[2022] KEHC 11691 (KLR)

Chama Cha Uzalendo & 4 others v Registrar of Political Parties & 2 others (Petition E013 of 2022) [2022] KEHC 11691 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11691 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition E013 of 2022

JM Mativo, J

May 17, 2022

Between

Chama Cha Uzalendo

1st Petitioner

Maur Abdalla Bwanamaka

2nd Petitioner

Lawrence Ngovi

3rd Petitioner

Alex Nyaga

4th Petitioner

Pius Makani

5th Petitioner

and

Registrar of Political Parties

1st Respondent

Ann Nderitu

2nd Respondent

Attorney General

3rd Respondent

Ruling

1. This ruling determines three Preliminary Objections separately filed by the Respondent all seeking to upset these proceedings. The common thread between the three objections is that they all argue that this court is divested of jurisdiction to hear and determine this Petition on account of the Petitioner’s failure to exhaust the dispute resolution mechanism provided under the applicable statute. Undeniably, a court has to be competent in the sense that it has jurisdiction before it can undertake to probe and decide the rights of the parties. But because jurisdiction is regarded as a threshold issue and a lifeline for continuing any proceedings, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court; to consider it and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted.

2. For a proper appreciation of the three Preliminary Objections, it is necessary to highlight, albeit briefly, the Petitioners’ core grievance as disclosed in the Petition. For starters, the 1st Petitioner, Chama Cha Uzalendo is a Political Party duly registered under the Political Parties Act(the PPA),an Act of Parliament enacted to provide for the registration, regulation and funding of political parties, and for connected purposes. The 2nd, 3rd and 4th Petitioners in their own words state that they are officials and members of the said party.

3. For completeness, the 1st Respondent is the Registrar of Political parties established under section 33 of the PPA.The 2nd Respondent is the Registrar of Political Parties appointed as such under section 33 of the PPAwhile the 3rd Respondent is the Honourable Attorney General, an office established under Article 156 of the Constitution. Pursuant to Article 156 (4), he is the principle legal adviser to the Government, he represents the national government in court or in any other legal proceedings to which the national government is a party other than criminal proceedings and he performs any other functions conferred on the office by an Act of Parliament or by the President.

4. The nub of the Petitioners’ grievance as I glean it from the Petition is that the 2nd to 5th Petitioners are aggrieved by a change of office bearers of the party effected vide the impugned Gazette Notice(s). They contend that the changes as communicated in the impugned Gazette Notice were done illegally and without approval of the party organs. It’s on the basis of this contestation that the Petitioners a raft of declarations/orders evidently directing their wrath against the Registrar of Political Parties for publishing the impugned Gazette Notice thereby bringing the said changes into effect. Curiously, despite the assault of the Gazette Notices, the no prayer has been sought seeking to quash the Gazette Notices.

5. The first Notice of Preliminary Objection dated April 11, 2022 was filed by the 2nd Interested Party citing 4 grounds which can be condensed into one, namely; that this court has no jurisdiction to hear and determine this matter because under section 40 (1) & (2) of the PPA, all disputes between members of a political party or a party and its members have to be referred to a party’s internal dispute resolution mechanism before a dispute is referred to the Political Parties Disputes Tribunal (PPDT) and thereafter to the High Court as an appellate court.

6. The second Preliminary Objection dated April 12, 2022 was filed by the 1st Interest Party stating: - (a) that the 2nd applicant lackslocus standi to institute this case because on December 7, 2015, the court in Misc App No 480 of 2015 restrained him from acting or purporting to act as an official of the party pending the hearing of Civil Appeal No 544 of 2015, hence this Petition is sub judice; (b) absence of authority and a resolution authorizing the filing of the Petition; (c) that the Petition offends Order 1 Rule 13 of the Civil Procedure Rules, 2010; (d) failure to exhaust the dispute resolution mechanism provide under section 40 (2) of the PPA; (e) that the Petitioner is forum shopping/abuse of court process; (f) that the Petition is res judicata because the issues cited were determined in PPDTAppeal No 4 of 2019 and Misc App No 480 of 2015.

7. The third Notice of Preliminary Objection was filed by the 1st and 2nd Respondents on April 20, 2022 objecting to this court’s jurisdiction citing sections 40 (10 (f) (2) and 41 of the PPA.

8. Mr Wanyama, counsel for the 2nd Interested Party submitted that the Petition discloses a dispute between members of a political party. Citing sections 39, 40 and 41 of the PPA, he submitted that this court has no jurisdiction because such disputes are subjected to internal party dispute resolution mechanism first, then the matter goes to the PPDT after which an aggrieved party can appeal to the High Court. He relied Linus Kamunyo Muchina v Speaker, Embu County Assembly, Majority Leader, Embu County Assembly and Kieru John Wambui & another v Jubilee Party, Secretary General, Jubilee Party & 2 others (Interested Parties).

9. Miss Muema, counsel for the 1st Interested Party argued that the 2nd Petitioner has no locus standi to institute this Petition, that the Petition offends a court order issued in HCC Misc App No 480 of 2015 and the 2nd Petitioner lacks authority to institute these proceedings because he was restrained by the court from purporting to be an official of the party. Also, she argued that the deponent of the supporting affidavit had no authority to swear the affidavit so the Petition is incompetent. Lastly, she submitted that the Petitioners failed to exhaust the mechanism provided under the PPA and there is a pending appeal.

10. Mr Wakoko, counsel for the 1st and 2nd Respondents submitted that the Petitioners first port of call was the PPDT. He submitted that where the law provides a dispute resolution mechanism, it ought to be followed. He submitted that a reading of the pleadings leave no doubt that the dispute falls under section 40 of the PPPA and argued that a statute can oust the court’s jurisdiction.

11. The Petitioners’ counsel, Mr Ogendo cited Mukisa Biscuit Company v Westend Distributors Limited and argued that the objections do not raise pure points of law. In particular, he argued that the issues raised by counsel for the 1st Interested Party require evidence to be established. For example, he submitted that there is no evidence to show that the court order in Misc No 488 of 2015 was served upon his clients. As for the locus standi, he submitted that the Petition is brought under Article 22 of the Constitution. Regarding the objection premised section 40 of the PPA, he submitted that this court has jurisdiction and argued that access to justice is a fundamental right. He urged the court to dismiss the Preliminary Objections with costs.

12. For starters, a Preliminary Objection was defined in Mukisa Biscuit Company v Westend Distributors Limited (supra) as:-“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and occasion confuse the issues. This improper practice should stop”.

13. A demurrer is a known and well accepted common law procedure which enables a defendant who contends that even if the allegations of facts as stated in the pleadings to which objection is taken is true, yet their legal consequences are not such as to put the defendant (demurring party) to the necessity of answering them or proceeding further with the cause. Useful guidance can be obtained from Fabunmi v Commissioner of Police, Osun State & Ors in which the court while quoting with approval the position held inNDIC v CBN & anor reasoned thus:“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action, or where appropriate, no locus standi. The issue of jurisdiction is not a matter for demurer proceedings. It is much more fundamental than that and does not entirely depend as such on what the plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise issue of jurisdiction". In the circumstance therefore, where jurisdiction is the root of the matter and the claim can be dismissed for lack of jurisdiction simpliciter, it will serve no useful purpose to file a defence notwithstanding the rules of court…..”

14. A preliminary objection is a formal step by which a party to a court proceeding raises a question which it contends should be dealt with separately, before any other issue in the proceedings is examined. This is usually, perhaps indeed necessarily, on the basis that that question is preliminary in nature; and that as a result, its resolution (in the sense contended for by the party raising it) will make examination of the rest of the case unnecessary and inappropriate.

15. The law is well settled that it is the claim of the claimant that determines whether a court of law has jurisdiction or not. This statement of the law was formulated by the South African Constitutional Court as follows: -“Jurisdiction is determined on the basis of the pleadings, … and not the substantive merits of the case… In the event of the court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim …, one that is to be determined exclusively by……{another court}, the High Court would lack jurisdiction…"

16. A reading of the Petition clearly shows that the issues raised in this Petition are “an intra-party affair.”- a concept that has been defined to mean “a dispute between members of the party inter se, or between a member on the one hand and the party on the other.” As is demonstrated by the sections of the law discussed shortly, the law is trite that courts’ jurisdiction is ousted in matters dealing with internal affairs or resolution of a political party regarding nomination or leadership of that political party as in this instant case.”

17. The short title to thePPA reads: - “An Act of Parliament to provide for the registration, regulation and funding of political parties, and for connected purposes.” Section 39 of the act establishes the Political Parties Disputes Tribunal. Section 40 of the act provides for the jurisdiction of the Tribunal in the following words: -

40. Jurisdiction of the Tribunal(1)The Tribunal shall determine-(a)Disputes between the members of a political party;(b)Disputes between a member of a political party and a political Party;(c)Disputes between coalition partners; and(d)Disputes between an independent candidate and a political Party;(e)Disputes between coalition partners; and(f)Appeals from decisions of the Registrar under this Act;(g)Disputes arising out of party primaries.

18. Despite the vast jurisdiction vested into the PPDT, the claw back clause is to be found is sub-section (2) which provides that “Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.” The above provision underscores the fact that party members should have recourse to civil courts in the event of disputes between the members or between members and the officials, but only after exhausting internal dispute-resolution mechanisms, where such mechanisms exist.

19. The party, like any other corporation, operates within the guidelines, the powers and duties set out in its Constitution. All its members are bound by its provisions and their rights and obligations created by their constitution can be remedied as provided by its constitution if breached by any of its members. Lord Denning delivering his judgment in the House of Lords in Institute of Mechanical Engineers v Cane said: -“It is well settled in our judicial system that courts are restrained in relation to domestic matters of associations ….”

20. The import of the provisions of the PPA cited above and the above proposition the law attributed to Lord Denning is that a court or a tribunal cannot entertain a dispute unless it has been heard and determined by the internal party dispute resolution mechanism. There is nothing before me to suggest that the 2nd to 5th Petitioners exhausted the intra party dispute resolution mechanism or even approached the PPDT. Instead, they approved this court in total disregard of their party constitution and the law triggering the objections now under consideration. As stated earlier, the dispute as disclosed in this Petition is between members of a political party. The 2nd to 5th Respondents are simply aggrieved by change of officials of the Party. It matters not that they have turned their guns against the Registrar of Political parties and in a clever way relegated their targets as interested parties in these proceedings yet they ought to be the principal respondents. They simply seek to upset the changes of office bearers by attacking the Registrar.

21. The above being their dispute and core target being contesting change of office bearers, they cannot run away from the wrath of the provisions of sections 39 and 40 of the PPA. Differently put, this suit incontestably bad in law for offending the doctrine of exhaustion of remedies. Exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, files the dispute in court instead of pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine is now of esteemed juridical lineage in Kenya. Indeed, the doctrine was felicitously stated by the Court of Appeal in Speaker of National Assembly vs Karume in the following words: -“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."

22. The above case was decided before the promulgation of Constitution of Kenya, 2010. As I have stated in many previous decisions, many cases in the Post-2010 era have found the reasoning in the above case sound and provided justification and rationale for the doctrine under the 2010 Constitution. For example, the Court of Appeal provided the constitutional rationale and basis for the doctrine in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others that:-“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

23. The High Courtin the Matter of the Mui Coal Basin Local Community explained the rationale for the doctrine as follows: -“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

24. Briefly, two principles are discernible from decided cases. First, while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.

25. The above cited provisions clearly afford the 2nd to 5th Petitioners the opportunity to seek redress by before the appropriate fora within the Political Party hierarchy, as a condition precedent to resorting to litigation as instructed by sections 39 and 40 of the same PPA. Resort to court action or litigation on any dispute or on any matter whatsoever concerning rights, obligations and duties of any member of the party as against other members or the officials of the party without first availing himself of the remedies provided by the Party under the party constitution is prohibited. The Petitioners are obligated by their party constitution to have regard to the rules and regulations of the Party including their Party Constitution. They cannot be permitted to violate their party constitution while at the same time insisting on litigating with other party members contrary to their own party constitution.

26. Having failed, neglected or refused to submit their grievance to the appropriate organs of the party or to file the relevant or necessary appeals against the alleged actions, inaction or decisions in this case or to pursue them to a logical conclusion or indeed to follow the due process of exhausting internal remedies available at the domestic forum, the Petitioners have failed to fulfil the conditions precedent for the commencement of this Petition which therefore renders this Petition premature and incompetent. Reference can made toAkintemi v Onwumechiliwhere the Supreme Court of Nigeria (per Obaseki JSC (Rtd)) of blessed memory underscored the need to exhaust internal or domestic remedies before resorting to court litigation: -“…can only mean that until the remedies available in the domestic forum are exhausted, any resort to court action would be premature.”

27. It is important to stress that laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorised as ousting the jurisdiction of the Court. Indeed, if such laws attempt to do so, they would be in conflict with the provisions of the Constitution. Such laws only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before a recourse is had to the court. In other words, they serve the purpose of preventing actual litigation in court where it is possible or desirable to resolve the dispute. The foregoing position, the Petitioners counsel’s argument invoking Articles 22, 48 and 165 of the Constitution collapses.

28. Party Constitution is the charter of the party and binds all its members, including the Petitioners and having voluntarily subscribed to membership of the party and agreed thereby to be bound by the party constitution, the Plaintiffs cannot be allowed to derogate from their avowed obligations to abide by the provisions requiring compliance with internal mechanisms for dispute resolution and rush to court, particularly in the circumstances of this case where the Petitioners are alleging non- compliance with the party Constitution by initiating and effecting changes of the officials without minutes or resolutions as required by the Party Constitution.

29. In so far as the Petitioners failed to comply with the internal dispute resolution mechanisms of the 1st Petitioner, or failed to exhaust the available remedies in the domestic forum of the party, there is a failure to fulfil vital conditions precedent necessary for commencing this action which renders this action premature and incompetent and this court will be perfectly entitled to decline jurisdiction and strike out the Petition.

30. Jurisdiction is to a Court, what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent Court will have no jurisdiction to attend to his entreaty.

31. Flowing from the foregoing analysis of the law, the facts and authorities, the conclusion becomes irresistible that the 2nd to 5th Petitioners failure to exhaust the party’s internal dispute resolution mechanism and pursue the procedure set out in section 40 of the PPA renders this suit pre-mature, I there decline jurisdiction to entertain this Petition. Having so concluded, I find no reason to address the other grounds cited my counsel for the 1st Interested Party. The upshot is that this Petition is dismissed with no orders as to costs.

Orders accordingly.SIGNED, DATED AND DELIVERED AT MOMBASA THIS 17TH DAY OF MAY 2022John M. MativoJudge