[2024] KEPPDT 499 (KLR)

Michael v National Rainbow Coalition – Kenya; Kile, Deputy National Chairperson, Narc Kenya & another (Interested Parties) (Complaint E024 (NRB 'A') of 2023) [2024] KEPPDT 499 (KLR) (13 February 2024) (Judgment)

Neutral citation: [2024] KEPPDT 499 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E024 (NRB 'A') of 2023

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

February 13, 2024

Between

Orwa Michael

Complainant

and

National Rainbow Coalition – Kenya

Respondent

and

Kabala Kile, Deputy National Chairperson, Narc Kenya

Interested Party

National Chairperson, Narc Kenya

Interested Party

Judgment

1. Vide a Complaint dated 15th November, 2023, the Complainant seeks the followingorders:-a.A declaration that the so-called Special National Executive Committee is an alien entity not recognized as an organ of the Respondent.b.A declaration that the Respondent has no authority or power under the Respondent’s Constitution to suspend any member or elected official of the Respondent before a decision to suspend or dismiss such member or elected official is made by the National Executive Committee following a disciplinary process.c.A declaration that the Respondent and/or any of its officials or members do not have the authority or power under the Respondent’s Constitution to declare a vacancy in the Office of Secretary General of the Respondent or in any other elected office of the Respondent before a final decision to dismiss the holder of such office is made by the National Executive Committee following a disciplinary process and after such decision is ratified by the National Governing Council.d.A declaration that the Respondent’s action of purporting to suspend the Complainant before a disciplinary process, being the Respondent’s internal dispute resolution mechanism, is undertaken and concluded, violates the Respondent’s Constitution and is therefore null and void.e.A declaration that the Respondent’s action through the 2nd Interested party of declaring a vacancy in the Office of Secretary General before a final decision to dismiss the Complainant is made by the National Executive Committee following a disciplinary process and after such decision is ratified by the National Governing Council violates the Respondent’s Constitution and is therefore null and void.f.A declaration that the Respondent’s action of initiating the process of removing the Complainant as signatory to the Respondent’s bank and investment accounts before a final decision to dismiss the Complainant is made by the National Executive Committee following a disciplinary process and after such decision is ratified by the National Governing Council violates the Respondent’s Constitution and is therefore null and void.g.A declaration that the Respondent’s action of initiating the process of removing the Complainant from the records of the Respondent’s partners and of government agencies before a final decision to dismiss the Complainant is made by the National Governing Committee following a disciplinary process and after such decision is ratified by the National Governing Council violates the Respondent’s Constitution and therefore null and void.h.A declaration that the entire process of suspending the Complainant from his position as Secretary General of the Respondent before a decision to dismiss the Complainant is made by the National Executive Committee following a disciplinary process is null and void as it violates the Complainant’s political rights as enshrined in Article 38 of the Constitution of Kenya 2010, right to fair hearing as enshrined in Article 50 of the Constitution of Kenya 2010, and right to fair administrative action as enshrined in Article 47 of the Constitution of Kenya 2010, and also violates the Respondent’s Constitution.i.An order of injunction restraining the Respondent from implementing the suspension of the Complainant from the position of Secretary General of the Respondent pending the outcome of any disciplinary process by the Respondent against the Complainant.j.An order of injunction restraining the Respondent from suspending the Complainant from the position of Secretary General of the Respondent pending the outcome of any disciplinary process by the Respondent against the Complainant.k.An order of injunction restraining the Respondent from causing the removal of the Complainant as signatory to the Respondent’s bank and investments accounts unless the Complainant is lawfully removed from the office.l.An order of injunction restraining the Respondent from causing the removal of the Complainant’s name as the Secretary General of the Respondent from the records of the Respondent’s partners and of the government agencies including the Office of Registrar of Political Parties unless the Complainant is lawfully removed from office.m.An order directing the Respondent not to interfere with the Complainant’s continued performance of his duties as Secretary General of the Respondent unless lawfully removed from office.n.Costs and interest of this Complaint.

2. Accompanying the Complaint, the Complainant filed a Notice of Motion Application under Certificate of Urgency, Affidavit in support of Application and Complaint, and Complainant’s Witness Statement, all dated 15th November, 2023. The Complainant also filed a Supplementary Affidavit dated 30th November 2023, and another Notice of Motion application together with its Supporting Affidavit both dated 8th December 2023, amongst other documents in support of the Complaint and the applications.

3. The Respondent filed Replying affidavits sworn by the 1st and 2nd Interested Parties and one Ali Dubow Ogle on 26th November, 2023, and other Affidavits sworn on 15th December, 2023. The Respondent and Interested Parties also filed a Preliminary Objection and Grounds of Opposition to the Contempt Application dated 15thDecember, 2023.

4. Parties were directed to file their written submissions and argue the Complaint, all the Applications and Preliminary Objection together, in the interest of an expeditious disposal of the matter within the strict timelines prescribed by statute.

5. The Complainant filed Written Submissions dated 27th December, 2023, and the Respondent and Interested Parties filed their Written Submissions dated 17th January, 2024.

6. Parties highlighted their respective submissions on 23rd January 2024 when the Complaint came up for hearing before the tribunal. The Complainant was represented by Dr. Owiso Advocate, and the Respondent and Interested Parties were represented by Mr. C.N. Kihara Advocate.

The Complainant’s Case. 7. By letter dated 19th October, 2023 the Respondent through an entity called the Special National Executive Committee directed the Complainant to show cause why disciplinary action should not be taken against him for not complying with decisions of the National Executive Committee.

8. On 26th October, 2023 the 1st Interested Party convened a meeting of the Special National Executive Committee during which meeting the Respondent was supposed to present his submissions in response to the letter to show cause. However, the Complainant was not allowed to attend the said meeting.

9. That during the meeting of 26th October, 2023, the 1st Interested Party directed the Complainant to submit his response to the show cause letter to the National Executive Director at a later date.

10. That on the same day, the Special National Executive Committee resolved to suspend the Complainant from his position as the duly elected Secretary General of the Respondent pending disciplinary action. This decision was communicated through a letter dated 27th October, 2023, and the said letter also gave the Complainant 7 days to appeal this decision.

11. That the Complainant responded to this letter seeking an extension of time to file an appeal as well as requesting for certain documents.

12. The Complainant has in addition filed an application for contempt against the Respondents and Interested Parties claiming that they have disobeyed the orders that were issued by this Tribunal on 17th November 2023. The particulars of disobedience are as stated in the subject application and affidavits on record.

The Respondent’s and Interested Parties’ Case 13. The Respondent and Interested Parties argue that they have presented documentary evidence to establish that the Complainant was subjected to a disciplinary process that adhered to the requisite rules in the Party Constitution, and the principles of Natural Justice as is envisaged in the Country’s Constitution, 2010.

14. The Respondent avers that there was no reply on the Show Cause letter and the suspension of the Complainant was done pending a disciplinary process. It was the Complainant who ought to have triggered an effective due process by first lodging a formal complaint against the 2nd Interested Party and form the basis of an internal dispute resolution process or a disciplinary process as required by Article 13(vii) of the Party Constitution. The original sin was committed by the Complainant.

15. Noting the Complainant is a Senior Official of the Respondent, the Complainant ought to have complied with the Party procedures by formally lodging an official complaint against the 2nd Interested Party as per 1st September 2023 NEC meeting, appear before the Special NEC meeting and respond to the Show Cause letter. These were the avenues and opportunities that granted the Complainant due process. It is therefore his failure to abide by these opportunities that led to the series of follow up actions by the 2nd Interested Party.

16. That for a Senior Official of the Interested Party to make allegations in a NEC meeting, fail to lodge a formal complaint in support of his allegations, and fail to appear before a Special Committee of the NEC and respond to a Show Cause letter, the Interested Party had to take action. As per the Interested Party Constitution, suspension of a member ought to be ratified by the National Governing Council and this has not happened.

17. The Respondents have not only raised a preliminary objection to the contempt application filed by the Complainant but further opposed the same substantively as per their affidavits and grounds of opposition on record.

Analysis and Determination 18. Flowing from the parties’ pleadings and submissions, we have isolated the following key issues for determination: -i.Whether the Complaint is premature/Whether this Tribunal has jurisdiction to hear and determine this Complaint?ii.Whether the Preliminary Objection filed herein in respect to the ContemptApplication is merited?iii.Whether the Respondent and Interested Parties acted in Contempt of thisTribunal’s Orders?iv.Whether the Complainant was suspended in accordance with the law?Whether the Complaint is premature/Whether this Tribunal has Jurisdiction to hear and determine this Complaint?

19. Whereas parties did not frame this issue as one for determination, it is inescapable for this tribunal to consider and make a determination thereon, noting that it arose from parties’ rival pleadings (as evidenced by affidavits on record).

20. The Complainant, Respondent and Interested Parties all alluded to the fact that the Complainant was suspended pending disciplinary action against him. The Respondent and Interested parties therefore regard the Complaint as premature as disciplinary action is still pending, and in any event, the Complainant did not pursue any appeal against his suspension in accordance with the party’s IDRM. The Complainant on the other hand maintains that his suspension pending disciplinary action was unlawful and that he made an attempt to appeal against it but the party did not respond thus frustrating his efforts at attempting IDRM.

21. Needless to note, the foregoing rival pleadings and submissions touch on the question whether this tribunal has jurisdiction to hear and determine this dispute. The definition and practical implications of jurisdiction were discussed in the case ofPhoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR, where the court held:“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?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 nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

22. The source and scope of jurisdiction has also been effectively pronounced in the landmark Supreme Court case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the judges held that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.”

23. The jurisdiction of this Tribunal emanates from both Constitutional and Legislative provisions. Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011 (hereinafter “PPA 2011”), provides 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.

24. In considering the question whether the Complaint has been filed prematurely, this tribunal is alive to the fact that there have been authoritative pronouncements on the question of exhaustion of internal remedies, both by this Tribunal and by Courts. This Tribunal has stated, times without number, that pursuant to Section 40(2) of the Political Parties Act, 2011 (the PPA), it cannot assume jurisdiction in entertaining disputes between members of a political party, or disputes between members of a political party and the political party, where a party to such a dispute has not demonstrated an attempt to resolve the dispute internally vide the political party’s internal dispute resolution mechanism (IDRM). This requirement is also known as the doctrine of exhaustion.

25. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly vs Karume (1992) KLR 21. The said Court further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR as follows:It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

26. Nyamweya J in Republic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd [2021] eKLR, dealt with the exceptions to the general rule, including the adequacy of the remedy sought in the internal process vis-à-vis court intervention. The learned Judge observed that:In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the claimant with the outcome sought as a matter of substance. It is for this reason that section 9 (4) of theFair Administrative Action Act, provides that the Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in theConstitutionor law and permit the suit to proceed before it. (Emphasis added).

27. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic vs. NationalEnvironment Management Authority, Civil Appeal No. 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

28. Likewise, it was held by the High Court in the matter of the Mui Coal Basin Local Community (2013) eKLR; R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya and Mohamed Ali Baadi and others vs The Attorney General & 11 others [2018] eKLR that in reaching a decision as to whether an exception applies, courts will undertake an analysis of the facts, regulatory scheme involved, the nature of the interests involved including the level of public interest involved, and the polycentricity of the issues and the ability of a statutory forum to determine them.

29. The application of the doctrine of exhaustion, and the exceptions thereto have numerously been litigated on before this Tribunal. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & Another, para 4;Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7;Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (Complainant No 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that:We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

30. Just like Courts, this tribunal has spoken to some of the exceptions to the doctrine of exhaustion, and we shall refer to a few of them for purposes of illustration.

31. In Ibrahim Abdi Ali v Mohamed Abdi Farah & Another (Complaint No 29 of 2015), we held, that:Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.

32. And in Jared Kaunda Chokwe Barns v Orange Democratic Movement & 2 Others, we made the following pronouncement on the question:“In light of this we find that by writing to the Party, the Complainant made an attempt to engage the Party in resolving the dispute. Indeed, if the 1st Respondent was to act on the dispute the presumption is, the same would have been resolved. We therefore find that the Complainant made an attempt to engage the Party internal dispute mechanism and thus, we have the jurisdiction to determine this complaint.’

33. In Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7, we confirmed that:Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.

34. In Oscar Kambona v Schola Nyenze and Others PPDT Complaint No. E020 of 2021, we stated thus:The exceptions are founded on good reason. At times, the internal mechanisms prescribed in party constitutions and other governing instruments are either nonexistent, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute.

35. And in the case of John Mworia Nchebere & 15 Others vs. The Chairman orange Democratic Movement & 2 Others PPDT Complaint No. E002 of 2022, which case was decided whilst considering the current provisions of Section 40 of the PPAas amended in the year 2021, we stated as follows:-“..In our considered view, while section 40 (2) has been amended, the fundamentals that informed the need for IDRM being the first port of call remain intact. The need to underwrite party harmony and cohesion while ensuring strong structures of democratisation within political parties remain critical.The amendment to section 40(2) has the potential of opening floodgates of references to the Tribunal after making half-hearted or feeble attempts at IDRM. It, therefore, is necessary for us to offer guidance on what an attempt at invokingIDRM would involve.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:i.The unavailability of the organ to resolve disputes;ii.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;iii.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;iv.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.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…We emphasize that IDRM is neither a dress rehearsal, pit stop nor an ornamental provision in the act. It serves a functional utility under Articles 38 and 159 of the Constitution of the Republic of Kenya. We are not able to assess the functionality nor the independence and impartiality of the IDRM of the 3rd Respondent because it never had a chance to be activated…”

36. Turning to the matter at hand, and applying the reasoning in the above-referenced judicial authorities to the facts, we make the following observations.

37. From the record, particularly the Complainant’s Affidavit dated 15th November 2023, reference has been made to a letter addressed to the Complainant herein dated 27th October 2023, which partly reads as follows: -“…We write to inform you that the sitting of the Special National Executive Committee (NEC) on 26th October 2023 resolved to suspend you from the office of the Secretary General of the party with immediate effect, awaiting disciplinary action to be taken against you for non compliance with its directions.The Special NEC considered your failure to make a written submission with regards to your unsubstantiated accusations against the National Chairperson of the party, failure to attend the Special NEC meeting of 19th October 2023 and failure to respond to the show cause letter dated 19th October 2023 as sufficient grounds for suspension.Further, the Special NEC meeting directs that you have seven (7) days from the date of this communication to lodge your appeal against this decision, failure to which further action will be taken accordingly…” (emphasis ours)

38. The above letter dated 27th October 2023 expressly states that the Complainant was directed and indeed had the liberty to file an appeal against the decision to suspend him within seven (7) days. We note that this direction was in accordance with the party constitution which provides for the right to appeal against the decisions of NEC.

39. The Complainant has expressly pleaded that ‘out of respect for party processes and in an effort to promote amicable settlement of grievances,’ he indicated his intention to appeal the decision within the party structures in his letter dated 2nd November 2023 where he also requested for an extension of time to file the appeal.

40We have perused the Complainant’s letter dated 2nd November 2023 and the same partly reads as follows: -“…RE: Suspension From OfficeI write in response to the above as communicated in the letter dated 27th October 2023 and signed by yourself as Deputy National Chairperson of the party. I note my suspension from office by the Special NEC of 26th October 2023, and the sated justifications therein.Secondly, considering the multiple dimensions, gravity and complexity of the matter at hand, the genesis and history of the issues, and my desire and commitment to respond more effectively and exhaustively, I write to request an extension of additional fourteen (14) days from the date of the current notice. In the same vein, I wish to request that the party avails to me the following materials for the purpose of my response: …Thirdly, and as directed by yourself during my incomplete presentation, I have attached my submission on the matter as requested by the Special NEC.I look forward to your feedback to facilitate a quick resolution of this matter…”

41. From our reading of the above letter, we note that whereas the Complainant acknowledged IDRM, his subject letter does not, however, express his intention to appeal against the decision to suspend him as alleged. The only thing that is evident from his letter is that he was desirous of responding to the letter dated 27th October 2023 without clear indication of an intention to appeal in accordance with the party constitution. Indeed he stated as follows in his subject letter: -“…Secondly, considering the multiple dimensions, gravity and complexity of the matter at hand, the genesis and history of the issues, and my desire and commitment to respond more effectively and exhaustively, I write to request an extension of additional fourteen (14) days from the date of the current notice…”

42. We further note that whereas the Complainant acknowledges having received the letter dated 27th October 2023 on the same date, he waited until the 2nd November 2023, just a day to the expiry of the 7days notice period, to seek an extension of time and documentation to enable him respond. This is notwithstanding the clear timelines that had been communicated to him. It is not clear to us why the Complainant, who we presume would have been most interested in the appeal, had to wait wait until the very last minute to present his request for an extension and further documentation to enable him respond. This is without expressing an intention to appeal as we have already observed above.

43. In our considered opinion, the Complainant’s move to seek for an extension and further documentation just one day to the deadline, does not demonstrate an honest and/or good faith desire to have the matter resolved internally using the internal party structures that the Complainant himself alluded to.

44. Further, whereas the Complainant claims that he attempted IDRM via his subject letter dated 2nd November 2023, we note that the said letter was addressed to the National Deputy Chairperson of NEC, and not to the National Governing Council (NGC) whether directly or through NEC. This is notwithstanding the fact that pursuant to the provisions of Article 7 of the party constitution, it is the NGC that is clothed with the power to consider and determine appeals from decisions of NEC.

45. We further note that after the Complainant wrote to the party the letter dated 2nd November 2023 seeking an extension of time and documents, he did not demonstrate any attempts to follow up on the same before filing this case on 16th November 2023. Instead, the Complainant elected to move the tribunal claiming that the party had failed to respond.

46. We have in numerous cases held that where a complainant makes no good faith attempt to pursue their matter with the party with a view to seeking a resolution thereof, this tribunal will not be seized of jurisdiction (Josephine Wairimu Kinyanjui vs Pamoja African Alliance Party & Another PPDT Mombasa Complaint No. E006 of 2022; Sankei Noonyuat v United Democratic Alliance & Another PPDT Nairobi B Complaint No. E003 of 2022, amongst others).

47. Taking cue from the facts and circumstances of this case and the above decisions, it is our considered opinion that the Complainant’s approach of writing the letter dated 2nd November 2023 without expressing a clear intention of appeal, nearer the deadline, and further the fact that the same was addressed to the wrong person and/or organ, and the failure to follow up, demonstrated a clear disinterest on the part of the Complainant in using the party’s IDRM as provided for in the party constitution. In essence, it is our finding that the Complainant has not demonstrated an honest attempt at IDRM. Neither has he demonstrated that any of the exceptions to IDRM discussed in the cases above apply to him.

48. We have in addition taken into consideration the fact that the Respondent had expressly indicated in the subject letter dated 27th October 2023 that substantive disciplinary action was yet to be taken against the Complainant, a fact that is not in contest. It is therefore our understanding, as pleaded by the parties, that disciplinary action against the Complainant is still pending before the party. If that be the case, it therefore follows that once disciplinary action before the party is concluded, the Complainant still has a right of recourse in the event he is dissatisfied with the outcome.

49. 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…’

50. 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.

51. 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.(1989)1:“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.”

52. In light of the above, we shall not delve into analyzing the rest of issues as framed above. We have no option but to down our tools.

53. On the question of costs, noting that the dispute is still pending resolution before the Respondent, we shall not award costs in favour of any party. Each party shall bear their own costs of these proceedings.

What are the appropriate reliefs to grant? 54. In light of the foregoing, we order as follows:-i.The Complaint filed herein be and is hereby struck out for being premature. ii. Each party to bear its own costs of these proceedings.

Orders accordingly.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 13TH DAY OF FEBRUARY 2024. …………………………………………………HON. DESMA NUNGO HSC CHAIRPERSON---------------------------------------------------------HON. STEPHEN MUSAU MEMBER………………………………..…………………..HON. MUZNA JIN MEMBER………………………………………………….HON. ABDIRAHMAN ADAN ABDIKADIRMEMBER