[2023] KEPPDT 1365 (KLR)

Gachiri v Speaker County Assembly Of Nakuru & another; Majority Leader, Nakuru County Assembly & 2 others (Interested Parties) (Complaint E002 of 2023) [2023] KEPPDT 1365 (KLR) (30 August 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1365 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 of 2023

D. Nungo, Chair, W Mutubwa, Vice Chair, T. Chepkwony & AA Abdikadir, Members

August 30, 2023

Between

John Macharia Gachiri

Petitioner

and

Speaker County Assembly Of Nakuru

1st Respondent

United Democratic Alliance

2nd Respondent

and

Majority Leader, Nakuru County Assembly

Interested Party

Chief Whip, Nakuru County Assembly

Interested Party

David Wathiai

Interested Party

Ruling

Introduction 1. On 6th June 2023, the 1st Respondent’s Secretary General wrote a letter to the 2nd Respondent directing him to communicate changes in the membership of the Nakuru County Assembly Service Board (CASB) to the effect that the Petitioner (Complainant) had been removed from the CASB and replaced with the interested party. The Complainant is aggrieved by his purported removal from the CASB and he claims that the processes and procedures leading thereto were irregular and in breach of the law.

2. Aggrieved by his purported removal, the Complainant filed the instant Petition (hereinafter referred to as Complaint) together with a Notice of Motion application under certificate of urgency. Vide his Complaint, the Complainant seeks the following reliefs from this Tribunal:-i.A declaration that the communication dated 6th June 2023 by the 1st Respondent through its Secretary General to the 2nd Respondent revoking the nomination of the Petitioner to the County Assembly Service Board is unlawful and hence null and void.ii.An order of injunction, restraining the 2nd Respondent, or nay person acting at his behest from communicating the 1st Respondent through its Secretary General’s letter dated 6th June 2023 to the 2nd Respondent revoking the nomination of the Petitioner to the County Assembly Service Board.iii.Any other relief that the tribunal deems fit.iv.Costs of the Petition.

3. In response to the Complaint, the 1st Respondent and the 1st Interested Party filed preliminary objections dated 3rd August 2023 and 7th August 2023 respectively. Pursuant to the directions that were issued by this Tribunal for the hearing of the preliminary objections in priority, the subject preliminary objections were canvassed inter partes on the 21st August 2023

4. The Complainant was represented by Mr. Ooga Advocate, the 1st Respondent was represented by Ms. Chepng’etich Advocate, and the interested party was represented by Mr. Wachira Advocate. The 2nd Respondent and the 2nd and 3rd Interested Parties did not attend the hearing of the preliminary objections despite service.

The 1st Respondent’s Preliminary Objection 5. The gist of the 1st Respondent’s preliminary objection dated 3rd August 2023 is that the tribunal lacks jurisdiction to entertain the Complaint under Section 40(2) of the Political Parties Act, 2011 (the PPA), and Section 9(2) of the Fair Administrative Actions Act (the FAAA). It is the 1st Respondent’s contention that the Complainant has not adduced evidence of an attempt at pursuing the political party’s internal dispute resolution mechanism (IDRM) in the first instance, and further that available remedies in law have not been exhausted before moving the tribunal contrary to the provisions of Section 9 (2) of the FAAA, and that the Complainant has no satisfied the doctrine of exhaustion.

6. He submits that the Complainant should have first referred the dispute to the 1st Respondent’s IDRM and he relies on this tribunal’s decision in PPDTC Complaint No. E003 of 2023 Fatuma Adan Dullo & Jubilee Party vs Azimio La Umoja One Kenya Coalition Party & 3 Others, where it was held that the tribunal can only adjudicate disputes after attempt at IDRM. He also relied on a similar holding in the High Court case of Eric Kyalo Mutua vs Wiper Democratic Movement (2017) eKLR.

7. The 1st Respondent submitted that they were served with letter dated 27th July 2023 on 3rd August 2023 after the instant Complaint had been filed and that the subject letter cannot be regarded as evidence of an attempt at IDRM prior to moving the tribunal. The 1st Respondent accordingly prays that the Complaint be struck out with costs to the 1st Respondent.

The 1st Interested Party’s Preliminary Objection 8. The 1st Interested Party’s preliminary objection is dated 7th August 2023. He also relied on his Written Submissions filed on 14th August 2023 in support of the preliminary objection.

9. It was submitted on behalf of the 1st Interested Party that the preliminary objection is based on Section 40(2) of the PPA which grants the Complainant a first chance of seeking justice at the political party’s IDRM prior to approaching the tribunal. The IDRM is set for the purposes of first having an internal way of resolving disputes.

10. According to the 1st Interested Party, the supporting affidavit filed by the Complainant demonstrates that the Complainant wrote a letter dated 27th July 2023, three (3) days after this matter was filed before the tribunal on 24th July 2023. He submits that this letter cannot be evidence of an attempt at IDRM as IDRM cannot apply retrospectively.

11. It is further submitted that Section 9(2) of the FAAA provides that a matter must first be resolved through the available alternative dispute resolution mechanisms before moving the tribunal. He relies on the doctrine of exhaustion and submits that the Complainant has not exhausted all the mechanisms available for dispute resolution before bringing this action.

12. He in addition associated himself with the submissions made on behalf of the 1st Respondent and contends that the Complaint is not ripe for hearing and determination before the tribunal and that the same should be dismissed and the Interested Party awarded costs.

The Complainant’s Submissions in response to the preliminary objections by the 1st Respondent and the 1st Interested Party. 13. It is the Complainant’s submission that the preliminary objections raised by the 1st Respondent and the 1st Interested Party are both unmerited and he relies on his Written Submissions dated 15th August 2023 in response thereto.

14. The Complainant maintains that he has met the threshold to warrant the tribunal’s intervention. According to him, the instant dispute between the Complainant and the 1st Respondent is one between a member of a political party and a political party, thus falling within the provisions of Section 40(1)(b) of the PPA. He argues that the wording of Section 40(2) of the PPA is clear that the Complainant needs to demonstrate an attempt to subject the dispute to IDRM. The instant Complaint was filed on 27th July 2023 and not on 24th July 2023 as submitted by the 1st Interested Party. The Complainant contends that the subject letter was a demonstration of an attempt at IDRM, and that once the Complainant makes an attempt at IDRM, it is upon the political party to take up the matter through its IDRM mechanisms and ensure speedy resolution of the Complaint.

15. It was submitted on behalf of the Complainant that no evidence was adduced before the tribunal to show that the 1st Respondent has in place mechanisms to resolve disputes between it and its members. It is not incumbent for the Complainant to show there is IDRM, and that the Complainant is not expected to wait without knowing the period the matter would take. He therefore maintains that he attempted IDRM and that there was no response from the political party, and urges the tribunal to consider his written submissions and the judicial authorities filed herein.

Replying Submissions by the 1st Respondent and the 1st Interested Party 16. In his replying submissions, Counsel for the 1st Respondent reiterated the provisions of Section 40(1) of the PPA which lists down matters the tribunal can hear and the precondition under Section 40(2) of the PPA of an attempt at IDRM in the first instance. According to the 1st Respondent, the Complainant is being economical with the truth as to whether the dispute was subjected to IDRM. He maintains that the letter dated 27th July 2023 was served when the dispute was already before the tribunal and that the 1st Respondent could not act upon it in the circumstances. It is his contention that the Complainant is a member of the party and should be aware of the provisions of the party constitution on IDRM. He therefore maintains that this tribunal lacks jurisdiction as the Complainant has not satisfied the requirements of exhaustion, and that the burden of proof of an attempt at IDRM is upon the Complainant.

17. In reply, Counsel for the 1st Interested Party, on the other hand, submitted that the letter dated 27th July 2023 is not an attempt at IDRM but a protest, that it was not in the form prescribed for lodging complaints before IDRM, and further that it is not directed to the political party’s IDRM. He further submitted that even if the matter was filed on 27th July 2023 and not 24th July 2023, it is evident that the subject letter is dated 27th July 2023, which is the same date the Complaint is alleged to have been filed before the tribunal. There was no reasonable time given to the party to consider the dispute and the letter was in any event served on 3rd August 2023 during the pendency of this Complaint.

18. The tribunal was urged to breathe life to the provisions of Section 9 of the FAAA which is couched in mandatory terms, and that the facts presented do not support hearing of this Complaint. The tribunal was also invited to define an attempt at IDRM as provided for under Section 40(2) of the PPA.

Analysis and Determination 19. We have considered the preliminary objections dated 3rd August 2023 and 7th August 2023, and the parties’ submissions thereon, and the sole issue for our determination is whether this Tribunal has jurisdiction to hear and determine this matter.

20. The definition and practical implications of jurisdiction were discussed in the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR, where the court held:“It is a truism, jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

21. The source and scope of jurisdiction has also been effectively pronounced in the landmark Supreme Court case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the judges held that: “A Court’s jurisdiction flows from either the Constitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.”

22. The jurisdiction of this Tribunal emanates from both Constitutional and Legislative provisions. Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011 (hereinafter “PPA 2011”), provides 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.

23. In the present Complaint, all parties hereto admit that the instant dispute is one between the Complainant (a member of the 1st Respondent political party) and the 1st Respondent political party. It is not in dispute that Section 40(2) of the PPA requires such a dispute to be subjected to IDRM prior to moving the Tribunal. The law requires a party to adduce evidence of an attempt thereof before the Tribunal assumes jurisdiction.

