[2022] KEPPDT 1073 (KLR)

Jelimo v United Democratic Alliance; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E017 (ELD) of 2022) [2022] KEPPDT 1073 (KLR) (Civ) (5 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1073 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E017 (ELD) of 2022

Stephen Ligunya, Amina Hashi & Andrew Waruhiu, Members

September 5, 2022

Between

Tenai Magdalene Jelimo

Complainant

and

United Democratic Alliance

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant is Tenai Magdalene Jelimo and is a member of the 1st Respondent, the United Democratic Alliance (UDA). She claims to be a duly registered member of United Democratic Alliance and gives her UDA Membership No as UDA 3204XXX. She applied to be nominated as Member of County Assembly pursuant and in compliance with the party rules.

2. Her application was duly considered and was consequently nominated by the party under the nominee for the Uasin Gishu Member of County Assembly under the category of Persons with Disability. Her name was subsequently printed in the list released by the Interested Party on July 4, 2022. She avers that the 1st Respondent submitted the names of those duly nominated to be gazetted and published in the dailies. She complains of actions that occurred on or about the August 24, 2022 where the 1st Respondent further submitted a new list that was published in the interested party’s website on the August 24, 2022 and she noted that in the new list, names had been changed and did not reflect the original list that had been published by IEBC earlier.

4. The Complainant claims to have attempted to resolve the matter within the Party’s internal mechanisms but her complaints were neither received nor acted upon. She seeks that her name be restored. She filed her notice of motion supported by an affidavit with various annexures all dated August 30, 2022.

The Complainant’s Case 5. Tenai Magdalene Jelimo a duly registered member of United Democratic Alliance Party who applied to be nominated as Member of County Assembly Uasin Gishu County pursuant and in compliance with the party rules. Her application was duly considered and she was consequently nominated by the party under the Uasin Gishu County Assembly nominee under the category of Persons with Disability and her name printed in the list released by the Interested Party on July 4, 2022.

6. She claims that the 1st Respondent submitted the names selected to be gazetted and published in the dailies.She avers that she contributed in the party affairs and campaigning for the presidential candidate and believes that she has a stake in the leadership in the affairs of Uasin Gishu County.The Complainant avers that the party submitted a new list that was published in the interested party’s website on the August 24, 2022 and that in the new list, the names had been changed and did not reflect the original list that had been published by IEBC and in some instances, the order had been changed in total disregard to rules of natural justice and the interested party regulations is the nucleus of the complaint herein.

8. The Complainant avers that she tried to resolve the matter within the Party’s internal mechanisms but her complaints were neither received nor acted upon.The complainant avers that her name appeared number 6 on the list (Persons with Disability Category) in the list posted on the interested party’s website and that the party went ahead and submitted a new list that was published in the interested party’s website on the August 24, 2022.

9. She claims that the alteration of the names were done arbitrarily by the 1st Respondent and that the entire nomination list for Uasin Gishu County Assembly is improper, irregular and only reflect the will of a few people and in turn disadvantaging those that had genuinely applied and been considered in the various positions to be nominated.

10. She states that there was no complaint that had been raised against any of those that had earlier been placed on the list and therefore the party had no ground and/or a reason to arbitrarily change any name and/or order of the said names.She seeks the following reliefs:1. That the entire Nomination list of Uasin Gishu County to be declared illegal, null and void

2. That the original list posted on the website of the interested party on July 4, 2022 and subsequently published on the local dailies be adopted and gazetted.

3. That the Respondent bears the costs of this Complaint.

Issues For Determination: 11. On an analysis of the Complaint, Application and all other documents put before this Tribunal, the following emanate as the issues for determination:i.Was there proper service effected and can the Tribunal determine this dispute and grant the orders as framed in the context of service ?ii.Does the Tribunal have jurisdiction to entertain this Complaint?

i. Was there proper service effected and can the Tribunal determine this dispute and grant the orders as framed in the context of service? 12. It is trite that service upon an adversary in proceedings is crucial and cannot be dispensed with save for exceptional circumstances. This requirement flows from the ‘audi alteram partem’ rule of natural justice that a party shall not be condemned unheard. Indeed, if service is not effected on a party, then such party will not have notice of the proceedings ongoing against them nor will they be afforded an opportunity to be heard.

