[2022] KEPPDT 956 (KLR)

Wahinya v UDA Electoral and Nomination Dispute Resolution Committee (Through the United Democratic Alliance Party); Nderitu (Interested Party) (Appeal E003 (NRB) of 2022) [2022] KEPPDT 956 (KLR) (Civ) (5 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 956 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Appeal E003 (NRB) of 2022

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

May 5, 2022

Between

Njau Peter Wahinya

Appellant

and

UDA Electoral and Nomination Dispute Resolution Committee (Through The United Democratic Alliance Party)

Respondent

and

Chiera Andrew Nderitu

Interested Party

Judgment

Introduction 1. The Appellant is a duly registered member of the United Democratic Alliance (UDA) and he contested in the UDA party’s direct nominations held on April 20, 2022 for the position of Member of County Assembly (MCA) Pangani Ward. He won the said nominations and was declared the winner and issued with a provisional certificate of nomination.

2. The Interested Party herein was aggrieved by the Appellant’s victory and proceeded to file an Application at the UDA party’s Electoral and Nominations Dispute Resolution Committee (EDRC) vide EDRC Application Number 161 of 2020. The EDRC heard the matter and delivered its decision on April 22, 2022 referring the matter to the National Elections Board (NEB).

3. Aggrieved by the decision of the EDRC issued on April 22, 2022 referring the matter to the NEB, the Appellant herein filed this matter against the Respondent and the Interested Party under a certificate of urgency dated April 22, 2022, accompanied by a Notice of Motion Application dated 22nd April supported by his own supporting and verifying affidavit together with annexures. He seeks the following orders, that;-i.This Honourable Tribunal be pleased to set aside the decision of the UDA Electoral and Nomination Dispute Resolution Committee, Application No 161 of 2022 issued on 22nd April 2022. ii.A declaration that the interested Party did not prove his claim as filed in the UDA Electoral and Nomination Dispute Resolution Committee.iii.A declaration that the Complainant herein was validly nominated as the UDA ticket bearer for Pangani Ward.iv.An order directed to the UDA National Elections Board to forthwith issue the Appellant herein with the UDA nomination certificate for the Seat of Pangani Ward MCA and also forward his name as such to IEBC.v.That costs of this complaint be provided for.vi.Any other relief that this Honourable Tribunal deems fit to grant.

4. The Appeal is opposed and in opposition thereto the Respondent and the Interested Party have filed their responses and written submissions.

5. Pursuant to the directions issued by this Tribunal, the matter proceeded for hearing on April 30, 2022 when all counsels highlighted their respective client’s written submissions on record.

6. The Complainant was represented by Mr. Mabeya Advocate and Mr. Okatch Advocate, the Respondent was represented by Ms. Wanjiku Thiong’o Advocate, and the Interested Party was represented by Mr. Mwangi Advocate.

The Appellant’s Case 7. It is the Appellant’s case that he contested in the party primaries nomination for the UDA Party ticket for the MCA seat for Pangani Ward on April 14, 2022, which exercise was cancelled and a fresh nomination held on April 20, 2022, where he was declared the winner, and was issued with a provisional certificate of nomination. In the fresh nomination he gathered 334 votes.

8. The Appellant avers that the Interested Party contested his victory vide EDRC Application No 161 of 2022 seeking nullification of the results on grounds that the results were ‘suspect’, alleging violence and voter stuffing. He submits that no evidence was adduced by the interested party at the EDRC to demonstrate that; he hired goons who caused violence and were arrested with already marked ballot papers in his favour; the goons alleged to have been arrested were linked to him or gave him unfair advantage; the said culprits allegedly/purportedly arrested for causing violence were his supporters or were under his command; and there were charges preferred against anyone for poll violence and electoral malpractices or any on-going investigation. According to the Appellant, the only evidence adduced by the interested party was a non-certified photocopy of an Occurrence Book (OB) record which was neither reliable nor conclusive evidence.

9. The Appellant in his submission on the burden of proof in election cases, stated that where cogent evidence is not led to show, to the standard required, that the alleged malpractice took place, then the court cannot make a finding that it did. He relied on numerous judicial authorities on this subject including Philip Kyalo Kituti Kaloki vIndependent Electoral and Boundaries Commission & 2 others (2018), Apungu Arthur Kibiria v IEBS (1018 eKLR, Odera Arthur Papa v Oku Edwars Kaunya and 2 others (2018) eKLR, John Kiarie Waweru v Beth Wambui Mugo & 2 Others (2008) Eklr amongst others.

10. It is the Appellant’s contention that the Respondent erred by referring the matter to NEB without making a finding of fact and law on issues raised by the Interested Party.He further contends that NEB’s mandate as set out under Article 20. 1 of the UDA Constitution is to plan, coordinate, organize and oversee the nomination and internal election process, and not to purport to determine a matter that EDRC did not make a finding on. According to the Appellant, the Respondent is the sole decision maker in regards to electoral disputes. This mandate is not delegated or shared amongst the other creatures of the party’s Constitution. Moreover, it is not supervised by any other organ.

11. The Claimant further holds that even if alternative resolution of nomination disputes is a preserve of the NEB this would be done in absence of nominations. Once a party has conducted nominations, any dispute arising is a preserve of the Respondent, and Respondent should make a decision based on the pleadings that are before it.

12. As regards the purported nominations alluded to by the Respondent and Interested Party herein by way of interviews, it is the Appellant’s submission that NEB did not invite him or his advocate to any board meeting as he was hospitalized, a fact that the Respondent was aware of. Further, the Appellant avers that indeed there is no evidence on record indicating that he was summoned or even made aware of any proceedings that were purportedly conducted at the NEB. He submits that the NEB did not inform him or his advocate of its unilateral decision to issue the interested party with an interim Nomination Certificate. He maintains that there was failure by the NEB to adhere to the principles of fair trial where no man should be condemned unheard, or that both sides must be heard before passing any order. That any proceeding before NEB which lacked jurisdiction would amount to an infringement of his inalienable right to be heard.

13. The Appellant maintains that his case is merited and urges the tribunal to grant the reliefs sought.

The Respondent’s Case 14. The Respondent relied on the Replying Affidavit sworn by their Chairman, one Anthony Mwaura, who agrees with the Appellant that the very first nominations were held on April 14, 2022 through universal suffrage and the Interested Party emerged the winner. However, the said elections were cancelled on grounds that it was not free and fair and the Respondent conducted a repeat nomination exercise on April 20, 2022.

15. It is the Respondent’s submission that the repeat nomination exercise went on without hiccups save for one polling station, Pangani Girls polling station. That the Appellant was declared the winner with the highest votes, and was subsequently issued with a provisional Certificate of Nomination pending final confirmation and approval by the National Elections Board.

16. The Respondent confirmed that the Interested Party lodged EDRC Application No. 161 of 2022 with the Respondent challenging the outcome of the second nominations conducted on April 20, 2022 on various grounds including; that there was a delay in opening one of the polling stations which was caused by unexplained circumstances resulting in so much inconveniences; that electoral violence was also experienced at Ainsworth; that there was stuffing of ballot boxes as some people were arrested with ballot papers; and that there was over casting of votes in Pangani Girls polling station citing that the number of registered votes was 350 voters.

17. According to the Respondent, there was a finding that the nomination was not free and fair. The Respondent went on to state in their submissions that the finding that the election was not free and fair, was based on the grounds that; the Interested party produced an OB number which affirmed that he had reported the matter to the authorities and as a consequence, some individuals were arrested with more than one marked ballot papers; that the allegations of ballot stuffing were not denied by the Appellant who also admitted that there was tension during the voting day; that the Appellant did not deny that in Ainsworth polling station voting started late, at 11. 00am; and that in response, the appellant had pleaded that the said technical challenges were not attributable to him and affected all the candidates.

18. The Respondent maintains that it found that the Interested Party had proven his case that the nomination was marred with irregularities that affected the validity of the results. Consequently they proceeded to recall the provisional nomination Certificate that had been issued to the Complainant. They relied on the holding in Manson Nyamwea v James Magara & 2 Others [2009] eKLR, David Ouma Ochieng v Independent Electoral & Boundaries Commission, Isaiah Nabwayo, (The Returning Officer Ugenya Constituency) & Christopher Odhiambo Karani [2018] eKLR

19. It is the Respondent’s submission that the Appellant is not entitled to the remedies as they have been overtaken by events, given that they invoked Article 31 of the party Constitution and conducted indirect nominations through interviews in accordance with Section 38G of the Political Parties Act. The Respondent relied on Samuel Owino Wakiaga.

20. The Respondent submitted that the aspirants were called by the NEB and invited for an interview on April 23, 2022 through a phone call. That only the Interested Party showed up for the interview and having undergone the same, he was declared the winner and was thus issued with the provisional nomination certificate. It is the respondent’s contention that if the Appellant feels aggrieved by the outcome of the second process, he ought to have lodged a fresh dispute with the EDRC.

21. The Respondent maintains that they complied with the Political Parties Act, Party’s Constitution and the Nomination and Election rules and all other written laws by referring the matter to the National Elections Board.

The Interested Party’s Case 22. The Interested Party submitted that the first nominations for Pangani Ward MCA were conducted on April 14, 2022 where both the Appellant and the Interested Party participated as contestants. The exercise went on smoothly until about 1-2 hours to the end of the exercise when the Appellant caused fracas and chaos in Pangani Primary, Ainsworth Primary and Pangani Girls polling stations. Despite the chaos, the Interested Party emerged the winner. The Interested Party further contends that the nominations were however recalled by the party and a fresh nomination was scheduled for April 20, 2022.

23. It is the interested party’s submission that on April 20, 2022, nominations went on well until around 3. 30pm when the Appellant again caused chaos in Pangani Polling Station. He claims that the Presiding Officer was chased out, ballot boxes broken into, votes interfered with and the Appellant replaced the said ballots with his. That some goons associated with the Appellant were arrested with marked ballot papers for the Appellant who forced the Presiding Officer to declare him the winner amidst chaos.

24. Aggrieved with the purported irregular declaration, the Interested Party lodged a complaint with the Respondent on April 21, 2022 and served the Appellant. That the Respondent after hearing both parties invoked Article 31 of the Party Constitution in recommending that the UDA NEB gives alternative measures with respect to the Pangani ward in accordance with Article 20. 1 of the Party’s Constitution.

25. The Interested Party contends that the Respondent never declared the Interested party as the winner as alleged by the Appellant, but referred the matter to NEB for further alternative measures. He submitted that due to the strict timelines thereof and given that the UDA had been unable to conduct peaceful nomination in Pangani Ward on two occasions, NEB resorted to nominate its candidate by way of conducting interviews, whereby the Interested Party emerged the winner and was issued with a provisional certificate.

26. The Interested Party argues that the nomination exercise of 20th April 2022 never resulted into any result or declaration that was legally actionable in any Court. This was because the same was chaotic, there was no official declaration of result, neither the Appellant nor the Respondent attached any official results to the said exercise, and further that no provisional certificate was issued to the Appellant as a result of the said nomination exercise because it was inconclusive. He avers that the only process that was conclusive and resulted into issuance of a provisional certificate by the party was the indirect nomination conducted by interviews by NEB.

27. It is the Interested Party’s submission that the Appellant did not exhaust the party’s internal dispute resolution mechanism (IDRM) with respect to the subsequent indirect nomination and that in the circumstances, the tribunal has no requisite jurisdiction to make any determination thereon. He claimed that the Claimant did not invoke IDRM prior to filing the complaint contrary to section 40(2) of the Political Parties Act 2011 (PPA). He submitted that the jurisdiction of this Tribunal is appellate in nature and the Appellant having failed to exhaust the party’s IDRM, the dispute was unripe for consideration by the Tribunal.

28. With respect to the appellant’s allegations including accusing the Political Party of favoritism and discrimination, and further that he had fairly won the nomination without the support of evidence, it is the Interested Party’s contention that the Appellant failed to discharge the burden of proof that falls squarely on him to the required standard. He relied on section 107 (1) of the Evidence Act which provides‘Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists…’

29. It is the interested party’s prayer that the case be dismissed.

Issues, Analysis and Determination 30. We have considered the parties’ pleadings and submissions and we isolate the following key issues for determination:-i.Whether this Tribunal has jurisdiction to hear and determine this matter and if so, whether the Jurisdiction is Appellate?ii.Whether the Claim is merited?iii.What are the appropriate reliefs to grant?

Whether this Tribunal has jurisdiction to hear and determine this matter, and if so,whether the Jurisdiction is Appellate? 31. The Interested Party has challenged this Tribunal’s jurisdiction claiming that the Appellant did not exhaust the party’s internal dispute resolution mechanism prior to moving this Tribunal.

32. Our jurisdiction is set out under Section 40 of the Political Parties Act 2011 (PPA) which provides as follows:-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 (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

33. We note that the instant dispute arises out of party nominations and is accordingly covered under Section 40(2) of the PPA which requires that evidence be adduced of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (IDRM).

34. Article 32 of the UDA party constitution (March 2022 edition) provides as follows;-i.There is hereby established the Dispute Resolution Committee whose mandate is to receive, hear and determine disputes resulting from internal party elections or nominations.ii.The Dispute Resolution Committee will be appointed by the National Executive Committee and will comprise nine (9) respected and knowledgeable persons of with integrity who do not hold any elective party position. The membership of the committee shall ensure that at least of the membership is of either genderiii.Notwithstanding any other provisions of this Constitution, the quorum of the committee shall be one third its membershipiv.The members of the Dispute Resolution Committee shall hold office for a period of five yearsv.NEC shall ensure that the committee members represent regional diversity.vi.The committee shall make its own rules of procedure for conducting its hearing. The rules and regulations shall become effective upon approval by the NECvii.The National Secretariat shall provide secretarial services to the National Elections Boardviii.The decisions of the committee shall be final

35. In essence, Article 32(i) above mandates the EDRC to receive, hear and determine complaints resulting from internal party elections or nominations. Article 32(viii) thereof provides that the EDRC determination shall be final.

36. In the instant case, it is not in dispute that the subject matter of the party’s EDRC Application No. 161 of 2022 was the nominations that were held on April 20, 2022. The EDRC heard all the parties and delivered a decision on April 21, 2022 as already stated above. Therefore, to the extent that the Appellant seeks to uphold the nomination exercise that was conducted on April 20, 2022 that had already been subjected to the party’s IDRM vide EDRC Application No. 161 of 2022, and further to the extent that the EDRC decision if final, we find that we have jurisdiction to hear and determine this matter in so far as the nomination exercise that was conducted on April 20, 2022 is concerned.

37. Having found that we have jurisdiction to hear and determine matter with regard to the nominations of April 20, 2022, the next question for determination is whether our jurisdiction is appellate as submitted by the interested party. We have handled this question in the recent case PPDT Nairobi A Complaint No. E020 of 2022 Agnes Nailentei Shonko vs. John Njoroge Chege & Anor where we observed as follows:-The 1st respondent has further submitted that the Complaint herein ought to have been filed as an appeal against the decision of the EDRC. It is noteworthy that Section 40(1) of the PPA expressly refers to ‘disputes’ or ‘appeal’ that the Tribunal is mandated to determine. The disputes include those listed under Section 40(1) sub sections (a), (b), (c), (d), (e) and (fa) of the PPA. Section 40(1)(f) of the PPA on the other hand refers to ‘appeals’ arising out of decisions of the Registrar of Political Parties. Our interpretation of these provisions is that the Tribunal’s mandate to determine disputes categorised thereunder is one that is original. Even though the IDRM decisions are often times subjected to the Tribunal to establish legal compliance, the Tribunal does not exercise an appellate jurisdiction over them within the strict legal context of what an appeal is understood to mean. Had the legislature intended that the Tribunal sits as an appellate organ against IDRM decisions, nothing would have been easier than to state so. Suffice it to note that different political parties have provided for diverse methods of dispute resolution within their constitution including mediation, negotiation, establishment of dispute resolution organs, amongst others and it would therefore be impracticable to confine the parties to a strictly appellate Tribunal mandate. The law is however express that the appellate jurisdiction of the Tribunal lies with respect to appeals from the decisions of the Registrar of Political parties.Indeed, pursuant to the stated provisions of Section 40(1) on disputes and appeal, the Tribunal has embraced two major case types/categories being Complaints (Disputes) and Appeals. Disputes listed under section 40(1) sub sections (a), (b), (c), (d), (e) and (fa) of the PPA are lodged in form of a Complaint between the parties mentioned thereunder. On the other hand, ‘appeals’ arising out of decisions of the Registrar of Political Parties are lodged as an Appeal. The PPDT (Procedure) Regulations 2017 have made provisions on form and contents of a Complaint and Appeal within the stated context. We are therefore not persuaded by the 1st respondent’s interpretation that our jurisdiction over IDRM is only appellate…”

38. We accordingly find that our jurisdiction is not appellate in strictu sensu but original in so far as disputes categorised under section 40 of the PPA are concerned.

39. The intertwined issue that we have taken the liberty to address is the consequence of our above finding, noting that this matter was filed in form of an appeal and not a complaint. In this respect, we remain alive to the provision of article 159(2)(d) of the Constitution that accords precedence to substance over form. Nothing therefore precludes us from considering the substance of this matter noting that the pleadings in any event meet the form and contents of a Complaint as set out under the PPDT Procedure Regulations 2022. Suffice it to note that we are a Tribunal and have in the past admitted claims in various forms including Plaints, letters, etc and determined the same in the interest of substantive justice. In any event, all the proceedings applicable to a complaint have been followed and the Respondent does not stand to suffer any prejudice.

40. Additionally, we note that the pleadings in this matter also made reference to two other nomination exercises that were conducted on April 14, 2022 and April 23, 2022. Our understanding is that the Appellant’s claim is essentially in respect of the nominations conducted on April 20, 2022 which we have already found we have jurisdiction to determine. We will therefore not delve into the other nominations referred to in the pleadings.

Whether the Claim is merited? 41. The crux of the Appellant’s case is that he is dissatisfied with the determination that was made by the EDRC in relation to EDRC Application No. 161 of 2022 that was lodged by the Interested Party to challenge his nomination on April 20, 2022 as party flag bearer for position of MCA Pangani Ward. The determination was to the effect that the matter be referred back to NEB to assess alternative means of nomination. According to the Appellant, the determination was irregular and outside the mandate of both the EDRC and NEB. The Respondent and Interested Party on the other hand maintain that the EDRC determination was within the law and that in compliance therewith, the Respondent conducted another nomination process on April 23, 2022 where the Interested Party emerged the winner.

42. We have gone through the EDRC determination and we note that the same is divided into parts. Part 1 sets out the “Brief Facts” of the case as presented by the parties. It does not contain any finding on the facts. Part 2 of the ruling has identified one issue that the EDRC isolated for determination, being, “Whether the Applicant has made a case for granting the orders sought’. Part 3 of the Ruling is titled ‘Findings’. We note that Part 3. 1.1. to 3. 1.9 sets out the law applicable to the matter being NEB’s mandate under Article 21 of the party constitution (3. 1.1), evidence and the burden and standard of proof in election cases (3. 1.2 to 3. 1.9). The last part of that section, that is, Part 3. 1.10 simply states that “the UDA constitution in Article 29 calls onto all members to uphold the code of conduct, and for which failure to comply with the same constitutes a disciplinary offence”. Part 4 titled ‘Disposition’ at Part 4. 1. thereof, the EDRC stated thus “our surmise in regards to this application before us is that we recommend it to the UDA National Elections Board to give alternative measures”. The final order is then under Part 5. 1 (a) to the effect that “the matter is recommended to the party’s National Elections Board for further measures. The Committee recommends alternative measures to be given by the party’s National Elections Board in accordance with Article 31 of the UDA constitution”.

43. From the foregoing, it is evident that notwithstanding having set out the legal exposition on evidence and burden and standard of proof in election matters, the EDRC did not make a finding on whether the Interested Party herein had made a case for granting of the orders sought. Instead, it made a statement at paragraph 3. 1.10 that “the UDA constitution in Article 29 calls onto all members to uphold the code of conduct, and for which failure to comply with the same constitutes a disciplinary offence.” The case before the EDRC was not a disciplinary case and this particular statement by the EDRC with due respect is in our opinion misplaced. We agree with the Appellant that EDRC erred by not making a finding on issues that they had themselves set apart from determination thus making the ruling bad in law.

44. Noting that this Tribunal has original jurisdiction to determine disputes arising out of nomination provided IDRM is attempted prior thereto, nothing precludes us from re-evaluating the evidence on record in so far as the legality of the nomination exercise of April 20, 2022 is concerned. As we re-evaluate the same, we are guided by the law and numerous judicial authorities underscoring the matter of evidence, burden and standard of proof in election cases. We will set out just a few herein-below which shall apply in the determination of this dispute.

45. In Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR“…The burden of proof in election petitions is very high, often said to be above the civil standard of ‘a balance of probabilities’. Where cogent evidence is not led to show, to the standard required, that bribery took place, then the court cannot make a finding that it did. We do not agree that the election court erred by excluding the evidence of the prior conduct of the 3rd respondent’s husband. While he may have been implicated in a prior report of a tribunal for the offence of bribery, for the court to rely only on this would have amounted to relying on extraneous material. What the appellant was required to show was that he undertook the activities complained of in the course of the election that was held in Kibwezi East Constituency on August 8, 2017. The appellant failed to discharge this burden…”

46. The Supreme Court has clearly illuminated the law on these issues. On the burden of proof the Court in Raila Odinga 2013 held that:(195)There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made.”

47. As for the standard of proof, the court enunciated it at paragraph 203 thus:“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”

48. In John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR; Petitions Nos. 2 and 4 of 2017 the Supreme Court at paragraph 373 restated the law on the effect of illegalities and irregularities on an election as follows:“This Court has already pronounced itself in unequivocal terms, on the effect of irregularities upon an election. The legal position remains as stated in the majority decision of the Court in Raila 2017… This may be simply restated: not every irregularity or procedural infraction is enough to invalidate an election. The irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a Court of law to nullify the same.”

49. The Interested Party argued that; the nomination exercise of April 20, 2022 was chaotic, there was no official declaration of result, neither the Appellant nor the Respondent attached any official results to the said exercise, and no provisional certificate was issued to the Appellant. He in particular isolated two polling stations and alluded to incidences of chaos and ballot staffing at Pangani Girls polling station where goons associated with the Appellant were arrested with market ballot papers, an incident that they aver was reported to the police and booked as OB number 101. He further stated that there were delays in Ainsworth.

50. We have considered the record and we note that from the OB extract annexed to the appellant’s further affidavit, the matter that was reported under the OB Number 101 provided appears to relate to an incident at Ainsworth and not at Pangani Girls as alleged. The Interested Party in fact emerged the winner at Ainsworth where the incident was reported. There is no evidence furnished of any specific arrests and how those arrested were connected to the Appellant who we note was in hospital on the material date as per the evidence produced before us. Contrary to the Interested Party’s contention, the Respondent has in his Affidavit confirmed results that were declared, which results have also been alluded to by the Interested Party in his pleadings. The Appellant has produced a certificate that was issued to him upon his declaration as the winner. We therefore find it hard to believe the Interested Party that no results were declared and further that no certificate was issued to the Appellant for the reason that the exercise was inconclusive.

51. Applying the principles set out in the above judicial authorities, we find that the EDRC ought to have made a finding that the interested party did not meet the standard of proof expected in election or nomination matters, and further that if at all there were any irregularities, the same did not meet the necessary threshold to invalidate the nominations.

52. We have further considered the Respondent’s justification as to why the matter was referred to NEB. We note that the circumstances alluded to that gave rise to reference to NEB are not stated in the EDRC determination. As we have already observed, no finding was made on the merit of the complaint before EDRC.

What are the appropriate reliefs to grant? 53. Taking into consideration the totality of the circumstances of this case, we find that the case is merited and we accordingly allow the reliefs sought as set out in our orders hereunder.

54. Costs ordinarily follow the event and taking into consideration the circumstances of this case, we find no reason to depart therefrom. We accordingly make an award for costs in favour of the Appellant.

Disposition 55. In light of the foregoing, we order as follows:-i.This honourable tribunal hereby sets aside the decision of the UDA Electoral and Nomination Dispute Resolution Committee, Application No 161 of 2022 issued on April 22, 2022 in respect of the nomination exercise that was conducted on April 20, 2022. ii.A declaration that the Appellant herein was validly nominated on April 20, 2022 as the UDA ticket flag bearer for the position of Member of County Assembly, Pangani Ward.iii.That the UDA National Elections Board is hereby directed to forthwith issue the appellant herein with the UDA nomination certificate for the position of Member of County Assembly, Pangani Ward and also forward his name as such to the IEBC.vi.That costs of these proceedings are awarded to the appellant as against the respondent.

Orders accordingly.

Dated and delivered at Nairobi this 5th day of May 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…… ……….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO …………………………...(MEMBER)18PPDT Nairobi A Appeal No. E003 of 2022