[2022] KEPPDT 1001 (KLR)

Waruiru & another v Registrar of Political Parties & 5 others (Complaint E001 of 2022) [2022] KEPPDT 1001 (KLR) (Civ) (29 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1001 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E001 of 2022

G. Gathu, Presiding Member, D. Nungo, Chair & W Mutubwa, Vice Chair

April 29, 2022

Between

Mungai Waruiru

1st Complainant

Joseph Kipruto Ngeno

2nd Complainant

and

Registrar of Political Parties

1st Respondent

United Democratic Movement (Udm)

2nd Respondent

Paul Kipyrgon Sigei

3rd Respondent

Bashir Maalim Madey

4th Respondent

David Ohito Ahol

5th Respondent

Independent Electoral and Boundaries Commission

6th Respondent

Judgment

Introduction 1. The Complainants are members of the United Democratic Movement (UDM), the 2nd Respondent herein, and hold the offices of National Vice Chairperson (Operations) and Executive Director respectively.

2. On the 31st day of January 2022 they filed this Complaint claiming that changes had been made to the 2nd Respondent’s National Executive Committee illegally and un procedurally. The Complainants seek the following orders:-a.A declaration that the Kenya Gazette No. 9803 which was issued by the 1st Respondent on 17th September 2021 on changes made to the United Democratic Movement (UDM) Party National Executive Committee (NEC) is null and void, therefore one with no effect in law.b.That the persons named as officials in the Kenya Gazette Notice published as No. 9803 on 17th September 2021 be and are hereby restrained from claiming the title and/or transacting business as and/or on behalf of the United Democratic Movement (UDM) Party National Executive Committee.c.The 1st Respondent be directed to rectify the register of the United Democratic Movement (UDM) Party National Executive Committee so as to remove the entries made and recorded in favour of published(sic) in the Kenya Gazette No. 9803 dated on the 17th September 2021 and the title to revert back to the office holders as it were prior to the gazette notice.d.That an order be issued directing the Independent Electoral and Boundaries Commission (IEBC) to transact business only with the officials of the United Democratic Movement (UDM) Party National Executive Committee who were holding office as at and prior to the changes made and published through the Kenya Gazette No. 9803 dated 17th September 2021. e.Costs of this suit be borne by the Respondents jointly and/or severally against the Complainants.f.Any other relief.

3. Together with the Complaint, the Complainants filed a Notice of Motion application dated 31st January 2022 in which they sought various orders on the face of the application that more or less mirror the orders sought in the Complaint.

4. The 2nd to 5th Respondents filed a Notice of Preliminary Objection to the aforesaid Notice of Motion application. The Preliminary Objection was heard and dismissed vide a ruling delivered on 1st April 2022. The Tribunal subsequently gave directions for hearing and directed that the application and the complaint be heard together on 25th April 2022.

5. The 6th Respondent filed a Notice of Motion application dated 14th April 2022 seeking to have its name struck out of the proceedings. The said application was allowed by consent of parties and the 6th Respondent did not subsequently participate in the proceedings.

6. In view of the statutory timelines for hearing and determination of matters before this Tribunal, the Tribunal directed that parties file and exchange pleadings and submissions on both the Complaint and the Complainant’s aforesaid application. The matter was scheduled for oral highlights of written submissions on 25/04/2022. However, on that day parties elected to have the Tribunal rely on their written submissions and proceed to give a judgement.

The Complainants’ Case 7. The Complainants have brought this complaint on their own behalf and on behalf of the 2nd Respondents Party members, whom they claim are discontented with the unlawful changes made to re-constitute the 2nd Respondent’s National Executive Committee(NEC).

8. It is the Complainants case that the changes made by the 3rd, 4th and 5th Respondents to the NEC of the 2nd Respondent were unlawful and un procedural as they were made contrary to the provisions of the law and the constitution of the 2nd Respondent. After the changes were made, they were forwarded to the 1st Respondent who validated them vide Kenya Gazette Notice VOL.CXXIII No. 9803 issued on 17th September 2021.

9. The Complainants claim that the 1st Respondent failed to investigate the objections they made concerning the aforesaid changes before issuing the gazette notice.

10. According to the Complainants, the 1st Respondent failed to discharge its mandate as spelt out in the Political Parties Act,2011.

11. The Complainants maintain that the breach of their constitutional rights under Article 38 of the Constitution of Kenya 2010 and the failure by the 1st Respondent to investigate their objections, has occasioned prejudice to them and the interests of the 2nd Respondent’s members who are discontented with the unlawful changes.

12. The Complainants maintain that this Tribunal has jurisdiction to hear and determine this matter. They therefore urge the Tribunal to grant them the orders sought in the Complaint.

