[2022] KEPPDT 1046 (KLR)

Nganga v Jubilee Party & 3 others (Complaint E042 (NRB) of 2022) [2022] KEPPDT 1046 (KLR) (2 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1046 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E042 (NRB) of 2022

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

May 2, 2022

Between

Mark Ndungu Nganga

Complainant

and

Jubilee Party

1st Respondent

Chairman, Jubilee Party

2nd Respondent

Chairman Elections Board Jubilee Party

3rd Respondent

Azimio La Umoja One Kenya Alliance

4th Respondent

Judgment

1. The Complainant is a member of the 1st Respondent, Jubilee Party, which is duly registered as a political party.

2. On March 10, 2022 the Complainant paid up to the said Jubilee party the required Nomination Fees in the sum of Kshs 200,000/- and was issued with a receipt for the same by the said 1st Respondent.

3. Thereafter the 1st Respondent contacted the Complainant and other eligible aspirants indicating that it would issue the Party Nomination Certificates on Friday, April 22, 2022, at the 1st Respondent's headquarters, Jubilee House, Pangani along Thika Superhighway Nairobi.

4. On the said Friday April 22, 2022, the 2nd Respondent informed the Complainant categorically that there would be no nomination for the position of the Member of National Assembly, Makadara Constituency, Nairobi County and that instead the 1st Respondent acting under a Political arrangement with 4th Respondent herein and without consulting the Applicant, had come up with a phenomenon known as zoning by which the seat of Member of National Assembly Makadara in Nairobi County had been reserved for the Orange Democratic Movement Party.

5. Being aggrieved, the Complainant lodged a formal complaint with the 1st Respondent challenging the drastic decision but has been denied audience and instead been issued with threats and intimidation. The denial of audience has prompted the Applicant to approach this Honorable Tribunal.

6. On April 28, 2022, the Complainant filed the complaint together with a Notice of Motion application filed under Certificate of Urgency together with a Supporting Affidavit sworn by Mark Ndungu Nganga therewith together with annexures seeking orders:i.Dispensed.ii.The 1st Respondents and all coalition Member Parties under the 4th Respondent be and are hereby directed to recall the Nomination Certificate/Direct Ticket issued to their Name for the Nominee and Candidate for the position of Member National Assembly Makadara Constituency, Nairobi County under the zoning phenomenon pending the hearing and determination of this Application;iii.The 1st Respondent and all coalition Member Parties under the 4th Respondent be and are hereby directed to recall the Nomination Certificate/Direct Ticket issued to their name for the nominee and candidate for the position of Member National Assembly Makadara Constituency, Nairobi County under the zoning phenomenon pending the hearing and determination of the Complaint.iv.The 1st Respondent and all coalition Member Parties under the 4th Respondent be and are hereby restrained from submitting the Name for their Nominee and Candidate for the position of Member National Assembly Makadara Constituency, Nairobi County under the zoning phenomenon to the Independent Electoral & Boundaries Commission (the IEBC) pending the hearing and determination of this Application.v.The 1st Respondent and all coalition Member Parties under the 4th Respondent be and are hereby, restrained from submitting the Name for their Nominee and Candidate for the position of Member National Assembly Makadara Constituency, Nairobi County under the zoning phenomenon to the Independent Electoral & Boundaries Commission (the IEBC) pending the hearing and determination of the Complaint.vi.The 1st Respondent and all coalition Member Parties under the 4th 'Respondent be and are hereby, restrained from submitting the Name for their Nominee and Candidate for the position of Member National Assembly Makadara Constituency, Nairobi County under the zoning phenomenon to the Independent Electoral & Boundaries Commission (the IEBC) pending the hearing and determination of the Complaint.vii.This Honorable Tribunal be pleased to find that the Applicant being a registered member of the 1st Respondent and having paid up the nomination fees in respect of the nominations for the Member National Assembly Makadara Constituency, Nairobi County position, was successfully and duly nominated by the 1st Respondent in the exercise held on April 18, 2022 and therefore has the Legitimate Expectation that the 1st Respondent would issue him with the requisite nomination for the candidacy in the August 2022 General Elections;viii.This Honorable Tribunal be pleased to hold that the Applicant being a registered member of the 1st Respondent and having paid up the nomination fees in respect of the nominations for the Member National Assembly Makadara Constituency, Nairobi County position has a Legitimate Expectation that the 1st Respondentt would submit his name to the Independent Electoral & Boundaries Commission (the IEBC) for the candidacy in the August 2022 General Elections forthwith.ix.This Honorable Tribunal be pleased to direct and order the 1st, 2nd and 3rd Respondents to nominate the Applicant as its sole candidate Member National Assembly Makadara Constituency, Nairobi County for the August, 2022 General Elections.ix.This Honorable Tribunal be pleased to further issue such Orders and give such further directions as it may consider appropriate and just in the circumstances;ix.Costs of this application be provided for.

