[2022] KEPPDT 960 (KLR)

Njue v United Democratic Alliance & 3 others (Complaint E018 (NRB) of 2022) [2022] KEPPDT 960 (KLR) (30 April 2022) (Judgment)

Neutral citation: [2022] KEPPDT 960 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E018 (NRB) of 2022

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

April 30, 2022

Between

Delvine Moraa Njue

Complainant

and

United Democratic Alliance

1st Respondent

Chairman United Democratic Alliance

2nd Respondent

Chairman National Elections Board United Democratic Alliance

3rd Respondent

Millicent Omanga

4th Respondent

Judgment

Introduction 1. The Complainant is a Registered Member of the 1st Respondent Party and an aspirant for the position of Women Representative Nairobi County having registered as such with the 1st Respondents Party.

2. The Complainant came to learn that the 1st Respondent was not going to conduct the nominations in respect of the position of Women Representative Nairobi County and that the 1st Respondent had given the 4th Respondent direct nominations to the said post of Women Representative Nairobi County.

3. Aggrieved by the Respondent’s decision not to conduct nominations for the position of Women Representative Nairobi County, and instead giving a direct ticket to the 4th Complainant to vie for the position of Women Representative, the Complaint filed the Complaint herein on 22nd of April 2022 under a certificate of urgency. The Certificate of Urgency was accompanied by a Notice of Motion application supported by the complainant’s affidavit and annexures in support.

4. In opposition to the Complaint and the application, the Respondents filed their responses to the claim and written submissions.

5. Pursuant to the directions of the Tribunal, the Complaint proceeded for hearing on the 26th of April 2022.

6. The Complainants were represented by S.M Musau Advocates and the Respondents were represented by SMS Advocates.

Complainant's Case 7. It’s the complainant’s case that she paid the 1st Respondent party Kshs 125,000/-as nomination fees to be allowed to vie for the post of Women Representative in Nairobi County and compete with other aspirants in the party primaries. The 1st Respondent issued her with a receipt acknowledging receipt of the payment but despite this, the 1st Respondent failed to conduct nominations for the position of Women Representative in Nairobi County.

8. Instead of conducting the nominations the 1st Respondent went ahead and issued a direct ticket to the 4th Respondent and the 2nd Respondent categorically informed her that there would be no nomination for that position as a direct ticket had been issued to the 4th Respondent.

9. The complainant states that she made a formal complaint to the 3rd Respondent challenging the decision to issue direct nominations to the 4th Respondent and failing to undertake the nomination exercise but she was denied an audience and her complaint was not heard.

10. She avers that having received the nomination fee, the 1st Respondent ought to have conducted the nomination exercise for the aforesaid position as it was their obligation. The complainant maintains that she had a legitimate expectation that the Respondent would conduct the nomination exercise.

11. She fears that the Respondents will submit the final names of persons nominated to the Independent Electoral and Boundaries Commission (IEBC) including the 4th Respondent which action will disenfranchise her. She therefore seeks the orders sought in the complaint.

Respondents’ Case 12. The Respondents filed their Replying Affidavits sworn by the NEB Chairman Anthony Mwaura, and Millicent Omanga, the 4th Respondent herein, together with their Written Submissions to the complaint all dated April 26, 2022.

13. It is the Respondent’s case that both the 4th Respondent and the Complainant were cleared to compete in the nomination exercise held on April 14, 2022 and that the National Elections Board of the 1st Respondent (UDA) conducted the nomination process as per Article 31 (iii) of the UDA Constitution through interviews which were to take place on the 9/04/2022.

14. The 2nd Respondent claims that the Complainant failed to attend the interview but instead wrote a letter to them dated April 13, 2022 received on the April 14, 2022. Upon completion of the interviews the 4th Respondent emerged the best for the position of Women Representative Nairobi County.

15. The 2nd Respondents has raised the issue of jurisdiction and claims that this Tribunal has no jurisdiction in this matter by virtue of Section 40(2) of the Political Parties Act and that there is no evidence tabled to prove that an attempt to subject the dispute to IDRM whose committee is established under Article 39 of the Party’s Constitution.

16. The 2nd Respondent has also claimed that the two aspirants entered into a consent where they agreed that the 4th Respondent be nominated and a certificate be issued to her and that this consent settled the matter.

17. The Respondents wants this Tribunal to dismiss the complaint with costs.

Issues for Analysis and Determination 18. From the pleadings and 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 Complainant.b.What orders can the Tribunal issue in the circumstances?c.Who bears the costs of the suit.

Whether the Tribunal has jurisdiction to hear and determine the complaint as presented by the Complainant. 19. The issue of jurisdiction was raised by counsel for the Respondent. Jurisdiction being everything it is of utmost importance that the same be sorted out first before moving any further.

20. Counsel for the Respondents submitted that the jurisdiction of the Political Parties Disputes Tribunal is derived from Section 40 of the Political Parties Act (PPA). He submitted that Section 40 (2) the said Act requires that the Tribunal only entertains a complaint where there is proof of an attempt by the complainants for IDRM. According to Counsel for the Respondents the Complainant has not demonstrated that they attempted IDRM as there is no evidence on record to show the same.

21. Section 40 of the Political Parties Act (PPA) 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; andfa).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.

22. We note that the instant dispute arises out of party nominations and is accordingly covered under Section 40(2) of the PPA which requires that evidence be adduced of an attempt to subject the dispute to the internal political party dispute resolution mechanisms (IDRM).

23. What amounts to an attempt at IDRM, however, depends on the circumstances of a particular case. This Tribunal has considered the matter previously and issued guidelines in John Mworia Nchebere &othersvs The National Chairman Orange Democratic Movement &others (NRB PPDT Complaint No. E002 of 2022) wherein 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. ”

24. Turning to the facts and circumstances of this case, we have perused the 1st Respondent’s Constitution and we note that Article 32 thereof (March 2022 edition) establishes the Electoral and Nomination Dispute Resolution Committee (EDRC) to hear and determine disputes resulting from internal party elections or nominations. In essence, the EDRC is the IDRM party organ that is clothed with the mandate of handling nomination disputes. It is thus inescapable to establish whether the Complainant presented the dispute subject of these proceedings to the EDRC prior to moving this Tribunal.

25. The Tribunal has taken judicial notice that the party’s EDRC was fully operational during the gazetted timelines of intra party dispute resolution, and that numerous complaints were lodged before it. All Complaints filed at the EDRC were issued with Application Numbers. In this particular case, we haven’t been shown any Application lodged with the EDRC in respect to this dispute. Neither have we been referred to any Application reference number.

26. The Complainants have instead relied on two letters, one dated April 2, 2022 and another one dated April 13, 2022 to demonstrate an attempt to invoke IDRM. The Respondents on the other hand maintain that the subject letters did not amount to a complaint within the meaning of the Disputes Procedure set out in Schedule B Rule 1 of the EDRC’s Rules of Procedure.

27. Rule 1 of the Rules of Procedure provides on form and contents of an application to include the following: -1. Form and contents of an Application(1)An application shall state:-a.The name, ID number, e-mail address and phone number of the applicant;b.The name, phone number and/or email address of the respondent;c.The date when the decision or action upon which the Application is based arose;d.The decision, if any, complained againste.The grounds on which the application is presented; andf.The name and address of the advocate of the applicant, if any, which shall be the address of service(2)An application shall be:-a.Supported by an affidavit by the applicant containing the grounds on which relief is sought and setting out the facts relied on by the applicantb.Accompanied by copies of any supporting documents to be relied on at the hearing; andc.Signed by the applicant or by any person duly authorised by the applicant(3)a.The application on the first instance shall be filed on the UDA Party online portalb.A least one hour to the hearing, there shall be as many copies of the application filed as there are persons to be served, one file copy and three copies for the Committee4. The applicant shall conclude with a prayer, requesting the Committee to make the appropriate relief……….

28. Whereas we agree with the Respondents that the letters relied on by the Complainant are not strictly in the form prescribed in the procedure rules highlighted above, we remain alive to the provision of Article 159(2)(d) of the Constitution that accords precedence to substance over form. Nothing therefore precludes us from considering whether the contents of the subject letters met the contents of an application as prescribed under Article 32 of the 1st Respondent’s constitution as read together with the procedure rules.

29. We note that the letter dated April 2, 2022 was addressed to the Chairman, National Elections Board (NEB) and served upon the party on April 4, 2022. As we have already observed, pursuant to Article 32 of the party constitution, election or nomination disputes are handled by EDRC, not NEB. The letter cannot therefore in our opinion be regarded as a Complaint filed before the EDRC in accordance with the party Constitution.

30. The letter dated April 13, 2022 on the other hand is addressed to the EDRC. However, there is no evidence placed on record to demonstrate that the letter was served upon and indeed received by the EDRC. The receipt stamp on the face of the letter indicates that the letter was received by NEB on April 14, 2022. As we have already stated, NEB’s mandate does not include resolution of disputes arising out of nominations.

31. We have further examined the contents of the subject letters and we are of the considered opinion that they do not contain the particulars and information to be incorporated in an Application/Complaint before EDRC as set out in the Rules recited above.

32. Further, we note that in the first three paragraphs of the letter dated April 13, 2022, the Complainant seems to be accusing the EDRC of intimidating her, inviting her to an interview, and coercing her to sign a consensus. It is not clear whether the Complainant meant that the EDRC was the offending party or whether the same was a mistake. The subject letter in addition calls for compliance with various demands and notifies the EDRC that failure to comply with the letter would invite legal action. Our view is that the letter is at best a demand before action and does not meet the contents of a Complaint before the EDRC as prescribed by law.

33. Taking into consideration the totality of our foregoing analysis, we find that the Complainant has not demonstrated that she attempted IDRM in accordance with the party laws. It is, thus, our considered conclusion that our jurisdiction under Section 40 (1) of the Political Parties Act, 2011, was prematurely invoked by the Complainant’s failure to comply with Section 40 (2) of the Act.

34. In the locus classicus on the subject of jurisdiction, the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989)1, the court held that:“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 ofproceedings 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.”

35. Accordingly, we hereby down our tools in respect of the complaint before us.

36. As regards costs, we have considered the circumstances of this case and we direct that each party shall bear its own costs of these proceedings in the interest of fostering party unity.

Disposition 37. In light of the foregoing, we order as follows: -i.The Respondent’s Preliminary Objection dated April 26, 2022 is upheld;ii.This Complaint is struck out; andiii.That each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL, 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA MIGHULO MAGHANGA…………………………(MEMBER)RUTH WAIRIMU MUHORO…………………………...(MEMBER)