[2022] KEPPDT 1068 (KLR)

Karemen v United Democratic Alliance Party & another (Complaint E015 (NRB) of 2022) [2022] KEPPDT 1068 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1068 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E015 (NRB) of 2022

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

May 6, 2022

Between

Patrick Thuku Karemen

Complainant

and

United Democratic Alliance Party

1st Respondent

James Kariuki Karanja

2nd Respondent

Judgment

Introduction 1. The complainant and the 2nd respondent are members of the UDA party. They were cleared by the 1st respondent to contest for the position of Member of County Assembly; Ruai Ward. The nominations were conducted on April 14, 2022 where the 2nd respondent emerged the winner. The complainant was dissatisfied with the nomination process claiming that the same was marred with irregularities and was not free and fair. He lodged a complaint at the party’s Electoral & Nominations Dispute Resolution Committee (EDRC) vide application number 32 of 22. The complainant is aggrieved that he was not granted a hearing before the EDRC and he has filed the instant complaint seeking the following reliefs:-i.An order for injunction restraining the 1st respondent whether by itself, its organs and or officers from issuing the 2nd respondent with a final certificate of nomination and forwarding the name of the 2nd respondent to the IEBC as the party’s flag bearer for Member of County Assembly, Ruai Ward.ii.A declaration that the nomination exercise conducted on the April 14, 2022 and the consequential declaration of the 2nd respondent as winner was shambolic and was neither free nor fair.iii.An order for nullification of the nomination process in respect of Member of County assembly party flag bearer; Ruai Ward.iv.An order that the 1st respondent organises fresh free, fair and verifiable nominations for Member of County Assembly party flag bearer; Ruai Ward within reasonable time and in strict adherence to the law.

2. The matter first came up before the tribunal on April 22, 2022 when the following directions were issued:-i.That the notice of motion application dated April 21, 2022 be and is hereby certified urgent for consideration ex-parte in this first instance onlyii.That the complaint and notice of motion application dated April 21, 2022 be served upon the respondent by 12noon on April 23, 2022iii.That the respondents to file their responses to the pleadings by 12 noon on April 24, 2022iv.That the complainant to file a further affidavit if need be together with written submissions on the entire complaint by 12noon on April 25, 2022v.That the respondents to file and serve their written submissions on entire complaint by 12noon on April 26, 2022vi.That the complaint be heard by way of highlighting of written submissions before Nairobi a bench on April 26, 2022 at 2. 30pm virtually via video link.vii.That this being a dispute involving party primaries with strict timelines, all parties to ensure strict observance of the directions herein and the complaint to proceed for hearing without fail as scheduled based on documentation that will be on record by the sated hearing dateviii.That in the meantime, interim orders are hereby issued restraining the 1st respondent whether by itself, its organs or officers from issuing the 2nd respondent with a final certificate of nomination and forwarding the name of the 2nd respondent to the IEBC as the party’s flag bearer as Member of County Assembly Ruai Ward.

3. Parties appeared before the tribunal on April 26, 2022 for hearing of the complaint as scheduled. However, the same did not proceed as there was no evidence of service upon the 1st respondent. The rest of the parties had however complied with our directions and were ready to proceed. Further directions were issued calling on the complainant to file the pleadings on the 1st respondent where-after the 1st respondent would file their responses and submissions by April 27, 2022, and a judgment date was reserved for April 30, 2022.

4. However, prior to the judgment date, the 1st respondent filed a certificate of urgency application dated April 27, 2022 seeking to defer the delivery of the judgment and to be allowed an opportunity to be heard. The application was certified urgent and directions issued for service for inter partes hearing on April 30, 2022. On the said date of April 30, 2022, parties entered into a consent essentially allowing the application and the following directions were issued in the presence of and with the concurrence of all parties in final dispensation of the matter: -i.That the claimants to serve the 1st respondent with all pleadings by close of business on April 30, 2022ii.That the 1st respondent to file and serve responses to entire claim by close of business on May 2, 2022iii.That the claimant to file further affidavit together with written submissions by close of business on May 3, 2022iv.That the respondents to file and serve their written submissions by close of business on May 4, 2022v.That the tribunal shall consider parties pleadings and submissions on record strictly by close of business on May 4, 2022 and deliver judgment on May 6, 2022 at 4pm.All parties complied and filed their documents on record which we now proceed to consider in this judgment.

