[2022] KEPPDT 963 (KLR)

Njoroge & 5 others v United Democratic Alliance & 2 others; Karanja & another (Interested Parties) (Complaint E012 (NRB) of 2022) [2022] KEPPDT 963 (KLR) (Civ) (27 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 963 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E012 (NRB) of 2022

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

April 27, 2022

Between

James Wanjohi Njoroge

1st Complainant

Peter Mwangi Munge

2nd Complainant

Hashim Kamau Kimani

3rd Complainant

Paul Ndung’u Irungu

4th Complainant

Cyrus Kanyi Ndirangu

5th Complainant

Anthony Kirubi Njoroge

6th Complainant

and

United Democractic Alliance

1st Respondent

Chairman United Democratic Alliance

2nd Respondent

United Democratic Alliance

3rd Respondent

and

Mafaka Michael Ngugi Karanja

Interested Party

Chege Mwaura

Interested Party

Judgment

Introduction 1. The United Democratic Alliance (UDA) party the 1st respondents in this complaint, held its party primaries on the April 14, 2022 and issued provisional certificates of nomination to the 1st, 2nd, 3rd, 4th, 5th and the 6th complainants, after they won the said nominations. Notwithstanding their victory, the 2nd respondent on the April 17, 2022 resolved to conduct fresh nominations in the same areas where nominations subject hereof had been conducted.

2. Aggrieved by the respondent’s resolution to conduct repeat nominations, the complainants herein lodged the instant dispute on April 19, 2022 vide the complaint filed herein together with the notice of motion application filed under certificate of urgency. The complaint and the application, are supported by the affidavits sworn by the 1st complainant, on behalf of the 2nd, 3rd, 4th, 5th and 6th complainants.

3. In opposition to the complaint and the application, the respondents filed a response to the claim dated April 21, 2022 and a replying affidavit sworn by the chairman of the National Elections Council for UDA on the same date.

4. The tribunal issued directions for hearing of the complaint on April 25, 2022 by way of highlighting of the written submissions. On the hearing date, the complaint by the 3rd, 4th and 6th complainants was withdrawn with no orders as to costs. Further, Mr Mafaka Michael Ngugi Karanja and Mr Chege Mwaura were joined in these proceedings as the 1st and 2nd interested parties respectively and they relied on their supporting affidavit on record in response to the claim. The hearing proceeded as scheduled.

5. The 1st, 2nd and 5th complainants were represented by Mr Mburu Advocate and Ms Shivali Advocate, the respondents were represented by Mr Mutuma Advocate and the 1st and 2nd interested parties were represented by Mr Njiiri Advocate.

Complainants Case 6. The 1st, 2nd and 5th complainants aver that they are all registered members of the United Democratic Alliance (UDA) party and sought nominations in the UDA party preliminaries that were held on April 14, 2022.

7. The 1st complainant garnered 1112 votes and was declared winner and issued with UDA’s certificate of nomination dated April 15, 2022 as the party’s nominee for Member of Parliament for Roysambu constituency.

8. The 2nd complainant garnered 804 votes and was declared winner and issued with UDA’s certificate of nomination dated April 15, 2022 as the party’s nominee for Member of County Assembly (MCA) for Nairobi Central Ward in Starehe constituency.

9. The 5th complainant garnered 222 votes and was declared winner and issued with UDA’s certificate of nomination dated April 15, 2022 as the party’s nominee for Member of County Assembly (MCA) for Ngara Ward in Starehe constituency.

10. It is the said complainants’ case that there was no and/or they were not aware of any complaint lodged against the complainants’ nominations at the UDA party’s Electoral and Nomination Dispute Resolution Committee as provided for by article 14 of theUDA Final Nominations and Elections Rules. That the respondent unilaterally and without following due process or giving due notice and without the authority of the law resolved to conduct repeat nominations.

11. They claim that the decision to call for repeat nominations was done unprocedurally and that the public notice of April 17, 2022 calling for repeat elections was illegal and ought to be declared null and void. Consequently, the nomination exercise held on the April 20, 2022 ought to be declared non-consequential.

12. The complainants have maintained that this tribunal has jurisdiction to hear and determine this complaint as party primaries disputes do not require Internal Dispute Resolution Mechanism (IDRM). Further, it is the complainants submission that what brought them before the tribunal is the issue of the illegality of the notice of April 17, 2022, which could not have been dealt with at the party’s IDRM. That the party’s IDRM only has the mandate to recommend, and cannot issue orders for injunction against National Election Board (NEB) or order NEB.

13. The complainants seek for judgment against the respondents for:-i.An order of permanent injunction restraining the respondents from cancelling the nomination of the 1st, 2nd and 5th complainants and holding repeat or fresh elections in Roysambu Constituency (MP), Nairobi City Central Ward (MCA), and Ngara Ward (MCA).ii.An order declaring the public notice of April 17, 2022 calling for repeat nomination in Roysambu Constituency (MP), Nairobi City Central Ward (MCA), and Ngara Ward (MCA).iii.Costs of the suit.iv.Any other orders as the tribunal may deem fit to grant

Respondents’ Case 14. The respondents filed their response to the claim dated April 21, 2022 and served the same upon the complainants on the April 22, 2022. They also filed affidavits on record and written submissions.

15. The respondents objected to the jurisdiction of this tribunal to hear and determine this matter arguing that the complainants had not explored the party IDRM prior to moving the tribunal contrary to section 40(2) of the Political Parties Act (PPA). It was submitted that the only parties who attemptedIDRM, the 3rd, 4th and 6th complainants, had since withdrawn their claim. That no attempt whatsoever was made by the 1st, 2nd and 5th complainants.

16. In response to the averment by the 1st complainant, that he did not invoke the party’sIDRM because it did not have jurisdiction to issue the orders sought, the respondent submitted that the claimants had not demonstrated an attempt to file the complaint with the party and that the party rejected their claim. It was further submitted that the tribunal was not pointed to any provisions of the party laws to demonstrate that the party’s IDRM had no jurisdiction. That in fact, the core mandate of NEB is to ensure elections are conducted in accordance with the law and that it was squarely within the mandate of NEB to scrutinize and direct fresh nominations.

17. The respondents further submitted that even assuming that the party’s IDRM had no jurisdiction to injunct the party’sNEB, which argument is opposed, the complainants herein sought not only injunctive reliefs but also other forms of redress including a declaration that the notice of April 17, 2022 was illegal. According to the respondents, the complainants excuse for not invoking IDRMwas flimsy.

18. It is the respondent’s case that theNEB of the 1st respondent (UDA) is mandated to plan, organize, direct, coordinate the implementation of elections and nominations by the county, constituency, ward and polling center committees, issue interim certificates to candidates duly elected or nominated and even cancel the party elections where the same is deemed riddled by irregularities as provided in article 20 of the 1st respondents constitution.

19. On April 14, 2022 the respondent undertook nomination election exercise for various positions countrywide including Roysambu Constituency (MP), Nairobi City Central Ward (MCA), and Ngara Ward (MCA).

20. The respondents claims that it came to their attention that elections in various wards and constituencies across the country did not meet the threshold of a free and fair election and there were reports of widespread interferences in the electoral process by the aspirants, malpractices and irregularities in the elections and in some instances delays in the delivery of ballot boxes and election materials.

21. As a result, the respondents held a meeting where it was resolved that all results in the affected areas which include in Roysambu Constituency (MP), Nairobi City Central Ward (MCA), and Ngara Ward (MCA) be nullified and a repeat election be carried out.

22. The respondents claims that this decision was made well within the mandate of the NEB of the 1st respondent which has the responsibility and is committed to conducting free, fair, and credible nominations. The decision was then promptly communicated to all the aspirants, voters and the general public by giving adequate notice through the established party channels as well as social media platforms.

23. The respondents claim that the Returning Officer Roysambu Constituency one Mr Anthony Otieno colluded with the OCPD Kasarani Police Station and connived ways and measures to facilitate and interfere with the nominations. On the day of the nominations, the OCPD Kasarani Police Station confiscated and left with the ballot boxes and the election materials meant for the elections therefore no election took place within the constituency on that day.

24. That the said returning officer failed to make the relevant notifications and instead switched off his mobile phone and has since not updated the board of the 1st respondent on the happenings within his jurisdiction.

25. The respondents claim that there was no election, particularly in Roysambu and that the provisional certificates issued to the complainants were a forgery and were not authenticated as required.

26. The respondents averred that the National Elections Board was an independent body under the 1st respondents constitution and their decision to hold the repeat nominations for the party could not be challenged.

27. The respondents, therefore, urged the tribunal to dismiss the complaint with costs to be awarded to the respondents.

The Interested Parties’ Case 28. The interested parties submitted that the complainants did not invoke IDRM and that therefore the tribunal had no jurisdiction to hear and determine the complaint.

29. They have further challenged the factual averments by the complainants and they maintain that the repeat nominations were done in accordance with the law and that they were declared the winners and issued with provisional certificates. That the tribunal ought to be keen on rules 17 and 18 of the party’s Nomination Rules and NEB’s mandate to issue provisional certificates.

Issues for Analysis and Determination 30. From the submissions by the parties the following issues are for determination:a.Whether the tribunal has jurisdiction to hear and determine the complaint as presented by the complainants.b.Whether the notice to have a repeat nomination issued by the respondents was illegal and therefore null and void.c.Who bears the costs of the suit.

Whether the Tribunal has jurisdiction to hear and determine the complaint as presented by the Complainant. 31. The respondents and the interested party have challenged our jurisdiction to hear and determine this matter. We note that their objection was grounded on the old section 40 (2) of the PPA as read together with article 31 of the party’s constitution which limits the tribunal’s jurisdiction to matters “heard and determined” by the IDRM of a party. Section 40(2) has since been amended extending the tribunal’s jurisdiction to instances where there is evidence of an attempt to subject the dispute toIDRM.

32. 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.”

33. In the context of this tribunal, our jurisdiction is circumscribed by article 169 (1) d of the Constitution as read with sections 40 and 41 of the Political Parties Act, 2011. We cannot expand it, not even by judicial craft or creativity.

34. We have perused the record and we note that no evidence has been laid before the tribunal by the 1st, 2nd and 5th complainants of an attempt to file the complaints subject hereof before the UDA Electoral and Nomination Dispute Resolution Committee (DRC). The said Complainants have in fact confirmed that they did not attempt IDRM and they have advanced their reasons for the non-engagement. According to the 1st, 2nd and 5th complainants, the complaint in question related to the legality of the decision by the NEB to call for fresh nominations, and the DRCdoes not have powers to injunct the NEB in this regard. Under these circumstances, their only recourse was to turn to the Tribunal as the only forum that could grant the orders they sought.

35. The tribunal is not persuaded by reasons adduced by the 1st, 2nd and 5th complainants regarding their failure to engage the IDRM process. No evidence has been placed before the tribunal to demonstrate that theDRC did not have powers to attend to the matter in dispute. Our reading of the party’s constitution indicates that the DRC is established to address all electoral disputes. More specifically, article 31 of the UDA constitution suggests that the complaint in question falls within the mandate upon which the DRC has been established. The said article provides: “There is hereby established the Dispute Resolution Committee whose mandate is to receive, hear and determine disputes resulting from internal party elections or nominations”. Furthermore, article 38 goes on to state that: “Any dispute, other than an electoral dispute arising out of party elections and nominations, shall be adjudicated by the IDRC. We are thus unequivocal that matters relevant to the instant dispute ought to have been canvassed before the DRC (or an attempt made to present the same to the DRC) prior to resort to the tribunal.

36. We further observe that there was sufficient time to engage the Nomination Dispute Resolution Committee from the moment the public notice by NEB calling for fresh elections was issued on April 17, 2022 to the date that the instant matter was filed before this tribunal i.e April 19, 2022 and the date scheduled for the repeat nominations i.e, April 20, 2022. As we have already observed, there is no record of their attempt to do so.

37. In summary, this honourable tribunal finds that there were no attempts to engage the IDRM of the party. Furthermore, the tribunal is not satisfied with the reasons put forth by the complainant for the failure for such an engagement, namely the belief the Dispute Resolution Committee (DRC did not have necessary jurisdiction. In line with section 40(2) of the PPA the tribunal therefore finds and holds that it does not have jurisdiction to hear this matter.

Issues b) and c) as to the Merits of the Application 38. Jurisdiction is sacrosanct when it comes to the powers that a court or tribunal may have to continue proceedings or examine the merits of a case. Courts have emphasised, in a plethora of decisions, times without number, that jurisdiction is everything. It is at the heart of any judicial function. In the locus classicus on this subject, 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.”

39. A court or tribunal is thus obligated to lay down its tools as soon as it holds the opinion that is without jurisdiction. Having determined that we do not have jurisdiction to determine this matter, this honourable tribunal finds no further reason to examine the merits of the instant complaint.

40. The tribunal notes the prayers by the respondents and interested parties relating to costs. We are of the view that each party bears its own costs in this matter. In exercising its discretion to reach this conclusion, the tribunal is alive to the fact that the complaint herein has been struck off on account of jurisdiction and not on examination of the inherent substance and merits of the claim. It is the tribunal’s view that it ought to be keen not to discourage claimants from bringing claims on their merit owing to an unfavourable determination on costs. This view resonates with the values and principles inherent in our Constitution and the furtherance of the democratic rights of citizens.

41. Considering the foregoing, we grant the following orders: -i.That the complaint herein be and is hereby struck out for want of jurisdiction.ii.That each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF APRIL 2022. DESMA NUNGO(CHAIRPERSON)DR. KENNETH MUTUMA(AD HOC MEMBER)FLORA MIGHULO MAGHANGA(AD HOC MEMBER)