[2022] KEHC 11332 (KLR)

Kilonzo v Wiper Democratic Movement & 3 others (Civil Appeal E132 of 2022) [2022] KEHC 11332 (KLR) (Civ) (3 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11332 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E132 of 2022

CW Meoli, J

June 3, 2022

Between

Amb. Julius Kiema Kilonzo

Appellant

and

Wiper Democratic Movement

1st Respondent

Dr. Julius Makau Malombe

2nd Respondent

Office of the Registrar Of Political Parties

3rd Respondent

Independent Electoral and Boundaries Commission

4th Respondent

((Being an appeal from the judgment of the Political Parties Disputes Tribunal delivered on 12th May 2022 in PPDTC No. E026 of 2022))

Judgment

1. The events leading to the present appeal are as follows. In preparation for the upcoming general elections scheduled for on August 9, 2022, the political party known as Wiper Democratic Movement (hereafter the 1st respondent) issued a notice inviting aspirants interested in vying for various elective positions to submit their applications for nomination on or before the March 7, 2022. Ambassador Julius Kiema Kilonzo (hereafter the appellant) and Dr Julius Makau Malombe (hereafter the 2nd respondent) submitted their applications for nomination in respect of the Kitui County gubernatorial seat. At the close of the notice period, the 1st respondent reserved the April 21, 2022 as the nomination date for the Kitui County gubernatorial position through the requisite notice. On April 16, 2022 in response to a letter by the appellant, the Secretary General of the 1st respondent informed the appellant of the 1st respondent’s intention to apply rule 2. 1.8 of the Party Elections, Nomination Procedures and Rules that allows for consensus as a decision-making method in the selection of the 1st respondent’s gubernatorial candidate. The 1st respondent’s National Election Board (NEB) thereafter issued a nomination certificate to the 2nd respondent as the nominated candidate for Kitui County gubernatorial elections.

2. Aggrieved by the foregoing decision, the appellant lodged a complaint on April 20, 2022 to the 1st respondent’s National Election Appeals Board (NEAB). On April 25, 2022 the National Election Appeals Board (NEAB) dismissed the appellant’s complaint. Dissatisfied with the said decision, the appellant lodged a complaint dated April 26, 2022 to the Political Parties Dispute Tribunal. The tribunal rendered judgment on May 12, 2022 dismissing the appellant’s complaint in its entirety and upheld the decision of the NEAB.

3. Equally, aggrieved with the outcome in the Political Parties Dispute Tribunal, the appellant preferred an appeal to this court challenging the tribunal’s decision, based on the following grounds:-“1. The honorable tribunal erred in law and in fact in holding that the 1st respondent had satisfied the Political Parties Act, and the Party Elections, Nomination Procedures and Rules, in its decision to nominate the 2nd respondent as its candidate for the position of Governor Kitui County in the upcoming general elections to be held on August 9, 2022. 2. The honorable tribunal erred in law and facts in holding that the 1st respondent had initially not made a decision to use a direct party nomination method in nominating its candidate for the position of Governor, Kitui County.3. The honorable tribunal erred in law and facts in its interpretation of the words or phrase “indirect party nomination method”, as provided for under the Political Parties Act.4. The honorable tribunal erred in law and facts in holding that the 1st respondent had communicated to the appellant, its members and the public that it was to conduct its nomination by way of both direct and indirect nomination methods.5. The honorable tribunal erred in law and in facts in holding that none compliance with the Political Parties Act by the 1st respondent did not prejudice the appellant.6. The honorable tribunal erred in law and in facts in holding that there was no substantial none compliance with the law by the 1st respondent.7. The honorable tribunal erred in law and facts in considering irrelevant material and ignoring relevant material or evidence.8. The honorable tribunal erred in law and facts in holding that use of opinion polls satisfied the provisions of section 38G of the Political Parties Act in conduction nominations by way of an indirect party nomination.9. The honorable tribunal erred in law and facts in holding that the appellant’s right of legitimate expectation had not been violated.10. The honorable tribunal erred in law and facts on holding that the appellant had been granted a fair hearing.11. The honorable tribunal erred in law in elevating the 1st respondent’s party Nomination Rules above statute.12. The honorable tribunal erred in law and facts in holding that the appellant had by acquiescence waived his rights to agitate that the 1st Respondent ought to have complied with the law.13. The honorable tribunal erred in law and facts by abdication its judicial or quasi-judicial authority in holding that the 1st respondent was responsible in determining the legality of polls, interviews, and modality of nomination.” (Sic)

4. The appeal was canvassed by way of written submissions with oral highlighting of the same by counsels. The appellant condensed the grounds of appeal into four key issues namely, whether the nomination process by the 1st respondent was in compliance with the law and party nomination rules; whether the 1st respondent had elected, resolved and communicated that it was to conduct party nominations by way of the indirect party nomination method as opposed to direct party nomination method; whether the appellant’s legitimate expectation and right to a fair hearing was violated ; and whether by acquiescence the appellant had waived his rights. It was argued that the tribunal’s finding that there was substantive compliance with the 1st respondent’s nomination rules and Political Parties Act (hereafter the PPA) was not supported by any evidence and that on the contrary, there was ample evidence that the 1st respondent was in breach of the Political Parties Act and the 1st respondent’s Party Elections Nomination Procedure and Rules 2021 (hereafter the PNR).

