[2017] KEHC 3200 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ELECTION NOMINATION APPEAL NO. 34 OF 2017

MAURAY ASEWE OUKO......................................1ST APPELLANT

JUDITH AKINYI AJWALA....................................2ND APPELLANT

VERSUS

ORANGE DEMOCRATIC MOVEMENT......................RESPONDENT

INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION).......................INTERESTED PARTY

(Being an appeal from a decision of the Political Parties Disputes

Tribunal (PPDT)in Complaint No. 414 of 2017(consolidated

with Complaint No. 416 of 2017)made on 28th July 2017)

JUDGMENT

1. The grounds of appeal are set out in the memorandum of appeal herein dated 17th August 2017, and filed herein on 18th August 2017. It is pleaded that the PPDT had failed to find that the Respondent failed to follow its own constitution in compiling the party list the subject of the proceedings, it erred in failing to find that the Respondent disregarded the party list prepared by its Siaya Branch after consultation with stakeholders, it erred in its judgement in allowing the Respondent room to perpetuate the wrongdoing, among other grounds.

2. The factual background to the matter is that the Appellants had been recommended to the Respondent by the Siaya People with Disabilities Network, for nomination to the Siaya County Assembly to represent persons with disability. The Interested Party published in the daily newspapers, including the Sunday Nation of 23rd July 2017, names of the persons forwarded to it by political parties for nomination to county assemblies. The Appellants complain that their names were not on the list, instead there was only one person proposed to be nominated to represent women with disabilities, and none was proposed for nomination to represent men with disabilities. They further contend that the person proposed was not a member of the Respondent. The PPDT gave the Respondent time to consider the applications by the Appellants and to give reasons for whatever decision that it would arrive at thereafter. This appeal before arises from that judgement.

3. Before I can consider the appeal before me on merits, I should first of all consider whether the same is properly before me. That was not raised before me, but it is a matter of primary importance that I should take into account nevertheless, bearing in mind the recent decisions in similar matters in such cases as Jubilee Party of Kenya vs. Catherine Jeptoo Mapingwony Nairobi Election Nomination Appeal No. 17 of 2017 and Jubliee Party of Kenya vs. Mohamed Abdikadir Salah Nairobi Election Nomination Appeal No. 22 of 2017. In my own decision in Jubilee Party of Kenya vs. Henry Wanyoike Wahu Election Nomination Appeal No. 33 of 2017, I held that the PPDT had no jurisdiction over a dispute relating to the contents of a party list that has already been submitted to the Interested Party.

4. The matter of nomination of members of the county assembly from party lists to represent special groups has its basis in the Constitution. The relevant provisions are Articles 90 and 177. The starting point is Article 177 which provides as follows –

‘(1) A county assembly consists of –

(a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;

(b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;

(c) the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and

(d) the Speaker, who is an ex office member.

(2) The members contemplated in clause (1)(b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90. ’

5. Article 90 provides that –

‘(1) Elections … for the members of the county assemblies under 177(1) (b) and (c), shall be on the basis of proportional representation by use of party lists.

(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervisions of elections for seats provided for under clause (1) and shall ensure that –

a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation;

b) except in the case of the seats provided for under Article 98(1)(b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in priority in which they are listed; and

c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.’

6. Articles 90 and 177 of the Constitution are implemented through the Elections Act, No. 24 of 2011. The relevant provisions being sections 34 and 35, which provide as follows –

‘34(1) The election of members of the National Assembly, Senate and county assemblies for party list seats specified in Articles 97(1)(c) and 98(1)(b)(c and Article 177 (1)(b) and (c) of the Constitution shall be on the basis of proportional representation and in accordance with Article 90 of the Constitution.

(2). …

(3). …

(4). A political party which nominates a candidate for election under Article 177(1)(a) shall submit to the Commission a party list in accordance with Article 177(1)(b) and (c) of the Constitution.’

35(1) A political party shall submit its party list to the Commission on the same day as the day designated for submission to the Commission by political parties of nominations of candidates for an election before the nomination of candidates under Article 97(1)(a) and (b), 98(1)(a) and 177 (a) of the Constitution.’

7. From the factual background that I set out hereabove, in paragraph 2, the Respondent came up with a party list, which it submitted to the Interested Party and which the Interested Party published in the daily newspapers, including the Sunday Nation of 23rd July 2017. The Appellants have unhelpfully, omitted to attach copies of the lists submitted to the Interested Party by the Respondent, limiting themselves to the list published by the Interested Party.

8. The mandate of the Interested Party to resolve election nominations disputes is set out in the Constitution and in the Election Act. The relevant provisions are Article 88(4) of the Constitution and section 74 of the Election Act, which state as follows –

’88(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or established by this Constitution, and any other election prescribed by an Act of Parliament and, in particular, for –

a) …

b) …

c) …

d) …

e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and subsequent to the declaration of election results;

f) …

g) …’

‘74(1) Pursuant to Article 88(4) (e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.

(2) …

(3) …where a dispute relates to a prospective nomination or election, the dispute shall be determined before the nomination or election, whichever is applicable.’

9. The party list in question in this matter was submitted to the Interested Party by the Respondent in accordance with section 35(1) of the Elections Act. The Interested Party published the names in the list in daily newspapers, meaning that it was by then seized of it. The disputes taken to the PPDT by the Appellants were after the party list had been submitted to the Interested Party and the Interested Party had taken the step of publishing the same in the daily press.

10. I have not seen any provision in the law which allows scrutiny by the PPDT of processes in the hands of the Interested Party, and I am not aware of any. A party unhappy with the contents of a party list in the hands of the Interested Party has a right of recourse only to the internal disputes mechanisms of the Interested Party, in accordance with Article 88(4) of the Constitution and section 74 of the Election Act. The PPDT has no jurisdiction whatsoever over such lists.

11. The jurisdiction of the PPDT is stated in section 40(1) of the Political Parties Act No. 11 of 2011, which provides as follows –

‘(1) The Tribunal shall determine -

(a) disputes between the members of a political party;

(b) disputes between a members of a political party and a political party;

(c) disputes between political parties;

(e) disputes between an independent candidate and a political party;

(e) disputes between coalition partners; and

(f) appeals from decisions of the Registrar under this Act …’

12. My understanding of section 40(1) of the Political Parties Act is that it only confers jurisdiction on the PPDT over such matters as are set out therein. There is power to handle a dispute over party lists, but only so long as the party list has not been presented to the Interested Party, for once the same is in the hands of the Interested Party, the PPDT loses jurisdiction over any dispute with respect to its contents, for any such dispute is within the province of the Interested Party in accordance with Article 88(4) of the Constitution and section 74 of the Election Act.

13. In view of what I have stated above, it is my conclusion that the PPDT had no jurisdiction to handle the dispute which culminated in the decision the subject of this appeal. If there was no jurisdiction to pronounce the judgement the subject of this appeal, then it follows that the appeal before me cannot be competent. Having held that the appeal before me is not competent, I believe it would be academic to make any findings on the grounds set out in the memorandum of appeal. In view of what I have said hereabove, the appeal herein must fail. I hereby dismiss the same. Each party shall bear their own costs.

DATED, SIGNED and DELIVERED at NAIROBI this 4TH DAY OF SEPTEMBER, 2017.

W. MUSYOKA

JUDGE