[2022] KEPPDT 975 (KLR)

Keter v Kitur & 3 others (Complaint E002 (ELD) of 2022) [2022] KEPPDT 975 (KLR) (28 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 975 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 (ELD) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

April 28, 2022

Between

Hon. Alfred Keter

Complainant

and

Hon. Bernard Kibor Kitur

1st Respondent

United Democratic Alliance Party

2nd Respondent

United Democratic Alliance Party National Elections Board

3rd Respondent

United Democratic Alliance Party Dispute Resolution Committee

4th Respondent

Judgment

1. The Complainant is a member of the 2nd Respondent. On the April 19, 2022 he participated in the said 2nd Respondents party nominations for MP [Member of Parliament Nandi Hills Constituency ticket and emerged the winner.

2. On April 24, 2022, he filed a complaint under certificate of urgency accompanied by a notice of motion supported by his own affidavit together with a complaint and verifying affidavit.

3. The Notice of Motion was certified urgent and directions given that the Complainant serves the Respondents with the pleadings and that the matter be set for hearing on the April 27, 2022 at 9. 00am.

4. In the interim, this Tribunal ordered that a stay be hereby granted in terms of prayer 3 of the said Notice of Motion.

5. The said Notice of Motion sought the following:i.Expendedii.That pending the hearing and determination of this application inter-partes, there be a stay of the 4th Respondents ruling of April 22, 2022 in Application No 158 of 2022 [Hon Bernard Kibor Kitur vs Hon Alfred Keter & Another].iii.That pending the hearing and determination of this application inter-partes, this Honorable Tribunal be pleased to issue an order restraining the 2nd and 3rd Respondents from submitting the name of the 1st Respondent to the Independent Electoral and Boundaries Commission as the nominee for the position of Member of Parliament in Nandi Hills constituency in the forthcoming general elections.iv.That pending the hearing and determination of the complaint herein, there be a stay of the 4th Respondents ruling of April 22, 2022 in Application No 158 of 2022 [Hon Bernard Kibor Kitur vs Hon Alfred Keter & another].v.That pending the hearing and determination of the herein complaint, this Honorable Tribunal be pleased to issue an order restraining the 2nd and 3rd Respondents from submitting the name of the 1st Respondent to the Independent Electoral and Boundaries Commission as the nominee for the position of Member of Parliament in Nandi Hills constituency in the forthcoming general elections.vi.That the costs of this application be provided for.vii.That this Honorable Tribunal be please to make such and other further orders as it may deem fit and just in the circumstances of the case.

6. The said Notice of Motion application is based on the ground that the Complainant is dissatisfied with the decision made in Application No 58/2022 before the party Electoral Dispute Resolution organ being the 4th Respondent herein, and has thus filed the complaint herein in respect thereof. Further, that the 2nd and 3rd Respondents have enforced the decision of the 4th Respondent by issuing the 1st Respondent a provisional certificate, and in the absence of the orders sought they may forward the same to IEBC as the party nominee for the constituency in issue.

7. The application is supported by the affidavit sworn on April 24, 2022 by the Complainant.

8. When parties appeared before this Tribunal they consented to dispensing with the said Notice of Motion application in line with the interim order already issued by this Tribunal and which order was to remain in effect until full hearing and determination of the complaint herein.

9. Together with the Notice of Motion application is filed a complaint seeking orders that:i.That the herein complaint be and is hereby allowed.ii.That the ruling of the 4th Respondent delivered on April 22, 2022 in Application No 158 of 2022 (Hon Bernard Kibor Kitur vs Hon Alfred Keter & Anor) be and is hereby set aside and nullified.iii.That the decision of the 3rd Respondent to issue the 1st Respondent with a provisional certificate be and is hereby declared unfair and unjustifiable.iv.That the provisional certificate issued to the 1st Respondent by the 2nd and 3rd Respondents be and is hereby declared null and void.v.That the decision of the 2nd Respondents’ Constituency Returning Officer and the 3rd Respondent declaring the herein Complainant, Hon Alfred Keter, as the 1st Respondents nominee for the Nandi Hills constituency be and is hereby upheld.vi.That the 2nd and 3rd Respondents be and are hereby ordered to forward to the Independent Electoral and Boundaries Commission the name of the Complainant as the 2nd Respondents nominee for the position of Member of Parliament Nandi Hills constituency.vii.That the cost of the herein complaint and the nomination before the 4th Respondent be borne by the Respondents.

