Muyonga v Democratic Action Party – Kenya; Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 933 (KLR)

Muyonga v Democratic Action Party – Kenya; Independent Electoral and Boundaries Commission (Interested Party) (Miscellaneous Case E002 (KK) of 2022) [2022] KEPPDT 933 (KLR) (30 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 933 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Miscellaneous Case E002 (KK) of 2022

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

August 30, 2022

Between

Doreen Muyonga

Complainant

and

Democratic Action Party – Kenya

Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Judgment

1. The Complainant is a member of the Respondent Political Party and applied for nomination into the Democratic Action Party – Kenya (DAP-K) Kakamega County Assembly party nomination list.

2. Due to alleged anomalies in the finalisation of the said nomination process, which the party allegedly refused to address, despite the Complainant calling the same out to the attention of the Respondent, the Complainant came before this Tribunal.

3. The Complainant initially moved this Tribunal by way of a Notice of Motion and subsequently uploaded a complaint herein which seeks the following orders: -a.An order directing the Respondent to reinstate the name of the Applicant/Complainant herein to slot no 3 (no 2 women) in the final party list.b.Costs of this suit.c.Any other relief this Honourable Tribunal may deem fit to issue.

4. The complainant appeared pro se while the Respondent was represented by Wamalwa & Echesa Advocates. The Interested Party, though served as seen by the affidavit of service on record, did not enter appearance.

The Complainants Submissions 5. The Complainant submits that she is an active and life member (membership no DAPKXXXXX) of the Respondent and that she has been serving the Respondent on voluntary terms as a political strategist.

6. That she successfully applied for party list nomination for gender to up category, Kakamega County.

7. That in the initial party list submitted to the Interested Party, her name appeared inMslot number 3 (number 2 women).

8. That upon rejection of the initial Respondent’s party list by the Interested Party and subsequent reconstitution of the list, her name was downgraded to slot number 7 (number 4 woman) without any explanation or consultation.

9. She submits further that downgrading her in the party list was aimed to deny her a chance to represent the youth in the Kakamega County Assembly

10. That she lodged her grievance with the Respondent on the matter vide letter dated July 29, 2022 and followed up the matter with another letter dated August 22, 2022 but the same has yet to be responded to up to date.

11. The Complainant thus submits that her complaint is justified and the prayers sought should be granted.

The Respondents Submissions 12. The Respondent has filed a replying affidavit sworn by the National Chairperson of its Elections Board one Mr Ronald Jumbe.

13. The Respondent submits that list that was approved by the Respondent’s National Elections Board and endorsed by the National Chairperson and the Secretary General is as presented by the Complainant.

14. The Respondent further avers to being a stranger to the contents of the list published by the Independent Elections and Boundaries Commission (IEBC) and that the same does not conform to the list approved by the Respondent.

15. In concluding the respondent avers concession to the complaint so as to mitigate costs.

16. The Complainants averment that the Respondent has failed to address her concern internally, remains uncontroverted as does her claim to position no. 2 women in the DAP-Kenya Kakamega County Assembly party nominations list under the gender top-up category. In fact the Respondent has supported her claim.

17. We have also noted that the Respondent, conceded the claim specifically so as to mitigate costs.

Issue for determination 18)In light of the background as provided herein above, the only issue before us for determination is:a)What orders should issue?

Our Analysis 19. The law mandates the political party with the primary jurisdiction of compiling its party nomination list for the various positions. The Elections Act (No 24 Of 2011), The Elections (General) Regulations, 2012, The Elections (Party Primaries and Party Lists) Regulations, 2017, Submission of Party List guide the nominations process in regard to party lists.

20. It is provided, in law, that Party Lists must generally comply with the Constitution 2010, the Elections Act, 2011 as amended by the Statute Law (Miscellaneous Amendment) Act, 2012, the Elections (Amendment) Act, 2012, the Elections (Amendment) (No 2), the Political Parties Act, 2011 and any other relevant law as well as the party constitution and the party nomination rules.

21. We note that the IEBC role, is, at the stage of nominations into the party lists, limited to requiring parties to submit lists that represent the categories as outlined in law.Specifics as to which member should be in which list and at what number they should be in such list, is a political party affair. IEBC may require, lawfully, that the lists are presented, as much as possible, in either gender alternating format.

22. The application by the Complainant is unopposed by the Respondent who submits that the list that was approved by the Respondent’s National Elections Board and endorsed by the National Chairperson and the Secretary General is as presented by the Complainant and that they are also strangers to the contents of the list published by the IEBC on July 27, 2022.

23. The population of a party nominations list, is a party affair and the relevant party organs have consented to a fin al list.

Disposition 24)In the circumstances, we order as follows.a.That the Respondent herein, Democratic Action Party, Kenya [DAPKenya] forthwith, reinstate the name of the Complainant herein, Doreen Muyonga to number three (number 2 woman) in its Gender Top-Up List for Kakamega County Assembly party nomination list and forward it to the IEBC for publication in the Kenya Gazette in respect of the 2022 general elections.b.That notification of this decision issue to the Independent Electoral and Boundaries Commission.c.That each party shall bear its own costs for this complaint.

DATED THE 30TH DAY OF AUGUST 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)