7. The matter was certified urgent and when the Respondents failed to appear at the inter partes hearing, the Complainant having presented their case interim orders issued.

8. On the April 30, 2022 the matter came up for hearing and again the Respondents were unrepresented. Affidavit of service supported proof of service.

9. The complaint seeks the following orders:-a.'The 1st Respondent and all coalition Member Parties under the 4th Respondent be and are hereby restrained from submitting the name for their Nominee and Candidate for the position of Member National Assembly Makadara Constituency, Nairobi County under the zoning phenomenon to the Independent Electoral & Boundaries Commission (the IEBC)b.This Honorable Tribunal be pleased to direct and order the 1st, 2nd and 3rd Respondents to nominate the Applicant as their sole candidate for Member National Assembly Makadara Constituency, Nairobi County for the August, 2O22 General Elections.c.Costs of the suit.d.Any other orders as the court may deem fit to grant.'

The Complainant’s Case 10. It is the Complainants case that when he paid the 200,000 fee to participate in the Jubilee party nominations for the position in issue and the said party proceeded to accept his fees he had legitimate expectation that the party was going to give him a chance to participate in a nomination process.

11. Instead, on April 16, 2022 he received a text message from the 1st Respondent inviting all Party Nairobi National Assembly aspirants to a Consultative Meeting on Nomination Process scheduled at the Windsor Golf Hotel & Country Club on Monday April 18, 2022 at 2pm.

12. Upon arrival at the said Windsor Golf Hotel & Country Club, he found several teams in groups of three (3) panelists assigned by the 1st Respondent the task of meeting various aspirants for each of the constituencies in Nairobi County.

13. In the case of Makadara Constituency, he found only one other aspirant Njugujna Mwangi, who voluntarily stepped down and offered to relinquish his pursuit for the same seat, leaving the Complainant as the sole nominee for the 1st Respondent for the Member National Assembly Makadara Constituency, Nairobi County.

14. The Windsor Meeting concluded by providing that as a way forward the Complainant and other eligible aspirants, would be issued with the Party Nomination Certificates on Friday April 22, 2022, at the 1st Respondent's Headquarters.

15. The Complainant avers that it is only on the said date that the 2nd Respondent informed him categorically that there would be no Nomination for the position of the Member National Assembly, Makadara Constituency, Nairobi County and that instead the 1st Respondent acting under a Political arrangement with the 4th Respondent herein had come up with a phenomenon known as zoning by which the seat of Member National Assembly Makadara Constituency Nairobi County had been reserved for the Orange Democratic Movement Party. without consulting me, thus infringing on my political rights .

16. The Complainant avers that the action and/or conduct of the Respondents has occasioned him great loss of resources in terms of time, and financial expenditure. That worse, he had llegitimate eexpectation to be the nominee and that the responsibility of such nomination rests squarely on the 1st, 2nd and 3rd Respondents.

17. The Complainant submits that he moved this Honorable Tribunal without unreasonable delay and thus urges the Tribunal for its interventionn as the conduct of the 1st 2nd and 3rd Respondents violated Article 38 of the Constitution of Kenya together with its construed values.

Issue For Determination 18. The matter being undefended despite service and affidavits of service being filed the only issue before us is whether to allow the Complaint.

Analysis 19. It is apparent from the record before us that the Complainant paid for consideration for nomination for the position of Member of Parliament Makadara Constituency Nairobi as evidenced by the attached receipt duly branded and stamped by the Jubilee Party dated 10/32022, receipt number 1312.

20. Also attached is his letter of protest addressed to the Secretary General of his party of choice Jubilee Party dated April 22, 2022.

21. An Affidavit of Service signed and sworn by one Godfrey Okutoyi, a Process Server, on April 28, 2022 shows effect of service.

22. The Complainant has not attached or shown sufficient documents that would enable this Tribunal assess or understand the relationship with the 4th Respondent.

Disposition 23. In light of our analysis we order as follows:a.That the 1st 2nd and 3rd Respondents are hereby directed to forthwith issue to the Complainant Mark Ndungu Nganga the final nomination certificate to contest for the position of Member of National Assembly for Makadara Constituency in Nairobi County on a Jubilee Party ticket, and to forward his name to the Independent Electoral and Boundaries Commission.b.That costs of the suit be borne by the 1st, 2nd & 3rd Respondents jointly and severally.c.That notification of this order issue to IEBC.

DATED THIS 2ND DAY OF MAY 2022. M. L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)