5. Citing section 2 and 38G of the PPA, counsel argued that the tribunal’s interpretation of the former section was erroneous, as the definition of ‘indirect party nomination’ on a plain reading conveys that a singular process or mode but not two separate methods was intended and therefore, the latter section must be read conjunctively rather than disjunctively. Further relying on rule 23. 2 of the PNR, counsel asserted that the notice issued by the 1st respondent failed to satisfy the provisions of section 38G of the Political Parties Act regarding the requirements relating to indirect party nominations.

6. Further, it was the appellant’s contention in any event that rule 23. 1 of the PNR did not contemplate indirect party nomination. He cited the decision in Hussein Omar Abajilo Araru & 2 others v Hussein Jarso Godana [2017] eKLR in faulting the tribunal’s interpretation of the said rule which he said disregarded provisions of rule 23. 8 providing that where there were two or more candidates who are qualified for nomination to a particular elective position, the 1st respondent was obligated to conduct a primary election by way of universal suffrage. He asserted that the operative word used in rule 23. 1 is ‘election’ as opposed to the word ‘selection’ and that the word ‘or’ therein does not amount to giving the NEB the option to use a selection method in nomination as envisaged by section 38G of the PPA. He relied on the case of John Mruttu v Thomas Ludindi Mwadeghu & 2 others Complaint No 48 of 2017 to contend that by using opinion polls in the nomination, the 1st respondent failed to comply with the provisions of section 38G of the Act.

7. Concerning the appellant’s legitimate counsel anchored his submissions on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. He asserted that evidence placed before the tribunal demonstrated that there was intimation made to the appellant that the 1st respondent would conduct direct nomination hence a legitimate expectation had crystallized. In conclusion counsel relied on article 47 of theConstitution of Kenya 2010, section 2 & 4(3) of the Fair Administrative Action Act and the decision in JMK v MWM & another [2015] eKLR to argue that the decision to issue the 2nd respondent with the certificate of nomination was made in meetings held by the 1st respondent’s National Executive Council without any invitation to the appellant, thus denying him a fair hearing. Further, placing reliance on the decision in Richard Nyagaka Tongi v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR counsel asserted that that waiver, estoppel and acquiescence do not operate against express provisions of statute and the tribunal erred when it held that, the appellant’s attendance of consensus building meetings was amounted to acquiescence on his part. The court was thus urged to allow the appeal.

8. The 1st respondent viewed the appeal as scandalous, frivolous, vexatious and an abuse of the court process asserting that it did not raises arguable issues. Submitting on the legitimacy of indirect nomination of the 2nd respondent, and citing section 2 and 38G of the PPA, counsel asserted that the body mandated by the Wiper Democratic Movement Constitution and Rule 4 of the PNR to conduct nominations is the NEB and that Rule 2. 1.8 of the latter prioritizes decision making by way of consensus where possible, failing which voting by acclamation and secret ballot could be used. He argued that the provisions allow the NEB to decide on whether to conduct nominations for any seat through direct or indirect mechanism and that concerning the Kitui gubernatorial seat, the method employed by the NEB in consultation with the party leader had the consent of the respective candidates following a series of consensus building meetings.

9. Citing Communications Commission of Kenya & 5 others (supra) counsel argued that the appellant was at all material times aware that the NEB had decided to conduct party nominations in respect of the Kitui gubernatorial race through the indirect nominations mechanism and specifically through consensus building meetings as convened by the 1st respondent’s NEB. That the appellant elected to continue preparing for a direct nominations exercise, notwithstanding and he cannot therefore convincingly assert a legitimate expectation. Moreover that, in the face of clear statutory provisions the asserted claim to a legitimate expectation cannot stand.

10. On whether the appellant was accorded a fair hearing, counsel relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport and Infrastructure & 3 others [2021] eKLR and submitted that the appellant attended or was duly represented by able proxies in the consensus building meetings and thus was granted a fair hearing at all material times. The court was urged to dismiss the appeal.

11. On his part, counsel for the 2nd respondent that section 2, 38A and 38G of the PPA provide for indirect party nomination. Submitting on latter provision of the Act, and calling to aid the Supreme Court’s decision In the Matter of the principle of Gender Representation in the National Assembly and the Senate [2012] eKLR and Sony Holdings Ltd v Registrar of Trademarks &another [2015] eKLR counsel contended that the provisions are directory rather than mandatory in spite of the use of the word “shall”. He asserted that every political party had discretion on the method to use in nominations. He pointed out that the 1st respondent’s PNR were made prior to the amendment of the PPA and therefore they need to be interpreted with alterations, adaptations, and modifications in accordance with the new statutory regime. His position was that the 1st respondent was therefore not confined to the option of direct nominations.

12. He relied on sections 34, 38E, 38G & 38H of the PPA, article 38(1), 91 & 92 of the Constitution of Kenya, clause 1. 3, 1. 4 & 2. 1.8 of the PNR, the decision in Gabriel Uminda Olenje & 4 others v Orange Democratic Movement & another [2017] eKLR and the minutes of the NEB to argue that failure to issue a notice to the Registrar of Political Parties with regard to nominations was not fatal as the notices contemplated only served to aid Registrar in the monitoring and regulation of political party nominations. He emphasized that after conducting opinion polls, the 1st respondent’s NEB had resolved to nominate the 2nd respondent as the most viable candidate for the gubernatorial seat. He asserted therefore that the 2nd respondent was lawfully nominated in compliance with statute, party rules.

