[2022] KEPPDT 1043 (KLR)

Mohamed v Wiper Democratic Movement & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E085 (NRB) of 2022) [2022] KEPPDT 1043 (KLR) (25 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1043 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E085 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 25, 2022

Between

Mohamed Adan Mohamed

Complainant

and

Wiper Democratic Movement

1st Respondent

Wiper Democratic Movement National Elections Board

2nd Respondent

Marcos Kithuku Makau

3rd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant and the 3rd Respondent are amongst seven candidates who were cleared by the 1st and 2nd Respondents to vie for the position of Member of County Assembly, Kwa Njenga Ward. Party primaries were conducted on 13th April 2022 where the Complainant emerged the winner and was issued with the Declaration of Winner Form by the 2nd Respondent. The nomination exercise held on 13th April 2022 was, however, challenged before the 1st Respondent’s National Elections Appeals Board (NEAB), and vide a decision delivered on 22nd April 2022, the NEAB nullified the subject nominations and directed that a fresh process be conducted. A fresh process was conducted and once again the Complainant emerged the winner. Despite his win, the 1st and 2nd Respondents did not forward his name to the Interested Party.

2. Aggrieved by the 1st and 2nd Respondent’s refusal to forward his name to the Interested Party, the Complainant filed the instant complaint seeking the following orders:-a.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 validb.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.c.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 Complainantd.An Order do issue to the Interested Party to remove 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 Complainante.A declaration that the Complainant herein MOHAMED ADAN MOHAMED is the duly nominated Wiper Democratic Movement candidate for Kwa Njenga Ward, Embakasi South Constituencyf.The costs of the suit be awarded to the Complainantg.Any such further orders that the Tribunal shall deem fit to grant

3. On the 24th of May 2022 when the matter came up for highlighting of written submissions, the same could not proceed as some parties had not complied with our directions. Further directions were given allowing all parties to comply and exchange their pleadings and written submissions within strict deadlines where after the Tribunal would consider the same and render its Judgment.

4. The Complainant was represented by Mr. Anyega Ondieki Advocate, and the 1st and 2nd Respondents were represented by Mr. Katisya Advocate. There was no appearance for the 3rd Respondent and the Interested Party despite service.

The Complainant’s Case 5. The Complainant is a member of the 1st Respondent and he is amongst the 7 candidates who applied for and was cleared to vie for the position of Member of County Assembly (MCA) Kwa Njenga Ward. The 2nd Respondent conducted its party primaries on 13th April 2022 when the Complainant emerged the winner and was issued with a Declaration of Winner Form to that effect by the 2nd Respondent.

6. Dissatisfied with the outcome of the nominations, two contenders, namely, Jonathan Nzuki Nzioki and John Kyalo filed an appeal, that is, Nairobi/ESC/Kwanjenga 001 of 2022 consolidated with Nairobi/ESC/Kwanjenga/002 of 2022 with the 1st Respondent’s NEAT. The Complaints were heard and a determination was made on 22nd April 2022 nullifying the impugned nominations. There was a further order that a fresh process be conducted.

7. In consonance with the NEAT order, the 2nd Respondents called for a meeting of aspirants on 27th April 2022 to discuss the repeat nomination exercise. It was agreed that a repeat process be conducted on 28th April 2022 through a delegates system in accordance with Rule 23 of the Nomination Rules. The repeat exercise was conducted on 28th April 2022 as planned and the Complainant once again emerged the winner and was issued with the Declaration of Winner Form and a Certificate of Nomination.

8. It is the Complainant’s contention that the return by the Returning Officer in respect of the repeat process that was conducted on 28th April 2022 has never been challenged and no appeal has been presented to NEAT in respect thereof to-date. He submits that under Regulation 23(7)(iv) of the 1st Respondent’s nomination rules, his name ought to be in the party list and cannot be removed except by the Interested Party or by an order of the High Court.

9. On 12th May 2022, the Complainant came to learn that the 2nd Respondent had in a clandestine, illegal and capricious manner issued another certificate of nomination to the 3rd Respondent who had lost in the nomination exercise. The Complainant wrote to the 2nd Respondent a letter dated 12th May 2022 challenging the issuance of nomination certificate to the 3rd Respondent in vain as no response has been forthcoming. He also tried to follow up with the Chairperson of the 2nd Respondent in vain. Absent a response, the Complainant instructed his lawyers who wrote a demand letter dated 16th May 2022 to the party. This letter from the lawyer was also not responded to within 72 hours as provided for under Regulation 22 of the party’s nomination rules. This, therefore, necessitated the filing of this Complaint. The Complainant, therefore, maintains that this Tribunal has jurisdiction to hear and determine this matter having made several attempts to engage with the party through NEB Chairperson and also having written letters that were not responded to.

10. It is the Complainant’s further submission that the 3rd Respondent is a civil servant still holding a public office and is therefore not qualified to present himself for nomination.

11. The Complainant avers that he did not contravene the code of conduct, and that the allegations of bribery are fabricated and false and are meant to mislead the Tribunal. That it is in fact the 3rd Respondent’s colleagues that were responsible for interference that led to the nullification of the nominations of 13th April 2022. The nomination of 28th April 2022 was peaceful and overseen by the 2nd Respondent and the issues of violence or intimidation did not arise. He further submits that he was not granted a hearing on the allegations made against and/or given an opportunity to defend himself contrary to law.

12. The Complainant maintains that his claim is merited and accordingly prays that the orders sought be granted.

The 1st and 2nd Respondents’ Case 13. The 1st and 2nd Respondents (the Respondents) have filed a Preliminary Objection dated 23rd May 2022 on grounds that: -i.The 2nd Respondent is not a legal entity and therefore it cannot be sued on its own name. The 2nd Respondent is an organ within the 1st Respondent as provided by Section 3. 12 of the 1st Respondent’s Constitution 2021. ii.The Complainant should seek redress from 1st Respondents who have the mandate to hear and determine the issues raised at their National Elections Appeals Board. This mandate stems from Rule 6 of the Wiper Democratic Movement Elections and Nominations Rules 2021 and Section 3. 13 of the 1st Respondent’s Constitution 2021. iii.That hearing and determining this matter will amount to usurping the 1st Respondent’s powers and mandate as provided by their Internal Dispute Resolution Mechanisms.iv.There exists a sufficient and adequate mechanism to deal with specific issues raised by the Complainant.v.The Honorable Tribunal lacks jurisdiction since the Complainant failed to invoke the 1st Respondent’s Internal Dispute Resolution Mechanism.vi.The Application and the Complaint lacks merit and both should be dismissed on their entirety with costs

14. The Respondents have in addition filed a Replying Affidavit sworn by Dr. Justin Kyambi, the Executive Director of the 1st Respondent. They submit that the Political Parties Act 2011 amended in January 2022 introduced new provisions and terminology on the nominations process leading to identification of candidates to contest in the General Elections. Nominations could either be by direct or indirect mechanisms as contained in Section 2 as read with Section 38 of the Political Parties Act 2011.

15. It is the Respondents case that as of 16th May 2022, the Complainant was a registered voter in Mandera, and it was therefore suspicious how he managed to change his polling station to Kwa Njenga as he alleges.

16. It was further submitted that Regulation 23(7) (iv) of the Wiper Democratic Movement Elections and Nominations Rules is not applicable in this case as it is only applicable to direct nomination.

17. The Respondents submitted that the 2nd Respondent cancelled the nomination certificate previously issued to the Complainant after finding out that the Complainant had contravened the Code of Conduct of the Wiper Democratic Movement by bribing and intimidating voters and/or delegates. This is confirmed by several party members who confessed after participating in the delegates voting process. Contravention of the Party’s code of conduct is contrary to section 2. 8 (a) of WDM constitution 2021 and Rule 4 of the WDM Code of Conduct. The Complainant also contravened Clause 10 of the Elections Code of conduct which he had executed.

18. The Respondents have further challenged the procedure the Complainants used to lodge a complaint, and that the letter from the Complainant’s lawyer had not even been received by the 1st Respondent. In response to the allegation that the 3rd Respondent was a civil servant, the Respondents submitted that the document produced by the Complainant from Equity bank was a forgery.

19. The Respondents maintain that there is no material evidence placed before the Tribunal by the Complainant to warrant him being granted any of the orders he seeks and that the Complaint ought to be dismissed.

The 3rd Respondent’s Case 20. The 3rd Respondent did not participate in these proceedings despite service as was demonstrated by an Affidavit of service sworn by a process server known as Mr. Kevin Shisanya on 23rd May 2022. The process server stated that he called the 3rd Respondent who requested that he be served via WhatsApp. The process server confirmed that he proceeded and served the 3rd Respondent via WhatsApp and attached the confirmation message and acknowledgment by the 3rd Respondent.

The Interested Party’s Case 21. The Interested Party did not also participate in these proceedings despite service as was demonstrated by the same Affidavit of Service that was sworn by the said Mr. Kevin Shisanya on 23rd May 2022.

Analysis and Determination 22. We have reviewed the parties’ pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs in the present circumstances?

Whether this Tribunal has jurisdiction to hear and determine this matter? 23. The 1st and 2nd Respondents have challenged the jurisdiction of this Tribunal in two main respects. First, it is submitted that the instant dispute was not subjected to resolution within the party’s internal dispute resolution mechanisms (IDRM) in the first instance, and secondly, it is submitted that the 2nd Respondent is not a legal entity.

24. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011 (the PPA), which provides as follows: -1. The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and disputes arising out of party nominations2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e), or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

25. The instant Complaint being one arising from nominations, Section 40(2) of the PPA requires that the Complainant adduces evidence of an attempt to subject the dispute to the 1st Respondent’s IDRM prior to moving the Tribunal.

26. The Tribunal has to scrutinize whether it has been demonstrated that there was an attempt made by the Complainant to exhaust the 1st Respondent’s IDRM. In the case of John Mworia Nchebere & Others vs. The National Chairman Orange Democratic Movement & Others (Nrb PPDT Compliant No. E002 of 2022), the Tribunal held that: “Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

27. The Complainant has adduced as evidence letters dated 12th May 2022 and 16th May 2022 addressed to the 1st Respondent in an attempt to have the dispute subject hereof addressed by the party. However, the letters were never responded to. The 1st and 2nd Respondents have challenged the procedure of lodging the Complaint with the 1st Respondent as purported by the Complainant, stating that complaints ought to be lodged with NEAT as provided for under Rule 6 of the 1st Respondent’s Elections and Nomination Rules 2021 as read together with Section 3. 13 of the 1st Respondent’s Constitution.

28. Whereas we agree with the Respondents that the form and contents of the letter are not in accordance with the party rules, we cannot ignore the fact that the Respondents did not respond to the Complainant’s letters with necessary information. The Respondents should have at the very least responded to the letter or advised the Complainant the right way to go. Such was the consideration of the Court of Appeal in the case of Samuel Kalii Kiminza vs. Jubilee Party & Another (2017) eKLR, where it was observed as follows: -“… 26. Further, we cannot help but note that the Appellant wrote to the 1stRespondent not once but twice and none of these letters elicited any response from the 1stRespondent. The Appellant is a member of the 1stRespondent 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 position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1stRespondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters 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 ours)

29. We have further taken into consideration the fact that whereas the party’s IDRM was available before the deadline set by the Interested Party, it was effectively inoperative as of the 28th of April 2022, and furthermore, any remedies sought may not have sufficed to alleviate the harm suffered by the Complainant. We say so with the understanding that from the evidence before us, it is evident that the 1st Respondent has already forwarded the 3rd Respondent’s name to the Interested Party and in any case, the party IDRM does not have jurisdiction over the Interested Party. In the circumstances, the Complainant had no other recourse than to bring their Complaint before this Tribunal. Further, due consideration has also been taken to the urgency of this matter.

30. With respect to the objection on the basis that the 2nd Respondent is not a legal entity, our view is that even if that were the position, the same does not take away the jurisdiction of this Tribunal to hear and determine this matter. In any event, the political party is joined in these proceedings as the 1st Respondent.

31. In summary, taking into consideration the foregoing, we find that we have jurisdiction to hear this matter and the Complainant is therefore properly before the Tribunal.

Whether the Complaint is merited? 32. Apart from the objection to our jurisdiction, the 1st and 2nd Respondents have, vide their Replying Affidavit raised two major grounds in opposition to the Complaint. Firstly, the Respondents aver that the Complainant is a registered voter in Mandera and that they are suspicious of his vying in Kwa Njenga. Secondly, it is the 1st and 2nd Respondents’ contention that they cancelled the Complainant’s nomination certificate for the reason that he contravened not only the party’s Code of Conduct but also Clause 10 of the Elections Code of Conduct by bribing and intimidating voters and/or delegates.

33. With respect to the allegation that the Complainant is a registered voter in Mandera, we find it strange that the Respondents can purport to raise this issue at this stage, yet it is not in dispute that they cleared him to vie for the position of MCA, Kwa Njenga Ward. The Complainant has nevertheless countered that allegation by producing evidence of change of his polling station from Mandera to Kwa Njenga and he has also produced the current IEBC record of his voter status.

34. As regards the contention that the Complainant’s nomination was cancelled for the reason that he breached the code of conduct, the Complainant has denied the accusations levelled against him. Most importantly, the Complainant claims that he was not granted a hearing on the allegations made against him prior to arriving at the decision to cancel his nomination certificate and issue the same to the 3rd Respondent.

35. We note that the 1st and 2nd Respondents’ Replying Affidavit is silent on whether there was any formal engagement with the Complainant prior to arriving at the decision to cancel his nomination certificate. No evidence has been tendered before the Tribunal to demonstrate whether the certificate issued to the Complainant was formally nullified. It is not also clear why the decision to grant the 3rd Respondent the certificate of nomination was not communicated officially to the Complainant. Moreover, there is no indication as to whether the Complainant was provided an opportunity to make any representations on this matter that had a direct bearing upon him.

36. Fair administrative action requires that a person affected by a decision be granted an opportunity to be heard and to be given reasons for any decision reached. Decisions by political parties are not an exception. This position has been underscored in many decisions of this Tribunal.

37. In Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that: -‘… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.’

38. In Zaituni Abdallah Kabocho v Jubilee Party [Complaint No 545 of 2017] at par 12 as follows;‘As we have in several cases, including Elijah Omondi v Orange Democratic Movement & another Complaint 251 of 2017, political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours. The Claimant was not informed of the reasons the Respondent now puts forward as justifications for removing the Claimant’s name from the list.’

39. It is also important to note that these requirements of fair administrative action cannot be applied retroactively. It needs to be shown that the aggrieved party was informed beforehand and given the chance to register their position. Within the WEDNESBURY PRINCIPLES established by Lord Green M.R in Associated Provincial Picture Houses vs Wednesbury Corporation [1948] the learned judge opined that:“Decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no such person or body properly directing itself on the relevant law and acting reasonably could have reached that decision”

40. In this particular case, noting that the Complainant already had a nomination certificate, the 1st Respondent ought to have included the Complainant in the decision-making process considering that he is an affected party. We find it improper that the party proceeded to cancel his nomination certificate and thereafter submitted the 3rd Respondent’s name to the Interested Party without granting the Complainant a hearing.

41. It is the Tribunals view that there was no fair administrative process afforded to the Complainant in the process of cancelling his nomination certificate and issuing the same to the 3rd Respondent. As such, the Tribunal finds that the certificate issued to the 3rd Respondent was done in an unjust and unlawful manner. We in the foregoing circumstances find that the Complaint has merit.

What are the appropriate remedies in the present instance? 42. Having found that the Complaint has merit, we are inclined to grant the reliefs sought. On the question of costs, the general rule is that costs follow the event. We find no basis to depart from this position bearing in mind the unfair manner in which the Complainant was handled in this case.

Disposition 43. In light of the foregoing, we order as follows: -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

DATED AND DELIVERED AT NAIROBI THIS25TH DAY OFMAY2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)