[2022] KEHC 12789 (KLR)

Talib v Wiper Democratic Movement-Kenya Secretary General & 4 others (Civil Appeal E605 of 2022) [2022] KEHC 12789 (KLR) (Civ) (2 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12789 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E605 of 2022

JK Sergon, J

September 2, 2022

Between

Abubakar Ahmed Talib

Applicant

and

Wiper Democratic Movement-Kenya Secretary General

1st Respondent

Wiper Democratic Movement Chairman, National Elections Board

2nd Respondent

Wiper Democratic Movement

3rd Respondent

Lucas Mulinge Wambua

4th Respondent

Independent Electoral & Boundaries Commission

5th Respondent

Ruling

1. Abubakar Ahmed Talib, the appellant herein took out the motion dated August 3, 2022 whereof he sought for inter alia that pending the hearing and determination of this appeal an interim order of injunction do issue to restrain the Independent Electoral & Boundaries Commission (IEBC), the 5th respondent herein, from publishing in the Kenya Gazette and or issuing a certificate of compliance to Wiper Democratic Movement – Kenya, the 1st respondent herein on account of the impugned party list for Member of National Assembly as submitted to and received by the IEBC on July 22, 2022 vide the 2nd respondent’s letter dated July 22, 2022 or otherwise howsoever implementing the judgment of the Political Parties Dispute Tribunal in PPDT Nomination Complaint No E099 of 2022 rendered on August 3, 2022.

2. The appellant swore a supporting affidavit and a further affidavit in support of the motion. Wiper Democratic Movement – Kenya, Secretary General, Wiper Democratic Movement-Kenya and the Chairman National Elections Board, Wiper Democratic Movement-Kenya, the 1st, 2nd and 3rd respondents respectively, filed grounds of opposition and a replying affidavit sworn by Shakila Abdalla to oppose the motion.

3. Lucas Mulinge Wambua, the 4th respondent filed a replying affidavit he swore to oppose the motion while the 5th respondent did not deem it fit to file a response to the motion.

4. I have considered the grounds set out on the face of the motion dated August 3, 2022 and the facts deponed in the rival affidavits. I have further considered the grounds of opposition filed by the 1st, 2nd and 3rd respondents plus the rival oral submissions.

5. It is the submission of the appellant that he filed a complaint before the Political Parties Dispute Tribunal (PPDT) alleging that his name had been unlawfully omitted from the Wiper Democratic Movement-Kenya list as a National Assembly nominee of the aforesaid party. That on August 3, 2022, PPDT heard the complaint and had the same dismissed.

6. Being aggrieved, the appellant preferred this appeal to challenge the dismissal order. The appellant further averred that the 1st respondent without any consultation put his name in the list of nominees for Member of the County Assembly for Mombasa County Assembly, a position the appellant never applied for.

7. The appellant stated that he specifically applied for the nomination of the post of Member for National Assembly in which he duly paid for and was indeed slotted in the original list to be submitted to IEBC. The appellant stated that he has an arguable appeal and that unless the order for injunction is granted he will suffer irreparable loss in that his appeal will be rendered nugatory.

8. The 1st, 2nd and 3rd respondent urged this court to dismiss the appellant’s motion stating that the appellant has not put forward valid grounds to sustain the appeal. The respondents further averred that the 3rd respondent made changes on the party list based on special criterial including special interest, conduct of the party member in compliance with the IEBC directive dated July 15, 2022.

9. They further averred that the changes did not only affect the appellant but other party members of the 1st respondent. It is said that in compliance with the IEBC directive the 1st respondent conducted fresh advertisement to allow new applications from nominees for the Senate and National Assembly positions and that the appellant did not apply for the second time.

10. The 1st respondent further stated that in good faith it instead nominated the appellant to the position of a member of the County Assembly – Mombasa county.

11. The 4th respondent opposed the motion stating that the appellant did not establish a prima facie case to entitle him to be granted the orders sought in the motion. The 4th respondent further averred that the appellant failed to demonstrate that the process used to place him as number one in the list of nominees of July 21, 2022 was lawful and different from the process of placing him as No 1 in the party list of nominees of July 22, 2022.

12. The 4th respondent refuted the appellant’s averment that he was not a member of Wiper Democratic Movement Party. He deponed that he is a bonafide member of good standing of the party.

13. The principles to be considered in determining an application of injunction are well settled. First, is that an applicant must show that he has a prima facie case with a probability of success. The appellant has stated that his appeal is arguable with high chances of success. He stated that he will be able to show on appeal that the PPDT erred by holding that the 1st respondent conducted a free and fair nomination for Member of National Assembly party list for the August 2022 general elections.

14. The appellant has further stated that he will be able to show on appeal that the PPDT erred in shifting the burden of proof of the conduct and validity of the second nomination exercise of the party list for the National Assembly on him yet that burden rests on the respondents. Having considered the rival averments, I am convinced that the appellant has shown a prima facie case, in that he has shown he has an arguable appeal.

15. The second principle is that an applicant must show the irreparable loss he would suffer if the order for injunction is denied. The appellant has expressly stated that unless the conservatory orders are granted he will lose his lawful nomination to the party list of the 1st respondent. The respondents have not controverted this assertion. I am convinced that unless the conservatory order is granted, the appellant will suffer irreparable loss.

16. The third principle is that where the court is in doubt, it would decide the application on a balance of convenience. In my view, if the order sought by the appellant is denied, the appellant is likely to be more inconvenienced than any other party, in that if the list of nominees is acted upon by IEBC, the appellant may be required to initiate an election petition while the current appeal is still pending.

17. In the end, I find the motion dated August 3, 2022 to be with merits. It is allowed giving rise to issuance of the following orders:i.Pending the hearing and determination of this appeal, an interim order of injunction is issued to restrain the Independent Electoral and Boundaries Commission (IEBC), the 5th respondent herein, from publishing in the Kenya Gazette and or from issuing a certificate of compliance to Wiper Democratic Movement - Kenya, the 1st respondent herein, on account of the impugned party list for Member for National Assembly as submitted to and received by IEBC on July 22, 2022 vide the 2nd respondent’s letter dated July 22, 2022 or otherwise howsoever implementing the judgment of the Political Parties Dispute Tribunal in PPDT nomination complaint No E099 of 2022 rendered on August 3, 2022. ii.Costs of the instant application to abide the outcome of the appealiii.Further directions

18. To avoid this matter procrastinating further, this court makes and issues the following directions:a.The appeal is admitted to hearing before a single judge.b.The appeal to be disposed of by written submissions.i.The appellant to have 3 days from the date of this ruling to file and serve written submissions.ii.The respondents to each have 3 days from the date of service by the appellant to file and serve written submissions.c.Judgment to be delivered on September 9, 2022.

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