Kipchirchir v Returning Officer (Baringo Central) & 2 others; Chesire (Interested Party) (Complaint E009 (NRB) of 2022) [2022] KEPPDT 1067 (KLR) (28 June 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 1067 (KLR)
Republic of Kenya
Complaint E009 (NRB) of 2022
Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members
June 28, 2022
Between
John Boiywo Kipchirchir
Complainant
and
Returning Officer (Baringo Central)
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
Kenya African National Union
3rd Respondent
and
Alice Jepchumba Chesire
Interested Party
Judgment
1.The Complainant is a Registered Voter and Constituent of Baringo Central is a Member of the 3rd Respondent. He is contesting for the position of Member of Parliament, Baringo Central in the forthcoming General Elections and contends that he is the bona fide Party Nominee.
2.When the 3rd Respondent invited Applications from its Members for nominations for several elective positions, the Complainant submitted his name and it emerged that he was the sole applicant for consideration for the Baringo Central Parliamentary seat.
3.The Complainant avers that the 3rd Respondent erroneously submitted the name of the Interested Party to the 2nd Respondent in its final list of Parliamentary Candidates of the General Elections slated for 9th August 2022. In effect, the Interested Party was listed as KANU’s Baringo Central Candidate in the final list of Parliamentary Nominees. The Complainant was aggrieved and lodged an official Complaint with the 3rd Respondent’s Dispute Resolution Committee seeking for his clearance and recognition as the bona-fide nominee. The 3rd Respondent’s dispute resolution committee acknowledged the error and unanimously resolved to uphold his nomination.
4.However, the Complainant’s efforts to be cleared by the 1st Respondent were unsuccessful as he was told that the submission of his nomination papers were considered late for reasons beyond his control. The Complainant then lodged a complaint, DRC 158 OF 2022-John Boiywo Kipchirchir-Vs-Returning Officer Baringo Central. In its ruling dated 15th June 2022, the 2nd Respondent’s Dispute Resolution Committee Ruled that it lacked jurisdiction to handle the dispute.
5.The Claimant fears that due to the actions of the 2nd and 3rd Respondents, his political Rights will be infringed upon and is a subversion of justice.
6.The Complainant posits that the 2nd and 3rd Respondents have a duty to respect the rights of all person to participate in the political process including youth minorities and marginalized groups and to uphold and promote democratic practices through regular fair, free, and credible elections. He further contends that he has invested vast financial and psychological fortune in an attempt to bolster his candidature for the Baringo Central Parliamentary seat and should not suffer from the mistake of the 3rd Respondent, and to deny him an opportunity to contest on account of clearance will condemn him to suffer substantial loss, mental anguish, psychological torture, distress and embarrassment.
7.The Complainant moved this Tribunal by filing a Complaint, a notice of motion application under certificate of urgency all dated 21st June 2022 which application was supported by a supporting affidavit sworn by the complainant and various annexures. An affidavit of service dated 25th June 2022 is duly on record as evidence of the complainant having effected service upon the parties.
8.The Application by the Complainant, represented by Ochutsi Munyendo & Company Advocates was heard and the following attendant orders and directions were issued on the 22nd June 2022 accordingly; The Tribunal then issued the following directions: -
9.Further, the parties then agreed that the Notice of Motion Application and the Complaint be heard and determined contemporaneously as such the responses to the Application for the 1st, 2nd and 3rd Respondents together with those of the Interested party be deemed as their respective responses to the Complaint.
10.The matter proceeded on the 26th of June 2022 for hearing with the Complainant, 3rd Respondent and the interested party present and/or represented. Submissions were briefly highlighted. The 1st and 2nd Respondents were not present and did not file any pleadings or submissions.
Claimant’s Case
11.As to the question of whether the Tribunal has the requisite jurisdiction, the Complainant posits that the Constitution of Kenya upholds a myriad of rights, such as guaranteeing the citizenry of unfettered access to justice. He prudently strives to determine the meaning of and draws the Tribunals attention to whether the court has jurisdiction to entertain, hear and determine a suit, as provided under Section 5 of the Civil Procedure Act.
