Maendeleo Chap Chap & another v Registrar of Political Parties & another; Maendeleo Chap Chap (Interested Party) (Complaint E060 (NRB) & E016 (NRB) of 2022 (Consolidated)) [2022] KEPPDT 976 (KLR) (10 May 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 976 (KLR)
Republic of Kenya
Complaint E060 (NRB) & E016 (NRB) of 2022 (Consolidated)
D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members
May 10, 2022
Between
Maendeleo Chap Chap
Petitioner
and
The Registrar Of Political Parties
1st Respondent
Azimio La Umoja One Kenya Coalition Party
2nd Respondent
As consolidated with
Complaint E016 (NRB) of 2022
Between
Martin Mugo Maina
Complainant
and
The Registrar Of Political Parties
1st Respondent
Azimio La Umoja One Kenya Coalition Party
2nd Respondent
and
Maendeleo Chap Chap
Interested Party
Judgment
1.The Complainant in PPDT Nairobi A Complaint No E060 of 2020 has moved this Tribunal vide a Petition dated May 3, 2022 seeking the following orders:-i.An Order do issue compelling the 1st Respondent to delist the Petitioner as member of the 2nd Respondentii.An Order do issue quashing the contents of Gazette Notice 4442 of April 14, 2022 in so far as it includes the Petitioner as a Constituent Political party of the 2nd Respondentii.The Honourable Tribunal be pleased to issue permanent orders restraining the 2nd Respondent from purporting to represent to members of the public or the IEBC or any person whatsoever that the Azimio Coalition Agreement was lawfully entered between the Applicant and the 2nd Respondentii.Costs of the Petition
2.The Complainant in PPDT Nairobi B E016 of 2022 has similarly moved this Tribunal seeking the following orders:-i.An Order issue compelling the 1st Respondent to delist the Interested Party as a member of the 2nd Respondentii.An Order do issue quashing the contents of the Gazette Notice Number 4442 of April 14, 2022 in so far as it includes the Interested party as a Constituent political party of the 2nd Respondentiii.The Honourable tribunal be pleased to issue permanent orders restraining the 2nd Respondent from purporting to represent to members of the public or the IEBC or any other person whatsoever that the Azimio Coalition Agreement was lawfully entered between the 1st Respondent and the Interested Party.iv.Costs of the Petition.
2.Pursuant to the directions that were issued by this tribunal, the two Complaints were consolidated with the concurrence of the parties for the reason that the parties to the disputes (apart from the Complainant in E016/2022) were the same and that the subject matter in issue and the reliefs sought in both Complaints were also the same. Parties were granted time to exchange their pleadings and written submissions and the hearing of the Complaints as consolidated proceeded on May 9, 2022 by way of highlighting of the parties’ written submissions.
3.The Complainants were represented by Mr Omwanza Ombati Advocate, Mr Manyara Advocate, Mr Kibett Advocate, and Ms Thiongo Advocate. The Registrar of Political Parties was represented by Mr Wakoko Advocate, and the Azimio la Umoja One Kenya Coalition Party was represented by Mr Oginga Advocate and Mr Awele Advocate.
The Complaint in PPDT Nairobi A Complaint No E060 of 2022
4.The Petitioner in PPDT Nairobi A Complaint Number E060 of 2022 disputed its inclusion as part of the 2nd Respondent vide a letter dated April 27, 2022 alleging, inter alia, lack of involvement of the Petitioner’s Special National Delegates Conference and the Form PP-19 being signed by unauthorised persons under the Petitioner’s Constitution.
5.Vide a letter of April 29, 2022, the 1st Respondent declined to entertain the withdrawal request for the Petitioner from the 2nd Respondent Coalition Political party citing grounds:- that the Petitioner annexed a duly filed Form PP-19 and declared that the information provided was true; that in view of the vacancy of the office of the Chairperson of the Petitioner political party, the two authorised signatories duly signed the coalition agreement; and that the Respondent has no mandate to withdraw the Petitioner/Applicant as the 2nd Respondent is already registered under Section 7(7) of the Political Parties Act, 2011 (PPA).
6.The Petitioner avers that his case is an appeal against the decision of the Registrar of Political Parties (RPP) dated April 29, 2022.
7.It is the Petitioner’s contention that Article XX1 provides that before the Petitioner joins a coalition, negotiations must have been ongoing between the Petitioner’s NEC Committee and any other Party and that there ought to be proof that funds to be provided for by both parties shall sustain the merger. It is the Petitioner’s further contention that its Constitution provides for the procedure to be followed under which the Petitioner can enter into a coalition agreement with other parties which procedure includes:-i.The coalition agreement must be in writing and in conformity with the Political parties Actii.The NEC or its duly authorised sub-committee shall make the decisions to enter into a coalitioniii.NGC by 2/3 majority of the members present shall approve the decision to enter into a coalitioniv.A Special NDC may be called to discuss this agendav.The Chairperson, Secretary General and Organising Secretary shall be the authorised persons to execute the decision on behalf of the partyvi.Coalition agreements shall be deposited with the Registrar within twenty one (21) days of signing the agreement.
8.The Petitioner states that their letter to the 1st Respondent enumerated the procedure at the resolution of the National Executive Council and the decision of the Petitioner’s Internal Dispute Resolution Tribunal that the coalition agreement signed to join the 2nd Respondent was unprocedural and illegal.
9.It is the Petitioner’s case that despite clear breach of the procedural tenets of the party constitution, the 1st Respondent has declined to delete the name of the Petitioner as a constituent member to the 2nd Respondent citing, inter alia, that the Petitioner should follow the necessary procedures of leaving the 2nd Respondent, which procedures are unknown or foreign to the Petitioner. The Petitioner maintains that its inclusion as a constituent party member of the 2nd Respondent was erroneous and void ab initio and that it is upon the 1st Respondent to correct the register of the 2nd Respondent to delist the Petitioner given that they in any event owed a duty of care to the Petitioner to cross check the party constitution and signatories before implementing any official actions emanating from the said parties to avoid misrepresentation and cases of illegality and fraud.
10.The Petitioner further claims that he is unaware of the terms of the coalition agreement and is thus unable to initiate the process of withdrawal from it as it is in the custody of both Respondents. Further, that the process of withdrawal may be long and may not be completed before May 9, 2022 beyond which dated the Petitioner will be unable to join any other coalition of its choice.
11.The Complaint has relied on various legal provisions including Articles 10, 21(1), 38, 35, 36 of the Constitution of Kenya, 2010 and Regulation 21 of the Political Parties (Registration) Regulations, 2019 and the Third Schedule to the PPA.
12.It is the Complainant’s submission that the Registrar of Political parties (the RPP) ought to have scrutinised the documents that were submitted and undertaken proper investigations on the matter prior to allowing the same, that the RPP is not merely a conveyor belt but should have checked on whether the party constitution was complied with before accepting the forms that were submitted to it. That had she scrutinised the same, she would have appreciated that no resolution was annexed to the form, that the signatories who signed the forms, particularly the party leader, had no mandate to sign the coalition agreement, and further that there was no Special NDC called under the party Constitution to pass the resolution to sign the agreement with the 2nd Respondent. He relied on Odunga, J’s finding in the case of Republic v Registrar of Political parties & 6 others ex-parte Edward Kings Onyancha Maina & 7 others
13.The Complainant maintains that the Tribunal has jurisdiction to hear and determine this matter as their case is brought pursuant to Section 40(1)(f) being an appeal against the decision of the Registrar of Political parties (RPP) made under Section 34 (g) of the PPA vide letter dated April 29, 2022. He maintains that this matter is an appeal which has been triggered by application of Section 34(g) of the PPA by the RPP. The Complainant avers that an appeal against the decision of the RPP does not require a party to attempt dispute resolution within the party before moving the Tribunal.
14.The Complainant further contends that it cannot be forced into an agreement which contravenes the Constitution. The party further avers that they have not had in their possession the coalition agreement and are not aware of the dispute resolution mechanism thereunder and would therefore not have pursued what they do not know.
15.It is the Petitioner’s prayers that the petition be allowed as prayed.
The Complaint in Nairobi B PPDT Complaint No E016 of 2022
16.The Complainant in E016 of 2022 on the other hand relied on the Complaint dated May 8, 2022 and his Further Affidavit and Written Submissions.
17.The Complainant anchored his submissions on the principle that if an act is void, it is a nullity as enunciated in the judicial authorities cited in their submissions
18.It is the Complainant’s contention that the inclusion of Maendeleo Chap Chap in the coalition agreement is null and void for want of procedural and substantive statutory compliance. He submitted that one of the requirements to be checked by the RPP is that there should have been a resolution by NEC or any subcommittee duly signed by authorised officials of the party or any notice convening such meeting. He avers that the RPP did not check on compliance with its own checklist requirements thus making the agreement a nullity in the first instance.
19.On jurisdiction, it was submitted that the Complainant is a member if the Maendeleo Chap Chap party and that he could not have exhausted the party’s internal dispute resolution mechanism (IDRM) due to exceptional circumstances as the prayers sought in this case could not have been granted by anybody other than the tribunal. It was further submitted that even if the Complainant was to submit to IDRM, the same would not have been effectively handled and that where IDRM is not effective, a party can be allowed to bypass it. According to the Complainant, the doctrine of exhaustion had exceptions and was not applicable where forum is not affordable, effective, etc and that the Petitioner should be able to pursue the same without impediment as was observed in Mohamed Ali vs AG & 11 others
20.He disputes in its entirety and challenges the existence of any coalition agreement and that he could not have in the circumstances subjected the complaint to the dispute resolution procedure under the agreement. He avers that he could not have known the procedure in any event as he does not know the provisions under the agreement that is unknown and had not been availed to him. He urged the Tribunal to issue orders to preserve the subject matter of the case as the deadline for depositing coalition agreements was 9th May 2022 and failure to issue any stay orders in respect of the impugned gazette notice would prevent the party from entering into any coalition agreement of its choice prior to the deadline.
21.It is the Complainants case that they want to walk out of the coalition agreement in peace and there is no basis of refusing to let them go unconditionally and that the RPP being the regulator should not take sides with either party. They maintain that a political association cannot be forced. They take issue with the fact that the RPP did not produce the entire coalition agreement and that only sections thereof were produced without the execution page thus making the attachment mere pieces of paper that were unreliable. The Complainant counsel distinguished the cases that were relied on by the coalition party claiming that the same concerned companies and were not applicable to political parties who have a regulator under the law.
The Response on behalf of the Registrar of Political Parties (the 1st Respondent in PPDT Nairobi A E060/22 and the 2nd Respondent in PPDT Nairobi B Complaint No E016 of 2022)
22.The RPP invited the Tribunal to consider whether in the first instant the complaints before it were an Appeal pursuant to Section 40(1)(f) of the PPA as alluded to by the Complainants or dispute involving coalition partners. Counsel for the RPP submitted that the RPP had been sued vide a Complaint in both cases contrary to the allegation that the Tribunal was moved under Section 40(1)(f) of the PPA.
23.The RPP relied on their Replying Affidavits dated May 7, 2022 and 9th May 2022 both signed by Joy Onyango and their Written Submissions.
24.It is the RPP’s position that in PPDT Nairobi A Complaint No E0060 of 2022, there existed a unique relationship between the Complainant and the 2nd Respondent by operation of Sections 2 and 7 of the PPA as read together with the Third Schedule to the PPA, that the Complainant is a party to the 2nd Respondent and that if aggrieved by entry into the coalition agreement, they ought to employ the IDRM mechanisms in the coalition agreement. According to the RPP, the Complainant failed to attempt IDRM contrary to section 40(2) of the PPA. They relied on the case of Francis Gitau Parsimei & 2 Others vs National Alliance party where the court observed that public interest requires citizens to refrain from litigating where there are effective alternative procedures.
25.The RPP further contends that Form PP-19, a Declaration and minutes of the National Governing Council were duly signed on behalf of the Complainant. It is the RPP’s submission that the Complainant party’s constitution provides that the two thirds of the NGC has the powers to approve decision to enter into a coalition.
26.On the question of signatories, the RPP submitted that Article XXII of the party constitution provided for authorised signatories as Chairperson, Secretary General and Organising Secretary. The Complainant had vacancies in its office in the position of the Chairman and the Organising Secretary and that in the circumstances, the RPP found it proper that the documents were executed by two authorised signatories being the Secretary General and the Deputy Organising Secretary (who deputises the Organising Secretary in all functions) and the party leader. The RPP submits that he approved of the documents as signed not only for the reason that authorised signatories signed the same but also in order to allow party members to give effect to the party constitution.
27.The RPP avers that it is not their contention that the Maendeleo Chap Chap party cannot exit a coalition. They can do so provided there’s due process to be followed. The RPP maintains that they were satisfied that there was a registered coalition agreement and due process has to be followed to withdraw therefrom, which due process promotes the rights of parties to associate.
28.With respect to PPDT Nairobi B Complaint E016 of 2022, the RPP adopted its submissions in respect of PPDT Nairobi A Complaint E060 of 2022 and further added that the checklist adduced by the Complainant in that case was a sensitisation tool which does not replace the provisions of the PPA and Regulation 21 of the Political Parties Registration of 2019. The RPP maintained that contrary to the Complainant’s allegation, the sensitisation tool did not require all authorised signatories to sign and being alive to unforeseen circumstances as regulator and office in charge of ensuring that Articles 91 and 92 of the Constitution are realised, it would be impracticable to require all authorised signatories to sign.
29.It is the RPP’s submission that the Complainant in E016 of 2022 ought to have gone to his party to report its complaint and to have his party represent him in matters concerning the coalition agreement, and not to come directly to the tribunal as he purported.
30.The RPP opposed grant of any interim orders arguing that the deadline for submission of the coalition agreement was 8th May 2022 and not 9th May 2022 and that being in an election period with strict timelines, each day counted, contrary to the Complainant’s assertion that 8th May 2022 having been a Sunday, the deadline then becomes 9th May 2022. It was averted that the deadlines during electioneering period must be interpreted strictly and that there was communication of that deadline to the political parties including the political party subject of these proceedings.
The Azimio la Umoja Kenya Coalition Party’s Case (the 2nd Respondent in PPDT Nairobi A E060 of 2022 and the 1st Respondent in PPDT Nairobi B E016 of 2022)
31.The Azimio la Umoja Kenya Coalition Party (the coalition party) relied on their Replying Affidavit sworn by Junet Mohammed on May 8, 2022 and Further Replying Affidavit sworn by Velma Achieng Maumo on May 9, 2022 and the written Submissions dated May 9, 2022.
32.The coalition party submitted that Complaint E016/22 is incompetent and defective as the allegations therein revolved around inactions by the Complainant’s own party, which issues ought to have been lodged before the party’s IDRM in the first instance. It was further submitted that the Complainant had not demonstrated any attempt at invoking IDRM or that there were any exceptional circumstances preventing the same. According to the coalition party, the attempted justification during submissions by the Complainant were submissions from the bar and that the same were not founded on the Complainant’s pleadings or affidavits on record. The coalition party contends that the Complainant cannot simply fault the existing IDRM without utilising the same in the first instance.
33.The coalition party submitted that the impugned gazette notice subject hereof was published on April 14, 2022 and that the fact that the Complainants were moving the Tribunal several days after entry into the coalition agreement did not warrant the grant of any interim orders in favour of the Complainant
34.With respect to PPDT Complaint Nairobi A E060 of 2022, the coalition party submitted that the Petitioner was creating a dispute where none existed, and that the proceedings were a mere afterthought. It is the coalition party’s position that by virtue of the gazettment and deposit of the coalition agreement with the RPP and the Petitioner having signed the same, the petitioner was bound by its provisions. That the Complainant had in fact complied as early as November 21, 2011 as evidenced by the minutes produced that they had consented to and agreed to being parties to the coalition party. That prior to the execution of the coalition agreement, they had been requested for all documents pertaining to joining of coalitions which they supplied voluntarily. It is the coalition party’s contention that the complainants are by their own conduct or representation estopped from denying that they are members of the coalition. The Tribunal was referred to several cases which enunciate the principle that once a party enters into a contract, it cannot claim illegality on its part and benefit from his own inaction or alleged illegality.
35.The coalition party submitted that the Petitioner is a member of a duly registered coalition and that the Tribunal’s jurisdiction was prematurely invoked as the petitioner did not attempt dispute resolution mechanism under Article 22 of the coalition agreement. The coalition party further submitted that Article 22 of the coalition agreement also made provision for procedure for withdrawal therefrom and that the substratum of this dispute was in regard to withdrawal from the coalition yet they elected not to follow the procedure laid down under the coalition agreement. The coalition party relied on the cases of PPDT Complaint No 12 of 2018 Amani national Congress vs ODM where the Complaint was struck out and parties thereto directed to apply IDRM under the coalition agreement.
36.With respect to Article 35 of the Constitution, the coalition party submitted that it was not a self-executing provision and that where a party claims a violation thereunder, he must demonstrate that he made attempts to get the information sought and that if he feels aggrieved, Section 9 of the Fair Administrative Action Act (FAA) and Section 14 of the Access to Information Act requires that a party exhausts the remedies thereunder before rushing to court. It is the coalition party’s submission that the Complainant has not demonstrated that he made a request to the 2nd Respondent Secretary General who is the custodian of all documents, or that such request was denied. That he simply rushed to the Tribunal to vex the 2nd Respondent and create dispute where there is none. The coalition party relied on the case of Charles Apudo Obare & Anor vs Clerk County Assembly of Siaya & another (2020) ekLR amongst other decisions cited in the written submissions
37.Counsel for the coalition party further took issue with the fact that whereas the complaints revolved around non-compliance with the party constitution, the entire constitution was not produced. The tribunal was invited to consider its status as a specialised tribunal and render determination whilst alive to the salient intrigues involved in the management of political parties without exercising a purely legalistic jurisdiction but a balanced determination that is alive to the political dynamics without ramifications that would set a bad precedent in management of political parties. That a political party that willingly entered into a coalition agreement should not casually abandon the same for convenience without following due process.
Tribunal’s Analysis and Findings
38.We have considered the parties’ pleadings and identified the following issues as falling for our consideration and determination:
Whether this Tribunal has the requisite jurisdiction to entertain the complaint
39.Jurisdiction of courts and tribunals emanate and flow 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:
40.In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011 which provides on jurisdiction of the Tribunal as follows:-
41.From the foregoing provision, it is evident that disputes arising from appeals from the decisions of the RPP under the PPA do not require evidence of an attempt at IDRM to be adduced prior to moving the Tribunal. However, disputes between political parties or coalition parties and disputes between coalition partners require that IDRM be attempted in the first instance. Suffice it to note that a political party is defined under Section 2 of the PPA to include a coalition party, and further that a coalition agreement shall provide for IDRM mechanisMs
42.In order to determine whether the Complaints subject hereof require IDRM, we must first examine the pleadings to establish whether the Complaints as pleaded constitute an Appeal within the meaning of Section 40(1)(f) of the PPA as claimed by the Complainants thus not requiring IDRM, or whether they are Complaints arising out of coalition political party and their coalition agreement and hence requiring IDRM.
43.The Complainant in E060 of 2022 maintain that their claim is an appeal against the decision of the RPP pursuant to the provisions of Section 40(2)(f) of the PPA and does not therefore require IDRM. The Respondents maintain that the dispute has been filed as a complaint and not an appeal and that considering that the essence of the dispute is a quest to withdraw from the coalition agreement, the same should be subjected to dispute resolution mechanism provided for in the coalition agreement.
44.Pursuant to the provisions of the Section 40 of the PPA, the PPDT Procedure Regulations make provision for three case types, being, a Complaint, an Appeal and a Miscellaneous Application. The Tribunal’s e-filing portal has incorporated the stated case types. We note that the Complainants in both cases elected to file their respective cases under ‘Complaint’ as opposed to ‘Appeal’. In this regard, it is evident that both cases were registered as ‘Complaints’ and not ‘Appeals’ contrary to the Complainants’ allegation. The claims subject hereof are thus presumed to be Complaints and not Appeals.
45.Be that as it may, being alive to the provision of Article 159(2)(d) of the Constitution that accords precedence to substance over form, we find it inescapable to apply our minds beyond the form of the complaints as we have already observed to the contents thereof. It is thus inescapable to examine the contents of the pleadings on record with a view to establishing whether or not the contents thereof render the same as an appeal(s) against the decision of the RPP dated April 29, 2022 as alleged by the Complainant in PPDT Nairobi A E060 of 2022 or at all.
46.We have gone through the originating Petition filed in PPDT Nairobi A Complaint Number E060 of 2022 and we note that various averments have been made not only in respect of the decision of the RPP dated April 29, 2022 but also questioning the procedure and form of entry into the coalition agreement, and the validity of the coalition agreement. Nowhere in the pleading has the Petitioner pleaded that the Tribunal has been moved pursuant to the provisions of Section 40(1)(f) of the PPA. We further note that whereas the Complainants claim that theirs was strictly an appeal against the RPP’s decision of April 29, 2022, no specific prayer has been made in relation to the subject decision. Instead, the prayer is for nullification of the Gazette Notice of April 14, 2022 and further to restrain the coalition party from presenting to the public that a lawful coalition agreement was entered into between the coalition party and Maendeleo Chap Chapa party, amongst others. The prayers sought in the Petition in our opinion demonstrate that the claim in Nairobi A Complaint No E060 of 2022 is not strictly speaking confined to an appeal against the decision of the RPP dated April 29, 2022, but also raises additional fundamental issues on procedure for entry into, form and validity of the coalition agreement. Both the RPP and the coalition party have filed Affidavits demonstrating the various party processes that led to the entry into the coalition agreement and the validity thereof.
47.In essence, we find that the issues revolving around PPDT Nairobi A Complaint No E060 of 2022 and the prayers sought therein go beyond an appeal against the impugned decision of the RPP dated April 29, 2022. That there are in fact numerous complaints relating to party processes that properly fall within the ambit of a dispute involving coalition political party or coalition partner. In the circumstances, the legal position is that such disputes require evidence of an attempt to subject the same to IDRM.
48.With respect to Complaint E016 of 2022, we note that the Complainant has not necessarily insisted that his claim is as an Appeal thus not requiring IDRM. All they have stressed on is that IDRM would not be effective or practicable given the circumstances of the case. They thus rely on the exceptions to the doctrine of exhaustion as enshrined in numerous judicial authorities to urge the Tribunal to assume jurisdiction over the matter.
49.Having found that the claims subject hereof require IDRM, we not proceed to consider whether there was an attempt to invoke IDRM by either of the Complainants in these cases. What amounts to an attempt at IDRM and the exceptions to the doctrine of exhaustion has not been without litigation before this Tribunal. We have in the case of John Mworia Nchebere & others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No E002 of 2022) issued guidelines on what amounts to an attempt at IDRM. In the stated case, we held that:-
50.In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto. In the instant case, we have evaluated the pleadings and evidence adduced and we note that there are mainly two circumstances that were pleaded. Firstly, that there was no coalition agreement or dispute resolution clause thereunder that was known to the parties and even if the same existed, it was ineffective and inconsequential as the dispute at hand challenges the legality of the agreement in the first instance.
51.As we evaluate the evidence submitted to check whether the exceptions alluded to by the Complainant as to why they could not attempt IDRM were substantiated, we take note that it is not contested that a coalition agreement was signed between the Maendeleo Chap Chap party and the Azimio la Umoja One Coalition party, and registered by the RPP under the provisions of Section 7(7) of the PPA. All parties have pleaded and alluded to the existence of the coalition agreement and it is in fact admitted by the Maendeleo Chap Chap party in its own pleadings that it is a constituent party thereto.
52.The bone of contention is not really whether a coalition agreement exists, but whether the subject coalition agreement was entered into legally. Indeed, parties spent considerable time submitting on the legality of the procedures leading to Maendeleo Chap Chap party’s entry into and execution of the coalition agreement. The Complainants argued that the agreement was not entered into in adherence to the party laws on procedure for entry into coalition agreements and authorized signatories, and that the RPP should have checked on these issues before proceeding to register the agreement. The position by the Complainant is that by virtue of the alleged illegality, they can withdraw from the coalition agreement vide a withdrawal request to the RPP. In essence, the gravamen of Maendeleo Chap Chap’s claim is that the party desires to withdraw from the coalition agreement. The position of the RPP and the coalition party on the other hand is that once a coalition agreement exists, the withdrawal or dispute resolution should follow due process as provided for within the agreement.
53.All parties having acknowledged the existence of a coalition agreement, and in light of the provisions of Section 40(2) and (3) of the PPA that make it mandatory for all coalition agreements to provide for IDRM, the coalition agreement subject hereof cannot be an exception given that the intention of making provision for IDRM is to grant parties to a coalition agreement an opportunity to resolve disputes arising out of coalitions internally before moving the Tribunal.
54.The RPP and the coalition party in fact alluded to the dispute resolution clause under Article 16 of the coalition agreement, and the withdrawal procedure under Article 22 of the coalition agreement. They aver that the substratum of this dispute being the intended withdrawal by the party from the coalition agreement, the Maendeleo Chap Chap, ought to have invoked the dispute resolution clause under the agreement before moving the Tribunal.
55.The existence of the dispute resolution clause has been challenged by the Complainants who aver that the entire coalition agreement has not been annexed and further that even if they existed, the same were unknown to the Complainants and would otherwise be ineffective. It is instructive that the Claimant claims that they have been denied information in respect to the contents of the coalition agreement and have in fact prayed for an order to compel the RPP to produce the same.
56.The Tribunal finds it difficult to believe that the Maendeleo Chap Chap would have proceeded to blindly execute an agreement of such magnitude without appreciating the provisions thereof and/or without appreciating the extent to which they were binding themselves therewith. The failure by the Maendeleo Chap Chap party to exercise due diligence prior to committing itself to the coalition, or the alleged illegalities emanating from its end, cannot in our opinion be a sound excuse to refrain from attempting IDRM as provided for in the coalition agreement. We must nevertheless address the allegation by the Complainants that they did not have a copy of the coalition agreement.
57.We have combed through the record and we do not see any requests that were made by any of the Complainants to the coalition party for a copy of the coalition agreement, or any action that was taken against any purported refusal to avail the coalition agreement prior to these proceedings. Whereas there is evidence that the RPP in her letter dated April 29, 2022 directed that the coalition party avails the agreement to Maendeleo Chap Chap, it has not been demonstrated that the political party sought for and was denied the same. It has judicially been underscored in various judicial authorities that a person seeking information in exercise of their right under Article 35 of the Constitution should first exhaust or satisfy the laid down mechanism in law before approaching the court.
58.The court in the case of Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2021] eKLR while emphasizing the jurisdiction of the Commission of Administrative Justice cited the decision in Savraj Singh Chana(supra) with approval and opined as follows:
60.In the matter before us, as we have already observed, the Complainants have not demonstrated that they sought a copy of the coalition agreement from the coalition party in vain. The Complainants cannot therefore claim that they were unaware of the dispute resolution clause. In any event, the Complainants ought to be alive to the provisions of Section 49(3) of the PPA that makes it mandatory for all coalition agreements to have IDRM.
61.Further as regards the Complaint in PPDT E016/2022, we agree with the RPP and the coalition party that the Complainant being a member of the party cannot directly and by himself seek claims in relation to matters involving the coalition agreement. He ought to have first moved his party’s IDRM with a view to the party taking up the matter. In fact we note from the record that a party not before us (the Vice Chairman of Maendeleo Chap Chap) previously moved the Maendeleo Chap Chap party’s IDRM (the Internal Dispute Resolution Tribunal) which rendered a decision and further directed the party to take up the matter and write to Azimio la Umoja One Kenya Coalition in the first instance. This has not happened in this case.
62.In PPDT Complaint No 12 of 2021 Hon Senator Cleophas Malala vs. ODM & Others, the Tribunal observed as follows in respect to IDRM where coalitions are concerned:-
63.In PPDT No 12 of 2018, Amani National Congress vs Orange Democratic Movement
- Other, we struck out the Complaint for want of exhaustion of IDRM within the NASA coalition agreement.
64.In Amani National Congress Party v Godfrey Osotsi & another [2021] eKLR, Mbogholi Msagha, J observed as follows:-
65.We cannot agree more with the positions articulated in the afore-going judicial authorities and we find no reason to depart therefrom. The alleged exceptions to the doctrine of exhaustion that the Complainants alluded to have not been substantiated.
66.Taking into consideration the totality of the foregoing circumstances, we find that the Complaints filed in both cases are premature and that we have no jurisdiction to hear and determine the same.
67.Having found that we have no jurisdiction, what follows is what was enunciated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989)1:
68.Taking cue from the above decision, we hereby down our tools in this matter.
69.As regards costs, whereas costs follow the event, we take into consideration the fact that the cases have been struck out and that parties still need to engage with one another with a view to resolving the dispute. Accordingly, in the interest of fostering that unity, we direct that each party bears its own costs.
Disposition
DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MAY, 2022.DESMA NUNGO……………………………………………(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..(MEMBER)FLORA M. MAGHANGA-MTUWETA………………….(MEMBER)RUTH WAIRIMU MUHORO …………………………...(MEMBER)
70.In light of the foregoing, we make the following orders:i.That the Complaints herein being PPDT Nairobi A Complaint No E060 of 2022 and PPDT Nairobi B Complaint No E016 of 2022 are hereby struck out.ii.That each party bears their own costs.