Mwangi & 8 others v Dzuya & 7 others (Petition E004 of 2023) [2023] KEHC 25041 (KLR) (25 October 2023) (Ruling)
Neutral citation:
[2023] KEHC 25041 (KLR)
Republic of Kenya
Petition E004 of 2023
TA Odera, J
October 25, 2023
IN THE MATTER OF ARTICLE 1,2,3,4,10,20(1), 38,91(1) OF
THE CONSTITUTION OF KENYA
IN THE MATTER OF THE ELECTIONS ACT
IN THE MATTER OF THE JUBILEE ELECTORAL AND
NOMINATIONS ACT
IN THE MATTER OF ARTICLE 10(5), 22(3), ARTICLE 8 (1),
22, 23, 33 OF THE JUBILEE CONSTITUTION
IN THE MATTER OF POLITICAL PARTIES ACT NUMBER 11 OF 2011
Between
John Kireru Mwangi
1st Petitioner
Jimmy Wagakabu
2nd Petitioner
Samuel Murage Karigitho
3rd Petitioner
George Manini
4th Petitioner
Rosemary Wanjiku
5th Petitioner
Benson Waweru Njuguna
6th Petitioner
Karanu Thuo
7th Petitioner
Samuel Burugu Mwangi
8th Petitioner
Daniel Kahuho Mwangi
9th Petitioner
and
Mr. Nelson Dzuya
1st Respondent
Hon. Joshua Kutuny
2nd Respondent
Hon. Margaret Kamar
3rd Respondent
Hon. Kanini Kega
4th Respondent
Hon. Sabina Chege
5th Respondent
Hon. Naomi Shaban
6th Respondent
Jubilee Party
7th Respondent
Registrar of Political Parties
8th Respondent
Ruling
Ruliong on the Respondents Pleriminary Objection dated 13. 3. 23 on Jurisdiction of this Court
1.The petitioners filed the petition dated 3.3.2023 as members of Jubilee Political party (7th respondent) against the 1st to 6th respondent whom they accused of holding an illegal and unconstitutional National Executive Committee meeting at Sarova Hotel Nakuru on 10.2.23 against the procedures and Constitution of the party.
2.They seek that this court nullifies the resolutions reached at that meeting, to terminate the membership of the 3rd to 6th respondents and to order the 7th respondent’s secretary General and /or party leader to convene a National Delegates Convention (NDC) for the party delegates to elect and fill vacant positions in NDC, NRC and other party organs.
3.Vide the grounds of opposition dated 13.3.23 at paragraph 9, the 1st to 7th respondents questioned the Jurisdiction of this court to determine the dispute herein between the petitioners who are members of Jubilee party (7th Respondent) and the 1st -6th respondents who are members and officials of the 7th respondent.
4.The preliminary objection proceeded by way of written submissions and both parties complied.
5.The 1st to 7th respondents argued that section 40 of the Political Parties Tribunal Act provides that members must exhaust internal party mechanisms (IDRM) before escalating the dispute to the Political Parties Tribunal (PPT) and then appeal from the decision of the Tribunal is filed before the High court.
6.1st and 6th Respondents submitted that section 39 of the Political Parties Act establishes a political parties Tribunal whose Jurisdiction is defined under section 40 of the Act. Section 40 of the said Act provides: -
7.Respondents submitted that the petitioners ought to have first moved the 7th respondent’s Internal Disputes Resolution Mechanism in the first instance, then the Political Parties Tribunal and finally Appeal to the High court under Article 163 (3) (e) of the Constitution of Kenya and section 41b of the Political Parties Act.
8.Section 41 (2) of the Political Parties Act provides ‘’(2)An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to the Court of Appeal and the decision of the Court of Appeal shall be final.
9.The 1st to 6th respondents submitted that the said procedure was not complied with and so the instant petition is premature. Counsel cited the case of Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others [2011] eKLR. Kisii High Court petition no. 3 of 2010 where it was held
10.Also Civil Appeal No. 135 of 2017 (Court of Appeal at Nairobi) Lilian Gogo v Joseph Mboya Nyamuthe & 4 others [2017] eKLR where it was held
11.The petitioners filed submissions dated 14.7.23, they submitted that Jubilee party has had leadership wrangles which frusated it’s operations and attempts to have internal resolution has not succeeded due to the said division. Further that there are two factions; one supporting Kenya kwanza coalition while the other is pro Azimio La Umoja coalition .
12.The petitioners listed the issues for determination as follows;a.Whether this court has jurisdiction to hear and determine the petition dated 3.3.23.b.Whether the prayers in the petition dated 3.3.23 are meritorious.
