[2022] KEPPDT 1002 (KLR)

Njuguna & 3 others v United Democratic Alliance Party Chairman & 3 others (Complaint E048 (NRB) of 2022) [2022] KEPPDT 1002 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1002 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E048 (NRB) of 2022

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

May 12, 2022

Between

Damaris Njuguna

1st Complainant

Josiah Gatune Njuguna

2nd Complainant

Felister Gicharu

3rd Complainant

Wanjiru Reuben Thiong'o

4th Complainant

and

United Democratic Alliance Party Chairman

1st Respondent

UDA National Elections Board

2nd Respondent

James Koria Karanja

3rd Respondent

Independent Electoral and Boundaries Commission (IEBC)

4th Respondent

Judgment

Introduction 1. The Complainants and the 1st Respondent, are all members of the United Democratic Alliance Party the 2nd Respondent herein and were aspirants for the position of Member of County Assembly for Matopeni/Spring Valley Ward in Embakasi Central Constituency.

2. They all participated in the 2nd Respondent’s party nomination process held on the 14/04/2022 for the post of Member of County Assembly for Matopeni/Spring Valley Ward where the 3rd Respondent was declared the winner.

3. Dissatisfied with the nomination process, the Complainant’s filed a dispute with the 2nd Respondents Dispute Resolution Committee being EDRC No. 132 of 2022. The Election Board heard the matter and issued its judgment as follows:a.The Application is successfulb.Scrutiny of the residual ballot materials in the ward.c.Recount and Re-tally of the ballot papersd.Each party to bear their own costs.

4. The 2nd Respondent has since failed to comply with the judgment and the complainants are now apprehensive that the name of the 3rd Respondent will be unlawfully submitted to the Independent Electoral and Boundaries Commission and he will be cleared to contest in the August 2022 General Elections for the position of Member of County Assembly Matopeni/Spring Valley Ward Embakasi Central Constituency in Nairobi County.

5. The Complainants are seeking various orders in their complaint including but not limited to orders to compel the United Democratic Alliance Party to comply with the UDA Election Committee ruling in EDRC No. 132/2022 and an order to restrain the Independent Electoral and Boundaries Commission from clearing the name of the 3rd Respondent as the UDA nominee to contest for Member of County Assembly Matopeni/Spring Valley Ward.

6. The complaint is opposed by the 1st and 2nd Respondents who have filed their replies to the Complaint and also filed Notice of Preliminary Objection. The 3rd Respondent also filed his reply and a notice of preliminary objection.

7. The 4th Respondent (IEBC) did not enter an appearance, nor did they file a defense in response to the complaint.

8. The Complainant was represented by Jinaro & Co. Advocate, the 1st and 2nd Respondents are represented by the firm of H&K Law Advocates and the 3rd Respondent is represented by T.M Kuria & Co. Advocates. There is no representation for the 4th Respondent.

Complainants Case 9. The Complainants filed their complaint under certificate of urgency accompanied by a Notice of Motion Application, supported by the affidavit of Josiah Gatune Njuguna the 2nd Complainant and annexures together with her verifying affidavit and witness statements.

10. The Complainants and the 3rd Respondent are registered members of the United Democratic Alliance (UDA) party. They were cleared by the 2nd Respondent to participate as candidates for nomination for the position of Member of County Assembly Matopeni/Spring Valley Ward Embakasi Constituency Nairobi County.

11. On the 14/04/2022 they participated in the nomination exercise where the 3rd Respondent was declared the winner under the UDA ticket for Member of County Assembly Matopeni/Spring Valley Ward, Embakasi Central Constituency in Nairobi County.

12. Consequently, the 3rd Respondent was issued with a provisional certificate of nomination.

13. The Complainants being dissatisfied with the manner the nominations were conducted filed a complaint with the UDA National Elections Board being complaint EDRC 132/2022 on the 18/04/2022 where they sought a nullification of the nominations and an order for repeat nominations.

