Misare v National Elections Board – ODM Party & 2 others [2022] KEPPDT 1055 (KLR)

Misare v National Elections Board – ODM Party & 2 others (Tribunal Case E018 (KSM) of 2022) [2022] KEPPDT 1055 (KLR) (Civ) (3 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1055 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Tribunal Case E018 (KSM) of 2022

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

May 3, 2022

Between

Willies Oloo Misare

Petitioner

and

National Elections Board – ODM Party

1st Respondent

Orange Democratic Movement Party

2nd Respondent

Hon. Eddy Oketch

3rd Respondent

Judgment

Background 1. This matter arises out of the decision of the 2nd respondent to issue a direct nomination to 3rdrespondent to contest for the Migori senatorial seat.

2. Aggrieved by that decision, the petitioner who had expressed a desire to be nominated by the party to contest for the aforesaid seat brought these proceedings essentially seeking to reverse the party’s decision to nominate the 3rd respondent.

3. The petition was filed under the cover of a certificate of urgency, together with a notice of motion seeking interlocutory measures of protection. We made the following orders on May 2, 2022:i.This matter is certified urgent and service thereof is dispensed with in the first instance;ii.The complainant/petitioner shall ensure service of all papers filed herein upon all the respondents forthwith, in any event before end of day May 2, 2022; and file appropriate returns of service;iii.The respondents shall file and service their responses to both the application and petition by end of day May 3, 2022;iv.This matter shall be heard by way of oral arguments based on the documents filed on WednesdayMay 4, 2022 at the Kisumu Law Courts (in-person proceedings). Both the application and petition shall be heard contemporaneously;v.Pending the hearing inter partes of this matter, the 1st and 2nd respondents are hereby restrained from submitting the name of the 3rd respondent, or any other person to the Independent Electoral and Boundaries Commission (IEBC) as the 2nd respondent’s nominee to contest for the position of Senator of Migori County, in the August 9, 2022 general election.vi.Pending the hearing inter partes of this petition, the Independent Electoral and Boundaries Commission is hereby restrained for receiving and/or publishing in the Kenya Gazette, the 3rd respondent’s or any other person’s name as the 2nd respondent’s nominee to contest for the position of Senator for Migori County in the August 9, 2022 general elections.vii.Costs shall be in the cause.

Parties Respective Cases 4. At the hearing on May 4, 2022, Mr Green Odera appeared for the petitioner, holding brief for Mr Omwanza Ombati. Mr Kouko appeared for the 1st and second respondents, while Mr Aguko appeared for the 3rd respondent.

5. The facts of the case are not in dispute. The parties agree that there was more than one candidate for the subject seat, including the petitioner and the 3rd respondent. The party attempted building consensus among the candidates by holding at least two meetings. One at the Royal Tulip hotel on March 5, 2022; and another on March 18, 2022. It is in the latter meeting that opinion polls, described as “fake” by the petitioner, were produced by the 1st respondent indicating the popularity of the 3rd respondent for nomination by the 2nd respondent for the senatorial seat of Migori County.

6. According to the petitioner, the nomination exercise was slated for March 18, 2022, but did not take place. The party instead issued a circular on May 27, 2022, that excluded nominations for the senatorial position from taking place in Migori and, instead, preferring to give a direct nomination ticket to the 3rd respondent.

7. The petitioner’s gripe with the process of direct nomination is that he was not consulted nor were the opinion polls relied upon exhibited. Yet, as an aspirant who had expressed interest in the ticket, paid the requisite fees of Kshs 125,000 and returned nomination papers, he held a legitimate expectation that whatever process the party would employ would be free, fair, accountable and, importantly, consultative.

8. The respondents were categorical that all the party did was in full compliance with the law and its own Party Primaries and Nomination Rules, particularly rule 8 and 23 thereof. For ease of reference rule 8 reads as follows: The party primary elections and elections for nominations to party lists shall be conducted using the following methods (and in the following order of priority) –a.Consensus among candidates, party and community representatives.b.Direct nominations.c.The use of delegates system through the Electoral College system.d.Universal suffrage of registered party members (certified by the Registrar of Political Parties)

9. The respondents maintained that there was sufficient consultation held with the contestants through the meetings referred to, including with the petitioner. That it remained the party’s prerogative to determine the nomination method it would use.

