Agnes Nailentei Shonko Wachira v Chege & another [2022] KEPPDT 1049 (KLR) | Party Nominations | Esheria

Agnes Nailentei Shonko Wachira v Chege & another [2022] KEPPDT 1049 (KLR)

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Agnes Nailentei Shonko Wachira v Chege & another (Complaint E020 (NRB) of 2022) [2022] KEPPDT 1049 (KLR) (Constitutional and Human Rights) (2 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1049 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E020 (NRB) of 2022

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

May 2, 2022

Between

Agnes Nailentei Shonko Wachira

Complainant

and

John Njoroge Chege

1st Respondent

United Democratic Alliance

2nd Respondent

Judgment

Introduction 1. This Complaint was filed on the 22nd April 2022 together with a Notice of Motion Application presented under certificate of urgency. The Complainant is essentially challenging the validity and legality of the nomination exercise that was conducted on 14th April 2022 by the National Elections Board (NEB) of the 2nd Respondent for the position of party flag bearer for Member of Parliament for Kasarani Constituency.

2. The matter was first placed before the Tribunal on the 24th April 2022 when the following directions were issued:-i.That the Notice of Motion application dated 22nd April 2022 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.That the Complaint and Notice of Motion application dated 22nd April 2022 be served upon the Respondents by 10am on 25th April 2022. iii.That the Respondents to file their responses to the Complaint and Application by close of business on 26th April 2022. iv.That the Complainant to file Further Affidavit if need be together with Written Submissions on entire Complaint by close of business on 2April 7, 2022v.That the respondents to file and serve their Written Submissions on entire Complaint by close of business on April 28, 2022v.That the Complaint be heard by way of highlighting of written submissions before Nairobi A Bench on April 28, 2022 at 10am virtually via video link.v.That this being a dispute involving party primaries with strict timelines, all parties to ensure strict observance of the directions herein and the complaint to proceed for hearing without fail as scheduled based on documentation that will be on record by the stated hearing date.v.That pending inter partes hearing of the application simultaneously with the Complaint, interim orders are hereby issued restraining the 2nd Respondent whether by itself, its organs and or officers from issuing the 1st Respondent with a final certificate of nomination and forwarding the name of the 1st Respondent to the IEBC as the party’s flag bearer for Member of Parliament, Kasarani Constituency.

3. That on April 28, 2022 when the matter came up for hearing, all parties had complied with our directions and were ready to proceed apart from the Counsel for the 2nd respondent who indicated that she had just filed a notice of appointment and asked to be allowed time to file and serve the responses and submissions by close of business on the same date April 28, 2022.

4. Notwithstanding our previous directions on strict compliance, we considered the circumstance presented and the need to allow all parties an opportunity to be heard. Balancing the interests of justice to all parties and the tribunal’s heavy work load and the strict timelines for dispute resolution, we directed as follows in the presence of and with the concurrence of all parties’ counsels:-i.That the 2nd respondent to file and serve their responses to the Complaint by close of business on April 28, 2022ii.The Complainant to file and serve a Further Affidavit if need be together with Written Submissions by 11am on April 29, 2022iii.The Respondents to file and serve Written Submissions by 11am on April 30, 2022iii.The Tribunal shall consider all parties pleadings and submissions and deliver Judgment on May 2, 2022 at 4pm based strictly on documents that will be in the portal at 11am on April 30, 2022.

5. That as at close of business on April 30, 2022, no response had been filed on behalf of the 2nd Respondent. The 1st Respondent on the other hand filed and relied on his Grounds of opposition, Replying Affidavit and Written Submissions.

6. The Complainant was represented by Mr. Munaawa Advocate, the 1st respondent was represented by Mr. Kariuki Karanja & Mr. Mureithi Advocates, and the 2nd Respondents were represented by Ms. Wanjiku Thiongo Advocate.

Complainants Case 7. The Complainant and the 1st Respondent are registered members of the United Democratic Alliance (UDA) party, the 2nd Respondent. They were both cleared by the 2nd Respondent party to participate as candidates for nomination for the position of Member of Parliament Kasarani Constituency.

8. On the 14th April 2022 they contested for the nomination which was by secret ballot where registered members of the party particularly those registered at Kasarani Constituency voted for their preferred candidates for the position of Member of Parliament Kasarani Constituency.

9. It is the complainant’s case that the exercise was marred by electoral malpractices and irregularities which rendered it unfair, and the results unverifiable.

10. The complainant has pointed out the following malpractices she experienced at various polling stations within Kasarani Constituency:i.She claims that the Presiding Officer at Ruai Girls Polling Station did not turn up to conduct the voting exercise and that whereas the constituency has about 142,000 registered voters going by the IEBC Register of 2017, the total number that was used to declare the 1st Respondent the winner was about 5,000 who are said to have voted. That majority of voters were suppressed and not allowed to vote.ii.She alleges that at St. Dominic Polling Station in Mwiki Ward, the 1st and 2nd Respondent had more than 50 agents contrary to the requirement that they should have 2 agents.iii.She claims that since every agent was being cleared to vote ahead of the others, the 1st Respondent facilitated people disguised as his agents and armed with badges to jump the line, cast their votes and give their votes to someone else to do the same. She claims that this conduct which took place in all the polling stations at Kasarani constituted an irregularity and it took away any equality of arms from the rest of the candidates who had only two agents per polling station.iv.That at the polling station called PCEA Seasons, the Presiding Officer by the name Esther, facilitated multiple voting deliberately failing to mark the voters who had already voted by the indelible ink between their fingers.v.She also claims that the 1st Respondent was declared a winner without any official results and efforts to get the results form have been rendered futile as none of the party officials is willing to provide them.vi.She alleges that during the counting process, voters were not allowed to witness the process and her agents were locked out and the counting process was done without them.vii.She also claims that in Ruai Ward which has 9 polling stations, the party did not provide any polling officers who they had volunteered as aspirants for purposes of getting credible results.viii.She further claims that the voting was marred with violence, locking out voters and premature counting of votes. That in Njiru Ward Jehovah Jireh Primary Polling Station there was violence for the most part of the day causing the presiding officer and polling clerks to fail to carry out their duties as expected.ix.That Transportation of polling materials was accompanied by the agents of the 1st Respondent only in exclusion of the other agents of the other aspirants. This compromised the chain of command and credibility or integrity of ballot boxes and papers.x.She also claims that there was a deliberate exercise to suppress the voter turnout in specific areas perceived as her strongholds by the 1st Respondent who she claims planted goons at the various polling stations who would send away people from the polling station telling their names were not on the register.xi.She also claims that at Mwiki Secondary School polling station lights were switched off leading to ballot stuffing which rendered the process devoid of transparency.xii.That at the Jehova Jire polling station, the voter register was missing so many names. A good number of people such as one Peris Gachumu (clay city ward aspirant) who has repeatedly voted in the constituency was turned away on excuse that her name was missing in the register.xiii.At Youth Empowerment Centre (CIEKO) Polling station, violence erupted causing the process to be stopped, and police officers to come to quell rowdy youth who manhandled the MCA aspirant known as Moses Kamene Mwaura and tore his clothes. Voting was stopped prematurely and yet results were declared in favor of the 1st Respondent.xiv.She adds that the Presiding officers, shifted from the Party voter register to IEBC register as per their convenience to lock out people they did not want to vote. This discouraged many people who were disoriented and frustrated by the entire process.xv.She claims that most of the Presiding officers were loyal to the 1st Respondent and allowed him to perform his manoeuvres and machinations to disadvantage the Complainant.xvi.That the 1st Respondent strategically planted goons and rowdy youths at every polling station who were not anybody’s agents but kept harassing every candidate who wanted to see how the exercise was going on.xvii.She also claims that she was blocked by these goons who harassed her and said she had come to bribe voters and could therefore not get in to any polling station.xviii.She also claims that the management of the polling exercise was taken over by one of the MCA aspirants, who appointed his friends and relatives as presiding officers and polling clerks of his choice.xix.She contends that most polling stations in Kasarani Constituency were opened very late after 10. 30am. Drumvell Polling station was opened at 2. 30pm, while Arthi Polling station was opened shortly after 12. 00am after most voters had been demoralised and left the polling stations.xx.As a ripple effect of the late opening many of her voters did not vote as it clearly appeared that there was no activity at the designated polling stations.xxi.That voting at Nile Road polling station was disrupted by the MCA aspirant who is known to the 2nd Respondent who stormed the station with rowdy youth and harassed the presiding officer causing the polling station to be closed prematurely and effectively locking many of her voters out of the process.

