[2024] KEPPDT 366 (KLR)

Parleto v Nicholas & another; Speaker, County Assembly of Laikipia & 2 others (Interested Parties) (Complaint E001 (NYR) of 2024) [2024] KEPPDT 366 (KLR) (27 March 2024) (Ruling)

Neutral citation: [2024] KEPPDT 366 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (NYR) of 2024

D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members

March 27, 2024

Between

Hon. Lekopien Sammy Parleto

Complainant

and

Lempaira Korkole Nicholas

1st Respondent

Catherine Umija

2nd Respondent

and

Speaker, County Assembly of Laikipia

Interested Party

Orange Democratic Movement (ODM)

Interested Party

The Clerk, County Assembly of Laikipia

Interested Party

Ruling

1. The 1st and 2nd Respondents have filed a Notice of Preliminary Objection dated 28th February 2024 (hereinafter referred to as the Respondents’ Objection), and they object to the jurisdiction of this tribunal to hear and determine this Complaint, on the following grounds, that: -i.That the Complaint and Application are non-suited for failure to exhaust mandatory preliminary dispute resolution mechanisms available within the 2nd Interested Party’s Constitution.ii.That the Complaint and Application offend the mandatory provisions of Section 40(2) of the Political Parties Act.iii.That the Application is non-suited and fatally defective as drawn.iv.That the Complainant and application are otherwise an abuse of the Court process

2. In support of the Respondents’ objection, the 1st and 2nd Respondents relied on two Further Affidavits sworn by Anthony Moturi on 6th March 2024 and 15th March 2024 where he deposes as follows: -i.That he has never been a Director of ODM as alleged, but has been the Legal Officer of Parliamentary and Legal Affairs Liaison Officerii.He received a call from the Complainant on 20th February 2024. However, there was no mention of invocation of IDRM. The Complainant wanted a letter done to Laikipia County Assembly seeking to stop the County Assembly from conducting its business for the day. He advised the Complainant that he had no such powers and did not undertake to do any letter.iii.That the instant case is one between members of the same political party and for this tribunal to assume jurisdiction, the Complainant should demonstrate that he attempted IDRM, or that his attempt at IDRM was frustrated by the partyiv.That IDRM in the party is invoked by formal communication of nature of dispute and disputants and not by random text messagev.That no email was sent to the party on the dispute.vi.The email purportedly sent on 20th February 2024 could not have been delivered to the party as the email address used did not belong to the party.

The 1st and 3rd Interested Party’s Preliminary Objection 3. The 1st and 3rd Interested Parties have, similarly, filed a Notice of Preliminary Objection dated 28th February 2024 (hereinafter referred to as the Interested Parties’ Objection), seeking to strike out the Complaint and application on grounds that: -i.That the dispute or complaint before this Honourable Tribunal is between members of the same political party.ii.That this tribunal cannot be the first port of call for the Applicant in the event that he was truly aggrieved by the decision of the members of the same political party.iii.That this tribunal is bereft of jurisdiction to entertain, preside over and or determine the issues as presented vide both the Application and the Complaint since the Complainant has not exhausted the clear and established Internal Dispute Resolution Mechanisms of its political party contrary to Section 40(2) of the Political Parties Act.iv.That the Complaint and Application are an abuse of the court process, fatally and irredeemably incompetent, and a proper candidate for dismissal and or striking out with costs.

4. In support of their Preliminary Objection, the 1st and 3rd Interested Parties relied on the Further Affidavit sworn by Hon. Lantano Labaala on 7th March 2024, and they raise the following issues: -i.That the Complainant has admitted at paragraph 1 (iii) of his Grounds of Opposition that he did not exhaust IDRM, based on the ground of having no time, which ground does not qualify him for exemption from attempting IDRM.ii.The methods used by the Complainant to demonstrate an attempt at IDRM are not demonstrated to be in accordance with the party constitution and rules as the text messages seem to be informal messages.iii.The Complainant has not demonstrated his attempts to resolve the dispute by formally writing to the 2nd Interested Party.iv.One of the messages show he was invited for a dispute resolution meeting by the alleged County Chair but he chose not to participate.v.In the absence of evidence to demonstrate attempt at IDRM, this tribunal has no jurisdiction to hear and determine the matter.v.The Complainant has not demonstrated any frustration of any attempt at IDRM.

