[2022] KEPPDT 1030 (KLR)

Mohamed v Jubilee Party (Complaint E119 (NRB) of 2022) [2022] KEPPDT 1030 (KLR) (11 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1030 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E119 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

August 11, 2022

Between

Ayan Ahmed Mohamed

Complainant

and

Jubilee Party

Respondent

Judgment

1. The complainant is a member of the respondent party. She applied for consideration for nomination in the respondent’s Wajir County Assembly party list under the category of ethnic minority. However, in a party list published by the IEBC on the July 27, 2022, she was listed as one of the nominees but under the youth category.

2. She is aggrieved by what she considers a misclassification of her nomination and seeks the following orders from this Tribunal:-a.An order be made by the Political parties Disputes Tribunal to both the party and IEBC to ensure that:-i.The above errors are correctedii.Ayan Ahmed Mohamed’s nomination information is captured under the correct and appropriate category as a marginalized group nominee to the County Assemblyiii.That the nomination of Ayan Ahmed Mohamed be assigned an appropriate ranking to reflect and ensure the appropriate representation of the Isaak Community of Wajir Countyiv.The following nominees Maryan Abdullahi Aden, Shimoy Khalif Jilaow, Noor Hillow Culiye, Rukia Abdullahi Abdi, Ibrahim Adan Ibrahim and Amina Mohamed Ibrahim be removed from the category of marginalized and minority.

3. The respondent neither entered appearance nor filed their response to the complaint despite service.

4. Pursuant to the directions that were issued by this Tribunal, this matter came up for hearing on August 10, 2022 by way of oral submissions. The complainant was represented by Ms. Anne Musau Advocate. There was however no appearance for the respondent.

The Complainant’s Case 5. The complainant avers that she is a resident of Township Ward in Wajir County. She is a member of the Isaak community, which is a minority and marginalized community in Wajir County. It is her submission that she applied to be nominated in the respondent’s Wajir County Assembly party list under the category of ethnic marginalized minority.

6. However, on July 27, 2022, the IEBC published the respondent’s party list wherein it appears that the respondent had nominated her under the youth category instead of the ethnic marginalized minority category.

7. It is her submission that in the list published by the IEBC on July 27, 2022, the respondent had submitted the marginalized and minority category nominees as Maryan Abdullahi Aden, Shimoy Khalif Jilaow, Noor Hillow Culiye, Rukia Abdullahi Abdi, Ibrahim Adan Ibrahim and Amina Mohamed Ibrahim, yet the named persons are from the degodia, adjuran and ogaden community which are the predominant communities in Wajir and are well represented.

8. She maintains that the nomination under the marginalized and minority category was wrongfully made to persons who are not marginalized and that she ought to be nominated under the stated category and not under the youth category. She submits that her wrongful nomination is prejudicial to her and a miscarriage of justice. She believes that she is the one better placed to represent the interests of the marginalized.

9. On the question of jurisdiction as prompted by the Tribunal, Counsel for the complainant submitted that the party lists were published on July 27, 2022 and that considering the urgency of the matter, they did not subject this complaint to the party’s internal dispute resolution mechanisms (IDRM) as they believed that they would be out of time if IDRM was to be attempted.

The Respondent’s Case 10. The respondent did not file any response despite service. Neither did they attend the hearing of this matter on April 10, 2022 when the complainant made her oral submission. The hearing proceeded notwithstanding their non-attendance as service of notice of hearing upon the respondent had been demonstrated.

Analysis and Determination 11. We have reviewed the parties’ pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs in the present circumstances?

Whether this Tribunal has jurisdiction to hear and determine this matter? 12. 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 MachariavsKCB & 2others, 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.”

13. 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, 2011which 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 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.

3. A coalition agreement shall provide for internal dispute resolution mechanisms

14. It is not in dispute that the complaint subject hereof arises out of party nominations and is therefore covered by section 40(1)(fa) of the PPA. However, pursuant to section 40(2) of the PPA, the Tribunal shall not hear and determine such a dispute unless a party adduces evidence of an attempt to subject the dispute to the party’s IDRM. What amounts to an attempt at IDRM and/or exceptions thereto were considered in the case of John Mworia Nchebere &others vs. The National Chairman Orange Democratic Movement &others(Nrb PPDT Compliant No. E002 of 2022), where the Tribunal held that: -“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 among others:a.The unavailability of the organ to resolve disputes;b.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;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.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. ”

15. We note that in this case, unlike in the John Mworia Nchebere Case, the complainant has admitted that she did not subject this dispute to IDRM prior to moving this Tribunal. She claims that the party list having been published on July 27, 2022, there was no time to invoke IDRM as the matter was urgent. The complainant accordingly proceeded to directly file this complaint on or about the 5th August 2022.

16. This tribunal has had occasion to determine cases involving similar set of circumstances where the complainant claimed that there was no time to subject the dispute to IDRM. For instance in the case of Fatuma Ahmed Sheikh vs. Jubilee Party, PPDT Nairobi A complaint No. 117 of 2022, we observed as follows:-“…Turning to the facts of this case as already highlighted above, the complainant has admitted that there was no attempt to subject this dispute to the respondent’s IDRM. In fact, she states at paragraph 3 of the Complaint that she did not attempt IDRM because by the time she found out, it was already overtaken by events. Counsel stated that she believed that considering the urgency of the matter, the complainant would be out of time had they attempted IDRM. There has not been placed before us evidence of any communication between the complainant and the party prior to moving this Tribunal.We note that it is expressly stated in the complainant’s pleadings that the respondent’s party list was published by the IEBC on July 27, 2022. This is the date the complainant became aware of the cause of action subject of these proceedings. The instant complaint was registered in this Tribunal on or about the August 5, 2022. Needless to note, there were over 7 clear days between the date of the publication of the respondent’s party list and the date of moving this Tribunal. The complainant has not accounted for these days. She simply avers that they would be out of time had they attempted IDRM. We are not convinced by the complainant’s justification for failing to attempt IDRM yet she has not accounted for the 7days she had prior to moving this Tribunal. It is not enough to presume that the days are insufficient without any justification.From our foregoing analysis, it is our considered opinion that the exceptional circumstances that were considered in the John Mworia Nchebere Case where this Tribunal may find itself assuming jurisdiction notwithstanding failure to attempt IDRM do not exist in this case.Taking into consideration the totality of the circumstances of this case, we find that there was no honest attempt at IDRM…”

17. Similarly in another recent case of Beking Ahmed Issa vs. Orange Democratic Movement, PPDT Nairobi A Complaint No. 118 of 2022, we observed as follows:-"The complainant has as we have already highlighted admitted at paragraph 3 of the Complaint that there was no attempt to subject this dispute to the respondent’s IDRM. In fact, her Counsel submitted that by the time the party list was published, they were within time constraints and therefore resolved to move directly to the tribunal due to the urgency of the matter.Was there any evident time constraint that has been demonstrated by the complainant in this case to warrant an exception to IDRM as purported? We note that the respondent’s party list subject hereof was published by the IEBC on July 27, 2022. The complainant elected to move this tribunal over 7 days after the publication of the party list, being on 5th August 2022 when this case was registered in the portal. We are not persuaded by the complainant’s reasoning that there was time constraint yet no demonstrable action was taken from their end for over 7 days prior to moving this Tribunal. In any event, despite the registration of this case in the e-filing portal on August 5, 2022, the same was only paid for on or about the August 8, 2022. From our foregoing analysis, we find that the complainant acted in blatant breach of the provisions of section 40(2) of the Political Parties Act with no justification whatsoever. There was evidently no honest attempt at IDRM. Consequently, this Complaint is premature and it is our finding that we do not have jurisdiction to hear and determine the same."

18. As the facts of this case are similar to the facts of the above cases in so far as there was an admission that no IDRM was attempted due to time constraints, we find no reason to depart from our reasoning in the above cases.

19. Taking into consideration the express provisions of section 40(2) of the Political Parties Act, the facts of this case and the finding in the afore-cited decisions, we find that the complainant has not demonstrated an honest or any attempt at IDRM. It therefore follows that we have no jurisdiction to hear and determine this matter.

What are the appropriate reliefs in the present circumstances? 20. In the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989)1, the Court stated as follows:“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.”

21. Having found that we do not have jurisdiction, and taking into consideration the finding in the above dictum on jurisdiction, we find no basis whatsoever to delve into the merits of this case. Any such purported exercise will be a nullity and will amount to nothing. We therefore have no option but to down our tools.

22. Whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

23. In light of the foregoing, we order as follows: -i.That the Complaint herein be and is hereby struck out.ii.Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF AUGUST 2022. DESMA NUNGO……………………......(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………….....(MEMBER)RUTH WAIRIMU MUHORO………………………(MEMBER)