11. Aggrieved and dissatisfied by the entire process, she lodged a dispute with the party’s Electoral and Nomination Dispute Resolution Committee (EDRC) vide Application No. 63 of 2022. That the application was heard and EDRC dismissed it for lack of evidence.

12. The Complainant maintains that the entire process, including nomination, and the dispute resolution mechanism was rigged and stage managed and was not intended to deliver justice, and that the entire nomination exercise was not a free, fair and verifiable process.

13. For these reasons the Complainant seeks the following orders:-i.An order for injunction restraining the 2nd Respondent whether by itself, its organs and or officers from issuing the 1st Respondent with a final certificate of nomination and forwarding the name of the 1st Respondent to the IEBC as the party’s flag bearer for Member of Parliament Kasarani Constituencyii.A declaration that the nomination exercise conducted on the 14th April 2022 and the consequential declaration of the 1st Respondent as the winner was shambolic and was neither free nor fairiii.An order for nullification of the 2nd Respondent’s nomination process in respect of party flag bearer for Member of Parliament, Kasarani Constituencyiv.An order that the 1st Respondent organizes fresh free, fair and verifiable nominations for party flag bearer for Member of Parliament Kasarani Constituency within reasonable time and in strict adherence to the law.

The 1st Respondent’s case 14. The 1st Respondent filed his response to the complaint herein vide his affidavit sworn on the April 26, 2022. He also filed Grounds of Opposition to the claim.

15. It is the 1st Respondents case that he was nominated by the constituents of Kasarani Constituency as their preferred candidate to run for the position of Member of Parliament for Kasarani Constituency on the UDA party ticket after the nomination exercise that took place on the April 14, 2022.

16. He contends that after being nominated, the Complainant filed EDRC Application No.63 of 2022 wherein he was named as a Respondent. That the said claim was heard and dismissed for lack of evidence.

17. The 1st Respondent claims that the Complainant has reproduced and filed the same complaint she filed at the EDRC and he wants this Tribunal to make a finding that the allegations raised by the Complainant have been fully determined by EDRC, and that there is no appeal that has been preferred against the said determination.

18. It is the 1st Respondent’s submission that, it was irregular for the Complainant to adduce new evidence in form of affidavits and a photo which material was not made available to the EDRC. According to the 1st Respondent, this went against the rule of exhaustion of the disputes resolution mechanism. He further claims that the complainant has dumped electronic evidence i.e. photos and videos at the Tribunal without following the laid down procedures on production of electronic evidence.

19. The 1st Respondent has denied in toto all allegations raised in this claim and he maintains that Kasarani Constituency was not an isolated case as same scenarios were replicated across many parts of the Country during this nomination exercise, that voters cannot be compelled to vote, and that since the voting was conducted by secret ballot, it was not possible to know how the people voted. That it is not therefore true that some people were turned away because they did not support any specific candidate.

20. The 1st Respondent has further denied the allegations that he had brought many agents to the polling stations and that there was no evidence by the Complainant to substantiate the same. He adds that it was not a requirement for one to have a badge in order to vote at any particular polling station and thus the issue of his agents exchanging badges cannot stand.

21. The 1st Respondent maintains that every voter who turned out to vote was given ample time to do so. He adds that the Complainant was not the only female candidate and he has named one Momeri Hellen Akeri who is not a party to this claim.

22. It is the 1st Respondents case that the complainant has not produced any evidence to support the allegations she has raised in the complaint specifically on the issue of violence and agents being locked out of polling stations.

