[2022] KEPPDT 995 (KLR)

Omwoyo v Jubilee Party & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E136 (NRB) of 2022) [2022] KEPPDT 995 (KLR) (8 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 995 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E136 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

September 8, 2022

Between

Michelle Kemuma Omwoyo

Complainant

and

Jubilee Party

1st Respondent

Dolphine Nyangara Onkoba

2nd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Introduction 1. The Complainant and the 2nd Respondent are members of the 1st Respondent. The Interested Party published the 1st Respondent’s party list, listing the 2nd Respondent at position 1 and the Complainant at position 3, in the Gender Top Up category for Nyamira County Assembly.

2. The Complainant is aggrieved by her listing at position number 3 and she claims that she ought to be listed at position 1 in place of the 2nd Respondent. She accordingly prays for the following ordersa.That this Honourable tribunal does make a decision that the 2nd Respondent does not possess the requisite capacity and knowledge to legitimately and effectively represent the peculiar needs and interests of women of Nyamira County at Nyamira County Assembly.b.That this Honourable Tribunal does make a permanent injunction restraining the Interested Party from gazetting the name of the 2nd Respondent as a nominee, Gender Top-Up category for Nyamira County Assembly.c.That this tribunal do compel the 1st Respondent to strike out the name of the 2nd Respondent from their Nomination List, Gender Top-Up category for Nyamira County Assembly and substitute it with another taking into consideration the priority of other names as they appear in the said list.d.That the costs of this complaint be awarded to the Complainante.Any other relief that this court will deem just and appropriate in the circumstances.

3. Pursuant to the directions of this Tribunal, the Complaint was heard by way of affidavit evidence and oral submissions in lieu of taking viva voce evidence. The Complainant was represented by Mwae & Associates Advocates, and the 1st Respondent was represented by Kamotho Njomo & Company Advocates. The 2nd Respondent was represented by Kinyua Mbaabu & Co Advocates.

The Complainant’s Case 4. The Complainant is an active member of the 1st Respondent and a resident and a voter of Nyamira County, West Mugirango Constituency, Bonyanatuta Ward. Prior to the general elections held on August 9, 2022, she was actively involved in campaigning for one Stephen M. Mogaka for the position of Member of Parliament, West Mugirango Constituency within Nyamira County, as well as campaigning for one Jerusha Momanyi, for the position of Women Representative, Nyamira County. The named persons won their respective seats on the Jubilee party ticket.

5. It is the Complainant’s case that the 1st Respondent on May 6, 2022 put up a notice inviting members of the public to apply for various nomination seats pursuant to the general elections that was scheduled to be held on August 9, 2022. The Complainant applied for nomination in the category of Gender Top up for Nyamira County Assembly.

6. On the July 28, 2022, the Interested Party published the party list whereby the Complainant’s name was listed number 3 in the Gender Top Up category for Nyamira County Assembly. The 2nd Respondent was on the other hand listed number 1 in the Gender Top Up category for Nyamira County Assembly.

7. After the general elections held on August 9, 2022, the 1st Respondent secured a slot for one (1) elected Member of the County Assembly in Nyamira County, hence qualifying for one (1) nominee in the nomination list dated 28th July 2022.

8. On August 26, 2022, the Complainant lodged a Complaint to the 1st Respondent’s Tribunal challenging the enlistment of the 2nd Respondent at the first position in the Nyamira County Gender Top-Up category but it has not been heard to date and or allocated for hearing.

9. The Complainant found the following details regarding the 2nd Respondent:i.That the 2nd Respondent is a registered voter at Kiambu County, Ruiru Constituency, Kahawa Wendani Ward.ii.The 2nd Respondent is not a resident of Nyamira County.iii.The 2nd Respondent is a sibling to one Hezron Obaga Onkoba, a staff of the 1stiv.That the said Hezron Obaga Onkoba, a staff at Jubilee headquarters, was nominated and listed at position one (1) by the 1st Respondent in the nomination for party list, marginalized category in Kiambu County Assembly.

10. The Complainant contends that the 1st Respondent exhibited outright and glaring nepotism, favourism and bias by nominating its staff and staff relatives. She also claims that the Member of Parliament elect from West Mugirango Constituency, within Nyamira County, received complaints from the people of Nyamira County with regard to the nomination of the 2nd Respondent in the Gender Top up and he did a letter dated August 26, 2022 to the 1st Respondent bringing to its attention the concerns of the people in Nyamira County which letter has never been responded to.

11. She submits that the 2nd Respondent is a stranger to the peculiar needs, interests and environment of the women of Nyamira County and therefore lacks the capacity to represent the interests of the women of Nyamira County.

12. It is the Complainant’s further submission that after this matter was filed at this Tribunal, she was notified of a letter dated September 6, 2022 by the 1st Respondent directing the Interested Party herein to forthwith and unconditionally enlist her in the first position in the Nyamira County Gender Top-Up category in place of the 2nd Respondent. She accordingly prays that the Tribunal grants orders in furtherance of the party position as expressed in the subject letter dated September 6, 2022.

The 1st Respondent’s Case. 13. Through an affidavit sworn by the 1st Respondent’s Legal Affairs Director, dated September 6, 2022, he opposed the Complaint and application. He claimed that the 1st Respondent put in place a Party List Committee under the 1st Respondent’s nomination rules under section 44, to consider applicants to be included in the party list for submission to the IEBC. The 1st Respondent through the committee come up with the party list resubmitted to IEBC.

14. He claims that a dispute of the submitted list to the IEBC the Complainant was to follow the laid down procedure by lodging an appeal with the National Elections Appeals Tribunal. He claimed the complainant did not make a reasonable and honest attempt to resolve the dispute within the 1st Respondent internal dispute resolution mechanism. He claims the letter dated August 24, 2022 demanded the 1st Respondent to resolve her appeal within twenty-four hours which was not reasonable but a demonstration that the complainant was not interested in resolving the issue as required by the law. He further claimed that the complaint was overtaken by events as the dispute revolving around party lists nominations ought to have been determined within 7 days of the nomination lists being published and before the gazettement of the Members of County Assembly.

15. He claims that the prayers sought could not be granted since the party had already submitted to the IEBC names of persons under the Gender top up category who has applied under the said category. He further claimed that the complainant’s allegation that the 2nd Respondent was not a resident of Nyamira County was without merit as she had not provided cogent evidence to prove that the 2nd Respondent being a voter in Kiambu County would disqualify her from being nominated in that category.

16. He claims that the letter dated August 26, 2022 drawn by Stephen M. Mogaka lacked evidentiary value as the person does not speak on behalf of Nyamira County but only purports to represent the interests of the constituency from where the Complainant alleges he comes from.

17. It is, however, noteworthy that, Counsel for the 1st Respondent, Mr. Manyara, during his oral submissions, and whilst reacting to the instructions he had on the letter produced by the Complainant dated September 6, 2022 referred to above, abandoned the contents of their replying affidavit that deposed to the foregoing. He submitted that he had instructions from his client that the party position had since changed and was in accordance with the letter referred to by the Complainant dated September 6, 2022 addressed to the Interested Party and directing the Interested Party to replace the name of the 2nd Respondent with that of the Complainant.

The 2nd Respondent’s Case 18. The 2nd Respondent has challenged the jurisdiction of this Tribunal to hear and determine this matter, claiming that there has been no attempt to first resolve this issue within the party prior to moving this Tribunal. Accordingly, she prays that the Complaint be struck out for want of jurisdiction.

19. Turning to the merits of the case, the 2nd Respondent avers she is a resident of Nyamira County. She has a home in Kitutu Masaba, Nyamira County, where her husband comes from.

20. She avers that the Complainant is not suitable for the nomination as she acts as the personal assistant (PA) to the Member of Parliament elect of West Mugirango Constituency.

21. It is the Respondent’s submission that the Interested Party put timelines for appeal against party list nominations by July 22, 2022, which timelines were not complied with by the Complainant who failed to lodge any appeal during that period. The Complainant only lodged the Complaint when she realized that the 1st Respondent only had one slot. She did not lodge any complaints when she was listed as number three in the Jubilee Party list.

22. The 2nd Respondent submits that the Complainant’s prayers were overtaken by events as the 1st Respondent had already forwarded the list of persons under the Gender top Up category. It is her contention that the 1st Respondent became functus officio as at July 22, 2022 and could not make any changes to the party list as purported in the letter dated September 6, 2022. The authority of the Secretary General to write the letter dated September 6, 2022 has also been challenged.

Analysis and Determination 23. Flowing from the parties’ pleadings and submissions, we have isolated the following issues for determination:-i.Whether the Tribunal has Jurisdiction to hear and determine this matter.ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to grant.

Whether the Tribunal has Jurisdiction to hear and determine this matter. 24. The 2nd Respondent has challenged the jurisdiction of this Tribunal on the ground that the instant dispute was not subjected to resolution within the party’s internal dispute resolution mechanisms (IDRM) in the first instance. The Complainant maintains that they made a honest attempt at IDRM and that this Tribunal has jurisdiction.

25. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011 (the PPA), which provides 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; and(fa).disputes arising out of party nominations2. 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.

26. The instant Complaint being one arising from nominations, Section 40(2) of the PPA requires that the Complainant adduces evidence of an attempt to subject the dispute to the Respondent’s IDRM prior to moving the Tribunal.

27. The Tribunal has to scrutinize whether it has been demonstrated that there was an attempt made by the Complainant to subject the dispute to the Respondent’s IDRM.The Complainant has adduced as evidence letters dated August 24, 2022 and August 26, 2022 addressed to the 1st Respondent in an attempt to have the dispute subject hereof addressed by the party. However, the 1st Respondent did not respond to the Complainant’s letters. The 1st Respondent has not denied receipt of the letters.

28. We are of the considered opinion that the 1st Respondent should have at the very least responded to the letter. Such was the consideration of the Court of Appeal in the case ofSamuel Kalii Kiminza vs Jubilee Party & Another(2017) eKLR, where it was observed as follows: -“26. Further, we cannot help but note that the Appellant wrote to the 1stRespondent not once but twice and none of these letters elicited any response from the 1stRespondent. The Appellant is a member of the 1stRespondent having paid the requisite fees. The Appellant had also paid Kshs 250,000/= in order to be eligible to take part in the nomination exercise for the position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1stRespondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters and advise him on the right way to go about the appeal. Having failed to do so we hold that the Appellant was entitled to approach the PPDT and that the PPDT therefore had jurisdiction to hear and determine the matter”(emphasis ours)

29. In a nutshell, taking into consideration the foregoing, we find that the Complainant has demonstrated that she made an honest attempt at IDRM in vain and that we accordingly have jurisdiction to hear and determine this matter. The Complaint is therefore properly before the Tribunal.

Whether the Complaint is merited and what are the appropriate reliefs to grant? 30. It is an established legal position that the preparation of party lists is within the province of political parties. In the case of Lydia Mathia vs Naisula Lesuuda & another, [2013] eKLR Court of Appeal observed that;“The definition of “party lists” under section 2 of the Elections Act suggested ownership of the list by the political party that has prepared it. The practice, indeed the law is that the power over who gets the reserved seats resides with the parties themselves and no other authority.”

31. Similarly, in the case ofLinet Kemunto Nyakeriga & Another v Ben Njoroge & 2 Others [2014] eKLR, the Court of Appeal stated:-“Two new concepts have emerged in our electoral laws; party list and priority of the names in the list. Party list voting systems are widely used elsewhere in the world (particularly in Western democracies) and are designed to ensure that parties are represented proportionally in the legislature and all groups are also fairly represented. There are two broad types of party list system; closed list and open list. Whatever the case, in the party list, as the name suggests, each party lists its candidates as it may be entitledIt follows that it is the responsibility of the parties to choose their preferred candidate and rank them in order of priority of preference. The seats won by each party are filled by candidates in the order they appear on the parties’ respective list. The definition of “party list” under Section 2 of the Elections Act suggests ownership of the list by the political party that has prepared it. The practice, indeed the law, in jurisdictions with a closed list system is that the power over who gets the reserved seats resides with the parties themselves and no other authority”

32. However, in the preparation of party lists, political parties are expected to comply with the Constitution of Kenya, the Elections Act, and the party laws. The gravamen of the Complainant’s case is that she is challenging the nomination of the 2nd Respondent for the reason that she is not qualified to represent the interests of the women in Nyamira County. To this end, the Complaint has raised three main grounds. First, it is submitted that the 2nd Respondent is not a registered voter in Nyamira County and cannot therefore be nominated there. Secondly, it is alleged that the 2nd Respondent is not a resident of Nyamira County and cannot therefore represent the interests of the women in the County. Thirdly, it is averred that the 2nd Respondent is related to one Hezron Onkoba who was listed as a nominee in Kiambu County and is also a staff member of the 1st Respondent and that there is evident nepotism, bias, and favoritism.

33. On the first ground relating to the 2nd Respondent’s voter registration station status, it is not in dispute that the 2nd Respondent is a registered voter. What is in dispute is whether she is qualified for nomination having been registered as a voter in Kahawa Wendani Ward in Kiambu County and not in Nyamira County.

34. Article 193 of the Constitution provides that,1. Unless disqualified under clause (2), a person is eligible for election as a member of a county assembly if the person—a.is registered as a voter;b.satisfies any educational, moral and ethical requirements prescribed by this Constitution or an Act of Parliament; andc.is either—i.nominated by a political party; or..

