Sunctus G. Ndegwa,John Njoroge Munani,Saumu Saidi & David Muchai Kinyari v Jubilee Party & Independent Electoral and Boundaries Commission [2017] KEHC 9385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELECTION NOMINATION APPEAL NO. 29 OF 2017

SUNCTUS G. NDEGWA…………………………….................…...............1ST APPELLANT

JOHN NJOROGE MUNANI………………………..................…...........…2ND APPELLANT

SAUMU SAIDI………………………………………................……..........3RD APPELLANT

DAVID MUCHAI KINYARI…………………………….....................….......4TH APPELLANT

VERSUS

JUBILEE PARTY………………………..............………………...….....1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...2ND RESPONDENT

(Being an Appeal from the entire judgment and decree by the Political Parties Disputes Tribunal, Kyalo Mbobu, James Atema, Hassan Abdi and Dr. Adelaide Mbithi, dated 27th July 2017 and 2nd August 2017 respectively)

JUDGMENT

Background

The Appellants are members of the 1st Respondent and officials of the Nairobi Branch of the 1st Respondent. They are also members of the Nairobi County Executive Committee (CEC) of the 1st Respondent. On the 14th of April 2017, the Appellants held a meeting during which they prepared a list of recommended persons to be nominated to the Nairobi County Assembly. They forwarded that list to the 1st Respondent for onward submission to the Independent Electoral and Boundaries Commission, the 2nd Respondent (IEBC). The Appellants claim that the 1st Respondent failed to submit the list forwarded to them but instead prepared a different list and forwarded the new list to the 2nd Respondent. This aggrieved the Appellants who communicated their feelings to the 1st Respondent through several letters. The 1st Respondent did not respond to those letters. This prompted the Appellants to file Claim No. 387 of 2017 before the Political Parties Disputes Tribunal (PPDT). In that Claim, the Appellants sought nullification or revocation of the 1st Respondent’s Party List; an order directing the 2nd Respondent to publish the list prepared by the Appellants on 14th April 2017 and costs of the Claim.

By a judgment delivered on 27th July 2017, PPDT allowed the Claim and granted the following orders:

a. The Respondent is hereby ordered to re-constitute the list of nominees to the Nairobi County Assembly.

b. The re-constitution of the party list to be done in strict compliance with all the relevant laws and shall as far as is reasonably practicable reflect the ethnic diversity of the people of Nairobi County drawn from the Respondent’s membership.

c. The Respondent is further directed to afford a hearing to and to supply all affected persons with the reasons for any decision made in complying with the orders in (b) above.

d. There shall be no order as to costs to facilitate party unity.

e. A copy of this judgment to be remitted to the Independent Electoral and Boundaries Commission for necessary action.

The orders granted in that judgment of the PPDT did not please the Appellants. They came to the High Court to challenge the same, hence this Appeal.

Memorandum of Appeal

In the memorandum of Appeal filed on 17th August 2017 in Appeal No. 29 of 2017, the Appellants have listed the following grounds of appeal:

1. That the Honourable Tribunal rightly held that a new list be re-constituted but failed to order for the nullification of the earlier list by the Respondent dated 13th of July 2017 (sic).

2. That the Honourable Tribunal erred in fact and in law in ordering the Respondent to re-constitute the list contrary to the Jubilee Party Constitution Article 7 (2) (f) which provides that the County Executive Committee (CEC) which comprises the Appellants shall be the sole body to recommend to the National Executive Committee (NEC) persons to be considered for nomination.

3. That the Honourable Tribunal erred in fact and in law in ordering the Respondents to prepare/re-constitute the list which is ultra vires the Jubilee Party Constitution Article 12 (1) which limits the role of the Party to only presenting/submitting to the Independent Electoral and Boundaries Commission a list of names once it has been compiled by the County Executive Committee.

4. That the alleged list prepared by the Respondent failed to take into consideration the ethnic diversity of the people of Nairobi County drawn from the Respondents as is provided in the Constitution.

The Appellants are seeking from this court the following orders:

a. That the entire Judgment of the Political Parties Disputes Tribunal dated 27th July 2017 directing the Respondent to re-constitute the list of nominees to the Nairobi County Assembly be set aside pending the determination of this appeal.

b. That the 1st Respondent be prohibited and stopped from forwarding the list dated 13th July 2017 or any other list for gazettement to the Independent Electoral and Boundaries Commission.

c. That the Independent Electoral and Boundaries Commission be prohibited from accepting, publishing or gazettement of any list and/or including the one dated 13th of July 2017 by the 2nd Respondent (sic).

d. That any gazettement of the list of Members of the County Assembly dated 13th July 2017 be stayed and/or set aside pending the hearing and determination of this Appeal.

e. That the list dated 8th August 2017 which was prepared by the Complainants/Appellants and forwarded to the 1st Respondent be declared as the proper and genuine list for gazettement as it is an all-inclusive list and reflects the ethnic diversity of the people of Nairobi County as directed by the Judgment dated 27th July 2017.

f. That costs of this suit be provided for.

The Appeal was filed together with a Notice of Motion brought under certificate of urgency. Principally, the Notice of Motion sought orders to set aside/or stay the judgment of the Tribunal pending the hearing and determination of this Appeal. This court however directed that the Appeal proceeds for hearing substantively.

Appellants’ Submissions

The highlights of the submissions by Mr. Nyaberi on behalf of the Appellants are that they recommended a list of names of persons to be nominated to the Nairobi County Assembly to the 1st Respondent as required under Article 7 (2) (f) of the 1st Respondent’s Party Constitution; that they forwarded the names of the nominees to the 1st Respondent for submission to the 2nd Respondent; that instead of submitting the list forwarded to it by the Appellants, the 1st Respondent prepared a different list and submitted it to the 2nd Respondent contrary to the provisions of the Party Constitution; that the Appellants wrote to the 1st Respondent seeking redress on the issue but the 1st Respondent failed to respond; that the Appellants sought redress from the PPDT by filing Claim No. 387 of 2017; that the matter was heard and determined through a judgment delivered on 27th July 2017 in which the 1st Respondent was ordered to re-constitute another list in compliance with the law and that the 1st Respondent prepared another list comprising persons who are members of the 1st Respondent.

It was further submitted that the 1st Respondent’s Constitution under Article 12 (1) mandates limits the role of the 1st Respondent to receiving the list prepared by the Appellants and submitting the same to the 2nd Respondent. The Appellants urge that the judgment of the PPDT is against the 1st Respondent’s Constitution.

Mr. Nyaberi took issue with the 1st Respondent’s Response to the Claim filed before the PPDT submitting that this Claim was not filed before the PPDT and it cannot therefore admitted in these pleadings. He submitted that the 1st Respondent was granted leave by the PPDT to file the Response but failed to do so and therefore the 1st Respondent cannot use it in these proceedings. Mr. Nyaberi urged this court to grant the prayers sought in the Memorandum of Appeal. He cited Nation Media Group Limited v Cradle Civil Appeal No. 149 of 2013 reported in [2016] eKLR and Equity Bank Limited v. Bruce Mutie Mutuku t/a Diani Tours & Travel Civil Appeal No.13 of 2016 reported in [2016] eKLR on when issues of jurisdiction should be raised during proceedings.

1st Respondent’s Submissions

Ms Mboce for the 1st Respondent submitted on the following issues:

i. Jurisdiction of PPDT.

ii. Role of Appellants in determining Party List.

iii. Failure of the 1st Respondent to respond to the Claim before the PPDT.

iv. Mandate to check compliance with the law in respect to Party Lists.

On the issue of jurisdiction it was submitted that PPDT derives its jurisdiction from Article 92 of the Constitution of Kenya 2010 and Section 40 of the Political Parties Act; that the matter before PPDT having been a dispute between the 1st Respondent and its members, it was a dispute that falls under Section 40 (1) (b); that by virtue of Section 40 (2) of the Political Parties Act, PPDT could not entertain such a dispute unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms; that PPDT ought to have determined whether it had jurisdiction first before entertaining the Claim by the Appellants; that had it done so, even without being moved by any party, it would have concluded that it did not have jurisdiction. Ms Mboce referred this court to the case of The Owners of The Motor Vessel “Lilian S” v. Caltex Oil (Kenya) Ltd [1989] KLR 1on this issue of jurisdiction.

It was further submitted that it is only the 2nd Respondent which has the jurisdiction to direct a Political Party to amend its list; that Article 90 (2) of the Constitution mandates the 2nd Respondent to assume responsibility in the conduct and supervision of elections for members of the county assemblies contemplated under Article 177 (1) (b) and (c) of the Constitution among others; that since the 2nd Respondent has published the 1st Respondent’s Party List this means that the 2nd Respondent accepted the list from the 1st Respondent as having been prepared in conformity with the law; that the 2nd Respondent had sent back the list submitted to it by the 1st Respondent for amendment and once the amendments were done and the list re-submitted it was accepted and published on 23rd July 2017.

