[2023] KEPPDT 1350 (KLR)

Shiraku v Maendeleo Democratic Party; Independent Electoral and Boundaries Commission & 2 others (Interested Parties) (Complaint E001 (KKG) of 2023) [2023] KEPPDT 1350 (KLR) (16 May 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1350 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (KKG) of 2023

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

May 16, 2023

Between

Scholastic Ngina Shiraku

Complainant

and

Maendeleo Democratic Party

Respondent

and

Independent Electoral And Boundaries Commission

Interested Party

Speaker, County Assembly Of Kakamega

Interested Party

Registrar of Political Parties

Interested Party

Judgment

Introduction 1. The Complainant filed a Complaint dated 11th February 2023 in which she seeks the following prayers -1. A declaration that the proceedings of 5/11/2022 were illegal and hence a nullity as it offended her inherent rights and was against the principles of natural justice and in express violation of sec 14(7) of Political Parties Act and article 50(1) of the constitution.2. A declaration that the 1st, 2nd and 3rd Interested Parties be restrained from acting on the decision of 5/11/2022 contained in the letter dated 16/12/2022. 3.Costs of the suit.

2. The Respondent on its part is opposed to the Complaint. It filed a Response dated 24th April 2023.

3. The 3rd Interested Party in its part filed an affidavit detailing the Complainant’s membership in various political parties from the year 2017 to date.

4. The 1st and 2nd Interested Parties did not participate in these proceedings.

5. Pursuant to the parties’ request, the Tribunal issued directions that the matter would proceed via viva voce evidence with the hearing taking place on 9th May 2023. On the said date, two witnesses testified in support of the Complainant’s case while the Respondent and the 3rd Interested Party called one witness each.

The Complainant’s case 6. The Complainant testified as CW1. She stated that she is a member of the Respondent which she joined on 23/03/2022 having left the Orange Democratic Party. The Respondent subsequently nominated her to the County Assembly of Kakamega. Thereafter an election Petition No. E001 of 2022 was filed at the Chief Magistrate’s Court in Kakamega by one Geoffrey Oprong Etiang seeking the Complainant’s removal from the County Assembly of Kakamega. She stated that the petition alleged that she had quit the Respondent at the time she was nominated. The Petition was later withdrawn.

6. CW1 stated that she was served with show cause letters dated 26/09/2022 and 5/10/2022 which she duly responded to. She also stated that she never attended the disciplinary hearing on 05/11/2022 as she was never invited for the same.

7. On cross examination by Counsel for the Respondent, in summary, CW1 stated that she quit the Orange Democratic Movement on 11/03/ 2022 vide a letter dated the same date. She joined the Respondent on 21/03/ 2022 and started paying subscription fees on 23/03/2023. She also confirmed that she had indicated in her supplementary affidavit sworn on 8/03/2023 that she had received the letter dated 22/10/2022. She also confirmed that she knew one Claire Jimmy as an Office Assistant in the Respondent.

6. On cross examination by Counsel for the 3rd Interested Party, CW1 indicated that she had sent her particulars to the office assistant of the Respondent. The particulars included her national identity card, academic certificates and her late husband’s death certificate.

7. On re-examination, CW1 stated that she was never invited for any disciplinary meeting and she does not know of anyone who sat in the disciplinary meeting. She also indicated that she knew that Claire Jimmy was to be substituted as the Petitioner in election Petition No. E001 of 2022. She also indicated that she was aware that the said election petition was dismissed on 9th December 2022 with costs and that the Chief Party Leader of the Respondent was present in court on the said date.

8. CW2, Geophry Ambale testified that he is a member of the County Assembly of Kakamega. He testified that he knew the Complainant and that she was involved in the campaigns as part of the Respondent’s campaign team. He further testified that after the elections, the Complainant was nominated to the County Assembly of Kakamega. CW2 stated that he had nothing to say on the removal of the Complainant from the Respondent and he had not received any communication from the Respondent to that effect.

9. On cross examination by Counsel for the Respondent, CW2 stated that he had no knowledge of the operations of the Respondent.

The Respondents’ Case 10. Joseph Amisi Omukanda testified on behalf of the Respondent as RW1. He stated that he was the Chief Party Leader of the Respondent. RW1 further stated that he knew the Complainant very well. It was RW1’s testimony that the Complainant approached him in April 2022 seeking to join the Respondent. The Complainant went to RW1’s offices in Nairobi located at Kiwi Apartments office number 705 where she registered as a member of the Respondent. RW1 also introduced the Complainant to one Claire Jimmy.

11. RW1 stated that she paid membership fees on behalf of the Complainant and also gave her the Respondent’s constitution and strategic plan each of which cost Kshs. 3,000/-. RW1 also issued the Complainant with a registration book with 50 leaves each of which cost Kshs. 2,000/-. RW1 further stated that he wrote a letter dated 31/08/2022 to the 3rd Interested Party seeking to know the membership status in political parties of the Respondent’s nominees. The 3rd Interested Party responded to the Respondent’s letter vide a letter dated 31/08/2022 which indicated that the Complainant had moved from the Respondent to the Party of Democratic Unity.

12. RW1 wrote to the 1st Interested Party vide letters dated 01/09/2022 and 15/09/2022 informing the 1st Interested Party of the status of the Complainant. The 1st Interested Party never responded to the letters. RW1 issued show cause letters dated 22/09/2022 and 5/10/2022 to the Complainant which the Complainant responded to vide her letters dated 26/09/2022 and 14/10/2022. RW1 further stated that she wrote to the Complainant vide a letter dated 22/10/2022 inviting the Complainant for a disciplinary meeting. RW1 stated that the letter dated 22/10/202 was sent to the Complainant via WhatsApp and also served personally upon her, through a process server.

13. RW1 further stated that he was aware of the various methods through which one could resign from a political party including writing a letter or through a USSD code. RW1 stated that the Complainant was not a member of the Respondent.

14. On cross examination by Counsel for the Complainant, RW1 stated that he was not a custodian of the records of the Party of Democratic Unity. He also stated that the records at the 3rd Interested Party may not be entirely accurate. RW1 further stated that he did not have any evidence of service of the letter dated 22/10/2022 vide WhatsApp as his phone had been stolen. He had used a process server based in Nairobi to serve the letter. RW1 also confirmed that Claire Jimmy was to be substituted as the petitioner in election petition No. E009 of 2022 after the Petitioner in that petition applied to withdraw the petition.

15. On cross examination by Counsel for the 3rd Interested Party, RW1 indicated that although he did not attend the training by the 3rd Interested Party on the USSD code, he had nominated someone whom he could not remember to attend on behalf of the Respondent. He further stated that he had been briefed on how the USSD code system works. He further confirmed that one Clair Jimmy had submitted the party list to the 3rd Interested Party on his behalf and that the Complainant’s name was in that list.

16. On re-examination, RW1 indicated that he was not aware of any complaint against Claire Jimmy over the use of the USSD code. RW1 also stated that there was an error on the affidavit of Joy Onyango sworn on 18/04/2023 which error concerned the use of the USSD code. He also indicated that the election petition No. E009 of 2022 was not heard on merit.

The 3rd Interested Party’s case 17. Joy Onyango testified as 3IPW1. She stated that the 3rd Interested Party is the custodian of the records of Political Parties. 3IPW1 stated that the 3rd Interested Party had put in place an Integrated Political Parties Management System (IPPMS) which could be accessed through the e-citizen platform, a web based link or the Unstructured Supplementary Service Data (USSD) code *509#. 3IPW1 testified that for one to access the USSD code service, one needs a registered mobile phone number and a national identity card number. 3IPW1 further stated that one can resign from a political party through the USSD code service. She further indicated that there was an error in her affidavit sworn on 18/04/2023 as the USSD service was not in place in 2017.

18. On cross examination by Counsel for the Complainant, 3IPW1 stated that if someone has access to a national identity card number, they can use the details to resign from a political party on the USSD service but on registration, it has to be done by the political party. She also indicated that the Complainant resigned from the Orange Democratic Party on 20/03/2017 manually.

19. On cross examination by Counsel for the Respondent, 3IPW1 stated that she had not provided any logs to show the number that was accessing the system. She also indicated that if Claire Jimmy did not have the Complainant’s details on 25/03/2022 then she could not have accessed the system.

20. On re-examination, 3IPW1 stated that IPPMS holds all information as regards Political Parties and that it can be accessed through the short code *509#.

Issue for Determination 21. Having considered the parties’ respective pleadings and testimony, the Tribunal frames the issue for determination as below:-i.Whether the Complainant resigned from the Respondent.ii.Whether the Complainant was invited for the disciplinary meeting held on 5/11/2022.

Analysis and Findings Whether the Complainant resigned from the Respondent. 22. The question of the resignation, or otherwise, of the Complainant from the Respondent is at the heart of this Complaint and indeed the basis upon which the Respondent instituted disciplinary action against the Complainant.

23. The Complainant is of the position that she has never resigned from the Respondent. She claims that she would have no reason to being a nominated member of the County Assembly through the Respondent. The Respondent on the other hand claims to have relied on records supplied by the 3rd Interested Party in arriving at the conclusion that the Complainant was no longer its member and as such, instituting disciplinary action against her.

24. One Claire Jimmy is a person of interest in the events herein. Though she was listed as a witness, she was not present in court on 09/05/2023 when the matter came up for hearing. This was in spite of the Tribunal’s direction that the matter would proceed for hearing physically at Kakamega Law Courts. Though there was an indication from Counsel for the Respondent that she was available to testify virtually, no arrangements had been put in place to take virtual evidence in view of the Tribunal’s direction as to a physical hearing where the matter would be heard viva voce. The Tribunal was also mindful of the statutory timelines within which this matter should be heard and concluded. It was therefore not open to adjourning the matter.

25. Claire Jimmy is said to be an office assistant in the 1st Respondent. It is not in contention that the phone number 0719307218 that was variously used to resign the Complainant from various political parties is registered in her name. Claire Jimmy is also well known to the Complainant and to the Chief Party Leader of the Respondent(RW1). Indeed, it is RW1 who is said to have introduced the Complainant to the said Claire Jimmy.

26. RW1 also confirmed that Claire Jimmy filed an application to be substituted as the petitioner in Kakamega Chief Magistrate’s Court election petition number E009 of 2022 when the Petitioner therein sought to withdraw the Petition. The Complainant also claimed that the said Claire Jimmy was next in line to be nominated in her place should the Complainant’s nomination be revoked.

27. In pursuance of its functions under section 34 of the Political Parties Act 2011, the 3rd Interested Party has put in place the IPPMS. From the testimony of 3IPW1, it is clear that there is a loophole in the IPPMS which can be exploited to register a mobile phone number belonging to one individual on the IPPMS and link it with the national identity card number of another individual. One can then use the mobile phone number to alter the records in the IPPMS as relates to the membership of the other individual in a political party without their knowledge. This loophole and other gaps in the records of the 3rd Interested Party as relates to Political Parties is something that the 3rd Interested Party should address urgently as a matter of serious concern.

28. All factors considered and on a balance of probability, the Tribunal is clear that this is what may have happened in this case. The said Claire Jimmy had access to the national identity card of the Complainant. The registration of the mobile phone number 0719307218 to the said Claire Jimmy is also not disputed.

29. The Tribunal appreciates the contention that the number was not registered to the said Claire Jimmy in 2017 when it was purportedly used to resign the Complainant from the Orange Democratic Party. However, the Tribunal finds the 3IPW1’s explanation that clause 4(i) of her affidavit sworn on 18/04/2023, as to the resignation of the Complainant from ODM through the USSD code is erroneous, as plausible. This is because it is not in contention that the USSD code was not in place in 2017 and the Complainant indicated that she was a member of ODM from 2017 to 2022 and resigned from ODM vide a letter dated 11/03/2022.

30. The Tribunal therefore finds that the Complainant never resigned from the Respondent. As such, the Respondent had no basis to issue show cause letters to the Complainant on the basis of her resignation from the Respondent.

Whether the Complainant was invited for the disciplinary meeting held on 5/11/2022. 31. The Complainant claims that she was never served with the letter dated 22/10/2022 from the Respondent which invited her for a disciplinary hearing to be held on 05/11/2022. On the other hand, the Respondent claims that the letter was served upon the Complainant vide WhatsApp and also through a process server. The Complainant never attended the said meeting at which a decision to revoke her nomination to the County Assembly of Kakamega was taken.

32. The Respondent had the evidential burden of proving that the Complainant was indeed served with the letter dated 22/10/2022. Sections 109 of the Evidence Act states that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

33. Further, section 112 of the Evidence Act states that:-In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

34. RW1 claimed that his phone got lost and he therefore had no evidence of service vide Whatsapp. Moreover, the process server who is alleged to have served the Complainant with the letter personally was not called as a witness. In the circumstances, the Tribunal finds that the Respondent has not proved that it served the Complainant with the letter dated 22/10/2022. As such, the Complainant could not have been expected to attend the disciplinary hearing of 05/11/2022.

Conclusion and Final orders 35. The Tribunal finds that the Complainant’s complaint is merited and issues the following orders:-i.The disciplinary meeting held on 5/11/2022 by the Respondent and any consequential outcome is null and void.ii.The 1st, 2nd and 3rd Interested Parties are hereby restrained from acting on the Respondent’s decision taken on 05/11/2022 as per its letter dated 16/12/2022. iii.In the interest of party unity, each party shall bear its own costs.

DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF MAY 2023. GAD GATHU - PRESIDING MEMBERSTEPHEN MUSAU - MEMBERTHERESIA CHEPKWONY - MEMBER