of the matter, on July 15, 2022, scheduling the hearing for July 16, 2022.

4. The appellant filed a response to the complaint, vide an affidavit that he swore on July 15, 2022. He averred that he had applied for nomination as the candidate for the 2nd respondent as Member of County Assembly for Murhanda Ward, Shinyalu, Kakamega County, and paid the requisite fees. He was nominated and issued with a certificate of nomination, serial number 2022/551, of April 19, 2022. His name was then submitted to the 3rd respondent on April 28, 2022, whereupon the 3rd respondent issued him with a certificate of registration for county elections, in form 21. He averred that he was not aware of any complaint or dispute over his manner of nomination, and, if there was, then the same ought to have been placed before the proper organs of the 2nd respondent for resolution. He asserted that the Director of Elections, for the 2nd respondent, had sworn an affidavit to show that Certificate No 2022/551, dated April 19, 2022, was the only certificate issued in respect of the subject ward, no other name had been submitted to the 3rd respondent for the same ward, and the organs of the 2nd respondent were yet to receive any complaint regarding his nomination. He averred that the Political Parties Disputes Tribunal had no jurisdiction, under section 40(2) of the Political Parties Act, No 11 of 2011, to entertain the dispute, and that section 13(2) of the Elections Act, 2011, prohibited change of a nominated candidate after his name had been received by the 3rd respondent.

5. The affidavit by Edel Fuchaka was sworn on June 7, 2022. He averred to be a director of elections for the 2nd respondent, that the appellant had been validly nominated by the 2nd respondent, and had been issued with a certificate number 2022/551 of April 19, 2022, his name was submitted to the 3rd respondent, who issued him with a certificate of registration for County Elections. He said that Certificate No 2022/551 was the only certificate issued for that election, the name of the appellant was the only name submitted, and no complaint had been received on the nomination.

6. The 2nd respondent responded to the complaint, through its National Chairperson, David Simiyu Muchele, vide an affidavit sworn on July 16, 2022. He averred that he was a signatory to the nomination certificates for the 2nd respondent, and that the Director of Elections, Edel Fuchika, was not a signatory, and had not been authorized by the 2nd respondent to swear any affidavit on behalf of the 2nd respondent. He averred that the said Director of Elections was facing disciplinary action for unlawful and irregular substitution of names, after the party list was returned to the 2nd respondent, by the interested party, for compliance with the gender rule. He averred that the signature on Certificate No 2022/551, purported to be his, was a forgery.

7. The Political Parties Disputes Tribunal heard the matter, and delivered a judgment thereon on July 17, 2022. The Political Parties Disputes Tribunal was persuaded that that the 1st and 2nd respondents had lodged complaints, on May 16, 2022 and May 18, 2022, for reinstatement of the name of the 1st respondent in the party nomination list, and that that communication was done by the authorized persons, as per the rules of the 2nd respondent. It concluded that the name of the 1st respondent was the official name submitted by the 2nd respondent. It was declared that the 1st respondent was the nominee for the 2nd respondent as its candidate for the position of Member of County Assembly, Murhanda Ward, Shinyalu, and Kakamega County in the August 2022 elections.

8. It is the judgement of July 17, 2022 that sparked the appeal herein. The grounds of appeal are that the Political Parties Disputes Tribunal assumed jurisdiction over the complaint by the 1st respondent despite there being no evidence of any attempt by the 1st respondent to subject the dispute to the internal political party dispute resolution mechanisms as required by the 2nd respondent’s rules; there was no evidence that the name of the 1st respondent had been initially submitted to the 3rd respondent; that it failed to discern that the letters written on 16th and May 18, 2022 were “camouflaged” and were an attempt to illegally alter and amend the nomination list submitted by the 2nd respondent; it ignored the affidavit of the Director of Elections; erred in declaring the 1st respondent as the person duly nominated; it had abdicated its constitutional duty under Article 159 of the Constitution and allowed itself to be used by the 1st respondent to supplant the appellant; there was preponderance of evidence to disallow the complaint as the 1st respondent had not discharged his burden of proof; and these was an error in condemning the appellant to pay costs.. He would like the judgment of July 17, 2022 set aside, and the complaint dismissed.

9. Directions were taken on July 20, 2022, for the appeal to be canvassed by way of written submissions. All the parties have filed written submissions, save for the 2nd respondent. The written submissions were not highlighted. I have read through and noted the arguments adversed in the written submissions, but due to constraint of time I shall not recite the substance of the written submissions.

10. I shall consider and determine each ground of appeal.

11. Ground 1 of the appeal is on the jurisdiction of the Political Parties Disputes Tribunal to entertain the complaint absent of evidence to subject the dispute to internal party dispute resolution mechanisms. The appellant submits that there was no attempt to do so, by placing the dispute before the relevant organs of the party. The 1st respondent says there was, says that he engaged the 2nd respondent, who, through the Secretary General, wrote to the 3rd respondent, but no action was taken immediately, hence the complaint. The question then is, did the 1st respondent subject his complaint to the internal party dispute resolution mechanisms?

