Orina v United Democratic Alliance; Independent Electoral and Boundaries Commission (Interested Party) (Complaint 39 (KSM) of 2022) [2022] KEPPDT 1062 (KLR) (8 September 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 1062 (KLR)
Republic of Kenya
Complaint 39 (KSM) of 2022
W Mutubwa, Vice Chair, F Saman & S Walubengo, Members
September 8, 2022
Between
Nicholas Anuona Orina
Complainant
and
United Democratic Alliance
Respondent
and
Independent Electoral and Boundaries Commission
Interested Party
Judgment
1.This matter relates to the nomination of candidates for Member of County Assembly for Kisii County though Party lists. The matter was filed on August 31, 2022 and heard on September 7, 2022 though oral submissions.
2.The Respondent, despite service, did not attend the hearing nor did it file a response The Complainant filed an Affidavit of service demonstrating service on the Respondent. We were satisfied with the service and proceeded to hear the matter.
Complainant’s Case
3.Mr Mosioma urged the Complainant’s case. He relied on the Complainant’s pleadings. He stated that the Complainant’s name was removed from the list published on the online platform and newspapers by the Interested Party. He pointed out that the Complainant was previously number 1 on the Party’s nomination list but had since been inexplicably chopped from the subsequent list altogether. The original list was annexed to the Complainant’s Affidavit as annexure 4.
4.Counsel also stressed that the Complainant had attempted Internal Dispute Resolution Mechanisms (IDRM)of the party in compliance with Section 40(2) of the Political Parties Act, 2011, by writing a letter to the party. The letter is dated August 24, 2022. However, the letter was not responded to by the party.
5.Counsel urged us to allow the Complaint and issue the orders sought.
Analysis and Findings
6.We have carefully reviewed the Complainant’s case, documents and arguments, we now draw the following conclusions.
7.We are satisfied that the Respondent was served with the suit papers herein. The Respondent chose not to participate in the proceedings. As such, the allegations by the Complainant, evidence advanced and arguments made, are uncontroverted. Be that as it may, the Complainant is still under a duty to discharge his burden of proof to the required standard.
8.We are convinced that the Complainant’s case has merit. There is no plausible explanation for his removal from the party list. We have previously said that Political Parties should always be the vanguards of the principles of transparency, democracy and fairness in their dealings. Indeed, these are some of our national values underpinned in Article 10 of our Constitution. Political Parties cannot their members whimsically or capriciously.
9.We are also satisfied that the Complainant “attempted” IDRM by writing a letter to the party. We have held, several times before, that a letter suffices for purposes of Section 40(2) of the Political Parties Act 2011.
Disposition
10.In the upshot, we allow the Complaint and make the following Orders:1.The Complaint is allowed.2.We direct the Respondent to submit, within 24 hours, to the Independent Electoral and Boundaries Commission; an amended list of its nominees to the Kisii County Assembly including the Complainant’s name among those to benefit from nomination to the County Assembly.3.The Respondent shall bear the Complainant’s costs of this matter.
DATED AT NAIROBI THIS 8TH DAY OF SEPTEMBER, 2022HON. DR. WILFRED MUTUBWA OGW C. ARBVice Chairperson – PresidingHon. Fatuma Ali -MemberHon. Walubengo Sifuna -Member