[2022] KEPPDT 1034 (KLR)

Khatete v Democratic Action Party- Kenya & another; Registrar of Political Parties (Interested Party) (Complaint E095 (NRB) of 2022) [2022] KEPPDT 1034 (KLR) (27 June 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1034 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E095 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

June 27, 2022

Between

Kennedy Khatete

Complainant

and

Democratic Action Party- Kenya

1st Respondent

David Simuyu

2nd Respondent

and

Registrar of Political Parties

Interested Party

Judgment

Introduction 1. The Complainant is a duly registered member of the 1st Respondent. The 2nd Respondent is the National Chairperson of the 1st Respondent. A complaint was presented to the Interested party alleging that the party list submitted to it by the 2nd Respondent had not been signed by the National Chairman as allegedly required by the Party Constitution of the 1st Respondent. The Interested party instructed the 1st Respondent to initiate an internal dispute resolution mechanism (IDRM) over the subject matter. The Complainant claims that IDRM was, however, not initiated prior to resubmitting the party list to the Interested party.

2. Aggrieved by the 1st Respondent’s resubmission of the party list to the Interested party before initiating IDRM, the Complainant filed this complaint on June 17, 2022 under certificate of urgency accompanied by a Notice of Motion application supported by the supporting affidavit of the Complainant.

3. The Complainant has sought the following reliefs from this Tribunal:-i.That the Honourable Tribunal to order the Respondents not to interfere in any way with the nomination list until a time when IDRM will have heard the matter and the disputes settled.ii.That the Interested Party be stopped from adopting any party nomination lists presented by the Respondents until such a time when IDRM will have heard and decided the disputes.iii.That an order do issue prohibiting the Respondents from interfering in any way and/or presenting any party nomination lists to the Interested Party until such time that IDRM will be initiated and a solution to the dispute on nomination lists met.iv.That the resolution of the 1st Respondent’s IDRM on the issue of nomination lists be filed with the Interested Party.v.That the costs of these proceedings be provided for.vi.That any such other or further orders be granted as the Honourable Tribunal may deem fit.1. Pursuant to directions that were issued by this Tribunal, the Complaint was heard on the 23rd June 2022 by way of oral submissions based on the parties’ pleadings on record.2. The Complainant was represented by Mr. Innocent Makaka Advocate, and the 1st and 2nd Respondents were represented by Ken Echesa Advocate. The Interested Party did not attend the hearing despite service.

The Complainant’s Case 6. The Complainant is a duly registered member of the 1st Respondent. He claims that on the 11th June 2022, the Secretary General of the 1st Respondent, duly presented the 1st Respondent’s nomination list for the allocation of special seats to the Interested Party. It is the Complainant’s contention that the subject party list was prepared in accordance with Article 15 of the party Constitution. However, it is averred that on same day, June 11, 2022, the first Deputy Leader of the 1st Respondent presented another separate allegedly proposed party list for MCAs nominees to the Interested party.

7. The Complainant submitted that on 1June 2, 2022, the 2nd Respondent wrote a letter to the Interested party recalling the list earlier presented on account that it was not countersigned by the National Chairman of the party. It is the Complainant’s contention that recalling the list on such an account was a misrepresentation of the party laws as the validity of the list did not require authentication by the signature of the National Chairman as alleged or at all. The Complainant avers that Article 15(a) of the party Constitution mandates the Secretary General to be the signatory and that the list submitted to the interested party on 11th June 2022 by the Secretary General was therefore validly submitted and needed not to be countersigned.

8. It is the Complainant’s averment that on 14th June 2022, the Interested party wrote to the 1st Respondent through the Secretary General requiring the party to initiate IDRM over the issue of the 1st Respondent’s party list. The Complainant alleges that the party did not initiate IDRM, and on June 16, 2022, the 2nd Respondent mischievously presented another list to the Interested Party.

9. The Complainant maintains that from the Respondent’s responses, it is evident that the Respondents’ dispute is not with respect to the contents of the party list that was presented to the interested party on June 11, 2022 by the Secretary General. The Respondents’ dispute is only on the issue of countersigning of the party list by the National Chairman of the party. The Complainant’s position is that under the party laws, it is not mandatory that the National Chairman countersigns the party list.

10. It is thus the Complainant’s prayer that the list that was submitted to the interested party by the 1st Respondent’s Secretary General on June 11, 2022 should be confirmed as the 1st Respondent’s party list, and that the same should be the one to be re- submitted to the interested party.

11. The Complainant invited the Tribunal to further take note that the Replying Affidavit that the Respondents had relied on was disowned by the party’s Secretary General vide another Affidavit that was allegedly sworn by the Secretary General and filed by the Complainant.

12. On the question of jurisdiction, the Complainant submitted that this Tribunal has jurisdiction to hear and determine this matter as contrary to the Interested party’s direction that IDRM be conducted by June 16, 2022, no IDRM was initiated by the stated date and instead the Respondents presented another party list. The Complainant submitted that he followed up with the party on IDRM in vain. According to the Complainant, the 1st Respondent frustrated any IDRM process and that the fact that he did not subject the dispute to IDRM which was otherwise frustrated should not be a barrier to accessing justice in this case. The Complainant’s counsel nevertheless admitted that no document had been placed on record to demonstrate any attempt at IDRM by the Complainant as alleged or at all.