12.As to whether this tribunal has jurisdiction, the Complainant states that the Constitution of Kenya, 2010 is framed in a manner that upholds a myriad of Rights amongst them guaranteeing the Citizenry an unfettered access to justice. Article 48 provides that, ‘the State shall promote the Right to access Justice’. The Right to access Justice is however, limited to the extent that it must be canvassed from an appropriate forum. It was argued that any appropriate forum to access Justice upon institution of a suit would be dependent on the question of which court has jurisdiction over the parties, and the subject matter of the case in any prevailing circumstances.
13.He states that jurisdiction is a phenomenon governed and pre-determined mostly by the Constitution, the Statutes and Court Rules and posits that this Tribunal has powers conferred to it by Article 159(1) of the Constitution to exercise judicial authority. He strives to determine the meaning of the term jurisdiction. According to Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 defines “jurisdiction” as:
14.He quotes John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113 reiterates the definition of the term ‘jurisdiction’ as follows:
15.From these definitions, it is clear that the term “jurisdiction”, as further defined by The Black’s Law Dictionary, 9th Edition, is the Court’s power to entertain, hear and determine a dispute before it.
16.He states that the law has set parameters to guide the Court in judging and guiding itself on whether it has jurisdiction to entertain, hear and determine a suit, as provided under Section 5 of the Civil Procedure Act, CAP 21, Laws of Kenya, “Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.”
17.The Supreme Court in the decision of Re: The matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011 (unreported) at paragraphs 29 and 30 discussed the issue of jurisdiction in the following manner: -
18.He relies on the case of The Lilian ‘S’ case which establishes that jurisdiction flows from the law, and the recipient is a Court which is to apply the same, with any limitations embodied therein. In addition, in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 the same Court expressed itself as follows:
19.He states that the Constitution of Kenya 2010 has pronounced itself clearly on the jurisdictional competencies of various courts of law in Kenya and the drafters of the Constitution had the intention of clearly demarcating the jurisdictions of the said Courts so as to mitigate lacunas and conflicts. Article 169(2) of the Constitution has given Parliament powers to enact statues establishing conferring jurisdiction, functions and powers to other Courts and Tribunals.
20.He states that the drafting and wording of Article 169(1) (d) paved way for enactment of several statues that include Political Parties Act No. 11 Of 2011 and Section 2 of the Political Parties Act No 11 of 2011 in the Interpretations section defines Tribunal as " “Tribunal” means the Political Parties Disputes Tribunal established under section 39. In addition, Section 40 of the said act clearly demarcates the Jurisdiction of the Tribunal and provides that:The Tribunal shall determine—
21.Additionally, Section 40(2) of the Political Parties Act No 11 provides that,
22.The Complainant contends that he was the sole applicant for Nomination by the Party in Baringo Central Parliamentary position and maintains that having met the pre-requisite party conditions, he was granted the Certificate of Nomination as the 3rd Respondent’s Nominee.
23.However, he confirms that the 3rd Respondent erroneously submitted to the 2nd Respondent the name of Hon. Alice Jepchumba Chesire, the Interested Party, as the 3rd Respondent’s Parliamentary Nominee for the Baringo Central position and once he became aware of this anomaly, raised his Complaint to the Party via a complaint letter dated 30th May 2022.
24.In an effort to remedy the situation, the 3rd Respondent informed the Interested Party that she had been erroneously fronted as the 3rd Respondent’s Baringo Central Parliamentary Aspirant in a list forwarded to the 2nd Respondent.
25.The Complainant stated that he appeared before the 3rd Respondent’s Dispute Resolution Committee alongside the Interested Party and that upon being heard, the 3rd Respondent’s Dispute Resolution Committee unanimously approved to rectify the anomaly by upholding his nomination.
26.However, he was not cleared to vie by the 1st Respondent and lodged a complaint namely DRC 158 OF 2022 - John Boiywo Kipchirchir -vs- Returning Officer Baringo Central where he sought for his clearance and recognition as the bona-fide Baringo Central Party Nominee.
27.In citing Article 20(4) that the Complainant draws attention to the constitutional interpretation by tribunals when it provides:
28.Further reliance is sought in Article 24(3) of the Constitution that foresees the question of limitation of rights arising before a tribunal and as a state organ established by authority of Article 169(1)(d) of the Constitution, this Tribunal is obligated by Article 21(1) to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.
