[2022] KEPPDT 1007 (KLR)

Ibrahim v Jubilee Party; Onkoba (Interested Party) (Complaint E126 (NRB) of 2022) [2022] KEPPDT 1007 (KLR) (12 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1007 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E126 (NRB) of 2022

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

August 12, 2022

Between

Nasra Mohamed Ibrahim

Complainant

and

Jubilee Party

Respondent

and

Hezron Obaga Onkoba

Interested Party

Judgment

1. The Complainant is a resident of Kahawa Wendani, Kiambu County and a life member of the Jubilee Party, the Respondent herein. She applied to the nominated in the Respondent’s Kiambu County Assembly party list under the minority category. However, her application was not successful as the Respondent nominated one Hezron Obaga Onkoba instead.

2. She is dissatisfied with the nomination of the said Hezron Obaga Onkoba, who she believes does not qualify for nomination in the Respondent’s Kiambu County Assembly party list under the minority category. She has accordingly filed the instant Complaint and as per her Complaint Form, she prays that this Tribunal determines that the said Hezron Obaga Onkoba was not duly nominated and that his nomination is void, and/or that the said Hezron Obaga Onkoba is not compliant and that his nomination is void

3. The Complaint is opposed by the Respondent political party vide the party’s responses on record.

4. Pursuant to the directions that were issued by this Tribunal, this matter proceeding for hearing on August 11, 2022 when parties presented their oral submissions on the substantive Complaint. The Complainant was represented by Mr. Lumumba Advocate and the Respondent was represented by Mr. Manyara Advocate.

The Complainant’s Case 5. The Complainant avers that the Jubilee Party, the Respondent, invited interested and qualified member of the Respondent to apply for consideration for nomination to the Respondent’s Kiambu County Assembly party list. On May 17, 2022, the Complainant, being a life member of the Jubilee Party – Membership Number JP93678XXXX, applied for nomination to the Kiambu County Assembly to represent the minority.

6. It is the Complainant’s case that notwithstanding her belief that she was qualified and would be nominated for the position subject hereof, she came to learn on or about the July 27, 2022 that the Respondent did not forward her name to the Independent Electoral & Boundaries Commission (IEBC). Instead, one Hezron Obaga Onkoba had been nominated.

7. It is the Complainant’s submission that Hezron Obaga Onkoba is from Kisii community, which community has a large population within Kiambu County and does not therefore qualify to be a minority community. According to the Complainant, going by the statistics collected by the Kenya National Bureau of Statistics in the census of 2019, Kisii community are the third largest community by number/population in Kiambu County, while the Somali ethnic community where she comes from are the minority. She further relied on the Ethnic & Diversity Audit of the County Public Service Report of 2015 by the National Cohesion & Integration Commission at page 114 thereof to demonstrate that Somalis are the minority

8. The Complainant submits that the Article 260 of the Constitution of Kenya outlines the parameters of a marginalized or a minority community and that pursuant to the subject parameters under Article 260 of the Constitution, Hezron Obaga Onkoba does not qualify for nomination to represent the minority in the Respondent’s Kiambu County Assembly party list.

9. The Complainant avers that she presented her complaint to the Respondent vide a letter dated July 27, 2022 and the Respondent ignored the same thus necessitating the filing of these proceedings. She accordingly prays that the nomination of Hezron Obaga Onkoba be invalidated as stated in her Complaint Form. She further prays in her Supporting Affidavit that she be included in the Respondent’s Kiambu County

The Respondent’s Case 10. The Respondent has filed a Response and Further Affidavit both sworn by Kamau Mbugua on August 11, 2022 in opposition to the Complaint and the application.

11. It is the Respondent’s submission that it submitted to the IEBC its party list in consonance with Article 13 of the Respondent’s Constitution. However, the party list was rejected by the IEBC in exercise of its mandate under the Constitution thus necessitating the reconstitution of the party list. The Respondent’s Party List Nomination Committee established under Section 44 of the Respondent’s Nomination Rules, in exercise of its mandate in accordance with the party laws, reconstituted the party list as directed by the IEBC.

12. The Respondent submits that the Complainant has not explained any illegality that the Respondent committed by leaving her name out of the resubmitted party list that has since received the approval of the IEBC. It is the Respondent’s submission that the fact that the Complainant applied for consideration for nomination in its Kiambu County Assembly party list does not ipso facto mean that she was entitled to be nominated, and that being from a certain community is not the only factor that is taken into account in coming up with the party lists.

13. The Respondent further submits that in any event, according to a recent report by the National Gender & Equality Commission (NGEC) at page 58 thereof, Kisii community has been identified as one of the minority and marginalized communities in Kiambu County. It is therefore not true that Kisii community are not a minority community in Kiambu County.

14. The Respondent contends that the Complainant did not make any reasonable and honest attempt to resolve the dispute within the party’s internal dispute resolution mechanism (IDRM). No appeal has been lodged with the National Elections Appeals Tribunal (NEAT) established under Article 16 of the party Constitution to resolve such disputes. They submit that the Complainant’s letter dated July 27, 2022, demanding that the Respondent, a corporate body, includes the Complainant’s name in the party list, without seeking her dispute to be heard, was not only unreasonable but also a clear demonstration that the Complainant had no intention to resolve the issue as required under the law.

15. The Respondent maintains that the Complaint is without merit and does not warrant this Tribunal’s interference with the prerogative powers of the Respondent in coming up with the party lists in accordance with Article 177 of the Constitution of Kenya, and Sections 34, 35 and 36 of the Elections Act. They therefore pray that the Complaint be dismissed with costs.

Analysis and Determination 16. 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? 17. The Respondent has challenged the jurisdiction of this Tribunal on the ground that the instant dispute was not subjected to resolution within the party’s internal dispute resolution mechanisms (IDRM) in the first instance. The Complainant maintains that they made a honest attempt at IDRM and that this Tribunal has jurisdiction.

18. 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 (the PPA), 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 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.

19. The instant Complaint being one arising from nominations, Section 40(2) of the PPA requires that the Complainant adduces evidence of an attempt to subject the dispute to the Respondent’s IDRM prior to moving the Tribunal.

20. The Tribunal has to scrutinize whether it has been demonstrated that there was an attempt made by the Complainant to subject the dispute to the Respondent’s IDRM. 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. ”

21. The Complainant has adduced as evidence a letter dated July 27, 2022 addressed to the Respondent in an attempt to have the dispute subject hereof addressed by the party. However, the letter was never responded to. The Respondent has challenged the procedure of lodging the Complaint with the Respondent as purported by the Complainant, stating that complaints ought to be lodged with NEAT as provided for under Article 16 of the Respondent’s Constitution and the NEAT Procedure Rules.

22. Whereas it may be true that the form and contents of the letter may not amount to a complaint under the party rules, we cannot ignore the fact that the Respondent did not respond to the Complainant’s letter with necessary information. Suffice it to note that this Complaint was filed on or about August 8, 2022, being over 10days from the date the letter of complaint was sent out. The Respondent has not denied receipt of the letter dated July 27, 2022. Their only concern is that the Complaint made a demand for her inclusion without having the dispute heard.

23. We are of the considered opinion that the Respondents should have at the very least responded to the letter or advised the Complainant the right way to go. Such was the consideration of the Court of Appeal in the case of Samuel Kalii Kiminza vs Jubilee Party & Another(2017) eKLR, where it was observed as follows: -“… 26. Further, we cannot help but note that the Appellant wrote to the 1st Respondent not once but twice and none of these letters elicited any response from the 1st Respondent. The Appellant is a member of the 1st Respondent having paid the requisite fees. The Appellant had also paid Kshs 250,000/= in order to be eligible to take part in the nomination exercise for the position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1st Respondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters and advise him on the right way to go about the appeal. Having failed to do so we hold that the Appellant was entitled to approach the PPDT and that the PPDT therefore had jurisdiction to hear and determine the matter…”

24. In a nutshell, taking into consideration the foregoing, we find that the Complainant has demonstrated that she made an honest attempt at IDRM in vain and that we accordingly have jurisdiction to hear and determine this matter. The Complainant is therefore properly before the Tribunal.

Whether the Complaint is merited? 25. Whilst considering the merits of this Complaint, it is inescapable to outline the law governing the constitution of county assembly party lists by political parties.

26. Article 90 of the Constitution of Kenya provides on allocation of party list seats as follows: -1. Elections for the seats in Parliament provided for under Articles 97(1)(c) and 98(1)(b), (c) and (d), and for the members of county assemblies under article 177(1)(b) and (c), shall be on the basis of proportional representation by use of party lists

2. The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-a.Each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislationb.Except in the case of the seats provided for under Article 98(1)(b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; andc.Except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya

3. The seats referred to in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election

27. And Article 177 of the Constitution provides as follows on the membership of the county assembly: -1. A county assembly consists of—a.Members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;b.The number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;c.The number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; andd.The Speaker, who is an ex officio member

2. The members contemplated in clause (1)(b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90

3. The filling of special seats under clause (1)(b) shall be determined after declaration of elected members from each ward

4. A county assembly is elected for a term of five years.

28. Sections 34, 35 and 36 of the Elections Act make further provisions on nomination of party list members; submission of party lists; and allocation of special seats.

