[2022] KEPPDT 1029 (KLR)

Sheikh v Jubilee Party (Complaint E117 (NRB) of 2022) [2022] KEPPDT 1029 (KLR) (11 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 1029 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E117 (NRB) of 2022

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

August 11, 2022

Between

Fatuma Ahmed Sheikh

Complainant

and

Jubilee Party

Respondent

Judgment

Introduction 1. The Complainant applied for consideration for nomination in the Respondent’s Wajir County Assembly party list under the category of ethnic minority. However, in a party list published by the IEBC on the July 27, 2022, she was listed as one of the nominees but under the gender top up category.

2. She is aggrieved by what she considers a misclassification of her nomination and seeks the following orders from this Tribunal:-a.An order be made by the Political parties Disputes Tribunal to both the party and IEBC to ensure that:-i.The above errors are correctedii.Fatuma Ahmed Sheikh’s nomination information is captured under the correct and appropriate category as a marginalized group nominee to the County Assemblyiii.That the nomination of Fatuma Ahmed Sheikh be assigned an appropriate ranking to reflect and ensure the appropriate representation of the Leisan Community of Wajir Countyiv.The following nominees Maryan Abdullahi Aden, Shimoy Khalif Jilaow, Noor Hillow Culiye, Rukia Abdullahi Abdi, Ibrahim Adan Ibrahim and Amina Mohamed Ibrahim be removed from the category of marginalized and minority.

3. The Respondent neither entered appearance nor filed their response to the Complaint despite service.

4. Pursuant to the directions that were issued by this Tribunal, this matter came up for hearing on August 10, 2022 by way of oral submissions. The Complainant was represented by Ms Anne Musau Advocate. There was however no appearance for the Respondent.

The Complainant’s Case 5. The Complainant avers that she is a resident of Township Ward in Wajir County. She is a member of the Leisan community, which is a minority and marginalized community in Wajir County. It is her submission that she applied to be nominated in the Respondent’s Wajir County Assembly party list under the category of ethnic marginalized minority.

6. However, on July 27, 2022, the IEBC published the Respondent’s party list wherein it appears that the Respondent had nominated her under the gender top up category instead of the ethnic marginalized minority category.

7. It is her submission that in the list published by the IEBC on July 27, 2022, the Respondent had submitted the marginalized and minority category nominees as Maryan Abdullahi Aden, Shimoy Khalif Jilaow, Noor Hillow Culiye, Rukia Abdullahi Abdi, Ibrahim Adan Ibrahim and Amina Mohamed Ibrahim, yet the named persons are from the degodia, adjuran and ogaden community which are the predominant communities in Wajir and are well represented.

8. She maintains that the nomination under the marginalized and minority category was wrongfully made to persons who are not marginalized and that she ought to be nominated under the stated category and not under the gender top up category. She submits that her wrongful nomination is prejudicial to her and a miscarriage of justice. She believes that she is the one better placed to represent the interests of the marginalized.

9. The Tribunal on its own motion invited counsel to address it on whether any attempts were made to resolve the instant dispute within the party structures prior to moving the Tribunal. In response, Counsel for the Complainant submitted that the party lists were published on July 27, 2022 and that considering the urgency of the matter, they did not subject this complaint to the party’s internal dispute resolution mechanisms (IDRM) as they believed that they would be out of time if IDRM was to be attempted.

The Respondent’s Case 10. The Respondent did not file any response despite service. Neither did they attend the hearing of this matter on April 10, 2022 when the Complainant made her oral submission. The hearing proceeded notwithstanding their non-attendance as a return of service was filed demonstrating service of the hearing notice upon them in vain.

Analysis and Determination 11. We have reviewed the parties’ pleadings and submissions and isolated the following key issues for determination: -i.Whether this Tribunal has jurisdiction to hear and determine this matter?ii.Whether the Complaint is merited?iii.What are the appropriate reliefs in the present circumstances?

Whether this Tribunal has jurisdiction to hear and determine this matter? 12. The Black's Law Dictionary, Sixth Edition, defines Jurisdiction as 'a term of comprehensive import embracing every kind of judicial action. It is the power of the Honourable Court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties.'

13. Jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. The Supreme Court of Kenya in the case of Samuel Kamau Macharia Vs KCB & 2 Others, Civil Application No 2 of 2011 was succinct on this point, by stating thus:'A Court's jurisdiction flows from either the Constitution or Legislation, or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law.'

14. The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011, which provides 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; 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. It is not in dispute that the complaint subject hereof arises out of party nominations and is therefore covered by Section 40(1)(fa) of the PPA. However, pursuant to Section 40(2) of the PPA, the Tribunal shall not hear and determine such a dispute unless a party adduces evidence of an attempt to subject the dispute to the party’s IDRM. What amounts to an attempt at IDRM and/or exceptions thereto were considered 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. '

16. 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 IDRM because 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.

17. 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.

18. 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.

19. Taking into consideration the totality of the circumstances of this case and the finding in the John Mworia Nchebere case, we find that there was no honest attempt at IDRM. Consequently, this Complaint is premature and it is our finding that we do not have jurisdiction to hear and determine the same.

What are the appropriate reliefs in the present circumstances? 20. Having found that we have no jurisdiction, what follows was enunciated in the locus classicus case of Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd.(1989)1:'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 of proceedings 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.'

21. Taking cue from the above decision, we will not consider the rest of the issues as framed above. Our decision thereon will amount to nothing. We therefore have no option but to down our tools.

22. On the question of costs, whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity.

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

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF AUGUST 2022. DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA……………………(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)