[2022] KEHC 15359 (KLR)

Pamoja African Alliance Party v Kinyanjui & another; Azimio La Umoja One Kenya Coalition Party (Interested Party) (Civil Appeal E426 of 2022) [2022] KEHC 15359 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15359 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E426 of 2022

JK Sergon, J

November 11, 2022

Between

Pamoja African Alliance Party

Appellant

and

Josephine Wairimu Kinyanjui

1st Respondent

Registrar of Political Parties

2nd Respondent

and

Azimio La Umoja One Kenya Coalition Party

Interested Party

(Being an appeal from the judgment of the Political Parties Dispute Tribunal delivered on 25th May, 2022 in PPDT complaint No. E006 of 2022)

Judgment

1. Josephine Wairimu Kinyanjui, the 1st respondent herein, filed a complaint before the Political Parties Disputes Tribunal against Pamoja African Alliance party, the appellant herein and the Registrar Political Parties, the 2nd respondent herein.

2. The main issue being raised by the 1st respondent in the complaint is that the coalition agreement between the appellant and Azimio La Umoja One Kenya Coalition, the Interested party herein was signed per incuriam without the requisite authority from the appellant’s national executive committee.

3. The 1st respondent was of the submission that in the circumstances the agreement was null and void. The Political Parties Disputes Tribunal heard the complaint and in the end found that its jurisdiction was prematurely invoked and proceeded to dismiss the complaint.

4. Being aggrieved the appellant preferred this appeal and put forward the following grounds:i.The honourable tribunal erred in law and in fact in finding that it lacks jurisdiction to hear and determine the complaint and the counter-claim.ii.That the honourable court erred in law and in fact in finding that the jurisdiction of the tribunal was prematurely invoked.iii.The honourable tribunal erred in law and in fact in failing to make a finding on the question of the legality of the coalition agreement in so far as it integrated Pamoja Africna Alliance party as a constituent of the Coalition political party which issue was the focal point of the dispute.iv.The honourable tribunal misdirected itself in finding that the appellant’s members unanimously resolved to join a coalition in special PAA NEC meeting that was held on the Monday March 21, 2022. v.The honourable tribunal exhibited extreme bias against the appellant and thus arriving at an erroneous and improper judgment with glaring contradictions and failed to properly determine the actual issues in controversy.vi.The honourable court misdirected itself in finding that the “turquana” principle in royal British Bank v Turquand (1856) 6 e & B 327 is applicable to the circumstances of this case.vii.The honourable tribunal erred in law and in fact in failing to take into consideration the political rights as well as the rights of association of a member of political party in circumstances where his/her own political party is illegally included as a constituent member of a coalition political party.viii.The honourable tribunal was extremely biased against the appellant and disregarded the issues raised by the complainant to with that;a.The inclusion of the appellant in the coalition agreement is null and void for want or procedural and substantive statutory complianceb.The existence of any coalition agreement was disputed in entirety and that the complainant could not have in the circumstances subjected the claim to the internal dispute resolution mechanism under the agreement whose contents were unknown;’c.The complainant submitted that having disputed the existence of any coalition agreement none was produced before the honourable tribunal by either of the respondents. As such even the honourable members of the tribunal did not have the benefit of perusing the alleged coalition agreement to enable it make a determination on the existence.ix.The honourable tribunal thus erred in law and in fact in considering irrelevant information and disregarding matters presented before it by the complainants thus arriving at a wrong decision.

5. When the appeal came up for hearing, this court gave directions to have the appeal disposed of by written submissions. I have re-evaluated the arguments which were presented before the Political Parties Disputes Tribunal. I have also considered the rival written submissions.

6. Though the appellant put forward a total of 9 grounds of appeal, I am of the opinion that the main issue which should be determined on appeal is the question of jurisdiction. It is the submission of the appellant that the Tribunal erroneously dismissed the complaint for want of jurisdiction yet under section 40 (1) of the Political Parties Act the tribunal had jurisdiction to entertain the complaint over disputes between a member of a political party and a political party and disputes between coalition partners where the same are subjected to the internal political party dispute resolution mechanism.

7. It was pointed out by the appellant that the complaint before the tribunal was first handled internally before the same was filed before the tribunal. It is said that the appellant wrote a letter dated April 15, 2022 invoking the party internal dispute resolution mechanism. It is stated that the party was not in a position to entertain the complaint therefore forcing the appellant to approach the tribunal.

8. The respondent is of the submission that the appellant did not tender any credible evidence to show that there were attempts to use the party internal dispute resolution mechanism.

9. The interested party on the other hand is of the submission that the tribunal did not in any way err in law and in fact in holding that its jurisdiction had been wrongly and prematurely invoked.

10. In its judgment, the tribunal stated inter alia as follows:“The tribunal’s powers to hear and determine disputes under section 40(1) of the act is subject to the provisions of section 40(2) which requires that before a party approaches the tribunal, it has to adduce evidence of an honest attempt to subject the dispute to the political party’s internal dispute resolution mechanism.”

11. Having considered the rival written submissions plus the material placed before this court I have come to the following conclusions in this appeal. First, it is clear from the record of the tribunal that no evidence were adduced apart from two letters to show that the process of party internal dispute resolution mechanism was pursued and became impracticable to insist on the same. With respect, the tribunal was clear that there was no honest attempt to resolve the dispute. The tribunal was quite emphatic that the appellant did not demonstrate any effort taken to pursue the complaint in accordance with the party processes. The tribunal further stated that the appellant’s letter was general and did not bring the complaint within the exceptions contemplated.

12. I am convinced that the tribunal properly declined to assume jurisdiction over the appellant’s complaint since the party internal dispute resolution mechanism had not been exhausted.

13. In the end, the appeal is found to be without merit. It is dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………………….J K SERGONJUDGEIn the presence of:……………………………. for the appellant……………………………. for the 1st respondent................................... for the 2nd respondent.................................... for interested part