[2022] KEPPDT 1021 (KLR)

Murunga v Forum for the Restoration of Democracy (Ford Keny); Independent Electoral and Boundaries Commission (Interested Party) (Complaint E016 (KK) of 2022) [2022] KEPPDT 1021 (KLR) (5 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1021 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E016 (KK) of 2022

M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members

August 5, 2022

Between

Chrispine Kipsang Murunga

Complainant

and

Forum for the Restoration of Democracy (Ford Kenya)

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant is a member of the Respondent and applied for nomination into the FORD Kenya Bungoma County Assembly party nomination list.

2. Due to alleged anomalies in the said nomination process, which the party allegedly refused to address, despite the Complainant calling the same out to the attention of the Respondent, the Complainant came before this Tribunal.

3. The complaint herein seeks the following orders: -a.An order directing the Respondent to amend its Bungoma Gender Top-Up and Marginalized Groups by deleting the Complainants name under the Gender Top up and including it in the Marginalized List prioritized at number 1 being the most qualified candidate under the Marginalized Category.b.In the alternative to (a) above, the Interested Party amends the Respondents Bungoma Gender Top up and Marginalized Groups by deleting the Complainants name under the gender top up and including it in the marginalized list prioritized at number 1 being the most qualified candidate under the marginalized category for gazettement.c.Costs of the complaint be borne by the Respondent.

4. The Respondent avers that this Tribunal cannot be seized of jurisdiction as the party IDRM [internal dispute resolution mechanism] has not been exhausted as anticipated in law.

5. The Respondents further aver that their action in conducting nominations to the party list was procedural and this complaint need therefore be dismissed.

The Complainants Submissions 6. The Complainant submits that he is a member of the Ogiek/Ndorobo, the only recognized minority in Bungoma County, according to him. He applied for and met all that the party [the Respondent herein] required of him.

7. It is odd, the Complainant submits that the Respondent has proceeded to include his name in the Bungoma county gender top up list and not in the marginalized list where he aptly fits. Further, the Bungoma County marginalized list contains names of Luhyas and Kalenjins who cannot be said, as opined by the Complainant, to be members of marginalized communities in Bungoma.

8. The Complainant therefore submits that his complaint merits grant of the orders sought.

The Respondents Submissions 9. Vide a replying affidavit sworn by the party Secretary General, the Respondent avers that this complaint is premature as internal dispute resolution has not been initiated strictly as required under the party laws.

10. In addition, the Respondent avers that the Complainant put in his application for consideration for inclusion in the party nomination list way past the deadline date as set by the party. Further, that he did not attach all the required documentation in support of his application.

11. In addition, the Respondent avers that the inclusion of the Complainant in the list under the impugned category was an act of benevolence extended to him by the party, seeing as he did not submit all the documents that were required of him.

12. The Respondent thus avers that the complaint is not merited should be dismissed with costs.

Issues for determinationa.Is this Tribunal properly seized of jurisdiction?b.Is complaint justified?c.What orders should issue?

Our Analysis Whether PPDT has jurisdiction 13. Whereas it is not contested that the parties before this Tribunal have right of audience having properly been identified as persons over whom this Tribunal can exercise jurisdiction, being a member of a political party, and the political party, the question of jurisdiction turns on section 40 (2) of the Political Parties Act [PPA]. Parties presented extensively on this matter including referring us to relevant case law.

14. The current wording of section 40 (2) PPA states as follows: (2) Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

15. In effect what is in question is whether first available remedy was exhausted or even applied. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal inSpeaker of National Assembly vs Karume (1992) KLR 21. The said Court went on and clarified the doctrine under the current constitutional dispensation inGeoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others(2015) eKLR as follows: It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

16. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply inRepublic vs National Environment Management Authority, Civil Appeal No 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

17. It is not controverted that the Complainant wrote to the party raising his concerns over the revision to the Bungoma County Assembly party nomination list. The Respondents however aver that the requisite payment was not properly channeled. No information was presented before this Tribunal to display any attempt within the party, in the interest of determining this matter amicably, while applying the party processes, to resolve the dispute since receipt of the said letter from the Complainant. Instead, we are advised that we must read mischief in the fact that monies/fees were transferred by the Complainant to a party official. Attempt by the party to quickly resolve the issue of payment, election timelines notwithstanding, are not displayed. In deed it is clear, from the information tendered before us that interest in resolving the dispute has not been displayed by the Respondents. The amendment to the PPA anticipates such mischief by political parties hence the invoking of this Tribunals jurisdiction being pegged on an attempt by an aggrieved party member to resolve the issue internally.

