[2022] KEHC 1439 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO.E739 OF 2020

FORUM FOR THE RESTORATION OF

DEMOCRACY-KENYA...............................................................APPELLANT

VERSUS

CRISPINUS BARASA..........................................................1ST RESPONDENT

DAVID ESELI SIMIYU.......................................................2ND RESPONDENT

MILLICENT ABUDHO.......................................................3RD RESPONDENT

MOSES MASIKA WETANGULA......................................4TH RESPONDENT

(Being an appeal from the Order of Hon. Desma Nungo, Chairperson, Political Parties Disputes Tribunal (hereinafter “the Tribunal”) given on 3rd November, 2021)

JUDGEMENT

1. The order that is being challenged by the Appellant was deliveredon 3rdNovember, 2021 by the Political Parties Disputes Tribunal (PPDT). The Tribunal allowed interim order for injunction to be issued: restraining the 2ndrespondent from proceeding with the National Delegates Conference of the appellant slated for the 6thNovember 2021 as convened by the 2ndrespondent and also restraining the 3rdrespondent from proceeding with its National Delegates Conference slated for the 4thNovember 2021 as convened by the 3rdrespondent.

2. On appeal, the appellant put forward the following grounds.

i. That the learned Chairperson erred in law in entertaining and presiding over proceedings which the Tribunal had no jurisdiction in the first place pursuant to the provisions of Section 40 of the Political Parties Act, there having been no attempt and or exhaustion of internal party resolutions mechanisms prior to the institution of the suit at the Tribunal.

ii. That the learned Chairperson erred in law and fact entertaining and presiding over proceedings whose alleged cause of action was premised on issues which are pending and or had been determined by higher courts being in Nairobi High Court Constitutional Petition No.197 of 2020,Nairobi Civil Appeal No..E496 of 2020, Nairobi Civil Application No.E382 of 2020, E361 of 2020 and Nairobi High Court Miscellaneous Civil Application No.E486 of 2021(O.S).

iii. That the learned Chairperson erred in law and fact in granting orders on 3rd November, 2021 purportedly calculated to stop the appellants’ meeting scheduled for the 4th November,2021 which order, although unserved ,was given hours to the due date of the meeting so as to make such an order punitive,injudicious,unreasonable ,untenable ,invalid and unenforceable.

iv.That the learned Chairperson’s order of 3rd November ,2021 is a miscarriage of justice and sets a bad precedence thereby rendering it null and void.

3. When the appeal came up for hearing, this court directed theparties to file and exchange written submissions but at the time of writing this judgment the respondents had not filed their submissions.

4. On the first ground, the appellant submitted that the Tribunaldid not satisfy itself first as to whether it had jurisdiction or not under Section 40 of the PPA and as a result pronounced itself in matters it ought not to have entertained in the first place.

5. The appellants further submitted that the setting aside of theTribunal orders sought herein is based on the undisputed fact that the Tribunal Chairperson entertained the 1stRespondent’s instituted dispute hearing it ex-parte prior to satisfying herself that the dispute had been heard and determined by Internal Dispute Resolution Mechanism (IDRM) as pre-conditioned underSection 40 (2) of the PPA.

6. It is submitted that the appellant’s constitution provided forInternal Dispute Resolution Mechanism (IDRM) under article 55 (b), (d),(g) and (i) , that the 1strespondent had presented himself as a member of the appellant therefore was bound as a member of her Constitution which not only provides IDRM but also required that any member first exhausts the IDRM before approaching the judicial organs.

7. The appellant contends that in the absence of meeting thethreshold imposed under Article 55 of the Appellant’s Constitution as read together with Section 40 (2) of the PPA the 1stRespondent purported dispute having not been heard and determined under the appellant’s IDRM, then the 1strespondent instituted dispute before the Tribunal was a non-starter, premature, null and void as they did not in the first place have jurisdiction to hear and determine the purported dispute.

8. The appellant further contended that the exhaustion doctrinehas been upheld by this Court among other courts in Kenyan judicial system including the Tribunal itself and that the exhaustion doctrine requirement is not displaced even where the complainant has reservations to the internal presiding organ, the Court of Appeal in the case ofGeoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others (2015) eKLRfurther posed, thus;

“We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short-circuited the process by filing suits prematurely.”

9. They further relied on the case of Gabriel Bukachi Chapia vOrange Democratic Movement & another (2017) eKLRthe Court of Appeal determined that;

“In effect the PPDT should not entertain disputes between members of a political party, disputes between a member of a political party and a political party, disputes between political parties and disputes between coalition partners, unless such dispute is in the first instance heard and determined by the internal political party dispute resolution mechanisms.”

10. As a result, I believe the PPDT lacked jurisdiction to hear thecomplaint filed on 12thNovember, 2021, because the appellant's constitution expressly states that no dispute shall be brought to the PPDT before being heard by the appellant's Internal Dispute Resolution Mechanism, of which the 1st respondent is a member.

11. In the case of the Speaker of the National Assembly v Hon.James Njenga Karume, Civil Application No. 92 of 1992 (2008) 1KLR 425In this case, however, the dispute is between a member of the political party and the political party and falls under Section 40(1)(b) of the Act and is required, under Section 40(2) of the Act to be heard by the parties internal dispute resolution mechanism before the PPDT can take cognizance of it.

12. On the second ground, the appellant submitted that the 1strespondent’s claim before the Tribunal was anchored on matters which had either been determined or pending before other courts which are superior in hierarchy to the Tribunal. It is further submitted a judicial organ has no jurisdiction to preside over and or determine a matter that is either subjudice or res judicata.

13. As relates to Res judicata the appellant relied on the case ofKenya Commercial Bank Limited v Muiri Coffee Estate Limited & another (2016) eKLR,the Supreme Court held that;

“The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”

14. As relates to subjudice the appellant relied on the case ThibaMin. Hydro Co .Ltd v Josphat Karu Ndwiga (2013) eKLR where the court held that

“It is not the form in which the suit is framed that determines whether it is sub-judice, rather it is the substance of the suit, and that there can be no justification in having the two cases being heard parallel to each other”

15. The appellant contends that the issue of issuing a Noticeconvening the appellants National Delegates Congress was either resolved or pending before Higher Courts in this case, and the Tribunal lacks jurisdiction to hear it.

16. In the circumstances I do find that the learned Chairperson erredin law and fact in entertaining and presiding over proceedings whose stated cause of action is pending or resolved in a higher court, the whole Tribunal proceedings become null and invalid.

17. In the case ofOmondi v. National Bank of Kenya Limited andOthers,(2001) EA 177 the Court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the Court quoted Kuloba J., in the case of Njangu v. Wambugu and Another Nairobi HCCC No.2340 of 1991 (unreported) where he stated,

‘If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata…..”

18. On the third ground, the appellant submitted that the failure ofthe tribunal to consider the apprehensible equitable principles prior to the grant of the injunction in the circumstances of this case rendered the exercise of the discretion conferred to the Tribunal Chairperson injudicious and arbitrary. The appellant further submitted that the Orders granted on 3rdNovember 2021 failed the established legal tests and are accordingly for setting aside by this court.

19. The appellant placed reliance on the case of BenjohAmalgamated Limited & Another v Kenya Commercial BankLimited (2014) eKLRwhere the court held that ;

“A claimant in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the statutes of limitation equity aids the vigilant , not the indolent’ or ‘delay defeats equities’. A Court of equity refuses its aid to stale demands, where the claimant has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his unconscionable delay (‘laches’).”

20. I therefore do find that the Tribunal Chairperson did not establishthe correct principles in granting the orders on the 3rd of November 2021 to stop the appellant's meeting scheduled for the 4th of November 2021, despite the fact that they had taken extensive preparation and the appellant's delegates from all over the country had arrived in Nairobi for the said meeting, was unfair to them because they had taken extensive preparation and the appellant's delegates from all over the country had arrived in Nairobi for the said meeting.

21. In the case of Equity Bank v West Link MBO Limited (Civilapplication No.78 of 2011)it was stated that;

“Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure the ends of justice are met. Inherent power is the authority possessed by a court implicitly without it being derived from the constitution or statute.”

22. On ground (4), the appellant submitted that the impugnedTribunal orders were made in violation of the law and constitute a blatant miscarriage of justice, necessitating the setting aside sought in this appeal, and that to uphold the 1st respondent's instituted proceedings before the Tribunal and the impugned orders would set a dangerous precedent on matters within the Tribunal's limited jurisdiction.

23. Having considered the appellant’s submissions, this court ispersuaded to find that the PPDT lacked jurisdiction to hear the complaint on the 12thof November, 2021 because they have an IDRM system that has not been invoked and exhausted, the 1st respondent's claim before the Tribunal was based on matters that had either been decided or were pending before other courts that are superior in hierarchy to the Tribunal, and the Tribunal Chairperson did not establish the correct principles in granting the orders on the 3rdof November, 2021.

24. In the end, I am convinced that the Tribunal had no jurisdictionto entertain the complaint and on this singular ground. I find the appeal to be meritorious. The appeal is allowed. Consequently the decision of PPDT delivered on 3rdNovember, 2021 is set aside and the proceedings as instituted by the 1strespondent in PPDT Cause No. E019 of 2021 be and are hereby be declared null and void.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MARCH, 2022.

.........................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the 1st Respondent

……………………………. for the 2nd Respondent

……………………………. for the 3rd Respondent

……………………………. for the 4th Respondent