Kenya Council of Employment and Migration Agencies & another v Godhana & 3 others; Ethics and Anti-Corruption Commission & another (Interested Parties) (Miscellaneous Application E002 (MSA) of 2022) [2022] KEPPDT 939 (KLR) (31 May 2022) (Ruling)
Neutral citation:
[2022] KEPPDT 939 (KLR)
Republic of Kenya
Miscellaneous Application E002 (MSA) of 2022
E. Orina, Presiding Member, T. Chepkwony & D. Kagacha, Members
May 31, 2022
Between
Kenya Council of Employment and Migration Agencies
1st Applicant
Evans Nyambega Akuma
2nd Applicant
and
Dhadho Godhana
1st Respondent
Orange Democratic Party (ODM) Party Nomination Board
2nd Respondent
Independent Electoral and Boundaries Commission (IEBC)
3rd Respondent
Attorney General
4th Respondent
and
Ethics And Anti-Corruption Commission
Interested Party
Commission for University Education
Interested Party
Ruling
1.On May 13, 2022 the applicants herein by way of notice of motion application brought under certificate of urgency, commenced the proceedings herein seeking verification of the 1st respondent’s academic certificates by the tribunal and orders of injunction to restrain the respondents and interested parties from receiving the 1st respondent’s academic certificates and nomination certificate.
2.The applicants contend that the 2nd respondent ought not to have nominated the 1st respondent as its gubernatorial candidate as he allegedly does not possess the requisite academic certificates for the position of Governor.
3.In response to the application, the 1st respondent filed a notice of preliminary objection dated May 24, 2022 and a replying affidavit sworn on the same date. The 3rd respondent filed grounds of opposition dated May 23, 2022 while the 4th respondent filed grounds of opposition and the 2nd interested party filed its replying affidavit.
4.Parties were thereafter directed to file written submissions in respect of both the preliminary objection and the application.
Preliminary Objection
5.The purpose of a preliminary objection was broadly discussed in Charles Onchari Ogoti v Safaricom Ltd & anor [2020]eklr as follows:
6.We quickly turn to the question whether we have before us a Preliminary Objection proper. Traditionally, the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 has been the watershed as to what constitutes preliminary objections. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR also captured the legal principle when it stated as follows:“A preliminary objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
7.The issue being raised in the preliminary objection is on jurisdiction of this tribunal to hear and determine the application. The 1st respondents preliminary objection read as follows:i.The honourable tribunal lacks jurisdiction to entertain the matter owing to the fact that the 1st respondent’s party nomination certificate has been issued and presented to the 3rd respondent, Independent Electoral and Boundaries Commission, accordingly “Nomination” has already occurred.ii.The applicants lacks locus standi to file the complaint, application and/or suit.iii.There is no dispute as envisaged under the Political Parties Act, before the honorable tribunal, accordingly the tribunal lacks jurisdiction to hear the matter.iv.The complaint, suit and application is statute barred.v.The complaint, suit or application seeks orders of an investigative nature which is outside the jurisdiction of the honorable tribunal.vi.The complaint, suit or application is vexatious, incompetent and an abuse of the election dispute resolution and/or court process.
8.In the locus classicus case on jurisdiction of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) ltd [1989] KLR 1 Justice Nyarangi of the Court of Appeal stated as follows:-This tribunal will therefore first proceed to consider and decide the issue of jurisdiction.
Issues for Analysis & DeterminationHaving read through the pleadings together with the annexures and the parties’ submissions the following issue is for determination in this preliminary objection:
Whether the tribunal has jurisdiction to hear and determine this application as presented
9.The jurisdiction of the Political Parties Disputes Tribunal (PPDT) flows from section 40 (1) of the Political Parties Act. It has been submitted that the applicants’ application may only fit under section 40 (1) (fa) of the Political Parties Act.
10.That a reading of that section presupposes that a dispute under the said paragraph (fa) ought to be between a member of a political party and the political party. As it is from the supporting affidavit by the 1stapplicant he does not claim to be a member of the 2nd respondent. The capacity under which the applicants have approached this tribunal does not lie within the purview of section 40 of the Political Parties Act. The 2nd applicant in his pleadings states that he is the chairman of the 1st respondent and that he has the capacity to file the application, however, he does not seem to elaborate how his purported capacity relates to the issue of nomination of the 1st respondent by the 2nd respondent to cloth him with the requisite locus standi to approach this tribunal. The applicants are neither members of the 2nd respondent nor is the 2nd applicant an independent candidate as envisaged in the Act.
11.In Samuel Kamau Macharia & Another v Kenya Commercial Limited & 2 others [2012] eKLR the court held that:-This tribunal cannot therefore arrogate jurisdiction beyond that which is conferred by law.
12.It was further submitted that the issue of the 1st respondent’s academic qualifications had already been heard and determined by the High court in Garsen Election Petition No 1 of 2017 Mohamed Dado Hatu v Dhadho Gaddae Godhana & 3 others [2018] eKLR. This tribunal has gone through the said case and has confirmed that indeed the issue of the 1st Respondent’ s academic credentials was considered and determined by the court. This tribunal therefore finds that the issue having been determined by a court of competent jurisdiction the same cannot be a subject of litigation before it. The matter is therefore res judicata. The principle of res judicata is well stated in section 7 of the Civil Procedure Act and is a well settled law owing to the number of authorities on the subject.
13.The third of objection of the tribunal’s jurisdiction is on the basis that since the 1st respondent’s name had been forwarded and received by the 3rd respondent then a nomination had occurred and once a nomination has occurred the tribunal ceases to have jurisdiction to entertain a dispute over the nomination since the jurisdiction of the tribunal is in respect of disputes arising out of the process of nomination. The 3rd respondent in taking this ground referred the tribunal to the case of Joseph Ibrahim Musyoki v Wiper Democratic Movement- Kenya & Another[ 2017] eklr where the issue of nomination was considered and it was observed as follows; ‘’ Nomination’’ means ‘’the submission to the commission of the name of a candidate in accordance with the Constitution and the Elections Act.’’
14.This tribunal has noted that indeed the name of the 1st respondent has been forwarded and received by the 3rd respondent and as such nomination had already taken place and therefore this tribunal ceased to have jurisdiction the moment the name was sent to the 3rd respondent.
15.In view of the above findings the tribunal finds that the preliminary objection on jurisdiction has merit and the same is allowed with costs to the respondents.
What orders can the tribunal issue in the circumstances
16.The application is hereby struck out with costs awarded to the respondents for want of jurisdiction.
17.Orders accordingly
DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF MAY 2022.HON. ERASTUS ORINA(PRESIDING MEMBER)HON. THERESA CHEPKWONY(MEMBER)HON. DANIEL KAGACHA(MEMBER)