[2022] KEPPDT 985 (KLR)

Okello v Orange Democratic Movement Party & 5 others (Complaint E034 (KSM) of 2022) [2022] KEPPDT 985 (KLR) (4 August 2022) (Ruling)

Neutral citation: [2022] KEPPDT 985 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E034 (KSM) of 2022

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

August 4, 2022

Between

Mereza Atieno Okello

Complainant

and

Orange Democratic Movement Party

1st Respondent

Caroline Okere

2nd Respondent

Rose Ogejo

3rd Respondent

Jane Ongoli

4th Respondent

Beatrice Okumu

5th Respondent

Beatrice Adhiambo

6th Respondent

Ruling

1. This matter concerns the nomination of the Complainant as the Nominee for the Member of County Assembly for Migori County for the Orange Democratic Movement Party. The Complainant was placed at No 27 of the Gender Top-Up Party List for Migori County. She contends that this was unfair, since 5 out of the top 10 individuals in the Party List come from Suna East Constituency and yet Migori County has a total of 8 Constituencies. Being aggrieved by the order and placement of the list she approached us seeking redress. It is the Complainant’s prayer that the Party List be declared non-compliant and therefore null and void.

2. In response the 1st Respondent contends that the Party List was properly constituted in accordance with the Party Rules and Regulations as well as the Constitution of Kenya 2010. Furthermore, they filed a Notice of Preliminary Objection challenging our jurisdiction to hear and determine this matter.

3. The complainant filed a complaint dated July 27, 2022 as well as an Affidavit in support thereof. The 1st Respondent filed a Notice of Preliminary Objection dated 1st August 2022 as well as Replying Affidavit of even date in response.

4. This matter came up for hearing on August 2, 2022 when the parties argued the matter virtually. The Complainant was represented by Miss Apondi, Mr Nderitu appeared for the 1st Respondent.

The Complainant’s Case 5. In the main, the Complainant asks us to find that the party list as presented by the 1st Respondent is discriminatory to the other sub counties and does not meet the Constitutional threshold of regional balance. Moreover, that the list be revised to reflect equality.

6. Miss Apondi for the Complainant began by elucidating that Migori County has 8 Constituencies and that the 1st Respondent is only allowed to nominate 14 Members. It was also her submission, that each of the constituencies should have a nominated member in the list, and that contrary to what is supposed to be done the 1st Respondent nominated 5 Nominees from Suna East Constituency alone, and that those 5 nominees are the first 5 in the Party List. It is her argument that since the nomination is done in order of priority the said nominees are unfairly advantaged.

7. Counsel further explained that the Complainant herein comes from Kuria West Constituency and that she had been placed at Number 27 on the list. It is the Complainant’s argument that she should appear in the top 8 Nominees taking into account the number of constituencies in Migori County.

8. In response to the Preliminary Objection raised by the 1st Respondent, Counsel cited Order 2 Rule15 of the Civil Procedure Rules 2010.

9. She stated that the Civil Procedure Rules derive their power from Section 81 of the Civil Procedure Act which is meant to apply to courts of Law. It was her submission that the Civil Procedure Act defines court to mean the High Court and Subordinate Court and that the said definition does not apply to Tribunals.

10. In response to the allegation raised in the Preliminary Objection, stating that the present complaint offends Section 40 of the Political Parties Act due to lack of exhaustion of Party IDRM. Counsel contended that, a Demand Letter dated July 14, 2022 was written to the National Elections Board of the 1st Respondent and that the 1st Respondent was given 15 days to respond to the said letter and failed to do so.

11. She further submitted that the County Appeals Tribunals which is established under Rule 19. 1. 4 of the ODM Nomination Rules is only relevant when it comes to elective positions. Moreover, she claimed that the County Appeals Tribunal was not functional and that the present application was therefore properly before this Tribunal.

1st Respondent’s Case 12. Mr Nderitu for the 1st Respondent began by stating that the 1st Respondent had filed a Preliminary Objection and an Affidavit sworn by Mr Ongwen, (The Executive Director of the ODM Appeals Tribunal Rules), challenging the Complainant’s failure to exhaust the Party IDRM Mechanism. Additionally, he averred that the County Appeals Tribunal as the first point of call, as provided in the ODM Tribunal Rules and that the Complainant has not exhausted this requirement.

13. Counsel made reference to Rule 5 of the ODM Appeals Tribunal (Practice and Procedure) Rules, specifically Rule 5 (1) which sets out the jurisdiction of the Tribunal as; to hear appeals in the nomination of Party Candidates including the positions of Women Representatives and Members of the County Assembly. Additionally, he stated that Rule 6 sets out the powers of the Tribunal while Part 3 provides the format of filing the Appeal.

14. It is the 1st Respondent’s submission, that the Party Appeals Tribunal did not receive any letter from the Complainant and that the letter referred to by the Complainant was not written by her. Furthermore, that the Advocates who drafted the letter did not represent the Complainant, and that it was not stated anywhere in the body of the letter that they acted on her behalf. Counsel further averred that there was no physical evidence of receipt of the letter, presented before us and that the author of the letter was not presented before this Tribunal. Consequently, it was his submission that the Complainant had not undertaken IDRM. He urged us to rule that only the Party Appeals Tribunal could resolve this dispute. He also made reference to Order 2 Rule 15 of the Civil Procedure Rules, which he stated applies to Subordinate Courts which he claimed included this Tribunal in its definition.

15. In response to the Complaint’s submissions on the party list complained of, Counsel for the 1st Respondent drew attention to the Complainant’s affidavit, where she alleged that two members of Suna East Constituency were also in the marginalized list. Counsel contended that the Complainant did not give any evidence of the said allegation. Furthermore, it was his submission that as per the provisions of Article 91 (2) (c) of the Constitution of Kenya, the IEBC is responsible for the Party List Seats and that each Party list is mandated to reflect the ethnic diversity of the people, and that there is no requirement for Constituencies being taken into account in reflecting the said diversity.

