[2022] KEPPDT 925 (KLR)

Mafutu v National Elections Board, Democratic Action Party – Kenya; Wanyonyi & another (Interested Parties) (Complaint E003 (KK) of 2022) [2022] KEPPDT 925 (KLR) (Civ) (14 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 925 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E003 (KK) of 2022

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

May 14, 2022

Between

Gasper Mafutu

Complainant

and

National Elections Board, Democratic Action Party – Kenya

Respondent

and

Erick Wafula Wanyonyi

Interested Party

Independent Election And Boundaries Committee (IEBC)

Interested Party

Judgment

Background 1. The Complainant and the 1st Interested Party herein are members of the Respondent, political Party going by the name Democratic Action Party Kenya.

2. On the 18th of April 2022 the Complainant and said 1st Interested Party participated in the said Respondents party nominations for position of Member of National Assembly for Kabuchai Constituency for the Democratic Action Party – Kenya (DAPK) ticket.

3. When the results were announced, Erick Wanyonyi, the 1st Interested Party was declared winner. The Complainant being dissatisfied with the manner in which the entire exercise was conducted lodged a complaint with the DAP-K Internal Dispute Resolution Committee (IDRC) on 21st April, 2022.

4. Thereafter the 1st Interested Party and the Complainant were on 21st April, 2022 vide text messages sent to their phone numbers by the Chairperson of the IDRC, informed to appear before the said Committee on 22nd April 2022 for hearing.

5. The Complainant attended the hearing but the 1st Interested Party failed to appear before the IDRC.

6. The IDRC heard the case as presented by the complaint and documentary evidence and made the following orders:a.That the order that commends itself is that the respondent herein was not validly nominated. The nomination of the respondent herein made on the 18th April, 2022 be and is hereby revoked and the certificate issued to him is cancelled.b.We hereby order that the nomination certificate for the Member of Parliament for Kabuchai Constituency be issued to the applicant herein Gasper Mufutu Wafubawa, who had fulfilled all the conditions and had it not been for time constraints, this committee would have ordered for fresh nominations. Those are the orders of the Committee.

7. The said political party, being the Respondent herein, failed to adhere to the orders of the party organ and the Complainant thus file the complaint herein seeking the following orders:a.An Order does issue by this Honourable Tribunal, barring the Democratic Action Party-Kenya, from submitting any person’s name other than, Gasper Mufutu, the Complainant, to the Independent Electoral and Boundaries Commission, as the Democratic Action Party candidate to contest for the position of Member of National Assembly, Kabuchai Constituency, pending the hearing and determination of the instant Application.b.An Order of mandamus does issue compelling the Democratic Action Party Kenya to comply with its Internal Dispute Resolution Committee’s Orders of 22nd April, 2022, in DAP-K, Internal Dispute Resolution Committee Application No. 001 Of 2022, to include the name of Gasper Mufutu, as its candidate to contest for the position of Member of National Assembly, Kabuchai Constituency in the forthcoming General Elections.c.An Order does issue barring the Independent Electoral and Boundaries Commission from accepting and/or receiving and/or effecting any such name in its records, other than Gasper Mufutu, the Applicant’s, as the Democratic Action Party-Kenya, candidate to contest for the position of Member of National Assembly, Kabuchai Constituency, pending the hearing and determination of the instant Application.d.That a permanent injunction does issue preventing the Independent Electoral and Boundaries Commission from accepting and/or receiving and/or effecting any such name in its records, other than Gasper Mufutu, the Complainant’s, as the Democratic Action Party-Kenya, candidate to contest for the position of Member of National Assembly, Kabuchai Constituency for the forthcoming General Elections of August, 2022. e.An Order awarding costs of this Complaint to the Complainant.f.Any such other or further orders be granted as the Honourable Court may deem fit.

8. The Respondent though served as shown by the affidavits of service on record, did not respond to the claim.

9. The 1st Interested Party filed their response to the complaint, written submissions as well as the list of authorities and uploaded annexures in support of their response.

10. The 2nd Interested Party filed their response to the complaint vide their response dated 9th May 2022.

The Complainant’s Case 11. The Complainant submits that he was duly cleared by his political party DAP-K to contest for the position of Member of National Assembly, Kabuchai Constituency. The party nominations were duly conducted and the Complainant participated therein.

12. Following the party nomination he lodged a Complaint with the DAP-K Internal Dispute Resolution Committee which vide its Ruling dated 22nd April, 2022, allowed his Complaint and directed that the National Elections Board issue the Complainant with the Nomination Certificate.

