[2022] KEPPDT 928 (KLR)

Muchiti v Democratic Action Party – Kenya & another; Independent Electoral and Boundaries Commission (IEBC) & another (Interested Parties) (Complaint E009 (KK) of 2022) [2022] KEPPDT 928 (KLR) (Commercial & Admiralty) (19 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 928 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Commercial and Admiralty

Complaint E009 (KK) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 19, 2022

Between

Anastasia Muchiti

Complainant

and

Democratic Action Party – Kenya

1st Respondent

Chairman, National Elections Board (DAP-K)

2nd Respondent

and

Independent Electoral And Boundaries Commission (IEBC)

Interested Party

Joshua Wekesa Pilasioa

Interested Party

Judgment

Background 1. The Complainant is a life member of the 1st Respondent, a political party, the Democratic Action Party-Kenya (DAP-K) as shown by his membership number 68007. He is seeking nomination in the Democratic Action Party-Kenya (DAP-K).

2. The said political party, the 1st Respondent herein proposed to conduct its nomination process by way of opinion poll, the outcome of which was shared out on April 8, 2022.

3. The Independent Electoral and Boundaries Commission, (IEBC) is a Commission formed under the Constitution of Kenya, which is tasked with among other duties, conducting referenda and general elections. Initially included in the complaint herein as the 3rd Respondent, the Advocate for the Complainant successfully moved an amendment to have them described and listed as an Interested Party and is hereinafter referred to simply as IEBC.

4. Joshua Wekesa Pilasioa the Interested Party herein was an aspirant for the position of Member of County Assembly, Nzoia, within Lukuyani Constituency in Kakamega County and is hereinafter for ease simply referred to as the Interested Party.

5. The Complainant was the successful candidate in the said primaries, conducted by way of opinion poll, as she was voted for by the majority of the registered voters in Nzoia Ward in which she garnered 74 votes out of 160 votes cast and was declared the winner in the DAP-K party primaries. The Interested Party emerged as number two. He garnered 60 votes out of 160 votes cast in the opinion poll held by the Party on April 8, 2022.

6. The Complainant was then issued with the Nomination Certificate as the Nominated Member of County Assembly for Nzoia on a DAP-K ticket in the coming general elections.

7. Immediately after being issued with the certificate, Complainant was given the Candidate’s Bonding Form, which she filled and left the party headquarters.

8. No complaint has been lodged against the Complainant at the Party’s tribunal to nullify the Complainant’s victory as per the party’s rules.

9. However, later on the Complainant learnt that another Nomination Certificate dated April 19, 2022 and signed by the Chairman and the Secretary General was issued to the Interested Party. The Interested Party had emerged as number two in the polling. He garnered 60 votes out of 160 votes cast in the opinion poll held by the Party April 8, 2022.

10. Initially, Complainant was not bothered as she was the one who won at the opinion poll and a certificate was issued to her at the headquarters. Complainant had the legitimate expectation that her name would be forwarded to IEBC for gazettement.

11. The procedure provided under DAP-K Nominations and Elections Rules is that where a dispute arises on the election of a candidate to any office, such dispute should be determined by the Electoral and Nomination Dispute Resolution Committee. The Committee will make a decision and communicate it to the Elections Board within the same day for appropriate action.

12. The Complainant herein is not aware of any Complaint having been filed at the Electoral and Nomination Dispute Resolution Committee or any Order nullifying the Complainants win, revoking her certificate and issuing a Nomination Certificate for Member of County Assembly, Nzoia Ward.

13. In any event, the Complainant was never made aware of such proceedings, if any, and/or given an opportunity to be heard in the proceedings.

14. It is the Complainants case that the actions of the 1st Respondent, of issuing another certificate to Joshua Wekesa amounts to utter blatant violation of the party’s rules and regulation governing the conduct of nominations and issuance of nomination certificates and amounts to condemning the Complainant unheard.

15. The Complainant has seen the final party list sent to the Independent Electoral and Boundaries Commission (IEBC) and the Complainant’s name is not in the list and instead, Joshua Wekesa Pilasioa’s name is the one on the list.

16. The Complainant is apprehensive that IEBC will proceed and gazette the names without her name in the list, yet she won in the primaries and holds a Nomination Certificate to this effect.

17. The Complainant prays for judgment against the Respondents and the Interested Party for -a.A declaration that the Complainant is the bona fide nominee for the position of Member of County Assembly, Nzoia Ward, Lukuyani Constituency, Kakamega County.b.A declaration that the award of nomination certificate to the Interested Party or any other person other than the Claimant as the candidate for the position of Member of County Assembly, Nzoia Ward, Lukuyani Constituency, Kakamega County is null and void.c.An Order restraining the 3rd Respondent from gazetting the name of the Interested Party or any other name apart from that of the Claimant as the nominee for the position of Member of County Assembly, Nzoia Ward, Lukuyani Constituency, Kakamega County under the DAP-K party ticket.d.An Order compelling the Interested Party to surrender the certificate in his possession to the 1st Respondent for destruction.e.Costs of the suit.f.Any other orders as the Honourable Tribunal deem fit to grant.

18. The 1st and 2nd Respondent though served and affidavit of service filed did not appear.

IEBC’ submission 19. Counsel for Independent Electoral and Boundaries Commission (IEBC) citing section 31 of the Political Parties Act explained the role of the Commission as one that receives names of nominees from political parties and does not conduct party primaries.

20. Counsel further confirmed that IEBC has not so far published names of nominees so application pre-mature.

21. The matter being undefended despite service and affidavits of service being filed the only issue before us is whether to allow the Complaint.

Analysis 22. It is apparent from the record before us that the Complainant participated in the nomination exercise for the position of Member of County Assembly, Nzoia Ward, within Lukuyani Constituency in Kakamega County in which she emerged the front runner.

23. Subsequently, the Complainant was issued with a nomination certificate dated April 19, 2022.

24. Attempts by the Complainant to address the issue through the party has met no response.

Disposition 25. In light of our analysis we order as follows:i.That the 1st Respondent herein, Democratic Action Party- Kenya [DAP-K] do forthwith forward the name of Anastasia Muchiti the Complainant herein, to the Independent Electoral and Boundaries Commission [IEBC] as its nominee for the position of Member of County Assembly, Nzoia, within Lukuyani Constituency in Kakamega County in the coming general elections scheduled for August 2022. ii.That the Democratic Action Party Kenya [DAP-K] nomination certificate issued to JOshua Wekesa Pilasioa in respect of the position of Member of County Assembly, Nzoia, within Lukuyani Constituency in Kakamega County in the coming general elections scheduled for August 2022 be and is hereby revoked.iii.The cost of this complaint is awarded to the Complainant as against the 1st Respondent.iv.That notification of this order issue to the Independent Electoral And Boundaries Commission (IEBC)

DATED THIS 19TH DAY OF MAY 2022M.L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)