Kipsang v United Democratic Alliance Electoral and Nomination Dispute Resolution Committee & 2 others; Independent and Electoral Boundaries Commission (Interested Party) [2022] KEPPDT 959 (KLR)

Kipsang v United Democratic Alliance Electoral and Nomination Dispute Resolution Committee & 2 others; Independent and Electoral Boundaries Commission (Interested Party) (Complaint E016 (NRB) of 2022) [2022] KEPPDT 959 (KLR) (30 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 959 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E016 (NRB) of 2022

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

April 30, 2022

Between

Koskei Gilbert Kipsang

Complainant

and

The United Democratic Alliance Electoral And Nomination Dispute Resolution Committee

1st Respondent

United Democratic Alliance

2nd Respondent

Gilbert Kipyego Tenai

3rd Respondent

and

Independent and Electoral Boundaries Commission

Interested Party

Judgment

Introduction 1. The complainant and the 3rd respondent are members of the 2nd respondent Political Party United Democratic Alliance (UDA). The complainant filed this complaint against the respondents and the interested party under a certificate of urgency dated the April 21, 2022 accompanied by a notice of motion application supported by his own supporting and verifying affidavit together with annexures.

2. The Complainant is aggrieved by the decision of the 1st respondent dated and delivered on April 20, 2022 in EDRC No.78 of 2022 Gilbert Kipyego Tenai Vs Koskei Gilbert Kipsang & Uda National Elections Board directing that the UDA nomination certificate be issued to the 3rd respondent as the party’s nominee for the position of Member of the County Assembly (MCA) of Cheptiret-Kipchamo Ward.

3. Vide the complaint filed herein, the complainant seeks the following orders: -i.An Order setting aside the decisions of the 1st Respondent dated and delivered on April 20, 2022 in EDRC No. 78 of 2022: Gilbert Kipyego Tenai Vs Koskei Gilbert Kipsang & UDA National Elections Board.ii.An Order compelling the 2nd respondent to issue the Complainant with a certificate as its candidate for the position of Member of County Assembly of Cheptiret-Kipchamo Ward in the General Election due on August 9, 2022iii.An Order restraining the Interested Party from accepting the name of the 3rd Respondent and including it on the ballot as candidate in the General Election due on August 9, 2022 for the position of Member of County Assembly of Cheptiret-Kipchamo Wardiv.The costs be in favour of the Complainant.

4. The Complaint is opposed vide responses on record and we have highlighted the same below.

5. The Complaint was first scheduled for hearing on April 26, 2022 by way of highlighting of written submissions. However, parties had not fully complied with the Tribunal’s directions as to filing of responses and written submissions. Balancing all parties’ right to a hearing and the stringent timelines for resolution of nomination disputes, the Tribunal granted all parties that had not complied an opportunity to file their responses and Written Submissions on the complaint where-after the Tribunal would consider all parties’ pleadings and submissions on record and deliver Judgment.

6. The complainant was represented by the firm of Kirwa Koskei & Co. Advocates while the 3rd respondent was represented by Tunen and Simwato Advocates and the 2nd respondent was represented by SMS Advocates LLP.

The Complainant’s Case 7. It is the complainant’s case that he was issued with a provisional certificate by the 2nd respondent’s Returning Officer Joel Chepkwony after winning the party primaries for the seat of MCA Chepsiret-Kipchamo Ward in Kessess Constituency on April 14, 2022.

8. The 3rd respondent then moved the Electoral and Nomination Dispute Resolution Committee (EDRC) of the 2nd Respondent to contest the decision to declare the complainant a winner and issue the Complainant with a provisional certificate.

9. The 2nd respondent’s EDRC determined that the 2nd respondent should issue nomination certificate for the member of County Assembly of Cheptiret-Kipchamo Ward to the 3rd respondent. It held that “a declaration be and is hereby issued directing the 2nd respondent to forthwith issue the nomination certificate for a member of County Assembly of Cheptiret- Kipchamo to the applicant”.

10. The complainant was dissatisfied with the decision of the EDRC. He avers that the decision was issued without any written notice to him, he was never served and that the 1st and 2nd Respondents did not seek to interrogate the affidavit of service that was filed before it before proceeding to hear the complaint which was undefended.

11. The complainant avers that he was not given a reasonable opportunity to be heard and make a defense to the allegations or charges made against him in accordance with the rules of natural justice and fair play.

12. The complainant in his written submissions relied on article 47 of the Constitution of Kenya on the right to fair administration which requires every person who is a subject of an administrative action to be accorded an expeditious, efficient, lawful, reasonable and procedurally fair opportunity.

13. The complainant relied on article 50(2) k of the Constitution of Kenya on the right adduce and challenge evidence.

14. The complainant relied on the Fair Administrative Action Act, 2015 (FAA) Section 4(1)(2)(3) and (4). He submitted that Section 4(1) of the FAA provided that ‘every person has the right to administrative action, which is expeditious, efficient, lawful, reasonable and procedurally fair.’ That Section 4(2) of the FAA provided that ‘every person has the right to be given written reasons for any administrative action that is taken against him,’ and further that section 4(3) of the FAA requires the administrator of actions ‘to ensure the service of prior and adequate notice of the nature and reasons for the proposed administrative action, an opportunity to be heard and make representations in that regard, notice of the right to legal representation, where applicable, making available the information, materials and evidence to be relied upon in making the decision or taking the administrative action.’ He also relied on Section 4 (4) of the FAA which obligates an administrator of action to accord a person against whom the administrative action is taken the ‘chance to attend the proceedings, in person or in the company of an expert of his choice, to be heard, to cross examine persons giving adverse evidence against him and request for an adjournment of the proceedings, where necessary to ensure fair hearing.’

15. The Complainant further relied on the decision of this Honourable Tribunal in Franklin Imbenzi v Orange Democratic Movement & Another(2017) eKLR, and Simon Kamau & another v Jubilee Party & 3 others(2017) eKLR which affirmed the right to fair hearing.

16. The Complainant further claims that the decision of EDRC was in any event unreasonable and based on extraneous, irrelevant, and unlawful considerations as it failed to interrogate the process the 2nd Respondents Returning Officer Joel Chepkwony arrived at in declaring him as the winner.

17. In the Complainant’s Supplementary Affidavit, he reiterates the contents of his supporting affidavit dated April 21, 2022 and explains that he did find on April 19, 2022 a message serving him with copies of the complaint without any hearing notice but, with a message indicating hearing will be done at 3,00pm an uncontroverted fact which the 3rd respondent confirmed.

Response by the 1st and 2nd Respondents 18. The 1st and 2nd respondents filed their replying affidavit sworn by Anthony Mwaura, the Chairperson of the National Elections Board (NEB), representing the two parties. They also filed written submissions.

19. He affirms that the claimant and the 3rd respondent were successfully cleared to participate in the nomination exercise on April 14, 2022 for the party’s nominee for Member of County Assembly for Cheptiret Kipchamo Ward in the coming general elections in August 2022.

20. That the UDA Party through NEB conducted the nomination process as per Article 31 of the UDA Constitution.

21. The 1st and 2nd Respondents stated that on April 17, 2022, the 3rd Respondent lodged a complaint before the EDRC and that they were served with a hearing notice of the same date on 17th April 10. 26am and a return of service duly filed. That the matter was scheduled for hearing on the same day at 3. 00pm when the complainant failed to enter appearance and to attend the hearing. The Complainant further failed to file any responses by way of written submissions or affidavits.

22. It was submitted that there was a discrepancy in paragraph 7 of the complainant’s supporting affidavit where the complainant claims he did not receive any documents via WhatsApp but admits to have received the complaint without a hearing notice in paragraph 10. They aver that the complainant ignored the complaint and notices and wilfully absconded the EDRC processes thus necessitating the proceedings in default of his appearance.

23. They submitted that as at April 20, 2022 when the ruling was delivered in EDRC Application No 78 of 2022, the complainant had not entered any appearance, or sought leave in respect to any application. It is the 1st and 2nd respondents’ further contention that the EDRC conducted its sittings up to the April 22, 2022 but the complainant neither sought a review of the ruling nor did he apply for it to be set aside.

24. According to the respondents, the complainant has not tendered or availed any evidence to prove an attempt to subject the dispute to IDRM prior to moving this Tribunal.

The 3rd Respondents’ Case 25. The 3rd respondent filed his response to the complaint dated the April 24, 2022, his replying affidavit, and written submissions.

26. The 3rd Respondent avers that he filed a complaint to challenge the UDA party nominations and results for Member of County Assembly for Cheptiret Kipchamo Ward that was held on the April 14, 2022 and the decision of the UDA Returning Officer made on the April 15, 2022 declaring the Complainant as the presumptive nominee for the position for Member of County Assembly for Cheptiret Kipchamo Ward having garnered an alleged total of 2,394 votes against the 3rd Respondent 2,304 votes.

27. The 3rd respondent states that on the April 19, 2022 at 10:53 am, his advocate on record served the Complainant with the said Nomination Dispute via WhatsApp platform, and despite receiving the pleadings, he failed to acknowledge receipt. The screenshots were annexed.

28. The 3rd respondent contends that the complainant deliberately refused to enter appearance or send a representative to canvass the dispute. That the complainant was called several times by the committee but decided on his own volition not to take part in the process.

29. The 3rd Respondent further states that his matter was listed and proceeded for hearing at 2100hrs and was adjourned from 1500 hrs to give the Complainant time to enter an appearance. A hearing was conducted and the 3rd Respondent’s advocate argued on the merit of the case and the panel proceeded to give a ruling.

30. The 3rd Respondent submitted that the complaint filed before the ERDC by the 3rd Respondent was premised on the premeditated and erroneous summation of the total valid votes cast by the registered voters of Cheptiret Kipchamo Ward on the April 14, 2022 for the position of Member of County Assembly. The 3rd respondent claimed that the returning officer arbitrarily under posted his votes in a number of polling stations and over posted the Claimant’s votes.

31. It the 3rd Respondents case that the announcement by the returning officer was not guided by the total number of votes cast but by the premeditated actions and inadvertences of the Claimant.

32. The 3rd respondent annexed a tabulation of voting process tallies submitted by the presiding officers of 22 polling stations of the candidates, Bor Gilbert Kipyego gathered 2,342 votes and Koskei Gilbert Kipsang gathered 2,254 votes. The 3rd respondent claimed he won with a margin of 88 votes. He avers that the claimant, in connivance with the returning officer and his acolytes and/ or agents, announced unfounded and fictitious tabulated results of Bor Gilbert Kipyego gathered 2,304votes and Koskei Gilbert Kipsang gathered 2,394 votes.

33. The 3rd Respondent avers that the declared and announced results depicted a process that was bungled by design during the announcement of the results to rig in the Complainant.

34. The 3rd Respondent annexed a copy of the Member of County Assembly Nomination Results Form 6A Serial Number UDA 7511148 of Kipchamo Central Polling depicting his votes as 4 and not 42.

35. The 3rd Respondent annexed a copy of the Member of County Assembly Nomination Result Form 6A serial No UDA 7511032 of Lengut polling station where there was an over posting of the Claimant result as 173 instead of 113,

36. The 3rd Respondent avers that even with the deliberate over posting of the results of the Complainant for Lengut a simple summation of all tallies would not give a figure of 2,394 it would give 2,314. He avers that the Returning officer apart from consciously under posting the 3rd Respondent results with 38 votes and over posting the complainants by 60 votes he also illegally awarded 80 votes without supporting documents.

37. The 3rd Respondent annexed a copy of the approval documents duly signed by agents and/ or candidates, he avers that the agents of the respective candidates appended their signatures confirming that the results declared by the Presiding Officers reflected the democratic will of the people of Cheptiret Kipchamo ward. The complainant’s agents did not raise any complaints with regard to the nomination process in Lengut and Kipchamo Central Polling Stations.

38. The 3rd Respondent further alleged that the Police Officer manning the tallying Centre used force and intimidated candidates who raised the discrepancies with the returning officer.

39. The 3rd respondent claimed that the infractions expressed above are in contravention of various sections of the United Democratic Alliance Nomination And Elections Rules, 2021; the United Democratic Alliance Party Constitution; the United Democratic Alliance Code of Conduct; the Elections Offences Act, 2017; the Elections Act, 2011; the Political Parties Act, 2011; theIEBC Act, 2011; the Elections (Party Primaries And Party Lists) Regulations, 2017; and the Constitution of Kenya, 2010 .

40. The 3rd Respondent avers that the Committee had an opportunity to go through Form 6B and 6A of the affected stations and came up with the right summation of the total number of valid votes cast for each candidate.

41. In his submissions he identifies two legal issues, that is, whether the Claimant was duly served with the pleadings, and whether the tribunal deliberated on the substance and merit of the nomination dispute during the hearing.

