[2023] KEPPDT 1275 (KLR)

Jillo & 3 others v United Democratic Alliance & another; Speaker, County Assembly of Isiolo (Interested Party) (Complaint E001 (MRU) of 2023) [2023] KEPPDT 1275 (KLR) (3 May 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1275 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (MRU) of 2023

G. Gathu, Presiding Member, T. Chepkwony & S Musau, Members

May 3, 2023

Between

Abdinoor Dima Jillo

1st Complainant

Abubakar Abdi Godana

2nd Complainant

Mejja Abdulahi Golicha

3rd Complainant

Nura Mohamed Huka

4th Complainant

and

United Democratic Alliance

1st Respondent

Abdirashid Ali Diba

2nd Respondent

and

Speaker, County Assembly of Isiolo

Interested Party

Ruling

1. On April 11, 2023, this Tribunal issued directions to the effect that the Complainants/Applicants Notice of Motion dated March 29, 2023 and the Interested Party’s Notice of Motion application dated April 4, 2023 will be heard together. The Tribunal further gave directions as to filing of responses and submissions on the said applications.

2. The Complainant’s Notice of Motion dated March 29, 2023 seeks the following orders:-1. Spent2. That pending the hearing of this application interpartes, this honourable Tribunal be pleased to issue an interim order of stay of the decision the respondents made on the 28th of March 2023 purporting to remove the 1st Applicant Hon. Abdinoor Jillo from the position of Leader of Majority, County Assembly of Isiolo.3. That pending the hearing of this application interpartes, this honourable Tribunal be pleased to issue an interim order of stay of the decision the respondents and the Interested Party suspending the 2nd, 3rd, and 4th Applicants from the House sittings for 21 sittings of the County Assembly of Isiolo4. That prayer 2 and 3 be granted pending the hearing and determination of the present complaint,5. That the costs of this application be provided for.

3. The said Complainants’ application is supported by the affidavit of Hon. Abdinoor Jillo sworn on March 29, 2023. The application is opposed. The 2nd Respondent filed an undated Replying Affidavit in response to the Complainant’s application. The Interested Party is also opposed to the application and filed a Replying Affidavit sworn on 4th April 2023. On the other hand, the 1st Respondent is in support of the Complainant’s application through a Replying Affidavit sworn by David Ohito on 3rd April 2023.

4. The Notice of Motion dated April 4, 2023 filed by the Interested Party seeks the following orders:-1. This application be certified as urgent,2. That the Tribunal be pleased to set aside and/or vary the ex parte orders of Hon. Gad Gathu Kiragu issued herein on 30th March 2023 pending the hearing and determination of this application and the Complaint.3. That costs be provided for.

5. The Interested Party’s application is supported by the Affidavit of Mohamed Roba Koto sworn on April 4, 2023. The Interested Party’s application is opposed. The 2nd, 3rd and 4th Complainants have filed Replying Affidavits sworn on April 5, 2023. There are also Replying Affidavits sworn on April 5, 2023 by Kamila Warsame Suku, Amina Enow Omar and Fozia Jibril Bore in opposition to the Interested Party’s application.

The Complainants and 1st Respondent’s case. 6. Summarized, the Complainants and the 1st Respondent’s argue that the purported removal of the 1st Complainant from the office of Leader of Majority, County Assembly of Isiolo was not lawful, fair or procedural. Further, the Complainants hold the position that there were no proceedings in the County Assembly of Isiolo on March 28, 2023 thus no communication could have been effected.

The 2nd Respondent and the Interested Party’s case. 7. Summarized, the 2nd Respondent and the Interested Party argue that the removal of the 1st Complainant from the office of Leader of Majority, County Assembly of Isiolo has already been implemented by the time the orders of this Tribunal were issued on March 30, 2023, The 2nd Respondent and the Interested Party therefore argue that the orders were obtained by concealment of material facts and had been overtaken by events.

Issues for determination 8. The Tribunal has determined the following as the issues for determination in the Complainants’ application and the Interested Party’s application.i.Whether the threshold for grant of injunctive orders sought by the Complainants has been met.ii.Whether the ex parte orders of the Tribunal issued on March 30, 2023 should be set aside or varied.

Analysis and Findings. Whether the threshold for grant of temporary injunctive orders sought by the Complainants has been met. 9. The Complainants’ application seeks various temporary injunctive reliefs. In deciding whether or not to grant injunctive relief, this Tribunal is guided by the principles set out in the locus classicus, Giella v Cassman Brown[1973] E.A 358.

