[2022] KEPPDT 1005 (KLR)

Munyao v United Democratic Alliance Party & another; Wainanina & another (Interested Parties) (Complaint E135 (NRB) of 2022) [2022] KEPPDT 1005 (KLR) (Constitutional and Human Rights) (8 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1005 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E135 (NRB) of 2022

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

September 8, 2022

Between

Njoroge Joseph Munyao

Complainant

and

United Democratic Alliance Party

1st Respondent

National Elections Board, United Democratic Alliance Party

2nd Respondent

and

Mark Gicheru Wainanina

Interested Party

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Introduction 1. The Complainant is a member of the United Democratic Alliance Party who applied and paid for the party nominee candidate for Member of County Assembly, Murang’a County. The 1st Respondent is a political party, while the 2nd Respondent is the organ of the 1st Respondent tasked with election matters. The 1st Interested Party is the nominated and listed nominee candidate with another for the position of member of county assembly for Murang’a county under persons living with disabilities.

2. The Complainant, as a person living with disability, was not included in the party primary list under the persons living with disabilities list but rather in the category of the ‘gender top up list’. The Complaint alleges that this disadvantaged him. The 1st Interested Party was therefore nominated as the party nominee candidate for member of county assembly, Murang’a county, as the male nominee under the special needs category.

3. The Complainant prays that the Tribunal orders that the decisions of the Respondents to nominate the 1st interested party be set aside and that the Tribunal compels the 1st Respondent to nominate the Complainant as the nominee candidate under the special needs category. The Complainant also prays that the Tribunal issues an order restraining the 2nd interested party from receiving and gazetting the name of the 1st Interested Party as the duly nominated UDA party nominee.

4. The Complainant filed this complaint on September 1, 2022 under Certificate of urgency accompanied by a Notice of Motion application supported by the supporting affidavit of the Complainant.

5. The Complainant was represented by Mabeya and Mabeya Advocates. The 1st Interested Party was represented by Messrs Simiyu and Anjichi Advocates. The 2nd Respondent and the 2nd Interested Party neither entered appearance nor participated in these proceedings despite service.

The Complainant’s Case 6. The Complainant avers that despite making the application to the party and subsequently paying the party list nomination fee as required by the party, the 1st and 2nd Respondents failed to list the name of the Complainant in the persons living with disabilities special category. The Complainant also avers that the decision by the 1st and 2nd Respondent in nominating and listing the 1st Interested party is illegal to the extent that the 1st Interested party was not among the names proposed by the Murang’a UDA membership, and that the 1st Interested Party is not a male person living with disabilities as required by the law for one to be nominated to the position. The Complainant contends that the fact that the 1st and 2nd Respondent further failed to list the name of the Complainant in the persons living with disabilities special category only worked to his disadvantage as in the gender top-up list, women would mainly be considered.

7. In support of this complaint, the Complainant states that he is a bona fide member of the UDA party and that he submitted his application to be nominated in the persons categorized with disabilities in the party’s list for Murang’a County which was duly acknowledged by the party. Thereafter, he states that there was a stakeholder meeting with the members of the party on the 11 July 2022 where it was agreed that the name of the Complainant should be submitted as the representative of the party under the category of persons with disabilities. He further alleges that all the members of persons that were agreed upon in the said meeting have since then been included in the party’s list of nominations save the Complainant whose name was omitted in the final list that is to be presented to the IEBC for gazettement.

8. In further support of the complaint, the Complaint urged the Tribunal to take note of the following: that the Complainant is from Gatanga while five out of eight persons nominated by the party are all from Kiharu Constituency; that the party had promised UDA candidates that lost in the general elections that they would be considered for nomination, the Complainant being one among such persons; the Complainant was proposed by the current Member of Parliament – Elect (Gatanga Constituency) in pursuance to meeting where Muranga County elected leaders agreed to reserve the special category seat for persons living with disabilities for Gatanga constituency.

9. The Complainant also submits that he has attempted to have this dispute resolved through the party organs whereupon he was not accorded audience.

