[2017] KEHC 3772 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION APPEAL NO. 128 OF 2017

THE ELECTIONS ACT 2011

IN THE MATTER OF THE CONTRAVENTION OF ARTICLES

38,47 AND 50OF THE CONSTITUTION OF KENYA

IN THE MATTER OF CONTRAVENTION OF SECTIONS

39 AND 40 OF THE POLITICAL PARTIES ACT

MOFFAT MAITHA MUIA................................................................................APPELLANT

VERSUS

FRIDAH MUENDI................................................................................1ST RESPONDENT

JUBILEE PARTY................................................................................2ND RESPONDENT

INDEPENDENT ELECTORAL BOUNDARIES COMMISSION.....INTERESTED PARTY

(Being an Appeal from the Judgment of the Political Parties Dispute Tribunal

at Nairobi delivered on 29th June, 2017 by Hon. Milly Lwanga Ondongo,

Hon. James Atema & Hon. Hassan Abdi in PPDT Complaint No. 307 of 2017)

FRIDAH MUENDI...........................................................................................APPELLANT

VERSUS

MOFFAT MAITHA MUIA.....................................................................1ST RESPONDENT

JUBILEE PARTY...............................................................................2ND RESPONDENT

INDEPENDENT ELECTORAL BOUNDARIESCOMMISSION....INTERESTED PARTY

JUDGMENT

1. The appeal before me emanates from the decision of the Political Parties Disputes Tribunal (hereinafter referred to as PPDT) rendered on the 29th May, 2017 in which the appellant’s complaint No. 307/2017 was dismissed.

2. The appellant herein Moffat Maitha Muia together with Fridah Muendi (1st respondent), Philip Joseph Ivilu and Evans Ratemo Motuka participated in the Jubilee Party (2nd respondent) party primaries for the nomination of a Member of County Assembly Matungulu West Ward, Matungulu Constituency held on the 27th April, 2017 in which the appellant emerged victorious.

3. Aggrieved with the outcome, the 1st respondent lodged an appeal (Appeal No. 255/17) before the second respondent’s National elections appeal tribunal (herein referred to as “NEAT”) on grounds that the election was marred with massive irregularities and malpractices and that the appellant was not a member of the second respondent (Jubilee Party). Her appeal was consolidated with appeal No. 364/2017 lodged by another candidate Evans Ratemo Motuka based on same grounds.

4. Following exparte proceedings held before the party’s appeals tribunal (NEAT) after the 1st respondent failed to respond to the complaint, a decision was made in favor of the 1st respondent on 11th May, 2017 after finding that the appellant was indeed not a member of Jubilee party. Consequently, the tribunal declared null and void the results declaring the 1st respondent as the nominated member of county assembly (MCA) Matungulu West Ward and therefore declared the 1st respondent as the winner hence directed the party national elections board (NEB) to issue her with the nomination certificate which they did.

5. Upon presentation of nomination certificate to the Independent and Electoral Boundaries Commission (hereinafter referred to as “IEBC”), the 1st respondent’s name was published on 20th May, 2017 as the second respondent’s nominee.

6. Later, the NEB revoked the nomination certificate issued to the 1st respondent upon receiving a complaint from the appellant who allegedly furnished them with proof that he was indeed a bonafide member of Jubilee Party. As a result of that finding, the appellant was issued with a fresh nomination certificate on 9th May, 2017

7. Provoked by the revocation of her nomination certificate, the 1st respondent lodged a complaint before PPDT being complaint No. 307/17 vide notice of motion dated 25th May, 2017 seeking orders restraining IEBC from publishing or gazetting the name of the appellant (Moffat Maitha) as the nominee Matungulu Ward. On 2/6/2017, PPDT ruled in favour of the second respondent (Fridah Muendi) and revoked the nomination certificate issued to the appellant by the second respondent. The tribunal (PPDT) directed IEBC to remove the appellant’s name from the list of nominees and replaced him with the 1st respondent.

8. Upon receipt of these orders, the appellant moved to the high court vide appeal No. 95/17 arguing that he was never served with the application heard before the PPDT exparte and that the orders made condemned him unheard. Justice Sergon on 15th June, 2017 upheld the appeal and directed that the appellant be served and the complaint by the 1st respondent (No. 307/17) be heard afresh.

9. After hearing both parties as directed by the high court, PPDT on 29th June, 2017 delivered its judgment thereby allowing the 1st respondent’s claim and declared her the Jubilee Party nominee based on grounds that the appellant was not a member of Jubilee Party as at 27th April, 2017 when party primaries were held. Effectively, the 2nd respondent was directed to issue the 1st respondent with the nomination certificate and forward her name to IEBC which they did.

10. Confronted by this decision, the appellant lodged memorandum of appeal dated 4th July, 2017 to this court challenging the judgment of PPDT on the following grounds:

a. That the tribunal erred in law in finding that the appellant was a member of NARC and not Jubilee Party as at when Jubilee joint primaries were held at Matungulu Ward.

b. That the tribunal failed to consider tangible evidence on record confirming the appellant’s resignation from NARC party as provided under Section 14 of Political Parties Act.

c. That the tribunal members failed to appreciate and consider Jubilee Party nomination rules thereby arriving at an impugned judgment.

d. That the tribunal errered in law in making final orders nullifying the nomination of the appellant and directing the 2nd respondent to forward the name of the 1st respondent to IEBC for gazettement contrary to party constitution and nomination rules, elections act, political parties and the Constitution of Kenya 2010.

11. The appellant sought for orders as hereunder:

a. That appeal be allowed and judgment of PPDT delivered on 29th June, 2017 be set aside.

b. That appellant be declared the bonafide nominee of the 2nd respondent for the member of county assembly Matungulu West Ward.

c. That the 2nd respondent be directed to forward the name of the appellant to the interested party (IEBC) for gazettement as a duly nominated member of county assembly for Matungulu West Ward.

d. That an order do issue directing the interested party to receive, accept and gazette the name of the appellant accordingly.

12. Filed together with memorandum of appeal is a notice of motion dated 4th July, 2017 filed same day but whose hearing was dispensed with by consent of both parties in favour of the hearing of the substantive appeal. Upon service of the memorandum of appeal and application thereof as directed by the court on 5th July, 2017, the 1st respondent and 2nd respondent filed their respective replying affidavits on 12th July, 2017 and the matter proceeded for hearing the same day.

13. I have considered the petition of appeal herein, materials filed before me and submissions by both counsels. The issues for determination are:

a. Was the appellant a member of NARC party or Jubilee as at 27/4/2017 when Jubilee party primaries for nomination of MCA Matungulu West Ward was held.

b. When is resignation of a member from a party deemed to take effect in accordance with Section 14 (2) (3) of the political parties Act.

c. Were the Jubilee party joint nomination primaries Matungulu West Ward held on 27/4/2017.

d. Can the court order removal of the 1st respondent’s name from the list of nominees held by IEBC at this point in time and substitute with that of the applicant if it finds that the appellant is the bonafide winner (nominee).

14. I wish to start with issue No. 3 as to who won the party primaries. According to the tallying sheets and declaration of results form filed by the returning officer dated 27/4/2017, it was the appellant who emerged the winner with 1130 votes, the 1st respondent 241, Joseph Ivulu 70 and Evans Ratemo 204. This evidence which is attached to the replying affidavit of one Stephen Ombasa Osoro legal counsel for the 2nd respondent in his affidavit dated 30/5/2017 in response to the 1st respondent’s claim No. 307/17 before the tribunal is not challenged. There is no dispute that in terms of majority votes, it was the appellant who emerged top and therefore won the nomination exercise.

15. Going back to ground No. 1, was the appellant a Jubilee party member as at 27/4/2017? According to the 1st respondent’s evidence filed before the Jubilee national elections and appeals tribunal, the appellant was not a Jubilee party member as at 27/4/2017 since he had not resigned from NARC party. Jubilee appeals tribunal (NEAT) found that by 27/4/2017 the appellant was not a member of Jubilee, had no Jubilee party registration number and that a further search at the office of the registrar confirmed that the appellant was a registered member of NARC being registration No. 188065.

