[2022] KEPPDT 927 (KLR)

Ouma v Jubilee Party of Kenya & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E006 (NRB) of 2022) [2022] KEPPDT 927 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 927 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E006 (NRB) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 17, 2022

Between

Paul Bwire Ouma

Claimant

and

Jubilee Party Of Kenya

1st Respondent

Charles Nderitu Gichangi

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. The Complainant is a member of the 1st Respondent, Jubilee Party, which is duly registered as a political party.

2. On 24th February 2022 the Complainant paid up to the said Jubilee party the required Nomination Fees in the sum of Kshs. 50,000/- and was issued with a receipt for the same by the said 1st Respondent.

3. The Complainant states that he and the 2nd Respondent are aspiring to be nominated by the 1st Respondent to vie through its ticket for the seat of Member of County Assembly (MCA), Umoja 1 Ward, Embakasi West Constituency, Nairobi County.

4. He submits that, despite various demands and follow ups at the 1st Respondent's offices the said 1st Respondent, on the 28th April 2022, forwarded the name of the 2nd Respondent to the Interested Party as its nominee for candidate for MCA seat Umoja 1 ward, Embakasi West Constituency, Nairobi County.

5. Feeling aggrieved, the Complainant on 5th May, 2022 filed the complaint herein together with a Notice of Motion application filed under Certificate of Urgency together with a Supporting Affidavit sworn by Paul Bwire Ouma therewith together with annexures seeking the following orders:a.The nomination certificate issued to the 2nd Respondent by the 1st Respondent be and is hereby declared null and voidb.The nomination certificate for candidate for Umoja 1 Ward, Embakasi West Constituency on the 1st Respondent's ticket be and is hereby awarded to the Complainant herein.c.The letter by the 1st Respondent forwarding the name of the 2nd Respondent to the Interested Party nominating the him as the Jubilee Party candidate for Member of County Assembly Umoja 1 ward, Embakasi West Constituency, Nairobi County be and is hereby declared null and void.d.The 1st Respondent be and is hereby directed to withdraw the name of the 2nd Respondent as its nominee for candidate for Member of County Assembly Umoja 1 Ward and substitute the same with that of the Complainant herein for the said seat.e.The Interested Party be and is hereby restrained from including the name of the 2nd Respondent in the Kenya Gazette as nominee candidate by the 1st Respondent to vie for the seat of Member of County Assembly Umoja 1 Ward, Embakasi West Constituency,Nairobi County.f.Any other relief that the tribunal may deem appropriate.g.Cost of this complaint be awarded to the Complainant.

6. The 1st Respondent filed their response to the complaint vide a Replying Affidavit sworn on 9th May, 2022 as well as their written submissions dated 9th May 2022.

7. The 2nd Respondent also field his written submissions on 6th May, 2022.

The Complainant’s Case 8. The Complainant avers that the 1st Respondent decided to nominate candidates to vie for the various seats on its ticket in the 9th August 2022 general elections through consensus (indirect nomination).

9. He submits that in the execution of the said decision, the 1st Respondent summoned all the aspirants aspiring to vie for the seat of MCA, Umoja 1 ward, Embakasi West Constituency, Nairobi County to a meeting at Windsor Hotel for purposes of*consensus building on the 18th April 2022.

10. The Complaint argues that at the meeting, aspirants and the 1st Respondent failed to reach consensus on the candidate to be nominated, and resolved that the 1st Respondent would conduct an opinion polls on the ground, to determine the best and most viable candidate for said nomination.

11. After the said polling process, the Complainant states that he was established as the best and most viable candidate for nomination to vie for the MCA seat Umoja 1 Ward, Embakasi Constituency, Nairobi County.

12. He submits that he was determined to be the best and most viable candidate for nomination for the subject seat because on the 22nd April 2022 he received a text message from the 1st Respondent to collect his nomination certificate at the its headquarters on the 23rd April 2022 at 11:00 am.

