Godana v United Democratic Alliance Party (UDA); Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 1015 (KLR)

Godana v United Democratic Alliance Party (UDA); Independent Electoral and Boundaries Commission (Interested Party) (Complaint E011 (MSA) of 2022) [2022] KEPPDT 1015 (KLR) (Election Petitions) (4 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1015 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Election Petitions

Complaint E011 (MSA) of 2022

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

September 4, 2022

Between

Said Kuri Godana

Complainant

and

United Democratic Alliance Party (UDA)

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant’s grievance is that he has been moved from number 1 to number 5 in the recently compiled Respondents Tana River County Assembly party nomination list.

2. The Complainant had initially been placed at number 1 representing the marginalized category.

3. The complaint seeks the following orders:-i.That the Respondent be directed to reconsider within 24 hours from the delivery of this Tribunals judgment its party list in compliance with article 81 (c), article 97 (i) (c) and article 100 (b) of theConstitution of Kenya, 2010. ii.That the Respondent be directed to afford a hearing to and supply the Complainant with reasons for any decision made in complying with order in (i) above.iii.That the Respondent be directed to forthwith restore the Complainants name at the position one in the persons living with disability category to the re-constituted party list.iv.That costs of this complaint be provided for.

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 UDA nominations he was number 1 in the Tana River County Assembly party nominations list representing the PWD [persons with disabilities] category.

6. To the Complainant’s surprise he is now placed at number 5 in the list, being number 3 male. The change in positioning was made without reason being provided to him and/or allowing him to defend his position.

7. Attempts 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 [representing the PWD category].

15. We have also seen the new list which has now listed 5 names with the Complainants name at number 5.

16. This repositioning of the Complainants name in the said list 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.

18. We order as follows.a. That United Democratic Alliance (UDA) Party include the name of the Complainant herein Said Kuri Godana of National identity card number XXXXXX as number 1 (one) in the said UDA Tana River County Assembly Party Nomination List.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)