[2022] KEHC 11436 (KLR)

Wambua & another v UDA National Elections Board & 4 others (Civil Appeal E306 & E309 of 2022 (Consolidated)) [2022] KEHC 11436 (KLR) (Civ) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11436 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E306 & E309 of 2022 (Consolidated)

CW Meoli, J

June 3, 2022

Between

Mbinya Francis Wambua

Appellant

and

UDA National Elections Board

1st Respondent

Evans Kimaiyo

2nd Respondent

Kamau Moses Muratha

3rd Respondent

As consolidated with

Civil Appeal E309 of 2022

Between

United Democratic Alliance National Elections Board

Appellant

and

Moses Muratha Kamau

1st Respondent

Evans Kimaiyo

2nd Respondent

Mbinya Francis Wambua

3rd Respondent

([Being an appeal from the judgement of the Political Parties Disputes Tribunal at Nairobi delivered on 10th May 2022, in Political Parties Dispute Tribunal, in Nairobi PPDTC/E027/2022])

Ruling

1. The events leading to the consolidated appeals herein are as follows. Kamau Moses Muratha (hereafter the 3rd respondent) and Mbinya Francis Wambua (hereafter the appellant) were among aspirants seeking nomination, to vie as the United Democratic Alliance party (hereafter the UDA party) candidates for the position member of county assembly (MCA) Kitusuru ward, in the impending general elections scheduled for August 9, 2022. Direct party nominations for the position of MCA Kitusuru ward were held on April 14, 2022. The appellant emerged as the successful candidate and was thereafter awarded the party nomination certificate by the national elections board of the (UDA) party (hereafter the 1st respondent).

2. Aggrieved by the outcome of the primaries, the 3rd respondent lodged a complaint with 1st respondent’s electoral and nomination dispute resolution committee (hereafter the committee) citing irregularities at specific polling stations during the nomination process. On April 17, 2022 the said committee dismissed the 3rd respondent’s complaint and upheld the results announced by the 1st respondent.

3. Dissatisfied, the 3rd respondent lodged a further complaint on April 27, 2022 to the Political Parties Dispute Tribunal (hereafter the tribunal) challenging the committee’s decision. The tribunal rendered a decision on May 10, 2022 in favour of the 3rd respondent and set aside the ruling of the committee of April 17, 2022. The tribunal revoked the certificate of nomination issued to the appellant and directed the 1st respondent to undertake fresh direct party nominations for the position ofMCA, Kitisuru ward within forty-eight hours. The tribunal further declared the appellant ineligible to vie in the repeat nominations on account of his non-compliance with membership requirements of theUDA party and ordered that the costs awarded to the 3rd respondent be borne by the appellant, the 1st respondent and Evans Kimaiyo (the 2nd respondent).

4. The appellant and the 1st respondent were both dissatisfied with the decision of the tribunal. Consequently, the appellant preferred an appeal to this court, namely, Nairobi HCCA No E306 of 2022 to challenging the tribunal’s decision based on the following grounds in his memorandum of appeal: -“1. The learned members of the tribunal erred in law and in fact by finding that the appellant is not a member of United Democratic Alliance party.2. The learned members of the tribunal erred in law and in fact by ignoring an outright and express admission on the part of UDA’s national election board that conducted, supervised and oversaw the nomination exercise of March 14, 2022 to the effect that the said nominations were overboard and free and fair.3. The learned members of tribunal erred in law and in fact in usurping the UDAnational election board’s mandate of determining, in the first instance, whether the nominations it conducted, supervised and oversaw were free, fair and transparent.4. The learned members of the tribunal erred in law and in fact in failing to affirm a nomination exercise that even theUDA national election board, the returning officer and the body charged with conducting, supervising and overseeing the whole process of the said nomination exercise admitted expressly that it was free and fair.5. The learned members of the tribunal erred in law and in fact by ignoring that the nomination exercise of March 14, 2022 had already been overtaken by the subsequent granting of certificate of nomination to the appellant.6. The learned members of the tribunal erred in law and in fact by ignoring the appellant’s replying affidavit responding to the facts raised.7. The learned members of the tribunal erred in law and in fact by admitting fresh grounds that were not canvassed in the UDAparty’s electoral dispute resolution board.8. The learned members of the tribunal erred in law and in fact by misapplying themselves to the facts and applicable law in the appeal thereby reaching the wrong conclusions that the nomination exercise was not free and fair.” (sic)

5. On its part, the 1st respondent filed Nairobi HCCA No E309 of 2022 challenging the tribunal’s decision, based on the following grounds in its memorandum of appeal: -“1. The honourable tribunal erred in law and fact in directing the appellant to conduct fresh nominations for member of county assembly in Kitusuru ward by universal suffrage within 48 hours.2. The honourable tribunal misdirected itself in arriving at its decision or orders by taking in to account extraneous matters which were never reported to the appellant such as;a.Failure and/or refusal to avail the party register to aspirants for verification.b.Voting by non-members in the nomination and denial to registered members to vote.c.Threats of violence and actual violence against agents and polling officials.d.Aspirant’s agents being hired to act as polling clerks.e.Limiting access to polling stations to voters who were deemed to vote a particular candidate.f.Incomplete and manipulated results.g.Strange transportation of ballot boxes with exposure to staffingh.Denied opportunity to verify and sign electoral returns.3. The honourable tribunal erred in law and in fact in awarding costs as against the appellant.”

6. The appeals were consolidated on May 19, 2022 and the appeal HCCA No E306 of 20221 appointed the lead file. Directions were given for the filing of the record of appeal and submissions on the appeals. The matter was listed for highlighting of the said submissions on May 26, 2022. On that date, counsel for the appellant informed the court that he had received a letter dated May 18, 2022 from the office of registrar of political parties, indicating that the 3rd respondent was now an independent candidate, presumably vying in the same ward. Invoking the provisions of section 78(1) (d) of the Civil Procedure Act, counsel made an oral application to adduce new evidence regarding the issue. The application was supported by counsel for the 1st respondent but opposed by counsel for the 3rd respondent.

7. This court upon considering the respective arguments was persuaded to grant the appellant’s oral application for the key reason that the new evidence sought to be adduced appeared to have a bearing on the appeals and considering time constraints, reserved other reasons for a later date. The court proceeded to give appropriate directions on the production of the new evidence by way of affidavits or witness statements.

8. There were two further reasons for allowing the appellant’s oral application. The first is that the court was wary that any issue appearing to touch upon jurisdiction required to be determined before taking any further proceedings on the appeals and to obviate wastage of the court’s limited time resource. The second is the command in the overriding objective in section 1A and 1B of the Civil procedure Act, requiring the court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes.

9. In Karuturi Networks Ltd & AnorvDaly & Figgis Advocates, Civil Appl NAI 293/09 the Court of Appeal had the following to say concerning the overriding objective in section 1A and 1B of the Civil Procedure Act:“The jurisdiction of this court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective….. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court”.

10. Pursuant to the court’s grant of leave, the appellant, proceeded to file a motion dated May 27, 2022, seeking that the judgment and decree of the tribunal delivered on May 10, 2022 in PPDTC/E027/2022 be set aside and the appeals herein be struck out. The motion is expressed to be broughtinter alia under articles 47, 50(1), 159(2)(b) & (e), 165(2) & (6) of the Constitution, section 41 of the Political Parties Act, rule 34 of the Political Parties Dispute Tribunal (Procedure) Regulations, sections 1A, 1B, 3B, 65, 71A, 72, 77, 78 and 79G of the Civil Procedure Act (CPA), and order 42 rule 1, 2, 3 & 6 of the Civil Procedure Rules (CPR). It was anchored on grounds, among others that, at the time the 3rd respondent filed the appeal inPPDTC on April 27, 2022 he had resigned from the UDA party , that the said material non-disclosure was a stratagem intended to enable the said 3rd respondent to enjoy two bites at the cherry and that he was guilty of abusing the process of the court and wanton dissipation of judicial time.

11. The motion is supported by the affidavit of appellant who describes himself as a member of the UDA partyvidemembership No. UDA2195551. The gist of his depositions is that the 3rd respondent filedPPDTC/E027/2022 some four (4) days after his resignation from the UDA party; that the online e-citizen portal was closed on March 26, 2022 and the 3rd respondent must have effected the resignation from UDAparty and then registered as an independent candidate physically; and that the gross material non-disclosure was contrived to give an unfair advantage to the 3rd respondent.

12. He asserted that the registrar of political parties had confirmed that the 3rd respondent had resigned from theUDA party on April 24, 2022 and registered on the same date as an independent candidate, as per the registrar’s letter at pages 1 and 2 of his annexure marked MFW1. The appellant also cited the 3rd respondent’s ‘facebook’ post of April 24, 2022 at page 3 of the said annexure as corroborating his depositions. The appellant further deposed that the new evidence was within the 3rd respondent’s knowledge, and his appeal in the tribunal amounted to an abuse of the process of the court and a waste judicial resource.

13. The motion is opposed through a lengthy and rather repetitive replying affidavit deposed by the 3rd respondent. He asserts that he is a bona fide member of the UDA party and holder of a valid UDA membership card (annexure marked MMK-001 to the affidavit), in line with the mandatory requirements of the UDA party constitution. He swore that the appellant is not an approved member of the UDA party by virtue of the fact that he does not hold the UDA membership card; that the judgment delivered by the tribunal set aside the finding of the UDAparty Internal Dispute Resolution Mechanism (IDRM) concerning the appellant’s membership status; that unless the finding of the tribunal is reversed the appellant lacks locus and or sufficient interest to sustain the motion which he views as a clever but unlawful and unprocedural attempt by the appellant to sneak in evidence on the question of his membership.

14. The 3rd respondent goes on to swear that he had never issued a written notice of his intention to resign from the UDA party in accordance with section 14(1) of the Political Parties Act and article 4. 4(i)(a) of the UDA party Constitution, or registered as an independent candidate; has never been expelled from the UDA party and that the appellant, his political detractors, or other persons had interfered with his registration status without his knowledge and that it was through the instant motion that he learnt of his alleged registration as an independent candidate with the registrar of political parties. He asserted that his name was not in the list of independent candidates publishedvide the Kenya gazette Vol CXXIV-No 89 of May 13, 2022.

15. He stated that the appellant may have obtained the information on his membership earlier and moved the tribunal appropriately before judgment was rendered. He contended that the copy of his alleged Facebook post exhibited in the appellant’s affidavit is a doctored copy of his genuine Facebook post of April 24, 2022, being evidence that the appellants and his political detractors are guilty of peddling false information and perpetrating perjury. In conclusion the deponent urged the court to find that the alleged resignation was not of his own making and that the motion had no merits.

16. The 1st respondent supported the motion through an affidavit sworn by Anthony Mwaura, the 1st respondent’s chairman who swore that the office of the secretary general of the UDAparty had by a letter dated May 14, 2022 inquired from the office of the registrar political parties and obtained confirmation of the membership history of several members, including the 3rd respondent and the appellant; that the registrar’s office had indicated that the 3rd respondent had resigned from the UDA party and registered as an independent candidate on April 24, 2022. He exhibited the request letter and response as annexures AM1 and AM2.

17. The parties made brief submissions on the motion, primarily reiterating their respective affidavit material. Although the parties had filed their respective submissions on the substantive appeal, this court upon considering all the matters canvassed in the motion, was of the view that the motion raised issues relating to the competence of complaint before, and jurisdiction of the tribunal inter alia that had a pertinent bearing on the appeals before it. Because, if it was found that the appeal in the tribunal was incompetent and the tribunal therefore without jurisdiction, the entire substratum of the appeals before this court would have collapsed and if the court proceeded to hear them, there was a possibility that such course might be rendered an exercise in futility. Thus, the court determined to first rule on the motion.

18. The court has considered the record of appeal, the motion, rival affidavits, and submissions by the respective parties. The appellant’s contention through his additional evidence is that 3rd respondent had resigned from the UDA party four days before he filed the complaint in the tribunal political parties tribunal and that the 3rd respondent lacked the legal capacity to institute the complaint; and that the fact was not disclosed to the tribunal. The assertion is supported by a copy of a letter dated May 18, 2022, emanating from the office of registrar of political parties and exhibited in the supporting affidavits of the appellant and of the 1st respondent. The letter states in the pertinent part that:“3. Kamau Moses Muratha of ID No 2xxxxx7 is currently an independent candidate under application No 1708 having been registered on April 24, 2022. Previously he was member of United Democratic Alliance from January 5, 2021 until his resignation on April 24, 2022. ”

19. The complaint before the tribunal related to the nomination exercise carried out to identify the UDA party candidate for the Kitisuru ward in the upcoming general elections and both the appellant and the 3rd respondents were among aspirants seeking nomination as UDA party candidate for the seat. The 3rd respondent was aggrieved that the appellant had been nominated in the said primaries, hence his appeals to the UDA party committee and later to the tribunal. The 3rd respondent’s complaint dated April 27, 2022, supporting affidavit and witness statement filed in the tribunal asserted that the 3rd respondent was a member No UDA 239839 of the UDA party. Indeed, one of the prayers in his complaint sought an order that the tribunal declare him the validly nominated UDA party candidate for the Kitisuru ward MCA elective seat for purposes of the general elections. He has maintained by his replying affidavit before this court that he is a member of theUDA party and had never resigned, relying on his membership card, inter alia as proof.

20. Two related issues arise for determination, firstly, the 3rd respondent’s party membership status and thereforelocus standi to bring the appeal before the tribunal, secondly and ultimately, the jurisdiction of the tribunal. The locus classicus on the question of jurisdiction is the celebrated case ofOwners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd[1989] KLR 1 where Nyarangi JA famously stated:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

21. The tribunal draws its jurisdiction from section 40 of the Political Parties Act which provides that:“(1) The tribunal shall determine—(a)disputes between the members of a political party;(b)disputes between a member of a political party and a political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners; and(f)appeals from decisions of the registrar under this Act;(fa)disputes arising out of party primaries.(2) Notwithstanding subsection (1), the tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.”

22. The 3rd respondent’s complaint before the tribunal was premised on his membership of the UDA party. Such membership ideally gave him the right to participate in activities of the party and to contest for the elective position ofMCA Kitisuru ward, and consequently, the necessary locus standi to prosecute his complaint before the tribunal, pursuant to the jurisdiction donated to the tribunal under section 40(1) (a), (b), and (fa) above. Black’s Law Dictionary, Tenth Edition defineslocus standito mean:“…the right to bring an action or to be heard in a given forum.”

23. The Court of Appeal in James Teko Lopoyetum v Rose Kasuku Watia & 4 others[2021] eKLR cited with approval its decision in Alfred Njau & 5 others v City Council of Nairobi[1983] eKLR where it stated :“The term locus standi means a right to appear in court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”

24. The same court in Sheila Nkatha Muthee v Alphonce Mwangemi Munga &another [2016] eKLR held that:“locus standi is a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue renders the suit incompetent.”

25. In this instance, the registrar of political parties certified by her letter of May 18, 2022 that the 3rd respondent had resigned from the UDA party on April 24, 2022 and registered as an independent candidate. The 3rd respondent challenged the said letter by deposing in his affidavit in response to the motion that he was still a member of the UDAparty and further placed reliance on section 14 of the Political Parties Act and article 4. 4 of United Democratic Alliance (UDA) Constitution.

26. Section 14 of the Political Parties Act provides inter alia that:“(1) A member of a political party who intends to resign from the political party shall give a written notice prior to his resignation to — (a) the political party; (b) the clerk of the relevant house of parliament, if the member is a member of parliament; or (c) the clerk of a county assembly, if the member is a member of a county assembly.(2) The resignation of the member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant house or county assembly.(3) The political party of which the person is a member, the member, or the clerk of the relevant house of parliament or of a county assembly of which the person is a member shall notify the registrar of such resignation within seven days of the resignation.(3A) Upon receiving the notification under subsection (3), the registrar shall cause the name of such member to be removed from the membership list of that political party.”

27. Article 4. 4(i) of the UDA party Constitution provides that:“A member of the party shall cease to be one:a.By resignation in writing to the party office nearest to him, and the membership of such person shall terminate with effect from the date of the receipt thereof, provided that the termination shall not absolve the member from performing any outstanding obligations owed to the party or other members.b.By a resolution passed by the national executive committee.c.By accepting an office, subscribing to or promoting activities of another political party.d.By operation of any law.”

28. The letter from the registrar of political parties must be read with the statutory role and functions of the registrar of political parties in mind, especially as stipulated in section 34, 34 B and 34C of the Political Parties Act. While under section 17 of the Act the political party is charged with the responsibility of maintaining at its head office and county offices, an accurate and authentic record of a register of its members, and to notify the registrar of any changes therein, the registrar also maintains a register of members of registered political parties and lists of all members of political parties. The registrar is mandated by the Act to verify or certify such membership from his records of members.