13. Equally submitting on the issue of legitimate expectation while also placing reliance on Communications Commission of Kenya & 5 others (supra) and the decision in Samuel Owino Wakiaga v Orange Democratic Movement & 2 others [2017] eKLR it was argued that the appellant failed to prove that a decision was made by either the National Executive Council (NEC) or the National Election Board (NEB) that the preferred mode of nomination was direct nomination thus giving rise to the appellant’s legitimate expectation. That a party may either opt to conduct direct or indirect nomination as such the Appellant could not have had an expectation that would limit the 1st respondent’s right as a political party.

14. Concerning the question whether the Appellant was accorded a fair hearing counsel similarly cited the decision in John Florence Maritime Services Limited & another (supra), and the cases of Samuel Kalii Kiminzia v Jubilee Party & another [2017] eKLR and Denis Wafula Okinda v Linus Ouma Asiba & 5 others [2017] eKLR to urge that the appellant was accorded a fair hearing at all material times, having attended and or been represented in four out of six consultative meetings held under the aegis of the NEB and National Executive Council (NEC) of the 1st respondent.

15. In underscoring the autonomy of political parties , counsel called to aid the decisions in Thomas Ludindi Mwadeghu v John Mruttu & Orange Democratic Party [2017] eKLR, Charles Otieno Opiyo & 3 others v Orange Democratic Movement Party & another [2017] eKLR, Tom Odege v Erick Peter Omondi Aynaga & 3 others [2019] eKLR and Joel Kipkosgei Sigei v Kenya African National Union [2017] eKLR. He contended a court ought to defer to the party in running its affairs except where the decisions of a political party are in contravention of its own rules and against public interest. He urged the court to exercise restraint in concerning the impugned decision of the 1st respondent made in accordance with the 1st respondent’s Constitution and PNR and as upheld by the Political Parties Dispute Tribunal.

16. In conclusion, counsel citing the provisions of section 120 of the Evidence Act, the decision in 748 Air Services Limited v Theuri Munyi [2017] eKLR and Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR it submitted that the appellant by his own conduct waived the right to insist on direct nominations having participated in the consensus meetings as well as interviews to nominate a candidate by indirect nominations, and he cannot approbate and reprobate in law. The court was thus urged to dismiss the appeal.

17. The court has considered the record of appeal and the submissions by the respective parties. This is a first appeal. The Court of Appeal for Eastern Africa set out the duty of the first appellate court in Selle v Associated Motor BoatCo [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

18. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & another v Duncan Mwangi Wambugu [1982 – 1988] I KAR 278.

19. In my considered view, the key issue falling for determination in this appeal is whether the disputed nomination process was carried out in compliance with the provisions of the PPA and the PNR. But first it is pertinent to consider whether the 1st respondent’s PNR contemplated the conduct of indirect party nominations. The position adopted by the appellant before the tribunal and before this court was that rule 23. 1 of the PNR envisaged direct rather than indirect party nominations being conducted by the 1st respondent and that his expectation was that the party would proceed in the former manner in the scheduled nomination exercise. He further complained that no decision was made by the party NEC to conduct indirect party nominations. On their part, the 1st and 2nd respondents assert that on the contrary, rules 23. 1 and 23. 2 as read with the principle in rule 2. 1.8. allow for indirect nomination.

20. Rule 23. 1 and 23. 2 of the PNR provide that:“Party Primaries for the nomination of member of the County Assembly, Governor, Member of the Senate, Member of the National Assembly and County Woman Representative shall be by way of all universal suffrage of registered voters as per the IEBC register of voters or any other mode of election method deemed appropriate by the National Elections Board at the polling station.The NEC shall by a resolution determine the mode of election in any electoral area in the Republic of Kenya provided that NEB shall publish such resolutions not later than twenty- one days to the date of party primaries”(Emphasis added).

21. The appellant has asserted that the use of the word “election” in the above provisions ousts the possibility of a selection process or indirect party nomination as defined in section 2 of the PPA. Section 2 of the PPA defines “direct party nomination” as“the process by which a political party, through its registered members, elects its candidates for an election.”On the other hand, the section defines “indirect party nomination“as the process by which a political party, through use of delegates selected from registered members of the political party and interviews, selects its candidates for an election”.As for the term “election”, it is defined as“the act of selecting by vote, of a person or persons from among a number of candidates to fill an office… and includes a presidential, parliamentary or county election”

22. The 1st respondent’s PNR at Rule 3. 2 merely defines the term “election(s)” as “an election or elections referred to in these rules”. Admittedly, the said rules predate the definitions introduced into the PPA by amendments made in February, 2022. Thus, while the court agrees with the appellant that the words “election” and “selection” are words of art so far as electoral law is concerned, it seems to me that the word “election” is used loosely in rule 23. 1 and 2 and rule 23. 8 rather than in the technical manner contained in the definitions in the PPA. I say so because the phrase “all universal suffrage of registered voters“ in rule 23. 1 implies an election process and yet the word “election” is again expressly used in the phrase “any other mode of election method deemed appropriate by the National Elections Board”, as well as in rule 23. 8.

23. The operative words in the provisions in my considered view are “all universal suffrage” vis -a -vis “any other mode of election” method. The wording of rule 23. 1 and 23. 2 to my mind is both clear and unambiguous and this court is prepared to give the provisions an expansive and purposive interpretation that accords with the definition in section 2 of the PPA by reading the provisions as conveying the purport that, two alternative methods of nomination, namely by election and by selection are contemplated. Besides, by dint of the provisions of section 38G of the PPA the 1st Respondent, like any other political party was entitled to use any of the two methods of nomination in the section, namely direct or indirect party nomination in any electoral region. In the hierarchy of laws, the statutory provisions would take priority over party rules and where necessary and appropriate, the rules may be read in a manner that accords with and gives effect to the statute, especially where as is the case here, such rules predate the statutory provisions.

24. In principle therefore the 1st respondent was entitled to conduct nominations by use of the direct or indirect methods in section 38 of the PPA and PNR. The appellant’s letter to the party dated April 16, 2022 to which I will refer in more detail in due course, clearly admits the existence of the dual method of party nominations available to the party under the law, save that he expressed doubt that the indirect method was viable given the requirements of the law applicable to such nominations, and the limited time for the completion of the process of nominations.

25. The tribunal cannot be faulted for interpreting the key phrases in rule 23. 1 of the PNR in a disjunctive manner that being the express purport of the said rule. This finding in part puts to doubt the appellant’s insistence that based on the above provisions, he had the legitimate expectation that the 1st respondent would conduct direct party nominations by universal suffrage and not indirect nominations, and or that a representation regarding the former had been made to him. The only valid expectation was that whatever method of nomination the party adopted, the nomination would be conducted in consonance with the law.

26. Having found that the 1st respondent was entitled to conduct direct or indirect party nominations under rule 23 of the PNR, the next question is whether the nomination process was in fact conducted in compliance with the PNR and the PPA. This is where things become murky, unfortunately. First, however, there is no dispute that there were two qualified aspirants namely the appellant and the 2nd respondent seeking nomination for the position of governor, Kitui County and that as early as March, 2022 the party had administered surveys and opinion polls in a bid to identify the best candidate. The 1st and 2nd respondents assert, which assertion is disputed by the appellant, that the 2nd respondent emerged in that process as the stronger candidate. It is common ground that nevertheless, the 1st respondent had through its leader and other organs of the party continued to engage the said candidates in a series of meetings or interactions aimed at building consensus pursuant to rule 2. 1.8 of the PNR, evidently for the purpose of arriving at a compromise candidate.

27. Be that as it may, the 1st respondent had proceeded to issue a notice for country wide party nominations for various elective positions. The nominations were scheduled between the 13th and April 19, 2022. The Independent Electoral and Boundaries Commission (IEBC) form 11F at page 25 of the record of appeal (ROA) indicates that both the appellant and the 2nd respondent were the party primaries’ aspirants for the county governor candidate position in Kitui County. There is no dispute that in the period running up to the said primaries, the party continued to engage the aspirants in the consensus building process. The difficulty obtaining here is that it is not possible to tell whether the consensus building process was itself the supposed indirect method of nomination or whether it was merely a prior process attempted before the party decided to go the indirect nomination route. The 1st and 2nd respondent’s submissions appear to suggest that either proposition could be true.

28. There is no dispute that by a notice found at page 026 of the ROA, the NEB notified aspirants that the nomination dates had been revised in respect Mathare constituency and Kitui, Machakos and Makueni counties. Nominations in respect of the said counties were postponed from April 19, 2022 to April 21, 2022. However, it is common ground that on April 18, 2022 the NEC of the 1st respondent resolved to nominate the 2nd respondent as the party’s gubernatorial candidate for Kitui County. There is on record two letters (pp 038 – 041 of the ROA) indicating that prior to this resolution, the two candidates had communicated with different organs of the 1st respondent regarding the nomination process scheduled on April 21, 2022. For his part, the 2nd respondent in his letter dated April 13, 2022 (pp 039-039 ROA) stated inter alia that:“The party has indicated its intention to undertake party nominations between Amb Kiema Kilonzo and myself in the course of this month. I am writing to request the party to consider issuing me with a certificate without subjecting me to nominations due to the following reasons;…”

29. The writer cited the polls and surveys carried out in March and April 2022 which allegedly showed that he was the stronger or most preferred candidate among other reasons, and concluded with tacit ultimatum:“In light of the above am requesting the party to expeditiously make a decision on whether they are willing to give me a ticket without subjecting me to unnecessary nominations to enable me to consider other available options”.

30. On his part, the appellant by a letter dated April 16, 2022 referring to the letter by the 2nd responded asserted that the only proper and available mode of mode of nomination was the direct nomination in view of the timelines for issuance of requisite statutory notices for the indirect nominations process and the apparently unsuccessful consensus building process. He expressed opposition to the request by the 2nd respondent for indirect nomination and asserted his preparedness to proceed with the party direct nominations.

