[2022] KEPPDT 1014 (KLR)

Kenya Council of Employment and Migration Agencies & another v Dado & 3 others; Ethics and Anti-Corruption Commission & another (Interested Parties) (Miscellaneous Case E001 (MSA) of 2022) [2022] KEPPDT 1014 (KLR) (31 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1014 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Miscellaneous Case E001 (MSA) of 2022

E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members

May 31, 2022

Between

Kenya Council of Employment and Migration Agencies

1st Applicant

Evans Nyambega Akuma

2nd Applicant

and

Hon. Hussein Dado

1st Respondent

United Democratic Alliance (UDA) Party Nomination Board

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Hon.Attorney General

4th Respondent

and

Ethics and Anti-Corruption Commission

Interested Party

Commission for University Education

Interested Party

Ruling

1. On May 13, 2022 the Applicant herein by way of Notice of Motion Application brought under certificate of urgency, commenced the proceedings herein seeking verification of the 1st Respondents academic certificates by the Tribunal and orders of injunction to restrain the Respondents and Interested Parties from receiving the 1st Respondent’s academic certificates and nomination certificate

2. In response to the application, the 1st Respondent filed a Notice of Preliminary Objection dated May 19, 2022 and a replying affidavit sworn on May 21, 2022. The 3rd Respondents filed grounds of opposition dated May 21, 2022 while the 4th Respondent filed grounds of opposition dated May 19, 2022 the 2nd Interested party filed their replying affidavit on May 19, 2022.

3. Parties were thereafter directed to file written submissions in respect of both the Preliminary Objection and the application.

Preliminary Objection 4. The purpose of a preliminary objection was broadly discussed in Charles Onchari Ogoti v Safaricom Ltd & anor [2020]eklr as follows: "[9] This court is aware of the leading decision on Preliminary Objections where the Court of Appeal for East Africa, then the highest court for purposes of this jurisdiction and the others in East Africa in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd. [1969] EA 696, where“Law JA and Newbold P (both with whom Duffus V-P agreed), respectively at 700 and 701, held as follows: Law, JA.:“So far as I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection on the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Newbold, P.:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.”

5. We quickly turn to the question whether we have before us a Preliminary Objection proper. Traditionally, the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696has been the watershed as to what constitutes Preliminary Objections. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another [1995]eKLR also captured the legal principle when it stated as follows:“A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

6. The issue being raised in the preliminary objection is on jurisdiction of this Tribunal to hear and determine the application. The 1st Respondents Preliminary Objection read as follows:i.The Honourable Tribunal lacks jurisdiction to entertain the matter owing to the fact that the 1st Respondent’s Party Nomination Certificate has been issued and presented to the 3rd Respondent, Independent Electoral and Boundaries Commission, accordingly “Nomination” has already occurred.ii.The Applicants lacks locus standii to file the complaint, application and/or suit.iii.There is no dispute as envisaged under the Political Parties Act, before the Honourable Tribunal. Accordingly, the Tribunal lacks jurisdiction to hear the matter.iv.The Complaint, suit and Application is statute barred.v.The Complaint, suit or Application seeks orders of an investigative nature which is outside the jurisdiction of the Honourable Tribunal.vi.The Complaint, suit or Application is vexatious, incompetent and an abuse of the election dispute resolution and/or court process.

7. In the locus classicus case on jurisdiction of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) ltd [1989] KLR 1 Justice Nyarangi of the Court of Appeal stated as follows:-“I think that it is plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obligated to decide the issue right away on the matter before it. 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”.

Issues for Analysis & DeterminationHaving read through the pleadings together with the annexures and also heard the parties highlight their submissions the following issue is for determination in this preliminary objection: Whether the Tribunal Has jurisdiction to hear and determine this application as presented 8. The jurisdiction of the Political Parties Disputes Tribunal (PPDT) flows from Section 40 (1) of the Political Parties Act. It has been submitted that the Applicants Application may only fit under section 40 (1) (fa) of the Political Parties Act.

9. That a reading of that section presupposes that a dispute under the said paragraph (fa) ought to be between a Member of a Political Party and the Political Party. As it is from the supporting affidavit by the 1st Applicant, he does not claim to be a member of the United Democratic Party.

10. Section 40 (2) of the Political Parties Act states as follows: “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 mechanism”.

11. It has been urged that there is no evidence of the dispute having been first subjected to the internal disputes resolution mechanism within the 2nd Respondents party. As such the Tribunal lacks jurisdiction to entertain the dispute.

12. In Samuel Kamau Macharia & Another v Kenya Commercial Limited & 2 others[2012] eKLR the Court held that: - “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.”This tribunal cannot therefore arrogate jurisdiction beyond that which is conferred by law.

13. Article 169 (1) (d) of the Constitution also clothes the Tribunal with the jurisdiction to hear and determine disputes.

14. Disputes between political parties or coalition parties and disputes between coalition partners require that IDRM be attempted in the first instance.

15. It has been submitted that the moment the 1st Respondent’s name was forwarded and received by the 3rd Respondent then a nomination occurred and once a nomination has occurred the Tribunal ceases to have jurisdiction to entertain a dispute over the nomination since the jurisdiction of the is in respect of disputes arising out of the process of nomination.

16. This Tribunal finds that indeed nomination had already taken place and the 1st Respondents name was forwarded and received by the 3rd Respondent and therefore it ceased to have jurisdiction the moment the name was sent to the 3rd Respondent.

17. In view of the above findings the Tribunal finds that the Preliminary Objection on jurisdiction has merit and the same is allowed.

What orders can the Tribunal issue in the circumstances 18. The application is hereby struck out with costs awarded to the respondents for want of jurisdiction.

19. Orders accordingly.

DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF MAY 2022. HON. ERASTUS ORINA (PRESIDING MEMBER)HON. THERESA CHEPKWONY (MEMBER)HON. DANIEL KAGACHA (MEMBER)