[2022] KEHC 12873 (KLR)

Talib v Wiper Democratic Movement-Kenya & 4 others (Civil Appeal E605 of 2022) [2022] KEHC 12873 (KLR) (Civ) (9 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12873 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E605 of 2022

JK Sergon, J

September 9, 2022

Between

Abubakar Ahmed Talib

Appellant

and

Wiper Democratic Movement-Kenya

1st Respondent

Secretary General, Wiper Democratic Movement

2nd Respondent

Chairman, National Elections Board, Wiper Democratic Movement

3rd Respondent

Lucas Mulinge Wambua

4th Respondent

Independent Electoral & Boundaries Commission

5th Respondent

(Being an appeal from the entire judgment, decree, and order of the Political Parties Dispute Tribunal by Hon. M. L. Odongo, Hon. Timothy Tororey Kipchirchir & Dr. Lydiah Wambui, dated 3rd August, 2022 in PPDT E099 of 2022)

Judgment

1. Abubakar Ahmed Talib, the appellant herein, filed a complaint before the Political Parties Disputes Tribunal (PPDT) whereof he sought for the following reliefs:-i.A declaration do issue that the national assembly party list submitted to and received by the Independent Electoral and Boundaries Commission, IEBC, from the 1st and 2nd respondents on July 21, 2022 by the 2nd respondent vide the letter dated July 21, 2022 which bearing the name of the complainant as nominee for the national assembly nomination post in the August 2022 general election is the legal and valid national assembly party list for the 1st respondent, Wiper Democratic Movement-Kenya Party.ii.A declaration do issue that the national assembly party list submitted to and received by the Independent Electoral and Boundaries Commission, IEBC, on July 22, 2022 purporting to revise the national assembly party list for the 1st respondent vide the letter dated July 22, 2022 purporting to revise the national assembly party list for the 1st respondent and omitting the name of the complainant as the national assembly nominee of the 1st respondent is illegal, null and void.iii.An order directed at the 2nd interested party IEBC to publish in the Kenya gazette the national assembly party list for the Wiper Democratic Movement Kenya as submitted and received on July 21, 2022 and to forthwith cancel any published Kenya gazette omitting the name of the claimant Abubakar Ahmed Talib as the Wiper Democratic Movement-Kenya nominee for the national assembly party list.iv.Any other appropriate order as the honourable tribunal may deem fit in the circumstances.v.Costs of the complaint.

2. The complaint was heard and dismissed by PPDT vide its judgment delivered on August 3, 2022.

3. The appellant was aggrieved by the PPDT’sdecision and was prompted to file this appeal putting forward the following grounds of appeal:i.The political Parties Dispute Tribunal (in the grounds hereinafter, simply referred to as “PPDT”) erred in holding that the 1st respondent (Wiper Democratic Movement) conducted free and fair nomination for the member of the national assembly party list position for August 2022 elections without evidence before it of compliance with the relevant laws.ii.ThePPDT unlawfully shifted the burden of proof to the appellant in paragraphs 53, 54 and 55 of the judgment appealed against, and in upholding that the respondents unverified contention that there was a second nomination without proof of any compliance with regulation 17 of the Elections (General) Regulations Elections Party Primaries & Party List Regulations 2017 by the respondents.iii.The Hon PPDTmember ignored the appellant’s contention and evidence that the deponent for the respondents (Shakilla Abdalla) was in Lamu at all material times she was alleged to have sworn the replying depositions in Nairobi presented to the PPDT, contrary to the mandatory provisions of the Oaths and Statutory Declarations Act, and thereby the PPDT unjustifiably admitted invalid evidence for the respondents.iv.The appellant’s evidence to show that the respondents’ deponent Shakilla Abdalla did not appear before the alleged commissioner of oaths, and the execution of the affidavit and the commissioning happened at two different places at different times rendering the respondents’ affidavits invalid was ignored by the PPDT.v.The PPDT erred in law and abdicated its responsibility to administer justice without fear or favour when it failed to make any finding on, and ignored the appellant’s contention that the 4th respondent Lucas Mulinge Wambua (the 1st interested party in the complaint) was not a member of the Wiper Democratic Party.vi.The PPDT erred in law and in fact when it contradicted itself in stating in paragraph 57 and 58 of its impugned judgment that whereas there was no evidence from the respondents on the lawful conduct of the nomination of the membership of the party list for the member of national assembly before it, the PPDTcould (and did) proceed to conjecture and validate on non-existent evidence of a “second” nomination exercise that led to the nomination of the 4th respondent herein (1st interested party before the PPDT), in lieu of the appellant alternatively to ground 6 above,vii.The PPDT erred and thus arrived at a wrong decision in shifting the burden of proof of the conduct and validity of the “second” nomination exercise of the party list for the national assembly of the appellant when in fact both under the relevant electoral statutory regime and section 107 of the Evidence Act the burden of proof lay and remained lodged with the respondents, which burden the appellant could never assume.viii.The PPDT erred in finding that the respondents had lawfully included the appellant in the nomination for member for Mombasa county assembly nomination without any evidence of the appellant having applied for such nomination.ix.The PPDT erred in holding that the 4th respondent Lucas Mulinge Wambua herein (1st interested party in the complaint before the PPDT) was lawfully nominated in the 1st respondent’s party list for member of national assembly in lieu of the appellant without proof of such lawful nomination being tendered by the respondents.x.The PPDT erred in law and in fact in paragraph 58 of their judgment that the appellant’s complaint dated July 25, 2022 should be dismissed on the basis of his alleged failure to tender sufficient evidence relating to a purported second nomination of the applications to the party list for the member of national assembly, yet it was the duty and responsibility of the respondents to provide the required details demanded by the PPDTto prove the validity of the respondents’ rejection of the appellant from the member for national assembly party list and consequently the PPDT shifted the burden to the appellant unlawfully.xi.The PPDT erred in not granting the appellant’s pleas and holding that the respondents did not conduct free and fair nomination for the member of national assembly party list position that removed the appellant therefrom and unlawfully inserted the name of the 4th respondent therein.xii.The PPDT failed to fairly assess the material and evidence presented to them by the appellant, were biased in their acceptance of additional “supplementary affidavits” by the respondents outside the ordered time frames in a manner that prejudiced the appellant, by reason of which the PPDT arrived at a wrong decision.xiii.The PPDT erred in not upholding the objection of the advocate on record appearing for the respondents before them as being barred by operation of paragraph 6 of the Code of Conduct and Ethics for Advocates, 2016, hitherto stated in mandatory terms under rule 9 of the Advocates (Practice Rules) in contentious proceedings such as they adjudicated upon.xiv.The PPDT erred in dismissing the appellant’s complaint in not finding that the on the weight of evidence presented by the appellant, the 4th respondent (1st interested party) was in any event not qualified to be nominated to the Wiper Democratic Movement party list for the member for national assembly.

4. This court gave directions to have the appeal disposed of by written submissions. At the time of writing this judgment the appellant and the 4th respondent were the only parties who had filed their written submissions.

5. I have re-evaluated the evidence presented in support and against the complaint that was before the PPDT. I have further considered the submissions and the authorities cited. Before delving deeper into the substance of the appeal, I think it is important to set out the background of this appeal. The appellant filed a complaint before the PPDT contesting a party list generated by Wiper Democratic Movement – Kenya, the 2nd respondent herein alleging to have been unlawfully altered to favour Lucas Mulinge Wambua, the 4th respondent herein.

6. It is said that the party list originally contained the appellant’s name as top of the list for the August 9, 2022 nomination election. The appellant urged the PPDT to determine the issue as to whether the nomination of the 4th respondent was valid taking into account the question as whether the applicable criteria was complied with in the contested party list.

7. The appellant averred that being a member of the 2nd respondent, he applied for nomination as a member of the national assembly post and even paid the requisite fees.

8. It is his averment that he emerged the best and was placed as position 1 of the national assembly party list which was submitted to the Independent Electoral and Boundaries Commission (IEBC), the 5th respondent herein.

9. The aforesaid party list was returned to the 2nd respondent by the IEBC on the basis that it did not have 12 members as required under regulation 55 of the Elections (General) Regulations Elections Party Primaries and Party List Regulation 2017.

10. It is further the averment of the appellant that vide a letter dated July 22, 2022 the 2nd respondent purported to make revisions to the party list submitted on July 21, 2022 among them the national assembly party list. It is stated that the respondents purported to delete the appellant’s name from the national assembly party list where he was in positon no 1 and purported to place him on the county assembly of Mombasa party list at position 1 which he had not applied for.

11. It is for those reasons that the appellant submits that the respondents’ actions are illegal and unlawful.

12. In the end ,thePPDT came to the conclusion that nothing had been presented before it to show that the second nomination process was unfairly administered and proceeded to dismiss the complaint hence this appeal.

13. Though the appellant put forward a total of 6 grounds of appeal and 8 alternative grounds of appeal, those grounds may be disposed of by two main grounds.

14. In the first main ground of appeal, the appellant stated that the PPDT erred in holding that the 1st respondent (Wiper Democratic Movement) conducted free and fair nomination for the member of the national assembly party list position for the August 2022 elections without evidence before it of compliance with the relevant laws.

15. It is pointed out that the appellant had demonstrated before the PPDT that the 4th respondent is not a minority or marginalized to replace him as such member for national assembly nominee.

16. The appellant further stated that he argued before the PPDT that the purported revision of the member of national assembly party list for the 3rd respondent went outside the scope of the criteria for nomination and beyond the requirement for compliance by the 2nd respondent which was basically filling the list to 12 as demanded by the IEBC.

17. He (appellant) also argued that having never applied to be on the Wiper Democratic Party county assembly of Mombasa party list as now submitted to the IEBC, there is no legal basis for revising a party list beyond the requirement of the IEBC. He stated that the impugned decision was taken unilaterally without his involvement or consultation.

18. The appellant also stated that he argued before the PPDT that the 4th respondent was not provided with the nomination code of conduct at least 30 days before the party primaries or nomination of party-list and therefore he could not lawfully replace the appellant as member of the national assembly.

19. The 4th respondent in response urged this court not to interfere with the decision of the PPDT. He stated that he presented before the PPDT, evidence showing that he submitted a duly filed nomination form with all the attendant documentation and therefore this court should find that the 4th respondent was qualified and duly applied for nomination for the national assembly.

20. The 4th respondent further stated that he qualified to be nominated under the category of ethnic minority and that he provided evidence to the 3rd respondent from his clan. The 4th respondent also argued that the appellant has not place any material or evidence before this court to warrant the disturbance of the impugned judgment.

21. It is pointed out that the appellant has failed to show that there was indeed a party list of July 21, 2022. He also stated that there is no evidence to prove that the said list was ever received and reviewed by IEBC to ensure compliance as a mandatory requirement under section 34(6) of the Elections Act and regulation 55 of the Elections (General) Regulations, 2012.

22. Having considered the rival submissions and having re-evaluated the evidence presented before the PPDT, it is not in dispute that the PPDT stated that there was no evidence presented before it to show that the second nomination process was unfairly administered. In other words, the PPDT basically endorsed the process of nomination of the 4th respondent.

23. In its judgment,PPDT expressly stated that the appellant did not indicate why, if at all, there was, he opted not to participate in the second process.

24. The evidence on record shows that the appellant successfully applied for nomination as a member of the National Assembly by Wiper Democratic Party in the category of minority. The appellant was listed as number 1 in the party list.

25. It is also not in dispute that the IEBC returned the list to the 2nd respondent to have the list comprise of 12 members in compliance with the regulation 55 of the cited party list regulations.

26. It is not in dispute that the 2nd respondent revised the party list whereof the name of the appellant was removed and replaced with that of the 4th respondent. It is also not in dispute that the 2nd respondent listed the appellant as a nominee as a member of the County Assembly of Mombasa, a position he did not apply.

27. The PPDT came to the conclusion that the initiation of both the original nomination process as well as that of the second nomination process by the political party are not disputed.

28. The PPDT further stated that the details of the process that resulted in the appellant being included in the National Assembly nomination list was not provided.

29. A careful re-evaluation of the evidence tendered before the PPDT will reveal that the appellant had tendered evidence showing that the 2nd respondent had invited its members to apply for nomination to various elective posts for the August 2022 general elections.

30. The appellant had also stated that he applied and paid for the requisite fees and thereafter he was put in position 1 in the party list. The PPDT therefore erred when it concluded that there were no details given to show how the appellant was included in the National Assembly party nomination list.

31. The second main ground of appeal is that the PPDT erred in law and fact when it contradicted itself by stating on one hand that there was no evidence from the respondents on the lawful conduct of the nomination of the membership of the party list for member of the National Assembly before it and on the other hand by proceeding to validate a non-existent evidence of a second nomination exercise that led to the nomination of the 4th respondent in lieu of the appellant.

32. I have already outlined the arguments put forward by the parties. It is clear in its judgment that thePPDT stated that the details of the process that resulted in the appellant being included in the Mombasa County Assembly party nomination list and the 4th respondent being placed in the National Assembly party nomination list was not provided. The PPDT further concluded that it could not determine the fairness or lawfulness of such process.

33. Having come to the above conclusion, the PPDT in complete turn around went ahead to state that nothing has been presented before it to show that the second nomination process was unfairly administered thus sanitizing the nomination process of the 4th respondent. What is clear is that there was no cogent evidence showing that the 4th respondent applied for National Assembly party list when the initial advertisement was made.

34. In contrast, the appellant tendered evidence showing he duly applied, paid for the requisite fees and was consequently placed at position number 1 in the initial list. It is therefore clear to this court that the PPDT erred by unfairly dismissing the appellant’s complaint.

35. In the end, the appellant’s appeal is found to be meritorious, it is allowed. Consequently, the PPDT’s decision of August 3, 2022 dismissing the appellant’s complaint is set aside and is substituted with an order allowing the complaint dated July 25, 2022 filed before the PPDT as PPDT E099 of 2022.

36. As a consequence, the following orders are issued:i.A declaration is issued that the National Assembly party list submitted to and received by IEBC from the 1st and 2nd respondent on July 21, 2022 by the 2nd respondent vide the letter dated July 21, 2022 which bearing the name of the appellant/complainant as a nominee for the National Assembly nomination post in the August 2022 general election is legal and valid National Assembly party list for the 1st respondent, Wiper Democratic Movement party.ii.A declaration that the National Assembly party list submitted to and received by the IEBC on July 22, 2022 by the 2nd respondent vide the letter dated July 22, 2022 purporting to revise the National assembly party list for the 1st respondent and omitting the name of the appellant/complainant as the National Assembly nominee of the 1st respondent is illegal, null and void.iii.The Independent Electoral Boundaries Commission, the 5th respondent herein, is hereby ordered and directed to publish in the Kenya gazette the National Assembly party list for the Wiper Democratic Movement – Kenya as submitted and received on July 21, 2022 and to forthwith cancel any published Kenya gazette omitting the name of the appellant namely Abubakar Ahmed Taib as the Wiper Democratic Movement-Kenya nominee for the National Assembly party list.iv.In the circumstances of this appeal, each party should bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:………………………………. for the Appellant………………………………. for the 1st Respondent...................................... for the 2nd Respondent....................................... for the 3rd Respondent....................................... for the 4th Respondent....................................... for the 5th Respondent