31. The salient issue arising from the foregoing is whether the alternative process adopted by the party in nominating the 2nd respondent and touted in these proceedings as indirect party nominations carried out under section 38 G of the PPA and rule 23. 1 as read with rule 2. 1.8 was consistent with the PNR and the PPA. It appears that as early as February 11, 2022 the NEB had in its meeting (see pg 302 -305 ROA) resolved to use the both methods of nomination provided in section 38G of the PPA which amendment coincidentally came into force on the same date of that meeting. Concerning the indirect nomination method, Minute 3/02/2022 (ii) reads:“Party primaries by way of Indirect Nominations Method as provided for in S. 38A(b) as read together with section 38G of the Political Parties Act and rules 2. 1.8 and 23 of the WDM constitution”. (sic- read PNR)

32. It was resolved under minute 4/02/2022 that direct nomination would be used only after “exhausting all avenues available under indirect nomination being;i.Consensus led by NEB as provided under 2. 1.8 and 23. 1 of WDM election nomination procedures and rulesii.Any other method provided for under 23. 1 of WDM nominations procedures and rules.”It was resolved further that for purposes of (i) above, eight named party delegates, county election panels and branch panels be selected for “the purpose of compliance with section 38G of the Political Parties Act”.

33. It appears that on April 13, 2022 the NEB held a meeting where reports of opinion polls and scientific survey results from “selected delegates/panel for Kitui county” were received. Minute 1/04/2022 states that “NEB decided to use opinion poll survey to determine the most popular aspirant as the WDM gubernatorial candidate in the absence of outright consensus”. Minute 2/04/2022 records that:“Pursuant to the results of the polls and scientific surveys, NEB resolved that in view of the gap in popularity between the two WDM gubernatorial candidates it was not necessary to conduct ballot based nomination exercise and therefore NEB resolved to nominate Hon. Julius Malombe as WDM gubernatorial candidate for Kitui County… and further consensus efforts be made – to ensure that more information is called for the aspirants and that there is support by unsuccessful candidate to the successful one…”(Emphasis added)

34. This appears to be the resolution adopted by the party NEC on April 18, 2022. Minute 3/18/4/2022 of that meeting referred specifically to the efforts made to identify a compromise candidate for Kitui gubernatorial race including consensus meetings between the aspirants and party panels and stated that:“The scientific opinion polls and surveys from all the commissioned counties were presented and were unanimously agreed to be authentic and reliable to guide in making decision on the most popular candidate.The NEC adopted the reports given after consensus panel meetings and interviews and resolved to issue letters of confirmation of nomination to the relevant aspirants whom NEC has appointed as the party’s flag bearers”.

35. The tribunal correctly found that no resolution by NEC determining to carry out indirect nomination for the Kitui Governor position was published as required by rule 23. 2 of the PNR which states:“The NEC shall by a resolution determine the mode of election in any electoral area in the Republic of Kenya provided that NEB shall publish such resolutions not later than twenty-one days to the date of the party primaries”.

36. This court agrees with the appellant’s contention that the IEBC form 11, revised nomination dates notice and attached schedule (pp 025 -37 ROA) suggest in the absence of a contrary notice that the direct method of nomination would be applied for the seat of governor Kitui County, in the event that the consensus building process failed. The two letters by the aspirants to the party earlier adverted to in this judgment in my view appear to confirm this view. The angst exhibited in the two aspirants’ letters is primarily due to the conduct of the party, as the tribunal properly observed, that despite the notices issued for direct nominations, by its conduct but without any formal notification, the party continued to lean towards indirect nominations. Further, it apparent that this continued until the April 17, 2022. It is the court’s view that until the decision for indirect nomination was made on April 18, 2022, merely 3 days to the actual primaries, the candidates did not know what direction the matter would eventually take.

37. I accept that the court ought to defer to the political party on the manner in which it runs it affairs and especially in furthering the objects of rule 2. 1.8. I do not however accept that the party ought by its mixed signals and conduct to engender such uncertainty not only among the candidates but also among its members on an important matter such as the precise method of nomination concerning the equally important position of governor. Besides, Rule 2. 1.8 is very clear that where consensus failed, voting and secret ballot would be adopted to make decisions. Perhaps this is the kind of mischief the amendment of sections 2 and section 38 of the PPA was intended to address.

38. The memorandum of objects and reasons to the Political Parties (Amendment) Bill, 2021 that gave birth to amendments of these sections and other sections of the PPA states that the objects of amendments contained in clause 22 regarding inclusion of part IVA to the amended Political Parties Act was intended to introduce.“New section on political party nominations including methods of conducting nominations; the establishment of structures by political parties for the conduct of nominations; the participation of registered members of a political party on its nominations; the accessing of the registers of members of a political party in the political party’s nominations; the procedure for the conduct of direct and indirect party nominations”.

39. Regarding clause 2 of the Amendment Bill, it stated that it was intended inter alia:“To insert new definitions of … “direct party nominations” and “indirect party nomination” that are consistent with other proposed amendments to the Act contained in the Bill.”

40. The tribunal’s observation concerning the provisions of section 38G, of the PPA, namely, that it was not “an ornamental provision” of no consequence, is also true of the entire part IV A of the PPA as amended. The tribunal correctly stated the purpose of the provisions to be the regulation of the conduct by parties of indirect nomination and reiterated the duty owed by the party to its members to invest in proper systems, citing John Mruttu v Thomas Ludindi Mwadeghu Complaint No 48 of 2017. However, the tribunal avoided the question whether the provisions of the part, and especially section 38G of the PPA were mandatory or directory considering the use of the word “shall.” So, what does the new part IVA of the PPA state? First, the new part is entitled “Party Nominations” and has nine sections, being sections 38A – I. Section 38A provides as follows:“A political party may in conducting party nominations using any of the following methods: -a.Direct party nomination method; orb.Indirect party nomination method.”

41. What is striking about the remaining sections ie, sections 38B –I is the consistent use of the word “shall”, in relation to establishment of party structures (S 38 B); persons qualified to participate in party nominations (S 38C); access by registered members of the party to the register of members used in nominations (S 38D); notifications of party nominations (S 39E); conduct of direct party nominations (S 38F); conduct of indirect party nominations (S 38G); vetting of candidates (S 38H); and resolution of party nomination disputes (S 38I).For the purposes of this case, the pertinent section is section 38G which states as follows: -“1. A political party that intends to conduct indirect party nominations shall -a)select delegates who shall participate in the party nominations from among registered members of the party;b)submit the list of delegates to the registrar at least seven days before the date of the party nominations;c)specify the date and venue of the delegates meeting;d)specify the polling process used by the delegates during nominations; ande)specify the body within the party that shall conduct the interview of potential candidates.2 The procedure for the selection of delegates to participate in the indirect party nominations shall be provided for in the party nomination rules of the political party.3 The list of delegates shall confirm the names, addresses and identifying particulars of the delegates”

42. It is useful to recall the definition of the term “indirect party nomination” in section 2 of the PPA:“The process by which a political party, through the use of delegates selected form registered members of the political party and interviews, selects its candidates in the elections”.

43. The five- judge bench in Murugi Gateria Mugo v Judges and Magistrates Vetting Board & others [2018] eKLR; Constitutional Petition No 325 of 2013 had this to say regarding interpretation of statutes:“It is trite that, in construing a statutory provision, the first and foremost rule of construction is that of literal construction. All that the court has to see at the very outset is what does the provision say in its plain, grammatical and ordinary language. If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of its statutes need not be called into aid save when the legislation intention is not clear. However, the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words displayed by the legislature. In the words of Lord Greene M.R in the case of Re A debtor (No 335 of 1947) (1948) 1 ALL ER 533 at page 536 it was stated that: -“there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used”.

44. The court proceeded to state that:“If the language is clear and explicit, the court must give effect to it, for in that case the words of the statute speak the intention of the legislature. (See War Bruton v Loveland (1832) 2 B at 480 for Jindal CJ at P 489) and Major General Tunyefunza v AG Court of Appeal petition No 1 of 1996). In the case of P Asokan v Western India Plywoods Cannanore AIR 1987 KER 103 the court expounded and shed more light on statutory interpretation as follows: -“….in relation to the interpretation of statutes, courts have a positive role to play. If a section yields two different interpretations, that which leads to an arbitrary or shockingly unreasonable result has to be eschewed.”

45. A correct construction of section 38G requires that one bears in mind the above definition. The definition uses the conjunction “and” to join the phrase “use of delegates selected from members of the political party” and the word “interviews”. Black’s Law Dictionary tenth edition contains a definition of the “conjunctive/disjunctive cannon” which states that it is:“The doctrine that in a legal instrument and joins a conjunctive list to combine items while or joins a disjunctive list to create alternatives”.

46. The Oxford English Dictionary twelfth edition defines the conjunctive “and” asa conjunction – 1. Used to connect words of the same party of speech, clauses or sentences, connecting two identical comparatives--- connecting two identical words”, while the conjunction “or” is defined as a “conjunction used - 1. To link alternatives“ and for introducing a synonym or explanation of a preceding word or phrase.From the definition of “indirect party nomination” in section 2 of the PPA, such process involved the use of delegates selected from members of party, a meeting of the delegates and interviews to select candidates. Thus, a political party that asserts that it used the indirect party nomination process must be able to demonstrate adherence to all the requirements of section 38G (1) to (3).

47. Black’s Law Dictionarytwelfth edition states that:“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary significance, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning and is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. … but it may be construed as merely permissive or directory (as equivalent to "may"), to carry out the legislative intention and in cases where no right or benefits to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense."

48. The word “shall” as used in the provisions is in my view mandatory and not directory. First, as indicated earlier, there is nothing in the provisions of section 38G and the entire part IV A of the PPA to negative a mandatory construction. The comprehensiveness of the provisions and repeated and consistent use of that word not only in the provisions but in other sections in the part IVA of the Act convey a deliberate intention to create some level of uniformity and certainty in the nomination process, in keeping with the objects of the Bill earlier outlined. These provisions signal a clear intention by parliament in its wisdom, to regulate the conduct of party nominations, while at the same time, allowing discretion to the political party to decide on the method of selection of delegates, the specifics of the actual delegates meeting and the process to be used, and the body to conduct interviews and how to conduct the interviews. This no doubt in deference to the autonomy of the party.

49. What the provisions appears to intend is a credible, transparent, and accountable process in my opinion, in furtherance of the political rights of party members and aspirants. Political parties draw funding from the exchequer and therefore the way they operate or conduct nominations is a matter of public interest as well. In my opinion, a directory construction of the provisions of section 38G would appear to undermine the benefits and rights of members and aspirants derived thereunder, result in injustice, and render redundant the provisions of the sections.

50. As noted earlier, it is undisputed that by the time of the amendment to the PPA the 1st respondent’s PNR were already in place, but where a party had resolved pursuant to Rules 23. 1 and 23. 2 to conduct indirect party nominations the party had no option but to comply with the provisions of section 38G. This court has examined the findings of the Tribunal on the provisions. It appears that the tribunal bifurcated the modes provided for indirect party nominations into two tiers.

51. The definition in section 2 of the PPA does not admit such a construction but contemplates a single process encompassing the use of delegates and interviews. Delegates were to be selected from registered members of the party in accordance with the procedure provided by the party and a list and identifying particulars of the delegates sent to the registrar at least seven days before the date of nomination, and a notice issued to indicate the date, venue and polling process to be used at the delegates meeting. (section 38G 1a –d). Equally, the party was required to specify the mode of interviews and body within the party that would conduct interviews. Although it is conceivable that the delegates meeting and interviews happen on separate days, this process cannot be bifurcated as suggested by the Tribunal.

52. The court has reviewed the material tendered by the 1st respondent before the tribunal in asserting that it conducted indirect party nominations in this instance. The earliest minutes of the NEB are in respect of the meeting held on February 11, 2022 where it was resolved vide minute 3/02/2022 that the party would use both direct and indirect nomination. Minute 4/02/2022 suggests three approaches to the nomination process and that the former would be a last resort after consensus building and “any other method” provided for in rule 23. 1 PNR. The delegates appointed on the said date were to lead the consensus process “for the purpose of compliance of section 38G of the Political Parties Act”. This court is prepared to hold that the said delegates were so appointed to lead both the consensus building process and the process contemplated under section 38G1(c-d) of the PPA.

53. It is undisputed that with regard to the two aspirants in this case, no consensus was reached, and the party proceeded to nominate the 2nd respondent pursuant to the NEB resolutions of April 13, 2022 as adopted by the NEC on April 18, 2022. It is not clear from the 1st respondent’s material when the consensus process closed and/or when the indirect process of nomination started, because as late as April 16, 2022, the Secretary General of the party in responding to the appellant’s letter of even date (page 042 ROA) stated inter alia that:“Please take note that rule 2. 1.8 of our Party Elections and Nomination Rules 2021 allows for consensus as a decision-making method----- the party has the capacity to mediate and will exhaust all the mechanism as pointed in our party Elections and Nominations Rules, to choose the party’s Gubernatorial candidate for the Kitui County General Election.Finally, should you fail to attend the consensus meeting, the party has the discretion to proceed without further reference to you.”

54. On the eve of the date of the NEC meeting of April 18, 2022, the party leader was pressing the appellant to attend a consensus building meeting (See pp 043-044 ROA). A day later, the NEC resolved to nominate the 2nd respondent. No notice pursuant to rule 23. 2 of the PNR had been issued specifically regarding the gubernatorial nominations in Kitui County by NEB or NEC before that date. There is no evidence whatsoever that the list of delegates had been forwarded to the Registrar pursuant to section 38G 1(b) and (3) of the PPA, that a notice of the date, venue of the meeting of delegates, and the polling process had been issued pursuant to section 38G 1(c) and (d).

55. The notice at page 026 of the ROA issued by the 1st respondent is in the following terms:“Wiper Democratic MovementNational Elections BoardRevised Nomination DatesTo all aspirants:Please note that the nomination dates have been revised as under:Region Date..................... ...................................... ...................................... .................Kitui/ Machakos/Makueni April 21, 2022”.

56. This notice read together with the list published by the IEBC (page 025 of the ROA) and the schedule at (pp 027 -37 of the ROA) nowhere indicates that the nominations in respect of Kitui gubernatorial candidate would be in the manner provided for in section 38G (1), that is, through use of delegates and interviews. On the contrary, the notice and allied notices appear more consistent with a notice in respect of direct party nominations under Section 38GF. In my own view, sections 38F and 38G contemplate different or separate notices because the legal requirements in either mode vary. The tribunal erred by glossing over these different requirements and finding that the notice of revised nomination dates sufficed because it bore the word “nominations”. The said notice could not and did not suffice for the purpose of an indirect nomination.

57. It appears to the court that despite the failure by the selected delegates to achieve consensus, the 1st respondent failed to engage the options in rule 23. 1 as read with rule 2. 1.8 of the PNR. The latter rule itself does not contemplate an indefinite consensus building process portending uncertainty and detriment to candidates and members of the party, and in contravention of the mandatory requirements of section 38G of the PPA. The process of consensus building as disclosed in the 1st respondent’s material appears a pale shadow of the contours of what constitutes an indirect nomination under section 38G of the PPA.

58. I harbor grave doubts, for instance, that the polling process to be used by delegates under section 38G 1 (d) merely envisages opinion polls, as proposed by the respondents. To my mind, this sub-section refers to the polling process used during the nomination exercise by delegates at their meeting. True, opinion polls and surveys when properly carried out can yield tentative or near-conclusive indications on the popularity of a candidate at a certain time. The delegates could not be faulted for commissioning opinion polls and surveys to assist them identify the best candidate for purposes of their own deliberations , and decision by an agreed method, but they could not abdicate their mandate to third parties’ results from opinion polls conducted among nebulous persons and possibly non-members of the political party. Any other construction of the phrase “polling process” would appear to undermine the particularity in sections 38G1(d) and the requirement in section 38G 1(a), (b), and 38G (2) and (3) regarding the selection of delegates from certifiable members of the party and for their particulars to be sent to the registrar, no doubt for verification of the fact. The court is surprised that the tribunal offhandedly dismissed the 1st respondents non-compliance with the provisions of section 38G 1(b).

59. From the material before the court, it is not clear whether by the date of the NEB meeting of April 13, 2022, a decision had been made to abandon the consensus process and to go into the indirect nomination mode, so-called alternative mode under rule 23. 1 PNR. If anything, minute 2/04/2022 suggests that the decision not to “conduct ballot-based nomination exercise” and to nominate the 2nd respondent was made on the same day by the said resolution. Which means that during the entire period of consensus engagement, the party never signaled a change in its intention to conduct direct party nominations per the notice (page 026 ROA). The complaint by the appellant that the party NEC did not prior to that date make a decision as per rule 23. 2 to conduct indirect nominations in respect of the Kitui gubernatorial race appear justified.

60. Equally, there is no evidence whatsoever that a notice of any delegates’ meeting was published, or interviews conducted in the manner anticipated by the PPA. The fact that the two aspirants (appellant and 2nd respondent) were unaware, given the contents of their letters of 13th April and April 16, 2022 (page 038 – 041 ROA) that the party had elected to use the indirect party nomination route speaks volumes. As a minimum, these candidates deserved appropriate notices of the fact under rule 23. 1 and 23. 2 NPR and section 38G PPA. If any delegates’ meeting or interviews had been conducted, the candidates would not have been writing these kinds of letters to the party so late in the day. Consensus building is a kind of negotiation process and could be an informal process involving a variety of actors, not necessarily confined to party members, but the method of indirect nomination in section 38G encompasses as a minimum, some fundamental formalities that are missing in the 1st respondent’s asserted process of indirect nomination.

61. In my assessment, what happened in this instance is that the party persisted with the so-called consensus building process despite evidence that none of the candidates was willing to yield, failed to give notice or proceed to the next available mode of nomination , and in the eleventh hour conceived a denouement to deem or adopt the activities carried out during the consensus process as activities conducted in compliance with Section 38G, and then purported to nominate the 2nd respondent by indirect nomination. This conclusion is supported by the minutes of the NEB meeting of 13/04/2022 (page 308 ROA) which made no reference to the outcome of a delegates’ meeting or outcome of interviews of candidates. The resolution to nominate the 2nd Respondent was based on so – called polls and scientific opinion surveys which the NEB“decided to use (opinion polls and scientific surveys) to determine the most popular aspirant of the WDM gubernatorial candidate in the absence of outright consensus”.

62. It was a misdirection for the Tribunal to hold that the meetings attended by the appellant prior to April 13, 2022 related to an indirect party nomination process and that the Appellant had acquiesced to an imperfect process. As a member of the party, the appellant was bound by rule 2. 1.8 requiring consensus as a first option, but the party owed it to him and the 2nd respondent to signal the end of that process , or at least the start of the process of indirect nomination under the PNR and PPA by issuance of appropriate PNR and statutory notices and commencement of activities in compliance with section 38G and rule 23. 2 of the PNR. Section 3 (1A) (b) of the PPA states:“A political party shall promote inclusiveness, democracy, and participation of the people in the -a)…b)Nomination of candidates for elections.”

63. Despite finding the 1st respondent’s manner of carrying out its mandate to be greatly wanting in light of the principles in article 35, 10 and 91 of theConstitution, and dismissing the notion that non-compliance with section 38G was of no consequence, emphasizing that the provision existed to regulate the conduct of indirect party nominations, the tribunal found that there was “substantial compliance by the respondent to the party rules and Act so far as the indirect nomination by poll and interview was conducted”. With respect, these findings are against the weight of evidence.

64. The 1st respondent’s conduct of the so-called indirect party nomination was grossly marred by substantial non-compliance with its own rules and the PPA as outlined herein and appeared a poor reflection of democratic practice in the party affairs. In the circumstances, the court finds that the appeal has merit, and the same is hereby allowed. The judgment of the tribunal is hereby set aside. The court grants prayer (ii) in the memorandum of appeal and further directs the 1st respondent to conduct fresh party nominations in respect of the Kitui gubernatorial position in accordance with theConstitution, the Political Parties Act and the Wiper Democratic Movement Party Elections, Nomination Procedures and Rules within 72 (seventy-two) hours. Parties will bear own costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 3RD DAY OF JUNE 2022. C MEOLIJUDGEIn the presence of:Mr Mutua for the appellant.Mr Katisya for the 1st respondent.Mr Issa for the 2nd respondent.For the 3rd respondent: N/A.For the 4th respondent: N/A.C/A: Carol.