Nyambok v Federal Party of Kenya & another; Independent Electoral & Boundaries Commission (Interested Party) [2022] KEPPDT 1076 (KLR)

Nyambok v Federal Party of Kenya & another; Independent Electoral & Boundaries Commission (Interested Party) (Complaint E040 (KSM) of 2022) [2022] KEPPDT 1076 (KLR) (Civ) (11 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1076 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E040 (KSM) of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

September 11, 2022

Between

Winnie Atieno Nyambok

Complainant

and

Federal Party of Kenya

1st Respondent

Philip Oluoch

2nd Respondent

and

Independent Electoral & Boundaries Commission

Interested Party

Judgment

Introduction 1. This matter concerns the nomination of the Complainant as the Nominee for the Member of County Assembly for the Gender Top Up for Siaya County for the Federal Party of Kenya.

2. The Complainant filed a Notice of Motion Application dated 6th September 2022 under Cover of Certificate of Urgency, as well as a Statement of Complaint, Affidavits, Witness Statements and List of Documents of even date.

3. The matter came up for hearing on 10th September 2022, where the matter was heard virtually. The Complainant was represented by Mr. Makaka there was no appearance entered on behalf of the Respondent or the Interested Party.

4. The Complainant confirmed having served the Respondent and filed an Affidavit of Service verifying the same.

5. The Complainant had the following prayers:I.That the Honourable Tribunal be pleased to recall and/or include the Complainant as the valid nominee Number 2 for Gender Top Up for nomination of Member of County Assembly Siaya County.II.That the Costs of this Proceedings be provided for.

Complainant’s Case 6. It is the Complainant’s submission that she had been selected nominee and was placed as Number 2 in the initial list of nominees. Later on, the Complainant discovered through a list published by the Interested Party in the Standard Newspaper that her name had been omitted from the list. It is her averment that the omission was a violation of her rights.

7. Furthermore, the Complainant claims to have attempted IDRM through writing a letter dated 30th July 2022 to the 1st Respondent seeking to engage the Party in IDRM. Despite having received the letter the Party failed to respond to the requests therein.

8. The Complainant therefore sought this Tribunal’s intervention to challenge the nomination list as presently constituted. It is the Complainant’s prayer that we find the present Application as being merited and grant the prayers sought with costs.

Issues for Analysis and Determination 9. From the foregoing pleadings and submissions, the following issues are key for determination:i.Whether the Complaint is merited? ii. Who bears the costs of the Complaint?

Whether the complaint is merited? 10. The Complainant has adduced evidence that she attempted Internal Disputes Resolution Mechanism, by attaching a letter dated 30th July 2022, addressed to the Secretary General of the First Respondent, the same has been stamped received by the 1st Respondent. It is therefore our finding that she is attempted IDRM as required under Section 40 (1) of the Political Parties Act.

Legitimate Expectation 11. In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others[2] the Supreme Court stated that:-“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

12. Addressing the subject of legitimate expectation, H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, thus: -“It is not enough that an expectation should exist; it must in addition be legitimate…. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation…... Second, clear statutory words, of course, override an expectation howsoever founded…. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

13. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims the court follows a two-step approach. Firstly it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. If the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation, which is enforce the legitimate expectation. The first step in the analysis has both an objective and a subjective dimension. It is firstly asked whether a reasonable expectation of a certain outcome was created. The representation itself must be precise and specific and importantly, lawful.

14. With regard to the present complaint, it is our view that the Complainant has shown that a reasonable expectation was created by the Respondent; that it would be included as Number 2 in the aforementioned Party List. The Respondent’s actions, omitting her name from the list, was lacking in fairness and was against her legitimate expectation. In light of the evidence produced, as well as pleadings and submissions made, we find that there was a legitimate expectation created in the mind of the Complainant and that the said legitimate expectation was clearly violated by the Respondent.

15. Furthermore, that because the matter herein is undefended and the evidence adduced has not been controverted, the Complainant succeeds on account of the evidence laid not being challenged. This being an adversarial system, if a case is made and there is no answer, there is nothing to compare the allegations with and therefore the Complaint is allowed.

16. It is, thus, our finding, that the Respondent has misconducted itself and failed to answer the Complainant’s allegations, which we find to have been proved to the required standard. For those reasons, we rule that the Complaint is allowed.

Who Bears the Costs of this Application? 17. Costs follow the event, in this case the Complainant filed the complaint and served the Respondents and the Interested Party who failed to enter appearance nor file their respective defence.

18. The costs for this suit will be borne by the 1st Respondent.

Disposition 19. In the upshot we make the following Orders:i.We allow the Complaint.ii.We therefore order the 1st Respondent to amend its relevant list within 24 hours of this order; and to include the Complainant one of its nominees for Gender Top Up for nomination of Member of County Assembly Siaya County; and to place her in such a position as would have her benefit from the nomination.iii.Cost of the Suit will be borne by the 1st Respondent.

20. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 11TH DAY OF SEPTEMBER 2022HON. DR. WILFRED MUTUBWA OGW C. ARB VICE CHAIRPERSON – PRESIDINGHON. FATUMA ALI-MEMBERHON. WALUBENGO SIFUNA-MEMBER