[2022] KEPPDT 1071 (KLR)

Kabundu v Jubilee Party (Complaint E005 (NRB) of 2022) [2022] KEPPDT 1071 (KLR) (22 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1071 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E005 (NRB) of 2022

ML Odongo, Presiding Member, AM Mbithi & T. Chepkwony, Members

April 22, 2022

Between

Patrick Kabundu

Complainant

and

Jubilee Party

Respondent

Judgment

1. The complaint herein dated February 23, 2022 was filed under a certificate of urgency and was filed together with a supporting affidavit and a verifying affidavit, both affidavits sworn on the February 23, 2022 by the said Complainant [Patrick Mukiri Kabundu]. Also filed with the bundle of documents were annexures to the affidavit in support of the complaint.

2. When on February 28, 2022, the matter was placed before the Chairperson of this Tribunal, it was certified urgent and the Complainant directed to serve the Respondent so that both the parties would appear before a duly constituted bench of the Tribunal.

3. The direction given was in light of the fact that the only prayer in the said Notice of Motion was to have the matter certified urgent.

4. The Complainant then went on to upload and pay for an additional annexure being a letter on the Respondents letterhead dated 8 October 2017 addressed to him inviting him for a discussion in respect of a complaint that was at that time active before this Tribunal [being PPDT Complaint No 7 of 2019].

5. On March 7, 2022, the Respondent entered appearance through their Advocate on record.

6. On March 8, 2022, the Complainant lodged his return of service vide an affidavit of service sworn by one Benson Sila Mulemba.

7. The Complainant then lodged his own witness statement dated 28th February.

8. The Complainant further went on to lodge a 157 page document [unmarked], which appears to be various applications by people for membership to the Respondent.

9. The Complainant then also lodged a 183 page document that has copies of pictures of different people.

10. The Complainant also went on to lodge a witness statement dated March 16, 2022 by one Samuel Mbugua Kamau drawn and filed by one Makori Omboga & Co Advocates.

11. Also lodged on the same March 16, 2022 was a list of witnesses in support of the Complainant.

12. An affidavit titled ‘affidavit for certification of pictures and documents evidence’ by Samuel Mbugua Kamau sworn on March 16, 2022 was also lodged/uploaded by the Complainant.

13. The matter proceeded inter-parte before a duly constituted bench of this Tribunal on March 16, 2022 when Parties, in light of the urgency in prosecuting this complaint, consented to proceed by way of written submissions to finalise on the complaint. The said written submissions would then be briefly highlighted.

14. On March 25, 2022 the Respondent, lodged a Preliminary Objection [PO]. The said POwas premised on the following:-a.That the Complaint dated February 23, 2022 is misconceived, bad in law and lacks any substance or legal basis to stand on.b.That the Complaint dated February 23, 2022 is res judicata as the Tribunal have previously determined similar complaints by the Complainant involving the same parties.c.Thatthe Complaint dated February 23, 2022 is in contravention of Section 26(3)(a) of the Political Parties Act, 2011 and the same is void ab initio and is therefore unenforceable.d.That the Complainant has come to court with unclean hands and the tribunal should frown against such unconscionable conduct and deny the Complainant the reliefs sought.e.That the complaint dated is made mala fides, to circumvent and defeat the cause of justice and to make the court act in vain In light of the foregoing, the Complaint herein as a whole, should be struck out with costs to the Respondent.

15. The Respondent lodged their written submissions dated March 25, 2022 in response to the complaint.

16. In addition, one Wambui Gichuru, the Executive Director of the Respondent swore a Replying Affidavit on March 30, 2022, on behalf of the Respondent.

17. Written submissions dated the 6th of April 2022 were then filed by the Complainant. In addition to the submissions was filed a response to the Replying Affidavit filed on behalf of the Respondent. The said response was sworn by the Complainant.

18. A list of authorities and documents dated April 8, 2022 was filed by the Complainant.

19. The matter came up a couple of times before this Tribunal when parties though expected to briefly highlight their written submission could not proceed as parties required time to go through the various documents uploaded at different times.

20. On April 14, 2022, the Complainant proceeded to highlight his written submissions. The Respondent opted to rely solely on their documents filed and on record. A date for judgment [April 22, 2022] was given to both parties present to be done virtually vide video link on the Teams platform.

21. On April 15, 2022 the Complaint proceeded to file another certificate of urgency seeking to cross examine the Executive Director of the Respondent who had filed a Replying Affidavit. In addition he sought to be cross examined on his statements. Together with this the Complainant also went ahead to lodge yet another list of authorities and documents.

22. This Tribunal having read through the certificate filed on 15th April, directed that it be considered together with the complaint which was already scheduled for delivery of judgment.