29. We further remain alive to the judicially underscored position that the preparation of party lists is within the mandate and discretion of political parties. In this regard, we are guided by the observation by the Supreme Court in the case of Moses Mwicigi & 14 others vs Independent Electoral and Boundaries Commission [2015] eKLR, where the Supreme Court, in addressing the responsibilities of the political parties, went on to say;“…Nowhere does the law grant powers to the IEBC to adjudicate upon the nomination processes of a political party: such a role has been left entirely to the political parties. The IEBC only ensures that the party list, as tendered, complies with the relevant laws and regulations…”

30. And in the case ofLydia Mathia vs Naisula Lesuuda & another, [2013] eKLR where the Court of Appeal observed that;“…The definition of “party lists” under section 2 of the Elections Act suggested ownership of the list by the political party that has prepared it. The practice, indeed the law is that the power over who gets the reserved seats resides with the parties themselves and no other authority…”

31. And further in the case of National Gender and Equality Commission vs Independent Electoral and Boundaries Commission & Another [2013] eKLR, where the Court of Appeal held thus:“…We therefore find and hold that Article 90(2) does not deal with elections leading to the constitution of party lists nor concern itself with the manner in which parties come up with the names on the lists. How the election of persons on the list is carried out is a matter entirely within the mandate of the respective political parties. It is for this reason that regulation 55(1) of the General Regulations provides that, "The party list contemplated under regulation 54 [the lists under Article 90(1)of the Constitution] shall be prepared in accordance with the rules of the political party...Section 34(6) of the Elections Act, 2011 specifically provides that, "The party lists submitted to the Commission under this section shall be in accordance with the Constitution or nomination rules of the political party concerned." This role does not extend to directing the manner in which the lists are prepared as these are matters within the jurisdiction of the parties but in considering the lists, the IEBC must nevertheless be satisfied that the lists meet constitutional and statutory criteria. We would hasten to add that in the event there is a dispute in the manner in which the parties conduct themselves in conducting their internal elections then recourse may be had by the aggrieved party members, inter-alia to the Political Parties Disputes Tribunal established under section 39, Part VI of the Political Parties Act, 2011 or to the High Court in appropriate circumstances."

32. Notwithstanding the fact that it is the political parties that are mandated and have the discretion to prepare party lists, it is also appreciable that political parties ought to exercise their discretion in accordance with the law. The process of arriving at party list ought to be transparent and party to be accountable to its members. This was judicially underscored by Mwita J (as he then was) in the case of Salma Florence Bwogi Ochieng v Orange Democratic Movement Party [2017] eKLR.

33. Turning to this case, we note that the Complainant is aggrieved by her having been left out of the Respondent’s Kiambu County Assembly party lists whose legality she has challenged on two broad grounds. Firstly, the Complainant in her submission averred that the party list did not comply with the zebra requirement of alternating names of a male and a female. According to her, other than Hezron Obaga Onkoba, she also ought to have been included. Secondly, she believes that she was more deserving of the nomination as she is from the Somali community which is a minority community in Kiambu County unlike the said Hezron Obaga Onkoba who is from the Kisii community which community is not a minority community in Kiambu county.

34. With respect to the allegation that the alternate arrangement of male and female was not complied with, we have gone through the list produced and we note that the Complainant is not being truthful. The section of the party list produced by the Complainant evidently alternates male and female in the section of the Kiambu County Assembly party list subject of these proceedings. Indeed a female name appears after the listing of the said Hezron Obaga Onkoba and the trend continues up to the end of the subject page of the document. We do not agree with the Complainant that she ought to have been included as a female minority in addition to Hezron Obaga bearing in mind that party lists comprise of various special interest groups and the political party is expected to exercise some balance and ensure various interest groups are represented.

35. We have further considered the evidence adduced by both parties to support their respective cases as to whether Somali and Kisii communities are minority communities in Kiambu County. The Complainant relied on two main documents, namely the Kenya National Bureau of Statistics census report of 2019 and the Ethnic & Diversity Audit of the County Public Service by the National Cohesion & Integration Commission Report of 2015. The Kenya National Bureau of Statistics report has not been produced before us and we are not able to verify allegations based on a report that has not been furnished. As regards the Ethnic & Diversity Audit of the County Public Service by the National Cohesion & Integration Commission Report of 2015, we note that the page we have been referred to relates to a report on ethnic diversity in the Kiambu County Public Service. It is not necessarily a report on the population of various communities in Kiambu County and/or whether such communities are minority or marginalized communities as alleged by the Complainant or at all.

36. The Respondent on the other hand produced the 2018 National Gender & Equality Commission (NGEC) Report wherein at page 58, it is evident that as at the date of the report, both the Kisii community and the Somali community were recognized as minority communities in Kiambu County.

37. From our analysis, we are of the considered opinion that the Complainant has not substantiated her allegations to warrant our interference with the Respondent’s party list subject hereof. We have further taken into consideration the fact that the Complainant has not sufficiently demonstrated to us that the Respondent did not exercise its discretion in accordance with the law in the preparation of the party list. It has further not been demonstrated that any specific party rules were breached by the Party List Nomination Committee of the Respondent.

38. Taking into consideration the totality of the foregoing circumstances, we find that this Complaint is not merited.

What are the appropriate remedies in the present instance? 39. Having found that the Complaint lacks merit, what follows is an order for dismissal. As regards costs, we direct that each party bears its own costs of these proceedings in the interest of fostering party unity.

Disposition 40. In light of the foregoing, we order as follows: -i.That the Complaint herein be and is hereby dismissed.ii.Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF AUGUST 2022. DESMA NUNGO………....………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..….................(MEMBER)FLORA M. MAGHANGA-MTUWETA....................……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)