13. The Court of Appeal in Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 Others [2019] eKLR posited as follows on the issue of service;“It is trite that one of the tenets of the rules of natural justice is that a party should not be condemned unheard. In other words, no proceedings should be conducted to the detriment of any person in his absence. It is in line with the actualization of this right that the provisions for summons to enter appearance and service thereof come into play. The essence of such summons is to give notice to the party sued of the existence of the suit and invite him/her to enter appearance and defend the suit if she/he so wishes.”

14. Nonetheless on the 2nd of September 2022 Mr Wamalwa Holding brief for Mr Mosioma informed this Tribunal that he spoke to a Mr Anjiji who appears for the UDA party ,however there was no evidence on record of this advocate and his instructions’. The Tribunal adjourned the matter instructing the Complainant to effect proper service and return on the September 3, 2022.

15. The Complainant put before this Tribunal an affidavit of service both sworn by Walter Olando dated September 2, 2022. In the affidavit, Mr Olando avers that he attempted to effect service on the 1st Respondent and Interested Party but did not manage to get the necessary personnel in charge to accept service. He states that “The receptionist in both instances intimated that the persons responsible for receiving the documents were out of the office..”

16. In the matter of Law Society of Kenya vs Martin Day & 3 Others[2015] eKLR, the Court posited that service is a clear elaborate procedural requirement of the Civil Procedure Rules. It is not a mere procedural technicality that can be sacrificed at the altar of substantive justice.

17. The orders sought from this Tribunal in the Complaint are adverse to the 1st Respondent and all nominees of UDA party for Uasin Gishu County Assembly nominations, yet there service and notice of this dispute was not effected..Further the orders sought by the Complainant for the Tribunal to nullify an entire list of UDA nominees for Uasin Gishu County Assembly ,without hearing the submission of this nominees would result to an avalanche of litigations and nebulousness.

18. Hearing a dispute framed as a dispute between a member of a political party and the political party yet it also brings into context of a dispute between members of a political party not present in the proceeding is peculiar

19. Looking at the orders sought and granting it without proper specificity challenging a specific nominee of the Uasin Gishu County Assembly is erroneous. In addition to the above having returned a finding that proper service has not been effected on the affected parties would be tantamount to condemning the 1st Respondent and all nominees of the UDA Party to the Uasin Gishu County Assembly Unheard.

20. This Tribunal finds itself hard-pressed to do so.

ii. Does the Tribunal Have Jurisdiction to entertain this Complaint? 21. The words of Justice Nyarangi JA in The Motor Vessel “Lilian S” case still hold good and as a Tribunal, we stand guided by them. The good Judge opined, “Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”Based on a review of the record before this Tribunal, it is clear that the complaint before us constitutes a dispute between a party member and a political party as well as a dispute between members of a political party. The Complainant is protesting the decision of the Party to remove her name from the Party’s nomination list. The dispute thus falls within the jurisdiction of the Tribunal as per Section 40(1) of the Political Parties Act.

22. However, Section 40(2) of the same statute provides that a dispute between a Political Party and a member of the Party must demonstrate an attempt of having subjected the dispute to the Party’s Internal Dispute Resolution Mechanism (IDRM) in hope to resolve the dispute. Only after invoking a Party’s IDRM can this Tribunal’s jurisdiction be invoked.

23. In this case, the Complainant avers that on August 24, 2022, she noticed that on the Interested Party’s website there was an entirely new party list published and her name was not there.

24. Having being dissatisfied with the decision of the Party to expunge her name and presenting an entirely new list to the Interested Party, she wrote a letter addressed to the 1st Respondent complaining of what had transpired and seeking their intervention and reinstatement of her name. She has attached the said letter, Ref: AW/LIT/UDA9/2022 and annexed as TMJ-3 in her bundle. However, the Complainant does not provide anything to show that the letter was actually received by the 1st Respondent or an email sent receipt for this Tribunal to be satisfied that the recipient indeed sought the Party’s IDRM intervention.

12. In totality of the foregoing, it is clear that the Claimant has failed to demonstrate an attempt that she invoked the Party’s IDRM. The jurisdiction of this Tribunal has been prematurely invoked and we have no option but to down our tools.

Finding 1. In conclusion, we make the following orders:i.The Complaint dated August 30, 2022 and Notice of Motion Application of even date be and are hereby dismissed.ii.No order as to costs.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 5TH DAY OF SEPTEMBER 2022. Hon. Ligunya StephenPresiding MemberHon. Hashi AminaHon. Andrew WaruhiuMember