5. The 1st and 3rd Interested Parties relied on the case of Kieru John Wambui & Another vs. Jubilee Party Secretary General, Jubilee Party & 2 Others ComplaintNo. E005 of 2021 (2021) eKLR; and Rachael Nyamai vs Jubilee Party of Kenya & Another (2017) eKLR.

The Complainant’s Response to the Preliminary Objections by the 1st and 2nd Respondents and the 1st and 3rd Interested Parties 6. In opposition to the Respondents’ and the Interested Parties’ Preliminary Objections, the Complainant filed Grounds of Opposition dated 1st March 2024, and he submits that this tribunal has jurisdiction to hear and determine this Complaint. Accordingly, he opposes the Preliminary Objections on the following grounds, that: -i.The Complainant/Applicant attempted to pursue preliminary dispute resolution mechanisms provided under Section 40 (2) of the Political Parties Act.ii.Section 40(2) of the Political Parties Act does not require a party to exhaust the internal political party dispute resolution mechanisms; it only requires evidence of attempt.iii.There was no time to exhaust the 2nd Interested party’s dispute resolution mechanisms as the Complainant was only notified of his removal when the 1st Interested party read the communication in chambers. The Complainant had to seek refuge before this tribunal considering the injustice meted on him.iv.The Objections raised are non-starters, incompetent, frivolous and bad in law, as they are caught in the realm of factual issues that would necessitate calling of evidence, that is, the issue whether the Complainant subjected the dispute to the party’s internal dispute resolution mechanisms is factual and not legal, hence requires adducing of evidence.v.The Preliminary Objection filed by the Respondents is an afterthought as they ignored the Party’s dispute resolution mechanism on raising grievances they have against the Complainant before deciding on his removal, yet they insist selectively that only the Complainant should exhaust them first.

7. In addition to the Grounds of Opposition, the Complainant filed his Further Affidavit sworn on 1st March 2024, where he deposed as follows:-i.The Respondents allegations that this Honourable Tribunal does not have jurisdiction to entertain the instant complaint on grounds that the Complainant did not exhaust the available party’s Internal Disputes Resolutions Mechanisms are misleading.ii.On 19th February 2024, the Complainant received a text message thanking him for attending a meeting from the 2nd Respondent. Upon enquiries, she informed the Complainant that he should not worry. The Complainant was, however, concerned and his frantic efforts to reach the 1st Respondent were futile.iii.On 20th February, 2024 in the morning, the Complainant was informed that the 1st and 2nd Respondents had communicated to the 1st Interested Party that they wanted to remove him from the Position of Leader of Minority despite there being no issues raised against leadership.iv.Upon realizing the developments and considering that the communication was to be made during the session on that day 20th February, 2024, the Complainant decided to reach out to the 2nd Interested Party’s Secretary General Mr. Edwin Sifuna, but he was unreachable on calls. He therefore sent a text message to him notifying him of the dispute.v.The said Secretary General of 2nd Interested Party indicated he was attending a meeting but promised to talk to the 2nd Respondent. The Complainant reached out to him considering his position in the party, and the urgency of the dispute at hand and aware he holds a powerful office that could give a directive and the dispute would have been settled before it escalates further. The 2nd Interested Party’s Secretary General referred the Complainant to one Mr. Tony, the Executive Director, who sits in the National Executive Committee based at the party’s headquarters. He indicated that the Executive Director ‘knows what to do’ to remedy the situation.vi.That at about 11:37am, the Complainant made a call to the ODM Executive Director Mr. Tony, and informed him of the dispute between the Respondents and the Complainant. He asked the Complainant to send the name of the 1st Interested Party (Speaker) and the 2nd Respondent to enable him send a letter to ask them to hold on their actions as the party attempts to resolve its members’ dispute.vii.That by 2:00 pm, the letter was not yet out. The 2nd Interested Party’s Director of Communications was not picking the Complainant’s calls. The afternoon session however was disrupted by members.v.The 2nd Interested party’s National Executive Committee was also informed of the dispute by the Executive Director and they contacted ODM County Chair of Laikipia Mr. Wako Dabaso who had initially refused to pick the Complainant’s calls. On the same day at around 8:24 pm he sent the Complainant a text message inviting him for a meeting to be held on 23rd February, 2024, and the agenda was resolving internal party wrangles. ix. The Complainant also sent an email to the 2nd Interested Party’s head office and copied the county office requesting for a meeting to resolve these internal wrangles but there was no response hence his decision to approach this Honourable Tribunal.x.Despite knowing that the Respondents were out to settle political scores against the Complainant and indeed the letter communicating his removal was already drafted in advance, agents/officials of the 2nd Interested Party frustrated the Complainant’s efforts to have the dispute settled through Internal Dispute Resolution Mechanisms by pushing the meetings to a further date of 23rd February, 2024. Indeed, on 21st February, 2024 at about 11:30 am, the Speaker communicated the Complainant’s removal.

8. The Complainant submits that Article 51 of the 2nd Interested Party’s Constitution provides for establishment of National Executive Committee which shall be the executive organ of the Party and shall be composed of inter alia all the National Officials; and the Executive Director, who shall be an ex-officio member. That pursuant to Article 51 (3)(e), one of the key functions of NEC is to oversee the operations of the ODM Women League, ODM Youth League, ODM Disability League, Party Parliamentary Group, and the County Assembly. The Complainant avers that he has therefore raised this dispute with the 2nd Interested Party organ responsible for overseeing the operations of County Assembly Group.

9. He further submits that under Article 51 (3) (o), the NEC is also tasked to put in place internal dispute resolution mechanisms, appoint the Party’s appeals tribunal and set out their mandate. Having notified the Executive Director of this dispute, NEC ought to have established a dispute resolution mechanism to resolve this dispute.

10. It is the Complainant’s contention that he has used all means possible, given the quick actions of the Respondents as supported by the 1st and 3rd Interested Parties, to ensure that he has triggered the 2nd Interested Party’s internal dispute resolution mechanism in vain. He avers that he brought or subjected the dispute to internal dispute resolution mechanism, with an aim to give the party a good faith chance to resolve it in the first instance but there were so many delays.

11. It is the Complainant’s further submission that the doctrine of exhaustion is not absolute; it bears some exceptions. 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 the tribunal even where his party has not concluded a hearing and a determination of his matter.

12. The Complainant urges this Honourable Tribunal to scrutinize the letter from the 2nd Respondent to the 1st Interested party communicating his removal and read the malice therein considering that the subject letter is dated and was actually drafted on 18th February, 2024, a clear indication that the Respondents had actually made a decision to remove him even before sending a message suggesting a meeting. He adds that the Preliminary Objections are in any event incompetent as they are based on repealed statute.

13. The Complainant relied on the cases of Nchebere & 15 others v National Chairman Orange Democratic Movement & 2 Others (Complaint E002 (NRB) of 2022) [2022] KEPPDT 1064 (KLR); Jeconia Okungu Ogutu & Another v Orange Democratic Movement Party & 5 Others [2017] eKLR; and Odhiambo v Midiwo & 3 Others (Tribunal Case E003 (KSM) of 2022).

Analysis and Determination 14. Flowing from the preliminary objections raised by the 1st and 2nd Respondents, and the 1st and 3rd Interested Parties, the sole issue that arises for determination is,whether this Tribunal has jurisdiction to hear and determine this Complaint.

15. In the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR the court defined jurisdiction as follows:-“It is a truism, jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

16. And in the case ofSamuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Court stated that:-“A Court’s jurisdiction flows from either the Constitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.”

17. Further in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd.(1989)1, the Court stated as follows:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

18. This Tribunal derives its jurisdiction from Article 169 (1) (d) of theConstitution of Kenya as read together with Section 40 of the Political Parties Act, 2011, which provides as follows: -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 nominations2. 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.

19. From the parties’ pleadings and submissions on the preliminary objections, it is not in dispute that the instant Complaint is one between members of the same political party and their political party. In essence, the dispute falls under Section 40(1)(a) and (b) as highlighted above. Section 40(2) expressly provides that the Tribunal shall not hear such disputes unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal dispute resolution mechanism (IDRM) of the political party, in this case the 2nd Interested Party.

20. As already highlighted above, the Respondents and the 1st and 3rd Interested Parties have submitted that this tribunal has no jurisdiction as the Complainant did not comply with Section 40(2) of the PPA. The Complainant, on the other hand, has maintained that he attempted IDRM, but the same was frustrated by the party. He made reference to Article 51 of the party constitution and the text messages of 19th and 20th February 2024 and the email dated 20th February 2024 to demonstrate attempts at IDRM. It is his submission that the law did not require exhaustion of IDRM, and in any event there was no time to exhaust IDRM as he was notified of his removal when the 1st Interested Party read the communication in chambers.

21. What amounts to an attempt at IDRM and/or exceptions thereto were considered in the case of John Mworia Nchebere & Others vs. The National Chairman Orange Democratic Movement & Others (Nrb PPDT Compliant No. E002 of 2022), where the Tribunal held that: -“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive,in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

22. Turning to the facts of this case, the Complainant has in his Further Affidavit referred to text messages exchanged on 19th and 20th February 2024. However, the Complainant produced text messages of 20th February, 2024 and not 19th February 2024. Accordingly, we will focus on evidence before us running from text messages of 20th February 2024. In any event, the Complainant pleaded that he was informed on 20th February 2024 that the 1st and 2nd Respondents had communicated to the 1st Interested Party that they wanted to remove him from the Position of Leader of Minority. We therefore presume that any IDRM relating to the dispute subject hereof could only have been initiated on or after the 20th February 2024 after the Complainant became aware of the same, and we accordingly decline the invitation by the parties to consider any communication prior to 20th February 2024.

23. From our perusal of the text messages of 20th February 2024 marked LSP-A1 to LSPA4 at pages 7 to 10 of the Complainant’s Further Affidavit, we note that the same constitute communication made between the Complainant and Mr. Edwin Sifuna on the one hand, and the Complainant and Mr. Anthony Moturi on the other hand. Considering that Article 86 of the party constitution provides that disputes shall be resolved by way of IDRM prescribed in the party constitution, and further that Article 51 (3)(o) of the party constitution mandates the National Executive Committee (NEC) to put in place IDRM, we are not convinced by the Complainant’s argument that such text messages exchanged between him and the mentioned officials of the political party can be regarded as evidence of an attempt to invoke IDRM under the party constitution. In any event, the text messages under reference make no mention whatsoever of IDRM.

24. We have further considered the email produced by the Complainant to demonstrate an attempt at IDRM, and we note that the same indicates that it was sent on 20th February 2024 at 4. 04pm to the email address info@odm.org, copied to odmlaikipia@gmail.com. The Respondents have filed an Affidavit challenging the email address that was used and claiming that the same was in the circumstances not delivered to the party. We note that the subject factual averments were not controverted by the Complainant. Accordingly, we are left with no option but to stand by the uncontroverted averments by the Respondents that the email was not delivered to the party.

25. Most importantly, even if it is to be assumed that we were wrong in our foregoing observations and that the email was in fact delivered to the party’s correct email address, we note that the Complainant made the request below in the last paragraph of the email: -“…I request that this be treated as urgent and a meeting be convened possibly tomorrow. I have already notified the county co-ordinator and will be happy to attend and iron out these issues…” (emphasis ours)

26. As we had already observed, the subject email produced by the Complainant marked as LSP-A5, is indicated as having been sent on 20th February 2024 at 4. 04pm. It therefore goes without saying that the earliest that the subject email could have been delivered to the party, if at all, was on the 20th February 2024 at 4. 04pm or soon thereafter. The record reflects that this Complaint was filed before this tribunal on the 21st February 2024 barely a day after the subject email was sent to the party. It is also noteworthy that the date that the Complainant filed this Complaint is, as already highlighted above, the same date that the Complainant’s supposed IDRM email requested for a meeting to be convened. We are in the circumstances doubtful that the Complainant genuinely intended to attempt IDRM in the first instance. We state so also bearing in mind that the Complainant has not demonstrated by way of evidence that he made any bona fides attempt to follow up on his email before lodging this Complaint.

27. In the case of John Mworia Nchebere & Others vs. The National Chairman Orange Democratic Movement & Others (Nrb PPDT Compliant No. E002 of 2022), we stated, at para 51, that “IDRM is neither a dress rehearsal, pit stop nor an ornamental provision’ in the Political Parties Act, but serves ‘a functional utility under Article 38 and 159 of the Constitution.

28. Indeed, we have on several occasions underscored that a Complainant does not demonstrate a bona fides attempt at IDRM where the party is not afforded a reasonable time to respond, constitute or activate the IDRM to determine the dispute (Marnanwahto Mary Sarehe v Jubilee Party Meru PPDT Complaint No. E005 of 2022, para 31; Sankei Noonyuatt v United Democratic Alliance & Another Nairobi B Complaint No. E003 of 2022, para 24).

29. We have in addition found that where a complainant uses a letter to trigger IDRM but makes no good faith attempt to follow up or pursue the matter and seek a resolution of the dispute, this tribunal will not be seized of jurisdiction (Josephine Wairimu Kinyanjui vs Pamoja African Alliance Party & Another Mombasa Complaint No E006 of 2022; Sankei Noonyuatt v United Democratic Alliance & Another Nairobi B Complaint No. E003 of 2022; Njelekela Ashura Michael v ODM & Another Nairobi A Complaint No. 130 of 2022).

30. Taking into consideration the circumstances of this case and the findings in the above judicial authorities, we are not persuaded by the Complainant’s submission that he brought or subjected the dispute to IDRM with an aim to give the party reasonable time to resolve the dispute in the first instance and there were inordinate delays. It is our considered opinion that the Complainant has not demonstrated a bona fides attempt to have the party resolve the dispute in accordance with the party constitution.

31. We have further considered that the Complainant has not demonstrated that the party’s IDRM was inaccessible and/or inoperative, or that he was frustrated by the party’s IDRM, to warrant any exemptions to IDRM. In other words, none of the exemptions to IDRM as outlined in the John Mworia Nchebere Case(supra) have been sufficiently demonstrated by the Complainant in this case.

32. It is therefore our finding that the party was not afforded reasonable time and/or opportunity to respond or constitute IDRM. Accordingly, the Preliminary Objections that have been raised by the Respondents and the 1st and 3rd Interested Parties are merited. This Complaint is premature before us and is thus for striking out.

33. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

Disposition 34. In light of the foregoing, we order as follows: -i.That the 1st and 2nd Respondents’ Preliminary Objection dated 28th February 2024 and the 1st and 3rd Interested Parties’ Preliminary Objection dated 28th February 2024 be and are hereby upheld.ii.That the Complaint herein be and is hereby struck out in its entirety.iii.Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 27TH DAY OF MARCH 2024. CHAIRPERSON-------------------------------HON. STEPHEN MUSAU MEMBER…………………………………………..HON. MUZNA JIN MEMBER………………………………………………HON. ABDIRAHMAN ADAN ABDIKADIRMEMBER