[2022] KEPPDT 1027 (KLR)

Sumba v Kenya African National Union [KANU] & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E023 (KK) of 2022) [2022] KEPPDT 1027 (KLR) (9 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1027 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E023 (KK) of 2022

M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members

September 9, 2022

Between

Suleiman Kanyanya Sumba

Complainant

and

Kenya African National Union [KANU]

1st Respondent

Cynthia Livoli

2nd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant and the 2nd Respondents are both members of the political party; KANU- Kenya African National Union. The said political party is desirous of nominating its members to the Kakamega County Assembly party nominations list.

2. The Complainant being aggrieved by the 1st Respondent action of nominating the 2nd Respondent to the said Kakamega County Assembly party nominations list wrote to the said political party seeking resolution of the matter. The party has however refused or neglected to address the said grievance.

3. The Complainant, noting the tight elections timelines moved this Tribunal by way of a Notice of Motion application accompanied by a complaint and an affidavit together with annexures. Given the urgency, in the face of the said tight election timelines, the said application was subsumed into the complaint to allow for final orders to issue.

4. The complaint seeks the following orders: -a.A declaration be, and is hereby, issued declaring that the 2nd Respondent is not eligible or otherwise qualified for nomination through the Party List as a member to the County Assembly of Kakamega.b.An order be, and is hereby, issued compelling the 1st Respondent to expunge the 2nd Respondent’s name from the list of members nominated to the County Assembly of Kakamega under the 1st Respondent’s Gender Top Up Party List for the County Assembly of Kakamega.c.The name of the 2nd Respondent be and is hereby deemed expunged from the list of members nominated to the County Assembly of Kakamega under the 1st Respondent’s Gender Top Up Party List for the County Assembly of Kakamega.d.Costs of the suit

5. The Respondents filed a response while the Interested Party though served, as shown by the affidavit of service, chose not to participate in the proceedings.

The Complainants’ submission 6. It is the Complainants submission that the 1st Respondent, being his political party, will make a null and void nomination given that the person they have placed first in their party nomination list does not qualify as determined by the court.

7. The Complainant lays weight on the case ofVictoria Cheruto Limo & another v Independent Electoral and Boundaries Commission (IEBC) & another [2018] eKLR wherein the court stated as follows, “As such, my constitutional interpretation is that only those who were registered to vote in Wards in Garissa County could qualify for nomination by the party to the County Assembly of Garissa. In my view therefore, Victoria Cheruto Limo being a registered voter of Uasin Gishu County was not qualified and not validly nominated to fill the gender top-up position in the Garissa County Assembly.”

8. The Complainant avers that the said 2nd Respondent cannot meet the requirements for qualifications.

The Respondents’ submission 9. It is the Respondents submission that the issue in dispute has not been subjected to IDRM [internal dispute resolution mechanism] thus this Tribunal cannot be seized of jurisdiction.

10. It is further submitted that the law does not require that a person is registered as a voter in the county in which they are seeking to be nominated.

11. They submit that the issue had already been presented before this Tribunal in PPDT Com No E022/22 KK and thus cannot be brought before this Tribunal again.

Issues for determinationa.Is this Tribunal properly seized of jurisdiction?b.Is complaint justified?c.What orders should issue?

Our Analysis Whether PPDT has jurisdiction 12. It is clear that the parties before this Tribunal have right of audience having properly been identified as persons over whom this Tribunal can exercise jurisdiction, being a member of a political party, and the political party, the question of jurisdiction could turn on section 40 (2) of the Political Parties Act [PPA].

13. 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.

14. There is a letter showing that the issue [that is the lack of qualification by the 2nd Respondent] was first, unsuccessfully, subjected to IDRM in an attempt to resolve the matter internally and it is thus our considered opinion, based on information before us, that IDRM as anticipated under section 40 (2) of the PPA, was attempted.

15. We are therefore properly seized of jurisdiction.

Is the complaint justified? 16. The laws and regulations relating to party list nominations for MCA [members of county assembly] provide the following:

Qualifications:Must be a Kenyan citizen for at least 10 years before the election

Must be a registered voter

Must not owe allegiance to a foreign state

Certification of Disability from the relevant institution as prescribed by the Commission.

