[2022] KEPPDT 1075 (KLR)

Kiboi v Forum For Restoration Of Democracy – Kenya; Independent Electoral & Boundaries Commission (IEBC) (Interested Party) (Complaint E010 (ELD) of 2022) [2022] KEPPDT 1075 (KLR) (8 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1075 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E010 (ELD) of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

August 8, 2022

Between

Lydia Chelimo Kiboi

Complainant

and

Forum For Restoration Of Democracy – Kenya

Respondent

and

Independent Electoral & Boundaries Commission (IEBC)

Interested Party

Judgment

Background 1. The Complainant is a member of the Forum for Restoration of Democracy (Hereinafter FORD). She duly applied for the position of nominated Member of County Assembly (MCA) Trans Nzoia County under the “Gender Top-Up Category’. She was instead included in the Top Up list for Bungoma County which she avers that she had no chance of winning. The Complainant challenges her inclusion in the Bungoma Gender Top Up party list published by the Independent Electoral & Boundaries Commission (IEBC), hereinafter the Interested Party. The Complainant contends that she applied for nomination in Trans Nzoia County under the Gender Top-up List but was instead included in the Bungoma Gender Top-up List.

2. The Complainant seeks amendment of the Respondent's Bungoma Gender Top-up list by deleting her therein and transferring her name to the Trans Nzoia Gender Top-up List and prioritized at number 1 for being the most qualified candidate by virtue of being a member of the Ogiek/Ndorobo community which is the among the recognized minority and marginalized communities in Trans Nzoia County. The Complainant filed a complaint along with a supporting affidavit on August 1, 2022 as well as Affidavit of Service dated August 3, 2022.

Complainant’s Case 3. The Complainant applied for nomination in Trans Nzoia County under the Gender Topup List but has been included in the Bungoma Gender Top-up List. The Complainant avers that she applied for nomination to the Party and that her application was accepted and was then asked that she pay Kshs 15,000 which she did by sending the money to one Stephen Manusyule, the Director of the Respondent's Elections Board.

4. The Complainant/Applicant is an Ogiek/Ndorobo which is among therecognised minority and marginalised communities in Trans Nzoia County as per the National Gender and Equality Commission Report titled "Unmasking Ethnic Minorities and Marginalized Communities in Kenya, Who and Where?" published in 2017.

5. The Complainant avers that the Gender Top-up list for Trans Nzoia County has included only Luhya and Kalenjin nominees to the exclusion of other communities.The Complainant/Applicant states that she raised the matter with the Respondent's Internal Disputes Resolution mechanism who have categorically declined to amend the party lists and or entertain her complaint by deleting her name in the Bungoma gender top-up and transferring it to Trans Nzoia County which is her county of residence.

6. The Complainant states that the allegations of the Respondent in their letter dated 1st August, 2022 are all falsehoods as evidenced by bundle of documents in LCK-I that shows that she applied for nomination and even paid Kshs 15,000. She further contends that herself and other members of her community had to travel to the Respondent's headquarters after they were informed by officials of the Respondent at the county level that all applications were being handled from the head office in Nairobi.

7. At the head office, they were informed that the party officials were calling members to apply directly and that no notice was sent out by the party asking members to apply for consideration in the party lists. They were then advised to write a letter to the Party Leader and the Secretary General for reconsideration which were told to also to have it served at the county level. A copy of the said letter is contained in her bundle marked LCK-I.

8. It is further contended that while following up the matter, the Interested Party on July 15, 2022 declined the party lists submitted by some of the political parties and granted them 7 days to rectify the same including FORD-Kenya. It is during this period that the Respondent was asked her to submit her application which was complied with and paid for. The duly filled-out forms as directed by Director, Elections Board and a Mr John Wanyama, WhatsApp and Text message conversations between herself and the said Stephen Namusyule, Director of Elections and John Wanyama are all contained in her bundle of evidence marked LCK-I.

9. She further stresses that unless the orders sought in this Application/Complaint are granted as prayed, she stands to suffer irreparably as her community of the Ogiek/Ndorobo will not be represented in Trans Nzoia County yet are the most deserving.

10. During oral submission the Counsel for the complainant stated that the letter written to the County Chairman to forward names for party list consideration was not a notice to the members to apply for party slots as required by law. Counsel made reference to regulation G of the IEBC Gazette notice attached as such the party failed to comply with the law in the clear sense of the word. That the only way for consideration to a party slot was through an Application by members after proper notice has been issued therein.