Ms Mboce submitted that any disputes arising from Party Lists are determined by the 2nd Respondent by virtue of Article 88 (4) (e) of the Constitution and Section 74 (1) of the Elections Act. Counsel urged that the Appellants ought to have sought recourse at the 2nd Respondent’s Disputes Committee and not PPDT. She cited Jubilee Party of Kenya v. Mohamed Abdikadir Salah in Election Nomination Appeal No. 22 of 2017 (UR) where similar issues were canvassed and the court found that PPDT did not have jurisdiction to entertain a claim of similar nature as this one.

On the role of the Appellants in in respect of party lists, it was submitted that the Appellants have not laid a legal basis on which they claim to have the authority to determine the final party list; that Article 7 (2) (f) of the 1st Respondent’s Constitution does not accord the Appellants that authority since it specifies that their role is to recommend the names of the persons to be nominated. It was submitted that their recommendations are not final and binding to the 1st Respondent.

It was submitted in respect to the issue that the 1st Respondent did not file its Response to the Appellant’s Claim at the PPDT that the proceedings of the PPDT do not show that the Tribunal examined whether the Amended Claim was served on the Respondent. Ms Mboce submitted that even if the Respondent were absent, this is not guarantee that the Claim by the Appellants would succeed and that the decision of the PPDT is not supported by the law. Counsel urged this court to dismiss prayers (b), (c), (d), (e) and (f) of the Appeal because what these prayers seek has been overtaken by events and the prayers sought, if granted, would affect parties who are not included in this dispute; that these parties have a legitimate expectation to be heard before any adverse orders are made against them. In that respect counsel cited Jubilee Party of Kenya v. David Kimeli Leting & Another in Election Petition Appeal No. 86 of 2017 reported in [2017] eKLR in which the court considered the effect of making adverse orders against a party that is not before the court and found that such an action would be against the rules of natural justice. The Appellants are urging this court through their counsel to allow prayer (a) of the Appeal and set aside the judgment of PPDT.

The 3rd Respondent through its counsel Mr. Osando submitted that the 3rd Respondent is mandated by Article 90 of the Constitution and Section 34 of the Elections Act to supervise the conduct of elections in respect of party lists and that the 2nd Respondent received the list prepared by the 1st Respondent.

In his rejoinder, Mr. Nyaberi submitted that the amended claim was served on the 1st Respondent and that there was no complaint that this was not done; that the Appellants made efforts to have the 1st Respondent address their grievances without success and therefore the only alternative left was to file the Claim at the PPDT; that the Appellants admit that they are not the final authority on the compilation of the party list but that they have a major role to recommend names to the 1st Respondent and this is what they did; that the role of the 1st Respondent is to forward the names received to the 2nd Respondent and that the issue on jurisdiction was not raised before the PPDT.

Determination

I have taken time to read with care all the pleadings, the submissions and the cited authorities. I have also read the proceedings before the PPDT and the judgment. The proceedings dated 24th July 2017 are brief. There is a consent order granting the Respondents up to the close of the day on 25th July to file and serve its reply to the Claim and parties to exchange written submissions on or before close of the day on 27th July 2017. Judgment was scheduled for the same day 27th July 2017. There is nothing to show whether parties complied with the consent order because the next stage of the proceedings show coram when judgment was delivered. The manner in which proceedings are taken is crucial to a case because proceedings, inter alia, form the record to which parties turn in the event they wish to appeal and higher courts refer in case the matter goes on appeal.

Jurisdiction

The jurisdiction of PPDT is provided for under Section 40 (1) of the Political Parties Act. To my mind the matter before me is a dispute between members of Jubilee Party and the Party. The dispute therefore falls under Section 40 (1) (b) of the Political Parties Act. Under sub-section (2) of Section 40, a party cannot take the matter to the PPDT unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms. In this case the Appellant are claiming that they had written several letters to the 1st Respondent without receiving response. To my mind, writing letters complaining about what has gone wrong is not enough. The Appellants ought to have presented before this court evidence that they filed a claim before the 1st Respondent and the 1st Respondent has failed to hear them. Be that as it may, even if this court were to take it that the 1st Respondent was aware of the complaint by the Appellants through those letters and failed to address the grievances, did the PPDT have jurisdiction to entertain this matter? My quick answer to this question is in that PPDT did not have jurisdiction to determine the matter brought before it in Claim No. 387 of 2017 or to make the orders it made.

The 2nd Respondent is the body mandated under Article 90 (2) to supervise the conduct of the elections in respect to party lists. The elaborate procedure provided under Section 34 of the Elections Act, specifically Section 34 (6A), is clear that once the 2nd Respondent receives the party list from a political party, it shall review the list to ensure compliance with the prescribed regulations and (a) issue the political party with a certificate of compliance; or (b) require the political party to amend the party list to ensure such compliance failing which the 2nd Respondent shall reject the list. If any political party is not satisfied with the manner in which the 2nd Respondent has acted, it files a complaint with the 2nd Respondent and/or the High Court. Section 74 of the Elections Act is specific that any dispute arising from nominations (Article 88 (4) (e)) shall be settled by the 2nd Respondent. The law does not mandate PPDT to determine such a complaint. The 2nd Respondent is the body mandated under the law to scrutinize the party list presented to it to ensure compliance with the law. On this point I agree with the Respondents that PPDT has no mandate in this. I agree with the judges in the David Kimeli Leting case and Mohamed Abdikadir Salah case cited above. PPDT did not have jurisdiction to entertain this matter.

On the issue in respect of the mandates of the Appellants and the 1st Respondents in preparing party lists, I have looked at the law specifically Article 7 (2) (f) of the 1st Respondent’s Constitution. It mandates the County Executive Committee to recommend to the National Executive Committee persons to be considered for nominations as Party representatives to various bodies within the County. A reading of the Constitution and the Elections Act shows that nomination of persons to party lists is done by a political party. I am alive to the fact that a political party is made up of various organs. County Executive Committees and National Executive Committee are some of these organs. It is the mandate of the County Executive Committee to recommend persons to be considered. In its very basic meaning recommend means to suggest that someone or something would be suitable for a particular purpose. Merriam-Webster online dictionary defines recommend as: “to present as worthy of acceptance, to endorse as fit, worthy or competent”. My understanding of “consider” is to think deeply and carefully about something or to give it attention before taking a decision on it. Its synonyms are: “think about, contemplate, reflect on, examine, appraise, review etc.” I think I am not wrong in holding the view that these words, “recommend to be considered”, are used deliberately to show that the County Executive Committees is not the final say in matters party lists. Their mandate is simply to recommend to the 1st Respondent which then considers the suitability of persons so recommended to party lists. The 1st Respondent through its National Executive Committee makes the final decision on the party lists and submits the same to the 2nd Respondent. If they breach the law, the 2nd Respondent is mandated to address that anomaly before accepting the list and may either accept the party list as submitted and issue the political party with a certificate of compliance or require the political party to amend the party list to ensure compliance as provided under Section 34 (6A) of the Elections Act. Failure to comply leads to rejection of the party list.

This court was told that the 2nd Respondent accepted the party list submitted by the 1st Respondent and published it on 23rd July 2017. This is admitted by the Appellants.

To settle this matter, it is my considered view that the Appellants did not have the final say in the determination of the final party list and their mandate was discharged once they made their recommendations of the persons to be nominated to the 1st Respondent.

Now turning on the issue that the 1st Respondent did not file the Response to the Claim before the PPDT, it is true that the document annexed to the Supporting Affidavit of Peter Mwangi Kahara and marked ‘PMK1’ bears no court stamp. It was not filed before the PPDT. This court was told that the Appellants did not serve the Amended Claim to the 1st Respondent as a result that they were unable to file the Response to the Amended Claim although counsel was not very specific on the reason for failure by the 1st Respondet to file the Response. Be that as it may, my reading of the proceedings before the PPDT does not show whether the Tribunal ever addressed itself as to the service of the Amended Claim or failure to file the Response by the 1st Respondent. The Amended Claim bears 27th July 2017, the date when the judgment was delivered. I however note that the judgment shows that the 1st Respondent did not file a response to the Claim. PPDT took that failure on the part of the 1st Respondent to mean that they did not contest the Claim. Whether or not the 1st Respondent did or did not contest the Claim, the law does not vest the jurisdiction to determine this matter on the PPDT. As submitted by Ms Mboce even if the 1st Respondent did not respond to the Claim, the Appellants were expected to proof their Claim before a body vested with jurisdiction to determine such a claim.

Having considered the submissions and the law it is my considered view this Appeal is not meritorious and must fail. Consequently, I hereby dismiss this Appeal in its entirety. The orders sought by the Appellants cannot issue for the reasons given in this judgment.  I hesitate to award costs to the 1st Respondent. However, it is my view that the 2nd Respondent ought not to be in court and its presence was necessitated by being included in these proceedings by the Appellants. I therefore order the Appellants to pay costs to the 2nd Respondent but limited to this Appeal only.

Orders shall issue accordingly.

Delivered, signed and dated this 5th day of September 2017.

S. N. Mutuku

Judge