[2017] KEHC 9387 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELECTION NOMINATION APPEAL NO. 31 OF 2017

JUBILEE PARTY OF KENYA....................APPELLANT

AND

AGNES NDUNGE MUTWIWA..............RESPONDENT

(Being an Appeal from the Judgment and Decree of the Political Parties Disputes Tribunal of Kenya at Nairobi made on the 31 July 2017 by Hon. Kyalo Mbobu, James Atema Hassan Abdi and Dr. Adelaide Mbithi in Complaint No. 480 of 2017)

JUDGMENT

[1] This is an appeal that was filed herein on 16 August 2017 by Jubilee Party of Kenya, the Appellant, from the decision of the Political Parties Disputes Tribunal made on the 31 July 2017 in Complaint Number 480 of 2017. The said Complaint had been filed by the Respondent herein, Agnes Ndunge Mutwiwa against the Appellant, to the effect that the Kakuzi/Mitubiri Ward of Murang'a County in which resides, had been unfairly left out of the Party List of Nominees while the neighbouring Ithanga Ward had two nominees. The Respondent had accordingly sought to be included in the List of Nominees of the Jubilee Party for Murang'a County.

[2] Upon hearing the Complaint, the Political Parties Tribunal ruled, in its Judgment dated 31 July 2017, that the Party List as composed did not reflect the regional diversity of the people of Murang'a County. Accordingly, the Tribunal issued the following orders:

[a] That a declaration be and is hereby issued to the effect that the Party List of the Jubilee Party for Nomination to Murang'a County Assembly does not reflect the ethnic diversity of the people of Murang'a County and is null and void and of no effect in law;

[b] That the Respondent (the Appellant herein) be and is hereby directed to reconstitute its Party List for nomination to the Murang'a County Assembly to reflect the ethnic diversity of the people of Murang'a County within 72 hours of delivery of the Judgment;

[c] That the Respondent (the Appellant herein) be directed to include the Complainant's name (Respondent herein) as a matter of priority in the reconstituted list in view of her minority status within Murang'a County;

[d] The Respondent is directed to afford a hearing to and to supply all affected persons with the reasons for any decision made in complying with the order in [b] above;

[e] That a copy of the Judgment be transmitted to the Independent Electoral and Boundaries Commission for necessary action;

[f] That there be no orders as to costs.

[3]Being aggrieved with the Judgment and Decree of the Tribunal, the Respondent, who is the Appellant herein filed this Appeal on the following grounds:

[a] The Tribunal erred in law and in fact in ordering total reconstitution of the Party Lists of nominees to Murang'a County Assembly;

[b] The Tribunal erred in law and in fact in failing to appreciate the provisions of the Constitution of Kenya, 2010, the Independent Electoral and Boundaries Commission Act, No. 9 of 2011, the Elections Act, No. 24 of 2011, the Elections (General) Regulations, 2012, the Elections (Party Primaries and Party Lists) Regulations,2017, with respect to compiling and submission of Party Lists in ordering reconstitution of the Party Lists to the Murang'a County Assembly without taking into account the adverse implication of their orders to other members of the Appellant who were never parties to the proceedings before the Tribunal;

[c] The Tribunal erred in law and in fact in failing to take into account the Appellant's response;

[d] The Tribunal failed to take into account the fact that the nominees submitted by the Party had met all the relevant criteria and were selected in a fair and credible process in accordance with the law obtaining;

[e] The Tribunal erred in law and in fact in failing to take into account the fact that the Appellant complied with the law and regulations in constituting the Party List;

[f] The Tribunal erred in law and in fact in failing to appreciate the fact that all interested categories including special interest groups were catered for in the list submitted by the Appellant to the IEBC as provided by law.

