[2022] KEPPDT 989 (KLR)

Vel v United Democratic Alliance (Complaint E120 (NRB) of 2022) [2022] KEPPDT 989 (KLR) (12 August 2022) (Judgment)

Neutral citation: [2022] KEPPDT 989 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E120 (NRB) of 2022

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

August 12, 2022

Between

June Dezina Vel

Complainant

and

United Democratic Alliance

Respondent

Judgment

1. The Complainant is a life member of the Respondent. She challenges the Respondent’s party list published by IEBC on July 27, 2022, in the Marginalized Group Nominees to the County Assembly, Baringo County, where it listed Cheruiyot Kiplagat a male in position number 3, and Sebit Arafa Hussein a female in position number 6. The Complainant claims she was shortchanged in favour of Cheruiyot Kiplagat a member of the Kalenjin community who she claims does not qualify to be in the Minority and Marginalized Category.

2. She contends that she was the rightful person to be nominated as a representative of the Minority and marginalized being a minority, a woman, and the only Muslim who vied in Baringo. The Complainant seeks the following orders from this Tribunal:-a.The above errors in Law and Fact can be corrected by the Political Parties Disputes Tribunal and IEBC Dispute Resolution Committee.b.The nomination be reviewed and Juna Dezina Vel be nominated under category of Marginalized people in Eldama Ravine Ward, Baringo County to ensure the appropriate representation for marginalized people in Eldama Ravine.c.The nominee Cheruiyot Kiplagat and any person who is wrongly categorized as a Minority/Marginalized be removed from the category of Marginalized and Minority.

3. The Respondent did not enter appearance despite service. Pursuant to the directions that were issued by this Tribunal, the Complainant was heard by way of oral submissions. The Complainant was represented by Sheila Mugo & Company Advocates and there was no appearance for the Respondent.

The Complainant’s Case 4. The Complainant claims she is a Nubian (Sheli Sheli) a community that falls under the Minority and marginalized Category and a resident of Eldama Ravine Baringo County. She had applied and paid to be nominated as a Member of County Assembly under the Minority and Marginalized Category. In her sworn supporting affidavit dated August 5, 2022, she claims she had earlier been shortlisted as per the party list at number 83.

5. She avers that she found out on July 27, 2022 when IEBC published the Political Party Nomination list that she had been short changed in favour of a member of the Kalenjin community, Cheruiyot Kiplagat a male listed in position number 3, in the category of marginalized category, who she claims does not qualify to be in the Minority and Marginalized Category.

6. She further claims she was the rightful person to be nominated as a representative of the Minority and marginalized being a minority, a woman and the only Muslim who vied in Baringo. She further claims the nomination of a non-marginalized person is prejudicial to her and occasioned a miscarriage of justice.

7. The complainant also stated that she opened a UDA office in Chambai Springs Hotel in Eldama Ravine for the purpose of registration of UDA members including all the minorities living in Eldama Ravine and paid rent with her own money for a whole year and did all this in support of UDA. She attached a bank statement of three month for a rent of Kshs. 30,000/=. She registered 8,000 members to the party.

8. The Complainant admits that she did not attempt IDRM as she was initially shortlisted and it is only until the July 27, 2022 when the IEBC published the list that she noticed that she had been shortchanged in favour of one Cheruiyot Kiplagat, a member of the Kalenjin community who does not qualify to be in the Minority and Marginalised category, and by that time, resolving the matter within the party was not an option because it was overtaken by events.

9. The Complainant thus prays that the nomination be reviewed to reflect and ensure the appropriate representation for marginalized people in Eldama Ravine. She further alleges that she was wrongly categorized as a minority and should be removed from the category of marginalized and minority.

The Respondent’s Case 10. The Respondent did not file any response to the Complaint despite service. Neither did he have representation during the hearing of the Complaint despite having been served with a hearing notice.

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. Before this Tribunal delves into the merits of the case, we must satisfy ourselves that we are possessed of the jurisdiction empowering us to do so. In the case of Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd. (1989) 1, Justice Nyarangi J had the following to say with regard to this crucial pre-requisite:'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 judgment is given.'

13. In the landmark Supreme Court case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLRtheir Lordships and Ladyships affirmed the above holding when they pronounced themselves as follows in relation to the source and scope of jurisdiction: -'A Court’s jurisdiction flows from either theConstitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined bythe Constitution.'

14. Subsequently, an attempt at defining the notion of jurisdiction and the practical implications it carries was made in the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLRwhere the court defined jurisdiction as follows: -'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. What is jurisdiction? 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 nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae'

15. That said, this statutory basis for the jurisdiction of this Tribunal is enunciated under Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011 (hereinafter 'PPA 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.

16. It is crystal clear that the complaint before us is between the Complainant - a member and the Respondent - a political party. Further, the dispute relates to the preparation of the party list for Eldama Ravine Ward in Baringo County. As such, the dispute falls squarely within the scope of the provisions of section 40(1)(b) and (fa) of the PPA.

17. That said, it is trite that the nature of the dispute is not the sole prerequisite for a determination on the tribunal’s exercise of jurisdiction. It is not sufficient that the dispute in question is of the nature specified in the Act as the other precondition expressed in Section 40(2) must be met. Section 40(2) as captured above, requires the tribunal to satisfy itself based on the evidence adduced by the party seeking to be heard, that such party has attempted to subject the dispute to the internal dispute resolution mechanism (IDRM) of the political party in question.

18. In the present complaint, nothing from the evidence on record shows any attempt by the Complainant to comply with the abovementioned requirement, to support an inference of an honest attempt at IDRM. On the contrary, the Complainant stated that upon finding out about the contents of the party list published by the Independent Electoral and Boundaries Commission on July 27, 2022, she held the view that resolving the matter within the party was overtaken by events.

19. Whether the time constraints cited are sufficient justification for moving the tribunal without exploring IDRM is a different issue altogether. Upon the realization that the party had selected a different applicant, the Complainant did not take up the matter with the party before resorting to the Tribunal. Noting that the IEBC categorically stated that disputes would be addressed from July 28, 2022 to August 6, 2022 and that the Complaint was filed on August 5, 2022, the Complainant had time and an avenue to address her complaint at her disposal. In our view, the period in excess of 7 days between the date when the cause of action arose and the lodging of the complaint before this Tribunal was sufficient time to comply with the statutory requirement.

20. In light of the foregoing analysis and noting that the Complainant took no action in the intervening period alluded to, we find that the Complainant failed to comply with the pre-condition set out in Section 40(2) of the Political Parties Act. Further, we find that in the circumstances, the conduct of the Complainant does not warrant an exemption from pursuing IDRM which ought to be the first port of call. In consequence, it is our view that the present Complaint is premature and the Tribunal lacks jurisdiction to hear and determine the same.

What are the appropriate reliefs in the present circumstances? 21. Having found that the Tribunal lacks jurisdiction, it follows that delving into the substance of the complaint will be an exercise in futility. That leaves us no option but to down our tools.

22. As regards costs which are ordinarily supposed to follow the event, we are of the considered view that the circumstances of the case require each party to bear its own costs 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 12TH DAY OF AUGUST 2022. DESMA NUNGO………..………………………(CHAIRPERSON)DR. KENNETH MUTUMA..........................................……(MEMBER)FLORA M. MAGHANGA-MTUWETA………………..................……(MEMBER)RUTH WAIRIMU MUHORO………………………………..(MEMBER)