[2022] KEPPDT 1066 (KLR)

Gichia v United Democratic Alliance; Wanjiku (Interested Party) (Complaint E008 (NRB) of 2022) [2022] KEPPDT 1066 (KLR) (Constitutional and Human Rights) (26 April 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1066 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E008 (NRB) of 2022

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

April 26, 2022

Between

Evans S. Wainaina Gichia

Complainant

and

United Democratic Alliance

Respondent

and

John Njuguna Wanjiku

Interested Party

Ruling

1. The Complainant/Applicant in this case filed a letter of application for waiver of court fees dated 4th April 2022 accompanied with the Complaint herein and an application seeking interim orders filed under certificate of urgency. Upon consideration of the Complainant’s subject letter and pleadings and pursuant to the provisions of Regulation 39 of the PPDT Procedure Regulations 2017 as read together with Oder 33 Rule 6 of the Civil Procedure Rules, the Tribunal directed the Complainant to serve the Respondent with the letter and all his pleadings and to appear before the Tribunal on 7th April 2022 for purposes of receiving evidence of the Complainant’s pauperism and/or for hearing of any evidence which may be adduced in disproof thereof and/or for further directions.

2. On 7th April 2022 when the matter came up for consideration of the Complainant’s evidence as scheduled, the Complainant indicated to the Tribunal that there was no need to further consider the matter as he was proceeding to withdraw the same on terms of a consent that had been entered into between the parties. The Consent Order duly adopted by the Tribunal on 7th April 2022 was to the following terms:-i.That the Complaint is hereby withdrawn with no orders as to costsii.That the Complainant should be included in the Respondent party’s nominations for the Kiambaa Parliamentary seat in accordance with the party’s Constitution and the party’s nomination rules and the laws of Kenya.

3. That subsequent to entry into the above consent that compromised the Complaint herein, the Complainant filed a Notice of Motion Application dated 14th April 2022 under certificate of urgency (hereinafter referred to as “the application”) where he avers that the Respondent has proceeded and issued a nomination certificate to the Interested Party without the conduct of party primaries that would have enabled his participation contrary to the consent order. The application as framed seeks the following orders that:-i.Spent.ii.That the honourable Tribunal hereby nullify and cancel the nomination certificate for John Njuguna Wanjiku, the interested party, for UDA MP Kiambaa nominee, having been issued and/or to be issued in contravention and disobedience of the consent order dated 7th April 2022. iii.That United Democratic Alliance (UDA) Party, the Respondent, is in breach of the Consent orders dated 7th April 2022, and be hereby ordered to conduct direct nominations for Member of Parliament Kiambaa Constituency and avail the ballot materials for the conduct of the Kiambaa MP nominations per the Consent order.iv.That in the alternative, in the event that no further direct nominations are feasible or can be held in Kiambaa Constituency, for whatever reason, then United Democratic Alliance (UDA) Party be hereby ordered to include and list as the first name (top of the list) Evans S W Gichia, the Applicant in the party’s list to IEBC for special interest group, PWD nominations.

4. The application is opposed and the Respondent and the Interested Party have filed Replying Affidavits sworn by Anthony Mwaura and John Njuguna Wanjiku respectively.

5. Prior to admitting the application for hearing, the Tribunal revisited the issue of the Applicant’s pauperism and after examining the Applicant and considering his evidence, the Tribunal delivered a ruling directing the Applicant to pay the filing fees for the application.

6. Pursuant to the directions of the Tribunal, the application was heard inter partes on 22nd April 2022. The Complainant appeared in person. The Respondent and the Interested Party on the other hand were represented by Ms. Tusiime Advocate.

The Application 7. The application is supported by the Supporting and Further Affidavit sworn by the Applicant and the grounds stated on the face thereof.

8. In crux, the Applicant avers that the Secretary General of the Respondent and the Chairman of the Respondent’s National Elections Board summoned him on 6th April 2022 upon service of this Tribunal’s orders dated 5th April 2022 and proposed to him that after deliberations, it had been mutually agreed that he would be included in direct nominations for Kiambaa MP nominations to be held on 14th April 2022 and that he therefore needed to withdraw the case, a position which informed the entry into the Consent Order adopted on 7th April 2022.

9. It is the Applicant’s contention that the Respondent failed to carry out direct party nominations in respect of the position of MP Kiambaa Constituency nominations and this amounted to breach of the consent order and should be sanctioned as Tribunal orders are not issued in vain.

10. The Applicant submitted that pursuant to the events leading to the consent order, he had a legitimate expectation that he would be an aspirant in the party nominations and that failure to conduct direct nominations was in contravention of his constitutional rights as enshrined in the bill of rights, and offended the constitutional principle of inclusion of disadvantaged groups including persons with disability.

11. It was the Applicant’s submission that a certificate was issued to the Interested Party without any communication, information or opportunity to be heard contrary to not only the consent order but also the rules of natural justice. That the issuance of a direct certificate to the Interested Party without holding direct nominations was a direct humiliation, violation, infringement and threat of interference with his rights as a person living with disability, as a voter, as a party member and an aspirant whose voters had also been denied their right to vote for a leader of their choice as envisaged in the Constitution of Kenya. He relied on various constitutional provisions as detailed in paragraph 10 of his Supporting Affidavit.

The Respondent’s and Interested Party’s Responses. 12. The Respondent and the Interested Party have challenged the jurisdiction of the Tribunal to hear and determine the application by virtue of the provisions of Section 40(2) of the Political Parties Act (PPA) and Article 39 of the party constitution claiming that no evidence was tendered to demonstrate an attempt at IDRM.

13. The Respondent and the Interested Party have narrated a series of events that transpired prior to the institution of this Complaint. That the Applicant offered to withdraw his candidature in favour of the Interested Party vide a letter to UDA dated 29th March 2022 and signed a consensus agreement dated 30th March 2022 which effectively dropped his name from the list of aspirants, that they were shocked that the Applicant thereafter filed the instant case leading to the Consent Order subject hereof.

14. It is the Respondent’s and the Interested Party’s contention that the consent order did not dictate on the specific method of nomination that was to be employed by the Respondent. It stated that the nomination was to be in compliance with the party constitution, its nomination rules and the laws of Kenya. That pursuant to the consent order, the Respondent vide a letter dated 18th April 2022 invited both the Applicant and the Interested party to an interview as a method and form of nomination.

15. It is the Interested Party’s contention that he was a participant in the nomination process that he avers was conducted on 21st April 2022 in accordance with the Consent Order and that upon conduct of the interview, he was declared the winner and subsequently issued with the party’s nomination certificate on 21st April 2022.

16. The Respondent and the Interested Party submitted that there was in the circumstances full compliance with the consent order by virtue of the provision of Article 31 of the party constitution and Rule 6 of the party nomination rules which provide and permit any other methods as may be directed by the Respondent’s National Elections Board.

Issues for Analysis and Determination 17. Flowing from the parties’ pleadings and submissions, we have isolated the following key issues for determination:-i.Whether this Tribunal has Jurisdiction to hear and determine this application, and,ii.If the finding on issue number (i) is in the affirmative, Whether the Applicant’s application has merit.

Whether this Tribunal has Jurisdiction to Hear and Determine this Matter 18. As already highlighted, the Respondent and the Interested Party have challenged our jurisdiction to hear and determine this matter on the grounds that the Applicant did not invoke IDRM contrary to the provisions of Section 40 of the PPA as read together with Article 39 of the party Constitution.

19. The Tribunal notes that a preliminary objection on jurisdiction was initially filed on 6th April 2022 citing the provisions of Section 40 of the PPA as read together with Article 39 of the party’s Constitution. Subsequently, the parties on 7th April 2022 entered into the consent order adopted on 7th April 2022.

20. The question of jurisdiction was once again raised vide a PO filed on 17th April 2022 wherein the Respondent and Interested Party averred that the Tribunal ceased to have jurisdiction over the suit as it had become functus officio by virtue of Order 25 of the Civil Procedure Rules, 2010, and further that there was no attempt at IDRM. We rendered our ruling dismissing the subject preliminary objection on the 21st April 2022. Noting that the preliminary jurisdiction with respect to IDRM was dismissed on the basis that there were contested facts thus not a proper PO, nothing precludes us from considering the question of IDRM on merit.

