[2022] KEPPDT 1037 (KLR)

Wathanga v Orange Democtratic Movement (ODM) Party; Azimio La Umoja One Kenya Alliance (Interested Party) (Complaint E092 (NRB) of 2022) [2022] KEPPDT 1037 (KLR) (30 June 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1037 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E092 (NRB) of 2022

J M’Mbetsa, Presiding Member, S M Nderitu & AM Mbithi, Members

June 30, 2022

Between

Richard Gitonga Wathanga

Applicant

and

Orange Democtratic Movement (ODM) Party

Respondent

and

Azimio La Umoja One Kenya Alliance

Interested Party

Judgment

Background 1. The undated amended Complaint in this matter was filed vide a Notice of Motion Application under a Certificate of Urgency dated 21st June 2022. In the said Complaint, the Complainant sought orders that; that the Tribunal be pleased to issue a declaration that the decision of the Orange Democratic Movement Party, (ODM) to withhold the Nomination Certificate of the Complainant to contest as its nominee for the position of member of Parliament of Starehe Constituency in 2022 general elections is null and void; a declaration that the Respondent’s zoning arrangements in respect of Starehe Constituency Parliamentary elections in favour of Jubilee Party candidate hence and consequent [sic] failure of issuance of the Nomination Certificate for Parliamentary Seat for Member of National Assembly Constituency is null and void; an order to compel the Orange Democratic Movement to issue the Nomination Certificate for Member of Parliament for Starehe Constituency to Richard Gitonga Wathanga, the Complainant herein; the Tribunal to declare that the Complainant as the duly nominated candidate for the Respondent to fly the party’s ticket in the Starehe Constituency Parliamentary seat in the forthcoming general elections.

2. The Complainant also sought that in the alternative to prayer no. b [sic] above, a declaration do issue that the Complainant is entitled to a compensatory amount of Ksh. 250,000/- and Kshs. 2,000,000/= being payment of the nomination fees and campaign facilitation respectively; an order to compel the Independent Electoral and Boundaries Commission to include the name of Richard Gitonga Wathanga in the Ballot Papers for the position of Member of National Assembly, Starehe Constituency; costs to be provided for and for any other appropriate order that the Tribunal may deem fit.

The Complainant’s Case 3. The Complainant’s case was that in the run up to the 9th August 2022 General Elections, he sought to contest for the Parliamentary Seat for Starehe Constituency. The Complainant avers that he filled all the documents and paid all the requisite fees for contesting in the said nominations. Consequently, there being no nomination exercise that was conducted and being the sole applicant, the Complainant legitimately expected to be issued with the nomination certificate by the Respondent’s director of elections for the position of Member of Parliament for Starehe Constituency.

4. The Complainant alleges that on 16th March 2022 having complied with the party requirements, he made an application for Nomination for Member of Parliament for Starehe Constituency, Nairobi City County to the Respondent. He asserts that there was no nomination exercise for the position of Member of National Assembly Starehe Constituency and that since he was the only candidate of the Respondent, he ought to have been nominated directly. The Complainant avers that contrary to his expectations he did not receive any nomination certificate from the Respondent.

5. Subsequently, the Complainant avers that he wrote to the Executive Director Orange Democratic Movement to seek clarification on why he was yet to receive his nomination certificate. The Claimant says that the Respondent informed him that it would not be fielding any candidate in Starehe Constituency and it had zoned out the same for Jubilee party under the Azimio la Umoja Coalition. The Claimant then contends that on 30th April 2022, he lodged a complaint with the ODM National Executive Director objecting to the decision of the Party not to front a candidate in accordance with the Zoning arrangements orchestrated by Jubilee Party and the Orange Democratic Movement, but no action was taken neither was there a response given to him.

6. It is his allegation that on 25th May, 2022, he lodged a complaint in the Political Parties Dispute Tribunal (PPDTC/E089/2022) and later withdrew it on 31th May 2022 seeking to explore and exhaust available ODM’s Internal Dispute Resolution Mechanism (IDRM). Further that on the 30th May 2022 he wrote to the Respondent seeking to invoke the parties dispute resolution process and the letter was received on 2nd June 2022 but the Respondent never gave him a response neither did it convene its Internal Disputes Resolution Tribunal requirement.

7. The Complainant also avers that the Respondent disregarded his constitutional rights in withholding the Nomination Certificate for Starehe Constituency under its flag. It is also his averment that the principles enshrined under Article 10 of the Constitution have been violated [sic] by the Respondent when it failed to act in accordance with the rule of law, equity, social justice, inclusiveness, equality, human rights, transparency and accountability. Further that the Respondent had not given any written reasons for not issuing the Complainant with the nomination certificate despite being the only applicant in accordance with Article 47 of the Constitution on fair administrative action. Additionally, he avers that as per section 4(3) of the Fair Administrative Action Act, the Respondent had failed to give prior and adequate notice to him of the nature and reasons for the proposed administrative action and accord him an opportunity to be heard and make representations in the process of deciding not to supply the requested information.

