[2022] KEPPDT 923 (KLR)

Shimenga v Amani National Congress Party (ANC) & 2 others; Independent Election and Boundaries Committee (IEBC) (Interested Party) (Complaint E002 (KK) of 2022) [2022] KEPPDT 923 (KLR) (Civ) (19 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 923 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E002 (KK) of 2022

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

May 19, 2022

Between

Davis Kubasu Shimenga

Complainant

and

Amani National Congress Party (Anc

1st Respondent

Amani National Congress Party National Election Board

2nd Respondent

Ramadhan Butichi

3rd Respondent

and

Independent Election And Boundaries Committee (Iebc

Interested Party

Judgment

Background 1. The complainant is a member of the 1st respondent a political party, by virtue of his membership number 01448212112006076. On the April 26, 2022 he filed a complaint under certificate of urgency accompanied by a notice of motion supported by his own affidavit together with a plaint, verifying affidavit, list of witnesses, list of documents and a bundle of documents.

2. The matter first coming up before the presiding member of the bench, the matter was certified urgent, service was directed, filing of responses and a mention date and time given so that directions on hearing could issue.

3. The interested party represented by counsel on record [Ms Bitok holding brief for Mr Ngigi] together with counsels for the complainant [Mr Sore & Mr Kubai] consented to allowing the notice of motion application dated April 26, 2022 in line with prayers 2 and 3 thereof and thus proceed to hearing and disposing of the substantive complaint.

The Complainants Case 4. The complainant avers that on April 20, 2022 he participated in party nomination exercise for Ikolomani constituency, following which the results were announced at the Kakamega South District Commissioner Hall by the returning officer one Mr Joseph Angwenye.

5. The said announcement by the said returning officer saw the complainant securing 1410 votes while the 3rd respondent was announced to have secured 1175 votes.

6. There were no filed submissions from the 1st, 2nd and 3rd respondents.

7. The crux of the complainant’s issue is that the party conducted party primaries and the complainant won and was declared as such by the returning officer. A confirmation to this effect is to be found in the affidavit sworn by Josephat Liboyi Angweye, the Returning Officer, Ikolomani Constituency who was appointed by the 1st and 2nd respondents (ref to page 27-30 of the bundle of documents).

8. The complainant avers that he won with 1410 votes against the 3rd respondent’s 1175 votes, an averment confirmed by the Election Coordinator for Ikolomani Constituency and David Shimeka, the Complainant’s agent who was present at the time of announcement of the results (reference had to the affidavits from pages 23– 26 and 31-32 of the complainant’s bundle).

9. The results are not contested. The 3rd respondent who was the runners up, has never lodged a formal complaint with the 1st and 2nd respondents in relation to the results as announced.

10. Rather than issue the nomination certificate to the complainant, the 1st and 2nd respondents, in total disregard of the democratic rights of the complainant’s rights and the democratic right of the voters of Ikolomani Constituency, went ahead and issued the nomination certificate to the 3rd respondent on April 25, 2022. There are no reasons given for this decision.

11. The complainant further submits that the 1st and 2nd respondents impugned decision is in contravention of the provisions of article 91 of the Constitution which requires that political parties should at all times, “abide by the democratic principles of good governance, promote and practice through regular, fair and free elections within the party.”

12. The complainant contends the replying affidavit of Simon Mwangi as being largely on facts he was not admittedly privy to. Issues of the conduct of elections can only be deponed to by the returning officer.

13. The complainant states that the 1st and 2nd respondents cannot now question the qualifications of the complainant yet they cleared him to run. Secondly, nothing allows the party to rig out a member for allegedly joining a party 2 days to deadline.It is still legal to join even 1 second to the deadline. Nowhere do the said respondents state transgression of which rule book. They have not annexed the party constitution and yet direct the tribunal to the specific rule book. What is a rule book in the first place?

14. Despite the right to be heard, nowhere does one Simon Mwangi even allege having involved the participants in the impugned decisions.

15. Finally, the dispute only crystalized after it was clear that complainant would not be given the certificate. The elections were not nullified. No complaint on the elections had been received or communicated to the complainant. There was simply nothing to complain about but await issuance of the nomination certificate. And it is ANC, the party which pushed the issuance of certificates of the 11th hour probably with the misguided belief that that would exonerate them from IDRM and consequently escape the jurisdiction of this tribunal.

16. The complainant submits that the interested party is included in the complaint as such noting that any decision that will be made by the tribunal affects their acceptance of nomination from the party in respect of the nomination in issue.

17. He thus prays for:-a.A declaration that the decision of the Amani National Congress Party (ANC) to issue the nomination certificate for Ikolomani Constituency to Ramadhan Butichi, the 3rd respondent herein is illegal and therefore null and void.b.An order restraining the interested party from receiving and considering the name of the Ramdhan Butichi, the 3rd respondent as the duly nominated candidate for Ikolomani constituency on Amani National Congress party ticket.c.An order directed at the 1st and 2nd respondents to issue the nomination certificate for Ikolomani constituency candidate on the Amani National Congress Party to David Kubasu Shimengad.Any other appropriate order that the honorable tribunal may deem fit in the circumstances.

