[2022] KEHC 11025 (KLR)

Makau v Mohamed; Wiper Democratic Movement & another (Interested Parties) (Election Petition Appeal E001 of 2022) [2022] KEHC 11025 (KLR) (Constitutional and Human Rights) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11025 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Election Petition Appeal E001 of 2022

HI Ong'udi, J

June 8, 2022

Between

Marcos Kithuku Makau

Appellant

and

Mohamed Adan Mohamed

Respondent

and

Wiper Democratic Movement

Interested Party

Independent Boundaries Commission

Interested Party

(Being an Appeal form the Judgment and decree of the Political Parties Disputes Tribunal (Hon. Desma Nungo, Hon. Dr. Kenneth Mutuma, Hon. Ruth Wairimu Muhoro, & Hon. Flora M. Maghanga – Mtuweta) delivered on 25th May 2022 In PPDT C Complaint No. E085 of 2022)

Judgment

1. The matter before this court is an appeal dated 27th May 2022 filed by Marcos Kithuku Makau the appellant herein, against the decision of the Political Parties Disputes Tribunal (PPDT) delivered on 25th May, 2022.

2. The appeal raises the following grounds:-i.That the Honourable Tribunal erred in Law and fact in delivering a Judgment and issuing a Decree and /or Orders which was against the weight of evidence presented before it.ii.That, the Honourable Tribunal erred in Law and fact in holding that, the Tribunal had jurisdiction to hear and determine the complaint, in total disregard of the legal framework, which requires that disputes arising from nominations process to be in the first instance be submitted for resolution within the 1st interested party’s Internal Disputes Resolution Mechanisms (IDRM).iii.That, the Honourable Tribunal erred in law and fact in holding that, the respondent in this appeal had exhausted all the legal mechanisms available to him prior to moving to the Tribunal, thus totally misdirecting itself since the respondent did not adduce any tangible evidence to prove that he letters alleged to be sent to the National Elections Board of the Wiper Party, were infact duly served and received by the party.iv.That, the Honourable Tribunal erred in law and fact in failing to appreciate the provisions of Section 2 and 38G of the Political Parties Act, 2021, Section 3, 12 of the Wiper Elections and Nomination Rules, which allows and gives the National Elections Board the mandate to conduct the Party nominations, and that the Provisions further provides for more than one mode of nominaions (the direct and indirect methods), which includes the use of delegates as a legal indirect method of nomination.v.That, the Honourable Tribunal erred in Law and fact in nullifying the nomination of the appellant herein without appreciating the due process which was employed in nominating the Appellant, and forwarding his name to the Independent Electoral and Boundaries Commission.vi.That. The Honourable Tribunal erred in Law and fact in delivering a Judgment which was for all reasons against the political rights of all the Appellants as captured under Article 38 of the Constitution of Kenya, 2010.

3. The appellant therefore prays for the following orders:-a.A declaration that the nomination of the Appellant herein was lawful and or legal.b.An order compelling the 2nd Interested Party to gazette the Appellant as the duly nominated candidate for the Kwa Njenga Ward in Embakasi South Constituency.c.Costs of the Appeal be provided for.

4. The Court gave directions for parties to file and exchange written submissions by 2nd June 2022 at 3p.m. They were reminded that time is of essence. The timelines were never complied with. As I write this judgment none of the parties has filed submissions to the Appeal despite the directions. Only submissions to the notice of motion have been filed.

5. It will suffice to give a brief background to this appeal.

6. The appellant and respondent were among the candidates vying for nomination for the positon for member of County Assembly (MCA) Kwa Njenga Ward on the Wiper Democratic Movement Party. The party conducted its party primaries on 13th April 2022 and the respondent emerged the winner.

7. Complaints arose and after consultations it was agreed that a repeat process be conducted on 28th April 2022 through the delegates system in accordance with Rule 23 of the nomination Rules. This was done by Wiper party, National Elections Board. The respondent emerged the winner and he was issued with the Declaration of winner form and a certificate of nomination. On 12th May 2022 the respondent learnt that in an unexplained scenario the party had issued another nomination certificate to the appellant who was a loser in the nomination exercise.

8. The respondent followed up the matter with the Wiper party chairperson and even did a letter of complaint to the party. His lawyer also did a demand letter to the party, but none elicited a response. He thereafter filed a complaint with the PPDT – (Complaint No. E085 of 2022).

9. At the PPDT he sought the following orders:-i.That an order that the nomination process conducted on 28th April 2022 which returned the Complainant as duly nominated Wiper Democratic Movement aspirant for the position of Member of County Assembly, Kwa Njenga Ward, was valid.ii.That an Order nullifying the purported nomination of the 3rd Respondent as the Wiper Democratic Movement nominee and declaring that nomination, illegal null and void ab initio.iii.That an order do issue to the 1st and 2nd respondents compelling them to nullify the purported nomination of the 3rd respondent and recall his name from the interested party’s list and replace it with that of the complainant.iv.That an order do issue to the interested party to remove the 3rd respondent as the nominated Wiper Democratic movement of County Assembly for Kwa Njenga Ward, Embakasi South Constituency and replace it with that of the complainant.v.That a declaration that the Complainant herein Mohamed Adan Mohamed is the duly nominated Wiper Democratic Movement candidate for Kwa Njenga Ward, Embakasi South Constituency.vi.That the costs of the suit be awarded to the complaint.vii.That any such further orders that the Tribunal shall deem fit to grant.

10. There were allegations of bribery, violence and intimidation against the respondent. The PPDT heard the matter and rendered a decision which is the subject of this appeal.In its decision the PPDT issued the following orders:-i.That the objection to our jurisdiction be and is hereby overruled.ii.A declaration be and is hereby issued that the complainant herein Mohamed Adan Mohamed is the duly nominated Wiper Democratic Movement candidate for Kwa Njenga Ward, Embakasi South Constituency.iii.That the purported nomination of the 3rd Respondent as the Wiper Democratic Movement nominee for the position of Member of County Assembly, Kwa Njenga Ward, Embakasi South Constituency be and is hereby nullified and declared void ab initio.iv.An order be and is hereby issued to the interested party to remove the name of the 3rd respondent as the nominated Wiper Democratic Movement Member of County Assembly for Kwa Njenga Ward, Embakasi South Constituency and replace it with that of the complainant.v.Costs of the complaint are awarded to the complainant.

11. The respondent filed a replying affidavit and a preliminary objection to the appeal. In the affidavit he reiterates that he was the winner of the nominations. He avers that he only went to the PPDT after he was ignored by the 1st interested party and the appellant.

12. In the preliminary objection he states that the appellant did not participate in the proceedings at the PPDT making the court not have jurisdiction to hear the appeal.

13. The appellant has equally sought for conservatory orders to issue pending the hearing of this appeal. As I have already stated none of the parties have filed submissions to the appeal. The petitioner/applicant only filed submissions to the notice of motion contrary to the directions of the court.

14. I have re-evaluated and re-considered the evidence, arguments and submissions put forward before the PPDT. I have equally considered the grounds of appeal, the response and the preliminary objection.

15. It is the appellant’s argument that the PPDT did not have the jurisdiction to entertain the respondent’s complaint. From the evidence before the PPDT both the appellant and respondent who were contestants for the nomination for the MCA for Kwa Njenga Ward. It is also not disputed that the Wiper Party issued nomination certificates to both of them for the same seat. The appellant never contested this nor explained how he got the certificate. Even though he was an interested party, he never participated in the said proceedings.

16. It would have been expected that the Wiper Party would explain how the two certificates came to be issued. Instead they dwelt on their mandate of being the first ones to hear any dispute, before it escalated to the Tribunal. Since the appellant claimed to have been the winner he ought to have appeared before the PPDT to explain how he won and got the nomination certificate.

17. It is true that the Wiper Party as is required under the Political Parties has in place an Internal Dispute Resolution Mechanism (IDRM). The respondent adduced evidence before the PPDT showing how his three (3) letters to the said party were never responded to and how his efforts to reach the party chairperson were in vain.

18. Relying on the case of Samwel Kalii Kiminza v. Jubilee Party and another[2017] eKLR the PPDT held that the respondent had made all efforts to contact the Wiper Party in vain. The only option was for him to go to the Tribunal. The Court of Appeal in the Samwel Kalii Kiminza case (supra) stated thus:-“....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 positon 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 letter 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…” (Emphasis mine)

19. Again besides claiming original jurisdiction to hear the complaint, the Wiper Party never responded to the respondent’s letters and/or guide him on the next cause of action. I therefore find that the PPDT had jurisdiction to hear the matter in view of how the wiper party had handled the respondent’s matter.

20. The appellant claims that he was the one declared the winner by the Wiper Party on 28th April 2022 through the use of delegates. Fair enough, where is his nomination certificate and when is it dated? The respondent produced his nomination certificate and the Declaration of Winner Form.

21. I have keenly scrutinized the certificate of nomination (Annexture MAM 6 certified on 20th May 2022). To my surprise the said document is dated 26th April 2022 yet the nominations are said to have been conducted on 28th April 2022. It means the certificate was signed and issued before the nominations!

It’s not clear how this escaped the PPDT. 22. The bone of contention is the declaration of the winner and the issuance of the nomination certificate. I am very sure had the appellant produced his Declaration of Winner Form and the Nomination Certificate worse things may have been noted.

23. The other issues of fair hearing were well tackled by the PPDT and I have nothing else to add.

24. After considering the material before me and with my finding on the error on the respondent’s nomination certificate which was never noted or explained to the PPDT I find merit in the Appeal. Things must be done in a transparent way. The Wiper Party must comply with its Regulations and the relevant law.

25. The Appeal is allowed with the following orders being issued:-i.The judgment of the PPDT delivered on 25th May 2022 is set aside and the nomination certificate of the appellant Marcus Kithuku Makau is set aside.ii.The PPDT order issuing the certificate of nomination to the respondent Mohamed Adan Mohamed as the Party’s nominee for Kwa Njenga Ward is set aside.iii.The whole exercise of nomination conducted on 28th April 2022 by the Wiper Party is nullified.iv.The 1st interested party to conduct fresh and transparent nominations for its candidate for the Kwa Njenga Ward within the next eighteen (18) hours.v.Each party to bear its own costs.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 8TH DAY OF JUNE, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT