Grignon & another v Muli & another; Clerk to the Senate/Secretary Parliamentary

Service Commission & another (Interested Parties) (Civil Appeal E1056 & E1081 of 2024
(Consolidated)) [2024] KEHC 12730 (KLR) (Civ) (22 October 2024) (Judgment)
Neutral citation: [2024] KEHC 12730 (KLR)

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)
CIVIL
CIVIL APPEAL E1056 & E1081 OF 2024 (CONSOLIDATED)
JN MULWA, J
OCTOBER 22, 2024

BETWEEN
AMB D. KOKI MULI GRIGNON .................................................... 1ST APPELLANT
AZIMIO LA UMOJA ONE KENYA COALITION ........................ 2ND APPELLANT

AND
DR AUGUSTUS KYALO MULI ................................................... 1ST RESPONDENT
POLITICAL PARTIES LIAISON COMMITTEE ....................... 2ND RESPONDENT

AND
CLERK TO THE SENATE/SECRETARY PARLIAMENTARY SERVICE
COMMISSION .......................................................................... INTERESTED PARTY
PARTY OF NATIONAL UNITY ............................................ INTERESTED PARTY

JUDGMENT

Background
1. There are two appeals for determination emanating from the Political Parties Tribunal (PPDT)
judgment delivered on 18/09/2024.
By directions of the court taken by consent of the parties, the two appeals were deemed consolidated
with Appeal No. 1056 of 2024 constituting the lead le.

2. The Appellant as reconstituted are Amb. Dr. Koki Muli Grignon as 1st Appellant Dr. Koki Muli and
Azimio la Umoja one Kenya Coalition herein after referred to as respectively Azimio Coalition.

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3. The 1st Respondent is Dr. Augustus Kyalo Muli (Dr. Augustus Muli); 2nd Respondent, Political
(Political parties Liaison Commission) (PPLC), the 1st Interested Party is Clerk to the Senate/Secretary
parliamentary Service Commission (PSC) while the 2nd Interested Party is Party of National Unity.

4. At all material times, Dr, Koki Muli and Dr. Augustus Muli were members of their respective political
parties, Wiper Democratic Movement Kenya and National Liberal party respectively which parties are
members of the Azimio Coalition.

5. It is common knowledge that for close to two years there has been no duly constituted Independent
Electoral and Boundaries Commission (IEBC) selection panel for appointment of IEBC chairperson
and commissioner.

6. By a letter dated 16/07/2024, the clerk/Secretary of PSC wrote a letter to Azimio Coalition with a
request to competitively nominate three candidates from coalition. The process of such nomination
is provided at Section 2B of the First Schedule to the IEBC (Amendment) Act 2024 and forward the
said three nominees to the PPLC from the following clusters:

i. A party other than a parliamentary party or coalition of parties;

ii. A majority party or coalition of parties; and

iii. A minority party or coalition of parties.

7. On 26/07/2024, Azimio Coalition conducted an election at Kyaka Hotel in Machakos County for
purposes of electing its representatives and the following candidates were declared elected:-

i. Evans Misati James – Non-Parliamentary Political Parties.

ii. Nicodemus Kipchirchir Bore – Majority Coalition

iii. Dr. Augustus Kyalo Muli – Minority Coalition.

8. On 27/07/2024, Azimio Coalition send the names of the elected nominees to the PSC for onward
transmission to the president for appointment.

9. Unknown to Dr. Augustus Muli, the Minority Coalition nominee on the 26/07/2024 Azimio
Coalition wrote to the PSC Secretary purporting to replace the name of Dr. Augustus Muli with the
name of Dr. Koki Muli who had lost the election to Dr. Augustus Muli who garnered 16 votes against
7 votes by Dr. Koki Muli.

10. Prior to the election, the Registrar of political parties on 23/07/2024 issued a membership register of
the Political Parties Liaison Committee (PPLC) of members eligible to participate and or vote in the
election.
Upon notice for election being issued, two candidates oered themselves Dr. Augustus Muli and Dr.
Koki Muli.

11. Following events stated at paragraph para_9 9 above, on 29/07/2024 the PSC wrote back to the Azimio
Coalition requiring it to change the forwarded names on grounds that it did not comply with the
gender parity requirement. on the same day. The AZIMIO Coalition wrote back to PSC stating that
there was no framework on achieving the two-thirds gender parity rule as it was a competitive process
and it could not push political parties/members to express interest or participate in the process.

12. Upon the above, Dr. Augustus wrote to AZIMIO coalition to resolve the issue using the parties Intend
Dispute Resolution Mechanisms (IDRM) within 24 hours but no action was taken. This forced Dr.

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 Augustus Muli to move to (PPDT) which complaint was registered as complaint No. E008 of 2024 –
in Dr. Augustus Kyalo Muli Vs. Azimio la Umoja One Kenya Coalition party & Others.

13. The complainant, Dr. Augustus Muli raised the following grounds before the PPDT among others:-

a. That the on the date of election 26/07/2024 he was only elected as a nominee to represent the
minority party or coalition of parties against Dr. Koki Muli.

b. That on the same date the 2nd Respondent (Political Parties Liaison Commission) (PPLC),
without any colour or right the clerk to the senate/secretary Parliamentary Service Commission
wrote to Azimio Coalition purporting to change the name of the complainant and replace it
with the name of Amb. Dr. Koki Muli.

c. That on 27/07/2024 the Azimio Coalition communicated the names of the nominees to PSC
for onward transmission to the president for appointment.

d. That on 29/07/2024, the PSC wrote back requesting Azimio Coalition to change the
forwarded names on grounds that it did not comply with the gender parity requirements.

e. That on 29/07/2024, the Azimio Coalition wrote back stating that there was no framework
on achieving the two thirds gender rule since it is a competitive process and that the interested
party cannot push political parties/members to express interest.

f. That Dr. Koki Muli lost the election to the complainant and under Section 2B of the First
Schedule to the Independent Electoral and Boundaries Commission (Amendment) Act, 2024
neither the Respondents or Interested Parties can alter the name of the complainant as a
nominee.

g. That under Article 2(2) of the Constitution powers and functions of specic arms of
government, oces and commissions can only be exercised by specic persons that the
constitution has specically assigned.

14. Dr. Augustus Muli therefore sought for orders:-

1. That a declaration be issued that he was duly elected to represent the minority party/coalition
of parties on 26/07/2024 to the IEBC selection panel.

2. An order of certiorari to quash any list forwarded bythe 1st Respondent under Section 2B of
the First Schedule to the IEBC (Amendment) Act, 2024 to the president for appointment in
absence of the complainant’s name.

3. Any other order the tribunal deems t to grant.

15. In its Judgment dated 10/09/2024 the PPDT allowed the complaint and issued ordes that:-

i. Dr. Augustus Kyalo Muli was duly elected on July 26th, 2024 to represent the Minority party /
Coalition of Parties on the IEBC selection panel.

ii. An order of certiorari is hereby issued quashing any list forwarded by the 1st Respondent under
Section 2B of the First Schedule to the Independent Electoral and Boundaries Commission
(Amendment)

iii. Act, 2024 to the President for appointment that does not include the name of Dr. Augustus
Kyalo Muli.

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 iv. The 1st Respondent is hereby restrained from replacing or attempting to replace Dr. Augustus
Kyalo Muli as the duly elected representative of the minority party/coalition of parties on the
IEBC.

v. Each party to bear own costs.

16. It is this judgment and decree that precipitated ling of the two appeals Consolidated Appeals
Numbers. E1056/2024 and E1081/2024 with E1056 of 2024 constituting the lead le.

17. The Appellant’s grounds of appeal in Appeal no. E1056 of 2024 as stated as hereunder:-

a. That the Political Parties Dispute Tribunal erred both in law and fact in hearing,
determining and issuing orders aecting the 1st Appellant DR. KOKI MULI without
aording her the right to be heard and the right to a fair trial under Articles 25, 27,
28, 47, 48 and 50 of the Constitution of Kenya, 2010 as read with the provisions of the
Fair Administrative Actions Act and the rules of natural justice as further provided
under the Universal Declaration of Human Rights, 1948; the International Covenant
on Civil and Political Rights; and the International Covenant on Social and Economic
Rights on the right to equality before the law and the right to a fair trial. The Tribunal,
has made adverse ndings, inferences and ultimately revoked the nomination of the
1st Applicant/Appellant DR. KOKI MULI in total disregard of the rules of natural
justice and the rights and entitlements of a fair hearing and trial.

b. That the Political Parties Dispute Tribunal erred both in law and fact in dismissing the
Appellants objections on the jurisdiction of the Tribunal's competence to hear and
determine the Complaint before it pursuant to Section 40 of the Political Parties Act
and in further contravention of the Fair Administrative Actions Act which demands
the exhaustion of available remedies before a party invokes the Court's jurisdiction.

c. That the Political Parties Dispute Tribunal erred both in law and fact in dismissing the
Appellants objections on the locus of the Complainant to institute and sustain the
Complaint in regard to the nomination to the Independent Elections and Boundaries
Commission Selection Panel.

d. That the Political Parties Dispute Tribunal erred in law and fact in its appreciation
of the facts and evidence before it and the impugned decision herein is a nullity
and contrary to the dictates of the Constitution of Kenya, 2010 and more so, it is
unreasonable and against the tenets of legality and the principles of fair administrative
action under Article 47 and Sections 4, 5, 6 and 7 of the Fair Administrative Actions
Act namely.

a. The Tribunal has selected a stranger, to represent the Azimio La Umoja

One Kenya Coalition, who's political party is not a parliamentary party,
which slot is specically reserved for a Coalition Political Party in the
Independent Electoral and Boundaries Commission Selection Panel contrary
to the provisions of Paragraph 1 (2) (b) (iii) of the First Schedule to the
Independent Electoral and Boundaries Commission Act as amended by the
Independent Electoral and Boundaries (Amendment) Act, 2024.

b. The Tribunal's decision is a nullity and contrary to the provision of Paragraphs

1 and 2 of the First Schedule to the Independent Electoral and Boundaries
Commission (Amendment) Act, 2024 as read with the provision of Articles

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 27 and 47 of the Constitution of Kenya, 2010 which requires that not more
than two-thirds (2/3) of the nominees are of the same gender.

c. That the Tribunal has wrongfully and illegally usurped the role of the Azimio
La Umoja One Kenya Coalition by substituting its decision and picking
a stranger to represent Coalition through a slot specically reserved for a
parliamentary Coalition and Political Party.

d. That the Tribunal erred in law and fact by converting the dispute into an
election Petition and making ndings contrary to the rules of natural justice
and further disregarding the evidence as submitted by the 2nd Appellant.

e. That the Political Parties Dispute Tribunal erred in law and misapprehended
the facts and the law, while ignoring the evidence, issued Orders not sought,
and reached an erroneous conclusion not founded in law and thus resulting to
a violation of the Applicants/Appellants right to a fair hearing and trial.

18. For the above, the Appellant prays for the following orders namely;

a. That the Appeal herein be allowed with costs.

b. That the determination dated 10th September; 2024 by the Political Parties Dispute
Tribunal in Political Parties Dispute Tribunal Complaint No. E008 Of 2024; Dr.
Augustus Kyalo Muli Vs Azimio La Umoja One Kenya Coalition Party And Others,
be set aside, and declared null and void.

c. That a declaration does issue that the Judgment dated 10th September 2024 rendered
by the Political Parties Dispute Tribunal is in contravention of Articles 25, 27, 28,
47, 48 and 50 of the Constitution of Kenya, 2010 as read with the Fair Administrative
Actions Act.

d. The costs of the Complaint and this Appeal be awarded to the Appellants.

e. Any such other relief and remedy that the Honourable Court may deem just and
appropriate to grant.

19. The Appellant’s grounds of appeal in Appeal No. E1081 of 2024 are as hereunder:-

a. That the Political Parties Dispute Tribunal erred in law and in fact in nding that the
law does not require the three nominees of the Political Parties Liaison Committee to
the Selection Panel for the recruitment of the Chairperson and Commissioners of the
Independent Electoral and Boundaries Commission (IEBC) to comply with the two-
thirds gender rule whereby not more than two-thirds of the nominees shall be of the
same gender.

b. That the Political Parties Dispute Tribunal erred in law and in fact in failing to apply the
provisions of the Constitution of Kenya, 2010 and the provisions of paragraph 1(2C) of
the First Schedule to the to the Independent Electoral and Boundaries Commission Act
(as amended by the IEBC Act, 2024) which provides that in nominating its nominees
for appointment to the Selection Panel for the recruitment of the Chairperson and
Commissioners of the Independent Electoral and Boundaries Commission (IEBC),
the Political Parties Liaison Committee shall ensure that not more two-thirds of the
nominees are of the same gender.

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 c. That the Political Parties Dispute Tribunal erred in law and in fact in nding that there
was no proper legal framework to address the question of gender parity in arriving at
the nominees of the Selection Panel and thereafter proceeded to totally ignore the said
legal provisions.

d. That the Political Parties Dispute Tribunal erred in law and in fact in failing to nd
that administrative procedures can be put in place to ensure that the issue of gender
parity is complied with in arriving at the nominees of the Selection Panel.

e. That the Political Parties Disputes Tribunal erred in law and in fact in failing to
issue orders that give eect to the provisions of the Constitution and the Independent
Electoral and Boundaries Commission Act in relation to the constitution of the Selection
Panel for the appointment of Commissioners of the IEBC.

f. That the Political Parties Dispute Tribunal erred both in law and fact in failing
to appreciate the Appellant's submissions that the Tribunal lacked jurisdiction to
entertain the dispute and issued orders aecting nominees of other nominating bodies
other than the Political Parties Liaison Committee.

g. That the Political Parties Disputes Tribunal erred in law and fact by converting the
dispute before it into an election dispute in total disregard of the evidence submitted
before it by the Appellant.

h. That the Political Parties Dispute Tribunal erred in law and misapprehended the facts
and the law, while ignoring the evidence, and issued Orders that violate the Constitution
and are detrimental to public interest.

i. That the Political Parties Disputes Tribunal erred in fact and in law in arriving
at conclusions that were inconsistent, detached and at complete variance with the
evidence before it for consideration.

20. Appellants therefore pray that;

a. That this appeal be allowed and the judgement and the consequential orders and/
or declarations arising from the decision of the Political Parties Dispute Tribunal
Complaint No. E008 of 2024 rendered on 10th September; 2024 in Dr. Augustus
Kyalo Muli versus Azimio la Umoja One Kenya Coalition & Others be set aside and
declared null and void.

b. That a declaration does issue that the judgement of the Political Parties Disputes
Tribunal dated 10th September, 2024 in Complaint No. E008 of 2024 rendered on
10th September; 2024 in Dr. Augustus Kyalo Muli versus Azimio la Umoja One Kenya
Coalition & Others is in contravention of Article 10 and 27 of the Constitution of
Kenya as read with Paragraph 1(2C) of the First Schedule to the IEBC Act.

c. That the Complaint before the Political Parties Dispute Tribunal be dismissed with
costs.

d. That the costs of the Complaint and this Appeal be awarded to the Appellant.

e. That the court be pleased to give any such further/other orders as it may deem t and
just.

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Submissions

1st and 2nd Appellants Submissions (Dr. Koki Muli and Azimio Coalition)
21. The Appellants submitted that the decision by the PPDT is a nullity in totality as the Court rendered
a decision aecting Dr. Koki Muli without aording her an opportunity to be heard. That it is
uncontested that the 1" Respondent sought direct orders aecting Dr. Koki Muli and even made
specic allegations against her. To the contrary, the 1st Respondent has now shifted the position
and purported that the Azimio La Umoja Coalition was representing her. It was submitted by
the Appellant’s that the right to a fair trial and the right to be heard cannot be substituted and
where specic allegations and orders are sought aecting a person, the person must be aorded an
opportunity to be heard.

22. It is further submitted that the Tribunal erred in its interpretation of the question of jurisdiction and
further ignored the arguments and authorities advanced by the Appellant on jurisdiction specically,
Section 40 of the Political Parties Act that it does not confer the Tribunal with open-ended jurisdiction
over all and sundry, that the tribunal cannot exercise its powers in a vacuum and in the absence
of express legislative authority and neither can the complainant cloth it with jurisdiction, citing the
Supreme Court of Kenya in the case of S.K Macharia & Another vs KCB & 2 Others, Supreme Court
Application No. 2 of 2011, (2012) eKLR, and Gatirau peter Munya V. Dickson Mwenda Kithinji & 2
Others [2024] eKLR

23. Further, the Appellants submitted that the reasoning by the PPDT is awed as it purports to read into
Section 40 to expand its jurisdiction to that which was never contemplated by the legislature.

24. On the doctrine of exhaustion, the Appellants submitted that the Tribunal erred in law in its
interpretation of Section 40 and failed to consider the provisions of the Fair Administrative Actions
Act and the evidence tendered before it stating that the import of Section 40 of the Political Parties Act
is that for a party to properly invoke the jurisdiction of the PPDT, it must rst exhaust the available
mechanisms within its political party or coalition party as the case may be.

25. While relying on Article 16 of the Azimio La Umoja One Kenya Coalition Agreement, the Appellants
submitted that the 1st Respondent never lodged any Complaint before the Azimio Coalition and
neither did he formally trigger the above provisions to trigger the dispute resolution mechanism under
the Azimio Coalition Agreement, stating that a mere demand letter from the Advocate does/did
not constitute a Complaint in accordance with the provisions of Article 16 of the Azimio Coalition
Agreement.

26. It was further submitted that a party must make frantic and genuine eorts towards exhausting
available remedies and invoking the Internal Dispute Resolution Procedures of the party involved as
per the parties Constitution and rules. The Appellants submitted that the PPDT erred in law in failing
to address and consider the objections as to the question of locus in regard to the Complaint as raised by
the Appellant. In this case, the 1st Respondent lacked the locus to institute and sustain the Complaint
as its political party was the nominating body to propose names for consideration for nomination.
The 1st Respondent did not nominate himself hence he could not raise a challenge to the nomination
process.

27. Additionally, the Appellants submitted that the decision by the PPDT is tainted in illegalities and
oends the provisions of Articles 47 and Sections 4, 5, 6 and 7 of the Fair Administrative Actions
Act by selecting a stranger, to represent the Azimio La Umoja One Kenya Coalition, who's political
party is not a parliamentary party, which slot is specically reserved for a Coalition Political Party in

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 the Independent Electoral and Boundaries Commission Selection Panel contrary to the provisions of
Paragraph 1 (2) (b) of the First Schedule to the Independent Electoral and Boundaries Commission Act
as amended by the Independent Electoral and Boundaries (Amendment) Act, 2024.

1ST Respondent’s Submissions (Dr. Augustus Muli)

28. On the issue of Jurisdiction of the Political Parties Tribunal, the 1st Respondent submitted that it is
provided for under Section 40 of the Political Parties Act. It was submitted that the Dr. Augustus Muli
is a member of the National Liberal Party which is a coalition party of the 2nd Appellant as shown in the
list from the Registrar of political parties shared with Azimio Coalition prior to the impugned election,
and that he attended its meetings, was recognized as a member until the time he participated in the
election, won and the said results were not the outcome desired by the leadership of the Coalition Party.

29. It is therefore not in doubt that the Complaint that the 1st Respondent led was squarely within
Section 40 of the Political Parties Act, and was against Dr. Koki Muli as she was a candidate in an
election which she lost and never challenged the outcome of the said election, which she ought to have
respected.

30. It was further submitted that elections are so important that when a court or a tribunal is able
to discern, it then should respect it citing the case of Richard Otieno Muga v Orange Democratic
Movement & 2 others [2017] eKLR where Wakiaga J. observed as follows:-

“ In an election voting is a formal expression of will or opinion by the persons entitled to

exercise the right on the subject or issue in question and that right to vote means a right to
exercise the right in favour of reasonable motion or persons standing for election”

31. Dr. Augustus Muli further submitted that the issue of gender parity was raised as an afterthought and
it can only be dealt with if a proper legal framework is put in place to achieve such a result. In addition,
it was submitted that this had clearly been explained by the Azimio Coalition in its response dated 29th
July 2024 and its elaboration that:-

a. The process of an election cannot be predetermined especially if both male and female
candidates subject themselves and are allowed to participate in the election.

b. Unless stipulated political parties cannot be compelled to forward the names of female
candidates.

32. Dr. Augustus Muli in his supplementary written submissions dated 7th October 2024 further
submitted that the provisions of Section 2C of the First Schedule to the Independent Electoral and
Boundaries Commission (Amendment) Act, 2024 are to be read conjunctively with Sections 2B of the
said schedule, citing the Supreme Court of Kenya opinion in the matter of the Principle of Gender
Representation in the National Assembly and the Senate [2012]eKLR.

2nd Respondent’s Submissions - Political Parties Liaison Committee (PPLC)

33. The 2nd Respondent admits Jurisdiction of the PPDT and agrees that Dr. Augustus Muli had indeed
attempted to resolve the dispute using the coalition’s Internal Dispute Resolution Mechanisms but the
same was never actioned upon by the coalition’s prompting Dr. Augustus Muli to seek the intervention
of the tribunal, further adding that it invoked the IDRM of Azimio Coalition when it wrote to it for
the same to be resolved.

34. It cited the case of Omole v Mghanga & 2 others; Communist Party of Kenya (CPK) (Interested
Party) (Complaint E024 (NRB) of 2022) [2022] KEPPDT 965 (KLR) (10 May 2022) (Judgment)

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 where it was stated thus: "However, the Tribunal is conscious that the doctrine of exhaustion is not
absolute and where it can be shown that the Claimant attempted to resolve the matter using the party's
internal dispute resolution mechanism (IDRM) as was stated in Rushila Akoth Odida & 2 others v
Orange Democratic Movement (Complaint No 331 of 2017), para 13, foundations that dictated the
amendments to Section 40(2) remains intact”.

35. It was submitted by PPLC that equity does not help the indolent and as such, Dr. Koki Muli’s failure to
request for joinder at the PPDT proceedings cannot ostensibly be cured at the Appellate proceedings
as held in the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR wherein the
court quoted the following passage from Snell's Equity by John MC Ghee Q.C. (31st Edition) at page
99:

“ The Court of equity has always refused its aid to stale demands where a party has slept upon
his rights and acquiesced for a great length of time. Nothing can call forth this court into
activity but conscience, good faith and reasonable diligence; where these want the court is
passive, and does nothing."

36. It was further submitted that it is crystal clear that Dr. Augustus Muli was subjected to a transparent
and competitive process in which he emerged the winner and hence has a legitimate expectation for
the protection of his fundamental rights of political rights and Fair Administrative Rights as envisaged
under Article 38 and 47 of the Constitution of Kenya, citing further the case of Diana Kethi Kilonzo &
another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR.

37. Additionally, Dr. Augustus Muli having been subjected to a free and fair election as a nominee to
the IEBC selection panel, and by merit having been so elected as the nominee for the minority
representative for the Azimio Coalition, there was legitimate expectation for Dr. Augustus Muli’s
name to be transmitted to the president for appointment.

Submissions by 1st Interested Party - (Clerk To The Senate/Secretary Parliamentary Service

Commission (PSC)
38. This party submitted that it is evident that IEBC Act requires nominating bodies among them the
Azimio Coalition to select nominees for appointment through a competitive and transparent process
and also to ensure that not more than two-thirds (2/3) of the nominated shall be of the same gender
citing Paragraph para_1 1(2B and 2C) of the First schedule to the IEBC Act.

39. It was further submitted that the Political Parties Disputes Tribunal (PPDT) erred in law and in fact
by only considering the legal requirements for a transparent and competitive process and not the two-
thirds gender principle which is equally a legal requirement, adding that the same way the Azimio
Coalition was able to adhere to the requirement of transparency and competitive process through
election, they could still come up with a mechanism to achieve the two-third gender requirement in
its coalition of parties.

40. PSC further submitted that the two-thirds gender rule is a Principle introduced by the Constitution that
it guarantees every person equality before the Law and freedom from discrimination quoting Article
27(8) that provides that the state shall take legislative and other measures to implement the principle
that not more than two thirds of the members of elective and appointive bodies shall be of the same

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 gender, and the Court of Appeal in Njenga v Judicial Service Commission & 9 Others (Civil Appeal
234 of 2017) [2022] KECA 1429 (KLR) where the Court held as follows;

“ Firstly, the two thirds gender principle is a constitutional directive. It is framed in imperative
terms, and is a mandatory factor that the 1st Respondent should take into consideration
when recruiting for the oce of judge. The question of gender is as important as the one
of competency."

41. On whether the list forwarded for onward transmission to the President for appointment to the
selection panel is legally compliant, it was PSC’s submission that the names did not adhere to the two-
thirds gender rule as required by law.

42. On whether PPLC and the Parliamentary Service Commission should forward the list of nominees to
the President for appointment to the selection panel despite not complying with the two-thirds gender
rule principle, it was submitted that there is a likelihood of any person challenging the composition
of the said selection panel as it will be non-compliant with the law, further adding that should that
happen, PSC would be unable to recover the resources expended to facilitate the said panel, adding
that Parliamentary Service Commission being a Constitutional Commission must ensure adherence
to the Constitution. In this regard, it must ensure adherence to the two-thirds gender rule. Therefore,
the Commission cannot forward a list that is not compliant with the law.

43. For the above, Parliamentary Service Commission submitted that in an attempt to cure the anomaly,
the Political Parties Liaison Committee be directed to conduct fresh nomination/elections that is
compliant with the law.
Issues For Determination

a. Whether the PPDT had Jurisdiction to hear and determine Complaint No.E008 of 2024.

b. Whether Dr. Augustus Muli was validly elected/nominated to the Independent Election
Boundaries Commission selection panel.

c. Whether PPDT erred in law and in fact in failing to consider the procedure of appointment of
the panel by ignoring Part 1 & 2 of The 1st Schedule of the IEBC (Amendment) Act, 2024.

d. Whether Dr. Augustus Muli’s Legitimate Expectation was violated by Azimio coalition.

e. Costs

Analysis And Determination

Whether the PPDT had Jurisdiction to hear and determine complaint No. E008 of 2024
44. Section 40 the Political Parties Act provides for the Jurisdiction of the political parties’ tribunal thus-

(1) The Tribunal shall determine—

a. disputes between the members of a political party;

b. disputes between a member of a political party and the political party; (c) disputes
between political parties;

c. disputes between an independent candidate and a political party;

d. disputes between coalition partners;

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 e. appeals from decisions of the Registrar under this Act.

45. The events that took place on the 26/07/2024 soon after the transparent and competitive process as
stated earlier sadly changed the happy ending for Dr. Augustus Muli.
Without being repetitive, his name was communicated to PPLC by the Azimio Coalition for
transmission to the President as the nominee for the minority cluster on 26/07/2024. However, the
clerk to PPLC declined Azimio’s invitation to forward the name for appointment, and by a letter of
27/07/2024 requested Azimio Coalition to replace Dr. Augustus Muli’s name with another to comply
with the gender parity rule in line with Section 2C of the First Schedule to the IEBC Amendment)
Act, 2024.

46. Without considering the ramications of such actions, Azimio coalition complied and indeed replaced
Dr. Augustus Muli’s name with the name of Dr. Koki Muli, who had lost the election to Dr. Augustus
Muli. All these events took place without his knowledge.

47. Evidence was tendered that soon after an attempt was made by Dr. Augustus Muli to invoke the Azimio
Coalition IDRM by a letter dated 29/07/2024 Azimio coalition on it’s own also attempted it’s IDRM
by its letter dated 29/07/2024 but no response was received. Time being of essence, Dr. Augustus Muli
was forced to escalate the complaint to the PPDT.

48. As provided at Section 40 of the Political Parties Act, a party to a dispute must adduce evidence of an
attempt to subject the dispute to IDRM. The court is satised that Article 16 of the Azimio Coalition
Agreement that provides and demands that a party formally lodges a complaint with the Dispute
Resolution panel, which hears and determines such a dispute.

49. It is evident that Dr. Augustus Muli formally lodged his complaint to Azimio Coalition when by his
letter through his advocates, dated 29/07/2024 demanded the coalition to look into the dispute but
instead, it replaced his name with that of Dr. Koki Muli and went silent on his request.
Faced with these events, Dr. Augustus Muli had to invoke the jurisdiction of the P-PDT for urgent
redress. Suce to cite the case of Richard Otieno Muga v. Orange Democratic Movement & 2 Others
[2017] eKLR wherein Justice Wakiaga understood the importance and respect by all of results of an
election that has been transparently and competitively conducted.

50. The election subject of these appeals was such case.

See also the case of Omole v Mghanga & 2 Others; Communist Party of Kenya (CPK) (Interested
Party) (Complaint E024 (NRB) of 2022) [2022] KEPPDT 965 (KLR) (10 May 2022) (Judgment)
where it was stated thus:-

“ ………. the Tribunal is conscious that the doctrine of exhaustion is not absolute and where
it can be shown that a Claimant attempted to resolve the matter using the party's internal
dispute resolution mechanism (IDRM).”
This observation was also stated in the case of Rushila Akoth Odida & 2 others v Orange
Democratic Movement (Complaint No 331 of 2017), para 13 and formed foundations that
dictated the amendments to section 40(2).

51. In the case John Mworia Ncheber & Others v. The National Chairman Orange Democratic Movement
& Others (Nrb. PPDT Complaint No. E002 OF 2022] the PPDT set out certain specic guidelines for

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 determining what constitutes an attempt at IRDM in line with Section 40(2) of the Political Parties
Act as follows:-

“ Our pre-amendment position that a party must demonstrate on a des (an honest attempt)
in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show
that, among others:-

a. The unavailability of the organ to resolve disputes;

b. If the same is available, it is ino0perative, fraught with conict of interest,

obstructive, in perpetual paralysis or subject to inordinate delays, which may
compromise the subject matter of the dispute.

c. Reasonable time is aorded to the party to respond constitute or activate an

IDRM organ and deal or determine the dispute.

d. Due consideration should be given to the urgency and public inters tint he
subject matter of the dispute and

e. The reliefs sought should be proportionate, and if alternative remedies suce

to mitigate the harm likely to be suered, the same should be considered. In
essence, the utilitarian or proportionality of the process and remedies should
be considered so as to achieve an equilibrium. The foregoing list is by no means
exhaustive, but is a useful compass for navigating the frontiers delimited by
section 40(2) of the Political Parties Act, 2011”.

52. See also Civil Appeal No. E630 of 2023 – Jeremiah Kioni, David Murathe & 2 Others vs. The National
Disciplinary Committee of the Jubilee Party and 2 Others [2024] eKLR where this court discussed the
matter of an attempt at IDRM as envisaged at Section 40(2) of the Political parties Act exhaustively.

53. For the foregoing, the court is therefore satised that Dr. Augustus Muli attempted to invoke Azimio
Coalition IDRM mechanism and thus the PPDT was duly clothed with the requisite jurisdiction to
hear and determine Complaint No. E008 of 2024.

Whether Dr. Augustus Muli was validly elected/nominated to the Independent Electoral and
Boundaries Commission Selection Panel.
54. Mr. Malenya Advocate for Dr. Augustus Muli in advancing his position asserted that Dr. Augustus
Muli was duly elected and that Dr. Koki Muli subjected herself to the election held on 26th July, 2024
conducted by the IEBC and never challenged the result.

55. At the PPDT, despite being aware of the proceedings, she failed to express her interest therein upto
when judgment was delivered when she realized that her cup of tea had been snatched away from her,
upon which she dashed to court seeking to be enjoined to the appeals proceedings post judgment. In
the case of Serah Njeri Mwobi vs John Kimani Njoroge (2013) eKLR, the Court held that:

“ The doctrine of estoppel operates as a principle of law which precludes a person from
asserting something contrary to what is implied by a previous action or statement of that
person”.

Despite her obvious indolence and for ends of justice to be seen, this court by a ruling dated 3/10/2024
enjoined Dr. Koki Muli as an appellant in these appeals and has since participated as such;

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56. Section 2 of the IEBC (Amendment) Act denes a parliamentary party as ‘A party or coalition of parties
consisting of not less than ve percent membership of the national assembly and senate.
As a matter of fact and without a doubt, the National Liberal Party is not a parliamentary party within
the coalition. Section 2 of the IEBC (Amendment) Act, 2024 is specic that candidates to the IEBC
Selection Panel were to be selected from specic clusters.
The Cluster from which Dr. Augustus Muli was nominated was the Minority Party or Coalition
of parties. It is not a parliamentary party as it has no representation in the National Assembly. This
material fact has not been controverted by any of the parties in these proceedings. Dr. Augustus Muli
has opted to remain silent on the issue.

57. Indeed the Appellants submitted that the PPDT selected a stranger to represent Azimio Coalition,
whose party is not a parliamentary party and which slot is specically reserved for a Coalition Political
Party in the IEBC selection panel.
Prior to the impugned election, Azimio Coalition held several meetings to nd a way of circumventing
the law with Dr. Augustus Muli being present as captured in at least minutes of such meetings.
Knowing very well that the National Liberal Party was not a Parliamentary Party the Azimio Coalition
cleared Dr. Augustus Muli to contest in the election. This in the courts view was malicious and illegal.
This contravention of law aspect alone disqualied Dr. Augustin Muli from being cleared by the
Azimio Coalition to contest in the election of 26/7/2024 but instead, the coalition cheered him on
and surprisingly, he garnered majority votes.

58. It is to be noted that the Azimio Coalition at all material times knew or ought to have known that
National Liberal Party though a member of the coalition, had no representation in parliament and
therefore was not a parliamentary party and clearing Dr. Augustus Muli to contest was an act in futility
and dare say, was malicious and ill intentioned.
For this reason alone, the court nds that Dr. Augustus Muli was not validly nominated/elected to
represent the Azimio La Umoja Coalition in the IEBC selection panel.
It is also worthy to state that once a candidate has been duly elected in a competitive election process,
no one or body can purport to change or replace the name of such elected candidate with another as
at its whim, PPLC purported to do. Only a Court of Law clothed with the necessary jurisdiction can
reverse the election results upon being moved in that regard.

Whether the PPDT erred in law in failing to consider the procedure of appointment of the panel
ignoring Part 1 & 2 of the First Schedule to the IEBC (Amendment) Act, 2024.
59. The Party of National Unity (PNU) contented that the gender parity requirement should be handled
by the Political Parties Liaison Committee as envisioned under Section 2 of the First Schedule of the
IEBC (Amendment) Act,2024 and that PPLC’s decision cannot be referred to the minority coalition
for dispute resolution even if the coalition had mechanism for such dispute resolution.

60. Parliament has not provided regulations or any mechanism guide or ensure the two third gender rule
is complied with in a competitive election process. Indeed, the Appellants too added their voices by
submitting that the tribunals decision was contrary to the provision of Paragraph 1 and 2 of the First
Schedule to the IEBC (Amendment) Act, 2024 as read with provision of Article 27 and 47 of the
Constitution of Kenya, 2010 which requires not more than two thirds (2/3) of the nominees are of the
same gender. However, they did not attempt to provide a mechanism to achieve compliance.

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61. Paragraph 2(C) of the IEBC (Amendment) Act,2024 provides that -;

In nominating the persons under sub - paragraphs 2(a), (b) and (e) the respective nominating
bodies shall ensure that not more than two thirds of the nominees are of the same gender.

62. Article 27 of the Constitution of Kenya provides-

1. Every person is equal before the law and has the right to equal protection and equal benet
of the law.

2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

3. Women and men have the right to equal treatment, including the right to equal opportunities
in political, economic, cultural and social spheres.

4. The State shall not discriminate directly or indirectly against any person on any ground,
including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age,
disability, religion, conscience, belief, culture, dress, language or birth.

5. A person shall not discriminate directly or indirectly against another person on any of the
grounds specied or contemplated in clause (4).

6. To give full eect to the realization of the rights guaranteed under this Article, the State shall
take legislative and other measures, including armative action programs and policies designed
to redress any disadvantage suered by individuals or groups because of past discrimination.

7. Any measure taken under clause (6) shall adequately provide for any benets to be on the basis
of genuine need.

8. In addition to the measures contemplated in clause (6), the State shall take legislative and other
measures to implement the principle that not more than two-thirds of the members of elective
or appointive bodies shall be of the same gender.

63. Despite the duty to provide mechanisms or framework envisaged at (6) above, the state is yet to comply
and until then it is dicult for anybody to attempt to do so, lest they are accused of discrimination.
The legislation is in place but there are no mechanisms as per the provision of Article 27(6) of the
Constitution of Kenya, 2010 to give eect to the operationalization of Paragraph 2(C) of the IEBC
(Amendment) Act 2024.

