[2022] KEPPDT 991 (KLR)

Mwangi v United Democratic Alliance Party (UDA) - Kenya Secretary General & 2 others; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E124 (NRB) of 2022) [2022] KEPPDT 991 (KLR) (10 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 991 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E124 (NRB) of 2022

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

August 10, 2022

Between

Margaret Nyachania Mwangi

Complainant

and

United Democratic Alliance Party (UDA) - Kenya Secretary General

1st Respondent

United Democratic Alliance Party (UDA) - Kenya Chairman, National Elections Board

2nd Respondent

United Democratic Alliance Party (Uda) – Kenya

3rd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Introduction 1. The complainant is a member of the respondent. She challenges the change in her position in the party list from position 10 in the initial party list submitted to IEBC by the Respondent to position 52 in the party list published by the IEBC on July 27, 2022.

2. The complainant seeks the following orders from this Tribunal:a.A declaration do issue that the initial County Assembly Party list for Kiambu County submitted to and received by the IEBC, from the 1st and 2nd Respondents is the legal and valid County Assembly Party List for the 3rd respondent, United Democratic Alliance Party (UDA)-KENYA and the list published in the local dailies purporting to revise the County Assembly Party List for the 3rd Respondent and relegating the name of the Complainant from Number 10 to Number 52 is illegal, null and voidb.An order directed at the Interested Party IEBC to publish in the Kenya Gazette the complainant’s name at position 10 as it had been published in the initial Kiambu County Assembly Party List for the United Democratic Alliance Party (UDA)-Kenya nominations

3. The Complaint is opposed by the Respondent by their oral submission though no written responses were filed in reply and opposition thereto.

4. Pursuant to the directions issued by this Tribunal, this matter came up for hearing on 8th August 2022 when all parties made their respective oral submissions.

5. The Complainant was represented by Wanjiru Mwenda & Company Advocate. The Tribunal granted Mr Anjichi Advocate, holding brief for the firm of H&K Law Advocates, leave to make representation on behalf of the Respondents. The Interested party did not enter appearance despite service.

The Complainant’s Case 6. The Complainant swore her own Affidavit and witness statement. She claims she was an MCA aspirant in the Komothai Ward in Kiambu County during the UDA Party primaries held on 14th day of April 2022 which she emerged second place. She claims she invested her time and resources to educate the electorate in Komothai ward on the party’s manifesto.

7. It is her submission that due to party allegiance, vocal stand and vigorous campaigns for the party, her name was included in the initial list that was sent to IEBC by the party at position ten (10) and the 6th female in the list under the gender top up category.

8. She, however, avers that in the second list sent to IEBC, the Respondent had deliberately changed the initial list by including 9 more people who were not in the original list, and moving others including her from a good priority position to a disadvantaged position where she was placed at position 52 out of 53.

9. She claims that the actions of the Respondents were illegal and unlawful for the reasons that:i.The Complainant applied and was among the best hence number 10 on the List. She followed and adhered to all laid down procedures of the 1st, 2nd and 3rd Respondents as stipulated.ii.The process has been opaque contrary to Article 10 of the Constitution.iii.The purported revision by the 1st and 2nd Respondents complained of went beyond the requirement for compliance by the Interested Party which was not replacing the already selected and listed nominees which list the Complainant topped;iv.There is no legal basis for revising a Party List beyond the requirements of the Interested Party; andv.The decision was taken unilaterally, without the involvement or consultation with the Complainant, in breach of his Article 47 (1) rights.vi.The dispute resolution mechanism of the 3rd respondent has been invoked and the complainant has not had his complaint addressed despite the urgency signified.

10. She wrote to the Respondent a complaint letter dated July 29, 2022 requesting the Respondent to reinstate her position to number 10 in the nomination list.

The Respondents’ Case 11. The respondent did not file any response.

12. However, Counsel for the respondent submitted on points of law. He contends that this Tribunal has no jurisdiction to hear and determine this matter as no IDRM was attempted in accordance with the provisions of section 40(2) of the Political parties Act as read together with the Respondent party’s constitution. It is the Respondent’s submission that the letter purportedly addressed to the party did not properly invoke IDRM in accordance with the party constitution.

13. The respondent further maintains that the party lists were prepared in accordance with the Constitution, the Elections Act and the party laws.

Issues for Analysis and Determination 14. Having gone through the parties’ case, we have isolated the following issues for determination:i.Whether the Tribunal has jurisdiction to determine this matter?ii.Whether the Complaint has merit and what are the appropriate reliefs?

Whether the Tribunal has jurisdiction to determine this matter? 15. The place of jurisdiction in law is well settled as was stated in the locus classicus case of Owners 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 Tribunal’s jurisdiction flows from article 159 of the Constitution of Kenya and this position is buttressed further by the provisions of the Political Parties Act Section 40 which provide that: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 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.

17. The Complainant is a member of the United Democratic Party - the 3rd Respondent as evidenced by the receipt for party life membership subscription marked “MNM1” herein effectively qualifying this as a dispute between a member of a political party and a political party under section 40 (1) (b). Furthermore, the dispute is also within the ambits of party nominations as envisaged by section 40(1) (fa) having arisen from the Complainant’s dissatisfaction with the Party List for Nomination to the Kiambu County Assembly as submitted to the Interested Party - the Independent Electoral and Boundaries Commission.

18. As articulated under section 40(2) of the Political Parties Act, 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 mechanisms (IDRM). In the present matter, the Complainant has demonstrated her attempt at engaging the 3rd Respondent’s internal party dispute resolution mechanisms vide the letter dated 29th July 2022 to the Respondents which was received and stamped and has been adduced into evidence as “MNM5” together with her pleadings.

19. The position taken by the Tribunal with regards to the question of whether or not a Complainant has exhausted the internal dispute resolution mechanisms of their political party is one that does not require the matter to be heard and determined to completion provided an honest attempt can be determined. This requirement is known as the doctrine of exhaustion. The Tribunal in the case of Ibrahim Abdi Ali v Mohamed Abdi Farah & Another held that:“Where a party can show that he made honest attempts at resolving the dispute with the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving to the Tribunal even where his party has not concluded a hearing and a determination of his matter…”

20. 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. Having analysed the evidence before us in form of this letter dated 29th July 2022, we are of the opinion that the Complainant has effectively demonstrated her honest attempt at pursuing IDRM to no avail. Having established such effort, the Tribunal therefore determines that the Complainant is properly before it and that it has jurisdiction to determine this matter.

Whether the Complaint has merit and what are the appropriate reliefs? 22. The Complainant advances that the Respondents’ act of purported deletion and relegation of her name from the County Assembly Party List where she was position 10 and purported placement in position 52 is illegal and unlawful having gone beyond the requirements for compliance by the Interested Party. As such, she prays for a declaration that the initial party list is the legal and valid list and that the second list relegating her name from 10th to 52nd place be declared illegal, null and void.

23. Fundamentally, the main issue arising out of this line of argument is whether or not the Complaint has merit. Article 90 of the Constitution 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. Pursuant to this, the Respondents prepared and submitted a County Assembly party nomination list which was rejected and returned for not being compliant with the law.

24. There is no doubt that the Interested Party – the Independent Electoral and Boundaries Commission (the “Commission”) has the constitutional mandate to review and approve party nomination lists. It is evident that the Commission considered the initial party lists that had been submitted to it and rejected the same. This fact has been pleaded. The Commission having rejected the initial list and directed parties to amend the same, there is no gainsaying that the rejection of the first list effectively made it null and void. In the stated circumstances and without any sufficient basis, we are of the considered opinion that an order from this Tribunal declaring the first list legal and valid would amount to undermining the constitutional authority of the Interested Party. The Interested Party was well within its rights to reject the party nomination list and this effectively nullified the first list in which the Complainant was listed in 10th position.

25. Additionally, the Tribunal seeks to analyse the other element of the Complainant’s case that seeks the Tribunal to direct the Interested Party to publish the Complainant’s name at position 10 as it was in the initial Kiambu County Assembly Party List for UDA. This particular element speaks to the question of priority within the party nomination list. The Tribunal is cognisant that the question of priority on the lists submitted to the Interested Party 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. It is indeed the party that is seized with information pertaining to the contributions made by party members as well as which of its members fall within the special interest groups.

26. In any case, the Complainant herein would be better served if her complaint was contesting the exercise of her party’s discretion vis-à-vis another specified individual whose name is on the second list which is not the case. Additionally, while the Complainant’s contributions to the party have been clearly articulated and documented in her pleadings, this has not been evidenced in comparison to another party member on the list. As such, the Tribunal has no basis to displace any individual, such as the person currently at position 10 on the second party nomination list published on 27th July 2022. An attempt to undertake such a displacement without having the individual enjoined in these proceedings would be tantamount to a violation of the principles of natural justice that dictate that each person has a right to a fair hearing otherwise known as “the right to hear the other side”.

27. The prayers sought are thus impossible to countenance for the above reasons. The Tribunal therefore finds no merit in the Complainant’s Complaint.

28. On the issue of costs, whereas costs follow the event, having analysed the circumstances of the case we are of the view that each party should bear its own costs in these proceedings. In making this determination, it is the Tribunal’s view to ensure that it is careful not to discourage complaints in exercise of citizen’s democratic rights as enshrined in the Constitution of Kenya, 2010.

Disposition 29. In light of the foregoing, we order as follows:-i.The Complaint herein is disallowed for lack of merit.ii.Each party is to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF AUGUST 2022. DESMA NUNGO…… ……………………(CHAIRPERSON)DR. KENNETH MUTUMA…… …………………………(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)