[2017] KECA 455 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MUSINGA & GATEMBU, JJ.A.)

CIVIL APPEAL NO. 138 OF 2017

BETWEEN

HEZRON J. OPIYO ASUDI.........................................................................1ST APPELLANT

JOHN OKECH ONGERE.............................................................................2ND APPELLANT

VERSUS

PETER ANYANG? NYONG'O....................................................................1ST RESPONDENT

ODM NATIONAL ELECTIONS BOARD...................................................2ND RESPONDENT

ODM NATIONAL APPEALS TRIBUNAL.................................................3RD RESPONDENT

ODM NATIONAL EXECUTIVE COMMITTEE...........................................4TH RESPONDENT

ORANGE DEMOCRATIC MOVEMENT.....................................................5TH RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.......6TH RESPONDENT

(Being an appeal from the Judgment and Decree of the High

Court of Kenyaat Nairobi (Kimaru, J.) dated 11thMay, 2017

in

Election Petition Appeal No. 7 of 2017)

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JUDGMENT OF THE COURT

1. This is a second appeal from the original decision of the Political Parties Disputes Tribunal, (PPDT)in Complaint No. 47 of 2017 where the appellants sought to challenge the decision of the 5th respondent’s National Executive Committee (NEC), to issue a direct nomination of the gubernatorial seat for Kisumu County to the 1st respondent. The direct nomination of the 1st respondent was as a result of failure to conduct proper and credible nominations and constraints of time.

2. Before the PPDT, the 1st respondent raised a preliminary objection to the appellants’ complaint to the effect that the claimants had not filed any dispute with the Orange Democratic Movement’s National Appeals Tribunal and had therefore not exhausted the party’s Internal Dispute Resolution Mechanism, (IDRM). Accordingly, the 1st respondent argued, the Tribunal lacked jurisdiction to hear and determine the application in terms of section 40(1) and (2)of thePolitical Parties Act No. 11 of 2011.

3. The Tribunal upheld the preliminary objection and dismissed the complaint for want of jurisdiction. In its interpretation of section 40 of thePolitical Parties Act, the Tribunal stated:

"Clearly, while sub-section (1) outlines the delimitation ofthe Tribunal?s jurisdiction, sub-section (2) is emphatic that for that jurisdiction to be invoked, the party internal dispute resolution mechanisms MUST have been first invoked. Hence, while a matter may outrightly lie before this Tribunal under sub-section (1), the tribunal may decline to assume jurisdiction on the basis that the internal party dispute resolution mechanisms have not been invoked. The requirement for invocation of Parties?IDRM has its rationale. Article 4(2) of the Constitution declares in no uncertain words that Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article10. Hence there is need for everyone, this Tribunal included, to promote and protect multi-party system inour country.”

4. Although the issue of lack of jurisdiction was the main one that caused the failure of the appellant’s claim before the PPDT, there was another side issue. The Tribunal noted that following conclusion of the gubernatorial nominations, one of the candidates, Dr. MCobewa, filed complaint No. 23 of 2017 before the National Appeals Tribunal of the Orange Democratic Movement, where he named Prof. Anyang’ Nyong’o and Hon. Jack Ranguma as the respondents. The appellants herein were not parties to that complaint. The Tribunal therefore held that the appellants had no locus standi.

5. Being aggrieved by the Tribunal’s decision, the appellants preferred an appeal to the High Court. The appellants raised six grounds of appeal, among them being: that the Tribunal erred in its interpretation of section 40of thePolitical Parties Act;and in holding that they had no locus standi.

6. In its determination, the High Court (Kimaru, J.), agreed with the Tribunal’s findings and dismissed the appeal. Undeterred, the appellants moved to this Court on a second appeal. In their memorandum of appeal, the appellants faulted the learned judge for failing to evaluate the entire evidence, being the first appellate court; for failing to properly interpret section 40of thePolitical Parties Act;and for finding that they had no locus standi, which finding, the appellants argued, breached Articles 22, 27, 50 and 258of theConstitution.

7. Arguing the appeal before this Court, Mr. Mwamu, learned counsel for the appellants, submitted that both the Tribunal and the High Court erred in their interpretation of section 40 of the Political Parties Act, pointing out that the section was recently amended by inserting a new paragraph (fa) immediately after paragraph (f). That was done vide The Political Parties (Amendment) Act No. 21 of 2016, whose commencement date was 21st July, 2016.

8. Counsel submitted that the amendment gave the PPDT power to entertain disputes arising from party primaries, even where such disputes had not been initially referred to a party’s IDRM. He urged the court to adopt a literal cum purposive interpretation to the said amendment.

9. Regarding the issue of locus standi; the appellants argued that the High Court’s finding that they had no capacity to institute the complaint was an affront to the provisions of Articles 22, 27, 50 and 258 of the Constitution. The fact that they were not parties to the original complaint and could not therefore move to the PPDT did not take into consideration that under Article 38 of the Constitution they had a right to ventilate their political agenda, the appellants contended. They cited this Court’s decision in MUMO MATEMU v TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE& 5 OTHERS[2013] eKLR, in which, they postulated, the court liberalized the rule of locus standi in matters relating to enforcement of constitutional rights.

10. Besides, the appellants added, Article 258(1) expressly states that

“Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.”

11. On behalf of the 1st respondent, Ms. Soweto submitted, the issue ofsection 40(1) (fa)was not before the PPDT; and neither was it a ground of appeal to the High Court. The issue was only raised as an afterthought during the hearing of the appeal at the High Court. In that regard, the High Court rightly held that it could not entertain it as the first appellate court; and likewise it could not be argued before this Court for the first time, this being the second appellate court.

12. That notwithstanding, Ms. Soweto added, it was an inadvertent omission by the legislature to omit disputes arising out of party primaries among the list of disputes that must first be referred to a party’s internal dispute resolution mechanism before the PPDT can be asked to adjudicate on the same. She pointed out that section 40 (1) (fa) was inserted as an amendment preceded by section 40(2) which specified the kind of disputes that had to be subjected to IDRM before they could be dealt with by the PPDT.

13. Counsel urged the Court to consider the object and purpose of the inserted paragraph, which, according to her, could not have been to exclude party primary disputes from the ambit of IDRM. That it was the intention of the legislature to subject party primaries to IDRM, counsel citedRegulation 27(1)of theElections (Party Primaries and Party Lists) Regulations, 2017, which provides that:

“Every political party shall establish an internal dispute resolution mechanism in relation to the party primaries and party list.”

Ms. Soweto submitted that it cannot be acceptable by any reasoning or logic that the same legislature that required political parties to establish IDRM specifically for party primaries intended that those same disputes should not be subjected to IDRM, but instead be filed directly before the PPDT. She therefore urged the Court to adopt an interpretation that is holistic and contextual, and sustains each provision of the law.

14. The 1st respondent’s learned counsel cited this Court’s decision inJUDGES AND MAGISTRATES VETTING BOARD AND ATTORNEY GENERAL v KENYA MAGISTRATES & JUDGES ASSOCIATION[2014] eKLRfor the proposition that in instances of this nature it was necessary to read in paragraph (fa) into section 40(2) to meet the ends of justice and the spirit of the law and the Constitution. In the above cited case, the Court stated:

“We donot perceive any error on the part of the High Court, in reading in words into section 18(1) of the Act forthe avoidance of any doubt ….in the quest to achieve and give meaning to constitutional principle, value, goal or purpose, the courts, when called upon to interpret legislation against the Constitution, may opt for variousremedies such as ….. reading down or reading in ….. we do not find any valid reason why„reading in?is not aremedy under the transformative Constitution of Kenya.”

15. On the issue of locus standi, the 1st respondent’s counsel submitted that the right to institute proceedings provided for under Articles 22, 27,50 and 258is not a carte blanche for anyone to institute any proceedings without regard to jurisdiction of specific institutions and justiciable legal procedure.

16. Mr. Oluoch, learned counsel for the 5th respondent, supported Ms. Soweto’s submissions. He added that it could never have been the intention of the legislature to allow members of political parties to have two different bodies dealing with disputes arising from party primaries, one before the PPDT and another one through the party’s IDRM. In his view, the intention of the legislature was to have all such disputes first addressed by a party’s IDRM. Thereafter the disputes could be heard before the PPDT.

17. Counsel added that any person that seeks to invoke section 40(1) (fa)of thePolitical Parties Actmust demonstrate that they had attempted to invoke section 40(1) (a) or that they cannot get a fair hearing under Article 50 of the Constitution.

18. Regarding locus standi of the appellants, Mr. Olouch submitted that in case No. 17 of 2017 before the PPDT, the appellants were the complainants against Judy Pareno and the National Election Board of the 5th respondent as the respondents. That matter was finalized by way of a consent that was recorded on 21st April, 2017. But after the party primaries, the appellants filed Complaint No. 47 of 2017 for the benefit of Jack Ranguma, who had opted to become an independent candidate. Counsel submitted that Jack Ranguma was engaged in surrogate litigation through the appellants. He urged the court to dismiss the appeal.

19. We have carefully considered the entire record of appeal as well as counsel’s submissions. Although the nub of this appeal is the interpretation of section 40(1) (fa) of the Political parties Act, a brief background of the facts that gave rise to the appeal is necessary, though under section 41(2) of the Political Parties Act an appeal to this Court lies on issues of law only.

20. On 25th April, 2017 the Orange Democratic Movement conducted gubernatorial primaries for Kisumu County. The 1st respondent was declared the duly nominated party candidate for the said slot. However, Jack Ranguma was also purportedly declared the victor. The two of them were issued with provisional nomination certificates in rather unclear circumstances.

21. On 27th April, 2017 Jack Ranguma and another candidate, Dr. McObewa, filed complaints with the Party’s National Appeals Tribunal, each claiming victory. On 28th April, 2017 the National Appeals Tribunal withdrew the provisional certificates issued to Jack Ranguma and the 1st respondent and ordered the party’s National Executive Committee to determine the party’s candidate for Kisumu County. The National Executive Committee in its meeting of 29th April, 2017 selected the 1st respondent as its candidate for the said position and issued him with a nomination certificate.

22. On 2nd May, 2017 the appellants, who were not candidates in the said party primaries, filed a complaint at the PPDT, seeking, inter alia, to bar the 1st respondent from contesting any political position. By then Jack Ranguma had resigned from ODM and opted to contest for the gubernatorial position as an independent candidate.

23. The PPDT dismissed the claim for reasons as already stated, primarily that it had no jurisdiction, since the appellants had not first presented any complaint before the party’s IDRM. The High Court agreed with the decision of the PPDT.

24. Prior to amendment of Section 40 of the Political Parties Act through the Political Parties (Amendment) Act No. 21 of 2016, the section read as follows:

“40(1) The Tribunal shall determine –

a.disputes between 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 this Act;

(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.”

Section 19of thePolitical Parties (Amendment) Act No. 12 of 2016 which amended section 40 states:

“19. Section 40 of the Principal Act is amended in subsection (1) by inserting the following new paragraph immediately after paragraph (f) –

“(fa) disputes arising out of party primaries.”

25. The appellants’ submission regarding interpretation of the aforesaid section was that the amendment gave the PPDT power to entertain disputes from party primaries directly, without having to first subject such disputes to a party’s IDRM. Mr. Mwamu urged this Court to give literal and purposive interpretation to the aforesaid amendment, arguing that the legislature must be presumed to have intended to achieve what it exactly stated.

26. The appellants’ counsel cited the decision by the Supreme Court of India in BHARAT ALUMINIUM COMPANY v KAISER ALUMINIUM TECHNICAL SERVICE, INC, Civil Appeal No. 7019/2005that was quoted by this Court in NYUTU AGROVET LIMITED v AIRTEL NETWORKS LIMITED [2015] eKLR, to the effect that courts will never impute redundancy or tautology to parliament. Further, the Supreme Court quoted with approval the judgment of Viscount Simon in HILL v WILLIAM HILL (PARK LANE) LTD [1949] AC 530at page 546 that:

“When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which had not been said immediately before.”

27. On the other hand, the 1st and 5th respondents’ advocates submitted that this Court should interpret the aforesaid amendment purposively so as to arrive at the conclusion that all disputes arising from party primaries should first be referred to a party’s IDRM. What then should be the most appropriate and pragmatic interpretation to the said amendment?

28. In JONNAH TUSASIRWE & 10 OTHERS v COUNCIL OF LEGAL EDUCATION & 3 OTHERS [2017] eKLRthat was cited by the 1st respondent’s learned counsel, Mativo, J. reiterated that “the touchstone of interpretation is the intention of the legislature. The legislature may reveal its intentions directly, for example by explaining them in a preamble or a purpose statement.”

We respectfully agree with the learned judge. In interpreting a statute, a court of law has a duty to do so in a manner that meets the intention or purpose of the legislation.

29. What then was the intention of the legislature in introducing section 40(1) (fa)of theAct? The object is discernible from the memorandum of objects and reasons of the Political Parties (Amendment) Bill, which was as follows:

“Clause 19 seeks to amend section 40 of the Principal Act by adding disputes arising out of party primaries in order to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes.”

30. Given the above clear intent of the legislature, we cannot see how it can rightly be argued that disputes arising out of party primaries were intended to be commenced at the PPDT, without having to first, submit such disputes to a party’s IDRM. If that were the case, it would be tantamount to giving concurrent jurisdiction to several bodies, including the Independent Electoral and Boundaries Commission, which underArticle 88(4) (e)of theConstitution, is empowered to settle disputes relating to or arising from nominations. In order to realize the objective of the aforesaid amendment, which was to “to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes”, we think that it is only proper that all disputes arising out of party primaries be commenced at party level. We think the legislature may have inadvertently failed to include paragraph (fa) under subsection (2) of section 40.

31. It is noteworthy that under section 9 of the Political Parties Act as read with regulation 23 of the Second Schedule to the Act, every political party must have an internal party dispute resolution mechanism. Further,section 13 (2A)of theElections Actrequires political parties to hear and determine “all intra party disputes arising from political party nominations” within thirty days. That in essence implies that any form of dispute between members of a political party, including disputes arising out of party primaries, must first be placed before the party’s IDRM, unless, and for good reason, the nature of the dispute is such that the party’s IDRM cannot grant the disputants or one of them a fair hearing.

32. In our view therefore, disputes under paragraphs (a), (b), (c), (e) and (fa) of section 40 should first be instituted before a party’s IDRM. If a disputant demonstrates to the party’s IDRM’s satisfaction that the dispute ought to be heard and determined by the PPDT, the matter may thereafter be filed before the PPDT. The sieving mechanism provided by section 40(2)must be respected and safeguarded. To the extent that all disputes arising out of party primaries are disputes between members of a political party, then the party’s IDRM must be the first port of call.

33. Being of that considered view, we are satisfied that both the PPDT and the High Court did not err in their interpretation of section 40 of thePolitical Parties Act.

34. Lastly, on the issue of locus standi, the appellants were not candidates in the 5th respondent’s nomination exercise for Kisumu Gubernatorial position, and neither were they parties to NAT Appeal no. 23 of 2017. The appellant was Dr. MCobewa, while the respondents were the 1st respondent herein and Jack Ranguma. The appellants did not lodge any complaint before the 5th respondent’s National Appeals Tribunal. They had no capacity therefore to move the PPDT.

35. It appears as though the appellants, in challenging the decision of the 5th respondent’s National Executive Committee before the PPDT, were acting at the instance of Jack Ranguma, who had resigned from ODM to vie as an independent candidate. We say so because paragraph 5 of their claim/complaint before the PPDT states as follows:

“5. At all material times relevant to this claim; the claimant was, and still is, registered life member of the ODM Party. He is also the Governor of Kisumu County Government.”

That averment was factually incorrect and misplaced.

No wonder Mr. Oluoch termed the appellants’ claim “surrogate litigation”. We therefore agree that under the 5th respondent’s Election and Nominations Rules as read together with section 40 of the Political Parties Act, the appellants had no locus standi to file their claim before the PPDT.

36. All in all, we find this appeal lacking in merit and hereby dismiss it in its entirety. Each party shall bear its own costs.

Dated and delivered at Nairobi this 30thday of June, 2017.

R. N. NAMBUYE

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JUDGE OF APPEAL

D.K. MUSINGA

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JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

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

DEPUTY REGISTRAR