[2022] KEPPDT 1031 (KLR)

Samoel v United Democratic Alliance (Complaint E115 (NRB) of 2022) [2022] KEPPDT 1031 (KLR) (29 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1031 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E115 (NRB) of 2022

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

September 29, 2022

Between

Philemon Kipkogei Samoel

Complainant

and

United Democratic Alliance

Respondent

Judgment

1. The Complainant is a member of the Respondent. He claims he offered himself to vie for the position of Governor, Trans Nzoia County and paid the nomination fee of Kshs 500,000. He spent a lot of his money in mobilizing his candidature and popularizing the party. The nomination was scheduled for April 14, 2022 but did not take place. The complainant submits that the Respondent misled him to spend money popularizing his candidature yet the Respondent knew they would not conduct nomination.

2. It is the Complainant’s further contention that he has made several complaints to the Respondent’s internal dispute resolution mechanism requesting for a refund of his nomination fees with no avail. He attached two letters dated May 25, 2022 and July 18, addressed to the Respondent.

3. The Complainant accordingly seeks the following reliefs from this Tribunal:-i.An Order directing the refund to the Claimant by the Respondent nomination fees of Kenya Shillings Five Hundred Thousand (Kshs 500,0000).ii.Costs of this suit and interest thereoniii.Such other or further relief as this Honourable Tribunal may deem just to grant.

The Response 4. The Respondent neither entered appearance nor filed a response in these proceedings despite service. The Respondent did not appear before the Tribunal on September 23, 2022 when the Complaint came us for hearing. This is notwithstanding the fact that a hearing notice had been duly served upon them.

Analysis and determination 5. Flowing from the pleadings and submissions, we have isolated the following issues for determination:-i.Whether the Tribunal has Jurisdiction to hear and determine this matter.ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to grant.

Whether the Tribunal has Jurisdiction to hear and determine this matter. 6. Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that are brought before it. Without jurisdiction, any orders made by this Tribunal amount to a nullity ab initio.

7. The place of jurisdiction in law is well settled as was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989], where Nyarangi J A held 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

8. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011 (the PPA), 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 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.

9. The instant Complaint being one arising from nominations, Section 40(2) of the PPA requires that the Complainant adduces evidence of an attempt to subject the dispute to the Respondent’s IDRM prior to moving the Tribunal.

10. The Tribunal has to scrutinize whether it has been demonstrated that there was an attempt made by the Complainant to subject the dispute to the Respondent’s IDRM. The Complainant has adduced as evidence letters dated May 25, 2022 and July 18, 2022 addressed to the Respondent in an attempt to have the dispute subject hereof addressed by the party. However, the Respondent did not respond to the Complainant’s letters.

11. We are of the considered opinion that the Respondent should have at the very least responded to the letter. Such was the consideration of the Court of Appeal in the case of Samuel Kalii Kiminza v Jubilee Party & Another[2017] eKLR, where it was observed as follows: -“… 26. Further, we cannot help but note that the Appellant wrote to the 1st Respondent not once but twice and none of these letters elicited any response from the 1st Respondent. The Appellant is a member of the 1st Respondent having paid the requisite fees. The Appellant had also paid Kshs. 250,000/= in order to be eligible to take part in the nomination exercise for the position of Member of the National Assembly for the Kitui South Constituency. We are therefore of the view that the least that the 1st Respondent could have done, taking into account that the appellant was its member, is to respond to the Appellant’s letters and advise him on the right way to go about the appeal. Having failed to do so we hold that the Appellant was entitled to approach the PPDT and that the PPDT therefore had jurisdiction to hear and determine the matter…”(emphasis ours)

12. In a nutshell, taking into consideration the foregoing, we find that the Complainant has demonstrated that he made an honest attempt at IDRM in vain and that we accordingly have jurisdiction to hear and determine this matter. The Complaint is therefore properly before the Tribunal.

Whether the Complaint is merited and what are the appropriate reliefs to grant? 13. As already highlighted, it is the Complainant’s case that he paid the nomination fee of Kenya shillings five hundred thousand (Kshs 500,000/-) to be nominated as the Governor, Trans Nzoia County. The Complainant has furnished us evidence of the subject payment. He, however, contends that no nominations were conducted. The Respondents were served with processes herein but they neither entered appearance nor filed any defense. In essence, the facts as presented by the Complainant have not been controverted. Noting that there is evidence of payment of the sums claimed and further noting that the facts in respect thereto have not been challenged, we find no reason to disallow the claim. We thus arrive at the conclusion that the Complaint has merit and that the Complainant has proven his case on a balance of probabilities.

What are the appropriate relief in the present circumstances? 14. Having found that the claim has merit, we have no option but to allow the same.

15. Turning to the question of costs, the general rule is that costs follow the event and we find no reason to depart from the same. Accordingly, we award the Complainant costs of these proceedings.

Disposition 16. In light of the foregoing, we order as follows: -i.An Order be and is hereby issued directing the Respondent to refund the Complainant nomination fees of Kenya Shillings Five Hundred Thousand (Kshs 500,0000/-).ii.Costs of these proceedings are hereby awarded to the Complainant.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF SEPTEMBER 2022. DESMA NUNGO(CHAIRPERSON)DR. KENNETH MUTUMA(MEMBER)FLORA M. MAGHANGA-MTUWETA(MEMBER)RUTH WAIRIMU MUHORO(MEMBER)