[2022] KEPPDT 997 (KLR)

Jattani v Orange Democratic Movement National Election Board (Complaint E072 (NRB) of 2022) [2022] KEPPDT 997 (KLR) (Civ) (19 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 997 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E072 (NRB) of 2022

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

May 19, 2022

Between

Diqa Wario Jattani

Complainant

and

The Orange Democratic Movement National Election Board

Respondent

Judgment

1. This Complaint was filed under a Certificate of Urgency with this Tribunal on May 7, 2022 (“the Complaint”). In essence, the orders sought by the Complainant are to declare him as the validly nominated Member of the County Assembly (MCA) candidate for Karura Ward and compel the Respondent to issue him with a nomination certificate further to that declaration. An alternative prayer is made to have this Tribunal “compel the Respondent to compensate the complainant for the expenses incurred leading up to and including the party nomination exercise, including costs incurred in campaign materials, agents, nomination costs, rallies and voter registration and mobilization.” Together with the complaint, the complainant filed a supporting affidavit and a Witness Statement. On May 14, 2022, the Complainant also filed a Further Affidavit which inter alia annexed screenshots of the Complainant’s alleged communication, via Whatsapp Messaging Service and text message, with the respondent’s Chair and a person named “Osborne”.

2. In response to the complaint, the respondent filed a replying affidavit sworn by Catherine Mumma – the 1st respondent’s Chairperson by which the respondent’s case was stated and a challenge to the jurisdiction of this Tribunal raised, under section 40 (2) of the Political Parties Act, 2011 (“the 2011 Act”) on the basis that the complainant had not exhausted the party’s Internal Dispute Resolution Mechanism (IDRM).

3. Both parties filed Written Submissions which were highlighted at the hearing of May 16, 2022.

The Complainant’s Case 4. Summarised, the complainant’s case is that the respondent conducted its nominations for MCA, Karura Ward by way of an election on April 22, 2022. The complainant was declared the winner, giving him the expectation that he would be issued with an interim, and then a final nomination certificate. As at the date of filing his complaint, the respondent had not issued the complainant with the nomination certificate, despite him calling and texting various officials of the respondent and camping outside their offices. In respect of the obligation to comply with section 40 (2) of the 2011 Act, the complainant stated that his Whatsapp messages, text messages (screenshots were provided to the Tribunal via the aforementioned further affidavit) and telephone calls satisfied that statutory obligation.

The Respondent’s Case. 5. The respondent accepts the version of facts presented by the complainant, save that it denies that the complainant made an attempt to exhaust the Party’s IDRM, which is the basis of its challenge to the Tribunal’s jurisdiction. The Respondent states that its failure to provide the complainant with a nomination certificate is due to the fact that it concluded a zoning agreement with another party (under a Coalition Agreement) on April 23, 2022, (a day after the aforesaid election) whereby it agreed that Karura Ward would be reserved for that other party. The respondent states that on the basis of this zoning agreement, it did not submit any nominee for the seat the subject matter of this dispute.

6. In respect of the alternative prayer sought by the complainant, the respondent stated that it would be prepared to refund any expenses incurred subject to proof.

7. In response to the respondent’s case, the complainant stated that the first that he had heard of the zoning agreement was from the respondent pleadings before this Tribunal. He stated that in his view, the decision to deny him the nomination certificate was pre-determined given the timing of the zoning agreement and the election, and also given that aspirants in other wards within Westlands Constituency had received their interim nomination certificates on the very day of the election.

Issues for determination 8. 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 9. Jurisdiction is everything. Without it, the Tribunal cannot take 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 andanor(Complaint No. 237 of 2017).

10. 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; the rationale being to discourage efforts to bypass IDRM prior to seeking remedies before this Tribunal.

11. In the premises, has the complainant provided sufficient evidence that he made a bona fides attempt to pursue IDRM? Further to the complainant’s own evidence, his complaint in respect of the matters in dispute was via a Whatsapp message, a text message and telephone calls to the respondent. The complainant maintains that these messages and telephone calls constitute sufficient “attempts” for the purposes of section 40 (2) of the 2011 Act.

12. Having considered the evidence presented before it, the Tribunal notes that there was no evidence placed before the Tribunal to demonstrate:a.That the dispute between the Complainant and the Respondent, could, at the internal instance be raised by Whatsapp or text message, i.e. that the method chosen by the Complainant to raise his complaint internally complied with the Party’s rules; andb.That the number to which the Whatsapp message was sent belonged to the Chairperson of the respondent, or that the number to which the text message was sent belonged to a relevant official of the respondent (as the attempt to exhaust IDRM was in issue).

13. At the very least, a complainant who complains that a party has failed to follow its own rules, ought to demonstrate that he himself has attempted to comply with those very rules under which he seeks a remedy or has addressed proper and relevant party structures (see PPDT (Nairobi) Complaint No. E039 of 2022 – Mohammed Ibrahim Elmi v Jubilee Party, where this Tribunal found that a failure to pay appeal fees (as provided for by the party’s rules) stripped the complainant’s attempt to exhaust IDRM of the ‘bona fides’ element). In the present circumstances, the Tribunal finds that the complainant did not demonstrate a bona fides attempt to exhaust the party’s IDRM and that the jurisdiction of this Tribunal under section 40 (2) of the 2011 Act is not properly invoked.

14. The Tribunal notes that the complainant has made a claim for damages which the Respondent states it is willing to entertain. We say no more about the matter, save to state that this case illustrates the utility of IDRM.

15. On the second issue framed for determination, having found that it does not have jurisdiction, the Tribunal cannot delve into the merits of the Complaint.

16. Given the circumstances and in the interests of party unity, we decline to award costs. Accordingly, each party shall bear its own costs.

Orders 17. The Tribunal thus makes the following orders:-a.The Complaint is hereby struck out with each party bearing its own costs.

DATED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY 2022. Gad Gathu ………………………………………………(Presiding Member)Wanjirũ Ngige……………………………………………..(Member)Dr. Leonard Kinyulusi ……………………………………..(Member)