The 1st and 2nd Respondents’ Case 13. The Respondents relied on the Replying Affidavit sworn by the Secretary General of the 1st Respondent.

14. It is the Respondents’ submission that there exists no complaint before the Tribunal as the Complainant has not annexed any party list allegedly submitted by the Secretary General or the National Chairman of the party. They submit that without a party list on record, the Tribunal cannot isolate the complaint with a view to addressing it.

15. The Respondents further submitted that should the Tribunal, however, find that there exists a complaint in any event, then the subject complaint should be rendered premature. The Respondents contend that the jurisdiction of this Tribunal is tied to exhaustion of IDRM and that the Complainant has not demonstrated that he attempted IDRM which attempt was frustrated. According to the Respondents, had the Complainant attempted and was frustrated after his attempt, then there would have been basis for this Tribunal to assume jurisdiction. In this case, the Complainant did not make any attempt at IDRM and none has been demonstrated.

16. The Respondents further maintain that that they compiled the party list of the 1st Respondent in compliance with the 1st Respondent’s Constitution and regulations, and submitted it to the Interested Party. It is the Respondents’ case that on June 14, 2022, the 2nd Respondent received a letter from the Interested party informing him of an objection to the party list submitted. The dispute was that the National Chairman had not signed the nomination list as required by the Party Constitution.

17. He claims he brought the said objection to the attention of the National Chairperson, the Party Leader, the 1st and 2nd Deputy Party leader and the Chairperson of the National Election Board (NEB) who observed that there was no dispute as to the substance of the party list save that the National Chairperson felt that he had not countersigned the party list. Despite this requirement not being founded on theConstitution, it was agreed that the Chairman countersigns the party list in the spirit of cohesion. The same was thereafter resubmitted to the interested party.

18. The Respondents further submitted that the nature of complaint doesn’t satisfy grant of any orders for injunction as the Complainant has neither demonstrated a prima facie case nor demonstrated that he stands to suffer damage. It is the Respondents’ case that the balance of convenience doesn’t lie in favour of the Complainant.

19. The Respondents also challenged the authenticity of the Affidavit that the Complainant’s counsel placed on record allegedly sworn by the 1st Respondent’s Secretary General and purporting to disown the Replying Affidavit that was relied upon by the Respondents.

Analysis and Determination 20. We have reviewed the parties pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to add?

Whether this Tribunal has jurisdiction to hear and determine this matter? 21. The jurisdiction of this Tribunal is circumscribed by Article 169 (1) (d) of theConstitution of Kenya as read with Section 40 of the Political Parties Act, 2011 which provides 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

2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

22. Section 40(2) of the PPA requires all disputes arising out of nominations to be subjected to IDRM prior to moving the Tribunal. The law requires a party to adduce evidence of an attempt thereof before the Tribunal assumes jurisdiction. 23. In the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (NRB PPDT Complaint No. E002 of 2022), we issued guidelines on what amounts to an attempt at IDRM. In the stated case, we held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

24. In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto. In this instant case we have evaluated the pleadings and evidence adduced and we note that the Complainant has not demonstrated any attempt at IDRM. Counsel for the Complainant in fact admitted during his oral submissions that there were no averments in the Complainant’s Affidavit that alluded to his efforts at initiating IDRM within the party, and further that no document had been annexed to demonstrate an attempt at IDRM. Being the aggrieved party, we find it strange that the Complainant did not take any steps towards lodging his own complaint with the party’s IDRM in accordance with the party constitution and instead expected the party to jumpstart the process. Nothing barred the Complainant from invoking IDRM from his end or raising any concerns in respect thereto to the party prior to filing these proceedings.

25. Further, none of the circumstances highlighted in the John Mworia Nchebere case have been demonstrated to exist in this case to allow us to assume jurisdiction nevertheless. In line with section 40(2) of the PPA, the Tribunal therefore finds and holds that it does not have jurisdiction to hear this matter.

Issues ii) and iii) 26. It has been established repeatedly that jurisdiction is sacrosanct and without it, a court or tribunal has no basis to continue proceedings or examine the merits of a case. A court or tribunal is obligated to lay down its tools as soon as it holds the opinion that it is without jurisdiction. The Honourable Tribunal having determined it does not have jurisdiction to determine this matter, we find no further reason to examine the merits of the instant complaint.

27. As regards costs, whereas costs follow the event, we are of the considered view that each party bears its own costs of these proceedings in the interest of fostering party unity.

Disposition 28. In light of the foregoing, we order as follows:-a.That the Honourable Tribunal does not have jurisdiction to hear and determine this Complaint.b.That the Complaint herein be and is hereby struck out.c.That each party to bear its own costs of the Complaint.

29Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF JUNE 2022. DESMA NUNGO……….……………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………………(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER)