[2022] KEPPDT 1039 (KLR)

Kariuki v Ng’ang’a & another (Complaint E086 (NRB) of 2022) [2022] KEPPDT 1039 (KLR) (25 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1039 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E086 (NRB) of 2022

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

May 25, 2022

Between

John Ndirangu Kariuki

Complainant

and

Samuel Mwangi Ng’ang’a

1st Respondent

Jubilee Party of Kenya

2nd Respondent

Judgment

1. The Complainant and the 1st Respondent are members of the 2nd Respondent and were aspiring candidates for the position of Member of National Assembly, Embakasi Central Constituency.

2. The Complainant claims that the 2nd Respondent conducted nominations by way of consensus and that he participated and was successful and was accordingly issued with a Certificate of Nomination. He later came to learn that the 1st Respondent was also issued with a Certificate of Nomination for the same position.

3. The Complainant proceeded to institute an appeal to the 2nd Respondent’s National Elections Appeals Tribunal (NEAT), appealing the existence of two Nomination certificates for the position of Member of National Assembly position for Embakasi Central Constituency. Aggrieved by NEAT’s delay in delivering its determination, the Complainant filed the instant Complaint. He seeks the following reliefs from this Tribunal: -1PPDT Nairobi A Complaint No E086 of 2022i.That this Honorable Tribunal be pleased to Fast track the complaint in terms of immediate service, filing of responses to the complaint and submissions in light of the strict timelines in place.ii.That, this Honourable Tribunal be pleased to declare the Complainant’s Nomination Certificate issued by the Jubilee Party Nominee for the Position of Member of National Assembly Embakasi Central Constituency valid.iii.That this Honourable Tribunal be pleased to Nullify the illegally issued Nomination Certificate to the 1st Respondent.iv.That this Honourable Tribunal do issue orders preventing the Jubilee Political Party from submitting a list of nominees for the Member of National Assembly Position in Embakasi Central Constituency, to the Independent Electoral and Boundaries Commission pending the Determination of this Tribunal.v.That cost of this application be provided for.vi.Any other or further orders that this Tribunal may deem fit.

4. Pursuant to directions that were issued by this Tribunal, parties exchanged their pleadings within stipulated timelines and the Complaint proceeded for hearing on May 24, 2022 by way of oral submissions.

4. The Complainant was represented by Messrs. Okatch & Partners Advocates. The 1st Respondent was represented by M/s Ondieki Orange & Company Associates, and the 2nd Respondent was represented by Wanjiku and Wanjiku Associates.

The Complainant’s Case 6. The Complainant avers that he is a fully paid-up member of the 2nd Respondent and has complied with all the requirements in place for an aspirant intending to vie for the party Nomination ticket for the Member of National Assembly position for Embakasi Central Constituency.

7. He claims that he was declared the winner in a Consensus building process adopted by the 2nd Respondent and was issued with an Official Party Nomination Certificate for the Position of Member of National Assembly, Embakasi Central Constituency, publicly at the Jubilee Party’s headquarters in view of all and sundry by top ranking officials of the 2nd Respondent. He avers that the 2nd Respondent acknowledged his nomination and declared itself on the Political Party Nominees for Member of National Assembly in different Constituencies.

7. He found out that the 1st Respondent also claimed that he had been issued with a Nomination Certificate by the 2nd Respondent for the Party Ticket for the Position of Member of National Assembly, Embakasi Central Constituency. He claims that the 1st Respondent clandestinely, un-procedurally, irregularly and illegally obtained a Nomination Certificate after the Complainant had been publicly issued with an Original Certificate.

8. The Complainant was aggrieved by the existence of two Nomination Certificate for the same position, and he filed a complaint with the Political Parties Dispute Tribunal PPDT Complaint No EO58 of 2022 seeking for an order to extend the timelines for the Jubilee Party IDRM to hear his complaint regarding the two Nomination Certificates, since the Party’s timeline for dispute resolution had already expired. The 1st Respondent in PPDT Complaint No E058 of 2022, however, raised a preliminary objection that this Tribunal upheld and held that it lacked Jurisdiction to hear and determine the Complaint. The Complaint was accordingly struck out.

9. On May 13, 2022, the Complainant wrote a letter to the Jubilee Party’s National Elections Appeals Tribunal (NEAT) seeking an extension of time to lodge an appeal regarding the two Nomination Certificates.

10. On May 14, 2022, NEAT granted the Complainant and the 1st Respondent audience to hear the matter at 3pm at the Party Headquarters. The Complainant and the 1st Respondent were accompanied by their respective advocates and the National Election Board was also represented. The Complainant claims that the Party Tribunal took judicial notice that the 2nd Respondent had indeed issued him with a valid Nomination Certificate. He avers that the tribunal gave direction that it would give its decision within forty-eight (48) hours from the date of hearing. He claims that up to date there has not been a decision rendered. He is apprehensive that the 2nd Respondent will submit the Names of the Official Nominees for the Jubilee Party ticket to the Independent Electoral and Boundaries Commission in exclusion of his name.

The 1st Respondent Case 11. The 1st Respondent swore his own Replying affidavit. He claims he is a bona fide fully paid up member of the 2nd Respondent. In March 2022, he embarked on the campaign trail for the position of Member of National Assembly, Embakasi Central Constituency, Nairobi County and consequently campaigned by putting his campaign posters and billboards erected in various locations within the constituency and conducted door to door campaigns with the member constituents.

12. He claims that the 2nd Respondent invited its members who were interested in vying for elective positions on the party ticket, to lodge their nomination papers and pay the requisite nomination fee in accordance with the 2nd Respondent’s Constitution and Party Nomination Rules by March 25, 2022. He filed his nomination papers and paid the requisite nomination fees to the 2nd Respondent on March 25, 2022 which was the submission date and was issued with a receipt. According to the 1st Respondent, the 25th day of March 2022 was the candidate nomination submission date, and there was no direct or indirect nomination process conducted on that day.

13. On April 16, 2022, the 2nd Respondent issued notices to all Jubilee National Assembly aspirants to attend a nominations exercise dubbed nomination consultation which was to be held on April 18, 20222 at the Windsor Golf Hotel and County Club at 2pm, where the 2nd Respondent was scheduled to conduct a nomination consultation meeting of candidates for National Assembly in Nairobi County.

14. On April 18, 2022, the 1st Respondent and other aspirants including the Complainant attended the nominations consultation meeting, where all the candidates for different National Assembly position were interviewed. The respective nominees for each position was arrived at by the 2nd Respondent’s NEB pursuant to Article 11 of the 2nd Respondent’s Constitution. The 1st Respondent claims that he was interviewed together with the Complainant by a panel of three interviewers who interviewed them at the same time and a process was agreed to and subscribed to by the candidates.

15. He claims that part of the consideration for the successful nomination of the position of the Member of the National Assembly for Embakasi Central Constituency was how an aspirant had actively campaigned in the said constituency. The Complainant on the day admitted before the interview panel that he had not as yet commenced any campaigning in Embakasi Central Constituency as he was actively campaigning for the Gubernatorial Seat in Nyandarua County where he aspired to secure nomination at first.

16. The 1st Respondent claims that he was declared the winner by the 2nd Respondent and was subsequently issued with a Nomination Certificate dated April 22, 2022 in compliance with Rule 9 of the 2nd Respondent’s Party rules. He claims that his Certificate is dated, bears the 2nd Respondent’s seal, and the Chairman’s and the Secretary’s signatures as is stipulated in the 2nd Respondent’s nomination rules. He claims that it was suspicious that the Complainant purports to have been issued with the Nomination Certificate on March 25, 2022, which was date scheduled for submission of nomination papers and payment of the nomination fee. He further claims that, it was peculiar that the adduced nomination certificate by the Complainant was undated.

17. The 1st Respondent further avers that on May 14, 2022, NEAT summoned the 1st Respondent and the Complainant for a hearing at the Party headquarters at 3pm. The 1st Respondent and Complainant appeared with their respective advocates and the appeal was heard. It is the 1st Respondent’s contention that NEAT found that he was the suitable candidate to be nominated pursuant to the internal polling following the failed consensus meeting upon criteria that had been set by the National Elections Board (NEB) and following the procedure subscribed to by all candidates seeking the position after the failed consensus meeting.

18. The 1st Respondent claims that the NEAT was concerned at the hearing about the veracity and authenticity of the certificate of nomination that was produced by the Complainant. The legitimacy of the nomination process before the Party Tribunal was not at issue. He avers that the NEAT noted as a preliminary concern that there were some discrepancies on the form and content of the Complainant’s alleged Nomination Certificate. NEAT advised the parties that it would retire to scrutinize the Complainant’s Nomination certificate and make a determination on whether the said certificate was authentic.

19. The 1st Respondent claims that the complaint has been brought prematurely before this Tribunal as the issue is still pending for determination before the NEAT.

20. He maintains that the 2nd Respondent conducted the party nomination exercise in accordance with the principles laid down in theConstitutionof Kenya, the written law including the Constitution of the 2nd Respondent, and the 2nd Respondent’s Nominations Rules.

The 2nd Respondent Case 21. The 2nd Respondent relied on their Replying Affidavit sworn by Kamau Mbugwa, the Director of Legal Affairs.

22. The 2nd Respondent claims that the Complainant filed a complaint before this Tribunal on May 3, 2022 seeking orders directing the party’s NEAT to hear the dispute over nominations for Embakasi Parliamentary Seat. The said complaint was served on the party, where a consent was entered to refer the dispute for hearing before NEAT. The 1st Respondent and Complainant were invited for a hearing by NEAT but upon perusal of the tribunal’s judgment, NEAT established that it did not have jurisdiction under the provision of Section 38(1) of the Political Parties Act, No 11 of 2011. The parties were informed that there were no competent proceedings in effect before NEAT and therefore no hearing took place.

23. The 2nd Respondent raised a preliminary objection to this tribunal jurisdiction on the grounds that the Complaint offends the provisions of Section 7 of the Civil Procedure Act, Cap 21 laws of Kenya as a complaint over the same issue was heard and dismissed by the Tribunal; and the tribunal is functus officio having pronounced itself on May 12, 2022 under Rule 33 and Rule 34 of the Political Parties Dispute Tribunal (Procedure) Regulations 2017.

Issues for Analysis and Determination 24. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has jurisdiction to entertain the Complaint as presented by the Complainant?ii.Whether the Complaint is merited?iii.What are the appropriate remedies in the present instance?

SUBDIVISION - Whether this Tribunal has jurisdiction to entertain the Complaint as presented by the

Complainant? 25. The 2nd Respondent has raised a preliminary objection challenging our jurisdiction to hear and determine this matter. The Preliminary Objection is centered around; Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya as a complaint over the same issue was heard and dismissed by the Tribunal; and the tribunal is functus officio having pronounced itself on May 12, 2022 under Rule 33 and Rule 34 of the Political Parties Dispute Tribunal (Procedure) Regulations 2017.

26. It is instructive that Section 7 of the Civil Procedure Act provides as follows: -“…No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court…”

27. The Judgment of this Tribunal in the case ofJohn Ndirangu Kariuki v Samuel Mwangi Ng’ang’a & Jubilee Party(PPDT at Nairobi A Complaint Number E058 of 2022), has been produced by the Complainant. This is the Complaint that is claimed to be similar to the instant one. From a plain reading of the Judgment, it is evident that this Tribunal did not consider the complaint in the subject case PPDT No E058 of 2022 on merits. The Tribunal found that it had no jurisdiction to hear and determine the same for want of evidence of an attempt at IDRM and accordingly downed its tools. Noting that the subject case was not heard on merits, nothing precludes this Tribunal from hearing and determining the instant Complaint subject to our finding that we have jurisdiction.

28. The jurisdiction of this Tribunal is laid out by Article 169 (1) (d) of the Constitution of Kenya as read with Sections 40 of the Political Parties Act, 2011, 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.

30. What amounts to an attempt at IDRM, however, depends on the circumstances of a particular case. This Tribunal has considered the matter previously and issued guidelines in John Mworia Nchebere & Others v The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No E002 of 2022) wherein the Tribunal held that: -“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

31. Turning to the facts of this case, it is not disputed by the Complainant and the Respondents that the Complainant lodged a complaint with the 2nd Respondent vide a letter dated May 12, 2022 where-after the 2nd Respondent’s NEAT summoned parties to appear before it on May 14, 2022. Although there are discrepancies as to whether hearing was actually conducted and/or whether any determination was made, it is evident that both the Complainant and the 1st Respondent confirmed that they attended the session before NEAT. The 2nd Respondent has, however, in its replying Affidavit stated that there was no formal hearing as NEAT took the position that it did not have jurisdiction to hear and determine the matter in light of the Tribunal’s Judgment. The Complainant and the 1st Respondent on the other hand submitted that they were heard and the 1st Respondent claims that his nomination was upheld and that they are awaiting the NEAT decision on the authenticity of the Complainant’s certificate. The Complainant on the other hand contends that a decision was to be delivered within 48hours but the same has not been delivered.

32. In essence, it is not in dispute that IDRM was attempted. However, the attempt seems to have been ineffective. Noting that the Complainant has demonstrated an attempt at IDRM which was however futile, we find that we can assume jurisdiction.

SUBDIVISION - Whether the Complaint is merited? 33. The Tribunal having established that it has the jurisdiction to hear and determine this matter, has to now determine if the Complainant’s case has merit and is premised on law. In this instant matter, it is not in dispute that the Complainant and the 1st Respondent were aspirants who applied for consideration as the party’s candidate for the position of Member of National Assembly, Embakasi Central Constituency. The Complainant argues that he was issued with an Original Nomination Certificate and that the 1st Respondent clandestinely, un-procedurally, irregularly and illegally obtained a Nomination Certificate after the Complainant had been publicly issued with an Original Certificate.

34. The 1st Respondent on the other hand has detailed the process that led to his issuance of a nomination certificate dated April 22, 2022 and he questions the legality and authenticity of the Complainant’s Certificate allegedly issued on March 25, 2022, which was the deadline for submission of application and payment of requisite fee to participate on the nomination.

35. In consideration of this issue and the parties’ contested positions, it is inescapable to evaluate the pleaded facts and evidence adduced before the Tribunal.

36. Firstly, we shall analyze the nomination process as outlined by the parties. We have noted that the Complainant has simply pleaded that he was awarded the nomination certificate after a consensus process where he emerged the preferred candidate. We have gone through all his pleadings in respect of this instant case and we further note that he has conspicuously failed to plead when the consensus building process that led to his issuance of the Nomination certificate was conducted. Strangely, his Counsel stated in his oral submissions that the Complainant was awarded his certificate on the April 22, 2022 vide the process that is alluded to by the 1st Respondent. These fundamental facts have not been pleaded anywhere in the Complainant’s pleadings filed herein.

37. Further, what is striking is that as evident in the Complaint filed in PPDT Complaint No E058 of 2022 produced by the Complainant in these proceedings, we note that the Complainant stated on oath that he was awarded his certificate after a consensus process that was held on March 23, 2022. Yet in the instant Complaint, as we have already observed, he did not plead on the issue, and that his Counsel simply stated in the course of his oral submissions that the award was made on April 22, 2022. We find the lack of consistency on the part of the Complainant on the very basic yet fundamental issue of date of award of his nomination certificate unsettling.

38. The Complainant has gone ahead and pleaded that he was declared the winner and issued with a Nomination certificate in a public area, in the party headquarters and before high ranking party officials. He has annexed two photographs to demonstrate this. The Claimant did not, however, file a Certificate of Production of Electronic Evidence in respect to the pictures to give credit to their authenticity. The photographs are therefore of no evidential value to prove that he was issued with the nomination certificate. Be that as it may, even if we were to consider the photographs, it is evident that the photograph at page 30 simply shows the Complainant posing with a nomination certificate. We cannot tell where and when the photo was taken. In any event, the photo does not even show him being presented with a certificate. It simply shows him holding a certificate. We also cannot see people around yet he claims that he was presented the certificate in a public place before high ranking party officials. Our further observation is that the second photo at page 31 shows the Complainant wearing a different shirt and it is also not clear where and when it was taken. The picture does not even show him being handed over a certificate as alleged or at all.

39. That unlike the Complainant, the 1st Respondent has on the other hand detailed in his Replying Affidavit a chronological sequence of events; on 25th March was the deadline for submission and payment of requisite fees for candidate nomination; on 16th April the 2nd Respondent issued notices for nomination consultation meeting of candidates to be held on April 18, 2022; on 18th April the 1st Respondent, Complainant and other aspirants underwent interviews where the 1st Respondent was declared a winner; and on 22nd March he was issued with a nomination Certificate.

40. Secondly, we have scrutinized the two nomination certificates before the Tribunal. The Complainant’s Nomination Certificate is not dated, even though it is signed. We find it strange that the Complainant’s certificate was not dated by each signatory, yet the certificate made provision for entry of a date. The Nomination Certificate adduced by the 1st Respondent on the other hand is dated April 22, 2022 and it is signed.

41. In the case of Emmanuel O Achayo v Orange Democratic Movement & 4 others [2017] eKLR, the High Court emphasized that;‘In election petitions or nominations disputes the burden of proof rests with the party making the allegations at challenging the outcome or alleging, misconduct on the other.’

42. In another case of John Kiarie Waweru v Beth Wambui Mugo & 2 others, the High Court held that: -‘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 applicablein 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.’

43. Applying the reasoning in the afore-mentioned judicial authorities to the facts and circumstances of this case as we have analyzed above, it is our considered view that the Complainant has not proved his Complaint by adducing sufficient evidence to prove his claim. We are not convinced that the Complainant has met the burden and standard of proof to warrant an order upholding the nomination certificate that was purportedly issued to the Complainant and nullifying the nomination certificate of the 1st Respondent. We accordingly find that the claim has no merit.

What are the appropriate relief in the present circumstances? 44. Having found that the claim lacks merit, the only option left is to dismiss the same.

45. Turning to the question of costs, the general rule is that costs follow the event. However, we do direct that each party bears its own costs of these proceedings given the circumstances of this case and in the interest of fostering party unity.

Disposition 46. In light of the foregoing, we order as follows: -i.The Complaint herein be and is hereby dismissed.ii.Each party to bear its own costs.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MAY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)