8. The Complainant also alleges that his right under section 6(1) of the Fair Administrative Action Act which requires that every person materially or adversely affected by any administrative action ought to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review in accordance with section 5 had been violated. The Respondent gave no reasons for not issuing the Complainant with the nomination certificate despite him being the only applicant.

9. The Complainant submits that as per regulation 7(1) of the PPDT regulations 2017, a dispute to the Tribunal should be filed within thirty days from the date of making the decision complained of, if the dispute is between the members of a political party however, the Tribunal reserves the right to extend this time as envisioned under regulation 8 (3) of the Political Parties Disputes Tribunal Regulations 2017. In addition, as per regulation 40 of the PPDT regulations 2017, the Tribunal in determining any dispute before it is not bound by technicalities or legal rules of procedure and may waive any rules or procedural requirements. Also, the Tribunal has the power to extend or reduce the time prescribed by the Regulations for the doing of any act upon such terms and conditions as may appear to it just and expedient.

10. The Complainant avers that he is a victim to the Respondent’s negligence having failed to give them any response or take any action with regard to the nomination. The Complainant submits that according to the 3rd Schedule of the Political Parties Act, a coalition agreement should: adhere to the rules and procedures of the political parties relating to the formation of coalitions, be sanctioned by the governing body of the political parties entering into the coalition and provide for the coalition rules as well as coalition nomination rules. According to the Complainant, the Governing Council should accent to the said agreement. The Complainant further submits that the Respondent was obliged to conduct public participation on the decision to map out some areas in favour of the Jubilee Party. There was no evidence of participation by members in the said decision. Further, the Respondent failed to provide the Tribunal with the basis to which they determined the popularity of the Party Vis a Vis the Jubilee Party in Starehe Constituency.

The Respondent’s Case 11. The Respondent submits that the Complainant did not give any justification for failing to file a complaint before the PPDT having failed to get a response from the Party. The Respondent relied on the case of Exclusive Estates Limited v Telkom Kenya Limited and another; Aftraco Limited (Interested Party) (Civil Suit 1158 of 2001) (2022) that quoted the decision of the Court of Appeal in Union Insurance Co of Kenya Ltd vs Ramzan Abdul Dhanji Civil Application No 179 of 1998 that held as follows;‘‘The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.’’

12. The Respondent therefore submits that the Motion and Complaint should be dismissed the Complainant having not discharged the obligation placed upon him to demonstrate why he did not approach this Tribunal within the timelines set by the law. With regards to the nomination of a candidate, the Respondent asserts that Section 4A (b) of the Political Parties Act recognizes the fact that a political party has the discretion to choose whether or not to sponsor a candidate for a given electoral area. The Respondent states that, some of the considerations made include the popularity of the party in the area and provisions of coalition agreements with other parties.

13. The Respondent avers that they entered into a coalition agreement with amongst other political parties, Jubilee Party and that one of the terms of the agreement was that certain electoral areas would be zoned out depending on the strength of each party. As a result, Starehe Constituency was zoned out for Jubilee Party, meaning that the Respondent would not field a candidate. The Respondent submits that the Complainant has not shown that there was breach in entering into the said agreement and that seeking a declaration for the zoning off of Starehe Constituency to be declared null and void has no basis in law.

14. Further, that there was no legitimate expectation as there was no representation made to the Complainant that he would be issued with a nomination certificate or he would be the Party’s flag bearer. The Respondent avers that the Complainant has never been the Respondent’s nominee for the position of MP Starehe Constituency and the Respondent cannot therefore be forced to have a nominee when the law makes it optional. The Respondent assert that the Complainant was refunded the Kshs 250,000 being the nomination fees paid as indicated in Catherine Muyeka Mumma’s affidavit.

15. Regarding the KShs 2,000,000 being the money alleged by the Complainant to have been used in campaigns, the Respondent posits that there was no agreement with the Complainant that he would expend money toward campaigns. Nonetheless, the Respondent claims that the claim being under the law of contract falls outside the jurisdiction of the Tribunal. In addition, the claim falling under special damages, the Complainant ought to have supported the same through production of any receipts to show that the money was actually spent as alleged which the Complainant has failed to produce.

The Interested Party’s Case 16. The Interested Party did not enter appearance in this matter despite service being properly effected on it and it is assumed that it is not interested in the case.

Issues For Determination 17. Upon considering the undated amended Complaint, the Application, theAffidavits, the Parties’ submissions, and authorities cited, we frame the following issues for determination:A.Whether this Complaint is properly before the Tribunal;B.Whether the Complainant is entitled to the reliefs sought; andC.Who bears the costs of this Complaint?

A. Whether this Complaint is properly before the Tribunal 18. The Complainant has approached the Tribunal praying that this Tribunal by invoking the powers conferred upon it by Regulations 37 and 40 of the Political Parties Disputes Tribunal Procedure Regulations 2017 waives the requirement under rule 7 (1) of the said rules for a dispute to be filed within 30 days from the date of making the decision complained of, if the dispute is between members of a political party.

19. The Complainant alleges that there are sufficient reasons for the Tribunal to waive the requirement in that, no nominations were conducted as there were no other contestants for the said position under the Respondent’s ticket. He avers that he expected to be issued with a Nomination Certificate by mid May 2022. This is because the list provided by the Respondent did not mention Starehe Constituency and that such omission could be construed to mean that the Respondent would not conduct the nominations as there was only one applicant, who was the Complainant. He also alleges that he was kept in the dark with respect to the decision not to field a candidate in Starehe Constituency despite his incessant follow ups until 25th May 2022 when he decided to file Complaint no E089 of 2022 before this Honourable Tribunal, which he later withdrew to pursue a settlement through the Respondent’s Internal Dispute Resolution Mechanism (IDRM).

20. The Complainant further alleges in support of his application that, on 30th May 2022 he wrote a complaint to the Respondent’s Chair of the Party Disputes Tribunal, which was received on 2nd June 2022 at 9am. Further that despite constant follow ups being made by the Complainant on the matter, the Respondent failed to constitute a panel of its Appeals Tribunal to resolve the dispute. The Complainant alleges that he is merely a victim of the negligence of the Respondent and he cannot therefore be blamed by the Respondent in a bid to benefit from their own wrongs. Indeed, that equity should not suffer a wrong without a remedy as would be the case if the Tribunal were to refuse to invoke powers conferred upon it by Regulations 37 and 40 of the Political Parties Disputes Tribunal Procedure Regulations 2017 to waive the requirement under rule 7 (1) of the said Regulations.

21. The Respondent in response has alleged that it is not disputed that it issued communication to all aspirants notifying them of the areas where it would be fielding candidates for the forthcoming elections. The Respondent also alleges that the Complainant admitted that he became aware of the decision by the Respondent not to field a candidate in Starehe Constituency on 30th April, 2022 when he wrote a letter to the party. Placing reliance on the decision in Exclusive Estates Limited v Telkom Kenya Limited and another; Aftraco Limited (Interested Party) (Civil Suit 1158 of 2001) (2022) that quoted with approval the decision of the Court of Appeal in Union Insurance Co of Kenya Ltd vs Ramzan Abdul Dhanji Civil Application No 179 of 1998, the Respondent submitted that the Complainant had failed to demonstrate why he did not approach this Tribunal within the timelines set by the law. Consequently, it was the Respondent’s prayer that the Motion and Complaint be dismissed in limine.

22. In order for this Tribunal to make a finding on this issue, it is necessary for the Tribunal to probe the chronology of events that led to the Complaint before us, including PPDT Complaint E089 of 2022 which had been filed by the Complainant with respect to this dispute, but was subsequently withdrawn in order for him to attempt resolving the dispute through the Respondent’s IDRM.

23. The Complainant is aggrieved by the Respondent’s decision not to nominate him as its candidate for the position of Member of National Assembly, Starehe Constituency. The Respondent has alleged that it communicated its decision not to field a candidate in Starehe Constituency on 21st April, 2022. Consequently, as per Rule 7 of the PPDT Regulations, the Complainant ought to have filed a Complainant with this Tribunal on or before 21st May, 2022. The Complainant having not filed a Complaint before this Tribunal, then he can be said to have filed his Complaint out of time.

24. However, the Complainant has alleged that he was not informed of the said decision and only came to learn of it on 30th April, 2022 through media reports. This allegation receives backing in the letter he wrote to the Executive Director of the Respondent on 30th April, 2022 and the Respondent who alleges that it notified all contestants has not produced any letter, email or message sent to the Complainant herein. The said letter did not elicit a response from the Respondent which can be taken to be the reason the Complainant filed PPDT Complaint E089 of 2022 on 25th May, 2022. If the Tribunal were to take the date the Complainant became aware of the dispute to be the date the decision complained against was made, then the PPDT Complaint E089 of 2022 can be said to have been filed on time.

25. This Tribunal is convinced that the Respondent should have at the very least responded to the letter dated 30th April, 2022 despite the fact that the said letter did not conform to the Respondent’s requirements with respect to filing of appeals before its Appeals Tribunal or advised the Complainant on how to go about filing an appeal. We say this because the Court of Appeal in the case of Samuel Kalii Kiminza vs. Jubilee Party & Another (2017) eKLR, observed as follow“… 26. Further, we cannot help but note that the Appellant wrote to the 1st Respondent not once but twice and none of these letters elicited any response from the 1st Respondent. The Appellant is a member of the 1st Respondent having paid the requisite fees. The Appellant had also paid Kshs. 250,000/= in order to be eligible to take part in the nomination exercise for the position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1st Respondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters and advise him on the right way to go about the appeal. Having failed to do so we hold that the Appellant was entitled to approach the PPDT and that the PPDT therefore had jurisdiction to hear and determine the matter…” (emphasis ours)

26. Consequently, we find that PPDT Complaint E089 of 2022 was indeed filed on time. That said, the Complaint was subsequently withdrawn on 31st May, 2022 for failure to attempt to resolve the same at party level. On 30th May, 2022, the Complainant wrote a letter to the Chair of the ODM Party Disputes Tribunal which was physically delivered and received by the Respondent on 2nd June, 2022 requesting that the Tribunal hears, deliberates on and determines his Complaint but the same letter suffered the same fate as the letter dated 25th April, 2022, it never received a response from the Respondent. The Complainant has produced as evidence screenshots of text messages and an email sent on 2nd and 3rd of June, 2022 respectively requesting the Executive Director and the Legal Officer of the Respondent to assist in resolving his Complaint as well as a lady from the Respondent’s Disputes Tribunal, which all went unanswered.

27. Subsequently, on 9th June, 2022 the Complainant filed this Complaint being PPDT E092 of 2022 before this Tribunal but the same could not be acted upon until 16th June, 2022 after payment of the requisite filing fees on 15th June, 2022. Counsel for the Complainant later informed the Tribunal that the delay in paying the filing fees was occasioned by the fact that, the Complainant was trying to raise the filing fees.

28. The upshot of the above is that the Complainant has demonstrated a consistent resolve and attempt at resolving this dispute at party level which attempts were ignored severally by the Respondent and have never been acted upon causing substantial delay in resolution of the dispute. This to us is sufficient reason in of itself to justify the extension of time within which the Complainant should have filed a Complaint before this Tribunal. We are also persuaded on the basis of the Complainant’s constant determination and attempts at resolving this dispute, to overlook the Complainant’s advocates misgivings of failing to invoke the Respondent’s internal dispute resolution on time and in the right format because failure to do so would be unjust and unfair to the Complainant. We cannot also allow the Respondent, who has approached this Tribunal with unclean hands, to benefit from its wrongs of refusing and or neglecting to respond to enquiries by its members.

29. We consequently invoke the powers granted to this Tribunal under Regulation 37 of the Political Parties Disputes Tribunal Procedure Regulations 2017 and extend the time within which this Complaint is to be filed by a further 30 days from 21st May, 2022 and find that this Complaint is properly before us. We will therefore proceed to make a determination on the same on merit as below.

B. Whether the Complainant is entitled to the reliefs sought? 30. The Complainant in his undated amended Complaint, sought the following prayers, firstly that the Tribunal issues a declaration that the decision of the Orange Democratic Movement Party (ODM), to withhold the Nomination Certificate of the Complainant to contest as its nominee for the position of Member of Parliament for Starehe Constituency in the 2022 general elections is null and void, a declaration that the Respondent’s zoning arrangements in respect of Starehe Constituency parliamentary election in favour of the Jubilee candidate hence and consequent [sic] failure of issuance of the Nomination certificate for Parliamentary seat for Member of National Assembly Starehe Constituency is null and void, an order compelling the Orange Democratic Movement to issue the Nomination Certificate for Member of Parliament for Starehe Constituency to Richard Gitonga Wathanga, a declaration that the Complainant is the duly nominated candidate for the Respondent to fly the party’s ticket in the Starehe Constituency parliamentary seat in the forthcoming general elections.

31. The Complainant also made an alternative to prayer no. b above [sic] a declaration be made that the Complainant be entitled to a compensatory amount of Kshs. 250,000/= and Kshs. 2,000,000/= being payment of nomination fees and campaign facilitation respectively, an order compelling the Independent Electoral and Boundaries Commission to include the name of Richard Gitonga Wathanga in the ballot papers for the position of National Assembly Starehe Constituency, costs of the complaint and finally any other appropriate order that the honourable Tribunal may deem fit in the circumstances.

32. The Complainant avers that since there was no nomination for parliamentary elections for ODM party primaries held in Starehe Constituency for the position of Member of National Assembly and the applicant being the only candidate of the Respondent, he ought to have been nominated directly [sic]. It is also submitted on his behalf that the Respondent having advertised for the position, accepted the application for nomination together with the Complainant’s nomination fees and there being no other candidate seeking nomination of the party for the said position, the Complainant had a legitimate expectation that he would be duly nominated as the Member of Parliament, Starehe Constituency.

33. On the other hand, the Respondent through the Chair of the National Elections Board avers that the Respondent has the discretion to sponsor a candidate to vie for a particular seat in a given area; such a choice being determined by many factors such as the popularity of the candidate and terms agreed upon in a coalition agreement. She avers further that the Respondent entered into a Coalition Agreement with among other parties, Jubilee Party and that it was a term of the Coalition Agreement that the parties cede some electoral areas to each other depending on their strengths in those areas. It is the Respondent’s further allegation that factually, the seat for MP, Starehe Constituency was won by Jubilee Party in the 2017 General elections and that, that fact coupled with opinion polls conducted internally between the Respondent and Jubilee Party led to the conclusion that it was best to zone out Starehe Constituency to Jubilee Party.

34. In order to determine this issue, the Tribunal will first proceed to analyze the doctrine of legitimate expectation, which the Complainant places reliance on. The Supreme Court of Kenya set out the situations in which the doctrine is applicable in the case of Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others SC Petition Nos. 14, 14A, 14B & 14C of 2014 where it held that:‘’Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be foundedupon a promise or practice by public authority that is expected to fulfil the expectation."

35. Further in the case of National Director of Public Prosecutions v Phillips and Others. [2002] (4) SA 60 (W) para 28, Hehe J while analyzing the doctrine goes on to states as follows:“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation, include the following:i.The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification';ii.The expectation must be reasonable:iii.The representation must have been induced by the decision-maker;iv.The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate.”

36. From the two decisions it is noteworthy that there has to be a legitimate decision by a public body that is clear, unambiguous and devoid of relevant qualification which has aroused an expectation in a person or other body. In the current circumstance the Complainant avers that the action by the Respondent to accept his application for nomination and nomination fees aroused a legitimate expectation in him that the process of nomination would be conducted and that since there was no other applicant for that seat, he would have been nominated to be the ODM candidate for the member of Parliament seat. The Respondent however, qualifies this claim by placing reliance on Section 4A of the Political Parties Act which in part states as follows:4A . A political party may—a.recruit and enlist members;b.nominate candidates for elections; …

37. A reading of the above section leads to an inference that it is not mandatory for political parties to nominate candidates. This inference goes hand in hand with the Respondent’s submission that political parties have the discretion to choose whether or not to sponsor a candidate for a given electoral area. In fact, the Respondent admits that the Complainant had expressed an interest to contest for the position of Member of Parliament, Starehe Constituency on an ODM Ticket. It however states that a decision was made and communicated to all aspirants on 21st April, 2022 that the Respondent would not field a candidate for the position of Member of National Assembly Starehe Constituency. It is alleged that the decision was necessitated by terms agreed upon in a coalition agreement and opinion polls conducted internally between the Respondent and Jubilee Party, that led to the conclusion that it was best to zone out Starehe Constituency to Jubilee Party.

38. The Complainant when alleging breach of his legitimate expectation, did not make reference to any specific legal provision, be it in the Constitution of Kenya, Statutes and Regulations dealing with elections or the Respondent’s Constitution and Nomination Rules, that makes it mandatory for the Respondent to nominate a candidate for election. It is only submitted in his favour that inspired by its Constitution, the Respondent has a duty to compete with other political parties for the purpose of winning elections and forming the government by nomination and fielding candidates in all elective offices including presidential, parliamentary and civic seats. The Complainant does not however, quote the specific legal provision under which the said duty arises.

39. As such we can only find, which we hereby do, that pursuant to Section 4A of the Political Parties Act, the decision by the Respondent not to nominate a candidate for the position of Member of Parliament, Starehe Constituency was within the law and the expectation by the Claimant that since he was the only applicant for the said position, he ought to have been nominated directly [sic] fell short of the parameters of legitimate expectation as enunciated in the case of National Director of Public Prosecutions v Phillips and Others. [2002] (4) SA 60 cited above.

40. Section 38A of the Political Parties Act provides that a political party may conduct party nominations using either a direct or indirect party nomination methods. Sections 38F and 38G then go on to provide very elaborate mechanisms to be applied for either method of nomination. These sections establish the following undeniable truths;i.That for a candidate to be eligible to run for elections on any party ticket, a nomination, direct or indirect, has to be conducted; andii.That only the party can conduct a nomination exercise to identify candidates to run for various positions using its ticket.

41. Having found that the Respondent was well within its rights in deciding not to field a candidate for the position of Member of Parliament, Starehe Constituency, it then follows that no nominations were conducted and therefore no nomination certificate can be issued with respect to the said position. The Tribunal cannot compel the Respondent to issue a Nomination Certificate to the Claimant neither can it declare the Complainant as the duly nominated candidate of the Respondent, more so against a backdrop of an admission by both the Claimant and the Respondent that no nominations were conducted by the Respondent for the position of Member of Parliament, Starehe Constituency. Such a declaration would result in a serious absurdity and illegality in that the Tribunal would be inferred to have acted ultra vires and ‘’nominated’’ the Claimant since the Respondent did not conduct nominations. The Tribunal cannot also issue an order compelling the Independent Electoral and Boundaries Commission to include the Complainant’s name in the ballot papers for the reasons previously stated. Consequently, the reliefs sought by the Complainant in prayers 1, 4, 5 and 7 of the Complainant’s undated amended Complaint are not capable of being granted and the Tribunal declines to issue the same.

42. The Complainant has also sought a declaration that the zoning arrangements in respect of Starehe Constituency Parliamentary elections in favour of Jubilee Party are null and void. In his further affidavit, the Complainant alleges that the Azimio la Umoja, One Kenya Coalition must have been entered [sic] and deposited with the Registrar of Political Parties by 9th April, 2022. The Respondent also in his pleadings alleged that it entered into a coalition agreement with among other parties, Jubilee Party, with regard to the 2022 general elections under the Azimio la Umoja Banner. The Claimant having sought a declaration regarding the contents of the Coalition agreement on zoning out of Starehe Constituency, bore the burden of proving the existence of such contents. Surprisingly, no such agreement has been adduced as evidence by either the Claimant or the Respondent and the Interested Party as already established did not participate in these proceedings. Nothing, would have been easier than for the Complainant to apply to the Registrar of Political Parties to supply it with a copy of the said agreement and produce it as evidence upon which a finding on its legality or otherwise, can be made.

43. As a Tribunal we find the prayer by the Complainant seeking a declaration regarding contents of an agreement that has not been produced before us, null and void, nothing short of mischievous and distasteful and we will not delve into the analysis of the same. As a consequence, this Tribunal declines to grant prayer 2 of the undated amended Complaint in toto.

44. The Complainant included an alternative prayer in his undated amended Complaint for the Tribunal to make a declaration that the Complainant be entitled to a compensatory amount of Kshs. 250,000/= and Kshs. 2,000,000/= being the payment of nomination fees and campaign facilitation respectively. The prayer is based on the contention by the Complainant that on 16th March, 2022, he made an application for nomination for Member of Parliament for Starehe Constituency Nairobi City County, having complied with the party requirements. He then annexes copies of the application form and ‘’payment receipt’’ confirming the same as RGW 2 and RGW 3 respectively. However, a closer analysis of RGW 3 reveals that it confirms payment of annual subscription fees 16th March 2022 and not nomination fees.

45. Despite the above, the Respondent in the Replying Affidavit sworn by the Chair of the National Elections Board admits at paragraph 9 thereof that it is correct that the Complainant has expressed interest in contesting for the position of Member of Parliament, Starehe Constituency on an ODM ticket and that after a resolution was made to zone out the Constituency for Jubilee Party, the complaint was refunded the nomination fees paid. It is therefore not in dispute that the Complainant paid a nomination fee of Kshs. 250,000/- to the Respondent and the only issue is whether this amount was refunded by the Respondent as it alleges. The Complainant in his further affidavit sworn on 25th June 2022 in denying being refunded the nomination fees puts the Respondent to strict proof and avers that the Respondent has not shown how the fees were refunded to him.

46. In line with section 61 of the Evidence Act as well as the averments above, the fact that nomination fees were paid is admitted by both the Complainant and the Respondent in their pleadings and it need not be proved. What remains controverted is whether the said fees were refunded. The Respondent has alleged that it refunded the nomination fees to the Complainant but has not adduced any evidence of such a refund. Pursuant to Section 109 of the Evidence Act, it is the Respondent who wishes that this Tribunal believes that it refunded the Complainant the nomination fees, consequently the burden of proof lies with it. We find that the Respondent has failed to prove that it indeed refunded the Complainant the nomination fees and hereby order that the Respondent refunds the nomination fees paid to it by the Complainant within 14 days from the date of issuance of this judgement.

47. The Complainant had also sought a declaration that it is entitled to a compensatory sum of Kshs. 2,000,000/= as campaign facilitation. The Complainant alleges that he invested his time, energy and resources in mobilization of his supporters and in general campaigns. He also annexed photographs of a vehicle he allegedly leased and fabricated in readiness for the campaigns. He however, does not produce the lease agreement that would have evidenced how much he expended in leasing the said motor vehicle or agreements between him and those he contracted to fabricate the said vehicle. He also failed to annex evidence of payments for such services for instance through receipts or screenshot of Mpesa messages that would have assisted this Tribunal in particularizing the amounts allegedly expended in the campaign. It is settled law that special damages need not only be specifically pleaded but must also be strictly proved. In the absence of such evidence, the hands of this Tribunal cannot proceed to award the compensatory sum prayed for of Kshs. 2,000,000/= as campaign facilitation.

48. The Claimant included a final prayer that the Tribunal grants an order that it deems fit in the circumstances. It is on the basis of this prayer that the Tribunal has found it fit to analyse the Complainant’s allegation that the Respondent breached the Complainant’s right to fair administrative action as espoused under Article 47 of the Constitution by failing to give written reasons justifying its failure to nominate the applicant. It has also been submitted on behalf of the Complainant that the Respondent contravened the provisions of Sections 3, 4 (1), (2), (3), 5, 6 (1) and (2) of the Fair Administrative Action Act by failing to give written reasons why the Complainant was not issued with a nomination certificate and to supply the Complainant with such information that would be necessary to facilitate his application for an appeal or review in accordance with Section 5 of the Act.

50. It is the Complainant’s contention that the Respondent having advertised for the position, accepted the application for nomination together with the Complainant’s nomination fees and there being no other candidate seeking nomination of the party for the said position, the Complainant had a legitimate expectation that he would be duly nominated as the Member of Parliament, Starehe Constituency. It is alleged that the Respondent did not communicate its decision to field a candidate for the position in contention and that the Complainant only became aware of that decision on 30th April, 2022 through media reports. The Respondent argues to the contrary that it communicated to the Complainant its decision not to field a candidate in Starehe Constituency via a letter dated 21st April, 2022 addressed to all aspirants. The Complainant denies such communication and avers that the Respondent does not explain how the communication was done, and in the event that such communication was done, then it was not done to the Complainant. It is submitted on behalf of the Complainant that nothing would have been easier than for the Respondent to respond to the Complainant’s letter to the Executive Director of the Party dated 30th April, 2022.

51. The Complainant indeed produced a letter of 30th April, 2022 addressed to the Executive Director of the Orange Democratic Movement in which he sought to be issued with the nomination certificate or in the alternative, an explanation be given why the same would not be forthcoming. The Respondent on the other hand produced a copy of communication from the Chair of the National Elections Board of the Respondent dated 21st April, 2022 referenced Nairobi City County electoral areas and aspirants for ODM Party Primaries on 22nd April, 2022. A close analysis of the communication reveals that it only sought to clarify electoral areas where party primary elections would take place and Starehe Constituency was not one of those areas. This analysis indeed lends credence to the submission on behalf of the Complainant that the Respondent ought to have in the least, responded to the letter that sought an explanation as to why the Complainant had not been issued with a nomination certificate and no sufficient reason has been given as to why the said letter was not responded to.

52. This Tribunal has addressed a similar issue in Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No. 456 of 2017] which we quote with approval as follows: political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.’

53. We will not analyze this point further save to add that had the Respondent given a response to the enquiry made by the Claimant and given reasons for its decision not to field a candidate in Starehe Constituency as it has done through the Replying Affidavit sworn on its behalf by the Chair of the National Elections Board, then the said response would have accorded the Complainant an opportunity to make a decision as to whether he would want to file an appeal against that decision with the Respondent’s appeals Tribunal. This would have in turn led to the expeditious and timely resolution of this dispute. The Respondent instead refused and/or neglected to respond to the Complainant’s enquiry in the letter dated 30th April, 2022 and continues to ignore the said letter which to date has never been responded to.

54. It consequently behooves this Tribunal to deem it fit, in the interest of justice and fairness and in a bid to promote democracy in decision making by political parties to declare, which we hereby do, that the Respondent violated the Complainant’s right to fair administrative action as envisioned under Article 47 of the Constitution and sections 3, 4 (1), (2), (3), 5, 6 (1) and (2) of the Fair Administrative Action Act by failing to inform him of its decision not to field a candidate for the Starehe Constituency parliamentary seat and the reasons for arriving at the said decision.

C. Who should bear costs for the complaint. 55. The Complainant under prayer number 8 of the complaint prays that the costs of the complaint be provided for. The Respondent in its Replying Affidavit at paragraph 17 seeks the dismissal of the Complaint with costs and it appears then that each of the two parties is seeking costs of the complaint.

56. In the written submissions, the Claimant cites Section 27(1) of the Civil Procedure Act to argue that while awarding of costs is at the discretion of the Court, the principle of law remains that costs shall follow the event unless the court or judge shall otherwise direct. The Claimant also relies on the decision in Devram Manji Daltani V Danda [1949] 16 EACA 35 where the court held that costs are awarded to compensate a successful litigant and that such a litigant can only be deprived of his costs where his conduct has led to litigation which might have been averted. The Complainant argues that the conduct of the Respondent was reprehensible and led to litigation which could have been avoided had it done the right thing. The Respondent on its part has not submitted on why it should be awarded costs.

57. Looking at the chronology of events, the Complainant states that he applied for nomination as the Respondent’s Member of Parliament Candidate for Starehe Constituency on 16th March 2022. He says he was the only candidate for that ticket in the Constituency and for that reason, no nominations were held hence he ought to have been nominated directly. The Complainant says that he never got the nomination certificate and instead was informed after several follow ups that the Respondent would not be fielding a candidate in Starehe as the Constituency had been zoned off for its coalition partner, Jubilee Party. The Complainant says that he thereafter lodged a complaint with the Party’s National Executive Director on 30th April 2022 but never got a response until now when the Respondent has appeared and responded to the complaint before us.

58. The Respondent in its Replying Affidavit confirms that the Complainant expressed interest in contesting for the position of Member of Parliament Starehe Constituency on an ODM Ticket but after a decision was made that the party would not field a candidate in the said position, communication to that effect was made to all aspirants on 21st April 2022. The Respondent avers that this is the reason why the Complainant has never been issued with a nomination certificate. The Respondent has attached the communication of 21st April as annexure CMM1 which essentially was a communication mapping the areas which the Party would hold nominations within Nairobi Country on 22nd April 2022; Starehe Constituency was not one of them.

59. In his further affidavit, the Complainant denies receiving such communication from the Respondent and argues that nothing would have been easier than for it to respond to his letter of 30th April 2022. The Claimant argues that by the time he applied for nomination, the Respondent must have been well aware of the contents of the collation agreement with Jubilee Party.

60. It is not disputed that the Complainant applied for nomination for the said position and once the Party decided not to field candidates for that position, it would have only been right and proper to inform the Complainant formally. The notice dated 21st April 2022 is not disputed as having been issued but the Complainant says he never received it and in his letter of 30th April 2022, it is stated that he came to learn of the zoning off not from his Party but from Media Reports. The Respondent being the party alleging that it informed all aspirants has not attached any evidence of that communication. The Complainant is a longstanding life member of the Party who had not only paid the nomination fee but also given sufficient details in his application form, which the Party would have used to communicate its decision directly to him, more so a decision of this magnitude.

61. The Claimant in his letter of 30th April 2022 sought that he be given the certificate of nomination immediately or a reasonable explanation why the same would not be forthcoming. The Respondent ignored this communication and even when the Tribunal declined jurisdiction in a complaint previously filed by the Complainant for him to first pursue IDRM, the Respondent again ignored the appeal made on 30th May 2022. However, the Party in record time filed an appearance, Replying Affidavit and submissions when it was served with the current complaint. From the letter of 30th April 2022, the request by the Complainant to his party leadership is not unreasonable at all and he was even ready to settle for a reasonable explanation why he could not be given his certificate. Was it asking too much for the Party to respond to their member and explain why he was not getting the certificate? Why does the Party take membership subscription, nominations fees, email and telephone addresses of the Complainant and fail to communicate such drastic decisions that affect him?

62. We are persuaded that the aloofness of the Party officials, who only acted after they were served with the current complaint, has led to this debacle. It is true the Respondent can enter into collation agreements with other parties and make concessions to accommodate each other but in doing so, it should not trample on its Constitution and members who make up the Party. The Complainant has submitted that Article 5. 2.1 of the Orange Democratic Movement Constitution provides that a member shall have the right to, among others, receive copies of Party documents upon request and to receive information on all aspects of Party policies and activities save where such right has been lawfully restricted. The Complainant also submits that Article 4. 3.1 provides for supremacy of party members and it is our view that these entitlements are not taken away or suspended by the Respondent’s signing of a coalition agreement with other parties.

63. We are convinced that this matter would not have escalated to this level had the Respondent taken a minute to specifically inform its member why he was not getting a nomination certificate. This is a dispute primarily catalyzed by the Party’s disdain for its member, having found a more suitable suitor along the way and we highly disapprove of this behavior. Political parties are required by law to promote democracy and this involves upholding its own constitution regarding the rights of members, which the Respondent has failed to do in this case. For these reasons, and the Complainant having partially succeeded in the complaint, we hereby order that the Respondent does bear the Complainant’s costs of this complaint.

Disposition 64In light of the foregoing, our final orders are as follows:i.The amended Complaint partially succeeds in as far as the Complainant has proved that he paid the nomination fee and the Respondent did not adduce any evidence of refund as it alleged and that the Respondent violated his right to fair administrative action under Article 47 of the Constitution and sections 3, 4 (1), (2), (3), 5, 6 (1) and (2) of the Fair Administrative Action Act.ii.A declaration is hereby issued that the Respondent violated the Complainant’s right to fair administrative action guaranteed under Article 47 of the Constitution and sections 3, 4 (1), (2), (3), 5, 6 (1) and (2) of the Fair Administrative Action Act by failing to inform him of its decision not to field a candidate for the Starehe Constituency parliamentary seat and the reasons for arriving at the said decision.iii.An order is hereby issued directing the Respondent to refund the nomination fees paid to it by the Complainant in the sum of Kshs. 250,000/= within 14 days from the date of this judgement.iii.The Respondent shall bear the costs of the Complainant in these proceedings.

65It is so Ordered.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JUNE, 2022. JESSICA M’MBETSA (PRESIDING MEMBER)SAMUEL MBIRIRI NDERITU, FCIARB (MEMBER)DR. ADELAIDE M. MBITHI (MEMBER)