21. We have examined the contested facts and evidence and we are satisfied – in line with the section 40(2) of the PPA that the Applicant “made an attempt to subject the dispute to the internal political party dispute resolutions mechanism.” The Consent agreement in fact demonstrates an outcome of an attempt to resolve the dispute through party structures.

22. We have further considered that the application before us is one seeking to enforce a consent order. The Applicant is aggrieved by what he considers breach of the consent order. Section 41(3) of the PPA provides that the Tribunal has power to enforce its own decisions. This would include a consent order adopted by the Tribunal. We therefore find that we have jurisdiction to hear and determine an application seeking enforcement of an order of the tribunal.

Whether the Application has Merit 23. As we have already observed, the gravamen of the Applicant’s application is that the Consent order dated 7th April 2022 was not complied with. The Consent Order expressly provided that the Complainant should be included in the Respondent party’s nominations for the Kiambaa Parliamentary seat in accordance with the party’s Constitution and the party’s nomination rules and the laws of Kenya.

24. From the parties’ pleadings and submissions, it is evident that the question of inclusion of the Applicant in the nomination in accordance with the party constitution as per the consent order is contested. Parties led evidence in support of their respective positions thus inviting this Tribunal to examine the evidence and make a finding thereon.

25. The applicant contended that there was no compliance with the consent order as he was not included in the Respondent’s party nominations. He states at paragraphs 4 and 5 of his Supporting Affidavit, and also at paragraphs 15 and 17 of his Further Affidavit that he was in the list of final nominees that were to contest for direct nominations, and that on 6th April 2022 he met with the Respondent’s Secretary General (SG) and the Chairman of the Respondent’s National Elections Board (NEB) and it was agreed that direct nominations for Kiambaa MP would be conducted on 14th April 2022 and that his name would be included. According to him, it is the subject discussions and agreement that informed the entry into the consent order.

26. We have gone through the Affidavits filed by the Respondent and the Interested Party and we note that the Applicant’s averments to the effect that there was a meeting that was held on 6th April 2022 when it was agreed to conduct direct nominations on 14th April 2022 have not been challenged. The Applicant deposed that he met with the Chairman of NEB, the party SG amongst others. The Respondent’s Replying Affidavit has been sworn by the Chairman of NEB who has not denied that there was any such meeting and agreement. In essence, the evidence by the Applicant on the reason for compromise of the Complaint and entry into the consent order have not been controverted. It is also not in dispute that direct nominations for the aspirants in this case was not conducted on 14th April 2022.

27. Be that as it may, the Respondent and Interested Party maintain that the Consent order was complied with. They submitted that the party proceeded and invited the aspirants for an interview vide a letter dated 18th April 2022 in accordance with Article 31 of the party Constitution and Rule 6 of the nomination rules. It is the Interested Party’s contention that in any event, the Applicant had entered into a consensus agreement dated 30th March 2022 withdrawing his candidature in favour of the interested party.

28. Article 31 of the party Constitution was not produced. Counsel for the Respondent and Interested Party nevertheless read it out and confirmed that it provided that the party constitution mandated NEB to use various methods of nomination whose processes/procedures would be guided by the nomination rules.

29. Rule 6 of the Respondent’s Nomination Rules provide as follows on the Nomination Procedure:-1. In accordance with the General Elections Calendar as provided for in law and published by IEBC, or in the event of a by-election, the board shall cause to be published a notice inviting and requiring members to make recommendations and interested persons to apply for nominations as party candidates in either general or by-elections.2. The National Elections Board shall employ any of the following methods to determine the party candidate:-a.Where two or more aspirants show interest in contesting for the party ticket for any position,i.The board shall proceed to conduct free, fair and democratic nomination exercise;ii.The board may build consensus among the aspirants to support one of them;iii.In special circumstances, the board may undertake direct nomination and proceed to issue ticket.3. The consensus and special circumstances referred to above shall include:-i.Electoral areas the party is not the most popular but have persons aspiring to be elected on the party ticketii.Where the aspirant is unopposedii.Where the candidates have, independent of the party by consensus unanimously nominated one among themselves to be their nominee and have executed a commitment note to that effect, andiv.Where the party is undertaking nomination in electoral areas where there is negotiated democracy.Provided that consensus and or special circumstances may not be used to curtail the rights of any aspirant to participate in the party primaries without undue influence or any form of intimidation or both.

30. From the wording of the above provisions, it is evident that where two or more aspirants show interest in contesting, the Respondent’s NEB has three options to consider, that is, free fair and democratic nomination exercise (which is now defined as direct nomination in the current legal context under the PPA), consensus building, or direct issuance of a ticket under special circumstances.

31. In this particular case, it appears that the aspirants attempted consensus building hence reference to the Consensus Agreement of 30th March 2022. The Interested Party argued that there was consensus building in the first instance leading to the consensus agreement dated 30th March 2022. However, the position changed vide the afore-highlighted uncontroverted events that led to the entry into the Consent Order of 7th April 2022 which overrides the consensus agreement. It is not in dispute as we have already observed that the process that NEB settled on was direct nominations that were to be conducted on 14th April 2022. This, however, did not happen. Instead, an interview was conducted.

32. We find it strange that the interview that the Respondent and interested party alluded to leading to the issuance of the ticket to the Interested Party on the 21st April 2022 transpired during the pendency of this Application. We have gone through the invitation letter dated 18th April 2022 authored by NEB allegedly in exercise of the powers conferred by Article 21 as read with Article 31(iii) of the Respondent’s Constitution and it states as follows:-“ The UDA National Elections Board (NEB) upon powers conferred by Article 21 as read with Article 31(iii) of the United Democratic Alliance (UDA) Constitution, you are hereby invited to attend an interview before a constituted National Elections Board on Thursday 21st April 2022 at Hustler Plaza, Ndemi Road, Off Ngong Road, at 10am without fail. Please carry hard copies of your certificates & testimonials for ease of reference and verification…”

33. We agree with the Applicant that the letter does not indicate the purpose of the interview and there is no mention of the subject of nominations for Kiambaa MP. The Applicant gave evidence that he honoured the invitation and that he was not in any event interviewed. That he found one person who simply informed him that the ticket had been issued to the Interested Party. We are thus at a loss as to whether there was actually an interview, what was the subject of the interview, who were the interviewees, amongst other unclear issues. No record has been furnished by the Respondent to the Tribunal to demonstrate the process and the outcome.

34. It is our further observation that pursuant to the nomination procedure, nomination by way of consensus building or issuance of a direct ticket can only be resorted to under special circumstances referred to in the rules. None of the recognised special circumstances that would have warranted a direct issuance of the ticket to the Interested Party has been pleaded for this Tribunal’s consideration. In any event, the party’s law is express to the effect that consensus and or special circumstances may not be used to curtail the rights of any aspirant to participate in the party primaries without undue influence or any form of intimidation or both.

35. In a nutshell, the parties hereto having invited this Tribunal to make a finding on the contested position as to whether or not the Applicant was included in the nomination process as per the consent order, and having examined the stated uncontroverted facts leading to entry into and thus the interpretation of the consent order, and further having considered the totality of the facts and circumstances of this particular case, we find that the Respondent did not comply with the letter and the spirit of the Consent Order.

36. Turning to the prayers sought in the application, we have considered the alternative order sought for inclusion of the Applicant in the list as the first name (top of the list) in the party’s list to IEBC for special interest group, PWD nominations, and we are of the considered opinion that it is not within this Tribunal’s province to issue the same.

37. In light of the foregoing, we grant the following orders:-i.That United Democratic Alliance (UDA) Party, the Respondent, is in breach of the Consent Order dated 7th April 2022. ii.That the nomination certificate issued to John Njuguna Wanjiku, the interested party, for UDA MP Kiambaa nominee, in breach of the Consent Order dated 7th April 2022 be and is hereby nullified.iii.That the Respondent to forthwith include the Applicant in the list of aspirants and conduct direct nominations for Member of Parliament Kiambaa Constituency.iv.That each party shall bear its own costs of these proceedings in the interest of fostering party unity.v.Notice to issue to the IEBC.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF APRIL 2022. DESMA NUNGO(CHAIRPERSON)DR. KENNETH MUTUMA(AD HOC MEMBER)FLORA MIGHULO MAGHANGA(AD HOC MEMBER)