[2022] KEHC 572 (KLR)

Republic v Registrar of Political Parties & 3 others; Hasssan (Exparte) (Miscellaneous Application E048 of 2022) [2022] KEHC 572 (KLR) (Judicial Review) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 572 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E048 of 2022

AK Ndung'u, J

June 8, 2022

Between

Republic

Applicant

and

Registrar of Political Parties

1st Respondent

Azimio La Umoja One Kenya Coalition Party

2nd Respondent

Maendeleo Chap Chap Party

3rd Respondent

Independent Electoral and Boundaries Commission

4th Respondent

and

Mahat Rashid Hasssan

Exparte

Judgment

1. Before this Court is the Ex parte Applicant’s motion dated 10th May, 2022 filed under Sections 7,8,9,11 and 14 of the Fair Administrative Actions Act, 2015, Sections 8 and 9 of the Law Reform Act and Order 53 of theCivil Procedure Rules, 2010. The motion seeks the following orders:(i)That an order of certiorari do issue to remove into this court and quash the decision of the 1st Respondent to include and gazette the name of the 3rd Respondent as a Constituent Political Party of the 2nd Respondent as contained in the Gazette Notice No.4442 of 14th April,2022. (ii)That an order of certiorari to remove into this court and quash the decision of the 1st Respondent herein of refusing to remove and/or delist the name of the 3rd Respondent from being a member of the 2nd Respondent as communicated vide her letter dated 29th April,2022. (iii)That an order of certiorari do issue to remove into this court, quash and render null and void, any Coalition Agreement purported to have been entered into between the 3rd Respondent and the 2nd Respondents.(iv)That judicial review order of prohibition do issue directed at the 2nd Respondent prohibiting them or any of their agents or persons acting through or under their directives from submitting, depositing, presenting or forwarding to the 4th Respondent the Azimio La Umoja One Kenya Coalition Party Agreement purporting it to be legal Agreement lawfully entered and/or signed between the 3rd Respondent and the 2nd Respondent at all.(v)That judicial review order of mandamus do issue directing and or compelling the 1st Respondent to remove, delete and delist the name of the 3rd Respondent from the list of constituent political parties of the 2nd Respondent contained in the Gazette Notice No.4442 of the 14th April,2022. (vi)That the grant for the leave aforesaid do operate as a stay of enforcement of the said orders and or any proceedings founded thereon until the determination of this application.(vii)That an order of Mandamus do issue directing the 1st and 4th Respondents to accept and receive any Coalition Agreement lawfully entered into by the 3rd Respondent with any other political party of Coalition of Political party of their choice the statutory deadline notwithstanding.(viii)That the costs of the application be provided for.

2. The Ex parte Applicant’s case is that on 10th April,2022, the 3rd Respondent’s Party leader in a press statement on national television erroneously stated that the 3rd Respondent would be joining the 2nd Respondent and aggrieved by this remarks he wrote a letter dated 11th April, 2022 disputing any coalition Agreement entered into between the 2nd and 3rd Respondent without due procedure being followed as set out in the 3rd Respondent’s constitution.

3. Subsequently, in a Gazette Notice No.4442 of 14th April, 2022 the 1st Respondent notified the public of the registration of the 2nd Respondent as a Coalition Political Party comprising of twenty-six (26) political parties including the 3rd Respondent herein. According to the Ex parte Applicant the inclusion of the 3rd Respondent was done in contravention of Article XXI of the Rules for Coalition as there was no involvement of the 3rd Respondent’s Special National Delegates Conference and the PP19 form had been signed by unauthorized persons.

4. The Internal Dispute Tribunal Committee after discussions on the said issue reached the conclusion that there was no inclusivity of members including the Vice Chairman required to execute the decision of joining the coalition. The party leader is said to have had no mandate to execute the coalition document on behalf of the party. The National Executive Council also did not meet to discuss and make a decision to join the 2nd Respondent.

5. On these grounds the 3rd Respondent wrote a letter dated 27th April, 2022 protesting the said inclusion. In response vide a letter dated 29th April, 2022 the 1st Respondent declined to allow the withdrawal request for the reasons that the information in the filled PP-19 form was true, there being a vacancy in the office of the chair of the party the two authorized signatories duly signed the agreement and finally that the Registrar did not have the mandate to withdraw the 3rd Respondent as the 2nd Respondent was already duly registered under section 7(7) of the Political Parties Act,2011.

6. The 3rd Respondent’s constitution is said to provide the following procedures to be followed when entering into coalition agreements;a)The coalition agreement must be in writing and in conformity with the Political Parties Act.b)The NEC or its duly authorized sub-committee shall make the decision to enter into a coalition.c)NGC by 23 majority of members present shall approve the decision to enter into a coalition.d)A special NDC may be called to discuss this agenda.e)The Chairperson, Secretary General and Organizing Secretary shall be the authorized persons to execute the decision on behalf of the party.f)Coalition agreements shall be deposited with the Registrar within twenty-one (21) days of signing the agreement.

7. According to the Ex parte Applicant the 3rd Respondent’s inclusion is said to have been erroneous and void ab initio and therefore the party cannot be compelled to make an application to withdraw from the membership of the 2nd Respondent when the same membership was obtained illegally. It is the Ex parte Applicant’s case that the 1st Respondent being the custodian of all documents relating to the party the Registrar ought to have counter-checked the 3rd Respondent’s actions and its compliance to its constitution.

8. The purported agreement once deposited with the 4th Respondent according to the Ex parte Applicant will occasion great prejudice to the 3rd Respondent as revision of the coalition’s register can only be done after the general elections.

9. The Ex parte Applicant further contends that what is on trial before this court is the 1st Respondent’s decision to gazette the 3rd Respondent as a constituent political party of the 2nd Respondent and the refusal to delete/delist the 3rd Respondent’s name and therefore neither the 2nd Respondent nor the Political Parties Tribunal has the requisite jurisdiction.

10. The issues raised in PPDT Case No. E060 OF 2022 and PPDT E016 OF 2022 are said to be different from those raised in the instant case before this court. Further that the dispute is only concerned with the inclusion of the 3rd Respondent in the coalition as an individual party and therefore the other constituent political parties are not necessary parties to the suit before this court.

11. The NCG Minutes of 29th November,2021 are also said to be in respect to engagement with Azimio la Umoja Movement and not Azimio la Umoja One Kenya Alliance Party and therefore not applicable for the purpose of joining the 2nd Respondent.

12. The Ex parte Applicant in its submissions identifies 4 issues for determination and these are; whether the Ex parte Applicant has locus standi to institute the instant proceedings, whether this Court has jurisdiction over this matter, whether the issues in this suit are res judicata, whether the prayers sought are merited.

13. It is argued that the Ex parte Applicant by virtue of being the Vice Chairman of the 3rd Respondent and pursuant to Article 38 of the Constitution has the locus to institute the proceedings before this court. The Ex parte Applicant contends that the purported Coalition Agreement being illegal at formation there cannot be a valid agreement and therefore the forum for the dispute before this Court cannot lie with the 2nd Respondent and the Political Parties Tribunal. To support this argument, the case of Trans Mara Sugar Co. Ltd & Another vs. Ben Kangwaya Ayiemba & another [2020] eKLR is cited.

14. On the issue of res judicata the Ex parte Applicant urges that the issues in the instant case are different from those that were before the political Parties Tribunal and that the Tribunal does not have jurisdiction to deal with the Judicial Review issues raised in the instant suit. The Trial is also said to have not determined the said issues on merit as the two complaints were struck out. The case of Nancy Mwangi T/A Worthlin Marketers vs. Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 Others [2014] is also cited.

15. The Ex parte Applicant also contends that there are two decisions being challenged and that is the 1st Respondent’s decision to register and/or include the 3rd Respondent as a Constituent Political Party of the 2nd Respondent and secondly the decision on refusal to delist and/or withdraw the name of the 3rd Respondent from the list of Constituent political parties of the 2nd Respondent which decisions are produced before this court. On what constitutes a decision capable of being challenged in a judicial review court the case of Registrar of Political Parties & 6 others Ex parte Edward Kings Onyancha Maina & 7 others [2017] eKLR is cited.

16. It is the Ex parte Applicant’s argument that the 3rd Respondent cannot be invited to make an application for withdrawal yet the said membership was obtained illegally and irregularly. To buttress this argument, the case of Macfoy vs. United Africa Co. Ltd [1961]3 ALL ER 1169 at 1172 is cited.

Respondents’ Case; 17. The 1st Respondent in its Replying Affidavit dated 16th May,2022 and sworn by Joy Onyango a compliance officer contends that the issues raised before this court ought to be raised before the 2nd Respondent and the Political Parties Dispute Resolution Tribunal. In addition, that the issues raised herein have already been determined in PPDT Case No. E060 OF 2022 and PPDT E016 OF 2022.

18. It is the 1st Respondent’s case that the Registrar does not have the power to delist the 3rd Respondent and that the coalition agreement also includes other constituent parties who are not before this court. The application for registration of the 2nd Respondent included Form PP19, a Declaration signed on behalf of the 3rd Respondent and Minutes to the effect of the 3rd Respondent joining a coalition. The 2nd Respondent’s application is said to have included a coalition agreement with provisions on exiting from the coalition and dispute resolution. The letter of 29th April, 2022 relied on by the 3rd Respondent is said to be a product of the 3rd Respondent’s engagement through its organs that led to the registration of the 2nd Respondent.

19. The 2nd Respondent in its Replying Affidavit sworn by Junet Mohammed on 14th May, 2022 contended that the suit before this court is incurably defective as the Ex parte Applicant lacks locus standi to institute the said suit and pursuant to Section 40 of the Political Parties Act the Court lacks jurisdiction and finally that the issues raised in the instant suit are res judicata.

20. The 2nd Respondent also urges that the suit offends Section 49 of the Political Parties Act as read together with Article 16 & 21 of the Coalition Agreement between the 2nd and 3rd Respondents on dispute resolution and withdrawal from the coalition. The Ex parte Applicant was also faulted for failing to annex the decisions he seeks to quash.

21. It is the 2nd Respondent’s case that the orders to quash cannot issue as the said agreement was entered into by various parties who have not been joined to the proceedings before this court. Further, that this Court does not have jurisdiction to rewrite a contract between parties. That the rights guaranteed under Article 38 of the Constitution, 2010 can be limited and their enjoyment must not limit the rights and freedoms of others. The case of Henry Macharia Wairia v. Attorney General & Another; Ivy Nduta Macharia (Interested Party) [2022] eKLR was cited in support of this argument.

22. The Ex parte Applicant is faulted for having failed to demonstrate how the Respondents herein have acted illegally, unconstitutionally or unlawfully to warrant the intervention of this Honourable Court. In addition, he is also accused of waiting until the last minute to come before court yet he was aware of the Coalition Agreement as early as 14th April,2022.

23. It is the 2nd Respondent’s case that it is not aware of any dispute pertaining to the Coalition and that the 2nd Respondent has every right to be heard in any such proceedings pertaining to its membership or its formation. The Ex parte Applicant is also faulted for failing to join the alleged unauthorized persons in the instant suit.

24. The 3rd Respondent according to the 2nd Respondent was at all-times duly represented by its officials and the 2nd Respondent’s demands for various documents including the Party’s Constitution; Minutes from the Party authorizing the joinder into the coalition; Letter from the Registrar Political Parties confirming the duly registered and authorized officials and all other necessary documents prior to the execution of the Agreement were honoured. Further that from the 3rd Respondent’s Minutes from the meeting held on 21st November,2021it is clear that the party duly consented and voluntarily entered into the Coalition.

25. According to the 2nd Respondent, the 3rd Respondent cannot use its failure to comply with its rules as a ground for vitiating the Coalition Agreement neither can it allowed to benefit from its own negligence, illegality and/or irregularity. The cases of Royal British Bank vs Turquands (1885) E & B 327 and P.N Gichoho Ngugi vs. County Government of Laikipia & Another [2017] eKLR, Safari Inns Ltd & 2 Others vs. Deutsche Investitions-Und Enwicklungsgellschaft (‘Deg’) & Others [2011] eKLR are cited in this regard respectively.

26. The 2nd Respondent urges that the Coalition agreement is not between the 2nd and 3rd Respondents but that the same has been entered into by 26 constituent parties.

27. The 4th Respondent filed both grounds of opposition and a Replying Affidavit both of which are dated 16th May, 2022. In its grounds the 4th Respondent argues that pursuant to the provisions of Section 40(2) of the Political Parties Act No.11 of 2021 the Ex parte Applicant herein ought to have initiated the dispute before this court before the 2nd Respondent’s Internal Dispute Resolution Mechanism and therefore this court lacks jurisdiction as the same was not exhausted.

28. Secondly that pursuant to the same Act the Ex parte Applicant ought to have appealed against the 1st Respondent’s decision before the Political Parties Disputes Tribunal and that the only avenue for approaching this court is through an appeal from the Tribunal pursuant to Section 41(2) of the Act. Finally, that in light of Section 9(2) and (3) of the Fair Administrative Actions Act No.4 of 2015 and the Doctrine of Avoidance the court should direct the Ex parte Applicant to first exhaust the internal dispute resolution mechanism.

29. The 4th Respondent also argues that the order of mandamus sought by the Ex parte Applicant directing the 1st and 4th Respondents to accept and receive any Coalition Agreement entered with other political parties the statutory deadline notwithstanding is not available to the Ex parte Applicant as pursuant to Section 10(2) of the Political Parties Act any coalition agreement has to be submitted to the Office of the Registrar Political Parties at least 120 days before the general election and the deadline of such submission was 9th April,2022. The purpose of this deadline according to the 4th Respondent is to aid actors in the preparation of the general elections and any variation of the timeline will create a dangerous precedent and majorly disrupt the ongoing preparations.

30. The 1st Respondent in its submissions contends that the Ex parte Applicant has not adduced before this court any exceptional circumstances why he should be exempted from exhausting the internal dispute mechanisms pursuant to sec 9 (4) of the Fair Administrative Actions Act. Further that where there is a clear procedure for redress of a certain grievance the procedure should be strictly followed and in support of this position the cases of Speaker of National Assembly v Karume [1992] KLR 21, Geoffrey Muthiga Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others [2015] eKLR, Rich Productions Limited vs. Kenya Pipeline Company & Another [2014] eKLR, Republic vs. Registrar of Political Parties & 6 Others Ex parte Kings Onyancha Maina & 7 others [2017] eKLR have been cited.

31. It is the 1st Respondent’s contention that the coalition agreement enjoys the presumption of validity and that if the Ex parte Applicant wishes to rely on the claim that the agreement is invalid, then they have to use the appropriate dispute resolution mechanism.

32. In addition, that article XXII (5) of the 3rd Respondent’s party constitution provides that the Chairperson, Secretary General, and Organizing Secretary shall be the authorised persons to execute the decision on behalf of the party and there being a vacancy in the Office of the Chairperson, the Secretary General and the Deputy Organizing Secretary signed the agreement. The Party’s constitution allows the Deputy Organizing Secretary to take up all the roles of the Organizing Secretary in their absence. Further, the 3rd Respondent does not have the National Organizing Secretary.

33. The 2nd Respondent in its written submissions contends that no order was given by the 1st Respondent to the Ex parte Applicant granting him the locus to institute any such proceedings on behalf of itself or the 3rd Respondent. Further that the matter before this court is res judicata and to support this position the cases of Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 Others Civil Appeal No.105 OF 2017[2017] eKLR, Republic vs. Independent Electoral & Boundaries Commission & 2 Ex Parte Wavinya Ndeti[2017] eKLR are cited.

34. Further, that Section 49 of the Political Parties Actrequires Coalition Parties to have a dispute resolution clause in their agreements and as such that is the first port of call whenever there is a dispute pertaining to the Coalitions. The Ex parte Applicant is also said to be in contravention of Order 53 Rule 7(1) of the Civil Procedure Rules as he has not annexed or produced any such decision.

35. In conclusion the 2nd Respondent urged the court to dismiss the instant proceedings as they are an abuse of the court process and to support this argument the case of Graham Rioba Sagwe & 2 Others vs. Fina Bank Limited & 5 Others[2017] eKLR is cited.

