[2022] KEHC 9911 (KLR)

Gachenge & 4 others v United Democratic Alliance & 2 others (Constitutional Petition E163 of 2022) [2022] KEHC 9911 (KLR) (Constitutional and Human Rights) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 9911 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E163 of 2022

AC Mrima, J

May 9, 2022

Between

Kennedy Kariithi Gachenge

1st Petitioner

Francis Kinyua Mwangi

2nd Petitioner

Stanle Mathenge Wanjiku

3rd Petitioner

Peter Mwaniki Mwangi

4th Petitioner

Edgar Enonda Ochieng

5th Petitioner

and

United Democratic Alliance

1st Respondent

Registrar of Political Parties

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

The Political Parties Disputes Tribunal (Tribunal) has the jurisdiction to determine any dispute arising from party nominations.

The court made a decision about which parties could appear before the Political Parties Dispute Tribunal (the Tribunal). The court was faced with the argument that section 40 of the Political Parties Act limited the parties who could appear before it to political parties, party members and coalition of parties. Section 40(1)(fa) of the Political Parties Act was a general provision and was not limited to inter alia the parties and their members or between political parties.

Reported by John Ribia

Jurisdiction– jurisdiction of the Political Parties Disputes Tribunal (Tribunal) – jurisdiction of the Political Parties Disputes Tribunal vis-à-vis the jurisdiction of the High Court- whether the Political Parties Disputes Tribunal (Tribunal) had the jurisdiction to determine any dispute which arose out of party nominations - whether the High Court had the jurisdiction to entertain disputes arising out of party nominations –Constitution of Kenya, article 82(1) and 88;Political Parties Act, No. 11 of 2011 sections 39 and 40;Elections Act, No. 24 of 2011, section 74;Independent Electoral and Boundaries Commission Act, No. 9 of 2011, section 4. Statutes– interpretation of statutes – interpretation of sections 40(1)(fa)and 40(2)of the Political Parties Act, Act, No. 11 of 2011 - whether section 40(1)(fa) of the Political Parties Act, that provided that the Tribunal would determine appeals from decisions of the PPDT’s registrar and disputes arising out of party nominations, applied to all disputes arising out of party nominations - whether section 40(2) of the Political Parties Act, that made it a condition precedent that the internal dispute mechanisms of a political party had to first be invoked, applied to disputes arising out of party nominations by parties who were not members of the political party whose party nominations were challenged.Jurisdiction– doctrine of exhaustion of remedies – scope – exceptions - what was the scope of the doctrine of exhaustion of remedies as applied by Kenyan courts - what were the exceptions of the doctrine of exhaustion of remedies.

Brief facts The petitioner contested the manner in which the 1st respondent’s party nominations were conducted. The respondents contended that the High Court did not have the jurisdiction to deal with the instant matter as the petitioner had not utilised all available options under the law to resolve the dispute. They contended that the right forums to resolve the disputes were the Independent Electoral and Boundaries Commission (the Commission) and the Political Parties Disputes Tribunal (the Tribunal).In reply, the petitioner declined the proposition that the High Court lacked jurisdiction. The petitioner contended that section 40 of the Political Parties Act listed the parties who would appear before the Tribunal. That the parties were limited to political parties, party members and coalition of parties. It was argued that since the petitioners were not members of the 1st respondent, they lacked locus standi to appear before the Tribunal. It was also argued that the dispute involved violation of the law and the constitutionality of respondents’ actions and was not strictly on nominations.

Issues

What was the scope of the doctrine of exhaustion of remedies as applied by Kenyan courts? What were the exceptions of the doctrine of exhaustion of remedies?

Whether the Political Parties Disputes Tribunal (Tribunal) had the jurisdiction to determine any dispute which arose out of party nominations.

Whether the High Court had the jurisdiction to entertain disputes arising out of party nominations.

Whether section 40(1)(fa) of the Political Parties Act, that provided that the Tribunal would determine appeals from decisions of the PPDT’s registrar and disputes arising out of party nominations, applied to all disputes arising out of party nominations.

Whether section 40(2) of the Political Parties Act, that made it a condition precedent that the internal dispute mechanism of a political party had to first be invoked, applied to disputes arising out of party nominations by parties who were not members of the political party whose party nominations were challenged.

Relevant provisions of the Law Constitution of Kenya, 2010, articles 82(1) and 88. 82. Legislation on elections(1) Parliament shall enact legislation to provide for-(a) the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;(b) the nomination of candidates;(c) the continuous registration of citizens as voters;(d) the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and(e) the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.88. Independent Electoral and Boundaries Commission(1) There is established the Independent Electoral and Boundaries Commission.(2) A person is not eligible for appointment as a member of the Commission if the person--(a) has, at any time within the preceding five years, held office, or stood for election as--(i) a member of Parliament or of a county assembly; or(ii) a member of the governing body of a political party; or(b) holds any State Office.(3) A member of the Commission shall not hold another public office.(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--(a) the continuous registration of citizens as voters;(b) the regular revision of the voters’ roll;(c) the delimitation of constituencies and wards;(d) the regulation of the process by which parties nominate candidates for elections;(e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f) the registration of candidates for election;(g) voter education;(h) the facilitation of the observation, monitoring and evaluation of elections;(i) the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j) the development of a code of conduct for candidates and parties contesting elections; and(k) the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.(5) The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.Elections Act, Act no 24 of 2011, section 74. 74. Settlement of certain disputes:(1) Pursuant to Article 88 (4) (e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2) An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3) Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.Political Parties Act, No. 11 of 2011, section 40. 40. Jurisdiction of TribunalThe jurisdiction of the Tribunal is provided 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; and(fa) disputes arising out of party nominations.(2) 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.

Held

Jurisdiction was everything, jurisdiction gave a court or a tribunal the power, authority and legitimacy to entertain a matter before it. A decision made by a court of law without proper jurisdiction amounted to a nullity ab initio, and such a decision was amenable to setting aside ex debito justitiae.

The doctrine of exhaustion in Kenya traced its origin from article 159(2)(c) of the Constitution which recognized, entrenched and promoted the use of alternative mechanisms of dispute resolution such as resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms.

The question of exhaustion of administrative remedies arose when a litigant, aggrieved by an agency's action, sought redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine served the purpose of ensuring that there was a postponement of judicial consideration of matters to ensure that a party was diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.

There were exceptions to the doctrine of exhaustion. The exceptions could be laid out in two principles: The High Court could, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It was also essential for the court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it was suitable to determine the issues raised.

The jurisdiction of the courts to consider valid grievances from parties who lacked adequate audience before a forum created by a statute, or who could not have the quality of audience before the forum which was proportionate to the interests the party wished to advance in a suit must not be ousted. Statutory provisions ousting court’s jurisdiction had to be construed restrictively.

The petitioners sought to enforce fundamental rights and freedoms and it was demonstrated that the claimed constitutional violations were not merely framed in Bill of Rights language as a pretext to gain entry to the court. It was not barred by the doctrine of exhaustion. That was especially so because the enforcement of fundamental rights or freedoms was a question which could only be determined by the High Court.

The facts raised in the instant petition related to the manner in which the 1st respondent conducted its party primaries and no more. The constitutional violations alleged arose from the impugned nominations. The petitioners’ argument that the petition raised more issues than those that emanated from the party primaries did not have any basis in the pleadings and was rejected.

The Constitution and the law primarily created two avenues for settlement of pre-election disputes since any dispute arising out of the declaration of the results of an election was a preserve of the courts. The two avenues were the Commission under articles 82 and 88 of the Constitution, section 74 of the Elections Act and section 4 of the IEBC Act and the Tribunal under sections 39 and 40 of the Political Parties Act. The functions of the Commission and the Tribunal were well demarcated. The jurisdiction of the Tribunal in section 40 of the Political Parties Act was expanded by the introduction of sub-section 1(fa) to include disputes arising out of party nominations.

The Political Parties (Amendment) Act had also expanded the mandate of the Registrar of Political Parties through the introduction of Section 34(fd) of the Political Parties Act to include regulation of political party nominations in accordance with the Act.

The effect of section 40(1)(fa) of the Political Parties Act was to expand the jurisdiction of the Tribunal. Whereas the Tribunal initially had jurisdiction over disputes between the members of a political party, disputes between a member of a political party and the political party, disputes between political parties, disputes between an independent candidate and a political party, disputes between coalition partners and appeals from decisions of the Registrar, Parliament, through the amendment expressly allocated the mandate of resolving all disputes arising out of party nominations to the Tribunal. Unlike before the introduction of section 40(1) (fa) of the Political Parties Act where the jurisdiction of the Tribunal was limited to inter alia the parties and their members or between political parties, the amendment widened the access to the Tribunal. Any dispute which arose out of party nominations was a preserve of the Tribunal.

Section 40(1) (fa) of the Political Parties Act was a general provision and was not limited to inter alia the parties and their members or between political parties.

Until and unless the petitioners were able to demonstrate that any of the exceptions to the doctrine of exhaustion was applicable in the instant matter, the doctrine became a complete bar to the jurisdiction of the instant court.

There were principally two exceptions to the doctrine of exhaustion. The first exception was when the alternative forum would not serve the values enshrined in the Constitution or law including the suitability of the appeal mechanism available in the context of the particular case. The second exception was when the forum did not accord the parties adequate audience or the forum lacks the quality of audience which was proportionate to the interests the party wished to advance in a suit.

On the first exception, the Tribunal was a creation of the Constitution and the law. Its first call was to respect, uphold and defend the Constitution. In discharging its duties, the Tribunal was to apply and be guided by the Constitution including the national values and principles of governance in article 10. Putting it more succinctly, the Tribunal had the jurisdiction to determine whether the Constitution and the law were violated during the party nominations.

Any party dissatisfied by the decision of the Tribunal may appeal to the High Court. The High Court accorded a forum where the applicability of the Constitution and the law could be interrogated further. There had been no evidence to demonstrate that the values enshrined in the Constitution or law would not be upheld before the Tribunal in the unique circumstances of the instant case.

The second exception was on the adequacy of the forum to adjudicate on the dispute. Section 40(2) of the Political Parties Act made it a condition precedent that the internal dispute mechanism of a political party had to first be invoked. Section 40(2) was carefully drafted to avoid disputes between an independent candidate and a political party and to avoid appeals from decisions of the Registrar. The intention of Parliament was to restrict the application of section 40(2) to the parties tied to a political party.

Whereas almost all disputes arising out of party nominations were premised on political parties, there were some isolated cases where other persons other than the members of a party could, for whatever reason, challenge party nominations. In order to take care of such instances, section 40 of the Political Parties Act ought to be amended to accord to such circumstances. With a view to align section 40 of the Political Parties Act with the constitutional imperatives on exercise of constitutional restraint and the need to enhance the applicability of alternative dispute resolution mechanisms, and in keeping in line with section 7 of the Sixth Schedule to the Constitution, section 40(2) of the Political Parties Act could not apply to disputes arising out of party nominations by parties who were not members of the political party whose party nominations were challenged. The intention of Parliament that all disputes arising out of party nominations be dealt with by the Tribunal stood realized.

There was no evidence that the petitioners invoked the jurisdiction of the Tribunal over the dispute in vain. The petitioners outrightly decided to rush to court in total disregard to section 40(1) (fa) of the Political Parties Act. The petitioners failed to demonstrate the applicability of the second exception in the matter. The exception did not apply to the instant matter.

Petition dismissed.

Orders

The instant court lacked jurisdiction to deal with the dispute in the instant matter on account of the doctrine of exhaustion.

The petition and the notice of motion dated April 19, 2022 were struck out.

The petitioners were to bear the costs of the petition.

The court file was marked as closed.

Citations Cases Fleur Investments Limited v Commissioner of Domestic Taxes & Kenya Revenue Authority (Civil Appeal 158 of 2017; [2018] KECA 341 (KLR)) — Explained

In the Matter of Interim Independent Electoral Commission (Constitutional Application 2 of 2011; [2011] KESC 3 (KLR)) — Explained

Kenya Ports Authority v William Odhiambo Ramogi, Asha Mashaka Omar, Gerald Lewa Kiti, Attorney General, Cabinet Secretary, Ministry of Transport & Infrastructure, Kenya Railways Corporation, Muslims for Human Rights, Maina Kiai & County Government of Mombasa (Civil Appeal 166 of 2018; [2019] KECA 305 (KLR)) — Explained

Mary Wambui Munene v Peter Gichuki Kingara,Independent Electoral and Boundaries Commission & James Mbai (Application 12 of 2014; [2014] KESC 15 (KLR)) — Explained

Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989; [1989] KECA 1 (KLR); [1989] KLR 1) — Explained

Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (Consolidated); [2022] KECA 15 (KLR)) — Explained

Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011; [2012] KESC 2 (KLR)) — Explained

Speaker of the National Assembly v James Njenga Karume (Civil Application 92 of 1992; [1992] KECA 13 (KLR); [1990-1994] EA 546) — Explained

William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) ([2020] eKLR) — Explained

Statutes Constitution of Kenya, 2010 — Article 3, 22, 23, 82(2), 88(4)(e), 165(2)(d), 258; Schedule Sixth — Interpreted

Elections Act (No 24 of 2011) — Section 74 — Interpreted

Independent Electoral And Boundaries Commission Act (No 9 of 2011) — Section 4 — Interpreted

Political Parties Act (No 11 of 2011) — Section 2, 34(fd), 38C(5), 38D, 38F(1)(a), 39, 40(1)(fa), 40(2) — Interpreted

Advocates**Mr. Ndegwa Njiru,** Counsel for Petitioners.**Mr. Elias Mutuma,** Counsel for 1st Respondent.**Mr. Ndwiga**, Counsel for 2nd Respondent.**Mr. Nura,** Counsel for 3rd Respondent.

Ruling

Introduction: 1. The proceedings herein were instituted by way of a petition dated April 19, 2022. Contemporaneously with the filing thereof was an application by way of a notice of motion. It was evenly dated. The application sought some conservatory orders.

2. As the matter was filed under certificate of urgency, it was accordingly dealt with by the duty judge on April 20, 2022. Among the orders issued was one which directed the parties to address the court on the issue of the jurisdiction given that the dispute was on how the 1st respondent’s party nominations were conducted.

3. The parties orally addressed court on the jurisdictional issue on May 5, 2022 hence this ruling.

The Parties’ Positions and Submissions: 4. The 1st respondent was in support of the position that the court lacked jurisdiction over the dispute.

5. The 2nd respondent did not take part on the matter. It left the same to the discretion of the court.

6. The 3rd respondent supported the 1st respondent’s position. It filed written submissions dated May 5, 2022 and also associated itself with the submissions by the 1st respondent.

7. The petitioners vehemently opposed the proposition that the court lacked jurisdiction.

The 1stand 3rdRespondents: 8. The 1st respondent submitted that the dispute was before a wrong forum.

9. According to the 1st respondent, since the matter challenged the manner it conducted its party nominations, then the only appropriate forum for adjudication of the dispute was either before the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the 3rd respondent’ or ‘the Commission’ or ‘IEBC’) pursuant to article 88(4)(e) of the Constitution or the Political Parties Disputes Tribunal as established under the Political Parties Act, No 11 of 2011.

10. Counsel submitted further that such disputes cannot be brought before this court before exhaustion of the mechanisms legally in place. He argued that the court cannot assume jurisdiction even when the dispute is coined in a constitutional language like in the instance matter.

11. The 1st respondent wondered what wrong the petitioners suffered having confirmed that they were members of different parties and not the 1st respondent. The court was also called upon to be alive to the truism that it was dealing with the petitioners who illegally took part in the 1st respondent’s party primaries and have now come to court seeking to use their illegal dealings to interfere with the affairs of the 1st respondent. This court was called upon to frown upon such conduct and to find that the petition failed to attain the threshold in Anarita Karimi Njeru’s case.