5. The complainant was represented by Suyianka Lempaa & Co Advocates, the 1st respondent was represented by Mutuma Gichuru & Associates and the 2nd respondent was represented by Ntoiti & Co Advocates.

The Complainant Case 6. It is the complainant’s contention that the complainant and the 2nd respondent are members of the 1st respondent who were cleared by the 1st respondent to participate as candidates for nomination as party flag bearer for Member of County Assembly; Ruai ward. That on April 14, 2022, the 1st respondent organised the nomination exercise by way of secret ballot.

7. The complainant avers that, the presiding officers for Ruai Girls polling centre did not turn up to conduct the voting exercise. Instead the management of the polling exercise was taken over by the 2nd respondent, who appointed presiding officers and polling clerks of his choice. The 2nd respondent who appointed his relatives, supporters, and friends as polling clerks and officers. The complainant further claims that most polling stations in Ruai ward were opened very late after 10. 30am for instance Drumvell Polling station was opened at 2. 30pm, while Arthi Polling station was opened shortly after 12. 00am. That the effect of the late opening is that many of the complainant’s voters did not vote as it appeared that there was no activity at the designated polling stations.

8. The complainant submitted that majority of the voters did not find their names on the register which appeared to have been made to assist the 2nd respondent, and that voting at Nile Road polling station was disrupted by the 2nd respondent who stormed the station with rowdy youths who harassed the presiding officer causing the polling station to be closed prematurely and effectively locking many of my voters out of the process.

9. He submitted that being dissatisfied with the entire nomination process, he lodged a dispute with the party’s Electoral and Nomination Dispute Resolution Committee (EDRC)vide application No 32 of 2022, in respect of which he paid the relevant fees. He, however, submitted that despite a hearing notice having been issued, the EDRC refused to hear the claim. That instructions were given by party officials for the complainant not to be let into the premises and he was therefore not heard during the EDRC hearing.

10. It is the complainant’s further submission that nomination process did not have any verifiable results. That the process was not conducted using any verifiable party register, and fell far short of the basic requirements.

11. The complainant relied on various judicial authorities to support his submissions including the Court of Appeal ruling in Moses Masika Wetang’ula v Musikari Nazi Kombo eKLR, and John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others[2021] eKLR.

The 1st Respondent’s Case 12. The 1st respondent submitted that the National Elections Board (NEB) is the only body with the power and mandate to appoint and pay election officials, including the polling clerks as well as supplying electoral materials to all polling stations. There is thus no way that an aspirant could appoint polling clerks and have them conduct elections in the said polling stations without the Board’s knowledge.

13. It was submitted that the claims and allegations laid out by the complainant were never within the knowledge of the NEB, nor was there ever any complaint brought to its attention regarding any polling station within Ruai Ward which was marred by electoral irregularities and malpractices.

14. The 1st respondent contends that the complainant failed to fully exhaust the IDRM, that he filed a complaint but intentionally skived the committee’s sessions to prosecute his claim thereby occasioning the claim to be dismissed. He averred that contrary to the complainant’s assertion, it beats logic for its officials to block a single aspirant from accessing the party’s premises or even attend a dispute resolution session and that no evidence has been adduced in support of the same.

15. The 1st respondent further submitted that the complainant had since the onset of the suit failed to serve them with their documents despite the tribunal’s directions to have him served with copies of the application and complaint, and that the defiance of the tribunal’s orders of effecting service upon the respondents have been consistent from the April 22, 2022 to the April 30, 2022, which service was yet to be effected. That the 1st respondent got wind of the instant suit from the 2nd respondent and acquired copies of the complainant’s filed documents from the 2nd respondent.

The 2nd Respondent’s Case 16. The 2nd respondent avers that he emerged the winner with 952 votes while the complainant was 1st runners up with 491 votes. That the complainant being dissatisfied with the results lodged a complaint at the 1st respondent’s EDRC but did not turn up to prosecute his complaint leading to dismissal.

