[2022] KEPPDT 1036 (KLR)

Kariuki v Ng’ang’a & another (Complaint E058 (NRB) of 2022) [2022] KEPPDT 1036 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1036 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E058 (NRB) of 2022

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

May 12, 2022

Between

John Ndirangu Kariuki

Complainant

and

Samuel Mwangi Ng’ang’a

1st Respondent

Jubilee Party of Kenya

2nd Respondent

Judgment

1. The Complainant is a member of the 2nd Respondent and one of the aspirants who vied for nomination for the position of Member of National Assembly, Embakasi Central Constituency. He alludes to a nomination exercise that was conducted on March 25, 2022 through consensus where he emerged the winner and was issued with an official nomination certificate. He later came to find out that the 1st Respondent had also been issued with a nomination certificate for the same position.

2. Aggrieved by this discovery, the Complainant has moved this Tribunal seeking the following orders:-i.An order referring the dispute back to the Jubilee Party’s National Elections Appeals Tribunal for hearing and determination.ii.An Order declaring that any Nomination Certificate issued by the 2nd Respondent herein to any other person, other than the Complainant, as the Jubilee party nominee for the Embakasi Central Constituency, Member of National Assembly position is null and void.iii.An Order preventing the Jubilee Political party from submitting a list of nominees of the Member of National Assembly position in Embakasi Central Constituency, in Nairobi County to the Independent Electoral & Boundaries Commission pending the determination of this Tribunal.iv.An Order directing the Respondent herein to refund the filing fees paid by the Complainant herein.v.Any other relief that this Honourable Tribunal may deem just and fit to grant in the circumstances.

3. Pursuant to the directions that were issued by this tribunal, this matter proceeded for hearing on May 10, 2022 by way of highlighting of the parties’ written submissions.

4. The Complainant was represented by Mr Okatch Advocate. The 1st Respondent was represented by Mr Tole Advocate, Mr Waikwa Advocate and Mr Ondieki Advocate. The 2nd Respondent was represented by Ms Wanjiku Advocate and Mr Charana Advocate.

The Complainant’s Case 5. The Complainant is a fully paid up member of the 2nd Respondent party and he paid nomination fees of Kshs 200,000/- and was issued with a receipt dated March 25, 2022. Having complied with the requisite procedures necessary for nomination, he was cleared by the party to participate in the nomination exercise for the position of Member of National Assembly Embakasi Central Constituency.

6. The Complainant submitted that he was on the March 25, 2022 declared the official party candidate for the position of Member of National Assembly Embakasi Central Constituency through consensus. However, he came to learn that the 1st Respondent was also proclaiming to the public that he had been issued with a nomination certificate by the 2nd Respondent.

7. He promptly made effort to engage his lawyers to inquire from the 2nd Respondent with a view to establishing the true position. His lawyer wrote a letter dated May 2, 2022 to the National Elections Board (NEB) demanding that the issue be resolved or the nomination certificate purportedly issued to the 1st Respondent be nullified, failure upon which he would lodge an Appeal at the National Elections Appeals Tribunal (NEAT). The letter elicited no response hence the instant complaint.

8. The Complainant submits that his case is premised on the powers of the Tribunal under Section 37 of the PPDT (Procedure) Regulations to enlarge time within which political party internal dispute resolution mechanisms (IDRM) can deal with matters.It is the Complainant’s submission that if this dispute is not resolved by the party, the 2nd Respondent may not have a candidate. He therefore prays that the matter be returned to the party so that the dispute is attended to.

9. He maintains that the Tribunal has jurisdiction to grant the reliefs sought. He relied on numerous decisions including James Onyango Koyoo vs Hezron Otieno Mc’Ombewa & Others where it was observed, inter alia, that the amendment to Section 40(2) of the Political Parties Act (PPA) was meant to give the Tribunal powers to deal with matters, in exceptional circumstances, when party IDRMs prove a hindrance to access to expeditious justice. He also relied on the case ofAbdul Salam Kassim vs Hazel Nyamoki Katana & Anor (2017) eKLR, Jeconia Okungu Ogutu & Anor vs Orange Democratic Movement Party & 5 Others (2017) eKLR.

The 1st Respondent’s Case 10. The 1st Respondent contends that he was also one of the aspirants for the position of Member of National Assembly Embakasi Central on the Jubilee Party ticket. Vide notices issued on April 16, 2022, all Jubilee National Assembly aspirants were invited to attend a nomination exercise dubbed nomination consultation which was held on April 18, 2022 at the Windsor Golf Hotel & County Club. On the material date, all the aspirants were interviewed and the respective nominee for each position arrived at pursuant to Article 11 of the 2nd Respondent’s Constitution. During the process, the 1st Respondent was declared the winner and issued with a nomination certificate dated April 24, 2022 in accordance with Rule 9 of the party’s nomination rules.

