[2022] KEHC 12507 (KLR)

Muturi & 4 others v Munene & 4 others (Civil Appeal E348 of 2022) [2022] KEHC 12507 (KLR) (Civ) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12507 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E348 of 2022

JK Sergon, J

June 6, 2022

Between

Justin B Muturi

1st Appellant

Esau Kioni

2nd Appellant

Jacob Haji

3rd Appellant

Joseph Munyao

4th Appellant

Joseph Mathai

5th Appellant

and

Daniel K Munene

1st Respondent

King’ori Choto

2nd Respondent

Registrar Of Political Parties

3rd Respondent

Democratic Party Of Kenya

4th Respondent

Kenya Kwanza

5th Respondent

((Being an appeal against the entire judgment and orders of the Political Parties Disputes Tribunal (PPDT) made on 20th May, 2022 by Jessica M’mbetsa (Presiding member, Samuel Mbiriri Nderitu (Member) and Dr., Adelaide Mbithi (Member) in PPDT complaint no. E010 of 2022))

Judgment

1. On May 20, 2022, the Political Parties Disputes Tribunal hereinafter referred to as the “tribunal” delivered its judgment which is in the following terms:i.The 1st, 2nd, 3rd, 4th and 5th respondents’ (now 1st- 5th appellants) preliminary objection dated May 6, 2022 and all other objections regarding jurisdiction of the tribunal are hereby dismissed in their entirety;ii.The purported coalition agreement entered into with the 3rd interested party (now the 5th respondent) by the 1st respondent (now 1st appellant) on behalf of the Democratic Party of Kenya was done without the authority of the Democratic Party of Kenya and is null and void.,iii.That the appointment of the 1st respondent (now 1st appellant) as the party leader of the Democratic Party of Kenya by the special national delegates convention on February 20, 2022 was un-procedural and is hereby declared null and void.iv.That each party shall bear its own costs of these proceedings.

2. Being aggrieved by the aforesaid decision, the appellants filed this appeal and put forward the following grounds.:i.The learned members of the Political Parties Dispute Tribunal erred in law and in fact and misdirected themselves in the judgment delivered on the May 20, 2022 when they purported to determine the complaint lodged by the 1st and 2nd respondents as opposed to first dealing with the preliminary objection raised by the appellants thereby occasioning a serious miscarriage of justice.ii.The learned members of the Political Parties Dispute Tribunal erred in law and in fact by failing to first establish whether or not it had jurisdiction and whether the 1st and 2nd respondents had properly moved it for the orders sought as per the mandatory provisions of section 40(2) of the political Parties Act, 2011 and rule 7(1) of the Political Parties Disputes Tribunal (procedure) Regulations, 2017. iii.The learned members erred in law and in fact and misdirected themselves by failing to acknowledge the provisions of rule 7(1) of the Political Parties Disputes Tribunal Rules, 2017 before pronouncing themselves on jurisdiction thus their actions were total misdirection in law occasioning a serious miscarriage of justice.iv.The learned members of the Political Parties Dispute Tribunal erred in ale and in fact in their judgment delivered on May 20, 2022 by ignoring and/or failing to take cognizance of rule 37 of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 the Political Parties Act by rendering their decision plainly wrong and erroneous and occasioning a serious miscarriage of justice.v.The learned members of the Political Parties Dispute Tribunal erred in law and in fact in their judgment delivered on May 20, 2022 by invoking rule 40 of Political Parties Disputes Tribunal (procedure) Regulations, 2017 suo moto with total disregard to the provisions of Regulation 7(1) of the Political Parties Disputes Tribunal (procedure) Regulations, 2017 in rendering their decisions plainly was wrong and erroneous and occasioning a serious miscarriage of justice.vi.The learned members of the Political Parties Dispute Tribunal erred in law and in fact in their judgment delivered on May 20, 2022 by ignoring and/or failing to take cognizance of clear constitutional and statutory provisions to wit article 47 and 50 of the constitution as read together with Fair Administrative Action Act 2015, regulation 7(1) of the Political Parties Disputes Tribunal (procedure) Regulations, 2017 and section 40 (2) of the Political Parties Act by rendering their decision plainly wrong and erroneous and occasioning a serious miscarriage of justice.vii.The learned members erred in law and in fact by failing to appreciate the fact that appellants had objected to the jurisdiction of the tribunal and the effect of their final orders to condemn such parties unheard contrary to the mandatory provisions of article 50 of the Constitution and in clear contravention of section 430(2) of the Political Parties Act thereby occasioning a serious miscarriage of justice.viii.The learned members erred in law and in fact by restricting themselves to the provision of article 11(a) (i), (ii) (iii) and excluding the provision 11(a) (v) Democratic Party of Kenya in pronouncing themselves the powers of the party the before pronouncing themselves on jurisdiction thus their actions was total misdirection in law occasioning serious miscarriage of justice.

3. This court gave directions to have the appeal disposed of by written submissions.

4. Before considering the substance of this appeal, let me set out the brief background of this appeal. Daniel K Munene and King’ori Choto, being the 1st and 2nd respondents herein, filed a complaint before the tribunal dated April 11, 2022 seeking for the appointment of the 1st appellant as party leader of the 4th respondent to be declared as null and void.

5. They also sought for the coalition agreement between the Democratic Party and the 5th respondent to be also declared null and void.

6. They further applied for an order directing the Director of Criminal Investigation, and Ethics and Anti-Corruption Commission to investigate the source of undisclosed funds used to organize and host the 4th respondent’s national delegates convention of February 20, 2022 with a view of preferring charges against the culprits.

7. The record shows that the appellants filed two preliminary objections. One is dated May 6, 2022 while the second is dated May 12, 2022. The complaint was disposed of by written submissions which the tribunal considered and arrived at the decision set out hereinabove dated May 20, 2022.

