[2022] KEPPDT 919 (KLR)

Bassy v United Democratic Alliance & 2 others (Tribunal Appeal E014 of 2022) [2022] KEPPDT 919 (KLR) (Civ) (11 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 919 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Tribunal Appeal E014 of 2022

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

August 11, 2022

Between

James Koskey Bassy

Complainant

and

United Democratic Alliance

1st Respondent

Tarbei Josphat Kipchumba

2nd Respondent

Faraj Salima Ali

3rd Respondent

Judgment

1. The complainant in this matter avers that he is a member of the Respondent Party. He files this complaint to challenge the nomination of the 2nd and 3rd Respondent as party nominee for the marginalized category in Nandi County in the forthcoming general elections scheduled for August 9, 2022.

2. He has moved this tribunal to issue orders directing the 1ST Respondent to include his name on the nomination list for the marginalised category in Nandi County. Also for an order that the 2nd and 3rd Respondent cannot be nominated as theya re not members of the Talai Clan.

3. The complaint is opposed by the 2nd and 3rd Respondents who aver that they are indeed not members of the Talai Clan but that they represent other marginalised communities in Nandi County, being the Tirik and the Arabs within Nandi County. They also have raised a preliminary objection and further allege that the entire complaint is without merit and is for dismissal.

4. This matter came up in the first instance on August 5, 2022and was duly dealt with by the tribunal and the following orders issued:iThat the Complaint dated August 4, 2022 be and is hereby certified as urgentii.That the Complaint be served upon the Respondents by close of day on August 5, 2022iii.That the Respondents to file and serve their responses to the pleadings by close of day on August 6, 2022iv.That the Complainant to file and serve further affidavit if need be together with written submissions to the complaint by 11. 00 am on August 7, 2022v.That the Respondents to file and serve their written submissions on the complaint by 4pm on August 7, 2022vi.That the matter be heard by way of highlighting submissions on August 7, 2022 at 5. 30 pm.

5. What the matter came up for hearing, the Respondents were still having challenges with the E filing platform and that necessitated the adjournment of the matter to August 8, 2022, when the parties confirmed all their documents had been received. They were content to let the tribunal determine the matter based on the documents on record and it was so ordered.

The Claimant's Case 6. The claimant is a member of the 1st Respondent. He files this case seeking two principle orders: the first is for the tribunal to order the 1st Respondent to include the Complainants name in its final nomination list of marginalised category list in Nandi County, member of County Assembly. The second order was for this tribunal to declare that the 2nd and 3rd Respondents cannot be nominated as they are not members of the Talai Clan.

7. The Complainant states in his letter dated August 3, 2022 that upon receiving the approval of the elders and community of the Talai clan, (as evidenced in the letters from the said elders annexed to his complaint), he applied for the position in question.

8. It is his case that the 1st Respondent did not nominate him, but rather listed the 2nd and 3rd Respondent as its nominees for the marginalised category to his exclusion. He submits that the said Respondents not being members of the Talai Clan were not capable of being nominated for the said slots. It is his case that the 2nd and 3rd Respondents are not from any marginalised group.

9. He indicates that he did endeavour to engage internal dispute resolution mechanism of the party but to no avail. To this end he availed a series of emails that he had sent to the 1st Respondent protesting the nomination exercise. These letters it is his case received no response and were unaddressed.

The 2nd and 3rd Respondents Case 10. The 2nd and 3rd Respondents opposed the claim on a number of basis and also raised a preliminary objection to the entire matter.

11. In the said preliminary objection, the 2nd and 3rd Respondents averred that the tribunal lacks jurisdiction to hear the Complaint as it offends Sections 40 (1) and (2) of the Political Parties Act and Article 38 (ii) of the United Democratic Alliance Constitution, in so far as failure to exhaust Internal Dispute Resolution Mechanism.

12. In its substantive response to the matter, the Respondents filed a replying affidavit dated August 6, 2022. In the said affidavit, they averred that the Complainant had not applied for the post in question and as such could not claim the same. That the alleged application by the Complainant if any, is alleged to have been made on April 30, 2022, well prior to the call of applications by the 1st Respondent on May 19, 2022. As such they aver that the Complainant did not apply for the said post.

13. It is the Respondents case that they did apply, being members of marginalised communities being the Terik and Arabs respectively and having fulfilled all the application requirements, they were duly nominated.

Tribunal's Analysis 14. This tribunal has had occasion to appreciate the pleadings, submissions and authorities filed by both parties to the matter and now phrases the following as issues for determination:a.Did the Claimant exhaust or attempt to exhaust the Internal Dispute Resolution Mechanism as required in law?b.Did the Claimant actually apply for the nomination slot of the 1st Respondent?c.Is the Claimant entitled to the prayers sought in its Complaint?

Did the Claimant Exhaust or Attempt to Exhaust the Internal Dispute Resolution Mechanisms as Required in Law? 15. This issue arises squarely out of the preliminary objection filed by the 2nd and 3rd Respondents. The Preliminary objection is stated as follows:“That, this Honourable Tribunal lacks the jurisdiction the to hear and determine this complaint as it offends the mandatory provisions of sections 40(1) and (2) of the Political Parties Act and Article 38 (ii) of the United Democratic Alliance (UDA) Constitution which require that Internal Dispute Resolution Mechanisms (IDRM) as anticipated therein be exhausted before any complaint is filed before this Tribunal.”“That, this Complaint is not properly before this Honourable Tribunal hence an abuse of Court process having been filed prematurely.”

