[2017] KECA 391 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MUSINGA & GATEMBU, JJA) CIVIL APPEAL NO. 168 OF 2017

BETWEEN

GABRIEL BUKACHI CHAPIA ………………… APPLICANT

AND

ORANGE DEMOCRATIC

MOVEMENT ………………………………... 1STRESPONDENT

EDWIN SIFUNA …………………………… 2NDRESPONDENT

(Being an Appeal against the Judgment of the High Court of Kenya at Nairobi (Ong’undi, J) on 26thMay, 2017 in

NAIROBI H. C. ELECTION PETITION APPEAL NO. 64 OF 2017)

******************************************

REASONS FOR THE JUDGMENT OF THE COURT

(Rule 32(5) of the Court of Appeal Rules)

1. In a judgment delivered on 26th June 2017, this Court dismissed the appellant?s appeal from the judgment of the High Court (Ong?undi, J) dated 26th May 2017 and reserved reasons for doing so. We now give our reasons for dismissing the appeal.

Background

2. The appellant, Gabriel Bukachi Chapia, is a member of the Orange Democratic Party,(the Party) the 1st respondent. Aspiring to be nominated by the Party to vie for the position of Senator for Nairobi County during the 8th August 2017 general election, he submitted an application for nomination of a senate candidate to the Party on 9th March 2017. At the close of the period set by the Party for members to apply for nomination, the appellant was the only candidate for nomination for the position of Senator for Nairobi County. At a ceremony of the Party held on 3rd April 2017, the appellant was issued with a nomination certificate.

3. Subsequently, the Party took the view that the appellant “had not shown or demonstrated that he had the financial and logistical ability and capability to mount a successful campaign” for the County of Nairobi Senate seat. According to the appellant, the current Governor, Nairobi County, Evans Kidero, requested him on three occasions, on 11th April 2017, 29th April 2017 and 4th May 2017, “to withdraw from the race of Nairobi City County Senatorial race on an ODM ticket” because he “had very slim chances of clinching the seat during the General Elections.”

4. At a meeting held on 5th May 2017 between the appellant and his 15-member campaign committee, the leader of the Party, the current Governor, Nairobi County, and the 2nd respondent, the appellant was again requested to step down. According to the respondents, the appellant was persuaded to do so on the grounds that he did not have enough resources; was not well known or established to win the position in the forth coming General Election and on account of coalition realignment.

5. On his part, the appellant contends that he was only prepared to withdraw his candidature provided the Party undertook in writing to either nominate him to the Senate or the National Assembly or give him an alternative significant role in the Party. The appellant says that those requests were declined.

6. Later that day (5th May 2017), there was a delegates meeting of the Party held at Kasarani Gymnasium Nairobi at which the 2nd respondent was unveiled as the Party?s nominee for the position of Senate, Nairobi County. According to the appellant, he watched

“in horror on television as the master of ceremonies introduced Mr. Edwin Sifuna as its Senatorial candidate for Nairobi City County”

7. The appellant was aggrieved. On 12th May 2017, he lodged a statement of claim dated 11th May 2017 with the Political Parties Disputes Tribunal seeking, among other reliefs: a declaration that he is the duly nominated candidate of the Party for Senator, Nairobi City County; a declaration that the announcement made on 5th May 2017 during the national delegates meeting of the Party that the 2nd respondent is the Party?s Senate candidate for Nairobi County is illegal, null and void.

8. The respondents defended the claim before the PPDT. The 2nd respondent complained that the appellant had “not made any effort to invoke the jurisdiction of the 1strespondent’ National Appeals Tribunal, rendering the present claim/complaint an abuse of process.”

The 2nd respondent also lodged a notice of preliminary objection to the appellant?s complaint asserting that the PPDT lacks jurisdiction; and that “the complaint is premature, unfounded and is an abuse of process.”

9. In a judgment delivered on 16th May 2017 the PPDT held that:

“This dispute was never brought subjected [sic] to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.”

10. The PPDT did not stop there. It went ahead to issue orders in these terms:

“(a) An order be and is hereby issued that the dispute between the Claimant and the 2nd

Respondent over the position of Member of Senate, Nairobi County is referred back to the 1stRespondent's National Elections Board to nominate its Senate candidate in Nairobi County.

(b)In the interest of party unity, let each party bear its costs of this petition.”

11. The appellant was not satisfied. He petitioned the High Court, in Election Petition Appeal No. 64 of 2017, to set aside the judgment of the PPDT asserting, among other complaints, that the judgment of the PPDT was based on wrong factual and legal premise that the appellant?s nomination certificate had been rendered null and void; that the PPDT had ignored other issues that required determination; that the PPDT was wrong to hold that the dispute was premature given that the mandate of the National Appeals Tribunal had expired. The respondents opposed the appeal.

12. In its judgment that is the subject of the present appeal, the High Court (Ong'udi, J) dismissed the appellant?s appeal having found and held that:

“(i) The matter between the parties herein falls under S.40(1)(a), (b) and (fa) of the Political Parties Act and ought to have been first filed, heard and determined by the 1stRespondent's NEB.

(ii)The Tribunal acted within its jurisdiction when it referred the matter to the 1stRespondent to nominate its senator candidate for Nairobi.”

13. Still dissatisfied, the appellant lodged the present appeal.

The appeal and submissions by counsel

14. Learned counsel represented the parties. Mr. Kibe Mungai appeared for the appellant. Mr. B. Onyango held brief for Mr. A. Oluoch for the 1st respondent. Mr. D. Anzala appeared for the 2nd respondent. Counsel relied on their respective written submissions, which they highlighted before us.

15. According to counsel for the appellant, there are three issues in this appeal, namely: whether the appellant properly invoked the jurisdiction of the PPDT under Section 40 (1)(fa) of the Political Parties Act; whether the appellant is the validly nominated senatorial candidate of the 1st respondent for Nairobi County; and whether the 2nd respondent was validly nominated by the 1st respondent vide certificate dated 29th April, 2017 or pursuant to the judgment of the PPDT dated 16th May, 2017.

16. Counsel urged that, having found, as it did, that the appellant?s claim before it was premature, the PPDT did not have any basis for referring the matter to the 1st respondent?s National Elections Board (NEB); and that it was not open to the PPDT to grant reliefs that were not sought or pleaded. In that regard, counsel cited this Court?s decision in Global Vehicles Kenya Limited v Lenana Road Motors [2015] eKLR.

17. Counsel further submitted that the mandate of NEB, as set out in Rule 3 of the 1st respondent's Election and Nomination Rules, does not include a mandate to determine the dispute that was referred to it by the PPDT. Counsel went on to say, that when the dispute arose on 9th May 2017, the appellant could not invoke the Party?s internal dispute resolution mechanism as all political parties were required, under Regulation 27(4) of the Elections (Party Primaries and Party Lists) Regulations, 2017, to have determined all party disputes by 7th May, 2017; and that he appellant was therefore entitled to approach the PPDT directly under Section 40 (1)(fa) of the Political Parties Act; that Section 40(1)(fa) confers original jurisdiction on the PPDT, which is not subject to prior invocation of the party's internal dispute resolution mechanism.

18. As to the validity of the nomination, counsel submitted that the appellant's nomination certificate issued on 3rd April 2017 was never challenged before the PPDT or the court; that a press statement issued by the IEBC directing political parties when party primaries should be held did not affect the validity of the nomination certificate; and no evidence was presented to show that the appellant was ever requested to return the nomination certificate for reissue.

19. Counsel asserted that the judgment of the High Court did not meet the requirements prescribed under Order 21 Rule 4 and 5 of the Civil Procedure Rules in that it did not address all the issues that called for determination. In that regard counsel referred the Court to Ochieng v Amalgamated Sawmills Ltd [2005] 1 KLR 151; andFlannery & another v Halifax Estate Agencies Ltd (2000) 1 ALL ER 373.

20. Opposing the appeal, Mr. B. Onyango for the 1st respondent relied on written submissions and urged that it was incumbent upon the appellant, under Section 40 of the Political Parties Act, to exhaust the 1st respondent's internal dispute resolution mechanisms before moving the PPDT or the High Court. At the very least, counsel argued, the appellant should have demonstrated that he made an attempt to invoke the 1st respondent's internal dispute resolution mechanism or sought leave before instituting a claim directly before the PPDT.

21. Regarding the certificate of nomination issued to the appellant on 3rd April 2017, counsel submitted that the same had been recalled and nullified by the Party's Central Committee on account of a directive issued by the IEBC on 5th April, 2017; that considering that the appellant did not have financial and logistical ability to mount a successful campaign for the seat, the 1st respondent was at liberty to nominate the 2nd respondent pursuant to the powers given to it under Regulation 3. 3 of the Elections and Nomination Rules in the 1st respondent?s Constitution as read with Section 17 of the Elections (Political Party Nominations) Regulations, 2017; that the appellant accepted the decision of the Central Committee of the 1st respondent in that regard but subsequently reneged on the agreement; and that under Section 2 of the Political Parties Act, the 1st respondent made a selection of its candidate and that accorded with Article 38 of the Constitution.

22. Mr. Anzala for the 2nd respondent relied on written submissions that he highlighted and also urged that the appellant should have exhausted alternative legal remedies by invoking the 1st respondent?s internal dispute resolution mechanism before moving the PPDT or the High Court. In support, he relied on a decision of the High Court in Misc. App No. 232 of 2017 Peter Wambua Makau v The PPDT and othersas well as a decision of this Court in Narok County Council v Trans

Mara County Council and another [2000] eKLR.

23. Counsel argued that the assertion by the appellant that the mandate of the National Appeals Tribunal of the 1st respondent expired on 7th May 2017 did not have any basis; the appellant had not shown that he had brought the dispute to the attention of the 1st respondent or to the NEB of the 1st respondent; that the appellant did not hold a valid nomination certificate to warrant the grant of the orders he had sought before either the PPDT or the High Court; and that the appellant could not rely on the provisions of Section 13(2) of the Elections Act, 2011 as his name had never been forwarded to the IEBC; that the allegations of bias are baseless; and that the 1st respondent was entitled to select a candidate of its choice.

Analysis

24. Our mandate, in an appeal such as this, is limited under Section 41(2) of the Political Parties Act to points of law. It provides that:

“(2) An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court.”

25. The question that arises in this appeal is whether the High Court erred in upholding the decision of the PPDT declining to entertain the appellant?s complaint on the basis that it was premature because the appellant did not, in the first instance, exhaust the 1st respondent?s internal dispute resolution mechanism.

26. Section 40 of the Act deals with the jurisdiction of the PPDT. It provides that:

“(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 political parties;

(d) disputes between an independent candidate and a political party;

(e) disputes between coalition partners; and

(f) appeals from decisions of the Registrar under thisAct;

(fa) disputes arising out of party primaries.”

27. Section 40(2) of the Act provides:

“(2) 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.”

28. 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.

29. Section 40(1)(fa) of the Act relating to “disputes arising out of party primaries”was introduced through an amendment to the Act with the object of addressing “the challenge of concurrent jurisdiction with other bodies handling electoral disputes.” [See the memorandum of objects and reasons of the Political Parties (Amendment) Bill]. Section 40(1)(fa) of the Act did not, altogether, introduce an entirely new category of disputes. As this Court held recently in the case of Dr. Lilian Gogo vs. JosephM Nyamuthe and 4 others, Civil Appeal No. 135 of 2017 Nairobi, disputes arising out of party primaries between members of a political party or between a member of a political party and a political party, or between political parties or between coalition partners were already catered for under paragraphs a, b, c, and e of Section 40(1) of the Act. Such disputes are subject to Section 40(2) of the Act and must first be subjected to the internal party dispute resolution mechanism before the PPDT takes cognizance of them. As the Court stated in that case:

“A common denominator of the categories of disputes that must in the first instance be submitted to the internal political party dispute resolution mechanism is that the disputants would all be subject to the political party and therefore subject to such party’s internal party dispute resolution mechanism. It is also instructive that under Section 9 of the Act as read with paragraph 23 of the 2ndSchedule to the Act, it is a mandatory statutory requirement that every political party must have provision in its constitution and rules for “internal party dispute resolution mechanism in accordance with Article 47 and 50 of the Constitution.” Also noteworthy is Section 13(2A) of the Elections Act, No. 24 of 2011 that requires a political party to hear and determine “all intra party disputes arising from political party nominations” within thirty days.”

30. In that case the Court acknowledged that there may be disputes that fall outside of the categories set out under paragraphs a, b, c, and e of Section 40(1) of the Act that can be taken directly to the PPDT. In 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 party?s internal dispute resolution mechanism before the PPDT can take cognizance of it. There is ample authority for the proposition that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be followed. [See Speaker of the National Assembly vs. Hon. James Njenga Karume, Civil Application No. 92 of 1992 (2008) 1KLR 425and alsoKimani Wanyoike vs. Electoral Commission & another [1995] eKLR.]

31. The learned Judge of the High Court was therefore right in upholding the decision of the PPDT that the complaint before the PPDT was premature. As submitted by the respondents, no material was presented either before the PPDT or the High Court by the appellant to support the assertion that the 1st respondent?s National Appeals Tribunal was not operational as at 5th May 2017 when the appellant says he learnt with shock that the 2nd respondent had been declared to be the 1st respondent?s nominee for the position in question. We are however in agreement with counsel for the appellant that having found that the complaint was premature, the PPDT should have stopped there and „downed its tools?.

32. It is for those reasons that this Court dismissed the appellant?s appeal in its judgment delivered on 23rd June 2017.

Reasons Dated and delivered at Nairobi this 28thday of July, 2017.

R. N. NAMBUYE

……………………

JUDGE OF APPEAL

D. K. MUSINGA

………………………

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

………………………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR