[2022] KEPPDT 1012 (KLR)

Onyiri v United Progressive Alliance Party (UPA) & another (Tribunal Case E002 (KSM) of 2022) [2022] KEPPDT 1012 (KLR) (27 April 2022) (Ruling)

Neutral citation: [2022] KEPPDT 1012 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E002 (KSM) of 2022

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

April 27, 2022

Between

Everlyn Kemunto Onyiri

Complainant

and

United Progressive Alliance Party (UPA)

1st Respondent

National Elections Board

2nd Respondent

Ruling

Background 1. The Complainant approached the Tribunal on the 21st day of April 2022 by way of a Certificate of Urgency accompanied by a Notice of Motion supported by an Affidavit and a Complaint.

2. The Respondents filed a Replying Affidavit, List and Bundle of Authorities and a Notice of Preliminary Objection all dated 23rd April 2022 in response to the Claimant’s Application.

3. The 1st Respondent is the United Progressive Alliance Party (UPA)(Hereinafter” the Party”) a Political Party registered under the Political Parties’ Act in the Republic of Kenya of which the Complainant is a member.

4. The 2nd Respondent is the National Elections Board of the 1st Respondent. (Hereinafter “the Board.”)

5. The Claimant is a life member of the party, who participated in party activities and paid nomination fees with expectations of vying for a seat at Manga Ward County Assembly.

6. The National Executive Committee of the Party (Hereinafter “the NEC”); by a resolution adopted a non-competitive nomination method; that is Direct Nomination for the Ward at which the Complainant was also interested in vying.

7. The Party invited the Complainant to a preliminary consensus building meeting on the 10th of April 2022 at Hemmingway’s Hotel. A meeting which the Complainant alleges was postponed to pave way for a more popular candidate to attend the meeting.

8. The meeting was rescheduled to the 14th April 2022. However, the Respondents’ claim that the meeting never took place, as they were informed that the Complainant was not interested in building consensus. It was then that they referred the matter to the 2nd Respondent to deal with as they found appropriate.

9. The Complainant met the National Elections Board on the 20th April 2022 after having been invited by the Board by an SMS on the 19th April 2022. Nonetheless the Parties herein failed to reach a consensus at the meeting.

10. Thereafter the National Executive Committee of the Party recommended that the 2ndRespondent adopts a non-competitive method and grant automatic nomination of candidates as provided for under the Party’s Elections and Nomination Rules.

11. The Complainant filed a Complaint seeking a stay of issuance of Direct Tickets to UPA Candidates for Manga Ward.

12. Furthermore, he urged the Tribunal to issue a declaration that Direct Nomination for any member of Manga Ward be declared null and void.

13. And that, the Tribunal Orders the Respondents to carry out Party Primaries Nominations for Manga Ward in Nyamira County.

14. Additionally, that the Honorable Tribunal directs the 1st Respondent to refund all Nomination Fees to all eligible candidates where the method of Direct Nomination was resorted to country wide.

15. Finally, that all the Respondents jointly bear the cost of the claim.

16. The 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 23rd April 2022 (Hereinafter “the PO”) disputing the jurisdiction of the Tribunal to hear and determine this matter.

17. The Tribunal directed that the PO be heard first before the substantive application and that the matter be dispensed with by way of oral submissions.

The Preliminary Objection. 18. The PO was based on the following grounds namely that:i.The suit contravenes section 40 of the Political Parties Act 2011 where the Tribunal lacks the jurisdiction to handle the said matter as the Complainant has evaded the mandatory step of settling a dispute through the parties Internal Dispute Resolution Mechanisms.ii.The Complaint is premature, unfounded and an abuse of court process.

19. The Respondents argued that Rule 19 of the Party Nomination Rules provides for a Dispute Resolution Committee of the Party Appeals Tribunal and that the Complainant has not demonstrated any evidence of attempt at Party Dispute Resolution.

20. The Complainant in response stated that the Respondents are raising issues of fact which cannot be the subject of a Preliminary Objection.

