[2021] KEPPDT 681 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. E011 OF 2021

THIRDWAY ALLIANCE KENYA...................................COMPLAINANT

VERSUS

DANIEL MIRURU WAWERU...........................................RESPONDENT

RULING

1. The Complainant herein is a political party duly registered as such under the Political Parties Act, 2011.

2. The Respondent herein is described in the pleadings filed for and on behalf of the Complainant as a member of the Complainant who holds a leadership position by virtue of his membership in the party National Executive Committee [NEC].

3. The Complainant infers mis behaviour on the part of the said Respondent in so far as his conduct as such leader within the said political party organ is concerned and avers that in deed disciplinary process has been initiated against the Respondent.

4. The complaint seeks the following orders:-

i.THAT a Prohibitory Injunction be issued restraining the Respondent by himself, his servants, agents or employees from accessing and/or entering or accessing the offices of the Complainant pending the conclusion of the Internal Dispute Resolution Mechanisms and attendant proceedings against the Respondent.

ii.THAT a mandatory injunction be issued compelling the Respondent to relinquish all the Communication channels of the party as well as the login credentials, to wit Twitter Handles @Thirdwaykenya and @ThirdwayalliAn1; Facebook Page Thirdway Alliance Kenya; and Website www.thirdwayalliance.com and its login credentials and c-panel details.

iii.THAT a Prohibitory Injunction be issued restraining the Respondent by himself, his servants, agents or employees from speaking for, sending out communication and/or on behalf of the Complainant, or transacting any business for and/or on behalf of the Complainant.

iv.THAT a permanent injunction be issued restraining the Respondent by himself, his servants, agents or employees from misusing the Party’s Communication Channels contrary to the Constitution of the party.

v.THAT the costs be provided for.

vi. THAT this Honourable Tribunal be pleased to make such and other further orders as it may deem just and fit in the circumstances of the case

5. Shortly after the complaint was served upon the said Respondent, he filed a preliminary objection [PO] which was heard orally before this Tribunal at the video link open session held on 12th May 2021. This ruling is in respect of the said PO.

The Preliminary Objection

6. The Respondent’s PO is two faceted. It is firstly premised on the fact that the Complainant presented before this Tribunal without having complied with the internal dispute resolution mechanism (IDRM) requirement under Section 40 (2) of the Political Parties Act. Therefore, this Tribunal cannot be seized of jurisdiction.

7. The second facet of the said PO was based on the fact that the authority to sue filed together with the initial pleadings was not properly executed as it purports to have been signed by a Secretary General [SG] who at the time of his appending his signature to the said document in issue, was undergoing disciplinary process and thus had his authority to act suspended.

8. Additionally, it was the Respondent’s submission that the constitution of the political party in issue does not confer on the said SG authority to institute a court process without direction of the party national executive committee [NEC].

9. The Complainant opposed the said PO on the ground that the IDRM anticipated under section 40 (2) of the Political Parties Act [PPA] cannot apply in the circumstances of the current case. That there is a disciplinary process on going and the complaint seeks to stop the Respondent from abuse of party property pending the successful conclusion of the ongoing disciplinary process.

10. In addition, it was submitted by the Complainant’s counsel on record, that the party laws identified the person who had the authority to act and execute under the party seal and that such person described had so acted.

Analysis and Determination

On jurisdiction of this Tribunal

11. It is imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

12. We note that Section 40 of the Political Parties Act provides for the jurisdiction of the Tribunal 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 a political party;

(c) disputes between political parties;

(d) disputes between an independent candidate and a political party;

(e) disputes between coalition partners; and

(f) appeals from decisions of the Registrar under this Act;

(g) disputes arising out of party primaries.

13. The Act, further in subsection (2) of section 40, gives a condition for the jurisdiction of the Tribunal with regard to disputes covered in (a), (b), (c), and (e), to have themfirst subjected to internal political party dispute resolution mechanisms.

(emphasis our own).

14. The current dispute is between a member of a political party and a political party, which is covered by section 40(1)(b). As such, for the Tribunal to assume jurisdiction, there is need for there to have been an internal dispute resolution mechanism.

15. The jurisdiction of this Tribunal has been attacked on the grounds that IDRM was not applied prior to filing the instant complaint. The Complainant countered this averment stating that IDRM could not apply as the circumstances at play in the instant complaint required the protection or intervention of this Tribunal to enable such IDRM as anticipated in law progress lawfully.

16. A preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West-End Distributors Limited [1969] EA 696, as one which "consists of a point of law which has been pleaded, or which arises by clear implication, and which if argued as a preliminary point, may dispose of the suit. The court further stated that;-

"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".

17. Is there a clear point of law here? We posit, not so. This Tribunal would need to be apprised of facts relating to the ongoings within the political party in order that she be properly and adequately equipped to determine whether she is properly seized of this matter.

18. Additionally, the question as to whether the seal on the authority to sue was properly executed is contested and requires ascertainment of the facts and circumstances of the case and is thus not a pure point of law as anticipated for a PO to sustain.

19. In the circumstances, the preliminary objection fails. Costs shall be in the cause. It is so ordered.

DATED AT NAIROBI THIS 21ST DAY OF MAY 2021.

DESMA NUNGO

(CHAIRPERSON)

.................................................

MILLY LWANGA ODONGO

(MEMBER)

PAUL NGOTHO

(MEMBER)

DR. ADELAIDE MBITHI:

(MEMBER)