[2023] KEPPDT 387 (KLR)

Owiti v Wachira & another; Registrar of Political Parties (Interested Party) (Complaint E149 (NRB) of 2022) [2023] KEPPDT 387 (KLR) (13 February 2023) (Ruling)

Neutral citation: [2023] KEPPDT 387 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E149 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

February 13, 2023

Between

David Otieno Owiti

Complainant

and

Benedict Wachira

1st Respondent

Mwandawiro Mghanga

2nd Respondent

and

Registrar of Political Parties

Interested Party

Ruling

Introduction 1. The Complainant uploaded his Complaint in the e-filing portal on or about the 23rd December 2022. However, it is not until 10th January 2023 when further court filing fees were settled. That is the date the filing of the matter can be deemed to have been completed. The file was there-after assigned to the Chairperson of the Tribunal who issued directions for service and mention inter partes on 23rd January 2023 for further directions.

2. On 23rd January 2023 when the case came up for directions, the Tribunal was informed that the 1st Respondent had filed a Preliminary Objection dated 21st January 2023 objecting to the Jurisdiction of the Tribunal to hear and determine the Complaint, and the 2nd Respondent had filed a Notice of Motion application dated 22nd January 2023 seeking to strike out the Complaint for being incurably defective for failing to comply with the provisions of Regulation 9(2)(a) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017, amongst other grounds. The Tribunal was also informed that another application had been filed on behalf of the Communist Party of Kenya (CPK) dated 22nd January 2023 seeking to be joined in the proceedings as the 3rd Respondent.

3. Considering the nature of the pending applications challenging jurisdiction of the Tribunal and competence of the Complaint, the Tribunal issued directions prioritizing the hearing of the Preliminary Objection and the application by the 1st Respondent simultaneously on 31st January 2023. Thereafter and subject to its determination on the objection, the Tribunal would issue directions on the joinder application.

4. Accordingly, on the 31st January 2023, the matter came up for hearing of the applications, and the 1st and 2nd Respondents were represented by Mr. Opwora Advocate on behalf of Wandeto Wachira Advocates, and also holding brief for A. Omondi & Company Advocates. The Complainant was represented by Mr. Obat Advocate, and the Interested party was represented by Mr. Wafula Wakoko Advocate.

The 1st Respondent’s Preliminary Objection 5. The 1st Respondent’s Preliminary Objection dated 21st January 2023 (hereinafter referred to as the PO) raises the following grounds that were argued before the Tribunal:-i.That this Honourable Tribunal lacks jurisdiction to preside over this matter as the Complainant herein is not a member of the Communist Party of Kenya.ii.That, the Complainant is inviting this Honourable Tribunal to determine matters that ought to be investigated and prosecuted by the Ethics and Anti-Corruption Commission (EACC), a matter that is within the jurisdiction of EACC and not of this Honourable Tribunal.iii.That, the Complainant states that the 2nd Respondent herein resigned as a County Executive Committee member of the Taita Taveta County, and he further avers that the 2nd Respondent has always acted as the National Chairperson of the Communist Party of Kenya, and he also confirms that the Interested Party herein is not aware of any such resignation from the Party by the 2nd Respondent herein. In short, the Complainant doesn’t present an existing or live controversy, worthy of taking the much-sought judicial time and as such the Complaint is moot and suffers the fate of the justiciability doctrine of mootness.iv.That the Complainant raises matters that were resolved and are within the jurisdiction of the Office of the Data Protection Commissioner, who has the legal responsibility to investigate and resolve such matters, and as such, this Honourable Tribunal lacks jurisdiction over the matter.iv.That the Complainant raises issues of employment and issues of rent, matters that that ought to be presided over by the Employment & Labour Relations Court and the Rent Tribunal and Environment & Land Court respectively, and are not within the jurisdiction of this Honourable Tribunal.iv.That the Complainant raises issues of office and financial compliance, matters that are within the regulatory jurisdiction of the Interested Party herein and who bears the legal duty to investigate and order for remedial action if any, and as such is inviting this Honourable Tribunal to conduct the statutory business of the Registrar of Political Parties.iv.That the Complainant raises matters that do not exist in the Party, or may be dealt with at the Party Central Committee, or the National Congress that is scheduled for next year, and he further raises matters that are fanciful, unverifiable, which disclose no reasonable cause of action or defence in law and as such is an abuse of the process of this Honourable Tribunal.viii.That the Complaint as framed is incompetent, fanciful and incurably defective as it does not disclose any cause of action or any triable legal issues to be adjudicated upon by this Honourable Tribunal against the 1st and 2nd Respondents and the same is moot, vexatious and should accordingly be dismissed with costs for being an abuse of the Tribunal process.

The 2ndRespondent’s Notice of Motion Application 6. The 2nd Respondent vide his Notice of Motion Application dated 22nd January 2023 (hereinafter referred to as the application) seeks to have the Complaint herein struck out for various grounds.

7. It is the 2nd Respondent’s submission that the Complaint is incurably defective as it was not accompanied by an affidavit containing the grounds on which relief is sought and setting out the facts relied on by the Complainant, contrary to the provisions of Regulation 9 of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017. The 2nd Respondent avers that they stand to be prejudiced as they are unable to constructively respond to the Complaint in the absence of a supporting affidavit.

8. It is the 2nd Respondent’s submission that there was no application filed in the Tribunal seeking leave to file the Supporting Affidavit with a view of curing the defect. In default, the Complaint is fundamentally defective that it can only be struck out. The 2nd Respondent relied on the case of The Delphis Bank Limited v. Asudi (K) Limited & Another, HCCC No. 82 of 2003, that held that ‘once a verifying affidavit has been struck out and the defendant applies to have the plaint struck out then the court must strike out the plaint.’ They also relied on the Supreme Court case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014]

9. The 2nd Respondent further submits that the Complaint is frivolous and vexatious for, inter alia, the following reasons:-i.It raises irrelevant issues that the Honourable Tribunal ought not to entertain.ii.The Complainant does not have the locus standi to institute this complaint as the records held by the CPK demonstrates that the Complainant is not a member. It is therefore erroneous for the Complainant to claim that the dispute is between the members of a political party, when, in the first place, he is not a member.iii.The Complainant is inviting the Honourable tribunal to determine matters that ought to be reported to, investigated and prosecuted by the Ethics and Anti-Corruption Commission (EACC) concerning the alleged a matter that is within the jurisdiction of EACC and not of this Honourable Tribunal.iv.The Complainant raises matters that were resolved and remain within the jurisdiction of the Office of the Data Protection Commissioner (ODPC). The Claimant has not adduced a copy of the self-explanatory letter sent to the Party from ODPC.v.The Complainant raises issues of the execution of duties in the office of the 1st Respondent and financial compliance, matters that are within the regulatory jurisdiction of the Interested Party herein and who bears the legal duty to investigate and order for remedial action if any, and as such is inviting this Honourable Tribunal to make orders thereto is premature as this is not an appeal from the decision of the Registrar of Political Parties.

10. The 2nd Respondent further submits that the Complaint does not raise a triable issue that would warrant the consideration by this Honourable Tribunal for the following reasons:-i.The Complainant seeks a declaration that the 2nd Respondent is illegally in office despite stating that the Registrar and the Party confirmed having not received any resignation letter.ii.The National Congress is held after every five years, the next being in 2024 in accordance with the provisions of the CPK’s Constitution.iii.The Complainant raises issues of employment and issues of rent yet this Tribunal has no jurisdiction to deal with matters of employment as there is an Employment and Labour Relations Court. There is reference to alleged rent arrears due and payable by the CPK, there is a rent tribunal and the parties thereto are landlord and a tenant. The Complainant is neither a tenant nor a landlord. The alleged employee and alleged landlord have not instructed the complainant to lodge this complaint on their behalf.

11. To buttress the foregoing, the 2nd Respondent relied on the case of Katana Fondo Birya v Krystalline Salt Ltd & 2 others [2018] eKLR, where the Judge held thus:“18. As was pointed out above, Order 2 Rule 15 of the Civil Procedure Rules allows pleadings to be struck out if the same are scandalous, frivolous and vexatious. In Dawkins –vs- Prince Edward of Save Weimber (1976) I QBD 499, the Court held that:-“A matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv) when to put up a defence would be wasting the Court’s time; or (v) when it is not capable of reasoned argument.”19. Again as stated in Bullen & Leake and Jacobs Precedents of pleading (12th Edition) at 145: -“a pleading or action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense.”

12. The 2nd Respondent maintains that there is no reasonable cause of action in the Complaint.

The Complainant’s Response to the Preliminary Objection and the Application 13. It is the Complainant’s contention that the PO is defective as it raises issues of facts as opposed to pure grounds of law that cannot be disposed by way of a preliminary objection, and that the Tribunal should be guided by the decision in the Mukisa Biscuit Case.

14. With respect to the invitation to the Tribunal to consider whether the instant dispute should be filed elsewhere, the Complainant contends that the Tribunal cannot ascertain the correct position until it interrogates the pleadings filed and the evidence, and that in the circumstances, there are no pure points of law that justify the PO. Similarly, the Complainant submits that the question as to whether the Complaint raises any triable issues or whether there is a cause of action are also not within the scope of a PO. The Complainant accordingly maintains that there is no proper PO and the PO must fail.

15. With respect to the application, the Tribunal was invited to consider the essence of Regulation 9 of the Procedure Regulations and appreciate that it is evidentiary and the failure to file the Affidavit was a mistake by counsel and should not be the sole basis for striking out the Complaint given that the Complainant has since presented an Affidavit, and that the Tribunal should focus on substantive justice. In this regard, the Complainant relied on the case of R vs. Nairobi City County Assembly (2017) eKLR, where the court stated that the fact that a party makes a mistake does not mean that they should be driven from the seat of justice without hearing complaint on merit.

16. With respect to the allegation that the Complainant is not a member of the party, the Complainant avers that he is an active member of the CPK and he did not resign from being a member one week after filing this Complainant as alleged by the Interested Party vide a letter dated 2nd February 2023. He claims that the allegation that he resigned through an SSD code on 31st December 2022 should be disregarded as there was no disclosure of; the SSD code used; the phone that dialled the SSD code; the service provider of the phone number used; and the phone number used.

17. He claims that the written notice from the Office of the Data Protection Commission on complaints about illegal entries in the Party’s membership register and the alleged resignation are clear indications that people are being given illegal access to the membership register, and this showed the extent that the Respondents were willing to go to avoid being held accountable for mismanaging the Communist Party’s Affairs.

18. The Complainant submits that striking out pleadings is a drastic and draconian remedy that should only be resorted to only where a pleading is a complete sham. He relied on the Court of Appeal case in Blue Shield Insurance Company Lt v Joseph Mboya Oguttu (2009) eKLR.

19. He further submits that the power to strike out a pleading, which ends in driving a party from the judgement seat, should be used very sparingly and only in cases where the pleading is shown to be clearly untenable, and that if a litigant shows a bona fide triable issue, he/she must be allowed to present their case, including amending, without conditions. He relied on Sausi Arabia Airlines Corporation v Premium Petroleum Company Limited (2004) KLR as well as Sultan Hardwares Limited v Steel Africa Limited [2011] eKLR, and prays that this Tribunal dismisses the Notice of Motion application dated 22nd January, 2023 and the Notice of Preliminary Objection dated 21st January, 2023 with costs and set the matter down for hearing on merits.

Analysis and Determination 20. We have considered the PO and the Application and identified two key issues for determination:i.Whether the PO should be upheld?ii.Whether the Application is merited?ii.Who bears the costs in the cause?

Whether the PO should be upheld? 21. As we consider the PO raised herein, we are guided by the judicially underscored definition of a preliminary objection as was discussed in the case of Charles Onchari Ogoti v. Safaricom Ltd & anor [2020]eKLR as follows:“[9]This court is aware of the leading decision on Preliminary Objections where he Court of Appeal for East Africa, then the highest court for purposes of this jurisdiction and the others in East Africa in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696, where Law J.A. and Newbold P. (both with whom Duffus V-P agreed), respectively at 700 and 701, held as follows:Law, JA.:“So far as I am aware, a Preliminary Objection consists of a pure 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 on 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.”Newbold, P.:“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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.”[10]The Supreme Court of Kenya, now the highest court in the land has broadly confirmed, and extended, the nature and scope of Preliminary Objections in cases discussed below, and its decision thereon is binding on this court and all courts below it by virtue of Article 163 (7) of the Constitution of Kenya 2010. [11]In case cited by the 1st Respondent, David Nyekorach Matsanga & Another v. Philip Waki & 3 Others [2017] eKLR, the three-judge bench of the High Court (Lenaola, J. (as he then was), Odunga and Onguto, JJ.) after considering various holdings of the Supreme Court of Kenya on question of Preliminary Objection held as follows:“We quickly turn to the question whether we have before us a Preliminary Objection proper. Traditionally, the case of Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors Ltd [1969] EA 696has been the watershed as to what constitutes Preliminary Objections. The Court of Appeal in Nitin Properties Ltd v. Singh Kalsi & another [1995]eKLR also captured the legal principle when it stated as follows:“A Preliminary Objection 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 has to be ascertained or if what is sought is the exercise of judicial discretion.”In Hassan Ali Joho & another -v- Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR the Supreme Court stated 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”

22. As we have already highlighted above, the PO by the 1st Respondent raises eight grounds of objection. It is submitted, inter alia, that the Complainant is not a member of the party; that the Complaint violates Regulation 9 of the PPDT (Procedure) Regulations; and that the Complaint concerns issues that should be addressed either by the Ethics & Anti-Corruption Commission, the Data Commissioner, the Employment Court or the Office of the Registrar of Political Parties.

23. On the question of party membership, the documents that were filed by the parties and the submissions thereon make it evident that it is a heavily contested factual issue that requires ascertainment. Similarly, the issues revolving around the factual circumstances of the dispute, and the appropriate dispute resolution fora, amongst others, are similarly contested and are yet to be ascertained.

24. In consideration of the foregoing judicially underscored definition of a preliminary objection as broadly discussed in the aforementioned case of Charles Onchari Ogoti v. Safaricom Ltd & anor [2020] eKLR, and the facts and circumstances of this case, we are of the opinion that the PO is not a proper PO as defined in the above decisions as it revolves around numerous contested issues that require ascertainment. Therefore, we overrule the same.

Whether the Application is merited? 25. Turning to the Application, we note that the power to strike out pleadings is discretionary and must be exercised judicially. In The Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa (Civil Appeal No. 54 of 1999) the Court of Appeal stated:Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.

26. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus:A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.

27. Similarly, in D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another [1980] eKLR, Madan JA, stated:No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.

28. We have considered the Complaint, the application and the supporting grounds as well as those in opposition. We have also considered submissions by the parties including the decisions that they have relied upon. It is the Tribunal’s opinion that the Complaint as framed does not outrightly present itself as frivolous or vexatious. There are allegations of resignation by the 2nd Respondent as Chairperson and his continued execution of the functions of the office without any reinstatement process being conducted; complaints about illegal entries in the Party’s membership register; various alleged irregularities in the Party’s operations which violate the law and raises concerns regarding the Party’s integrity and dignity; alleged failure by the County Committees to hold meetings or elections; failure to ratify the Party’s Women League by the National Congress; the unresolved issues of the Young Communist League; amongst other allegations. These allegations give rise to triable issues as defined in Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another [2009] eKLR, where the court opined that a triable issue is one that is bona fide in nature and not one which the defendant will ultimately succeed on. In Postal Corporation of Kenya v I .T Inamdar & 2 Others [2004] 1 KLR 359, the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend. In essence, whether the Complaint is merited and/or whether the Respondents are liable for the irregularities alluded to by the Complainant, are all issues that can only be determined after hearing the parties.

29. In addition, the fact that the Complainant did not attach an Affidavit is not, in our view, a compelling ground for striking out the Complaint. The Affidavit can be filed and parties given an opportunity to respond thereto without prejudicing the rights of any of the parties, whilst at the same time upholding substantive justice. This is an issue that can be resolved and we note that the Complainant annexed a draft of the Affidavit thereof. This reason given by the 2nd Respondent for seeking to strike out the Complaint is thus not persuasive.

30. Applying the principles in the decisions cited above to the present circumstances and the application before this Tribunal, we conclude that the application lacks merit and is hereby dismissed.

Who bears the costs in the cause? 31. As regards costs which are ordinarily supposed to follow the event, we are of the considered view that the circumstances of the case require each party to bear its own costs in the interest of fostering party unity.

Disposition 32. In light of the foregoing, we make the following orders:-i.That the Preliminary Objection dated 21st January 2023 be and is hereby overruled.ii.That the Notice of Motion Application dated 22nd January 2023 be and is hereby dismissed.iii.That each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF FEBRUARY 2023. DESMA NUNGO…… ………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………….(MEMBER)RUTH WAIRIMU MUHORO………………………………...(MEMBER)