[2022] KEPPDT 1004 (KLR)

Maalim v United Democratic Alliance; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E137 (NRB) of 2022) [2022] KEPPDT 1004 (KLR) (10 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1004 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E137 (NRB) of 2022

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

September 10, 2022

Between

Abdullahi Bashir Maalim

Complainant

and

United Democratic Alliance

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant is a duly registered member of the 1st Respondent. He applied to be nominated as Member of County Assembly, Machakos County, under the minority category. He claims that his application was premised on his unwavering contribution to party activities including selling the party’s manifesto in Machakos County, and campaigning for the party’s presidential candidate.

2. He was subsequently nominated by the 1st Respondent as Member of County Assembly-Minority Groups and his name appeared at position number 3 in the party list that was published by the interested party on July 27, 2022. The list was also posted in the interested party’s website where she retained the same position.

3. However, it is the Complainant’s case that he was shocked to learn that the 1st Respondent submitted a new list that was published in the interested party’s website on the August 24, 2022. The subject list published on the August 24, 2022 had been changed under circumstances unknown to the Complainant and it did not have the Complainant’s name.

4. The Complainant tried to engage the party officials in a bid to resolve the issue internally with no success. He has accordingly moved this Tribunal and he prays for the following reliefs;a.That a declaration do hereby issue that the party list published by the interested party in their website portal on the August 24, 2022 at the behest of the respondent in readiness for gazettement is illegal, null and void in respect to the Minority Group list from Number 1 to 8 all inclusive.b.That the Respondent and the Interested party is hereby directed to adopt and gazette respectively in accordance to the party list submitted by the 1st respondent and published in the local daily (Standard Newspaper) and consequently, published in the interested party website save for changes effected vide the decisions of the different Dispute Resolutions Mechanisms available for disenfranchised parties.c.That the Respondent bears the costs of this Complaint.

The Response 5. The Respondent and Interested Party did not enter appearance despite having been duly served.

Analysis and Determination 6. Flowing from the parties’ pleadings and submissions, we have isolated the following issues for determination:-i.Whether the Tribunal has Jurisdiction to hear and determine this matter.ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to grant.

Whether the tribunal has jurisdiction to hear and determine this matter. 7. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011 (the PPA), which provides 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

2. 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."

8. The instant Complaint being one arising from nominations, Section 40(2) of the PPA requires that the Complainant adduces evidence of an attempt to subject the dispute to the Respondent’s IDRM prior to moving the Tribunal.

9. What amounts to an attempt at IDRM, however, depends on the circumstances of a particular case. This Tribunal has considered the matter previously and issued guidelines inJohn Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No E002 of 2022) wherein 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 that, 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. ”

10. The Tribunal has scrutinized whether it has been demonstrated that there was an attempt made by the Complainant to subject the dispute to the Respondent’s IDRM. The Complainant has adduced a letter dated August 24, 2022, addressed to the Secretary General of the Respondent requesting the Respondent to address his non-inclusion to the party list published on August 24, 2022. The letter has not been responded to by the Respondent.

11. We are of the considered opinion that the Respondent should have at the very least responded to the letter. Such was the consideration of the Court of Appeal in the case of Samuel Kalii Kiminza vs Jubilee Party & Another (2017) eKLR, where it was observed as follows: -“… 26. Further, we cannot help but note that the Appellant wrote to the 1st Respondent not once but twice and none of these letters elicited any response from the 1st Respondent.The Appellant is a member of the 1st Respondent having paid the requisite fees. The Appellant had also paid Kshs 250,000/= in order to be eligible to take part in the nomination exercise for the position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1st Respondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters and advise him on the right way to go about the appeal. Having failed to do so we hold that the Appellant was entitled to approach the PPDT and that the PPDT therefore had jurisdiction to hear and determine the matter…”

12. In a nutshell, taking into consideration the foregoing, we find that the Complainant has demonstrated that he made an honest attempt at IDRM in vain and that we accordingly have jurisdiction to hear and determine this matter. The Complainant is therefore properly before the Tribunal.

Whether the complaint is merited and what are the appropriate reliefs to grant? 13. As we consider this issue, we remain alive to the established legal position that the preparation of party lists is within the province of political parties. In the case of Lydia Mathia vs Naisula Lesuuda & another, [2013] eKLR Court of Appeal observed that;“The definition of “party lists” under section 2 of the Elections Act suggested ownership of the list by the political party that has prepared it. The practice, indeed the law is that the power over who gets the reserved seats resides with the parties themselves and no other authority.”

14. Similarly, In the case of Linet Kemunto Nyakeriga & another v Ben Njoroge & 2 others [2014] eKLR, the Court of Appeal stated:-“…Two new concepts have emerged in our electoral laws; party list and priority of the names in the list. Party list voting systems are widely used elsewhere in the world (particularly in Western democracies) and are designed to ensure that parties are represented proportionally in the legislature and all groups are also fairly represented. There are two broad types of party list system; closed list and open list. Whatever the case, in the party list, as the name suggests, each party lists its candidates as it may be entitled…It follows that it is the responsibility of the parties to choose their preferred candidate and rank them in order of priority of preference. The seats won by each party are filled by candidates in the order they appear on the parties’ respective list. The definition of “party list” under Section 2 of the Elections Act suggests ownership of the list by the political party that has prepared it. The practice, indeed the law, in jurisdictions with a closed list system is that the power over who gets the reserved seats resides with the parties themselves and no other authority…”

15. Turning to the facts of this case, the gravamen of the Complainant’s case is that he is challenging his non-inclusion to the Member of County Assembly, minority groups category in Machakos county assembly party list dated August 24, 2022. This is notwithstanding the fact that his name had been published by the interested party on July 27, 2022 at position 3 under the minority group.

16. We reckon that the rules of fair administrative action require that a person affected by a decision be granted an opportunity to be heard and to be given reasons for any decision reached. Decisions by political parties are not an exception. This position has been underscored in many decisions of this Tribunal.

17. In Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that:-‘… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.’

18. Further in Zaituni Abdallah Kabocho v Jubilee Party [Complaint No 545 of 2017] at par 12, we observed as follows;‘As we have in several cases, including Elijah Omondi v Orange Democratic Movement and another Complaint 251 of 2017, political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours. The Claimant was not informed of the reasons the Respondent now puts forward as justifications for removing the Claimant’s name from the list.’

19. In the foregoing circumstances, absent any explanation that has been furnished, we find it improper that the Respondent removed the complainant’s name in the party list published on August 24, 2022 without the Complainant’s knowledge, yet the Complainant had been listed by the Interested party in the party list that was published on July 27, 2022 at position 3 in the minority group. There is no evidence furnished to demonstrate that the Complainant was given a reason for his removal or replacement, or that he was he made aware of any dispute arising from his nomination to serve in the position of Member of County Assembly, Machakos County, under the minority category. We accordingly find that the complaint is merited.

20. Turning to the question of costs, whereas costs follow the event, we have already observed that this Complaint was undefended. We accordingly direct that each party bears its own costs in the interest of fostering party unity.

Disposition 21. In light of the foregoing, we order as follows:-i.That this Honourable Tribunal hereby declares that the Respondent’s party list for position of Member of County Assembly Machakos County under the Minority category (from Number 1 to 6 thereof), published by the Interested Party in their website portal on the August 24, 2022 in readiness for gazettement, is null and void.ii.That the Respondent is hereby directed to reconstitute its party list for the position of Member of County Assembly Machakos County under the Minority category in line with the party laws and in consideration of the interests of the Complainant and all persons whose names had been listed in the party lists published by the IEBC on the July 27, 2022 and August 24, 2022, and to submit the reconstituted party list to the IEBC by close of business on September 12, 2022. iii.That this Honourable Tribunal hereby issues an order restraining the IEBC from gazetting the Members of County Assembly Machakos County under the Minority category pending compliance with order number (ii) above.iv.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)