[2021] KEPPDT 682 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. E010 OF 2021

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

VERSUS

FREDERICK OKANGO.........................................RESPONDENT

RULING

1. The Complainant is a duly registered political party as per the requirements of the Political Parties Act, while the Respondent is described in the Complainant’s pleading as having hitherto served as the Secretary General [SG] of the Complainant.

2. The Complainant alleges ongoing issues of party discipline relating to the conduct of the said Respondent in the course of conducting his duties as such SG.

3. Consequentially, the Complainant seeks the following orders:-

a. A declaration that purported meeting of 7thAugust 2020 is unlawful, ultra vires and un- procedural hence null and void ab initio.

b. A Declaration that the conduct of Frederick Okango in as far as meetings, minutes and issuance of resolutions of the party have violated the party Constitution, the Constitution of Kenya 2010 and the Political Parties Act.

c. An order of injunction against Fredrick Okango from holding out as the legitimate Secretary General pending the conclusion of the Disciplinary case by the Party.

d. Any other Relief that the Honourable Tribunal may deem appropriate.

e. Costs

4. Before matters could proceed, the Respondent raised a Preliminary Objection [PO] which was argued in a video link open session, and this ruling is in respect of the said PO.

The Preliminary Objection

5. The gist of the Respondent’s PO was that the Complainant, who is a body corporate, had failed to file with the primary pleadings or even with their subsequent pleadings the authority to sue.

6. It was the Respondent’s submission that this omission rendered the entire complaint voidable. It was further argued that there was no legal support, looking at the party constitution, for any argument that the chairperson of the political party enjoyed any inherent right to sue in the alleged interest of the political party.

7. The Complainant, through their Advocate on record, argued that the circumstances prevailing within the party made it very difficult for the chairman to secure the seal and stamp and authority to sue on behalf of the party. But that the prevailing illegalities in the ongoings in the party necessitated action to protect the party for its posterity.

Analysis and Determination

8. 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".

9. We have considered the parties arguments and our focus settles on the issue as to whether or not it was possible in the circumstances sustaining in the said political party to obtain such authority to sue.

10. In deed it was argued that in a case brought before this Tribunal [being Complaint no. 16 of 2020] the circumstances then made it possible for such authority to obtain and thus the party filed with the seal of such authority.

11. We note that the determination on the issue as to whether there in deed were circumstances in play that made it difficult to obtain such authority, from the positions presented in the instant case, contain factual issues that have to be ascertained and therefore do not constitute pure points of law. In the circumstances, the preliminary objection fails.

12. For the foregoing reasons this Tribunal finds that the Preliminary Objection fails at this stage. As for the costs, we hold that they be in the cause.

It is so ordered.

DATEDAT NAIROBI THIS21ST DAY OFMAY 2021.

DESMA NUNGO

(CHAIRPERSON)

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

MILLY LWANGA ODONGO

(MEMBER)

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

PAUL NGOTHO

(MEMBER)

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

DR. ADELAIDE MBITHI:

(MEMBER)