8. Though the appellants put forward a total of eight (8) grounds of appeal, those grounds can be disposed of by one main ground. That is whether the tribunal erred and misdirected itself in the judgment delivered on May 20, 2022 when it purported to determine the complaints lodged by the 1st and 2nd respondents instead of first dealing with the preliminary objections raised by the appellants.

9. It is the submission of the appellants that the tribunal erred when it proceeded to determine the preliminary objection together with the substantive complaint instead of first determining the preliminary objections.

10. The appellants further submitted that their preliminary objection dated May 12, 2022 was premised on rule 7(1) of the Political Parties Disputes Tribunal Regulations, 2017which provides that the tribunal shall commence to hear and determine a dispute if it is filed within 30 days from the date of the decision complained of.

11. The appellants pointed out that the complaint was filed on April 11, 2022 before the tribunal to challenge the resolutions of theNDC passed on February 20, 2022 at the Bomas of Kenya. The appellants argued that the complaint ought to have been filed within 30 days from the date of the decision complained of which was to be on or before March 19, 2022.

12. This court was urged to find that the tribunal had no jurisdiction to entertain the complaint which was filed out of time. The appellants pointed out that despite the tribunal acknowledging that the decision complained of occurred on February 20, 2022 it went ahead at great lengths to skirt around the statutory requirements and gave itself jurisdiction.

13. In response to this ground, the 1st and 2nd respondents are of the submission that it was in order for the tribunal to hear the preliminary objections simultaneously with the complaint. They pointed out that the appellants had served the preliminary objections upon them prior to the hearing.

14. The respondents further argued that the tribunal had jurisdiction to hear and determine the complaint under section 40(2) of the Political Parties Act. They stated that they were able to establish before the tribunal that they attempted to have the dispute resolved through the internal dispute resolution mechanism.

15. The 4th respondent also urged this court to take into account the replying affidavit of Dr Jacob Haji sworn on March 10, 2022. In the aforesaid affidavit it is clear that the deponent exhibited the ad hoc party internal committee and the national executive committee deliberations and agreement on the way forward made on February 20, 2022.

16. I have re-evaluated the arguments made before the tribunal and further considered the rival submissions over the two preliminary objections. It is not in dispute that the tribunal overruled the two preliminary objections.

17. The first preliminary objection is to the effect that the respondents had not approached the party’s internal dispute resolution mechanism (IDRM) before approaching the tribunal. The tribnal came to the conclusion that the respondents had shown that they attempted to use the partyIDRM before approaching the tribunal.

18. Upon re-evaluation of the affidavit evidence and the arguments made before the tribunal, it is clear in my mind that the respondents established that they attempted to have the dispute first resolved through the party IDRM. Article 38 of the 4th respondent’s constitution provides that any dispute concerning any matters relating to the party management should first be resolved by way of the established party internal mechanism.

19. Under section 40(1) (b) of the Political Parties Act, The tribunal can assume jurisdiction over such disputes after it is shown that a complainant has utilized the party IDRM or in the alternative has shown he made attempts to utilize such a forum without success.

20. The respondents have shown they made attempts hence i find that the complaint was properly before the tribunal. I am satisfied the tribunal came to the correct decision to dismiss the appellants’ first preliminary objection therefore it cannot be faulted.

21. The second preliminary objection is to the effect that the complaint was filed outside the statutory period of 30 days. The tribunal considered the rival arguments and in the end overruled the appellants’ preliminary objection stating that the objection was raised too late in the proceedings.

22. Having re-evaluated the material placed before the tribunal, it is not in dispute that the complaint was filed on April 11, 2022 before the tribunal where the respondents sought to challenge the resolution of the national delegates convention held on February 20, 2022 at the Bomas of Kenya.

23. It is also not in dispute that under regulation 7(1) of the Political Parties Disputes Regulations, 2017 that complaints must be filed within 30 days from the date of the decision complained of. The tribunal appears to have acknowledged that the respondent’s complaint was filed outside the thirty (30) days fixed by the regulations.

24. The tribunal went at length to explain the circumstances which gave rise to the late filing of the complaint. It also went ahead to state that the preliminary objection was filed too late in the proceedings.

25. I am convinced by the appellants’ argument that the tribunal fell into error in overruling or in dismissing the preliminary objection dated May 12, 2022. There was no application made before the tribunal to extend time to file and admit the complaint out of time.

26. It is trite law that a preliminary point of law can be raised at any time of the proceedings. It was therefore wrong for the tribunal to hold that the appellants’ preliminary was raised too late in the proceedings.

27. It is also trite that the complaint was filed outside the 30 days prescribed by the regulations. It cannot be said that the preliminary objection is a procedural technicality. I am persuaded to allow the appeal on this singular ground.

28. In the end, this appeal is allowed giving rise to issuance of the following orders:i.The judgment and orders made by the tribunal on May 20, 2022 are hereby set aside and are substituted with an order striking out the complaint dated April 11, 2022. ii.The decision and or order dismissing the preliminary objection dated May 12, 2022 is set aside and is substituted with an order upholding the preliminary objection.iii.Each party to bear its own costs.

DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2022. .......................................J. K. SERGONJUDGEDelivered online via Microsoft Teams at Nairobi this 6th day of June 2022. .........................................D. O. CHEPKWONYJUDGEIn the presence of:.......................for the 1st Appellant.......................for the 2nd Appellant.......................for the 3rd Appellant.......................for the 4th Appellant.......................for the 5th Appellant......................for the 1st Respondent..................... for the 2nd Respondent..................... for the 3rd Respondent..................... for the 4th Respondent..................... for the 5th Respondent