[2023] KEPPDT 1258 (KLR)

Jillo & 4 others v United Democratic Alliance & 6 others; Speaker, County Assembly of Isiolo (Interested Party) (Complaint E001 (MRU) of 2023) [2023] KEPPDT 1258 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1258 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (MRU) of 2023

G. Gathu, Presiding Member, T. Chepkwony & S Musau, Members

June 27, 2023

Between

Hon. Abdinoor Dima Jillo

1st Complainant

Hon. Abubakar Abdi Godana

2nd Complainant

Hon. Mejja Abdulahi Golicha

3rd Complainant

Mohamed Huka

4th Complainant

Hon. Kamila Warsame

5th Complainant

and

United Democratic Alliance

1st Respondent

Hon. Abdirashid Ali Diba

2nd Respondent

Kenya Kwanza Coalition

3rd Respondent

Hon. Ewoton Lorot Nicholas

4th Respondent

Hon. Kelvin Mbuthia Waruguru

5th Respondent

Hon. Rahma Abdikadir

6th Respondent

Hon. Salesio Kiambi

7th Respondent

and

Speaker, County Assembly of Isiolo

Interested Party

Judgment

1. On 27th March 2023, the Kenya Kwanza Coalition in the County Assembly of Isiolo held a meeting whose outcome was that the 1st Complainant was replaced by the 2nd Respondent as the leader of Majority in the said county assembly. Thereafter, the changes were effected in the County Assembly with the 2nd Respondent allegedly taking oath of office on 28th March 2023. The 2nd, 3rd and 4th Complainants were also de-whipped from all house committees and suspended for a period of 21 sittings.

2. Aggrieved by the aforesaid events, the Complainants filed this Complaint. Vide an amended Complaint dated 17th May 2023, the Complainants seek the followingorders:-a.A finding that the process of impeaching or removal of the leader of Majority of Isiolo County Assembly was unprocedural, null and void as contained in the minutes dated the 27th of March 2023 by the 3rd Respondent.b.A finding that the decision against the Applicants made on the 27th and 28th March 2023 by the 3rd and 4th Respondent is irregular, unlawful and null and void ab initio to the extent that it has no basis in law, party constitution, the Kenya Kwanza-UDM post-election coalition agreement or the County Assembly Standing Orders.c.An order quashing the internal memo dated the 28th of March 2023 issued contrary to Standing Order 106, 107, 108, 109 and 111 made by the Interested Party against members of a political party as being ultra vires and issued in excess of authority and as such null and void ab initiod.An order setting aside and vacating the entire decision(s) made by the 3rd Respondent, 4th Respondent and the Interested Party on the 27th and 28th of March 2023 and contained in its internal memo to the effect that the 2nd, 3rd, 4thand 5th Complainants be de-whipped from all house committees and suspended for 21 days.

3. The said amended Complaint also joined the 5th Complainant and the 3rd to the 7th Respondents. The 3rd, 5th, 6th and 7th Respondents did not participate in the proceedings.

4. The matter proceeded for hearing on 15th June 2023 via oral highlights of written submissions.

The Complainants case. 5. The Complainants contend that the meeting of the 3rd Respondent held on 27th March 2023 that resulted in the removal of the 1st Complainant as leader of Majority was illegal, null and void. The Complainants allege that one of the fundamental shortcomings of the said meeting was the participation of the 5th Respondent who was not a Member of the County Assembly of Isiolo following the judgement and decree of the Isiolo Chief Magistrate’s Election Court in Election Petition No. E001 of 2022.

6. The Complainants also contend that no notice of the meeting held on 27th March 2023 was issued to members of the 3rd Respondent and that in any event the meeting and the resultant outcome was contrary to the standing orders of the County Assembly of Isiolo.

7. On jurisdiction, the Complainants position is that this Tribunal is clothed with the requisite jurisdiction to hear and determine this dispute.

The 1st Respondent’s case 8. The 1st Respondent has indicated support for the Complainants’ case. It contends that the process of removal of the 1st Complainant as leader of Majority was marred with irregularity and was contrary to the standing orders of the County Assembly of Isiolo specifically standing orders numbers 20 (3) and 66. The 1st Respondent further stated that the Complainants’ right to fair administrative action were violated as they were not heard before administrative action was taken against them.

9. The 1st Respondent further stated that the suspension of the 2nd, 3rd and 4th Complainants from sittings of the County Assembly of Isiolo was illegal, null and void. The 1st Respondent holds the position that there was no sitting of the County Assembly of Isiolo on 28th March 2023 and as such the 2nd, 3rd and 4th Complainants could not have been suspended as alleged.

10. The 1st Respondent is also of the position that this Tribunal is properly clothed with jurisdiction to hear and determine this dispute.

The 2nd and 4th Respondents’ case 11. The 2nd and 4th Respondents case is that the meeting of 27th March 2023 was lawfully convened with a notice thereof having been issued to the membership of the 3rd Respondent in the County Assembly of Isiolo on 20th March 2023. The 2nd and 4th Respondents argue that the decisions emanating from the said meeting were lawful and in accordance with the 3rd Respondent’s rules.

12. On jurisdiction, the 2nd and 4th Respondents stated that this Tribunal does not have the requisite jurisdiction to hear and determine this dispute on account of immunity of the Interested Party and the Complainants not having attempted to subject the dispute to the Internal Dispute Resolution Mechanism of the 3rd Respondent.

The Interested Party’s case. 13. The Interested Party’s case is that it should not have been joined to these proceedings. It argues that it had no role in the election of the leader of Majority in the County Assembly of Isiolo. Further, it contends that it is immune from such proceedings under the provisions of section 10 of the County Assemblies Powers and Privileges Act, 2017. Finally, it argues that the Complainants did not exhaust the internal party dispute resolution mechanism and therefore this Tribunal does not have the requisite jurisdiction to hear and determine this dispute.

Issues for determination 14. The Tribunal has determined the following as the issues for determination:-.i.Whether this Tribunal has jurisdiction to hear and determine the Complaint.ii.If the Tribunal has jurisdiction, whether the Complaint is merited.

Analysis and Findings.Whether this Tribunal has jurisdiction to hear and determine the Complaint. 15. The question of the jurisdiction of this Tribunal in this complain arises from two fronts. The first one is whether the jurisdiction of this Tribunal under the provisions of section 40 (2) of the Political Parties Act, 2011 (PPA 2011) has been properly invoked and the second one is whether this Tribunal has the necessary jurisdiction over the actions of the Interested Party in the County Assembly.

16. On the first front, the PPA 2011, at section 40 states that:-(1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and 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.

17. The primary dispute herein involves members of a political party, a political party and coalition partners. It therefore falls within the provisions of section 40(1) (a), (b) and (e) of the PPA 2011. However, the provisions of section 40(2) of the PPA 2011 have a clear a fetter to this jurisdiction. The fetter is that there must be evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (IDRM).

18. The Tribunal will always require parties to demonstrate compliance with the provision of section 40(2) of the PPA 2011 before invoking its jurisdiction. The requirement is to show a bonafides attempt and not to exhaust the IDRM.

19. In Ibrahim Abdi Ali v Mohamed Abdi Farah & Another (Complaint No 29 of 2015), this Tribunal held, that:“Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.”

20. Further, in John Mworia Nchebere & 15 Others vs The National Chairman Orange Democratic Movement & 2 Others (Complaint No. E002 of 2022) this Tribunal gave non exhaustive guidelines on what constitutes a bonafides attempt. It stated thus:- “Furthermore, the party to a dispute should also show that, among others:i.The unavailability of the organ to resolve disputes;ii.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;iii.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;iv.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.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.”

21. From the parties pleadings and submissions, it is not in dispute that the 3rd Respondent is the majority coalition in the County Assembly of Isiolo. In accordance with standing order number 20 of the County Assembly of Isiolo, the election and removal of the leader of majority should therefore be done by the 3rd Respondent coalition in the county assembly. It is also not disputed that there is an agreement dated 17th August 2022 between the 1st Respondent and the 3rd Respondent. Clause 10(b) of the said agreement provides as below:-“Disputes between one or more individual members of the Coalition may be initiated by the Member Party to which the individual member(s) belong(s) such disputes shall be addressed to the Chairperson of the Coalition’s Secretariat for onward transmission and reference to the Party Leaders Forum.”

22. Has there been a bonafides attempt to subject the primary dispute herein to IDRM? The Complainants wrote to the Clerk of the County Assembly of Isiolo vide a letter dated 27th March 2023 complaining about the attempt to remove and replace the leader of majority. This letter was copied to the 1st Respondent. The 1st Respondent then wrote to the 5th Complainant vide a letter dated 27th March 2023 indicating that it had received complaints regarding house leadership positions in the county assembly and indicating that it recognized the 1st Complainant as the leader of majority until any changes are communicated.

23. The Tribunal has no doubt that the proper party to approach for purposes of IDRM as far as the primary dispute herein is concerned is the 3rd Respondent which has provided for IDRM in its agreement with the 1st Respondent, in accordance with section 40(3) of the PPA, 2011.

24. The letter written by the Complainants to the 1st Respondent and the response to the 5th Complainant both dated 27th March 2023 therefore fail the bonafides test as they were not addressed to the 3rd Respondent.

25. The 1st Complainant also wrote to the Secretary General of the United DemocraticAlliance vide a letter dated 19th April 2023 seeking to have the Kenya Kwanza Coalition intervene in the dispute. The Complainants and the 1st Respondent argue that this letter was an attempt at invoking IDRM within the context of section 40(2) of the PPA, 2011 which has however been frustrated by members of the United Democratic Alliance (UDA).

26. The letter dated 19th April 2023 from the 1st Complainant addressed to the Secretary General of UDA does not comply with the provision of clause 10(b) of the coalition agreement. The letter is not initiated by the 1st Respondent and is also not addressed to the Chairperson of the Secretariat of the 3rd Respondent. Rather it is addressed to the Secretary General of UDA which is not the 3rd Respondent in the suit. The Chairperson of the 3rd Respondent’s Secretariat is not indicated on the agreement dated 17th August 2022. While it may be that the Secretary General of UDA is the Chairperson of the Secretariat, in the view of the fact that the letter dated 19th April 2023 fails to address him as such and without an express provision to that effect in the aforesaid agreement, the Tribunal cannot assume that the letter was addressed to the right forum to properly invoke the 3rd Respondent’s IDRM.

27. In view of the foregoing, the Tribunal finds that its jurisdiction to deal with the primary dispute herein has not been properly invoked in accordance with section 40(2) of the PPA, 2011.

28. On the second front on jurisdiction, the Interested Party argues that he has immunity from the jurisdiction of this Tribunal under the provisions of section 10 of the County Assemblies Powers and Privileges Act, 2017. Moreover, the Interested Party states that this Tribunal does not have jurisdiction over it, and it should not have been joined to this matter, as it is not one of the parties contemplated under section 40(1) of the PPA, 2011.

29. Prayers (c) and (d) of the Complainants amended Complaint dated 17th May 2023 seek specific prayers against the Interested Party. It was therefore expected that the Interested Party be given an opportunity to be heard on the same and solely on that basis the Complainants cannot be faulted for joining the Interested Party to these proceedings.

30. However, there is a fundamental question raised on whether this Tribunal has jurisdiction over the Interested Party in the execution of the functions of his office.

31. While section 10 of the County Assemblies Powers and Privileges Act, 2017 indeed provides for immunity of the Interested Party, the immunity is not absolute and this Tribunal indeed has a role to play in interrogating compliance with the law of the acts of any person within the jurisdiction of the Tribunal.

32. In Peter Odoyo Ogada & 9 others v Independent Electoral And Boundaries Commission of Kenya & 14 others [2013] eKLR, the Court of Appeal quoted with approval the High Court decision in consolidated Constitutional Petitions No. 373 of2012 & 426 of 2012- John Waweru Wanjohi & Others –vs- Attorney General & Others, Kipngetich Maiyo & Others –vs- the Kenya Land Commission Selection Panel, wherein it was held,“The Court must of course be careful not to usurp the powers and functions of the various constitutional and statutory bodies involved in appointments. The role of the court is to ensure that the fidelity of the Constitution is maintained”.

33. Further in Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR, the High Court held that:“…..The Court should be hesitant to interfere, except in very clear circumstances, in matters that are before the two houses of Parliament and even those before the County Assemblies. It is however the mandate of this court to check the constitutionality of the resolutions and statutes made by the legislature.

34. The Interested Party is not one of the parties contemplated by section 40(1) of the PPA, 2011. Moreover, the dispute as to the legality of his decision to suspend the 2nd, 3rd and 4th Complainants from sittings of the County Assembly as communicated in the internal memo dated 28th March 2023 does not fall within the jurisdiction of this Tribunal contemplated under section 40(1) of the PPA, 2011.

35. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & another (2012) eKLR the Supreme Court stated thus:-“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 to itself jurisdiction exceeding that which is conferred upon it by law.”

36. In the circumstances, the Tribunal finds that it has no jurisdiction to hear and determine this dispute.

37. Having found that it has no jurisdiction, the Tribunal looks up to the locus classicus Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where the court held thus:-“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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

38. In the circumstances, the Tribunal proceeds to down its tools and will not go into the second issue which was to consider the merits of the Complaint.

39. The Complaint is therefore struck out for want of jurisdiction. In the interest of party and coalition unity, each party shall bear its own costs.

Dated and delivered virtually this 27th day of June 2023. Gad Gathu …………………(Presiding Member)Theresa Chepkwony……………………………………………..(Member)Stephen Musau ……………………………………..(Member)