[2022] KEPPDT 980 (KLR)

Oiro v Jubilee Party & another (Complaint E083 (NRB) of 2022) [2022] KEPPDT 980 (KLR) (Civ) (23 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 980 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E083 (NRB) of 2022

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

May 23, 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 (“MCA”), 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 was before this Tribunal in Complaint Number E036 of 2022 wherein the Tribunal ordered a repeat of the nomination exercise.

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 16th May 2022 (“the Complaint”), the Complainant seeks the following orders: -i.The nomination of the 2nd Respondent as the 1st Respondent’s candidate for Member of County Assembly (MCA) Pumwani ward be and is hereby canceled/revoked and the 1st Respondent be ordered to conduct a fresh nomination exercise through the electorate method and/or universal suffrage;ii.Costs of the Complaint;iii.Any further or other relief that this Honourable Tribunal may deem fit to grant.

3. Together with the Complaint, the Complainant filed a Notice of Motion application dated 16th May 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 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 20th May 2022.

4. The Complaint is opposed. The 1st Respondent filed a Replying Affidavit sworn by Kamau Mbugwa on 19th May 2022 and the 2nd Respondent filed Grounds of Opposition dated 18th May 2022 in opposition to the Complainant’s aforesaid application.

The Complainant’s case 5. The Complainant filed written submissions dated 19th May 2022. Her case is that she is a registered member of the 1st Respondent and that she expressed interest in vying for the position of MCA, Pumwani Ward, Nairobi County Assembly as the 1st Respondent’s candidate. The Complainant was dissatisfied with the initial process that the 1st Respondent used to arrive at its candidate for MCA Pumwani ward and filed a Complaint before this Tribunal. In a judgement delivered on 9th May 2022, this Tribunal ordered the 1st Respondent to repeat the nomination exercise.

6. The Complainant states that the 1st Respondent nominated the 2nd Respondent as its candidate for MCA Pumwani ward. She filed a Complaint before the 1st Respondent’s Appeals Tribunal which upheld the nomination of the 2nd Respondent. She therefore approached this Tribunal with the present Complaint.

7. The Complainant states that she was invited for a meeting on 11th May 2022 at the 1st Respondent’s headquarters. On arrival, she was required to fill in some forms which she did. She enquired as to the nomination method to be applied but claims that those enquiries fell on deaf ears. The next day, that is on 12th May 2022, the Complainant received the 1st Respondent’s letter dated 11th May 2022 informing her that the 1stRespondent had settled on the 2nd Respondent as its candidate for MCA Pumwani Ward.

8. The Complainant states that she was not informed of the criteria that the 1st Respondent used in arriving at the 2nd Respondent as its candidate. She further states that as the aspirants were interviewed separately, she is not sure whether they were all asked the same questions. She therefore seeks that the Tribunal allows the Complaint and grants her the orders she has prayed for.

The 1st Respondent’s case 9. In response to the Complaint, the 1st Respondent filed an Affidavit sworn on 19th May 2022 by its Director of Legal Affairs, Kamau Mbugwa. The 1st Respondent also filed written submissions’ dated 19th May 2022.

10. The Respondent avers that following the decision of this Tribunal in NRB PPDT Complaint No. E036 of 2022, it invited all aspirants for MCA Pumwani ward for a consensus building meeting on 11th May 2022. The 1st Respondent stated that the aspirants consented to having its National Elections Board (NEB) select a candidate from amongst the aspirants in the event of that consensus failed. The 1st Respondent further states that the Complainant willingly participated in the process and did not raise any objection.

11. According to the 1st Respondent, the aspirants failed to agree on a single candidate. The NEB after considering various parameters, nominated the 2nd Respondent as its candidate. The Complainant thereafter filed an appeal with the National Elections Appeals Tribunal (NEAT) of the 1st Respondent, which appeal was heard and a determination thereon made on 18th May 2022 affirming the decision of the NEB.The 1st Respondent urged the Tribunal to dismiss the Complaint.

The 2nd Respondent’s case 12. The 2nd Respondent only filed Grounds of Opposition dated 18th May 2022 in response to the Complainant’s Notice of Motion application dated 16th May 2022. The 2nd Respondent also filed submissions dated 19th May 2022.

13. In its Grounds of Opposition, the 2nd Respondent stated that this matter is res judicata and the Tribunal is functus officio. The 2nd Respondent submitted that the Complainant had not discharged her burden to prove that the process leading up to the nomination of the 2nd Respondent as the 1st Respondent’s candidate for MCA, Pumwani Ward was not free and fair and thus urged the Tribunal to dismiss the Complaint.

Issues for determination 14. 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 this Complaint is res judicata or whether the Tribunal is functus officio;b.Whether the nomination of the 2nd Respondent as the 1st Respondent’s candidate to contest for the MCA position in Pumwani Ward was lawful.

Analysis and Findings Whether this Complaint is res judicata or whether the Tribunal is functus officio 15. The 2nd Respondent in his Grounds of Opposition stated that this court is functus officio and the matter was also res judicata, the Tribunal having made a determination in a related matter being NRB PPDT Complaint No. E036 of 2022 (the previous Complaint). Counsel for the 1st Respondent did not highlight these issues in his submissions. Counsel for the Complainant however made reference to them in his submissions. The Tribunal therefore will consider this issue.

16. The doctrines of res judicata and functus officio are important cogs in the wheel that is the administration of justice. There is an interplay between both of them. They both serve to prevent endless litigation in court.

17. The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law”[2005] 122 SALJ 832 which reads: -“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

18. In Peterson Ndung’u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd [2018] eKLR the Court of Appeal quoting from Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550 stated as follows as regards the doctrine of functus officio: -“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”

19. The doctrine of res judicata finds basis in section 7 of the Civil Procedure Act. The Court of Appeal in John Florence Maritime Services Limited v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR stated as below as regards the doctrine of res judicata.“Res judicata is not a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been split and is now sufficiently settled. We therefore do not wish to re-invent any new wheel. We can however do no better than reproduce the reindentation of the doctrine many centuries ago captured in the case of Henderson –v- Henderson (1843) 67 ER 313. “where a given matter becomes the subject of litigation in an adjudication by a court of competent jurisdiction the court requires the parties to that litigation to bring forward their whole case and will not (except under circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accident omitted part of their case.”

20. The question therefore arises whether this Tribunal is functus officio and whether the doctrine of res judicata forbids the court from dealing with the matter? To answer the question, the Tribunal needs to determine whether this is a fresh cause of action or whether it is the cause of action that was in dispute in the previous complaint.

21. The Tribunal has examined the record in the previous complaint involving the same parties as this Complaint. In the previous Complaint, the Tribunal gave orders that a fresh nomination exercise as regards the 1st Respondent’s candidate for election as MCA in Pumwani ward be conducted by 9:30 am on 11th May 2022. It is not disputed that this was done and that the result of the fresh nomination exercise was the nomination of the 2nd Respondent as the 1st Respondent’s candidate for MCA Pumwani Ward. This is what gave birth to this instant Complaint. The Complainant’s cause of action is the results of the said exercise and not the nomination exercise that resulted in the previous complaint. While the same may be related, it is clear in our minds that this is a fresh cause of action. There is therefore no way that this matter is affected by the doctrines of res judicata or functus officio given that its foundational facts are different. The Tribunal therefore dismisses this objection to its jurisdiction.

Whether the nomination of the 2nd Respondent as the 1st Respondent’s candidate to contest for the MCA position in Pumwani ward was lawful 22. It is not disputed that after this Tribunal’s decision in NRB PPDT Complaint numberE036 of 2022, the 1st Respondent summoned all aspirants for MCA Pumwani Ward to a meeting on 11th May 2022. The purpose of the meeting was to build consensus on the selection of the 1st Respondent’s candidate.

23. Pursuant to section 38A of the Political Parties Act, 2011 (“the Act”) the 1st Respondent has various options when it comes to conducting the said nominations. These options include direct nomination and indirect nomination. Under section 2 of the Act, “direct party nomination” is defined as “the process by which a political party, through its registered members, elects its candidates for an election”. On the other hand, “indirect party nomination” is defined under the Act as the “process by which a political party, through the use of delegates selected from registered members of the political party and interviews, selects its candidates for an election”.

24. It is not disputed that the 2nd Respondent’s nomination rules provide for both means of nomination. Paragraph 5 of the Replying Affidavit of Kamau Mbugwa sworn on 19th May 2022 referred to Part XVI Clause (i) of the 1st Respondent’s Nomination rules. That clause is not clear on who is to agree on the other appropriate means used to identify a candidate.

25. Unlike the situation in the previous Complaint, this time the 1st Respondent seems to have had the parties agree in writing that in the event of failure of consensus, the party would select a candidate from amongst the aspirants. This agreement addresses the vagueness at Part XVI Clause (i) of the 1st Respondent’s Nomination rules on who is to agree on the other appropriate means This is explicitly stated in clause 4 of the consent signed by all the aspirants to wit:-“That having considered our strength, we hereby consent that the party can proceed to nominate any of the aspirants herein listed to be the party candidate in the aforesaid General Election and such decision shall be unconditionally binding on us.”

26. Each aspirant signed his/her own consent form. However, it is clear from the Complainant’s Statement of Complaint that she knew the other aspirants who had been summoned for the consensus building meeting. At paragraph 7(c) of her Complaint, she lists them as herself, the 2nd Respondent, Nelly Nyambura and Ibrahim Chege.

27. The Complainant freely signed the aforesaid form. Indeed clause 5 of the said form indicates that she gave her consent freely and without any duress or threats. She also filled a questionnaire related to the exercise. During the hearing of the Complaint, her Counsel submitted that she was coerced into signing the form and that she was not aware of the nomination method to be applied by the 2nd Respondent. The Complainant also complains that the aspirants were interviewed separately.

28. We are unable to find any evidence to support the Complainant’s claim that she did not know of the method to be applied. From the form she was aware that she was invited to a consensus building exercise. She did not express any objection to that exercise. Conversely, we find that the form signed by the Complainant clearly indicated that she had been invited to a consensus meeting to identify a candidate and she agreed that the party could proceed to nominate any candidate from any of the aspirants. As regards the aspirants being interviewed separately, we cannot see any prejudice that was occasioned on the Complainant by holding separate interviews.

29. Consensus would have resulted in an agreement at which point all candidates would have consented to one identified candidate. This does not seem to have been the case and the default position was that the aspirants allowed the 1st Respondent identify a candidate.

30. The Complainant seeks to have the 1st Respondent’s candidate for MCA Pumwani ward identified through universal suffrage. This method is just but one of the methods that are open to the party to identify its candidate as stated above. The 1st Respondent resorted to indirect nomination as provided for in its nomination rules and the Political Parties Act. The 1st Respondent cannot be faulted for using that method with the consent of all the aspirants and in the absence of any evidence of unfairness.

31. Equally, the Complainant cannot be said to have had a legitimate expectation that the 1st Respondent would result to universal suffrage in the event of failure of consensus. In Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development ex parte Soweto Residents Forum CBO [2019] eKLR, the Court said thus as regards legitimate expectation:-

“In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation, that is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created. The representation itself must be precise and specific and importantly, lawful. Once a reasonable expectation exists the administrator is required to act in accordance with that expectation, except if there are public interest considerations which outweighs the individual’s expectation.” 32. In view of the provision of section 38A of the Political Parties Act and the 1stRespondent’s nomination rules as well as the consent form signed by the Complainant and based on the aforesaid test, we cannot find that any legitimate expectation was created that the 1st Respondent would resort to universal suffrage.

33. As regards the parameters used by the 1st Respondent, it cannot be that the Complainant did not know the parameters. The questionnaire that she filled had various questions which one can safely conclude contained the parameters that the 1st Respondent would consider in arriving at its decision.

34. Finally, the Complainant stated that the members of the 1st Respondent’s National Elections Board and the members of National Appeals Tribunal were the same and thus were sitting on appeal on their own decision in considering her appeal. The Complainant did not lead any evidence to support this serious allegation. The burden of proof fell squarely on her shoulders. Section 107 (1) of the Evidence Act provides that:-“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

35. Based on the foregoing, the Tribunal finds that the Complaint is not merited and proceeds to dismiss the same with no order as to costs. The Notice of Motion application dated 16th May 2022 also stands dismissed.

Orders 36. The final orders of the Tribunal are that: -a.The Complaint is without merit and is hereby dismissed.b.In the interests of party unity, each party will bear its own costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2022. GAD GATHU.................................(PRESIDING MEMBER)WANJIRŨ NGIGE.............................(MEMBER)DR. LEONARD KINYULUSI .....................(MEMBER)