14. The Complaint was heard by the UDA Election Board who issued its judgment which read in part as follows:i.The Application is successfulii.Scrutiny of the residual ballot materials in the ward.iii.Recount and Re-tally of the ballot papersiv.Each party to bear their own costs.

15. It is the Complainants case that the 2nd Respondent has failed and or ignored to comply with the said orders and is not keen to comply with the same.

16. They are apprehensive that the 2nd Respondent will forward the name of the 3rd Respondent to Independent Electoral Commission for clearance to vie for the position of Member of County Assembly Matopeni/Spring Valley Ward Embakasi Central Constituency.

17. The Claimants seeks the orders prayed in the Claim and in the Notice of Motion Application.

Respondents’ Case 1st and 2nd Respondents’ Case 18. The 1st and 2nd Respondents also filed a response to the complaint vide a replying affidavit which was sworn on the 05/05/2022 by the Chairperson National Elections Board in the UDA Party.

19. They reiterate the averments by the Complainants and the 3rd Respondents on their clearance to vie for the MCA Matopeni/Spring Valley Ward and the nomination exercise that took place on the 14/04/2022.

20. They aver that the Party through the National Elections Board conducted the nomination process as per Article 31 of the UDA Constitution.

21. They confirm that the Complainants filed EDRC 132/2022 before the Party’s Elections Disputes Resolution Tribunal Committee and a ruling was delivered on the 23rd April, 2022 directing scrutiny of the residual ballot materials in the ward and recount and re-tally of the ballot papers.

22. They contend that the complaint and the application by the Complainants offend the mandatory provisions of Rule 8(1) of the Political Parties Disputes Tribunal (Procedure)Regulation 2017.

23. They aver that the Complaint herein was filed on the 28/04/2022 at 9. 04 a.m. contrary to the requirement of Rule 8 (1) that a complaint against the decision of the Committee be filed before the Tribunal at least one day before the day set aside by the Commission for submissions of names of the party candidates who have been selected to participate in the general elections.

24. They opine that the complaint and application are time-barred and thus this honourable tribunal lacks jurisdiction to hear and determine it.

25. That for the said reasons they want this Tribunal to strike out the Complaint and the Application.

26. They further state that the allegations by the Complainants are unsubstantiated claims and they remain as mere statements and the Complainants have failed in in their duty to discharge the burden of proof placed on them by the law.

27. They maintain that the nomination process in Matopeni/Spring Valley Ward was free and fair, transparent and credible, and was conducted in strict adherence to the constitution the electoral laws and the party constitution, and this Tribunal should uphold the nominations

3rd Respondent’s case 28. The 3rd Respondent filed his response to the complaint in his replying affidavit sworn on the 3/05/2022 he has also raised a preliminary objection on a point of law.

29. He confirms the averments by the complainants on the nomination exercise that was undertaken by the UDA Party on the 14/04/2022 for the post of Member of County Assembly of Matopeni/Spring Valley Ward Embakasi Central Constituency.

30. He maintains that the exercise was peaceful and flawless and that at around 8. 20 p.m. the results were announced and he has tabulated the outcome as follows:i.James Koria Karanja……………………. 433 Votesii.Josiah Gatune Njuguna……………….... 244 Votesiii.Reuben Thiongo Wanjugu……………… 153 Votesiv.Damaris Wanjiru Njuguna…………….... 45 Votesv.Felistas Wairimu Gicharu……….……….27 Votesvi.Joshua Irungu Wanderi………………….59 Votesvii.Joseph Wachira Kithindi…………………6 VotesHe has annexed an extract of the declared results being annexure JKK1 (a) & (b)

31. He avers that while the results were being declared he never encountered any complaint as to the counting and tallying of votes and he believes that the aspirants, their agents and the general public were satisfied with the general outcome of the said nomination process.

32. He states that having been declared the winner he was issued with the interim certificate of nomination which he has attached as annexure JKK 2(a) & (b).

33. He claims that he had no knowledge that the Complainants had presented a complaint with UDA Party Dispute Resolution Committee as he had travelled immediately after the results had been declared.

34. He became aware of the complaint on the 19/04/2022 after the 1st Complainant forwarded to him the hearing notice for the hearing of the case in EDRC No.132/2022.

35. He contends that after receiving the said hearing Notice, he contacted his Agents to enquire of the issue and his agents denied having any knowledge of the complaint.

36. He maintains that he was not served with the complaint as required by law but upon proceeding to the UDA Offices he was told that the matter had been heard ex parte and a judgment date set for the 23/04/2022.

37. He claims that he accessed the ruling on 24/04/2022 in one of the Applicant’s Facebook pages and was aggrieved by it as he was never afforded an opportunity to defend himself and thus he was exposed to substantial prejudice.

38. He reiterates that the nomination exercise was not only above board but that it was conducted within the confines of the laid down laws and protocols.

39. He claims that despite being given directions to serve him with the pleadings before both the UDA disputes Resolution Committee and the present proceedings the Complainants have intentionally failed to comply with the orders which to him is mischievous on the part of the complainants.

40. He opines that the present application offends the provisions of the Political Parties Disputes Tribunal Rules, Rule 8(i) which directs that “any complaint filed shall be filed at least one day before the day set by the Commission for the submission of the names of the party candidates who have been selected to participate in the general elections…”

41. He avers that the party did submit the names of the successful aspirants to the IEBC on 22/04/2022 and that the complainants’ application does not meet the threshold set under the rules.

42. He wants the matter directed back to the Party’s Dispute Resolution Committee for inter parties hearing as the same was heard exparte defeating the Constitutional Principle of Natural Justice.

43. He claims that he has learned from unimpeachable sources and social media reports that the 2nd Complainant has registered as an independent candidate but has not disclosed this to the Tribunal.

44. He prays that the complainant’s complaint be dismissed.

45. This Tribunal notes that some pleadings are not dated and signed and that the Respondents have changed the parties and included other parties who the Complainants did not sue.

Issues for Analysis and Determination 46. 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 jurisdiction to hear and determine this complaint?ii.What orders can the Tribunal issue in the circumstancesiii.Who bears the costs of this claim?

Disposition Whether the Tribunal has jurisdiction to hear and determine this complaint. 47. The 1st and 2nd Respondents have raised a preliminary objection on points of law “that the application offends the mandatory provision provided for on the Political Parties Dispute Tribunal Rules-Rule 87(i) and hence the same cannot be sustained in Law”

48. The 3rd Respondent has also raised a similar Preliminary Objection on points of law and maintains that the jurisdiction of this Tribunal has been ousted by dint of express provisions of the law.

49. Rule 8 (1) of the Political Parties Disputes Tribunal (Procedure) Regulations 2017 provide as follows:“A complaint against the decision of the Internal Political Party Dispute Resolution Mechanism arising out of Political Party Primaries shall be filed with the Tribunal not more than fourteen days from the date of the decision, and in any case at least one day before the day set aside by the Commission for submission of names of the party candidates who have been selected to participate in the general elections pursuant to section 31 (2A) of the Elections Act (No.24 of 2011)”

50. The IEBC through the Statutory Timelines Towards the 9th August 2022 General Election issued on 5th April 2022 issued directions to Political Parties to submit the names of persons selected to contest in the General Election on or before Thursday 28th April 2022.

51. The Complaint herein was filed on 28/04/2022 which is the deadline set by the IEBC.

52. The jurisdiction of the Tribunal can be limited by the Regulations, Being Regulation 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations 2017 as adduced by the 1st and 2nd Respondent and as stated in Section 40(2) that the Tribunal can only be seized of a matter after the same has been subjected to IDRM.

53. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the court held that: -“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

54. This Tribunal cannot therefore arrogate itself jurisdiction which it does not possess it can only exercise its jurisdiction as clearly captured under Section 40 of the Political Party Act.

