[2023] KEPPDT 1360 (KLR)

Jubilee Party v Internal Dispute Resolution Committee of the Jubilee Party & another; Uhuru Kenyatta (Interested Party) (Complaint E013 (NRB 'A') of 2023) [2023] KEPPDT 1360 (KLR) (11 September 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1360 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E013 (NRB 'A') of 2023

D. Nungo, Chair, W Mutubwa, Vice Chair, G. Gathu, S Musau, T. Chepkwony, AA Abdikadir & MM Yusuf Jin, Members

September 11, 2023

Between

The Jubilee Party

Complainant

and

The Internal Dispute Resolution Committee of the Jubilee Party

1st Respondent

Nelson Dzuya

2nd Respondent

and

HE Hon Uhuru Kenyatta

Interested Party

Judgment

Introduction 1. Vide a Complaint dated 12th June 2023 which was thereafter Amended by way of Amended Complaint dated 27th June, 2023, the Complainant represented by Mr. Awele seeks the following prayers: -a.A declaration that the IDRC decision dated 30th May 2023 violates Article 47 of the Constitution of Kenya and the Fair Administrative Actions Act.b.A declaration that under the Constitution of the Jubilee Party, the Party leader may convene meetings of any organ of the party at any time and/or without the requirement to issue seven (7) days’ notice.c.A declaration that the NEC meeting of 28th May 2023 28th April 2023 was procedurally held and that the same was quorate.d.A declaration that the Special NDC meeting of 22nd May 2023 was lawfully convened by the Jubilee party leader.e.Consequently, an order that the IDRC decision dated 30th May 2023 and any consequential actions premised thereon are null and void. The same be and are hereby set aside.f.Such further orders as the Honorable Tribunal may deem just.g.Costs of the complaint.

2. The Complainant was also represented by Mr. Kamotho Njomo who filed Grounds of Opposition to the Amended Complaint dated 4th July, 2023. The 1st Respondent and 2nd Respondent have filed Replying Affidavits to the Amended Complaint date 4th July, 2023 and 6th July, 2023 respectively. The Interested party, represented by Prof. Ben Sihanya filed Grounds of Affirmation dated 6th July, 2023.

3. The Tribunal directed parties to file written submissions to the matter and the same were for highlighting on 4th September, 2023. Parties filed their submissions as follows:a.The Complainant represented by Mr. Awele filed submissions dated 1st September, 2023. b.The 1st Respondent represented by Omwanza & Areba, Associates filed submissions dated 30th August, 2023. c.The 2nd Respondent represented by Mr. Manyara filed submissions dated 1st September, 2023. d.The Interested Party represented by Prof. Ben Sihanya filed submissions dated 4th September, 2023.

The Complainant (represented by Mr. Awele) Submissions. 4. The Complainant stated that the complaint arises from the 1st Respondent’s decision dated 30th May 2023, (hereinafter ‘the impugned decision’) nullifying decisions of the National Executive Committee (NEC) and National Delegates Convention (NDC) of the Jubilee Party held on 28th April and 22nd May 2023 respectively, and the complainant challenges the said decision on several grounds as set out in the amended complaint and the affidavits in support thereof.

5. On the issue of locus standi the Complainant submitted that there is nothing in the Jubilee Party constitution or the law that precludes any party from filing a dispute against its own organ. Indeed, under section 40(1)(b) of the Political Parties Act, members including officials of a party can file disputes against their political party. They further submitted that it is now trite law that any person affected by a decision made in public interest dispute may appeal such decision particularly where the person’s rights to fair hearing and fair administrative action have been clearly violated. They went on to further submit that proceedings of a political party are actions in rem that not only bind the parties before the court only but also all other persons (particularly members) on whose behalf the IDRC and all official of Jubilee Party operate. Where the secretary general of the party, as its authorized spokesperson deems it necessary to defend the party and its membership from an unlawful decision of its party organs, the party has all the rights to approach the Tribunal for a remedy.

6. On the issue of whether this court should defer these proceedings pending the outcome of Civil Appeals No E630 and 635 of 2023, the Complainant submitted that the High Court has by an order dated 13th July 2023 stayed the decision of the Tribunal including the decisions of the NEC, IDRC and TNDC dated 10th February, 7th June and 30th May 2023 respectively that purported to remove the said officials from office. They went on to submit that the Tribunal ought to hold its horses and acknowledge the hierarchy of the courts pending the outcome of the appeals before the High court.

7. On the issue of whether the IDRC had jurisdiction to preside over proceedings giving rise to the impugned decision the Complainant submitted that Pursuant to Article 8. 2(2)(M) as read with 29. 5 of the Jubilee Party Constitution, the National Executive Committee of the Party (NEC) has the power to appoint and to revoke the appointment of members of the IDRC. In exercise of the said powers, NEC at its meeting of 28th April 2023, revoked the appointment of Gideon Solonka, Mary Kahura, Murigi Kamande and Halima Kinoti as members of the IDRC in the interest of the Party. The said revocation was confirmed and ratified by the highest decision making of the Party – the National Delegates Convention at its meeting of 22nd May 2023. The said meetings were duly convened by the Party leader of the Jubilee Party in exercise of his powers under Article 8. 2(6) of the Party Constitution as read with Article 23(1) &(2) of the Party Constitution. Accordingly, on 11th May 2023 when the dispute before the IDRC was allegedly filed and on 30th May 2023 when the IDRC purported to render the impugned decision, Gideon Solonka, Mary Kahura, Murigi Kamande and Halima Kinoti had no authority to act or hold themselves out as members of the IDRC. The said persons are of unknown standing in the Jubilee Party and in the premises the impugned decision is a nullity and/or of no significance in law. It is trite law that jurisdiction is everything and is derived from the law (read the party constitution). Any action taken without jurisdiction is a nullity ab initio.

8. On the issue of whether the IDRC violated the complainant’s and party leader’s rights under Article 47 of the constitution, the Complainant submitted that it is a cardinal principle of fair hearing and fair administrative action that whenever any decision is likely to adversely affect the rights or fundamental freedoms of any person, the administrator is required by law to give the said person:i.prior and adequate notice of the nature and reasons for the proposed administrative action;ii.an opportunity to be heard and to make representations in that regard;iii.notice of a right to a review or internal appeal against an administrative decision, where applicable;iv.a statement of reasons pursuant to section 6;v.notice of the right to legal representation, where applicable;vi.notice of the right to cross-examine or where applicable;vii)information, materials and evidence to be relied upon in making the decision or taking the administrative action.

9. The purported dispute as submitted to IDRC sought to countermand legitimate decisions taken by the highest decision-making organs of the Jubilee Party and by extension the general party membership. The Jubilee Party was accordingly likely to be affected by any orders issued in the said proceedings and was therefore a necessary and integral party entitled to participate in the proceedings; flawed as they were.

10. As the custodian of all party records and the official party spokesperson of the party, the secretary general of the party was not served with the said pleadings and only became aware of the proceedings vide a media briefing through the 411 breaking news SMS service.

11. As a matter of fact, the IDRC in its impugned decision acknowledged that the party leader was indeed not served with the pleadings as directed by it on 18th May 2023 then proceeded to dispense with the fundamental and non-derogable requirement for service and/or thereby denied the Party leader an opportunity to be heard. As regards the complainant, the constitution established the office of the secretary general as the rightful and lawful office entitled to correspond or communicate on behalf of the party. Irrespective of who the IDRC recognized as the rightful secretary general, the IDRC ought to have granted him/her a chance to represent the position of the membership considering that the dispute before it involved the potential nullification of decisions of the highest decision making organ of the party. The fact that it did not bother to do so betrays its partiality and the fact that it considered the proceedings before it a fait accompli in any event. In effect the IDRC, infringed the complainant and interested Party’s right to be heard without just or lawful excuse. It follows therefore that its decision must as a matter of course be nullified ex debito justitiae.

12. On the issue of whether the IDRC’s decision was merited in law and under the party constitution, the Complainant submitted that the same was not merited. They submitted that the Party Constitution expressly and unequivocally states at Article 10. 1 as follows: ‘The Party leader may attend or summon a meeting of any organ of the Party at any time’. That the power of the Party leader to summon a meeting of any organ of the Party at any time is in plain language and means precisely that. Reading into the said power a qualification as substantive as that which the IDRC read into Article 10. 1 and 8. 2(6) is tantamount to amending the constitution by judicial craft.

13. The Complainant further submitted that the meeting of 28th April 2023 was procedurally convened by the Party leader pursuant to Article 8. 2(6) of the party constitution and each member of the NEC was served with the said notice. That On 28th April 2023, the said meeting was attended by at least 7 members out of the 22 NEC members who were entitled to attend it and was accordingly quorate. That under Article 23(2) of the Jubilee Party constitution, a meeting of the NEC can proceed notwithstanding the quorum requirements under Article 23(1) where the previous meeting is not quorate for any reason. In this regard, the meeting of 29th April 2023 was a ‘subsequent meeting’ following the aborted meeting of 26th April 2023 that was not quorate on account of skirmishes sponsored by goons sponsored by Hon. Kanini Kega and his cohorts. The meeting of 28th April 2023 was quorate under Article 23(2) of the Party constitution.

The 1st Respondent’s Submissions. 14. On the issue of jurisdiction of this Tribunal the 1st Respondent questions the same on the singular ground of the party suing an organ of the party. He submits that organs of the party are functionaries of the party. They serve at the leisure and pleasure of the party. That at any instance where a party organ makes a decision the said decision has to be approved by the NEC of the party. He submitted that the disputes within which the tribunal can exercise its jurisdiction are well outlined in Section 40. He goes ahead to define “member” of a political party. Based on that he submitted that the organ of the party is not a member or an individual who can come for justice before this tribunal and that the tribunal has no jurisdiction over the 1st Respondent.

15. On the issue of whether the Jubilee Party was a necessary party to the IDCR and is their non-joinder detrimental the 1st Respondent submitted that at the IDRC the suit was solely filed between the 2nd Respondent and the Interested Party, that the said suit was heard and determined as between the two individuals as per their rights and interest. That the party was not a necessary party to the suit, the party has held two different positions on every issue. That the party was not in any way impleaded in the pleadings filed at the IDRC and there was no order sought against the party. That the orders sought were for determination of the rights and powers of the Interested Party in calling for NEC and SNDC and the same was not against the Party itself.

16. On the issue of whether the IDRC was properly constituted the 1st respondent submitted that the Jubilee Party constitution provides for the composition, creation and membership of the IDRC. That the members of the IDRC have not changed from 10th March, 2022 to date. That the IDRC was properly constituted to hear and determine the dispute before it.

17. On the issues of whether the Interested Party was properly served as per the rules of the jubilee party the 1st Respondent submitted that the IDRC rules provide for the means of service. That they do not provide a limitation on any means of service of the pleadings and formal service of the complaints against a party neither does the party constitution.

18. That the IDRC issued directions that the Complainant to effect personal service on the Respondent, that the notice issued by the Respondent was stayed, and the matter to be mentioned further for confirming service and further directions. In the findings of the IDRC the committee noted that the Complainant appeared virtually and the Respondent did not appear. That the Complainant informed the Committee that he was unable to effect personal service. That the Complainant informed the Committee that the Party published the Committee’s directions in a daily newspaper. That the Complainant submitted that the Committee’s directions to personally serve the Respondent with the dispute had been overtaken by events. The 1st Respondent submitted that the Interested Party was properly aware of the directions of the IDRC but chose to ignore the same. That the IDRC was right in finding that service by advertisement in a newspaper with national circulation was effective.

19. On the issue of whether the process was fair and in line with the constitution of the jubilee party, the 1st Respondent submitted that the constitution of the party requires the IDRC to carry out its functions as an arbiter of disputes in line with natural justice. Rule 17(4) provides that each committee member shall ensure that his or her conduct at the meeting and hearing is in accordance with the rules of natural justice and procedural fairness and it sets out some of these grounds.

20. The 1st Respondent submits that the most important and underlying principle should be impartiality and an opportunity being given for every person to present their case. That the Interested Party chose not to attend the hearing after proper service it was proper for the IDRC to proceed and determine the dispute.