29.The Complainant canvasses the right to fair administrative action by citing Article 47(3) that provides that Parliament shall enact legislation to give effect to the rights and that legislation shall provide for the review of administrative action by a court or if appropriate, an independent and impartial tribunal; and(b) promote efficient administration. In addition, Parliament has since enacted the Fair Administrative Action Act, 2015 whose section 7(1) provides that any person who is aggrieved by an administrative decision may apply for review of the decision inter alia to a tribunal in exercise of its jurisdiction conferred in that regard under any written law.
30.The Complainant questions whether the complaint can be lodged after lapse of the independent electoral and boundaries commission statutory timelines towards the August 2022 general election. In Article 88 (l) of the Constitution that establishes the IEBC, its responsibilities are set out under sub clause 4 (d) which provides: “The commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this constitution and any other elections as prescribed by an Act of parliament and in particular for-
31.The 2nd Respondent issued statutory timelines in its press Release from the 2nd Respondent’s Chair whose subject was “STATUTORY TIMELINES TOWARDS THE 9TH AUGUST 2022 GENERAL ELECTION”
32.In his Application, the Complainant sought for orders that pursuant to the Independent Electoral and Boundaries Commission statutory timelines towards the 2022 general election issued on 5th of April 2022, to extend time and grant leave to the applicant to file this complaint.
33.He states that the 2nd Respondent had tasked the Political Parties to conduct nominations and resolve any intra-party disputes on or before Friday 22nd April 2022 and submit the names of persons selected to contest in the General Election on or before Thursday 28th April, 2022 and that in adherence to the 2nd Respondent’s statutory timelines and in respect of electoral values, the Party submitted the names of persons selected to contest in the General Election on or before April 28th 2022.
34.He avers that on the 15th of June 2022, the 2nd Respondent’s Dispute Resolution Committee ruled that it lacked jurisdiction to handle the dispute and that the Chair of the Dispute Resolution Committee directed that copy of the ruling would be supplied to the Complainant on the 17th of June 2022.
35.The Complainant depones that as of the 17th of June 2022, the 2nd Respondent’s Dispute Resolution Committee Ruling was not ready at the IEBC Registry and that his Advocates formally wrote requesting for it.
36.He states that a signed copy of the Ruling was supplied to his Advocates on 20th of June 2022 and that upon obtaining a signed copy of the said ruling the applicant’s advocates received instructions to lodge the Complaint herein after the period of filing the Complaints had lapsed hence the delay.
37.He cites the case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others SC Petition No. 2B of 2014; [2014] eKLR while considering the rationale of Article 87(1) which requires Parliament to create a mechanism for timely resolution of electoral disputes, the settlement of electoral disputes to time, and the Constitutional emphasis on the principles of efficiency and diligence, in the construction of vital governance agencies. This consideration addresses the historical problem of delayed electoral justice, that has in his opinion, plagued this country in the past as was highlighted in the case of Lemanken Aramat v. Harun Meitamei Lempaka & 2 others SC Petition No. 5 of 2014; [2014] eKLR.
38.He relies on Section 95 provides of the Civil Procedure Act provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired
39.Ordinarily the party seeking extension of time and leave has the burden of laying a basis to the satisfaction of the court. From the face of the application, the Complainant contends that he has demonstrated satisfactorily as to why time in lieu of the statutory timelines of the 2nd Respondent needs to be extended and that the complaint having been lodged in time.
40.The tribunal was moved to take cognizance of Article 159(2)(d) of the Kenya Constitution 2010, which unfetters the Court from the clutches of technical subservience and especially where procedural technicalities pose an impediment to the administration of justice.
41.He posits that it is in the interest of justice that he is heard and the dispute determined. Being of the believe that this Tribunal has jurisdiction to handle the dispute, it is his contention that the dispute can only be heard once time is extended and the Complainant granted leave. The Complainant submits that the extension of time is an equitable remedy that is only available to a deserving party at the discretion of the court. As such he feels that he is reasonably and justifiably satisfied that this Tribunal is clothed with both the constitutional and legal jurisdiction to grant the prayers and reliefs sought and urges this Tribunal not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice depending on the appreciation of the relevant circumstances and the requirements of this extra- ordinary case.
