Dubat v Wiper Democratic Movement & another (Complaint E147 (NRB) of 2022) [2022] KEPPDT 996 (KLR) (27 September 2022) (Judgment)
Neutral citation:
[2022] KEPPDT 996 (KLR)
Republic of Kenya
Complaint E147 (NRB) of 2022
D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members
September 27, 2022
Between
Ikran Ali Dubat
Complainant
and
Wiper Democratic Movement
1st Respondent
Independent Electoral & Boundaries Commission
2nd Respondent
Judgment
Introduction
1.This matter arises out of dissatisfaction by the Complainant with the 1st Respondent’s list of nominees for Kitui County Assembly under the marginalized category.
2.The Complainant found the nomination of Waziri Bakari Baraka, Rose Kasyoka and Joseph Mulila Mule Nzioka to be improper, and moved this Tribunal by way of a Complaint dated 19 September 2022, seeking:i.That this Honourable Tribunal does and hereby orders the 1st Respondent to remove the names of Waziri Bakari Baraka, Rose Kasyoka And Joseph Mulila Mule Nzioka from the list of the marginalized group nominees to The County Assembly Of Kitui under Wiper Democratic Movement- Kenya during the re-submission.ii.That this Honourable Tribunal does and hereby issues a stay of the said publication by the IEBC for the Marginalized Group Nominees To The County Assembly Of Kitui under Wiper Democratic Movement- Kenya until this application is fully heard and determined on merit,
3.Following the directions of this Tribunal, the matter came up for hearing on the 23rd September 2022. The Complainant was represented by Ayora Magati & Company Advocates, while the 1st Respondent was represented by Lumallas, Achieng & Kavere Advocates. There was no appearance by the 2nd Respondent despite service.
The Complainant’s Case
4.In crux, the Complainant submits that on diverse dates in the month of July 2022, in compliance with the Election (Party Primaries & Party List) Regulations 2017 (hereinafter referred to as the Regulations), the 1st Respondent prepared a list with nominees for Kitui County Assembly that was forwarded to the 2nd Respondent, where she was listed as number 2 on priority basis.
5.However, that list was found to be non-compliant with the Constitution and electoral laws. As such, the list was returned to the 1st Respondent for re-submission.
6.In complying with the 2nd Respondent’s directive, the 1st Respondent prepared a subsequent list that effectively moved the Complainant from position 2 to 4.
7.The Complainant avers that this measure was improper for several reasons. She contends that it was disadvantageous to her and that it was done without following the laid down rules for nomination. She also alleges that the Respondent submitted the names of the amended list and knowingly changed the Complainant’s profession from business lady to community worker.
8.She further argues that the 1st and 2nd nominees on the list re-submitted to the IEBC and published on July 28 2022, are all members of the same community (Kamba) to the disadvantage of the Complainant who hails from the Somali community.
9.The Complainant in a further affidavit maintains that the 1st Respondent’s party list does not reflect diversity as required by Article 90(2) (c) of the Constitution and that it lacks inclusivity as well as balance. She argues that the list did not meet the minimum requirements of the law on equality and equal opportunities for all.
10.In addition, the Complainant denies that the 1st Respondent swapped her with the 3rd nominee so as to comply with the law. She submits that if this was the criteria then the 3rd nominee could have shifted positions with the 1st nominee.
11.The Complainant also noted that the Respondent did not respond to the issue of ethnic minority in regards to the 1st, 2nd and 3rd nominees.
12.The Complainant maintains that this Tribunal has jurisdiction to hear and determine this Complaint as there has been no gazettment of nominees for Kitui County Assembly.
The 1st Respondent’s Case
13.The Complaint is opposed by the 1st Respondent who have filed a Replying Affidavit sworn by Shakila Abdalla on 21st September 2022.
14.The 1st Respondent submits that that they invited their members who are either youth, women, persons with disabilities (PWD), marginalized groups or minority groups to submit their applications for vetting as nominees to the County Assembly of Kitui. Among the members who had applied were the Complainant, Waziri Baraka, Rose Kasyoka and Joseph Mulila Mule Nzioka, The Complainant and Waziri Baraka applied for the position of ethnic minority seat. Rose Kasyoka applied for the position of PWDs, while Joseph Mulila applied as a worker.
15.The 1st Respondent contends that following applications, they submitted the initial party list to the 2nd Respondent. The list included the name of Waziri Baraka followed by the Complainant, both of whom were representing ethnic minorities. However, the 2nd Respondent rejected this list for being non-compliant with their checklist, including not alternating between male and female nominees. The 1st Respondent were thus directed to amend their list according to the requirements of the Constitution and electoral laws.
16.Pursuant to the directive, the 1st Respondent amended their list. One of the amendments was that the Complainant was replaced with Rose Kasyoka, who had applied to represent PWD for the same position as the Complainant.
17.The 1st Respondent contends that they acted lawfully in compliance with the Constitution and electoral laws when preparing the subsequent list. They further contend that the Complainant’s application is frivolous, scandalous, vexatious, lacks merit and should be dismissed with costs.
Analysis and Determination
18.The Tribunal has reviewed the parties’ case, and isolated the following issues for determination:i.Whether this Tribunal has jurisdiction to hear and determine this Complaint?ii.Whether the Complaint has merit?
Whether this Tribunal has jurisdiction to hear and determine this matter?
19.Jurisdiction is everything and it is what gives this Tribunal the power to hear and determine matters that are brought before it. Without jurisdiction, any orders made by this Tribunal amounts to a nullity ab initio.
20.The place of jurisdiction in law is well settled as was stated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989), where Nyarangi J.A. held as follows:
21.The jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. 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(hereinafter the PPA) which provides on jurisdiction of the Tribunal 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; andfa.disputes arising out of party nominations2.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.3.A coalition agreement shall provide for internal dispute resolution mechanisms
22.Given that there has been no gazettment of nominees to the County Assembly of Kitui, we agree with the Complainant that the dispute at hand has not transited to an election by way of nomination. It is still a party nomination dispute between a member and a political party, and therefore falls squarely within the provisions of Section 40(1)(b) and (fa) of the PPA as highlighted above.
23.However, as articulated under Section 40(2) of the PPA, the Tribunal can only adjudicate on matters under Section 40 (1) (a), (b), (c), (e) and (fa) once the said dispute has been subjected to the political party’s Internal Dispute Resolution Mechanism (IDRM). In principle, this provision also known as the doctrine of exhaustion, requires the aggrieved party to adduce evidence of an attempt at compliance before the Tribunal can assume jurisdiction.
24.The Tribunal has previously issued guidelines on what amounts to an attempt at IDRM in the case of John Mworia Nchebere & Others v The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint no E002 of 2022). In this case, the Tribunal held that: -
25.The Tribunal therefore has to question whether or not the Complainant has exhausted the IDRM of their political party. It follows that the answer is one that does not require the matter to be heard and determined to completion provided an honest attempt can be demonstrated. In the case of Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others, it was held that:
26.The question of jurisdiction is an important one, that has to be determined before any other matters can be adjudicated upon. This Tribunal, can on its own motion make determinations on jurisdiction where parties have been invited to make submissions, just as was done in this case. Indeed, the Tribunal must be assured that matters are properly brought before it.
27.On invitation by the Tribunal to submit on the question of jurisdiction, the Complainant’s Counsel affirmed that the Tribunal had jurisdiction to hear this matter as there was no gazettement in respect of Kitui County Assembly. Counsel did not, however, make any submissions on the question whether there was an attempt to subject this dispute to the party’s internal dispute resolution mechanisms (IDRM) prior to moving this Tribunal as provided for under Section 40(2) of the Political parties Act. From the pleadings and documents before us, it has not been shown whether Complainant has pursued IDRM. No evidence has been adduced to support an inference of an honest attempt at IDRM. The requirement for IDRM can only be circumvented in exceptional circumstances. However, these exceptions have not been pleaded or proven to exist in this case.
28.The importance of IDRM has been repeatedly affirmed by this Tribunal, notably in the case of Elisha Ochieng Odhiambo v George Jalango Midiwo (Nrb PPDT Complaint no E003 of 2022), where the Tribunal held that:
29.In light of the foregoing analysis, we find that the Complainant failed to comply with the pre-condition set out in Section 40(2) of the Political Parties Act. 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 Tribunal lacks jurisdiction to hear and determine the Complaint before it.
Whether the Complaint has merit?
30.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.
31.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
DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF SEPTEMBER 2022.DESMA NUNGO .....................(CHAIRPERSON)DR. KENNETH MUTUMA ................(MEMBER)FLORA M. MAGHANGA-MTUWETA .............(MEMBER)RUTH WAIRIMU MUHORO ...................(MEMBER)
32.In light of the foregoing, we order as follows: -i.The Complaint herein be and is hereby struck out.ii.Each party to bear their own costs.