[2022] KEPPDT 954 (KLR)

Redempta v Jubilee Party; Obino (Interested Party) (Complaint E035 (KSM) of 2022) [2022] KEPPDT 954 (KLR) (8 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 954 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E035 (KSM) of 2022

W Mutubwa, Vice Chair, F Saman, S Walubengo & T. Chepkwony, Members

August 8, 2022

Between

Motoa Vera Onkundi Redempta

Complainant

and

Jubilee Party

Respondent

and

Clare Moraa Obino

Interested Party

Judgment

1. This matter concerns the nomination of the Complainant as the Nominee for the Member of County Assembly for the Gender Top Up in Kisii County- Jubilee Party. The Complainant’s name was placed at position Number 3 in the initial Party List and was later moved to Number 27. Furthermore, it is his allegation that the Respondent went on to give his previous position to a nominated MCA from ODM Party without notice to any of the nominees.

2. It is the Complainant’s claim that the decision lacked fairness and was against his legitimate expectation after having been listed as number 3 on the list. Being aggrieved by the Respondent’s decision the Complainant approached this Tribunal for relief.

3. The Complainant claims to have made efforts to contact the Respondent in a bid to resolve the issue attending a meeting at the Party Head Office in vain. He attached a Copy of the Complaint dated July 28, 2022 in support of this assertion. After, failing to get a response from the Respondent on the way forward in this matter he filed the present Complaint, as well as a Notice of Motion Application, and a Supporting Affidavit both dated August 5, 2022, as well as a letter dated July 28, 2022, addressed to the Respondent protesting the results of the Party List Nominee- Gender Top Up –Jubilee Party- Kisii County.

4. The matter came up for hearing on August 7, 2022, where the matter was heard virtually. There was no appearance entered by the Respondent or the Interested Party.

5. The Complainant confirmed having served the Respondent and filed an Affidavit of Service verifying the same.

6. The Complainant had the following prayers:I. That this Tribunal honourable Tribunal be pleased to certify the application as urgent and the same be heard exparte inn the first instance.II. THAT pending the hearing and determination of this Application, the Honourable Tribunal be pleased to order for stay of the nomination of Clare Moraa Obino as a nominee candidate for Kisii County until the present application is heard and determined.III. THAT the Honourable Tribunal be pleased to declare that the nomination list for member of Kisii County Assembly as originally presented where theComplainant was No 3 in the list be upheld as the right list as agreed by the Candidates.IV. THAT the Honourable Tribunal be pleased to order the name of one Clare Moraa Obino to be expunged from among the list of nominee candidates for the year 2022. V. THAT the Respondents jointly bear the costs of this claim.

Complainant’s Case

7. It is the Complainant’s submission that her Application seeks to have the nomination list forwarded by the Jubilee Party stayed and the first list that was prepared be upheld. It is the Complainant’s averment that she had been included in the initial list of nominees as Number 3 of the said Nomination List. Later on the Complainant was listed as Number 21 on the said list, which was an alteration that Counsel alleges prejudiced the Complainant.

7. In her pleadings the Complainant avers that she is a life member of the Respondent Party and has participated in the recruitment of party members at the grass root mobilization, and that the nomination of the Interested Party who she claims is a life member of a different party already serving a Kisii County was an act of unfair administrative action by the Respondent.

7. It is the Complainant’s submission, that she had a right to be nominated, since the initial Party List was made pursuant to Public Participation and with the Participation of Party Officials. Furthermore, that the Complainant’s Rights under Article 47 of the Constitutionwere violated, and that due to the absence of any justification by the first Respondent, it is the Complainant’s prayer that we find the present Application as being merited and grant the prayers sought.

Issues for analysis and determination

10. From the foregoing pleadings and submissions, the following issues are key for determination:i.Whether the Complaint has successfully proved his case to the required standard to be granted the orders sought?ii.Who bears the costs of the Complaint?Whether the Applicant has successfully proved his case to the required standard to be granted the orders sought?

10. The Complainant has adduced evidence that she attempted Internal Disputes Resolution Mechanism, by sending a letter dated July 28, 2022, to the Chairman of the Jubilee Elections Board. It is therefore our finding that she is rightfully and lawfully before this Tribunal, having satisfied the requirements for jurisdiction set out under Section 40 (1) of the Political Parties Act.

Legitimate Expectation

12. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2] where the Supreme Court stated that:-“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

13. Addressing the subject of legitimate expectation, HWR Wade & CF Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation…... Second, clear statutory words, of course, override an expectation howsoever founded…. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

14. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken. 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, which 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.

15. In regard to the present complaint it is our view, that the Complainant has shown that a reasonable expectation was created by the Respondent; that they would be included in the Party List. Additionally, the Complainant submitted, that she was alife member of the party and had previously been nominated as Number 3 on the list. The Respondent’s actions, namely changing her ranking in the list, was lacking in fairness and was against her legitimate expectation. In light of the evidence produced, pleadings and submissions made we agree with the Complainant that there was a legitimate expectation created in the mind of the Complainant and that the said legitimate expectation was clearly violated by the Respondent.

16. Furthermore, because the matter herein is undefended and the evidence adduced has not been controverted, the Complainant succeeds on account of the evidence laid not being challenged. This being an adversarial system, if a case is made and there is no answer, there is nothing to compare the allegations with and therefore the complaint is allowed.

17. It is thus our view that the Respondent has misconducted itself and failed to answer the Complainant’s allegations, which we find have been proved to the required standard. Additionally, it is our view that the first list seems to have been based on negotiations, while the second list has been impugned without contest. For those reasons, we rule that the Complaint is allowed, and order the Respondent to submit a fresh lest to the Interested Party within 48 Hours including the name of the Complainant as Number 3 on the said Nomination List.

Who Bears the Costs of this Application?

18. Costs follow the event, in this case the Complainant filed the complaint and served the Respondents and the Interested Party who failed to enter appearance nor file their respective defence.

19. The costs for this suit will be borne by the Respondent.

Disposition

20. In the upshot we make the following Orders:i.We allow the Complaint.ii.Order the Respondent to submit a fresh list to the Interested Party within 48 Hours including the name of the Complainant as Number 3 on the said Nomination List.iii.Cost of the Suit will be borne by the Respondent.

20. Those are the orders of the Tribunal.

Dated at Nairobi and delivered virtually this 8thday of August 2022Hon. Dr. Wilfred Mutubwa OGW C. ArbVice Chairperson – PresidingHon. Fatuma Ali MemberHon. Walubengo Sifuna - MemberHon. Theresa Chepkwony-Member