[2022] KEPPDT 952 (KLR)

Moturi & another v Wiper Democratic Movement Party & 4 others (Complaint E032 (KSM) & E033 (KSM) of 2022 (Consolidated)) [2022] KEPPDT 952 (KLR) (Civ) (16 July 2022) (Judgment)

Neutral citation: [2022] KEPPDT 952 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E032 (KSM) & E033 (KSM) of 2022 (Consolidated)

W Mutubwa, Vice Chair, F Saman & S Walubengo, Members

July 16, 2022

Between

Zachary Nyayiemi Moturi

Complainant

and

Wiper Democratic Movement Party

1st Respondent

Shakilla Abdalla

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

As consolidated with

Complaint E033 (KSM) of 2022

Between

Wiper Democratic Movement Party

Complainant

and

Zachary Nyayiemi Moturi

1st Respondent

Charles Mong'are Geni

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Judgment

1. This matter concerns the expulsion of the Complainant, Mr. Zachary Nyayiemi from the 1st Respondent, Political Party vide a letter dated 29th June 2022 sent to the Interested Party herein. Before the expulsion, the Complainant was nominated by the party for Member of Parliament, North Mugirango Constituency. The Party forwarded his name to the IEBC for clearance on the 28th of June 2022.

2. On the July 4, 2022 we stayed the implementation of the contents of the letter dated June 29, 2022.

3. It is the Complainant’s case that the Party has submitted the name of Mr. Charles Mong’are Geni (The 1st Interested Party in PPDT Complaint No 33 of 2022) to the IEBC as the duly nominated candidate for the disputed seat. Being aggrieved by the decision to expel him from the Party, the Complainant instituted the present Complaint before this Tribunal.

4. The 1st and 2nd Respondents claim to have been justified in expelling the Complainant, on the grounds that he had been advancing the interests of another Political Party contrary to their Party Rules. Additionally, it is their submission that this Tribunal lacks jurisdiction to hear this matter, due to the fact that the Complainant did not approach the Party’s Internal Dispute Resolution Mechanism, before lodging the present claim as required by Section 40 (1) and (2) of the Political Parties Act, 2011 as amended.

5. By consent of the parties, this Tribunal made an Order, consolidating Political Parties Dispute Complaint No 32 of 2022 and Political Parties Dispute Complaint No 33 of 2022; with directions that Complaint No 32 of 2022 be the lead file.

6. In PPDTC No. E032 of 2022, the Complainant was represented by the firm of Nchogu Omwanza and Company Advocates while the 1st and 2nd Respondents were represented by the firm of Lumallas Achieng’ and Kaverre Advocates. The Complainant moved this Tribunal by way of Notice of Motion under Certificate of Urgency dated July 1, 2022, as well as a Complaint of even date and Accompanying Affidavits. In response the 1st and 2nd Respondents filed a Replying Affidavit dated July 9, 2022; and Written Submissions dated July 14, 2022.

7. While in PPDTC No. E033 of 2022 the Complainant was represented by the firm of Lumallas Achieng & Kavere Advocates, while the 1st Respondent was represented by the firm of Nchogu Omwanza & Nyasimyi Advocates. The Complainant therein made a Notice of Motion Application under cover of Certificate of Urgency as well as a Complaint and Accompanying Affidavits all dated July 12, 2022. The 1st Respondent therein filed a Supporting Affidavit dated July 14, 2022 in Opposition to the Application; and Written Submissions dated July 14, 2022.

8. The Complainant sought the following orders from the Tribunal;a.A declaration that the decision of the 1st and 2nd Respondent expelling the Complaint from the 1st Respondent Party is unlawful and a nullity in law.b.An Order do issue that the contents of the letter dated June 29, 2022 be quashed or otherwise set aside for being unlawful and or irregular and consequently Null and Void.c.The Respondents be condemned to pay the costs of the suit

9. The matter was canvassed by way of written submissions.

Complainant’s Case 10. In his pleadings, the Complainant argues that he was the duly nominated candidate for the Wiper Member of National Assembly North Mugirango Constituency having been issued with the nomination certificate on the June 29, 2022, and his name having been forwarded to the IEBC for clearance on the 28th of June 2022. He disputes the expulsion from the Party as having been malicious, callous and unlawful and further describes it as being intended to deny him the ticket.

11. It is also his argument that he was never invited nor did he participate in any disciplinary proceedings at the Party Disciplinary Committee. Furthermore, he questions the fact that the Respondent’s conducted disciplinary proceedings on the 13th of June 2022; and still decided to issue him with a nomination certificate, 2 weeks later on the 29th of June 2022.

