[2022] KEPPDT 921 (KLR)

Kogo v United Democratic Alliance; Independent Electoral & Boundaries Commission (Interested Party) (Complaint E019 (ELD) of 2022) [2022] KEPPDT 921 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 921 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E019 (ELD) of 2022

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

September 12, 2022

Between

Sharon Jewel Kogo

Complainant

and

United Democratic Alliance

Respondent

and

The Independent Electoral & Boundaries Commission

Interested Party

Judgment

1. Thecomplainant approached the Tribunal by wayof complaint datedSeptember 7, 2022 being unsatisfied with the decision of the Respondent to remove her name from the Party’s nomination list for Member of County Assembly Uasin Gishu County under the Gender Top Up category.

2. At the time of making this determination, the defendant has not entered an appearance or filed any responses to the Complaint.

Complainant’s case 3. Thecomplainant avers that she is a registered member of the respondent and having been interested to be elected by way of nomination for the position of Member of County Assembly, Uasin Gishu County Gender Top Up category, she submitted her credentials to the relevant party organ as required by the Respondent.

4. She avers that upon presentation of her credentials, her name was published as one of the eligible nominees for the position of Member of County Assembly, Uasin Gishu County Gender Top Up category in the Standard newspaper ofJuly 27, 2022.

5. That she was number 11 on the list and therefore legitimately expected to be elected by way of nomination to the County Assembly.

6. The complainant posits that however the nomination list was illegally amended by another list published by the Interested Party on or around August 23, 2022which indicated that her name had been deleted.

7. She avers that being dissatisfied by this development, she filed a dispute with the respondent’s Electoral and Nomination Dispute Resolution Committee by way of a letter dated August 25, 2022but the letter has failed to elicit any response prompting her to approach this Tribunal.

8. The complainant avers that the actions by the respondent are an infringement of her Political Rights as espoused inarticle 38 of the Constitution and prays for orders to be reinstated to number 11 on the Respondent’s nomination list for Member of County Assembly, Uasin Gishu County Gender Top Up category.

Issues for determination: 9. On an analysis of the complaint and all the other documents put before this Tribunal, the following emanate as the issues for determination:I.Was proper service effected on the Respondent?II.Does the Tribunal have jurisdiction to entertain this complaint?

Was proper service effected on the respondent? 10. Service is a crucial element in proceedings that cannot be dispensed with save for exceptional circumstances. This requirement flows from the ‘audi alteram partem’ rule of natural justice that a party shall not be condemned unheard. Indeed, if service is not effected on a party, then such party will not have notice of the proceedings ongoing against them nor will they be afforded an opportunity to be heard.

11. The Court of Appeal in Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3others[2019] eKLR posited as follows on the issue of service;“It is trite that one of the tenets of the rules of natural justice is that a party should not be condemned unheard. In other words, no proceedings should be conducted to the detriment of any person in his absence. It is in line with the actualization of this right that the provisions for summons to enter appearance and service thereof come into play. The essence of such summons is to give notice to the party sued of the existence of the suit and invite him/her to enter appearance and defend the suit if she/he so wishes.”

12. The complainant filed an affidavit of service sworn by her Counsel on record, Mr. Sunday Memba. Mr. Memba avers that he effected service personally on a clerk of the respondent at the respondent’s Hustler Plaza on Ngong Road, Nairobi.

13. The alleged Clerk upon whom service was effected has not been identified in the affidavit by either name or gender or in any other manner to satisfy this Tribunal that he/she was indeed an officer of the Respondent with due authority to accept service on its behalf. The affidavit bears no mention of the time when service was allegedly effected. The returned copy is stamped as received but does not bear any signature of the clerk who allegedly received it.

14. Mr. Memba provided no justifiable reasons for the patent defects in his service. He actually blamed the poor service on the urgency of the matter. In the matter of Law Society of Kenya v Martin Day & 3others [2015] eKLR, the court posited that service is a clear elaborate procedural requirement of the Civil Procedure Rules. It is not a mere procedural technicality that can be sacrificed at the altar of substantive justice.

15. This Tribunal is accordingly not convinced that proper service was effected, if at all, on the Respondent and especially so as service has been allegedly effected by an Advocate of the High Court who is expected to know the proper manner of effecting service as well as the consequences of failing to do so.

16. The orders sought from this Tribunal in the complaint are adverse to the Respondent. Granting the orders without proper, if any, service being effected on the Respondent would be tantamount to condemning the Respondent unheard. This Tribunal finds itself hard-pressed to do so.

Does the tribunal have jurisdiction to entertain this complaint? 17. The jurisdiction of a court to decide on a matter before it cannot be understated. In the words of Nyarangi JA in Owners of Motor Vessel "Lilian S" v Caltex Oil Kenya Ltd [1989] eKLR,"Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."

18. The complainant has approached this tribunal protesting the decision of the respondent to remove her from the respondent’s nomination list for Member of County Assembly Uasin Gishu County Gender Top Up category. This is a clear dispute between a Party and a member of the Party falling well within the jurisdiction of this Tribunal by dint of section 40 (1) of the Political Parties Act.

19. Section 40 (2) of the same statute however provides that the Tribunal shall not hear or determine a dispute arising out of party nominations unless a party to the disputeadduces evidence of an attempt to subject the dispute to the internal political partydispute resolution mechanism (IDRM).

20. In this case, the complainant avers that being dissatisfied with the decision of the respondent to remove her name from the Party nomination list, she wrote a letter dated August 25, 2022to the respondent’s Electoral and Nomination Dispute Resolution Committee.

21. Thecomplainant has placed the alleged letter before us. On the face of it, the letter does not bear any stamps or signatures confirming its receipt by the Respondent’s IDRM and its mode of delivery has not been disclosed in the Complaint or in any of the other documents before the Tribunal.

22. On questioning by the Tribunal, the complainant conceded that indeed the letter placed before the Tribunal did not bear a receiving stamp or signature but added that she had a copy that was duly stamped as received. This begs the question; why was this stamped letter not placed before the Tribunal? Thecomplainant’s Counsel, Mr. Memba, washed his hands off this issue saying that he did not represent the complainant at the IDRM level.

23. This Tribunal finds the explanation by Mr. Memba to be conclusive of his nonparticipation at the IDRM level. He had conduct of this matter on behalf of his Client but he did not, in compiling the documents, address his mind as to the issue of exhaustion or attempting exhaustion of IDRM. This Tribunal finds that the complainant did not satisfactorily prove that she attempted to comply with Section 40(2) of the Political Parties Act.

24. In totality of the foregoing, it is clear that the claimant has failed to demonstrate that she invoked the Party’s IDRM. The jurisdiction of this Tribunal has been prematurely invoked and we have no option but to down our tools.

Finding 25. In conclusion, we make the following orders:i.The Complaint dated 7th September be and is hereby dismissed for want of service and lack of jurisdiction by way of exhaustion of IDRM.ii.No order as to costs.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 12TH DAY OF SEPTEMBER 2022. HON. LIGUNYA STEPHEN(PRESIDING MEMBER)HON. HASHI AMINA(MEMBER)HON. ANDREW WARUHIU(MEMBER)