[2017] KEHC 9264 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELECTION NOMINATION APPEAL NO. 32 OF 2017

JUBILEE PARTY………………………………APPELLANT

VERSUS

SUNCTUS G. NDEGWA…………….1ST RESPONDENT

JOHN NJOROGE MUNANI………….2ND RESPONDENT

SAUMU SAIDI…………………………3RD RESPONDENT

DAVID MUCHAI KINYARI…………….4TH RESPONDENT

(Being an Appeal from the judgment and orders by the Political Parties Disputes Tribunal, Kyalo Mbobu, James Atema, Hassan Abdi and Dr. Adelaide Mbithi, dated 27th July 2017 and 2nd August 2017 respectively)

JUDGMENT

Introduction

This Appeal is related to Election Nominations Appeal No. 29 of 2017. The issues are the same. It is only the mode of appearance of the parties that has changed in this Appeal. The Appellant in this matter was the 1st Respondent in Election Nominations Appeal No. 29 of 2017. The Respondents in this matter are the Appellants in the other matter. For this reason, with approval of this court, parties adopted the oral submissions made in ENA No. 29 of 2017. The Appellant was also allowed to adopt the Supporting Affidavit of Peter Mwangi Kahara and the annexures to it (the Response to the Claim before PPDT). The issues are similar in that the Nairobi County Executive Committee of the Appellant recommended to the Appellant’s National Executive Committee persons to be nominated to Nairobi County Assembly. The list was forwarded to the Appellant’s NEC who compiled the party list and submitted the same to the Independent Electoral and Boundaries Commission. This dissatisfied the Respondents who filed a Claim before the PPDT and the latter determined the Claim and delivered the judgment now subject of this Appeal.

Memorandum of Appeal

The Appellant has five grounds of Appeal in its memorandum of Appeal dated 17th August 2017 as show below:

1. The Honourable Tribunal erred in law and in fact in entertaining, hearing and determining the Complaint without properly addressing itself as to whether it had jurisdiction to do so.

2. The Honourable Tribunal erred in law and in fact in ordering the Appellant to re-constitute its list of nominees to the Nairobi County Assembly.

3. The Honourable Tribunal erred in law and in fact in ordering the Appellant to re-constitute the party list in compliance with all the relevant laws and as far as is reasonably practicable reflect the ethnic diversity of Nairobi County drawn from the Respondent’s membership.

4. The Honourable Tribunal erred in law and in fact in failing to appreciate the provisions of the Constitution of Kenya 2010, the Independent Electoral and Boundaries Commission Act (No. 9 of 2011), the Elections Act (No. 24 of 2011), the Elections (General) Regulations, 2012, the Elections (Party Primaries and Party Lists) Regulations, 2017 with respect to compiling and submission of Party Lists in ordering the re-constitution of the party list for the Nairobi County Assembly without taking into account the adverse implications of the orders to other members of the Appellant who were never party to the proceedings before the Honourable Tribunal.

5. The Honourable Tribunal erred in law and in fact in failing to take into accunt the Appellant’s Response.

The Appellants seeks orders that this Appeal be allowed; that the entire judgment of the PPDT delivered on 27th July 2017 be stayed and the same judgment be set aside and costs of this Appeal and the Claim before the PPDT be awarded to the Appellant.

As stated above in this judgment, the parties adopted with approval of this court, submissions made in Election Nominations Appeal No. 29 of 2017. On the part of the Appellant the submissions revolved around PPDT’s lack of jurisdiction to determine the Claim filed before it and to make the orders it made; the issue surrounding the role of the Respondents in determining party lists; the issue surrounding failure by the Appellant to file the Response to the Claim before the PPDT and the issue as to who has the mandate to check compliance with the law in regard to party lists. To these issues the Appellant holds the view that PPDT lacks jurisdiction to entertain a Claim like the one giving rise to this Appeal and to make the orders it made in respect thereof; that the role of the Appellants was to recommend the persons to be nominated while that of the Appellant was to determine the final party list and submission of the same to the IEBC; that the mandate to check compliance with the law in respect to party lists is vested with the IEBC and not the PPDT and that the former has the jurisdiction to determine disputes arising from party lists and that failure to file the Response by the Appellant did not mean that the Claim would succeed but that the law requires parties to prove their case to the standard of proof required. In addition to the submissions above Ms Mboce submitted that the judgment of the PPDT lacks clarity in that it did not state that what the Appellant did that did not take into account the ethnic diversity.

The Respondents also adopted their submissions made in Election Nominations Appeal No. 29 of 2017 and added that the orders made by PPDT were to the effect that the people to be nominated ought to be from Nairobi County and that the party list published on 23rd July 2017 did not take ethnic diversity of the people of Nairobi into account. Secondly, the role of the County Executive Committee is to vet persons to be nominated and make the recommendations to the National Executive Committee and that the latter cannot compile its own list without consulting the Respondents. It was submitted that the role of the Appellant was limited to submitting the names to the IEBC.

Mr. Omumbo further submitted that PPDT has jurisdiction under Article 92 of the Constitution and Section 40 of the Political Parties Act to determine the dispute filed before it by the Respondents; that the Respondents approached the Appellant on the issue of party list without success because the Appellant had not constituted its internal dispute resolution mechanism. Counsel urged the court to dismiss the appeal and award costs to the Respondents.

In her rejoinder, Ms Mboce submitted that the Respondents did not state that the Appellant declined the recommendation they made in regard to party list and that the right to make recommendations on party list was spent once they made the recommendation and therefore they cannot force their hand on nominations. Further that there is no evidence that the Respondents presented their complaint to the Appellant and the Appellant failed to resolve the dispute.

Determination

I have determined the issues arising from this Election Nominations Appeal in No. 29 of 2017 because both this Appeal and Appeal No. 29 of 2017 originate from Complaint No. 387 of 2017 before the PPDT whose judgment was delivered on 27th July 2017. The same judgment is being challenged in both appeals. In summary, it is my finding that PPDT did not have jurisdiction to entertain Complaint No. 387 of 2017 because the law does not vest that jurisdiction with PPDT but with IEBC. See Article 90 of the Constitution and Sections 34 and 76 of the Elections Act on this issue.

Secondly, the IEBC is the body mandated to check compliance with the law in regard to party lists and where a political party fails to comply with the law in preparing party lists, IEBC is mandated to remit the party list back to the political party to amend. The ultimate consequence is to reject the party list if the law is not followed. I further find that the role of the Respondents as officials of the County Executive Committee is limited to recommendation of the persons for consideration and nomination by the Appellant’s National Executive Committee who holds the final say in regard to the party lists.

In view of the reasoning above, it is my view that the Appellant in this matter is correct in its Memorandum of Appeal and I agree with it. I therefore allow this appeal, set aside the judgment and orders of the PPDT delivered on 27th July 2017 and order no order as to costs. For avoidance of doubt, prayers (a), (c) of the Memorandum of Appeal dated 17th August 2017 is hereby allowed. Once the judgment of the PPDT has been set aside, prayer (b) serves no purpose. Each party shall bear its costs in this Appeal. Orders shall issue accordingly.

Delivered, signed and dated this 5th day of September 2017.

S. N. Mutuku

Judge