The 1st & 2nd Respondents Case 18. It is the said respondents, videan affidavit sworn on their behalf by one Simon Mwangi Kamau, the Secretary General of the political party in issue, submit that the complainant was never actually procedurally or properly nominated as their party ticket bearer for the constituency in issue.

19. Their submission is based on grounds that:i.That the complainant joined the party on 24th March two days before the deadline of joining which was March 26, 2022. ii.That the complainant was not a fully paid up member of the ANC Party and did not meet the threshold of 2000 signatures required for nomination as a party representative.iii.That the complainant’s clearance to participate in the nomination process contravened the Parties rule book and constitution.iv.That the complainant was never announced as the winner by the county returning officer.v.The forms used by applicant are different from the official ANC Party nomination forms.vi.That the cited returning officer Mr. Josphat Angweye is not an official of ANC, the official returning officer for Ikolomani Constituency was Nicholas Amboka Wesonga holder of ID No 24915127. vii.That there were some illegalities and irregularities involving Mr Cleophas Malala and Mr. Shimenga as recorded at Ikolomani Police Station.

20. It is the respondents’ case that after considering the circumstances the 1st and 2nd respondents took a decision to award the nomination certificate to the 3rd respondent citing article 17. 2.h and 18. 2 of the ANC party constitution.

21. It is further submitted that whereas, the IEBC deadline for partyIDRMwas on April 22, 2022, the complainant filed his complaint with the party in the afternoon of April 22, 2022 making it impossible for the party to deal with complaints.

22. It is further submitted that after enquiries from the party organs on why the complainant had not been heard at the party IDRM, the respondents have now obtained information and can confirm that the complainant could not have heard as requisite fees had not been paid.

23. The respondents submit that the complainant cannot in any event be allowed to benefit from a process so flawed that it cannot be said to meet the required standards. They ask that the complaint be dismissed with costs.

The Interested Party’s Case 24. The crux of the interested party’s’ opposition to inclusion and their submission in reference to the complaint in issue is that they are strangers to the process and no orders are sought against them and as such they need be removed from the pleadings.

25. They further submit that they will be asking for costs having been wrongly enjoined in an issue that they are removed from.

Issues For Determination 26. The following are issues before us:i.Whether our jurisdiction has been properly invoked.ii.Whether the nomination of the complainant in respect of the nomination in issue was proper.iii.What orders should issue.

Analysis Whether PPDT has jurisdiction 27. Whereas it is not contested that the parties before this tribunal have right of audience having properly been identified as persons over whom this tribunal can exercise jurisdiction, all being members of a political party, the question of jurisdiction turns on section 40 (2) of the Political Parties Act [PPA].

28. The current wording of section 40 (2) PPA 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.

29. In effect what is in question is whether first available remedy was exhausted or even applied. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly v Karume (1992) KLR 21. The said Court went on and clarified the doctrine under the current constitutional dispensation inGeoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others(2015) eKLR as follows:It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex parte applicants argue that this accords with article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.

30. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic v National Environment Management Authority, civil appeal No 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

31. The respondents have not presented before us any information that they attempted to redress the complaint. instead they have presented before us two contradictory reasons as to why they did not hear the complainants case. In the first instance because he had filed too late in the day within the IEBC set timelines for resolution of disputes and second because he did not pay. In effect any frustration of the party IDRM process was in our considered view, as a result of inaction by the respondent. It is odd to imagine how he would have paid for a process that he was clearly advised could not proceed. A clear attempt was made within reasonable time to seek recourse within the party and we thus are properly seized of this matter.

Whether the nomination of the complainant in respect of the nomination in issue was proper. 32. It is not disputed that the party conducted nominations as claimed in this complaint. What is disputed is whether the returning officers forms were authentic forms of the party.

33. We note that the party has also consented that some of the party officials who were present at the impugned nomination and who have sworn affidavits in support of the complaint were actually their officials. It is also not contested that no aspirant contested the outcome of the vote. The only issue laid before us is the lack of authentication marks in the form that was submitted showing return of the tally. An issue that is minor in the face of all other factors that support that a process of nomination had otherwise occurred.

34. In deed we note that the complainant was not invited to any party resolution process and in deed the respondents have not even made attempt to show that he was so invited, to such process.

35. In addition, the 1st and 2nd respondents have not shown why they decided to award the ticket to the 3rd respondent. It cannot be that a process that was meant to express the will of the membership and that has concluded inexplicably culminates in an arbitrary declaration.

36. In light of these facts as presented we are inclined to find that the complainant was properly nominated.

Disposition 37. In light of our analysis and findings we order as follows:a.A declaration be and is hereby issued that the decision of the Amani National Congress Party (ANC) constituency to Ramadhan Butichi, the 3rd respondent herein is illegal and therefore null and void.b.An order issue and is hereby issued directing that the 1st and 2nd respondents do issue the nomination certificate for Ikolomani constituency MP candidate on the Amani National Congress Party to David Kubasu Shimenga.c.That the costs of this complaint are awarded to the complainant as against the 1st, 2nd and 3rd respondents jointly and severally.d.That notification of this order issue to the interested party.

Dated this 19th day of May 2022==================================M.L. ODONGO (PRESIDING MEMBER)====================================TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)===============================DR. LYDIAH WAMBUI (MEMBER)PPDT KAKAMEGA COMPLAINT NO. E002/22 ORIGINAL FINAL JUDGMENT