[2022] KEPPDT 1032 (KLR)

Mohamed v Jubilee Party; Independent Electoral and Boundaries Commission (Interested Party) (Complaint E100 (NRB) of 2022) [2022] KEPPDT 1032 (KLR) (Civ) (31 July 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1032 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E100 (NRB) of 2022

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

July 31, 2022

Between

Hon. Mohamedin Mohamed

Complainant

and

Jubilee Party

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Judgment

1. The Complainant is a registered member of the Respondent and was one of the aspirants for the position of Member of County Assembly (MCA) Ashabite Ward in Mandera County. Through a consensus building process that was conducted amongst aspirants for the same position, he stepped down and successfully applied for nomination in the party list where his name appeared as the second nominee for the position of MCA under the gender top up list.

2. His name was, however, subsequently removed from the party list and aggrieved by this turn of events, he filed the instant Petition (hereinafter referred to as Complaint) and seeks the following orders from this Tribunal:-a.That this Honourable Tribunal does declare that the Respondent’s decision to anonymously remove the Complainant from the party list submitted to the Interested Party on the July 22, 2022 was illegal, irregular, null and void.b.That this Honourable Tribunal does direct the Interested Party not to gazettethe Respondent’s party list forwarded on the July 22, 2022. c.That this Honourable Tribunal does direct the Respondent to forward an amended party list to the Interested Party with an inclusion of the Complainant as the second party as initially indicated.d.That this Honourable Tribunal does direct the Interested Party to deem the amended party list of nominees submitted to it by the Respondent as directed in (c) above as the correct and final list.e.Costs of the Petition1. The Respondent and the Interested Party have all filed their respective responses in opposition to the Complaint.2. Pursuant to the directions that were issued by this Tribunal, this matter came up for hearing on July 30, 2022 when all parties made their respective oral submissions.3. The Complainant was represented by Ms. Kathurima Advocate and Mr D Omari Advocate. The Respondent was represented by Mr Njomo Advocate and the Interested Party was represented by Mr Onyango Advocate.

The complainant’s case 6. The Complainant was an aspirant for the position of MCA Ashabite Ward Mandera County having satisfied all the requirements and paid the requisite nomination fees. However, following a consensus building exercise, he stepped down from the contest and tendered his application for consideration for nomination for the position of MCA. He was successful and he appeared in the Respondent’s party list that was submitted to the interested party as number 2 in Mandera County under the Gender top up list.

7. However, the party list was rejected by the interested party for non-compliance with the law and the Respondent was directed to amend its party list. The Complainant came to learn that his name was, however, excluded in the amended party list that was submitted to the interested party on or about the July 22, 2022.

8. The Complainant submits that following his appearance as the second candidate in the Respondent’s initial party list, he legitimately expected to be in the amended party list. However, contrary to his expectations, a decision was made to remove his name without granting him a hearing and/or informing him of the reason for his removal. He contends that the party’s decision to remove his name without informing him was in violation of Articles 10, 27, 38, 47 and 50 of theConstitution of Kenya and Sections 4 and 6 of the Fair Administrative Action Act (FAA).

9. He wrote a complaint letter to the Respondent dated July 23, 2022 granting the Respondent 6 hours to respond but the Respondent never responded to the same. The Complainant contends that the subject letter constituted an attempt at invoking the party’s internal dispute resolution mechanism (IDRM) and he accordingly maintains that this Tribunal has jurisdiction to hear and determine this Complaint pursuant to the provisions of Section 40 of the Political Parties Act, 2011.

The Respondent’s Case 10. The Respondent has filed a Replying Affidavit sworn by Kamau Mbugua on July 28, 2022 in opposition to the Complaint and the application.

11. It is the Respondent’s submission that it submitted to the Interested Party its party list in consonance with Article 13 of the Respondent’s Constitution. However, the party list was rejected by the Interested Party in exercise of its mandate under the Constitution thus necessitating the reconstitution of the party list. The Respondent’s Party List Nomination Committee established under Section 44 of the Respondent’s Nomination Rules, in exercise of its mandate, reconstituted the party list as directed by the Interested Party.

12. The Respondent submits that in light of the rejection of the Respondent’s party list by the Interested Party in exercise of its mandate, a fact which has been admitted by the Complainant in his pleadings, the rejected list became a nullity and the Complainant cannot found an action on a rejected list.

13. The Respondent contends that the Complainant did not make any reasonable and honest attempt to resolve the dispute within the party’s internal dispute resolution mechanism (IDRM). No appeal has been lodged with the National Elections Appeals Tribunal (NEAT) established under Article 16 of the party Constitution to resolve such disputes. They submit that the Complainant’s letter was received by the Respondent on July 25, 2022 and the subject letter granted the Respondent only 6 hours to resolve the dispute, which timelines were not reasonable for a corporate body, and clearly demonstrated the Complainant’s disinterest in IDRM. The Petition filed herein dated July 24, 2022 was prepared even before the letter was served upon the Respondent.

14. The Respondent relied on the case of Wasammy Mwangi Kariuki & 5 Others v Jubilee National Elections Board & 4 Others, Political Parties Disputes Tribunal Complaint Number E004 of 2022.

The Interested Party’s Case 15. On jurisdiction, the Interested Party submits that the Complainant did not attempt IDRM contrary to the provisions of Section 40(2) of the Political Parties Act (PPA), and also contrary to Section 9(2) of the Fair Administrative Action Act (FAA) which provided on the doctrine of exhaustion of all remedies in the first instance. They submitted that Section 38(I) of the PPAgrants political parties 30 days to resolve nomination disputes, and that the letter relied on by the Complainant to demonstrate IDRM does not in fact constitute IDRM and that 6 hours was unreasonable. They relied on the cases ofSpeaker of the National Assembly v James Njenga Karume (1992) eKLR and Geoffrey Kabiru & 2 Others v Samuel Munga Henry & 1756 Others (2015) eKLR

16. It is the interested party’s, further contention that to the extent that the Petition herein raises constitutional issues, this Tribunal has no jurisdiction to hear and determine the Complaint and he relies on the reasoning of Odunga, J in the case of Republic v Chairman Political Parties Disputes Tribunal & 2 Others v Susan Kihika.

17. Turning to the merits, the Interested Party relied on its Replying Affidavit sworn by Salome Oyugi on the July 29, 2022. She avers that pursuant to Sections 34, 35, 36 and 37 of the Elections Act, 2011, the Interested Party is mandated to supervise the nomination and consequently conduct election of persons nominated by political parties to represent their interests in the various legislative houses.

18. Vide Gazette Notice No 6378 of May 31, 2022 published on June 3, 2022, the Interested party published the requirements for submission of party lists and political parties were required to submit their respective lists by June 25, 2022. A total of 79 political parties submitted their party lists which were reviewed to confirm compliance with the law.

19. In line with the provisions of Section 34 (6A)(b) of the Elections Act 2011 as read together with Regulations 55(2) of the Election (General) Regulations 2012, the interested party rejected all the 79 party lists and informed the political parties of the reasons for rejection, and further directed the political parties to address the issues raised and submit the amended lists by July 22, 2022.

20. The Respondent complied and submitted its amended party lists within the prescribed timelines. Consequently, on July 27, 2022, the interested party published the Final Party Lists in two newspapers of nationwide circulation in accordance with Regulation 54(8) of the Election (General) Regulations 2012.

21. The Interested party submits that save for checking on whether the party lists are compliant with the law or otherwise, the Interested Party is not involved in the internal preparation of the party lists. He relied on the finding in the case of National Gender & Equality Commission (NGEC) v Independent Electoral & BoundariesCommission (IEBC) & 3 Others (2018) eKLR, and Moses Mucigi & 14 Others v Independent Electoral & Boundaries Commission & 5 Others (2016) eKLR.

Analysis and determination 22. 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?

23. The Black's Law Dictionary, Sixth Edition, defines Jurisdiction as "a term of comprehensive import embracing every kind of judicial action. It is the power of the Honourable Court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties.”

24. 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 v 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.”

25. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011, 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; 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.

26. 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 was considered in the case of John Mworia Nchebere & Others v 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. ”

27. Turning to the facts of this case as already highlighted above, the Respondent and the Interested Party have challenged our jurisdiction to hear and determine this matter arguing that there was no IDRM contrary to the provisions of Section 40(2) of the PPA. The Interested Party further avers that the Complaint raises constitutional issues that are outside the jurisdiction of this Tribunal. The Complainant on the other hand maintains that the Tribunal has jurisdiction as IDRM was attempted vide his complaint letter that was served upon the Respondent on July 25, 2022.

28. Does the letter relied on by the Complainant amount to an attempt at IDRM? We note that the subject letter is dated July 23, 2022. We find it strange that despite the letter having been written on July 23, 2022, it was only served upon the Respondent on the July 25, 2022. If the Complainant honestly required the Respondent to attend to his complaint as a matter of urgency, why was the letter served about two or so days later? Why was the Respondent granted only 6 hours to resolve the dispute and yet the Complainant had the two or so days from the date of writing the letter? We are of the considered opinion that the 6 hours that were granted to the Respondent to resolve the complaint was not reasonable in the circumstances of this case.

29. We in addition find it strange that this dispute was filed in this Tribunal on the same date that the letter was served upon the Respondent, that is on the July 25, 2022. This, in our considered opinion, casts doubt as to whether the Complainant was genuinely and honestly desirous of having this matter resolved by the party in the first instance. It appears to us that the letter was written and dispatched as a mere formality and with the hope that it would qualify as an attempt at IDRM but with no real intention of subjecting the dispute to IDRM. In any event, it is also noteworthy that the letter under reference was addressed to the Secretary General of Jubilee Party. Needless to note, the Complainant did not comply with Article 16 of the party Constitution and the NEAT procedures.

30. Taking into consideration the finding in the John Mworia Nchebere Case and our foregoing analysis of the facts and circumstances of this case, we find that there was 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.

What are the appropriate reliefs in the present circumstances? 31. Having found that we have no jurisdiction, what follows 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.”

32. Taking cue from the above decision, we will not consider the rest of the issues as framed above. Our decision thereon will amount to nothing. We therefore have no option but to down our tools.

33. On the question of costs, 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.

Disposition 34. 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 31ST DAY OF JULY 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)RUTH WAIRIMU MUHORO………………………………....(MEMBER