[2022] KEPPDT 964 (KLR)

Gichoi & 3 others v United Democratic Alliance (UDA) Party & 3 others (Complaint E022 (NRB) of 2022) [2022] KEPPDT 964 (KLR) (2 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 964 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E022 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, EM Washe & Ruth Wairimu Muhoro, Members

May 2, 2022

Between

Peter Migwi Gichoi

1st Complainant

Charles Karanja Kuria

2nd Complainant

Paul Maina Irungu

3rd Complainant

John Njoroge Murigi

4th Complainant

and

United Democratic Alliance (UDA) Party

1st Respondent

Chairman United Democratic Alliance (UDA) Party

2nd Respondent

Chairman United Democratic Alliance (UDA) Party National Election Board

3rd Respondent

Paul Kariuki Wachira

4th Respondent

Judgment

1. The Complainants are members of the UDA party, the 1st Respondents herein. They were cleared by the 2nd Respondent to contest for the position of Member of County Assembly Kayole North Ward. The nominations were conducted on 14th April 2022 but nullified on the 21st April 2022 by the Respondent’s Electoral and Nominations Disputes Committee (EDRC) for irregularities and malpractice. The EDRC ordered a fresh nomination exercise to be conducted within 72 hours. However, the 1st, 2nd and 3rd Respondents blatantly disregarded the EDRC orders by failing to conduct a fresh nomination exercise within 72 hours as ordered.

2. Aggrieved by the inaction on the part of the party, the Complainants filed this complaint on the 25th April 2022 under certificate of urgency accompanied by a Notice of Motion application supported by the affidavit of the 1st Complainant Peter Midgwi Gichoi. Attached to the complaint are the witness statements of the 2nd, 3rd and 4th Complainants.

3. The Complainants have sought the following reliefs from this Tribunal:-i.An Order compelling the 1st, 2nd and 3rd Respondents to conduct fresh nomination exercise forthwith for Kayole North ward in compliance with the Respondent’s EDRC findings and orders of 21st April 2022. ii.An Order directed to the 1st, 2nd and 3rd Respondent to recall the Nomination Certificate issued to the 4th Respondent and to further restrain the 1st, 2nd and 3rd Respondents from submitting the 4th Respondents name to the IEBC as the nominee of the party to vie for the position of Member of County Assembly Kayole North Ward come the 9th August 2022 General Elections.

4. This matter was first placed before the Tribunal on 25th April 2022 when the following directions were issued:-i.THAT the Notice of Motion application dated 25th April 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 25th April 2022 be served upon the Respondents by 11am on 26th April 2022. iii.THAT the Respondents to file their responses to the Complaint and Application by 11am on 27th April 2022. iv.THAT the Complainant to file Further Affidavit if need be together with Written Submissions on entire Complaint by 11am on 28th April 2022v.THAT the Respondents to file and serve their Written Submissions on entire Complaint by 11am on 29th April 2022vi.THAT the Complaint be heard by way of highlighting of written submissions before Nairobi A Bench on 29th April 2022 at 11. 30pm virtually via video link.vii.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.viii.THAT pending inter partes hearing of the application simultaneously with the Complaint, interim orders are hereby issued restraining the Respondents from submitting to the IEBC the name of the 4th Respondent as the 1st Respondent’s nominee for the position of Kayole North Ward, Nairobi County.

5. All parties complied with the Tribunal’s afore-stated directions and this matter proceeded for hearing on 29th April 2022 as scheduled.

6. The Complainants were represented by Mr. Asembo Advocate, the 1st to 3rd Respondents were represented by Ms. Wanjiku Thiong’o Advocate, and the 4th Respondent was represented by Mr. Okach Advocate.

Complainants’ Case 7. It is the Complainants’ case that having been dissatisfied with the whole nomination exercise that was conducted on 14th April 2022, they made a complaint to the 3rd Respondent EDRC. That the EDRC vide its Ruling delivered on 21st April 2022 orders thus:-i.A declaration be and is hereby issued that the decision of the Returning Officer returning a winner in the Kayole North Ward nomination is null and voidii.The 4th Respondent is hereby ordered to conduct fresh nominations of Member of County Assembly, Kayole North Ward within seventy two hours from the date of this Ruling.

8. It is the Complainants’ contention that the EDRC directives have not been undertaken as the 1st Respondent ignored the orders of the EDRC and have failed to repeat the nomination exercise thus denying the Complainants the right to be fairly taken through a fair nomination process.

9. The Claimants submitted that they were not called to attend any interview as an alternative means of nomination as purported by the 4th Respondent. They fear that the 1st,2nd and 3rd Respondents will unfairly declare the 4th Respondent the winner of the UDA party nominations for the MCA Kayole North Ward Nairobi County contrary to the will of the people of Kayole North Ward.

10. The Tribunal was referred to the Replying Affidavit filed on behalf of the 1st to 3rd Respondents sworn by Anthony Mwaura, the Chairman of the party’s National election Board (NEB) where it was admitted that there had been a lapse of not going through the EDRC order.

11. The Complainants maintain that their claim is therefore merited and should be allowed in the interest of justice.

The 1st, 2nd and 3rd Respondents Case 12. The 1st, 2nd and 3rd Respondent filed their response to the Complaint on the 28th April 2022 together with their Written Submissions.

13. It is the 1st to 3rd Respondents case that the Complainants together with the 4th Respondent were successfully cleared to participate in the nomination exercise undertaken on 14th April 2022 for the post of Member of County Assembly Kayole North Ward, Embakasi Central Constituency.

14. They confirm that the Complainants were dissatisfied with the nomination exercise which was not conducted in accordance with the constitutional principles laid out in the 1st Respondent’s electoral laws.

15. The 1st to 3rd Respondents submitted that there was a report captured in the affidavit sworn on the 17th April 2022 placed before the EDRC confirming that there was interference with the electoral process, which report was given by the 3rd Respondents Presiding Officer for Kayole Primary 1 polling Station, one Lilly Chepkemoi. The EDRC accordingly found that there were irregularities in the nomination conducted in Kayole North Ward and ordered the National Elections Board to conduct fresh nominations for the post of MCA Kayole North Ward.

16. It is the 1st to 3rd Respondents’ contention that due to time constraints, NEB made a decision pursuant to Article 31 of the UDA Constitution to undertake indirect nominations by interviewing the aspirants in line with Section 38G of the Political Parties Act, 2011 (PPA) to determine the right nominee.

17. In an attempt to comply with the orders of EDRC of conducting fresh nominations the 1st to 3rd Respondents admit that some aspirants were not invited for the interview, and as such they did not have an opportunity to be interviewed.

18. The 1st to 3rd Respondents maintain that in the interest of justice and fairness to all the parties the National Election Board is keen to undertake fresh nominations in accordance with the United Democratic Alliance Constitution, its nomination and elections rules the Constitution of Kenya and the Elections Act.

19. The 1st to 3rd Respondents urge the Tribunal to refer the matter back to the UDA National Elections Board to enable the party identify the most preferred candidate for the post of Member of County Assembly according to the law.

The 4th Respondent’s Case 20. The 4th Respondent filed his response to the Complaint vide his replying affidavit dated 27/04/2022.

21. He avers that he participated in the party primaries for the UDA Party on the 14/04/2022 having been cleared to contest by the UDA National Elections Board for the position of MCA Kayole North Ward.

22. It is the 4th Respondent’s case that the party primaries were concluded on the same day and he was declared the winner and on the 15th April 2022 was issued with a certificate of nomination.

23. He states that the 1st Complainant was dissatisfied by the said election results and he proceeded to file a nomination dispute with the UDA EDRC and the dispute was heard and the EDRC made a determination on the 21st April 2022.

24. He claims that immediately after the decision, he received a message from the UDA party inviting him and other aspirants for an interview to be conducted on the 22nd April 2022 at their party headquarters in Nairobi. That the interviews were conducted on this day and results announced and he emerged the winner and as such he was issued with the party’s interim certificate of nomination.

25. He is surprised by the allegations by the Complainants who claim that there were no repeat elections yet political parties had the discretion to use other methods for nominating their preferred candidates for certain positions.

26. The 4th Respondent has challenged the Complainants’ assertion that they were not invited for any interview, arguing that the published public notice was very express that an interview would be conducted to select the party’s nominee for the position of Member of County Assembly, Kayole North ward. He further produced evidence confirming that messages were sent out to the aspirants in that regard. He has annexed witness evidence of four or so aspirants who confirmed that they were invited and indeed attended the interview process.

27. The 4th Respondent wants the Complainants’ complaint dismissed.

Issues for Analysis and Determination 28. Having gone through the pleadings and heard the rival submissions by Counsel for all the parties, the following issues are for determination:i.Whether the Complaint is merited?ii.What are the appropriate reliefs to grant?

Whether the Complaint is merited 29. It is not in dispute that the Complainants and the 4th Respondent herein were aspirants for the position of MCA Kayole North Ward and that they participated in the nomination exercise of 14th April 2022 that was subsequently nullified vide the party’s EDRC Ruling delivered on 21st April 2020. It is also not in dispute that the 1st to 3rd Respondent did not comply with the EDRC order to conduct fresh nominations within 72 hours.

30. The 1st to 4th Respondents alluded to the fact that interviews were subsequently conducted for the representative position subject hereof where the 4th Respondent emerged the winner. The Complainants, however, allege that they were not invited to the interview. The 4th Respondent on the other hand maintains that the Complainants were invited through the public notice that the Tribunal was referred to. We note that the subject notices that we were referred to did not state the time of the interview. We further note that the messages that have been produced by the 4th Respondent to demonstrate that parties were invited do not relate to any of the Complainants and cannot therefore be used to demonstrate that the Complainants were invited. In addition, the Affidavits sworn by 4 aspirants do not prove that the Complainants were all invited to the interview.

31. We have gone through the Replying Affidavit that was sworn by one Anthony Mwaura, the Chairman of NEB and filed on behalf of the 1st to 3rd Respondents. The subject Affidavit expressly admits that there was a lapse in the nomination process as not all aspirants were invited for the interview. This position was confirmed by Counsel for the 4th Respondent in her oral submissions. Just as deposed to in the Affidavit, Counsel for the 1st to 3rd Respondents stated that the party’s desire was actually to have the matter referred back to it to comply with the determination of the EDRC.

32. In the foregoing circumstances, we find that the Complaint herein has merit.

What are the appropriate reliefs to grant? 33. The Complainants sought various reliefs as can be deciphered from the text of the Complaint. Having found that the Complaint has merit, we are satisfied that the Complainants are entitled to all the reliefs that they have sought.

34. Costs follow the event. In this particular case, we find no reason to depart from this general principle. Had the 1st to 3rd Respondents complied with the EDRC determination, the Complainants would not have subjected the dispute to this process. We accordingly award costs in favour of the Complainants against the 1st to 3rd Respondents jointly and severally.

Disposition 35. In light of the foregoing, we order as follows:-i.An Order be and is hereby issued compelling the 1st, 2nd and 3rd Respondents to conduct a fresh nomination exercise forthwith for Kayole North ward in compliance with the Respondent’s EDRC findings and orders of 21st April 2022. ii.An Order be and is hereby directed to the 1st, 2nd and 3rd Respondents to recall the Nomination Certificate issued to the 4th Respondent.iii.An Order be and is hereby issued to restrain the 1st, 2nd and 3rd Respondents from submitting the name of the 4th Respondent to the IEBC as the nominee of the party to vie for the position of Member of County Assembly Kayole North Ward come the 9th August 2022 General Elections.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 2NDDAY OFMAY2022. DESMA NUNGO…………………………………………….(CHAIRPERSON)DR. KENNETH MUTUMA……(MEMBER)……….……..…..FLORA M. MAGHANGA-MTUWETA…………………………(MEMBER)RUTH WAIRIMU MUHORO …………………………...(MEMBER)