[2022] KEPPDT 1006 (KLR)

Kivau v Jubilee Party (Complaint E133 (NRB) of 2022) [2022] KEPPDT 1006 (KLR) (10 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1006 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E133 (NRB) of 2022

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

September 10, 2022

Between

Chrispus Nzilu Kivau

Complainant

and

Jubilee Party

Respondent

Judgment

Introduction 1. This matter arises out of the Respondent’s list of nominees for Kitui County Assembly under the marginalized category.

2. The Complainant was aggrieved that he was not nominated to represent vulnerable communities as he suffers from a rare heart condition known as arrhythmia coronary heart condition.

3. Dissatisfied with the party list, the Complainant claims that he attempted to reach out to the Respondent on several occasions to resolve his problems but he was unsuccessful.

4. The Complainant moved this Tribunal by way of a Complaint dated August 31, 2022, seeking:a.An order be made by the Political Parties Dispute Tribunal to both the party and IEBC in order to ensure that:i.The nomination of Chrispus Nzili Kivalu is upheld and captured in the party list under the marginalized category.ii.The name be included and published in the party list as a Vulnerable Marginalized.iii.The omission be corrected to ensure that Chrispus Nzilu is reinstated and gazetted in the party list.iv.Any other orders or reliefs this Tribunal may deem fit to grant.

5. The Complainant herein was filed together with a supporting affidavit and a reply to response.

6. Following the directions of this Tribunal, the matter came up for hearing on September 9, 2022. The Complainant was represented by Sheila Mugo & Company Advocates while the Respondent was represented by Kamotho Njomo & Company Advocates.

The Complainant’s Case 7. The Complainant submits that he is a member of the vulnerable marginalized community in Kenya as he suffers from a rare heart condition known as arrhythmia coronary heart condition.

8. He further submits that as a duly registered member of the Respondent party and a resident of Migwani Ward in Kitui County, he applied to be nominated as a member of the Kitui County Assembly under the marginalized category to represent vulnerable communities.

9. The Complainant contends that after successfully applying, he was listed as the second nominee in the first party list under the marginalized category. However, the Independent Electoral and Boundaries Commission (IEBC) rejected this list as it did not comply with the law in regards to reflecting the diversity of Kenya.

10. He also contends that when the IEBC published the party nomination lists on July 27, 2022, the Respondent had failed to include nominees for the marginalized category for Kitui County Assembly. Thereby, effectively denying the marginalized people in Kitui County fair representation.

11. Following this omission, the Complainant sent a letter (dated July 28, 2022) to the Respondent, in which he copied the IEBC, detailing the issues. After he failed to get a response, he wrote a follow up letter to the Respondent which was received on August 4, 2022.

12. The Complainant alleges that after visiting the Respondent’s offices on August 5, 2022, he received a call from one of the party’s respondents who assured him that they had received his complaint and that they would forward his name to IEBC. He further alleges that he was told that there was no need to seek the intervention of the Tribunal.

13. The Complainant submits that despite following up with the Respondent and sending a formal letter dated August 29, 2022, he was still denied entry into the Respondent’s offices. He thus opted to take a copy of the letter to the offices of the IEBC where it was stamped and received.

14. In the Complainant’s reply to the response, he questioned what criteria the Party List Nomination Committee used when deciding who would be listed in the first and second lists that were submitted to the IEBC. He wondered why employees of the Respondent such as Immaculate Wanza John were unaffected by the re-shuffling of the lists and whether there was a bias in this regard. He further submitted that the Respondent committed an offence by failing to be forthcoming with information and not responding to his complaint letters. Additionally, he maintained that he could not enjoin parties that he was unaware of and that he ought not to be prejudiced in order to avoid offending other people.

15. It is the Complainant’s prayer that this Tribunal compel the IEBC to honour the Respondent’s wishes and reinstate his name under the marginalized category and gazette the same, so as to ensure that he is not prejudiced and that his rights are not infringed.

The Respondent’s Case 16. The Respondent in their response contend that they submitted their first party list to the IEBC in line with article 13 of their constitution. However, the list was rejected and they were required to submit another compliant list.

17. That following these instructions by the IEBC, and through their Party List Nomination Committee, they came up with a party list in compliance with laid down procedures, rules and laws. It is this party list that is subject to these proceedings.

18. The Respondent further contends that it was an oversight that the nominees for the marginalized category for Kitui County Assembly had not been forwarded to the IEBC. When this mistake was realized, the Respondent immediately forwarded the list of nominees which was received by the IEBC on August 6, 2022 as evidenced by annexure marked ‘KM-5. ’

19. They submit that the Complainant has not explained the offence that the party made in not including his name on the resubmitted list, or the persons on the list who should not have been nominated by the party, and the reasons thereof.

20. The Respondent maintains that that the Complainant has failed to adduce evidence to show that he applied for consideration by the Party List Nomination Committee under the marginalized category after they called for applications, nor has he attached proof to show that his medical condition qualifies him to represent the marginalized groups for Kitui County or even that the people suffering from this condition are among the marginalized groups in Kitui.

21. The Respondent further submits that the Complainant has not attempted to resolve the matter using the party’s Internal Dispute Resolution Mechanism (IDRM) before approaching this Tribunal as required by Section 40(2) of the Political Parties Act. They maintain that neither the JP nor the National Elections Appeals Tribunal have received any complaint to address the grievances that the Complainant has purported to lodge with this Tribunal and as such, the Respondent has not properly invoked the jurisdiction of this Tribunal.

22. It is the Respondent’s case that the prayers sought by the Complainant cannot be granted as they have already submitted to IEBC, names of persons under the marginalized category. It will therefore not be prudent for such people to be removed from the list without first being given the opportunity to be heard.

Analysis and Determination 23. The Tribunal has reviewed the parties’ case, and isolated the following issues for determination:i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint has merit and what are the appropriate reliefs?

Whether this Tribunal has jurisdiction to hear and determine this matter? 24. Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that brought before it. Without jurisdiction, any orders made by this Tribunal amounts to nullity ab initio.

25. The place of jurisdiction in law is well settled as was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989), where Nyarangi JA held as follows:'Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

26. The jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011(hereinafter the PPA) which provides on jurisdiction of the Tribunal as follows: -1. The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; andfa.disputes arising out of party nominations2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.3. A coalition agreement shall provide for internal dispute resolution mechanisms

27. The dispute at hand concerns a member of a political party and a political party and therefore falls squarely within the provisions of Section 40(1)(b) and (fa) of the PPA as highlighted above.

28. As articulated under Section 40(2) of the PPA, the Tribunal can only adjudicate on matters under Section 40 (1) (a), (b), (c), (e) and (fa) once the said dispute has been subjected to the political party’s Internal Dispute Resolution Mechanism (IDRM). In principle, this provision also known as the doctrine of exhaustion, requires the aggrieved party to adduce evidence of an attempt at compliance before the Tribunal can assume jurisdiction.

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

30. The Tribunal therefore has to question whether or not the Complainant has exhausted the IDRM of their political party. It follows that the answer is one that does not require the matter to be heard and determined to completion provided an honest attempt can be demonstrated. In the case of Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others, it was held that:“Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.”

31. In this present matter, the Complainant has demonstrated his attempt at engaging the Respondent to resolve his conflicts vide the letter dated 28th July and August 2, 2022 to the Respondent which was received and stamped, and has been adduced as evidence. This Tribunal also notes that the Respondent has not registered any formidable response to the letter. The Tribunal also considers the Complainant’s assertions that he was assured by the Respondent that his matter would be resolved and he would not need to approach the Tribunal.

32. We therefore find that the Complainant’s actions amount to an ‘honest attempt’ as envisaged by Section 40(2) of thePPA. Having established such effort, this Tribunal therefore determines that the Complaint is properly before it and that it has jurisdiction to determine this matter.

Whether the Complaint has merit and what are the appropriate reliefs? 33. The Complainant’s case is hinged on the fact that the Respondent in resubmitting the Party list to IEBC erroneously left him out despite his name being included in the 1st list that was sent to the IEBC. The Complainant thus seeks that his nomination be upheld and captured under the party list under the marginalized category.

34. Article 90 of the Constitution of Kenya provides for seats in the Parliament and County Assemblies through party nomination lists whereby seats are allocated to political parties in proportion to total seats won by candidates to the political party at the National General Elections. Article 97 (1) of the Constitution of Kenya makes provision for nominations of members of parliamentary political parties to the National Assembly to represent special interests which include the youth, persons with disabilities, workers and marginalized group representatives. The Tribunal is cognisant of the fact that nomination and allocation in this regard is a matter of party discretion and only requires that the list is in accordance with the law. The party nomination lists usually include a mix of special interests’ groups and persons who have made contributions to the party.

35. In this matter, the Respondent in their response have noted that they submitted the party list to the IEBC in line with Article 13 of the Party’s Constitution that provides for party lists. The Respondent has also demonstrated that subject to Article 90 of the Constitution of Kenya, the IEBC is mandated to ensure that the party lists that have been submitted comply with the law in regards to the proper persons being nominated, the numbers adhered to and that the list reflects regional and ethnic diversity of the people of Kenya. The Respondent therefore justifies the reconstruction of the party list on the ground that IEBC rejected the initial party list and the Respondent was then required to send a compliant list. It is also important to note that the subsequent list received by the IEBC has since received approval of the IEBC.

36. To this extent, the Tribunal considers the admission of the Complainant and notes that the Complainant’s main contention is that his name was in the initial list and not on the final list submitted to the IEBC. He therefore submits that he had a legitimate expectation that having qualified and been cleared in the first party list and based on the assurance by the party through the phone that his name would be included in the list, that his name would be included in the party list under the marginalized category.

37. It is however worth noting that the process of nomination and application for the Respondent was carried out by the Party List Nomination Committee which was guided by the Party rules and procedures. We believe that this Committee remained seized of this role following the rejection of by the IEBC of the party lists on July 15, 2022, which effectively rendered these party lists null and void. Following this rejection, it was incumbent upon all political parties to reconstitute lists that were compliant, re-activating the mandate and role of the Party List Nomination Committee in this regard. We anticipate that at this point the said Committee, guided by the party rules and procedure, would carry out a nomination process for the purposes of forwarding to the IEBC a list of names whose nominations compliant with the requirements of the IEBC. To this end, it is no defence for a nominee to point at the inclusion of their names in the first list as proof of having been duly vetted by a party, since all names in this first list were rejected by the IEBC. In our view all such applicants would have had to submit their applications afresh, alongside other new applicants that the party would have sought among its membership in its bid to submit a list of compliant nominees.

38. The Complainant has failed to demonstrate that he made his application to this Party List Nomination Committee to have his application considered under the marginalized category. Furthermore, the Complainant has also failed to show how his conditions qualify him for nomination under the marginalized category as this would have justified his inclusion in the list as a proper person for the nomination. No evidence has been laid before the Tribunal of medical records including a PWD certificate duly issued by the National Council for Persons with Disability. Similarly, there is nothing on record to detract the suitability of the nominated persons under the marginalized category. It thus follows that the Tribunal has no basis to displace the current nominees in favour of the Complainant.

39. The Tribunal in taking note of the parties’ arguments therefore finds that the Complaint lacks merit to the extent that the Complainant has failed to demonstrate that he should be considered for nomination under the marginalized category. The Complainant has also failed to provide sufficient evidence why he considers the nominees whose names have been listed not to be qualified. For the above reasons, the prayers sought by the Complainant are not possible to countenance.

40. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

Disposition 41. In light of the foregoing, we order as follows: -i.The Complaint herein be and is hereby dismissed.ii.Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA.................(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)