[2022] KEHC 10490 (KLR)

Jubilee Party Of Kenya v Ouma; Gichangi & another (Interested Parties) (Election Petition Appeal E327 of 2022) [2022] KEHC 10490 (KLR) (Civ) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10490 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Election Petition Appeal E327 of 2022

JN Mulwa, J

June 7, 2022

Between

Jubilee Party Of Kenya

Appellant

and

Paul Bwire Ouma

Respondent

and

Charles Nderitu Gichangi

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

(Being an appeal from the judgment and decree delivered on 17th May 2022 by Hon. M.L. Odongo (Presiding Member), Hon. Tororey Timothy Kipchirchir (Member) and Hon. Dr. Lydiah Wambuti (Member) in the Political Parties Dispute Tribunal Cause No. E006 of 2022)

Judgment

1. The Respondent, Paul Bwire Ouma, filed PPDT Cause No. E006 of 2022 vide a complaint dated 5th May 2022 contesting the Appellant's decision to nominate the 1st Interested Party, Charles Nderitu Gichangi, as its candidate in the upcoming election for the position of Member of County Assembly (MCA), Umoja 1 Ward. He pleaded that he emerged the winner in an opinion poll conducted by the Appellant and was informed by the Appellant to pick the nomination certificate which decision was challenged by the 1st Interested Party vide complaint no. 104 of 2022 in the Appellant’s National Elections Appeals Tribunal (NEAT). He claimed that when he went to collect the certificate on 26th April 2022, he was informed that the nomination certificate had been issued to the 1st Interested Party whose name was forwarded to the IEBC on 28th April 2022.

2. The Appellant opposed the complaint vide its Replying Affidavit dated 9th May 2022. It averred that the complaint lodged by the 1st Interested Party in the Party’s National Elections Appeals Tribunal (NEAT) was not pursued because the National Elections Board (NEB) informed NEAT that it was the 1st Interested Party and NOT the Appellant whom it had nominated as the Party’s flagbearer for the MCA seat. It also faulted the Respondent for failing to follow the correct procedure for challenging the Party’s decision.

3. The 1st Interested Party also filed a Replying Affidavit in which he averred that he was validly nominated as the Party’s candidate for the said elective seat.

4. Upon hearing the Complaint, the Political Parties Disputes Tribunal (PPDT) allowed the complaint and made the following orders:a.That the internal process conducted by the Jubilee Party that resulted in their forwarding to the IEBC, the name of Charles Nderitu Gichangi as the Jubilee Party nominee candidate for MCA Umoja 1 Ward, Embakasi West Constituency in the coming general elections is unlawful and thus null and void.b.That the Jubilee Party nomination certificate issued to Charles Nderitu Gichangi as its MCA candidate for Umoja 1 Ward, Embakasi West Constituency is hereby revoked.c.That the Jubilee Party, do forthwith issue to Paul Bwire Ouma a nomination certificate as its MCA candidate for Umoja 1 Ward, Embakasi West Constituency, Nairobi County in the general elections slotted for August 2022. d.Costs of the complaint is awarded to Paul Bwire Ouma as against Jubilee Party and Charles Nderitu Gichangi jointly and severally.e.That the notification of this decision issue to the IEBC.

5. Aggrieved by the said decision, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 20th May 2022, raising the following grounds:1. That the Learned Tribunal erred in law and fact in the way it weighed the evidence before the court to determine the issue of whether the Appellant lawfully and correctly nominated by the 1st Interested Party to vie as its candidate for Member of County Assembly for Umoja 1 Ward, Embakasi West Constituency, Nairobi County in the general elections slotted for August 2022.

2. That the Learned Tribunal erred in law and fact by usurping the powers of the Appellant as donated by the Constitution, Elections Act, the Jubilee Party Constitution and the Jubilee Party Nomination Rules by dictating to the Appellant who it should nominate to represent it in the forthcoming elections for the Member of County Assembly for Umoja 1 Ward, Embakasi West Constituency, Nairobi County.

3. That the Learned Tribunal erred in law and fact by finding that the letters drawn by the Respondent and addressed to the Appellant sufficed as an appeal process contrary to the settled law that an appeal can only be deemed to have been filed if it complies with the laid out requirements.

4. That the Learned Tribunal erred in law and fact by proceeding to determine the case despite evidence on record that the Appellant had submitted the 1st Interested Party's name to the 2nd Interested Party thereby lacking jurisdiction.

5. That the Learned Tribunal erred in law and fact by failing to take into account the submissions and response by the Appellant before it arrived at its decision.