10. Parties filed their respective responses and counterclaim following which they proceeded to make oral submissions on their respective cases.

Complainant's Case 11. The Complainant and the 1st Respondent are members of the 2nd Respondent [hereinafter UDA], while the 3rd and 4th Respondents are organs of the said political party (UDA).

12. On the 19th of April 2022 the Complainant participated in a UDA party nomination process by way of universal suffrage and won.

13. The 1st Respondent, being dissatisfied with the process proceeded before the 4th Respondent to contest the said win, which was thereafter overturned.

14. It is the Complainants contention that the 4th Respondent in reaching its decision erred in law and fact, by:i.Nullifying the nomination of the Complainant despite there being overwhelming evidence that the Complainant has won the nomination for the position of Member of Parliament, Nandi Hills constituency. The votes garnered by the Complainant were not in dispute save for three polling stations out of 100 polling stations.ii.Failing to hold that the results from the three polling stations in question i.e. Soiyet Primary School 1, Lengubei Primary School 1 and Kaboswa Primary school 1 did not substantially affect the outcome of the nomination and that is all the votes in the three polling stations were to be given to the 1st Respondent the Complainant would still emerge a winner with a very clear margin.iii.Holding that the 1st Respondent had proved the allegations made against the Complainant to the required standard of proof.iv.Holding that violence was meted in various polling stations.v.Holding that the agents and representatives of the Complainant forcefully stormed various polling stations and physically assaulted the 1st Respondents agents and locked them out of polling stations.vi.There was ballot stuffing and delays in transmission.vii.Disregarding the will of the people of Nandi Hills constituency

15. The Complainant thus asks that the prayers be granted as outlined in his complaint.

1st Respondent's Case 16. The 1st Respondent, through the Replying Affidavit sworn by the Chairman of the National Elections Board, Antony Mwaura depones to the widespread violence that occurred during the party nominations in issue. In making this determination the said Chairman has been guided by the statement of the UDA County Returning Officer, Veronica Chebet Kiberenge on the violence she witnessed and experienced. The witness statement by the 1st Respondent’s Chief Agent and the certificate of electronic evidence presented at the party dispute resolution process.

17. Further, the said 1st Respondent on April 27, 2022 has filed a response and counter claim where he submits that the outcome of the dispute resolution organ has since been overtaken by events as the decision-making organ of the party has proceeded to act on it and that if the Complainant is aggrieved by this decision he need adhere to the party laws and rules.

18. In addition, is filed a counter claim to the violence that was occasioned by the Complainant as a result of which the said 1st Respondent prays that his counter claim be allowed. The 1st Respondent thus seeks for the following orders in the Counter Claim:a.This Honourable Tribunal do reaffirm the decision issued and dated April 22, 2022 by the United Democratic Alliance Party, Electoral and Nomination Dispute Resolution Committee in Application No 158 of 2022 Hon Bernard Kibor Kitur vs Hon Alfred Keter & Anotherb.This Honourable Tribunal do declare that the nominations for the position of Member of National Assembly, Nandi Hills Constituency held on April 19, 2022 is null and void.c.A declaration that the nomination elections by the 3rd Respondent, for nomination of Member of National Assembly, Nandi Hills Constituency was not conducted in accordance with the law and the same be nullified.d.This Honourable Tribunal do declare that the decision of the Returning Officer declaring Hon Alfred Keter as the presumptive nominee for UDA in the nominations held on April 19, 2022 be set aside;e.Upon granting prayers (a), (b) (c) and (d) above, the 3rd Respondent, UDA National Elections Board be ordered to conduct fresh nominations in accordance with either of the methods outlined in the United Democratic Alliance Party’s Constitution and the matter be referred to UDA National Election Board for further action.f.The Complainant be condemned to bear the cost of this suit as well as the cost of the suit before the 4th Respondent.

2nd, 3rd & 4th Respondents Case 19. The UDA party through the pleadings of the 2nd, 3rd and 4th Respondents has submitted on both the Notice of Motion application filed by the Complainant and on the substantive Complaint. In light of the consent by the parties in regard to the Notice of Motion, we have focused on the submissions in respect of the complaint.

20. The said Respondents urge this Honourable Tribunal to find that the nomination in issue is faulted on the grounds that the Complainant/Applicant violated the Principles of the Constitution, Electoral Law, UDA Constitution and rules & Regulations thereto. There were instances of Electoral Violence, Voter Bribery, Ballot Stuffing, and in some cases, there are votes that were not correctly counted hence affecting the accuracy of the results. The issue of secrecy of the vote also was an issue. This also directly affects the free will of the voter to exercise his or her right to vote.

21. It is the said 2nd 3rd and 4th Respondents case that it is trite fact that the above shortcomings affected substantially and materially the outcome of the Nomination exercise. And as such that they are sufficient grounds to find that the Complainant was not validly elected and returned as the Nominee Member of National Assembly of Nandi Hills Constituency.

Submissions 22. The crux of the Complainants submission is that the 1st Respondent did not present evidence to link him or his agents or servants to the violence that he alleges was meted out of various persons during the party nominations held on April 19, 2022. In addition, he submits that the will of the people was demonstrated in the impugned nomination process and should not be overturned.

23. The Complainant submits that the party contributed to the somewhat bungled nomination process and as such cannot be trusted to hold a repeat fair process that would allow for universal suffrage.

24. The crux of the submissions made on behalf of the 1st Respondent is that the nomination process that was conducted on April 19, 2022 was riddled with irregularities and illegalities and as such cannot have been deemed to have produced a credible nominee. The party dispute resolution organ had sufficient evidence presented before with all relevant actors present and determined as much. A second nomination process was undertaken, in line with the party rules and it is this second process that resulted in his nomination and the issuance of the provisional certificate that is contested by the Complainant. The Complainant has not disputed the 2nd nomination process before any internal organ.

25. The crux of the submissions made on behalf of the 2nd, 3rd & 4th Respondents is that this complaint is prematurely presented before this Tribunal as the process is dispute is the direct nomination that was applied by the decision-making organ of the party after the dispute resolution organ had found that the nomination that was conducted on April 19, 2022 could not have produced a legitimate nominee. That decision by is what is contested by the Complainant and yet he has not appealed against it as required by law.

Issues, Analysis and Determination 26. It is not in dispute that party nominations for the Nandi Hills constituency MP seat were conducted on April 19, 2022.

27. It is also not in dispute that the Complainant and the 1st Respondent were contenders for the UDA party ticket for the said seat.

28. It is also not in dispute that some result was announced at the close of the said party nominations.

29. It is not in dispute that there were some irregularities that arose during the nomination process.

30. It is also not in dispute that the outcome of the said nomination process was presented before the party dispute resolution organ and that the organ made a determination.

31. It is in issue who should bear more responsibility for the irregularities that arose during the nomination.

32. It is in issue whether the irregularities were widespread enough to compromise the said nomination process.

33. It is also in issue as to whether the decision of the said party election dispute organ was appealable or it was a decision already implemented and an appeal should thus lie against the subsequent decision made by the 3rd Respondent.

34. It is also an issue as to who should bear the costs of this complaint.

35. In synchronising these specific issues as outlined above we note that what should lie as issues before this Tribunal are; that we need determine whether the decision of the UDA party election disputes organ was appealable before us. If we find that it was, then we must determine whether the decision was legally sound and finally then address what the implications of such finding should be.

36. We note that although all parties made reference to the party laws and rules as well as to legal authorities/precedents, it is only the legal authorities that were attached while none attached the party laws.

