[2022] KEPPDT 993 (KLR)

Michael v Orange Democratic Movement & another; Independent Electoral and Boundaries Commission (IEBC) & another (Interested Parties) (Complaint E130 (NRB) of 2022) [2022] KEPPDT 993 (KLR) (Civ) (9 September 2022) (Judgment)

Neutral citation: [2022] KEPPDT 993 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E130 (NRB) of 2022

J M’Mbetsa, Presiding Member, S M Nderitu & AM Mbithi, Members

September 9, 2022

Between

Njelekela Ashura Michael

Complainant

and

Orange Democratic Movement

1st Respondent

Catherine Muma

2nd Respondent

and

The Independent Electoral and Boundaries Commission (IEBC)

Interested Party

Crystal Kagehi Asige

Interested Party

Judgment

1. The Complaint, Notice of Motion Application and Supporting Affidavit sworn by the Complainant on 23rd August 2022 were filed under Certificate of Urgency. The Complainant sort for the following orders that: -i.Spentii.There be an order of temporary injunction against the IEBC gazetting selected names of nominees for persons with disabilities to the senate from ODM party until this matter is heard and determined.iii.There be a declaration that the decision to oust the Complainant from the Senate Party List of persons with disabilities amounts to an adverse administrative decision.iv.There be an order setting aside the administrative decision ousting the complainant from the Senate Party List of persons living disabilities.v.There be an order of this committee [sic] ordering the 1st Respondent to reinstate the Complainant in the 2nd Position of the Senate Party List nomination for persons living with disability.vi.Any other order this tribunal deems just in the circumstancesvi.Costs of this application be in the cause.

2. The matter was certified urgent and scheduled for mention inter parties and an interim order was issued barring the 2nd Interested Party (IEBC) from gazetting the 1st Respondent’s proposed list of nominees for persons with disabilities to the Senate until this matter is heard and determined. On 2nd September, 2022 when the matter was coming up for mention to confirm compliance, the advocate for the Complainant sought leave of the Tribunal to enjoin the Independent electoral and Boundaries Commission (IEBC) as an interested party. Counsel acting for the Respondents and 1st Interested party had no objection to the application. The application was subsequently allowed by the Tribunal and the IEBC enjoined as the 2nd Interested Party.

3. The 1st and 2nd Respondents filed their Replying Affidavit sworn by the 2nd Respondent on 1st September 2022. While the 1st Interested Party filed her Replying Affidavit sworn on 1st September 2022. The matter was eventually heard by way of oral arguments on 5th September, 2022.

The Complainant’s Case 4. It is the Complainant’s case that she applied to the 1st Respondent for nomination to Senate as a Person with Disability (PWD) and satisfied all the requirements for nomination as such. She was subsequently nominated and her name forwarded to IEBC as the 2nd choice nominee under that category. However, when the party list was submitted to IEBC, it was returned to the Party for lack of compliance with the law. She then states that her name was deleted in the list resubmitted to the IEBC and replaced with that of the 1st Interested Party with no explanation as to why that was done being given to her by the Party. It is her averment that her replacement in the party list was discriminatory, it locks out a minority group from representation of the people and further that she will suffer substantial loss if her application is not allowed.

5. The Complainant also claims that she attempted to serve her pleadings upon the Respondents but their offices were closed. It is her view that, the physical location of the 1st Respondent is a moving target which is in most occasions closed when found. Further that she filed her complaint with the Respondents vide email and the same has not been acted upon or responded to date.

6. She states that when the 1st Respondent forwarded the list of nominees for persons with disability to IEBC, there were only the names of one Kakiri Nickson and that of the Complainant. Further that, there is no record or documents filed to show that the 1st Interested Party’s name was ever forwarded and/or that she applied to be nominated to the senate under persons with disabilities. It is her case that the Respondents have not filed and or served her with documents from the 1st Interested Party indicating whether; she is a member of ODM, applied for the subject position or was shortlisted for the subject position and that she met the provisions under Rule 20. 1 of ODM nominations rules.