24. This tribunal has on numerous occasions defined what amounts to an attempt at IDRM. In the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022), for instance, we issued guidelines on what amounts to an attempt at IDRM. In the stated case, we 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 that, 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. ”

25. In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto.

26. As already highlighted above, the Complainant submitted that he attempted IDRM vide his letter dated 27th July 2023 in consonance with the provisions of Section 40(2) of the PPA, and that the onus is now on the 1st Respondent to demonstrate otherwise. The 1st Respondent and 1st Interested Party, on the other hand, maintain that the letter dated 27th July 2023 did not demonstrate an attempt at IDRM prior to moving the tribunal.

27. We note that both the Petition and Notice of Motion Application instituting action in this matter are dated 24th July 2025, which implies that the subject pleadings were drafted on or before the 24th July 2023. We further note that this Complaint was filed in the tribunal’s e-filing portal on 25th July 2023. Considering the subject letter dated 27th July 2023 relied on by the Complainant to demonstrate an attempt at IDRM, it therefore follows that the pleadings in this case were drafted and filed two or three days before the Complainant wrote the subject letter dated 27th July 2023 inviting the party to look into the dispute. We have also considered the fact that the letter dated 27th July 2023 was served upon the 1st Respondent during the pendency of this Complaint. Considering all these, we are not persuaded that the Complainant made an honest bona fides attempt at IDRM prior to moving the tribunal. It appears to us that the letter dated 27th July 2023 was written as a mere formality without the real intention of letting the party adjudicate over the dispute in the first instance.

30. In finding that IDRM was not properly attempted, the Tribunal in the John Mworia Nchebere Case (supra) cautioned, at para 51 thereof, that ‘IDRM is neither a dress rehearsal, pit stop nor an ornamental provision’ in the Political Parties Act, but serves ‘a functional utility under Articles 38 and 159 of the Constitution’.

31. And in PPDTC Nairobi A E111 of 2023 Suleka Hulbale Harun vs Mariam Sheikh Omar & Anor, the tribunal stated thus:-QUOTE{startQuote “} …65. We have evaluated the record and we note that there has been produced a Complaint that was prepared for filing with the 2nd Respondent’s IDRM. The Complaint is dated 1st August 2022. The Complainant avers that her lawyer went to the 2nd Respondent’s offices on 2nd August 2022 and found the place closed. He nevertheless served the documents upon a security officer who accepted service at 3. 50pm. The following day, she moved straight to the Tribunal to file the instant Complaint claiming that the party failed to respond.

66. We are at pains to understand how the complaint documents could be so casually lodged with the party through a security officer without a follow up. We find it strange that instead of the Complainant even making a follow up on the following day, being the 3rd August 2022, the Complainant elected to move straight to the Tribunal to file this Complaint. Even if it were to be argued that the complaint was successfully delivered to the party through the security officer, did the complainant expect the party to act between the evening of 2nd August 2022 and 3rd August 2022 when she elected to move the Tribunal? Was the party really granted reasonable time to respond or resolve the matter? 69. The foregoing unanswered questions in our considered opinion cast doubt as to whether the Complainant was genuinely and honestly desirous of having this matter resolved by the party in the first instance. It appears to us that the complaint documents intended to be lodged with the party were prepared as a mere formality and with the hope that they would qualify as an attempt at IDRM but with no real intention of subjecting the dispute to IDRM.…”

32. Taking into consideration the law, the afore-highlighted circumstances of this case and the judicial authorities referred to above, we are at pains to arrive at a finding that there was an honest bona fides attempt at IDRM. In any event, none of the circumstances highlighted in the John Mworia Nchebere case have been demonstrated to exist in this case to allow us to assume jurisdiction nevertheless. In line with section 40(2) of the PPA, the Tribunal therefore finds and holds that it does not have jurisdiction to hear this matter.

33. It has been established repeatedly that jurisdiction is sacrosanct and without it, a court or tribunal has no basis to continue proceedings or examine the merits of a case. A court or tribunal is obligated to lay down its tools as soon as it holds the opinion that it is without jurisdiction. Having determined that we do not have jurisdiction to determine this matter, we have no option but to down our tools.

34. As regards costs, it is a well settled legal principle that costs follow the event, and we have no basis to depart from the same. We accordingly award costs to the 1st Respondent and the 1st Interested Party. For the avoidance of doubt, the award on costs does not apply to the 2nd Respondent and the 2nd and 3rd Interested parties as they did not participate in these proceedings despite service.

Disposition 35. In light of the foregoing, we order as follows:-a.That the Preliminary Objections by the 1st Respondent and the 1st Interested Party dated 3rd August 2023 and 7th August 2023 respectively are hereby upheld.b.That the Petition/Complaint herein be and is hereby struck out with costs to the 1st Respondent and 1st Interested Party.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS…30TH…. DAY OF …AUGUST…2023. …………………………………………………HON. DESMA NUNGO HSC - CHAIRPERSON……………………………………………………HON. DR. WILFRED A. MUTUBWA LLD OGW C.ARB FCIARB - VICE CHAIRMAN………………………………………….HON. THERESA CHEPKWONY - MEMBER……………………………………………………….HON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER