Langat v Msuri & 30 others; UDA Party (Interested Party) (Complaint E003 (NRB) of 2024) [2024] KEPPDT 502 (KLR) (Civ) (11 November 2024) (Ruling)
Neutral citation:
[2024] KEPPDT 502 (KLR)
Republic of Kenya
Complaint E003 (NRB) of 2024
D. Nungo, Chair, S Musau, AA Abdikadir & MM Yusuf Jin, Members
November 11, 2024
Between
Hon Alex Langat
Complainant
and
Hon Fadhili Msuri & 30 others
Respondent
and
UDA Party
Interested Party
Ruling
1.These proceedings were instituted in this Tribunal vide a Statement of Complaint dated 11th September 2024 (hereinafter referred to as the Complaint) wherein the Complainant seeks the following orders: -a.That this Honourable Tribunal stays/sets aside and/or quash the decision of the Respondents to ouster the Complainant pending the hearing and determination of this Complaint.b.That this Honourable Tribunal quash the decision to remove the Complainant as majority leader in Nakuru County Assembly.c.That this Honourable Tribunal quash the decision to replace the Complainant with the 3rd Respondent.d.That this Honourable Tribunal do issue an Order reinstating the Complainant in the position of majority leader in the Nakuru County Assembly.e.That the Respondent bears the costs of this Complaint.f.Any further orders as the Tribunal may deem fit.
2.The Complaint was filed together with a Certificate of Urgency dated 11th September 2024. The matter came before the Tribunal inter-partes on 24th September 2024 when directions were given for filing of documents and the matter was listed for a further mention date on 3rd October, 2024.
3.In response to the Complaint and Application, the Respondents filed a Response to Complaint dated 23rd September, 2024, a Replying Affidavit sworn by Hon. Fadhili Msuri, a Replying Affidavit sworn by William Mutai on 24th September, 2024. The Interested Party filed a Notice of Preliminary Objection dated 30th September, 2024. As the preliminary objection objected to the Tribunal’s jurisdiction to hear and determine this matter, directions were issued for the hearing of the preliminary objection as a priority. All parties accordingly filed their respective written submissions on the preliminary objection, and the preliminary objection was heard inter partes on the 30th October 2024.
4.At the hearing of the preliminary objection, the Complainant was represented by Ms. Esang Advocate, the Respondents were represented by Mr. Thuku together with Mr.Bitok. The Interested Party was represented by Mr. Sanare Advocate.
Submissions by the Interested Party.
5.Counsel for the Interested Party did not file submissions but proceeded orally and submitted that the Interested Party objected to the jurisdiction of this Honorable Tribunal pursuant to the provisions of Section 40 of the Political Parties Act and Article 39 of the UDA Constitution.
6.That the Complaint is against the ouster of the Complainant as the leader of majority in Nakuru County Assembly and seeks various orders. That the dispute is one between members of the UDA Party. The Political Parties Act and the UDA Constitution do require an attempt at IDRM. This has not happened.
7.That in the circumstances, the Complainant is forum shopping. He relied on the doctrine of exhaustion of remedies and urged the Tribunal not to usurp the role of the Political Party. The Counsel prayed that the Preliminary Objection be upheld.
Submissions by the Respondents.
8.The Respondents supported the Preliminary Objection by the Interested Party, and filed their submissions thereto dated 16th October, 2024.
9.The Respondents submitted that this Honourable Tribunal lacks the jurisdiction to hear and determine the Complaint and the Application, arguing that the same had been filed in violation of section 40(2) of the Political Parties Act and Article 39 of the UDA Constitution. That S. 40(2) of the Political Parties Act only grants this Honourable Tribunal the jurisdiction to hear and determine disputes under paragraphs (a), (b), (c), (e) or (fa) of subsection (1) thereof when “a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.” That the Complainant did not subject the current dispute to the internal political party dispute resolution mechanism established by UDA. None of the parties have adduced any evidence of such an attempt to have the dispute resolved in accordance with the UDA Constitution.
10.The Respondents further submitted that a dispute that arises from the election or removal of the Leader of the Majority Party of the County Assembly of Nakuru is a dispute determinable under sections 40(1) (a) and (b) of the Political Parties Act. Standing Order 19 Paragraph 1 of the Standing Orders of the County Assembly of Nakuru require the largest party or coalition of parties in the Assembly to elect “a member of the Assembly belonging to the party or coalition of parties to be the leader of the majority party.” Counsel submitted that Courts have adjudged that such disputes are political disputes and referred to the case of John Musakali v Speaker County Assembly of Bungoma, County Assembly of Bungoma, Henry Nyongesa Khaemba, Moses Wabwile & Amani/ Jubilee Coalition [2015] KEHC 2131.
11.That section 40(2) of the Political Parties Act creates an obligation to explore or, in the least, attempt the political party dispute resolution mechanism before one approaches this Honourable Tribunal. Counsel referred to the case of Mohamed Abdi Farah v Speaker Garissa County Assembly, Clerk Garissa County Assembly & Minority Party Whip Garissa County Assembly (Petition 6 of 2022) [2022] KEHC 4994 (KLR) (19 June 2022) (Ruling), where the Court held that the dispute would be admissible before the Political Parties Tribunal once one has exhausted the dispute resolution mechanisms within the party.
12.They submit that the amendments to section 40(2) of the Political Parties Act made vide Political Parties (Amendment) Act No. 2 of 2022 did not remove the requirement to explore or at least attempt the internal dispute resolution mechanisms of the political party before the dispute is lodged before this Honourable Tribunal, and referred to the Ruling of this Tribunal in Nchebere & 15 others v National Chairman, Orange Democratic Movement & 2 others (Complaint No. E002 of 2022) [2022] KEPPDT 1064 (KLR) (23 February 2022) (Ruling) in which guidance was issued on section 40(2) of the Political Parties Act as amended to the effect that a party to a dispute must show the following before a dispute is admitted by this Honourable Tribunal:a.The unavailability of the organ to resolve disputes;b.If the organ is available, it is inoperative, fraught of conflict of interest, obstructive, in perpetual paralysis or subject to perpetual delays;c.Reasonable time is afforded time to the party to respond, constitute or internal dispute resolution mechanism to hear and determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The relief should be proportionate and if alternative remedies are available to mitigate the loss suffered, the same should be considered.
13.The Respondents submitted that the Complainant has not led evidence of an attempt to resolve the dispute before the UDA Internal Dispute Resolution Committee (IDRC) established under Article 39 of the UDA Constitution. Article 39.1 of the UDA Constitution establishes the IDRC which comprises nine (9) members drawn from members of the National Governing Council, National Executive Committee, National Steering Committee and National Policy Committee. Article 39.3 grants the IDRC the jurisdiction to adjudicate “any dispute other than an electrical dispute arising out of party elections and nominations”. Under Article 39.4, an appeal against the decision of the IDRC would lie before the National Executive Committee and its decision would be final. Under Article 32 of the UDA Constitution on the other hand,another committee, the Dispute Resolution Committee, receives, hears and determines disputes resulting from the internal party elections and nominations.
14.The Respondent humbly submits that the Claimant did not attempt to resolve his dispute with the Respondents and the Interested Party as required under section 40(2) of the Political Parties Act and Article 39 of the UDA Constitution. He has also not led evidence to show that the Complaint herein falls under any of the exceptions identified by this Honourable Tribunal in the Nchebere & 15 others case. He has not shown, through evidence, that the UDA IDRC has not been constituted or could not have accorded him a fair and fast hearing.
15.In conclusion the Respondents submitted that the Preliminary Objection should be allowed and Complaint and the Application herein should be dismissed with costs for failure to comply with section 40(2) of the Political Parties Act and Article 39 of the UDA Constitution.
Complainant’s Submissions.
16.The Complainant opposes the Preliminary Objection and filed submissions dated 16th October, 2024 and further submissions dated 25th October, 2024.
17.Counsel referred to the celebrated case of Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 on the issue of preliminary objection and Article 39 of the UDA Constitution and submitted that the subject dispute before us is premised on matters touching on the election and removal of majority leader of the Nakuru County Assembly, and this being an electoral dispute, touching on unprocedural election and removal of a leader of majority, the dispute arising out of the elections could not be adjudicated by the Internal Dispute Resolution Committee and that the Complainant is properly guided by the provisions of Article 39 of the UDA Constitution.
18.The Counsel for the Complainant further referred to the House Standing Order Number 19 of Nakuru County Assembly and stated that the Complainant was not elected as the leader of the majority in the manner provided under Standing Order No. 19(1). That the Complainant was not voted in as per the provisions provided. At the time of election, in the year 2022, the elected members of the County Assembly could not agree among themselves. The disagreement became so heated and highly disputed causing the UDA party leadership to appoint the Complainant as the leader of majority vide a letter delivered to the Secretary General. Based on this, the removal from office as argued by the respondents was unprocedural and contrary to the provisions of standing order 19(4). The elections conducted by the elected members of the county assembly was not procedural. The complainant was never informed of any intentions of conducting elections and was never called to the meeting convened. The complainant was never granted fair hearing and grounds used to ouster the complainant were never raised to enable him respond. The election was therefore conducted unfairly.
19.The Counsel referred to S. 40 of the PPA and the cases of Lukorito v UDA & 4 others (Complaint E25(KK) of 2022 reiterating the position taken in Samuel Kamau & another v Kenya Commercial Bank Limited and 2 others [2012]eKLR. He stated that the current dispute is between a member of a political party which is covered by S.40(1)(a) of the PPA, and the Tribunal is therefore properly clothed of jurisdiction.
20.He noted that the issue of invoking IDRM in this instance is inapplicable in cognizance of Article 39 of the UDA constitution. In any case, the Complainant wrote to the UDA party in an attempt to challenge the impugned decision by members of County Assembly. He referred to a letter dated 10th September 2024. He stated that the need to institute IDRM was not a requirement in this case but nevertheless the complainant subjected the dispute to IDRM.
21.In conclusion the Complainant prayed that we find that the preliminary objection dated 30th September 2024 lacks merit and dismiss the same with costs to the Complainant.
Tribunal’s Analysis and Findings
22.We have considered the parties’ submissions and the sole issue for determination is whether this Tribunal has Jurisdiction to hear and determine this matter.
23.In the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR the court defined jurisdiction as follows:-
24.Jurisdiction of courts and tribunals emanates and flows 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:
25.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:-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 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.
26.In dealing with this issue, we will therefore have to determine whether the dispute falls within Section 40(1) of the PPA and whether there was a requirement for an attempt at IDRM, and whether the same was done.
27.We have considered the claim made by the Complainant that IDRM was not a requirement in this matter as the dispute related to party elections. We note that in the Complaint filed herein, the Complainant has marked/described this dispute as one between members of a political party, and also as one between a member and the political party. We have also looked at the evidence and submissions of the party and we note that indeed the dispute is between members of a political party and/or between a member of a political party and the political party.
28.Therefore, as alluded to by all parties hereto, the instant dispute, being one between members of a political party and/or between a member of a political party and the political party, the same falls under the afore-highlighted provisions of Section 40(1)(a) and (b) of the PPA. Pursuant to Section 40(2) of the PPA, the same require a party to the dispute “to adduce evidence of an attempt to subject the dispute to internal political party dispute resolution mechanisms. It therefore does not matter whether the dispute subject hereof arises from an election or otherwise, as Section 40(2) of the PPA provides that such a dispute shall not be heard by the Tribunal unless a party to the dispute adduces evidence of an attempt to subject the dispute to IDRM.
29.In the context of this Tribunal, what amounts to an attempt at IDRM and the exceptions thereto has not been without litigation. This Tribunal has considered an attempt at IDRM previously and issued guidelines in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022) wherein the Tribunal held that:-
30.In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto. The question that therefore begs to be answered is whether there is evidence of an attempt to subject the dispute hereof to IDRM.
31.We have perused the Complaint and the Complainant’s Affidavit on record and interestingly, the Complainant did not plead on any attempts to resolve the matter within the party prior to moving this Tribunal. It is only in his Further Submission dated 25th October, 2024 that the Complainant referred to a letter dated 10th September 2024 to demonstrate an attempt at IDRM. The subject letter is annexed to the Complainant’s List & Bundle of Documents dated 10th September 2024 filed on 12thSeptember 2024.
32.As we consider the Complainant’s said letter dated 10th September 2024, it is noteworthy note that this matter was filed before this Tribunal on 11th September, 2024. The date of filing is barely one day after the date of the Complainant’s said letter dated 10th September 2024. In essence, it is obvious that if at all the party received the letter, there was no reasonable time availed to the party to resolve the dispute at the party level before the dispute was brought to this Tribunal on 11th September 2024.
33.In the case of John Mworia Nchebere Case (supra), we stated;
34.And in PPDT Nairobi A Complaint No. E002 of 2024 Abubakar Mohammed Khalif v Mohamed Abdi Farah & Others, we observed as follows; -
35.The totality of the facts and circumstances of this case lead us to the same conclusion that was arrived at in the above cases, that is, that the Complainant herein wrote the letter dated 10th September 2024, as a mere formality, and/or as an afterthought, without the honest intention of having the party resolve the dispute in the first instance.
36.In Amani National Congress Party v Godfrey Osotsi & another [2021] eKLR, Mbogholi Msagha, J observed as follows:-
37.We cannot agree more with the position articulated in the afore-going judicial authorities and we find no reason to depart therefrom. Taking into consideration the totality of the foregoing circumstances, we find that the Complaint is premature and that we have no jurisdiction to hear and determine the same.
38.Having found that we have no jurisdiction, what follows was enunciated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989]1:
39.Taking cue from the above decision, we have no option but to down our tools.
40.As regards costs, whereas costs follow the event, we take into consideration the fact that this Complaint has 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 party unity, we direct that each party bears its own costs.
Disposition
41.In light of the foregoing, we make the following orders:i.That the Preliminary Objection dated 30th September, 2024 be and is hereby upheld.ii.That the Complaint herein be and is hereby struck out.iii.That each party to bear its own costs.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2024.DESMA NUNGO, HSC(CHAIRPERSON)....................................STEPHEN MUSAU(MEMBER)....................................ABDIRAHMAN ABDIKADIR(MEMBER)....................................MUZNA JIN(MEMBER)