The 1ST Respondent’s Case 13. The 1st Respondent in its response to the Complaint through the affidavit of Joy Onyango, its Compliance Officer sworn on 25/04/2022, maintained that the 1st Respondent was cognizant of its mandate including the specific responsibility with regard to change of political parties’ officials under section 20 of the Political Parties Act,2011.

14. The 1st Respondent avers that it confirmed that the 2nd Respondent held a meeting on the 12/08/2021 where one of the agenda items was the reconstitution of the National Executive Committee. The 1st Respondent also confirmed having received the letter dated 18/08/2021 from the 2nd Respondent which forwarded the minutes of the NEC meeting, the notice calling the meeting, a duly signed attendance list and a duly filled and executed form PP7.

15. The 1st Respondent duly informed the 2nd Respondent of the statutory requirements for publication of the intended changes which requirements the 2nd Respondent complied with. The 1st Respondent confirmed that the intended changes were done in strict compliance with the constitution of the 2nd Respondent then proceeded to gazette the intended changes vide a gazette notice no. 9803 dated 6th September, 2021 and published on 17th September 2021.

16. Consequent to the gazette notice publication, the 1st Respondent states that it received objections from the Complainants on 20/09/2021 and communicated the same to the 2nd Respondent.

17. The 1st Respondent claims that the 2nd Complainant signed, as an authorized official, both the form PP7 relating to change of party officials and the NEC attendance list which shows his support for the change of the party officials. Therefore, the 2nd Complainant cannot now purport to dispute the change of officials as his execution of the document effecting the change of officials indicated his consent for the same.

18. The 1st Respondent maintains that all the modalities laid down in the party constitution with regard to change of officials were complied with and followed and therefore the complaint cannot stand as is.

19. The 1st Respondent also contends that the Complaint is not properly framed and that it was also filed out of time.

The 2nd to the 5th Respondent’s case. 20. The 2nd to the 5th Respondents filed a Replying Affidavit to the Notice of Motion application dated 31/01/2022. They did not file any other response to the Complaint. The said affidavit was sworn on 20/04/2022 by the 5th Respondent on behalf of the 2nd, 3rd and 4th Respondents.

21. The 5th Respondent stated that the Complainants were removed from the membership of the 2nd Respondent party on the 10/03/2022 by the highest decision making body of the party (National Delegates Congress) and they ceased to be members of the party as of that date and therefore had no locus to prosecute this claim.

22. It is the 2nd to the 5th Respondents case that the NEC of the 2nd Respondent convened a meeting on 12/08/2021 having given due notice of the same on 29/07/2021. The said Respondents contend that the 2nd Complainant attended the said meeting and signed the PP7 form on change of the party officials along with those in attendance.

23. The 2nd to the 5th Respondents also claim that the Complainants have moved the Tribunal pre maturely without attempting the IDRM processes of the 2nd Respondent Party which is a violation of Article 52 of the 2nd Respondent’s Constitution.

24. The 2nd to 5th Respondents want the complaint dismissed with costs to them.

Issues for Determination 25. Having read carefully analyzed the pleadings filed by the parties, the Tribunal frames the following as issues for determination: -i.Whether the Tribunal has jurisdiction to hear and determine this dispute.ii.Whether the Complaint as filed is properly framed.iii.Whether the Complaint was filed out of time.iv.Whether the changes in the 2nd Respondent’s Party Officials were done lawfully and procedurally.

Analysis and Findings Whether the Tribunal has the jurisdiction to hear and determine this dispute. 26. The Tribunal is cognizant of its ruling on 1st April 2022 in which it declined to allow the 2nd to 5th Respondent’s Preliminary Objection on the basis of failure to pursue the party’s Internal Dispute Resolution Mechanism(IDRM). The Tribunal found that there were many factual issues raised as regards the Preliminary Objection which meant that the question of jurisdiction could not be determined as a preliminary objection.

27. The question of jurisdiction must therefore be revisited. The objection to the Tribunal’s jurisdiction is expressed to be grounded on section 40(2) of the Political Parties Act. The said section provides that:-“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 (emphasis is ours) to subject the dispute to the internal political party dispute resolution mechanisms.”

28. All that a party is required to show is an “attempt” to have the dispute resolved by the Political Party’s IDRM. There is no requirement that the dispute be heard and determined. What amounts to an attempt depends on a particular case. However this Tribunal has considered the matter previously and issued guidelines in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022) wherein the Tribunal held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

30. Have the Complainant’s shown evidence of attempts to have the matter resolved internally? The Tribunal is convinced that the Complainants have attempted to have the dispute resolved by the 1st Respondent. There is ample correspondence between the Complainants’ Advocates and the 2nd Respondent’s Advocates to show that the Complainants attempted to have the dispute resolved by the 2nd Respondent internally.

31. We therefore find and hold that the Tribunal has the requisite jurisdiction to hear and determine this matter.

Whether the Complaint as filed is properly framed. 32. The 1st Respondent contends that the complaint should be an appeal and not a complaint and the same should therefore be struck out. We are not convinced by this line of argument.

33. Regulation 7 (1) and (2) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 provides that:-“(1)A dispute to the Tribunal shall be commenced by filing a complaint within thirty days from the date of making the decision complained of, if the dispute is between—a.the members of a political party;b.a member of a political party and a political party;c.political parties;d.an independent candidate and a political party;e.coalition partners; orf.appeals from decisions of the Registrar of Political Parties. 2. A complaint under sub-regulation (1) shall be filed in the registry in Form 1A set out in the First Schedule.”

33. It is clear that even an appeal would still be in form A. This issue was considered in Cornel Rasanga Amoth v Jeckonia Okungu Ogutu & 6 others [2017] eKLR where the court held that:-“Form A in the First schedule to the Regulations is simple and is clearly headed “Complaint Form”. It has space for prayers. All a party needs to do is fill that form and file it before PPDT.”

34. We are therefore convinced that to pay much regard to the frame of the Complaint would not amount to paying undue regard to technicalities. We therefore find that the Complaint is properly framed.

Whether the Complaint was filed out of time. 35. The 1st Respondent contends that the Complaint was filed out of the 30-day window provided for under regulation 7 of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017.

36. The crux of the Complaint is the gazette notice number 9803 published on 17th September 2021. The reliefs sought by the Complainants dwell on the said notice which was published by the 1st Respondent. The Complainants should have approached the Tribunal within 30 days of 17th September 2021.

37. We therefore hold that the Complaint was indeed filed out of time.

Whether the changes in the 2nd Respondents Party Officials were done procedurally and by following the constitution of the 2ndRespondent. 38. The Complainants aver that the changes in the 2nd Respondent Party’s NEC as contained in the Gazette Notice No.9803 published on 17th September 2021 were procured illegally.

39. The Complainants allege that there was no notice of the meeting that led to the changes, there was actually no meeting, the attendance list is a forgery. The Complainants further aver that no election took place during the meeting of 12/08/2021.

40. The Respondents on the other hand contend that all procedural and legal requirements were complied with prior to effecting the changes.

41. One of the grounds that they are relying on is that the signature of the 2nd Complainant in the attendance sheet of the meeting held on 12th August 2021 was forged and that the 2nd Complainant has made a report to the police on the same. We have perused the annexure marked as JKN-02 in the affidavit of the 2nd Complainant sworn on 31/01/2022 which is a copy of a police report dated 20/12/2021. The same does not have details of what was reported. It only shows that a forgery case was reported. We are not able to ascertain the exact nature of the report that was made to the police and whether indeed it relates to these proceedings.

42. On the issue of the meeting and the notice thereof, the Tribunal finds that a Notice dated 29/07/2021 seems to have been sent out by the 1st Respondent given that there were attendees at the meeting of 12/08/2021. The 2nd Complainant is also alleged to have attended the meeting though he denies it and claims that his signature was a forgery. However, as indicated, there is no evidence that the report he made to the police indeed concerned this particular event. As regards the alleged presence of the Chairperson of the 2nd Respondent in South Africa, which would mean that she could not have attended the said meeting, no evidence was placed before the Tribunal to prove that the Chairperson is or was indeed in South Africa.

43. The Tribunal has examined the process undertaken by the 2nd Respondent in effecting the changes to the NEC and is satisfied that due process was followed.

44. As regards the Complainants having been expelled from the 2nd Respondent and thus having no locus standi herein, we find that the same is not the subject of this complaint. In any event, the Complainants were purportedly expelled from the 2nd Respondent on 10th March 2022 which was way after this Complaint had been filed.

45. In view of the foregoing findings as regards the propriety of the process followed in effecting changes to the 2nd Respondent’s NEC, and the fact that this Complaint was filed out of time, the tribunal finds that the Complaint has no merit and proceeds to dismiss the same. Given the said orders, the application dated 31/01/2022 is spent.

46. Due to the nature of the Complaint, each party will bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF APRIL 2022. ....................................................GAD GATHU (PRESIDING MEMBER)....................................................DESMA NUNGO (CHAIRPERSON)....................................................DR. WILFRED MUTUBWA (VICE CHAIRPERSON)