[2022] KEPPDT 988 (KLR)

Issa v Orange Democratic Movement (Complaint E118 (NRB) of 2022) [2022] KEPPDT 988 (KLR) (11 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 988 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E118 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

August 11, 2022

Between

Beking Ahmed Issa

Complainant

and

Orange Democratic Movement

Respondent

Judgment

1. The Complainant applied for consideration for nomination in the Respondent’s Wajir County Assembly party list under the category of ethnic minority. However, in a party list published by the IEBC on the 27th July 2022, she was listed as one of the nominees but under the category of persons with disability (PWD).

2. Even though she is a PWD, she is aggrieved by her nomination under that category and she seeks the following orders from this Tribunal:-a.An order be made by the Political parties Disputes Tribunal to both the party and IEBC to ensure that:-i.The above errors are correctedii.Beking Ahmed Issa’s nomination information be captured under the correct and appropriate category as a marginalized group nominee to the County Assemblyiii.That the nomination of Beking Ahmed Issa be assigned an appropriate ranking to reflect and ensure the appropriate representation of the Harti Community of Wajir County.iv.The following nominee Nuria Abdi Ali be removed from the category of marginalized and minority.

3. The Respondent neither entered appearance nor filed their response to the Complaint despite service.

4. Pursuant to the directions that were issued by this Tribunal, this matter came up for hearing on 10th August 2022 by way of oral submissions. The Complainant was represented by Ms. Anne Musau Advocate. There was, however, no appearance for the Respondent.

The Complainant’s Case 5. The Complainant avers that she is a resident of Township Ward in Wajir County. She is a member of the Harti community, which is a minority and marginalized community in Wajir County. It is her submission that she applied to be nominated in the Respondent’s Wajir County Assembly party list under the category of ethnic marginalized minority.

6. However, on 27th July 2022, the IEBC published the Respondent’s party list wherein it appears that the Respondent had nominated her under the PWD category instead of the ethnic marginalized minority category.

7. It is her submission that in the list published by the IEBC on 27th July 2022, the Respondent had submitted the name of the marginalized and minority category nominee as Nuria Abdi Ali, yet the named person is from the degodia community, which community is predominant in Wajir and is well represented.

8. She maintains that the nomination under the marginalized and minority category was wrongfully made to a person not marginalized and that she ought to be nominated under the stated category and not under the PWD category. She submits that her wrongful nomination is an error in law which is prejudicial to her and a miscarriage of justice, and can be corrected by this Tribunal. She therefore prays that she be considered as representing the marginalized and not PWD.

9. On the question of jurisdiction, Counsel for the Complainant submitted that no attempt had been made to subject this complaint to the party’s internal dispute resolution mechanisms (IDRM). By the time the party list was published, they were within time constraints and they therefore resolved to come to the tribunal directly due to the urgency of the matter.

The Respondent’s Case 10. The Respondent did not file any response despite service. Neither did they attend the hearing of this matter on 10th April 2022 when the Complainant made her oral submission. This is notwithstanding the fact that a hearing notice had been duly served upon them and a return of service filed.

Analysis and Determination 11. We have reviewed the parties’ pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs in the present circumstances?

Whether this Tribunal has jurisdiction to hear and determine this matter? 12. In the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR the court defined jurisdiction as follows:-“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? 2. 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 a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

13. And in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Court stated 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.”

14. Further in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989]1, the Court stated 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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

15. This Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011, which 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.

16. It is not in dispute that the instant complaint is one between the Respondent political party and its member in so far as the preparation of Wajir County Assembly party list is concerned. In essence, the dispute falls under Section 40(1)(b) and (fa) highlighted above. Section 40(2) expressly provides that the Tribunal shall not hear such a dispute unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal dispute resolution mechanism (IDRM) of the political party in this case the Respondent.

17. The Complainant has as we have already highlighted admitted at paragraph 3 of the Complaint that there was no attempt to subject this dispute to the Respondent’s IDRM. In fact, her Counsel submitted that by the time the party list was published, they were within time constraints and therefore resolved to move directly to the tribunal due to the urgency of the matter.

18. Was there any evident time constraint that has been demonstrated by the Complainant in this case to warrant an exception to IDRM as purported? We note that the Respondent’s party list subject hereof was published by the IEBC on 27th July 2022. The Complainant elected to move this tribunal over 7 days after the publication of the party list, being on 5th August 2022 when this case was registered in the portal.We are not persuaded by the Complainant’s reasoning that there was time constraint yet no demonstrable action was taken from their end for over 7 days prior to moving this Tribunal. In any event, despite the registration of this case in the e-filing portal on 5th August 2022, the same was only paid for on or about the 8th August 2022.

19. From our foregoing analysis, we find that the Complainant acted in blatant breach of the provisions of Section 40(2) of the Political Parties Act with no justification whatsoever. There was evidently no honest attempt at IDRM. Consequently, this Complaint is premature and it is our finding that we do not have jurisdiction to hear and determine the same.

What are the appropriate reliefs in the present circumstances? 20. Having found that we do not have jurisdiction, and bearing in mind the finding on the above judicial authorities that define jurisdiction, we will not delve into the merits of this matter. Our decision thereon will amount to nothing in any event. We therefore have no option but to down our tools.

21. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

Disposition 22. In light of the foregoing, we order as follows: -i.That the Complaint herein be and is hereby struck out.ii.Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF AUGUST 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…… ……….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)