[2022] KEPPDT 987 (KLR)

Serar v National Elections Board- United Democratic Alliance (UDA) & 2 others; Independent Electoral And Boundaries Commission (Interested Party) (Complaint E110 (NRB) of 2022) [2022] KEPPDT 987 (KLR) (6 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 987 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E110 (NRB) of 2022

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

August 6, 2022

Between

Mukhtar Ibrahim Serar

Complainant

and

National Elections Board- United Democratic Alliance (UDA)

1st Respondent

United Democratic Alliance (UDA) Party

2nd Respondent

Rotich Diana Chepkemboi

3rd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

Introduction 1. The complainant is a bona fide life member of United Democratic Alliance (UDA) Party, and a nominated Member of County Assembly, Wajir County under the special seat of persons with disabilities. The complainant is a person living with disability registered with the National Council of Persons with Disabilities under registration number NCPWD/P/572162.

2. It is the complainant’s case that he is likely to miss an opportunity to be nominated as a Member of County Assembly Wajir County under the category of Persons Elected First should United Democratic Alliance Party secure enough seats in the County Assembly. This is for reasons that the complainant was replaced in the list of County Assembly Nominees under marginalised groups/special seats by the 1st respondent as the first nominated Member of County Assembly, Wajir Person with Disability.

3. Consequently, the complainant filed the instant complaint challenging the said party list, in terms of the 3rd respondent appearing therein and him being listed second after the 3rd respondent.

4. The respondents and interested party did not file any documents in response to the complaint. They were also unrepresented during the hearing of the matter on August 5, 2022, notwithstanding the fact that due service had been effected.

5. The complainant was represented by the firm of Kinaro and Associates Advocates. There was no representation on behalf of the respondents and the interested party.

The Complainant’s Case 6. The complainant avers that he aspires to serve the County of Wajir as a nominated Member of County Assembly under the special category of persons with disabilities. In this regard, the aspirant Governor of Wajir County one Ahmed Ali Mukhtar was mandated by the party to prepare and submit a Member of County Assembly, Wajir County Nomination list.

7. After extensive consultations with party members and having reached a consensus, a list of nominees for the marginalised group was forwarded to the party. In the said list, the complainant was the only nominated Member of County Assembly, Wajir County under the category of persons with disability as evidenced by “MIS-5”.

8. The complainant further states that the party then submitted a list of the marginalised group nominees for the County Assembly of Wajir to the Independent Electoral and Boundaries Commission (IEBC). Upon reviewing the list, theIEBC uploaded the final party list of the marginalised group nominees for Wajir County on the IEBCwebsite and published the same in the Standard Newspaper informing the public and persons aggrieved by the Party list to lodge complaints accordingly.

9. The complainant further avers that he was shocked when the list was published that one Rotich Diana Chepkemboi, the 3rd respondent herein was listed in position 5 of the list as a female nominee under the category of persons with disabilities while the complainant was listed position 8. As a result, the 3rd respondent appeared as the first nominated member of County Assembly, Wajir Persons with Disabilities.

10. It is however the complainant’s case that the 3rd respondent is neither recognised by the UDA leadership nor the Members in Wajir County. Moreover, the 3rd respondent is not a person with disability. More importantly, the complainant’s position is that the 3rd respondent is not a resident of Wajir or a registered voter therein. As a result, she is intrinsically not conversant with the needs of the people of Wajir County.

11. The complainant therefore avers that the decision to nominate the 3rd Respondent and list her first before the Complainant is a mischievous act orchestrated at the Party’s headquarters and is prejudicial to the interests of persons with disability in Wajir County. This decision also contravenes the provisions of articles 10 (b) (c), 91 and regulation 4 of the Elections (Party Primaries and Party Lists) Regulations 2017 and is therefore illegal, unlawful and in bad faith.

12. The Complainant holds that he had legitimate expectation that he is a rightfully nominated MCA Wajir County under the category of persons with disability should the party secure enough seats, and should therefore have appeared first on the said list. This is because appearing second lowers his chances of being elected as MCA Wajir County Persons with Disability.

13. The Complainant also states that attempts to resolve his grievances have been ignored by the 1st and 2nd Respondents. A fact evidenced by the letter marked “MIS- 7” dated July 29, 2022, that was delivered to and received by the 1st and 2nd Respondents with regard to which there has been no response.

Issues for Analysis and Determination 14. Having gone through the notice of motion, and supporting affidavit and submissions by the party’s legal representatives, we have isolated the following issues for determination:i.Whether the tribunal has jurisdiction to determine this matter?ii.Whether the application has merit and what are the appropriate reliefs?

Whether the tribunal has jurisdiction to determine this matter? 15. Jurisdiction is inalienable when it comes to the powers that a tribunal has to examine whether a case has merits. Indeed, as was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989), where Nyarangi JA held as follows:'Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

16. This position is buttressed further by the provisions of the Political Parties Act section 40 which provide that:"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 (f) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms."

17. The matter at hand qualifies as one for determination under the provisions of Section 40(1) of the Political Parties Act being a dispute between a member of a political party and a political party as well as a dispute arising out of party nominations. In the present matter, the Complainant vide the letter marked “MIS-7” dated July 29, 2022, has adduced evidence of his attempt to engage the IDRM of his party before proceeding to the Tribunal. From an analysis of the evidence before the Tribunal in form of this letter that was ostensibly received by the 1st and 2nd Respondent but not responded to, the Tribunal is of the opinion that the Complainant has effectively demonstrated that he attempted to pursue IDRM to no avail. Having established such effort, the Tribunal therefore determines that it has jurisdiction to determine this matter.

Whether the application has merit and what are the appropriate reliefs? 18. The Complainant claims that the 3rd Respondent is not entitled to be nominated as a Member of County Assembly, Wajir County under the special category of persons with disability for reasons that she does not come from Wajir, neither is she a registered voter therein. He also claims that she is not a person with disability. These allegations form the crux of the Complainant’s case.

19. To determine this matter, there must be careful consideration of the provisions of Section 107 of the Evidence Act. This section essentially provides that he who asserts must prove. Further, in Section 112 of the Evidence Act it is stated that “In civil proceedings where any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the facts is upon him.”

20. Guided by the above legal provisions, and after critical consideration of the evidence before the Tribunal, there is seemingly no proof of the Complainant’s allegations that the 3rd Respondent does not hail from Wajir, or that she is not a PWD, amongst other allegations made in the pleading. It is not enough for the Complainant to make these claims. It is the Tribunal’s considered view that the Complainant should have adduced more evidence to prove his claims. For instance, with respect to the allegation that the 3rd Respondent does not hail from Wajir, he should have produced evidence of where she hails, and the place of residence or work of the 3rd Respondent. There being nothing before the Tribunal to buttress the Complainant’s position, the Tribunal finds that this Complaint has no merit.

21. On the issue of costs, whereas costs follow the event, having analysed the circumstances of the case we are of the view that each party should bear its own costs in these proceedings. In making this determination, it is the Tribunal’s view to ensure that it is careful not to discourage complaints in exercise of citizen’s democratic rights as enshrined in the Constitution of Kenya, 2010.

Disposition 22. In light of the foregoing, we order as follows:-i.The complaint herein be and is hereby dismissed.ii.Each party is to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF AUGUST 2022. DESMA NUNGO…… …………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..……………….(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………….(MEMBER)RUTH WAIRIMU MUHORO………………………………...(MEMBER)