[4] In the premises, the Appellant prayed for orders that the entire Judgment and Decree of the Tribunal be set aside and that the costs of this Appeal and the costs incurred before the Tribunal be awarded to the Appellant. The appeal was argued orally by Learned Counsel herein. Mr. Rono for the Appellant largely adopted his arguments in support of the interlocutory application for stay of execution and reiterated his contention that the Tribunal did not have the jurisdiction to hear and determine the Complaint. His argument was basically that the Tribunal did not consider the legal provisions attendant to nomination and the compilation of Party Lists; and that the Tribunal proceeded to assume jurisdiction while the law provides for an avenue, pursuant to Section 40 of the Political Parties Act, for the resolution of such disputes between parties and their members. He further argued that Article 88(4)(e) of the Constitution and Section 84 of the Election Act provide for the resolution of disputes arising from the submission of Party Nomination Lists. According to him therefore, the Tribunal fell into grave error by entertaining the Complaint and issuing the orders that it did. He, thus, urged that the appeal be allowed and that the Judgment and Decree of the Tribunal dated 31 July 2017 be aside as prayed. He relied on a Bundle of Authorities that included the following authorities in support of his submissions:

[a] The National Gender and Equality Commission vs Independent Electoral and Boundaries Commission [2013] eKLR;

[b] Jubilee Party of Kenya vs Catherine Jeptoo Mapingwony ENA No. 17 of 2017;

[c] Jubilee Party of Kenya vs Stella Rotich & Another, ENA No. 18 of 2017;

[d] Jubilee Party of Kenya vs. Victor Kiplagat and & Others, ENA No. 25 of 2017; and

[e] Jubilee Party of Kenya vs. Henry Wanyoike Wahu, ENA No. 33 of 2017.

[5]Counsel for the Respondent, Mr. Mugo, similarly adopted the submissions he had earlier made herein and added that the Tribunal was legally seized of jurisdiction to hear the Complaint pursuant to Section 40of the Political Parties Act. He pointed out that in its decision, the Tribunal acknowledged that an attempt had been made to have the dispute settled through the party's internal dispute resolution mechanism; and that attempts to have the party's Appeals Board handle the complaint was ignored by the Board and therefore that in those circumstances, the only option for the Respondent was an approach to the Tribunal, which is what she did.

[6] It was further the submission of Mr. Mugo that the Tribunal had the mandate to recommend to the Party on how to proceed with the dispute; and that the Party had not complied with Articles 90(2)(c) or 177of the Constitution. He emphasized the point that the purpose of the Party Lists was to give a chance to the minority groups, the disadvantaged and the disabled, yet the subject List contained names from a majority tribe. He posited that the Respondent, being from the minority Kamba tribe in Murang'a, and who had been unfairly left out of the Party List by the Appellant, was rightly accorded a chance for nomination by the Tribunal.

[7] I have carefully considered the submissions made herein by Learned Counsel in the light of the grounds set out in the Memorandum of Appeal filed herein. I have similarly called for perusal the original record of the Tribunal. It is not in dispute that the Respondent herein was one of the many members of the Appellant who submitted applications to the party for nomination; or that she did not make it to the final Party List that was submitted by the Appellant to the Independent Electoral and Boundaries Commission, notwithstanding that her name was in the first List. Her complaint, for having been unfairly left out of the Party List was accordingly heard and determined by the Tribunal in her favour and a decision rendered on 31 July 2017 in which the Appellant was directed, inter alia, to include her name in the Party List. Accordingly, given the Grounds of Appeal and the submissions made herein, the issues for determination are only two; firstly, whether the Tribunal had the jurisdiction to entertain the Complaint and secondly, whether, in arriving at its decision, the Tribunal took into account the applicable law and the response offered by the Appellant.

[8] The applicable law regarding county assembly nomination was quite ably set out by Learned Counsel for the parties. For instance, Article 177 of the Constitution provides that:

"(1) A county assembly consists of -

(a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the secondTuesday in August, in every fifth year;

(b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;

(c) the number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and

(d) the Speaker, who is an ex officio member

(2) The members contemplated in clause (1)(b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90. "

[9]In addition to the foregoing, Article 90 of the Constitution provides that:

"(1) elections ... for the members of the county assemblies under Article 177(1)(b) and (c) shall be on the basis of proportional representation by use of party lists.

(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-

(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation;

(b) except in the case of the seats provided for under Article 98(1)(b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in priority in which they are listed; and

(c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya."

[10]It is not in dispute that the Appellant prepared a Party List in respect of the Kakuzi/Mitubiri Ward in Murang'a County and submitted it to IEBC for scrutiny as to compliance in accordance with the provisions of Sections 34 and 35 of the Elections Act, No. 24 of 2011, whereupon the IEBC returned the List to the Appellant for rectification to ensure fuller adherence with the law; and it was in that process that the name of the Respondent was dropped and replaced with another nominee. That being the case, what recourse did the Respondent have? In the submissions of her Counsel, it was stated that she did approach the Party's Appeals Board but received no assistance and that it was thereupon that she approached the Tribunal for intervention. Section 40 of the Political Parties Act, No. was relied on as the provision affording the Tribunal the jurisdiction to entertain the complaint, which was a complaint between a party member and her party.

[11] There can be no disputation that it is the responsibility of IEBC to conduct and supervise the preparation of Party Lists. Article 90(2) of the Constitution is explicit on this and as far as can be ascertained, the IEBC played its role. It was argued by the Appellant that the IEBC having done its part, that culminated in the elimination of the Respondent, the Respondent was obliged to refer any grievances she had in connection with that process to IEBC's Dispute Resolution Committee and not the PPDT. Articles 88(4)(e) of the Constitution and Section 84 of the Elections Act were relied on in support of this argument. In my careful consideration however, a distinction has to be made between elections in its general sense for which IEBC has general charge and elections from the perspective of the political parties.

[12] Accordingly, I find instructive the findings of the three Judge Bench in the National Gender and Equality Commission vs. Independent Electoral and Boundaries Commission & Another [2013] eKLR thus:

"We therefore find and hold that Article 90(2) does not deal with elections leading to the constitution of party lists nor concern itself with the manner in which parties come up with the names on the lists. How the election of persons on the list is carried out is a matter entirely within the mandate of the respective political parties. It is for this reason that regulation 55(1) of the General Regulations provides that, "The party list contemplated under regulation 54 [the lists under Article 90(1)of the Constitution] shall be prepared in accordance with the rules of the political party...Section 34(6) of the Elections Act, 2011 specifically provides that, "The party lists submitted to the Commission under this section shall be in accordance with the Constitution or nomination rules of the political party concerned." This role does not extend to directing the manner in which the lists are prepared as these are matters within the jurisdiction of the parties but in considering the lists, the IEBC must nevertheless be satisfied that the lists meet constitutional and statutory criteria. We would hasten to add that in the event there is a dispute in the manner in which the parties conduct themselves in conducting their internal elections then recourse may be had by the aggrieved party members, inter-alia to the Political Parties Disputes Tribunal established under section 39, Part VI of the Political Parties Act, 2011 or to the High Court in appropriate circumstances."

[13]In the premises, I am satisfied and hold that the Tribunal was an appropriate option for the Respondent to go to for redress, forSection 40 of the Political Parties Act, provides as follows with regard to the jurisdiction of the Tribunal.

(1) The Tribunal shall determine--

(a) disputes between the members of a political party;

(b) disputes between a member of a member of a political party and a political party;

(c) disputes between political parties;

(d) disputes between an independent candidate and apolitical party;

(e) disputes between coalition partners; and

(f) appeals from decisions of the Registrar under this Act;(fa) disputes arising out of party primaries.

[14]Nevertheless, it was incumbent upon the Tribunal to ensure strict compliance with the law before assuming jurisdiction. Section 40(2)of thePolitical Parties Act is explicit that:

(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.

[15] The above provision is couched in peremptory terms; and therefore, the extent therefore that the Tribunal proceeded to entertain the Respondent's Complaint before the Party's internal dispute resolution mechanism was invoked and exhausted, I would agree and find that the Tribunal lacked the requisite jurisdiction in the matter. It is trite that jurisdiction is everything and without it the proceedings of the Tribunal in respect of the Respondent's Complaint No.480 of 2017 comes to naught. In Owners of Motor Vessel Lillian S vs. Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi, JA, made this point 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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."

[16]The foregoing being my resultant finding, I find it superfluous to consider the merits of the Tribunal's decision, granted that the same is null and void for want of jurisdiction. Accordingly, I find merit in the Appeal and would allow the same and set aside the Judgment and Decree of the Political Parties Dispute Tribunal delivered on 31 July 2017,with an order for each party to bear own costs. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF SEPTEMBER, 2017

OLGA SEWE

JUDGE