Josphat & another v Party of National Unity & another (Complaint E005 (MRU) of 2024) [2024] KEPPDT 508 (KLR) (5 August 2024) (Ruling)
Neutral citation:
[2024] KEPPDT 508 (KLR)
Republic of Kenya
Complaint E005 (MRU) of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
August 5, 2024
Between
Nicholas Kinyua Josphat
1st Complainant
Edith Makena Mugaine
2nd Complainant
and
Party of National Unity
1st Respondent
County Assembly of Meru
2nd Respondent
Ruling
Introduction
1.The 2nd Respondent filed a Notice of Preliminary Objection dated 10th July 2024 (hereinafter referred to as the PO). The PO raises an objection to the Jurisdiction of the Tribunal to hear and determine the instant Complaint on grounds, that: -i.The Complaint/suit flies against the mandatory provisions of Section 40(2) of the Political Parties Act, namely that the Internal Dispute Resolution Mechanism (IDRM) has not been exhausted.ii.The Complaint offends the mandatory provisions of Section 7 of the Political Parties Disputes Tribunal (Procedure) Regulations 2017.iii.That the 2nd Respondent is not a party contemplated under Section 40(1) of the Political Parties Act.iv.That the 2nd Respondent is un-procedurally joined as a Respondent in these proceedings.
2.Pursuant to the directions of this Tribunal, parties filed written submissions on the PO and proceeded to highlight their respective submissions on the 26th July 2024. At the hearing of the PO vide oral highlights of the parties’ written submissions, the Complainants were represented by Mr. Kibet Advocate holding brief for Mr. Busiega Advocate, and the 2nd Respondent was represented by Mr. Muriuki Advocate. There was no appearance for the 1st Respondent despite service.
Submissions on behalf of the 2nd Respondent
3.The 2nd Respondent relied on the PO, the 2nd Respondent’s Written Submissions dated 19th July 2024,
4.The 2nd Respondent referred to the provisions of Section 40(2) of the PPA and contends that the same make it mandatory for the to first register/ventilate his complaint /grievance with the 1st Respondent’s IDRM before invoking this Tribunal’s jurisdiction. It is the 2nd Respondent’s submission that the Complainant failed to invoke IDRM, and that courts have in a plethora of decisions held that failure to invoke IDRM renders a complaint fatal and for striking out. They relied on Hon. David Kapeliswa & Another vs. The Speaker West Pokot County Assembly & 3 Others (2020) eKLR; Gabriel Bukachi Chapia vs. ODM & Another (2017) eKLR; Garissa High Court Judicial Review No. E008 of 2024; and Republic vs. County Assembly of Garissa & Others (2024) eKLR.
5.It is the 2nd Respondent’s further submission that pursuant to Section 7 of the Political Parties Disputes Tribunal (Procedure) Regulations 2017, any party aggrieved by a decision of a political party must file a complaint within 30days. The impugned decision, as per the 2nd Respondent’s annexure JK1, as well as the Complainant’s pleadings and annexures, took effect way back in February 2024. The Complainant filed the complaint in June, four months down the line, without any leave to file the complaint out of time and/or an application of extension of time, and that failure to adhere to the mandatory provisions of Section 7 of the Political Parties Disputes Tribunal (Procedure) Regulations 2017 renders the entire complaint fatal.
6.The 2nd Respondent further submitted that Section 40(1) of the PPA does not confer jurisdiction on the tribunal on matters pitting a member of a county assembly and the county assembly, that the sectoral committee on public accounts and investment in consonance with the Meru County Assembly Standing Orders passed a vote of no confidence against the 1st Complainant in respect of the concerned committee in the County Assembly. That this decision had nothing to do with a political party or the complainant’s political party, and was an exercise/decision taken pursuant to the Standing Orders and thus not within the Tribunal’s jurisdiction.
7.The 2nd Respondent further objects to the listing of the County Assembly of Meru as a Respondent instead of an Interested Party in this matter. That the 2nd Respondent did not arrive at any decision to de-whip the Complainants, and that it is the 1st Respondent that did so as per the document dated 1st February 2024.
Submissions on behalf of the Complainants.
8.The Complainants are in opposition to the PO and they relied on their Written Submissions and List of Authorities dated 25th July 2024, and the oral submissions made at the hearing of the PO.
9.Vide their submissions, the Complainants identified three main issues for determination, that is, whether this Honourable Tribunal has the Jurisdiction to hear and determine the complaint/suit; whether the 2nd Respondent has been properly joined in this suit; and Who bears the costs of the suit.
10.On the first issue, the Tribunal was referred to the definition of jurisdiction as judicially underscored in the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR, and the provisions of Section 40 of the PPA.They submit that on the 26th February 2024, the Complainants wrote letters dated 26th February, 2024, and received by the 1st Respondent on 28th February, 2024, wherein the Complainants registered their complaints and frustrations, and invited the 1st Respondent to resolve this dispute as required by the party constitution and the Political Parties Act, No 11 of 2011. The 1st Respondent has not filed an affidavit in court to deny or controvert the said letter or its contents therein, and that the evidence of compliance with the doctrine of exhaustion therefore remains unchallenged.
11.It is the Complainants’ submission that their decision to proceed to this Honourable tribunal is by virtue of the fact that there was no step taken by the 1st Respondent to resolve the stalemate. That it would have been prejudicial to the Complainants to continue pushing for the conflict to be resolved within the party yet there was clear lack of good will from the party’s IDRM. That a complaint to the 1st Respondent’s IDRM does not take any specific form and the Complaints’ letter was enough evidence that IDRM had been attempted. They relied on the findings in the case of David M. Mbuthi v Jubilee Party & Another [2017] eKLR; Peter Oluoch Owera v David Ruongo Okello & Another [2017] eKLR; Ibrahim Abdi Ali V Mohamed Abdi Farah & Anor (Complaint No.29 of 2015); Jared Kaunda Chokwe Barns Vs Orange Democratic Movement & 2 Others; and Jeconia Okungu Ogutu & Another vs Orange Democratic Party& 5 Others (Complaint 200 of 2017).
12.On the second issue, the Complainants referred the Tribunal to the provisions of Order 1 rule 1 of the Civil Procedure Rules, and submitted that the relevant tests for determining whether or not to join a party in proceedings were restated by Nambuye, J (as she then was) in the case of Kingori vs. Chege & 3 Others [2002] 2 KLR 243; and Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55.They submit that Article 176 of the Constitution of Kenya 2010 creates County Governments comprising of the County Executive and the County Assemblies. The County Assembly is therefore a creature of law and can sue or be sued in any court of law, and that the Committees in which the Complainants were un-procedurally removed are institutions within the County Assembly of Meru. That Part XXI of the Meru County Assembly Standing Orders establish these Committees and even give a procedure for appointment of members to such committees. In any event, the decisions made by the Political Parties are to be implemented by the County Assembly and therefore it cannot shun away from being involved in this suit/Complaint. Any decision made by tribunal will also be served upon the County Assembly for execution.
13.The Complainants accordingly maintain that the PO is unmerited and the same should be dismissed with costs.
Submissions on behalf of the 1st Respondent.
14.The 1st Respondent did not participate in these proceedings despite service.
Tribunal’s Analysis and Findings
15.We have considered the PO and the parties’ respective submissions thereon and identified the following issues for determination: -i.Whether this Tribunal has Jurisdiction to hear and determine this matter? ii. Whether the 2nd Respondent is a necessary party in these proceedings?iii.Who should bear the costs?
Whether this Tribunal has Jurisdiction to hear and determine this matter?
16.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:
17.The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya as read together with Sections 40 of the Political Parties Act, 2011 (the PPA), which provides 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.
18.To the extent that the Complainants herein challenge the impugned decision of the 1st Respondent to remove them from the house committees, as evidenced by the pleadings and the prayers sought in the Complaint, there is no gainsaying that the dispute herein is therefore one that arises between members of a political party and the political party. Section 40(2) of the PPA requires such a dispute to be subjected to the Respondent’s IDRM prior to moving the Tribunal. It is thus inescapable for this Tribunal to scrutinize the record with a view to establishing whether that there was an attempt made to subject the instant dispute to the 1st Respondent’s IDRM in the first instance.
19.It is noteworthy that Article 28 of the 1st Respondent’s constitution has been produced and the same provides on the 1st Respondent’s IDRM, being the Complaints Tribunal. The 1st Respondent’s constitution provides that a complaint should be reduced into writing and forwarded to the party, where-after the party will forward the same to the Complaints Tribunal. The Complaints Tribunal is thereafter mandated to determine the procedure and timelines for the determination of the complaint. The 1st Respondent’s constitution does not, however, provide on the form of the complaint.
20.In this case, the 1st Complainant has demonstrated that he reduced his complaint into writing vide his letter dated 26th February 2024 addressed to the Secretary General of the 1st Respondent. We note that the subject matter of the letter is “Ref: My Discharge as Member and Vice Chairperson of the PAC Committee County Assembly of Meru.” In the letter, the 1st Complainant states that by a communication made by the Speaker in the floor of the Assembly, he was informed that his political party, the 2nd Respondent, had communicated that he be discharged from the Public Accounts and Investment Committee of the Assembly. He expressed his dissatisfaction with the decision of the 1st Respondent to remove him from the subject committee without being afforded a right to be heard or being given reasons for his removal in breach of the law. He states in the last paragraph that “By way of this letter, I am registering my complaint and giving notice to my PNU Party to vacate the decision oblivious of any reasons being advanced to me, failure to which I shall exercise my right to legal redress after the lapse of seven (7) days from the date of this complaint.” The letter is stamped as received by the 1st Respondent on 28th February 2024.
21.The 2nd Complainant on the other hand, has similarly demonstrated that she reduced her complaint into writing vide her letter dated 26th February 2024, addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge as Member Budget Committee County Assembly of Meru.” In the letter, the 2nd Complainant states that by a communication made by the Speaker in the floor of the Assembly, she was informed that her political party, the 2nd Respondent, had communicated that she be discharged from the Budget Committee of the Assembly. She similarly expressed her dissatisfaction with the decision of the 1st Respondent to remove her from the committee without being afforded a right to be heard or being given reasons for her removal in breach of the law. She states in the last paragraph that “By way of this letter, I am registering my complaint and giving notice to my PNU Party to vacate the decision oblivious of any reasons being advanced to me, failure to which I shall exercise my right to legal redress after the lapse of seven (7) days from the date of this complaint.” The letter is also stamped as received by the 1st Respondent on 28th February 2024.
22.The 1st Respondent did not participate in these proceedings with a view to stating the party’s position/response despite service. It therefore follows that no evidence has been adduced before us to demonstrate that the 1st Respondent actioned and/or forwarded the Complainants’ complaints contained in the letters under reference to the party’s IDRM as provided for in the party constitution. In essence, the only logical conclusion we can make, based on the record before us, is that the Complainants’ complaints were not acted on by the party in accordance with the provisions of the party constitution.
23.We are of the considered opinion that the 1st Respondent should have at the very least processed the Complainants’ complaints in accordance with their constitution and/or responded to the Complainants’ letters of complaint. Such was the consideration of the Court of Appeal in the case of Samuel Kalii Kiminza vs. Jubilee Party & Another (2017) eKLR, where it was observed as follows: -
24.In view of the foregoing, we find that the Complainant has demonstrated that he made an honest attempt at IDRM in vain, and that we accordingly have jurisdiction to hear and determine this matter.
25.We have further considered the provisions of Regulation 7 of the PPDT (Procedure) Regulations and the parties’ submissions. Regulation 7 no doubt provides for filing of a dispute within 30days of the making of the decision complained of. In this case, we have already found that the Complainants properly invoked IDRM vide the letters received by the party on 28th February 2024, and further that the 1st Respondent had not responded to the Complainants by the time of filing the instant proceedings. Our view is that the complainants having invoked IDRM, the timelines referred to under Regulation 7 should take into consideration the time taken by the political party to undertake IDRM. The 1st Respondent having failed to attend to the complaints, it would be an affront to justice to interpret the provisions of Regulation 7 in a manner that evicts the Complainants from the seat of justice as a consequence of the 1st Respondent’s own non-responsiveness.
26.We have further considered that the 2nd Respondent further submitted that there was another angle to the dispute, which related to the declaration of the vote of no confidence against the 1st Complainant. That the process leading to the declaration of the vote of no confidence against the 1st Complainant serving as Vice Chairman was a county assembly process that does not fall within the jurisdiction of this Tribunal. We have gone through the affidavits on record and documentation and we have taken note of certain contested positions that will need to be ascertained. For instance, the question whether the declaration of vote of no confidence originated from a political party process or a county assembly process is contested, and taking cue from the definition of a PO in Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited 1969 E.A 696, we may not be in a position to ascertain the contested position at this preliminary stage of these proceedings.
27.Taking into consideration the totality of the foregoing, it is our finding that the PO is unmerited, and that we do have jurisdiction to hear and determine this matter. The Complaint relating to the 1st Respondent’s purported removal of the Complainants from the house committees is therefore properly before the Tribunal.
Whether the 2nd Respondent is a necessary party in these proceedings?
28.The 2nd Respondent submits that they merely acted on the instructions of the 1st Respondent, and they therefore need not to have been joined in these proceedings. The same 2nd Respondent challenged this Tribunal’s jurisdiction to deal with the angle of the Complaint that it stated related to county assembly processes. The Complainants on the other hand contend that the 2nd Respondent acted in breach of the law and the standing orders. Considering the parties’ contested positions, and further noting that we overruled the preliminary objection touching on the 2nd Respondent’s alleged declaration of vote of no confidence against the 1st Complainant, we are of the view that the issue of joinder of the 2nd Respondent cannot be determined through the instant PO as the same will call for evidence, and any prejudice can, in any event, be addressed through an award of costs.
Who should bear the costs?
29.Costs ordinarily follow the event. However, noting that we are yet to hear the complaint substantively, we in exercise of our discretion take the position that costs shall be in the cause.
Disposition
30.In light of the foregoing, we make the following orders:i.That the Notice of Preliminary Objection filed by the 2nd Respondent dated 10thJuly 2024 be and is hereby overruled.ii.Costs in the cause.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF AUGUST 2024.HON. DESMA NUNGO, HSC - CHAIRPERSONHON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER