[2022] KEPPDT 966 (KLR)

Elmi v Jubilee Party; Adam (Interested Party) (Complaint E039 (MRU) of 2022) [2022] KEPPDT 966 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 966 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E039 (MRU) of 2022

G. Gathu, Presiding Member, W Ngige & L. Kinyulusi, Members

May 11, 2022

Between

Mohammed Ibrahim Elmi

Complainant

and

The Jubilee Party

Respondent

and

Hassan Mohamed Adam

Interested Party

Judgment

1. The Complainant filed a Complaint with this Tribunal on 28th April 2022 (“the Complaint”). The orders sought by the Complainant are reproduced below: -a.Quashing of Party’s decision to nominate Hassan Mohamed Adam (the Interested Party);b.Order to issue directing the issuance of the Nomination Certificate to the Complainant;c.[Order] preventing the Party from submitting the Interested Party’s name to the Independent Electoral and Boundaries Commission (IEBC).

2. In support of the Complaint, the Complainant filed a “Supporting Affidavit to Complaint” and a Witness Statement as well as a Witness Statement by Ibrahim Mohamed Ibrahim (PW2).

3. In response to the Complaint, the Respondent filed a Replying Affidavit sworn by Kamau Mbugwa – the Party’s Director of Legal Affairs whilst the Interested Party also filed a Replying Affidavit. Both the Respondent and the Interested Party raised objections to the Tribunal’s jurisdiction on the basis that the Complainant had not exhausted Internal Dispute Resolution Mechanisms (IDRM).

4. The Parties filed and served Written Submissions, which Submissions were highlighted at the hearing of 4th May 2022.

The Complainant’s Case 5. Summarised, the Complainant’s case is that the Respondent did not conduct its nominations through a voting exercise and in so doing, denied the Party members their right to participate in party nominations as provided for under section 38C of the Political Parties Act, 2011 (“the 2011 Act”) and amendments thereto; that even though the Respondent had – via Press Statement dated 7th April 2022 – indicated that it would conduct its party nominations using the consensus method, the Interested Party was selected as the Respondent’s candidate for the position of Governor, Wajir County, despite the lack of consensus amongst the aspirants; that despite the Party’s failure to invite aspirants for consensus building for the purposes of nomination, the Complainant was endorsed by a majority of aspirants for other positions, which endorsements were disregarded by the Respondent.

6. That the Interested Party was nominated on 25th April 2022 and issued with a nomination certificate. Once the Complainant found out about this nomination, his evidence is that he prepared a Protest Letter to the Party through his advocate, which is dated 26th April 2022. The person who was to effect service of that Protest Letter was PW2 (the Complainant’s son) who provided a Witness Statement stating that – despite request - an unnamed and unidentified agent of the Respondent declined to acknowledge service of the Protest Letter and also declined to provide him with a Complaint/Appeal form. The Protest Letter was therefore returned to the Complainant the “duly served but unsigned and unstamped copy” of the Protest Letter. Consequently, the Complainant asserts that he made an attempt to exhaust IDRM as required by the 2011 Act and that the Tribunal has jurisdiction to hear his Complaint.

The Respondent’s Case 7. The Respondent’s case was that its Rules permit it to undertake different modes of nomination. He directed us to the Jubilee Party Nomination Rules, Part XVI, (i) of those rules which provide for direct nomination through consensus or any other appropriate means agreed between the aspirants. That the approval rating of the Complainant was low, despite his allegations that he received endorsements by aspirants for other seats. That once the Respondent communicated its decision to nominate the Interested Party as its candidate for the position of Governor, Wajir County, the Complainant ought to have lodged his appeal through its National Elections Appeals Tribunal (NEAT); that the Complainant did not lodge any appeal, neither did he pay the requisite fees for his alleged appeal under Rule 39 of the Respondent’s Nomination Rules, an extract of which was provided. The Respondent urged us to dismiss the Complaint.

The Interested Party’s Case 8. Factually, the Interested Party’s case did not depart from that of the Respondent, save that he stated that all aspirants agreed to the direct nomination method settled on by the Respondent when they submitted their application forms.

Issues for determination 9. Having reviewed the pleadings, read the Parties’ submissions and listened to the oral highlighting of those submissions, the Tribunal finds the following as the issues for determination: -

i.Whether the Tribunal has jurisdiction to hear and determine this matter; andii.If the Tribunal has jurisdiction, whether the Complaint is merited.

Analysis and Findings Whether the Tribunal has jurisdiction to hear and determine this matter 10. Jurisdiction is everything. Without it, the Tribunal cannot make one step more. (See the judgment of Nyarangi J in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). Section 40 of the 2011 Act mandates that the Tribunal can have no jurisdiction unless there has been an attempt to have the dispute referred to the Internal Political Party Dispute Resolution Mechanism (IDRM). The rationale for this strict requirement is “to give the party a good faith chance to resolve any dispute in the first instance.” (emphasis supplied) - see the case of Gabriel Bukachi Chapia v Orange Democratic Movement and Anor (Complaint No. 237 of 2017).

11. In John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nairobi PPDT Complaint No. E002 of 2022) this Tribunal held that the requirement that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law.

12. The question that now arises is this: has the Complainant provided sufficient evidence that he made a bona fides attempt to pursue IDRM? Further to the Complainant’s own evidence, the Tribunal notes that the Protest Letter dated 26th April 2022 is on the Complainant’s advocate’s letterhead upon the Complainant’s own instructions. The evidence of PW2 is that he delivered this Protest Letter to the Respondent’s offices, circa 2pm on 26th April 2022 where he also asked for a Complaint/Appeal Form, which was denied him. Moreover, the unnamed and unidentified agent of the Respondent refused to acknowledge service of the Protest Letter. The Complainant states that he went on to serve the Protest Letter by Whatsapp Messaging Service (see paragraph 3 (h) of the Complainant’s Supporting Affidavit to the Complaint). Annexed to the Complainant’s Supporting Affidavit to the Complaint are screenshots from Whatsapp that appear to transmit the Protest Letter to persons alleged to be the Respondent’s officials. Neither the Respondent nor the Interested Party raised any issue in respect of those screenshots.

13. Even though the Tribunal may be prepared to accept that the Protest Letter was transmitted to the Respondent (whether physically or by Whatsapp messaging service), there remains the issue of IDRM filing fees as was required by the Respondent’s Nomination Rules, Rule 39, which we reproduce below: -“Provided that the appeal shall not be heard and time for lodging the appeal shall continue running as against the intending appellant unless and until such fee as shall have been prescribed in these rules for the lodging of the appeal shall have been paid in full to the Party account designated for that purpose either at the County or National level.”

14. Neither the Complainant’s Witness Statement nor that of PW2 make any reference to the payment of filing fees in respect of his Appeal to the Respondent’s NEAT. The Complainant did not deny that fees for the IDRM appeal were payable; neither did he state that he did not know where those fees were to be paid. Why then did the Complainant not make payment of the requisite fees? The Complainant’s Submissions attempted to answer this question by stating that the failure by the Respondent to give the Complainant’s agent an appeal form rendered it impossible to make payment of these fees. As that evidence was from the Bar as it were, and not from the Complainant himself, the Tribunal is minded not to accept it.

15. The Tribunal – guided by the case of Mombasa Cement Ltd v Speaker, National Assembly & Anor [2018] eKLR - finds that the filing of an appeal before the Respondent’s IDRM required the payment of filing fees, in the absence of which there could have been no competent appeal before it. In the premises, the Tribunal finds that the failure to make payment of prescribed fees stripped the Complainant’s attempt to engage in IDRM of the bona fides element required by the John Mworia Nchebere case supra and that the jurisdiction of this Tribunal under section 40 (2) of the 2011 Act is not properly invoked.

The Respondent’s Application dated 6th May 2022 16. As the Tribunal was preparing to deliver this Judgment (which was scheduled for 7th May 2022), an application – under Certificate of Urgency dated 6th May 2022-was made by the Respondent to arrest the judgment on the basis that it had new and important evidence establishing that the Complainant was no longer its member and that he had already applied to vie as an Independent Candidate. Annexed to the Supporting Affidavit of Kamau Mbugwa was a letter from the Office of the Registrar of Political Parties (ORPP) dated 5th May 2022 confirming that the Complainant was indeed vying as an Independent Candidate and providing a reference number for his candidature. This letter was in response to the Respondent’s letter to the ORPP dated 3rd May 2022. On the same facts and on the same day, an application was filed further objecting to the Tribunal’s jurisdiction on the basis that the Complainant was no longer its member for the purposes of the Tribunal’s jurisdiction under section 40 (1) (a) (b) and (fa) of the 2011 Act.

17. In the interests of justice, on 7th May 2022, the Tribunal deferred the delivery of its Judgment and directed the Complainant to respond to it as well as the objection to the Tribunal’s jurisdiction. The Complainant did so by a Replying Affidavit dated 6th May 2022 by which he annexed a letter dated 1st May 2022 from the ORPP which stated that he was not a member of any registered political party. Despite this confirmation that he is not a member of the Respondent, the Complainant testified that the Respondent could not benefit from its own illegalities and urged us to find that his Complaint was merited.

18. In support of its aforementioned application, the Respondent filed Written Submissions on 9th May 2022 which largely mirrored the application and the Supporting Affidavit thereof. The Complainant filed its Submissions on the morning of 11th May 2022 (outside of the timeframes given by the Tribunal; however, the Tribunal has considered those Submissions). The Complainant submitted that the Tribunal has jurisdiction pursuant to section 40 (1) (d) of the 2011 Act which provides that the Tribunal shall determine disputes between an independent candidate and a political party. The Complainant also pointed the Tribunal to the doctrine of ex turpi causa stating that the application was based on the Respondent’s own immoral and illegal action.

19. Having considered the Application, the responses to it and the submissions thereon, the Tribunal considers that the law allows it to consider new and material evidence, provided that it has jurisdiction. As the Tribunal has found that its jurisdiction was not properly invoked, the Complainant not having made a bona fides attempt to exhaust IDRM, the Tribunal sees no utility in considering the issues raised by the Respondent and dismisses that application, with no order as to costs.

20. On the second issue framed for determination, having found that we do not have jurisdiction, the Tribunal cannot delve into the merits of the Complaint.

21. Given the circumstances, we decline to award costs. Accordingly, each party shall bear its own costs.

Orders 22. The Tribunal thus makes the following orders:-a.The Respondent’s application by way of Notice of Motion dated 6th May 2022, is dismissed with no order as to costs;b.The Complaint is hereby struck out with each party bearing its own costs.

DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF MAY 2022. GAD GATHU ………………………………………………(PRESIDING MEMBER)WANJIRŨ NGIGE……………………………………………..(MEMBER)DR. LEONARD KINYULUSI ……………………………………..(MEMBER)