11. The Complainant seeks the following reliefs against the Respondent : -a.An order directing the Respondent to amend its Bungoma Gender Top-up by deleting the Complainant's name therein and transferring it to the Trans Nzoia Gender Top-up List and prioritized at number 1 for being the most qualified candidate.b.In the alternative to (a) above, the Interested Party amends the Respondent's Bungoma Gender Top-up by deleting the Complainant's name therein and transferring it to the Trans Nzoia Gender Top-up List and prioritized at number 1 for being the most qualified candidate for gazettement.c.Costs of the Complaint be borne by the Respondent.

Respondents Case 12. The Respondent is a political Party and vide a relying affidavit and supporting annexures all dated August 5, 2022, presented a response by Dr Chrisantus Wamalwa Wakhungu, a member of the National Assembly for Kiminini Constituency and the Secretary General of the Respondent being conversant with the facts and duly authorized to swear this affidavit on behalf of the Respondent ("The Party") and he places reliance on the documents attached hereto.

13. The Respondent confirms issuing a notice to its County Chairmen to submit party lists in line with the Registrar of Political Parties' timelines of March 3, 2022, and that vide a notice dated May 16, 2022, the Registrar of Political Parties notified all political parties to submit their party lists for certification pursuant to section 35A of theElections Act 2011 on or before the June 11, 2022. The party complied with this requirement.

14. That on the June 3, 2022, the interested party via Kenya Gazette notice No 6378, issued a notice on requirements for submissions of party lists. All political parties were required to submit their party lists to the interested party on or before the June 25, 2022.

15. That on the June 27, 2022, the Interested Party in a media release, confirmed that, by midnight of the June 25, 2022, it had received party lists from 81 political parties out of the 83 cleared to participate in the 2022 General Elections and confirms that the party was among the parties that had submitted their party lists.

16. On July 15, 2022, the Interested Party asked the Party to review the Party list it had submitted and re-submit the same in compliance with the Interested Party's directives on or before Friday the July 22, 2022 by 5:00 pm.

17. The Respondent discloses that under Part Six of the Party Nomination and Election Rules, the Party established a National Disputes Resolution Board ("the Board") which is mandated under rule 39, to deal with Disputes arising out of the Party's nomination process.

18. The Respondent laid out the procedures that was required of the Complainant pursuant to Rule 42 of the Party Nomination and Election Rules, i.e. (1) requiring that the Complaint shall be supported by an affidavit by the complainant containing the grounds on which the relief is sought and setting out the facts relied on by the complainant together with supporting documentation and (2) that the complaint is to be lodged aforesaid accompanied with evidence of proof of payment of the requisite filing fees of Kshs 15,000 if the dispute is in relation with the nomination of a Member of County Assembly.

19. It is averred that the Complainant was advised by the Party's National Disputes Resolution Board to formally lodge a Complaint with the Board but chose not to do so but filed this Complaint before the tribunal prematurely.

20. The Respondent asserts that as per the Complainant's exhibits at page 1 marked as CKM-I, the Complainant only sent a demand letter dated July 30, 2022 to the Party and that further the Claimant also did not pay the requisite filing fees to the Party.

21. It is stated that to that extent, the Complaint before this Tribunal is incompetent because the Complainant had not invoked and exhausted the Party's internal dispute resolution mechanism. The Respondent accepts that the Party's Executive did not respond to the Complainant's demand letter vide a letter from the Party Leader dated August 1, 2022, but asserts that that in itself does not amount to or lead to the conclusion that the Complaint, if any, was lodged before the Board as required. The Respondent being the Party Executive filed a Response to the Complaint and decided not to entertain the Complaint.