21. Furthermore, that the Respondents have no Internal Dispute Resolution Mechanisms upon which she could be accused of evading.

Issues For Determination 22. The Tribunal has carefully considered the Preliminary Objection and all the pleadings in this case and the evidence presented by the respective parties and will determine the following issuesa.Whether the Respondents’ Preliminary Objection is competent and meets the threshold required by law.b.Who bears the costs of this proceedings?

Analysis And Determination 23. Whether the Respondents’ Preliminary Objection is competent and meets the threshold required by law

24. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing. Ltd –vs.- 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.”

25. The issues raised by the Respondents in their Preliminary Objection are on the competency of the proceedings brought by the Complainant before this Tribunal.

26. The issues being urged by the Respondents herein are that the Complainant has not followed the party’s regulations for the IDRM process and therefore cannot approach this Tribunal.

27. Furthermore, that the Complainant has not provided any evidence that she attempted IDRM in accordance with the Party’s Rules.

28. The Claimant contends that the Party did not have any IDRM Mechanisms in place and thus they were not able to attempt IDRM.

29. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v. Karisa Chengo [2017]eKLR, determined that;“By jurisdiction is meant the authority which a Court has to decide matters that are litigated 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.”

30. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

31. In Agnes Mukami and 5 Others Vs Ngewahi And Company (2005) eKLR the court stated that“…A clear and well taken Preliminary Objection may expedite disposal of matters before a Court on the other hand a vague Preliminary Objection often causes delay in determination of matters”

32. A reading of Section 40 of the Political Parties Act of 2011 as amended by the Political Parties Amendment Act of 2022 which spells out the jurisdiction of this Tribunal states that: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”

33. From a reading of the above it is already clear that the dispute at hand being a dispute between a member of a Political Party and a Political Party falls within the definition of Section 40(1) (b).

34. In Kimani Wanyoike vs. ECK CA 213/95 the Court of Appeal pronounced itself as follows:“Where there is a law prescribed by either a constitution or an Act of Parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed.”

35. 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:“Where there is a clear procedure for the redness of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

36. The issue of whether this Tribunal has jurisdiction to entertain this matter thus falls to the question of 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 Act.

37. In Kieru John Wambui & another v Jubilee Party; Secretary General, Jubilee Party & 2 others (Interested Parties) [2021]eKLR this pronounced themselves as follows:Taking into consideration the foregoing reasons and the findings in the above cases, and in the absence of any evidence by the Complainants to demonstrate that their attempt to invoke IDRM was frustrated, we find that jurisdiction cannot, at this stage vest in this Tribunal. This Tribunal is not properly seized of jurisdiction and we accordingly uphold the Preliminary Objection. Consequentially this Complaint be and is hereby struck out for want of jurisdiction

38. The Evidence presented before this Tribunal shows that the Dispute Resolution Organ exists under Rule 19 of the Nomination Rules. Moreover, that there has been no contest on the authenticity of the documents by the Complainant herein.

39. Furthermore, the Complainant has not provided any evidence whatsoever showing that she attempted to resolve the dispute with the Party’s Dispute Resolution Organ.

40. For this reason, it is this Tribunal’s considered opinion that the Complainant has not demonstrated an Honest and Reasonable attempt to pursue Internal Dispute Resolution Mechanisms with the Party.

Conclusion 41. It is therefore this tribunal’s finding that:i.The Preliminary Objection herein is allowed;ii.The complaint is hereby struck outiii.Each Party shall bear the costs.iv.It is so ordered.

DATED AT NAIROBI THIS 27TH DAY OF APRIL 2022----------------------------------HON.DR WILFRED MUTUBWA(VICE CHAIRPERSON PRESIDING)_________________________HON. CHRP SIFUNA WALUBENGO(MEMBER)_________________________HON. FATUMA SAMAN(MEMBER)__________________________SIGNED BY: DR WILLY MUTUBWA-PRESIDING MEMBER