[2022] KEPPDT 1024 (KLR)

Ligabo v Mugali & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E007 (KK) of 2022) [2022] KEPPDT 1024 (KLR) (Election Petitions) (15 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1024 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Election Petitions

Complaint E007 (KK) of 2022

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

May 15, 2022

Between

Ambeyi Ligabo

Complainant

and

Kizito Mugali

1st Respondent

Democratic Action Party of Kenya

2nd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The complainant was vying for the Member of Parliament for Shinyalu Constituency to which he applied, paid for and submitted his application. At the time of application, he was guaranteed a free, fair and transparent nomination process. That complainant later learned that the 2nd respondent had issued a direct nomination ticket to the 1st respondent without any reason or explanation as to how this was done. aggrieved by the 2nd respondents action. The complainant filed complaint with the Party National Election Board vide his letters dated April 17, 2022 and May 1, 2022 both of which went unanswered.

2. Due to the urgency of the matter, thecomplainant filed an application and a statement of claim datedMay 5, 2022 together with his bundle of documents before this Honourable Tribunal seeking the following orders:a.A declaration that the 1st respondents certificate issued by the 2nd respondent be revoked.b.A declaration that the 1st respondents election as the 2nd respondents candidate for the Member of Parliament position in Shinyalu constituency is null and void.c.An order compelling theinterested party to expunge the name of the 1st respondent as the flag bearer for the Member of Parliament seat in Shinyalu constituency under the 2nd respondent party.d.An order compelling the 2nd respondent to conduct a fresh election for the position of member of parliament post in Shinyalu constituency within 14 days from the date of judgment.e.Costs of the suit.f.Interest on the above at court rates.g.The Honorable Tribunal do issue such orders and give such directions as it may deem fit to meet the ends of justice.

3. The 1st respondent filed his response vide his submissions dated May 9, 2022.

4. The 2nd respondent filed a replying affidavit sworn by the Secretary General of the party on May 12, 2022.

The Complainant’s Case 5. It is the complainants claim that he wrote to the National Election Board twice airing his complaint and dissatisfaction with the actions of 2nd Respondent and that he would wish the matter addressed and resolved.

6. He thus submits that he did indeed follow the procedure laid down in the party constitution to first have the matter resolved through the party’s internal dispute resolution mechanism and as the party did not offer any recourse, he opted to approach the Political Parties Dispute Resolution Tribunal to have his case heard and determined as the matter was of uttermost urgency.

7. The claimant states that he is a fully paid up member of the 2nd respondents party and had paid the nomination fee as displayed in his bundle of documents when filing this complaint.

8. It is further submitted that the party issued a direct nomination ticket to the 1st respondent herein, kizito mugali as their preferred candidate. this action by 2nd respondent was not only invalid but also in breach of the Code of Conduct governing political parties under Political Parties Act [PPA} as provided at 7(g) of the First Schedule of PPA. It provides that every political party should respect political constitutions, election rules, and all regulations developed under the Political Parties Code of Conduct.

9. The complainant cites David Kibitok Bungei v Kenya African National[2017] eKLR where Hon Justice Wakiaga held in paragraph 9 and 10 of his judgement; ‘that from the material submitted to PPDT, it is clear that the 1st Respondent failed in respect of appellant’s own rules and regulations and the code of conduct as regards the political parties stated herein’.

10. He submits that the 2nd respondent failed on their part to conduct a free, fair and transparent nomination which left the Complainant prejudiced and, in this case, aggrieved by the decision of the party to award a direct nomination ticket to the 1st respondent.

11. Further in issuing a direct ticket the 2nd respondent contravened the provisions of the Constitution of Kenya article 47 and section 4(3) of Fair Administrative Action Act which provide for affected persons be given notice and an opportunity to be heard. The 2nd respondent did not give the complainant any reasons for issuing the impugned direct nomination ticket. Therefore the 2nd respondent’s actions fail and must be declared invalid.

1St Respondent Case 12. The 1st respondent avers that he is a member of the Democratic Action Party and has been duly nominated by the Party and is not by any stretch of imagination or fact, a late entrant into the race for the position in issue.

13. The said 1st respondent avers that he is the nominee for the post of Member of National Assembly, Shinyalu Constituency in accordance to and in compliance with the Constitution of Democratic Action Party, the 2nd respondent herein.

14. He denies that he or the 2nd respondent have acted in contravention of unspecified party nomination rules and the party constitution.

15. Further, he denies knowledge of any dispute in relation to his nomination filed in any party organ and further denies being served with the letters of complaint alluded to and attached to the complainants bundle of claim.

16. He submits that this complaint is made in bad faith, meant to detract the parties from the election process which is time bound and has specific timelines and is made in absolute bad faith and should not be entertained by the Honorable Tribunal but is instead ripe for dismissal with costs.