12. The 1st respondent urged the dismissal of the petition with costs.

13. In adopting the 1st respondent’s submissions, the 3rd respondent further urged the court to decline jurisdiction. The 3rd respondent referred to several decisions in support of its position.

The Petitioners: 14. The petitioners posited that the court had the requisite jurisdiction over the matter.

15. Counsel vehemently declined the proposition that the Commission and the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’) had jurisdiction over the matter.

16. It was argued that section 40 of the Political Parties Act listed the parties who would appear before the tribunal. Counsel pointed out that the parties were limited to political parties, party members and coalition of parties. It was submitted that since the petitioners were not members of the 1st respondent, they lacked locus standi to appear before the Tribunal. It was also argued that the dispute involved violation of the law and the constitutionality of respondents’ actions and was not strictly on nominations. The petitioners declined that the petition was vexatious.

17. Further submissions were made that as the Commission was a party in the matter, then the dispute could not be dealt with by the same Commission. Counsel also argued that the Commission only assumed jurisdiction when the names of party members duly nominated to take part in an election were forwarded to the Commission for gazettement and not before. It was, therefore, argued that the dispute to be dealt with by IEBC was yet to crystallize in the matter.

18. Counsel also submitted that it was not the intention of Parliament to have the IEBC and the Tribunal as parallel forums for dispute resolution as that will create confusion.

19. It was further argued that a reading of article 88(4)(e) of the Constitution and section 4 of the Independent Electoral and Boundaries Commission Act made it impossible for the dispute to be dealt with before the Commission.

20. The petitioners posited that they had locus standi in the matter courtesy of articles 3, 22, 23, 165(2)(d) and 258 of the Constitution and that the petition attained the threshold in Anarita Karimi Njeru’s case.

21. The petitioners prayed that the court finds in their favour so as to proceed on with its case.

Analysis: 22. As the issue at hand is the jurisdiction of the court, suffice to have a brief look at what the doctrine of jurisdiction entails.

23. The Court of Appeal in Nakuru Civil Appeal No 119 of 2017 Public Service Commission & 2 others v Eric Cheruiyot & 16 others consolidated with Civil Appeal No 139 of 2017 County Government of Embu & another v Eric Cheruiyot & 15 others [2022] KECA 15 (KLR) in a decision rendered on February 8, 2022 had the following to say on the aspect of jurisdiction: -36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.37. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA relying, inter alia, on the above cited treatise by John Beecroft Saunders 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.38. A decision made by a court of law without proper jurisdiction amounts to a nullityab initio, and such a decision is amenable to setting aside ex debito justitiae.39. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity. 40. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the Matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(68). A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

24. The Supreme Court in Petition No 7 of 2013 Mary Wambui Munene v Peter Gichuki Kingara & 6 others, [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.

25. Returning to the matter at hand, from the parties’ cases the contention is whether the court ought to down its tools on account of the exhaustion doctrine. There is, hence, the need to have a brief discussion on the subject.

26. The doctrine of exhaustion in Kenya traces its origin from article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -159(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles-(a)…........(b)….......(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

27. Clause 3 is on traditional dispute resolution mechanisms.

28. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020] eKLR. The court stated as follows:52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine 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 encourages alternative dispute resolution mechanisms in line with article 159 of the Constitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the court opined thus:42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated 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.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated 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. The ex parte applicants argue that this accords with article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.

29. The court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R v Independent Electoral and Boundaries Commission (IEBC) & othersex parteThe National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: 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. As the Court of Appeal acknowledged in the Shikara Limited case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others v Aelous (K) Ltd and 9 others.)

60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.

61. The second principle is that the jurisdiction of the courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.

62. In the instant case, the petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.

30. The above decision was appealed against by the respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLRheld as follows: -The jurisdiction of the High Court is derived from article 165(3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic v Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under article 165(5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.

31. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly v Njenga Karume [1990-1994[ EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of law are enjoined to defer to specialised tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.

32. The petition in this matter is clear on the dispute at hand. in a nutshell, the contention is the manner and constitutionality in which the 1st respondent conducted its party nominations.

33. The above is affirmed in the prayers sought in the petition. They are as follows: -a.A declaration that the principles stipulated under article 10 have constitutionalized the doctrine of legitimate expectation to the effect that the 1st respondent shall act in accordance to the rule of law, he shall exercise equity, social justice, inclusiveness, equality, human rights, transparency, accountability and that he shall be a person of integrity and this has been violated by the 1st respondent.b.A declaration that the 1st respondent has violated article 38 as read together with section 38C(1) of the Political Parties Act, when its railed, refused and/or neglected to provide its members with a copy of the register of its members in every polling station where nominations were taking place.c.A declaration that the respondents has violated article 38 as read together of section 38C(2) of the Political Parties Act, when it sought to use the 3rd respondent’s voters register as opposed to the registered defined under section 2 of the Political Parties Act.d.A declaration that the purported nominations that took place on the April 14, 2022 were done in toto violation of article 38 as read together of section 38C(5) of the Political parties act and thus unlawful, as the 1st respondent allowed unregistered individuals and/or strangers to take part in the san nomination notwithstanding the express statutory provisions to wit: - A political party shall not allow any person who is not a registered member of the political party to participate in the party nominations.e.A declaration that by virtue of article 38 as read together of section 38D of the Political Parties Act, the 1st respondent was duty bound to ensure that the register of its members used in party nominations was accessible to the registered members of the party and the same was violated by the 1st and 2nd respondents herein.f.A declaration that the 1st respondent has violated violated article 38 as read together section 38F(1)(a) of the Political Parties Act when it failed, refused and/or neglected to post in a conspicuous place within each venue where the nominations was being held the list of members of the party who were eligible to participate in the nominations at that venue.g.A declaration that the 1st respondent has violated article 38 as read together section 38F(1)(a) of the Political Parties Act when it failed, refused and/or neglected to provide at each polling venue with a copy of the register of its members therein.h.As consequence of the above, a declaration be issued to the effect that the entire nomination process held by the 1st respondent on the April 14, 2022 is void ab initio for falling to comply with the law.i.An order of certiorari be issued to remove to this honourable court and quash all the 1st respondent’s nominations held on the 14 April. 2022 in respect the seats of governors, senators, women representatives, members of parliament. Members of the county assemblies.j.An order of mandamus to remove to this honourable court and compel the 19 and 24 respondents to comply with the provisions of Political Parties Act namely section 38C(1), section 38C(2), section 38C(5), section 38D, section 38F(1)(a) of the Political Parties Act.k.A declaration that the petitioner herein is entitled to cost for this

34. At this point, I have to deal with the petitioners’ submission that the petition has more than nomination issues. A quick rejoinder thereto lies in the contents of the Petition.

35. Paragraphs 5 to 24 of the petition are on the factual background to the petition. The facts as laid relate to the manner in which the 1st respondent conducted its party primaries and no more.

36. There are also paragraphs 30 to 36 of the petition which are on the constitutional violations. Again, the alleged violations arose from the impugned nominations.

37. On the basis of the foregoing, the petitioners’ argument that the petition raises more issues than those emanating from the party primaries does not have any basis in the pleadings. An argument of such nature is, hence, for rejection.

38. I will now look at how the Constitution and the law provides for pre-election disputes.

39. Article 82(1) of the Constitution provides as follows: -Parliament shall enact legislation to provide for-(a)the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;(b)the nomination of candidates;(c)the continuous registration of citizens as voters;(d)the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and(e)the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.

40. In article 88, the Constitution established the Independent Electoral and Boundaries Commission. It provides as follows: -(1)There is established the Independent Electoral and Boundaries Commission.(2)A person is not eligible for appointment as a member of the Commission if the person--(a)has, at any time within the preceding five years, held office, or stood for election as--(i)a member of Parliament or of a county assembly; or(ii)a member of the governing body of a political party; or(b)holds any State Office.(3)A member of the Commission shall not hold another public office.(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by article 82(1)(b) relating to nomination of candidates by parties.(5)The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.

41. Section 74 of the Elections Act further provides for the settlement of disputes as follows: -74. Settlement of certain disputes:(1)Pursuant to article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2)An electoral dispute under sub section (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3)Notwithstanding sub section (2), where a dispute under sub section (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

42. Section 4 of the Independent Electoral and Boundaries Commission Act (hereinafter referred to as ‘the IEBC Act’) provides the functions of the Commission as follows: -4. Functions of the Commission:As provided for by article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards in accordance with the Constitution;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development and enforcement of a code of conduct for candidates and parties contesting elections;(k)the monitoring of compliance with the legislation required by article 82(1)(b) of the Constitution relating to nomination of candidates by parties;(l)deleted by Act No 36 of 2016, s 30;(m)the use of appropriate technology and approaches in the performance of its functions; and(n)such other functions as are provided for by the Constitution or any other written law

43. There is also section 40 of the Political Parties Act, No 11 of 2011 which provides for the jurisdiction of the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’). The tribunal is established under section 39 of the said Act.

44. The jurisdiction of the tribunal is provided 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; and(fa)disputes arising out of party nominations.(2)Notwithstanding sub section (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.

45. The Constitution and the law, therefore, primarily creates two avenues for settlement of pre-election disputes since any dispute arising out of the declaration of the results of an election is a preserve of the courts.

46. The two avenues are the Commission under articles 82 and 88 of the Constitution, section 74 of the Elections Act and section 4 of the IEBC Act and the Tribunal under sections 39 and 40 of the Political Parties Act.

47. The functions of the commission and the tribunal are also well demarcated.

48. In an amendment made to the Political Parties Act vide the Political Parties (Amendment) Act, No 2 of 2022, (which commenced on February 11, 2022) the jurisdiction of the tribunal in section 40 of the Political Parties Act was expanded by the introduction of sub-section 1(fa) to include: -(fa)disputes arising out of party nominations.

49. It is instructive to note that the Political Parties (Amendment) Act had also expanded the mandate of the Registrar of Political Parties through the introduction of section 34(fd) of the Political Parties Act to include: -(fd)regulate political party nominations in accordance with this Act;

50. The constitutionality of the said section 34(fd) of the Political Parties Act was challenged in Nairobi High Court Petition No E043 of 2022 (as consolidated with Petition No E057 of 2022 and Petition No E109 of 2022 Salesio Mutuma Thuranira & 5 others v Attorney General & others (unreported) and in a judgment delivered on April 20, 2022 the court found the said provision unconstitutional ‘as regulation of political party nominations is the mandate of the Commission and not the Registrar of Political Parties’.

51. Of keen importance to note is that the constitutionality or otherwise of section 40(1)(fa) of the Political Parties Act was not challenged.

52. As stated above, the effect of section 40(1)(fa) of the Political Parties Act was to expand the jurisdiction of the tribunal. Whereas the tribunal initially had jurisdiction over disputes between the members of a political party, disputes between a member of a political party and the political party, disputes between political parties, disputes between an independent candidate and a political party, disputes between coalition partners and appeals from decisions of the Registrar, Parliament, through the amendment expressly allocated the mandate of resolving all disputes arising out of party nominations to the Tribunal.

53. For clarity, unlike before the introduction of section 40(1)(fa) of the Political Parties Act where the jurisdiction of the tribunal was limited to inter alia the parties and their members or between political parties, the amendment widened the access to the tribunal. Today, any dispute which arises out of party nominations is a preserve of the Tribunal.

54. It is of essence to note that section 40(1)(fa) of the Political Parties Act is a general provision and is not limited to inter alia the parties and their members or between political parties.

55. The foregoing is the prevailing law.

56. Until and unless the petitioners are able to demonstrate that any of the exceptions to the doctrine of exhaustion is applicable in this matter, the doctrine becomes a complete bar to the jurisdiction of this court.

57. Counsel for the petitioners made frantic effort to prove that indeed the exceptions to the doctrine applies.

58. From case law discussed above, there are principally two exceptions to the doctrine of exhaustion. The first exception is when the alternative forum will not serve the values enshrined in the Constitution or law including the suitability of the appeal mechanism available in the context of the particular case.

59. The second exception is when the forum does not accord the parties adequate audience or the forum lacks the quality of audience which is proportionate to the interests the party wishes to advance in a suit.

60. On the first exception, the tribunal is a creation of the Constitution and the law. Its first call is to respect, uphold and defend the Constitution. That is in article 3.

61. In discharging its duties, the tribunal is to apply and be guided by the Constitution including the national values and principles of governance in article 10. Putting it more succinctly, the tribunal has the jurisdiction to determine whether the Constitution and the law were violated during the party nominations.

62. Any party dissatisfied by the decision of the Tribunal may appeal to the High Court. Again, the High Court accords a forum where the applicability of the Constitution and the law can be interrogated further.

63. There has been no evidence to demonstrate that the values enshrined in the Constitution or law will not be upheld before the Tribunal in the unique circumstances of this case.

64. The second exception is on the adequacy of the forum to adjudicate on the dispute. The petitioners contended that section 40 of the Political Parties Act was mainly aimed at serving political parties and their members since under section 40(2) the dispute must first be subjected to the internal dispute mechanisms of a political party.

65. In this case, it was argued, that since the requirement does not apply then the jurisdiction of the tribunal is outrightly ousted.

66. It is true that section 40(2) of the Political Parties Act makes it a condition precedent that the internal dispute mechanism of a political party must first be invoked. The provision states as follows: -(2)Notwithstanding sub section (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.

67. A reading of the above provision shows that it was carefully drafted to avoid paragraphs (d) and (f) of sub-section 1. Paragraph (d) deals with disputes between an independent candidate and a political party and paragraph (f) is on appeals from decisions of the Registrar.

68. It can be readily gathered that the intention of Parliament was to restrict the application of sub-section 2 to the parties tied to a political party.

69. Whereas almost all disputes arising out of party nominations are premised on political parties, there are some isolated cases, like the current one, where other persons other than the members of a party may, for whatever reason, challenge party nominations. Therefore, in order to take care of such instances, section 40 of the Political Parties Act ought to be amended to accord to such circumstances.

70. With a view to align section 40 of the Political Parties Act with the constitutional imperatives on exercise of constitutional restraint and the need to enhance the applicability of alternative dispute resolutions mechanisms, and in keeping in line with section 7 of the sixth schedule to the Constitution, sub-section 2 of the Political Parties Act cannot not apply to disputes arising out of party nominations by parties who are not members of the political party whose party nominations are challenged.

71. In that case, the intention of Parliament that all disputes arising out of party nominations be dealt with by the tribunal stands realized.

72. There is no evidence that the petitioners invoked the jurisdiction of the Tribunal over the dispute in vain. The petitioners outrightly decided to rush to court in total disregard to section 40(1)(fa) of the Political Parties Act.

73. In the end, this court finds and hold that the petitioners failed to demonstrate the applicability of the second exception in the matter. As such, the exception does not also apply to this matter.

74. Having said so, it is this court’s finding that this matter raises the following conclusions: -i.That section 40(1)(fa) of the Political Parties Act applies to all disputes arising out of party nominations.ii.That section 40(2) of the Political Parties Act does not apply to disputes arising out of party nominations by parties who are not members of the political party whose party nominations are challenged.

Disposition: 75. As I come to the end of this ruling, the Hon Deputy Registrar of this division shall transit a copy thereof to the Hon Attorney General for appropriate action.

76. Flowing from the discussion in the matter, the following final orders do hereby issue: -a.This court lacks jurisdiction to deal with the dispute in this matter on account of the doctrine of exhaustion.b.The petition and the notice of motion dated April 19, 2022 are hereby struck out.c.The petitioners shall bear the costs of the petition.d.The court file is hereby marked as closed.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF MAY, 2022. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Mr. Ndegwa Njiru, Counsel for the petitioners.Mr. Elias Mutuma, Counsel for the 1st respondent.Mr. Ndwiga, Counsel for the 2nd respondent.Mr. Nura, Counsel for the 3rd respondent.Jared Otieno – Court Assistant.