[2022] KEHC 1424 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.E326 OF 2020

FORUM FOR THE RESTORATION OF DEMOCRACY-KENYA...1ST APPELLANT

MOSES MASIKA WETANGULA..........................................................2ND APPELLANT

JOEL AMUMA RUHU............................................................................3RD APPELLANT

MILLICENT ABUDHO............................................................................4TH APPELLANT

CHRISANTHUS WAKHUNGU WAMALWA........................................5TH APPELLANT

VERSUS

CRISPINUS BARASA....................................................................................RESPONDENT

(Being an appeal against the judgment given by Hon. Desmond Nungo (Chairperson)

Paul Ngotho,Milly Lwang and Dr. Adelaide Mbithi (Members)

on 12th November, 2020)

JUDGMENT

1. On 12th November 2020, the Political Parties Dispute Tribunal(PPDT) delivered its decision in respect of a complaint filed before it by Crispinus Barasa, the respondent herein. In the aforesaid decision, PPDT issued orders in which it inter alia that adeclaration be and be issued that the purported National Executive Council meeting of the interested party the 1st appellant herein, held on 17th August 2020 together with the resolutions emanating therefrom are null and void and that the costs of the proceedings be awarded to the complainant against the respondents the 2nd to 5th appellants herein and interested party jointly and severally.

2. When the decision of PPDT was brought to the attention of MosesMasika Wetangula, Joel Amuma Ruhu, Millicent Abudho and Chrisanthus Wamalwa the appellants herein, they preferred this appeal.

3. On appeal, the appellant put forward the following grounds.

1. The tribunal erred in holding that the 1st appellant had not denied receipt of the respondent’s complaint letters and that she (1st appellant) was aware of the respondent’s complaints thereby deriving erroneous findings that the respondent had invoked internal dispute resolution mechanism (hereinafter “IDRM”) prior to filing suit and that the 1st appellant failed and/or was unable to operationalize its IDRM yet.

a. The respondent had nowhere stated that the complaint letters had been served on the 1st appellant.

b. The 1st appellant had expressly stated that the respondent’s complaint’s had never been presented to her (1st appellant).

c. No evidence had been placed before the Tribunal to demonstrate that the 1st appellant’s IDRM was in operational due to failure and inability or at all

2. The Tribunal erred in fact and law in failing to hold that it (The Tribunal) had no jurisdiction to preside over and or determine the complaint as presented by the respondent for failure to, prior to invoking the jurisdiction of the Tribunal, present his complaint to and or exhaust Internal Dispute Resolution Mechanism.

3. The Tribunal erred in holding that the Registrar of Political Parties had warned the 1st appellant that the holding of any key meeting would be foolhardy yet no such warning had been issued by the Registrar of Political Partied save for an advise dated 14th August 2020 to the 2nd appellant but which was responded to by the 1st respondent’s lawyer vide a letter dated 14th August, 2020 and the matter ended there.

4. The Tribunal erred in finding that there was a confusion within the 1st appellant’s leadership, an ambiguous finding which had no basis and an issue which had not been placed before the Tribunal for determination.

5. The tribunal erred in holding that a further affidavit is a pleading thereby setting a dangerous precedent that fails to differentiate between a pleading and an affidavit.

6. The Tribunal erred in considering and determining the validity of the 1st appellant’s Notice dated 27th July,2020, a matter that did not fall for determination by the Tribunal and thereby deriving an erroneous finding which in in any event could not be supported by law and evidence.

7. The tribunal erred in holding that the 2nd to 5th appellants had pleaded that the quorum of the 1st appellants National Executive Council (hereinafter “NEC”) meeting was 38 members yet the 2nd to 5th appellants had not pleaded as such at all.

8. The Tribunal erred in holding that the 1st appellant had pleaded that the quorum of her (1st appellant) NEC was 38 yet the 1st respondent was express that the minimum quorum of NEC was less than 38 due to some members having vacated office through death or resignation.