17. It is the 2nd respondent’s contention that the complainant has not annexed any evidence to prove validity of the allegations touching on nomination exercise, that the allegation that he appointed presiding officers and polling clerks of his own choice was deceptive and false and unsupported by even an iota of evidence.

18. He further submitted that the allegation of disrupting voting at Nile Road polling station, was unsupported by any form of evidence as they are false and a creation of the complainant.

19. The 2nd respondent avers that the complainant has not discharged his burden of proof before the honourable tribunal. He relied on section 83 of the Election Act, section 107, 108 and 109 of the Evidence Act. He further relied on various cases including Emmanuel O Achayo v Orange Democratic Movement & 4 others (2017) eKLR, John Kiarie Waweru v Beth Wambui Mugo & 2 others, andGatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (2014) Eklr (petition No 2B of 2014).

20. He claims that the assertions by the complainant that the EDRC refused to hear his claim was false as the complainant failed to turn up in the court and prosecute his claim leading to its dismissal. He further claims that the annexure by the complainant that allege that seven of the aspirants who participated in the nomination exercise had unanimously agreed that the party ticket be handed to the complainant was false, that the subject aspirants had in fact sworn affidavits denying participating or agreeing to the nomination certificate being given to the complainant.

21. The 2nd respondent’s three witness who were aspiring MCA candidates who participated in the party nominations conducted on April 14, 2022, claimed that the nominations at Ruai Ward were credible, fair, verifiable and peaceable. They were satisfied with the elections results.

22. The 2nd respondent’s witness Kevin Mutuota Maina averred that on April 17, 2022, he accompanied the 2nd respondent to the UDA IDRM where they met with the complainant inside the party premises. The complainant did not turn up when the application No 32 of 2022 was called for hearing. That he testified orally in court and presented his observation of the nomination exercise in which the party did a commendable job to ensure that the people of Ruai ward expressed their sovereign will.

Issues for Analysis and Determination 23. We have considered the parties pleadings and submissions and we identify the following issues for determination: -i.Whether this tribunal has jurisdiction to hear and determine this matter.ii.Whether the complaint is meritediii.What are the appropriate reliefs to grant

Whether the tribunal has jurisdiction to hear and determine this matter. 24. The respondents have argued that the tribunal has no jurisdiction to hear and determine the matter for the reason that the complainant did not exhaust the party’s internal dispute resolution mechanism (IDRM). The complainant on the other hand claims that he filed a dispute at the party’s Electoral & Nominations Disputes Resolution Committee (EDRC) vide EDRC application number 32 of 2022. That despite having filed the matter, he was not granted a hearing as there were instructions from party officials that they should not be let it. The Respondents have countered this argument stating that the complainant is the one who failed to attend his own hearing thus causing the matter to be dismissed.

25. The jurisdiction of this tribunal is set out in section 40 of the Political Parties Act, 2011 (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.

26. We note that the instant dispute arises out of party nominations and is accordingly covered under section 40(2) of the PPA which requires that evidence be adduced of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (IDRM). Article 32 of the party constitution establishes the EDRC to hear and determine election and nomination disputes.

27. It is not in dispute that there was filed before the EDRC application number 32 of 2022. The bone of contention is whether the claimant was denied a fair hearing as he purports, and the respondents maintain that he was granted an opportunity to be heard but he failed to attend the hearing. We have gone through the record and have had sight of the EDRC application number 32 of 2022 together with a hearing notice dated April 16, 2022 emanating from the EDRC inviting parties to a hearing on April 17, 2022 at 12pm. To this extent, it is demonstrable that the EDRC had an intention of hearing the parties.

28. The complainant alleges that he was however informed that there were instructions from undisclosed party officials not to let them in, a fact that is denied by the 2nd respondent who confirms that he attended and the matter was dismissed. We have perused the record and there is no ruling or order that has been furnished from the ERDC dismissing the matter. This tribunal is therefore not clear of the EDRC outcome. What is, however, evident is that there was an attempt to resolve the matter within the EDRC. We accordingly find that we have jurisdiction to hear the matter.

Whether the complaint is merited? 29. It is the complainant’s case that the nomination exercise held on April 14, 2022 was not free and fair, as there were numerous irregularities; the presiding officers for Ruai Girls polling centre did not turn up leaving the 2nd respondent to take over the management of the polling station by appointing his polling clerks; that polling stations opened late after 10. 30am with others like Drumvell and Arthi opening at 2. 30pm and 12 noon respectively; that majority of voters did not find their names on the register which was made in style in favour of the 2nd respondent; and the 2nd respondent intimidated the claimant’s voters leading to their low turnout, and that the 2nd respondent disrupted voting at Nile Road polling station. All these allegations are denied by the 1st and 2nd respondents, who maintain that the nomination was free, fair and peaceful and that in any event the complainant has not furnished evidence of alleged irregularities. The claimant further submitted that there were no verifiable results, which averment has been refuted by the respondents for being untrue.

30. As we evaluate the evidence before us, we are guided by the law and numerous judicial authorities underscoring the matter of evidence, burden and standard of proof in election cases. We will set out just a few herein-below which shall apply in the determination of this dispute.

31. In John Kiarie Waweru v Beth Wambui Mugo & 2 others, the High Court held‘As regards the standard of proof which ought to be discharged by the Petitioner in establishing allegations of electoral malpractices, there is consensus by electoral courts that generally the standard of proof in electoral petition cases is higher that applicable in ordinary civil cases i.e. that proof on a balance of probabilities. The standard is higher than proof on a balance of probabilities but lower than the standard of proof beyond reasonable doubt required in establishing criminal cases. Allegations of electoral practices, like for instance bribery, require higher proof.’

32. The Supreme Court has clearly illuminated the law on these issues. On the burden of proof the court in Raila Odinga 2013 held that:“(195)There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the court to determine whether a firm and unanswered case has been made.”

33. As for the standard of proof, the court enunciated it at paragraph 203 thus:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”

34. In John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR; petitions Nos 2 and 4 of 2017 the Supreme Court at paragraph 373 restated the law on the effect of illegalities and irregularities on an election as follows:“This court has already pronounced itself in unequivocal terms, on the effect of irregularities upon an election. The legal position remains as stated in the majority decision of the court in Raila 2017… This may be simply restated: not every irregularity or procedural infraction is enough to invalidate an election. The irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a court of law to nullify the same.”

35. We have considered the record and we note that the allegation touching on various forms or irregularities have not been proven by the complainant. He has simply made averments without substantiation. It has not been demonstrated that the 2nd respondent appointed the polling clerks, a fact that has been denied by the 1st respondent. The allegation that polling stations started the exercise late has not been substantiated and neither has it been demonstrated that any late opening affected the complainant only to the exclusion of other aspirants. There has not been furnished evidence of intimidation or any evidence of disrupted voting at Nile Road polling station. The complainant did not present any witness to even corroborate his averments.

36. The 2nd respondent on the other hand filed witness affidavits sworn on April 24, 2022 by 5 persons namely Benson Wachira Manyeki, Kevin Mutuota Maina, Patrick Muchembi Wanjohi and Gerald Stephen Kisienya and they all stated that nominations went on smoothly and that the process was free and fair and that the will of the electorate who voted in the 2nd respondent should be upheld. in regard to the results, we note that the 1st respondent furnished form 6A titled MCA nomination results at the Polling Station. The form is duly completed, signed and stamped by a disclosed official and we find no reason to doubt the contents thereof.

37. Applying the principles in the afore-going judicial authorities to the facts and circumstances of this case, we are of the considered opinion that the complainant herein has not met the burden and standard of proof of electoral irregularities. He has failed to meet the threshold for invalidating the disclosed results. We accordingly find that the claim has no merit.

What are the appropriate reliefs to grant. 38. The upshot of the foregoing is that this complaint for dismissal. Costs follow the event. However, in the interests of fostering party unity and considering the circumstances of this case, each party shall bear its own costs of these proceedings.

Disposition 39. In light of the above, order as follows:-i.That the amended complaint herein dated April 21, 2022 be and is hereby dismissed.ii.That each party shall bear its own costs of these proceedings

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MAY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO…………………………...(MEMBER)