[2022] KEPPDT 917 (KLR)

Mathai v Chama Cha Kazi Party (Complaint E011 of 2022) [2022] KEPPDT 917 (KLR) (Civ) (18 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 917 (KLR)

Republic of Kenya

In the Political Party's Tribunal at Nairobi

Civil

Complaint E011 of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

May 18, 2022

Between

Mercy Wanjiru Mathai

Complainant

and

Chama Cha Kazi Party

Respondent

Judgment

1. The case before us emanated from a complaint filed by Mercy Wanjiru Maathai (hereinafter referred to as “the complainant”) an aspirant vying for the position of Member of National Assembly in Kiambu Constituency through the Respondent, Chama cha Kazi Party (hereinafter referred to as “the party”).

2. The complaint is seeking a refund of the nomination fee of Kshs. 100,000. The Respondent on the other hand states that the complaint ought to be dismissed as the nomination fee was nonrefundable and non-transferable once paid.

The Complainant’s Case 3. The Complainant’s case is set forth in the Complaint dated 13th April 2022, the complainant also filed a list of documents, list of witnesses, witness statement, certificate in compliance with section 106B of the Evidence Act and Verifying Affidavit all dated 13th April 2022 and various annexures thereon.

4. The complainant avers that she paid registration fees of Kshs 20,000/- on 2nd March 2022 and subsequently paid Kshs 100,000 on 10th March 2022 as nomination fees for female aspirants vying for the seat as per the nominations extensions notice issues by the party.

5. In a turn of events the complainant states that she received communication from the party leader through WhatsApp to step down from the Member of National Assembly Kiambu Constituency race and finance the party activities with the promise of a future job.

6. Displeased with the request she sought a refund of the nomination fees, which the party leader agreed to. The complainant prays that she is refunded the nomination fees totaling to Kshs. 100,000.

The Respondent’s Case 7. The Respondent’s case is buttressed in the Respondent’s Replying Affidavit sworn by Kimani Nage the Secretary General of the Respondent Party with two annexures. The Respondent also filed submissions dated 14th May 2022

8. The Respondent avers that the complainant was a member of the party with intentions to vie for the Member of National Assembly Kiambu Constituency.

9. The party through official communication asked the complainant to attend a consensus meeting from 13th April 2022 to 15th April 2022 but she elected not to attend at the party headquarters, her lack of participation was taken to believe she was not interested in the process.

10. The Respondent notes that no complaint was raised as per the party constitution at the election dispute resolution tribunal and as such the complainant waived her rights as a candidate.

11. The Respondent notes the text message the complainant relies on was not from the party but a member of the party with no official position aspiring to be the Kiambu Governor as per the nomination certificate issued by the party on 18th April 2022.

12. In view of this the respondent avers that the complaint is bad in law and lacking in merit and ought to be dismissed with costs.

Tribunal Analysis 13. The tribunal has carefully considered and reviewed the pleadings and evidence before us and find that there is one sole issue for determination that we will address ourselves to.

I. Whether the complainant is entitled to a refund of the nomination fees from the respondent. 14. The complainant paid the nomination fees and was issued with a receipt number 131 dated 11th March 2022 to secure her position as an aspirant vying for the position of Member of National Assembly in Kiambu Constituency.

15. Upon such payment the complainant has argued that she acquired a legitimate expectation that she would be invited to a fair and competitive nomination process. However, she was on 28th March 2022 asked to step down by the party leader.

16. On the question of legitimate expectation we are guided by Council of Civil Service Union v Minister for Civil Service[1985] 1 A.C.374 (at pages 408-409), where Lord Diplock held that for legitimate expectation to arise, the contested decision must have the effect of depriving one some benefit or advantage, which he had been permitted in the past by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to enjoy, or he has received assurances from the decision- maker that it will not be withdrawn without giving him an opportunity to advance reasons for non-withdrawal.

17. In this regard we will review the conduct of the respondent upon receipt of the fees. The Respondent states upon payment of the requisite monies, it invited complainant to attend the consensus meeting, which she failed to attend.

18. The respondent has argued that it has never in its official capacity engaged with the complainant to drop or resign from the party and therefore failure to attend the consensus meeting without raising any objection to the internal dispute resolution committee was indicative of her lack of interest and a waiver of her rights as a candidate.

19. We note that section 16 of the Political Parties Act donates authority to the party and not an individual to conduct the affairs of the party and the complainant rightly ought to pursue her complaint against it. However, this complaint cannot be pursuant to the representation of a member of the party who does not represent the organs of the party in any capacity. We find that purported party leader is therefore a stranger before us as there is no evidence before us showing that his position was stated on behalf and/or with the authority of the party.

20. The tribunal on the doctrine of waiver is guided by the case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR; where the Court considered whether the doctrine of waiver, estoppel, and acquiescence applied. The Court stated that;“The doctrine of waiver operates to deny a party his right on the basis that he had accepted to forego the same rights having known of their existence. The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. See Seascapes Limited v Development Finance Company of Kenya Limited, [2009] eKLR. The words waiver, estoppel and acquiescence have also been defined by the Halsbury's Laws of England, 4th Edition, Volume 16. At page 992 waiver has been defined as follows: -Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge. A person who is entitled to rely on a stipulation existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right... The waiver may be terminated by reasonable but not necessarily formal notice unless the party who benefits by the waiver cannot resume his position, or termination would cause injustice to him?”

21. Guided by the determination of the superior court, we find the complainant deficient on various accounts, first the complainant did not pursue any internal party dispute resolution mechanisms upon the allegation that she was asked to step down by the party leader. Second, the complainant despite payment of the nomination fees did not attend the consensus meeting.

22. An interrogation of the complainant’s conduct is inconsistent with that of a party who would be interested in pursuing the Member of National Assembly Kiambu Constituency and we find that as such she waived her rights to a competitive nomination process.

23. Noting this the next issue is whether she ought to be refunded her nomination fee. The aforesaid receipt bears the Respondent’s party logo, is signed and denoting that the monies were indeed received. More important, as pointed out by the Respondent the receipt at the bottom states:“Nomination Fees once paid are non-transferrable and non-refundable”

24. We note that it is trite law that documentary evidence is the best evidence and there was no objection to the authenticity of the receipt. We rely on the determination of the superior court in In re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu – Deceased [2016] eKLR where the court held that:The best evidence rule is a legal principle that holds an original copy of a document as superior evidence. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, means that so long as the higher or superior evidence is within the possession of a party, or may be reached by the party, no inferior proof will be allowed.

25. To this end, we find that the complainant waived her rights to pursue the position of Member of National Assembly in Kiambu Constituency and is not entitled to a refund of the nomination fees.

26. The justice of this case requires us to make the following orders:

27. Final Ordersi.The complaint is dismissed in its entirety.ii.In the interest of party unity, each party to bear their own costs.

28. These are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 18TH DAY OF MAY 2022. HON. LIGUNYA STEPHENPRESIDING MEMBERHON HASHI AMINAMEMBERHON ANDREW WARUHIUMEMBER