[2017] KEHC 9311 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELECTION NOMINATION APPEAL NO. 21 of 2017

BETWEEN

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

AND

PATRICK KABUNDU MUKIRI.......................................RESPONDENT

AND

PETER GICHAMBA MATHIGU..........................INTERESTED PARTY

(Being an Appeal from the Judgment and Decree of the Political Parties Disputes Tribunal of Kenya at Nairobi made on the 1st August 2017 by Hon. M.O. Lwanga, DesmaNungo and Paul Ngotho in Complaint No. 538 of 2017)

JUDGMENT

[1] The Appellant herein is the Jubilee Party of Kenya.It filed this appealin respect ofthe decision of the Political Parties Disputes Tribunal dated 1 August 2017 in Complaint Number 538 of 2017,in which the Respondent, Patrick Kabundu Mukiri, had challenged his exclusion, as a member of the Appellant's County Executive Committee for the County of Mombasa, from the process of preparation of the Appellant's Party List for that County. That Complaint had been filed pursuant to Article 7(2)(f) of the Appellant's Constitution.

[2] The Political Parties Disputes Tribunal (hereinafter the Tribunal) heard the Complaint and made a determination on 1 August 2017 in the following terms:

"A look at the impugned Mombasa County Assembly list indicates that while the list includes two youth, two persons with disabilities and two persons from marginalized groups, five of the eight nominees are of Somali ethnicity. While there is no requirement under Article 90(2)(c) of the Constitution that the list reflect the regional and ethnic diversity of the Country, section 7(2) of the County Government Act requires that the county assembly ensure that the 'community and cultural diversity of the county is reflected in the county assembly'; and that there is 'adequate representation to protect minorities within the county in accordance with Article 197 of the Constitution.' This is echoed in regulation 20(2) of the Party List Regulations which require that such lists ensure fair representation by taking into account the principles of Articles 81 and 100 of the Constitution. We agree with the Claimant that having five nominees from the same community in a cosmopolitan county like Mombasa cannot be said to accord with the requirement that party lists reflect the 'community and cultural diversity' of the county. Moreover, the Claimant has asserted, which fact is uncontroverted by the Respondent, that the procedure laid down in the constitution for preparation of party lists was not followed. We therefore find that the Respondent did not comply with its own rules in the preparation of the list and that the list does not reflect the community and cultural diversity of Mombasa."

[3] It was on account of the foregoing that the Tribunal gave an order for the reconstitution of the Appellants Party List for Mombasa County; and, being aggrieved with the Judgment and Decree of the Tribunal, the Appellant opted to file this Appeal on the following grounds:

[a] The Tribunal erred in law and in fact in entertaining, hearing and determining the Complaint without properly addressing itself as to whether it had jurisdiction to do so;

[b] The Tribunal erred in law and in fact in ordering the reconstitution of the Party List of Nominees to the Mombasa County Assembly;

[c] 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 the compilation and submission of Party Lists in ordering reconstitution of the Party List of Nominees to the Mombasa County Assembly without taking into account the adverse implication of the order to the other members of the Appellant who were not parties to the proceedings before the Tribunal;

[d] The Tribunal erred in law and in fact in failing to take into account the response made by the Appellant in respect of the Complaint.

[4]In viewof the foregoing grounds, it was the Appellant prayed for the following orders:

[a] That the Appeal be allowed;

[b] That the Court be pleased to stay the entire Judgment and Decree of the Tribunal dated 1 August 2017;

[c] That the entire Judgment and Decree of the Tribunal be set aside;

[d] That the costs of the Appeal as well as the costs incurred before the Tribunal be awarded to the Appellant.

[5] On behalf of the Appellant, the appeal was argued by Learned Counsel, Ms. Mboce,who adopted the submissions earlier made herein in support of the interlocutory application for stay of execution and reiterated her argument that the Tribunal did not have the jurisdiction to hear or determine the Complaint. Her posturing was that since the Tribunal is anchored on Article 92 of the Constitution and Section 40 of the Political Parties Act, 2011, it could only assume jurisdiction after a complaint has gone through the Party's internal dispute resolution mechanism. She relied on Election Nomination Appeal No. 22 of 2017:Jubilee Party of Kenya vs. Mohamed Abdikadir Salah, in support of this argument.

[6] It was Counsel's further argument that Articles 88(4)(c) and 90 of the Constitution, as well as Sections 72(1)(c), (2) and (3) and 74(1) of the Elections Act, place upon the Independent Electoral & Boundaries Commission (IEBC) the jurisdiction to supervise party lists for compliance; and that the Tribunal had no jurisdiction whatsoever to usurp the jurisdiction of IEBC. She added that the Tribunal ought to have taken into consideration the interests of those who were on the Party List and who would be affected by its decision; and therefore the Tribunal's decision was in discordance with the principles of natural justice.

[7] As for the Respondent's role, Ms. Mboce argued that at no point did he or the Interested Party, demonstrate that their recommendation was rejected; and therefore that their contention of not being involved was baseless. Counsel further submitted that the burden was on the Respondent to demonstrate non-compliance, which burden was not discharged; and that that the fact that the names were muslim names is not significant as a person may have a somali name but not be somali by ethnicity. Thus, it was the Appellant's contention that had the Tribunal addressed itself to all the foregoing aspects, then it would not have entertained the Complaint or granted the orders that it made. Accordingly, the Court was urged to allow the appeal and set aside those orders.

[8] The appeal was resisted by both the Respondent and the Interested Party and though the Respondent filed written submissions herein, the Interested Party chose not to. I have considered those submissions and note that quite a good portion thereof deals with technical issues touching on the competence of the appeal, matters which were raised in limine by the Respondent and the Interested Party, and were accordingly ruled on by the Court. It is therefore unnecessary to revisit the same. As to whether the Tribunal had the jurisdiction to entertain the Respondent's complaint, it was the submission of the Respondent that his was a dispute between him and his party; and therefore that the dispute fell squarely within the jurisdiction of the Tribunal by virtue of the provisions of Section 40(1) of the Political Parties Act,and notIEBC.The cases of Moses Mwicigi and Others vs. Independent Electoral and Boundaries Commission [2016] eKLRand National Gender and Equality Commission vs. Independent Electoral and Boundaries Commission[2013] eKLRwere relied on by the Respondent in support of the foregoing submissions.

[9] On whether the Tribunal took into account the Appellant's response, the Respondent urged the Court to peruse the record of the proceedings before the Tribunal and asserted that the Appellant was duly represented by Counsel, and that all parties complied with the directions of the Tribunal as to the filing of responses and submissions. According to him those documents formed the basis of the Tribunal's Judgment. Accordingly, the Respondent urged the Court to dismiss the appeal with costs. Those submissions were responded to by the Appellant vide the written submissions filed on 7 September 2017, which basically is a reiteration of the Appellant's oral submissions herein, in addition to responding to the specific issues raised by the Respondent in his written submissions. An additional authority, being Election Petition Appeal No. 86 of 2017: Jubilee Party of Kenya vs. David KimeliLeting& Anotherwas cited by Counsel in support of the Appeal.

[10] Having carefully considered the submissions made herein by the disputants in the light of the grounds set out in the Memorandum of Appeal filed herein; and having perused the original record of the proceedings held before the Tribunal, I take the following view of this matter:

First and foremost, it is not in dispute that the Respondent and the Interested Party herein were, at all times material to this appeal, members of the Appellant Party.The Respondent has, in addition contended that he was a member of the Party's County Executive Committee for Mombasa County, whose responsibility it was to prepare the Party List for Nominees to the County Assembly of Mombasa and make recommendations in that regard. His complaint to the Tribunal was that the Party List that was ultimately submitted to IEBC for Mombasa County was not prepared in accordance with the applicable law and that he was not consulted as a member of the County Executive Committee. 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.

[11] Article 177 of the Constitutionwhich is the starting point in terms of the law applicable to the nomination of candidates for County Assembly positions, 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 second Tuesday 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. "

[12]In additionto the foregoing, Article 90 of the Constitutionprovides 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."

[13] There can be no disputation that it is the responsibility of IEBC to supervise the preparation of Party Lists, granted the provisions of Article 90(2) of the Constitution aforementioned.It is however not the case, as submitted by Ms. Mboce, that any disputes arising from the exercise had to be resolved by the IEBC.To my mind, Article 90(2)(a) of the Constitutionis explicit that it is the responsibility of the concerned political parties to do so. Accordingly, there is a distinction to be drawn between nomination in its general sense for which IEBC has general charge and nominations from the perspective of the political parties.

[14] In National Gender and Equality Commission vs. Independent Electoral and Boundaries Commission & Another [2013] eKLRa three-judge bench of the High Court held 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."

[15]The decision aforementioned was affirmed by the Supreme Court in Moses Mwicigi & Others vs. Independent Electoral and Boundaries Commission [2016] eKLRthus:

"Nowhere does the law grant powers to the IEBC to adjudicate upon the nomination processes of a political party: such a role has been left entirely to the political parties. The IEBC only ensures that the party list, as tendered, complies with the relevant laws and regulations. This position has been aptly remarked in the case ofNational Gender and Equality Commission...The effect is that, the process of preparation of the party list is an internal affair of the Political Party, which ought to proceed in accordance with the national Constitution, the Political Party Constitution, and the nomination rules as prescribed under Regulation 55. "

[16] I would accordingly agree with the Respondentthat the Tribunal was the correct forum for the Respondent to go to for redress, granted the provisions of Section 40 of the Political Parties Act, that:

(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 a political party;

(e) disputes between coalition partners; and

(f) appeals from decisions of the Registrar under this Act;

(fa) disputes arising out of party primaries.

[17]Nevertheless, 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.

[18] It was the contention of the Appellant that the Respondent did not exhaust its internal dispute resolution mechanism before approaching the Tribunal for redress. The Respondent conceded as much and in his written submissions, he stated that:

"...there is clear evidence that in this matter that I the respondent through the letter dated 19th June 2017 filed in the main application affidavit that I attempted to exhaust the set out IDRM process even though the appellant did not act on the issues raised and never called for a hearing the party constitution does not provide for a specific way to address the appellant IDRM hence a letter can be a form of addressing..."

[19] TheRespondent having conceded that he did not exhaust the Appellant's internal dispute resolution mechanism to the point of a determination,it is plain that the Tribunal was precluded by dint of Section 40(2) of the Political Parties Act, from entertaining the Respondent's complaint. Accordingly, it is my finding that the Tribunal lacked the requisite jurisdiction in the matter. Needless to say that jurisdiction is everything and without it the proceedings of the Tribunal in respect of the Respondent's Complaint No. 538 of 2017are a nullity. 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."

[20]The foregoing being my resultant finding, I find it pointless 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 1 August 2017,with an order for each party to bear own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF SEPTEMBER, 2017

OLGA SEWE

JUDGE