37. We have looked at the party constitution as lodged with the Office of the Registrar of Political Parties. At article 20. 1 it provides for the ‘Functions of the National Elections Board’ as follows:“….The board shall have the following roles: -a.To plan, organize, direct and coordinate internal party elections;b.To undertake the Governor, Senator, Women Representative parliamentary and County Assembly candidate's nomination;c.Implement party nomination and election rules in accordance with the Constitution of Kenya, the electoral laws and the party constitution;d.Draft nomination rules, regulations and procedures for approval and adoption by the NEC;……..e.Supervise and coordinate the implementation of elections and nominations by the County, Constituency Ward and Polling Centre committees; [emphasis ours]f.Prescribe forms and documents for the purpose of party elections and nominations;g.Issue interim certificates to candidates duly elected or nominated; and,h.Issue final list of duly elected and nominated members to the NEC for final approval and ratification.

38. From the provisions above it would appear that a decision of the Elections Committee was subject to action by the Board.

39. However, we have gone ahead to look at article 31: which establishes the ‘Electoral And Nomination Dispute Resolution Committee’. Part i states;“there is hereby established the Dispute Resolution Committee whose mandate is to receive, hear and determine disputes resulting from internal party elections or nominations…At part viii, it provides that the decisions of the committee shall be final.”

40. Further analysis of the party constitution shows that at article 38 on dispute resolution it is provides that“any dispute, other than an electoral dispute arising out of party elections and nominations, shall be adjudicated by the IDRC”.

41. Having seen the mandates of the various organs established in the party constitution, It would appear, in our considered opinion, that the Complainant was justified in coming before this Tribunal, a final decision having emanated from the relevant party organ.

42. Having found as above, we must then ask ourselves, ‘was the decision of the UDA elections dispute resolution organ justified?

43. From our analysis of the documentation presented before us, it would appear that the party organ had opportunity to look into and interrogate ample evidence emanating from the impugned nomination process. It is also apparent that both the Complainant and the 1st Respondent had audience before the said organ. These facts are not contested. What the Complainant contests is whether the evidence was sufficient to warrant the orders made by the said organ.

44. We look into the reasoning of the party organ and note that the parties all concede, both before the party organ and before this Tribunal, that violence and irregularities subsisted. The Complainants main contention is that it affected a minor segment of the region in issue and thus did not impact the final outcome of the vote by those that had turned out. He buttresses this contention by opining that no evidence was attached by way of statements or affidavits of persons who were unable to vote due to the issues on the ground on the said day. Curiously he makes little note of the violence experienced as per the sworn statement of the Returning Officer, other than to infer that it was not as widespread. The Respondents on the other hand submit that the irregularities in the process impacted the possibility of voters turning up to express their preference. From these, what we can clearly determine from the information that was before us is that there was violence and irregularities.

45. Should any party benefit from such irregularities? The party organ determinedNo

46. Was this determination by the UDA elections dispute resolution organ in error? In answering this we ask; Was it illegal? No, this was the right body mandated to make such determination. Was there procedural unfairness? No, parties were allowed to present their cases before the organ. Was the decision irrational?

47. In answering ourselves as to this last segment, we refer to what was stated in Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526: that“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place."It is apparent that the party organ having reviewed the evidence before it found that the process was insufficient to determine as one having presented ample opportunity to the party members and aspirants to realise their political and civil rights. We have not been provided with numbers such as of the total numbers of anticipated members eligible to vote in the said nomination viz a vi those who actually turned out. In light of the information before us, we see no reason to overturn the party organs observation.

48. In light of our findings what orders should we make?

Disposition 49. We order that:a.The Complaint herein dated April 24, 2022 is hereby dismissed.b.The Counter claim by the 1st Respondent filed on April 27, 2022 is hereby dismissed.c.The 4th Respondents ruling of April 22, 2022 in Application No 158 of 2022 (Hon Bernard Kibor Kitur vs Hon Alfred Keter & another.)2nd Respondent is upheld.d.Each party shall bear its own costs.

DATED AT NAIROBI THIS 28TH DAY OF APRIL 2022. M. L. ODONGO(PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)DR. LYDIAH WAMBUI(MEMBER)