7. It’s the Complainant’s contention that the allegation that she was allegedly removed due to her ethnicity as is claimed by the 1st and 2nd Respondents in their response is absurd, despicable, unconstitutional, profiling and not justified. She claims and concludes her case by stating that when she made the application to be nominated under persons with disabilities to the Senate, none of the forms required that she discloses her ethnicity or region and that diversity should not be used as a tool to perpetuate illegalities as has been done by the Respondents.

The 1st and 2nd Respondents’ Cases 8. As stated in the replying affidavit sworn by Ms. Catherine Muyeka Mumma, the 1stRespondent’s chair of the National Elections Board; it is the 1st and 2nd Respondents’ case that the Complainant did not invoke the 1st Respondents IDRM, consequently the Complaint does not meet the requirements of Section 40 (2) of the Political Parties Act and should be dismissed.

8. The Respondents affirm that, in line with Article 98 of the Constitution of Kenya 2010, political parties are entitled to nominate suitable candidates for nominations to the Senate and in line with this, the IEBC in June 2022 published the requirements for submission of party lists for the Senate and National Assembly. She further states that she is aware that the 1st Respondent submitted a list of nominees to IEBC under the Senate (Persons with Disability) party list that is Peter Kakiri Nickson as the first nominee and the Complainant as the second-choice nominee.

9. They allege further that when the list of nominees submitted by the 1st Respondent to IEBC was returned via a letter dated 15th July 2022, it contained comments from IEBC indicating what the party was required to amend in order to comply with a matrix the provided by the IEBC. It’s the Respondents’ contention that one of the requirements in the matrix for the Senate on mandatory requirements on ethnic diversity indicated that not more than one nominee shall be from the same ethnic community in the category of senate (Persons with Disability) list. It is their averment that the 1st Respondent had not indicated the ethnicity of the Complainant. Further that, on making enquiry from the Complainant via SMS, she confirmed that she was of Luo ethnicity. A screenshot of the text message confirming her ethnicity has been produced

10. The Respondents state further that in the compliance matrix from IEBC, regional diversity is a mandatory requirement; that not more than one nominee shall be from the same county in the category of Senate (Person with Disability) list. It is hence their averment that the Complainant and the 1st choice nominee Kakiri Nickson Ochieng are both from Nairobi City County and are from the Luo tribe. It’s the Respondents’ case that in view of the IEBC directions, the Party had to amend the senate party list for persons with disability to remove the Complainant’s name; information that was relayed via SMS to the Complainant, as per the screenshot annexed to their replying affidavit.

11. The Respondents state that as a consequence, the 1st Respondent nominated the 1st Interested Party who they state is visually impaired, from the Luhya community in terms of ethnicity and from Mombasa County as envisioned under the applicable law. It is the view of the Respondents that forwarding the party list with the Complainant as the party’s 2nd choice nominee as prayed in the complaint will be against the applicable law on regional and ethnic diversity. They allege further that the list would be rejected by IEBC and occasion great prejudice to the 1st Respondent’s other nominees. Accordingly, they pray that this complaint be dismissed.

The 1st Interested Party’s Case 12. From the replying affidavit of the 1st Interested Party, it is her case that she is a life member of the 1st Respondent, is visually impaired, hails from the Luhya community and lives in Mombasa County. She states that, given her extensive experience in disability mainstreaming activities as well as being a regular participant in the disabled community affairs and activities, she was desirous to serve the disabled community even better and consequently applied to the 1st Respondent for consideration for nomination to Senate in the 2022 general elections.

13. She states further that she was notified by the 1st Respondent that her name had been submitted under the Senate (Persons with Disability) party list, due to the fact that her application had been successful; having satisfied the requirements set out in the law and the Constitution of Kenya. She claims that the Complainant via an SMS congratulated her upon learning of the gazettement of her name on 27th July 2022. It is her contention that she has not in any way breached any provision of the Constitution and/or the Elections Act and it is her belief that she is not a necessary party to the proceedings before the Tribunal. She then concludes that, the claims in the complaint are insincere, uncalled for and not in good faith.

14. The 2nd Interested Party did not enter appearance in this matter despite service being properly effected on it and it is assumed that it is not interested in this matter.

Issues for Determination 15. We have considered all the material placed before us and the arguments in support of the various positions taken by counsel on behalf of their respective clients, and distill the following questions as falling for our determination:i.Whether this Tribunal is clothed with the requisite jurisdiction to hear and determine this matter;ii.Whether this Complaint is merited?iii.Who should bear the costs of this Complainant?

16. We will then proceed to analyse the issues in the order in which they have been listed.

Issue A: Whether this Tribunal is clothed with the requisite jurisdiction to hear and determine this matter; 17. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” Further in the book Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance 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 cognisance 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.

18. It is also a well settled principle in law that jurisdiction is so central in judicial proceedings such that a court acting without is acting in vain. All it engages in is a nullity. Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 expressed himself as follows on the issue of jurisdiction: -‘’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…’

19. The Supreme Court of Kenya has also pronounced itself on the issue of jurisdiction in the case of Samuel Kamau Macharia v KCB & 2Others, Civil Application No. 2 of 2011 as follows:“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.”

20. The jurisdiction of this Tribunal is grounded on the provisions of Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011 (hereinafter the PPA) which 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; andg.(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.

21. The current dispute before us is one arising out of party nominations by way of party lists and therefore falls squarely within the provisions of Section 40 (1) (fa) of the PPA. Essentially, the above quoted provision requires parties to attempt resolving their Complaints using the dispute settlement mechanism provided by their respective parties, before moving this honourable Tribunal. It is therefore an attendant requirement that a party who files a Complaint before this Tribunal ought to produce evidence of his or her attempt at resolving the Complaint using the internal dispute resolution mechanism of his/her respective party.

22. Consequently, it falls on this Tribunal to determine whether in line with Section 40 (2), the Complainant filed an appeal before the 1st Respondent’s dispute Resolution mechanism before moving this Tribunal on 25th August, 2022. In doing so, the Tribunal will be guided by the decision of the Court of Appeal in the case of Samuel Kalii Kiminza v Jubilee Party & another [2017] eKLR, in which the court stated as follows:“The 1st Respondent’s Nomination Rules required that appeals to the Appeals Tribunal be in a prescribed format and that a prescribed fee had to be paid. There would appear to be some contention that the Appellant’s appeal was neither in the prescribed format nor was the prescribed fee paid. This notwithstanding, the letter dated the 10th May, 2017 expressly referred to a complaint that the Appellant had lodged with the 1st Respondent’s Appeals Tribunal. The complaint, titled “Appeal”, was dated the 9th May, 2017 and signed by the Appellant, and was attached to the letter. We have had a look at the Appeal, and are of the view that though it may not have been in the prescribed format, it nevertheless contained all the ingredients of an appeal. The document gave particulars of the position in relation to which the appeal was lodged; it also had the statement of facts; the specific complaint of the Appellant; as well as the prayers that he was seeking.Article 159 (2) (d) of the Constitution enjoins courts in their exercise of judicial authority, to administer justice without undue regard to procedural technicalities. We are therefore of the view that if there was any failure by the Appellant to lodge the appeal in the prescribed format, such failure is easily cured by Article 159 (2) (d) of the Constitution, considering that the substance of the Appellant’s appeal included all the ingredients necessary for one to decipher what his complaint was and the remedies he was seeking.” [emphasis mine]From the above decision, we can see that not only was there a letter, there was also a complaint titled ‘appeal’ and it was lodged with the Party’s Appeals Tribunal. The appeal was not in the prescribed format but it gave particulars of the position in relation to which the appeal was lodged, it also had the statement of facts, the specific complaint of the Appellant as well as the prayers that he was seeking. Such that even if there was failure by the Complainant to use the prescribed format, the failure was cured by the provisions of Article 159 (2) (d) of the Constitution”.

23. We have evaluated the pleadings and evidence adduced by all parties in these proceedings and note the following:i.A letter dated 27th July 2022 and received on 29th August, 2022 was written to the Elections Appeal Tribunal Board, ODM Party;ii.The Complainant filed the Complaint before this Tribunal on 25th August, 2022;iii.A screenshot of an email from one Lazarus Odongo to tribunal@odm.co.ke sent on 29th August, 2022 in which the said Lazarus was attaching an appeal and accompanying letter for assessment and advice by the addressee was also shared with the Tribunal vide the Complainant’s further affidavit sworn on 5th September, 2022; andiv.An explanation was given by the Complainant’s advocate on record that the physical location of the respondent is a moving target which in most occasions is closed when found.

24. Drawing from the decision in Samuel Kalii Kiminza case, an analysis of the subject letter dated 25th July, 2022 reveals that despite it not being in the prescribed format of the Respondent’s Appeals tribunal, the letter gave particulars of the position in relation to which the appeal was lodged; that is nomination to senate for persons with disabilities, it also had the statement of facts; the specific complaint of the Appellant which was that the Respondent submitted a list of persons who would be deemed selected to senate and the list omitted, replaced and/or deleted their client’s name and in her place another name was submitted without due regard to law and party rules; as well as the prayers that they were seeking on their client’s behalf which was for office to recall and revise the party list by abiding by the provisions of law. To that extent this Tribunal finds that the Letter dated 27th July, 2022 contained all the ingredients necessary for it to be deemed an appeal and invoking the provisions of Article 159 (2) (d) we deem it an appeal for purposes of these proceedings.

25. That said however, no explanation has been provided or evidence produced before this Tribunal as to why, despite the strict timelines within which party list nomination disputes are to be resolved, no follow up was made for a whole month upon noticing that the letter dated 27th July, 2022, if at all it was delivered to the addressee then, was not eliciting a response save for the fact that the Respondent’s office was a moving target. The letter in its body gives the addressee 48hrs within which to adhere to the contents of the complaint. No evidence has been adduced before this Tribunal of at least a follow up letter, email by the Complainant’s advocates or herself or even phone call to find out whether their letter was received and acted upon. In fact, what is before us is a letter that is in fact received a month after it was supposedly dispatched. In the Samuel Kalii Kiminza case, the Appellant had written two letters within a period of two days while in this case, this Tribunal has to make a determination based on a single letter written with no follow up for a period of a whole month.

26. We are also at a loss to understand why no evidence of an effort by the complainant to follow up on her Complaint/appeal at party level either by way of phone calls or even text to those she has been interacting with at party level was not adduced. What has been produced before us that comes close to this, is a screenshot of communication between the Complainant and the 2nd Respondent in which she seeks an opportunity to defend herself but the date when the communication is made is obscured.

27. This then leaves the Tribunal with only the Letter dated 27th July, 2022 received by the ODM NEB on 29th August, 2022 and shared with the Tribunal via an email dated 29th August, 2022 by her advocates to determine whether an honest attempt was made at resolving the dispute using the 1st Respondent’s IDRM. It is also noteworthy that the allegation that the email invoking IDRM was received while these proceeding were live was not rebutted. Actually, the email and letter were sent and stamped and received respectively, 4 days after these proceedings were filed. A reading of section 40 (2) makes it a pre-requisite; for the evidence of an attempt at resolving the dispute using the party’s internal dispute resolution mechanism to be produced before this Tribunal, before it can be clothed with jurisdiction.

28. Unfortunately, the evidence of the said attempt in the current Complaint was produced on 5th September, 2022 when the matter was coming up for hearing several days after the Complaint was filed on 25th August, 2022. It is therefore our finding that Complainant did not provide evidence of an attempt to resolve this dispute using the 1st Respondent’s internal dispute resolution mechanisms before commencing these proceedings.

29. Due to the fact that the Complainant failed to comply with a mandatory provision of the law, we hold that that this Tribunal lacks jurisdiction to entertain this Complaint. We therefore order that the Notice of Motion application and Complaint dated 23rd August, 2022 are hereby struck out for want of jurisdiction. Each party shall bear their own costs of these proceedings.

30. It is so Ordered.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2022JESSICA M’MBETSA (PRESIDING MEMBER)SAMUEL MBIRIRI NDERITU (MEMBER)DR. ADELAIDE M. MBITHI (MEMBER)