[2022] KEPPDT 922 (KLR)

Wanyonyi v Ford Kenya Party & 2 others (Complaint E013 (KK) of 2022) [2022] KEPPDT 922 (KLR) (Commercial & Admiralty) (27 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 922 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Commercial and Admiralty

Complaint E013 (KK) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 27, 2022

Between

Calistus Simiyu Wanyonyi

Complainant

and

Ford Kenya Party

1st Respondent

National Election Board - Ford Kenya Party

2nd Respondent

Wafula Francis Eric

3rd Respondent

Judgment

Introduction 1. The Complainant is a member of the 1st Respondent and aspires to secure the party nomination certificate so as to vie for the seat of Member of County Assembly [MCA] Malakisi South Kulisiru Ward in the coming general elections scheduled for August 2022.

2. 1st Respondent is a political party duly registered as such while the 2nd Respondent is an organ of the said political party that is charged with the responsibility of managing party elections and nominations.

3. The 1st and 2nd Responders opted for indirect nominations of its candidate for the said Malakisi South Kulisiru Ward. The said indirect nomination would involve opinion polling to determine the most popular candidate among the interested aspirants.

4. During the said nomination process, the Complainant was polled as most popular and thus was assured that he would be the recipient of the coveted nomination certificate. He was allegedly in fact contacted on April 22, 2022 and invited to attend the 1st Respondents offices so as to collect his nomination certificate.

5. Several attempts to collect the said nomination certificate failed to bear fruit causing the Complainant to lodge a complaint with the 1st Respondent, which complaint did not elicit any response.

6. The Complainant has since learnt that the 3rd Respondent was issued a nomination certificate under unclear circumstances hence his filing this complaint before this Tribunal.

7. The complaint seeks for the following orders:-a.A declaration that the nomination of the 3rd Respondent by the 1st Respondent is illegal, null and void.b.An order directed at the 1st Respondent to issue the Nomination Certificate for Malakisi South Kulisiru on the Ford Kenya Congress Party to the Claimant, Calistus Simiyu Wanyonyi.c.An order directed at the 1st and 2nd Respondent to substitute the name of the 3rd Respondent with that of the Complainant.d.Any other appropriate order that the Honourable Tribunal may deem fit in the circumstances.e.Costs of the Suit.

8. The 1st and 2nd Respondents filed their Replying Affidavit to the complaint and Notice of Motion application.

9. The 3rd Respondent though served, did not respond to the complaint.

The Complainants Submissions 10. It is the Complainants submission that he is a duly registered member of the Ford Kenya Party holding membership Number No 2269625 and that he expressed his interest in vying for the Member of County Assembly position for the Malakisi South Kulisiru Ward under a Ford Kenya Ticket when he paid the required party nomination fees of Kenya Shillings Twenty-Five Thousand Only (Kshs 25,000. 00). The payment was effected vide M-pesa transaction as shown by reference No QCC3JSBP23.

11. In furtherance of his said expression, he did on April 20, 2022 , participate in Party’s Nomination exercise which was conducted vide opinion polling. It is the Complainants submission that he emerged the best in the said polling.

12. The Complainant avers that there is no justification or lawful reason why the political party of his choice has failed to issue the nomination certificate to which he is rightfully entitled and such continued failure is a violation of his rights.

The 1st & 2nd Respondents Submissions 13. The 1st and 2nd Respondents filed a Replying Affidavit sworn on May 26, 2022 by the Secretary General of the 1st Respondent one Dr Chrisanthus Wakhungu Wamalwa, vide which they stated that the party nomination rules allowed for direct nomination and in fact the rules allow that, upon receipt of advice from the Management Committee, a direct nomination can issue.

14. The 1st and 2nd Respondents aver that this is what happened in this instant hence the ticket issuing to the 3rd Respondent and not to the Complainant as advised by the said Management Committee.

13. Further but key to this complaint, it is the said Respondents submission that the Complainant never submitted to the internal dispute resolution mechanism as anticipated in the party laws and in contradiction to the provisions of the Political Parties Act. And, the said Respondents submit, for this reason, the complaint is premature and need be dismissed.

Issues for Determination 16. The following are the issues we have identified for determination:-a.Does this Tribunal have jurisdiction?b.Was issuance of the nomination certificate to the 3rd Respondent procedural?c.Is the complaint justified?d.What orders should issue?

Analysis and Determination Whether this Tribunal possesses the requisite jurisdiction to hear and determine this matter 17. The 1st and 2nd Respondents’ submit that the Complainant did not invoke the Party Internal Dispute Resolution Mechanisms [hereinafter IDRM], and as such, has not properly invoked the jurisdiction of this tribunal. In essence, the said Respondents posit that the complaint runs afoul section 40 (2) of the Political Parties Act. This requirement is also known as the doctrine of exhaustion.

18. The Complainant on the other hand, submits that the political party hoodwinked him into thinking that he would be issued the certificate until such time as the timelines set by IEBC by which political parties were expected to have resolved all disputes internally had run out. This action though meant to frustrate his effort did not deter the Complainant from writing to the party to register his complaint in the hope of getting the party to resolve the issue.

19. Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions. This tribunal and courts have spoken to some of these exceptions. The requirement to exhaust internal dispute resolution mechanisms is a principle with exceptions.

20. The Political Parties Act was amended vide the Political Parties (Amendment) Act 2021. There was a significant shift in the wording of section 40(2) of the Act. The Section previously read as follows: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.

21. The current wording of section 40 (2) is 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.

22. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction.

23. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly vs Karume (1992) KLR 21. The said Court further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR as follows:It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.