The Complainants Case 23. The gist of the Complainants case is that the Respondent has refused to compensate him as promised after the conclusion of an alternative dispute resolution process initiated by the Respondent during the life of a previous complaint that he had filed before this Tribunal in 2019.

24. The said internal process kicked off after the Complainant withdrew his complaint against the Respondent (in PPDT Complaint No 7 of 2019) by consent of both the parties in order to d resolve the matter internally.

25. The internal party process was initiated on the October 16, 2019 following the Tribunals orders of October 8, 2019 (in PPDT Complaint No 7 of 2019) and the internal consultation commenced on October 18, 2019.

26. On the said October 18, 2019 the Complainant appeared before the Respondent Party process where he outlined his settlement proposal to the Respondent. The Complainant’s proposal had been set out in his letter to his party dated October 10, 2019.

27. The long and short of the proposal by the Complainant took into account the fact that Complaint No 7 of 2019 be withdrawn by consent and with no orders as to costs on the understanding that Jubilee Party through its party leader and senior officials promised the following:a.That the Bank Loan Facility from Equity Bank amounting to Kshs. 7,000,000/- was to be cleared.b.The said loan facility has now accumulated interest because of non-payment and now stands at Kshs. 16,469,450. 30. c.That the Complainant will be appointed a Director of KPA for a term of three (3) years.

28. According to the Complainant the following members were present during the internal party process;i.Mr. Franklin Mwenda – Chairman from APK Party Executive Directorii.Mr. Joseph Mathai - Member from TNA Party Executive Directoriii.Ms. Wambui Gichuru- Member from TNA Party Treasurer & Finance Directoriv.Mr. Godfrey Lemiso – Member from URP Partyv.Mr. Wilson Samba – Member from URP Party

29. After the conclusion of the said internal process the Respondent party has failed, refused and/or ignored to comply with the promises made to the Complainant and it is now in the process of amending its constitution, reviewing its structures and policies in a process that kicked off from 25th and 26th of February 2022.

30. The Complainant being aggrieved with the way the Respondent handled his grievances made written submissions vide his letter dated 6/04/2022.

31. In summary the complainant submits that the Respondent has not shown any forthrightness in dealing with his matter as concluded through the internal process as they have not responded to his letter, they don’t respect the supremacy of the law and their own constitution.

32. He has referred to Complaint No 48 John Mruthu v Thomas Ludindi Mwadeghu for the proposition that Political Parties enjoy Constitutional Status and also get funds from the Public Fund and from their members and therefore they owe it to their members to invest in proper systems and to employ competent personnel who can conduct primaries efficiently and fairly while allowing adequate time for the party to resolve any dispute arising from the primaries or other disputes between party members.

33. The Complainant submits that the Respondent has violated his rights under Article 38, 91, 92 and 159 of the Constitution.

34. He further submits that it is the duty of the Office of the Registrar of Political Parties to ensure that monies allocated to Political Parties are utilized as per the statutory obligations and purpose.

35. He has referred the Tribunal to the Supreme Court decision between Zakaria Okoth Obado v Edward Okong’o Oyugi & 23 Others(2014) Eklr where the Court emphasized on Article 3 (1) of the Constitution which requires everyone to respect, uphold and defend the Constitution an obligation also emphasized under Article 159 (2) of the Constitution.

36. The Complainant has also referred this Tribunal to the case between the Orange Democratic Party v National Treasury & 5 Others (2017) Eklr where the Court held that any question about Political Parties is a question of quality governance in any Country that believes in democratic governance and hence the financing of Political Parties is a critical matter.

37. Further in his submissions the Complainant gives an overview of what transpired during the internal party process with the Respondent and makes specific reference to minute 3/10/2019.

38. The Complainant has also submitted extensive evidentiary material to support the conclusion that was reached during the internal dispute resolution process that his loan be offset and that he qualifies to receive an appointment.

39. He thus submits that his complaint is justified and that he be granted the prayers sought in his complaint subject matter of this judgment.

40. Following his submissions, the Complainant filed an additional application seeking to cross examine the Executive Director of the Respondent on the Replying Affidavit that she filed in response to the complaint. In addition, the Complainant sought to be cross examined and to have his witnesses whose statements had been admitted present the same viva voce. These would, as submitted by the Complainant, allow the Tribunal to get a fuller picture of his complaint.

The Respondents Case 41. It is the Respondents submissions that the Complainants Complaint is resjudicata having already been determined by this Honourable Tribunal and hence the complaint is bad in law, vexatious and an abuse of the court process and as such it ought to be struck out with costs.

42. The Respondents therefore submits that the doctrine of resjudicata ousts the jurisdiction of a Court to try any suit or issue which it had been finally determined by a Court of competent jurisdiction in a former suit involving the party or parties litigating under the same title.

43. Secondly the Respondent submits that they have not breached any of the Constitutional and statutory provisions of the law as alleged by the Complainant specifically Articles 38, 91, 92 and 159(2) and Sections 24, 25 and 26 of the Political Parties Act.

44. They urge that the Complainant has not in any way demonstrated to the Tribunal in what way the Respondent breached the said provisions of the law as no evidence has been adduced in support of the allegations as is required by the Law.

45. The Respondent adds that what the Complainant is seeking in the Complaint is in contravention of Section 26 (3) (a) of the Political Parties Act and the Tribunal should in no way entertain the same. On this particular issue the Respondent relies on the case of Nairobi Civil Appeal No 165 of 2007 D.Njogu & Co Advocates v National Bank of Kenya Ltd (2016) Eklr where the Court of Appeal.

46. The Respondent submits that the Complainant does not deserve the orders prayed for as he has not provided any credible evidence to warrant any of the prayers sought. That the allegations made by the Respondent are mere allegations that are not supported by evidence.

47. Last but not least the Respondent submits that there was no contract between the parties to warrant any performance or claim of breach of contract to ask for damages. And even if there was a contract the same would fall under the category of contracts expressly or implicitly prohibited by statute.

48. They urge the Honourable Tribunal to strike out the complaint.

Issues For Determination And Analysis 49. Our keen perusal of the numerous documents , pleadings and the submissions filed by the parties identifies the following issues for determination:i.Is the matter hereinres judicata?ii.Is the complaint void ab initio and therefore unenforceable?iii.Should the Tribunal review the directions as agreed by consent of the parties to proceed by way of written submissions that would be briefly highlighted and allow for viva voce evidence before concluding in its judgment writing process?iv.What directions and/or orders should issue?The Tribunal will address the issues listed herein in the order that they have been listed, so that if it finds that its jurisdiction is ousted by the doctrine of res judicata then the remaining issues identified will not be delved into.

Whether the matter herein is res judicata. 50. The Respondent filed a Preliminary objection on the point of law that the complaint herein is res-judicata and it therefore ousts the jurisdiction of this Tribunal from hearing and determining the same.

51. In their submissions the Respondent’s stated that for the doctrine of res-judicata to be effectively raised and upheld the party raising it must satisfy the doctrines five essential elements which are:i.The suit or the issue raised was directly and substantially an issue in the former suit.ii.The former suit was between the same party or parties under whom they or any of them claim.iii.Those parties were litigating under the same titles.iv.That the issue in question was heard and finally determined in the former suit.v.The Court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent.

52. The Complainant in his replying affidavit dated April 6, 2022 in response to the response by way of Replying Affidavit sworn by Wambui Gichuru for the Respondent at paragraph 57 claims that he is dealing with issue no 6 of the decision of the party internal process dated October 18, 2019 which issue he claims was referred for further consultation. He claims that the said issue was never settled and as such it is not res-judicata.

53. From our analysis the issues in PPDT Complaint Number 7 of 2019 were between the Complainant and the Jubilee Party who was the Respondent and the Office of the Registrar of Political Parties. These are the same parties in these proceedings before the Tribunal.

54. It is apparent that the pleadings in PPDT Complainant Number 7 of 2019 the parties were litigating under the same titles as they are in these pleadings.

55. The issue in question in PPDT Complaint Number 7 of 2019 were to do with the Political Parties Fund and Compensation of the Complainant of all the expenses incurred from 2016 to date. These are the same issues that the Complainant has brought before the Tribunal for determination again in this complaint.

56. The Tribunal considered the issues in PPDT Complaint Number 7 of 2019 and determined that it had no jurisdiction it stated thus “Our subject ruling on jurisdiction determines the complaint thus rendering the Tribunal functus officio”.

57. This Tribunal thus finds that it remains functus officio as the issues in this case are the same issues determined in PPDT Complaint Number 7 of 2019 and therefore they are res-judicata within the threshold hereinabove discussed.

58. The doctrine of res judicata ousts the jurisdiction of this Tribunal to hear and determine the complaint herein.

59. Having found that the doctrine of res-judicata ousts the jurisdiction of this Tribunal to hear and determine the complaint herein and as it is, jurisdiction is everything, so when a Tribunal finds that it has no jurisdiction it has no power to make one more step. Hence the Complaint as filed herein fails.

Disposition 60. In light of the above the complaint herein dated February 23, 2022 is dismissed with costs.

DATED THIS22ND DAY OF APRIL 2022. MILLY LWANGA ODONGO(PRESIDING MEMBER)DR. ADELAIDE MBITHI(MEMBER)THERESA CHEPKWONY………………………………………………………..(MEMBER)