The 2nd Respondent’s Submissions. 21. On the issue of jurisdiction, the 2nd Respondent submitted that this tribunal does not have jurisdiction to hear and determine this Complaint and that this Complaint is an abuse of the court process. He replicated the list of disputes as provided under Section 40 of the Political Parties Act and submitted that the Complainant’s Complaint - which is basically a political party suing its own organ – does not fall within the disputes envisaged under section 40 of the Political Parties Act, 2011 and this Honourable Tribunal does not have jurisdiction to hear and determine the Complaint. He further submitted that the Interested Party who was Respondent in IDRC Dispute Number 004 of 2023, Nelson Dzuya and H. E. Uhuru Kenyatta, has not filed an appeal against the decision of the 1st Respondent. No plausible reason has been given by the Interested Party in his papers as to why, if he was aggrieved by the determination of the 1st Respondent, he did not file a Complaint before this Honourable Tribunal challenging the decision of the 1st Respondent. That the Complainant’s Complaint which has been brought by Jeremiah Kioni is an abuse of the court process having been brought in the name of Jubilee Party which was not a party to the primary dispute in the first place.

22. On the issue of the convening of the NEC of 28th April, 2023 the 2nd Respondent stated that the National Executive Committee is the governing body of the Jubilee Party and is established under Article 8. 2 of the Jubilee Party Constitution. The said article outlines the duties, membership, holding of meetings, notice of meetings and quorum of the NEC. The 2nd Respondent submitted that that the NEC meeting of 28th April 2023 was not proper as it was not quorate and was not convened with proper notice as is provided for under Article 8. 2 (5) of the Jubilee Party Constitution. That the 1st Respondent cannot be faulted in its finding that the party leader cannot unilaterally summon a meeting of NEC at any time in accordance with Article 10 (1) of the Jubilee Party Constitution. The 1st Respondent cannot also be faulted for finding that the notice convening the NEC meeting of 28th April 2023 was not properly issued.

23. On the issue of whether the Special NDC meeting of 22nd May 2023 was lawfully convened under the Jubilee Party Constitution, the 2nd Respondent submitted that it was not. That the NEC meeting of 28th April 2023 that passed the resolution to hold the special National Delegates Convention was improper – it, therefore, follows that there was no proper decision by NEC to convene the SNDC.

24. On the issue of whether the Internal Dispute Resolution Committee of the Jubilee Party was properly constituted when hearing and determining IDRC Dispute Number 004 of 2023 the 2nd Respondent submitted that it was. That the 1st Respondent, as per Article 16B (4) of the Jubilee Party Constitution has jurisdiction to hear and determine all party disputes other than disputes arising from party nominations, elections and party discipline. That the 1st Respondent shall be comprised of not less than three (3) and not more than nine (9) members including its chairperson and the National Executive Director will be the secretary to the tribunal as an ex-officio member. The members of the 1st Respondent are appointed by the National Executive Committee.

25. On the issue of service the 2nd Respondent submits that the Interested Party was duly served and the proceedings before the 1st Respondent were proper and fair. That the respondent before the IDRM was served with the directions issued by the IDRC. The service, though not personal, was effected through the press in a newspaper with nationwide circulation. Jubilee Party was not the respondent before the IDRC and there is therefore no basis for serving the Party with the Complaint. That the Interested Party was duly served but neglected to appear before the 1st Respondent. That the 1st Respondent cannot be faulted for hearing and determining the complaint before it and for its findings under paragraphs 8 and 9 of its determination.

The Interested Party’s Submissions. 26. The Interested Party fully supported and affirmed the Complainants documents filed herein and submitted on three issues.

27. On the issue of whether the tribunal has jurisdiction to hear and determine this matter the Interested Party submitted the provisions of Section 40 may be unclear on whether political parties can institute claims against its organs. That in case there is ambiguity or lack of clarity this ought not to be interpreted against the Complainant and the Interested Party.

28. On the issue of whether the Interested Party was granted a fair hearing the Interested Party submitted that he was served through a newspaper with nationwide circulation. That he was neither heard nor given a chance to be heard by the 1st Respondent during a process involved in making its impugned decision dated 30th May, 2023.