11. The 1st Respondent contends that part of the consideration for the successful nomination for the position of Member of the National Assembly was how an aspirant had actively campaigned in the constituency. He avers that he was interviewed together with the Complainant who admitted that he had not commenced any campaign in Embakasi Central Constituency as he was actively campaigning for the Governor seat in Nyandarua County.

12. According to the 1st Respondent, the nomination exercise of April 18, 2022 was done in accordance with the party laws and that in the circumstances, the Complainant’s claim is designed to deprive him his legitimately acquired nomination as the 2nd Respondent’s flag bearer for the Embakasi Central parliamentary seat.

13. The 1st Respondent has questioned the nomination certificate held by the Complainant noting that the same is undated and wonders how a consensus meeting was conducted and a certificate issued on the very same date that was scheduled for submission of nomination papers and payment of nomination fees.

14. The 1st Respondent has further raised a Preliminary Objection dated May 5, 2022 stating that the Tribunal has no jurisdiction to entertain the Complaint on grounds that Section 40(2) of the Political Parties Act (PPA) and Article 15(6) of the Jubilee Constitution and Rule 33 of the Jubilee Party Nomination Rules has not been complied with. He submitted that the Tribunal has no jurisdiction to hear and determine this matter as the Complainant has not attempted to resolve the issues he is raising herein, including seeking the enlargement of time to raise nomination related issues, within the party’s internal dispute resolution mechanisms (IDRM).

15. The Respondent submits that the party constitution allows a person dissatisfied with nomination results to file an appeal to the National Elections Appeals Tribunal (NEAT) within 72 hours of the nomination results being announced, and that this IDRM mechanism is sufficient to address the Complainant’s issues, and he ought to have begun there, rather than attempt to strong arm the 2nd Respondent through this Tribunal. The Complainant failed to prosecute his complaint before NEAT within the strict timelines stipulated by the law and he has not demonstrated any cogent reason for his delay, and that equity should not aid the indolent. He relied on the cases of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) eKLR, Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others(2012) eKLR, Boniface Waweru Mbiyu vs Mary Njeri & Anor (2005) eKLR, Kieru John Wambui & Another vs Jubilee Party, Secretary General Jubilee Party & 2 Others (interested parties)(2021) eKLR.

16. The 1st Respondent maintains that there is no demonstration by the Complainant that an attempt to appeal to the NEAT was frustrated and that jurisdiction cannot at this stage be vested in the Tribunal. The Complainant had time between April 22, 2022 when the nomination certificate was issued to the 2nd Respondent until April 25, 2022 to file a dispute before NEAT but failed to do so, and there is no record of any letter that was written to the party challenging the party’s decision and invoking IDRM.

17. With respect to prayer for extension of time, the 1st Respondent submits that the Complainant has not adduced sufficient reasons to warrant an extension of time or grant of any leave to the Complainant to file his dispute before NEAT. He has not met the principles for extension of time as laid down in various cases including Nicholas Kiptoo Korir Arap Salat vs Independent Electoral & Boundaries Commission & 7 Others (2014) eKLR, County Executive of Kisumu v County Government of Kisumu & 8 Others (2017) eKLR

18. In a nutshell, the 1st Respondent maintains that the Complaint is devoid of merit, is misconceived, incompetent, an afterthought, and an abuse of process of the Tribunal, and meant to unfairly remove him from contesting for the position of Member of National Assembly in Embakasi Constituency.

The 2nd Respondent’s Case. 19. The 2nd Respondent’s position is that there was a consent entered into between the Complainant and the 2nd Respondent to refer the matter back to NEAT.

20. According to Counsel for the 2nd Respondents, all parties are already in agreement that the Tribunal has no jurisdiction as IDRM was not exhausted. She proposed that the Complaint be dismissed and the matter be referred back to the party for resolution.

Tribunal’s Analysis and Findings 21. We have considered the parties’ pleadings and identified the following issues as falling for our consideration and determination:i.Whether this Tribunal has the requisite jurisdiction to entertain the complaint?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs to grant?

Whether this Tribunal has the requisite jurisdiction to entertain the complaint 22. The Supreme Court of Kenya in the case of Samuel Kamau Macharia Vs KCB & 2 Others, Civil Application No 2 of 2011 was succinct on the question of jurisdiction where it was 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.”

23. The jurisdiction of this Tribunal is grounded on Article 169 (1) (d) of the Constitution of Kenya as read with Sections 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.