13. The Complainant further avers that on the said date of 23rd April 2022, he proceeded to the 1st Respondent's headquarters to collect his nomination certificate but was surprised that though some certificates for candidates in Nairobi County were issued, that of the candidate for MCA Umoja 1 Ward, Embakasi West Constituency, was among those not issued.

14. When he enquired about this the Complainant was advised to collect his certificate alongside those not issued on either 25th April 2022 or 26th April 2022 when it would be ready.

15. The Complainant submits that on 24th April 2022, in the evening, the 1st Respondent called the Complainant on his phone and informed the Complainant that the 2nd Respondent had lodged a complaint, complaint no. 104 of 2022 against him and he was required to appear before the 1st Respondent's National Elections Appeals Tribunal on the 25th April 2022 to defend himself.

16. The Complainant complied with the summons and appeared before the 1st Respondent's National Elections Appeal Tribunal (NEAT) on the 25th April 2022 at noon however the 2nd Respondent failed to appear to prosecute his complaint.

17. Consequently, the Complainant states that NEAT dismissed the 2nd Respondent's complaint for non-attendance and for want of prosecution. The NEAT went ahead and upheld the decision of the NEB to award the nomination certificate to the Complainant.

18. He states that he was directed by NEAT to liaise with the relevant Respondent's officials to collect his certificate as soon as possible.

19. The Complainant says that he proceeded to the 1st Respondent's headquarters on the 26th April 2022 to collect his nomination certificate but to his dismay he was informed the certificate had been issued to the 2nd Respondent.

20. On 27th April 2022, the Complainant lodged a complaint letter with the 1st Respondent against the decision to award the 2nd Respondent the nomination certificate to vie for the MCA seat of Umoja 1 ward, Embakasi West Constituency,Nairobi County.

21. Subsequently he filed this complaint which is submits is warranted and the prayers sought should issue.

The 1st Respondent’s Case 22. The 1st Respondent filed a replying affidavit through the Director Legal Services of Jubilee Party one, Kamau Mbugua as well as written submissions.

23. The 1st Respondent states that the National Elections Board established under the Jubilee Party's Constitution is legally mandated to handle election matters including nomination of candidates within the Party. The Constitution of the Party has also established a dispute handling tribunal known as the National Elections Appeals Tribunal for purposes of conducting Internal Disputes Resolution between the Party and its members in the event disputes arise.

24. He avers that they followed the Party's Constitution and Nomination Rules, and that the 1st Respondent in consultation with the membership opted to have nominations for various candidates done through consensus.

25. The 1st Respondent states that the aforesaid mode of nomination is allowed under ‘Jubilee Party Nomination Rules’, more specifically, Part XVI Clause (i) of the Rules provide as follows:a)The Party shall, in areas of special interest, where nominations cannot be conducted issue direct nomination certificate to such candidate or where there are more than one aspirant, by consensus or any other appropriate means agreed select one among them to be nominated.

26. The 1st Respondent submits that in the spirit of consensus building, they invited the Complainant herein to a consensus building forum held at Windsor Hotel on 18th April, 2022. Among the issues agreed on was that in the event candidates failed to agree on a single candidate, they would allow the National Elections Board to come up with the most suited candidate.

27. He avers that the candidates for Umoja 1 Ward were not able to agree on a single candidate as a result of which the Panel appointed by the National Elections Board proposed its nominee for the MCA Umoja 1 Ward based on the various parameters under consideration. This was not a final decision as the National Elections Board would then either adopt or reject the proposal of the panel.

28. The 1st Respondent submits that the 2nd Respondent herein, filed an appeal to the National Elections Appeals Tribunal (NEAT) seeking to challenge the decision by the Panel. He avers that by the time directions for hearing of the Complaint were being issued, the NEAT was informed by NEB that it was indeed the Complainant then (who is the 2nd Respondent herein) who has been nominated by the National Elections Board as the flagbearer for Umoja 1 Ward.