18. It is thus our consideration, that the Complainant first raised his concern with the party, as anticipated under section 40 (2) of the PPA, before presenting this complaint before us and thus we are properly seized of jurisdiction.

Is the complaint justified? 19. The law places within the political party, the primary jurisdiction of compiling its party nomination list for the various positions. The Elections Act (No 24 Of 2011), The Elections (General) Regulations, 2012, The Elections (Party Primaries and Party Lists) Regulations, 2017, Submission Of Party List guide the nominations process in regard to party lists.

20. It is provided, in law, that Party Lists must generally comply with the Constitution 2010, the Elections Act, 2011 as amended by the Statute Law (Miscellaneous Amendment) Act, 2012, the Elections (Amendment) Act, 2012, the Elections (Amendment) (No 2), the Political Parties Act, 2011 and any other relevant law as well as the party constitution and the party nomination rules.

21. We note that the IEBC role, is, at the stage of nominations into the party lists, limited to requiring parties to submit lists that represent the categories outlined in law. Specifics as to which member should be in which list and at what number they should be in such list, is a political party affair. IEBC may require, lawfully, that the lists are presented, as much as possible, in ‘zebra’ form.

22. The relevant law [Regulations], as reproduced below, provides the following in respect of the county assembly party nomination list:County Assembly (Marginalized Group) Party ListThe following nomination procedures shall apply to political parties in the preparation of Party List for nomination of County Assembly (Marginalized Group) Party List:i.The County Assembly (marginalized groups) Party List must have 8 names of qualified marginalized group nominees.ii.The nominees to the Party List must have similar qualifications as those required for candidates contesting for elections as members of the County Assembly.iii.In order to meet the gender requirement, the order of the nominees in the Party List shall alternate between women and men candidates.iv.Among all the 8 nominees, there shall be at least two youth, two persons with disabilities and two persons representing marginalized groups. One nominee cannot represent more than one special interest.

23. The Respondent has not controverted the Complainant’s claim that he qualifies for nomination into the marginalized group nor that he applied for consideration to the marginalized list. The Respondent has however averred that the list contains names of persons from other communities that are equally marginalized within Bungoma County. No information is placed before us to show how and why the Complainant was not also considered for the marginalized group but preferred for the gender list, which he did not apply for.

24. We are in fact, to the contrary, invited by the Respondent to find that the inclusion of the Complainant in any category was a favor as he had not met all the requirements of the party.

25. This flip flop approach by the Respondent, is odd. The said Respondent invites us to disregard the attempt at IDRM due to failure of the Complainant to strictly comply to the party laws. Alternately, the same Respondent invites us to disregard their failure to place the Complainant in the category for which he is best suited as they had placed him on a list anyway despite his failure to meet all requirements.

26. The Complainant, who obviously qualified for nomination to the party list, should have had his name included in the list to which he applied and obviously qualified. It is common fact that the Ogiek comprise a marginalized community in Kenya. The NGEC report “Unmasking Ethnic Minorities and Marginalized Communities in Kenya; Who and Where?, 2017” buttresses this fact.

27. It is apparent, given the circumstances as we see it, that at the very least the Complainant should have had opportunity to be heard on why his name was preferred for consideration in a list that he did not even apply for once the party had found him suitable for inclusion into the party nomination list.

28. We thus find that the complaint is justified.

Disposition 29)In light of our analysis and taking into consideration our mandate, we order as follows.a.That the Respondent herein, Forum for Restoration of Democracy, Kenya [FORD-Kenya] forthwith remove the name of the Complainant herein, Chrispine Kipsang Murunga from its Gender Top-Up List for Bungoma County Assembly party nomination list and place it in the FORDKenya Party nominations list under the Marginalized List category for Bungoma County Assembly, forwarded to the IEBC for publication in the Kenya Gazette in respect of the 2022 general elections.b.That notification of this decision issue to the Independent Electoral and Boundaries Commission.c.That the costs of this complaint are awarded to the Complainant.

DATED THE 5TH DAY OF AUGUST 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)