[2022] KEPPDT 941 (KLR)

Oiro v Orange Democratic Movement (ODM) & another; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E005 (KSM) of 2022) [2022] KEPPDT 941 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KEPPDT 941 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E005 (KSM) of 2022

W. Mutubwa, Vice Chair, S. Walubengo & F. Saman, Members

April 28, 2022

Between

Collins Oiro

Complainant

and

Orange Democratic Movement (Odm) Party

1st Respondent

Zakayo Ongondo Okuma

2nd Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Ruling

Background 1. The Complainant approached the Tribunal by way of a Certificate of Urgency, Notice of Motion, Statement of Complaint and Supporting Affidavit all dated April 24, 2022.

2. The 2nd Respondent filed a Replying Affidavit dated April 26, 2022 in response to the Claimant’s Statement of Complaint dated April 24, 2022 and accompanying Supporting Affidavits sworn on the same date.

3. The Interested Party herein filed Grounds of Opposition Dated April 27, 2022 in response to the Complainant’s Application.

4. The main contention in this matter revolves around the qualifications of the 2nd Respondent to stand for elections.

Complainant’s Case 1. It is the Complainant’s allegation that the 2nd Respondent does not meet the requirements of Rule16 (5) of the ODM Party Primaries and Nomination Rules which requires a candidate seeking nomination for election as the Party’s Candidate for the position of Member of County Assembly should fulfil the requirements set out therein. Where it provides that a person seeking nomination for election as a Party’s Candidate for the position of Member of County Assembly shall fulfill the requirements set out there in which include but is not limited to…, Satisfy any educational, moral, ethical and other requirements prescribed by the Constitution of Kenya 2010, An Act of Parliament or the Party Rules;

2. The Complainant avers that the ODM Party published a notice of Party Primaries for the 2022 General Elections and that one of the requirements in the said notice was the requirement for candidates to be proficient in both English and Kiswahili.

3. Furthermore, the Complainant swore an affidavit to the effect that the 2nd Respondent is not educated and only capable of speaking in the Dholuo Dialect and was therefore not qualified to participate in the primaries as a candidate for the position of Member of County Assembly for South Kaispul Ward.

4. It was the Complainant’s submission that the National Elections Board erred in allowing the Respondent to participate in the said nomination conducted on April 14, 2022.

5. The Complainant also produced before the Tribunal a copy of a letter written to the EACCrequesting for the documents used by the 2nd Respondent to be cleared to participate in the nominations. The Complainant stated that he had reason to believe that the said documents were a forgery especially his Kenya Certificate of Secondary Education.

Respondent’s Case. 6. The 2nd Respondent filed a Notice of Preliminary Objection as well as a Verifying Affidavit both dated April 27, 2022 disputing the jurisdiction of this Tribunal to hear this matter based on the following Grounds.

7. That by virtue of the provisions of Section 40(2) of the Political Parties Act No 11 of 2011 this Honourable Tribunal lacks jurisdiction to entertain the Complaint and Application.

8. That Article 163 of the Constitution of Kenya 2010 does not specify any academic qualifications for the position of Member of County Assembly and the 1st Respondent’s Rules only require Proficiency in both English and Kiswahili language without any set Academic Standards.

9. Furthermore, that the Complaint and Motion were overtaken by events and that the orders sought are incapable of being granted as the 1st Respondent (ODM) Party Primaries were already done and concluded on April 14, 2022.

10. In his submissions Mr K’opere for the 2nd Respondent argued that the ODM Constitution and Nomination Rules Clause 19 (1) already sets out the manner of Dispute Resolution to be undertaken, that is any person with a dispute has to file a matter with the County Appeals Tribunal and then the National Appeals Tribunal.

11. He further elaborated by pointing out that a Letter to the Chair of National Elections Board such as the one drafted by the Complainant is not a sufficient attempt at Dispute resolution and furthermore that the Letter presented by the Complainant to the Chair of the National Elections Board cannot be confirmed as received since it was not stamped.

12. Furthermore, it is the 2nd Respondent’s submission that the present Complaint shouldn’t be before this Tribunal by dint of Sec 40 (2) of The Political Parties Act 2011 as amended by the Political Parties (Amendment) Act of 2022, which states inter alia that the Tribunal shall not determine a dispute unless a party to the dispute shows an attempt at subjecting themselves to the Party Internal Dispute Resolution Mechanisms. (IDRM)

13. He also submitted that the allegation that the 2nd Respondent can only communicate in Dholuois not sufficiently justified by evidence before this Tribunal.

14. That the Complaint herein does not warrant the interrogation sought by this Tribunal since Nominations were already concluded by April 14, 2022 and that consequently the Tribunal was being asked to engage in a purely academic exercise as the nominations had already happened.

15. It was therefore the 2nd Respondent’s prayer that the Complaint be struck out for lack of Jurisdiction and Merit

16. And that costs be awarded for the Complaint being frivolous, vexatious and an abuse of the court process.

The Preliminary Objection. 17. The Tribunal directed that the Preliminary Objection be heard first before the substantive application.

Issues For Determination 18. The Tribunal has carefully considered the Preliminary Objection and all the Pleadings in this case and the evidence presented by the respective parties and will determine the following issuesa.Whether the 2nd Respondent’s Preliminary Objection is competent and meets the threshold required by law.b.Who bears the costs of this proceedings?

Analysis And Determination 19. Whether the 2nd Respondent’s Preliminary Objection is competent and meets the threshold required by law

20. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing. Ltd –vs.- West End Distributors Ltd (1969) EA 696, where it was held that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

21. The issues raised by the 2nd Respondent in his Preliminary Objection are on the competency of the proceedings brought by the Complainant before this Tribunal.

22. The issues being urged by the Respondent herein are that the Complainant has not followed the Party’s Regulations for the IDRM process and therefore cannot approach this Tribunal.

23. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v. Karisa Chengo[2017] eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

24. In Kieru John Wambui & another v Jubilee Party; Secretary General, Jubilee Party & 2 others (Interested Parties) [2021] eKLR the Political Parties Dispute Tribunal (PPDT) pronounced themselves as follows:Taking into consideration the foregoing reasons and the findings in the above cases, and in the absence of any evidence by the Complainants to demonstrate that their attempt to invoke IDRM was frustrated, we find that jurisdiction cannot, at this stage vest in this Tribunal. This Tribunal is not properly seized of jurisdiction and we accordingly uphold the Preliminary Objection. Consequentially this Complaint be and is hereby struck out for want of jurisdiction

25. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

26. A reading of Section 40 of the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that:40. (1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and a political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners; andf.appeals from decisions of the Registrar under this Act.“(2)Notwithstanding sub section (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”

27. From a reading of the above it is already clear that the dispute at hand being a dispute between a Member of a Political Party and a Political Party falls within the definition of Section 40(1) (b).

28. The issue of whether this Tribunal has jurisdiction to entertain this matter thus falls to the question of whether the Complainant has provided sufficient evidence of an attempt to subject the dispute to the Internal Political Party Dispute Resolution Mechanisms as provided under Section 40 (2) of the Act.

29. It is this Tribunal’s considered opinion that the Complainant has not demonstrated an attempt to pursue Internal Dispute Resolution Mechanisms with the Party.

Conclusion 30. It is therefore this Tribunal’s Finding thati.The Preliminary Objection has merit and is allowed.ii.The Complaint is struck out.iii.We order that each party shall bear its own costs.iv.It is so ordered.

Dated at Nairobi this 28TH day of APRIL 2022HON.DR WILFRED MUTUBWA(VICE CHAIRPERSON PRESIDING)_________________________HON. SIFUNA WALUBENGO(MEMBER)_________________________HON. FATUMA SAMAN(MEMBER)__________________________SIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBER