[2023] KEPPDT 388 (KLR)

Marionga v Kenya National Congress Party & 2 others (Tribunal Case E037 (KSM) of 2022) [2023] KEPPDT 388 (KLR) (16 August 2023) (Judgment)

Neutral citation: [2023] KEPPDT 388 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E037 (KSM) of 2022

W Mutubwa, Vice Chair, F Saman, S Walubengo & T. Chepkwony, Members

August 16, 2023

Between

Josephine Nyabonyi Marionga

Complainant

and

Kenya National Congress Party

1st Respondent

Secretary General, Kenya National Congress Party

2nd Respondent

Lilian Anyango Gor

3rd Respondent

Judgment

Background 1. This matter concerns the part list for the Kenya National Congress Party’s Nominees for the position of Gender Special Seats Nominees for the County Assembly (for gender top up) Kisii County. The Complainant claims to have been assured of the second position in the aforementioned Party List. Later, on the 27th July 2022, the 1st and 2nd Respondents placed the 3rd Respondent in the second position on the Party List. Aggrieved by that decision, the Complainant filed this matter.

2. The Complainant claims to have written a Demand Letter dated 28th July 2022 to 1st and 2nd Respondents expressing her reservations with regard to her position on the Party List, and further alleges that her letter is yet to receive a response.

3. The Complainant filed a Complaint dated 4th August 2022, Affidavits and Witness Statement of even date. The Respondents, in response, filed a Replying Affidavit dated 13th August 2022, Notice of Preliminary Objection, List of Authorities all dated 13th August 2022.

4. The matter came up for hearing on 13th August 2022, when the matter was heard virtually. The Complainant was represented by Mr. Bonuke who was holding brief for Mr. Ouma. Miss Moguche and Mr. Ochoki appeared for the 1st, 2nd and 3rd Respondents.

5. The Complainant had the following prayers:I.A Declaration that the decision by the 1st and 2nd Respondent to place the 3rd Respondent in the second position without having consensus between the candidates is a violation of the Complainant’s rights under Articles 27, 38 and 47 of the Constitution of Kenya 2010, thus null and void.II.An Order instructing the 1st and 2nd Respondents to compel the Independent Electoral and Boundary Commission (IEBC) to de gazette and remove the 3rd Respondent from the 2nd Position as a nominee in the party list gazetted on 27th July 2022 and substitute the same with the Complainant herein putting her in the second position of the party nomination list of Gender Special Seats Nominees to the County Assembly (for gender top up), Kisii County.III.An Order directing the Independent Electoral and Boundary Commission (IEBC) to de gazette the 3rd Respondent as the second position holder in the party nomination list pending the hearing and determination of the complaint filed herewith.IV.An Order directing the Complainant to be substituted as the holder of the second position of the party list in issue.V.Costs of the Complaint be borne by the Respondents in any event.

The Complainant’s Case 6. Counsel for the Complainant began his submissions stating that she had been placed in the Nomination List for the County Assembly, under the Gender Top Up by the 1st Respondent, at Number Fourteen (14) of the list instead of number 2.

7. It was Counsel’s submission that the Complainant was a Party Member, and so was the 3rd Respondent, and that after internal deliberations she was assured the 2nd Position on the said Party List, by the 1st and 2nd Respondent. Later, on the 27th June 2022, the Complainant was surprised to learn that the 3rd Respondent was listed on the said party list at position 2. It was Counsel’s submission that this change was made without consensus and was against the initial communication that was made to the Complainant.

8. Furthermore, it is the Complainant’s submission that her Constitutional Rights were violated by the Respondents. Specifically, Article 27, Article 38 and Article 48 of the Constitution of Kenya, by selectively nominating the 3rd Respondent for the 2nd Position without consensus or communication to Party Members. Moreover, the Complaint claims to have drafted a demand letter dated 28th July 2022 expressing her concerns to the 1st and 2nd Respondents and that despite such demand being made no action was taken. She also faulted the Respondents for failing to provide the criteria used in selecting the 3rd Respondent as the 2nd Nominee in the Party List.

9. Additionally, it was Counsel’s submission that the Complainant exhausted Internal Dispute Resolution Mechanisms (IDRMs) as required by section 40 (2) of the Political Partiers Act, 2011(as amended in 2022) by virtue of the demand letter dated 28th July 2022. However, Counsel was not able to confirm whether the letter was actually delivered or served upon the Respondents. He urged us to dismiss the Preliminary Objection and allow the Complaint as prayed with costs.

1st, 2nd and 3rd Respondent’s Case 10. Mr. Ochoki for the Respondents began his submissions by stating that the present claim offends Section 40 (2) of the Political Parties Act, which states that unless evidence is adduced of an attempt to introduce a matter to the IDRM, the Political Parties Dispute Tribunal would not have the requisite jurisdiction to hear and determine this matter. Additionally, it was Counsel’s submission that the demand letter dated 28th July 2022 drafted by the Complainant was never received, and that even if it was received, the 2nd Respondent has Appeal Organs as well as Nomination Rules (Specifically Rule 32) which provide that any member aggrieved needs to lodge an Appeal. Moreover, it was Counsel’s submission that an appeal may be lodged without undue formalities and that it had not been shown by the Complainant that such an appeal was lodged.

11. Counsel Ochoki further elucidated that the Complainant’s entire Complaint, was based on discussions and deliberations in which she was allegedly promised the 2nd position on the Nomination List by the 1st and 2nd Respondents. Despite that being the case, it is the Respondents’ submission that the Complainant did not provide sufficient evidence proving that such discussions occurred.

12. Moreover, it was also Counsel’s submission that the Complainant did not tender any evidence proving that she is a Youth, a Person with Disability or an Ethnic Minority.

13. It was therefore his prayer that the Complaint should fail and the Preliminary Objection be allowed with costs.

14. Miss Moguche began her submissions by admitting to the fact that the 1st Respondent advertised for various positions for nomination to the party and that the Complainant’s Application was received by the Party after the deadline. Despite the 1st Respondent accepting the late Application, no evidence was tendered showing that she was promised the position she alleges.

15. It was also her submission that the nomination of the 3rd Respondent to Position 2 on the Party List was based on the Constitutional imperative requiring representation of diversity for the People of Kenya, and that the 3rd Respondent is a resident of Kisii but from the Luo ethnic community and hence a minority in Kisii County.

16. It was therefore Counsel’s prayer that the Complaint be dismissed and the Preliminary Objection be allowed.

Complainant’s Rejoinder 17. Mr .Bonuke, in rejoinder, stated that this Tribunal was seized with the Jurisdiction to hear and determine this matter since the Complainant served a demand letter to the 1st and 2nd Respondent. Furthermore, it was his submission that the Respondents intentionally refused to respond to the demand; and that consequently, the Demand Letter should be held as prima facie evidence of an attempt at IDRM as required by Section 40 (2) of the Political Parties Act.

18. It was his prayer that the Complaint be allowed and the orders sought be awarded.

Tribunal Analysis and Findings 19. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has the jurisdiction to hear and determine this matter?ii.Whether the Application has Merit?iii.Who bears the costs of this case?

20. Of course, our consideration and position on the second issue will depend on our conclusions on the first. Naturally, we will start with the first question as framed above.

Whether this Tribunal has the jurisdiction to hear and determine this matter? 21. The Preliminary Objection is fairly straight forward. That we lack jurisdiction to deal with the Complainant’s Application since, according to the Respondents, the Complainant has not met the requirement of attempting IDRM with the Party prior to instituting this suit as required by Section 40 (2) of the Political Parties Act, as read together with the Kenya National Congress Party Constitution, and the KNC Nomination Rules.

22. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors Ltd (1969) EA 696, where it was held that:“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 had to be ascertained or if what is sought is the exercise of judicial discretion.”

23. The issue of jurisdiction is key as it is everything. In R v. Karisa Chengo [2017] eKLR, the court determined that;“By jurisdiction is meant the authority which a Court has to decide matters that arelitigated 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.”

24. 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.

25. In Agnes Mukami and 5 Others Vs Ngewahi And Company (2005) eKLR the court stated that“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

26. A reading of Section 40 of the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that:40. (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; andf.appeals from decisions of the Registrar under this Act.(2)Notwithstanding sub section (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”

27. From a reading of the above sections of the law as well as the cited authorities and the evidence adduced it is clear that the dispute at hand being a dispute between a member of a Political Party and a Political Party falls within the definition set out in Section 40(1) (b) of the Political Parties Act. The issue at hand is whether this Tribunal has jurisdiction to entertain this matter in light of the requirements of section 40 (2) afore-quoted. t

28. The Complainant alleges to have attempted IDRM by virtue of a demand letter dated 28th July 2022, to the 1st Respondent. However, the Respondents herein deny receiving the said letter. We note that the letter exhibited is neither acknowledged as receipt nor evidence of its sending given. This effectively shifts the Burden of Proof to the Complainant on the issue of service.

29. It is our finding that no proof of service whatsoever was produced by the Complainant. We therefore find that the Complainant herein has failed to establish that service was properly affected on the 1st Respondent at all. She has, therefore, not sufficiently proved that she attempted to resolve this matter through IDRM before approaching us. Consequently, it is our determination that the evidence tendered is insufficient to discharge the burden of proof. We therefore find that this honorable tribunal lacks the jurisdiction to hear and determine this matter, and that the requirements of the provisions of Section 40 (2) of the Political Parties Act have not been satisfied. Having determined that we lack jurisdiction, we down our tools and need not go into the substantive merits of the case.

30. We, therefore, uphold the Preliminary Objection and strike out the complaint.

Who bears the costs of this matter? 31. Ordinarily, costs follow the event. However, in the circumstances of this case the contestants are members of the same political party family. We also want to encourage harmony and democratization of political parties. We therefore make no orders as to costs.

Disposition 32. In the upshot we make the following Orders:i.We uphold the Preliminary Objection and strike out the complaint.ii.Each party shall bear its own costs.

33. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 16THDAY OF AUGUST 2022HON. DR. WILFRED MUTUBWA OGW C. ARB -VICE CHAIRPERSON – PRESIDINGHON. FATUMA ALI- MEMBERHON. WALUBENGO SIFUNA - MEMBERHON. THERESA CHEPKWONY-MEMBER