[2022] KEPPDT 1056 (KLR)

Mutai v United Democratic Alliance; Independent Electoral & Boundaries Commission (Interested Party) (Complaint E018 (ELD) of 2022) [2022] KEPPDT 1056 (KLR) (11 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1056 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E018 (ELD) of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

September 11, 2022

Between

Celestine Chepchichir Mutai

Complainant

and

United Democratic Alliance

Respondent

and

The Independent Electoral & Boundaries Commission

Interested Party

Judgment

1. The Complaint dated August 25, 2022 is premised on the United Democratic Alliance Party’s Nomination List to the County Assembly of Uasin Gishu under the Gender Top Up category.

2. The Complainant alleges that she applied to be considered for nomination to the County Assembly of Uasin Gishu and was duly considered and her name put down for nomination under the Member of National Assembly Gender Top Up category. The Complainant avers that she appeared at number 15 in the list and the same was duly published in the local dailies by the interested party.

3. The Complainant alleges that a new list has however been submitted by the Party and published on the website of the Interested Party wherein her name is conspicuously missing. It is this action that she is aggrieved of as she alleges it is an infringement of her political rights and legitimate expectations as well as the principles of natural justice.

4. There has been no response from the Respondent as at the time of making this decision despite proper service having been effected.

5. The Complainant equally filed a Notice of Motion Application of even date under a Certificate of Urgency and supported by an affidavit sworn by herself. The issues raised in the Application shall be determined contemporaneously with those raised in the Complaint.

Complainant’s Case 6. The Complainant avers that she is a duly registered member of the Respondent and based on her unwavering contribution to the Party activities, she made an application to be considered for nomination as Member of County Assembly Uasin Gishu County in the Gender Top Up Category.

7. The Complainant avers that her application was considered and her name duly put down in the party list as number 15 in the Member of National Assembly GenderTop Up category. She avers that the Respondent submitted the Party List to the Interested Party and the same was published in local dailies and on the Interested Party’s website.

8. The Complainant avers that the Respondent subsequently submitted a new list to the Interested Party and the same was published on the Interested Party’s website on August 24, 2022 in readiness for gazettement but her name is conspicuously missing in this new list.

9. The Complainant avers that the decision of the Respondent to excise her from the list of nominees is an affront to her political rights, legitimate expectations, and the rules of natural justice.

10. The Complainant avers that she tried to engage the Respondent's officials to explore internal party dispute resolution mechanisms but her attempts have been ignored prompting her to lodge the Complaint before this Tribunal.

11. The Complainant, therefore, prays for a declaration that the Nomination Party List published on the Interested Party’s website on August 24, 2022 at the behest of the party is illegal, null, and void in respect of the Gender Top Up category and omission of the Complainant from the list.

12. The Complainant equally prays that the Interested Party be directed to adopt and gazette the initial Party List wherein the Complainant appeared at number 15 of the list save for any changes effected vide different dispute resolution mechanisms available for disenfranchised parties.

Issues For Determination 13. On an analysis of the Complaint, Application and all other documents put before this Tribunal, the sole issue that emanates for this Tribunal’s determination is whether the decision by the Respondent to omit the Complainant’s name in the new list was within the confines of the law.

Whether The Decision By The Respondent To Omit The Complainant’s Name In The New List Was Within The Confines Of The Law. 14. Before delving into to the heart of this issue, this Tribunal finds itself compelled to set the record straight as to which post the Complainant was initially listed for nomination. Is it a Member of the National Assembly or a Member of the County Assembly?

15. The Complainant avers that she applied for nomination as Member of County Assembly Uasin Gishu County under the Gender Top Up category. Her application was considered and she was put down in the Member of National Assembly Gender Top Up category nomination list as number 15.

16. The Complainant has put before this Tribunal this alleged list as was published in the local dailies and on the Interested Party’s website. A perusal of the same however reveals that the Complainant’s name does not appear under the Member of National Assembly nominees list but under the Member of County Assembly nominees list for the Uasin Gishu County Gender Top Up category.

17. This Tribunal is therefore of the mind that the allegation that the Complainant was put down for nomination under the Member of National Assembly position can only have been occasioned by a typographical error in the drafting of the pleadings.

18. To the main issue at hand, The Elections Act and the Elections (Party Primaries and Party Lists) Regulations give political parties discretion in the preparation of party lists, so long as they comply with the constitutional and statutory guidelines on the same. Where any party member is concerned with how the process is carried out, the party is under an obligation to address them in line with its dispute resolution rules.

19. In this case, the Complainant has adduced evidence that she was on the Respondent’s initial list as submitted to the Interested Party. She has placed before us the initial list published in the dailies and on the Interested Party’s website with her name duly listed as number 15 in the nomination list for Member of County Assembly Uasin Gisu County Gender Top Up category.

20. The Complainant avers that a new list has been submitted by the Respondent to the Interested Party and the same has been published on the Interested Party’s website in readiness for gazettement. She posits that her name is completely missing from this new list.

21. The Complainant has placed this new list before this Tribunal and her name is indeed missing therefrom. Side-to-side comparison of the old list to the new list in fact reveals that the whole list was completely changed with some nominees being completely removed from the list and others being retained but with their order of priority having been altered.

22. The Complainant avers that this decision to omit her name from the new list was done contrary to the rules of natural justice and is in violation of her political rights and legitimate expectations.

23. We are inclined to agree with the Claimant on this aspect. Indeed, there is no evidence on record that any reasons were tendered to the Complainant on why she was excluded from the new list. It appears that the decision was unilaterally made by the Party and never communicated to the Complainant who only learnt of the decision when the list was published on the Interested Party’s website.

24. There’s equally no evidence placed before this Tribunal that any communication was made to any of the other nominees in the initial list giving reasons for their exclusion and/or change in priority in the new list.

25. In Complaint 170 of 2017 Harrison Mburu Gatumbi v Jubilee Party & 20 others, the Tribunal held as follows:” The right to reasons is a constitutional right guaranteed in Article 47(2) and explicated by section 4(3) of the Fair Administrative Action Act, 2015. The Act requires that information on the nature of the administrative action together with prior and adequate reasons must be given to the person whose rights are affected. Reasons for decisions by political parties are not only a part of the principles of natural justice and fairness but also enable an affected party member to know the possibility of and grounds for potential appeal to this Tribunal. Reasons also enable this Tribunal to have a better appreciation of the decision thus conduct a better appeal or review.”

26. To this end, we hold the view that in as much as the Respondent has the liberty to decide the criteria for nominating candidates, it was nonetheless under obligation to ensure that it does so lawfully. It ought to have communicated its decision to exclude and/or change the order of priority of the old nominees in its new list giving reasons why. It failed to do so.

Finding 27. In conclusion, the Complaint and Notice of Motion Application dated August 25, 2022 succeed in the following terms:i. A declaration be and is hereby issued that the nomination list for Member of County Assembly Uasin Gishu County Gender Top Up category submitted by the Respondent and published by the Interested Party on its website on August 24, 2022 is illegal, null, and void.ii. The Respondent be and is hereby directed to adopt and transmit to the Interested Party the initial party nomination list for Member of County Assembly Uasin Gishu County Gender Top Up category as published in the dailies on July 27, 2022 for gazettement.iii. These orders do convey to the Interested Party immediately.iv. No order as to costs.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 11TH DAY OF SEPTEMBER 2022. **Hon. Ligunya StephenPresiding MemberHon. Hashi Amina -MemberHon. Andrew Waruhiu- Member