[2022] KEHC 14127 (KLR)

Forum for the Restoration of Democracy – Kenya (Ford-Kenya) v Mutunga & another (Civil Appeal E634 of 2022) [2022] KEHC 14127 (KLR) (Civ) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14127 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E634 of 2022

JK Sergon, J

October 18, 2022

Between

Forum for the Restoration of Democracy – Kenya (Ford-Kenya)

Appellant

and

Chrispine Kipsan Mutunga

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

(Being an appeal against the judgment of the Honourable M. L. Odongo, Tororey T. Kipchirchir and Dr. Lydia Wambui, members of Political Parties Disputes Tribunal sitting at Kakamega delivered on 5th August, 2022in PPDT complaint no. E016 of 2022)

Judgment

1)On August 5, 2022, the Political Parties Disputes Tribunal (tribunal) allowed the complaint of Chrispine Kipsang Mutunga, the 1st respondent herein whereof the tribunal ordered inter alia Ford-Kenya, the appellant herein to remove the name of the 1st respondent from its gender top-up list for Bungoma County Assembly party nomination list and place it in the appellant’s list under the marginalized list category of Bungoma County Assembly.

2)Being dissatisfied with the aforesaid decision, the appellant preferred this appeal and put forward the following grounds: -i.That the tribunal erred in holding that the 1st respondent had attempted to invoke the Internal Dispute Resolution Mechanism (hereinafter referred to “IDRM”) of the appellant yet there was no such an attempt thereby rendering such a finding erroneous and for setting aside.ii.That the learned members of the tribunal erred in law in entertaining and presiding over proceedings which the tribunal had no jurisdiction in the first place pursuant to the provisions of section 40 of the Political Parties Act, there having been no attempt and or exhaustion of internal party resolutions mechanisms prior to the institution of the suit at the tribunal.iii.That the tribunal erred in finding that the appellant had not attempted resolve these amicably through IDRM thereby rendering such a finding null and void.iv.That the tribunal erred in holding that the 1st respondent’s allegation that he had qualified and applied for consideration under the marginalized group was uncontroverted which finding is erroneous and misleading.v.That the tribunal erred in fact and law in failing to find that the Ogiek community, and in particular the 1st respondent herein, is not the only marginalized group that would require impugning the process and powers of the appellant in generating the party list.vi.That the tribunal erred in fact and law in ordering that the 1st respondent’s name be placed in the appellant’s nomination list under the marginalized list category for Bungoma County Assembly without taking into account the fact that the list had all its slots filled thereby rendering such a finding that is incapable of execution and thereby null and void.vii.That the tribunal erred in directing the appellant includes the 1st respondent’s name in the nomination list under the marginalized list category for Bungoma County Assembly which order had no basis in law and or fact.viii.That the honourable tribunal decision of May 27, 2022 is a miscarriage of justice and sets a bad precedence thereby rendering it null and void.

3)When the appeal came up for hearing, this court gave directions which is to the effect that the appeal should be determined by written submissions.

4)I have re-evaluated the case that was before the tribunal. I have further considered the rival submissions plus the authorities relied upon.

5)The 1st, 2nd and 3rd grounds of appeal can be determined together. It is the submission of the appellant that the tribunal erred in holding that the 1st respondent had attempted to invoke the Internal Dispute Resolution Mechanism (IDRM) yet there was no such an attempt thereby rendering such a finding erroneous hence amenable to be set aside.

6)The appellant pointed out that the tribunal can only be approached after evidence is shown that the complainant had exhausted the political party IDRM under section 40(2) of the Political Parties Act No 11 of 2011.

7)It is the submission of the appellant that the 1st respondent did not adduce any evidence before the tribunal to show that he filled the prescribed complaint form and lodged it with the administrator of the appellants board within 48 hours from the occurrence of the incident complained of.

8)This court was urged in the circumstances to find that the tribunal had no jurisdiction to entertain the 1st respondent’s complaint. The 1st respondent on the other hand is of the submission that he first approached the appellant’sIDRM to resolve the issue and only approached the tribunal after his complaint was dismissed.

9)I have carefully re-evaluated the evidence that was presented before the tribunal. It is evident that the 1st respondent filed a complaint with the appellant. The 1st respondent stated that he applied for nomination under the category of marginalized community. He pointed out that to the appellant that he was the only qualified candidate from the party lists published byIEBC.

10)It is also evident in his demand letter that the 1st respondent demanded that the wo party lists, the gender top-up and marginalized lists be amended as per his complaint within 2 days failure to which he would seek redress at the tribunal.

11)The 1st respondent further tendered evidence showing that the appellant through its party leader wrote back dismissing the 1st respondent’s complaint. In my humble view, the tribunal came to the correct conclusion that the 1st respondent made attempts to approach the appellant’s IDRM, therefore it cannot be faulted. The tribunal therefore had jurisdiction to entertain the 1st respondent’s complaint under section 40(2) of the Political Party’s Act No 11 of 2011.

12)In the 4th ground of appeal, the appellant argued that the tribunal erred in holding that the 1st respondent’s allegation that he had qualified and applied for consideration under the marginalized group was uncontroverted. The appellant pointed out that it specifically in is pleadings indicated that the 1st respondent did not meet the threshold required for nomination. A careful re-evaluation of the evidence tendered will reveal that the 1st respondent tendered evidence which formed part of the complaint.

13)It is also apparent that the 1st respondent considered and his name placed in the published party list byIEBC. It is therefore clear that the 1st respondent was qualified and applied for consideration to be nominated by the appellant under marginalized category in Bungoma County Assembly. The tribunal findings cannot be faulted.

14)The third main ground encompassing grounds 5, 6, 7 and 8 which the parties submitted in is the question as to whether the Ogiek/Ndorobo community is the only minority and marginalized community in Bungoma county that would require impugning of the process and powers of the appellant in generating the party list.

15)It is the appellant’s submission that what constitutes marginalized group is not limited to ethnic background of any person but encompasses many other groups. The appellant argued that the tribunal erred in limiting itself to the ethnic definition of eh marginalized group consequently discriminating against all other interests that are represented and intended as special interests by the Constitution. The 1st respondent is of the contrary opinion that the tribunal came to the correct conclusion that the Ogiek/Ndorobo as the only minority and marginalized communities in Bungoma County and Sabaot, Batuira and Bungomek are also minorities but not marginalized.

16)Having re-evaluated the evidence presented before the tribunal, it is clear that the 1st respondent relied on the report prepared by the National Gender and Equality Commission on ethnic minorities and marginalized communities in Kenya.

17)It is clear from the tribunal’s decision that the Ogiek/Ndorobo community was properly found to be the minority and marginalized in Bungoma county.

18)With respect, I am persuaded by the 1st respondent’s submission that the National Gender and Equality Commission’s report is authoritative hence the IEBC and political parties are bound to rely on such a report in determining which communities can be considered minority and marginalized per county

19)In the end, this appeal is found to be without merit. The same is dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF OCTOBER, 2022. ..........................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent…………………………… for the 2nd Respondent