64. To this end, the Court nds that failure by the PPDT to abide by the procedure of appointment of
the panel set out in Part 1 & 2 of 1st Schedule to the IEBC (Amendment) Act, 2024 though was not
intentional for luck of a framework in competitive election process. Pursuant to provisions of Article
27(4), Article 27(6) and Article 27(8) of the Constitution of Kenya 2010. The PPDT cannot be held at
fault for the reasons stated. The blame falls squarely on parliament’s shoulders.

Issues (d) And (e) Whether Dr. Augustus Muli’s Legitimate Expectation was violated by Azimio
coalition and Costs
65. On costs, the guiding principles are stated at Section 27(1) of the Civil Procedure Act. The general
principle is that an award of costs shall be at the discretion of the court or judge and the court shall
have full power to determine by whom and out of what property and to what extent such costs are
to be paid and further that such costs shall follow the event unless the court or judge shall for good
reason otherwise order (emphasis added).

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66. To grant costs or not is therefore an exercise of court’s discretion. However, the court can depart from
the general principle for good reason that includes the party’s conduct prior or during the cause of
litigation that has led to the litigation which but for the party’s conduct might have been averted – see
case of Stanley Kaunga Nkarichia V. Meru Teacher College (2020) Co. eKLR and ELC Appeal no 1
of 2019 Charles Muriu Mwangi v. Benjamin Makohka Nyongesa [2021] eKLR.

67. A successful party may be denied costs if it is proved that but for its conduct the action would not have
been brought. Thus in determining the issue of costs, the court is entitled to look at, interalia;

a. Conduct of the parties;

b. Subject of litigation;

c. Circumstances which led to the institution of the suit, and

d. Relationship of the parties.

68. In respect to these consolidated appeals before the court, there is uncontroverted evidence that the
chronology of events that led to the dispute between Dr. Augustus Muli and the Azimio Coalition
which eventually roped in Dr. Koki Muli at the appeal level were all due to Azimio Coalition’s conduct
by its willful and intentional actions by ignoring the clear provisions of the IEBC (Amendment), Act
2024 .

69. Without unnecessary repetition, the Azimio Coalition’s conduct at the preliminary stage prior to
the 26/07/2024 election when it cleared Dr. Koki Muli of Wiper Democratic Movement and Dr.
Augustus Muli of National Liberal Party to contest for the Minority Party Coalition of parties, leaves
a lot to be desired as to its real intentions. This conduct led Dr. Augustus Muli to have a legitimate
expectation that if he won, he would have his name communicated to the clerk/secretary of the PSC
for forwarding to the President for appointment into IEBC Selection Panel.

70. Had the Azimio Coalition been keen to observe and comply with requirements as communicated to
it by the Political Parties Registrar and the PPLC vide letters sent to it, it would have made a nding
that Dr. Augustus Muli’s party, National Liberal Party, was not a parliamentary party as it had no
representation in parliament, and by that alone, ought NOT to have cleared Dr. Augustus Muli to
contest for the prestigious position.
It is common knowledge in Kenyan society that any election to any position, more so of a political
nature is a very expensive exercise and emotive. To be robbed of a win is worse than outright lose.

71. The Supreme Court of Kenya in the case of Jasbir Singh Rai & 3 Others(2014) eKLR renders thus:-

“ The object of ordering a party to pay costs is to reimburse the successful party of amounts
expended on the case. It must not be made merely as a penal measure …. Costs are a means
by which a successful litigant is recouped for expenses to which he has put in ghting an
action.”

72. Despite this litigation being of a public interest nature this court is persuaded due to its peculiar nature
and circumstances to depart from the general principle that in a public- interest litigation are rarely

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 awarded to any of the parties. In the Supreme Court of Kenya case of Raila Odinga & 3 Others vs.
IEBC (Petition No. 5/2013) (2013) eKLR; the court held that:-

“ ….if proceedings are brought to advance a legitimate public interest and contributes to a
proper understanding of the law in question without private gain….then costs may not be
awarded to the successful party’’.

Similar holding were held earlier in the Harun Mwau & Others V. AG & Others [2012] eKLR, and
in others thereafter.

73. For the foregoing the court holds the view that costs of these consolidated appeals must be awarded to
Dr. Augustus Muli, to reimburse him of the monies he expended after he was cleared by the Azimio
Coalition to contest for the position when it knew, or ought to have known that Dr. Augustus Muli
lacked the requisite capacity to do so for reasons stated above. These costs shall be borne by the Azimio
Coalition.

Disposition
74. The court nds merit in the consolidated appeals. They are allowed.
Consequently,

a. The Political Parties Dispute Tribunal’s (PPDT) Judgment on complaint No. E008 of 2024
delivered on dated 10/09/2024 is hereby set aside and declared null and void.

b. Costs of the consolidated appeals are hereby awarded to the 1st Respondent, Dr. Augustus
Muli, in both Appeals No. E1056 of 2024 and E 1081 of 2024. The said costs shall be borne
by the 2nd Appellant herein, Azimio La Umoja One Kenya Coalition.

c. The court further directs and orders that Fresh Election for Minority Coalition Cluster for
nominees to the IEBC selection panel be held in strict compliance with provisions of Sections
2(B) and 2(C) of the First Schedule of IEBC (Amendment) Act 2024, within 48 hours of this
judgment/orders, and in any event not later than 3.00pm on 24/10/2024.
Orders accordingly.
DELIVERED DATED AND SIGNED AT NAIROBI THIS 22 ND
DAY OF OCTOBER 2024 AT
2.30PM.
JANET MULWA
JUDGE

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