42.The Complainant then delved into the issue of whether any of his rights have been infringed on. In his written submissions and subsequently highlighted by his advocates at the hearing, the complaint discloses that his first-generation class of human rights have been infringed or threatened with infringement as to affect his political rights. He cites the case of John Mining Temboi & Another vs Governor of Bungoma County & 17 Others [2014] eKLR, Mabeya J observed that:
43.The Complainant highlighted specific sections of Article 5 of the KANU Constitution providing amongst other things, the rights and duties of members and stated that he sought for nomination of the party to contest for Baringo Central Parliamentary seat and this membership right is on the verge of being dethroned despite the Complainant being the sole Applicant. He relied on Section 16(2) of the Elections (Party Primaries and Party Lists) Regulations, 2017 provides that:(2)as the party nominee.’
44.The Complainant avers that the 3rd Respondent had devised a technological tactic to hinder the said nomination. He posits that this is a classical denial of the political rights as contemplated by Article 38 of the Constitution as the 2nd Respondent had already published an elaborate electoral roadmap with guidelines as to the conduct of the Elections.
45.The complaint discloses a claim involving the violation of the fundamental right to vie for Baringo Central Parliamentary seat. In the case of Anarita Karimi Njeri vs R (1979) KLR 154 and Githunguri Dairy Farmers Co-operative Famers Society Ltd vs Attorney General & 2 others [2016] eKLR it was held that the burden of proof that a fundamental right has been breached rested upon the person who asserts it.
46.The Complainant then turns his attention to the question of his right to legitimate expectation. He posited that it is not enough that an expectation should exist; it must, in addition, be legitimate. 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. He cited the case of Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others where 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."
47.He stated that the Respondents have jointly violated the Complainant’s legitimate expectations. Having been a bona fide Member, the Complainant accrued the right to contest for a political position. The 3rd Respondent called for applications from Members desirous of vying in the August 2022 Elections. There being no other Applicant, he was handed the nomination certificate.
48.He states that the Press release by the 2nd Respondent created a legitimate expectation. In addition, upon issuance of the Nomination Certificate, the 3rd Respondent created a legitimate expectation to the Complainant. In Paragraph 4 of the Press release dated 5th of April 2022 addressed to political parties outlined the key statutory election timelines that Political Parties and Independent Candidates should observe. Further, that the names of persons selected to contest in the General Elections should be submitted on or before Thursday, 28th April, 2022 as prescribed in the schedule of the Elections (General) Regulations, 2012.
49.Having satisfied the pre-requisite party requirements and nomination, he thus had a legitimate expectation that upon issuance of the Nomination Certificate, the Party would submit his name as that of the Baringo Central Nominee in the prescribed manner.
50.He stated that by submitting the name of the Interested Party was an outright breach of this legitimate expectation, and that even after lodging his complaint with the Party, it was his expectation that the anomaly would have been timeously mitigated to enable his clearance and subsequent gazettement.
51.He avers that at the time the anomaly was being rectified, the statutory timeline had lapsed. That notwithstanding, the Complainant asserts that late submission of clearance papers was not amongst the reasons stated by the Commission in its press release that would lead to rejection of a candidate’s nomination.
52.Further the 2nd Respondent in the Press brief states that:i.The Commission shall reject the candidature of any person nominated by a political party for any elective position, if that candidate is not qualified or eligible for election under the Constitution, the Elections Act, 2011 or any other written law.ii.A Nomination Certificate issued to a candidate nominated to participate in the General Election shall be signed by the duly authorized party official(s).iii.The Commission shall reject a Nomination Certificate that is not duly signed and/or bears any alterations. The Complainant asserts that the applicable test herein would then be to ascertain whether the Complainant falls short of the three-fold test that would suffice for rejection of his Nomination. To his mind, once a reasonable expectation exists the Respondents are required to act in accordance with that expectation, except if there are public interest considerations which outweighs the individual’s expectation. Procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken.
53.He posits that the Tribunal should employ a two-step approach to ascertain whether the Complainant had any legitimate expectation. Firstly, it should ascertain whether the Respondents 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, that is enforce the legitimate expectation.
54.The requirements for the existence of such an expectation in South African law (which he posits as legislation is similar to ours) were restated in National Director of Public Prosecutions v Philips.[4] These include: -
55.He states that having established that such an expectation existed it is incumbent on the Respondents to respect it and afford the individual holding that expectation due procedure before the expectation is disappointed. The Complainant moves this Tribunal to find and hold that his lawful and legitimate bid to seek clearance from the 1st Respondent was wrongly impugned.
56.The Complainant then addresses the issue of whether parties herein have exhausted internal /alternative dispute resolution mechanism.
57.He states that Section 40(2) of the Political Parties Act prohibits this Tribunal from hearing and determining disputes between a member of a political party and a political party; unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms. In addition, Regulation 27(1) of the Elections (Party Primaries and Party Lists) Regulations, 2017, which provides that:
58.He relies on the judgment of Viscount Simon in HILL v WILLIAM HILL (PARK LANE) LTD [1949] AC 530 at page 546, and to which the Supreme court quoted in agreement that:
59.He firmly believes that it is for this reason that the party promulgated Section 32.3 of its Constitution which provides that:
60.Section 32.1 of the 3rd Respondent’s Constitution establishes the Dispute Resolution Committee and it follows that this Committee is the first port of call whenever a dispute arises. The Complaint has annexed, a complaint letter and minutes of the joint Dispute Resolution Committee and the National Elections Board held on the 1st of June 2022.
61.Further, that section 13 (2A) of the Elections Act requires political parties to hear and determine “all intra party disputes arising from political party nominations” within thirty days. That in essence implies that any form of dispute between members of a political party, including disputes arising out of party primaries, must first be placed before the 3rd Respondent’s IDRM.
62.The Complainant reiterates that the dispute arising out of nomination had already been resolved by the Party through its own Internal Dispute Resolution Mechanism. He refers to the Replying affidavit of the 3rd Respondent where it’s Director of Elections depones that:
63.He cites the case of Speaker of the National Assembly vs. James Njenga Karume (1992) eKLR, which found as follows- ‘In my view there is considerable merit in the submission that where there is a clear procedure of redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
64.Accordingly, where there is an alternative remedy provided by an Act of Parliament which remedy is effective and applicable to the dispute before the Court, the Complainant stated that the Court ought to ensure that the dispute is resolved in accordance with the relevant statute where an obligation is created by statute and a specific remedy is given by that statute, the persons seeking the remedy is deprived of any other means of enforcement.
65.He acknowledges that the Interested Party is of clean hands. The act of moving the 3rd Respondent’s Dispute Resolution Committee, cleansed him from any blame as it was in accordance with the 3rd Respondent’s Constitution.
66.The Complainant delves into the issue as to whether the complainant or the Respondent would suffer any prejudice. He stated that the administration of justice demands that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the prosecution of a suit so difficult and inoperative.
67.The Complainant avers that unless this Tribunal focuses on substantive justice and disregards all procedural technicalities then there are genuine fears that the Complainant will suffer substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay and the Complainant is likely to miss from the elections as there is a real likelihood that the 2nd Respondent will gazette the Cleared Baringo Central Aspirants Nominees as the recognized Contestants of the August 9th2022 Elections.
68.He stated that the 2nd Respondent is on the verge of gazetting all the cleared party Nominees in the Country and that already, his name is on the IEBC internal system by dint of the letter addressed to the IEBC, but the 1st Respondent has not cleared him.
69.He moves the Tribunal that in deciding rights of parties is to occasion justice and not punish them for mistakes of other parties. The failure to abide by the statutory timelines and or Rules and guidelines is clearly a mistake of the 3rd Respondent and which should not be visited on the Complainant as it will only occasion injustice as its failure to timeously comply and subsequent clearance is a special circumstance of a particular kind which is unique, beyond ordinary, regular and/or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism.
70.He reiterates that the mistake of the Political Party qualifies as a special circumstance, and this Tribunal should readily exercise its discretion to extend the period prescribed for compliance if it is shown to its satisfaction that the failure by an Aspirant to do a prescribed act within the period so prescribed was caused by the negligence or its inadvertence of his party.
71.The Complainant averred that he has invested vast financial and psychological fortune in an attempt to bolster his candidature for the Baringo Central Parliamentary Seat and should not suffer from the mistake of the 3rd Respondent. To deny him an opportunity to contest on account of clearance will condemn him to suffer substantial loss, mental anguish, psychological torture, distress and embarrassment.
72.In addition, the 3rd Respondent is likely to miss out on fielding a candidate in Baringo Central which is its stronghold. This would be heavily prejudicial given that the very nominee whose name was submitted never made any efforts to be cleared.