10. The principles are that:-1. the Applicant has to show a prima facie case with a probability of success;2. the Applicant should also show that she will suffer irreparable harm that cannot be compensated by way of damages unless the injunctive relief is granted; and3. lastly if the Tribunal is in doubt as to the irreparable harm, it should decide based on the balance of convenience.

11. What then is a prima facie case? In Mrao Ltd v. First American Bank of Kenya Ltd & 2others (2003)eKLR the court described a prima facie case as:-“…..in civil cases, it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party as to call for an explanation or rebuttal from the latter”

12. Have the Complainants established a prima facie case? The Complainants argue that the procedure for the purported removal of the 1st Complainant as Leader of Majority in the County Assembly of Isiolo was not followed. Moreover, the Complainants argue that the minutes that are purported to have emanated from the meeting held on March 27, 2023 seeking to remove the 1st Complainant as leader of Majority in the County Assembly of Isiolo are forged. There is also a contention that one of the attendees of the aforesaid meeting was no longer a member of the County Assembly of Isiolo pursuant to the judgement of the Isiolo Chief Magistrate’s Election Court in Election Petition No. E001 of 2022.

13. All these contentions lead to the Tribunal concluding that there exist rights that accrue to the Complainants which may have been infringed upon by the Respondents and the Interested Party as to call for a rebuttal from them. As the suit is yet to be heard, we shall say no more on that. Indeed, we are guided by the case of Airland Tours & Travels Ltd v National Industrial Credit Bank, Milimani High Court Civil Case No.1234 of 2002, where the Court held as“In an interlocutory application, the court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory affidavit evidence or disputed provisions of the law.”

14. As such, the Tribunal is satisfied that the Complainants have established a prima facie case.

15. On the issue of irreparable harm, the Tribunal notes that the Complainants have not submitted on the irreparable loss that they are likely to suffer if they are not granted the injunctive relief that they seek. Indeed, none of the parties submitted on this crucial issue. The Tribunal is not able to identify any irreparable harm that the Complainants will suffer that cannot be compensated by way of damages if the injunctions sought are not granted.

16. Be that as it may, would the balance of convenience favour the granting of an injunction? To answer this question, the Tribunal is guided by the decision of the Court of Appeal in Esso Kenya Ltd v Mark Makwata Okiya[1992] eKLR where it was held that:-“The Court ought to look at the allegations in the affidavits by the plaintiff and the defendant and weigh them whether there is a possibility of the plaintiff succeeding or whether there is a possibility of quantifying damages. Only in cases of doubt the Court will proceed on the basis of the balance of convenience while being aware that formal evidence will be adduced at the hearing.”

17. Whether or not there was a sitting of the County Assembly of Isiolo on March 28, 2023 is contested. The Complainants are of the position that house business for the said day was summarily adjourned without transacting any business. On the other hand, the 2nd Respondent and the Interested Party are of the position that the Interested Party communicated to the County Assembly of Isiolo on the change in the leadership of the majority party and the 2nd Respondent proceeded to take oath of office as the Leader of Majority. In such circumstances, where does the balance of convenience lie?

18. In determining where the balance of convenience lies, the Tribunal relies on the case of Chebii Kipkoech v. Barnabas Tuitoek Bargoria &another [2019] eKLR, where the court held that:“…the meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to them would be greater than that caused to the defendants if an injunction is granted and suit is ultimately dismissed.”

19. Further, in Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR the court held that:-“Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”

20. Guided by the foregoing authorities and taking into account the circumstances of the case, the Tribunal finds that there is prima facie evidence that the Interested Party communicated to the County Assembly of Isiolo that the 2nd Respondent had been elected as the Leader of Majority. This evidence is subject to rebuttal at the hearing of the Complaint and the Tribunal is well aware that it cannot and will not make any definitive conclusion on facts at this stage (See Airland Tours & Travels Ltd v National Industrial Credit Bank (supra) and Esso Kenya Ltd v Mark Makwata Okiya (supra). However, in the circumstances of this case and all factors considered, the balance of convenience does not tilt towards granting of an injunction to the Complainants.

21. The Complainants Notice of Motion application dated March 29, 2023 is therefore dismissed. The consequence thereof is that the interim orders issued on 30th March 2023 stand discharged and set aside.

22. In view of the discharge of the orders of the tribunal issued on March 30, 2023, the notice of motion application by the interested party is spent and is marked as such.

23. Costs shall be in the cause.

DATED AND DELIVERED VIRTUALLY THIS 3RD DAY OF MAY 2023. ………………………………………………GAD GATHU(PRESIDING MEMBER)………………………………………………THERESA CHEPKWONY(MEMBER)………………………………………………STEPHEN MUSAU(MEMBER)