36. The 4th Respondent contends that the Ex parte Applicant ought not to have approached the High Court as a Court of first instance pursuant to Section 41(2) of the Political Parties Act. In support of this the cases of International Centre for Policy & Conflict & 5 others vs. Attorney General & 4 others [2013] eKLR, COD & Another vs. Nairobi City Water & Sewerage Company Limited [2015] eKLR and Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR are cited.

Analysis and Determination 37. I have considered the pleadings and the arguments advanced by the parties herein and three issues crystalize for determination.These are;i)Whether this court has jurisdiction to entertain the matter.ii)whether the issues raised before this court are res judicata.iii)Whether the applicant has made out a case for the grant of the judicial review orders sought.

Whether this court has jurisdiction to entertain the matter. 38. Naturally, it is ideal to begin with the question of jurisdiction as its determination would guide the court on whether to move a single step in the matter and secondly, based on the court’s finding, the determination thereon has the potential to dispose of the entire suit. It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. The Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] EKLR expressed itself on the issue as follows:“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae. It is for this reason that this Court has to deal with this appeal first as the result directly impacts Civil Appeal No.6 of 2018 which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context’’.

39. Section 9 of the Fair Administrative Action Act(FAAA) provides as follows;1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.2)The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.

40. It is clear from the text of the law that this court has jurisdiction to review impugned administrative action by way of judicial review. Section 9(2) of the FAAA places a caveat to the exercise of this jurisdiction. The court shall not review an administrative action or decision under the FAAA unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Courts have had occasion to consider the application of the doctrine of exhaustion espoused under section 9(2) of the FAAA. In the case of Republic vs. Commissioner of Cooperative Development & another Ex parte Paul Manwa & Others JR Application No.52 of 2021 the court stated;“Should the Applicants have appealed to the minister before approaching this court? It is mandatory for a party to exhaust any alternative mechanism for dispute resolution before approaching the court. Section 9 of the FAAA is couched in mandatory terms. Majanja J in Misc. Civil App n.139 of 2014, Vania Investments Pool limited v Capital market Authority and Others (a decision upheld on appeal in Civil Appeal No. 92 of 2014) at para 37 stated;“In my view, the Tribunal ought to have been the first port of call. The applicant argues that the Tribunal is not quorate but I think there is nothing that prevented it from filing his appeal within the time provided by the Act. In the event the matter could not be dealt with the applicant would be at liberty to seek appropriate relief from this Court. Permitting the matter to proceed to substantive hearing would be to impose on the Court the mandate of the Tribunal contrary to the general principle I have cited………….”“I am in agreement with the Interested Party’s submission that where there is an internal dispute mechanisms provided, the Court ought to exercise its jurisdiction with utmost care so as to avoid usurping the powers of the body vested with that mandate.”

41. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR the court of appeal put it succinctly thus;“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitutionor an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions."

42. In our instant suit, the applicant’s contention is that the coalition agreement between the 2nd and 3rd respondents which resulted in Gazette Notice no. 4442 of 14th April, 2022 which included the 3rd respondent in a coalition political party compromising 26 political parties was without due procedure as set in the 3rd respondent’s constitution. There was no involvement of the 3rd respondent’s special National Delegates Conference and that the PP19 form was filled by unauthorised persons.

43. As I understand it, the applicant’s main grouse is with the 1st Respondent who despite receiving a letter dated 27th April 2022 from the 3rd respondent disputing its inclusion as part of the 2nd respondent, declined to entertain the withdrawal request of the 3rd respondent from the 2nd respondent Coalition Political Party citing 3 grounds;a)The 3rd Respondent annexed a duly filled form PP-19 and declared that the information provided was true.b)That in view of the vacancy in the office of the chair of the political party, the two authorized signatories duly signed the coalition agreement.c)The 1st Respondent has no mandate to withdraw the 3rd Respondent as the 2nd Respondent is already registered under Section 7(7) of the Political Parties Act, 2011.

44. According to the applicant at paragraph 8 of his verifying affidavit, after the 3rd respondent was illegally included as part of the 2nd respondent, the issue of joining the coalition was subjected to a discussion before the 3rd Respondent’s National Executive Council and Internal Dispute Tribunal Committee respectively and the Dispute Tribunal Committee after hearing the dispute resolved that there was no inclusivity of members required to execute the decision of joining the coalition, the Vice Chairman was not included in the decision making process and did not participate in the signing of the Agreement. Dr. Alfred Mutua being the party leader who purportedly signed the documents is not mandated or gazetted to sign any coalition document on behalf of the party and cannot be a signatory for any coalition document on behalf of the party and cannot be a signatory for any coalition and that the National Executive Council did not meet to discuss and make a decision to join Azimio Coalition.

45. Though I have not come across a record of the deliberations at the 3rd respondent’s National Executive Council or the proceedings of its Internal Dispute Tribunal Committee, (assuming such did take place), a dispute having arisen within the party, this was the appropriate mechanism to pursue.

46. The question that arises then, is what recourse did the 3rd respondent have after its request by the 1st respondent was declined? By such a declination, certainly a dispute now arose between the Political Party and the Registrar of Political parties.

47. In such a scenario, the applicable law is Section 40 of the Political Parties Act. Section 40 of the Political Parties Act(PPA) provides for the 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 a political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners; and(f)appeals from decisions of the Registrar under this Act;(g)disputes arising out of party primaries.

48. Thus under Section 40(1)(f) of the PPA, the dispute between the 3rd respondent and the 1st respondent should trigger an appeal before the Political Parties Disputes Tribunal.

49. In essence then, the applicant has approached this court in utter disregard of Section 9(2) of the FAAA. Sub-section 2 is couched in clear and mandatory terms thus ‘’ The high Court or a subordinate court shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted’’. Under Sub-section 3, the High Court or a Subordinate Court shall, if it is not satisfied that the remedies referred to in Sub section (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under Sub-section (1).

50. There is no evidence, and neither was there any attempt by the applicant to place himself within the exemption provided under Section 9(4) of the FAAA.

51. I have noted from the decision of my brother Justice Sergon in Civil Appeal No. E303 of 2022, Martin Maina Mugo Vs Registrar of Political Parties, Azimio La Umoja One Kenya Coalition and Maendeleo Chap Chap, Interested Party that arising from the same facts, the 3rd respondent (Maendeleo Chap Chap) had raised a complaint before the Political Parties Disputes Tribunal being complaint No E060 of 2022 and one Martin Mugo Maina had lodged Complaint No E016 of 2022. The orders sought were similar to what is sought herein. Of note is that the applicant who states he is the Vice Chairman of the 3rd respondent makes no mention of the said Complaint by the 3rd respondent whom he now sues. Was he aware that his Party, the Party he sues as the 3rd respondent, had taken the dispute to The Political Party Disputes Tribunal and on Appeal, in The High Court? This highlight is important because it portrays the state of disarray in the 3rd respondent Party and casts a big shadow on whether the Internal Dispute Resolution Machinery said by the applicant to have been employed by the party was ever instituted, a fact that adds traction to the holding that the applicant has approached this court without exhausting the available internal mechanisms for dispute resolution.

52. Indeed, Justice Sergon in the Martin Maina Mugo case made a finding that the issues then raised by the Party and by Martin fell squarely within the ambit of IDRM. He stated;“It is alleged that some unauthorized officials executed documents binding the Interested Party as a party of the 2nd Respondent. It is clear from the material placed before the Tribunal and before this court that the issues raised by the Appellant are in respect to failures and inactions by his own political party, the Interested Party herein.With respect, I agree with the 1st Respondent that such issues fall squarely within the ambit of his Political Party’s Internal Dispute Resolution (IDRM). It is also apparent that the grievance by the Interested Party revolve around its own procedures for joining and leaving the coalition which issues fall within the coalition’s IDRM as specified in the coalition agreement.”

53. From the foregoing, it becomes clear that the applicant has approached this court in contravention of Section 9(2) of the FAAA as read with section 40 of the Political Parties Act. The jurisdiction of this court is ousted by Section 9(2) in light of the available mechanisms for appeal available to the applicant. Without jurisdiction, the court must down its tools. As this finding disposes the entire suit, it is not necessary to delve into other issues raised.

54. With the result that the Notice of Motion dated 10th May 2022 is dismissed for want of jurisdiction. Each Party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JUNE, 2022A. K. NDUNG'UJUDGE