73.Further, he asserts that in her Replying Affidavit, the Interested Party depones that her name has equally been submitted for purposes of nomination in the Senate and she in not keen to vie for the Baringo Central parliamentary seat.
1st and 2nd Respondent’s Case
74.The 1st and 2nd Respondent despite being served choose not to file any pleadings or submissions in this case. Therefore, claims against them remain undefended.
3rd Respondent’s Case
75.The 3rd Respondent filed a replying affidavit together with various annexures by Urbanus K. & Associates Advocates all dated 24th June 2022.
76.The 3rd Respondent through its Director of Elections, Khany Ally, confirms by way of a replying affidavit and other annexures all dated 24th June 2022, confirms that he is the 3rd Respondent’s Director of Elections, a resident of Nairobi County within the Republic of Kenya and of Post Office Box No. 72394- 00200.
77.He believes that the Notice of Motion dated 2nd June 2022 is made in good faith and the Complaint as instituted is in the right forum and confirms that John Boiywo Kipchirchir is a valid Party Member and also the KANU Party Baringo Central Constituency Parliamentary Nominee for the August 2022 General Elections.
78.He confirms that in conducting its activities and affairs, the 3rd Respondent is governed by its constitution which is consistent with the 2010 Kenya Constitution, Political Parties Act and other relevant Electoral laws.
79.He confirms that the National Elections Board, began preparations for August 2022 Elections began on or about the year 2020 where the Party’s Information Technology Department devised a platform to allow for an advanced online application and the said online platform would help applicants desirous of procuring the Party’s nomination seats to contest in different elective positions during the August 2022 Elections and that the National Elections Board invited Applicants to make Applications upon which after application, applicant's would be vetted to ensure conformity and compliance to the Constitution of Kenya, KANU Constitution and the Elections Act. He went on state that on of April,2022, the Party received a press Release from the 2nd Respondent's Chair, subject was STATUTORY TIMELINES TOWARDS THE 9TH AUGUST, 2022 GENERAL ELECTION.
80.And that through the online portal, the Party received several applications for contestants of different elective posts and that the Complainant was the sole Applicant for Baringo Central member of National Assembly and given that the Baringo Central Member of Parliament Nomination had not attracted any other candidate, the Party resolved to nominate Hon. John Boiywo and issued him with a nomination certificate.
81.He went on to state that in adherence to the Respondent's statutory Timelines and in respect of electoral values, the Party submitted the names of persons selected to contest in the General Election on or before April 2022 and that while the Party’s officers were verifying the names of the persons submitted to the 2nd Respondent, it was discovered that the Party had erroneously submitted the name of the Interested Party.
82.He stated that he was aware that the Interested Party never submitted her name as contestant in the party primaries neither was she interested to vie for an elective position at Baringo Central and that word had reached Hon. John Boiywo Kipchirchir that his name had been erroneously omitted from the list of persons nominated to contest.
83.He was aware that the Complainant ferociously and aggressively sought for explanation from the Party officials which was accompanied by complaint letter dated 30th May 2022 given that the Party’s Constitution bars Members from seeking Judicial remedy as a first port of call as the Party aim is to promote in Kenya principles of and practice of democratic governance based on transparency and accountability and to foster and strengthen democratic values and human rights.
84.He stated that Article 32 of the Party’s Constitution establishes the Disputes Resolution Committee which committee adjudicates on disputes arising from party primaries amongst a plethora of disputes and that the Party’s Dispute Resolution Committee indeed held a joint session with the National Elections Board where the Interested Party and the Complainant were heard.
85.He confirms that in unanimity, the joint session resolved to uphold the prior nomination of Hon. John Boiywo Kipchirchir as attested to by of the Complainant's annexures and that on the of June 2022, the Party wrote to the Respondent informing them of the anomaly and the decision to uphold the nomination of Mr. John Boiywo as the Baringo Central Nominee.
86.He states that he later learnt that Complaint was not cleared by the 1st Respondent for allegedly submitting his nomination papers late and that in the circumstances, it would have been difficult for the Complainant to timeously submit his papers for clearance given that his name originally did not feature as the Party nominee.
87.He confirms that the Complainant further lodged a complaint with the Dispute Resolution Chamber herein DRC158 OF 2022 JOHN BOIWO KIPCHIRCHIR-VS-RETURNING OFFICER BARINGO CENTRAL He states that he was informed by Advocates that the Dispute Resolution Committee ruled that it was deprived of jurisdiction and could not handle the dispute.
88.He seeks that in the interest of justice moves this Tribunal to guard the Complainant from being punished for mistakes he didn't make. He acknowledges that the technology-instigated error emanated from the Party’s system and consequent failure to abide by the Rules and guidelines is clearly a mistake of the Party and which should not be visited on the Complainant as it will only occasion injustice and prays that the application be allowed.
Interested Party’s Case
89.The 3rd Respondent filed a replying affidavit and various annexures by Urbanus K. & Associates Advocates all dated 24th June 2022.
90.The Interested party filed a replying affidavit together with other annexures all dated 21st June 2022, confirms that she is a resident of Nairobi County in the Republic of Kenya and Post Office Box No. 72394-00200 and is a member of the 3rd Respondent and acknowledges that that the Notice of Motion dated 21st June 2022 is made in good faith and the complaint as instituted is in the right forum.
91.She confirms that John Boiywo Kipchirchir is a valid Party Member and also the KANU Party Baringo Central Constituency Parliamentary Nominee and that is aware that the Party made a call for applications for aspirants keen on contesting for August 2022 Elections. She confirms that she did not tender any application to vie for the Baringo Central Parliamentary Seat under the Party and did however submit herself for consideration for nomination in the list for allocation of special seats in the National Assembly -Senate.
92.She confirms that she did received a letter dated 30th May 2022 indicating that her name had been erroneously placed as an Aspirant Baringo Central and that on 1st June 2022, appeared in the joint National Elections Board and the Disputes Resolution Committee where she expressed disinterest in contesting for the Baringo Central Parliamentary seat and endorsed the Complainant and his nomination to fly high the Party's flag in the Baringo Central Parliamentary seat.
93.She states that she later on learnt that the Complaint was not cleared and that her name featured as that of the Party Nominee for the Baringo Parliamentary seat and acknowledges that this anomaly is regrettable and costly to the complainant for it is likely to defeat his quest to contest for the elective position.
94.She acknowledges that this Tribunal has jurisdiction to grant the orders as prayed and to consequently declare that the Complainant as the valid KANU Nominee for the Baringo Central Parliamentary seat and that she will not suffer any prejudice if the orders prayed for are issued and that it is in the interest of justice that the Respondent degazettes her name as the Party’s Baringo Central Nominee.
ISSUES FOR DETERMINATION
95.On a thorough analysis of the facts surrounding this matter as well as the complaint and application, we find the following as the pertinent issues for determination:1.Whether the Tribunal would consider an extension of time for the filing of this dispute and consequently then whether the Tribunal is clothed with Jurisdiction.2.Whether the Complainant was the duly nominated candidate for KANU for the Baringo Central Parliamentary seat.3.What are the resultant remedies.4.Costs
Whether the Tribunal would consider an extension of time for the filing of this dispute and consequently then whether the Tribunal is clothed with Jurisdiction.
96.The Complainant has urged this Tribunal to exercise its discretion judiciously in extension of time as this dispute emanates not from a mishap on his part but on the mistake of the 3rd Respondent.
97.Consequently, it is this mistake of the 3rd Respondent which is admitted that ought to have been remedied by the 1st and 2nd Respondent. Nonetheless the 1st and 2nd Respondent choose not to make this correction due to statutory times gazette by the IEBC. Further the DRC DISPUTE RESOLUTION COMMITTEE OF THE IEBC then downed it tool for lack of jurisdiction.
98.The Tribunal is guided by the Regulation 8.1 and Regulation 8.2 on limitation of time and ought to be mindful in allowing disputes to be on a never-ending cycle thus the importance of this regulation as it augers well with the principle that litigation need to end. However, the Tribunal is equally mindful of exceptions to this regulation as such the Tribunal’s Powers under Regulation 37 empowers the Tribunal to extend time towards the ends of Justice.
99.Having evaluated the evidence before us and with no rebuttal from the 1st and 2nd Respondent the Tribunal find it proper to exercise its discretion under the Regulations 35 and allow the filing of this dispute deeming it duly filed before us in congruent with the law.
100.The next question here is where the Complainant with his wounded heart having survived the handle of extension of time has a dispute within the meaning of Section 40 of the Political Parties Act to invoke the Tribunal’s Jurisdiction.
