[2022] KEPPDT 926 (KLR)

Etabale v Orange Democratic Movement (ODM) Party & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E005 (NRB) of 2022) [2022] KEPPDT 926 (KLR) (Civ) (14 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 926 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E005 (NRB) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

May 14, 2022

Between

James Omutachi Etabale

Complainant

and

Orange Democratic Movement (ODM) Party

1st Respondent

National Elections Board (ODM)

2nd Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

Background 1. The Complainant intends to stand as an independent candidate in the coming August 2022 general elections.

2. The Complainant intends to vie an independent candidate having resigned as member of the ODM party and he brings this suit seeking the following:a.An order that the 1st and 2nd Respondents to refund the nomination fees paid to them by the Complainant;b.General Damages for lost time and frustrations and or Damages for inconvenience; c) Interest on (a) and (b) above;c.A declaration that the decision of the Orange Democratic Movement Party, (ODM) to issue the Nomination Certificate for Kisa North ward to Limera Maurice Swaka, the 3rd Respondent herein, is illegal and thus null and void.d.Any other appropriate order that the Honourable Tribunal may deem fit in the circumstances

3. The 1st and 2nd Respondents as well as the Interested Party though served chose not to respond to the complaint.

4. The 3rd Respondent filed a response as well as written submissions. In addition he lodged his preliminary objection to the complaint

The Complainant’s Case 5. The Complainant was a registered member of Orange Democratic Movement Party, No 009091 who having complied with the party's constitution and the relevant elections laws of Kenya, proceeded to pay for the nominations fees in readiness for the party nominations that were slated for April 2022.

6. A day to the nominations day that is November 2022, the 1st and 2nd Respondents through their Kakamega County Elections Committee, unilaterally, unfairly, illegally and unjustifiably informed the Complaint that there would be no party primaries in Kisa North Ward.

7. The Complainant together with one of his competitors, one Hudson Emmanuel Amenya visited the 1st Respondent's offices in Kakamega on 11th April 2022 to inquire about any development in respect of the nominations when they were informed that the 1st Respondent would communicate to them regarding the nominations within 24 hours. There has been no communication from the 1st and the 2nd Respondents to date.

8. It is the Complainants case that he was shocked to learn that the 1st and 2nd Respondents had proceeded to issue the Provisional Nomination Certificate to the 3rd Respondent. This prompted him to formerly complain to the 1st and 2nd Respondents through the letter dated 14ff April 2022 and which letter was served on the 1st and 2nd Respondent on the even date. It demanded that nominations in respect of the said ward be conducted within 48 hours or in default a certificate issue to him.

9. It is the Complainants submission that the 1st and 2nd Respondents' decisions and actions amount to a gross violation of the democratic rights and political rights of the complainant as well as the people of Kisa North Ward who were never given an opportunity to choose at the Nomination stage during the party primaries against their independent will due to the 1st and 2nd Respondents unilateral decision to unfairly deny the applicant and the people of Kisa North ward their Constitutional democratic and Political Rights.

10. Further the Complainant submits that due to the blatant injustices visited on him by the 1st and 2nd Respondents he was prompted to resign from the membership of the 1stRespondent so as to enable him to pursue his political ambitions of capturing the Member of County Assembly seat for Kisa North Constituency as an independent candidate.

The 3rd Respondent’s Case 11. The 3rd Respondents filed a preliminary objection premised on the following:a.That both the affidavit verifying the claim and the affidavit in support of the application are incompetent having been commissioned by unqualified advocate contrary to the holding in Pius Njogu Kathuri vs Joseph Kiragu Muthura & 3 Others [2018] eklr.b.The Complainant has not exhausted the dispute resolution mechanisms provided under the law and the 1st Respondents constitutions and electoral rules and contrary to the holding in Ndaira Enterprises LTD v Nairobi City County Government [2018] eKLRc.The Claimant lacks locus since he is not a member of the 1st Respondent having tendered his resignation.d.The claim and application are fatally defective and should be struck out

12. It is the 3rd Respondents submission that the Claimant having resigned from the party has no locus before the Honourable Tribunal or rights enforceable against the 3rd or the 1st and 2ndRespondent as per Article 5. 4.1 of the 1st Respondent's Constitution. And further the actions by the Complainant are in contravention of the ODM party laws including the code of conduct.

13. In fact, the claim is premature having been filed without first exhausting the alternative dispute resolution mechanism provided under 1st Respondent's Party Primaries and Nomination Rules.

14. Further, the Claim is frivolous and an abuse of court process only calculated to prejudice him and waste the precious and limited time of the honorable Tribunal.

15. The 1st Respondent is mandated under its Constitution and Rules to issue direct party ticket to its members as per rule 8 of the Party Primaries and Nomination rules and thus acted in compliance to this law.

16. It is the 3rd Respondents submission that if the Complainant had been dissatisfied with the party decision he had option to file an appeal before the relevant party organs.

17. He further submits that the claim before the tribunal is a claim in personam and not in rem and that in any event, the people of Kisa will have an opportunity to elect their leaders on August 9, 2022 where the Claimant has offered himself as a candidate.

18. He concludes by stating that this honorable Tribunal has no jurisdiction to issue the orders so sought and he stands to be extremely prejudiced if the orders sought are granted. Thus it is in the interest of justice and fairness that the frivolous Claim filed be dismissed with costs.

Issues For Determination 19. The 3rd Respondent submits that the complaint is fatally defective as the verifying affidavit that was sworn in support of the complaint was commissioned by an Advocate who is not actively on the roll. The Complainant has since sworn another verifying affidavit in support of the complaint correcting this anomaly and asks that the mistake not be borne by his client whose intention and complaint has been clear and remained unchanged since presenting before this Tribunal.

20. .The Counsels have presented before this Tribunal case law by the Superior Courts that speak to the issue of commissioning by an advocate without capacity. We note that the context within which the courts spoke in each of the instances differ. In addition, we note that the Complainant has in this instant gone ahead to correct the position, a fact and position that is confirmed by the said 3rd Respondent.

21. The 3rd Respondent raised a PO [Preliminary Objection] which ostensibly raises three points. Our analysis of the said objection shows that the main issue is on whether this Tribunal can properly be seized of jurisdiction in this matter.

22. The 3rd Respondent has by large confirmed the averments in the complaint save that the party was not occasioned the opportunity to deal with it internally. The Complainant and the 3rd Respondent are in concurrence that a nomination process was initiated. The point of divergence is where the Complainant avers that the process concluded without his involvement as an aspirant, while the 3rd Respondent submits that the said nomination concluded procedurally. In the circumstances the issues before us are:a.Does this Tribunal have jurisdiction?b.Is the complaint merited?c.What orders should we make?

Analysis 23The PPA [Political Parties Act] at section 40 provides the Jurisdiction of Tribunal as follows:(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;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.

24. The current wording of section 40 (2) is 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 subject to the internal political party dispute resolution mechanisms.

25. It is not disputed that the Complainant is no longer a member of the ODM party and is poised to participate in the coming general elections as an independent candidate. This is effect means that he falls under 1 (d) above, a category that is clearly exempt from the IDRM [internal dispute resolution mechanism] outlined in section 40 (2) above.

26. This complaint is thus properly before this Tribunal.

Is the Complaint merited? 27. The amendments to the Political Parties Act in 2022 brought into effect part IVA on party nominations and allows political parties a number of methods that they can adopt in identifying their ticket bearers for the various positions; being either direct or indirect methods.

28. The information provided by the Complainant is scanty and is countered by the 3rd Respondent who states that the party in issue procedurally applied an indirect method to identify it’s nominee.

29. The political party chose not to attend these proceedings and the Complainant choose to go independent after the alleged mistreatment by the political party. It may appear though, from the Complainants submissions, that the process of relaying the party method to aspirants may have been wanting. We say so guardedly, because whilst the Complainant alleges opaqueness, the 3rd Respondent appears to support the party action although he has not presented communication from the party that will show that the guidelines for direct nominations were adhered to as provided in the party laws.

30. As we have already stated above we do not have enough information before us to support the Complainants claim as to opaqueness in the indirect nomination method that was applied . Indeed neither do we have any information to support the 3rd Respondents claim that the procedure was conducted in line with the party rules. However, the burden of proof lies with he who brings the suit and it has certainly not been met by the Complainant in this instance.

31. On the issue of refund, as sought by the Complainant, we note that undoubtedly nomination fee is paid by members with the full knowledge that the national laws and party laws allow for various methods of nomination, each and one of which has cost implication if the procedure is to be applied as provided and if the process is to be inclusive and consultative. We have already stated that we have not been shown that there was no process of nomination applied. Instead what we have been shown is that there was a nomination process, either procedural or not, that resulted in the issuance of a ticket. In the circumstances we cannot find that a refund is warranted.

Disposition 32In light of our the aforesaid we order as follows:aThat the complaint herein is dismissed with costs.

DATED THIS 14TH DAY OF MAY 2022M.L. ODONGO (PRESIDING MEMBER)TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)DR. LYDIAH WAMBUI (MEMBER)PPDT KAKAMEGAICOMPLAINT NO. E005/22 ORIGINAL FINAL JUDGMENT 5