Ali v United Democratic Alliance Party (UDA) & 2 others (Complaint E016 (ELD) of 2022) [2022] KEPPDT 920 (KLR) (1 September 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 920 (KLR)
Republic of Kenya
Complaint E016 (ELD) of 2022
M Lwanga O, Presiding Member, T K Tororey, L Wambui & D. Kagacha, Members
September 1, 2022
Between
Ahmed Desi Issack Ali
Complainant
and
United Democratic Alliance Party (Uda)
1st Respondent
Independent Electoral Boundaries Commission (IEBC)
2nd Respondent
Loria Veronica Chalatan
3rd Respondent
Judgment
1.The complainant is a member of the 1st respondent, a political party, and applied for nomination into the United Democratic Alliance Party (UDA) West Pokot County Assembly party nomination list.
2.The initial nomination list in respect of the assembly in issue, had the Complainant placed at number 2 in the marginalized category. However an odd list has since emanated, which the Complainant has impugned and is the subject matter of the complaint herein before this Tribunal.
3.The complaint seeks the following orders: -a.An order does issue by this honorable tribunal directing that the 2ndrespondent not accept from the 1st respondent any revised list other than the one that was published in the standard newspaper of July 27, 2022 in which I appear in position number 2 in the marginalized category for West Pokot County.b.An order does issue by this Honorable Tribunal, directing that the 2nd respondent the IEBC to use and or rely only the party list as published in the standard newspaper of July 27, 2022 when designating the party representatives to the west pokot county assembly.c.An order does issue by this Honorable tribunal directing that the Independent Electoral and Boundaries Commission to revoke the name of any other candidate and or nominee at position number two in the marginalized category for UDA party list in west pokot county, and only accept, designate and record my name Ahmed Desi Issack Ali at number two in the marginalized category for UDA party in west pokot county.d.An order does issue by this honorable tribunal to quash and revoke the revised party list issued by the 1st respondent in so far as it affects the applicant.e.An order awarding costs of this complaint to the complainant.f.Any such other or further orders be granted as the honorable court may deem fit.
4.Together with the complaint was filed a notice of motion application dated August 24, 2022 which sought interim conservatory orders. In the interest of concluding on the substance of the complaint within the stringent election timelines, this tribunal proceeds to look at the substantive complaint and subsumes the said notice of motion into the same. All prayers sought will be considered while determining the orders that should be granted.
5.The Respondents were all served vide both physical and electronic means and affidavits of service duly filed. The said Respondents however chose not to participate in the proceedings before this Tribunal.
The Complainants Submissions
6.The summation of the complainant’s case is that he was located at position number 2 under the marginalized category in the UDA party nomination list for West Pokot County Assembly after an open and inclusive process.
7.An opaque nomination list for the said UDA party for the county in issue has since emerged. A list which was compiled in an unknown manner and in which list the complainant has lost his earned position at the top tier of the nomination list.
8.The complainant thus submits that the complaint is justified and warrants the grant of prayers sought.
Issues for determinationa.Is this tribunal properly seized of jurisdiction?b.Is complaint justified?c.What orders should issue?
Our Analysis
Whether PPDT has jurisdiction
9.The complainant has deponed at length, in his affidavit in support of the notice of motion application, the effort made to address the matter internally, all to nought. It is alleged that the UDA party has failed and/or refused to act on the complainants concern as to an alleged change in the positioning of his name in the list in issue.
10.The current wording of section 40 (2) PPA states as follows: (2) Notwithstanding subsection (1), the tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to
11.The information before us, amounts to an attempt to resolve the matter internally as anticipated in the law as cited above. The dispute is thus properly before us.
Is the complaint justified?
12.The law mandates the political party with the primary jurisdiction of compiling its party nomination list for the various positions. The Elections Act (No. 24 of 2011), The Elections (General) Regulations, 2012, The Elections (Party Primaries and Party Lists) Regulations, 2017, Submission of party list guide the nominations process in regard to party lists.
13.It is provided, in law, that Party Lists must generally comply with the Constitution 2010 , the Elections Act , 2011 as amended by the Statute Law (Miscellaneous Amendment) Act, 2012, The Elections (Amendment) Act, 2012, the Elections (Amendment) (No. 2), the Political Parties Act, 2011 and any other relevant law as well as the party constitution and the party nomination rules.
14.We note that the IEBC role, is, at the stage of nominations into the party lists, limited to requiring parties to submit lists that represent the categories outlined in law.Specifics as to which member should be in which list and at what number they should be in such list, is a political party affair. IEBC may require, lawfully, that the lists are presented, as much as possible, in ‘zebra’ form.
15.The complaint is not controverted. We have also seen, by way of annexures, documents that show that the Complainant applied for participation in the nominations held by a party in which he has displayed membership and emerged successfully at number 2 position under the marginalized category.
16.The complainant, who obviously qualified for nomination to the party list, noting that he was retained in the impugned list but only re-positioned, should have had opportunity to defend any impending change in positioning.
17.We thus find that the complaint is justified.
Disposition
18)In light of our analysis, we order as follows.a.That the respondent herein, United Democratic Alliance Party, [UDA] forthwith, retain the name of the complainant herein, Ahmed Desi Issack Ali at number two in its Marginalized List of the UDA nominees list for West Pokot County Assembly party nomination list and forward the said nomination list to the IEBC for publication in the Kenya Gazette in respect of the 2022 general elections.b.That notification of this decision issue to the Independent Electoral and Boundaries Commission.c.That the costs of this complaint is awarded to the complainant.
Dated the 1st day of September 2022M. LWANGA. O (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)DANIEL KAGACHA (MEMBER)PPDT COMPLAINT NO. E014/22 ORIGINAL FINAL JUDGMENT ELD 4