35. In the case of Esther Okenyuri Anyieni v Mokumi Edmond Anthony & 3 others [2018] eKLR, the High Court considered the provisions of Article 193 of the Constitution and observed as follows on the question whether there is legal impediment to one being a nominated MCA in a county yet not registered as a voter in the subject county:-“The said Article does not provide that a voter who is to be nominated must be from the said county. The Article refers to a registered voter. The 1st respondent demonstrated that he was a registered voter, his political party confirmed the same he was not disqualified and therefore he was a proper candidate for nomination. If Parliament intended to specify that the voter must be from a specific county, then Parliament could have stated so specifically.”

36. Similarly, in the case of Denis Kariaru Mathenge v Independent Electoral and Boundaries Commission & 7 others[2018] eKLR, Ougo, J observed as follows:-“32. As for the 8th Respondent, it was common ground that her nomination was to top-up on gender equity. The Appellant’s challenge to her nomination was that she was not a resident of Laikipia County and was a registered voter in Nakuru County. The election court found as unproven the Appellant’s allegation that the 8th Respondent was not a resident of Laikipia County and found as uncontroverted her testimony that she was married and resident in Laikipia County.

33. As for her being a registered voter in Nakuru County, the election court found correctly, that there was no legal impediment in that fact alone to her nomination to sit in the assembly of a county where she was not a registered voter”

37. Guided by the law and the foregoing judicial authorities we arrive at the conclusion that the fact that the 2nd Respondent is not a registered voter in Nyamira County cannot be the sole reason for disqualifying her from nomination.

38. With respect to the second ground touching on the residence of the 2nd Respondent, the allegation that the 2nd Respondent was not a resident of Nyamira County is unproven. We also note that the 2nd Respondent’s deposition that she is married and has a home in Nyamira County has not been controverted. The grounds relating to existence of a relationship between the 2nd Respondent and one Hezron Onkoba have also not been substantiated. The 2nd Respondent has, however, confirmed that she has worked for the 1st Respondent since the year 2016 and this does not in our opinion disqualify her from nomination.

39. Notwithstanding our foregoing analysis that points to the probable conclusion that the Complainant has not substantiated the allegation that the 2nd Respondent was not qualified to be nominated, it is our considered opinion that this in itself should not determine this matter conclusively in favour of either party for two main reasons.

40. Firstly, this case presents a scenario where the 1st Respondent party’s position appears to have shifted at different times during these proceedings in favour of either the Complainant or the 2nd Respondent. Prior to September 6, 2022, the party position was that the 2nd Respondent was at position number 1. Subsequently, and as per the 1st Respondent Secretary General’s letter dated September 6, 2022, the party communicated to the IEBC that the Complainant will be nominated in the first place and would be replacing the 2nd Respondent. Whereas we appreciate that the preparation of party lists is within the province of political parties as judicially underscored in the above judicial authorities, political parties should exercise such discretion in accordance with the law as already stated above. It is not clear to us why the 1st Respondent directed the IEBC to replace the name of the 2nd Respondent with that of the Complainant as per the letter dated September 6, 2022 under reference. The 2nd Respondent seems not to have been engaged prior to arrival at the stated party position contrary to the dictates of natural justice.

41. Secondly, this Tribunal finds it difficult to prioritize the listing of either of the parties in the 1st Respondent’s party list as neither of the parties led any evidence on party laws, processes and the considerations that culminated to the nomination and priority listing of either party.

42. In light of the foregoing, balancing the right of the 1st Respondent to prepare party lists and the interests of the Complainant and the 2nd Respondent, we order as follows:i.That this matter be and is hereby referred back to the party to reconsider and make a determination on the priority listing of the Complainant vis a vis that of the 2nd Respondent in accordance with the party laws and whilst considering their respective interests, and to communicate the party position to the IEBC by 2pm on September 9, 2022 for implementation.ii.That this Honourable Tribunal hereby issues an order restraining the IEBC from gazetting the 2nd Respondent as Member of County Assembly, Nyamira County, under the gender top up category, pending compliance with order number (i) above within the stipulated timelines.ii.Each party shall bear its own costs of the proceedings.

DATED AND DELIVERED AT NAIROBI THIS 8TH SEPTEMBER 2022. DESMA NUNGO(CHAIRPERSON)DR. KENNETH MUTUMA(MEMBER)FLORA M. MAGHANGA-MTUWETA(MEMBER)RUTH WAIRIMU MUHORO....(MEMBER)