29. On the issue of whether the Complainant has the constitutional and statutory right to institute this suit, the Interested Party submitted that any person can institute a suit, claim or appeal against an administrative action. this constitutional and statutory right is not qualified or limited under section 40 of the Political Parties Act. That the 1st Respondent made the decision against the Interested Party without being heard while having the knowledge that whatever decision it arrived at had the greater adverse implication on the Complainant. The Complainant was therefore a necessary party.

30. The Interested Party further submitted that the Complainant instituted the instant suit in the public interest.

Issues for determination 31. The Tribunal has identified the following issues for determination:-a.Whether the tribunal has jurisdiction to hear this matter.b.Whether there was a fair hearing before the IDRC.c.Was the IDRC decision merited.d.Who bears the costs of this suit.

Analysis and Determination. Whether the Tribunal has jurisdiction to hear this matter. 32. Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that are brought before it. Without jurisdiction, any orders made by this Tribunal amount to a nullity ab initio.

33. The place of jurisdiction in law is well settled as was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989], where Nyarangi J A held 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

34. The 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 provides that1. “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.

35. In determining whether the Tribunal has jurisdiction to determine the dispute before it, two angles emerge. Firstly, can a party sue its organ? Secondly, can a complainant competently approach this Tribunal before attempting IDRM as required by section 40 (2) of the PPA.

36. It was explained to us by the Complainant that the fact that the subject matter of this complaint related to the 1st Respondent’s decision with respect to a dispute involving the 2nd and 3rd Respondents, it was unnecessary for the Claimant to be required to demonstrate exhaustion of IDRM before approaching us. With respect, we do not accept this argument for the principal reason that the obligation to show evidence of IDRM is one placed on a party to the complaint. A party in this case is the one seeking the invocation of our jurisdiction. Admittedly, the Complainant herein has not shown evidence of its attempting IDRM before moving us.

37. It is also our considered view that whereas party organs are interdependent in administrative functions, a Party’s IDRM organ is a judicial organ with decisional independence. The party can indeed bring proceedings and complaints before it just as any other organ of the party would. We have held, many times over, that Party members, organs and the party itself are proper subjects of the IDRM.

38. It was equally advanced before us that to return this matter to IDRM while the substance of the Complainant’s complaint had been determined by the 1st Respondent would be an act in futility with a foregone conclusion. While factually the argument looks sound, it misses three critical points. Firstly, that there is no evidence of any complaint by the Complainant herein before the IDRM for us to compare and determine whether it fell in all fours within the frame of the current complaint or whether there were material or significant differences. To that extent the argument on similarity of cause of action is largely speculative.

39. Secondly, the jurisdiction of this tribunal is both rationepersonae (party) and rationematirae (subject matter) oriented. In essence, section 40 of the PPA confers jurisdiction upon us over parties and their grievances. A party must establish both elements contemporaneously so as to properly invoke our jurisdiction.

40. Thirdly, the wording of section 40(2) of the PPA is mandatory in nature and requires the party seeking to invoke the Tribunal’s jurisdiction to adduce evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms. The provision establishes a mandatory pre-suit procedure that must be complied with, absent which there is a direct infraction of the law. To countenance a party who is in breach of express mandatory provisions of statute would be to sanction an illegality, an act inimical to the very core functions of the Tribunal. It would be tantamount to accepting jurisdiction over an appeal by a third party who was not a party to the original action in the trial court. We must add that this approach would obviously portend chaos in the administration of justice, and render nonsensical the requirement to exhaust IDRM as prescribed in section 40 (2) of the PPA.

41. In the Political Parties Disputes Tribunal at Nairobi Complaint No. E005 Of 2021 Hon. Kieru John Wambui And Hon. Kariuki Muchiri Versus Jubileee Party and Raphael Tuju Secretary General, Jubilee Party and Others this Tribunal found:“The Complainants have not demonstrated that they made any attempt to resolve the dispute within the party. There is no record of any letter that was written to the party challenging the party’s impugned decision and invoking the party’s IDRM. …………….. Taking into account the express provisions of Section 40(2) of the PPAas read together with the provisions of Article 15 of the party constitution, we are not convinced that a mere allegation of an outright illegality against the party granted the Complainants a blanket exemption from the requirement to first subject the dispute to IDRM. Such an interpretation would in our opinion defeat the purpose and spirit of Section 40(2) of the PPA. We state so bearing in mind that most if not all disputes involving political party affairs are usually grounded on some allegation of illegality by either party to the dispute against the other.”

