[2022] KEPPDT 970 (KLR)

Omole v Wachira; Communist Party of Kenya (CPK) & another (Interested Parties) (Complaint E051 (NRB) of 2022) [2022] KEPPDT 970 (KLR) (8 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 970 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E051 (NRB) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 8, 2022

Between

Booker Ngesa Omole

Complainant

and

Benedict Wachira

Respondent

and

Communist Party Of Kenya (Cpk)

Interested Party

Independent Elecoral & Boundaries Commission

Interested Party

Judgment

Introduction 1. The Complainant is the Vice-Chairperson and the Organizing Secretary of the Communist Party of Kenya (CPK) who has been named as the 1st Interested Party in this claim.

2. The complaint has been brought before this Tribunal by the complainant because he claims that the Respondent has failed and/or refused to submit the names of the complainant to the Independent Electoral and Boundaries Commission who are the 2nd Interested Party in this claim. The complainant claims to have been nominated to contest in the General Elections under the Communist Party of Kenya flagship for the position of Member of Parliament for Gem Constituency.

3. He seeks orders to protect the Interested Party’s Constitution against the violation by the Respondent. He also wants the Respondent compelled to submit the complainants’ papers as received from the complainant to the Independent Electoral and Boundaries Commission and that the Tribunal direct that failure by the Respondent to submit the Complainant’s name and documents in line with the IEBC requirements, the complainant can forward the documents himself as the Party’s Vice Chairperson amongst other orders.

4. The Complaint is denied by the Respondent who has filed a Response to the complaint and a sworn replying affidavit as well as filed his witness statements all dated 01/05/2022 in response to the allegations by the Claimant.

4. The Complainant is represented by Gitobu Imanyara & Co. Advocates; The Respondent is represented by Wandeto Wachira Advocates. The 1st Interested Party are represented by the firm of A. Omondi & Co. Advocates. There is no appearance by the 2nd Interested party

Complainants Case 6. The Complainant filed this complaint on the 28/04/2022 under a certificate of Urgency together with a Notice of Motion Application supported by his affidavit and the affidavits of Gacheke Gachihi and Grace Sefu Sanni also sworn on the same date.

7. The Complainant is a registered member of the Communist Party of Kenya (CPK) the 1st Interested Party being member No.003 and an Aspirant vying for the Gem Constituency Member of Parliament with the Communist Party of Kenya.

8. The Complainant claims that he complied with the requirements of the Independent Electoral and Boundaries Commission and on the 25/04/2022 through a letter from his Advocates Letangule & Co. Advocates submitted his documents to the party the 1st Interested Party through the Secretary-General who is the Respondent herein.

9. On 27/04/2022 the Complainant wrote to the Secretary General of CPK inquiring whether the Respondent had forwarded the Complainant’s name to the Independent Electoral and Boundaries Commission because the deadline for submission was the 28/04/2022 which was less than 24 hours away.

10. On realizing that the Respondent was not responding, the complainant asked his Advocates to write to the Chairman of the Internal Disputes Resolution Committee of the 1st Interested Party asking them to have the dispute resolved internally but there was no response.

11. It is the complainant’s case that he has been campaigning for the last 4 years and he has invested his time, resources and cash in campaigns to contest for the position of Member of Parliament for Gem under the umbrella of the Communist Party of Kenya.

12. He claims that the actions by the Respondent are meant to frustrate him by ensuring that his name is not on the ballot come the General Election in August 2022.

13. He contends that he will suffer irreparable damage if the prayers sought in the complaint are not granted as he will be disqualified by IEBC for failure to file his documents on time and his bid for the Gem Constituency Member of Parliament will be rendered invalid.

14. On the other hand, he maintains that the Respondent will not suffer any prejudice if the prayers sought herein are granted.

15. For these reasons he seeks the orders sought in the complaint.

Respondents’ Case 16. The Respondent is the Secretary-General of the 1st Interested Party and he has filed his response to the complaint together with a Replying Affidavit dated 01/04/2022.

17. The Respondent denies that he has failed to submit the names of persons nominated to contest in the General Elections in 2022 as alleged.

18. He agrees with the statement by the complainant that a qualified Kenyan can contest for a political post under a party ticket or as an Independent Candidate but adds that for one to contest under the party ticket they must then be approved by the party to contest and they must thereafter adhere to the rules set out by that particular political party and all the laws of Kenya.

19. He confirms that he submitted the names of all the party aspirants to the IEBC on 28/04/2022 which was the last day of submission.

20. He denies the allegation by the complainant that he instructed him to deposit money to the party’s account and adds that a member of the party who wants to contest under the name of the party has to be cleared first by the party before he is allowed to pay the nomination fees to the party.

21. He adds that there are some members who have been cleared to contest without paying the required nomination fees.

22. He explains that the first step a member who wants to contest must take is to clear with the party which the Complainant did not follow. Besides clearance, a member who wants to be cleared has to abide by the rules and regulations which apply to everyone in the party regardless of their position in the party.

23. He has denied the allegations that he made remarks that intended to frustrate the complainant’s bid to vie for the Member of Parliament for Gem Constituency and states that it was the complainant himself who withdrew from the contest after the party joined the Kenya Kwanza Coalition.

24. He states that the complainant’s excuse to withdraw was that it would be impossible for him to win the seat if he vied under a party in that coalition. He states that the complainant offered to concentrate efforts on building the party.

25. The Respondent states that the party did not include the complainants name in its list of aspirants that was forwarded to the IEBC on 28/04/2022 given his conduct of abusing the Party and the party leaders on social media and to ensure that the two third gender principle was adhered to.

26. The Respondent has highlighted grounds on which the response is presented as follows:i.That sometime in March the Party resolved to join the Kenya kwanza coalition subject to reading and agreeing with the Kenya Kwanza coalition Agreement.ii.On 9th of April 2022, the Complainant after reading the coalition agreement informed the party in writing that even though he agrees with the objectives of the Kenya Kwanza Coalition it would be difficult for him to win a seat in Gem and he therefore would have to withdraw his intention to vie if the party joined the coalition. His withdrawal was accepted on 10/04/2022. iii.From that time the Complainant has been abusing and threatening leaders of the Party on accusations that they have auctioned the party to the Kenya Kwanza Coalition.iv.That the said threats are against the Electoral Code of Conduct under schedule two of the Elections Act and are also against the Party’s code of conduct and as such the party’s nomination rules cannot allow him to contest under the party ticket.v.Further on the 18th of April 2022, the Elections Committee of the party instructed the Respondent to only clear aspirants who abide by the laws of Kenya the regulations of the party and that due consideration should be put to ensure that the two-third gender rule under the katiba institute judgment was implemented. The IEBC also sent a circular to all parties warning that any list that did not meet the two-third threshold would be rejected by the commission.vi.The party already had three women who had expressed interest to vie for the position of Member of National Assembly and as such the maximum number of men to be added on the list was six. The party submitted a list that had three women and six men.

27. The Respondent has asked this Tribunal to dismiss the complaint with costs

27. The 2nd Interested party did not enter an appearance nor did they file a defence.

Issues for Analysis and Determination 29. The Tribunal has gone through the Complaint as presented by the complainant together with the Notice of Motion and the affidavits in support with the bundle of annexures and the submissions on record. From the submissions by the Complainant and the respondents, the following issues have been identified for determination:i.Whether the Tribunal has the jurisdiction to hear and determine this complaint?ii.Whether the complainant qualified to be nominated to vie for the position of Member of Parliament for Gem Constituency under the umbrella of the Communist Party of Kenya?iii.Whether the Respondent was justified to refuse to submit the name of the complainant to the Independent Electoral and Boundaries Commission.iv.What orders can the Tribunal issue in the circumstances.v.Who bears the costs of the complaint?

Disposition Whether the Tribunal has the jurisdiction to hear and determine this complaint. 30. This Tribunal’s Jurisdiction has been established pursuant to Section 40 of the Political Parties Act which provides as thus: -“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.”

31. The complainant has submitted that on 27/04/2022, his advocates wrote to the Secretary-General of CPK inquiring whether the Respondent had forwarded his names to the IEBC as the deadline of 28/04/2022 was fast approaching.

32. On realizing that the Respondent was not responding to the letter, the Complainant’s Advocate through a letter to the Chairman of the Internal Dispute Resolution Committee requested for the dispute to be heard and resolved within the party but the said letter was not answered.

33. The Respondent submits that despite the complainant adducing the letter dated 27/04/2022, seeking to know whether his name would be forwarded to the IEBC, the Complainant has not adduced any other evidence to demonstrate real effort in instituting Internal Disputes Resolution Mechanism within the party.

34. There are three letters annexed by the complainant being annexure “BNO 1B”,BNO 2” and “BNO 3”. Annexure “BNO 1 B” is the letter dated 25/04/2022 received and stamped by the 1st Interested Party on the same date addressed to the Secretary-General sending the Complainants details to be forwarded to the IEBC.

35. Annexure “BNO 2” is a letter sent to the Secretary-General inquiring whether the complainant’s details were sent. It is dated the 27/04/2022 and it was received and stamped by the 1st Interested Party.

36. Annexure “BNO 3” is a letter dated 27/04/2022 sent to the Internal Dispute Resolution Committee, Communist Party of Kenya requesting for urgent intervention and hearing of a dispute failure to which the complainant will be forced to approach the Political Parties Disputes Tribunal. The letter was sent via e-mail.

37. From the foregoing, it is evident that the Complainant sent a letter to the 1st Interested Party (Annexure “BNO 3”) requesting an IDRM process to be undertaken. The letter was not responded to which in itself shows evidence that the complainant attempted the Dispute Resolution Mechanism of the 1st Interested Party but nothing was forthcoming.

38. The tribunal in its decision in Ibrahim Abdi Ali –vs- Mohamed Abdi Farah & Another PPDT complaint no. 29 of 2015 held inter alia:“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 to the tribunal even where his party has not concluded a hearing and a determination of his matter.”

39. Recently in a differently constituted bench, this Tribunal in the complaint of Hon. Elisha Ochieng Odhiambo V Dr. George Jalango Midiwo & 3 others (Complaint Number 003 Of 2022) at paragraph 32 stated as follows: -“Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions.”

40. In Complaint No. E020 of 2021 Oscar Kambona v Schola Nyenze and Others the tribunal further noted the following:“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.”

41. 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.”

42. The Complainant has adduced evidence before us that indeed he made honest attempts to resolve the matter through the party IDRM but the same was frustrated and or thwarted and therefore this tribunal is well seized of the matter.

43. The Complainant who is a member of the 1st Interested Party made efforts to have the IDRM by sending the letter dated 27/04/2022 via email to the Disputes Tribunal but the same was neither responded to nor was there any explanations given to him why his letters were not being responded to.

44. Consequently, this Tribunal finds that it has jurisdiction to hear this complaint and therefore will proceed and determine the pending issues.

Whether the complainant qualified to be nominated to vie for the position of Member of Parliament for Gem Constituency under the umbrella of the Communist Party of Kenya? 45. The Complainant by a letter dated 25/04/2022 forwarded his details to the Secretary of the Party the Respondent asking him to forward the same to the IEBC. According to the Respondent in his affidavit and submissions the Complainant by an email to the 1st Interested Party and the Respondent gave notice of intention to withdraw his candidature for Gem Constituency should the party join the Kenya Kwanza Agreement on 12/04/2022.

46. In his further affidavit, the Complainant states that he did not express any decision not to vie and he has quoted contents of annexure “BW-1” which this Tribunal will quote also as follows “…... it will become impossible for me to contest for GEM and to win. So the consequence will be to withdraw my candidature in GEM…. to look for a Constituency in Nairobi……... these are very difficult decisions for me to make….”

47. A casual reading of the statement shows that the complainant withdrew his candidature for GEM Constituency and had not decided on the constituency to vie in Nairobi.

48. The Complainant was duly qualified as a candidate and he still is qualified but since he withdrew his candidature he is estopped from turning back and claiming that he did not mean what he said.

49. For that reason, it can be said that the Complainant disqualified himself by that one letter to the party.

Whether the Respondent was justified to refuse to submit the name of the complainant to the Independent Electoral and Boundaries Commission. 50. The Respondent did not submit the name of the Complainant the main reason being that the Complainant himself withdrew from the contest.

51. The Respondent apart from the other reasons he gave was justified not to submit the Complainant’s name also because the complainant failed to abide by the code of conduct and ethics of the party

What orders can the Tribunal issue in the Circumstances? 52. This Tribunal finds no merit in the complaint and the same is hereby dismissed with no orders as to costs.

53. Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MAY 2022. ………………………………………………………HON. ERASTUS ORINA(PRESIDING MEMBER)……………………………………………………………HON. THERESA CHEPKWONY(MEMBER)……………………………………………………………..HON. DANIEL KAGACHA(MEMBER)