2nd Respondent’s Case 17. It is the 2nd respondents case as submitted vide its replying affidavit sworn by. Hon. Dr. David Eseli Simiyu, the Secretary General of the said 2nd respondent , that the claimant’s claim before this honourable Tribunal is res judicata, vexatious, incompetent, misconceived, an abuse of the court Process and it’s a non-starter, brought mala fides ab initio and should be to struck out or otherwise dismissed with costs.

18. He submits that the claimant’s affidavit is defective as it has not been dated by the Commissioner of Oaths making it defective and inadmissible under Order 19 of the Civil Procedure Rules,2010 and that at any rate, the entire affidavit as whole is incompetent.

19. He further submits that the nomination application/declaration form adduced and alleged to have been issued by the 2nd Respondent, does not bear any name or initials of a receiving officer accompanying the acknowledgement stamp as is the norm adopted by the 2nd Respondent when issuing out nomination/declaration forms.

20. He submits that the alleged anomaly makes the legitimacy of the form adduced by theclaimant dubious as in deed the acknowledgment stamp is not a common seal nor is it a witnessed stamp and cannot be held to be the conclusive proof of receipt of the document as alleged.

21. The said deponent submits that the claimant’s Claim is devoid of merit in that he has failed dismally to demonstrate as legally required, that there is any just cause to warrant this Honourable Tribunal to issue the orders sought.

Issues For Determination 22. The circumstances the issues before us are:a.Did the Complainant subject his claim to IDRM to any required standard?b.Is the complaint merited?c.What orders should we make?

Analysis 23. The PPA [Political Parties Act] at section 40 provides the Jurisdiction of 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; and (fa) disputes arising out of party nominations.

24. The current wording of section 40 (2) is as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

25. There are ample authoritative pronouncements on the issue of IDRM before the party in order that this Tribunal can be seized of jurisdiction. This Tribunal has stated, times without number, that it takes seriously the legal edict in section 40(2) of the Political Parties Act, 2011. The Tribunal will always require parties to demonstrate compliance with the provision of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

26. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4;Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others(Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (ComplainantNo 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement another (Complaint No 237 of 2017), para 24, this tribunal stated that:We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

27. It merits noting that the fore-cited cases were delivered before the Political Parties Actwas amended vide the Political Parties (Amendment) Act 2021. There was a significant shift in the wording of section 40(2) of the Act. The Section previously read as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

28. The current wording of section 40 (2) is as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

29. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment was meant to accord the law with our previous pronouncements and those of the courts.

30. The Complainant herein has clearly demonstrated an attempt to raise a concern with his party. For example his letter addresses to the Chairman of the National Elections Board DAP Kenya has a clear title “ appeal against the party decision to award a nomination certificate to Kizito Mugali in Shinyalu constituency”. How much clearer could have the intention been made?

31. The said letter has a clear dated receipt stamp of the party on its face. The 2nd Respondent through the Replying Affidavit sworn on its behalf by its Secretary General questions the receipt stamp but does not on the other hand annex what is otherwise the correct receipt stamp.

32. There has clearly been an attempt to explore IDRM and as such this Tribunal is properly seized of jurisdiction.

Is Complaint merited? 33. The Complainants bundle of documents uploaded includes a branded receipt for 150,000 Kshs. paid as nomination fees by the Complainant. Also attached is a computer generated list listing aspirants for various positions fielded by the party and it is clear that the Complainants name is missing. Also included in the bundle are his letters of complaint, seeking clarification and information from his party as to the nomination for the position in issue.

35. These documents tell a story, a story of expression to participate, an outcome and questions against the outcome.

36. The 1st respondent as well as the 2nd respondents on the other hand merely deny and point out technicalities but fail, on their part, to present documents or information that would dent the Complainants case and in deed show that he has not satisfied the first stage of putting forward his case.

37. In the circumstances all we have before us show that the complainants case is warranted.

Disposition .We therefore order as follows:a.That the 1st respondent, Kizito Mugali’s nomination certificate issued by the 2nd respondent Democratic Action Party of Kenya in respect of Member of Parliament position in Shinyalu constituency in the coming general elections of August 2022 is hereby revoked.b.That the nomination process conducted by the 2nd Respondent which resulted in the issuance of a nomination certificate to the 1st Respondent as the 2nd respondents’ ticket holder for Shinyalu Constituency Member of Parliament position is null and void.c.That the 2nd respondent herein Democratic Action Party of Kenya conduct a fresh nomination process within 72 hours of the date of this judgment.d.Costs of the complaint is awarded to the Complainant herein as against the 2nd respondent herein .e.That notification of this decision issue to theinterested party herein

DATED THIS 15TH DAY OF MAY 2022M. L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)