23. He has challenged the affidavits attached to the complaint in support thereof and claims that the said affidavits belong to agents who were acting for named Members of County Assembly (MCA) and none was an agent of the Complainant.That the affidavits touched on rivalry of MCA’s and their local politics and the said contestants are not parties to the current dispute.

24. He also challenges the witnesses of the complainant and maintains that they have not proved that they were registered voters in Kasarani Constituency. He maintains that even if the allegation by the complainant was taken to be true that there was violence, there is no evidence that the said violence only affected or disadvantaged the Complainant.

25. On the issue that there were some names missing from the voter register, the 1st Respondent maintains that he or his agents should not be blamed as they are not custodians to the said registers nor in control of it. He also denies the allegation that there were goons that were harassing candidates and maintains that Kenyans have become vigilant to avoid situations of bribery as has been evidenced in most parts of the Country and if the Complainant was confronted she must be able to identify such people and know under what circumstances she was attacked.

26. It was submitted that the allegations by the Complainant that the nomination results were not made available to the contestant is not true because the Kasarani constituency nomination results shown as Attachment JN5 in the 1st respondents affidavit show the Complainant emerged 5th in the race after garnering a total of 345 votes while the 1st respondent emerged the winner after garnering 3171 votes.

27. The 1st Respondent maintains that the he won the nominations fairly and in a just manner and that the allegations by the Complainant are baseless and without merit. He prays that the Complaint be dismissed with costs to him.

The 2nd Respondent’s Case 28. The 2nd Respondent did not file any documents in response to the claim despite having been represented in court by Counsel who sought and obtained the Tribunal’s indulgence to be accorded an opportunity to file the same.

Issues for Analysis and Determination 29. Flowing from the parties’ pleadings and submissions, we have isolated the following issues for determination:-i.Whether this Complaint offends the provisions of Section 7 of the Civil Procedure Act/Whether this Tribunal has concurrent jurisdiction with the political party’s Internal Dispute Resolution Committee/Whether this dispute can be re-litigated afresh notwithstanding the same having been heard and determined by the Electoral and Nominations Dispute Resolution Committee.ii.Whether this Tribunal can admit fresh evidence that was not availed at the party’s Electoral and Nominations Dispute Resolution Committee.iii.Whether the Complaint is merited.

Whether this Complaint offends the provisions of Section 7 of the Civil Procedure Act/Whether this Tribunal has concurrent jurisdiction with the political party’s Internal Dispute Resolution Committee/Whether this dispute can be re-litigated afresh notwithstanding the same having been heard and determined by the Electoral and Nominations Dispute Resolution Committee 30. The 1st Respondent’s argument is that this Tribunal does not have concurrent jurisdiction with the political party’s internal dispute resolution mechanism (IDRM). He relied on the finding of the Court of Appeal in the case of Hezron J.Opiyo Asudi & Anor vs. Peter Anyang’ Nyongó & 6 Others 2017 eKLR, where the court stated as follows:-“…29. What then was the intention of the legislature in introducing section 40(1) (fa) of the Act" The object is discernible from the memorandum of objects and reasons of the Political Parties (Amendment) Bill, which was as follows:“Clause 19 seeks to amend section 40 of the Principal Act by adding disputes arising out of party primaries in order to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes.” 30. Given the above clear intent of the legislature, we cannot see how it can rightly be argued that disputes arising out of party primaries were intended to be commenced at the PPDT, without having to first, submit such disputes to a party’s IDRM. If that were the case, it would be tantamount to giving concurrent jurisdiction to several bodies, including the Independent Electoral and Boundaries Commission, which under Article 88(4) (e) of the Constitution, is empowered to settle disputes relating to or arising from nominations. In order to realize the objective of the aforesaid amendment, which was to “to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes”, we think that it is only proper that all disputes arising out of party primaries be commenced at party level. We think the legislature may have inadvertently failed to include paragraph (fa) under subsection (2) of section 40…”

31. To put the Hezron Opiyo Case into context, it is appreciable that prior to the 2022 amendments to section 40 of the Political Parties Act 2011, section 40(fa) of the then Political Parties Act clothed this Tribunal with the mandate to hear and determine disputes arising out of party primaries. Section 40(2) thereof, however, excluded paragraph (fa) from the categories of disputes that were to be subjected to the party’s IDRM prior to moving the Tribunal. The main question for determination in the Hezron OpiyoCase was whether this Tribunal had jurisdiction to hear and determine disputes arising out of party primaries without first subjecting them to IDRM. The Court of Appeal found that resolution of disputes arising out of party primaries ought to be commenced at the party level prior to moving the Tribunal. This remains sound law and the various determinations by the Court of Appeal in this regard in fact informed the 2022 amendments to Section 40(2) of the Political Parties Act which now expressly includes paragraph (fa) amongst disputes requiring IDRM. Suffice it to note that paragraph (fa) was also amended to read disputes arising out of nominations thus doing away with the term party primaries.

32. We therefore agree with the 1st Respondent to the extent that this Tribunal does not have concurrent jurisdiction with the IDRMs for political parties. Indeed Section 40 of the Political Parties Act (PPA) provides on jurisdiction of the Tribunal as follows:-1. The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa).disputes arising out of party nominations

2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (emphasis ours).

33. What amounts to an attempt at IDRM, however, depends on the circumstances of a particular case. This Tribunal has considered the matter previously and issued guidelines in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others(Nrb PPDT Complaint No. E002 of 2022) wherein the Tribunal held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that, among others:a.The unavailability of the organ to resolve disputes;b.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;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.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.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. ”

34. Turning to the facts and circumstances of this case, it is not in dispute that the dispute subject hereof was subjected to the 2nd respondent’s IDRM being the EDRC vide Application No.63 of 2022. The EDRC heard all the parties and rendered its determination on 18th April 2022. The subject ruling has been produced by the parties. There is therefore no doubt in our mind that the Complainant subjected the subject matter of this Complaint to the party’s IDRM. This Complaint was filed on April 22, 2022 after the conclusion of the party’s IDRM processes. In the circumstances, we are properly ceased of jurisdiction to hear and determine this Complaint.

35. It is the 1st Respondent’s further argument that the EDRC having delivered its determination in the matter, this Complaint offends the provisions of section 7 of the Civil Procedure Act.

36. It is instructive that section 7 of the Civil Procedure Act provides as follows:-“…No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court…”

37. Article 162 of the Constitution of Kenya 2010 provides on systems of court to include superior courts (Supreme Court, Court of Appeal, and High Court), and subordinate courts established under article 169 of the Constitution of Kenya. Such subordinate courts include the Magistrates Courts, the Kadhis Courts, the Courts Martial, and any other court or local tribunal established by an Act of Parliament. With due respect to the 1st Respondent, the 2nd Respondent’s EDRC is not a court and therefore section 7 of the Civil Procedure Rules does not apply to its proceedings. In any event, as we have already appreciated, the EDRC and this Tribunal does not have concurrent jurisdiction. The tribunal’s jurisdiction only checks in after demonstration of an attempt to subject the matter to IDRM.

38. It has further been argued on behalf of the 1st Respondent that the party’s EDRC decision is in any event final by virtue of the provisions of Article 32(viii) of the party constitution (March 2022 edition) which provides that the decisions of the Committee shall be final. According to the 1st Respondent, the Committee having resumed jurisdiction and rendered its final and binding decision, the Complainant could not file the same Complaint before this Tribunal as a Complaint but only as an appeal against the EDRC decision.

39. Jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. In the context of this Tribunal we have already observed that our jurisdiction is circumscribed by article 169 (1) (d) of the Constitution as read with Sections 40 and 41 of the Political Parties Act, 2011. Section 40(1)(fa) of the PPA as read together with 40(2) already recited above is express that the Tribunal shall determine disputes arising out of party nominations after reference to the party’s IDRM.

40. Our view on article 32 of the 2nd Respondent’s constitution (March 2022 edition) is that contrary to the 1st Respondent’s submissions, the provision does not oust the jurisdiction of this Tribunal to consider and determine matters that have been subjected to the EDRC. The constitution of a political party is like a social contract or agreement between the party and its membership. Political parties cannot in their constitutions or agreements seek to rubbish a statutory provision in the statute and effectively oust the jurisdiction of this tribunal. In Lee –V- The Showmen’s Guild of Great Britain (1952) 2 QB 329 (C. A) Quoted in (Niazsons K Ltd –v- China Road & Bridge Corporation Kenya (2001) eKLR.“If parties should seek by agreement to take the law out of the hands of the court and put it into the hands of a private tribunal without any recourse at all to the courts in the case of error of law then the agreement is to that extend contrary to Public Policy and Void.”

41. The 1st Respondent has further submitted that the Complaint herein ought to have been filed as an appeal against the decision of the EDRC. It is noteworthy that Section 40(1) of the PPA expressly refers to ‘disputes’ or ‘appeal’ that the Tribunal is mandated to determine. The disputes include those listed under Section 40(1) sub sections (a), (b), (c), (d), (e) and (fa) of the PPA. Section 40(1)(f) of the PPA on the other hand refers to ‘appeals’ arising out of decisions of the Registrar of Political Parties. Our interpretation of these provisions is that the Tribunal’s mandate to determine disputes categorised thereunder is one that is original. Even though the IDRM decisions are often times subjected to the Tribunal to establish legal compliance, the Tribunal does not exercise an appellate jurisdiction over them within the strict legal context of what an appeal is understood to mean. Had the legislature intended that the Tribunal sits as an appellate organ against IDRM decisions, nothing would have been easier than to state so. Suffice it to note that different political parties have provided for diverse methods of dispute resolution within their constitution including mediation, negotiation, establishment of dispute resolution organs, amongst others and it would therefore be impracticable to confine the parties to a strictly appellate Tribunal mandate. The law is however express that the appellate jurisdiction of the Tribunal lies with respect to appeals from the decisions of the Registrar of Political parties.

42. Indeed, pursuant to the stated provisions of Section 40(1) on disputes and appeal, the Tribunal has embraced two major case types/categories being Complaints (Disputes) and Appeals. Disputes listed under Section 40(1) sub sections (a), (b), (c), (d), (e) and (fa) of the PPA are lodged in form of a Complaint between the parties mentioned thereunder. On the other hand, ‘appeals’ arising out of decisions of the Registrar of Political Parties are lodged as an Appeal. The PPDT (Procedure) Regulations 2017 have made provisions on form and contents of a Complaint and Appeal within the stated context. We are therefore not persuaded by the 1st Respondent’s interpretation that our jurisdiction over IDRM is only appellate.

43. In light of the foregoing, our finding is that this Tribunal does not have concurrent jurisdiction with the political party’s IDRM and that this dispute can be re-litigated afresh notwithstanding the same having been heard and determined by the EDRC. We further find that this Complaint does not offend the provisions of Section 7 of the Civil Procedure Act.

Whether this Tribunal can admit fresh evidence that was not availed at the party’s Electoral and Nominations Dispute Resolution Committee 44. The 1st Respondent has challenged the Complainant’s reliance on evidence that was not produced before the party’s EDRC. The evidence includes pictorials, electronic evidence and affidavits that were not placed on record before the EDRC. The 1st Respondent has further submitted that the electronic evidence in form of recorded videos were also not produced before this Tribunal in accordance with the law. The Complainant on the other hand has attempted to explain that he attempted to produce the video evidence before the party’s EDRC in vain as the online portal for submission of evidence did not work.

45. We have already found that this Tribunal exercises original jurisdiction over disputes that it is mandated to determine provided the dispute has been subjected to the political party’s IDRM. Accordingly, it is our considered view that nothing stops the Complainant from filing additional evidence that was not availed at the party’s IDRM provided that the same is presented in accordance with the law and served upon all the parties to the dispute in good time to allow them an opportunity to respond to the same.

46. We note that the specific evidentiary material in contention are the photographs, videos and the 5 affidavits sworn on April 23, 2022 by the Complainants’ witnesses namely, John Mwangi, David Mbugua, Teresa Muringe Nginga, Nixon Gikundi Wilfred, and Beatrice Wambui Kamau.

47. With respect to pictures and video evidence produced, we note that the Claimant did not file a Certificate of Production of Electronic Evidence. We accordingly agree with the objection raised and find that these electronic material should not in the circumstances form part of evidence in this proceedings. We are in this regard guided by the finding in the case of Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR, where the court stated:-“…The CD video recording in the instant case ought to have the certificate that will confirm its authenticity and integrity before admission as such evidence shall also establish the validity and integrity of the election process in these proceedings….The certificate is mandatory requirement in the absence of which the CD video recording cannot be admitted as evidence. The objection to production of the CD video recording is upheld. It shall not form part of the evidence in these proceedings…”

48. However, as regards the affidavits sworn by the 5 witnesses, nothing precludes us from considering the same. They were filed on April 23, 2022 and served upon the parties who had an opportunity to respond thereto. In fact, the 1st respondent has raised various issues challenging the same in response thereto and which issues we will consider.

49. In a nutshell, it is our finding under this head that this Tribunal can admit fresh evidence that was not availed at the party’s EDRC.

Whether the Complaint is merited? 50. The Complainant has challenged the nominations that were conducted by the party on April 14, 2022. Various illegalities have been pleaded in the Complaint and we have already highlighted the same in our summary of the Complainant’s case above. The Complainant has pleaded at paragraph 5(viii) of the Complaint that the 1st Respondent was declared winner without any official results and that efforts to get a result form have been rendered futile as none of the party officials is willing to provide the same. It is thus claimed that there was no free, fair, and verifiable nomination process.

51. The 1st Respondent on the other hand responded by stating that it is not true that no results were declared, that the Complainant intentionally refused to disclose results due to his dismal performance. That as a matter of fact, the 1st Respondent produced a Form 5A titled UDA Member of National Assembly Nomination Results at the Polling Station which showed that the Complainant garnered 345 votes against the 1st Respondent’s 3,171 votes.

52. As we consider issues raised by parties to this nomination dispute, we are mindful that nomination, just like an election, is a process. Article 81 of the Constitution of Kenya 2020 is the constitutional threshold against which the conduct of elections is to be measured, to determine whether it meets established standards of a democratic franchise. Section 83 of the Elections Act, 2011 provides:“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election” [emphasis supplied].

53. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court stated:-“[210B]In this case, as in other election matters coming up before the Courts, the question as to the nature or extent of electoral irregularities, and as to their legal effect, repeatedly arises. The crisp issue is: “how do irregularities and related malfunctions affect the integrity of an election" …

213. The Court observed that the practical realities of election administration are such that imperfections in the electoral process are inevitable; and on this account, elections should not be lightly overturned, especially where neither a candidate nor the voters have engaged in any wrongdoing…

217. If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities.

218. Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election. In this regard, we stand on the same plane as the learned Judges in Morgan, Opitz and Nana.

217. …Examples of irregularities of a magnitude such as to affect the result of an election, are not however, closed…”

54. In Raila Odinga vs. IEBC (2013) eKLR the court in declining to nullify the outcome of 2013 General elections stated:-“…A court is to consider the effect of the alleged irregularities on the election results before nullifying an election. It is only upon a finding that the irregularities proven affected the declared election results that a court will nullify an election...”

55. Applying the law and the reasoning in the above cases, we ask ourselves three fundamental questions. First, have the irregularities in this matter been proven?Secondly, if proven, are they such that they would affect the results of the nomination?

56. In consideration of the question whether the irregularities in this matter have been proven, we are left to consider the 5 witness affidavits filed by the Complainant given that we have already found that the electronic evidence was not properly produced. As already observed, the 1st Respondent has challenged the witness affidavits on three main grounds. First, that the deponents thereto were not agents of the Complainants and should therefore not give evidence on his behalf. Secondly, that the deponents who claim that they are voters have not produced evidence to that effect, and thirdly that there was no evidence to support the various allegations that were made. The mere fact that the 5 witnesses were not agents of the Complainant does not disqualify them from being competent witnesses to events that they actually witnessed. This averment is in our opinion neither here nor there. As regards the failure of voters to attach their identification, even if we were to factor this, three affidavits still remain on record to provide a witness account of what transpired in various polling stations.

57. We have reviewed the witness affidavits and the record and we note that various allegations relating to violence at various polling stations, locking of the Complainant’s agents out of the process, manipulation of the process using the 1st Respondent’s agents etc, have not been proven. Mere statements have been made without substantiation.

58. Be that as it may, we also acknowledge that certain irregularities alluded to by the Complainant and his witnesses were not controverted by the 1st Respondent. For instance, the allegation of missing names in the register or use of different registers (which the 1st Respondent responded to by stating that he was not in control of the register), the allegation that some voters were blocked from entering some polling stations (the Claimant’s averment in this regard has been corroborated by all the 5 witnesses who went to the polling stations and the same is uncontroverted by the 1st Respondent), allegation of polling stations opening late and closing without allowing people already in queue to vote but instead engaging the police to disperse the voters (deposed to in the affidavits by the witnesses and uncontroverted by the 1st Respondent), the allegation of introduction of a female aspirant who was not known to be in the contest in the ballot (copy of ballot forms part of the record and is not denied by the 1st Respondent), amongst others. These irregularities have in our opinion been substantiated.

59. Having found that some irregularities were actually proven, we now turn to determine whether such irregularities would affect the results of the nomination. This leads us to these fundamental questions - What were the results of the nomination exercise? Were the results, if any, declared? The Complainant pleaded as already highlighted above that no results were declared. The 1st Respondent on the other hand maintain that results were declared and that the Claimant has failed to disclose the same for the reason that he performed dismally. We find ourselves in a catch twenty two situation as we are only left with the Complainant’s word against the 1st Respondent’s word on this very fundamental issue. The 2nd Respondent would have been better placed to file official results that were declared in the nomination exercise but for reasons unknown to this tribunal, the 2nd Respondent filed no response in this matter.

60. We note that the only record of results before us is a Form 5A produced by the 1st Respondent. It is titled Member of Parliament Nomination Results at the polling station. Meaning that the form is used to input results at a polling station. Further, even though the form is stamped ‘UDA Constituency Returning Officer’, the author of the subject form and his/her identification details have not been disclosed. It is not clear what the results in the 27 polling stations alluded to in the form were, where the same were recorded, and how tallying was arrived at. These are in our opinion grave discrepancies that make it impossible for the Tribunal to rely on the form as the official nomination result. In essence, there are no official verifiable results that have been produced. The Tribunal is thus unable to assess the impact of the irregularities, if any, on unverifiable results. The essence of an election is the results and whereas election is a game of numbers, the numbers have to be accounted for. This has not been done in this case notwithstanding that the Complainant pleaded that there were no official verifiable results.

61. Taking into consideration the totality of the circumstances of this case, we agree with the Complainant that there was no free, fair and verifiable nomination process. We accordingly find that the Complaint is merited.

62. Costs ordinarily follow the event and we find no reason to depart from this position given the circumstances of this case. Costs are accordingly awarded to the Complainant against the 2nd Respondent.

Disposition 63. In light of the foregoing, we order as follows:- i.An order for injunction be and is hereby issued restraining the 2nd Respondent whether by itself, its organs and or officers from issuing the 1st Respondent with a final certificate of nomination and forwarding the name of the 1st Respondent to the IEBC as the party’s flag bearer for Member of Parliament Kasarani Constituency.

ii.A declaration be and is hereby issued that the nomination exercise conducted on the 14th April 2022 and the consequential declaration of the 1st Respondent as the winner was neither free, fair nor verifiable.iii.An order is hereby issued nullifying the 2nd Respondent’s nomination as the party’s flag bearer for Member of Parliament, Kasarani Constituency in respect of the nominations that were conducted on 14th April 2022. iv.The 2nd Respondent is hereby ordered to conduct fresh nominations for the party’s flag bearer for position of Member of Parliament, Kasarani Constituency in accordance with the party Constitution and Nomination Rules.

64Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF MAY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………………(MEMBER)RUTH WAIRIMU MUHORO…………………………...(MEMBER)