[2022] KEPPDT 915 (KLR)

Njue v Mukanga & another (Complaint E049 of 2022) [2022] KEPPDT 915 (KLR) (9 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 915 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E049 of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 9, 2022

Between

Elizabeth Waithera Njue

Complainant

and

Susan Mukanga

1st Respondent

United Democratic Alliance Party

2nd Respondent

Judgment

1. The complainant is a member of the United Democratic Alliance Party and an aspirant for the position of Member of County Assembly for Mlango Kubwa Ward.

2. The Complainant participated in the 2nd Respondent’s party primaries held on the April 14, 2022 for the post of Member of County Assembly for Mlango Kubwa Ward but claims that the said party primaries were marred with violence, irregularities and election malpractices.

3. Being dissatisfied with the manner in which the nominations were conducted the complainant filed an Appeal at the 2nd Respondents Electoral and Nomination Dispute Resolution Committee, Disciplinary Committee and the National Elections Board.

4. The Complainant seeks an order of stay against the issuance of the party nomination certificate and conservatory orders preventing the United Democratic Alliance Party from submitting the list of nominees of the Member of County Assembly position in Mlango Kubwa Ward, in Nairobi County to the Independent Electoral and Boundaries Commission.

5. The complaint is opposed by the 1st Respondent who has filed a Replying Affidavit sworn on the April 30, 2022.

6. The Complainant was represented by Johnstone Daniel Jr Advocate, and the 1st Respondent is represented by the firm of Okatch & Partners Advocates. The 2nd Respondent is represented by SMS Advocates LLP.

Complainants Case 7. The Complainant filed her complaint under certificate of urgency on the April 28, 2022 accompanied by a Notice of Motion Application, supported by her affidavit and annexures together with her verifying affidavit and witness statements which are properly on record.

8. The Complainant and the 1st Respondent are registered members of the United Democratic Alliance (UDA) party the 2nd Respondent. They were both cleared by the 2nd Respondent to participate as candidates for nomination for the position of Member of County Assembly Mlango Kubwa Ward Nairobi County.

9. On the April 14, 2022 the 2nd Respondent organized and held party primaries for the nomination of candidates to the August 2022 general elections.

10. The Complainant avers that the said party primaries were marred by general violence that was targeted towards her, she claims that she was denied access to the polling station together with other aspirants and her supporters.

11. She claims that on the April 14, 2022 she went to exercise her right to vote at St Teresa’s Secondary School and was violently prevented from accessing the polling station to cast her vote by a group of men that she believes were the supporters of the 1st Respondent.

12. She claims that she was sexually assaulted by a group of 8 men who touched her inappropriately tearing her clothes off leaving her breasts exposed and beating her up. She says that this incident was witnessed by hundreds of voters who had lined up to vote and was widely covered by several mainstream and social media including the star, pulse Kenya, Ghetto Radio 89. 5 Tuko.co.ke amongst others. The media reports are attached.

13. She claims that she was forced to exit St Teresa’s Secondary School without accessing the Polling Station to cast her vote because of the intimidation and violence.

14. She contends that the said chaos made it impossible for her team to monitor the voting exercise and the results were therefore not verified.

15. The Complainant states that she reported the sexual assault at Pangani Police Station under OB Number 75 on April 14, 2022 but there has not been any investigation by the Police.

16. She claims that these acts disenfranchised her, other aspirants, and their supporters of their right to vote.

17. She claims that the actions of the supporters of the 1st Respondent had the effect of subverting what was supposed to be a democratic process and she strongly believes that the intimidating environment created by the 1st Respondent’s supporters coupled with the sexual assault made a mockery of the nomination exercise.

18. She wants the UDA Party and its Dispute Resolution Committee to rightly declare the nomination process in Mlango Kubwa Ward a nullity and suspend the 1st Respondent from participating in any future nomination exercise for having violated the Party’s Constitution it is Code of Conduct and multiple election laws.

19. She claims that even after the 1st Respondent was declared the winner of the nomination process her supporters have continued to threaten her team with dire consequences should she complain to the UDA Party about the violence and chaos.

20. Being aggrieved and dissatisfied with the nomination exercise the complainant raised her dissatisfaction before the 2nd Respondents Internal Disputes resolution mechanism i.e. the Electoral and Nomination Dispute Resolution Committee, Disciplinary Committee and the Election Board.

21. That the said Committee made a determination that they had no jurisdiction to make a determination on the substance of the matter and they escalated it to the National Elections Board where she claims that no determination has been made.