13.Petitioners submitted that the courts exercise jurisdiction given to then by the Constitution, statute or both. The case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where supreme court held that
14.Also that the petition has been brought under article 38 of the Constitution of Kenya and this court is where the political rights of the petitioners can be safeguarded due to the aforesaid infighting. Article 38 of the Constitution was cited and it provides that”.38.Political rights1.Every citizen is free to make political choices, which includes the right –a.to form, or participate in forming, a political party;b.to participate in the activities of, or recruit members for, a political party; orc.to campaign for a political party or cause.Also that Article 22 of the Constitution of Kenya provides that: -1.Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.2.In addition to a person acting in their own interest, court proceedings under clause (1) may be instated by-a.a person acting on behalf of another person who cannot act in their own name:b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest of one or more of its members.Further that this court has jurisdiction to adjudicate on a dispute touching on the infringement of the Fundamental Rights and freedoms under Article 23 (1) of the Constitution.23.Authority of courts to uphold and enforce the Bill of Rights1.The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.It was also submitted that the petitioners are seeking injunctive orders under Article 23 (3) of the Constitution of Kenya, this court is empowered to make the following orders: - In any proceedings brought under Article 22, a court may grant appropriate relief, including-a.a declaration of rights;b.an injunction;c.a conservatory order;d.a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;e.An order for compensation; andf.an order of judicial review.
15.It was submitted that the violations are stated in the supporting affidavit of Johnson Kireru Mwangi and cited the case of Ernest Kevin Luchido v Attorney General & 2 others [2015] on jurisdiction of courts where it was held that jurisdiction is everything. Petitioners also relied on Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Sategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) where it was held
16.I have carefully considered the preliminary objection by the 1st to 6th respondents, the Constitution and the able submissions by both counsel and the political parties Act.
17.It is trite law that Jurisdiction is everything as was held by Justice Nyarangi in the celebrated case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd[9] where Justice Nyarangi held as follows:-
18.Further that Jurisdiction flows from the Constitution, statute or both as was held by the Supreme Court of Kenya in the SK Macharia case (Supra).
19.The preliminary objection herein is based on the allegation that the petitioners brought the dispute between members of a political party saight to the High Court instead of following the laid down procedure of initiating the dispute at the Internal Dispute resolution body of Jubilee party, then the political parties Tribunal and in case they are not satisfied then they can Appeal to the High Court as provides for under Section 40 (1) of the Political Parties Act. The petitioners said their attempt to file the dispute in the party’s Internal Dispute Resolution mechanism failed due to the wrangles between the two factions. They submitted that this court has jurisdiction to hear and determine the petition herein by dint of Article 38, 22, 23 (3) and 165 of the Constitution.
20.It is not disputed that the dispute herein is between members of the Jubilee party (7th respondent). Article 23 (1) and 165 (3) (b) of the Constitution provides that the High Court is the Custodian of the fundamental Rights and freedoms of the people of Kenya. Article 38 provides for political rights and Right to seek, enforcement of the same.
21.I have seen section 40 (1) of the Political Parties Tribunal, the same provides that a dispute between members of a political party must first be heard by the Internal Dispute Resolution body of a political party, then if not resolved it be filed at the Political Parties Tribunal for determination and the dissatisfied party then can appeal to the High Court. It is not denied that the petitioners moved this court in the first instance and they attempted to justify the same by submitting that the wrangles between the members made it impossible for them to approach the Internal Dispute Resolution body of the Party. If this is ue, then why didn’t they move political parties Tribunal to Intervene?
22.There must have been a good reason why Parliament in it is wisdom in enacting of the Political Parties Act deemed it fit to include the Internal Dispute Resolution Mechanisms(IDRM) and Political Parties Tribunal in the Act as the first and second avenues for party dispute resolution. This is because the IDRM is better placed to hear and resolve it’s internal issues amicably. The PPT is on the other hand composed of experts in Political affairs, social and economic, governance and adminisation and are thus able to deal with the disputes effectively and efficiently at that level and aggrieved party by the decision of the Tribunal has a recourse to move the High Court on appeal on points of law and fact.
23.The petition herein is guised as one for infringement of fundamental Rights but in the real sense it is a dispute between members of Jubilee party which ought to have gone through the process elucidated under section 40 (1) of the Political Parties Act.
24.In the upshot, I find that this court lacks Jurisdiction to hear and determine the petition herein as it is pre-mature. The court must therefore down it’s tools. I proceed to sike it out with costs to the respondents.
RULING DELIVERED VIRTUALLY ON 25TH DAY OF OCTOBER, 2023 VIA TEAMS PLATFORM.T.A ODERAJUDGEDelivered virtually in the presence of ;-1st and 3rd Petitioners present in person.Keiro: I am holding brief for Mr. Njomo for 1st to 7th RespondentsCourt Assistant - YegoT.A ODERAJUDGE25.10.23