16. The crux of this objection goes to the issue of jurisdiction of the Honourable Tribunal. A challenge as to jurisdiction cannot be wished away or subsumed within the general rubric of arguments on the merits and demerits of the matter. It must be determined as a precursor, as it will determine whether or not the tribunal still has any capacity to take up its tools any further.

17. We refer to the Court of Appeal decision in the case of Phoenix of East Africa Assurance Company Limited v SM Thiga t/a Newspaper Service in which the court observed as follows:“At the heart of this appeal is the issue of jurisdiction. It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction"“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae.”

18. The court duly underscored the importance of jurisdiction and this has been stated severally and unequivocally in multiple decisions of the Courts. The jurisdiction of a tribunal stems from the Constitutionand from Statute. And in ours, it stems principally from Section 40 (2) of the Political Parties Act that provides:“Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) and (fa) unless a party to the dispute adduces evidence of attempt to subject the dispute to the internal political party dispute resolution mechanism.”

19. We note that the 2nd and 3rd Respondents relied on the previous provision and quoted it as it was prior to the 2022 amendments. We have set out the proper provision.

20. We also note that the current dispute falls squarely within the dispute contemplated in Section 40 (1) (b) and therefore properly a dispute regulated by the pre requisites of Section 40 (2) set out above.

21. The precipitate and ineluctable discourse that must now follow, is whether the Claimant herein did fulfil the mandatory step anticipated in Section 40 (2) as to accord this Tribunal the jurisdiction to hear and determine this matter.

22. In this respect, the tribunal takes cognisance of the complaint form, Form 1A as filled and filled by the Complainant. Specifically his response to the question whether there have been any efforts to resolve this matter within the party. To this his answer was”Yes, on 11th July as per the attached emails.”

23. Attached to the complaint were a series of emails sent by the complainant to the 1st Respondent.i.The first one was sent on Wednesday 3rd August at 1,16pm, to the addressee nomination@uda.ke. It was attaching his complaint.ii.The second one was sent on Wednesday 3rd August at 4. 45 pm, to the addressees nominations@uda.ke; hello@uda.ke; nomination@uda.co.ke

24. The Complainant in addition to these emails, also did attach a complaint letter dated August 3, 2022. The said letter was written by the Complainant to the Chairman UDA National Elections Board.

25. In the said letter the Complainant talks of a forwarding his application, upon approval by the elders and community. He goes further to then request that he be considered for the nomination of member of county assembly, representing the marginalized group, the Talai Clan, living in Kapsisywa, Nandi County. He gives the party 24 hours to respond failing which he would proceed to file his complaint at the IEBC.

26. Suffice it to state that at a prima facie look, these emails and letter would be the basis upon which we would have to make a finding on fulfilment or otherwise of the requirement of Section 40(2). However the narrative does not end there we note.

27. In the first instance, the letter above stated talks of an application that had been forwarded by the Claimant, but the said application in and of itself we regrettably note was not furnished to the tribunal. We as such had no benefit of reviewing the same and its sufficiency or lack thereof.

28. That even assuming that the letter dated August 3, 2022 was to be considered an attempt at exhausting the IDRM, the main issue that however tilts the scale to us is service of the letter. Was this letter ever served upon the 1st Respondent? We hasten to note that this issue was equally raised by the 2nd and 3rd Respondent.

29. On our part, we raise this issue premised on the very evidence and material provided by the Claimant himself. We noted that under each and every email sent by the Claimant, was a response from mailer-demon@yahoo. In the said delivery report, the claimant was at every instance informed that the emails he had sent had not been delivered to the address he had indicated.

30. This means that the Claimant was either aware or ought to have been aware that the emails he had sent had bounced and were undelivered. It also raises the question, where had he gotten the email addresses that he had used? We certainly have no idea.

31. The upshot is that we are satisfied that the complainants complaint letter and notice to the party, were never served upon the 1st Respondent. In this respect therefore we would be hard pressed to find that there had been an attempt to exhaust IDRM or that the 1st Respondent had failed and or refused to activate IDRM.

32. We thus find merit in the preliminary objection and we uphold the same. This tribunal has no jurisdiction to entertain this matter any further and must accordingly lay down its tools and take no other or further step in this matter. The rest of the issues in the matter unfortunately therefore find no daylight before us and cannot be addressed in light of our finding on jurisdiction.

Disposition and final orders We do therefore in conclusion render the following Orders:1. The Complaint dated August 4, 2022 be and is hereby dismissed.2. Each party to bear its own costs.Those are the Orders of the Tribunal

DATED AT NAIROBI THIS 11TH DAY OF AUGUST 2022Hon. LIGUNYA STEPHEN BIKO –PRESIDING MEMBERHon. AMINA HASHI --MEMBERHon. ANDREW WARUHIU -MEMBER