Diramo v United Democratic Alliance (UDA); Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 938 (KLR)

Diramo v United Democratic Alliance (UDA); Independent Electoral and Boundaries Commission (Interested Party) (Complaint E012 (MSA) of 2022) [2022] KEPPDT 938 (KLR) (Civ) (4 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 938 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E012 (MSA) of 2022

M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members

September 4, 2022

Between

Abadada Fatuma Diramo

Complainant

and

United Democratic Alliance (Uda)

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The complaint herein arose from the Complainant’s grievance at having been excluded from the final party nomination list for the UDA party for Tana River County Assembly party nominations.

2. The Complainant had initially been placed at number 1 in the said nominations list representing the gender top up category.

3)The complaint sought the following orders: -i.That the Honorable Tribunal be pleased to grant an order quashing and/or nullifying the Respondent’s Party List sent to the Interested Party on 24th August 2022 for consideration for nomination as MCA in Tana River County.ii.That the Respondent be directed to forthwith restore the Complainants name at position one in the gender top up to the reconstituted party list.iii.The Honorable Tribunal be pleased to make orders and/or further orders as it may deem just and expedient in the circumstances of the case.

4. The Respondent and Interested Party though served, as shown by the affidavit of service, chose not to participate in the proceedings.

The Complainants’ Case 5. It is the Complainants case that after the UDA party list nominations she was number 1 in the Tana River County Assembly party nominations list under the gender top up category. Her name was included in the list published in the standard newspaper in July 2022.

6. To the Complainant’s surprise her name has now been excluded from the current list without reason being provided to her and/or allowing her to defend her number one position.

7. Attempt to resolve the matter internally has borne no fruit.

8. The Complainant thus avers that the complaint is merited.

9. This being an undefended case, we shall now proceed to identify issues and analyze them.

Issues for determinationa.Is this Tribunal properly seized of jurisdiction?b.Is complaint justified?c.What orders should issue?

Our Analysis Whether PPDT has jurisdiction 10. It is clear that the parties before this Tribunal have right of audience having properly been identified as persons over whom this Tribunal can exercise jurisdiction, being a member of a political party, and the political party, the question of jurisdiction could turn on section 40 (2) of the Political Parties Act [PPA].

11. The current wording of section 40 (2) PPA states as follows: (2) Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

12. The Complainant first sought, unsuccessfully, to resolve the matter internally and it is thus our considered opinion, based on information before us, that IDRM as anticipated under section 40 (2) of the PPA, was attempted.

13. We are therefore properly seized of jurisdiction.

Is the complaint justified? 14. The complaint bundle includes annexures that show the Complainant at number one in the Respondents’’ party nomination list for Tana River [under the gender top up category].

15. We have also seen the new list which has now listed 4 names all indicated as representing the gender top up category and the Complainant’s name does not appear therein.

16. This alleged latter exclusion from the UDA party nominations list for Tana River should have involved the Complainant.

What orders should we issue? 17. Having considered the full case as presented including the prayers sought we will proceed to grant appropriate orders.

Disposition 18. We therefore order as follows.a.That United Democratic Alliance (UDA) Party include the name of the Complainant herein Fatuma Diramo Abdadaof National identity card number xxxxxxx as number 1 (one) in the said UDA Tana River County Assembly Party Nomination List gender top-up category.b.That notification of this order issue to the Independent Electoral and Boundaries Commission.c.The Complainant is awarded costs of this complaint.

DATED THE 4TH DAY OF SEPTEMBER 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)