22. The Respondent reiterates that the Complaint herein lacks merit as follows;a.That the application by the Complaint for her to be nominated under the "Gender Top up" was submitted to the party on Wednesday the July 27, 2022, almost Six (6) days past the Friday, 22/07/2022 deadline set by the Interested Party.b.That as can be seen from Form 2 Part Ill of her application at page 15 of the Exhibits, the Complainant did not furnish the Party with a Clearance Certificate from the Directorate of Criminal Investigationc.That I wish to reiterate party members nominated under Gender Top up category all hail from marginalized communities in Trans Nzoia County.d.That the Criteria for nomination of the Party candidates is provided for under Part Three of the Party Nomination and Election Rules. As regards the nomination to Party lists of County Assemblies, Rule 15 of the Party Nomination and Elections Rules, the ward Executive Committee shall generate lists of applicants to be nominated to party list of County Assemblies.e.That the fact that her nomination was proposed by the Ogiek/Ndorobo Community Council of elders as alleged, is not a guarantee that must be nominated by the Party. The said Council of Elders is not an organ of the Respondent and above all, the Respondent maintains that the Party has no corporate membership.

23. The Respondent states that it is a total stranger to the alleged dealings and money that was sent to one Stephen Namusyule on the July 19, 2022. All communication between the party and all party members are done in writing and on the Party's letterhead. And as such any such correspondence and dealings are of a personal nature between the Complainant and the alleged Stephen Namusyule.

24. It is further stated that the Party has in place its specific payment options that are to be used for official payments being Pay bill No 8267xxx and Account Number 01120xxxxxxxxx and thereafter must be receipted by the Party's official receipt. Having chosen to send money to a personal number can only mean that the said transaction was not official and the payment was for a private transaction between the two.

25. The Respondent further states that the deadline set by the Interested Party had not run out and therefore the only inescapable conclusion as to the motive of such dealings can only cast doubt on the integrity of the Complainant.

26. The Respondent seeks that in the interest of justice that the Complaint be dismissed.

Analysis of the Tribunal and Finding 27. We have reviewed of all documents and pleading filed and annexed by the parties; and reviewing submissions by the claimant and the 1st Respondent, we list the issues for determination as follows:a.Whether this dispute falls within the mandate of the Tribunalb.Whether the Complaint has merit and the remedies thereto.c.Costs

a) Whether this dispute falls within the mandate of theTribunal Preliminary issues (i) Tribunal’s Jurisdiction 28. It has been urged by the Respondent that this matter ought to have been canvassed and determined by the Political Party’s internal dispute resolution mechanism and not this Tribunal.

29. This preliminary objection was raised on the one hand and on the other hand the Respondent subjected themselves to the jurisdiction of this Tribunal by moving to dismiss the complaint on other grounds in addition to Jurisdiction. Nonetheless we wish to address these issue in line with section 40 of the Political Parties Act.

30. The Supreme Court in the case of Zachary Okoth Obado v Edward Akongo Oyugi and 2 others (2014) eKLR while addressing the jurisdiction to hear appeals from determination of election petitions by the High Court restated its findings in Samuel Kamau Macharia and Another v Kenya Commercial Bank and 2 Others, SC Civil Application No 2 of 2011, as follows: -“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”judges at paragraph 120-123at page 23-24: - held that:“Article 163(7) of the Constitutionis the embodiment of the time-hallowed common law doctrine of stare decisis.it holds that the precedents set by this Court are binding on all other courts in the land.We affirm that the observations of this court in the Peter Munya, that the doctrine of stare decisis is a critical element of our legal system, providing certainty and predictability in the law.”

31. This jurisdiction of the Tribunal flows from both the Constitution and the Political Parties Act, it is clothed with both original and appellate in certain cases. What is of concern is whether the dispute before us is a dispute between a member of a political party and a political party if the answer as is in this case is in the affirmative, then section 40 of the Political Parties Act comes into effect and this Statue clothes this Tribunal with the Jurisdiction to determine such disputes.

32. The next huddle to waddle through is whether there was an attempt by the Complainant to pursue the matter through the IDRM of the Political Party. It is imperative to note that the Amendments to the Political Parties Act that came to effect in 2022, amended Section 40(1) by Amendment 27 to the effect of deleting the words “party primaries” appearing in paragraph (fa) and substituting it with the following “party nominations”. Therefore, the Tribunal by dint of this amendments has jurisdiction to determine disputes arising from party nominations. Further this Amendment to thePolitical Parties Act was meant to cure the mischief that had become synonymous with the reliance of the exhaustion principle by political parties much to the chagrin of its members.

33. In determining Jurisdiction of the Tribunal further, we evaluate if the dispute falls within the provisions of Section 40 and if the claimant showed evidence of an attempted to have the dispute resolved through the political party’s IDRM in accordance with the political Party’s Constitution, then the Tribunal is clothed with Jurisdiction.

34. It is not disputed that the Complainant by a letter dated the July 30, 2022 addressed to the internal dispute resolution panel of the 1st Respondent, brought to the attention of the Political Party that there was a dispute arising from the party list formulation for Bugoma/Trans Nzoia County. The said letter was responded to by the 1st Respondent and as such the political party concluded not to entertain the request or claim made by the Complainant.

35. Interestingly the 1st Respondent went at length in their letter dated August 1, 2022 to elaborate the non-compliance by the Complainant, for it not having made an Application to the Party for consideration, having not filed the requisite chapter six documents. Despite all this lack of compliance by the Complainant the Party was Magnanimous to still in the absence of the Complainant “Application” consider her for the Gender top-up list in Bugoma County.

36. Further the Tribunal noted that the 1st Respondent now is challenging the use of a letter dated July 30, 2022 used by the Complainant to seek redress did not follow the form of moving the IDRM envisaged by the party’s Constitution . The Party fails to notice that they responded to the Complaints letter before it and dismissed the matter vide a letter dated the August 1, 2022 which is equally not a procedure envisaged in the party’s constitution. What is good for the goose is surely good for the gander. The Choice by the Party not to activate the IDRM from 30th July ,up until August 1, 2022 is not explained . The Tribunal finds this neglect wanting on the one hand and the use of the letter as an attempt within the meaning of section 40(2) of the PPA.

37. The Tribunal remains guided by the case InGeorge Okode & Others vs Orange Democratic Movement & Others Petition No 294 of 2011, Majanja J clarified those provisions of Section 40(2) of the Political Parties Act by stating that“The same should be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism.”

38. Based on the foregoing, we find that this Tribunal has jurisdiction to determine this dispute since the dispute is between a member of a political party and the political party arising out of Party list nominations.

b) Whether the Complaint has merit and the remedies thereto. Analysis 39. The Elections (Party Primaries And Party Lists) Regulations, 2017,Notice On Requirements For Submission Of Party Lists dated 31st May, 2022 provides as follows:.County Assembly (Gender) Party ListThe following nomination procedures shall apply to political parties in the preparation of party list for nomination of County Assembly (Gender Top Up) party list –1. The County Assembly (Gender Top Up) party list must have the number of qualified nominees reflecting the number of wards in each of the respective county.2. The nominees to the party list must have similar qualifications as those required of candidates contesting for elections as members of the County Assembly.3. In order to meet the gender requirement, the order of the nominees in the party list shall alternate between women and men candidates.

40. Formula for Allocation of Special Seats to Political PartiesIn accordance with section 36(4) of theElections Act, 2011, the Commission is, within 30 days after the declaration of the election results, required to designate from each qualifying list the party representative on the basis of proportional representation. In accordance with Regulation 56(2) of the Elections (General) Regulations, 2012, the Commission is required to use the following formula in allocating the special seats from the respective party lists: The formula for allocation of seats to the respective political parties from the party lists shall be the number of seats won by a political party divided by the total number of seats multiplied by available seats for allocation in the respective House.

41. Article 82 of the Constitution provides that Parliament shall enact legislation, that is simple, transparent and that takes into account the special needs of persons with disabilities and other persons or groups with special needs, to provide for, among others, the nomination of candidates; the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including nomination of candidates for elections.

42. Article 90 of the Constitutionprovides for allocation of party list seats and for effect I will reproduce it in full:1. Elections for the seats in Parliament provided for under Articles 97 (1) (c) and 98 (1) (b), (c), and (d), and for the members of county assemblies under article 177 (1) (b) and (c) shall be on the basis of proportional representation by use of party lists.2. The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-a.each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation;b.except in the case of seats provided for under Article 98(1)(b) , each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; andc.except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.(3)The seats referred to in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.

43. Article 100 of theConstitution provides that Parliament shall enact legislation to promote the representation in Parliament of-a.women;b.persons with disabilities;c.youth;d.ethnic and other minorities; and (e) marginalized communities.

44. Articles 97(1) (c), 98(1) (b), (c), (d) and 177(1) (b) and (c) and shall alternate between male and female candidates. Such a party list is required to ensure fair representation to take into consideration the principles of Article 82(b) (two-thirds gender rule) and Article 100 (promotion of marginalized groups) of the Constitution (Regulation 20(2)).Regulation 21(1) provides the manner of submitting the party lists to the IEBC.

45. The Commission can scrutinize the party list and if it does not conform to the requirements of the Constitution, theElections Actand the Elections (Party Primaries and Party Lists) Regulations, the Commission shall require the political party to review and amend the party list so that it conforms to the requirements of the law and guidelines by the Commission as was in the case before the Tribunal.

46. The evidence on record show the Complaint having made an Application in FORM 2,3 and 4 to the Party for consideration for the nomination as a marginalized minority representative of Transnzoia County Assembly . It is not disputed the Complaint made this Application and was competent and qualified and meet the requirements as envisaged in law. The complainant equally paid the requisite fees for the nomination and awaited the party’s consideration.

47. It is the Respondent Response that this Application by the Complainant was not accompanied with as KRA Clearance and a Certificate of good conduct as required by their FORM 2. Further this Application was filed on the 27th July which was filed out of time for consideration.

48. The Tribunal notes in the 1St Respondent letter dated the 01st of August 2022, the party was clear that the Complainant did not file an Application to be nominated for the Transnzoia County Assembly then the Party flip-flops in their replying affidavit and admits this Application was filed but was not accompanied by the requisite documents in accordance with the Party’s Constitution .

49. Further it is noted that once one applies for a certificate of good conduct the finger print taking usually takes sometime thus a receipt to show that the said certificate was being “obtained” in our view would be sufficient proof, this is equally supported by Rule 6 of the FORD-K Constitution that states that the following documents are to be “obtained” and not necessarily “attached” to the application. Therefore, we find that the Application for nomination was proper in form and substance.

50. On the issue of Late filing of the Application , the 1st Respondent considered the Complaints Application albeit for the wrong County thus they are estoppped from relying on the late filing in the strict sense . Further the 1st Respondent party list was rejected for being in non-compliance with the law.

51. Subsequently the 1st Respondent declined to consider the Application by the Complaint for reasons that the other two nominees both emanated from the sabaot community even though the complaint opines otherwise and states they are Kalenjin and Luhya the majority in representation. On this the Tribunal will steer clear the community composition and instead opine that no reason was given as why the party list lacked a representative from the ogiek community on the one hand and how the party reached the conclusion that the Complainant was not fit to serve in the Transnzoia County Assembly where she resides, and feels connected with the communities and the County.

52. On the issue of the magnanimity by the 1st Respondent in nominating the complainant to the Bugoma County list, no explanation or rationale was adduced before this Tribunal other than benevolence. The Complainant was not accorded a fair chance to participate or even given reason as to her failure to meet the criteria of selection carried out by the party. Instead the Party is moving the Tribunal to notice the Complainant’s conducted in paying a party officials and not the party’s paybill, yet the Party is not denouncing this official as a party representative or explaining the criterion used to nominate the MCA for Transnzoia County and the rationale used to nominate the Complainant to a County Assembly she did not apply for .

53. We therefore find this exclusion an infringement of the Complaint’s rights and such find merit in the Complaint.

Final Orders and Disposition 54. The upshot of the above is that, We allow the Complaint in the following manner That:i.an Order be and is hereby issued, that the Respondent herein the Forum for Restoration of Democracy, Kenya(FORD-Kenya) amends the Bungoma County Assembly Party Nomination List by deleting the Complainants name Lydia Chelimo Kiboi in the Gender-top up Category.ii.an Order be and is hereby issued, that the Respondent herein the Forum for Restoration of Democracy, Kenya(FORD-Kenya) inserts the name of the Complainant Lydia Chelimo Kiboi in the Gender top-up Category for Transnzoia County Assembly and that this be forwarded to the IEBC for publication in the Kenya Gazette applicable to the August 9th 2022 General Elections.iii.an Order be and is hereby issued, that the determination of this Tribunal be transmitted to the IEBC for compliance.iv.Each Party to bear their own cost in the interest of party unity.Those are the Orders of the Tribunal

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 08TH DAY OF AUGUST 2022. HON. LIGUNYA STEPHENPRESIDING MEMBER.................................HON HASHI AMINAMEMBER......................................................HON ANDREW WARUHIUMEMBER