12. The relevant law is section 40 of the Political Parties Act, which states 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 been 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..(3).…”

13. There is no dispute that the complaint was between members of a political party and a party over nominations. The point of contention was on whether the dispute was subjected to the relevant organs of the 2nd respondent. The appellant says that was not done, while the 1st respondent says it was. He points at correspondence by the 2nd respondent to the 3rd respondent, following the concerns he had raised with the 2nd respondent, over the anomaly, and in the letters the 2nd respondent sought to address that anomaly. The Political Parties Disputes Tribunal determined the question on the basis of the said correspondence, which, it observed, were not controverted.

14. On appeal, the appellant has attacked the credibility of the said letters, suggesting that they were contrived and manufactured to favour the 1st respondent. The burden was on the appellant to establish, before the Political Parties Disputes Tribunal that the said correspondence was created after the dispute was registered, to build a case for the 1st respondent. The authenticity of the letters was not questioned then, and there would be no basis to question the same now. I would agree with the Political Parties Disputes Tribunal, that the 1st respondent did raise concerns about the matter with the 2nd respondent, and action was taken, and there was compliance with section 40(2) of the Political Party Act, and the Political Parties Disputes Tribunal, therefore, had jurisdiction over the matter.

15. Ground 2 of the petition is that there was no evidence that the 1st respondent had been initially nominated by the 2nd respondent as the party nominee. According to the law, it is the responsibility of the political party to submit its list of nominees, after conducting a nomination exercise. Both the appellant and the 1st respondent assert that they are the persons who were validly nominated, and both exhibit documents that they claim are the valid certificates of nomination issued to them by the 2nd respondent. The Political Parties Disputes Tribunal considered the position. It reviewed the instruments of the 2nd respondent over these matters, and the pleadings and the evidence tabled. It concluded that the relevant officers of the 2nd respondent are the ones who communicated with the 3rd respondent on who its legitimate nominee is. I would reiterate, that it is the duty of the political party to submit the lists of its nominees. In this case, the documents on record, by the authorized officers of the 2nd respondent, indicate that the 1st respondent was the valid nominee. I would agree with the Political Parties Disputes Tribunal, that, in the face of that documentation, it had no option but to accept the position taken by the 1st and 2nd respondents. In any event, and as I have stated above, the appellant did not impeach the credibility or authenticity of that communication, when the matter was before the Political Parties Disputes Tribunal. The fact that the evidence on the print out was rejected did not dent the case of the 1st respondent, as the two letters, cited by the Political Parties Disputes Tribunal, remained on record.

16. Ground 3 is about the letters dated 16th and May 18, 2022. I have already dealt with the credibility and authenticity of these letters in my discussion on grounds 1 and 2 here above. The appellant did not impeach them at the trial. He made no effort to demonstrate that they were not authentic, or they were created to suit the case for the 1st respondent.

17. Ground 4 is about the Political Parties Disputes Tribunal disallowing the affidavit of David Simiyu Muchele. The case for the 1st respondent did not rest only on the said affidavit. There are the letters of 16th and May 18, 2022. That was, perhaps, the most critical aspect of his case, for the correspondence demonstrates that the person named in those letters, by the 2nd respondent was the person that the 2nd respondent had nominated as its candidate for the position of Member of County Assembly, Murhanda Ward, for the names of nominees come from the political party, and were forwarded to the 3rd respondent by the authorized officers, and those letters were in the hand of the authorized officers.

18. Ground 5 is about the time for nomination lapsing and the appellant having legitimate expectations. The issue herein was not nomination per se, but about the names that had been previously forwarded to the 3rd respondent having been altered. The nomination process was practically over, but when the list was sent back to the 2nd respondent for rectification of anomalies, with respect to gender balance, further anomalies arose, where names of candidates were allegedly altered. The 2nd respondent intervened to correct that anomaly vide its letters of 16th and May 18, 2022. It was not about a fresh nomination.

19. Ground 6 is about the Political Parties Disputes Tribunal abdicating its constitutional mandate and allowing itself to be used by the 1st and 2nd respondents. The Political Parties Disputes Tribunal is not party to the dispute, and it is unfortunate that the appellant should drag into the arena of conflict. It handled the matter, considered the material that was placed before it, and rendered its decision. The appellant was aggrieved, and came here on appeal. He should limit his case to arguing the appeal on merit instead of directing personalized attacks on the Political Parties Disputes Tribunal. He has presented no evidence from the trial record that the Political Parties Disputes Tribunal abdicated its constitutional duty and was used by the 1st and 2nd respondent.

20. Ground 7 has been answered by what I have discussed above, about the material that the Political Parties Disputes Tribunal relied on to determine the matter, the letters of 16th and May 18, 2022, which emanated from the authorized officers of the 2nd respondent, confirming the person that the party had duly nominated as their candidate.

21. On Ground 8, costs follow the event, and are awarded at the discretion of the tribunal. The appellant lost the case before the Political Parties Disputes Tribunal, it was within the discretion of the Political Parties Disputes Tribunal to impose costs against him.

22. Overall, it is my finding that the appeal herein is not merited. I consequently dismiss it. The respondents shall have the costs of the appeal. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS………………21st…….. ..………..DAY OF………………July………………….2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Wamunga, instructed by Wamunga & Company, Advocates for the appellant.Mr. Wangira, instructed by Wangira Okoba & Company, Advocates for the 1strespondent.Ms. Maureen Odeck, instructed by Samba Odeck & Mulama, Advocates for the 3rdrespondent