16. PPDT upheld the party appeals tribunal verdict. According to Section 14 (b) of the Political Parties Act, a member of a political party who intends to resign from a political party shall give a written notice prior to his registration to (a) the political party

(b) Clerk to the relevant house of parliament, if the member is a Member of Parliament.

(c) The clerk of county assembly, if the member is a Member of County Assembly.

Sub-section 2 goes further to provide: Registration of a member of a political party shall take effect upon receipt of such notice by the political party or clerk of the relevant house or county assembly.

Sub-section 3 further provides that:

“The political party of which the person is a member, the member, or the clerk of the relevant house of parliament or of a county assembly of which the person is a member shall notify the registrar of such registration within three days of resignation.

17. According to the appellant, he resigned on 13/3/2017 from NARC party. He attached resignation letter to his replying affidavit dated 28th June, 2017 but filed before PPDT on 29/6/2017. The resignation letter bore a stamp of the office of registrar political parties on the face of it dated the 13/3/2017 and another stamp from NARC reflecting the same day. He also attached a letter from Registrar of Political Parties dated 19/6/2017 confirming that the appellant was a member of Jubilee party. The letter however did not state from when the appellant became a member of Jubilee. The appellant further attached a letter from NARC dated June, 2017 confirming that the appellant resigned from their party on 13/3/2017.

18. Based on this evidence, Mr. Ayieko for the appellant submitted that, the effective date of resignation from a political party is the date notice of resignation is received by a political party from which a member is resigning. He cited the case of Wavinya Ndeti ……Republic V IEBC and 4 others. Judicial Review Misc Application No. 301/2017 in which the court held that the effective date of resignation of a member from a party is the date of receipt of the resignation notice and not when the Registrar of Political Parties acknowledges recent and updates the register.

19. I do agree with Mr. Ayieko that resignation from a party is effective from the date of notification of the intended resignation is received by the party or clerk of relevant house in this case the county assembly of Machakos. The 1st respondent did not challenge the resignation letter addressed to NARC by the appellant and the acknowledgement stamps thereof by NARC and registrar of political parties. These evidence is not controverted.

20. I am in agreement with Mr. Ayieko that counsel for the appellant that had the Jubilee NEAT had the chance to hear the appellant; they would have arrived at a different conclusion. That is why, the National Elections Board and National Executive Committee overruled NEAT’S decision after finding that there was sufficient evidence to prove that the appellant had indeed resigned. The second respondent is in support of the appeal having acknowledged that the appellant was indeed their member.

21. The 1st respondent is relying on the confirmation from the registrar of political parties that the respondent was a member of Jubilee as at 24/5/2017. As already stated, resignation takes effect upon receipt of resignation notice by a party or clerk of relevant house which has not been challenged. It is no wonder that the 2nd respondent had cleared the appellant to run for that post as its member.

22. It was therefore erroneous for PPDT to have relied on the date the registrar political parties registered the appellant as a Jubilee member as the effective date of registration.

23. I do also agree with Miss Mbece, counsel for the 2nd respondent that nomination issues are party matters to which courts should let a party constitution and rules apply. Unless there is a clear violation of the party constitution and election rules, a court should exercise restraint in intervening with party affairs. In this case, the party national elections board and national executive committee had powers under Article 37. 5. Of the party’s (Jubilee) national elections and nomination rules after consultation to overrule decisions of the tribunal and order fresh nomination or declare a winner without going for repeat nomination if there are grounds to nullify the results.

24. Indeed the tribunal (NEAT), had no opportunity to hear the appellant’s side of the story. For NEAT to have gone to the website of Jubilee to confirm whether the applicant was a member of Jubilee was to say the least not necessary because that is not a requirement under Section 14 of (1) (2) of the Political Parties Act. A political party may receive a notice but fail to update its website.

25. Equally, I do not agree with Mr. Nyangayo counsel for the 1st respondent who submitted that, resignation becomes effective upon receipt of such notice by registrar of political parties. That is not the requirement under Section 14 (1) (2) of the Political Parties Act. Ideally, Nyangayo’s proposition should have been the requirement under Section 14 of the Political Parties Act but unfortunately, it is not the law for now and the same section is clearly subject to abuse hence the need to amend the same to extend the requirement for resignation to include receipt of the same by the registrar of political parties for it to be complete.

26. Having held that the appellant had properly resigned and that he was a member of Jubilee party as at 27/7/2017, and further considering that he had won by the majority votes, this court will not hesitate to find that the appellant is the bonafide winner of the joint nomination primaries Jubilee party for the position of MCA Matungulu West Ward, Matungulu Constituency, Machakos County. Accordingly, the decisions of PPDT dated 29/6/2017 and that of the Jubilee NEAT delivered on 11/5/2017 are hereby set aside.

27. On the other hand, even if NEAT had found that the appellant was not a member, the best they would have done was to uphold the appeal and order for a repeat nomination between the remaining candidates instead of declaring a loser as the winner.

28. The 1st respondent cannot be a beneficiary of an illegality or irregularity in declaring her as the winner. To confirm the 1st respondent as the winner would be akin to glorifying an illegality and further disenfranchising the members of Jubilee party of Matungulu West Ward who exercised their sovereign power under Article 1 of the Constitution to be represented by a democratically elected representative and Article 91(1) on the right to participate in political activities.

29. Based on the foregoing, the nomination certificate issued to the 1st respondent by the 2nd respondent as Jubilee party nominee for Matungulu West Ward, Matungulu Constituency, Machakos County is hereby revoked and IEBC is directed to remove her name from the list of contestants in the forthcoming general election scheduled for 8/8/2017 and consequently degazette her name as a candidate for the said position.

30. Can the court direct issuance of a fresh nomination certificate to the appellant? Having revoked the certificate for the 1st respondent, naturally it would follow that a fresh certificate do issue to the appellant by the 2nd respondent.

31. However, we are remaining with three weeks to the general election and ballot papers have already been procured and printed a fact to which I take judicial notice of. How practical is it to have the name of the appellant printed in the Ballot paper at this point in time? It is almost impossible and to direct IEBC to gazette and include the name of the appellant will be costly and will have serious ramifications including stopping general elections for that ward. It will not serve public interest which reigns superior to private interest considering that enormous resources have already been put into place and the negative effect it will have on other innocent candidates from other and who are ready for general elections. For those reasons, I will hesitate and decline to direct IEBC to gazette the appellant and include his name in the Ballot papers which exercise is already complete.

32. The net effect will be that Jubilee party will suffer the inevitable consequence of not filling a candidate for MCA Matungulu Ward in the forthcoming 8/8/2017 general elections. I hope this will be a lesson for political parties to behave in a decent manner in the year 2022 general elections during party primaries by conducting nominations in good time.

33. Based on the foregoing, the court makes the following orders:

a. That the appeal herein be and is hereby allowed and judgment by PPDT delivered on 29/6/2017 set aside.

b. That the appellant herein be and is hereby declared the winner and the bonafide nominee for the position Member of County Assembly Matungulu West Ward, Matungulu Constituency, Machakos County pursuant to the joint party primaries held on the 27/4/2017.

c. That the 2nd respondent do issue the appellant with fresh nomination certificate.

d. That nomination certificate issued to the 1st respondent Fridah Muendi whose name was forwarded to IEBC as nominee for Jubilee party for the position of MCA Matungulu West Ward be and is hereby revoked and the same marked as withdrawn.

e. That IEBC and or the Chairman IEBC be and is hereby directed to degazette the name of the 1st respondent Fridah Muendi as nominee (a candidate) on Jubilee ticket for position of MCA Matungulu West Ward, Matungulu Constituency during the forthcoming general elections scheduled for 8/8/2017.

f. That each party to bear own costs.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2017.

J.N. ONYIEGO (JUDGE)

In the presence of:

………………………………..Counsel for the appellant

…………………………….. Counsel for 1st respondent

………………………. Counsel for the 2nd respondent

……………………………................…... Court Assistant