101.The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Justice Nyarangi of the Court of Appeal (as he then was) held as follows;
102.This Tribunal derives its jurisdiction from Section 40 of the Political Parties Act No. 11 of 2011 as follows;
103.The Tribunal wishes to clarify the legal position at the onset that the 2022 in amendments to the political parties Act, Amendment 27 saw the deletion of the word “party primaries” immediately section 40(1) (fa) and replaced it with “party nomination”.
104.On this front the Tribunal finds that this dispute falls within Section 40 of the Political Parties Act to clothe this Tribunal with jurisdiction. Reliance is made to the Supreme Court’s decision in Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Court pronounced itself thus;
105.In determining Jurisdiction of the Tribunal further, we evaluate if the dispute falls within the provisions of Section 40 and if the claimant showed evidence of an attempted to have the dispute resolved through the political party’s IDRM in accordance with the political Party’s Constitution.
106.In George Okode & Others vs Orange Democratic Movement & Others Petition No. 294 of 2011, Majanja J clarified those provisions of Section 40(2) of the Political Parties Act by stating that
107.The Tribunal on the evidence on record shows that the use of the IDRM was necessary however there was no dispute between the complainant an the party, nevertheless when the dispute arose during the forwarding of names to the IEBC the complainant wrote to the 3rd Respondent’s National Elections Board chair who in turn addressed the issue and made a finding that the complainant was the party’s duly nominated candidate for the Baringo Central Parliamentary seat.
108.On this issue we find that the Tribunal has Jurisdiction and will address the other issues accordingly.
Whether the Complainant was the duly nominated candidate for KANU for the Baringo Central Parliamentary seat.
109.The Tribunal notes that it is undisputed that the Complainant is the duly nominated candidate for KANU the 3rd Respondent for the Baringo Central Parliamentary Seat. Both the 3rd Respondent and the erroneously listed candidate in the name of the Interested party agree with this position.
110.So, what really is in dispute? At face value nothing at all? However, the mischief lies with the compliance of set statutory timelines by the 1st and 2nd Respondent.
111.This timelines by the IEBC contrary to belief by the commission is not cast in stone and as such certain amendments, variation and deletions ought to be considered where genuine errors and mistake occur. The 3rd Respondent has admitted its erroneous actions and attributed it to technology and strict deadlines and not malice on their part. The Interested Party honourable is not fighting to benefit from this error. This error is not attributed to the Complainant as a candidate. So, what next?
112.In our view first we find that the Complainant was duly nominated as the 3rd Respondents nominee to vie for the Baringo Central Parliamentary Seat.
What are the resultant remedies
113.We note that the DRC of the IEBC downing their tools in determining this matter is an act contrary to the concurrent jurisdiction enjoyed by the PPDT and the DRC. Both institutions ought to give chance to a complementary relationship to ensure substantive justice is met.
114.Further a lesson in point to Counsels despite this concurrent jurisdiction between the PPDT and the DRC, legal minds tend to forum shop often leading to perilous results. Sometimes complaining about the Returning officer of the IEBC and IEBC before a committee of the IEBC referenced as the Dispute Resolution Committee is treacherous. We say no more.
FINAL ORDERSi.The Complainant’s Complaint is hereby allowed.ii.That an order do issue that the IEBC Gazettes the Complainant as the candidate of KANU for the Baringo Central Parliamentary seat, consequently, if the IEBC has already issued a Gazettement or such Gazettement has been published then, the Tribunal herein orders that a corrigendum to the published gazette be effected within 48 hours of issuance of this Judgement by the IEBC to reflect order iii and order iv as follows;iii.An order be and is hereby issued that the name of the Interested Party herein be deleted as the 3rd Respondent’s Candidate for the Baringo Central Parliamentary Seat in the August 9th Elections 2022 in the gazette notice.iv.An order be and is hereby issued that the IEBC, 1st and 2nd Respondent and/or its duly authorized organ to gazette the name of the complainant as the 3rd Respondent’s Candidate for the Baringo Central Parliamentary Seat in the August 9th Elections 2022.v.Each party to bear their own costs in the interest of party unity .Those are the orders of the tribunal.
DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 28TH DAY OF JUNE 2022.HON. LIGUNYA STEPHENPRESIDING MEMBERHON. HASHI AMINAMEMBERHON. ANDREW WARUHIUMEMBER