[2023] KEPPDT 1362 (KLR)

Khalif & another v Farah & another; Garissa County Assembly & 3 others (Interested Parties) (Complaint E017 (NRB 'A') of 2023) [2023] KEPPDT 1362 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1362 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E017 (NRB 'A') of 2023

D. Nungo, Chair, S Musau, AA Abdikadir & MM Yusuf Jin, Members

October 2, 2023

Between

Abubakar Mohamed Khalif

1st Complainant

Abdi Ibrahim Daar

2nd Complainant

and

Mohammed Abdi Farah

1st Respondent

Ahmed Abdirahman Sheikh

2nd Respondent

and

Garissa County Assembly

Interested Party

Speaker, Garissa County Assembly

Interested Party

Clerk, Garissa County Assembly

Interested Party

Azimio La Umoja Coalition

Interested Party

Ruling

Introduction 1. These proceedings were instituted in this tribunal vide a Statement of Complaint dated 7th September 2023 (hereinafter referred to as the Complaint) wherein the Complainant seeks the following orders: -i.This Honourable Tribunal do issue an order rescinding both letters dated 3rd September 2023 addressed to the speaker and the declaration by the speaker on the positions of leader of Majority Party and Majority Whip.ii.This Honourable Tribunal do issue a declaration that the 1st and 2nd Claimant are the Leader of Majority and Majority in the County Assembly of Garissa.iii.The Honourable Tribunal be pleased to issue any and such further Orders as is shall deem fit and just in the circumstances.iv.The Respondents be condemned to pay for costs of this Claim.

2. The Complaint was filed together with a Notice of Motion application dated 7th September 2023 (hereinafter referred to as the First Application) under Certificate of urgency. The First application was placed before the Tribunal on 7th September 2023 when the tribunal issued the following orders:-i.That the Notice of Motion application dated 7th September 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.That the Complaint and Notice of Motion application dated 7th September 2023 be served upon the Respondents and Interested Parties within two (2) days of the date hereof.iii.That the Respondents and Interested Parties to file and serve their response(s) to the Application within five (5) days of the date of service.v.That the Notice of Motion Application dated 7th September 2023 be listed for mention on 15th September 2023 at 2. 30pm to check on compliance and/or for further directions.vi.That pending the hearing and determination of this Application, an interim order of stay is hereby issued staying the implementation of the decisions and the declaration of the Speaker of the County Assembly of Garissa pursuant to 2 letters all dated 3rd September 2023 on the replacement of the 1st and 2nd Complainants as the Majority Party Leader and Majority Whip in the County Assembly of Garissa.v.That pending the hearing and determination of this Application, this Honourable Tribunal hereby issues a temporary order barring the 1st and 2nd Respondents from holding or continuing to hold the office of the Leader of Majority Party and Majority Whip in the County Assembly of Garissa.

3. On 15th September 2023 when the First application came up before the tribunal for mention for further directions, it was brought to the attention of the tribunal that two other applications had been filed. The Complainants had filed another application dated 13th September 2023 for contempt (the Second Application) and the 1st and 2nd Respondents filed an application dated 12th September 2023 seeking to set aside the above interim orders issued by the tribunal (the Third Application). Directions were accordingly issued for the hearing of all the three applications on 22nd September 2023.

4. Prior to the hearing of the afore-stated applications, the tribunal, on its own motion, invited all the parties herein to submit on the question of the Jurisdiction of the tribunal under Section 40 of the PPA in the first instance.

5. During the submissions on the stated question of jurisdiction, the Complainants were represented by Mr. Manyange Advocate, the 1st and 2nd Respondents were represented by Mr. J.M. Njengo Advocate, and the 1st, 2nd and 3rd Interested Parties was represented by Mr. Mohamed Sheikh. This ruling is in respect to the question of jurisdiction.

Submissions by Mr. Manyange on behalf of the Complainants 6. Counsel submitted that this Complaint is premised on Section 40(1)(e) of the PPA as a dispute between coalition partners. There is a dispute amongst members of the Azimio la Umoja Coalition party, being the majority in the County Assembly of Garissa. He therefore submits that this matter is properly before the tribunal.

7. Regarding section 40(2) of the PPA on the requirement of IDRM, counsel referred the tribunal to the Complainants’ letters dated 5th September 2023 marked as annex AA5 and submits that the same constitute an attempt at IDRM, which is further evidenced by the 4th interested party’s response to the complainants’ concerns vides letter dated 7th September 2023.

8. It is further submitted that the matters pending before the High Court at Garissa do not render the instant complaint sub judice as the same arise from the actions of the Speaker Garissa County Assembly and this tribunal has no jurisdiction on the same. The Garissa High Court cases relate to constitutional remedies and prerogative orders that this tribunal cannot issue. In any event, one of the matters (JR E007 of 2023) was withdrawn from the High Court and sub judice does not therefore arise.

Submissions by Mr. Njengo on behalf of the 1st and 2nd Respondents 9. Counsel submitted that pursuant to the provisions of Section 40(2) of the PPA, the tribunal cannot hear and determine matters unless dispute has been subjected to IDRM. This has not been demonstrated to have been done prior to approaching the tribunal.

10. It is the Respondents’ submission that the 2 complainants belong to affiliate parties whose respective constitutions have not been produced with a view to demonstrating an attempt at IDRM in compliance therewith.

11. The Respondents contend that in any event there is no demonstration of any follow up made on the letters dated 5th September 2023. Further, that contrary to the complainants and the 4th interested party’s submission, the letter dated 7th September 2023 does not also evidence an attempt at IDRM in accordance with the party laws.

12. According to the Respondents, the differences within the Azimio La Umoja Coalition as demonstrated by the varied positions they take on the changes made in the leadership of Garissa County Assembly make it obvious and clear that the dispute subject hereof has not been subjected to IDRM for resolution. They therefore pray that the Complaint be dismissed so that parties can comply with the law before moving the tribunal.

13. With respect to the question of sub judice, it is the Respondents submission that Section 6 of the Civil procedure Act is couched in mandatory terms and that no court shall proceed with a matter similar to what is before another court. The fact that the complainants filed Garissa High Court JR E007 of 2023 on 6th September 2023 and another similar case being Garissa High Court JR E008 of 2023 render the instant Complaint sub judice. The tribunal was referred to the reliefs sought in the Garissa High Court matters, and the conservatory orders that had been granted by Learned Judge Hon. Chigiti, J., in an attempt to demonstrate that the reliefs sought are similar to what is before the tribunal, and that there should not be two fora litigating over the same dispute.

14. It is further submitted that the High Court has supervisory jurisdiction over this tribunal by dint of Section 165(6) of the Constitution of Kenya 2010, and this is the more reason why these proceedings must be terminated as the High Court is superior to this tribunal.

15. The Respondents relied on the authorities cited in the List and Bundle of Authorities filed by 1st, 2nd and 3rd Interested Parties.

Submissions by Mr. Sheikh on behalf of the 1st, 2nd and 3rd Interested Parties 16. Counsel associated himself with the submissions of Mr. Njengo Advocate. In response to the submission made by Mr. Manyange Advocate to the effect that this tribunal was moved under Section 40(1)(e ) of the PPA as a dispute between coalition partners, counsel submits that this cannot be the case. That save for the 4th Respondent, the rest of the parties hereto are not coalition partners. According to the Interested Parties, the dispute is therefore not one between coalition partners, but one between members of a political party, thus falling under Section 40(1)(a) of the PPA.

17. The Interested Parties submit that this being a dispute between members of a political party, there is a requirement that IDRM be attempted, which requirement has not been met. The Complainants have not adduced evidence of any attempt at IDRM. The letters relied on by the Complainants dated 5th September 2023 to demonstrate attempt at IDRM are in fact addressed to the Secretary General of the Azimio La Umoja Coalition, and they do not amount to IDRM. They further submit that the letter dated 7th September 2023 relied on by the 4th interested party does not demonstrate IDRM, as it was addressed to the Speaker, and not to the Complainants.

18. Counsel further rebutted the Complainants’ counsel’s argument that Azimio la Umoja Coalition Party has no IDRM yet the law makes it mandatory for every political party or coalition agreement to make provision for an IDRM. He maintains that there has not been demonstrated any attempt to refer the dispute subject hereof to the appropriate IDRM and on this account only, this tribunal should down its tools and direct the Complainants to move the appropriate forum for dispute resolution in the first instance.

19. On the question of sub judice, it is submitted on behalf of the interested parties that there are three live disputes, before two different fora, revolving around the same issues, and involving the same parties. According to him, the tribunal can issue any order, and that filing of many cases on the same issue before different fora, is therefore not justifiable. When the tribunal was moved in this case, Garissa High Court JR E007 of 2023 was already pending before court, a fact that was not disclosed to this tribunal at the time of filing the instant complaint. Similarly, parties were before tribunal on 15th September 2023 at which time there had been filed another case being Garissa High Court JR E008 of 2023, which was again not disclosed to the tribunal.

20. The interested parties therefore submit that the Complainants are abusing the court process by filing a multiplicity of cases and that the dignity of the court must be respected. To this end, counsel relied on the pronouncements made in the cases listed in his List & Bundle of Authorities filed herein, particularly, the case of R vs County Assembly of Wajir & 4 Others, where the Court (Learned Judge Hon. Dulo, J) held that the applicant was guilty of abuse of court process because he had filed many cases without disclosure. The tribunal was therefore urged to be persuaded by the finding of Dulo, J.

Submissions by Mr. Ombati on behalf of the 4th Interested Party 21. Counsel associated himself with the submissions of the Complainants. He confirmed that a letter was sent to his client, the Azimio la Umoja Coalition party, and that the question that begs to be determined is whether there was communication in response to the Complainants’ letters dated 5th September 2023.

22. As alluded to at paragraph 8 of the Replying Affidavit filed on behalf of the 4th interested party, the 4th interested party responded to the complainants’ letters vide a letter dated 7th September 2023. The letter at paragraph 2 thereof makes it clear that no sittings were made hence the dispute before the tribunal. Counsel confirmed that the letter addressed the concerns raised by the complainants but was, however, not addressed to them.

Tribunal’s Analysis and Findings 23. We have considered the parties’ submissions and the sole issue for our determination is whether this Tribunal has jurisdiction to hear and determine this Complaint.

24. Jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. 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 this point, by stating 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.”

25. In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011, which provides on jurisdiction of the Tribunal 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 nominations2. 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

26. From the foregoing provision, it is evident that disputes between members of a political party, disputes between a member and the political party, disputes between political parties and or coalition parties, and disputes between coalition partners require that internal dispute resolution mechanism (IDRM) of a political party be invoked/attempted in the first instance prior to moving the tribunal. Suffice it to note that a political party is defined under Section 2 of the PPA to include a coalition party, and further that a coalition agreement shall provide for IDRM mechanisms.

27. Turning to this Complaint, the Complainants Counsel, Mr. Manyange, submitted that the dispute subject hereof is one amongst members of the Azimio La Umoja Coalition Political Party, as the majority party in the County Assembly of Garissa. Accordingly, the dispute is premised on the provisions of Section 40(1)(e) of the PPA. Mr. Sheikh, Counsel for the 1st, 2nd and 3rd Interested Parties, on the other hand, contends that the dispute subject hereof is one between members of a political party and is therefore premised on the provisions of Section 40(1)(a) of the PPA. Notwithstanding the varying views on the categorization of the dispute under Section 40(1)(a), (b) or (e) of the PPA, all parties hereto agree that there should be an attempt at IDRM prior to moving the tribunal.

28. In the context of this Tribunal, what amounts to an attempt at IDRM and the exceptions thereto has not been without litigation. This Tribunal has considered an attempt at IDRM previously and issued guidelines in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022) wherein 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 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. In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto.

30. The question that therefore begs to be answered is whether there is evidence of an attempt to subject the dispute subject hereof to IDRM. Counsel for the Complainants and the 4th interested party relied on the letters authored by the 1st and 2nd Complainants dated 5th September 2023, and the 4th interested party’s letter dated 7th September 2023 as evidence of an attempt at IDRM.

31. We now reproduce hereunder the full text of the three letters under reference in order for us to appreciate the meaning and tenor thereof.

32. The 1st Complainant’s letter dated 5th September 2023 and stamped as received by Azimio La Umoja Coalition on the same date reads as follows:-“…...To:The Secretary General,Azimio la Umoja Coalition Party,NairobiThrough:The Secretariat Azimio la Umoja Coalition Party,NairobiDear Sir/MadamRe: Complaint onAlleged Change ofLeadership intheCounty Assembly ofGarissa Without Following theLaw, CoalitionAgreement andStanding Orders.I refer to the above matter.My name is Abubakar Mohamed Khalif.I was elected as Member of County Assembly, Galbed Ward Garissa County. I was elected by the majority members of the Azimio Coalition as the Leader of Majority.I wish to complain about an alleged change of leadership in the assembly orchestrated by some few members of the coalition. I am informed that on 3rd September 2023, Mohammed Abdi Farahwrote to the Speaker of the Assembly informing him that there was a change in leadership and that he had been elected to replace me. There was no meeting convened by the Majority Whip in the assembly as required in law and the standing orders.I had travelled to the United Kingdom for official Assembly duty that was to commence on 25th August 2023. I was in the UK on the 3rd of September when the alleged change of leadership took place. Without prejudice, it was not possible to replace me in absentia as even if the removal was to take place, I have the right to defend myself before the members of the coalition and therefore have the right to confront my accusers.The speaker has received the illegal and procedural communication and may move to make a declaration that I have been replaced as Majority Leader in the Assembly.The purpose of this letter is to request that you intervene and restore order in the party by issuing a declaration on the leadership of the house and dealing with the actions of the few members of the coalition who have occasioned a mutiny and threaten to prejudice conduct of the business of the house and coalition in the house. We also recommend that you and commence disciplinary proceedings against Mohammed Abdi Farahand any member involved in the mutiny. We have also been informed that there were signatures collected belonging to some members. I have called and talked to some members who have confirmed to me that they did not attend any meeting and therefore never signed any document; any signatures allegedly collected that day are therefore forgeries.Thank you.

33. Similarly, the 2nd Complainant’s letter dated 5th September 2023 and stamped as received by Azimio La Umoja Coalition on the same date reads thus:-“…To:The Secretary General,Azimio la Umoja Coalition Party, NAIROBI.Through:The Secretariat Azimio la Umoja Coalition Party,NairobiDear Sir/MadamRe: Complainton Alleged Changeof Leadershipin the County Assemblyof Garissa Without Followingthe Law, Coalition Agreementand Standing Orders.I refer to the above matter.My name is Abdi Ibrahim Daar. I was elected as Member of County Assembly, Mbalambala Ward Garissa County.I was elected by the majority members of the Azimio Coalition as the Majority Whip in theAssembly.I wish to complain about an alleged change of leadership in the assembly orchestrated by some few members of the coalition. I am informed that on 3rd September 2023, Ahmed Abdirahman Sheikhwrote to the Speaker of the Assembly informing him that there was a change in leadership and that he had been elected to replace me. There was no meeting convened by the myself in accordance with the standing orders or the party organs in Garissa County or Assembly or otherwise.I was at all times present within Garissa County and the precincts of the Assembly on 3rd September 2023 when the alleged meeting took place. Without prejudice, it was not possible to replace me in absentia as even if the removal was to take place, I have the right to defend myself before the members of the coalition and therefore have the right to confront my accusers.The speaker has received the illegal and procedural communication and may move to make a declaration that I have been replaced as Majority Whip in the Assembly.The purpose of this letter is to request that you intervene and restore order in the party by issuing a declaration on the leadership of the house and dealing with the actions of the few members of the coalition who have occasioned a subversion of leadership in the Assembly and threaten to prejudice conduct of the business of the house and coalition in the house. We also recommend that you and commence disciplinary proceedings against Ahmed Abdirahman Sheikhand any errant member involved in the illegal and procedural exercise. We have also been informed that there were signatures collected belonging to some members. I have talked to some members who have confirmed to me that they did not attend any meeting and therefore never signed any document; any signatures allegedly collected that day are therefore forgeries.Thank you.

34. The letter dated 7th September 2023 authored by the Secretary General of the 4th Interested Party reads as follows: -“…7th September 2023Hon. Abdi Idle Gure,The Speaker,Garissa County Assembly,GarissaDear Sir,Re: Change ofMajority Party/CoalitionLeadership in theGarissa County Assembly The above mentioned matter refers.It has been brought to our attention of a communication dated 3rd September 2023 and received in your office on 5th September 2023 purporting to change the leadership of the majority party/coalition in the Garissa County Asssembly.At no given time as the coalition party, we have sanctioned the said changes in the county assembly.Whilke the office of the Secretary general attempts to ascertain the propriety or otherwise of the actions taken, we urge that the status qui ante be reverted to immediately.Yours Sincerely,Hon. Junet Mohamed, MPSecretary General…”

35. It is evident that two of the above letters dated 5th September 2023 were written by the Complainants who elected to write directly to Azimio La Umoja Coalition Party. We however note that the Complainants are not members of the Azimio La Umoja Coalition Party. The 1st Complainant was elected as MCA Galbed Ward under the ODM ticket, and the 2nd Complainant was elected MCA Mbalambala Ward under the Jubilee Party ticket. It therefore goes without saying that the 1st Complainant is a member of the ODM and the 2nd Complainant is a member of Jubilee Party, and that it is their respective political parties that are constituent parties in the Azimio La Umoja Coalition Party.

36. All parties acknowledged the existence of a coalition agreement, and that the provisions of Section 40(3) of the PPA that make it mandatory for all coalition agreements to provide for IDRM, whose intention was to grant parties to a coalition agreement an opportunity to resolve disputes arising out of coalitions internally before subjecting them to the tribunal process in consonance with the provisions of Section 40(2) of the PPA. The Complainants herein are not parties to and they did not sign the Azimio la Umoja One Coalition Political Party agreement. It is their respective political parties that were parties to the subject coalition agreement hence interpretation of sec 40(1) (e) of PPA, disputes between coalition partners, applies.

37. This tribunal has in the past taken the view that an individual member of a political party cannot directly refer his/her grievances to the coalition party pursuant to the coalition agreement, and that any such grievances of an individual member of a political party can only be addressed under the coalition agreement through his/her political party.

38. Indeed in the case of PPDT Complaint No. 12 of 2021 Hon Senator Cleophas Malala vs. ODM & Others, the Tribunal observed as follows in respect to IDRM where coalitions are concerned:-‘….This Tribunal has previously taken the position that interests of individual members of political parties that have entered into a coalition agreement are within the protection of their respective political parties. Accordingly, such individual members can have their grievances in the coalition arrangement addressed through their political party vide the dispute resolution mechanisms provided for in the coalition agreement that their party has entered into. Indeed in the case of PPDT Complaint No. 15 of 2020 Hon. Patrick Musili vs ODM & Others, we stated as follows:-“…in order to determine whether the Complaint is or can be described as a partner in the said coalition we have looked at the NASA coalition agreement that is attached to the Complaint and was referred to by all the parties in the course of their submissions. Article 2 of the said agreement defines the parties to coalition as Amani National Congress; Forum for Restoration of Democracy-Kenya; Orange Democratic Movement; Wiper Democratic Movement. Article 7 of the said NASA coalition agreement provide for the decision making process including at the county level. It thus emerges that interests of the members of the various political parties that form the coalition are protected by their political party.”The Applicant’s political party in this case is Amani National Congress (the 2nd Respondent). Save to associate themselves with the submissions of the Applicant, the 2nd Respondent neither stated nor demonstrated that they made any attempt to address the Applicant’s concerns through the mechanisms provided for in the Coalition Agreement. As we stated in the case of Patrick Musili already referred to above, it is an unfavorable approach to fail to sort out or attempt to sort out political party issues, which are largely negotiation issues, within the context provided for (such as the coalition documents), and instead ask this Tribunal to act…’

39. Similarly in PPDT No. 12 of 2018, Amani National Congress vs Orange Democratic Movement & Other, we struck out the Complaint for want of exhaustion of IDRM within the NASA coalition agreement.

40. We believe that the above pronouncements remain good law unless otherwise overturned by a superior court. There is no evidence that the Complainants referred the dispute to their respective political party in the first instance. We are therefore not persuaded that the Complainants’ letters dated 5th September 2023 demonstrate evidence of an attempt at IDRM.

41. We have further considered the letter dated 7th September 2023 and we note that the same was written after filing these proceedings and it is not in any event addressed to the Complainants. We further note from the text of the subject letter that it is not responding to the Complainants’ letters dated 5th September 2023, but to communication dated 3rd September 2023. We are therefore not persuaded by the argument advanced by the 4th interested party that the letter dated 7th September 2023 was in response to the Complainants’ letters dated 5th September 2023, and that the same amounted to a resolution of the dispute. Neither are we persuaded that the subject letter emanated from the 4th interested party’s dispute resolution organ, or that the dispute subject hereof had been referred to the 4th interested party’s dispute resolution organ in accordance with the coalition agreement.

42. In Amani National Congress Party v Godfrey Osotsi & another [2021] eKLR, Mbogholi Msagha observed as follows:-‘ …Before I conclude I must observe that judicialization of political disputes has become common place in our jurisdiction. It is highly recommended that all efforts must be applied to ensure that, internal dispute resolution mechanisms address such issues to the satisfaction of the parties such that, recourse to the courts of law is minimized. Alternative disputes resolution may enhance peaceful coexistence. To apply such systems may infuse collegiality in political parties where the players need one another from time to time even after serious fall outs…’

43. We cannot agree more with the positions articulated in the afore-going judicial authorities and we find no reason to depart therefrom. Taking into consideration the totality of the foregoing circumstances, we find that the Complaint is premature and that we have no jurisdiction to hear and determine the same.

44. Having found that we have no jurisdiction, what follows is was enunciated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd: “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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

45. Taking cue from the above decision, we have no option but to down our tools. We will therefore not address our minds to the question of res judicata.

46. As regards costs, whereas costs follow the event, we take into consideration the fact that this Complaint has 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 47. In light of the foregoing, we make the following orders:i.That the Complaint herein be and is hereby struck out.ii.That each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF OCTOBER 2023. DESMA NUNGO - CHAIRPERSONSTEPHEN MUSAU - MEMBERABDIRAHMAN ABDIKADIR - MEMBERMUZNA JIN - MEMBER