Wanda v Juma & another; Iebc (Interested Party) (Complaint E004 (KK) of 2022) [2022] KEPPDT 1025 (KLR) (19 May 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 1025 (KLR)
Republic of Kenya
Complaint E004 (KK) of 2022
ML Odongo, Presiding Member, T K Tororey & L Wambui, Members
May 19, 2022
Between
Geoffrey Wanda
Complainant
and
Sebastin Juma
1st Respondent
Democratic Action Party – Kenya
2nd Respondent
and
Iebc
Interested Party
Judgment
Summary background to the Complainant’s case
1.The Complainant and the 1st Respondent herein are members of the 2nd Respondent, known as the Democratic Action Party – Kenya (DAP-K).
2.The Complainant contested for the DAP-K nominations for Member of the County Assembly for Bunyala West Ward, Navakholo Constituency, Kakamega County on April 16, 2022, which nomination was conducted through direct nomination by way of vetting at the 2nd Respondents Lurambi Constituency office;
3.Prior to the said nomination, the aspirants and DAP-K settled on vetting as the preferred method of nomination and only 2 candidates appeared for vetting for the position in issue, that is the 1st Respondent and the Complainant.
4.At the close of the vetting, the vetting officer one Kasisi Fred produced the results, and it is clear that the Complainant scored more marks; that is 243 against the 1st Respondent who scored 222 marks;
5.Though the Complainant had emerged as the winner, he was never issued with the Nomination Certificate for the said position by the 2nd Respondent. Instead he learnt that the 2nd Respondent had issued the Nomination Certificate to the 1st Respondent under unexplained circumstances.
6.The Complainant lodged a complaint with the 2nd Respondent Internal Dispute Resolution Board, which ruled in his favour and revoked the 1st Respondent’s nomination.
7.However, the Complainant has not been granted his Nomination Certificate by the 2nd Respondent and he therefore prays for Orders for;a.A permanent injunction restraining the 2nd Respondent and or her agents, officials and/or persons claiming through her from forwarding any other name to the Interested Party for geazettement and/or in any way to confirm the same name as the name of the suitable candidate to contest for the position of Member of County Assembly for Bunyala West Ward, Navakholo Constituency, on the 2nd Respondents ticket in the August 2022 National General Elections;b.An order directing the 2nd Respondent to forward the name of the Applicant herein to the Interested Party to gazette the Applicant herein as the suitable candidate to contest for the position of Member of County Assembly for Bunyala West Ward, Navakholo Constituency as the 2nd Respondents candidate in the August 2022 National General Elections;b.ii.An Order directing the 2nd Respondent to forward the name of the Applicant herein to the Interested party to gazette the Applicant herein as the suitable candidate to contest for the position of Member of County Assembly for Bunyala West Ward, Kakamega County, Navakholo Constituency as the 2nd Respondents Candidate, in the August 2022 National General Elections;c.An order to the Interested Party to gazette the Applicant herein as the suitable candidate to contest for the position of Member of County Assembly for Bunyala West Ward, Navakholo Constituency as the 2nd Respondents candidate in the August 2022 National General Elections;d.Costs and interests of this case;
8.In support of his claim, the Complainant has submitted a signed affidavit from one Kasisi Fred Shijenje, dated May 9, 2022, by which he avers that he was one of the panelists who vetted the Complainant and that he was the one who announced the final results in which the Complainant won and his name was then forwarded to the 2nd Respondent to award the Nomination Certificate.
9.On May 19, 2022, the Claimant vide his Outline Submissions averred that he has proved his case on a balance of probabilities and this calls for issuance of orders, as he has met all the conditions set out in the law and accentuated by judicial decisions.
The 1st Respondent’s submissions
10.The 1st Respondent submits that he is a fully registered life member of the Democratic Action Party- Kenya having paid the due Registration Fees and Nomination Fees totaling Kshs 30,000 and he was a given a receipt dated 16th March, 2022.
11.He states that the Applicant and himself expressed interest in contesting the seat for Member of the County Assembly for Bunyala West Ward, Navakholo Constituency, Kakamega County as the 2nd Respondent's Candidate in the August, 2022 National General Elections.
12.He avers that the Party undertook Nominations through consensus.
13.The 1st Respondent concurs that in addition to the said consensus they appeared before a vetting panel on April 16, 2022.
14.He says that during the vetting, the panel inquired on whether they had chosen between themselves, on who was going to represent the party in the elections by coming to a consensus.
15.The 1st Respondent confirms that they were unable to come to a consensus and they signed documentation stating that the vetting panel would make the final decision upon their investigation of the situation on the ground and in consultation with the public on their most preferred candidate.
16.He submits that upon completion of their investigation and consultation he was chosen to represent the party as their candidate.
17.He states that there were scientific opinion polls conducted by the panel after which results were released.
18.The 1st Respondent avers that the questionnaire presented by the Complainant is alien to him and is inauthentic as the same does not have the Party letter head or any form of authentication from the Democratic Action Party of Kenya.
19.He states that the Party Chairman confirmed to him, via tele conversation, that he had been awarded the candidature.
20.He also denies that he was served with any complaint and that neither was he invited to any proceedings with the 2nd Respondent's Electoral Board and Internal Dispute Resolution Board to which the Complainant alleges to have reported to.
21.The 1st Respondent avers that he was not served with the decision of the Exparte exercise, thus denying him his rights and violating his right to fair hearing.
22.He submits that in any event it is a requisite of the Democratic Action Party- Internal Dispute Resolution Board Regulations that a mandatory fee of Kshs 50,000 is paid before proceedings are undertaken. He therefore, demands the Complainant provide proof of this payment. He submits that the impugned ruling is therefore a nullity for want of the mandatory requisite fee payable.
23.He affirms that his nomination as the Party's candidate was never revoked.
24.He further states that the Nomination Certificate presented by the Complainant is a forgery and contains an inauthentic signature of the Chairman and the Secretary General.
25.He avers that the Party issued him with a Nomination Certificate on the 28th of April, 2022 dated the 19th of April, 2022. However, he was issued a second one as the first Nomination Certificate had a clerical error in the spelling of his name and he was issued with a rectified Nomination Certificate, also dated the 19th of April, 2022 and signed by the Chairman and the Secretary General.
26.The 1st Respondent avers that he could not have appealed a decision whose entry he was unaware of and thus the Complainant was not the undisputed suitable candidate to be forwarded to the Interested Party as the Party's Candidate.
27.He further states that the list for persons being forwarded to the Interested Party as Candidates for the 2nd Respondent was confidential and thus the Complainant has not stated how he came across information that he should not have access to.
28.He further submits that the copy of the list produced by the Complainant is a print out of an excel spread sheet and is inauthentic as there is no signature affixed by any party official to authenticate the same.
29.The 1st Respondent wishes to state that due process and procedure were followed during the Party Nominations in which he emerged successful.
30.He avers that the party made an informed decision upon failure of consensus through their investigations and in consultation with the public thus honoring the essence of democracy.
31.The 1st Respondent therefore prays that this Tribunal dismiss the complaint with costs.
The 2nd Respondent
32.The 2nd Respondent did not submit any representation or submissions despite being served by the Complainant.
Issues For Determination
33.We have identified the following issues for determination:a.Is this complaint justified?b.What orders should issue?
Analysis
34.It is apparent from the record before us that the Complainant participated in the DAPK nominations for Member of County Assembly for Bunyala West Ward, Navakholo Constituency, Kakamega County position, following which he lodged a complaint being with the Internal Dispute Resolution Board.
35.The ruling delivered by the said internal dispute resolution organ confirms that notice of the hearing was served vide WhatsApp to both parties, being the Complainant herein and the 1st Respondent and that the said Respondent failed to appear.
36.The 1st Respondent opted not to appear before the party organ and has not disputed the telephone number indicated by the said organ.
37.Be that as it may, even now the said 1st Respondent cannot show how the process that identified him as most suitable was conducted while the Complainant has ably shown how he acquired the ticket in issue.
38.The Complainant was awarded a ticket after a process and this was upheld by the party organ. We have seen no reason why the party IDRM ruling delivered on April 22, 2022 should not be upheld.
Conclusion39In light of our analysis we order as follows:a.The process applied by the 2nd Respondent herein which resulted in the issuance of a DAP-K [Democratic Action Party Kenya] to SEbastin Juma the 1st Respondent as its nominee for the position Member of County Assembly for Bunyala West Ward, Navakholo Constituency in the coming August 2022 general election herein is unlawful, null and voidb.The nomination certificate issued to the said Sebastin Juma in lieu of the impugned process in (a) above is hereby revoked.c.That a [Democratic Action Party Kenya] DAP K nomination certificate for the position of Member of County Assembly for Bunyala West Ward, Navakholo Constituency in the coming August 2022 general election hereby forthwith issue to Geoffrey Wanda the Complainant herein.d.The cost of this complaint is awarded to the Complainant as against the 1st and 2nd Respondents jointly and severally.e.That notification of this order issue to the Independent Electoral and Boundaries Commission.
DATED THIS 19TH DAY OF MAY 2022M. L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)