Talib v Wiper Democratic Movement – Kenya & 2 others; Wambua & another (Interested Parties) [2022] KEPPDT 984 (KLR)

Talib v Wiper Democratic Movement – Kenya & 2 others; Wambua & another (Interested Parties) (Complaint E099 (NRB) of 2022) [2022] KEPPDT 984 (KLR) (Constitutional and Human Rights) (29 July 2022) (Ruling)

Neutral citation: [2022] KEPPDT 984 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Constitutional and Human Rights

Complaint E099 (NRB) of 2022

ML Odongo, Presiding Member, T K Tororey & L Wambui, Members

July 29, 2022

Between

Abubakar Ahmed Talib

Complainant

and

Wiper Democratic Movement – Kenya

1st Respondent

Secretary General, Wiper Democratic Movement – Kenya

2nd Respondent

Chairman National Elections Board Wiper Democratic Movement – Kenya

3rd Respondent

and

Lucas Mulinge Wambua

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

Ruling

1. The Complainant herein came before this Tribunal vide a “certificate of urgency” dated July 25, 2021, raising concern that the Respondents had authorised the 2nd Interested Party, who was in turn about to act decisively and implement a decision that had been reached through an unlawful process. The Presiding Member of the Kakamega Bench of this Tribunal certified the matter as urgent.

2. Together with the said certificate was filed a Notice of Motion Application, brought under provisions of Sections 20 A (3) of the Elections Act, Sections 39 & 40 of the Political Parties Act and Section 1A, 1B 3A, 63 (c) and (e) of the Civil Procedure Act, Order 40 rule 1(a), 2, 4 (1) & 10 (1)(b) of the Civil Procedure Rules 2020. The said application is dated July 25, 2022 and vide it the Complainant seeks the following orders:-i.Spent.ii.Pending the inter partes hearing of this application, this Honourable Tribunal be pleased to issue an interim order by way of an injunction, restraining the 2nd Interested Party, the Independent Boundaries Commission, IEBC, from publishing in the Kenya Gazette and/or issuing a certificate of compliance to the 1st Respondent on account of the impugned party list for National Assembly nominations as submitted to and received by the 2nd Interested Party on July 22, 2022 vide the 2nd Respondents letter dated July 22, 2022iii.Pending the hearing and determination of the Complaint, this Honourable Tribunal be pleased to issue an interim order restraining the 2nd Interested Party, the Independent Boundaries Commission, IEBC, from publishing in the Kenya Gazette and/or issuing a certificate of compliance to the 1st Respondent on account of the impugned party list for National Assembly nominations as submitted to and received by the 2nd Interested Party on July 22, 2022 vide the 2nd Respondents letter dated July 22, 2022iv.Costs of the Motion be to the Claimant/Applicant.

Submissions in respect of the said Application 3. Vide the pleadings, including the affidavit sworn in support of the said application by Abubakar Ahmed Talib, it is alleged that the decision to place the Applicant as no. 1 in the Mombasa County nomination list and to not retain his name as no 1 in the National Assembly party nomination list is unlawful, unprocedural and was done unilaterally.

4. It is the Complainant/Applicant’s case that he is the party member duly qualified, in line with the party processes, to retain the number 1 position in the party National Assembly nomination list.

5. The Complainant/Applicant avers that the Internal Dispute Resolution Mechanism [IDRM] though invoked has been slow to address the issue even in the face of the tight timelines in current phase of the electoral cycle.

6. The 1st, 2nd and 3rd Respondents, represented vide the common replying affidavit filed with authority and on their behalf, by Shakila Abdala the Secretary General of the 1st Respondent, deny that the change in positioning/locating of the Applicants name in the party nomination lists was justified and in good faith and in the best interest of the political party in which they all enjoy membership.

7. The said Respondents further aver that the Applicant has not exhausted the party IDRMand did not in fact intend to evoke it given the timelines within which the said Applicant presented his complaint to the party in contrast to the time, almost simultaneously, when he moved this Tribunal.

8. The 1st IP [interested party] swore and filed his replying affidavit to the said application on July 29, 2022.

9. Vide the said 1st IP’s reply he avers that the inclusion and location of his name in the party nomination list in issue was proper and procedural.

10. The 2nd IP though served, as seen from the affidavits of service on record, chose not to appear or file a response.

Issues for Analysis and Determination 11. The issues for determination before this Tribunal, at this stage are;i.whether this Tribunal is properly seized of jurisdiction.ii.whether the interim orders are warranted andiii.who should bear costs of this application.

On jurisdiction of this Tribunal 12. The Respondents have challenged the Tribunal’s jurisdiction to hear and determine this matter on the ground that no IDRMwas invoked contrary to the provisions of Section 40 of the PPA (Political Parties Act).

13. We note that the jurisdiction of this Tribunal has been attacked on the grounds that alleged attempt at IDRMby the Applicant was merely perfunctory given the fact that it was lodged with the party on the same day when this complaint together with the Notice of Motion application subject matter of this ruling, were filed before this Tribunal.

14. The current wording of section 40 (2) PPAafter the recent amendments to the Act, states 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.

15. In effect what is in question is whether first available remedy was reasonably allowed time to act in a manner that would qualify as an attempt at IDRMas anticipated in the law.

16. The intention of the Complainant/Applicant, to allow the political party, that is the 1st Respondent herein, the opportunity to resolve this issue is questioned. We find this somewhat odd given the statements by the Respondents in their replying affidavit sworn on their behalf by the party’s’ Secretary General.

17. The said statements in the said affidavit, provide some history of internal consultations and outlooks in the course of discussing the Complainant/Applicants discontent with the subject change in the positioning and locating of his name in the party nomination list.

18. For clarity and ease, we have lifted some of these statements below;“15. That I personally informed the Complainant herein of the Change and did tell him that it was a big favour since he hadn’t re-applied for the National Assembly seat and that he was number 1 of the list and it was his County which meant he was best placed to serve his county but he was unhappy said he will discuss with the Party leader. See the party list dated 22nd July 2022 indicating the he is from Mombasa County.

16. That I am aware that after he consulted with the party leader on this matter, he got bitter and contrary to the party constitution and etiquette, did write a long and abusive message regarding the party leader and sent it to a WhatsApp group of party leaders. The message was demeaning, abusive and threatening. With permission of the Tribunal, the message is taken as annexed herewith and marked as SA6 but will be shared on screen to the Tribunal and to the parties to avoid multiple circulation to the detriment of the Party leader.

17. That I personally called the Complainant and informed him the importance of maintaining good relations with the party leadership irrespective of anything. I explained to him about regional balancing and National outlook at the National Assembly by the party irrespective of the promises made. I did impress upon him to reconcile with the leadership of the party and the party leader but he was Page 4 of 7 adamant. As I swear this affidavit, the Complainant is not in taking terms with the party leader.

18. That it is imperative that nominees of the Party have decorum and unwavering loyalty to the party. With the broken down relationship, it is difficult for the relationship of party and member to work out even though the party hopes that the Complainant will accept his position with honour and know that there will be plenty more opportunities when he works together in collaboration with the party.”

19. In the backdrop the discussions within the political party, 1st Respondent herein, as lifted and displayed above, we have considered whether the circumstances in this instant present an exception to the exhaustion requirement.

20. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic v National Environment Management Authority, Civil Appeal No 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

21. Our analysis of the information placed before us is that there was an attempt to resolve the matter internally as anticipated under section 40 (2) of the PPA, before the presenting of this complaint before us and thus we are properly seized of jurisdiction and the preliminary objection in respect of section 40(2) of the PPAthus fails.

Whether the interim orders sought should be granted. 22. The principles governing the granting of interim orders are well established by numerous decisions of courts. First, an applicant has to show a prima facie case with a probability of success. Secondly, an interlocutory injunction would not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated for by an award of damages. Thirdly, if the court is in doubt, it would decide an application on the balance of convenience.

23. All we are required to do at this stage is to establish, firstly, whether the Complaint/Applicant vide their said application raises a prima facie case with chances of success, and secondly, whether the Complainant/Applicant stands to suffer prejudice if the subject matter is not preserved by way of conservatory orders.

24. Black’s Law Dictionary defines prima facie case as one which is “… sufficient to establish a fact or raise a presumption unless disproved or rebutted…” This definition is fortified in numerous judicial authorities including in the Court of Appeal decision inMrao Limited v First American Bank Limited (2003) KLR 125, Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.

25. Applying the definition to the presented facts and circumstances of the instant case, we are of the considered opinion that the Complainant/Applicant has demonstrated that they have a prima facie case with chances of success.

26. On the issue of prejudice, the Applicant pleaded and demonstrated that their position in what they deem the correct nomination list has been threatened as a consequence of the Respondent’s allegedly irregular processes. In Eldoret High Court Petition No 11 of 2012,The Centre for Human Rights and Democracy & Others v The Judges and Magistrates Vetting Board & Others, the Court held that where there is a threat to the rule of law, the Court has powers to grant interim measures of protection so that the aggrieved party is not rendered helpless in the eyes of the wrong visited or about to be visited upon him or her, and so as not to expose others to preventable perils or risks by inaction or omission. Taking cue from this decision, we agree with the Applicants’ contention that he stands to be prejudiced if conservatory orders are not granted.

27. In view of the foregoing, we find that the Notice of Motion Application dated July 25, 2022 is merited and we accordingly grant the following orders:-i.That a Conservatory Order by way of an injunction be and is hereby issued prohibiting and/or restraining the publication in the Kenya Gazette and/or issuance of a certificate of compliance to the 1st Respondent on account of the impugned party list for National Assembly nominations as submitted to and received by the 2nd Interested Party vide the 2nd Respondents forwarding letter in respect of party list nominations in the coming 2022 general elections.ii.That notification of this decision issue to the 2nd Interested Party herein, the Independent Electoral and Boundaries Commission.iii.That the costs of this application be in the cause.

DATED THIS 29TH DAY OF JULY 2022==================================M. L. ODONGO (PRESIDING MEMBER)====================================TOROREY TIMOTHY KIPCHIRCHIR (MEMBER)===============================DR. LYDIAH WAMBUI (MEMBER)