[2022] KEPPDT 990 (KLR)

Osman v National Rainbow Coalition - Kenya (Complaint E122 (NRB) of 2022) [2022] KEPPDT 990 (KLR) (Civ) (12 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 990 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E122 (NRB) of 2022

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

August 12, 2022

Between

Sophia Gedi Osman

Complainant

and

National Rainbow Coalition - Kenya

Respondent

Judgment

1. The Complainant is a life member of the Respondent. She was listed as number 8 in the party list that was published by the IEBC on July 27, 2022 as a person living with disability from Degodia community. The Complainant seeks correction in regard to misclassification of her ethnicity, as Degodia instead of Wardey, and her nomination in the category of Persons with Disability instead of Marginalized/ minority category.

2. The Complainant challenges the listing of seven individuals listed from position 1 to 7 of Degodia community under the marginalized group nominees to the county assembly, namely, Adan Ali Isaak (male under Person living with disability category), Halima Maalim Gedi (female under marginalized group), Ahmed Guliye Mulle (male under marginalized group), Amina Abdi Mohamed (female under youth category), Dahir Muktar Sheikh Adi (male under youth category of Ajuran community), Halima Adoor Noor (female under youth category) and Dekow Adi Madey (male under youth category) .

3. The Complainant seeks the following orders from this Tribunal:-a.That the errors be corrected.b.That Sophia Gedi Osman’sinformation be captured under the correct and appropriate ethnicity as Wardey instead of Degodia.c.That the nomination of Sophia Gedi Osman be assigned an appropriate Category to reflect and ensure the appropriate representation of the Wardey Community of Wajir county.d.That the following nominees - Adana Ali Isaak, Ahmed Guliye Moulle, Amina Abdi Mohamed, Dahir Muktar Sheikh Adi, Halima Adoor Noor and Dekow Adi Madey be removed from the category of Marginalized and Minority.

4. The Respondent political party did not file any response in support or opposition to the Complaint. This is notwithstanding service having been effected upon them.

5. Pursuant to the directions that were issued by the Tribunal, the Complaint was heard substantively by way of oral submissions. The Complainant was represented at the hearing by the firm of Sheila Mugo & Company Advocates. There was, however, no representation for the Respondent despite having been served with a hearing notice.

The Complainant’s Case 6. The Complainant claims she is from Warder community which is a minority and marginalized Community in Wajir and a resident of Township Ward in Wajir County and she had applied and paid to be nominated as a Member of County Assembly (MCA) under the ethnic marginalized minority category.

7. She claims that on July 27, 2022, the IEBC published the political party nomination list in which list the Respondent submitted her name under the Persons with Disability (PWD) category for Wajir County. She claims her ethnicity was erroneously indicated as Degodia and not Wardey, and that she should have been categorized as per her application under the category of ethnic minority and marginalized category and not under the PWD category.

8. She claims that the Respondent listed names of persons from degodia community, which is a predominant community in Wajir. She submits that the nomination of a non-marginalized person and misclassification of her ethnicity and category is prejudicial to her and occasioned a miscarriage of justice and further infringed on her right. She prays the nomination be assigned an appropriate ranking to reflect and ensure the appropriate representation for Wardey community and other marginalized people in Wajir.

9. On the question whether the Complainant attempted to resolve the dispute within the party before moving the Tribunal, the Complainant submitted that she had not tried to resolve the matter within the party’s IDRM stating that by the time she found out it was already overtaken by events.

Issues for Analysis and Determination 10. Having gone through the complaint, and the supporting affidavit, we have isolated the following issues for determination:i.Whether the Tribunal has jurisdiction to determine this matter?ii.Whether the Application has merit and what are the appropriate reliefs?iii.Who bears the cost of this matter?

Whether the Tribunal has jurisdiction to determine this matter? 11. Jurisdiction is key as it concerns the powers that a Tribunal has to determine the merits of a case. In this matter, it is the Complainant’s position that this Tribunal has jurisdiction due to the fact that the present dispute is between a party member and the party. Moreover, the Complainant’s reason for failing to undergo IDRM is because it had already been overtaken by events by the time the dispute was declared.

12. This Tribunal’s jurisdiction flows from both Constitutional and Legislative provisions in agreement with the Supreme Court’s averments in the case of Samuel Kamau Macharia Versus KCB and 2 others, Civil Application No 2 of 2011 that;“A court’s jurisdiction flows from either the Constitution or Legislation, or both. Thus a court can only exercise jurisdiction as conferred by the Constitution or written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

13. On that note, Article 159 (1) of the Constitution of Kenya provides that “Judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.”

