[2023] KEHC 24749 (KLR)

Akwaka & another v Political Parties Dispute Tribunal & 5 others (Civil Appeal E159 of 2023) [2023] KEHC 24749 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24749 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E159 of 2023

DKN Magare, J

November 2, 2023

Between

Nelson Efena Akwaka

1st Appellant

Richard Mong’are Barake

2nd Appellant

and

The Political Parties Dispute Tribunal

1st Respondent

Kanini Kega

2nd Respondent

Rachael Nyamai

3rd Respondent

Sabina Chege

4th Respondent

Office of the Registrar of Political Parties

5th Respondent

Ann Nderitu

6th Respondent

Ruling

1. This is a ruling on the preliminary objection dated 23/7/2023 filed by the Advocate for the 2nd to 4th Respondents. In the notice of preliminary they raised the following points:a.This court lacks jurisdiction to hear and determine the Applicants’ Application dated 17th July 2023 and this entire appeal being Mombasa HCCA E159 of 2023 as the same is sub judice given the fact that there is already a similar appeal and application filed in the High Court at Nairobi being Milimani HCCA E630 of 2023 challenging the Political Parties Dispute Tribunal’s judgment in PPDTA Appeal Number E003 of 2023. The application seeking conservatory orders filed in Milimani HCCA E630 of 2023 is scheduled for hearing before Hon. J. Mulwa J. in open court on 13th September 2023. b.This Honourable Court lacks the jurisdiction to issue orders sought in the Applicants’ Application dated 17th July 2023 as the same is sub judice given the interim orders in place in Milimani HCCA E630 of 2023. c.This Honourable Court lacks the jurisdiction under section 41 of the Political Parties Act to hear and determine any question with regards to the Jubilee Party’s Internal Dispute Resolution Committee decision in Dispute No. 005 of 2023 dated 7th June 2023 as it is yet to be appealed at the Political Parties Dispute Tribunal.d.That this Appeal and the Applicant’s Application dated 17th July 2023 are incurably defective, a non-starter, scandalous, frivolous, vexatious, bad in law for the reason that Appellants / Applicants were neither parties in PPDTA Appeal Number E003 of 2023 nor were they parties in any cause before any of the Jubilee Party Internal Dispute Resolution Mechanisms.e.The Appellants have purported to enjoin themselves and other parties in this Appeal and strike out parties who were parties in the primary suit in the Political Parties Dispute Tribunal being PPDTA Appeal Number E003 of 2023 in gross abuse of law and procedure.

2ndto 4thRespondent’s submissions 2. Despite the provisions of article 165 of the constitution the 2nd to 4th Respondents had the audacity to submit that the high court did not have jurisdiction to hear this matter. The same is based on facts that there are other appeals elsewhere. He relied on annexture JKK-1B.

3. They also relied on the aspect of sub judice. They relied on the supreme court decision in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR, where the supreme court stated as doth: -“(67)The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

4. I wish the counsel could have calmed down and read the decision especially the part he was quoting. The supreme court was advising that facts supporting sub judice must be established. It must be shown to be between same parties and same subject matter. I digress.

5. They also relied on a persuasive case of Okiya Omtatah Okoiti & another v Ministry of Transport & Infrastructure & 4 others [2016] eKLR, where justice ISAAC LENAOLA, as he then was stated as doth: -“28. In that regard, what is sub judice in law? Section 6 of the Civil Procedure Act exemplifies the rule of sub judice in the following terms:““No Court shall proceed with the trial of any suit or proceeding on which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim, litigating under the same title where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief sought.”29. The doctrine therefore suggests that a Court is barred from hearing and determining a matter which is under consideration before another Court of competent jurisdiction. In that regard, it has been held that this principle of civil litigation is equally applicable to Petitions under the Constitution within the wider meaning of the expression “other proceeding” and no litigant in an ordinary civil case is at liberty to institute a multiplicity of sits on the same claim or subject matter, and similarly, no litigant in the name of a Petitioner is at liberty to institute another suit in the guise of a constitutional Petition in the pendency of a suit seeking the same reliefs or remedies – See Maggie Mwauki Mtalaki v HFCK (supra).”

6. To buttress their point they relied on Leonard Omullo v National Land Commission [2021] eKLR, where Justice Nzioki Wa Makau, stated as doth:“12. Costs ordinarily follow the event. Whereas the Petitioner is seeking to articulate his perceived rights, he took a gamble when he filed the Petition herein when the matter is before the Court of Appeal. Having taken the step to play Russian roulette with his claims, he must bear the consequences of the misstep. The Petition herein is sub judice and no judicial craft or innovation can save it from this inevitable fate – Petition is struck out with costs to the Respondent.”

7. They then relied on section 41 of the political parties act, 2011. The state that the decision of 5/6/2023 is yet to be appealed to the political parties tribunal. I think the 2nd to 4th Respondent lost me here. I shall not regurgitate the contents therein as they are circumlocutory and no point comes out. The rest of the submissions are on the merit of the application.

Appellant’s submissions 8. They submitted that the contents of section 6 of the civil procedure are succinct. To them there are no two appeals by the same party. They also relied on the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR. They relied on the same paragraph 67 as the 2ND to 4th Respondents did.

9. There view is that the right to litigate cannot be defeated simply because another litigant has approached the court. They rely on the case of to state that the court should not use draconian measures to prevent justice.

10. Just in jest and to contextualize the term draconian, it has a Greek origin from Athens. Draco was a Greek law giver named after the Greek dragon god draco. His laws were really harsh and repressive and mist of the tie too restrictive. In ancient Athens, Draco was a guy who made some seriously strict laws and sometimes out rightly unfair. On the bright side Draco, who lived in 600 BC, a written constitution to govern Athens and standardize the punishments for crimes.

11. Its earliest use in our laws was in the case of DT Dobie & Company Ltd vs Muchina [1982] eKLR, where it was stated thus;“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the Court. At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way. As far as possible indeed, there should be no opinions expressed upon the Application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.” (emphasis mine)

12. They relied on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR, where the court of Appeal, Ouko, Kiage & J. Mohammed, JJ.A, stated as doth: -“The power to strike out pleadings, and in the process deprive a party of the opportunity to present his case has been held over the years to be a draconian measure which ought to be employed only as a last resort and even then only in the clearest of cases. Yet the period prior to 2010, when the overriding objective principle and the Constitution were promulgated, striking out of pleadings, as demonstrated by the cases cited by the respondents, for reasons that were purely technical was the rule rather than the exception. And this Court perfected it. This is demonstrated by the brief (1/4 page) decisions cited by the respondents in Augustino Mwai V. Okumu Ndede, Nbi Civil Appeal No. 42 of 1995, Joseph Kinoti V. Aniceta Ndeti Nbi Civil Appeal No. 130 of 1995 and Samuel Wakaba V. Bamburi Portland Cement Civil Appeal No. 130 of 1995, all decided between 1995 and 1997. Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”

13. Regarding Section 41 of the political parties act, 2011, the Appellant states that the same is misplaced and in any case this cannot be determined in this forum.

14. The issue of locus standi they submit that the same is frivolous. He relied on HC Misc Application No 58 of 1997 – Hon Raila Odinga vs Hon Justice Abdul Majid Cockar and Republic––vs- GBM Kariuki Misc Cr Appl No 6 of 1994 which are authorities for the proposition that for a party to have locus standi in a matter he ought to show that his own interest particularly has been prejudiced or about to be prejudiced. If the interest in issue is a public one, then the litigant must show that the matter complained of has injured him over and above injury, loss or prejudice suffered by the rest of the public in order to have a right to appear in court and to be heard on that matter. Otherwise public interest are litigated upon by the Attorney General or such other body as the law sets out in that regard.

15. They also deal with the sisieu of the application being scam=dolous. For reasons that will be apparent shortly, I shall not deal with those submissions.

Analysis 16. The preliminary objection lacks merit and shall be dismissed in limine shortly.

17. An appeal from the political parties disputes tribunal is appealable to the high court. It is mischievous for a party to allege that there are other processes that an applicant ought to follow before Appealing. The issues raised in ground care ipso fact otiose and has no basis in law. Regarding ground d, it is a point without a point. It is the classic case on house advocates in a bid to obfuscate issues and engage the court in wild goose chase collects a collection of English words and calls them a preliminary objection. There is absolutely no point of law.

18. An appeal is a secondary process. It does not deal with merit or no merit. It is the court that has to peruse the memorandum of appeal and admit the same. I have perused the memorandum of appeal and noted the same is a proper appeal for hearing. There is nothing to strike out in an appeal unless it is filed out of time. No court can limit who gets aggrieved by a decision of the court. Secondly, if this was a main pleading like plaint then order 2 rule 15 should have sufficed. It provides as doth: -“Striking out pleadings [Order 2, rule 15. ](1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—a.it discloses no reasonable cause of action or defence in law;b.or it is scandalous, frivolous or vexatious; orc.it may prejudice, embarrass or delay the fair trial of the action; ord.it is otherwise an abuse of the process of the court,and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.(2)No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made.(3)So far as applicable this r. shall apply to an originating summons and a petition.”

19. Once a party forms an opinion that a pleading is or it is scandalous, frivolous or vexatious, then an affidavit and application justifying the same should be filed. I get an uncanny feeling that the 2nd to 4th Respondents do not wish the matter to proceed on merit. Otherwise no sane person can raise an issue that an appeal is or it is scandalous, frivolous or vexatious and call that a preliminary objection. It is a time wasting gimmick.

20. I skipped the first 2 grounds of objection as the were too frivolous for the court to start with them. The superior courts in Kenya, Uganda and Tanzania including the court of appeal for the former eastern Africa have many times rules on what constitutes a preliminary objection.

21. Immediately the 2nd to 4th Respondents found themselves referring to annextures, cases and dates they ought to have known that they have crossed the Rubicon. ;subjudice is obtained from pleadings. The court must make a factual finding to be able to find that a matter is subjudice. As matters standard, there is no law establishing HCCA E630 OF 2023. The court has no duty to peruse anything more than the memorandum of appeal. In the memorandum of Appeal, HCCA E630 OF 2023 is not pleaded.

22. The issue then could only arise vide an application annexing those documents. It is important to note that the court, while handling preliminary objections is blind to the facts. It only deals with pure points of law. Pure points of fact or mixed points of law and fact cannot be a basis for a preliminary objection.

23. To handle a preliminary objection, the court proceeds on an understanding that what is pleaded in the plaint is true. It is what the English common law used to call a demurrer. The locus classics case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd [1969] E.A. 696, made this pertinent observation. It said: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuses issues. This improper practice should stop".

24. In a Tanzanian case of Hammers Incorporation Co. Ltd Versus The Board of Trustees of The Cashewnut Industry Development Trust Fund, the Court of Appeal, (Rutakangwa, N. P. Kimaro and S. S. Kadage JJA), sitting in Dar es salaam in their decision given on 17/9/2015, regretted that the practice of raising preliminary objection that was frowned upon by the Court of Appeal in Kampala in the Mukisa biscuit case(Supra) still persists. They stated as doth: -“It was hoping against hope. We believe that had that Court survived to this day it would have issued a sterner warning. This is because the "improper practice" never stopped. Neither did it ebb away. On the contrary, it is on the increase. This forced the Full Bench of this Court in Karata Ernest & Others V the Attorney General, Civil Revision No. 10 of 2010 (unreported) to mildly urge all parties in judicial proceedings to pay heed to what was aptly pronounced in the Mukisa Biscuit case (supra). The late call appears to be falling on deaf ears as this ruling will demonstrate.”

25. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, Justice Kiarie Waweru Kiarie, summarized the preliminary objection nicely as seen from two of the judges in Mukisa Biscuit Manufacturing Co. Ltd(supra): -“A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:....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.At page701 paragraph B-C Sir Charles Newbold, P. added the following:A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”

26. A Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest & Others vs Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, J.A. , Ramadhani, C.J. , Rutakangwa, JJA), put the issue of preliminary objections in a more succinct manner: -“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists of a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.”

27. 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:“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

28. It is therefore my view that a preliminary objection must be based on current law, and be factual in its constitution. It cannot be based on disputed facts or fats requiring further enquiry. In determining a preliminary objection therefore only 3 documents are required in addition to the constitution. The impugned law, the pleading (in this case the memorandum of Appeal and the notice of preliminary objection. If you have to refer to the defence, an affidavit, some other suit or appeal filed elsewhere, it is not a pure point of law and thence, the preliminary objection is untenable.

29. When the preliminary objection is raised on jurisdiction, I recall the decision of Justice Nyarangi JA, as he then was in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where he posited succinctly as follows: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:““By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance 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 the 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 cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

30. An appeal from the political parties dispute tribunal lies to the high court by dint of section 41 of the Political Parties Act. It does not lie to environment and land court or even the employment and labor relations court.

31. Section 41 of the Political Parties Act provides as doth: -41. (1)The Tribunal shall determine any dispute before it expeditiously, but in any case shall determine a dispute within a period of three months from the date the dispute is lodged.(2)An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court.(3)A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates Court.(4)The Tribunal shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80) and the Civil Procedure Act (Cap. 21), with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities.

32. For purposes of this appeal, it is irrelevant whether internal mechanisms were followed. The matter has been dealt with and the Appellant has being aggrieved by the decision of the tribunal. By didn’t of section 41(2) that appeal lies this court. We cannot deal with the factual matrix at the appeal level.

33. I have said enough to show that the preliminary objection lacks merit and is dismissed with costs of 30,000/= payable to the Appellant within 21 days.

34. The court shall issue directions on the remaining issues delivery of this ruling. though I had given a ruling date for 21/11/2023, I concluded the same long before time and I found it necessary to issue notice for today.

35. Meanwhile, there I extend the orders issued on 21/7/2023 till hearing and determination of the application dated 17th July 2023. Parties to file submissions limited to 5 pages though PDF and not scanned. the appellant to file by 7th November 2023 and the respondents by 12th November 2023.

Determination 36. The upshot of the foregoing is that I make the following orders:-a.The preliminary objection dated 24/7/2023 lacks merit and is dismissed in limine with costs of 30,000/= to the Appellant payable by the 2nd to 4th defendants within 21 days, in default execution to issue.b.The court shall issue directions on the remaining issues upon delivery of this ruling.c.Meanwhile, there I extend the orders issued on 21/7/2023 till hearing and determination of the application dated 17th July 2023. Parties to file submissions limited to 5 pages though PDF and not scanned. The appellant to file by 7th November 2023 and the respondents by 12th November 2023. d.This matter shall transferred to Nairobi and listed before Justice Mulwa J 14/11/2023 for directions.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 2ND DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Manyara for 2nd to 4th RespondentMr. Derrick Odhiambo for the AppellantNo appearance for 5th, 1st and 6th Respondent