[2022] KEPPDT 1064 (KLR)

Nchebere & 15 others) v National Chairman Orange Democratic Movement & 2 others (Complaint E002 of 2022) [2022] KEPPDT 1064 (KLR) (23 February 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1064 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 of 2022

D. Nungo, Chair, W Mutubwa, Vice Chair, ML Odongo, AM Mbithi, G. Gathu & T. Chepkwony, Members

February 23, 2022

Between

John Mworia Nchebere & 15 others)

Complainant

and

The National Chairman Orange Democratic Movement

1st Respondent

The Secretary Orange Democratic Movement

2nd Respondent

Orange Democratic Movement

3rd Respondent

Ruling

Background 1. The genesis of this dispute is a Notice of the 3rd Respondent’s National Delegates Convention (NDC) dated February 4, 2022 that the 2nd Respondent caused to be published in the Saturday Nation Newspapers of February 5, 2022 notifying all ODM delegates that the NDC shall be held on the 25th and 26th February 2022 at the Nyayo National Stadium.

2. The Complainants are aggrieved by the legality of the 2nd Respondent’s notice under reference for various reasons, chiefly, alleged breaches of the 3rd Respondent’s constitution, the Political Parties Act and the Constitution of Kenya, and they have accordingly commenced the instant proceedings vide their Statement of Complaint filed herein which seeks the following reliefs:a.A permanent injunction do issue against the Respondents restraining them, their servants and or agents from calling for and or holding the National Delegates Convention of the 3rd Respondent on the 25th and 26th February, 2022 purportedly convened vide a notice authored and published by the 2nd Respondent on 5th and 12th February, 2022. b.The Respondents be compelled to withdraw the defective notice convening the National Delegates Convention dated 4th February, 2022 forthwith and be compelled to comply with the Party’s Constitution in convening afresh the National Delegates Convention.c.The Respondents be compelled to open up its nomination process for the Party’s presidential flagbearer within twenty-one (21) days of the Court’s order and;i.Draw up a calendar of activities towards the elections of the party’s Presidential flagbearer;ii.To issue nomination forms to the aspirants for the party’s Presidential nominees;iii.Provide list of certified delegates who are to attend the NDC at least twenty-one days before the NDC to allow for campaigns; and toiv.Issue a notice convening a properly constituted National Delegates Convention and elects its Presidential Flagbearer as per law required.d.The Respondent be compelled to conduct elections of its National Officials as per the requirement of Article 6. 2.2 of its constitution.e.Costs of this suit plus interest.f.Any other or further reliefs that this honorable Tribunal may deem fit and just to grant.

3. Together with the Complaint, the Complainants filed a Notice of Motion application dated 17th February 2022 under Certificate of Urgency, supported by the affidavit of John Mworia Nchebere, which application sought the following Orders:i.That this Application be certified as urgent and service be dispensed within in the first instance.ii.That pending the inter partes hearing and determination of this Application, a temporary injunction be issued against the Respondents restraining them, their servants and or agents from convening, causing to be convened, holding or causing to be held the National Delegates Convention of the 3rd Respondent requisitioned through a notice dated 4th February, 2022 and scheduled to be held on 25th and 26th February, 2022. iii.That pending the hearing and determination of this Application and suite, the Respondents be compelled to withdrew the defective Notice convening the National Delegates Convention dated 4th February, 2922 forthwith and be compelled to comply with the Party’s Constitution in convening a fresh the National Delegates Convention.iv.That pending the hearing and determination of this complaint, a temporary injunction be issued against the Respondents restraining them, their servants and or agents from convening causing to be convened, holding or causing to be held the National Delegates Convention of the 3rd Respondents requisitioned through a notice dated 4th February, 2022, and scheduled to be held on 25th and 26th February, 2022. v.That costs of this Application be provided for.

4. The application was certified urgent by the Tribunal and directions issued for service of the same upon all the Respondents for inter partes hearing on 21st February 2022.

5. In response, the Respondents filed Replying Affidavits sworn by:i.Edwin Sifuna (the 2nd Respondent);ii.Hassan Duba Roba;iii.Nur Ali Mumin;iv.Mohamud Ibrahim Maalim;v.Jacob Mule;vi.James K. Njeru;vii.Abdisatar Mohamed Aga;viii.Peter Kithua Munyasia; andix.Njagi Juma Julius;

6. The Respondents also filed a Notice of Preliminary Objection stating, inter alia, that the Complaint was prematurely before us by dint of Section 40 (2) of the Political Parties Act, 2011.

7. All parties canvassed their respective positions through oral arguments on the stated date for inter parties hearing of the application. The Complainants were represented by Mr. Willis Otieno and Mr. Khalid; while the Respondents were represented by Mr. Awele, Mr. Orego and Ms. Malowa.

The Complainants’ Case 8. Learned counsel for the Complainants, Mr. Willis Otieno, submitted that a delcaration of dispute was made on 9/2/22, however, the 3rd Respondent party refused to accept it. He stated that the letter declaring a dipute was served on 11/2/22 upon the 1st Respondent. That the substance of the dispute related to a notice for a NDC dated 4th February 2022.

9. Counsel grounded his client’s case on two limbs. Firstly, that the 1st and 2nd Respondents failed to include persons who are necessary parties to the NDC as per Article 7. 2.2A of the 3rd Respondent’s Constitution. That the persons who ought to be included are as stated in grounds b and in Supporting Affidavit sworn by John Mworia Nchebere at paragraphs 6 to 13 thereof.

10. Secondly, that according to Article 7. 2.4 of the 3rd Respondent’s Constitution, the NDC is mandated to, inter alia, conduct the election of the party’s presidential candidate or flag bearer. That it is expected that the party includes that question in the agenda of the NDC, otherwise, the party runs the risk of not participating in the forthcoming general elections. Counsel emphasised that the election of a presidential candidate is a substantive agenda for the NDC.

11. Counsel further submitted that Article 38 of the Constitution of Kenya bestows rights on the Complainants to elect a presidential candidate at the NDC, and that this right cannot be usurped.

12. Further, that whereas Article 6. 2.2 of 3rd Respondent’s constitution requires the party to elect national officials every 5 years, this was not included in agenda of the forthcoming NDC. As such, the party risks deregistration if this question is not discussed at the NDC.

13. Counsel pointed out that on 12/2/22, the 3rd Respondent issued another notice amending the NDC agenda. That this notice introduced new substance. He stated that a valid notice should run for at least 21 days and not 13 days, hence, the second notice ran contrary to Article 7. 3.1 of the 3rd Respondent’s Constitution.

14. On the need to exhaust the party’s Internal Dispute Resolution Mechanisms (IDRM), the Complainants were emphatic that they declared a dispute on 9/2/22 and called for IDRM, in vain. That this Tribunal has held that if IDRM fails then the Tribunal can assume jurisdiction. In a subsequent letter, dated 16/2/22 the Complainants wrote informing the Respondents that in view of its failure to institute IDRM, they were now moving to court.

15. The Complainants, in sum, prayed for the orders sought in their Notice of Motion.

The Respondents’ Case 16. Mr. Awele, learned counsel for the Respondents began his address by stating that there were certain persons who had purportedly been joined as Complainants, but who had since recanted these proceedings. He named the persons as Hassan Duba Roba; Nur Ali Mumin; Mohamud Ibrahim Maalim; Jacob Mule; James K. Njeru; Abdisatar Mohamed Aga; Peter Kithua Munyasia; and Njagi Juma Julius. These persons have sworn affidavits which have been filed and are on record.

17. Counsel asseverated that the Application is an abuse of court process, has no genuine or triable cause of action. That the applicant is only bent on scoring political points. He asserted further, that this Tribunal’s jurisdiction only accrues when IDRM in a party’s constitution has either been exhausted or has genuinely been attempted in vain. That that is not the case herein.

18. Counsel referred to the list of Authority to sue filed herein and appended to the Statement of Claim. He pointed to the afore-mentioned Replying Affidavits filed by people who were in the meeting where the list drawn on 9/2/22 took place. That the said persons state that the purpose of meeting was not for purposes of drawing a list of applicants to commence these proceedings. Therefore, counsel concluded, that this was direct evidence the suit was fraudulent and illegal, and not genuine at all.

18. Counsel observed that the first letter sent to the party was authored by one Jimi Wanjigi on 8/2/22. Thereafter, a day later, on 9/2/22, a list is drawn purportedly authorizing filing of the current application. According to counsel, the Applicants did not genuinely invoke IDRM, and, therefore, this Tribunal’s jurisdiction is not properly invoked.

19. Counsel refuted that the Complainant’s letter written on 9/2/22 was sent to the party, he instead stated that the letter was apparently sent to the minority leader of the National Assembly, who is the 3rd Respondent’s Chairperson.

20. Why was this letter served differently from others? Counsel posed. Counsel was categorical that the only letter received by the 3rd Respondent was received on 17/2/22 and not 11/2/22. That on the same 17/2/2022 the Claimant filed the current proceedings. He noted that the totality of these facts points to the Claimant’s lack of interest in bona fide IDRM. That the letters of 8/2/2022, 9/2/22 and 16/2/22 were merely intended to demonstrate that IDRM had been invoked yet there was, in fact, no real intention to do so. The Respondent opined that the Applicant cannot rely on Jimi Wanjigi’s letter to found this action since Mr. Wanjigi is not a party to these proceedings.