42. He claimed that service upon the Complainant was duly effected having been in strict compliance with the provisions of the Civil procedure amended rules on electronic service and relied on Victoria Pumps and another v Kenya Ports Authority and 4 others (2004)1KLR 7008 where the court was of the opinion that if service is effected upon an individual and the same fails and /or refuses to endorse it, the court may declare that the above constitutes proper and effective service.

43. The 3rd Respondent contends that the EDRC tried to call the Complainant to attend the hearing in vain. That the matter whose hearing had been slotted for 1500hrs on the April 19, was extended to 2100hrs to accord the Complainant time to attend the same. The 3rd respondent relied on Esther Wamaitha Njahia & 2 others vs Safaricom Ltd(2014) where the court was of the opinion that if a party deliberately evades service in order to delay and or obstruct justice, court may use its discretion and proceed with the trial. An ex parte judgment is not meant to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay cause of justice.

44. It is the 3rd Respondent’s contention that the EDRC proceeded and deliberated on the substance and merit of the nomination dispute and that it was found that there were deliberate errors on the summation of the total valid votes cast by the registered voters of Chepiret Kipchamo Ward on the April 14, 2022 for the position of the Member of County Assembly. It was established that there was under posting and over posting of results which was arbitral and prejudicial to the 3rd Respondent.

Issue for Analysis and Determination 45. Flowing from the parties’ pleadings and submissions, we have isolated the following issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter.ii.Whether the complainant was accorded a fair hearing by the 1st Respondent in accordance with the Constitution of Kenya and the Fair Administrative Action Act within the confines of the nomination rules of the 2nd Respondent?iii.Whether the Tribunal should set aside the decision of the 1st Respondent and compel the 2nd Respondent to issue the complainant a certificate as its candidate.

Whether this Tribunal has jurisdiction? 46. The 1st and 2nd Respondents have challenged our jurisdiction to hear and determine this matter. In its Replying Affidavit dated April 27, 2022, he affirms that the Complainant: opted to ignore the party’s dispute resolution mechanism (paragraph 12), wilfully absconded the same (paragraph 14), has not tendered any evidence to prove an attempt to subject the dispute to the internal political dispute resolution mechanism (paragraph 17) and failed to exhaust all the dispute resolution mechanisms of the party (paragraph 19) including applying for the decision of the EDRC to be set aside.

47. 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 nominations2. 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.

48. The Tribunal notes that the instant dispute arises out of party nominations and is accordingly covered under section 40(2) of the PPA which requires that evidence be adduced of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (IDRM).

49. The Tribunal notes that article 32 of the UDA party constitution (March 2022 edition) establishes the EDRC whose mandate is to receive, hear and determine nomination disputes. Article 32 (viii) of the subject constitution (March 2022 edition) in fact states that the decisions of the EDRC shall be final. This position should be contrasted with the dispute resolution mechanism provided for under article 39 of the party constitution which establishes the Internal Dispute Resolution Committee (IDRC) to hear any dispute other than a nomination dispute, which decisions of IDRC can be appealed to National Executive Committee. Thus, as far as matters pertaining to “party elections and nominations are concerned” once the EDRC has reached a decision, that decision is final, negating further attempts to engage the internal dispute resolution mechanism of the party. In the absence of an appellate or review mechanism to the EDRC decision, the Complainant was rightfully entitled to bring the instant action to the Tribunal. The Tribunal is therefore correctly seized of jurisdiction in this matter.

Whether the complainant was accorded a fair hearing by the 1st Respondent in accordance with the Constitution of Kenya and the Fair Administrative Action Act within the confines of the nomination rules of the 2nd Respondent? 50. The Tribunal notes that the 3rd Respondent filed a complaint before the EDRC under Applications No.78 of 2022 seeking to nullify the nomination process and an order for recount of the votes. This application was heard by the 1st Respondent in the absence of the Complainant, and it led to a recount that issued the 3rd Respondent with a nomination certificate for Member of County Assembly of Cheptiret – Kipchamo.

51. It is the Complainant’s case that he was not served and/or was not properly served within reasonable time and thus was not granted a fair hearing before EDRC. The Respondents on the other hand maintain that he was served, service whereof he has admitted but elected not to attend the hearing before the EDRC. It is alleged that the Complainant was in fact seen “roaming around the EDRC’s premises on the day of the hearing.”

52. We note that the under paragraph 10 of the Complainant’s affidavit, he refers to a screenshot of purported service that was made on the April 19, 2022 at 10:26 am. The Complaint has further directed the Tribunal to clause 2 and clause 4 of the Dispute Resolution Committees Rules and Procedure (Schedule B) which respectively provide that service by an applicant should be done within an hour, affording the Respondent the opportunity to file a response within 12 hours. The Complainant avers that this was not done denying him a reasonable opportunity to be heard.

53. The right to a fair hearing is enshrined in the Bill of Rights of the Constitution of Kenya. Article 47 of the Constitution in this respect requires every person who is a subject of an administrative action to be accorded an expeditious, efficient, lawful, reasonable, and procedurally fair opportunity to present their case. Article 50 (k) specifically demands that one must be accorded the opportunity to adduce and challenge evidence. Furthermore, according to the Fair Administrative Actions Act, 2015, an administrator of action is obligated to accord the person against whom administrative action is taken the chance to attend the proceedings in person or through a representative, to be heard, cross examine persons giving adverse evidence against him/her and request for adjournment of the proceedings, where necessary to ensure fair hearing.

54. The party’s EDRC Rules on Procedure (and specifically clause 2 and clause 4) and the timelines therein are in tandem with the importance to safeguard the right by party to be accorded a fair hearing and safeguard their right to fair administrative action. From the evidence before us, there was non-compliance with the timelines provided in these rules. It is not disputed by the parties that the complaint was filed on April 17, 2022 and the Complainant was served two days later at 10. 53 am on April 19, 2022. This is well over the 12 hours stipulated in the rules raising serious questions on whether the Respondent was afforded the opportunity to file a response within the requisite time provided by the rules.

55. In our view, service was not only effected outside the timelines envisioned by the party’s own rules, but was also undertaken in a manner that the Complainant was not afforded a reasonable opportunity to respond to the complaint before the EDRC. In so concluding, we observe that it was only at 10. 53 am (April 19, 2022) that the Complainant received the WhatsApp message notifying him of the complaint. The same was to be heard at 3 pm on the same day. It is unclear what reasons the 3rd Respondent had in choosing to serve the Complainant 2 days after filing the complaint, affording the Complainant only 4 hours to respond and participate in a hearing. What is clear is that this short interval undermined the fundamental right of a Complainant to be a accorded a fair hearing before the EDRC. We therefore find and hold that the complainant was not accorded a fair hearing by the 1st Respondent in accordance with the Constitution of Kenya and the Fair Administrative Action Act within the confines of the nomination rules of the 2nd Respondent.

Whether the Tribunal should set aside the decision of the 1st Respondent and compel the 2nd Respondent to issue the Complainant a certificate as its candidate 56. The Tribunal has been presented with evidence by the 3rd Respondent in its Replying Affidavit around the claims it made before the EDRC in relation to the voting process and its tallying. We have also noted the contents of the EDRC ruling in relation to the undefended suit it heard and determined.

57. Furthermore, we observe that the complaint brought by the Complainant is restricted to its matters pertaining to its rights to fair administration. The Complainant has not tendered any evidence relating to the voting process, which forms the heart of the dispute that was heard by the EDRC in determining who was the rightful candidate for the party. We believe that this evidence is inextricably linked to whether the Complainant should be issued a certificate as the candidate for the position of member of the county assembly of Cheptiret-Kipchamo Ward.

58. The Tribunal is therefore not in a position to make a determination on which of the contestants is deserving of the issuance of the certificate of candidacy. As the issues to be canvassed fall within the domain and mandate of the EDRC, the interests of justice in determining the merits of the same including what transpired during the voting process and who is the party’s candidate, ought to be redirected to the EDRC. The Tribunal therefore declines to grant prayers b) and c) as captured in the complaint, and instead directs the matter back to the EDRC for determination of the dispute filed before it, with specific admonition that parties are afforded their right to participate in the hearing in line with the party’s constitution.

Disposition 59. In light of the foregoing, we order as follows: -a.That this Tribunal has jurisdiction to preside over this matter.b.That the decision of the 1st Respondent dated and delivered on the April 20, 2022 be and is hereby set aside.c.That the dispute between the Complainant and the 3rd Respondent as to who should be issued a final certificate of nomination as the candidate for the position of Member of the County Assembly of Cheptiret-Kipchamo Ward be and is hereby remitted back to the EDRC for determination after hearing and evaluating evidence of all the concerned parties.d)That each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA MIGHULO MAGHANGA…………………………(MEMBER)RUTH WAIRIMU MUHORO…………………………...(MEMBER)15PPDT Nairobi A Complaint No. E016 of 2022