[2022] KEPPDT 961 (KLR)

Nyaboke & another v Nyamweya & 2 others; Gisore & 5 others (Interested Parties) (Complaint E038 (KSM) of 2022) [2022] KEPPDT 961 (KLR) (9 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 961 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E038 (KSM) of 2022

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

September 9, 2022

Between

Magdalene Nyaboke

1st Complainant

Nancy Nyanchoka Ongeri

2nd Complainant

and

Manson Nyamweya

1st Respondent

Kenya Social Congress

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

and

Benjamin Abuga Gisore

Interested Party

Lillian Anyango

Interested Party

Enock Onkoba

Interested Party

Grace Bosibori

Interested Party

Caroline Moraa

Interested Party

Josephine Nyabonyi

Interested Party

Judgment

1. By a Complaint dated 23rd August 2022 the Complainants seek the following orders: -a.A declaration that the party list for Kisii County is non-complainant with and/or is in gross violation of the Constitution and is therefore null and void.b.An order directing the 2nd Respondent to submit to the Independent Electoral and Boundaries Commission, on priority basis, the names of the Complainants as gender top-up nominees of the Kenya National Congress party list.

2. Together with the Complaint, the Complainants also filed a Notice of Motion application dated 23rd August 2022 in which they sought the orders on the face of the application.

3. The Tribunal gave directions that the Complaint and the aforesaid Notice of Motion would be heard together.

4. The 1st and 2nd Respondents entered appearance and filed a response. The 1st, 2nd and 3rd Interested Parties also entered appearance and filed a response. The 3rd Respondent and the 4th, 5th and 6th Interested Parties did not enter appearance or otherwise participate in the proceedings despite having been duly served.

The Complainants’ case 5. Further to the Complaint and the annexures thereto, the Complainants also filed a Supplementary Affidavit and a Further Affidavit sworn by the 1st Complainant on 31st August 2022 and 2nd September 2022 respectively. The Complainants also filed Written Submissions dated 31st August 2022.

6. The Complainants’ case is that they are members of the 2nd Respondent holding membership numbers KNCLF2022045 and KNCLF2022045135 as regards the 1st and 2nd Complainant respectively. The Complainants claim to have expended reasonable resources towards promoting the interests of the 2nd Respondent in Kisii County. The claim that this came at a great personal cost including financial and even physical assaults to their teams. They have annexed particularly graphic photographs to support these allegations.

7. The Complainants claim that in return for their support to the 2nd Respondent, they were invited to submit applications for inclusion in the 2nd Respondent’s party list under the “gender top-up category.” The Complainants applied for the positions but contrary to their legitimate expectation that they would be in the “gender top-up” list, the 2nd Respondent included them in its party list but under the “marginalized group” category.

8. The Complainants claim that they are not marginalized in any way and never applied to be considered as such. They also assert that they have attempted to have the matter resolved through the 2nd Respondent’s Internal Dispute Resolution Mechanism (IDRM) but their attempts have not borne fruit.

9. The Complainants further allege that the persons whom the 2nd Respondent included in its party lists are relatives of the 1st Interested Party. They therefore seek the prayers enumerated in their Complaint.

The 1st and 2nd Respondents’ Case. 10. The 1st and 2nd Respondents filed a Replying Affidavit sworn by the 1st Interested Party on 31st August 2022 on their behalf. The 1st and 2nd Respondents also filed written submissions dated 1st September 2022. The 1st and 2nd Respondents do not dispute that the Complainants are members of the 2nd Respondent. The 1st and 2nd Respondents contend that the Complainants did not exhaust the 2nd Respondent’s IDRM prior to instituting this complaint and they are therefore prematurely before the Tribunal which has not acquired the requisite jurisdiction.

11. The 1st and 2nd Respondents further allege that the 2nd Respondent did follow the Constitution in its nominations and it also considered all relevant factors set out in law. The 1st Interested Party also specifically denies having made any promises to the Complainants that he had forwarded their names to the 3rd Respondent for inclusion in the party list under the “gender top-up” category. The 1st Interested Party also denies knowledge of any arrangement with the Complainants for inclusion in the 2nd Respondent’s party list in exchange for monetary support. Additionally, the 1st Interested Party denies that the persons whose names were included in the 2nd Respondent’s party list are his family members. The 1st and 2nd Respondents therefore seek that the Complaint be dismissed.

The 1st, 2nd and 3rd Interested Parties’ case 12. The 1st, 2nd and 3rd Interested Parties filed a Replying Affidavit sworn on 6th September 2022 by the 2nd Interested Party on their behalf. The affidavit is expressed to be a response to the Notice of Motion application dated 23rd August 2022. The 1st, 2nd and 3rd Interested Parties did not file any Written Submissions. Their Counsel did however orally submit during the hearing of the Complaint.

13. The 2nd Interested Party on behalf of the 1st and 3rd Interested Parties deponed that the 2nd Respondent did follow the law in including her in the party list. She further depones that she was properly included in the list pursuant to various considerations including long service to the 2nd Respondent. She urges the Tribunal to dismiss the aforesaid Notice of Motion application.

Issues for Determination 14. Having analyzed the parties pleadings and submissions, the Tribunal sets out the following issues for determination: -a.Whether the Tribunal has the jurisdiction to hear and determine this Complaint.b.Whether the orders sought can be granted.

Analysis and Findings Whether the Tribunal has the jurisdiction to hear and determine this Complaint. 15. Jurisdiction is everything. In the locus classicus Owners of Motor Vessel “Lillan S” vs Caltex Oil (Kenya) Ltd [1989] eKLR it was held that without jurisdiction, a court or Tribunal should forthwith down its tools and not take any further step in a matter that it is handling. The issue of this Tribunal’s jurisdiction has been raised by the 1st and 2nd Respondents and the 1st, 2nd and 3rd Interested Parties. It is therefore imperative that the Tribunal satisfies itself that it has the requisite jurisdiction.

16. This Tribunal has several times pronounced itself on the import of section 40(2) of the Political Parties Act, 2011 as regards it jurisdiction. IDRM is sacrosanct. There can be no running away from IDRM. The Court of Appeal in Hezron J. Opiyo Asudi & another v Peter Anyang Nyongo & 6 others [2017] eKLR held that the sieving mechanism provided by section 40(2) of the Act must be respected and safeguarded.

17. What is presently required under that section is the demonstration of a bona fides attempt at IDRM. InJohn 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. There is no requirement that IDRM must be exhausted. What then is a bona fide attempt?

18. An essential element of a bona fides attempt is that the party must be given notice of the dispute and accorded an opportunity to resolve it through its IDRM. Conversely, if the party delays in activating its IDRM process after having been notified of a dispute, then it cannot claim that an attempt was not made to have the dispute resolved through IDRM.

19. In this instance, the question of whether an attempt was made or not rests on the 2nd Respondent’s constitution and on letters dated 28th July 2022 and 2nd August 2022 written by the Complainants jointly and addressed to the 2nd Respondent’s Secretary General who is the 1st Interested Party.

20. The Secretary General of the 2nd Respondent seems to be the rightful party to address when seeking to invoke IDRM. The 2nd Respondent’s constitution at clause 14. 0.3 (v) is clear as to the role of the Secretary General of the 2nd Respondent in terms of IDRM. It was therefore proper to address the Secretary General when seeking to invoke IDRM.

21. As regards whether the said letters dated 28th July 2022 and 2nd August 2022 were received, the 1st and 2nd Respondent’s as well as the 1st Interested Party deny that the letter was ever received by the 2nd Respondent. It is therefore imperative to examine whether sufficient proof has been availed that the letter was indeed sent to the 2nd Respondent for a finding to be made that the 2nd Respondent was indeed accorded an opportunity to resolve the dispute via IDRM.

22. The Complainants did not initially give an indication of how they delivered the aforesaid letters to the 2nd Respondent and/or the 1st Interested Party. However, in their Supplementary Affidavit sworn on 31st August 2022 by the 1st Complainant, the 1st Complainant depones that the Complainants wrote various letters which they left at the offices of the 2nd Respondent with one “Geoffrey Nyakundi who is a constant face at the offices and in whose care the offices were left.” The said Supplementary Affidavit also introduces another letter dated 29th July 2022 which had hitherto not been referred to.

23. While the Tribunal can accept that the various letters were meant to invoke the 2nd Respondent’s IDRM and that they were addressed to the proper person, the Tribunal has difficulty in accepting that the Complainants have availed sufficient proof that they indeed delivered the said letters. The letters are claimed to have been delivered in person. However, there is no proof of service by which this Tribunal can comfortably find that service (of the Complaint Letter) was indeed effected. Moreover, the aforesaid description in the Supplementary Affidavit of the 1st Complainant is not helpful at all. The said Geoffrey Nyakundi is not properly identified as an official or employee of the 2nd Respondent.

24. There is also no proof that the said letters were sent by email. Whilst during the hearing there was some contention that the email address kema@kema.co.ke does not belong to the 2nd Respondent, there is a likelihood that this email is owned by, or that, the 1st and 2nd Respondents have access to it. This finding is borne of the fact that according to the Complainants affidavit of service sworn on 30th August 2022 by one Robert Matoke, this is the email address through which the 1st and 2nd Respondents and the 1st Interested Party were served and they thereafter came on record. They did not offer any other explanation as to how else they could have become aware of the existence of these proceedings. Although the Tribunal was not satisfied with service upon the Interested Parties via the same email address when the matter first came up for hearing on 2nd September 2022, this was solely for the reason that those Interested Parties were not present in virtual court.

25. In the circumstances, in the absence of proof of an email sending the aforesaid letters to the 2nd Respondent via the aforesaid email, we cannot find that the letters were indeed sent via email. Again, there is no proof that the letters were sent via post, despite there being a postal address expressed on the letter of complaint.

26. We therefore find that the Complainants have not proven that they made a bona fides attempt at invoking the 2nd Respondent’s IDRM. The Tribunal therefore lacks the requisite jurisdiction to hear and determine this dispute pursuant to section 40(2) of the Political Parties Act, 2011. The Complaint is therefore struck out. The Notice of Motion dated 23rd August 2022 is consequently spent. Given the foregoing, we cannot delve into the merits of the matter.

27. In conclusion, however, we note that we heard Counsel for the Complainants pray that the Tribunal directs the 2nd Respondent to constitute its IDRM and make a determination on the dispute. Although this was not part of the Complainants prayers, and parties should be bound by their pleadings, we wish to note that given our foregoing findings, the Complainants are at liberty to make a bona fides attempt to invoke the IDRM of the 2nd Respondent and thereafter take appropriate actions within the law.

Orders. 28. The Tribunal therefore makes the following order.a.The Complaint is hereby struck out with each party bearing its own costs.

DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF SEPTEMBER 2022. GAD GATHU………………………………………………(PRESIDING MEMBER)WANJIRŨ NGIGE……………………………………………(MEMBER)DR. LEONARD KINYULUSI……………………………………..(MEMBER)