21. Counsel argued that this Tribunal’s jurisdiction was not properly invoked, the proceedings were tainted with illegality and that this Tribunal can only strike out the same in limine.

22. The Respondent’s submitted that the issues raised by Applicant are premature and based on a misapprehension of party constitution. According to Mr. Awele, the impugned notice is required to have only 3 substantive items and that anything else is superfluous and cannot affect its propriety. That the three items are: date, place and time. That it is the National Governing Council (NGC) that sets the agenda for the NDC That the preparation of the list of delegates invited to the NDC is an ongoing and continuous process. That the 1st Respondent has confirmed by Affidavit that all delegates listed in the 3rd Respondent’s constitution will be allowed to attend. He added that it would be prejudicial and disproportionate to stop the NDC because of issues regarding delegates. That the verification of delegates can only be possible after the NDC.

24. The Respondents further argued that the 3rdRespondent’s constitution has donated the powers to determine the NDC’s agenda to the NGC. That it is, therefore, improper for the Applicant to ask the Tribunal to usurp that power specifically delineated for NGC. Counsel added that had it been the genuine intention of the Applicant to include the election of the presidential candidate in the NDC’s agenda, he would have approached NGC to consider the same pursuant to Article 7. 2.1 of the 3rdRespondent party’s Constitution which allows any person or member, within 21 days, to propose agenda items for inclusion.

24. Counsel stated that the issue of election of officials was raised for first time in the Complainant’s pleadings herein, it was never part of the call for IDRM and cannot be discussed in this matter in the first instance.

24. On issue of the second notice, counsel submitted that the same is not a notice calling for a NDC. That a notice calling for a NDC was properly issued on 4/2/2022 under Article 7. 3.1 of the 3rdRespondent’s Constitution. That the second notice was issued under Section 20 of the Political Parties Act, 2011. The issue of 21-days’ notice does not, therefore, arise.

Tribunal’s Analysis and Findings 27. We have considered the rival contending pleadings, evidence adduced, and submissions made by the parties. We have distilled the following two issues as falling for our determination:i.Whether this Tribunal possesses the requisite jurisdiction to hear and determine this matter?ii.Whether the Claimants merit the Orders sought?

Whether this Tribunal possesses the requisite jurisdiction to hear and determine this matter 28. The gravamen of the Respondents’ Preliminary Objection is that the Complainants have not exhausted the Internal Party Dispute Resolution Mechanisms, and as such, have not properly invoked the jurisdiction of this tribunal. In essence, the Respondents posit that the complaint runs afoul section 41(2) of the Political Parties Act, 2011.

29. While the Respondents’ proposition is, generally, legally sound, this is a well-trodden and beaten road. There are ample authoritative pronouncements on this question, both by this Tribunal and by superior Courts. This Tribunal has stated, times without number, that it takes seriously the legal edict in section 40(2) of the Political Parties Act, 2011. The Tribunal will always require parties to demonstrate compliance with the provision of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

30. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4; Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (Complainant No 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that:We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

30. Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions. This tribunal and courts have spoken to some of these exceptions. We shall refer to a few of them for purposes of illustration.

31. In Ibrahim Abdi Ali v Mohamed Abdi Farah & Another (Complaint No 29 of 2015), we held, that:Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.

32. In Jared Kaunda Chokwe Barns v Orange Democratic Movement & 2 Others, we made the following pronouncement on the question:In light of this we find that by writing to the Party, the Complainant made an attempt to engage the Party in resolving the dispute. Indeed, if the 1st Respondent was to act on the dispute the presumption is, the same would have been resolved. We therefore find that the Complainant made an attempt to engage the Party internal dispute mechanism and thus, we have the jurisdiction to determine this complaint.

33. In Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7, we confirmed that:Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.

34. In Moses Saoyo Kusero v Jubilee Party of Kenya & another (Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that:It is clear that the Claimant’s attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

35. The silver lining and constant theme running through the maze of the fore-quoted decisions is that, the requirement to exhaust internal dispute resolution mechanisms is a principle with exceptions. As we noted in our recent decision in Complaint No. E020 of 2021 Oscar Kambona v Schola Nyenze and Others:The exceptions are founded on good reason. At times, the internal mechanisms prescribed in party constitutions and other governing instruments are either non-existent, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute.

36. It merits noting that the fore-cited cases were delivered before the Political Parties Act was amended vide the Political Parties (Amendment) Act 2021. There was a significant shift in the wording of section 40(2) of the Act. The Section previously read as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

37. The current wording of section 40 (2) is as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

38. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute.Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment was meant to accord the law with our previous pronouncements and those of the courts. It is, therefore, necessary to restate the import of the amendment to the province of the doctrine of exhaustion as reset by the statute. A brief background is, therefore, essential.

39. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21. The said Court further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR as follows:It is 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 fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and 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 the courts. The ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

40. Nyamweya J in Republic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd [2021] eKLR, dealt with the exceptions to the general rule, including the adequacy of the remedy sought in the internal process vis-à-vis court intervention. The learned Judge observed that:In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the claimant with the outcome sought as a matter of substance.It is for this reason that section 9 (4) of the Fair Administrative Action Act, provides that the Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. (Emphasis added).

41. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic v National Environment Management Authority, Civil Appeal No. 84 of 2010, as follows:... where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

42. Likewise, it was held by the High Court in the matter of the Mui Coal Basin Local Community [2013] eKLR; R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya and Mohamed Ali Baadi and others v The Attorney General & 11 others [2018] eKLR that in reaching a decision as to whether an exception applies, courts will undertake an analysis of the facts, regulatory scheme involved, the nature of the interests involved including the level of public interest involved, and the polycentricity of the issues and the ability of a statutory forum to determine them.

43. In our considered view, while section 40 (2) has been amended, the fundamentals that informed the need for IDRM being the first port of call remain intact. The need to underwrite party harmony and cohesion while ensuring strong structures of democratisation within political parties remains critical.

44. The amendment to section 40(2) renders it necessary for us to offer guidance on what, in our understanding, an attempt at invoking IDRM would involve.

45. 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:i.The unavailability of the organ to resolve disputes;ii.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;iii.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;iv.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.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.

46. 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.

47. From the record carried in the parties’ filings before the Tribunal, it is apparent that the signed list annexed to the Complaint and purporting to give Authority to the 1st Claimant to bring these proceedings on their behalf was signed in a meeting held on 9th February 2022. This is the same date when the Claimant states that it declared a dispute and invited the Respondent to constitute an IDRM process that, as per party laws, essentially should have taken the form of an Arbitration.

48. It is difficult for this Tribunal to see how a dispute is declared, IDRM invited, and, on the same day authority to commence proceedings is granted. The logical view to take, as we do, is either that the reference to IDRM was either cosmetic, academic, or an afterthought. We gravitate towards the latter, fortified by the uncontroverted depositions of nine persons who state that they attended a meeting on 9th February 2022.

49. We have further considered the record and it has not been pleaded that the dispute at hand was referred to any party organ prior to invocation of Article 10. 1 of the party constitution. Yet the party constitution provides for adjudication through arbitration only where party organs are unable to resolve a dispute. It has further not been pleaded that any such party organs were not available or inoperative to enable such reference. Further, no reasonable time was granted the party to consider the letter dated 9th February 2022 bearing in mind that despite the fact that the process server claims that the letter was served on 11th February 2022, the stamp in our record reads 17th February 2022. In any event, the letter was not served upon the party in accordance with the party Constitution. It is, therefore, our considered conclusion that the Claimant’s allegations on honest attempt at IDRM are bereft of bona fides as it merely sought to appear to comply with section 40(2) of the Political Parties Act, 2011.

50. We emphasise that IDRM is neither a dress rehearsal, pit stop nor an ornamental provision in the Act. It serves a functional utility under Articles 38 and 159 of the Constitution of the Republic of Kenya. We are not able to assess the functionality nor the independence and impartiality of the IDRM of the 3rd Respondent because it never had a chance to be activated.It is, thus, our considered conclusion that our jurisdiction under section 40 (1) of the Political Parties Act, 2011, was prematurely invoked by the Complainant’s failure to comply with section 40 (2) of the Act. We, accordingly, find that the Preliminary objection is merited and having so found, we need not address the balance of the matters very ably raised by the parties.

53. We wish to thank counsel on both sides for their well-researched, reasoned and persuasively put submissions.

53. We note that this dispute pitted members of the same political party. In the interest of fostering party cohesion; and encouraging the parties to attempt internal dispute settlement, we will not award costs.

Disposition 54. In light of the foregoing, the Orders of the Tribunal are as follows:i.The Respondent’s Preliminary Objection dated 21st February 2022 is upheld;ii.This Complaint is struck out; andiii.There are no orders as to costs.

55. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF FEBRUARY 2022. DESMA NUNGO(CHAIRPERSON)..............................................DR. WILFRED MUTUBWA(VICE CHAIRPERSON)..............................................MILLY LWANGA ODONGO(MEMBER)..............................................DR. ADELAIDE MBITHI(MEMBER)..............................................GAD GATHU(MEMBER)..............................................THERESA CHEPKWONY(MEMBER)..............................................