[2021] KEPPDT 676 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. E005 OF 2021

HON. KIERU JOHN WAMBUI.......................................................1STCOMPLAINANT

HON. KARIUKI MUCHIRI............................................................2NDCOMPLAINANT

VERSUS

JUBILEEE PARTY...................................................................................... RESPONDENT

AND

RAPHAEL TUJU

SECRETARY GENERAL, JUBILEE PARTY........................1STINTERESTED PARTY

THE COUNTY ASSEMBLY OF NYANDARUA....................2NDINTERESTED PARTY

SPEAKER, COUNTY ASSEMBLY OF NYANDARUA........3RDINTERESTED PARTY

RULING

1. This Complaint was filed together with a Notice of Motion application dated 23rd February 2021 under certificate of urgency. This application sought that this Tribunal issue the following orders:-

a. Spent

b. Spent

c. That a conservatory order be issued staying the decision of the Respondent through the 1stInterested Party to remove the Complainants from the County Assembly Service Board of the 2ndInterested Party pending the hearing and determination of the reference filed herewith.

d. That the costs of the application be provided for.

2. The main ground on which the application rests is that the Complainants membership in 2nd Interested Party’s Service Board had been altered and /or varied in an unprocedural manner.

3. The 1stComplainant herein, John Kieru Wambui swore an affidavit outlining the manner in which the said removal occurred and showing the illegalities that occurred.

4. This Tribunal did, in the first instance at an ex-parte sitting conducted before the Chairperson on 24th February 2021, stay the purported removal pending the inter parte hearing of the application. The said application was, however, amended on 16th March 2021 vide an Amended Notice of Motion Application filed on 16th March 2021.

5. On the 1st day of March 2021, the 3rd Interested Party herein filed another Notice of Motion application under the provisions of Order 51 Rule 15 of the Civil Procedure Rules and all enabling laws seeking to have the orders issued by this Tribunal on the said 24th day of February 2021 set aside, varied and/or discharged.

6. The said 3rd Interested Partys’ application premised on the facts that the due process had followed and subsequent action taken that made the issuance of the orders sought futile. In addition, it was their contention, the Complainants had not explored party resolution processes as anticipated in law. These averments were outlined in the supporting affidavit sworn by one Zachary Mwangi Njeru on 1st March 2021, who described himself as the acting Speaker of Nyandarua County Assembly.

7. In the meantime, a party who described himself as the substantive elected Speaker of the County Assembly of Nyandarua filed an objection claiming that the person who was proceeding as the 3rd Interested Party was not legally recognized as no law provides for an acting Speaker.

8. Meanwhile on 2nd March 2021, the Respondent and 1st Interested Party did through their Advocate on record file a Preliminary Objection on the ground that internal dispute resolution mechanisms [IDRM] as anticipated in law [under the Political Parties Act and the Jubilee Party constitution] had not been exhausted before the Complaint and application herein was filed before this Tribunal.

9. Directions were given that the preliminary objection relating to jurisdiction be heard in priority to all the pending applications referred to above. Accordingly, this matter proceeded for hearing of the subject preliminary objection on 7th April 2021 inter partes.

The Preliminary Objection

10. Mr. Njomo Advocate argued on behalf of the Respondent and 1st Interested Party that the dispute at hand is between members of a political party and a political party and that pursuant to Section 40(2) of the Political Parties Act, the same should have been subjected to IDRM under the party constitution prior to moving this Tribunal. It is the Respondent and 1st Interested Party’s contention that the

Complainants have not demonstrated that they attempted to resolve the dispute within the party and that the doctrine of exhaustion required parties to exhaust available remedies before resorting to court action. Mr. Ngaruiya Advocate associated himself with the position taken by the Respondent and 1st Interested Party.

11. Mr. Mathea Advocate and Mr. Waichungo Advocate both opposed the preliminary objection and maintained that the complaint was properly before the Tribunal. According to Counsel, the Respondent and 1st Interested Party’s actions were outrightly against the law and the dispute could not be subjected to IDRM as IDRM has no jurisdiction to quash the decisions made by the party.

Whether this Tribunal has jurisdiction

12. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v. Karisa Chengo [2017] eKLR, determine 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.”

13. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

14. We note that Section 40 of the Political Parties Act (PPA) provides for the 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 a political party;

(c) disputes between political parties;

(d) disputes between an independent candidate and a political party;

(e) disputes between coalition partners; and

(f) appeals from decisions of the Registrar under this Act;

(g) disputes arising out of party primaries.

15. The Act, further in subsection (2) of section 40, gives a condition for the jurisdiction of the Tribunal with regard to disputes covered in (a), (b), (c), and (e), to have them first subjected to internal political party dispute resolution mechanisms. (emphasis our own).

16. The current dispute is between a member of a political party and a political party, which is covered by Section 40(1)(b) of the PPA. As such, for the Tribunal to assume jurisdiction, there is need for there to have been an internal dispute resolution mechanism, or an attempt at the same.

17. We note that the issue of invoking IDRM within the instant political party is clearly laid out under Article 15 of the party constitution. The Complainants have notdemonstrated 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. Neither is there evidence to demonstrate that efforts to institute IDRM as outlined in the party laws and procedures were frustrated.

18. We have further considered the Complainants’ afore-highlighted responses to the preliminary objection. Taking into account the express provisions of Section 40(2) of the PPA as 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.

19. We are therefore of the considered opinion that due process required that the Complainants first subject the matter to the party to deal with internally before escalating the dispute to the Tribunal. This Tribunal can only assume jurisdiction where it is demonstrated that efforts at invoking IDRM were frustrated and as we have already observed, none has been demonstrated in this case.

20. In the case of Clerk, Nairobi City County Assembly v Speaker Nairobi CityCounty Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] eKLR, the Court stated as follows:-

“…41. The foregoing dispute relating to party nominations arising from decisions by the respective political parties under section 12(3) (c) of the County Governments Act. The proponents of the PO cited several precedents which are unanimous that nominations by political parties are not justiciable and they should be left, in the first instance, to the political parties’ internal dispute resolution mechanisms and the PPDTwere the need to escalate the same arises. In Gabriel Bukachi Chapia Vs ODM & Another (2017)eKLRthe Court of Appeal held that

“In effect the PPDT should not entertain disputes between members of a political party, disputes between a member of a political party and a political party, disputes between political parties and disputes between coalition partners, unless such dispute is in the first instance heard and determined by the internal political party dispute resolution mechanism.”

42. The foregoing judicial precedent binds this court and in my view, it is a good law which encourages alternative dispute resolution mechanisms as provided under Article159 of the Constitution and also the doctrine of exhaustion. Although the dispute herein does not relate to party list for purposes of a general election, it is akin to that because it relates to nomination of party representatives in to the County Assembly ServiceBoard through political parties’ internal processes.

43. In view of the foregoing binding precedent, I am not persuaded by the decision of the House of Lords in Anisminic Limited Vs Foreign Compensation Commission&Another (1969) 2 A.Ccited by the petitioner. Consequently, I down my tools on the second aspect of the petition and strike out the petition in so far as it relates to the reliefs sought for and on behalf of the 3rdinterested party and Hon. Okumu Elias Otieno. The issue of the party nomination is therefore referred to the respective political parties for resolution using the internal dispute resolution mechanisms within a period of 21 days in line with section 4 of the Political Parties Act so that the 2ndrespondent board maybe fully reconstituted…”

21. In the case of Musalia Mudavadi & 4 others v Angela Gathoni Wambura & 2 others [2019] eKLR, the following considerations were made by the High Court:-

“…I must however add that though this court in determining appeals such as the present one must have regard to parliament’s intention in creating the tribunal, the court must also be alive to the fact that there may be situations where political partiesmay for their own reasons refuse to set in motion their IDRM when called upon to do so by aggrieved parties. If the court were to be confronted by such a situation, it would not be powerless and would be in a position to grant the aggrieved party a remedy that would best serve the ends of justice. Each case must however be considered on its own merits…”

22. Taking into consideration the foregoing reasons and the findings in the above cases, and in the absence of any evidence by the Complainants to demonstrate that their attempt to invoke IDRM was frustrated, we find that jurisdiction cannot, at this stage vest in this Tribunal. This Tribunal is not properly seized of jurisdiction and we accordingly uphold the Preliminary Objection. Consequentially this Complaint be and is hereby struck out for want of jurisdiction. As for the costs, we order that each of the parties herein bears their own costs.

It is so ordered.

DATED AT NAIROBI THIS 13TH DAY OF APRIL 2021

DESMA NUNGO - (CHAIRPERSON)

MILLY LWANGA ODONGO - (MEMBER)

PAUL NGOTHO - (MEMBER)

DR. ADELAIDE MBITHI - (MEMBER)