29. The 1st Respondent says that with those developments, the complaint could not be pursued. The net effect was that the decision of NEB to nominate the 2nd Respondent herein would stand.

30. He argues that the process was conducted above board and the same was handled by the Party's authorized body to handle nominations, being the National Elections Board, which adhered to the law, the Party's Constitution and the Nomination Rules.

31. The 1st Respondent submits that the party has since submitted its list of candidates for various positions including Senate, Woman Representative Candidates, National Assembly and County Assembly positions through their letter dated 28th April 2022.

32. The 1st Respondent also disowned two Annexures PBO - 2 and 4, submitted by the Complainant and stated that the 1st Respondent did not send the alleged text messages informing the Complainant to collect the nomination certificate as alleged. He also stated that the text messages did not originate from the 1st Respondent or any of the Jubilee Party organs and the same is a fabrication devoid of any truth.

33. The 1st Respondent also disowned the summary of all the cases before the NEAT stating that it is not an official document from the Party or its organs.

34. The 1st Respondent submits that from the Party's records, the Complainant has not complied with the appeal process so as to properly invoke the Party's internal dispute resolution mechanism. He states that the rules require a person lodging the appeal to pay the requisite fee failure to which the appeal is deemed not to have been filed. Rule 39 provides as follows:a)An appeal may be lodged without undue formalities in English or Kiswahili language simply by writing to the appellate Tribunal and delivering the same to any member of the appellate Tribunal for immediate onward transmission to the appellate Tribunal's secretariat or the Party's secretariat or the National Elections Board secretariat or the relevant County Elections Board secretariat, setting out clearly and concisely the position that was being contested or was intended to be contested, the decision in dispute, and grounds giving rise to the grievance of the appealing party. Provided that the appeal shall not be heard and time for lodging the appeal shall continue running as against the intending appellant unless and until such fee as shall have been prescribed in these rules for the lodging of the appeal shall have been paid in full to the Party account designated for that purpose either at the County or National level.

35. The 1st Respondent avers that the 2nd Respondent was validly nominated as the Jubilee Party's candidate for Umoja 1 Ward, Nairobi City County in a fair process. He urges the Honourable Tribunal to dismiss the Complainant's Application as well as the Complaint with costs.

The 2nd Respondent’s Case 36. The 2nd Respondent wholly associates himself with the submissions of the 1st Respondent.

37. He concurs that the Complainant did not exhaust the Internal Dispute Resolution Mechanism (IDRM) of the 1st Respondent.

Issues For Determination38. The Respondents have confirmed the majority of the averments in the complaint. However they submit that the party was not occasioned the opportunity to deal with it internally through IDRM. In the circumstances the issues before us are:a.Does this Tribunal have jurisdiction?b.What orders should we make?

Analysis 39. It is not disputed that there was an indirect nomination process in respect of the seat in issue. The divergence point is where the Complainant submits that the said process deemed him the most viable candidate for the party ticket for the seat in issue. While the 1st Respondent on the other hand submits that the said process saw the panel make an interim recommendation that was then forwarded to the NEB for ratification.

40. To this point the Complainant, as he so submits, had no reason, to the best of his knowledge to complain or be concerned.

41. It is at this stage that the 2nd Respondent herein then lodged an appeal with the party organ. This is a fact not disputed by any party. The Complainant avers that he then presented himself before the party organ in response to summons over the said pending complaint. The Respondents, vide the Replying Affidavit sworn on behalf of the 1st Respondent, submit that the internal party organ that was meant to address the pending complaint did not proceed with it having received communication from another party organ stating that the ticket would issue to the 2nd Respondent herein who was the disgruntled party before the party organ. This communication in effect determined the complaint that was before the party organ. It is thus their submission that if the Complainant herein was dissatisfied with the party determination he needed to appeal that decision by the party organ in line with the party laws.

42. We find this a bit odd as the alleged decision by the party organ against which an appeal should have been lodged is not presented before this Tribunal by either the 2nd Respondent who had lodged the complaint before the party organ or the 1st Respondent who should have access to the same.

43. The Complainants submission that the complaint before the party organ failed and that the position at that point of its failure, as far as he was concerned was that his emergence as the preferred ticket holder subsisted, thus in our view holds strong.

44. We have taken time to analyze this because undoubtedly jurisdiction is everything and before this Tribunal can be seized of jurisdiction a party must have attempted to resolve the matter internally and it follows that such attempt need be made soonest the wrong complained against crystalizes.

45. We do not see up to the stage of the conclusion of the matter before the party appeals organ, any reason to have expected the Complainant to try and resolve any issue within the political party.

46. At what point then did the Complainant feel disgruntled and did he address his concerns internally? Is not disputed that the Complainant wrote a letter to the party making various demands on 27 April, 2022 and the said letter was received and stamped on the same day by the party. The substance of the letter is a complaint by the Complainant herein on the seemingly unexplained failure to issue the nomination certificate in his name.

47. We are not informed how, if at all the political party addressed these concerns raised by the Complainant. So the question is was this action an attempt at IDRM?

48. The current wording of section 40 (2) states as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

49. There are ample authoritative pronouncements on the issue of IDRM before the party in order that this Tribunal can be seized of jurisdiction. This Tribunal has stated, times without number, that it takes seriously the legal edict in section 40(2) of the Political Parties Act, 2011. The Tribunal will always require parties to demonstrate compliance with the provision of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

50. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4;Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (Complainant No 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that:We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

51. It merits noting that the fore-cited cases were delivered before the Political Parties Act was amended vide the Political Parties (Amendment) Act 2021. There was a significant shift in the wording of section 40(2) of the Act. The Section previously read as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

52. The current wording of section 40 (2) is as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment accords the law with our previous pronouncements and those of the courts.

53. The Complainant herein has clearly demonstrated an attempt to raise a concern with his party. This displays that there has clearly been an attempt to explore IDRM and as such this Tribunal is properly seized of jurisdiction.

54. The Complainant has established a strong case that shows that he has been following issuance of his nomination certificate which for some unexplained reason the 1st Respondent has failed to issue to him.

55. In fact the Respondents attempt to explain themselves is muddled and confusing except to the extent that the 1st Respondent would want opportunity to deal with the matter internally. Unfortunately, they lost that chance when they failed to respond to the letter of complaint served upon them by the Complainant herein as that led to jurisdiction vesting upon this Tribunal.

Disposition 56. In light of the aforesaid we direct and order as follows:a.That the internal process conducted by the 1st Respondent herein that resulted in their forwarding to the Interested Party herein, the name of the 2nd Respondent herein as the Jubilee Party nominee candidate for Member of County Assembly Umoja 1 Ward, Embakasi West Constituency in the coming general elections in August 2022 is unlawful and thus null and void.b.That the Jubilee nomination certificate issued to the said 2nd Respondent Charles Nderitu Gichangi as Jubilee Party Member of County Assembly candidate for Umoja 1 Ward, Embakasi West Constituency is hereby revoked.c.That the said 1st Respondent herein, Jubilee Party, do forthwith issue to the Complainant herein Paul Bwire Ouma a nomination certificate as its Member of County Assembly candidate for Umoja 1 Ward, Embakasi West Constituency, Nairobi County in the general elections slotted for August 2022. d.Costs of the complaint is awarded to the Complainant as against the 1st and 2nd Respondents jointly and severally.e.That the notification of this decision issue to the Independent Electoral and Boundaries Commission the Interested Party herein.

DATED THIS 17TH DAY OF MAY 2022M. L. ODONGO(PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR(MEMBER)DR. LYDIAH WAMBUI(MEMBER)