3. A coalition agreement shall provide for internal dispute resolution mechanisms

24. From the parties’ pleadings and submissions, it is evident that the dispute at hand arises out of party nominations for the position of Member of National Assembly, Embakasi Central Constituency. Two nominations alluded to by the parties hereto are in issue. One was allegedly conducted on March 25, 2022 allegedly through consensus, and another was allegedly conducted on April 18, 2022 allegedly through interviews. As expressly provided for under Section 40(2) of thePPA, the tribunal shall not hear and determine disputes arising from party nominations unless a party adduces evidence of an attempt to subject the dispute to IDRM.

25. Article 15(6) of the 2nd Respondent’s constitution establishes NEAT as the IDRM organ that is clothed with the mandate to hear and determine disputes arising out of nominations.

26. In this case, the Complainant acknowledged that he had not lodged an appeal with NEAT. His reason for not having done so is that NEAT’s timelines for dispute resolution had expired. His Counsel submitted that he moved the Tribunal under Section 37 of the PPDT (Procedure) Regulations 2017 to enlarge the timelines and to have the matter referred back to the party. He in addition relied on his letter dated May 2, 2022 to demonstrate an attempt to have the matter dealt with within the party before moving the Tribunal.

27. In consideration of the objection to our jurisdiction, we have asked ourselves two fundamental questions. Do the circumstances in this case allow us to assume jurisdiction over this matter notwithstanding the acknowledgment that IDRM was not invoked? Does the letter dated May 2, 2022 amount to an attempt at IDRM?

28. What amounts to an attempt has been underscored in many cases before the Tribunal and guidelines have been set. InJohn Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No E002 OF 2022), we 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 that, 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. ”

29. We note that the 2nd Respondent did not file any response. Counsel for the 2nd Respondent in her oral submissions alluded to a consent that had been signed between the Complainant and the 2nd Respondent to have the matter referred back to the party. She accordingly prayed that the matter be referred back to the party. This position sends a clear statement to us that the party is not averse to resolving the dispute. We are therefore not persuaded by the Complainant’s argument that he had to first approach the Tribunal to enlarge time and then have the matter referred back to the party. In any event, none of the prayers sought in the Complainant’s pleadings relate to enlargement of time. We have further considered Regulation 37 of the PPDT (Procedure) Regulationsand we note that the power to extend or reduce time stipulated therein relates to the timelines prescribed within the PPDT (Procedure) Regulations, and not timelines for IDRMs for political parties which are mostly guided by their own procedure rules.

30. With respect to the letter dated May 2, 2022 referred to above, we note that its penultimate paragraph reads as follows:-“...The import of this letter therefore is to request your good office to promptly resolve this issue or in the alternative declare Samuel mwangi Nganga’s nomination certificate null and void within the next 72 hours failure to which we will have no choice but to lodge an Appeal with the party’s National Elections Appeals Tribunal for redress…”

31. In essence, as at the date of writing the letter being May 2, 2022, the Complainant was open to lodging a claim with NEAT if they did not find assistance from NEB. There was no issue raised therein to do with the timelines. Interestingly, the Complainant did not move the NEAT despite having stated so in his subject letter dated May 2, 2022. He bypassed the NEAT process that he had himself alluded to and filed the instant Complaint on or about the May 3, 2022.

32. The law as we have already espoused requires a party to adduce evidence of an attempt to lodge dispute with NEAT (being the appropriate IDRM organ to determine nomination disputes). We have examined the record and we find no evidence to demonstrate that any attempt was made to lodge an appeal at NEAT, or that any such effort was frustrated for whatever reason. No forms or documentation of whatever nature were produced to demonstrate any attempts towards lodging an appeal with NEAT in vain.

33. The upshot of the foregoing is that we find that we do not have jurisdiction to hear and determine this matter.

34. In R v Karisa Chengo [2017] eKLR, the court determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

35. Based on the foregoing, we shall not determine the rest of the issues as framed as we have downed our tools.

36. As regards costs, whereas costs follow the event, we take into consideration the fact that the cases have been struck out and that parties still need to engage with one another with a view to resolving the dispute. Accordingly, in the interest of fostering that unity, we direct that each party bears its own costs.

Disposition 37. In light of the foregoing, we make the following orders:-i.That the preliminary objection dated May 5, 2022 be and is hereby upheld.ii.That this Complaint be and is hereby struck out.iii.That each party bears their own costs.

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022. DESMA NUNGO…………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..….....(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………............(MEMBER)RUTH WAIRIMU MUHORO…………………………(MEMBER)