55. Jurisdiction can and is sometimes limited by statute or regulations. In Republic vs Karisa Chengo (2017) eKLR the Supreme Court had this to say as regards jurisdiction: -“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics….” (Emphasis added)

56. Rule 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 makes reference to section 31(2A) of the Elections Act. The said section provides that: -“Every political party shall submit the names of the party candidates who have been selected to participate in the general elections under this Act at least sixty days before the elections.”

57. Between the Regulations and the Elections Act, there appears to be some discrepancy. On the one hand, the regulations state that the deadline for lodging a dispute arising from a party primary is at least one day before the commission's deadline for submitting party candidate names. The Elections Act, on the other hand, espouses that a dispute can be lodged with the Tribunal at least sixty days before the general election.

58. The Political Parties Disputes Tribunal (Procedure) Regulations, 2017 are a Statutory Instrument and or a subsidiary legislation. Section 2 of the Statutory Instruments Act defines Statutory Instruments as: -“…. any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.”

59. The Interpretation and General Provisions Act Section 3 defines a subsidiary legislation as thus: -“Means, any legislative provision (including a transfer or delegation of powers or duties) made in exercise of a power in that behalf conferred by a written law, by way of by-law, notice, order, proclamation, regulation, rule, rule of court or other instrument.”

60. Section 31 of the Interpretation and General Provisions Act proceeds to give general provisions with respect to power to make subsidiary legislation and it provides the following: -“Where an Act confers power on an authority to make subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of the subsidiary legislation—a.when subsidiary legislation purports to be made or issued in exercise of a particular power or powers, it shall be deemed also to be made or issued in exercise of all other powers thereunto enabling;b.no subsidiary legislation shall be inconsistent with the provisions of an Act;” (Emphasis added)

61. Where there exists inconsistency between the Regulations and the Act the provisions of the Regulations are void to the extent of that inconsistency. Recently in a differently constituted bench this Tribunal in Complaint. E003 Of 2022 Samuel Muriithi Mwafrika V Lillian Omollo & 3 others determining the same issue observed as follows:“In view of the material inconsistency between the Act and the Regulations, it is clear that the provisions of the Regulations are void to the extent of that inconsistency. The effect would mean that the said inconsistency cannot be used to limit the jurisdiction of the PPDT and deny an aggrieved party substantive justice.”

62. In the circumstances of the case Rule 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 is void to the extent that it is inconsistent with section 31(2A) of the Elections Act and this Tribunal takes judicial notice that we are more than 60 days away from the general elections and hence this tribunal is clothed with jurisdiction to hear and determine the matter.

63. Having established that we are well seized of the matter we shall proceed to determine other issues in question.

What orders can the tribunal issue in the circumstances 64. The Complainants have presented evidence before us that they approached the 2nd Respondent IDRM who heard the matter and the gave the following orders: -i.The Application is successfulii.Scrutiny of the residual ballot materials in the ward.iii.Recount and Re-tally of the ballot papersiv.Each party to bear their own costs.

65. That the 2nd Respondent has neglected, ignored and/or refused to comply with the said orders.

66. The Complainants approached the Tribunal for enforcement of the decision of UDA election board being EDRC No. 132 of 2022. We note that the said ruling which has been attached by the complainants and the Respondents is undated.Indeed, we can confirm that we have enforcement powers as captured under Section 41 (3) of the Political Parties Act which provides as thus: -“A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates Court but the Tribunal shall have the powers of the High Court to punish for any acts or omissions amounting to contempt of the Tribunal.”

67. We shall now proceed to dissection of the issues in the complaint.

Compliance of court and or Tribunal orders 68. Parties who are aggrieved by a nomination process must first resolve their issues with the party IDRM, and any party that is dissatisfied with the IDRM's decision may appeal to this Honourable tribunal.