22. The complainant states that she is aggrieved by the issuance of the party nomination ticket to the 1st Respondent yet the dispute she filed and which was transferred to the National Elections Board and the Appeals Board has not been determined.

23. This has prompted her to approach the Tribunal for assistance as the Respondents are making arrangements to submit to the Independent and Electoral Boundaries Commission the final names of persons nominated to contest the General Elections which action will drastically disenfranchise the Complainant completely.

24. That unless this honorable Tribunal intervenes and grants the orders as prayed the Complainant will suffer great loss and prejudice. On the other hand, the Respondent will not suffer any prejudice if the orders prayed are granted.

25. The Claimant seeks the orders as prayed in the Claim and in the Notice of Motion Application.

Respondents’ Case 1 st respondent’s case 26. The 1st Respondent filed her response to the complaint herein vide her affidavit s sworn on the April 30, 2022.

27. In her affidavit, in response to the claim, she denies the allegations of being involved in any disruption on any processes before, during and after the nominations carried out on the April 14, 2022.

28. She claims that she was informed by her agents who were present at the polling center on the material day that the interference with the voting process that occurred around 8p.m was caused by two members of parliament aspirants Mr Michael Mingai and Mr Wesonga.

29. She maintains that all aspirants had their authorized agents in the polling stations who were allowed to monitor the process and that no verbal or written complaint had been against her to the Returning officer stating that she destroyed polling materials in the polling stations.

30. She avers that she has never sat in any meeting to organize violence of any nature against any person or even the complainant.

31. She maintains that she secured a unanimous win fairly and was issued with a nomination certificate as per the law and adds that the complaint is frivolous and aimed at discrediting her and undermining the whole nomination process.

32. She contends that if the complaint is dismissed the complainant stands to suffer no prejudice whatsoever and that it is in the interest of justice and democracy that the complaint be dismissed.

Issues for Analysis and Determination 33. Having read through the pleadings and submissions of the parties together with the attached annexures the following are the issues the Tribunal has identified for determination in this claim:i.Whether the tribunal has the jurisdiction to hear and determine the matter.ii.Whether the complainant has proved her case to the required standard.iii.What orders can the Tribunal issue in the circumstancesiv.Who bears the costs of this claim?

Disposition Whether the tribunal has the jurisdiction to hear and determine the matter. 34. Before we delve into the matter we will first ascertain if this Tribunal has the jurisdiction to hear and determine the matter.

35. The Electoral Nomination Dispute Resolution Committee of the 2nd Respondent on the 21st of April 2022 made a ruling wherein they stated that the committee is not seized with the jurisdiction to deliberate on the matter, and they recommended alternative measures to be given by the National Elections Board of the 2nd Respondent. The Counsel for the 2nd Respondent, in their submission dated 4th of May 2022, stated that the provisions of the political parties Act, the party constitution, the United Democratic Alliance, Electoral and Nomination Dispute Resolution Committee Rules and Procedures clearly oust the jurisdiction of this honorable tribunal to hear and determine the matter.

36. They continued to say that the Dispute Resolution Committees’ under the 2nd Respondent party are well equipped to deal and determine the dispute fully and resolve the matters and or issues at hand conclusively, as was directed by the Electoral Nomination and Dispute Resolution Committee.

37. That due to the afore-going reasons this honorable tribunal is not the proper forum for the hearing and final determination of this dispute.

38. The complainant in her supplementary submissions dated 4th of May 2022 submitted that under the political parties Act Section 40(2) states that a party who attempts to resolve the matter before the IDRM even through submitting a complaint letter with or without further action will clothe this Tribunal with Jurisdiction.

39. The issue of jurisdiction is not new to the determination of this tribunal a number of authorities which we will reproduce here for ease of reference have expounded on its jurisdiction. First the Jurisdiction of this Court is clearly delimitated in section 40 of the Political Parties Act which states 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; andg.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.”

40. The tribunal has powers to hear and determine disputes between a member of a political party and the political party after subjecting the same to an IDRM. Section 40(2) states of attempt to subject the dispute to IDRM. Therefore, what a party needs to establish is that he or she made honest attempts in resolving the same before the IDRM of a party.

41. In a recently differently constituted bench in Complaint Number 003 Of 2022 Hon Elisha Ochieng Odhiambo V Dr George Jalango Midiwo & 3 others at paragraph 32 observed as follows: -“Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions.”

42. In Complaint No E020 of 2021 Oscar Kambona v Schola Nyenze and Othersthe tribunal noted the following:“The exceptions are founded on good reason. At times, the internal mechanisms prescribed in party constitutions and other governing instruments are either nonexistent, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute.”

43. InIbrahim Abdi Ali v Mohamed Abdi Farah & Another (Complaint No 29 of 2015), we held, that:“Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.”

44. In Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7, we confirmed that:“Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.”

45. The Complainant has adduced evidence before us that indeed she made honest attempts to resolve the matter through the party IDRM wherein the IDRM held that it is bereft of jurisdiction and referred the matter to NEB. As was stated in the Ibrahim Abdi Ali case where the party processes are not satisfactory due to their delay which may end up compromising the subject matter a party cannot be faulted for approaching the Tribunal for a final determination like the case before us.

45. In the case ofRepublic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd [2021] eKLR the court observed as follows:“In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the claimant with the outcome sought as a matter of substance. It is for this reason that section 9 (4) of the Fair Administrative Action Act, provides that the Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.”In considering the adequacy of a remedy then the court or Tribunal has to consider its adequacy that is the remedy should be effective, expeditious and effective in the practical terms of the circumstance.

47. InRepublic vs National Environment Management Authority, Civil Appeal No 84 of 2010 the Court of Appeal observed 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 structures 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.”In the case the Court gave circumstances where exceptions can be made to the doctrine of exhaustion that is where the statutory appeal procedure is suitable to hear and determine the matter conclusively.

48. The Complainant having moved the 2nd Respondent’s IDRM to resolve the matter wherein the Dispute Resolution Committee ruled that they are bereft of Jurisdiction is enough to show honest attempt to resolve the matter internally however the party structures seem to be bent in compromising the subject matter.

49. We, therefore, hold that this Tribunal is well seized of the matter.

Whether the complainant has proved her case to the required standard. 50. The Complainant has submitted before this tribunal that nomination exercise was marred by violence from the supporters of the 1st Respondent. That she was denied access to the polling station where she was supposed to exercise her political rights of voting.

51. The Complainant has also stated that she was sexually assaulted that the supporters of the 1st Respondent tore her clothes leaving her breasts exposed and she produced OB Number 75/14/4/2022 and pictures to support her claims.

52. The 1st Respondent does not deny the allegations of violence and or disruption and destruction of party poll materials she instead blames it on Mr Mungai and Mr Wesonga aspirants for Member of Parliament position in their area.

53. It is trite law that he who alleges must prove. The Claimant before us has levelled a number of allegations that we shall determine if they are proved to the standard.

54. In the case of Raila Odinga & Others v Independent Electoral and Boundaries Commission & Others, Petition No 5 of 2013 (as consolidated with Petition No 3 and 4 of 2013) In that case, the Supreme Court held that; -“...a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”It is now accepted and settled that in an Election disputes the burden of proving the allegations in a claim lies throughout with the claimant.

55. In the case of John Kiarie Waweru V Beth Wambui Mugo & 2 Others(2008) EKLR 4, Court set out the standard of proof on page 5 in the following words:“As regards the standard of proof which ought to be discharged by the petitioner in establishing allegations of electoral malpractices, there is consensus by electoral courts that generally the standard of proof in electoral petition cases is higher than that applicable in ordinary civil cases i.e. that proof on a balance of probabilities. The standard is higher than proof on a balance of probabilities but lower than the standard of proof beyond reasonable doubt required in establishing criminal cases. Allegations of electoral malpractices like for instance bribery require higher proof.”

56. The threshold of proof should in principle be above a balance of probability that is applicable in civil cases though not as high as beyond reasonable doubt that is applicable in criminal cases.

57. The complainant has adduced evidence supporting her allegations that the nomination exercise was marred with violence and the same substantially affected the outcome of the elections as she even was not allowed to cast her vote a violation of her political rights.

58. The 1st Respondent seems to agree that nomination exercise was marred with violence however she blames the same on Mr Mungai and Mr Wesonga member of parliament aspirants and states that the same is not traceable or attributable to her and therefore that should not be used as a ground to nullify the nomination exercise.

59. Article 81 of the Constitution of Kenya underwrites the general principle of our electoral system in the following words:“General principles for the electoral systemThe electoral system shall comply with the following principles—a.freedom of citizens to exercise their political rights under Article 38;b.not more than two-thirds of the members of elective public bodies shall be of the same gender;c.fair representation of persons with disabilities;d.universal suffrage based on the aspiration for fair representation and equality of vote; ande.free and fair elections, which are—(i)) by secret ballot;(ii)) free from violence, intimidation, improper influence or corruption;iii.conducted by an independent body;iii.transparent; andiii.administered in an impartial, neutral, efficient, accurate and accountable manner.”

60. Article 38 (3) of the Constitution of Kenya emphasizes on the need to vote via a secret ballot. It provides:“(3)Every adult citizen has the right, without unreasonable restrictions—a.to be registered as a voter;b.to vote by secret ballot in any election or referendum; “(Emphasis added)

61. All elections, without exception, are to be held to standard established under Section 83 of the Elections Act, 2011, which provides that:“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in written law or that the non-compliance did not affect the result of the election.

62. Elections being human activities are prone to be imperfect and small infractions which do not substantially affect the outcome of the results are to be ignored. However, we must always bear in mind that any elections that does pass the muster set in the Constitution the same cannot be held to be valid. In PPDT Complaint 019 of 2022John Andiwo v The National Elections Board (ODM) and Others the Tribunal observed as thus:“The Constitution of Kenya is the grund norm from which all laws spring and must conform to. The principles of the Kenyan electoral system with which all laws must align is set out in Article 81 of the constitution afore-quoted. While we appreciate that a political party has the right to choose an appropriate method of election, in this case electronic or digital, the fundamental overarching constitutional principles that govern such elections remain the same and are immutable. The election must be free and fair, underpinned by a verifiable and accountable process. In other words, it must be able to withstand scrutiny and a forensic audit.”

63. As stated in article 81 of the Constitution elections are supposed to be free from intimidation, violence and the same should be conducted through secret ballot. The evidence before us which all parties seem to agree is that the nomination exercise was conducted in a noxious environment of violence and chaos. This violated the political rights of the Complainant from voting. That even her agents were not allowed into the polling stations to oversee the nomination exercise.

64. The allegations of violence are serious offences. In a recent judgment from a differently constituted benched in Complaint No E004 Of 2022 Nicholas Kut Ochogo V Orange Democratic Movement Party & 3 others held as thus: -“80. While this tribunal does not purport to exercise criminal jurisdiction, it will require a higher threshold for election offences alleged that border criminal conduct. Somewhere above a balance of probability but not as high as beyond reasonable doubt.

81. The Complainant has put in affidavits on oath by three of his agents testifying to the allegation of violence at the tallying centre and their ejection therefrom. Admittedly, OB report numbers have also been referred to. As a complainant in a criminal case, it is enough that one reports to the police and allows the police to undertake investigations. No further obligation is placed on a complainant.”

65. The Complainant herein reported the violence to the police to conduct investigation and bring those culpable to book. There are OB Numbers on record for the same and we think that is enough and no further responsibility is cast on the complainant.

66. Agents of an aspirant ensure that the nomination exercise is transparent and accountable. The fact that the violence which was meted on the Complainant led to her agents not being allowed to witness the process and collation of the results is substantial enough to affect the outcome of the results. In our view, the violence affected the conduct of the nomination exercise and the same cannot be held to be a reflection and the will of the people.

67. We hold that the nomination exercise was not free, fair, transparent, accountable and verifiable and did not meet the Constitutional muster as set in Article 38 and 81 of the Constitution of Kenya 2010.

68. In the upshot, we make the following orders: -a.The complaint herein is allowed.b.A declaration be and is hereby issued that the nomination certificate issued by the 2nd Respondent to the 1st Respondent is null and void and of no effect in law.c.An order be and is hereby issued directing the 2nd Respondent to conduct a fresh nomination exercise for the position Member of County Assembly for Mlango Kubwa Ward, within 72 hours following the pronouncement of this judgment.d.The 2nd Respondent is further directed to forthwith submit the name of the duly nominated candidate to the IEBC.e.A copy of this judgment be transmitted to the IEBC forthwith. For the avoidance of doubt, in the event that the 1st Respondent’s name has already been submitted to the IEBC, the same not to be gazetted pending the implementation of this judgment.f.In the interest of party unity, each party to this dispute shall bear their own costs of the Complaint.

69. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MAY 2022. ………………………………………………………………HON. ERASTUS ORINA(PRESIDING MEMBER)……………………………………………………………HON. THERESA CHEPKWONY(MEMBER)……………………………………………………………..HON. DANIEL KAGACHA(MEMBER)