[2025] KEPPDT 4 (KLR)

Lomodo v Vincent & 11 others; Azimio La Umoja One Kenya Coalition (Interested Party) (Complaint E002 (ELD) of 2024) [2025] KEPPDT 4 (KLR) (13 January 2025) (Ruling)

Neutral citation: [2025] KEPPDT 4 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 (ELD) of 2024

D. Nungo, Chair, AA Abdikadir & T. Chepkwony, Members

January 13, 2025

Between

Hon Samuel Lomodo

Complainant

and

Hon Lobwin Vincent

1st Respondent

Hon Francis Ngimusa

2nd Respondent

Hon Sarah Abdi

3rd Respondent

Hon Mary Arupe

4th Respondent

Hon Rebecca Epae

5th Respondent

Hon. Naoyakare Aule

6th Respondent

Hon Lopayo Lawrence

7th Respondent

Hon Lydiah Ejore

8th Respondent

Hon Christopher Kobia

9th Respondent

Hon Loteder Alphonse

10th Respondent

Hon Emoni Eliud

11th Respondent

Hon Willy Nalimo

12th Respondent

and

Azimio La Umoja One Kenya Coalition

Interested Party

Ruling

Introduction 1. Vide their Preliminary Objection dated 15th November 2024 (hereinafter referred to as the PO), the Respondents have objected to the Jurisdiction of this Tribunal to hear and determine the instant Complaint and they pray that the same be struck out in its entirety on the following grounds: -i.That this Honorable Tribunal Lacks the Jurisdiction to entertain the Complaint filed herein by the Complainant in the first instance by dint of the provisions of section 40(2) of the Political Parties Act Chapter 7D Laws of Kenya.ii.That the Complainant’s instant Complaint has been placed before this Honourable Tribunal prematurely and without due regard to the procedural edicts under the Political Parties Act Chapter 7D Laws of Kenya.iii.That the nature the pleadings and orders prayed as drafted establishes no cause of action and are incapable of being granted by this Honorable Tribunal as the pleadings have been overtaken by the events emanating from the Speaker and the Turkana County Assembly and thus renders them incapable of implementation.iv.That the lack of joinder of Speaker and Turkana County Assembly who have already made declarations on the actions of the Respondents diminishes the cause of action of the Complaint.

2. Pursuant to the directions of this Tribunal, parties filed their respective written submissions on the PO. The PO was subsequently heard on 9th December 2024 by way of highlighting of the parties’ respective written submissions.

3. At the hearing of the PO, the Complainant was represented by Ms. Karanja Advocate, and the Respondents were represented by Mr. Alphonce Barrack Advocate.

The Respondents’ Submissions on the Preliminary Objection (PO) 4. The Respondents relied on their Written Submissions dated 15th November 2024 where they have identified two (2) key issues for determination by the Tribunal, firstly, whether the Honorable Tribunal has jurisdiction to fully determine this matter at this stage, and secondly, whether the pleadings and the orders as prayed raise a cause of action which is capable of implementation.

5. On the first issue, the Respondents submit that the Complainant has acted in breach of the provisions of Section 40(2) of the Political Parties Act 2011 (the PPA) as neither the Complainant nor the Interested Party have demonstrated an attempt to resolve the instant dispute using the political party’s internal dispute resolution mechanisms (IDRM). They argue that the only document that has been presented before this Tribunal is a letter addressed to the Speaker of the County Assembly of Turkana and not to any member of the coalition. Additionally, they submit that the purported letter from the coalition dated 9th October 2024 predates the events of the removal of the Complainant who was removed from office on the 16th October 2024. According to them, the subject letter cannot therefore be regarded as an attempt at IDRM as it is directed to the Speaker of the County Assembly and not the coalition members, and further, it does not even talk about any dispute resolution process being undertaken by the coalition.

6. The Respondents submitted that it is settled that where a statute expressly provides for a dispute resolution mechanism, it would be impatient for a party to by-pass the process as provided for in the act that governs the parties’ actions. In this regard, they relied on how the Courts have directed themselves on the issue of jurisdiction where the statute specifically provides for exhaustion of other dispute resolution mechanisms, as was in the case of Secretary, County Public Service Board & Another -vs- Hulbhai Gedi Abdille (2017) eKLR, and also in the case of James Akelerio alias Muguu & Another v Moses Kasaine Lenolkilal & 3 others ( 2014) eKLR.

7. On the second issue, the Respondents submit that it is a laid down custom of practice that the Courts and Tribunals will grant orders that are capable of being implemented. According to them, the orders as prayed for by the Complainant are already spent as the decision by the Respondents had already been adopted by the County Assembly through the communication by the Speaker under Notice No. 12 of 2024 dated 29th October 2024. That the new elected officials have taken office and are ongoing with their duties and as such, the orders as issued have already been overtaken by events and cannot be granted. They relied on the decision of Lady Justice Janet Mulwa (as she then was), in Naomi Lekaikum & 9 others v Malson Leshoomo & 9 Others (Civil Case 64 of 2014) [2015] KEHC 1422 (KLR) (9 November 2015).

The Complainant’s Submissions on the PO 8. In response to the PO, the Complainant relied on his Affidavit sworn on 21st November 2024 and his Written Submissions dated 22nd November 2024.

9. Vide his Affidavit, the Complainant avers that prior to the institution of this Complaint, his Advocate on record wrote a letter to the Secretary General of the Interested Party asking him to refer the instant dispute to IDRM. He avers that he personally took the letter to the Interested Party but he was advised to take it to the Secretary General of the Interested Party who is also the Minority Leader of the National Assembly. That the letter was accordingly received, signed and stamped. He therefore submits that the party did not activate its IDRM despite his letter, and that this Complaint is therefore not premature.

10. In his Written Submissions, the Complainant has highlighted two issues for determination, firstly, whether this Tribunal has Jurisdiction to hear and determine the Complaint, and secondly, whether the PO has merit.

11. On the question of jurisdiction, the Complainant referred to the requirement of an attempt at IDRM as provided for under Section 40(2) of the PPA and submitted that he made attempts to invoke IDRM as evidenced by the letters dated 9th October 2024 and a further letter dated 18th October 2024 addressed to the Secretary General of the Interested Party. He referred to the Court of Appeal case of Samuel Kalii Kiminza vs. Jubilee Party & Anor (2017)eKLR and submitted that where a letter is sent, as was in this case where according to him the letter invoking IDRM was received by the Interested Party, the least that the party could have done was to respond to the letter.Having failed to do so, their submission is that as was held in the said Court of Appeal Case, this Tribunal should find that this Tribunal can assume jurisdiction and that the Complainant was therefore entitled to approach the Tribunal. The Complainant also relied on the case of Geoffrey Muthinja Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others (2015) eKLR.

12. As regards the second question, the Complainant referred to the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Limited (1969) EA 696 and submitted that the jurisdiction of this Tribunal as defined under Section 40 of the PPA was not a pure point of law since the party to a dispute needs to adduce evidence of an attempt at IDRM, and that adducing such evidence of an attempt at IDRM is an issue of fact which can only be ascertained by giving evidence in the main trial.

13. As regards the Respondents’ objection to jurisdiction on the grounds that Complaint is premature and that there has been no regard to procedural edicts under the PPA, the Complainant submits that the stated grounds of objection are issues of fact which can only be ascertained after the parties tender evidence. He similarly submitted that questions revolving around the cause of action in this case and the lack of joinder of Speaker Turkana County Assembly are factual points that can only be ascertained after tendering evidence in the main trial. He in addition relied on the cases of Agnes Mukami & 5 Others vs. Ngewahi & Company (2005) eKLR, and Attorney General of the Republic of Kenya vs. Independent Medical Legal Unit. His prayer is for dismissal of the PO.

Analysis and Determination. 14. Flowing from the parties’ submissions on the POs, we have identified the following issues for determination: -i.Whether the Preliminary Objection is Proper?ii.Whether the Tribunal has Jurisdiction to hear and determine this Complaint?iii.What are the appropriate reliefs to grant?

Whether the Preliminary Objection is Proper? 15. As we have already highlighted above, the Complainant has relied on the case of Mukisa Biscuits Manufacturing Company limited v West End Distributors Limited [1969] EA 696 and argued that the PO is not proper as it is based on facts that require ascertainment.

16. A preliminary objection was defined in the case of Mukisa Biscuits Manufacturing Company limited v West End Distributors Limited [1969] EA 696 as:“... 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… 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’.”

17. In essence, a PO 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. The case gives examples of PO as objection to jurisdiction of court, plea of limitation, amongst others. The PO must be argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained. This position has been fortified in numerous judicial authorities including the case of Oraro vs. Mbaja (2005) KLR 141 and County Government of Migori vs INB Management Consulting Ltd [2019] eKLR.

18. Applying the above definition of PO to this case, it is not in dispute that the PO filed herein has raised objection to our jurisdiction to hear and determine this Complaint. An objection to jurisdiction has been given as an example of a PO in the Mukisa Biscuit Case (supra). Section 40 (2) of the PPA provides that the Tribunal shall not hear or determine a dispute under Section 40(1) (a), (b), (c), (e) or (fa) of the PPA unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

19. In essence, in instances of objection to jurisdiction brought pursuant to Section 40(2) of the PPA, and noting that the section requires evidence of an attempt at IDRM, it would be inescapable for this Tribunal to consider evidence in arriving at a determination whether or not there was IDRM. The Complainant has already submitted and referred the Tribunal to the documents he deems as evidence of an attempt at IDRM. Section 40(2) of the PPA already invites this Tribunal to consider the same in considering the question of jurisdiction.

20. In light of the foregoing, and having considered the circumstances of this case, we are not persuaded by the Complainant’s argument that the PO before us is not proper noting that it touches on the question of our jurisdiction. The PO essentially revolves around the question of engaging the coalition party’s IDRM – a matter of law as provided for by section 40(2) of the PPA.

Whether the Tribunal has Jurisdiction to hear and determine this Complaint? 21. 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.”

22. 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

23. 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. There is no dispute that the dispute subject hereof is one amongst members of the Azimio La Umoja Coalition Political Party, the Interested Party herein.

24. What amounts to an attempt at IDRM and the exceptions thereto in the context of a coalition political party has not been without litigation before this Tribunal and Courts. This Tribunal has considered an attempt at IDRM in the context of a coalition party and issued guidelines in Abubakar Mohamed Khalif vs Mohamed Abdi Farah & 7 Others (Nrb A PPDT Complaint No. E002 of 2024) wherein the Tribunal held that:-“68. We have severally stated that IDRM should not be regarded as a mere formality, or a mere stepping stone to the Tribunal. Political parties including coalition parties are key stakeholders for any country’s democratic development and this tribunal and courts have rendered numerous decisions that breathe life to IDRM for political parties and coalitions with a view to strengthening and empowering them to efficiently and effectively manage inter and intra party conflicts whilst conscious of their unique circumstances. In demonstrating evidence of bona fides attempt at IDRM in the context of a coalition, some of the factors that should be taken into consideration include but are not limited to the following: -i.What are the IDRM mechanisms provided for in the constitutive document of the coalition or the coalition agreement and what jurisdiction do they have?ii.What is the nature of the dispute that is being subjected to IDRM and whether it has been directed to the appropriate IDRM mechanism that the same should be referred to as guided by the constitutive document of the coalition or the coalition agreement?iii.Is the appropriate IDRM mechanism that the dispute ought to be referred to under the constitutive document of the coalition or the coalition agreement available? iv. If the same is available; is it inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute?v.Has reasonable time been afforded to the coalition to respond, constitute or activate the IDRM organ and deal or determine the dispute?v.Has due consideration been given to the urgency and any public interest in the subject matter of the dispute?v.Is there any other alternative mode of dispute resolution that is available within the constitutive document of the coalition or the coalition agreement in instances where a particular IDRM mechanism is unavailable, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute?v.Is the IDRM instituted by a person with locus to refer the dispute to the selected IDRM mechanism in consonance with the terms of the constitutive document of the coalition or the coalition agreement? ix. Have all parties who stand and/or who are likely to be affected by the IDRM process informed and/or aware of the same?x.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered.

69. Based on the foregoing, we find that there was no honest, genuine and/or bona fides attempt to have the dispute subjected to the 1st Interested Party’s IDRM in accordance with the Coalition Agreement. We are also not persuaded that any of the exceptions to IDRM apply in the circumstances of this case. We accordingly hold that we do not have jurisdiction to hear and determine this Complaint…”

25. 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 Complainant relied on a letter dated 9th October 2024, and a further letter dated 18th November 2024 as evidence of an attempt at IDRM. As correctly observed by the Respondents’ Counsel, the letter dated 9th October 2024 pre-dates the cause of action herein which arose on 16th October 2024. The same cannot therefore be regarded as evidence of an attempt to resolve a dispute which crystallized on 16th October 2024.

26. As regards the letter dated 18th November 2024, we make the following observations. Firstly, it is our observation that the Complainant’s Counsel is the author of the subject letter, and he has written the same on behalf of the Complainant herein. In other words, the Complainant and his Counsel elected to write directly to the Interested Party. This Tribunal takes judicial notice that the constituent parties to the Interested Party, being a coalition political party, would be political parties and not individual persons such as the Complainant or any other natural person.

27. It therefore goes without saying that the Complainant is not the proper person to invoke the IDRM mechanisms under the coalition agreement. The proper person should be the Complainant’s political party on behalf of the Complainant. Indeed in Abubakar Mohamed Khalif & Abdi Ibrahim Daar vs. Mohammed Abdi Farah & 5 Others (Nrb A PPDT Complaint No. E017 of 2023), we stated; -“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….”

28. And 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…’

29. Similarly, in Abubakar Mohamed Khalif vs Mohamed Abdi Farah & 7 Others (Nrb A PPDT Complaint No. E002 of 2024 (Supra), the Tribunal posed this as a question for consideration, that is, whether “the IDRM is instituted by a person with locus to refer the dispute to the selected IDRM mechanism in consonance with the terms of the constitutive document of the coalition or the coalition agreement”

30. Secondly, it is our further observation that the said letter dated 18th November 2024 was received by the Leader of Minority Party Office on 18th November 2024. There is no evidence of receipt of the same by the Interested Party. In as much as the Claimant would want us to believe that the Secretary General of the Interested Party is also the Leader of Minority, we find difficulty in relying on a letter expressly received by the Leader of Minority Office, and not the Interested Party, as a basis for demonstrating an attempt at IDRM within the Interested Party. The Interested Party and the Leader of Minority Party Office are two different entities performing different functions and it would be improper to bind the Interested Party with a letter that was not received by it but by a different office.

31. Thirdly, we note that the Complainant relied on the Court of Appeal case of Samuel Kalii Kiminza vs. Jubilee Party (Supra) and submitted that given that the party did not respond to the letter dated 18th November 2024, this Tribunal can assume jurisdiction. However, as we have already observed, unlike in the stated Samuel Kalii Kiminza vs. Jubilee Party Case (Supra) where the letter evidencing an attempt at IDRM was received by the party, we have already observed that in the instant case, the letter relied on dated 18th November 2024 was not served upon and/or received by the Interested Party. The Samuel Kalii Kiminza vs. Jubilee Party Case (Supra) is therefore distinguishable from this case and we will therefore not rely on the same.

32. In light of our foregoing observations, it is our finding that the Complainant has failed to adduce evidence of an honest attempt at IDRM in accordance with the coalition agreement. Neither has he demonstrated that any of the exceptions to IDRM apply in this case.

33. 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.

34. And 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…’

35. 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.

36. Having found that we have no jurisdiction, what follows is 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.”

37. And also in the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR where the Court stated as follows:-“It is a truism, jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction? 2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

38. Taking cue from the above decisions, we have no option but to strike out this Complaint as we down our tools.

39. 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 party cohesion, we direct that each party bears its own costs.

Disposition 40. In light of the foregoing, we make the following orders:i.The Preliminary Objection dated 15th November 2024 be and is hereby upheld.ii.That the Complaint herein be and is hereby struck out.iii.That each party to bear its own costs.

DATED AND DELIVERED (VIRTUALLY) AT NAIROBI THIS 13TH DAY OF JANUARY 2025HON. DESMA NUNGO, HSC - (CHAIRPERSON)HON. ABDIRAHMAN ABDIKADIR - (MEMBER)HON. THERESA CHEPKWONY -(MEMBER)