[2022] KEPPDT 916 (KLR)

Kirwa v United Democratic Alliance Party & 2 others (Complaint E007 of 2022) [2022] KEPPDT 916 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 916 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E007 of 2022

Stephen Ligunya, Presiding Member, Amina Hashi & Andrew Waruhiu, Members

May 19, 2022

Between

Robert Kipchirchir Kirwa

Complainant

and

United Democratic Alliance Party

1st Respondent

Julius Kipruto

2nd Respondent

Independent Electoral and Boundaries Commission (IEBC)

3rd Respondent

Judgment

Introduction 1. This matter concerns the nomination of the 1st Respondent’s candidate for the Member of County Assembly for Chemundu/Kapngetuny Ward, Nandi County. The party primaries were held on 13th April 2022. The Complainant and the 2nd Respondent were contestants in the said primaries.

2. The Complainant is the incumbent MCA of the ward. The nomination exercise was held on 14th April 2022 whereupon, the Returning Officer declared the 2nd Respondent as the winner. The Complainant was aggrieved by the outcome and challenged the result of the election before the 1st Respondent’s Electoral and Nominations Dispute Committee on 15th April 2022.

3. The 1st Respondent’s Appeals Committee delivered its Judgement on 21st April 2022. In the decision, the Committee annulled the decision of the returning officer, Chesumei Constituency, returning the winner in Chemundu/Kapng'etuny Ward and ordered a fresh nomination in the said polling station. The party later announced vide a Public Notice that it will use other methods allowed by the Party Constitution to identify party nominee. On 29th April 2022, the party then issued the Complainant with the nomination certificate. On 10th May 2022, the party proceeded to award the nomination Certificate to the 2nd Respondent.

4. The Complainant being disenchanted, moved this Tribunal by way of Complaint dated 22nd April 2022, together with an application brought under the cover of a certificate of Urgency.

5. The Complainant disputed the conduct of actions of the party in declaring the 2nd Respondent its nominee and sought that the 1st Respondent uphold the Nomination Certificate already issued to the Complainant on 29th April, 2022.

6. The Tribunal issued the following orders on 11th May 2022 on the Notice of Motion Application dated 11th May 2022 filed under Certificate of Urgency and Notice of Motion Application together with the Supporting Affidavit sworn by the Complainant;1. That the Notice of Motion application dated 11th May 2022 be and is hereby certified urgent for consideration ex-parte in this first instance only.2. That the Complaint and Notice of Motion application dated 11th May 2022 be served upon the Respondents by 8. 00 am on 12th May 2022. 3.That the Respondents to file their responses to the pleadings by close of business on 12th May 2022. 4.That the Complainant to file Further Affidavit if need be together with Written Submissions on entire Complaint by 12noon on 13th May 20225. Thatthe Respondents to file and serve their Written Submissions on entire Complaint by close of business on 13th May 20226. That the Complaint be heard by way of highlighting of written submissions before the Eldoret Bench on 14th May 2022 at 9. 00 am virtually via video link.7. That this being a dispute involving party primaries with strict timelines, all parties to ensure strict observance of the directions herein and the Complaint to proceed for hearing without fail as scheduled based on documentation that will be on record by the stated hearing date.8. That pending inter-partes hearing of the application simultaneously with the Complaint, interim orders are hereby issued restraining the 1st Respondent from submitting the name of the 2nd Respondent to the 3rd Respondent as the 1st Respondent’s nominee for position of Member of County Assembly for Chemundu/Kapng’etuny Ward, in Chemusei Constituency, Nandi County.

7. Two preliminary objections were raised by the 1st and 2nd Respondents’/Applicants both dated and filed on the 12th of May 2022.

8. The Tribunal’s Jurisdiction was called into question as well as the locus standi of the Complainant appearing before the Tribunal.

9. Subsequently both Preliminary objections were heard on the 16th of May 2022 as a preliminary issue for determination.

The 1st Respondent’s Case/submission on the Prelimary Objections 1. The 1st Respondent/Applicant filed a Preliminary objection on points of law to have the Complainant’s claim and Notice of Motion both dated 11th May, 2022 be dismissed with costs on the grounds that the claim as filed is bad in law, misconceived and therefore an abuse of the court process as it offends the provisions of rule 8(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017.

2. The 1st Respondent/Applicant submitted that the Tribunal’s jurisdiction in that regulation provided that disputes must be presented within 14days of the determination of the IDRM. In this case the 1st Respondent stated that the dispute was determined on the 28th April 2022 and this case filed before the tribunal on the 11th May 2022.

3. The 1st Respondent/Applicant categorically states by dint of express provisions of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 under Rule 8(1) the suit as instituted is fatally incompetent and incurably defective in law and as such cannot stand or be ventilated before this Honorable Court as the suit contravenes mandatory provisions of law and hence not tenable in law.

4. Further it is the evidence by the 1st Respondent/Applicant that the letter from the ORPP dated the 10th of May 2022 indicates that the complainant was cleared to vie as an independent candidate on the 25th April 2022. The complaint then by his application withdraw his independent candidature on the 5th of May 2022. Currently the party submitted that the Complainant does not belong to any party. Therefore section 40 of the Political PartiesAct is mute.

5. The 1st Respondent/Applicant relied on their submissions and authorities as filed and urged the Tribunal to down its tools.

The 2nd Respondent’s Case/submission on the Prelimary Objections 1. The 2nd Respondent agreed fully with this submission made by the 1st Respondent on this matter.

2. The 2nd Respondent/Applicant the proceeded to urge his application with support in association by the 1st Respondent. Essentially his entire preliminary objection was premised on section 40 of the Political Parties Act, where the 2nd Respondent/Applicant was of the view that the complainant was not a member of the 1st Respondent.

3. The 2nd Respondent states that he is a member of the 1st respondent and that he contested for, and won, the nominations for the position of Member of County Assembly for Chemundu/ Kapngetuny held on 14th April 2022 and was awarded an Interim Certificate of Nomination.

4. That it was the decision of the Electoral and Nomination Dispute Resolution which heard the case and directed the 1st Repondent’s National Elections Board to conduct a fresh nominations’ exercise for the Polling station Kapkechui Polling Station.

5. It is from the foregoing that the 2nd Respondent posits that the Complainant’s complaint is merely meant to distract the Party and himself, and to mislead the Tribunal into believing that the Party did not comply with the laws and procedures in ultimately awarding him the Nomination Certificate.

6. Having submitted as above, the 2nd Respondent/Applicant further states that the decision by the 1st Respondent that the complaint is aggrieved of, do not in any manner affect him.

7. The 2nd Respondent/Applicant further stated that there the disputes emanating from the party nominations of 14th April 2022 where the appeals from the decisions of the Elections and Nominations Dispute Resolution Committee as per the party’s Constitution lie with the National Executive Committee, this avenue was not explored.

8. The 2nd Respondent reiterates that the Complainant does not qualify for nomination as a Political party flagbearer for the position of Member of County Assembly as he is not a member of any Political Party and that the complaint is incompetent and fatally defective as it does not demonstrate any instance where the Party diverted from its Constitution, the Political Parties laws and the nomination rules. He relied on Section 5 of the Political Parties Act.

9. The 2nd Respondent relied on their submissions and authorities as filed and urged the Tribunal to down its tools.

The Complainant’s Grounds In Opposition/submission To The 1St And 2Nd Respondent’s Prelimary Objections 10. Responding to these two preliminary objections the Complainant/Respondent was of the view that the Regulation 8. 1 and Regulation 8. 2 on limitation of time ought to be read with the Tribunal’s Powers under Regulation 37 that empowers the Tribunal to extend time towards the ends of Justice.

11. The Complainant is the incumbent MCA of the ward where the nomination exercise was held on 14th April 2022 whereupon, the Returning Officer declared the 2nd Respondent as the winner.The Complainant was aggrieved by the outcome and challenged the result of the election before the 1st Respondent’s Electoral and Nominations Dispute Committee on 15th April 2022.

12. The 1st Respondent’s Dispute Committee delivered its Judgement on 21st April 2022. In the decision, the Committee annulled the decision of the returning officer, Chesumei Constituency, returning the winner in Chemundu/Kapng'etuny Ward and ordered a fresh nomination in the said polling station. The party later announced vide a Public Notice that it will use other methods allowed by the Party Constitution to identify party nominee.

13. The Complainant states that on 29th April 2022, the party issued him with the nomination certificate. However, to his shock, the party proceeded to the issue another nomination Certificate to the 2nd Respondent. He says that he got to be informed via a whatsapp message.

14. The Complainant prays for orders that the 1st Respondent uphold the Nomination Certificate already issued to the Complainant on 29th April, 2022, a stay issued on the issuance of the nomination certificate and forwarding the name of the 2nd Respondent to the IEBC by the 1st Respondent pending hearing and determination of this application and suit. Further, in the alternative, the Orders of the United Democratic Alliance Party Electoral and Nominations Dispute Committee dated 21st April 2022 be adhered to and that the Tribunal is properly clothe with jurisdiction as this is a disputes under section 40(1)(fa) of the Political Parties Act.

15. Further the complainant submits that the evidence by the 1st Respondent being the letter from the ORPP clarifying his membership was not sufficient as there was no written notice of his resignation at the political parties.

16. Subsequently the Complainant the delved into this matter and responded that the letter from the ORPP dated the 10th May 2022, is an interference of his record at the ORPP and that had the 1st Respondent asked him he would have informed them of his complaint lodged at the police referenced as OB44 dated the 6th May 2022 on this interference at the ORPP.

17. The Complainant equally stated that this is a dispute arising from party primaries under section 40(1) (fa) thus within the mandate of the Tribunal.

Rejoinder on Points of Law 18. The 1st Respondent/Applicant did not make a rejoinder on points of law. Nonetheless the 2nd Respondent made a rejoinder to the effect that the PPDT has no automatic seizure of jurisdiction and they must be satisfied that the IDRM has been used before assuming Jurisdiction

19. Further Counsel for the 2nd Respondent stated that section 107 and 110 makes reference to the burden of proof shifted to the complainant after the 1st Respondent demonstrated with evidence that he was not a member of the 1st Respondent.

Analysis and Findings 20. Having looked at the parties Applications, replies and submissions on the two (2) preliminary objections filed by the 1st and 2nd Respondent both dated the 12th may 2022 respectively. The following legal question is for determination;i.Whether the Tribunal has Jurisdiction and the Complainant has locus.

Whether the Tribunal has Jurisdiction 21. It is a cliché now to state that a preliminary objection is a point of law which when taken would dispose of the suit. The 1st and Respondent's Preliminary Objection is premised on a challenge of jurisdictions as well as locus thus a preliminary objection in terms of the leading case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. In the celebrated case Law J.A. stated a preliminary objection to be thus: -“So far as I am aware, a preliminary objection consists of a 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 to 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.”

22. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Justice Nyarangi of the Court of Appeal (as he then was) held as follows;“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material 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."

23. This Tribunal derives its jurisdiction from Section 40 of the Political Parties Act No. 11 of 2011 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.

24. The Tribunal wishes to clarify the legal position at the onset that the 2022 in amendments to the Political Parties Act, Amendment 27 saw the deletion of the word “party primaries” immediately section 40(1) (fa) and replaced it with “party nomination”.

25. The Tribunal will address this issue in two-fold. First is the complainant barred by regulation 8. 1 of the Political Parties Regulation’s. We will be brief in addressing this issue by noting that the Tribunal within those regulation being regulation 37, can extend and/or reduce time prescribed for doing any act under these regulations to ensure that the ends of justice are met.

26. On this part we therefore exercise our discretion and concur with the Complainants to this end. Therefore the dispute has been salvaged from the provisions of regulation 8. 1.

27. On the second front is that does this dispute fall within Section 40 of the Political Parties Act to clothe this Tribunal with jurisdiction. Reliance is made to the Supreme Court’s decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Court pronounced itself 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.”

28. In determining Jurisdiction of the Tribunal further, we evaluate if the dispute falls within the provisions of Section 40 and if the claimant showed evidence of an attempted to have the dispute resolved through the political party’s IDRM in accordance with the political Party’s Constitution, then the Tribunal will be clothed with Jurisdiction.

29. In George Okode & Others v Orange Democratic Movement & Others Petition No. 294 of 2011, Majanja J clarified those provisions of Section 40(2) of the Political Parties Act by stating that“The same should be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism.”

30. The Tribunal then turns on whether the complainant is a member of the 1st Respondent and had locus under section 40(1), (a),(b),(c) and (fa) of the aforementioned Act. Locus standi connotes ‘a right to bring action’. The issue of locus standi has been discussed widely within the Kenyan jurisdiction. The Court in the matter of Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR while referring to the matter of Ms. Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 asserted that;“... In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population.”

31. In this case the disputes under section 40(1), (a),(b),(c) of the Political parties Act arise from members of political parties then the use of the IDRM is to be evidenced , indeed there is a decision of the ENDRC of the 1st Respondent.

32. However, the complainant’s rebuttal of the letter from the ORPP in his submission in our view is quite disingenuous in that the OB44 of the 6th May 2022 show a report of a dispute on misuse of social media yet Counsel informs the Tribunal that this OB was a report on the interference of his clients record at the ORPP. The Letter from the ORPP is dates 10th May 2022 and the complainant’s evidence of the OB dated 6th may 2022 have no nexus with his cessation of membership.

33. We find that this letter of the ORPP has the effect of settling the membership debacle with no proper evidence produced in its rebuttal. We therefore find that the complaint was not a member of the 1st Respondent or even an Independent Candidate at the time of lodging this dispute before the Tribunal and as such we lack jurisdiction under section 40(1), (a), (b) (c)and(d) .

34. We would have been tempted to say no more, however the complainant has invited us to look at his locus also from the provisions of 40(1), (fa), “disputes arising from party nominations”. To this end “party” means a political party and such not being a member of the 1st Respondent which “party primaries” is the tribunal meant to interrogate? As such we decline the Complainants invitation on the obviousness in the plain reading of Section 40(1) (fa) as duly amended.

35. The Court in the matter of Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others [2002] eKLR while canvassing the issue of Locus Standi stated thus:“... for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.”

36. The evidence of the 1st Respondent/Applicant and the letter from the ORPP dated 10th May 2022 stating that the Complainant was cleared as an independent candidate on the 25th April 2022 and later revoked by his application. This is our view provides sufficient evidence that the Complainant was no longer a member of the 1st Respondent having been cleared by the Registrar of Political Parties to contest the MCA’s position in Nandi County as an independent candidate.

37. Section 33 of the Political Parties Act (No. 24 of 2011) a person can only qualify to be nominated as an independent candidate for a county election if he does not belong to any political party.in the case Sammy Kilukei & 300 others v Jubilee Party & another [2017] eKLR the Court opined;“Further, the basis upon which one can complain about a decision of a political party and its dispute resolution mechanism is if he is a member of the party. It is on the basis of that membership that he can participate in the nominations called by the party, and, if aggrieved, he can appeal to the Political Parties Disputes Tribunal for a remedy. Once he ceases to be a member of the party, he cannot seek to be nominated, or to be declared a nominee, on the party ticket. Once he ceases to be a member of the party he cannot have the locus to complain about the nominations of the party, and cannot appeal either to the Political Parties Disputes Tribunal or to this court seeking a determination on the nominations.In short, the 2nd appellant did not have the capacity and locus to file this appeal. His appeal is consequently incompetent and this court has no jurisdiction to hear or determine it.”

38. The Tribunal in this instant find that the complainant at the time of lodging this dispute did not have locus to file this case at the PPDT as such the Tribunal has no Jurisdiction, conversely the orders sought at the Tribunal cannot issue against the 1st Respondent due to the evidence of cessation of membership of the Complainant.

39. In Margaret Wanjiru Ireri & 2 Others v Monica Gathoni & 4 Others Nyahururu Election Appeal No.13 of 2018 [2018] eKLR The learned Judge Wendoh .J stated:“Flowing from the above provisions, the Constitution and Legislature set out to enact various laws on resolution of disputes relating to electoral matters and it is incumbent upon the political parties and their members to adhere to those procedures. There is now a host of authorities that have held that when the Constitution or legislature prescribes the manner in which a dispute should be resolved, that procedure should be adhered to. In Speaker of National Assembly v Hon. James Njenga Karume C.A 92/1992 [2008] I KLR 425, the court held“where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of parliament, that procedure should be strictly followed..."

40. Lastly it is not lost that the complainant seem to take issue with the Letter produced by the ORPP and the ORPP’S declaration of his membership status, there is no Appeal from the decision of the ORPP before us as such we say no more.

Delay 41. The Tribunal note that Parties/Counsels lodged a concern, that the Ruling in this matter was being delayed. Note this matter was heard on Saturday the 16th May 2022, they were other matters before this case already heard and awaiting Judgment. It is a Constitutional dictate that “everyone is equally before the law” and more importantly “everyone is to be treated equally before the law”. We find this action unenviable and if it was aimed to hasten the delivery of this ruling then it fell desolately on all fours. This Tribunal’s fidelity to the Constitution and the rule of law is solid.

42. The justice of this case requires us to make the following orders:

Final Orders 43. i.The 1st and 2nd Respondents’/Applicants’ Applications both dated 12th May 2022 are hereby allowed, for avoidance of doubt the Tribunal has no Jurisdiction to hear and determine this complainant.ii.Each party to bear their own costs.Those are the orders of the tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY 2022. HON. LIGUNYA STEPHENPRESIDING MEMBER.........................................HON HASHI AMINAMEMBER.........................................HON ANDREW WARUHIUMEMBER.........................................