The 1st Interested Party’s Case 10. The 1st interested party through a replying affidavit avers that he is a registered voter and resident of Murang’a County. He also confirms that he is a person living with disability and is duly recognized and registered as such by the National Council for Persons Living with Disabilities.

11. The 1st Interested party also confirms that he applied to be the male nominee for the position of member of county assembly for Murang’a County under the category of persons living with disabilities, special category and that he was successful in the nomination.

12. The 1st Interested party also avers that the 2nd Interested Party, the IEBC, issued a joint public notice on the hearing of disputes arising from the party list stating that such disputes were to be heard between 28th July and August 6, 2022. He therefore affirms that the Complainant’s case has been overtaken by events as it has been filed well after August 6, 2022.

Analysis and Determination 13. We have reviewed the parties’ case, and isolated the following issues for determination:i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint has merit and what are the appropriate reliefs?

Whether this Tribunal has jurisdiction to hear and determine this matter? 14. Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that brought before it. Without jurisdiction, any orders made by this Tribunal amounts to a nullity ab initio.

15. The place of jurisdiction in law is well settled as was stated in the locus classicus case ofOwners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989), where Nyarangi J.A. held as follows:'Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

16. The jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011(hereinafter the PPA)which provides on jurisdiction of the Tribunal 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; andfa.disputes arising out of party nominations

2. 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.

3. A coalition agreement shall provide for internal dispute resolution mechanisms

17. The instant dispute is one between the Respondents’ political party and its member (the Complainant), in so far as the preparation of Murang’a County Assembly Party List is concerned, and therefore falls squarely within the provisions of Section 40(1)(b) and (fa) of the PPAas highlighted above.

18. As articulated under Section 40(2) of the PPA, the Tribunal can only adjudicate on matters under Section 40 (1) (a), (b), (c), (e) and (fa) once the said dispute has been subjected to the political party’s Internal Dispute Resolution Mechanism (IDRM). In principle, this provision also known as the doctrine of exhaustion, requires the aggrieved party to adduce evidence of an attempt at compliance before the Tribunal can assume jurisdiction.

19. The Tribunal has previously issued guidelines on what amounts to an attempt at IDRM in the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 of 2022). In this case, 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, 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. ”

20. The question of whether or not the Complainant has exhausted the IDRM of her political party, is one that does not require the matter to be heard and determined to completion provided an honest attempt can be demonstrated. In the case of Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others, it was held that:“Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.”

21. In the present matter, the Complainant has demonstrated his attempt at engaging the 1st Respondent’s IDRM vide the letter dated August 24, 2022 to the 1st Respondent which was received and stamped, and has been adduced as evidence. This Tribunal also notes that the 1st Respondent has not registered any formidable response to the letter.

22. We therefore find that the Complainant’s actions amount to an ‘honest attempt’ as envisaged by Section 40(2) of the PPA. Having established such effort, this Tribunal therefore determines that the Complaint is properly before it and that it has jurisdiction to determine this matter.

23. In as far as whether the present complaint has been overtaken by events, we are cognisant of the fact that when faced with a nomination dispute that has been brought after gazettement, courts have declined to grant prayers and instead referred the parties to the Election Court. In the case ofZaynab Allyow Issack v Jubilee Party [2017] eKLR, and Mourine Atieno Ochieng & another v Orange DemocraticMovement & another [2017] eKLR, the High Court held that: ‘…this court cannot grant the prayer sought because by so doing, this court, which is not an Election Court, would be determining an election dispute.’

24. In the instant case, the 2nd Interested Party (IEBC), after receiving the party list with the nominees from the 1st Respondent, has not proceeded to gazette the same. Only the action of gazettement by the 2nd Interested Party automatically completes the nomination process and displace the jurisdiction of this Tribunal. This has not occurred, and the Tribunal properly seized of jurisdiction in this complaint.

Whether the Complaint has merit and what are the appropriate reliefs? 25. The Complainant advances that the 1st and 2nd Respondent’s decision of nominating the 1st Interested Party as the party nominee candidate under the special category of persons living with disabilities (PWDs) for Murang’a County instead of him, is unreasonable, unlawful, arbitrary and is prejudicial to the Complainant’s legitimate expectation of being accorded a fair hearing. The Complainant further advances that the decision breaches the Fair Administrative Action Act. As such, the Complainant prays for orders to set aside the decision by the 1st and 2nd Respondent nominating the 1st Interested Party, and to restrain the 2nd Interested Party from gazetting the name of the 1st Interested Party as the duly nominated nominee. Additionally, the Complainant prays for orders to compel the 1st Respondent to nominate him under the special needs category as opposed to the gender top up list.

26. Article 90 of theConstitution of Kenya provides for seats in the Parliament and County Assemblies through party nomination lists whereby seats are allocated to political parties in proportion to total seats won by candidates to the political party at the National General Elections. Article 97 (1) of the Constitution of Kenya makes provision for nominations of members of parliamentary political parties to the National Assembly to represent special interests which include the youth, persons with disabilities and workers. The Tribunal is cognisant that the question of allocation in this regard is a matter of party discretion. The party nomination lists usually include a mix of special interests’ groups and persons who have made contributions to the party.

27. In the present matter, the 1st Respondent prepared and submitted a County Assembly party nomination list which is expected to be gazetted by the 2nd Interested Party – the IEBC. There is no doubt that the 2nd Interested Party is the sole constitutional organ with the mandate to review and approve party nomination lists. There is no other organ with the mandate to exercise this constitutional function and to compel the 2nd Interested Party to either accept or reject a party list would amount to undermining its constitutional authority. As pointed out above, it is equally clear that composition of party lists fall within party discretion. That said, it is expected that this discretion will be exercised in accordance with the Constitution and relevant statutory provisions. In this regard the Complainant alleges that the failure to nominate him runs counter to the constitutional’s ethos to promote diversity and contravenes the reasonable and legitimate expectation of the Complainant following internal party deliberations.

28. On the question of diversity, the Complainant essentially alleges that majority of persons whose names have been nominated to represent the party are drawn from Kiharu Constituency. The Tribunal has not been served with conclusive evidence to support this allegation such as the names of these persons and proof of their domicile or place of abode viz a viz Murang’a County. Similarly, the allegations raised regarding the Complainant’s legitimate expectation to be nominated following party internal consultations, are mere allegation in the absence of solid evidence of minutes of such meetings, recorded resolutions and so forth. It is not sufficient to adduce, as in the instant case, scanned documents of handwritten lists of names alleged to emanate from such meetings without any form of corroboration as to the validity of these document.

29. While the Complainant’s contributions to the party has been clearly articulated and documented in his pleadings, we are not convinced by the record before us that there is sufficient evidence to detract from the suitability of the 1st Interested Party nomination. The 1st Interested Party through his replying affidavit, has demonstrated that he is a registered member of the National Council for Persons with Disabilities as evidenced by the annexure marked ‘MGK-1. ’ In our view it is not proper to reject this evidence on account that is not certified. On the contrary, we believe that this evidence settles the question of the 1st Interested Party’s suitability to be nominated within the special needs category. It therefore follows that the Tribunal has no basis to displace the current nominee in favour of the Complainant.

30. While we have taken note of the arguments around the unique differences alleged between the Complainant and the 1st Interested Party as persons living with disabilities, this the Tribunal believes that it is not best placed to make the determination as to the degrees of disabilities that should entitle one individual to nomination over the other. In our view, the party is well seized to make this determination as it has all relevant information pertaining to the contributions made by members as well as which of its members fall including who within the special interest groups is best placed to represent this specific group of persons.

31. For the above reasons, the prayers sought by the Complainant are not possible to countenance and we affirm that the 2nd Interested Party is well within its rights to accept and/or gazette the submitted party nomination list. In conclusion, the Tribunal therefore finds no merit in the Complaint.

32. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

Disposition 33. In light of the foregoing, we order as follows:-i.The Complaint herein be and is hereby dismissed.ii.Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH SEPTEMBER 2022. DESMA NUNGO…… ………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)