[2022] KEPPDT 1069 (KLR)

Oiro v Jubilee Party & another (Cause E036 (NRB) of 2022) [2022] KEPPDT 1069 (KLR) (Civ) (9 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1069 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Cause E036 (NRB) of 2022

G. Gathu, Presiding Member, W Ngige & L. Kinyulusi, Members

May 9, 2022

Between

Josephine Atieno Oiro

Complainant

and

Jubilee Party

1st Respondent

Idd Mwaura Salim aka Iddy Ngori

2nd Respondent

Judgment

Introduction. 1. This dispute concerns the nomination of a candidate to vie for the position of Member of County Assembly, Pumwani Ward, Nairobi County Assembly by the 1st Respondent. The Complainant was one of the people who were interested in vying for the position. The Complainant’s interest was shared by three others being Nelly Nyambura, Ibrahim Mohammed Chege aka Teddy Ayum and the 2nd Respondent.

2. The candidate who was eventually nominated was the 2nd Respondent and being aggrieved, the Complainant filed this Complaint. By a Statement of Complaint dated 27th April 2022 the Complainant seeks the following orders: -i.An order do issue that the 1st Respondent to conduct party nominations for the position of Member of County Assembly, Pumwani Ward, Nairobi seat by universal suffrage.ii.That the nomination of the 2nd Respondent as a representative of the 1st Respondent as a Member of County Assembly, Pumwani Ward be and is hereby revoked.iii.That the 1st Respondent be ordered to produce whatever method it used in arriving at the nomination of the 2nd Respondent.iv.Costs of the claim.PPDT NRB Complaint No. E036 of 2022 – Judgementv.Any further or other relief that this Honourable Tribunal may deem fit to grant.

3. Together with the Statement of Claim the Complainant filed a Notice of Motion application dated 27th April 2022 seeking various orders on the face of the application. In view of the time bound nature of matters such as this one, the Tribunal directed that the said application be heard together with the Complaint. The Tribunal also issued interim orders. The Tribunal further directed that the matter be heard by way of written submissions and scheduled oral highlights of the same for 4th May 2022.

The Complainant’s case 4. The Complainant filed written submissions dated 1st May 2022 and further submissions dated 2nd May 2022. The Complainant’s case is that she is a registered member of the 1st Respondent and that she expressed interest in vying for the position of Member of County Assembly, Pumwani Ward, Nairobi County Assembly as the 1st Respondent’s candidate. The Complainant states that she duly paid a fee of Kshs. 15,000/- and had a legitimate expectation that the 1st Respondent would conduct a free, fair, credible and democratic exercise for the said position by universal suffrage or by any other method agreeable to the candidates.

5. The Complainant states that she expended considerable energy in campaigning for the position in preparation for the nomination exercise. She alleges that the 2nd Respondent did not campaign, choosing to instead make on and off appearances in selected areas.

6. The Complainant further states that on 16th April 2022 she received a text message summoning her to appear before the 1st Respondent’s National Elections Board(NEB) on 18th April 2022. This message was also received by the other aspirants.

7. The Complainant states that upon appearing before the 1st Respondent’s NEB, she was informed that the 1st Respondent had settled on consensus as the method of picking the 1st Respondent’s candidate.

8. According to the Complainant, she was not aware of what this consensus method was all about and the NEB indicated that all the four aspirants would write the name of their preferred aspirant on a piece of paper but they should not write their own name. The Complainant alleges that all the aspirants were not happy with this method but went along reluctantly.

9. At the completion of the exercises, Ibrahim Mohammed Chege aka Teddy Ayum emerged the winner with two votes. This outcome was contested and the exercise was undertaken a second time wherein the Complainant emerged as the winner. This outcome was also contested.

10. As a result of the contestation, the 1st Respondent’s NEB asked the four aspirants to step outside for some time and when they were called back, they were informed that the NEB had settled on Ibrahim Mohammed Chege aka Teddy Ayum as the 1st Respondent’s candidate.

11. The Claimant states that the other three aspirants immediately but separately appealed the NEB’s decision. The appeal was heard and a ruling scheduled to be delivered on notice. However, without the Ruling having been delivered, the 1st Respondent went ahead to nominate the 2nd Respondent as its candidate.

12. The Claimant contends that the action by the 1st Respondent of nominating the 2nd Respondent has infringed upon her right to participate in a free and fair election and she thus seeks the orders in the Statement of Claim.

The 1st Respondent’s case 13. The 1st Respondent swore two affidavits in response to the Complaint. Both affidavits are sworn by Kamau Mbugwa. The first affidavit was sworn on 30th April 2022 and the further affidavit was sworn on 4th May 2022. The 1st Respondent has also filed written submissions dated 4th May 2022.

14. The 1st Respondent in its first Replying Affidavit had indicated that it would not be fielding a candidate in Pumwani Ward. However, in its second affidavit, it sought to correct this position and indicated that it would indeed be fielding a candidate in Pumwani Ward and that it had settled on the 2nd Respondent as the most suitable candidate.

15. The 1st Respondent states that in consultation with its membership and in line with its constitution and nomination rules, it opted to have the election for its candidate for Pumwani Ward conducted by way of consensus.

16. The Respondent indicates that it invited all the candidates to a meeting at the Windsor Hotel on 18th April 2022 to build consensus wherein it was agreed that in the event candidates failed to agree on a single candidate then they would allow the NEB to come up with the most suitable candidate.

17. According to the 1st Respondent, candidates failed to agree and the NEB appointed a panel to come up with the most suitable candidate. The Respondent further indicates that the decision of the said panel would not be final in any event but would be subject to either adoption or rejection by the NEB.

18. The 1st Respondent avers that the Complainant lodged an appeal with the National Elections Appeals Tribunal (NEAT) of the 1st Respondent which appeal was dismissed as having been filed prematurely as the NEB had not nominated a candidate at that point.

19. The 1st Respondent further indicates that it has already submitted the name of the 2ndRespondent to the Independent Electoral and Boundaries Commission (“the Commission”) and urges the Tribunal to dismiss the Complaint.

The 2nd Respondent’s case. 20. The 2nd Respondent has filed a Replying Affidavit sworn by the Second Respondent on 1st May 2022. The 2nd Respondent also filed written submissions dated 3rd May 2022.

20. According to the 2nd Respondent, he contested for the position of the 1st Respondent’s candidate for the position of Member of County Assembly, Pumwani Ward, Nairobi County Assembly alongside three others. The 2nd Respondent avers that the 1stRespondent’s Secretary General issued a statement on 4th April 2022 indicating that for positions where there was more than one aspirant, the 1st Respondent would select a candidate through consensus or other appropriate means.

21. The 2nd Respondent indicates that he was summoned for a meeting on 18th April 2022 alongside the three other aspirants at Windsor Golf Hotel for purposes of building consensus. At the said meeting, it was clear that none of the aspirants were willing to step down for anyone and a voting exercise ensued at the end of which aspirants were dissatisfied with the outcome.

22. The 2nd Respondent wrote a letter dated 19th April 2022 to the Secretary General of the 1st Respondent expressing dissatisfaction with the criteria used to select a candidate for the position of Member of County Assembly, Pumwani Ward, Nairobi County Assembly.

23. Thereafter, the 2nd Respondent learnt that the 1st Respondent’s NEB on the advice of its National Executive Committee (NEC) had settled on him as its candidate for the position of Member of County Assembly, Pumwani Ward, Nairobi County Assembly. The Respondent indicates that he was then issued with a nomination certificate.

24. The 2nd Respondent avers that the nomination process was free, fair, transparent and in line with the party constitution and seeks that the Complaint be dismissed with costs.

Issues for determination. 26. The Tribunal has considered the parties ‘pleadings and also the parties’ oral highlights of their submissions and framed the following as the issues for determination: -a.Whether the 1st Respondent’s nomination process was free, fair and in accordance with its Constitution and Nomination Rules.b.Whether the issuance of the nomination certificate to the 2nd Respondent was lawful.

Analysis and Findings Whether the 1st Respondent’s nomination process was free, fair and in line with its Constitution and Nomination Rules 27. There is no dispute that the nomination rules of the 1st Respondent allow it to use issue direct nomination in areas of “special interest” to candidates who are unopposed or if there is more than one candidate “by consensus or other appropriate means agreed select one amongst them to be nominated.” The issue arises when one considers the meaning of “consensus” and those “other appropriate means that are to be agreed”.

28. The four aspirants for the position of Member of County Assembly, Pumwani Ward, Nairobi County Assembly as the 1st Respondent’s candidate all seem to have attended a meeting on 18th April 2022 at Windsor Golf Hotel whose purpose was to build consensus on who would be the 1st Respondent’s candidate.

29. It is clear that there was no consensus amongst the candidates and the party resulted to voting amongst the candidates themselves. None of the candidates seems to have been happy with this direction taken by the NEB. According to the Complainant, the aspirants participated in the voting process reluctantly. Indeed, three aspirants were not happy with the outcome of the process and they promptly lodged an appeal with NEAT.

30. According to Black’s Law Dictionary 8th edition, the term “consensus” means “a general agreement”. The outcome of a process built on consensus would be candidates and the party unanimously agreeing on one candidate. In view of this definition, the consensus building process clearly failed. The party resorted to a voting process amongst candidates. Was such in line with the 1st Respondent’s constitution?

31. Clause XVI(i) of the 1st Respondent’s nomination rules is not clear on who is to agree on the alternative methods of selecting a candidate in the event that consensus fails. Is it the Party organs such as the NEB or NEC? Is the method to be agreed upon between the candidates themselves? Is the method to be agreed upon between the candidates and the party organs? From the material placed before it, the Tribunal is not able to determine who should agree on the alternative method of arriving at a suitable candidate in the absence of consensus and perhaps this should be a call for the 1st Respondent to amend the said clause for the sake of clarity.

32. Although the 1st Respondent contends that the aspirants agreed to have the 1st Respondent’s NEB select a candidate in the event of failure of consensus, the Complainant disputes that there was any such agreement. The 2nd Respondent also seems to take the same position as evidenced by his letter dated 19th April 2022 addressed to the 1st Respondent. Indeed, the 2nd Respondent in his Replying Affidavit sworn on 1st May 2022 has not alluded to there having been such agreement amongst the aspirants.

33. The lack of clarity in the said rules notwithstanding, the outcome of the voting process used was also not clear. It was ambiguous. It is not disputed that the same was undertaken twice with each occasion producing a different winner. The first time, one Ibrahim Mohammed Chege aka Teddy Ayum emerged as the winner. The second time the Complainant emerged as the winner. The 1st Respondent’ NEB then seems to have resolved to have the said Ibrahim Mohammed Chege aka Teddy Ayum as the 1st Respondent’s candidate triggering the appeal before the 1st Respondent’s NEAT being appeal No. 052 of 2022. The NEB however denied having resolved as such in its submissions before NEAT.

34. The 1st Respondent’s NEB was performing an administrative and judicial or quasi-judicial in seeking to establish its candidate. It is bound by the provisions of article 47 of the Constitution of Kenya 2010 as well as the Fair Administrative Actions Act No. 4 of 2015.

35. Although the 1st Respondent indicates that the aspirants had agreed that in the event there is no consensus they would leave the decision with on the most suitable candidate to the NEB, we find that the same is unlikely to be the case. The appeal by the other three aspirants to the 1st Respondent’s NEAT is telling as is the letter by the 2nd Respondent dated 19th April 2022 addressed to the 1st Respondent.

36. Moreover, it is clear that the aspirants did not agree on voting amongst themselves as the ideal method. The Complainant contends that the voting was forced upon the aspirants without hearing them and giving them an opportunity to be heard in that regard. The 2nd Respondent at paragraph 12 of his Replying Affidavit sworn on 1stMay 2022 also confirms that all the aspirants were “dissatisfied with the criteria used.”These allegations were not sufficiently rebutted by the 1st Respondent.

37. However, having eventually participated in the voting process, the Complainant and the 2nd Respondent were bound by its outcome. The problem is that there was no clear outcome. It was incumbent on the NEB however to ensure that the process was free and fair and with tangible and definable results. It emerged during the hearing before the NEAT, based on its ruling, that the NEB was never clear on whom it had actually nominated to be the 1st Respondent’s candidate.

38. In view of the lack of clarity in the 1st Respondent’s nomination rules as discussed hereinbefore, the 1st Respondent’s NEB having settled on voting amongst candidates and undertaken the exercise should have ensured that the process had clear tangible results. The 1st Respondent through its organs namely the NEB and NEAT also kept the candidates in limbo for an unreasonable period without giving a decision given the nature of the nomination process. Indeed, the Complainant stated that she only got to know of the ruling of the 1st Respondent’s NEAT in the course of these proceedings. This allegation was not refuted by the 1st Respondent.

39. It is our finding that the 1st Respondent through its NEB failed to expedite the process and did not inform the parties of its decision timeously. Moreover, there seems to have been no clear outcome of the process. The entire process was contrary to the provisions of section 4(1) and (2) of the Fair Administrative Actions Act.

40. We therefore find that the nomination process used by the 1st Respondent was not free and fair and was not in accordance with the provisions of the Fair Administrative Actions Act.

Whether the issuance of the nomination certificate to the 2nd Respondent was lawful. 41. Following the failure of consensus and voting as methods for selecting its candidate, it is likely that the 1st Respondent’s NEB settled on Ibrahim Mohammed Chege aka Teddy Ayum. This finding is informed by the Complaint by three aspirants to the 1st Respondent’s NEAT. However, we note that in its submission to the 1st Respondent’s NEAT, the 1st Respondent’s NEB indicated that it had constituted a panel to come up with a suitable candidate and the panel settled on one Nelly Nyambura.

42. We note that appeal No. 052 of 2022 was dismissed by the 1st Respondent’s NEAT for having been filed prematurely. We have keenly perused the undated decision of the 1st Respondent’s NEAT in terms of its findings and we cannot find the reasons for the alleged prematurity. It is possible that when the NEAT took the submission by NEB that it had not arrived at a candidate as a fact and proceeded to issue a judgement based on that.

43. The process by the 1st Respondent’s NEB in arriving at a candidate is murky and interesting. All the four aspirants have since emerged as the favourites at one time or the other as a result of one process or the other. The first voting process had Ibrahim Mohammed Chege emerging as the winner. The second time, it had the Complainant emerging as the winner. In its submissions before the NEAT, the NEB indicated that it had arrived at Nelly Wambui as the best candidate. Eventually the ticket was awarded to the 2nd Respondent. This was a game of musical chairs.

44. The Complainant asserted that she was never informed of the decision of the 1st Respondent’s NEAT in appeal No. 052 0f 2022 up to and including the time when the 1st Respondent filed its further affidavit in the present Complaint when she saw the decision. The said decision is undated and it is not possible to figure out when exactly it was delivered. However, the 1st Respondent did not rebut the assertion that the same was not communicated to the parties.

45. The failure to inform parties of the decision while going ahead to issue a nomination certificate to one of the aspirants reeks of unfairness and illegality. In view of the game of musical chairs played herein, it would have been crucial to inform parties of the method that was eventually used in arriving at the 2nd Respondent as the 1st Respondent’s candidate.

46. It does not matter that the 2nd Respondent may be the best aspirant to represent the 1st Respondent. His nomination was tainted with unfairness and illegality. Lord Wright in General Medical Councilvs Spackman [1943] 2 ALL ER 337 at 345 states that:“If the principles of natural justice are violated in respect of any decision it is indeed, immaterial, whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared to be no decision.”

47. We therefore have no hesitation to find that the nomination of the 2nd Respondent as the 1st Respondent’s candidate was unlawful and unfair and we hereby set aside the same.

Orders 48. The final orders of the Tribunal are that: -a.The nomination of the 2nd Respondent as a representative of the 1st Respondent as a Member of County Assembly, Pumwani Ward be and is hereby revoked.b.The 1st Respondent shall conduct a fresh nomination exercise for its candidate for the position of Member of County Assembly, Pumwani Ward within seventy-two hours of this order. For the avoidance of doubt, the seventy-two hours shall lapse on Thursday 11th May 2022 at 9:30 am.c.Costs of this Complaint are awarded to the Complainant as against the Respondents.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF MAY 2022GAD GATHU ............................(PRESIDING MEMBER)WANJIRŨ NGIGE ........................(MEMBER)DR. LEONARD KINYULUSI ................(MEMBER)