14. Emphatically, the Political Parties Act (the PPA) provides in Section 40 that;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; and fa. 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.

15. Indeed, prima facie, the present matter qualifies to be determined by the Tribunal since it is a dispute between a member of a political party and the political party in accordance with Section 40 (1)(b) of thePPA as the Complainant is a member of the Respondent. The dispute also arises out of party nominations as provided by Section 40 (1)(fa) of the PPA.

16. This position is, however, negated by section 40 (2) of the PPA that mandates the Complainant to pursue or attempt to pursue IDRM prior to approaching the Tribunal to resolve a matter. In the same spirit, what constitutes an attempt to IDRM was delineated in the case of John Mworia Nchebere & Others vs. The National Chairman Orange Democratic Movement & Others (Nrb PPDT Compliant No E002 of 2022), where 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. ”

17. Looking at the facts of this matter, we acknowledge that in contrast with the John Mworia Nchebere Case discussed above, the Complainant herein admits to not pursuing or attempting to pursue IDRM for purposes of resolving this dispute. It is her position that it had been overtaken by events.

18. We note that, the IEBC list that the Complainant challenges was published on 27th of July. At the same time, the Complainant filed this matter at the registry on the 4th of August 2022, a week after. There is no evidence adduced accounting for these 7 days thereby justifying the failure to pursue IDRM.

19. Notably, this Tribunal has previously been seized with matters of similar facts. In the case ofFatuma Ahmed Sheikh vs Jubilee Party, PPDT Nairobi A Complaint No 117 of 2022, we observed as follows:-“…Turning to the facts of this case as already highlighted above, the Complainant has admitted that there was no attempt to subject this dispute to the Respondent’s IDRM. In fact, she states at paragraph 3 of the Complaint that she did not attempt IDRMbecause by the time she found out, it was already overtaken by events. Counsel stated that she believed that considering the urgency of the matter, the Complainant would be out of time had they attempted IDRM. There has not been placed before us evidence of any communication between the Complainant and the party prior to moving this Tribunal.We note that it is expressly stated in the Complainant’s pleadings that the Respondent’s party list was published by the IEBC on July 27, 2022. This is the date the Complainant became aware of the cause of action subject of these proceedings. The instant complaint was registered in this Tribunal on or about the August 5, 2022. Needless to note, there were over 7 clear days between the date of the publication of the Respondent’s party list and the date of moving this Tribunal. The Complainant has not accounted for these days. She simply avers that they would be out of time had they attempted IDRM. We are not convinced by the Complainant’s justification for failing to attempt IDRM yet she has not accounted for the 7days she had prior to moving this Tribunal. It is not enough to presume that the days are insufficient without any justification.From our foregoing analysis, it is our considered opinion that the exceptional circumstances that were considered in the John Mworia Nchebere Case where this Tribunal may find itself assuming jurisdiction notwithstanding failure to attempt IDRM do not exist in this case.Taking into consideration the totality of the circumstances of this case, we find that there was no honest attempt at IDRM…”

20. All that to say, based on the evidence or lack thereof before this Tribunal, we are not convinced that the present matter qualifies as an exceptional circumstance where the Tribunal should assume jurisdiction despite the Complainant contravening the provisions of Section 40(2) of the Political Parties Act. We thus have no reason to depart from our previous decisions. It is therefore this Tribunal’s position that we are not seized with jurisdiction to hear or determine this matter.

Whether the Application has merit and what are the appropriate reliefs? 21. Having held that we do not have jurisdiction and being guided by the dictum in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989)1, where the Court stated that “Jurisdiction is everything. Without it a court has no power to make one more step,” we lack an authoritative basis to delve into the merits of this case. In deed any further action by the Tribunal will be null and void. On that note, we hereby down our tools.

Who bears the cost of this matter? 22. Whereas costs follow the event, having critically looked at the circumstances of the case, we are of the view that each party should bear its own costs in these proceedings. In reaching this determination, the Tribunal is keen to ensure that it is careful not to undermine party unity.

Disposition 23. In light of the foregoing, we order as follows:-i. The Complaint herein be and is hereby struck out.ii. Each party is to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF AUGUST 2022. DESMA NUNGO(CHAIRPERSON).......................................DR. KENNETH MUTUMA(MEMBER).......................................FLORA M. MAGHANGA-MTUWETA(MEMBER).......................................RUTH WAIRIMU MUHORO(MEMBER)