Obwaka v Orange Democratic Movement & another; Ondako & 4 others (Interested Parties) (Complaint E004 (KKG) of 2024) [2024] KEPPDT 514 (KLR) (2 August 2024) (Ruling)
Neutral citation:
[2024] KEPPDT 514 (KLR)
Republic of Kenya
Complaint E004 (KKG) of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
August 2, 2024
Between
Eddie Makokha Obwaka
Complainant
and
Orange Democratic Movement
1st Respondent
The Secretary General, Orange Democratic Movement Party
2nd Respondent
and
Hon Philip Maina Ondako
Interested Party
The County Assembly of Kakamega
Interested Party
The Speaker of the County Assembly of Kakamega
Interested Party
Azimo La Umoja One Kenya Coalition
Interested Party
Geofrey Ondiro Obonyo
Interested Party
Ruling
Introduction
1.The 5th Interested Party filed a Notice of Preliminary Objection dated 19th July, 2024 (hereinafter referred to as the PO), and he objects to the Jurisdiction of this Tribunal to hear and determine this Complaint, on the following grounds, as adumbrated on the face thereof: -i.The Claimant, having admitted that he a Member of the Kenya African National Union (KANU) Party (or not a member of the ODM) and the Respondent being the Orange Democratic Movement (ODM) and its Secretary-General, the dispute does not fall under any of the categories under Section 40(1) of the Political Parties Act.ii.The Claimant, in his individual capacity, does not have locus to sue a Coalition Partner before the Political Parties Disputes Tribunal as the contemplated dispute under Section 40(1)e is a dispute between Coalition Partners.iii.The present dispute is a dispute between a Member of one Political Party against a different Political Party and such a dispute does not fall under any of the categories of disputes expressly stated under Section 40 (1) of the Political Parties Act.iv.The Section 40(3) of the Political Parties Act provides that; (3) A coalition agreement shall provide for internal dispute resolution mechanismsv.If there be a dispute between KANU and ODM (and there is none), such a dispute must be considered within the dispute resolution mechanism under the Azimio La Umoja One Kenya Coalition Party Agreement before the jurisdiction of this Tribunal can be invoked as per Section 40(2) of the Political Parties Act.vi.If the Claimant is a Member of the ODM (which he is not and has admitted such), then the dispute should be considered within the ODM IDRM before the jurisdiction of this Tribunal can be invoked in line with Section 40(2) of the Political Parties Act.vii.Whichever way one looks at the dispute, the PPDT lacks the jurisdiction to entertain the matter.viii.Jurisdiction must be express in the Constitution or Statute and cannot be implied, insinuated or extended.
2.Pursuant to the directions of this Tribunal, the PO was heard, inter partes, on the 30th July, 2024. The Complainant was represented by Ms. Oyala Advocate, holding brief for Mr. Neondo Advocate, and Mr. Nechesa Advocate was present for the 1st Interested Party. The 2nd Interested Party was represented by Mr. Kubai Advocate, and Mr. Indimuli Advocate held brief for Mr. Mkavale Advocate for the 3rd Interested Party. The 5th Interested Party was represented by Mr. Sore Advocate. There was no appearance for the 1st and 2nd Respondents and the 4th Interested Party who never entered appearance in this matter despite service.
The 5th Interested Party’s Submissions on the Preliminary Objection.
3.The 5th Interested Party relied on the PO and submitted that this Tribunal lacked jurisdiction to entertain the current dispute. That jurisdiction must be express, arising from the Constitution or a statute. That the jurisdiction of the Tribunal is provided for in Section 40(1) of the Political Parties Act 2011 (the PPA). That it is not disputed that the Claimant is a member of KANU, and that he has brought a Complaint against ODM and its Secretary General. The situation that arises is that a person belonging to one political party is suing another political party of which he is not a member. He specifically referred to Section 40(1)(b) of the PPA which provides for a dispute between a member of a political party and the political party. He submitted that under Section 40(1)(b), a dispute can only be brought by a member of a political party against his own political party.
4.It is the 5th Interested Party’s submission that jurisdiction cannot be imagined, and neither can implication confer jurisdiction. That the Complainant should state which provision he comes to the Tribunal under. According to the 5th Interested Party, the Complainant states that he has approached the Tribunal on behalf of his political party, KANU, yet he has not stated the same in his pleadings. That in any event, the Tribunal would have no jurisdiction due to lack of locus of the Complainant.
5.He further submitted that the Complainant should have pushed his political party, KANU, to challenge ODM. That he has not signed the ODM Constitution and is therefore a stranger to the party. Further, there is no evidence to prove that he has filed this suit on behalf of KANU, which is a body with its own operational structures.
6.The 5th Interested Party further challenged the Complainant’s reliance on the provisions of Articles 22 and 258 of the Constitution of Kenya 2010, arguing that the stated constitutional provisions related to a challenge to the violation of the constitution before the High Court, and that the same did not apply before the Tribunal.
7.Responding to the Complainant’s reference to standing orders, the 5th Interested Party submits that the same do not confer jurisdiction to the Tribunal or any Court, and that the Complaint is an abuse of court process as there seems to be a game being played within Kakamega County Assembly. It is therefore the 5th Interested Party’s prayer that the present Complaint be struck out for want of jurisdiction.
The Complainant’s Submissions in Response to the Preliminary Objection.
8.In response to the Preliminary Objection, the Complainant filed a Replying Affidavit sworn on 9th July, 2024, and Written Submissions dated 29th July, 2024, which he relied on.
9.In crux, the Complainant submits that the dispute subject hereof falls under S.40(1)(b) of the PPA, and that he has instituted the suit on behalf of KANU, and not as an individual. That KANU is a member of the coalition, Azimio la Umoja One Kenya, the 4th Interested Party herein, and the Complainant is a member of the said KANU. That he is aggrieved when his party is ignored by ODM. He relied on the provisions of Articles 22 and 258 of the Constitution of Kenya, 2010, which provides on the right of a person to institute action on behalf of another.
10.He further submitted that 4th Interested Party is a political party. That as a Member of the County Assembly (MCA), the Complainant is aware that ODM is not the majority and his input on behalf of KANU cannot therefore be ignored. It is his submission that there have been attempts to resolve the dispute through the internal dispute resolution mechanisms (IDRM) of the coalition but the same have been unsuccessful.
11.The Complainant maintains that the PO is unmerited, and should be dismissed, to allow the Complaint to be determined on merit.
The 1st and 2nd Respondents Submissions in Response to the Preliminary Objection.
12.The 1st and 2nd Respondents did not enter appearance or participate in this matter despite service.
The 1st Interested Party’s Submissions in Response to the Preliminary Objection.
13.The 1st Interested Party opposes the PO and in opposition thereto, he relied on his Replying Affidavit and Written Submissions dated 29th July, 2024.
14.It is the 1st Interested Party’s contention that Azimio la Umoja One Kenya, the 4th Interested Party herein, is a political party. That the Complainant is a member of the said political party, by dint of being a member of KANU. That the dispute is therefore within mandate of the Tribunal, as it is a dispute between members of a political party called Azimio la Umoja One Kenya. That the Complaint is not premised on the violation of an individual’s rights, but those of a party within the coalition.
15.He further submitted that the Complainant attempted IDRM by submitting a letter addressed to the 4th Interested Party, but was informed by the Registrar of Political Parties (RPP) that their physical offices had been permanently closed. That nonetheless, ODM party attempted to resolve the issue through a meeting held on 10th May, 2024, but no resolution was arrived at nor were the resolutions shared by ODM.
16.The 1st Interested Party prays that the Preliminary Objection be dismissed with costs to the 1st Interested Party.
The 2nd Interested Party’s Submissions in Response to the Preliminary Objection.
17.Counsel for the 2nd Interested Party did not file any written submissions, but submitted orally.
18.He stated that the Preliminary Objection was not a proper one, as it was not on a pure point of law which requires no submission of evidence. That in this matter, parties had filed Replying Affidavits, to submit evidence which the Tribunal should look at. That this in itself is a demonstration that there are contested factual positions that need to be ascertained. The PO does not therefore meet the threshold of pure point of law as the tribunal will have to consider the contested facts through a hearing on merit before deciding thereon, and this cannot be done at this preliminary stage of these proceedings.
19.It is the 2nd Interested Party’s further submission that the nature of the instant disputebefore this Tribunal is not limited to ODM, that the same transcends to the 4th Interested Party as evidenced by averments in paragraphs 9, 10, 11, 14 and 20 of the Complaint. That this explains why the 4th Interested Party was joined in these proceedings pursuant to this Tribunal’s directions. The Tribunal was accordingly referred to Section 40(1)(b) and (e) of the PPA.
20.The Tribunal was further referred to Section 2 of the PPA, where a political party is defined to include a coalition party. The definition of a coalition is the alliance of two or more political parties, and that a coalition political party is registered by the registrar as a political party. The Tribunal was further referred to the provisions of Section 10 of the PPA on the manner of formation of coalition political parties.
21.That it is not contested that the 4th Interested Party is a registered coalition party. That the Complainant, being a member of KANU, has the mandate to bring a dispute as against the 4th Interested Party which is a political party.
The 3rd Interested Party’s Submissions in Response to the Preliminary Objection.
22.The 3rd Interested Party also stands in opposition to the PO. He relied on his Written Submissions dated 29th July 2024.
23.In response to the 1st to 3rd limbs of the PO which it is averred were on the issue of locus of the Complainant, it is the 3rd Interested Party’s submission that the claim falls under Section 40(1)b) of the PPA, being a dispute between member of a political party and a political party. According to the 3rd Interested Party, it did not matter whether the person was not a member of the said political party. That this was similar to Section 40(1)(d) which provides for a dispute between an independent candidate and a political party. He invited the Tribunal to ponder over, where a person aggrieved, like the Complainant herein, would go for redress, if not this Tribunal.
24.The 3rd Interested Party therefore submits that this matter is properly before the Tribunal, pursuant to Section 40(1) (b) of the PPA, and not pursuant to Section 40 (1)(e) of the Political Parties Act.
25.With respect to the 4th to 6th limbs of the PO, the 3rd Interested Party submitted that the Coalition Agreement for the 4th Interested Party makes provision on the establishment of a Dispute Resolution Panel to hear all disputes among coalition partners, and not for individual respective coalition party members and the coalition itself. That the Complainant submitted a letter to the coalition but was informed that the offices had been permanently closed. Notwithstanding the above, ODM called for a meeting of all Azimio members of the County Assembly at Kisumu Social Hall in an attempt to solve the issue but no resolution was reached. That the Complainant therefore had no choice other than coming to this Tribunal to seek assistance since he is not subject to unilateral ODM decisions and IDRM.
26.The 3rd Interested Party contends that the instant dispute is emotive and parties were driven to file affidavits to produce evidence even though a pure point of law does not require filing of evidence. That the Tribunal should therefore look at the nitty gritty details as ODM’s letter changing leader of majority brought about some mayhem and there is need to restore law and order at the County of Assembly of Kakamega
27.It is therefore the 3rd Interested Party’s conclusion that the PO is unmerited and he prays that the same be dismissed with costs to the 3rd Interested Party.
The 4th Interested Party’s Submissions in Response to the Preliminary Objection.
28.The 4th Interested Party did not also enter appearance or participate in this matter despite service.
Tribunal’s Analysis and Findings
29.The Preliminary Objection herein seeks to oust the Complaint herein on the basis that this Tribunal lacks the jurisdiction to hear and determine the same. The grounds of the objection are already highlighted above, and as rightly pointed out by the parties, the same revolve around two broad questions, that is, the question of locus standi of the Complainant to institute these proceedings, and the question of exhaustion of IDRM. We have carefully considered the PO, the Replying Affidavits filed by the Complainant and the 1st Interested Party, as well as the written and oral submissions by all the parties’ hereto.
30.According to the Black Law Dictionary, a Preliminary Objection is defined as being:
31.The above legal preposition has been expounded in the locus classicus case of Mukisa Biscuits Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696, where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure point of law. The Learned Judge then held that: -
32.Justice Prof J.B. Ojwang’, J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR as follows: -
33.And in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court of Kenya stated as follows: -The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
34.Therefore, in order for a preliminary objection to succeed, the following tests must be satisfied.i.The preliminary objection should raise a pure point of law.ii.The preliminary objection must be argued on the assumption that all the facts pleaded are correct.iii.The preliminary objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion. It must not itself derive its foundation on facts or information which stands to be tested by normal rules of evidence.iv.A valid preliminary objection ought if successful dispose of the entire suit.
35.Flowing from the pleadings in the parties’ affidavits and the parties’ submissions, we have noted various contested positions, and we hereunder take the liberty to highlight just as few. Firstly, whereas the 5th Interested Party posits that the dispute is between the Claimant and another political party hence falling outside the provisions of Section 40(1)(b) of the PPA, the Complainant contends that he has filed the dispute on behalf of his political party. The 1st, 2nd and 3rd Interested Parties on the other hand maintain that the Complainant is a member of the coalition by dint of his membership in his political party and the dispute is therefore one between a member of a political party and the political party being the coalition. There is therefore a contest as to the categorization and parameters of the instant dispute before the Tribunal within the provisions of Section 40(1) of the PPA, and also who are the rightful parties who can institute the dispute before the Tribunal.
36.Secondly, there is also a contest as to what extent, if at all, the Complainant’s party membership, by extension or otherwise, grants him any rights, obligations and/or protections under the coalition arrangement. The coalition agreement was in any event, not placed before us, thus limiting the extent to which we could consider the parties’ submissions on the coalition arrangement and the rightful parties to sue and/or institute action.
37.Thirdly, whereas the 5th Interested Party claims that there was no IDRM, the Complainant and the 1st, 2nd and 3rd Interested Parties claim that there was an attempt to resolve the dispute through both the 4th Interested party and the Respondents in vain, with no resolutions being shared, and they have produced documentation to demonstrate the same. There is therefore a contest as to whether the dispute was subjected to IDRM in the first instance and in accordance with the party laws.
38.We cannot therefore assume at this juncture that the facts pleaded by either side in support or opposition to the afore-stated contested positions are correct and/or accepted by the other party. We will need to hear the parties substantively with a view to ascertaining the contested positions. It is therefore our considered view that the PO that has been raised by the 5th Interested Party is grounded on contested factual issues that require ascertainment, and is therefore not a proper PO within the meaning of a preliminary objection as espoused in the above judicial authorities Accordingly, we overrule the same.
39.In regards to costs of the preliminary objection, we are of the considered view that the same be in the cause.
Disposition
40In light of the foregoing, we make the following orders: -i.That the preliminary objection dated 19th July 2024 filed by the 5th Interested Party be and is hereby overruled.ii.Costs in the cause.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 2ND DAY OF AUGUST 2024.HON. DESMA NUNGO, HSC - (CHAIRPERSON)HON. STEPHEN MUSAU MEMBERHON. MUZNA JIN -MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER