Ndungi v United Democratic Alliance Party (UDA); Independent Electoral and Boundaries Commission (IEBC) (Interested Party) [2022] KEPPDT 1028 (KLR)

Ndungi v United Democratic Alliance Party (UDA); Independent Electoral and Boundaries Commission (IEBC) (Interested Party) (Complaint E123 (NRB) of 2022) [2022] KEPPDT 1028 (KLR) (10 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1028 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E123 (NRB) of 2022

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

August 10, 2022

Between

Joyce Wangui Ndungi

Complainant

and

United Democratic Alliance Party (UDA)

Respondent

and

Independent Electoral and Boundaries Commission (IEBC)

Interested Party

Judgment

Introduction 1. The Complainant is a member of the Respondent. She challenges the change in her position in the party list from position 19 in the initial party list submitted to IEBC by the Respondent to position 53 in the party list published by the IEBC on July 27, 2022. In that regard, she seeks the following orders from this Tribunal:-a.For a declaratory order directing the Respondent to maintain her name in the original list as the 19th most suitable nominee for appointment to the County Assembly of Kiambu.b.For a declaratory order directing the Respondent to strike out the Petitioner’s name in the second list that listed her as number 53 on the said list.c.That the costs of this this Petition be provided for.d.That such further and other relief that this Honourable Tribunal may deem fit and proper to grant in the circumstances.

2. The Complaint is opposed by the Respondent by their oral submission though no written responses were filed in reply and opposition thereto.

3. Pursuant to the directions issued by this Tribunal, this matter came up for hearing on August 8, 2022 where all parties made their respective oral submissions.

4. The Complainant was represented by Alex Kibunja & Associates, and the Respondent was represented by Mr. Anjichi Advocate. The Interested Party did not enter appearance despite service.

The Complainant Case 5. The Complainant swore her own supporting affidavit and claims she works for gain as a community worker where she trains women & youth groups who are SME, partnering with Government and financial institutions to equip members with skills and financial knowledge for suitable development.

6. The Complainant claims that since January 2021 she was involved in recruiting members within Kiambu constituency particularly within Limuru Constituency (Ngecha Tigoni Ward). She claims she had been listed in the 19th position of most suitable nominee for appointment to the County Assembly of Kiambu. In the second list published by IEBC she was, however, listed as number 53.

7. The Complainant claims this action amounted to the violation of her Constitutional Fundamental rights as she was not provided with any reasons for the change of positions. She further states that she wrote a complaint letter to the Respondent dated July 29, 2022 seeking an internal mechanism to resolve the said complaint in vain.

The Respondent’s Case 8. The Respondent did not file any response.

9. However, Counsel for the Respondent submitted on points of law. He contends that this Tribunal has no jurisdiction to hear and determine this matter as no IDRM was attempted in accordance with the provisions of Section 40(2) of the Political parties Act as read together with the Respondent party’s constitution. It is the Respondent’s submission that the letter purportedly addressed to the party did not properly invoke IDRM in accordance with the party constitution.

10. The Respondent further maintains that the party lists were prepared in accordance with the Constitution, the Elections Act and the party laws.

Issues for Analysis and Determination 11. We have reviewed the parties’ case, and isolated the following issues for determination:i.Whether this Tribunal has jurisdiction to determine this matter?ii.Whether the Complaint has merit and what are the appropriate reliefs?

Whether this Tribunal has jurisdiction to determine this matter? 12. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that brought before it. Without jurisdiction, any orders made by this Tribunal amounts to a nullity ab initio.

13. The place of jurisdiction in law is well settled as was stated in the locus classicus case ofOwners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989), where Nyarangi J.A. held as follows:"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."

14. The jurisdiction of this Tribunal is grounded on the provisions of Article 159 (1) of the Constitution of Kenya, 2010 which states that;“Judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.”

15. This position is further buttressed by Section 40 of the Political Parties Act, 2011 (hereinafter the PPA) which provides 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 nominations

2. 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.

16. The instant dispute is one arising from the Petitioner’s dissatisfaction with the party’s List for Nomination to the Kiambu County Assembly as evidenced by exhibit marked “JWN-2”, and therefore falls squarely within the provisions of Section 40(1) (fa) of the PPA.

17. As articulated under Section 40(2) of the Political Parties Act, the Tribunal can only adjudicate on matters under Section 40 (1) (a), (b), (c), (e) and (fa) once the said dispute has been subjected to the political party’s Internal Dispute Resolution Mechanism (IDRM). In principle, this provision also known as the doctrine of exhaustion, requires the aggrieved party to adduce evidence of an attempt at compliance before the Tribunal can assume jurisdiction.

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

19. The question of whether the Petitioner has exhausted the IDRM of her political party, is one that does not require the matter to be heard and determined to completion provided an honest attempt can be demonstrated. In the case of Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others, it was held that:“Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.”

20. In the present matter, the Petitioner has demonstrated her attempt at engaging the Respondent’s IDRM vide the letter dated July 29, 2022 to the Respondent which was received and stamped and has been adduced into evidence as exhibit “JWN-3” together with her pleadings. However, the Respondent has not registered any formidable response.

21. In light of the foregoing, we are of the opinion that the Complainant has effectively demonstrated her honest attempt at pursuing IDRM to no avail. Having established such effort, this Tribunal therefore determines that the Petition is properly before it and that it has jurisdiction to determine this matter.

Whether the Complaint has merit and what are the appropriate reliefs? 22. The Complainant advances that the Respondent’s act of purported relegation of her name from the County Assembly Party List where she was position 19 and purported placement in position 53 violates her constitutional fundamental rights as the Respondent had failed to give her any reasons whatsoever for the action.

23. As such, the Petitioner prays for declaratory orders directing the Respondent to maintain her name in the original list as the 19th most suitable nominee for appointment to the County Assembly of Kiambu and another directing the Respondent to strike out the Petitioner’s name in the second list that listed her as number 53.

24. Fundamentally, the main issue arising out of this line of argument is whether the Petition has merit. Article 90 of the Constitution of Kenya provides for seats in the Parliament and County Assemblies through party nomination lists whereby seats are allocated to political parties in proportion to total seats won by candidates to the political party at the National General Elections. Pursuant to this, the Respondent prepared and submitted a County Assembly party nomination list which was published by the Interested Party – the IEBC.

25. This Tribunal is cognisant that the question of priority on the party lists submitted to the Interested Party is a matter of party discretion. The party nomination lists usually include a mix of special interest groups and persons who have made contributions to the party. It is indeed the party that is seized with information pertaining to the contributions made by party members as well as which of its members fall within the special interest groups.

26. The Petitioner herein would be better served if her Petition was contesting the exercise of her party’s discretion vis-à-vis another specified individual whose name is on the second list which is not the case. Additionally, while the Petitioner’s contributions to the party have been clearly articulated and documented in her pleadings, this has not been evidenced in comparison to another party member on the list. As such, the Tribunal has no basis to displace any individual, such as the person currently at position 19 on the second party nomination list published on July 27, 2022.

27. Be that as it may, an attempt to undertake such a displacement without having the individual enjoined in these proceedings would be tantamount to a violation of the principles of natural justice that dictate that each person has a right to a fair hearing otherwise known as “the right to hear the other side”. Nor can this Tribunal order the Respondent to strike out the Petitioner’s name in the second list that listed her as number 53, as this would undermine the discretionary powers that are awarded to political parties when making such decisions.

28. In regards to whether the Respondent’s actions violated the constitutional fundamental rights of the Petitioner, this Tribunal seeks to reiterate the rule on specificity that was established in the case of Anarita Karimi Njeru v Republic (No.1)-[1979] KLR 154 , where the Court stated;“… if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

29. This position was buttressed further in the case of Augustino Mbugua v Inspector General of Police & another[2020] eKLR, where the Court stated;“It is a principle of law that anyone who wishes the court to grant a relief for violation of a right or fundamental freedom, must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.”

30. In this present case, the Petitioner has not cited the specific rights under the Constitution that are said to violated and neither has she given particulars of the violation within the body of the Petition to a reasonable degree of precision. The Petitioner has only stated that the Respondent’s decision not to give reasons on the change in positions on the party list violated her constitutional fundamental rights but has not established a constitutional nexus that would justify this Tribunal awarding relief. It is the Tribunal’s considered opinion that the Petitioner has failed to satisfy the threshold of specificity established in the case of Anarita Karimi Njeru (supra).

31. The prayers sought are thus impossible to countenance for the above reasons. The Tribunal therefore finds no merit in the Petition.

32. On the issue of costs, whereas costs follow the event, having analysed the circumstances of the case we are of the view that each party should bear its own costs in these proceedings.

Disposition 33. In light of the foregoing, we order as follows:-i.The Petition herein is disallowed for lack of merit.ii.Each party is to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF AUGUST 2022. DESMA NUNGO………………………………(CHAIRPERSON)DR. KENNETH MUTUMA……….……..….....................(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………............(MEMBER)RUTH WAIRIMU MUHORO………………………………(MEMBER)