Cheluget v Uda National Elections Board & 2 others [2022] KEPPDT 1040 (KLR)

Cheluget v Uda National Elections Board & 2 others (Complaint E056 (NRB) of 2022) [2022] KEPPDT 1040 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1040 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E056 (NRB) of 2022

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

May 12, 2022

Between

Boaz Kiprop Cheluget

Complainant

and

UDA National Elections Board

1st Respondent

United Democratic Alliance Party

2nd Respondent

George Washington Karani

3rd Respondent

Judgment

1. The Claimant and the 3rd Respondent are members of the 2nd Respondent. They were cleared by the 2nd Respondent to contest for the position of Member of National Assembly for Ruaraka Constituency. The nomination were conducted on 14th April 2022, and the Complainant was declared the winner and issued with a Provisional Certificate. The 2nd Respondent informed the Complainant on 30th April 2022 that the Nomination Certificate was issued to the 3rd Respondent and his name had already been forwarded to IEBC.

2. Aggrieved by the 2nd Respondent’s decision, the Complainant filed this complaint on 2nd April 2022 under certificate of urgency accompanied by a Notice of Motion application supported by the supporting affidavit of the Complainant.

3. The Complainant has sought the following reliefs from this Tribunal:-i.A declaration be made that the decision of the United Democratic Alliance (UDA) party to issue the nomination certificate for Ruaraka Constituency to George Washington Karani, the 3rd Respondent herein, is illegal and therefore null and void.ii.An order to issue directing the 1st and 2nd Respondent’s to issue the nomination certificate for Ruaraka Constituency MP candidate on the United Democratic Alliance (UDA) party to Dr. Boaz Chelugetii.An order to issue to the interested party to accept the name of Dr. Boaz Kiprop Chelungat as the Ruaraka Constituency MP candidate on the United Democratic Alliance (UDA) party.ii.The costs of this complaint be borne by the 1st, 2nd and 3rd Respondent jointly and severally.

4. Pursuant to the directions that were issued by this Tribunal in light of the strict timeline for resolution of disputes arising out of nominations, parties exchanged their pleadings and written submissions and directions were given on delivery of Judgment.

5. The Complainant was represented by Nelson Otieno & Associates. The 1st and 2nd Respondent was represented by H&K Law Advocates. The 3rd Respondent was represented by Khaminwa & Khaminwa Advocates.

The Complainant’s Case 6. The Complainant is a registered member of UDA Party and was a candidate seeking nomination for member of National Assembly for Ruaraka Constituency scheduled for the 14th April 2022.

7. The primaries nomination was conducted on the 14th April 2022 by way of universal suffrage where the complainant was announced as the winner with a total of 1287 votes against the 3rd Respondent who gathered 1054 votes. He was subsequently issued with a provisional certificate. He was informed that the party’s National Election Board would later present him with the Nomination Certificate in a week’s time and this would be communicated to him.

8. He kept on checking with the party as to when he would be issued with the Nomination certificate with no success as his calls and messages went unanswered. After almost a week of trying to reach out to the party with little success, he had to fly out of the country to take one of his kin for treatment in South Africa and he instructed his agent to follow up on the nomination certificate on his behalf.

9. The complainant’s agent upon severally making inquiries at the party’s national election board office but with no proper answers instructed an advocate to write a complaint. The advocate wrote a letter to the National Elections Board on 22nd April 2022 generally raising a complaint as to the delay in issuing the nomination certificate and made a request that the same be issued without any further delay to avoid confusion among party members. The advocate visited the National Election Board offices on the same day where he met the NEB chairman and the chairman issued him with another provisional certificate dated 22nd April 2022 with an assurance that the Nomination Certificate would be issued when the party would be issuing all the certificates to the prospective winners on the 27th April 2022 by the party leader.

10. On 27th the Complainant sent his agent to represent him and pick the nomination certificate on his behalf but his name was not among the listed members whom would receive their certificates on that day. His agent contacted his advocate who made a physical appearance at the party’s offices and was informed by the chairman of NEB that there was an error in the complainant’s certificate and the same would be corrected and his nomination certificate would be issued the following day at the party’s head office. On the following day his agents went to the party’s head office to pick the certificate, she was informed that the certificate was ready and was awaiting the party chairman’s signature. Later in the day she was informed by the party officials that the Nomination certificate had been awarded to the 3rd Respondent and his name forwarded to IEBC for gazettement.

11. The agent informed the complainant who jetted back into the country and visited the party’s offices on 30th April 2022, where he was informed by the chairman that there was an issue with his certificate and that it would be handled by the party leader, and that, there would be a meeting on 2nd May 2022 to solve the same. On 2nd May 2022 the complainant visited the party’s offices to inquire about the meeting and he was informed by the chairman that the issue was resolved and the 3rd Respondent’s name was forward to IEBC as the party’s nominee for Member of Parliament for Ruaraka Constituency.

12. The Complainant claims that the nominations were free, fair and democratic and were conducted within the applicable laws of Kenya.

13. The Complainant claims that no party has ever lodged a complaint in protest of the nomination process and the results as declared at the tallying center and no party has ever challenged the legality of the provisional certificate issued to the complainant by the 1st Respondent.

14. The Complainant claims that it was his legitimate expectation that upon being issued with the provisional certificate, the party would process and issue him with a nomination certificate and subsequently forward his name to the IEBC as the party’s candidate for the said Constituency as no appeal was lodged by anybody in regards to the nomination process.

15. The Complainant claims that he was not informed and or given a chance to appear before the party organ which made the decision to award the nomination certificate to the 3rd Respondent to fly the party’s ticket for Member of Parliament for Ruaraka Constituency. No formal communication has been made to him regarding the issuance of the nomination certificate despite his several attempts to inquire about the same which actions are unfair, opaque and unreasonable contrary to the Complainant’s right to fair hearing as guaranteed in the Constitution of Kenya 2010.

16. The Complainant claims that it is an infringement of his political rights by the 1st and 2nd Respondent to have been subjected to a nomination process in which he participated and emerged the winner and then later the same party denies him his victory by seconding the name of the 3rd Respondent to the IEBC.

17. The Complainant claims that it is an infringement of his right to information by the 1st and 2nd Respondent for having not informed him of their decision to revoke his provisional certificate and issue the nomination certificate to the 3rd Respondent despite having been nominated by the party members to be the party’s candidate for the seat of Member of Parliament for Ruaraka Constituency.

18. The Complainant claims that no complaint was ever filed in regards to the said nomination process and that his win has never been challenged in any legal forum including the party organs. He claims the party refused to issue him the nomination certificate without reasonable cause.

19. He claims his complaint is merited, the nomination on 14th April 2022 by the 2nd Respondent for Ruaraka Constituency were fair, free and credible nominations as per Article 38 and 91 (1)(d) of the Constitution, the nomination exercise observed the democratic principles and there was no violence, intimidation and improper influence or corruption and the nominations were conducted by an independent and transparent body, and administered in an impartial, neutral, efficient, accurate and accountable manner. He relies on Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11

The 1st and 2nd Respondent’s Case 20. The Respondents relied on their Replying Affidavit sworn by Mr. Anthony Mwaura, the Chairman of the National Elections Board (NEB). They aver that the Complainant and the 3rd Respondent were successfully cleared to participate in the nomination exercise on 14th April 2022 for the party’s nominee for Member of National Assembly Nominee candidate for Ruaraka Constituency. The Respondents confirmed that the Complainant was declared the winner having garnered majority votes as against other contenders and was issued with a provisional certificate.

21. It is their firm averment that the nomination process with regard to Ruaraka Constituency was free and fair, transparent and credible and was conducted in strict adherence to the Constitution, the electoral laws and the party constitution.

22. The Respondents have in addition presented a preliminary objection to the claim before the Honourable Tribunal on grounds that the same is time barred and offends Rule 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 and hence the Tribunal lacks jurisdiction. They argued that the IEBC, through the Statutory Timelines towards the 9th August 2022 General Election issued on 5th April 2022, did issue direction to political parties to submit the names of persons selected to contest in the General election on or before Thursday 28th April 2022. However, the Complaint was filed on 3rd May 2022 at 12pm contrary to Rule 8(1). They relied on Joseph Owino v Richard M Benet [2015] eKLR.

23. The Respondents further submitted that the Complaint is bad in law as it offends the provisions of Section 40(2) of the Political Parties Act (PPA) which requires that the Honourable Tribunal shall not hear disputes between members of a political party and the political party unless such party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (IDRM). They claim there is no evidence presented by the complainant that he presented any dispute before the Electoral and Nominations Dispute Resolution Committees (EDRC) of the 2nd Respondent arising from the nomination process at Ruaraka Constituency.

24. It is the Respondents’ contention that the letter dated 22nd April 2022 purported to have been used to raise a complaint does not amount to a complaint before the EDRC as it was never presented before the said committee for hearing and determination and neither was it a complaint against the Respondents who were never served to appear and be heard.

25. It is the Respondents’ contention that the Tribunal has no jurisdiction to hear and determine the claim. They relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR. They further claim that their preliminary objection raises pure points of law as it addresses issues of law, that is, statutory time limitation and jurisdiction of the court. They relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969]EA 696 as quoted by Justice Thande in page 6 of the Court’s Ruling in Mwamlole Tchappu Mbwana v Independent Electoral & Boundaries Commission $ 4 others [2017] eKLR.

The 3rd Respondent’s Case 26. The 3rd Respondent raised a preliminary objection against the Complainant’s Notice of Motion Application dated 2nd May 2022. He claims that his preliminary objection filed on 5th May 2022 is merited and meets the criteria set out in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696. He further relied on David Karobia Kiiru v Charles Nderitu Gitoi & Another [2018] eKLR

27. He claimed that the Complainant did not exhaust the internal dispute resolution mechanism provided under Article 38 of the UDA Constitution. He relied on Gabriel Bukachi Chapia v ODM & Another [2017] eKLR that the Complainant never attempted IDRM.

28. The 3rd Respondent claims that the Complainant filed the complaint in the Tribunal out of time contrary to Rule 8(1) of the PPDT (Procedure) Regulations.

29. It is the 3rd Respondent’s contention that the Complainant was invited by the 2nd Respondent to defend himself against a complaint by the 3rd Respondent vide a letter dated 19th April 2022 but despite being served with a notice to appear before the 2nd Respondent’s NEB, the Complainant never appeared either by himself or through his officers or his agents to exercise his right to be heard.

30. The 3rd Respondent claims that legitimate expectation does not apply in this case as legitimate expectation only exists against decisions made by public bodies. The political party herein is not an agent of the government nor does it fit the description of a public body. He relied on Keroche Industries Limited v Kenya Revenue Authority & 5 others [2002] eKLR Nyamu, J (as he was) cited with authority the English case of R (Bibi) v Newham London Borough Council [2001] 1 wlr 237 that gave three practical questions which Schieman LJ gave for Court to pose in ascertaining whether a claim based on legitimate expectations is properly grounded.

The Complainant’s response to the Preliminary Objection 31. In his response to preliminary objection raised by the Respondents, the Complainant claims that he exhausted all remedies available by raising his complaint with the 1st and 2nd Respondent on 22nd April 2022 through a letter received by the respondents. The Respondents did not act on the complaints raised by the complainant. That the Respondents deliberately delayed to address the complaint raised, which delay was geared towards locking him from being the 2nd Respondent’s party’s candidate for the position of Member of Parliament Ruaraka Constituency, and was meant to advance the interests and candidature of the 3rd Respondent who lost the nominations to the complainant.

32. The Complainant avers that it is the Respondents who frustrated him from pursuing IDRM. They delayed to respond to his complaint and thus he is deemed to have exhausted the available remedies. He relied on the following cases: Ibrahim Abdi v Mohamed Abdi Farah & another (Complaint No 29 of 2015) , Jared Kaunda Chokwe Barns v Orange Democratic Movement & 2 others; Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 Others [Complaint 200 of 2017] para 7, and Rushila Akoth Odida & 2 others v Orange Democratic Movement [Complaint No 331 of 2017] para 13.

33. The Claimant claims that the complaint was filed within time. He was verbally informed on 30th April 2022 that a final nomination certificate had been issued to the 3rd Respondent and the name had been forwarded to IEBC on 28th April 2022. The Claimant filed the Complaint on 3rd May 2022 together with the application which filing was within the 14days timeframe stipulated under Rule 8(1) of the Political Parties Dispute Tribunal (Procedure) Regulations 2017. The Claimant further submits that by the time he learnt of the issuance of the final certificate to the 3rd Respondent, the 2nd Respondent had already submitted the name of the 3rd Respondent to IEBC. That the cause of the delay was occasioned by the 1st and 2nd Respondent’s failure to communicate the decision to the complainant on or before 28th April 2022 when the 3rd Respondent’s name and other was submitted to IEBC.

34. He relies on Rule 8(2) of the Political Parties Dispute Tribunal (Procedure) Regulations 2017 which gives the Tribunal power under Regulation 37 to extend or reduce the time prescribed for the doing of any act under these Regulations to ensure that the ends of justice are met and to enable parties to comply with the requirements of the Elections Act, the Political Parties Act and any other law relating to elections.

Analysis and Determination 35. We have reviewed the parties pleadings and submissions and isolated the following key issues for determination:-i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?ii.What are the appropriate reliefs to add?Whether this Tribunal has jurisdiction to hear and determine this matter?

36. The Respondents have challenged the jurisdiction of the tribunal on two broad grounds; firstly, that IDRM was not attempted prior to filing this Complaint, and secondly, that the Complaint is time barred by the IEBC and also offends the provisions of Regulation 8 of the PPDT (Procedure) Regulations, 2017.

37. With respect to the question of IDRM, it is not in dispute that Section 40(2) of the PPA requires all disputes arising out of nominations to be subjected to IDRM prior to moving the Tribunal. The law requires a party to adduce evidence of an attempt thereof before the Tribunal assumes jurisdiction.

38. Article 32 of the UDA Constitution establishes the Electoral & Nominations Dispute Resolution Committee (EDRC) with the mandate to hear and determine nomination disputes.

39. In the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022), we issued guidelines on what amounts to an attempt at IDRM. In the stated case, we 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. ”

40. In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto. In the instant case, we have evaluated the pleadings and evidence adduced and we note that the Complainant has detailed a series of events that transpired between 15th April 2022 to 2nd May 2022 in an attempt to resolve this matter within the party. The averments stated on oath have not been controverted. He was issued with his provisional certificate on 15th April 2022 by the Returning Officer one Mr. Joseph Leen. He was advised that the final certificates would be issued in due course. He kept following up on the same in vain. On 22nd April 2022, he engaged his lawyer to formally write to NEB calling for the same. The letter was delivered on the same date by his lawyer who was given an assurance that the certificates would be issued on 27th April 2022 by the party leader. Interestingly, he was issued with another provisional certificate dated 22nd April 2022 and his agent advised to return on 27th April 2022.

41. When his agent returned on 27th April 2022, it was established that he was not on the list of recipients for final certificates on the stated date and was asked to return on the 28th April 2022. On 28th April 2022, his agent was informed that the certificate was ready and was awaiting signature. However, later in the evening, his agent learnt that the certificate had actually been issued to the 3rd Respondent whose name had been forwarded to the IEBC. This information was relayed to him and he immediately made arrangements and returned to the country and went to the party offices on 30th April 2022 to have the matter addressed. However, he was advised to return on 2nd May 2022 when the matter would be addressed. On the stated 2nd May 2022, he met with the Chairman NEB who informed him that the certificate had been issued to the 3rd Respondent and his name forwarded to the IEBC.

42. In essence, the Complainant only learnt of the decision to issue the certificate to the 3rd Respondent after the 3rd Respondent’s name had been forwarded to the IEBC. The Complainant could not have lodged an appeal to the EDRC considering that crucial information, that is, the decision to give the certificate to the 3rd Respondent, had been withheld from him until the very last minute. He did not have an avenue to bring the matter to IDRM as the party had already submitted the names to IEBC. The series of events in this matter gives a classical scenario of a party frustrating their member’s attempt at IDRM. In the circumstances, the only option available to the Complainant was to move this Tribunal. We accordingly find that we have jurisdiction in this respect.

43. We have further considered the objection to our jurisdiction on the grounds that the Complaint has been filed out of time contrary to the gazetted IEBC deadline of 28th April 2022 and also Rule 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations 2017. This issue has been litigated before the Tribunal in numerous cases. In PPDT at Meru Complaint No.E003 of 2022 para 22-29, we observed as follows:-’22. Regulation 8(1) of the Political Parties Dispute Tribunal (Procedure) Regulations, 2017 makes reference to section 31(2A) of the Election Act. The said section- provides that: -“Every political party shall submit the names of the party candidates who have been selected to participate in the general elections under this Act at least sixty days before the elections.”23. Although the Tribunal was not shown any communication or pointed to a gazette notice by the commission as regards the date of 28th April 2022, parties seem to have agreed that indeed the commission had set the date of 28th April 2022 as the last date for submission of names of candidates for various positions.

24. There does seem to be some level of inconsistency between Regulations and the Election Act. On the one hand the regulations indicate that last date for filing a dispute arising out of party primaries is at least one day from the date set by the commission as the date for submission of party candidates names. On the other hand, the Elections Act sets a time line of at least sixty days to the general election which would mean that a dispute can be filed with the Tribunal up to and including 61st day before a general election.

25. Faced with such inconsistency, we turn to the Statutory Instruments Act No. 23 of 2013 for guidance. Section 24(2) therefore states that: -“A statutory instrument shall not be inconsistent with the provisions of the enabling legislation, or of any Act, and the statutory instrument shall be void to the extent of the inconsistency.” (emphasis is ours)

26. The Political Parties Disputes Tribunal (Procedure) Regulations, 2017 are a Statutory Instrument. Section 2 of the Statutory Instrument Act defines Statutory Instruments as: -“… any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.” 27. In view of the material inconsistency between the Act and the Regulations, it is clear that the provisions of the Regulations are void to the extent of that inconsistency. The effect would mean that the said inconsistency cannot be used to limit the jurisdiction of the PPDT and deny an aggrieved party substantive justice.

28. Moreover, we are alive to the constitutional and statutory mandate of the Commission. However, we are also alive to our duty to respect and uphold the Constitution including the right under Article 50(1) of the Constitution of Kenya 2010 that accrues to every person to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

29. In our opinion, a formalistic interpretation of regulation 8(1) as strictly any date set by the Commission without regard to section 31(2A) of the Elections Act and to the rights of aggrieved parties to have their disputes heard by the Tribunal would cause substantial miscarriage of justice. It would mean that parties who still have matter spending before their respective parties Internal Dispute Resolution Mechanisms after 28th April 2022 are forever locked out of this Tribunal. We want to believe that the it would never be the intention of parliament to lock out parties from the seat of justice en masse…”

44. We agree with the above observation and we find no basis to depart from the same. In the totality of the foregoing circumstances, we find that we have jurisdiction to hear and determine this Complaint.

Whether the Complaint is merited? 45. It is not in dispute that the 1st and 2nd Respondent conducted nominations for the position of Member of National Assembly Ruaraka Constituency on 14th April 2022. It is further not in dispute that the Complainant herein emerged the winner. The 1st and 2nd Respondents have confirmed this position in their pleadings. The 3rd Respondent has not controverted the same. It is further not in dispute that there was no complaint against the Complainant’s successful nomination. In fact, the 1st and 2nd Respondents have in their pleadings confirmed that the nomination exercise was free and fair. In an attempt to explain why he ended up getting the final nomination certificate, the 3rd Respondent claims that he lodged a complaint against the Complainant, who was invited to attend a meeting to respond to the allegations against him on 19th April 2022. The particulars of the complaints have not been disclosed. He avers that the Complainant failed to attend the meeting to respond to the complaints despite the invitation. We, however, note that these claims are not founded in any of the pleadings filed by the 3rd Respondent. He has only raised them in his written submissions. Further, there is no evidence to support any of the stated allegations. No invitation letter or any related material has been produced. Interestingly, the 1st and 2nd Respondents have remained silent on these allegations.

46. From the record, it has not been set out clearly why another nomination process had to be conducted despite the fact that the nomination exercise of 14th April 2022 had not been nullified. Fair administrative action requires that a person affected by a decision be granted an opportunity to be heard and to be given reasons for any decision reached. Decisions by political parties are not an exception. This position has been underscored in many decisions of this Tribunal.

47. In Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that:-‘… 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.’

48. Further in Zaituni Abdallah Kabocho v Jubilee Party [Complaint No 545 of 2017] at par 12, we observed as follows;‘As we have in several cases, including Elijah Omondi v Orange Democratic Movement another Complaint 251 of 2017, 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. The Claimant was not informed of the reasons the Respondent now puts forward as justifications for removing the Claimant’s name from the list.’

49. In the foregoing circumstances, we find it improper that the party proceeded to undertake another nomination exercise without the Complainant’s knowledge. It is alleged that the Complainant was invited to an interview that he failed to attend. It is however not in dispute that as at the date of the purported interview, the Complainant was not in the country, a position which he communicated to the party to no avail. The 1st and 2nd Respondent and the Complainant state that the nomination was free and fair. Why was the complainant not issued with nomination certificate if he won fairly? The 1st and 2nd Respondents have not adduced any evidence or information why they conducted an interview yet they acknowledge the nomination was fair.

50. In the case of Roy Ochieng Samo v Orange Democratic Movement & 3 others (Complaint No 204 of 2017] at paras 11 and 12, we observed as follows:-“…11. Indeed, the Claimant had legitimate reasons to expect, in the absence of any dispute pending against him, the 1st and 2nd Respondent herein to issue him with the final nomination; not the Interested Party, upon the expiry of stipulated seven-day period for the position of the Member of County Assembly, Kajulu Ward, Kisumu East Constituency, Kisumu County having been declared the winner for the same12. For the reasons advanced above, this Tribunal is persuaded by the Claimant’s arguments that the 1st Respondent went against its own party rules when it failed to issue the Claimant with the final nomination certificate but instead issued the same to the Interested Party who, in any case, lost to the Claimant. In other words, we find no justification in the actions of the 1st Respondent denying the Claimant the final nomination certificate and instead issuing the same to the interested Party herein…”

51. We echo the above observations in the Roy Ochieng Samo Case whose facts and circumstances were more or less similar to this case. In so doing, we similarly reach the conclusion that there was no justification in the actions of the 1st and 2nd Respondents in denying the Complainant the final nomination certificate and instead issuing it to the 3rd Respondent. We accordingly find that the complaint is merited.

52. Turning to the question of costs, we are of the considered view that the 1st , 2nd and 3rd Respondent should bear the costs bearing in mind that they jointly calculatingly and intentionally appear to have unsuccessfully hatched a plan to deny the Complainant his political right.

Disposition 53. In light of the foregoing, we order as follows:-i. That the Final Nomination Certificate purportedly issued to George Washington Karani, the 3rd Respondent herein, for the position of Member of National Assembly, Ruaraka Constituency on the United Democratic Alliance (UDA) party ticket be and is hereby nullified.ii. An order be and is hereby issued directing the 1st and 2nd Respondent’s to forthwith issue to Boaz Kiprop Cheluget, the Complainant herein, the Final Nomination Certificate for the position of Member of National Assembly, Ruaraka Constituency on the United Democratic Alliance (UDA) party ticket not later than 48hours from the date of delivery of this Judgment.ii. An order be and is hereby issued to the IEBC to accept, register and gazette the name of Boaz Kiprop Cheluget as the candidate for the position of Member of National Assembly, Ruaraka Constituency on the United Democratic Alliance (UDA) party ticket.ii. The costs of this Complaint be borne by the 1st, 2nd and 3rd Respondents jointly and severally.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022. DESMA NUNGO………………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………….(MEMBER)RUTH WAIRIMU MUHORO ……………………………..