[2022] KEPPDT 1074 (KLR)

Anyetu v Democratic Action Party Kenya & another; Kisuya & another (Interested Parties) (Complaint E015 (ELD) of 2022) [2022] KEPPDT 1074 (KLR) (Civ) (12 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1074 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E015 (ELD) of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

August 12, 2022

Between

Brian Anyetu

Complainant

and

The Democratic Action Party Kenya

1st Respondent

The Democratic Action Party Kenya

2nd Respondent

and

Barbra Kisuya

Interested Party

Rose Lusike Murunga

Interested Party

Judgment

1. The Complainant is a member of the Respondent. The Respondent is a registered political party and 1st and 2nd Interested Parties are resident in Trans Nzoia County and are nominees in the Respondent’s Party list to the Trans Nzoia County Assembly.

2. The Complainant did not apply for his nomination to any position of Member of County Assembly, Trans Nzoia County and is challenging the inclusion of the names of the 1st and 2nd Interested Parties as he alleges that they are not members of the Respondent’s Political Party on the one hand and are family members related to high-ranking officials of the Respondent on the other hand.

3. That the Complainant brings this complainant due to the disenfranchisement he alleges caused by the nepotism of the high-ranking officials of the Respondent to members of the political party by tainting the nomination processes .

4. The Complainant filed his pleadings dated 6th August 2022 , further affidavit dated 10th August 2022 and submission dated the 10th of August 2022. Submissions were highlighted on the 11th August 2022 by both Counsels for the Complainant.

Complainant’s Case 5. The Complainant is a member of the Respondent Political Party and challenges the inclusion of the 1st and 2nd Interested parties to the Respondent’s party list and further alleges that their inclusion was un- procedural, nepotistic and ultra vires the Respondent political party’s constitution. The complainant is apprehensive that the Respondent’s Nominees will be Gazetted any time and seeks an injunction pending the hearing and determination of his complaint before the party’s dispute resolution tribunal and this honourable tribunal.

6. The Complainant avers that the 1st and 2nd Interested parties were nominated by the Respondent, yet they are not members of the Respondent. He further contends that the two persons are relatives of a high party official. He asserts that the Party List submitted to the Independent Elections & Boundaries Commission (IEBC), does not reflect the democratic will of the party membership and is in breach of the Respondent’s constitution and the Constitution of Kenya.

7. The Complainant wrote to the Election Board Chairman of the Respondent vide a letter dated 27th July 2022 raising his concerns and seeking audience to table his grievances, and on not receiving a response, followed this up with another letter dated 5th August 2022. The Complainant seeks the following: -a.That the Independent Electoral and Boundaries Commission (IEBC) be restrained from gazetting the Respondent’s Party Gender List for Trans Nzoia County until this complaint is heard and determined by this Tribunal.b.That the Respondent be directed to hear and determine the Complainant’s complaint.c.That the Independent Electoral and Boundaries Commission (IEBC) be restrained from gazetting the Respondent’s Party Gender List for Trans Nzoia County until this complaint is heard and determined by the Internal Party Structures.d.That the Respondent pays costs with interest from 27th July, 2022 until payment in full.e.Any other and further order that the tribunal may deem just.Respondent,1St And 2Nd Intrested Party’s Case

8. The Respondent,1st and 2nd were jointly represented by their advocate vide a memorandum of appearance dated the 9th August 2022, and saw the filing of a Notice of Preliminary objection and a replying affidavit all dated the 9th of August 2022. Submission dated the 11th August 2022 which was presented before this Tribunal with highlighting of the same being done on the 11th August 2022.

Tribunal’s Analysis And Determination 9. We have reviewed of all documents and pleading filed and annexed by the parties and considered the well-thought through submission by the Counsels on record and note their dexterity in addressing this matter . The Tribunal therefore list the issues for determination as follows:a.Whether this dispute falls within the mandate of the Tribunalb.Whether the Complaint has merit and the remedies thereto.c.Costsa.Whether this dispute falls within the mandate of the Tribunal.

10. The Claimant did provide us with a membership receipt of DAP-K depicting his membership to the Respondent. The Complainant states that the membership of the interested parties are questionable and that their family ties of the interested parties to a high-ranking official of the Respondent as he alleged gave them an unfair advantage in the nomination exercise. The Complainant attached a copy of the letter that was submitted to the Respondent on 27th July 2022 and a follow up letter date 5th August 2022.

11. The Complainant is aggrieved with the manner in which his political party decided to nominate its Party List membership to the Trans Nzoia Assembly. The Complainant did not apply for consideration for any nomination by the political parties and is solely driven by his protection of the public good in ensuring political parties affairs are democratic, transparent and accountable.

12. This therefore depicts that this dispute falls under Section 40(1),Section 40(2) as read with Section 40(1)(fa). Precisely this Tribunal derives its jurisdiction from Section 40 of the Political Parties Act No. 11 of 2011 as follows;(1)The tribunal shall determine-a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act;and(fa)disputes arising out of party nominations.(2)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 to subject the dispute to the internal political party dispute resolution mechanisms.

13. The tribunal is well aware that under Section 40 (2) of the Political Parties Act, it is the obligation of the parties to exhaust or attempt to exhaust internal dispute resolution mechanisms before moving this tribunal.

14. The issue of jurisdiction is a pure point of law because jurisdiction is everything and flows from the law. If a court does not have jurisdiction it has to down its tools.13. According to Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 defines “jurisdiction” as:“…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”

15. John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol.3, at page 113 reiterates the definition of the term ‘jurisdiction’ as follows:“By jurisdiction meant the authority which a Court has to decide matters that are litigated before it or to 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”.

16. From these definitions, it is clear that the term “jurisdiction”, as further defined by The Black’s Law Dictionary, 9th Edition, is the Court’s power to entertain, hear and determine a dispute before it.

17. The Supreme Court in the decision of Re: The matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011 (unreported) at paragraphs 29 and 30 discussed the issue of jurisdiction in the following manner: -“29. Assumption of jurisdiction by courts in Kenya is a subject regulated by the constitution; by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel “Lilian S’ vs. Caltex Oil (Kenya) Limited (1989) KLR 1, which bears the following passage (Nyarangi, JA at page 14. ): -“By jurisdiction is meant the authority which a court has to decide matters that are 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 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 cognizance, or as to the area over which the jurisdiction shall extend, or it may partake both of 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 the 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...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 downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

18. The Tribunal wishes to clarify the legal position at the onset that the 2022 in amendments to the political parties Act, Amendment 27 saw the deletion of the word “party primaries” immediately section 40(1) (fa) and replaced it with “party nomination”.

19. On the second front does this dispute fall within Section 40(1) it is indeed a dispute between a member of a political party and the political party thus this first hurdle is crossed on to the second issue whether section 40(2) of the Political Parties Act was complied with to clothe this Tribunal with jurisdiction. Reliance is made to the Supreme Court’s decision in Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Court pronounced itself thus;“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

20. In determining Jurisdiction of the Tribunal further, we evaluate if the dispute falls within the provisions of Section 40 and if the claimant showed evidence of an attempted to have the dispute resolved through the political party’s IDRM in accordance with the political Party’s Constitution.

21. The Complainant alleges that they satisfied this requirement through his communication to The Chairman of Election Board DAP-K dated the 27th July 2022 and a follow-up letter dated the 5th of August 2022. There was no response from the Respondent to the two letters sent by the Complainant.

22. The Respondent,1st and 2nd Interested Parties pointed to the Tribunal that the Complainant did not attempt the use of the party’s IDRM as such the Tribunal lacks Jurisdiction vide section 40(2) to hear this dispute. In depicting this the Counsel for the Respondent and Interested parties filed a preliminary objection dated the 9th of August challenging the Jurisdiction of this Tribunal.

23. Counsel for the Respondent and interested parties stated that the Letter used by the Complainant to activate the IDRM was dated 27th July 2022 and signed at the bottom with another date being 6th August 2022 adjacent to the Signature and the said letter had been received on the 27th August 2022. He further stated the second letter dated 5th August 2022 and received on the 5th August 2022 referred to this letter dated 27th July 2022 and received on 27th August 2022. Counsel therefore submitted this letter were never received by the party and the stamps on the letters did not belong to the political party.

24. In a rejoinder by the Complainant the Tribunal was urged to apply the deminimis rule in the date mishaps and was told this was a minor mistake due to the hasten manner in which the political disputes were to be determined. Equally the Tribunal was beseeched to note that this mistake ought not to be attributed to a layman seeking justice.

25. Does the Tribunal opine that the Complainant has shown a genuine attempt at exhausting IDRM and as such is properly before this tribunal or has the Respondent failed to activate the IDRM so as to frustrate the Complainants access to justice to warrant this Tribunal’s intervention as was the position of the Courts in the Case of George Okode & Others vs Orange Democratic Movement & Others Petition No. 294 of 2011, Majanja J clarified those provisions of Section 40(2) of the Political Parties Act by stating that,“The same should be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism.”

26. A careful examination of the two prayers by the Complainant, Respondent and Interested parties though separate their effect in outcome is similar. What are we saying? It is was admitted by Counsel for the Complainant that they did not participate in an IDRM process due to the non-responsiveness by the party, equally it is submitted by the Counsel for the Respondent and Interested parties that the IDRM process was not used and they were not moved at all.

27. The Tribunal notes that the Complainant states that he is a member of the Respondent party and sought audience of the Party to ventilate his concerns. Given the proximity to the general elections scheduled for 9th August 2022 and that has since passed , it was necessary for the Respondent to acknowledge and in the least revert to the complaint. It was necessary that they give a direction on the same so as to calm the anxiety in its member who expected expeditious action in a limited time span.

28. The Fact that the Respondent has defended this Complaint we would beseech the party to endeavour to address this matter with the same zeal through its IDRM to ensure its member accesses justice and the audience he so demands. He needs to be assured that the aspiration of his political party is still on course and that the nomination exercise for the Trans Nzoia County Assembly Party List was unbiased.

29. In the Complaint and during highlighting of submissions Counsel for the Complainant invited the Tribunal to venture into the merits of the Complaint, to which we respectfully decline.

30. We therefore return a finding that in accordance with Section 40(2) of the PPA the Tribunal lacks Jurisdiction as the letter dated 27th July 2022, signed on 6th August 2022 and further received by the Respondent on the 27th August 2022 as evidenced does not amount to an attempt within the meaning of the law.

31. This inconsistency in the dates in the letter by the Complainant is not a minor issue as opined by Counsels for the Complaint. This date depicts evidence of using the IDRM processes before filing a dispute at the Political Parties Disputes Tribunal. It is not a mere formality but a statutory requirement.

32. Because we do not have jurisdiction it is unfortunate that we could not order the Respondent to constitute its IDRM and address this matter urgently. Nonetheless nothing stops us from encouraging the Respondent who was represented by Counsel to open the doors of its political party’s IDRM once properly moved by the Complainant in the interest of fostering party unity and ensuring access to justice for all. It is the proper thing to do.

Final Ordersi.The Complainants complaint does not succeed and is hereby dismissed. ii. Each party to bear their own costs in the interest of fostering party unity.Those are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 12TH AUGUST 2022. HON. LIGUNYA STEPHEN PRESIDING MEMBERHON HASHI AMINA MEMBERHON ANDREW WARUHIU MEMBER