[2022] KEPPDT 939 (KLR)

Kenya Council of Employment and Migration Agencies & another v Godhana & 3 others; Ethics and Anti-Corruption Commission & another (Interested Parties) (Miscellaneous Application E002 (MSA) of 2022) [2022] KEPPDT 939 (KLR) (31 May 2022) (Ruling)

Neutral citation: [2022] KEPPDT 939 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Miscellaneous Application E002 (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

Dhadho Godhana

1st Respondent

Orange Democratic Party (ODM) Party Nomination Board

2nd Respondent

Independent Electoral and Boundaries Commission (IEBC)

3rd Respondent

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 applicants herein by way of notice of motion application brought under certificate of urgency, commenced the proceedings herein seeking verification of the 1st respondent’s 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. The applicants contend that the 2nd respondent ought not to have nominated the 1st respondent as its gubernatorial candidate as he allegedly does not possess the requisite academic certificates for the position of Governor.

3. In response to the application, the 1st respondent filed a notice of preliminary objection dated May 24, 2022 and a replying affidavit sworn on the same date. The 3rd respondent filed grounds of opposition dated May 23, 2022 while the 4th respondent filed grounds of opposition and the 2nd interested party filed its replying affidavit.

4. Parties were thereafter directed to file written submissions in respect of both the preliminary objection and the application.

Preliminary Objection 5. 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.”

6. 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 696 has 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.”

7. 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 lackslocus standito file the complaint, application and/or suit.iii.There is no dispute as envisaged under the Political Parties Act, before the honorable 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 honorable tribunal.vi.The complaint, suit or application is vexatious, incompetent and an abuse of the election dispute resolution and/or court process.

8. In the locus classicus case on jurisdiction of Owners of Motor Vessel “Lillian S” vs 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”This tribunal will therefore first proceed to consider and decide the issue of jurisdiction.

Issues for Analysis & DeterminationHaving read through the pleadings together with the annexures and the parties’ submissions the following issue is for determination in this preliminary objection: Whether the tribunal has jurisdiction to hear and determine this application as presented 9. 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.

10. 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 1stapplicant he does not claim to be a member of the 2nd respondent. The capacity under which the applicants have approached this tribunal does not lie within the purview of section 40 of the Political Parties Act. The 2nd applicant in his pleadings states that he is the chairman of the 1st respondent and that he has the capacity to file the application, however, he does not seem to elaborate how his purported capacity relates to the issue of nomination of the 1st respondent by the 2nd respondent to cloth him with the requisite locus standi to approach this tribunal. The applicants are neither members of the 2nd respondent nor is the 2nd applicant an independent candidate as envisaged in the Act.

11. 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.

12. It was further submitted that the issue of the 1st respondent’s academic qualifications had already been heard and determined by the High court in Garsen Election Petition No 1 of 2017 Mohamed Dado Hatu v Dhadho Gaddae Godhana & 3 others [2018] eKLR. This tribunal has gone through the said case and has confirmed that indeed the issue of the 1st Respondent’ s academic credentials was considered and determined by the court. This tribunal therefore finds that the issue having been determined by a court of competent jurisdiction the same cannot be a subject of litigation before it. The matter is therefore res judicata. The principle of res judicata is well stated in section 7 of the Civil Procedure Act and is a well settled law owing to the number of authorities on the subject.

13. The third of objection of the tribunal’s jurisdiction is on the basis that since the 1st respondent’s name had been forwarded and received by the 3rd respondent then a nomination had 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 tribunal is in respect of disputes arising out of the process of nomination. The 3rd respondent in taking this ground referred the tribunal to the case of Joseph Ibrahim Musyoki v Wiper Democratic Movement- Kenya & Another[ 2017] eklr where the issue of nomination was considered and it was observed as follows; ‘’ Nomination’’ means ‘’the submission to the commission of the name of a candidate in accordance with the Constitution and the Elections Act.’’

14. This tribunal has noted that indeed the name of the 1st respondent has been forwarded and received by the 3rd respondent and as such nomination had already taken place and therefore this tribunal ceased to have jurisdiction the moment the name was sent to the 3rd respondent.

15. In view of the above findings the tribunal finds that the preliminary objection on jurisdiction has merit and the same is allowed with costs to the respondents.

What orders can the tribunal issue in the circumstances 16. The application is hereby struck out with costs awarded to the respondents for want of jurisdiction.

17. 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)