24. Nyamweya J in Republic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd[2021] eKLR, dealt with the exceptions to the general rule, including the adequacy of the remedy sought in the internal process vis-à-vis court intervention. The learned Judge observed that:In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the claimant with the outcome sought as a matter of substance.It is for this reason that section 9 (4) of theFair Administrative Action Act, provides that the Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in theConstitutionor law and permit the suit to proceed before it. (Emphasis added).

25. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic vs. National Environment Management Authority, Civil Appeal No 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...

26. Likewise, it was held by the High Court in the matter of the Mui Coal Basin Local Community (2013) eKLR; R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya and Mohamed Ali Baadi and others vs The Attorney General & 11 others[2018] eKLR that in reaching a decision as to whether an exception applies, courts will undertake an analysis of the facts, regulatory scheme involved, the nature of the interests involved including the level of public interest involved, and the polycentricity of the issues and the ability of a statutory forum to determine them.

27. It is apparent from the analysis above that the party alleging to have attempted to invoke IDRM should show that, among others,:i.There is no duly constituted party organ charged with the responsibility of IDRM in the political party; orii.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute; oriii.Reasonable time has been afforded to the political party to respond, constitute or activate an IDRM organ to hear and determine the dispute;iv.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.

28. The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011.

29. Turning to the matter at hand, and applying the compass constructed above to the facts, we draw the following finding; an attempt to engage the political party was made and adequate time allowed to the political party within which to act or even respond. None was forthcoming.

30. In the circumstances IDRM was attempted and as such we are properly seized of this matter.

Whether the issuance of a nomination certificate to the 3rd Respondent was procedural? 31. The Complainant states that the indirect nomination process conducted by the 1st and 2nd Respondents saw him emerge the winner. The 1st and 2nd Respondents contend that in addition there was another tier of the indirect nomination process through the advisory of the Management Committee that saw them award the nomination certificate to the 3rd Respondent.

32. The Nomination and Election Rules of the FORD Kenya Party provide at part 43 (i) (d) which speaks to direct nomination that such direct nomination can be “onadvice from the Management Committee that it is in the wider interests of the Party that a irect nomination be issued”.

33. The said rules proceed at part 44 to provide that“the Management Committee shall develop Rules to facilitate the smooth implementation of the aforesaid “Other Nomination Procedures.”

34. It is anticipated that all administrative action must be carried out in line with the provisions of theConstitution of Kenya, 2010 and the Fair Administrative Action Act. It is clear that the operationalisation of the jurisdiction of the Management Committee advisory has to be rolled out through some procedural rules. We have not seen any rules presented before us by the 1st and 2nd Respondent herein that speak to the process that would have applied when these lawful other nomination procedures were applied. We are merely told that it was issued upon the advice of the said committee.

35. The question then would be whether the power conferred on the 1st and 2nd Respondents by their enabling statutes was properly exercised. The classic judicial pronouncement on the doctrine of ultravires was pronounced in ‘Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374’ in which Lord Diplock enumerated a threefold classification of grounds for the court to intervene, any one of which would render an administrative decision and/or action ultra vires. These grounds are; illegality, irrationality and procedural impropriety.

36. A decision that affects the rights of any member, must be executed in a transparent manner. The parameters that are to apply or that applied should be capable of being opened to third party scrutiny. None of these are shown in the case as presented by the 1st and 2nd Respondents.

37. The pronouncement of the Management Committee fits squarely within the ultra vires parameters we outlined. Any certificate thus issued as a result of this process must justifiably, be impugned.

Whether the complaint is justified? 38. The Complainant submits, and this is not controverted, on a polling process that was applied in the party nomination process. This is obviously the process that was overtly made known to the party membership and certainly to the aspirants.

39. In addition, the Complainant has attached to his affidavit and bundle of documents a receipt showing payment of the nomination fee and the nomination certificate that was issued to him but later for reasons unknown to him, cancelled.

40. We have also noted that his demand to the party seeking the re-issuance of his certificate, remains un-responded to a month past the date, even in the face of the strict timelines within which election matters operate.

41. The Complainant has shown, on a balance of probabilities, that he emerged the front runner for the party ticket for the position in issue.

42. We are thus inclined to find that his claim is justified.

Conclusion 43. In light of the aforesaid analysis and findings we order as follows:a.That the 1st Respondent herein Ford Kenya Party forthwith forward the name of the Complainant Calistus Simiyu Wanyonyi to the Independent Electoral and Boundaries Commission, for gazettement as their nominee candidate for the position of Member of County Assembly Malakisi South Kulisiru Ward in the August 2022 general election.b.That FORD Kenya party forthwith issue a nomination certificate in respect of the Member of County Assembly position in Malakisi South Kulisiru Ward in the name of Calistus Simiyu Wanyonyi the Complainant herein.c.That the purported nomination certificate issued by FORD Kenya party in respect of the Member of County Assembly seat Malakisi South Kulisiru Ward in the coming August 2022 general elections to Wafula Francis Eric is hereby revoked.d.That the procedure applied by the FORD Kenya party towards identifying the 3rd Respondent herein as its nominee for the MCA seat in Malakisi South Kulisiru Ward is unlawful and unprocedural and therefore null and void.e.That notification of this order issue to the Independent Electoral and Boundaries Commission.f.Costs are awarded to the Complainant as against the 1st Respondent.It is so ordered.

DATED AND DELIVERED (VIRTUALLY) ON THIS 27TH DAY OF MAY 2022M. L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)Dr LYDIAH WAMBUI (MEMBER)