Whether this Complaint is res judicata or whether the Tribunal is functus officio
15.The 2nd Respondent in his Grounds of Opposition stated that this court is functus officio and the matter was also res judicata, the Tribunal having made a determination in a related matter being NRB PPDT Complaint No. E036 of 2022 (the previous Complaint). Counsel for the 1st Respondent did not highlight these issues in his submissions. Counsel for the Complainant however made reference to them in his submissions. The Tribunal therefore will consider this issue.
16.The doctrines of res judicata and functus officio are important cogs in the wheel that is the administration of justice. There is an interplay between both of them. They both serve to prevent endless litigation in court.
20.The question therefore arises whether this Tribunal is functus officio and whether the doctrine of res judicata forbids the court from dealing with the matter? To answer the question, the Tribunal needs to determine whether this is a fresh cause of action or whether it is the cause of action that was in dispute in the previous complaint.
21.The Tribunal has examined the record in the previous complaint involving the same parties as this Complaint. In the previous Complaint, the Tribunal gave orders that a fresh nomination exercise as regards the 1st Respondent’s candidate for election as MCA in Pumwani ward be conducted by 9:30 am on 11th May 2022. It is not disputed that this was done and that the result of the fresh nomination exercise was the nomination of the 2nd Respondent as the 1st Respondent’s candidate for MCA Pumwani Ward. This is what gave birth to this instant Complaint. The Complainant’s cause of action is the results of the said exercise and not the nomination exercise that resulted in the previous complaint. While the same may be related, it is clear in our minds that this is a fresh cause of action. There is therefore no way that this matter is affected by the doctrines of res judicata or functus officio given that its foundational facts are different. The Tribunal therefore dismisses this objection to its jurisdiction.
Whether the nomination of the 2nd Respondent as the 1st Respondent’s candidate to contest for the MCA position in Pumwani ward was lawful
22.It is not disputed that after this Tribunal’s decision in NRB PPDT Complaint numberE036 of 2022, the 1st Respondent summoned all aspirants for MCA Pumwani Ward to a meeting on 11th May 2022. The purpose of the meeting was to build consensus on the selection of the 1st Respondent’s candidate.
23.Pursuant to section 38A of the Political Parties Act, 2011 (“the Act”) the 1st Respondent has various options when it comes to conducting the said nominations. These options include direct nomination and indirect nomination. Under section 2 of the Act, “direct party nomination” is defined as “the process by which a political party, through its registered members, elects its candidates for an election”. On the other hand, “indirect party nomination” is defined under the Act as the “process by which a political party, through the use of delegates selected from registered members of the political party and interviews, selects its candidates for an election”.
24.It is not disputed that the 2nd Respondent’s nomination rules provide for both means of nomination. Paragraph 5 of the Replying Affidavit of Kamau Mbugwa sworn on 19th May 2022 referred to Part XVI Clause (i) of the 1st Respondent’s Nomination rules. That clause is not clear on who is to agree on the other appropriate means used to identify a candidate.
25.Unlike the situation in the previous Complaint, this time the 1st Respondent seems to have had the parties agree in writing that in the event of failure of consensus, the party would select a candidate from amongst the aspirants. This agreement addresses the vagueness at Part XVI Clause (i) of the 1st Respondent’s Nomination rules on who is to agree on the other appropriate means This is explicitly stated in clause 4 of the consent signed by all the aspirants to wit:-
26.Each aspirant signed his/her own consent form. However, it is clear from the Complainant’s Statement of Complaint that she knew the other aspirants who had been summoned for the consensus building meeting. At paragraph 7(c) of her Complaint, she lists them as herself, the 2nd Respondent, Nelly Nyambura and Ibrahim Chege.
27.The Complainant freely signed the aforesaid form. Indeed clause 5 of the said form indicates that she gave her consent freely and without any duress or threats. She also filled a questionnaire related to the exercise. During the hearing of the Complaint, her Counsel submitted that she was coerced into signing the form and that she was not aware of the nomination method to be applied by the 2nd Respondent. The Complainant also complains that the aspirants were interviewed separately.
28.We are unable to find any evidence to support the Complainant’s claim that she did not know of the method to be applied. From the form she was aware that she was invited to a consensus building exercise. She did not express any objection to that exercise. Conversely, we find that the form signed by the Complainant clearly indicated that she had been invited to a consensus meeting to identify a candidate and she agreed that the party could proceed to nominate any candidate from any of the aspirants. As regards the aspirants being interviewed separately, we cannot see any prejudice that was occasioned on the Complainant by holding separate interviews.
29.Consensus would have resulted in an agreement at which point all candidates would have consented to one identified candidate. This does not seem to have been the case and the default position was that the aspirants allowed the 1st Respondent identify a candidate.
30.The Complainant seeks to have the 1st Respondent’s candidate for MCA Pumwani ward identified through universal suffrage. This method is just but one of the methods that are open to the party to identify its candidate as stated above. The 1st Respondent resorted to indirect nomination as provided for in its nomination rules and the Political Parties Act. The 1st Respondent cannot be faulted for using that method with the consent of all the aspirants and in the absence of any evidence of unfairness.
31.Equally, the Complainant cannot be said to have had a legitimate expectation that the 1st Respondent would result to universal suffrage in the event of failure of consensus. In Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development ex parte Soweto Residents Forum CBO  eKLR, the Court said thus as regards legitimate expectation:-
32.In view of the provision of section 38A of the Political Parties Act and the 1stRespondent’s nomination rules as well as the consent form signed by the Complainant and based on the aforesaid test, we cannot find that any legitimate expectation was created that the 1st Respondent would resort to universal suffrage.
33.As regards the parameters used by the 1st Respondent, it cannot be that the Complainant did not know the parameters. The questionnaire that she filled had various questions which one can safely conclude contained the parameters that the 1st Respondent would consider in arriving at its decision.
34.Finally, the Complainant stated that the members of the 1st Respondent’s National Elections Board and the members of National Appeals Tribunal were the same and thus were sitting on appeal on their own decision in considering her appeal. The Complainant did not lead any evidence to support this serious allegation. The burden of proof fell squarely on her shoulders. Section 107 (1) of the Evidence Act provides that:-
35.Based on the foregoing, the Tribunal finds that the Complaint is not merited and proceeds to dismiss the same with no order as to costs. The Notice of Motion application dated 16th May 2022 also stands dismissed.