[2023] KEPPDT 1261 (KLR)

Shiraku v Maendeleo Democratic Party; Independent Electoral and Boundaries Commission & 2 others (Interested Parties) (Complaint E001 (KKG) of 2023) [2023] KEPPDT 1261 (KLR) (6 April 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1261 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (KKG) of 2023

G. Gathu, Presiding Member, S Musau & T. Chepkwony, Members

April 6, 2023

Between

Scholastic Ngina Shiraku

Complainant

and

Maendeleo Democratic Party

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

The Speaker, County Assembly of Kakamega

Interested Party

Registrar of Political Parties

Interested Party

Ruling

Introduction 1. The Complainant/Applicant filed an application dated 11th February 2023 in which she prayed for various orders which are reproduced herein verbatim: -1. Spent.2. That pending the hearing and determination of this application inter partes, an order of temporary injunction do issue restraining the 1st and 2nd Interested Parties from degazetting and declaring the Applicant’s seat vacant as a member of the county assembly of Kakamega.3. That pending the hearing and determination of this complaint an order of status quo do issue restraining the degazettement and declaration of the position of the complainant as a member of the county assembly of Kakamega by the 1st and 2nd Interested Party respectively.4. That an order to be issued to the 3rd Interested Party to submit to this honourable court the status of the complainant as per the time of her nomination as the Member of County Assembly of Kakamega.5. That any other order that this tribunal deems fit in the interest of justice be made.6. That the costs of this application be provided for.

2. The application was supported by the affidavit of the Complainant annexed to the application. The Complainant also filed a supplementary affidavit sworn on 8th March 2023.

3. In response to the Complainant’s application, the Respondent filed a Replying Affidavit sworn by the Joseph Amisi Omukanda on 8th March 2023. The 3rd Interested Party also filed a Replying Affidavit sworn by Joy Onyango on 8th March 2023. The other parties did not file any responses to the application.

4. The application was canvassed by way of written submissions. The Complainant filed submissions dated 15th March 2023. The 3rd Interested Party filed submissions dated 21st March 2023 and the Respondent filed submissions dated 30th March 2023.

The Complainant/Applicant’s case 5. The Complainant/Applicant’s case in summary is that she is a bona fide member of the 1st Respondent. She was nominated to the County Assembly of Kakamega by the 1st Respondent under the “gender top up” category.

6. She alleges that she has never resigned from the 1st Respondent and any allegation to the contrary is false. She also denies having been served with an invitation to attend a disciplinary meeting that was held on 5th November 2022. The meeting purported to arrive at a decision to revoke her nomination to the County Assembly of Kakamega due to gross misconduct.

7. The Complainant/Applicant therefore seeks that the 1st and 2nd Interested Parties be restrained from replacing her as a member of the County Assembly of Kakamega.

The Respondents’ Case 8. The Respondent’s case is that the Complainant/Applicant was nominated to the County Assembly of Kakamega under the “Gender Top Up” category. The Respondent then wrote to the 3rd Interested Party vide a letter dated 31st August 2022 seeking to find out the party membership status of various of its nominees. The 3rd Interested Party responded vide a letter dated 31st August 2022 in which it indicated that the Complainant was a member of the Party of Democratic Unity.

9. The Respondent subsequently instituted measures to replace the Complainant, as its nominee, with other names by writing a letter to the 1st Interested Party dated 1st September 2022 and a reminder letter dated 15th September 2022.

10. The Respondent then issued the Complainant with a Notice to Show Cause Letter dated 23rd September 2022 which the Complainant responded to vide her letter dated 26th September 2022. The Respondent also wrote another letter dated 5th October 2022 inviting the Complainant to respond to charges of being disloyal to the Respondent. The Complainant responded to this letter vide her letter dated 14th October 2022.

11. The Respondent invited the Complainant to a disciplinary meeting that was to be held on 5th November 2022. The invitation was vide a letter dated 22nd October 2022 which the Respondent alleges was served personally upon the Complainant and also vide WhatsApp. The Complainant never attended the meeting of 5th November 2022. At the meeting, a decision was made to revoke her nomination to the County Assembly of Kakamega. This decision was communicated to the Complainant vide a letter dated 16th December 2022 that was also copied to the 1st, 2nd and 3rd Interested Parties. The Respondent also separately wrote to the 1st and 2nd Interested Parties informing them of its decision.

12. The Respondent therefore seeks that the Complainant/Applicant’s application be dismissed as it followed due process in revoking her nomination as a member of the County Assembly of Kakamega.

The 3 rd Interested Party’s case 13. The 3rd Interested Party’s position is that at the time the name of the Complainant/Applicant was submitted to the 1st Interested Party, as the Respondent’s nominee to the County Assembly of Kakamega, the Complainant was a member of the Respondent. As such, the 3rd Interested Party seeks that the present application be allowed as prayed.

Issue for Determination 14. The Tribunal frames the issue for determination as whether the Applicant has met the threshold for grant of the injunctive relief that she seeks.

Analysis and Findings Has the Applicant met the threshold for the injunctive relief that she seeks? 15. In deciding whether or not to grant injunctive relief, this Tribunal is guided by the principles set out in the locus classicus,Giella vs Cassman Brown[1973] E.A 358. The principles are that the Applicant has to show a prima facie case with a probability of success; the Applicant should also show that she will suffer irreparable harm that cannot be compensated by way of damages unless the injunctive relief is granted; and lastly if the Tribunal is in doubt as to the irreparable harm, it should decide based on the balance of convenience.

16. What then is a prima facie case and has the Complainant demonstrated that she has a prima facie case? In Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others (2003)eKLR the court described a prima facie case as:-“…..in civil cases, it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party as to call for an explanation or rebuttal from the latter”

17. Has the Applicant demonstrated a prima facie case? The Tribunal notes that the Complainant alleges that she was never invited for the disciplinary hearing of 5th November 2022. On the other hand, the Respondent states that the Complainant was served with the letter dated 22nd October 2022 inviting her to the disciplinary meeting personally and vide WhatsApp. This is as per paragraph 14 of the Replying Affidavit of Joseph Amisi Omukanda sworn on 8th March 2022. A perusal of the affidavit of service marked as annexure JAO12 to the aforesaid Replying Affidavit however does not state that the Complainant was vide WhatsApp. It only states that she was served personally. She disputes this personal service.

18. The decision to revoke the nomination of the Complainant was taken at the disciplinary meeting of 5th November 2022 which the Complaint alleges that she failed to attend as she was never invited. If this is indeed the position, it would render as null and void any decision taken at the said meeting.

19. Moreover, the 3rd Interested Party has confirmed that at the time the 1st Respondent submitted the name of the Complainant/Applicant as its nominee to the “Gender Top Up” category in the County Assembly of Kakamega, the Complainant/Applicant was a member of the 1st Respondent. The Tribunal has also taken note of the Complainant’s allegation of alteration of her records relating to membership of various parties without her consent and the letter dated 9th December 2022 from the 3rd Interested Party addressed to the Respondent giving a chronology of the membership of the Complainant/Applicant to various parties. As the suit is yet to be heard, we shall say no more on that. Indeed, we are guided by the case of Airland Tours & Travels Ltd Vs National Industrial Credit Bank, Milimani High Court Civil Case No.1234 of 2002, where the Court held as“In an interlocutory application, the court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory affidavit evidence or disputed provisions of the law.”

20. It suffices to state that we are of the opinion that in the circumstances, the Complainant/Applicant has established a prima facie case.

21. “On the issue of irreparable harm, the Tribunal notes that the Complainant/Applicant has not made any attempt to demonstrate the irreparable loss that she will suffer if she is not granted the injunctive relief that she seeks. Indeed, none of the parties submitted on this crucial issue. The Tribunal is also doubtful as to whether the Complainant will suffer any loss that cannot be compensated by way of damages if the injunction is not granted. In the circumstances, the Tribunal will consider the balance of convenience guided by the decision of the Court of Appeal in Esso Kenya Ltd v Mark Makwata Okiya[1992] eKLR where it was held that:-“The Court ought to look at the allegations in the affidavits by the plaintiff and the defendant and weigh them whether there is a possibility of the plaintiff succeeding or whether there is a possibility of quantifying damages. Only in cases of doubt the Court will proceed on the basis of the balance of convenience while being aware that formal evidence will be adduced at the hearing.”

22. On the limb of the balance of convenience, the Tribunal finds that the balance of convenience tilts in favour of the granting of injunctive relief to the Complainant, taking judicial notice of the process of nomination of a member of a County Assembly and the fact that this Tribunal is bound to hear and determine this matter within three months from the date that it is lodged. 23. In the circumstances, the Tribunal is minded to grant injunctive relief to the Complainant. The Tribunal decries the inelegant drafting of the prayers sought in the present notice of motion application. Be that as it may, guided by the overriding objectives as set out in sections 1A and 1B of the Civil Procedure Act and Article 159(2) (d) of the Constitution of Kenya 2010, the Tribunal allows the Notice of Motion application dated 11th February 2023 only in the following terms:-i.The 1st and 2nd Interested Parties be and are hereby restrained from degazetting the nomination of the Complainant to the County Assembly of Kakamega or from declaring the Complainant’s seat or position in the County Assembly of Kakamega as vacant pending the hearing and determination of this Complaint.ii.Costs shall be in the cause.

DATED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF APRIL 2023GAD GATHU - (PRESIDING MEMBER)STEPHEN MUSAU -(MEMBER)THERESIA CHEPKWONY -(MEMBER)