42. Having found that the Tribunal lacks jurisdiction, it follows that delving into the substance of the Complaint will be an exercise in futility. That leaves us no option but to down our tools.

43. 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.

Dissenting Opinion of Hon. Desma Nungo Hsc; Hon. Stephen Musau; & Hon. Gad Gathu 44. We have had the advantage of reading the majority decision. We agree with the factual background, the summary of the submissions advanced by the parties and the issues for consideration and determination as framed. We do not therefore intend to reiterate them here in detail save in limited aspects for purposes of clarity of any point we will be making.

45. In their analysis of the issue whether there is evidence of an attempt at IDRM, the majority opinion is that “the obligation to show evidence of IDRM is one placed on a party to the complaint. A party in this case is the one seeking the invocation of our jurisdiction.” They further opine that the jurisdiction of the tribunal is both party and subject matter oriented and that a party must establish both elements contemporaneously so as to properly invoke our jurisdiction.

46. We have considered the wording of Section 40(2) of the PPA which expressly provides that the tribunal shall not hear and determine disputes between a member of the political party and the political party or disputes between members of a political party unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

47. We respectfully disagree with the majority’s interpretation that the phrase ‘a party to the dispute’ and ‘evidence of an attempt to subject the dispute’ means that it is only the Complainant that must adduce evidence of an attempt at IDRM. This tribunal has in numerous cases defined what amounts to an attempt at IDRM and the exceptions thereto. In the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022), the Tribunal held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show, among others:a.The unavailability of the organ to resolve disputes;b.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;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.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.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

48. It is therefore our considered opinion that depending on the circumstances of each case, an attempt at IDRM may still be demonstrated where any party to the dispute (other than the Complainant) furnishes evidence that the subject matter of the dispute has already been dealt with before the party’s IDRM. This is in consonance with the rationale for the requirement of IDRM which was to give political parties the first chance to determine internal disputes, and to promote and enhance intra-party democracy.

49. In the case of Jeconia Okungu Ogutu & Another v Orange Democratic Movement Party & 5 others [2017] eKLR (PPDT Complaint No. 200 of 2017), the Complainant was not a party to the dispute before the party’s IDRM. However, the subject matter of the dispute before the party was the same as the subject matter of the complaint.In considering the same question, we stated as follows:-“….47. Besides that, assuming that there was a need to attempt internal dispute resolution mechanisms, we cannot buy the 3rd Respondent’s argument that it is necessary for the individual litigant as opposed to the material dispute to be subjected to internal party dispute resolution processes. As we see it, section 40(2) refers to “dispute”, and not “parties to a dispute”. As a result, once a dispute has been referred to an internal party processes, any party, interested party or other person affected by that dispute may henceforth invoke the jurisdiction of this Tribunal. There is no need for the particular litigant to have personally appeared before the internal party dispute resolution mechanism….”

50. We now proceed to compare the subject matter of the dispute before the IDRC and the one by the Complainant before us. We note that the IDRC Dispute Form annexed to the Affidavit sworn by Gideon Solonka on 4th July 2023 details the Particulars of the dispute before the IDRC as:-i.That the notice purporting to convene a Special National Delegates Convention (SNDC) issued by H.E Uhuru Kenyatta and published in the print media on 29th April 2023 is irregular and in contravention of the Jubilee Party Constitutionii.That the decision to convene an SNDC was resolved in an irregular National Executive Committee (NEC) meeting held without quorum on 28th April 2023.

51. The IDRC in its determination made on 30th May 2023 nullified the NEC meeting of 28th April 2023 and the SNDC of 22nd May 2023. A copy of the IDRC decision is annexed to the Replying Affidavit sworn by Gideon Solonka on 4th May 2023 on behalf of the IDRC.

52. From the Amended Complaint, the Complainant in this case is challenging the legality of the subject IDRC decision dated 30th May 2023. Apart from seeking orders for setting aside the subject IDRC decision for breach of the right to a fair hearing, the Complainant herein specifically prays for a declaration that the NEC meeting of 28th April 2023 was procedurally held and that the same was quorate; and also, for a declaration that the Special NDC meeting of 22nd May 2023 was lawfully convened by the Jubilee Party leader.

53. It is therefore clear to us that the subject matter of the dispute before the IDRC is the same as the subject matter of the instant Complaint. Suffice it to note that the 1st and 2nd Respondents and the Interested Party herein were all parties to the dispute subject hereof before the party’s IDRM (IDRC); and that the Complainant herein is the political party that was subject of the same dispute before the IDRC.

54. As we have already observed, the IDRC already delivered its Judgment on the matter on 30th May 2023. Therefore, whichever way we may want to look at it, the IDRC has already conclusively determined the disputed questions relating to the NEC and SNDC meeting of 28th April 2023 and 22nd May 2023 respectively. The dispute is fait accompli before the party.

55. In the case of Eric Kamande & 2 others v Amos Murigi & 2 others [2020] eKLR, the Court observed as follows:-“…37. While I disagree with that line of reasoning, I have arrived at the same result but for different reasons. I have closely analyzed Hon. Tuju’s (3rd appellant’s) letter of 12th January 2018 annexed to the affidavit of Mary-Karen Sorobit sworn on 22nd March 2018. I will reproduce it here in extenso:Hon. SpeakerMurang’a County AssemblyMurang’a CountyDear Sir,Re: Leadership Wrangles in Murang’a County AssemblyThe above matter refers.As a matter of procedure, we called the entire interim office of Murang’a County for a hearing at the Party Headquarters on 11th January 2018 to give light on the matter.Subsequently, we wish to advise your good office that the status quo remains in the County Assembly leadership until the matter is determined.Please note any changes will be addressed to you directly from my office.Any purported changes are therefore null and void.Yours Sincerely,Hon. Raphael Tuju (EGH)Secretary General. [Underlining added]38. Whichever way I look at the letter, it leaves no doubt that following the meeting at the headquarters on 11th January 2018 the Jubilee Party dismissed the leadership changes made at the caucus of 5th January 2018 as null and void. True, the letter leaves open “further determination” of the crisis. There are for example the summons and letters to potential witnesses appearing at pages 46 to 57 of the record. But given the text of the earlier letter by the Secretary General, this was mere window dressing: the matter was a fait accompli. I also agree with the 1st respondent that when the complaint was lodged with the PPDT, the Jubilee Party took no further action and seems to have deferred fully to the Tribunal.39. I thus readily find and hold that the Tribunal was properly seized of jurisdiction….”

56. In light of the foregoing, we are of the considered opinion that there was already an attempt to resolve the subject matter of the instant dispute before IDRM (the IDRC) which rendered its decision on 30th May 2023. The 1st Respondent produced IDRC Dispute Form and Judgment delivered on 30th May 2023 and these in our opinion constitute evidence of an attempt at IDRM in consonance with the provisions of Section 40 of the PPA. Accordingly, we find and hold that this tribunal is properly seized of jurisdiction to hear and determine this matter. To hold otherwise would in our opinion unfairly drive the Complainant out of the seat of justice.

57. However, as our views are in the minority, the decision of the tribunal shall be that of the majority.

Final Orders of the Tribunal 56. In light of the foregoing, the Final Orders of the Tribunal are as follows:i.The Complaint herein be and is hereby struck out.ii.Each party to bear their own costs.

DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF SEPTEMBER 2023. …………………………………Honourable Desma Nungo HSCChairperson…………………………………Honourable Dr. Wilfred A. Mutubwa OGW C.Arb FCIArb Vice Chairperson…………………………………Honourable Gad GathuMember………………………………………Honourable Stephen MusauMember……………………………………Honourable Theresa ChepkwonyMember………………………………………Honourable Abdirahman Adan AbdikadirMember………………………………………………Honourable Muzna Mohamed Yusuf JinMember