[2022] KEPPDT 1060 (KLR)

Onduso v Jubilee Political Party & another (Tribunal Case E015 of 2022) [2022] KEPPDT 1060 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1060 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Tribunal Case E015 of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

May 6, 2022

Between

Kennedy Onduso

Complainant

and

Jubilee Political Party

1st Respondent

Dennis Mauti

2nd Respondent

Judgment

1. This matter concerns the issue of a direct nomination ticket, to the 2nd Respondent herein as Nominee for the position of Member of County Assembly for Majoge/Bassi Ward. Following consensus discussions, the Complainant and 2nd Respondent consented that the Complainant would be issued with a Nomination Certificate. The 1st Respondent proceeded to issue a nomination certificate to the 2nd Respondent, despite the fact that consent had been entered. The Complainant was aggrieved by this decision and approached the Jubilee Party by way of a complaint, but he claims the 1st Respondent failed and /or refused to give a ruling. He then approached this tribunal, seeking orders restraining the 1st Respondent from submitting the name of the 2nd Respondent to the Independent Electoral and Boundaries Commission (IEBC) pending the hearing and determination of the Complaint.

2. Interim orders were granted restraining the 1st Respondent from submitting the 2nd Respondent’s name to the IEBC pending the determination of the matter before us. The matter was heard on 4th May 2022 orally before this Tribunal.

3. The Complainant was represented by P.W Odhiambo holding brief for Nyamweya for the Complainant. There was no appearance from the Respondents. Advocates for the Complainant filed an Affidavit of Service dated 3rd May 2022.

4. Mr. Odhiambo for the Applicant began by explaining that there was consensus that the party would not have nominations by election and would instead, use consensus to identify the candidate. He read out paragraph 3 of the minutes, annexure “KOO2” which stated that the he was to be awarded the nomination.

5. He was later informed that the Certificate was issued to the 2nd Respondent. He then filed a complaint to the party IDRM which has to date not rendered a decision. The complaint was filed as annexure “KOO3”.

6. He explained, that he wrote to the Hon Jeremiah Kioni Secretary General of the Party, and that of28th April 2022, and that no communication or a decision had been sent to him. He urged the Tribunal to allow his complaint.

Disposition 7. In the circumstances of this case, the Complainant has filed an Affidavit of Service confirming service upon all the Respondents, he has also provided documentary evidence, supporting his complaint including copies of documents; namely the copy of the consensus agreement entered into between the Complainant and the 2nd Respondent, copy of receipts showing payment of nomination fees and a copy of the complaint to the Jubilee Political Party Tribunal.

8. Moreover, we note that none of the Respondents have entered appearance in this matter. The Complainant has filed an Affidavit of Service confirming service upon the 1st and 2nd Respondents and the 2nd Respondent. Consequently, the Applicant’s submissions remain uncontroverted. Despite this, the Complainant still bears the burden of proving its case.

9. The totality of the evidence points to the facts as having been proved to the required standard.

10. The Respondents are the authors of the subject dispute herein, and did not heed notice nor make effort to respond to the allegations herein. Tus, they will bear the costs of these proceedings.

Disposition 11. In the upshot we make the following Orders:i.We hereby issue a declaration that the Complainant is the valid nominee for the 1st Respondent’s ticket for Member of the County Assembly for Majoge Bassi Ward.ii.We declare that the Nomination Certificate issued to the 2nd Respondent by the 1st Respondent, is null and voidiii.We allow the complaint and direct the 1st Respondent to give effect to the consensus and issue the name of the Complainant as the validly nominated candidate for Member of County Assembly for Majoge Bassi Ward, within 24 Hours of service of this order and to forward his name to Independent Electoral and Boundaries Commission.iv.The Complainant shall have costs of these proceedings.

12. Those are the orders of the Tribunal.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MAY 2022__________________________________________HON. DR. WILFRED MUTUBWA OGW C. ARB - VICE CHAIRPERSON – PRESIDING____________________________________HON. FATUMA ALI - MEMBER______________________HON. WALUBENGO SIFUNA - MEMBER