16. It was also his submission, that there was no law requiring regional balance of seats. In support thereof he cited Article 177 of the Constitution and Article 90 (1) of the Constitution of Kenya, which refers to Proportional Representation by the use of Party Lists. He further stated that the nominees come from the same County, and that proportionality with regards to a general election had already been catered for. Additionally, he stated that the Complainant already appears in the Gender top up list as Number 26 and not Number 27 as submitted and that according to Rule 57 of the ODM Rules Nomination, on the Gender Top Up lists, only gender is considered and that is why it is described as a Gender Top-Up List. Moreover, it was counsel’s submission that the Complainant had failed to adduce any evidence to show why she should get preference and priority in the Gender top up list, and that the Party had considered a variety of factors in coming up with the list as currently constituted.

17. It was Mr. Nderitu’s submission, that the County Appeals Tribunal was operative and actively handing out decisions on complaints filed before it. In conclusion, it is the 1st Respondent’s submission that the Complaint did not challenge member’s qualifications and that it should accordingly be dismissed with costs and that the Notice of Preliminary Objection should be upheld.

Complainant’s Rejoinder 18. In rejoinder Miss Apondi submitted that while Article 90 (2) (c) of the Constitution, exempts County Assembly Seats from regional and ethnic diversity requirements, the same were nonetheless important considerations.

19. In response to the 1st Respondent’s assertion that the letter which is claimed to be an attempt at IDRM was not written by the Complainant, Counsel admitted that the Letter was not written by the Complainant, but by an ODM Parliamentary Seat Nominee, who had proposed the Nomination of the Complainant. She further admitted that the Complainant had no evidence on record that the letter was served on the 1st Respondent.

20. It was her submission that even though Article 90 (2) (c) of the Constitution of Kenya did not apply to the Nominees of the County Assembly Seat, it was important to have regional balance since Migori County has 8 Constituencies and that each should be equally represented.

21. In conclusion counsel urged us to allow the complaint and dismiss the 1st Respondent’s Preliminary Objection with costs.

Tribunal Analysis and Findings 22. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has the jurisdiction to hear and determine this matter?ii.Whether the Complaint has Merit?iii.Who bears the costs of this case?

23. Of course, our consideration and position on the second issue will depend on our conclusions on the first. Naturally, we will start with the first question as framed above.

Whether this tribunal has the jurisdiction to hear and determine this matter? 24. The Preliminary Objection is fairly straight forward. That we lack jurisdiction to deal with the Complainant’s Application since according to the 1st Respondents the Complainant has not met the requirement of attempting IDRM with the party prior to instituting this suit as required by Section 40 (2) of the Political Parties Act, as read together with the ODM Constitution, ODM Party Primaries and Nomination Rules 2021 and the ODM Appeals Tribunal Rules 2021.

25. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit ManufacturingCo 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.”

26. The issue of jurisdiction is key as it is everything. In R v Karisa Chengo [2017] eKLR, the court 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.”

27. It is thus imperative that before any other determination/action is taken we confirm that we are properly seized of the matter.

28. In Agnes Mukami and 5 Others Vs Ngewahi and Company (2005) Eklr the court stated that;“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

29. A reading of Section 40 of the Political Parties Amendment Act of 2022which 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”

30. From a reading of the above sections of the law, as well as the cited authorities and the evidence adduced, it is clear that the dispute at hand is one between a member of a Political Party and a Political Party falls within the definition set out in Section 40(1) (b) of the Political Parties Act.

31. The Complainant alleges to have attempted IDRM by virtue of handing in a letter dated July 14, 2022, to the 1st Respondent. However, there seems to be no contest to the fact that the said letter was not drafted by the Complainant nor on her behalf by the authors of the letter Messrs. Lumumba and Ayieko Advocates. Furthermore, the 1st Respondent denies ever being served with the letter in the first place; this effectively shifts the Burden of Proof to the Complainant on the issue of service.

32. During submissions, the Complainant’s Advocates admitted that no proof of service was provided by the Complainant confirming service upon the Respondents; or that the letter in dispute was not drafted by the Complainant or her legal representative. In light of these admissions it remains an uncontroverted fact that service of the letter was not effectively made to the 1st Respondent.

33. It is, therefore, our considered view that the Complainant herein has failed to establish that service was properly effected on the 1st Respondent. Furthermore, it is our view that the Complainant herein has not sufficiently proved that she attempted to resolve this matter through IDRM before approaching us. Moreover, we find that the evidence produced by the Complainant showing that they attempted IDRM is insufficient to discharge the burden of proof. We therefore find that this honorable tribunal lacks the jurisdiction to hear and determine this matter, and that the requirements of the provisions of Section 40 (2) of the Political Parties Act have not been satisfied. It is, therefore, our determination that the Application is not properly before us.

34. The Preliminary Objection is upheld. The Complainant to attempt to settle this matter with the Party IDRM in compliance with the provisions of the Political Parties Act before seeking redress with the PPDT.

35. Having found the merit in the Preliminary Objection, we down our tools and need not address the merits of the complaint.

Who bears the costs of this matter? 36. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

Disposition 37. In the upshot we make the following Orders:i.We uphold the Preliminary Objection and strike out the complaintii.Each party shall bear its own costs.

38. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 4TH DAY OF AUGUST 2022. ....................................................HON. DR. WILFRED MUTUBWA OGW C. ARB(VICE CHAIRPERSON – PRESIDING)....................................................HON. FATUMA ALI(MEMBER)....................................................HON. WALUBENGO SIFUNA(MEMBER)