[2022] KEPPDT 1008 (KLR)

Chote v Kenya African National Union (KANU) (Complaint E121 (NRB) of 2022) [2022] KEPPDT 1008 (KLR) (Nairobi) (12 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1008 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Nairobi

Complaint E121 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

August 12, 2022

Between

Zeinab Hussein Chote

Complainant

and

Kenya African National Union (KANU)

Respondent

Judgment

Introduction 1. The Complainant is a life member of the Respondent. She is aggrieved by the nomination of Fozia Mohamed Abdille (youth category), Abdullahi Yusuf Nur(youth category), Rukia Mohamed Abdi (marginalized category) and Mohamed Abdullahi Abdi (youth category), who come from Arjuran ethnicity in Wajir County. She seeks to be considered for a slot meant for the Marginalized ethnic Minority since she is from Burji a marginalized community of Wajir. Accordingly, she seeks the following orders from this Tribunal:-a.That the errors in law and fact be corrected by the Political Parties Disputes Tribunal and the IEBC Dispute Resolution Tribunal.b.That the nomination be reviewed and necessary amends be made in order to reflect and ensure the appropriate representation for marginalized people in Malkugufu Ward, Wajir North Constituency.

2. The Respondent political party did not file any response in support or opposition to the Complaint. This is notwithstanding service having been effected upon them.

3. Pursuant to the directions that were issued by the Tribunal, the Complaint was heard substantively by way of oral submissions. The Complainant was represented at the hearing by the firm of Sheila Mugo & Company Advocates. There was, however, no representation for the Respondent despite having been served with a hearing notice.

The Complainant’s Case 4. The Complainant claims that on or about the June 21, 2022, she applied and paid to be considered for nomination as a member of county assembly under minority and marginalized category. On July 27, 2022 when IEBC published the Political Party Nomination list, she found out she had not been considered and instead the Respondent considered Fozia Mohamed Abdille, Abdullahi Yusuf Nur, Rukia Mohamed Abdi and Mohamed Abdullahi Abdi who are members of the arjuran ethnicity. It is her submission that arjuran is a predominant community and that she was the rightful person to be nominated as a representative of the minority and marginalized.

5. The Complainant submitted that she had not tried to resolve the matter within the party’s IDRM stating that by the time the cause of action arose, it was already overtaken by events.

6. She seeks the nomination to be reviewed to reflect and ensure the appropriate representation for marginalized people in Malkugufu ward, Wajir North constituency. She further claims that nomination of a non-marginalized person is prejudicial to her and occasioned a miscarriage of justice.

Analysis and Determination 7. We have reviewed the parties’ case, and isolated the following issues for determination:i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs in the present case?

Whether this Tribunal has jurisdiction to hear and determine this matter? 8. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed) Vol 9 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.”

9. Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that brought before it. Without jurisdiction, any orders made by this Tribunal amounts to a nullity ab initio.

10. The place of jurisdiction in law is well settled as was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989), where Nyarangi JA held 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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

11. The jurisdiction of courts and tribunals emanates and flows from either theConstitution or legislation, or both. In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011(hereinafter the PPA)which provides on jurisdiction of the Tribunal 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; andfa.disputes arising out of party nominations2. 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.3. A coalition agreement shall provide for internal dispute resolution mechanisms

12. The instant dispute is one between the Respondent political party and its member (the Complainant), in so far as the preparation of Wajir County Assembly Party List is concerned, and therefore falls squarely within the provisions of Section 40(1)(b) and (fa) of the PPAas highlighted above.

13. As articulated under Section 40(2) of the PPA, the Tribunal can only adjudicate on matters under Section 40 (1) (a), (b), (c), (e) and (fa) once the said dispute has been subjected to the political party’s Internal Dispute Resolution Mechanism (IDRM). In principle, this provision also known as the doctrine of exhaustion, requires the aggrieved party to adduce evidence of an attempt at compliance before the Tribunal can assume jurisdiction.

14. The Tribunal has previously issued guidelines on what amounts to an attempt at IDRM in the case of John Mworia Nchebere & Others v The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No E002 of 2022). In this case, the Tribunal held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

15. The question of whether or not the Complainant has exhausted the IDRM of her political party, is one that does not require the matter to be heard and determined to completion provided an honest attempt can be demonstrated. In the case of Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others, it was held that:“Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.”

16. In the present matter, the Complainant has admitted that there was no attempt to subject this dispute to the Respondent’s IDRM. In fact, she states in paragraph 3 of her Complaint dated August 5, 2022, that she did not attempt IDRM because by the time she found out, it was already overtaken by events.

17. The Complainant expressly states in her pleadings that she came to be aware of the Respondent’s Party List published by the Independent Electoral and Boundaries Commission (IEBC) on the 27th of July 2022. However, this Tribunal notes that the instant complaint was registered on or about the 5th of August 2022.

18. We are not convinced of the Complainant’s justification for failure to pursue IDRM since there were over 7 clear days between the date of the publication of the Party List and the date of moving this Tribunal. The Complainant has not adduced evidence that would explain why the 7 days would not have been enough time to attempt IDRM. It is not enough to presume that the days are insufficient without any justification.

19. We find that the Complainant’s actions does not amount to an ‘attempt’ as envisaged by Section 40(2) of the PPA, nor has she demonstrated that this case qualifies as an exception to the general requirements so as to justify this Tribunal assuming jurisdiction.

20. Taking into consideration the totality of the foregoing analysis, this Tribunal is of the considered opinion that this Complaint is premature and it is our finding that we do not have jurisdiction to hear and determine the same.

What are the appropriate reliefs in the present circumstances? 21. Having found that the Tribunal has no jurisdiction to hear and determine this matter, we find no reason to examine the merits of the Complaint before us as this will amount to a nullity ab initio. We therefore have no option but to down our tools.

22. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

Disposition 23. In light of the foregoing, we order as follows:-i.The Complaint herein be and is hereby struck outii.Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF AUGUST 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)