[2022] KEPPDT 994 (KLR)

Kamau v United Democratic Alliance; Independent Electoral & Boundaries Commission (Interested Party) (Complaint E131 (NRB) of 2022) [2022] KEPPDT 994 (KLR) (Constitutional and Human Rights) (6 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 994 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E131 (NRB) of 2022

G. Gathu, Presiding Member, W Ngige & L. Kinyulusi, Members

September 6, 2022

Between

Joyce Muthoni Kamau

Complainant

and

United Democratic Alliance

Respondent

and

Independent Electoral & Boundaries Commission

Interested Party

Judgment

Background 1. By a Complaint dated 30th August 2022, the Complainant states that she applied to be nominated as a Member of County Assembly, Gender Top-Up category, Nairobi County Assembly in compliance with the Respondent’s rules. Her application was considered and allowed. Her name was then placed at number 19 on the Party List which was published on the Respondent’s website on or around 27th June 2022 and in a local daily – the East African Standard (an undated excerpt of this newspaper is provided). Shortly thereafter (on or around 24th August 2022), a revised list was published on the Interested Party’s website and the Complainant found that her name had been placed at number 27 of the Party List, thereby – in her view - diminishing her chances of being nominated in her designated category. She does not know how this change came to be. Her prayer before this Tribunal is that the Respondent and the Interested Party be compelled to list her as number 19 on the Party List as opposed to number 27.

2. Together with a Complaint, the Complainant filed a Witness Statement and a brief Bundle of Documents from which the above facts were gleaned. The Complainant also stated that prior to filing this Complaint, she attempted to engage the Party’s Internal Dispute Resolution Mechanism (IDRM), vide a letter dated 24th August 2022 (which she has also placed before this Tribunal).

3. Despite service, neither the Respondent nor the Interested Party appeared in this Complaint, which is therefore unopposed. At the hearing of the Complaint on 5th September 2022, Counsel for the Claimant made oral submissions reiterating the contents of the Complaint and prayed that it be allowed.

Issues for determination. 4. The Tribunal has considered the Complainant’s pleadings and found that there is only one issue for its determination, that is, whether the Complaint is merited.

Analysis and Findings 5. Despite having been served, neither the Respondent nor the Interested Party filed any responses. The Complaint and the evidence in support of it are uncontroverted and the Tribunal therefore accepts the Complainant’s submission that her legitimate expectation was that her name would appear as number 19 on the Respondent’s Party List as published on the Interested Party’s website on or around 24th August 2022. The principle of legitimate expectation was aptly set out in by Lord Diplock’s judgment in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at page 408, cited with approval in Republic v Judicial Commission of Inquiry into the Goldenberg Affair & 2 others ex parte George Saitoti [2006] eKLR, where he stated“if the decision maker unreasonably departs from the publicly stated policy or customary practice or reneges on an earlier decision or undertaking thus confounding the applicant’s legitimate expectations from the decision maker, then it can also be argued that there has been a breach of the duty to act fairly. A person or a group may have a legitimate expectation that they will be consulted by the decision maker or if the decision maker has made promises or given undertakings which the decision in question will alter see –…... However, this procedural approach does not prevent the public body changing its policy, so long as it does so in a proper manner taking account of legitimate expectations for consultation, an oral hearing or whatever else is necessary to comply with the duty to act fairly.”

6. Flowing from the citation above, given that the Respondent published its Party List allocating the Complainant the nineteenth slot in the Gender Top-Up category, any alteration to that list ought to have been preceded by a fair process. In the circumstances, we find that the Complaint is merited. We allow it in terms of directing that the Interested Party upholds the Respondent’s Party List as published on 27th June 2022 in respect of the Complainant and the order in which she appears on that Party List.

7. In the interests of party unity, we decline to award costs. Accordingly, each party shall bear its own costs.

Orders 8. The Tribunal therefore makes the following orders: -a.That the Interested Party uphold the Respondent’s Party List as published on 27th June 2022 in respect of the Complainant’s place on that List, with her name appearing at number 19 of the Gender Top-Up category;b.Each party shall bear its own costs.

DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF SEPTEMBER 2022. GAD GATHU............................................(PRESIDING MEMBER)WANJIRŨ NGIGE............................................(MEMBER)DR. LEONARD KINYULUSI............................................(MEMBER)