29. Section 34 of the Political Parties Act states that:“The functions of the registrar shall be to— (a) register, regulate, monitor, investigate and supervise political parties to ensure compliance with this Act; (b) administer the fund; (c) ensure publication of audited annual accounts of political parties; (d) verify and make publicly available the list of all members of political parties; (da) keep and maintain a register of members of registered political parties; (e) maintain a register of political parties and the symbols of the political parties; (f) ensure and verify that no person is a member of more than one political party and notify the commission of the findings;(fa) certify that an independent candidate in an election is not a member of any registered political party; (fb) certify that the symbol intended to be used by an independent candidate in an election does not resemble the symbol of a registered political party; (fc) certify that the names appearing in a party list are the names of members of the political party presenting the party list; (fd) regulate political party nominations in accordance with this Act; and (fe) train political party election agents upon the request and financing by the political party. (g) investigate complaints received under this Act; and (h) perform such other functions as may be conferred by this Act or any other written law.”

30. Thus, the court is of the view that the registrar’s letter dated May 18, 2022, comprises prima facie evidence of the correct membership status of the 3rd respondent as of April 24, 2022 which is four days before he filed the appeal before the tribunal. The evidential burden therefore shifted upon the 3rd respondent to controvert the contents of the letter. The 3rd respondent in his response merely reiterated that he had not resigned from his party. No letter of clarification from theUDA party was tendered in support of the denials. Equally, claims that his detractors may have hacked into his e-citizen portal and falsely orchestrated a resignation from the UDA party in his name remained in the realm of speculation as no evidence in support of the claims was furnished. Indeed, nothing prevented the 3rd respondent from seeking the primary instruments or evidence of the resignation from the registrar of political parties , or to apply to the court to summon the registrar to produce such records, or for cross-examination in that regard. The 3rd respondent’s bare denials, notwithstanding the provisions of section 14 of the Political Parties Act are therefore to no avail.

31. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji& 3 others(2014) eKLR in drawing a distinction between the legal and evidential burden held that:“The person who makes (an) allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue”.

32. The 3rd respondent’s assertion that the appellant lacked sufficient interest or locus standi to bring the instant application on account of the tribunal findings on his membership status appears ironic. The 3rd respondent dragged the said appellant before the tribunal, and he cannot be heard to challenge the appellant’s right to impeach the findings of the tribunal, made in favour of the said respondent.

33. Consequently, the court finds that on a balance of probabilities, the appellant has demonstrated that the 3rd respondent had by April 24, 2022 resigned from the UDA party, but in concealment of this fact, had proceeded to file the complaint in the tribunal in his purported capacity as abona fide member of UDAparty and aggrieved aspirant in the Kitisuru ward UDA party primaries. This amounts to material non-disclosure of pertinent facts. Having resigned from the UDA party on April 24, 2022, the 3rd respondent was a stranger thereto, and lacked the necessarylocus standi to institute proceedings before the tribunal, and worse, to seek to be declared the validly nominated UDA party candidate for the MCA seat, Kitisuru ward.

34. Thus, the complaint before the tribunal was incompetent for want of locus standi by the 3rd respondent and the tribunal had no jurisdiction to entertain the same. Had this evidence been presented to the tribunal, it would have found the complaint before it incompetent, and downed its tools, for want of jurisdiction. There is a long line of authorities for the proposition that a court has no jurisdiction to try a suit that is incompetent arising from the fact inter alia that, the suit is, statute barred, filed in a court without jurisdiction, or one brought by a person without the necessary locus standi. In the premises, the proceedings before the tribunal were essentially a nullity for the want of jurisdiction to entertain the incompetent complaint brought by the 3rd respondent.

35. The appellant’s motion has merit and is allowed in terms that, the court hereby sets aside the proceedings and judgment of the tribunal in Nairobi PPDTC/E027/2022 and substitutes therefor an order striking out the complaint /appeal lodged before the tribunal. No more need be said about the two appeals before this court, save to state that, pursuant to the foregoing, the appeals have resolved in the appellants’ favour. Costs in the tribunal and on this appeal are awarded to the appellants herein and will be borne by the 3rd respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 3RD DAY OF JUNE 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: Ms. Tusiime h/b for Mr. Waigwa for the AppellantFor the 1st Respondent: Ms. TusiimeFor the 2nd Respondent: N/AFor the 3rd Respondent: Mr. OdeteC/A: Carol