Jurisdiction 6. The Appellant contended that the Respondent had failed to demonstrate an attempt to subject the purported dispute to the party’s internal dispute resolution mechanism (IDRM) before filing the complaint in the PPDT. It submitted that the Respondent did not pay the requisite fees to commence the process as required under Rule 39 of the Jubilee Party's Nomination Rules and his letter dated 27th April 2022 was neither addressed nor copied to the Party’s National Election Appeals Tribunal (NEAT). Further, the Appellant argued that the NEAT did not declare that there was a dispute that required its intervention hence its jurisdiction had not been invoked.

7. On the other hand, the Respondent submitted that he satisfied the requirement under Section 40(2) of the Political Parties Act notwithstanding the issues of form and fees payment. In support of this, he relied on the Court of Appeal decision of Samuel Kalii Kiminza v Jubilee Party & another(2017) eKLR.

8. Section 40(2) of the Political Parties Act prescribes the manner in which the jurisdiction of the PPDT should be invoked. It states that:“(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.”

9. In determining whether the Respondent demonstrated an attempt to subject the dispute to the party’s NEAT before filing the complaint in the PPDT, the court first needs to interrogate the manner in which the party’s internal dispute resolution mechanism (IDRM) ought to be invoked. Rule 39 of the Jubilee Party Nomination Rules, 2016 (as per the extract annexed by the Appellant) provides as follows:“39. General guidelines of appeal and general powers of Appeals Tribunals39. 11 These Rules shall prescribe the fees to be paid upon the lodging of an appeal, which fees will be calculated so as to cater wholly or partially for the reasonable sitting allowances for the members of the appellate Tribunal for sitting to hear and determine the appeal and secretarial services provided therefor, while taking in due consideration the economic realities of Kenya so as not to unduly discourage appeals.39. 22 An appeal may be lodged without undue formalities in English or Kiswahili language simply by writing to the appellate Tribunal and delivering the same to any member of the appellate Tribunal for immediate onward transmission to the appellate Tribunal's secretariat or the Party's secretariat or the National Elections Board secretariat or the relevant County Elections Board secretariat, setting out clearly and concisely the position that was being contested or was intended to be contested, the decision in dispute, and grounds giving rise to the grievance of the appealing party. Provided that the appeal shall not be heard and time for lodging the appeal shall continue running as against the intending appellant unless and until such fee as shall have been prescribed in these rules for the lodging of the appeal shall have been paid in full to the Party account designated for that purpose either at the County or National level.”

10. From the above, there is no doubt that the Appellant’s Nomination Rules do not insist on formalities when filing an appeal in the NEAT but require that a prescribed fee be paid. In the case of Samuel Kalii Kiminza v Jubilee Party & another [supra], the Court of Appeal had an opportunity to determine an appeal in which it was argued that the Appellant therein had not lodged an appeal in the Party’s Appeal’s Tribunal because he did not appeal in the prescribed format and failed to pay the requisite fees. The Court pronounced itself as follows:“25. The 1st Respondent’s Nomination Rules required that appeals to the Appeals Tribunal be in a prescribed format and that a prescribed fee had to be paid. There would appear to be some contention that the Appellant’s appeal was neither in the prescribed format nor was the prescribed fee paid. This notwithstanding, the letter dated the 10th May, 2017 expressly referred to a complaint that the Appellant had lodged with the 1st Respondent’s Appeals Tribunal. The complaint, titled “Appeal”, was dated the 9th May, 2017 and signed by the Appellant, and was attached to the letter. We have had a look at the Appeal, and are of the view that though it may not have been in the prescribed format, it nevertheless contained all the ingredients of an appeal. The document gave particulars of the position in relation to which the appeal was lodged; it also had the statement of facts; the specific complaint of the Appellant; as well as the prayers that he was seeking. Article 159 (2) (d) of the Constitution enjoins courts in their exercise of judicial authority, to administer justice without undue regard to procedural technicalities. We are therefore of the view that if there was any failure by the Appellant to lodge the appeal in the prescribed format, such failure is easily cured by Article 159 (2) (d) of the Constitution, considering that the substance of the Appellant’s appeal included all the ingredients necessary for one to decipher what his complaint was and the remedies he was seeking. We therefore make a finding that the Appellant filed an appeal with the 1st Respondent’s Appeals Tribunal.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.

11. The above decision remains good law and this court is bound by it. In the present appeal, I have seen the Respondent’s letter dated 27th April 2022 addressed to the Appellant herein regarding the nominations for Member of County Assembly for Umoja 1 Ward. From the letter, one can readily decipher what the Respondent was complaining about and the fact that he was urging that the matter be addressed with utmost speed. He also requested to be furnished with the NEAT’s decision that dismissed the 1st Interested Party’s appeal filed therein. Notably however, this letter elicited no response from the Appellant despite the fact that the Respondent is its member and had paid the requisite fees of Kshs. 50,000/- to enable him take part in the nomination exercise. In my considered view therefore, this sufficed as an attempt to subject the dispute to the Appellant’s IDRM and thus the jurisdiction of the PPDT had been properly invoked.

12. The Appellant cannot be heard to be claiming that a dispute had not arisen that required the intervention of NEAT yet it stated in its response to the Respondent’s complaint in the PPDT that the complaint filed by the 1st Interested Party could not be pursued on 25th April 2022 when it was slated for hearing because a decision had already been made to nominate the 1st Interested Party. Clearly, the Respondent’s complaint arose from the Appellant’s decision to nominate the 1st Interested Party.

13. Further, it was the Appellant’s contention that the PPDT had no jurisdiction to deal with the complaint after the Party had submitted the name of its nominee for the MCA position in Umoja 1 ward to the IEBC. The Appellant relied on the Court of Appeal decision in Joseph Ibrahim Musyoki v Wiper Democratic Movement - Kenya & another [2017] eKLR. According to the Respondent however, the cited decision is no longer good law in view of the recent developments in the Political Parties Act.

14. My reading of the Joseph Ibrahim Musyoki case reveals that it is distinguishable from the present case. In summary, the Court of Appeal found that the PPDT had no jurisdiction to entertain a complaint after a political party had already submitted the name of its nominee to the IEBC. The Superior Court reasoned that the PPDT only had jurisdiction to deal with disputes arising from party primaries under the repealed Section 40(1) (fa) of the Political Parties Act whilst nomination disputes was a preserve of the IEBC under both the Elections Act and the Constitution.

15. Notably however, Section 40(1) (fa) of the Political Parties Act was amended on 28th January 2022 by the Political Parties (Amendment) Act No. 2 of 2022 by deleting the words “party primaries” and substituting the same with “party nominations”. Nomination is defined under Section 2 of the Elections Act, 2011 as:“the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act."

16. There is therefore no doubt that the PPDT had jurisdiction to deal with the complaint filed by the Respondent as it was in respect to the nomination of the 1st Interested Party by the Appellant.

Whether the Appellant fairly nominated the 1st Interested Party as its candidate for the MCA Umoja 1 Ward? 17. The Appellant faulted the PPDT for failing to consider that it conducted a fair and credible nomination process in line with the Party's Constitution and Nomination Rules. It was submitted that after the aspirants for the subject seat failed to reach a consensus on who was to be nominated, they agreed that the Party could proceed to nominate any of them. Consequently, the Appellant’s National Elections Board (NEB) proceeded to nominate the 1st Interested Party based on the parameters agreed upon by all the candidates and thus the Appellant could not be faulted for this mode of nomination. Reliance was placed on the case of Joel Kipkosge Sigei v Kenya African National Union[2017] eKLR.

18. On the other hand, the Respondent submitted that there was an initial decision to nominate him as the Appellant’s candidate for the subject seat which the 1st Interested Party challenged by lodging a dispute in the NEAT. The Respondent questioned the parameters that the Appellant allegedly used to change its earlier decision to nominate him. He argued that if indeed the 1st Interested Party was validly nominated, there would have been no reason for him to challenge his own nomination in the NEAT. Further, he submitted that by failing to provide him with reasons for changing its decision to nominate him, the Appellant violated his right to fair administrative action under Article 47 of the Constitution and Section 4 of the Fair Administration Action Act. It was also his contention that the decision in Joel Kipkosgei Sigei v Kenya African National Union [supra] is distinguishable from this case.

19. It is not disputed that the Appellant initially resolved to nominate its candidate for the MCA seat in Umoja 1 Ward by way of consensus building among the aspirants which failed to bear any fruits. There is also no dispute that as a result, all MCA aspirants in the said ward signed a consent allowing the Appellant to select its preferred candidate using other parameters. Both the Respondent and the 1st Interested Party were in agreement that the parameters used were opinion polls. The Respondent contended that on 22nd April 2022, he received a phone call and a text message from the Appellant informing him that he had been selected as the party’s nominee. He placed before the PPDT screen shots of a text received from the Appellant on the said date asking him to collect his nomination certificate at the Appellant’s headquarters on 23rd April 2022.

20. Further, it is also not disputed that on 23rd April 2022, the 1st Interested Party lodged Complaint No. 104/2022 in the NEAT challenging the National Election’s Board (NEB) decision to nominate the Respondent. The Complaint was slated for hearing on 25th April 2022 but surprisingly, the 1st Interested Party being the Complainant failed to attend the hearing of his own complaint against the Respondent in the NEAT. The Respondent produced a document titled “Status Report” showing that the complaint was dismissed for non-attendance and want of prosecution.

21. The Appellant purported to distance itself from the text sent to the Respondent inviting him to pick his nomination certificate. It also claimed that the reason the 1st Interested Party’s complaint in the NEAT could not be pursued was because the NEAT was informed by NEB that it was actually the 1st Interested Party who had been nominated by the said organ as the Appellant’s candidate for the subject seat. Notably however, the Appellant did not produce anything to show the parameters used by the NEB to settle on the 1st Interested Party as the final nominee instead of the Respondent. It also did not present any proof of such communication between its said organs or the final decision made by NEAT regarding the 1st Respondent’s complaint therein so as to enable the PPDT appreciate its actual status.

22. In my considered view, the Appellant is simply approbating and reprobating. On the one hand, it denies sending the Respondent a text informing him of his nomination as its candidate for the said position and on the other hand, it agrees that indeed, the 1st Interested Party lodged a complaint challenging the said decision before the Appellant changed its mind and gave the nomination certificate to the 1st Interested Party. It suffices to note that even after reversing its decision to give the Respondent the nomination certificate, the Appellant did not communicate the same to the Respondent and declined to respond to the Respondent’s letter of 27th April 2022 complaining about the same. I therefore find that the PPDT correctly analyzed the evidence placed before it before finding that the Appellant had indeed nominated the Respondent as its nominee for the said seat but issued the nomination certificate to the 1st Interested Party which was unfair and unjustified in the circumstances.

Whether the PPDT erred by ordering the Appellant to issue the Respondent with the nomination certificate 23. The Appellant submitted that under Article 90 (2) (a) of the Constitution and Section 38A of the Political Parties Act, it reserves the right to nominate the candidate to represent it in the elections and the PPDT’s role is only to determine the validity and fairness of the nomination process. It contended that the PPDT acted beyond its scope of powers and demonstrated open bias when it directed that the Party issues the nomination certificate to the Respondent whereas there was no tangible proof that the Respondent had been nominated by the Party.

24. As for the Respondent, he submitted that the constitutional and statutory provisions cited by the Appellant should be read together with Article 38(3) (c) of the Constitution which protects every person’s political rights and the Appellant’s decisions should be made in accordance with Article 47(1) of the Constitution. It was his submission that the PPDT is not only mandated by Section 40(1) (fa) of the Political Parties Act to hear disputes emanating from party nominations but is equally mandated by Regulation 9(4) of the Political Parties Disputes Tribunal Procedure Regulations, 2017 to issue appropriate reliefs in the circumstances obtaining in each case under consideration. He therefore urged this court to affirm the PPDT decision and order immediate compliance with the orders therein due to time constraints failure to which the IEBC should clear and gazette him as the Appellant’s candidate for the said seat.

25. There is no doubt that a political party reserves the right to choose the candidate to represent it in an election. However, such choice must be reached in line with the Party’s Constitution and Rules, as well as in observance of a candidate’s constitutional rights. In the instant case, the Respondent discharged the burden of proving his allegation that he was nominated by the Appellant before the Appellant unprocedurally changed its mind and decided to issue the 1st Interested Party with the nomination certificate. There is evidence on record that the 1st Interested Party’s complaint in the NEAT was dismissed for non-attendance and want of prosecution. What this means is that the Appellant’s earlier decision to nominate the Respondent as its flagbearer for the subject seat was therefore upheld.

26. All the PPDT did was to affirm the Respondent’s nomination since there was no evidence that it had been cancelled in favour of the Interested Party. The PPDT, by its orders, did not purport to usurp the Appellant’s powers as claimed. The court cannot therefore fault the PPDT for upholding the Appellant’s own decision.

Conclusion 27For the foregoing reasons, this appeal lacks merit and is hereby dismissed. No evidence was tendered that IEBC has since gazetted the 1st Interested Party to contest for the MCA seat for Umoja 1 Ward following the submission of his name by the Appellant. As such, the court orders and directs the Appellant to comply with the PPDT orders and decree with immediate effect, notably:a.That the Jubilee Party nomination certificate issued to the 1st Interested Party herein, Charles Nderitu Gichangi, as its Member of County Assembly candidate for Umoja 1 Ward, Embakasi West Constituency is hereby revoked.b.That the Appellant herein, the Jubilee Party, do forthwith issue to the Respondent herein, Paul Bwire Ouma, a nomination certificate as its Member of County Assembly candidate for Umoja 1 Ward, Embakasi West Constituency, Nairobi County in the general elections slotted for August 2022. c.Each party shall bear its own costs of the Appeal.

DATED SIGNED AND DELIVERED THIS 7TH DAY OF JUNE 2022. J. N. MULWAJUDGE