Tribunal’s Analysis And Findings 10. During the hearing two preliminary matters that we consider important arose, and which merit our consideration before addressing the legality of propriety of the direct nomination process.

11. Firstly, the 3rd respondent filed a notice of preliminary objection dated May 3, 2022, premised on section 40 (2) of the Political Parties Act, 2011. He argued that the matter the subject of the petition was prematurely before us since the petitioner had not complied with the requirement to attempt IDRM as prescribed by section 40(2) of the Political Parties Act, 2011.

12. Secondly, that the affidavit in support of the petition is not signed, dated nor commissioned, thus it was incurably defective and ought to be struck out. Effectively, that the petition ought to be struck out since it was not accompanied by a competent affidavit as required by law.

13. Mr Odera responded to the attack on the petition by stating that the petition was properly before the tribunal. That the petitioner attempted IDRM by writing a letter dated April 19, 2022, addressed to the 1st and 2nd respondents, complaining about the 3rd respondent’s purported direct nomination. That the said letter was annexed to the petitioner’s supporting affidavit and is marked WOM-5. That to-date the letter has not been responded to. In effect, therefore, the requirement to attempt IDRM has been fulfilled.

14. On the impugned supporting affidavit, counsel took the view that the Mutunga Rules Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, did not require an affidavit to accompany a petition. Counsel referred to rule 11 of the rules which states that a petition “may be supported by an affidavit”; and that in the absence of an affidavit, the petition would still be competent if documents were attached to the petition. That the language used is not mandatory but permissive. That a petition would still survive and be competent even without a supporting affidavit.

15. In support of this submission, counsel relied upon the decision of the High Court sitting in Siayain Election Petition No 9 of 2017 Clifford Odhiambo Omolo v Roy Ochieng (2017) eKLR where the court did not strike out a petition despite finding an affidavit to be defective and striking the affidavit out. Counsel also urge us not to rely on technicalities to defeat the petitioner’s case.

16. Three issues emerge for our consideration and determination:i.Whether the petitioner had complied with section 40(2) of the Political Parties’ Act, 2011?ii.Whether the petition is competent?iii.Who bears the costs of this matter?

Whether the Petitioner had complied with section 40(2) of the Political Parties’ Act, 2011? 17. What constitutes a preliminary objection is set out in the case of Mukisa Biscuit Manufacturing Co Ltdv West End Distributors Ltd [1969] EA 696, where it was held that:“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… 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 had to be ascertained or if what is sought is the exercise of judicial discretion.” 18. InR v Karisa Chengo [2017] eKLR, the learned court stated as follows;“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

18. In Agnes Mukami and 5 others v Ngewahi and Company [2005] Eklr the court stated that: A clear and well taken preliminary objection may expedite disposal of matters before a court on the other hand a vague preliminary objection often causes delay in determination of matters.

19. The underlying facts of this case are largely common. Therefore, the preliminary objection does not require an inquiry into the facts.

20. We have delivered ourselves, many times over, on the scope of our jurisdiction in light of section40 (2) of the Political Parties Act, 2011.

21. This tribunal has stated, times without number, that it takes seriously the legal edict in section40(2) of the Political Parties Act, 2011. The tribunal will always require parties to demonstrate compliance with the provisions of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

22. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4; Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others(Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (Complainant No 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that: We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.

23. Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions. This tribunal and courts have spoken to some of these exceptions. We shall refer to a few of them for purposes of illustration.

24. In Ibrahim Abdi Ali v Mohamed Abdi Farah & Another(Complaint No 29 of 2015), we held, that: Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.

25. In Jared Kaunda Chokwe Barns v Orange Democratic Movement &2 others, we made the following pronouncement on the question:‘In light of this we find that by writing to the party, the complainant made an attempt to engage the party in resolving the dispute. Indeed, if the 1st respondent was to act on the dispute the presumption is, the same would have been resolved. We therefore find that the complainant made an attempt to engage the party internal dispute mechanism and thus, we have the jurisdiction to determine this complaint.’

26. InJeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7, we confirmed that:Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.

27. In Moses Saoyo Kusero v Jubilee Party of Kenya & another(Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that: It is clear that the claimant’s attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

28. The silver lining and constant theme running through the maze of the fore-quoted decisions is that, the requirement to exhaust internal dispute resolution mechanisms is a principle with exceptions. As we noted in our recent decision in Complaint No E020 of 2021 Oscar Kambona v Schola Nyenze and others: The exceptions are founded on good reason. At times, the internal mechanisms prescribed in party constitutions and other governing instruments are either non-existent, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute.

29. It merits noting that the fore-cited cases were delivered before the Political Parties Act was amended vide the Political Parties (Amendment) Act 2022. There was a significant shift in the wording of section 40(2) of the Act.

30. The section previously read as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.29. The current wording of section 40 (2) is as follows:(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

31. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment was meant to accord the law with our previous pronouncements and those of the courts. It is, therefore, necessary to restate the import of the amendment to the province of the doctrine of exhaustion as reset by the statute.

32. From the decisions foregoing, an attempt at IDRM suffices. A letter such as alluded to by the complainant would be sufficient. However, in this case a second problem presents itself, and which takes us to the second issues as framed.

Whether the Petition is Competent? 33. We agree with learned counsel, Mr Odera for the petitioner that rule 11 of the Mutunga Rules does not necessarily require that a petition must be accompanied by an affidavit. We are also guided by article 159 of the Constitution that commands us to do substantive justice without regard to technicalities of procedure.

35. The practical difficulty in this case is that the letter purportedly written to the 1st and 2ndrespondent’s by the petitioner, is not annexed to the petition. Reference to the letter is made in annexture WOM-5 of the supporting affidavit, which is an affidavit of service. The document referred to as the letter in attempt of IDRM is not available. There is reference to a pdf document that is not produced.

36. It is impossible to tell, in the circumstances, whether the said letter is in fact one that complains about the direct nomination of the 3rd respondent or is completely something else.

37. Section 40(2) places the burden of proving attempts at IDRM on the person alleging. The legal burden of proof is on the person who would fail if a fact is not proved. See Raila Odinga v IEBC and others [2017] eKLR. Also see sections 107 to 109 of the Evidence Act, cap 80.

38. We are afraid that the petitioner has not discharged his burden at all. We are also of the considered view that the affidavit accompanying the petition is fatally incompetent. An affidavit is evidence made on oath; if it is not made before a commissioner for oaths, and authenticated by the deponent, it has no value and cannot stand. The impugned affidavit does not meet the requirements of a proper affidavit and we, accordingly, strike it out. Authentication of documents by signing and attestation is a serious matter that underscores the witness’ willingness to be bound by the contents of the document, including facing criminal liability in the event of perjury.

39. Once an affidavit is struck out, it goes with its annextures. While we agree that the petition may survive post striking out of an affidavit, it is left as an empty hollow shell of allegations unsupported by evidence. In other words, it has no legs to stand upon.

40. In the upshot we uphold the preliminary objection and strike out the petition as being premature. The petitioner has not demonstrated that he has attempted IDRM before coming before us.

41. Having upheld the preliminary objection, there is no need to address the other matters raised.

Who bears the costs of these Proceedings? 42. Ordinarily, costs follow the event. However, in the circumstances of this case, the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We, therefore, make no orders as to costs.

Disposition 43. In the end we make the following orders:i.We uphold the preliminary objection dated May 3, 2022 and strike out the petition; andii.Each party shall bear its own costs.

44. Those are the orders of the tribunal.

DATED AT KISUMU AND DELIVERED IN OPEN COURT THIS 6TH DAY OF MAY 2022. ................................................Hon. Dr. Wilfred Mutubwa OGW C. Arb Vice Chairperson – Presiding.................................................Hon. Fatuma Ali Member.................................................Hon. Walubengo SifunaMemberSIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBER