[2022] KEPPDT 931 (KLR)

Matere v Chairperson Amani National Congess Party & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E018 (KK) of 2022) [2022] KEPPDT 931 (KLR) (Civ) (14 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 931 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E018 (KK) of 2022

M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members

August 14, 2022

Between

Dorice Atuo Matere

Complainant

and

The Chairperson Amani National Congess Party

1st Respondent

The Secretary General Amani National Congress

2nd Respondent

Amani National Congess Party

3rd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. On August 3, 2022, the complaint herein was lodged before this Tribunal with its Kakamega Bench. It is lodged by the Complainant, who is a described as a member of the 3rd respondent, Amani National Congress party [hereinafter ANC]. The 1st and 2nd respondents are national officials of the said ANC party.

2. The complaint which was filed under certificate of urgency and was accompanied with a notice of motion application, was certified urgent and the following orders issued:-i.That the complaint dated August 3, 2022, the notice of motion application of even date and all the supportive documents filed therewith be served upon the Respondents and Interested Parties immediately and in any event by 11 am [11:00 hours] on August 4, 2022. ii.That the respondents and interested parties file their responses to thesaid complaint and notice of motion application by 3 pm on August 4, 2022. [emphasis our own]iii.That the complainant file an affidavit showing return of service effected.iv.That this matter be listed for hearing before the Kakamega PPDT Bench on August 4, 2022 at 4. 30pm [16:30 hours] virtually via video link.

3. The matter hung in limbo until August 10, 2022 when an Affidavit showing return of service effected was lodged in the portal.

4. The matter was subsequently set down for hearing with the directions that a hearing notice, together with the complainants written submissions be effected upon the respondents and interested party and that an affidavit showing the service be filed.

5. The notice of motion sought the following orders:-a.Spentb.Pending the inter parties hearing of this application, the Tribunal be pleased to issue an interim order restraining the 2nd interested party, The Independent Boundaries Commission, IEBC from publishing in the Kenya Gazette and or issuing a certificate of compliance to the 3rd respondent on account of the impugned party list for Kakamega County Assembly.c.Pending the hearing and determination of this application and complaint the Tribunal be pleased to issue an interim order restraining the 2nd Interested Party, the Independent Boundaries Commission, IEBC, from publishing in the Kenya Gazette and/or issuing a certificate of compliance to the 3rd Respondent on account of the impugned party list for Kakamega County Assembly.d.Any other appropriate order that the honourable tribunal may deem fit in the circumstances.e.The costs of this application and complaint be awarded to the complainant/applicant.

6. In addition to this application was the complaint which sought the following orders:-i.An order, be and is hereby issued compelling the Respondents to revise the 3rd respondent’s Kakamega County Assembly Gender Top Up list to have the Complainant/Applicant Dorice Atuo Matere, appearing at the position number 9 and at number 7 on the women list.ii.A declaration be and is hereby issued that the nominees at positions 2, 3, 6, 9, 14 and 16 are not eligible to be on the 3rd respondents Kakamega County Assembly Gender Top Up Party List.iii.That the complainant/applicant Doris Matere of National identity card number 25355819, be and is hereby deemed as number 1 in the 3rd Respondents Kakamega County Assembly gender top up Party List.iv.Costs of the application and complaint be awarded to the complainant/applicant.

The Complainants’ Case 7. It is the complainants case that after ANC put up a call for applications to the party nominations list, she applied and went through a vetting process that saw her score 52 and thus placed at number 9 in the Kakamega County Assembly nomination list for ANC.

8. The Complainant is aggrieved that contrary to the outcome at the Kakamega County ANC vetting, the list that ANC submitted to IEBC included persons who had not even applied for consideration. The said wrongfully included persons are listed at numbers 2, 3, 6, 9, 14 & 16 in the said party list.

9. The complainant further submits that having been placed in the list, she had legitimate expectation that her name would be submitted to the IEBC and that in any event any amendment/change or re-positioning of her name in the list would involve her participation and/or consultation.

10. It is alleged in the complaint that only 43 people were vetted for inclusion to the Kakamega nomination list and it is thus quite odd that the list as published in the Daily paper has 55 names in the said Kakamega list.

11. The Complainant thus avers that the complaint is merited.

12. This being an undefended case, we shall now proceed to identify issues and analyze them.

Issues for determinationa.Is this Tribunal properly seized of jurisdiction?b.Is complaint justified?c.What orders should issue?

Our Analysis Whether PPDT has jurisdiction 13. It is stated in the face of complaint that there has not been any effort to solve the matter internally as the Elections Board did not communicate its finding beforehand nor did it give opportunity for resolution within the 24 hours that were allowed for resolution of disputes. The complaint is drafted by the advocate on record on behalf of the Complainant.

14. This statement in the complaint would immediately oust this Tribunal of jurisdiction as the Political Parties Act is clear on what is required before this Tribunal can be seized of jurisdiction.

15. However, we have noted that the supporting affidavit sworn on August 3 by the complainant in support of the complaint states at paragraph 12 that the ANC party has failed to address the concerns of the Complainant, despite her having raised the same internally and that thus (at number 13) this Tribunal is properly seized of jurisdiction. We take cognizance of this as we consider the issue of jurisdiction.

16. It is clear that the parties before this Tribunal have right of audience having properly been identified as persons over whom this Tribunal can exercise jurisdiction, being members of a political party, and the political party, the question of jurisdiction turns on section 40 (2) of the Political Parties Act [PPA].

17. The current wording of section 40 (2) PPA states 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.

18. It is not controverted that the complainant sought to resolve the matter internally and it is thus our consideration, that the complainant first raised concern with the party, as anticipated under section 40 (2) of the PPA, before presenting this complaint before us and thus we are properly seized of jurisdiction.

Is the complaint justified? 19. The complaint bundle includes the notice calling for applications for nomination to the Kakamega County Assembly party list, ANC membership certificate in the name of the Complainant, the marking scheme and the list of nominees for Kakamega. These documents are not on the ANC letter head.

20. Additionally, in the complaint bundle is a list on an ANC letter head and titled Kakamega County Assembly Gender Top Up list. The Complainants name indicating her ID number is at the top of the said annexure.

21. It is apparent from the documents we have looked at, that the Complainant successfully applied for inclusion in the ANC Kakamega County Assembly Gender Top Up List. And that her name had been included in the list.

22. We do not find that there is sufficient information presented before us that supports the Complainants allegation that some members included in the impugned list do not qualify.

What orders should we issue? 23. Our orders were clear that we would proceed to conclusively determine this matter and issue a final judgment having deemed it prudent, given the elections timelines,that we proceed with both the Notice of Motion application and the complaint.

24. Having considered the case as presented including the prayers sought we will proceed to grant appropriate orders.

Disposition 25. In light of our analysis, and given the election timelines we order as follows.a.That Amani National Congress (ANC) Party include the name of the Complainant herein Doris Atuo Matere of National identity card number xxxxxxxx as number 1 (one) in the said ANC Kakamega County Assembly Party Nomination List under the Gender Top Up Category.b.That notification of this order issue to the Independent Electoral and Boundaries Commission.c.The Complainant is awarded costs of this complaint as against the 3rd Respondent herein.

Dated the 14th day of August 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)PPDT COMPLAINT NO. E018/22 ORIGINAL FINAL JUDGMENT KAKAMEGA 4