12. Moreover, the Complainant contends that he was never summoned to answer any charges for violating the laws of the 1st Respondent and that, having been purportedly expelled by the from the membership of the party, he lost the right to invoke the party’s internal dispute resolution mechanisms as set out under Section 40 (1) and (2) of the Political Parties Act. Furthermore, that even if he would have invoked the IDRM of the Party this would still have been an ineffective remedy as the IDRM of the Party lacks the power to order a stay of execution. Additionally, that since the Party is a Respondent in these proceedings, that the Party Dispute Resolution Mechanisms / bodies would be conflicted hence necessitating the lodging of this claim with the PPDT.

13. He further cited Section 13 (2) of the Elections Act which expressly prohibits substitution of candidates after names have been received by the IEBC. The section states as follows:(2)“A political party shall not change the candidate nominated after the nomination of that person has been received by the Commission:Provided that in the event of the death, resignation or incapacity of the nominated candidate or of the violation of the electoral code of conduct by the nominated candidate, the political party may after notifying the candidate that the party seeks to substitute, where applicable, substitute its candidate before the date of presentation of the nomination papers to the Commission.”

14. It is therefore the Complainant’s submission that since the Complainant’s name was already received by the Commission the Respondents cannot purport to substitute his name on any grounds not listed under Section 13 (2) of the Elections Act. Moreover, he advanced that the Respondents were illegally attempting to unseat him from his seat as the Member of National Assembly for North Mugirango Constituency. Furthermore, that his expulsion from the Party should be set aside for breaching the Rules of Natural Justice, and breaching Article 47 and 50 (1) of theConstitution of Kenya as well as Clause 7. 3 (d) and (e) of the Wiper Party Constitution.

15. In conclusion the Complainant urged this Tribunal to grant the orders prayed for and allow the application in its entirety.

1st and 2nd Respondent’s Case 16. In response to the Complainant’s Notice of Motion Application and Complaint dated July 1, 2022, the Respondents filed a Notice of Preliminary Objection dated July 9, 2022 and a Replying Affidavit deponed to by Shakilla Abdalla the 2nd Respondent, on July 9, 2022. It was their submission that before invoking the jurisdiction of the Tribunal, all parties must seek redress of their issues within the Political Parties’ internal framework for dispute resolution.

17. Furthermore, the Respondents averred that the Complainant herein had not lodged any complaint before the 1st Respondent or even sought a hearing challenging the 1st Respondent’s decision to revoke his membership from the Party. Moreover, they rubbished the Complainant’s allegation of the Party IDRM having conflict of interest as being baseless and far-fetched, since the Party Tribunal as well as the Disciplinary Committee was independent. Additionally, the Respondents submitted that the decision of the Party Tribunal was subject to appeal, hence the Complainant had needlessly scorned the party’s internal processes.

18. In support of their averments, the Respondents cited the decision in Cleophas Malala & another v Speaker of the Senate & 2 others; Stewart Madzayo and another (Interested Parties) [2021] eKLR. Where the court held as follows:“I have found that this Court lacks jurisdiction to entertain the application and the Petition, for failure on the part of the Petitioners to comply with exhaustion doctrine, I shall not proceed to determine the application and Petition for want of jurisdiction.”

19. The Respondents urged us to find that this Honourable Tribunal lacked the jurisdiction to determine the Complaint and should therefore down its tools.

20. On the question of whether the Complainant was lawfully expelled from the Party, the 1st Respondent submitted that its main goal in regard to the disputed seat was to ensure that the Party won the elections and that they had established that Mr. Charles Mong’are Geni was the most popular candidate. Furthermore, that owing to Mr. Mong’are popularity the Complainant engaged the Respondents in unending court battles which have compromised the party’s ability to win the seat.

21. Moreover, it is the Respondents’ averment that the Complainant failed to appear for the disciplinary meeting culminating in his expulsion from the party despite him being invited to the same. Additionally, the Respondents averred that the Complainant was expelled because of advancing the ideologies and interests of another political party and speaking disparagingly about Wiper Political Party and its leadership. The Respondents cited Article 29 (1) of the Party Constitution in support of their decision to expel the Complainant from the Party. They averred that the Complainant had been given a fair hearing as set out under Article 47 of theConstitution of Kenya and that it was he who had refused to show up for the hearing by the Party Disciplinary Committee.

22. In conclusion the Respondents argued that the Party duly nominated Mr. Charles Mong’are Geni for the elective position of Member of Parliament for North Mugirango Constituency and that the Complainant’s nomination and membership is ineffective as it stands revoked.

23. They urged us to dismiss the Complainants Notice of Motion Application and Complaint for being an abuse of court process and being devoid of merit as well as allow the Respondents Preliminary Objection on account of the Complainant failing to establish good cause as to why he had not exhausted the Party’s internal mechanisms for dispute resolution.Issues for DeterminationI.Whether this Tribunal has jurisdiction to hear and determine this matter;II.Whether the Complainant has merit; andIII.Who bears the Costs of this Application?

24. We will address the issues for determination in the sequence of their listing. It goes without saying, that the determination of the issue of jurisdiction will determine whether the 2nd issue for determination will be addressed.

Whether this Tribunal has jurisdiction to hear and determine this matter 25. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v 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.”

26. The 1st and 2nd Respondents argue that the Complainant has not followed the 1st Respondent’s regulations for the IDRM process and therefore cannot approach this Tribunal. In response, the Complainant contends that there is a possible conflict of interest on account of the Party’s Internal Dispute Resolution Mechanisms being an organ of the 1st Respondent. Moreover, that the Party’s IDRM is unable to grant some of the orders sought by the Complainant such as a Stay of Execution and that as a result, the Complainant had no alternative but to approach this Tribunal for relief. Additionally, the Complainant argues that he lost the right to invoke the Party’s IDRM as provide under Section 40 (1) and (2) of the Political Parties Act, the moment he was purportedly expelled from the Party.

27. InR v. Karisa Chengo[2017] eKLR, the learned judge stated as follows;“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.”

28. A reading of Section 40 of the Political Parties Act of 2011 as amended by the Political Parties (Amendment) Act of 2022, spells out the jurisdiction of this Tribunal as follows: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”

29. Similarly, in Mutanga Tea & Coffee Company Ltd Vs Shikara Limited & another [2015] e KLR the Court of Appeal reiterated the foregoing as follows:“……. This court has in the past emphasized the need for aggrieved parties to strictly follow any procedures that are specifically prescribed for resolution of particular disputes (Speaker of the National Assembly v Karume) (supra), was a 5(2) (b) applicant for stay of execution of an order of the High Court issued in Judicial Review proceedings rather than in a petition as required by the Constitution. In granting the order, the court made the often –quoted statement that:“[W]here there is a clear procedure for the redress of any particular grievances prescribed by theConstitution or an Act of Parliament, that procedure should be strictly followed.”

30. To this extent, the objection is well taken as a pure point of law based on common or uncontested facts.

31. The issue: whether this Tribunal has jurisdiction to determine the dispute thus falls to the question, whether the Complainant has provided sufficient evidence, of an attempt, to subject the dispute to the Internal Political Party Dispute Resolution Mechanisms, as provided under Section 40 (2) of the Political Parties Act.

32. The gravamen of the Respondents’ Preliminary Objection is that the Complainant has not exhausted the Internal Party Dispute Resolution Mechanisms, and as such, has not properly invoked the jurisdiction of this tribunal. In essence, the Respondents posit that the complaint runs afoul section 40 (2) of the Political Parties Act, 2011.

Exhaustion of Internal Dispute Resolution Mechanisms 33. While the Respondents’ proposition is, generally, legally sound, this is a well-trodden and beaten road. There are ample authoritative pronouncements on this question, both by this Tribunal and by superior Courts. This Tribunal has stated, times without number, that it takes seriously the legal edict in section 40(2) of the Political Parties Act, 2011. The Tribunal will always require parties to demonstrate compliance with that provision of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

34. 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.’

35. Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions. This tribunal and courts have spoken to some of these exceptions. We shall refer to a few of them for purposes of illustration.

36. 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.

37. 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.’

38. 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.

39. In Moses Saoyo Kusero v Jubilee Party of Kenya & another (Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that:It is clear that the Claimants attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

40. The silver lining and constant theme running through the maze of the fore-quoted decisions is that, the requirement to exhaust internal dispute resolution mechanisms is a principle with exceptions. As we noted in our recent decision in Complaint No. E020 of 2021 Oscar Kambona v Schola Nyenze and Others: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.

41. It merits noting that the fore-cited cases were delivered before the Political Parties Act was amended vide the Political Parties (Amendment) Act 2022. There was a significant shift in the wording of section 40(2) of the Act. The Section previously read as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

42. The current wording of section 40 (2) is as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

43. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment was meant to accord the law with our previous pronouncements and those of the courts. It is, therefore, necessary to restate the import of the amendment to the province of the doctrine of exhaustion as reset by the statute.

A brief background is, therefore, essential. 44. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal inSpeaker of National Assembly vs Karume (1992) KLR 21. The said Court further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2othersvs Samuel Munga Henry & 1756others (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 theConstitution of Kenyawhich commands Courts to encourage alternative means of dispute resolution.

45. 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).

46. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic vs. National Environment 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.

47. Likewise, it was held by the High Court Inthe 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.

48. 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 democratization within political parties remain critical.

49. 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, was found necessary for us to offer guidance on what an attempt at invoking IDRM would involve, and we did so in PPDTC E002 of 2022 John Mworia Nchebere v The National Chairman ODM and others.

50. In the a foregoing case, we 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: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;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.

51. 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.

52. Turning to the matter at hand, and applying the compass constructed above to the facts, we draw the following findings.

53. The Complainant has not demonstrated to us that the Party IDRM does not exist, or is dysfunctional. Or that he has attempted to invoke it without success. We are aware, and take judicial notice of the fact that the Wiper Democratic Movement has a quasi- judicial IDRM. We have heard and determined matters from that Tribunal as recently as last month.

54. Furthermore, we note that no evidence has been presented by the Complainant in support of his allegations of a conflict of interest in the Party’s IDRM. Remember always that the IDRM mechanism in the party, is not the party executive officers or its other organs. It is an independent and impartial arbiter. It does not act at the whims of the party leadership or other organs. We do not see any evidence to suggest that the 1st Respondent’s IDRM organ falls short of this lofty ideal of a judicial organ.

55. We also do not agree with the Complainant that the 1st Respondent’s IDRM cannot issue conservatory orders. The IDRM organ is a quasi-judicial organ created by statute and the party’s constitution. It can issue orders similar to those issued by this tribunal, and those that meet the ends of justice, if a case is made out before it.

56. None of the exceptions set out in the discussion of the law foregoing have been demonstrated. We do not agree that this tribunal is bereft of jurisdiction due to the action of expulsion of the Complainant from the part. This, in our view, is a misapprehension. To the contrary, matters regarding the membership, suspension and expulsion of members from a party form the core essence of this Tribunal’s jurisdiction under section 40 (1) of the Political Parties Act. In other words, former members of a party can bring actions about the conduct of a party in expelling them, or its conduct during one’s membership

57. Upon consideration of the facts in this matter, pleadings, authorities and submissions by counsel, it is our considered view, that we must in the interest of justice give political parties an opportunity to resolve their own disputes internally as required by the provisions of the law. Indeed, questions of membership of political parties, party primaries and nominations must first be addressed by political parties before being escalated to this tribunal and beyond, if need be. Political parties must take charge of making decisions with regard to choose of their nominees, and have the first right to resolve disputes internally, or amicably, with only limited necessary intervention by state tribunals and courts.

58. The requirement for IDRM is not an unnecessary inconvenience placed in the way of a grievant. Apart from encouraging and promoting the use of Alternative Dispute Resolution, as commanded by Article 159 of theConstitution, it serves a judicial economy purpose. It ensures the efficacious use of judicial resources. An aggrieved party has the benefit of the full array of judicial review of the dispute throughout the courts’ hierarchy, starting from the very lowest levels to the apex. Harmony in judicial processes is also achieved by allowing judicial organs to play their respective roles at the appropriate time and stage in the life of a dispute.

59. In the upshot, it is our view that we do not, at this stage, have the jurisdiction to hear the matters raised in both complaints; and cannot, therefore, delve into the question of the legality or propriety of the expulsion of the Complainant from the Party; or address the other prayers sought by the counterparties.

Who bears the costs of this matter?__ 60. 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.

61. We thank learned counsel for their well-articulated submissions, cogent pleadings and patience during the proceeding

Disposition 62. In sum, we make the following Orders:i.We uphold the 1st and 2nd Respondents’ Preliminary Objection.ii.We strike out both casesiii.Each Party shall bear its own costs.

63. Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2022HON. DR. WILFRED MUTUBWA OGW C. ARBVICE CHAIRPERSON – PRESIDINGHON. FATUMA ALIMEMBERHON. WALUBENGO SIFUNAMEMBER