[2022] KEHC 9785 (KLR)

Salat v United Democratic Alliance (UDA) & 2 others (Civil (Election) Appeal E499 of 2022) [2022] KEHC 9785 (KLR) (Civ) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9785 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil (Election) Appeal E499 of 2022

JK Sergon, J

July 18, 2022

Between

Omar Haji Salat

Appellant

and

United Democratic Alliance (UDA)

1st Respondent

Independent Electoral and Boundaries Commission (IEBC)

2nd Respondent

Siyad Hussein Jimale

3rd Respondent

(Being an appeal from the judgment and decree of the Political Parties Disputes Tribunal issued on 6th July 2022 by Hon. Jessica M’mbetsa – presiding member, Samuel Mbiriri Nderitu- member and Dr. Adeline Mbithi- member in the Political Parties Disputes Tribunal Appeal no. E008 of 2022)

Judgment

1)Omar Haji Salat, the appellant herein and Siyad Hussein Jimale, the 3rd respondent herein, had both applied to contest for the United Democratic Alliance (UDA) party nomination for the position of Member of National Assembly, Eldas constituency on the 9th August 2022 general elections. The facts outlined by each side appear to be divergent.

2)According to the appellant, he attended an interview on 7th April 2022 conducted by UDA at Hustler Center after which he was issued with a nomination certificate dated 8th May 2022 certifying him as duly nominated by UDA to contest as member of the National Assembly for Eldas constituency in Wajir county for the 9th August general elections.

3)The appellant further avers that a party list of nominees bearing his name was forwarded to IEBC and that IEBC issued him with a certificate of registration for parliamentary elections dated 29th May 2022. The appellant also avers he was subsequently gazetted on 1st July 2022 as a candidate to vie for the forthcoming general elections.

4)The 3rd respondent on the other hand avers that he was on 20th April 2022 nominated as UDA flagbearer in the August 2022 general elections for Eldas Constituency as a Member of the National Assembly.

5)The 3rd respondent further avers that on 27th April 2022 UDA NEB informed him to pick his nomination certificate from the party headquarters Christened Hustler Center where he was issued with his nomination certificate

6)The 3rd respondent also avers that the appellant had even congratulated him for securing the UDA ticket. The 3rd respondent stated that on 30th May 2022 he went to present his nomination papers, but the Returning Officer, Eldas constituency turned him away and informed him that the IEBC had already cleared the appellant as the UDA candidate for Eldas constituency.

7)Being aggrieved, the 3rd respondent filed a complaint before the Political Parties Disputes Tribunal (PPDT) which was later withdrawn paving the way for the 3rd respondent to file an appeal to the UDA-EDRC challenging the actions that led to issuance of a nomination certificate to the appellant.

8)The UDA-EDRC heard the 3rd respondent’s complaint where on 21/6/2022 it declined jurisdiction. The 3rd respondent filed an application for review in which he successfully had the UDA-EDRC decision declining jurisdiction reviewed and set aside. It was noted by UDA-EDRC that the 3rd respondent was the UDA’s nominee.

9)Being dissatisfied, the appellant filed a complaint before the PPDT and sought to overturn the findings of UDA-EDRC. PPDT heard the appellant’s complaint and dismissed it by upholding the decision of UDA-EDRC vide its decision delivered on 6th July 2022.

10)The appellant being dissatisfied preferred this appeal and put forward the following grounds:i.That the learned tribunal erred in fact and in law by failing to find that the UDA party Internal Dispute Resolution Mechanism had no jurisdiction to entertain the complaint lodged by the 1st and 3rd respondents herein on 4. 6.2022 outside the 2nd respondent’s timelines contained in gazzete notice no. 434 of 2022. ii.That the learned tribunal erred in fact and in law ignoring an outright admission from the UDA National Elections board that the appellant herein was nominated and issued with certificate from both the party and UDA to vie for the Eldas parliamentary seat position.iii.That the learned tribunal erred in fact and in law in failing to determine that the matter before the UDA EDRC had not been heard on merit substantively and that they ought to have heard the same on merit.iv.That the PPDT erred and misdirected itself both in law and in fact by proceeding to order the IEBC, the 2nd respondent herein, to rely on the 1st respondent’s replying affidavit dated 30th June to gazette the 3rd respondent as the rightful candidate.v.That the learned members of the tribunal erred in fact and in law by misapplying themselves to the facts and applicable law in the appeal thereby reaching the wrong conclusion that the appellant herein was not the rightful candidate.vi.That the learned tribunal erred and misdirected itself both in law and in fact by failing to find and hold that the 1st Respondent had not tendered any evidence of the alleged error in forwarding the name of the appellant to the 2nd respondent for clearance.vii.That the PPDT erred in fact and in law by failing to find and hold that once the 1st respondent had forwarded the name of the appellant to the 2nd respondent for clearance, the dispute ought to have been filed before the IEBC disputes committee.

11)When the appeal came up for hearing this court gave directions to have the appeal disposed of by written submissions. At the time of writing this judgment, only two parties namely the appellant and the 3rd respondent, had filed their written submissions.

12)I have re-evaluated the complaint that was before the PPDT.Though the appellant put forward a total of seven (7) grounds of appeal, the main ground which stands out is that the UDA-EDRC and the PPDT had no jurisdiction to entertain the respondent’s complaint and appeal. It is the submission of the appellant that the first port of call by the 3rd respondent would have been the IEBC DRC and not UDA EDRC since the matter had already left the jurisdiction of the party.

13)The 3rd respondent is of the submission that the UDA-EDRC had jurisdiction to entertain his appeal/complaint.

14)Having considered the rival submissions, I have come to the following conclusions in this appeal. That the law expressly provides that the only time the IEBC can assume jurisdiction over a dispute relating to the nominations is when the party nominations are over and the nomination papers/certificates presented to the IEBC for clearance.

15)It is not in dispute that the 1st respondent forwarded to the 2nd respondent the party list of nominees bearing the name of the appellant and in turn the 2nd respondent cleared the appellant and proceeded to gazette his name as the UDA candidate to contest as the Member of National Assembly for Eldas constituency in Wajir County.

16)The 3rd respondent in the circumstances should have approached IEBC DRC and not UDA EDRC. It is the finding of this court that UDA EDRC erred in law when it entertained the 3rd respondent’s appeal because it had no jurisdiction.

17)I am also of the humble opinion that PPDT further erred in upholding the UDA EDRC decision which decision was made without jurisdiction.

18)In the end and on the basis of this singular ground, I find the appeal to be meritorious. It is allowed thus giving rise to issuance of the following orders:-

i.The judgment and decree of the PPDT of 6th July 2022 is set aside and is substituted with an order striking out and dismissing the decision of U.D.A EDRC made on 22/6/2022. ii.Costs of the appeal to be borne by the 3rd respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF JULY, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:………………………………. for the Appellant………………………………. for the Respondent