69. No organ inside the Party has the authority to overturn the Tribunal's decisions. To entertain such a line of argument would be opening a Pandora's box, encouraging the undermining of the tribunal's and, by extension, the courts' judicial power. The court judgements will be rendered meaningless within the party's organs, which will choose which parts of decisions to follow and which to ignore, replacing them with their own conclusions.

70. The decision by the 2nd Respondent was never challenged and therefore there is no other justification for non-compliance.

71. In the case of Fred Matiang’i, The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government –vs- Miguna Miguna & 4 Others [2018] eKLR, is instructive on this issue the court observed as follows:“…When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”

72. Court and or tribunal decisions are not mere suggestions that parties can cherry pick, once a tribunal renders itself then the parties have to comply with the decision or challenge it in the laid-out procedure in law.

73. In Complaint No. 47 of 2017 Hezron J. Opiyo Asudi and John Okech Ongere v Peter Anyang Nyongo & 4 others while interpreting Section 40 the Tribunal observed as follows:“The requirement for invocation of parties’ IDRM has its rationale. Article 4(2) of the Constitution declares in no uncertain words that Kenya shall be a multiparty democratic State founded on the national values and principles of governance referred to in Article 10. Hence there is need for everyone, this Tribunal included, to promote and protect the multiparty system in our country. This is the rationale of Section 40 of the Political Parties Act; promoting political parties’ internal democracy and autonomy.”

74. The Tribunal is supposed to enhance multiparty democracy founded on national values and principles of governance and promoting IDRM and party autonomy. However, in the interests of justice and in line with our constitutional duty as established in Article 50 on fair hearing we have a mandate to ensure that we don’t drive out a disputant from the seat of justice without considering their evidence. After sifting through the pleading, submissions and annexures the Complainants have not challenged the issue raised by the 3rd Respondent that he was not served, and the matter proceeded without him tendering his evidence. Therefore, he was condemned unheard a violation of the basic principles of natural justice.

75. Emanating from the ex-parte judgement is the issue of ballot papers recount and re-tally.

Ballot papers recount and re-tally 76. After reading the impugned ruling being EDRC No. 132 of 2022 to say the least it is non-sequitur. The Dispute Resolution Committee observes as follows:“It is the committee’s finding that the Applicants sufficiently put a sufficient case on how tampering could have occurred and who perpetuated it. The same is speculative and not supported by cogent evidence since he had not provided affidavits of the same either from his agents or other agents. Importantly, the Applicant does not seem to contest the actual result.”

77. Despite making their own finding that no cogent evidence had been adduced to support the allegations of the Applicants and notwithstanding the fact that the Applicants never contested the actual result the committee went ahead to order for ballot papers scrutiny, recount and re-tally.

78. Under Part VI (6) of the Elections (Parliamentary and County Elections) Petitions, Rules 2017 scrutiny and recount are provided for in Rules 28 and 29. Rule 28 provides that;“A petitioner may apply to an election court for an order to-a.Recount the votes, orb.Examine the tallying, if the only issue for determination in the Petition is the count or tallying of votes.And Rule 29 provides that: -1. The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.2. On an application under sub-rule (1) an election court may, if it satisfied that there is sufficient reason, order for scrutiny or recount of votes.3. The scrutiny or recount of votes under sub-rule (2) shall be carried out under the direct supervision of the Registrar or Magistrate and shall be subject to the directions the election court gives.4. The scrutiny or recount of votes in accordance with sub-rule (2) shall be confined to the polling stations in which the results are disputed………………………….

79. A complainant has to establish in a well set out affidavit the factual basis on which he or she relies in his or her quest for the order of recount or scrutiny to be granted.In the affidavit the complainant has to show that irregularities relating to counting and/or tallying of votes and those relating to mistakes, errors and omissions were widespread in a number of polling stations.

80. The law allows an election court to order for scrutiny where there is reason enough to do so. However, the same is declined when a complainant seems to be in a fishing expedition. Section 82 of the Elections Act provide as thus: -“An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine.”

81. In Wavinya Ndeti –vs- I.E.B.C and Others Machakos Petition No. 4 of 2013, the High Court held that: -“An election is a human endeavour and is not carried out by programmed machines. Perfection is an aspiration but allowance must be made for human error. Genuine mistakes and errors (especially those which would have a negligible effect on the final tally) need not form the basis for scrutiny”.

82. In Harun Meitanei Lempaka –vs- Lemanken Aramat & Others [2013] eKLR, the High Court held that an order for scrutiny can be made when it is prayed for in the Petition itself and when reason for it exists. It is not made as a matter of course. It is made when there is ground for believing that there are irregularities in the electoral process or if there was a mistake on the part of the Returning Officer or other election officials.

83. It is trite law that whoever alleges must prove. The Complaints have not placed any evidence before us and indeed as admitted by the Dispute Resolution committee of the 2nd Respondent none was placed before them to warrant a recount or scrutiny of ballot papers. Additionally, the fact that the Complainants are not disputing the final results we have no grounded reason for ordering for a recount or scrutiny of the votes.

84. The Complainants alleged that the election was marred with violence and gave an example of Kayole where it escalated up to 8pm. However, the same remain to be a mere allegation as no OB Numbers have been presented that the matter was reported to a police station. There is no affidavit from any witness that due to the alleged violence they could not exercise their political rights of voting. The same is therefore not merited.

85. On the allegations by the 2nd Complaint of ballot paper tampering, double voting and his agents not allowed to the polling station and the same caused chaos that led them to be arrested the same remain mere words of mouth as no evidence has been tendered to substantiate the same. No affidavits from the said agents to confirm that they were not allowed to vote and that they were arrested.

86. The 2nd Complainant has also alleged that he was not allowed to vote as his name was missing from the register. The 3rd Respondent in responding to those allegations in his undated replying affidavit under paragraph 8 agrees that there were challenges during the voting process as some voter’s names were missing from the register with IEBC. He further says that the same was sorted out by an explanation that IEBC was using the 2017 Election Register which had not been updated. He goes on to say that the same was an administrative technicality. In the end he does not say whether the bona fide party members were allowed to vote.

87. In the 2022 recent amendments to the Political Parties Act section 38C provide that it is only the certified party register which is supposed to be used when it comes to party nominations and or primaries. The section provides as follows: -“38C.Registered members to participate in party nominations 1. A registered member of a political party shall be entitled to participate in the nominations conducted by the political party.

2. A political party that intends to conduct political party nominations under this Act shall use a certified register of members for the nominations.

3. A political party that intends to conduct political party nominations under this Act shall apply in writing to the Registrar for a certified copy of the register of members at least twenty-one days before the date of the nominations.

4. The Registrar shall issue the political party with a certified copy of the register of the political party’s members within seven days after the application under subsection (3).

5. A political party shall not allow any person who is not a registered member of the political party to participate in the party nominations.

6. Notwithstanding the provisions of subsection (5), a person may only participate in the nominations of a coalition political party if such person is a registered member of a party forming the coalition political party”

88. The register to be used was supposed to be a certified party register and not the IEBC register. However, there is no evidence on record from the witness, supporters and or agents of the complainants that they were not allowed to vote. As it has been noted in a number of authorities, elections being human activities, they are fraught with imperfections. The Complainants have not established to the required standard that the small infractions of non-compliance with the law substantially affected the outcome of the elections.

89. In the upshot, the complaint herein is not merited and the same is for dismissal. It is hereby dismissed. In the interest of party unity, each party to this dispute shall bear their own costs of the Complaint.

90. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022. ………………………………………………………………HON. ERASTUS ORINA(PRESIDING MEMBER)……………………………………………………………HON. THERESA CHEPKWONY(MEMBER)……………………………………………………………..HON. DANIEL KAGACHA(MEMBER)