Must meet the statutory moral and ethical requirements under the Leadership and

Integrity Act;Must have been Kenyan citizens for at least 10 years;

Must not hold dual citizenship unless citizenship of the other country has been obtained by operation of law without capacity to opt out;

Must not be an undischarged bankrupt;

Must not be subject to a sentence of imprisonment of at least six months from the date of registration of candidates or date of elections;

Must not have been found to have abused or misused state or public office or contravened Chapter Six of theConstitution; and

Must not have been dismissed or removed from public office for contravening the provisions of Articles 75, 76, 77 and 78 of the Constitution.

17. The requirements that a political must meet when presenting such party nominations list includes:“A Political Party must submit the following documents to the IEBC during the Commission Nomination:a.Party Lists containing nominees appointed in accordance with Articles 97(1)(c), 98(1)(b), (c) and 177(1)(c) and (c) of the Constitution in the manner prescribed by the Commission and authorized by signatories of the nominating Political Partyb.Duly signed copies of Letters of Acceptance of the Nomineesc.Party lists shall contain the name, address, age, sex, disability and category of disability, phone number, occupation, identity card number or passport number and colored passport size photograph image, elective post sought and such other qualifications as are provided under the constitution and the Act in the prescribed Form 24B.

18. We note that the complaint letter submitted in the complaint bundle makes reference to the nomination of the 2nd Respondent as being against the party laws. The said party laws are neither cited nor attached for our reference.

19. We have also been referred to the High Court case of Victoria Cheruto Limo & another v Independent Electoral and Boundaries Commission (IEBC) & another [2018] eKLR.

20. In the said case we note that the court went to lengths to address the issue of composition of the County Assembly and qualifications of persons who can be nominated in the said county assemblies.

21. The said judgment as from paragraphs 39 sates as follows:39. The question that requires more serious consideration is whether Victoria Cheruto Limo was qualified to be nominated in Garissa County, which will also determine the validity of her nomination. On this I will at the risk of repetition go to the constitutional definition of a County Assembly under Article 177 of the Constitution, which provides as follows;-“177 (1) A County Assembly consists of ;-a.Members elected by the registered voters of the wards, each ward consisting a single member constituency, on the same day as the general election of members of parliament, being the second Tuesday in August, in every fifth year.b.The number of special seats members necessary to ensure that no more than two thirds of the membership of the Assembly are of the same gender;c.The number of members of marginalized groups, including persons with disabilities and the youth described by an Act of Parliament; andd.The Speaker, who is an ex-officio member. 2. The members contemplated in clause (1) (b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that County by each political party under paragraph (a) in accordance with Article 90.

3. The filing of special seats under clause 1 (b) shall be determined after declaration of the elected members in each ward.

4. A County Assembly is elected for a term of five years”.

40. It can be easily discerned from the above provisions of the Constitution that the operative words are the Ward, the County, the election, the voters in the Wards, and the seats received in the County. It is also important to note that under Article 90 (2) (c ) ofthe Constitution, the party lists for County Assembly seats are not required to reflect the regional and ethnic diversity of the people of Kenya, unlike in the case of the National Assembly and Senate.

41. In Kenya also voters are registered to vote in only one polling station, which will of course be in one Ward and one |County. Under regulation 38 of the Elections (Registration of Voters) Regulations 2012, Kenyan citizens residing outside Kenya are only allowed to vote in Presidential Elections or Referendum. Under Regulation 39 E, the same conditions apply to prisoners. As such, my constitutional interpretation is that only those who were registered to vote in Wards in Garissa County could qualify for nomination by the party to the County Assembly of Garissa. In my view therefore, Victoria Cheruto Limo being a registered voter of Uasin Gishu County was not qualified and not validly nominated to fill the gender top-up position in the Garissa County Assembly.

22. The said judgment then goes on to conclude by ordering that “the nomination of Victoria Cheruto Limo as a Member of that County Assembly of Garissa under the category of special seats (Gender Top-up) is null and void’

23. Article 165 (6) of the Constitution of Kenya 2010; provides:-“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court."

24. We have seen no converse decision from another superior court.

25. Therefore, in line with our analysis as outlined above, this complaint finds merit.

What orders should we issue? 26. Accordingly, we order as follows: -a.That the 2nd Respondent herein Cynthia Livoli is wrongfully included in the 1stRespondent, KANU party nominations list for Kakamega County Assembly.b.That the name of Cynthia Livoli be expunged from this KANU Kakamega County Assembly party nominations list in respect of the August 2022 general elections.c.In the interest of fostering party unity, we order each party to bear its own costs.

DATED THE 9TH DAY OF SEPTEMBER 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)