13. The Complainant avers that despite the directions by the Party’s Internal Dispute Resolution Committee, the National Elections Board has willfully and deliberately declined to grant the Complainant the nomination certificate for Member of National Assembly, Kabuchai Constituency.

14. He states that the actions by the Respondent are illegal and in contravention of Articles 27, 28, 38, 47, 48 and 50 of the Constitution of Kenya, 2010.

15. The Complainant says that the failure to issue him with the Nomination Certificate pursuant to the Order of the Democratic Action Party-Kenya Internal Dispute Resolution Committee constitutes an illegality and as such the Respondent has acted and continues to act illegally, unreasonably and unlawfully.

16. He adds that the actions by the Respondent are contrary to the principles of good governance and national values as enshrined under Article 10 of the Constitution of Kenya, 2010.

17. He argues that the actions by the Respondent is tainted in illegality, unlawfulness and unreasonableness as it offends his right to fair administrative action, and the right to enjoy the fruits of his judgment.

18. The Complainant avers that the 1st Interested Party did not appeal the decision of the party internal organ.

19. Further he submits that in any event the said 1st Interested Party was not qualified, in line with the party rules, to contest for the seat in issue.

20. He submits that the 2nd Interested Party is included by virtue of his supervisory role over the electoral process.

21. In concluding he submits that his complaint be allowed as prayed.

22. The Respondent though served, did not put in a response.

The 1st Interested Party’s Case 23. The 1st Interested Party avers that the nomination exercise conducted by the Democratic Action Party-Kenya on 18th April, 2022 was properly carried out and that it accorded with the Party's Constitution and that it resulted in the 1st Interested Party being validly nominated by the Kabuchai Constituency delegates of the Democratic Action Party-Kenya.

24. Further, in accordance with the Democratic Action Party-Kenya's Election and Nomination Rules the Complainant had 48 hours to file a complaint with the party's National Appeals Tribunal. The Complainant filed his appeal outside the 48 hour period. By virtue of that his complaint was time barred.

25. The 1st Interested Party further avers that the said complaint was filed with a body unknown to the party, called the Internal Disputes Resolution Committee instead of the National Appeals Tribunal. The said Internal Disputes Resolution Committee lacked jurisdiction to hear and determine the complaint and that its decision was therefore null and void and of no consequence.

26. It is averred that the Complainant never served the 1st Interested Party and the matter proceeded before the Internal Disputes Resolution Committee exparte and upon being notified of the decision of the Internal Disputes Resolution Committee the 1st Interested Party made an appeal to the Party which then revoked the decision of the Internal Disputes Resolution Committee and upheld the 1st Interested Party's nomination as the candidate for the position of the Member of the National Assembly representing Kabuchai Constituency.

27. The 1st Interested Party submits that the Complainant never paid the requisite fee as required by the Rules of the Party and in deed the committee that sat was neither quorate nor appointed by the Party's National Executive Committee.

28. He goes on to affirm that he was validly nominated by the Party and denying him the nomination certificate would be unfair and unjust particularly noting that there is simply no time left for the nomination process to be done again.

29. In addition, the 1st Interested Party has presented a witness statement executed by one David Simiyu Muchele, the chairman of the said DAP Kenya party, confirming that the date on the issued nomination certificate was an error on the part of the party.

30. He has attached his own witness statement where he goes on to state that the nomination process conducted by the party on 18th April 2022 was proper and saw him emerge winner.

The 2nd Interested Party’s Case 31. The 2nd Interested Party states that he is a stranger to the nomination process conducted by the party and thus the complaint, in so far as it relates to the said 2nd Interested Party, need be dismissed with costs.

Issues For Determination 32. We have identified the following issues for determination:a.Was the dispute in respect of the impugned nomination properly addressed within the party?b.What orders should issue?

Analysis 33. It is apparent from the record before us that the Complainant participated in the DAPK nominations for Kabuchai Member of Parliament position, following which he lodged a complaint being ‘Application No. 001 of 2022, with the Internal Dispute Resolution Committee.

34. We have looked at the ‘Election And Nomination Rules Democratic Action Party-Kenya; Amended And Adopted By The National Executive Committee Held On 10th November 2021 at The Dap-K Party Headquarters, Webuye’ which state as extracted below:-22. 0 Disputes Resolution And Appeal Tribunals22. 1 County Appeals TribunalThere shall be established a County Appeals Tribunal in every County each composed of five members of the part who shall be distinguished persons of good moral standing in society and of high integrity.Provided that one third of members of the County Appeal shall be of either gender.Members of the County Appeals Tribunal shall be appointed by the NEB, and approved by the NEC at least 30 days before the commencement of the nomination exercise or Party elections. The Tribunal shall be guided by the Rules of procedure which shall be formulated the NEB.The NEB shall, at the time of appointment, designate one member of the Tribunal as the Presiding Chairperson.The County Appeals Tribunal shall determine appeals arising from Polling Station, Sub Branch, Branch party elections, and appeals arising from nominations in respect of County Ward representatives.No member of the Tribunal shall during his/her tenure of office be a Party official or an aspirant in any Party election or nomination.Any candidate aggrieved by the outcome of Party elections in the Branch, Sub-Branch, or Polling Station shall have the right of appeal to the County Appeals Tribunal within 48 hours of the announcement of results.The appeal shall be in writing and duly signed by the appellant accompanied by a non-refundable fee of Ksh. 100,000/= payable to the Party.The County Appeals Tribunal shall consider and determine the appeal in accordance with the Constitution of Kenya, applicable Law, Party Constitution and Election and Nomination Rules within 48 hours of receipt of the appeal.The Appeals Tribunal may, in its discretion but for good reason to be recorded, consider the written appeal and make its decision or make directives without the need to hear the appellant in person.The Appeals Tribunal shall, in suitable cases, have powers to summon the Returning Officer responsible, Party witnesses with relevant evidence and after due consideration dismiss the appeal, order re-count or re-tallying of votes or otherwise nullify the result of the elections and order a repeat thereof.

35. The complainant addressed his complaint to the party and paid the requisite fees as shown in his annexure on his affidavit sworn on 9th May 2022 in respect of the proceedings herein.

36. The bundle of documents filed with the complaint herein included the ruling of the party organ which in the body thereof confirmed summoning the parties to appear before them. In addition, we note that the said ruling is signed by 3 Members.

37. We do not see anywhere in the rules as extracted above, provision on quorum other than to stating that it would comprise 5 members and take into account the a third gender representation rule.

38. We cannot therefore agree with the 1st Interested Party’s position that the Complainant submitted his appeal to an unknown organ within the party.

39. It is the Respondent, who has the mandate, according to the rules to constitute the body at the county level and indeed to channel a complaint lodged before it in writing and duly paid for, before the correct organ.

40. Had the 1st Interested Party presented himself before the party organ his concerns on address of technicalities, such as filing outside time should have been addressed at that point.

41. At this stage our point of note is that the Complainant followed the rules in raising his complaint and both parties were accorded opportunity to be heard. In deed as stated the party organ indicates in its ruling that communication was sent out to both parties.

42. The said Committee ordered the DAP-K National Elections Board to grant the Complainant the nomination certificate for Kabuchai Constituency.

43. In making this determination the said party Committee had referred to evidence presented before it, as required under the party nomination rules.

44. We can find no fault with the internal party process to which the complaint, by the Complainant herein, was subjected.

45. Was the said decision by the party organ at the county level final?

46. We note that the DAP nomination rules referred to herein establishes at part 22. 2 National Appeals Tribunal before which an appellant shall, on appeal, pay a non-refundable fee of Ksh.300,000/- to the Party.

47. We have not seen any documents from the said 1st Interested Party showing that he appealed the decision of the county organ to the national organ.

48. The averment by the said 1st Interested Party therefore that his appeal won and the issuance of a nomination certificate to him reinstated cannot therefore, in our consideration, stand. He chose not to attend the party Committee or appeal in line with the party laws and did not appeal and pay the requisite fee as per the party rules.

49. It is imperative the members of political parties act in accordance to the rules and indeed by converse political parties must respect orders from legal organs created by their own constitutions and rules, particularly where the organs established is as required by the Political Parties Act for good order.

Disposition 50. In light of our analysis we order as follows:a.An Order of mandamus does hereby issue compelling the Democratic Action Party Kenya to comply with its Internal Dispute Resolution Committee’s Orders of 22nd April, 2022, in DAP-K, Internal Dispute Resolution Committee Application No. 001 OF 2022, to present the name of Gasper Mufutu, as its candidate to contest for the position of Member of National Assembly, Kabuchai Constituency in the forthcoming General Elections of 9th August 2022. b.That the Respondent do forthwith issue the nomination certificate for Kabuchai constituency MP candidate on the Democratic Action Party-Kenya ticket to the Complainant herein, Gasper Mafutu.c.That the costs of this complaint are awarded to the Complainant as against the Respondent.d.That notification of this order issue to the Interested Parties.

DATED THIS 14TH DAY OF MAY 2022. M.L. ODONGO(PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)DR. LYDIAH WAMBUI(MEMBER)