9. The Tribunal erred in holding that the requisite quorum requirement was not met in the appellant’s NEC meeting of 17th August, 2020 a finding that was contrary to the evidence on record and the applicable law.

10. The Tribunal erred in failing to make a determination on prayer 2 of the respondent’s complaint as to whether the same had been granted or declined thereby breaching the legal principles governing the contents of a judgment which must state its finding or decisions accompanied by reason (s) on each issue procedurally placed before a judicial forum for adjudication.

11. The Tribunal erred in allowing the prosecution of proceedings and granting prayers against the 1st appellant yet the 1st appellant was only cited as an interested party and not a primary party in the proceedings.

12. The Tribunal erred in failing to dismiss the respondent’s suit against the 2nd to 5th appellant’s against whom in any event no prayer had been sought against in the complainant nor was the suit successfully prosecuted against them (2nd to 5th appellants) before the Tribunal.

13. The Tribunal erred in awarding costs to the respondent against the appellants jointly and severally yet;

a. There was no prayer for costs in the complaint.

b. There was no suit that the Tribunal found as having beensuccessful against the 2nd to 5th appellants.

c. There was no suit filed against the 1st appellant.

14. The Tribunal’s judgment of 12th November, 2020 went against the weight of evidence and the law so as to render an injustice to the appellants.

4. When the appeal came up for hearing, this court directed theparties to file and exchange written submissions but at the time of writing this judgment the respondent had not filed his submissions.

5. I have re-evaluated the case that was before the Political PartiesTribunal. I have also considered the appellants’ written submissions. Though the appellants put forward a total of fourteen (14) grounds of appeal, two grounds commend themselves for the decision of this court. First, whether the PPDT had the jurisdiction to entertain the complaint dated 8th September, 2020 and grant the orders it did. Secondly, whether or not the tribunal misapprehended the appellants’ case and thus reached a wrong decision.

6. It is the submission of Ms. Nyamweya, learned advocate for theappellants that the respondent produced letters dated 4th August, 2021, 10th August 2021 and 16th August 2021 on the impugned NEC all addressed to the 2nd appellant and copied to the suspended secretary Hon. Eseli Simiyu, the respondent did not state in his pleadings that he served the said letters to the 1st appellant.

7. It is her submissions that having been so denied by the 1stappellant the burden of proof rested on the respondent to demonstrate that he indeed presented the purported complaint before the 1st appellant.

8. The 1st appellant’s constitution to which the respondent is amember provides for the Internal Dispute Resolution Mechanism under Article 55 (g) of its constitution specifically provides that;

(g) No dispute shall go to the Political Parties Tribunal unless mechanisms for internal party arbitration have been exhausted.”

9. The appellants contend that in the absence of proof of exhaustionof internal dispute resolution option the Tribunal did err in finding that the said complaints were presented before the appellant invoking the Internal Dispute Resolution Mechanism (IDRM) of the party before filing the complaint to the Tribunal. It is therefore the submissions of the appellants that the Tribunal had no jurisdiction to entertain the respondent’s complaint in the first place.

10. The appellants relied on the Court of Appeal case of GeoffreyMuthinja & Another v Samuel Muguna Henry & 1756 Others (2015) eKLR where it was stated as follows:

“This brings us to the final and related issue whether Article 21` of the Church’s Constitution ousted the jurisdiction of the courts in disputes involving members of the church. The said provision states;

“1. No dispute concerning the affairs of the Society (the church) shall be referred to or instituted in a court of law by a member or members of the society but shall be dealt with by the following church organs, namely the board of elders, the parish council, the District Executive Committee and the National Committee.”

11. The appellants argue that there was no evidence which had beenplaced before the tribunal to demonstrate that the 1st appellant’s IDRM was inoperational due to failure and or inability or at all.

12. We see this as the crux of the matter in this and similar cases. Itis imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and the exhaustion doctrine is a sound one which serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

13. Majanja J also clarified when parties may approach the PPDT fordispute resolutions in the case of George Okode & Others vs orange Democratic Movement & Others Petition No. 294 of 2011, thus:

“To my mind, the provisions of Section 40(2) of the Political parties Act must be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism. The section must be read as contemplating assumption of jurisdiction by the Tribunal where the internal party mechanism has failed to hear and determine a dispute. Indeed, I do not believe that this court has jurisdiction to entertain this Petition at all in view of the nature of the petitioners’ grievance and the parties involved.”

14. As a result, I conclude that the PPDT lacked jurisdiction to hearthe complaint dated 8th September, 2020, since the 1st appellant's constitution expressly states that no issue should be brought to the PPDT before the internal party arbitration processes have been exhausted.

15. On the second issue, on whether or not the tribunalmisapprehended the appellants’ case and thus reached a wrong decision, the remaining grounds of appeal will be dealt with under the above head.

16. The Appellants pointed out that the first appellant had writtento the Registrar of Political Parties informing her of the upcoming NEC meeting, to which she replied and offered advice on two issues: the presidential directives on the Covid-19 pandemic, particularly on political and public gatherings, and the issue of party leadership in court, with subsequent orders still in effect and thus sub judice.

17. It was their contention that an advice cannot be construed as awarning or a direction; rather, it serves as counsel and does not bind the person advised to such counsel; and that the tribunal's decision that the letter acted as a warning was misguided.

18. It was their argument that the Tribunal's assessment that theparty leadership was in disarray was not a matter brought before it for decision, and that issues for decision emanate from pleadings. It was further contended that the respondent had not pled confusion in the party leadership, and that the Tribunal could not construct and decide its own problem unilaterally.

19. In the case of K. Tar Mohammed v Lakhani [1958]EA 567 :-

where the court stated as follows-:

“Except on grounds of fraud or surprise, the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the party seeking to use it at the trial or that reasonable diligence could not have made it available” (see Governors Balloon Safaris Limited v Zakaria W. Baraza t/a Sirima Auctioneers[2016]eKLR”).

20. It is clear that the complaint on confusion of leadership, ispremature as the General Council was yet to be constituted to deliberate on the same.

21. It was their contention that the tribunal erred in holding that therequisite quorum requirement was not met in the appellant’s NEC meeting which was contrary to the evidence on record, as nowhere did the appellants state that the quorum was 38. It was further contended that the tribunal did not bother to state that it analyzed the attendees list and found that a certain number were discounted because of such and such reason.

22. The appellants have pointed out that if the Tribunal was mindedto grant the order on quorum in favour of the respondent then it owed the appellants a duty of laying a basis for the grant of such a relief.

23. From the record it is clear that the question of quorum wasneither pleaded nor proven, the 1st appellant did provide a list of NEC members and stated that it is not for the respondent who is a member of NEC to state who are or not NEC member. The 1st appellant maintained that the NEC meeting was not a public gathering as only a few members attended and the same was held whilst observing the ministry of health regulations.

24. The appellants submitted that the tribunal never made a findingthat the respondent suit was successful against the 2nd to 5th appellants therefore the condemnation for them to pay costs was based on no finding and accordingly an error.

25. It was further submitted that the 1st appellant was an interestedparty in the suit at the Tribunal and no claim filed against her and neither was she accused for doing or not doing anything in the Respondent’s statement of claim.

26. I therefore agree with the appellants’ submissions that the ordersagainst the 1st appellant by quashing her NEC meeting proceedings yet he was an interested party was a decision made in error and similarly the orders on costs against all the appellants was an erroneous order.

27. Having considered the appellants’ submissions, this court ispersuaded to find that the Tribunal misapprehended the appellants’ case.

28. In the end, I am convinced that the Tribunal had no jurisdictionto entertain the complaint and on this singular ground, I find the appeal to be meritorious. The appeal is allowed. Consequently the decision of PPDT delivered on 12th November, 2020 is set aside.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MARCH, 2022

…….….……………..

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1st Appellant

……………………………. for the 2nd Appellant

……………………………. for the 3rd Appellant

……………………………. for the 4th Appellant

……………………………. for the 5th Appellant

……………………………. for the Respondent