Mukami & 2 others v Jubilee Party & another (Complaint E003 (MRU) of 2024) [2024] KEPPDT 509 (KLR) (6 August 2024) (Ruling)
Neutral citation:
[2024] KEPPDT 509 (KLR)
Republic of Kenya
Complaint E003 (MRU) of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
August 6, 2024
Between
Hon Nelly Mukami
1st Complainant
Hon Kennedy Maingi Mutwiri
2nd Complainant
Hon Joshua Mithiaru Kiunga
3rd Complainant
and
Jubilee Party
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 29th July 2024. 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, and the 2nd Respondent’s Written Submissions dated 19th July 2024.
4.According to the 2nd Respondent, the complaint herein is centered on two issues, that is, the de-whipping from the assembly committees and removal from assembly committees through standing orders. It is their submission that these activities do not confer the tribunal the jurisdiction to hear and determine this matter.
5.Referring to the provisions of Section 40 of the Political Parties Act 2011 (the PPA), the 2nd Respondent submits that the subject provisions make it mandatory for the complainants to first register and/or ventilate their complaints /grievance with the 1st Respondent before invoking the jurisdiction of this tribunal. However, they submit that the Complainants failed to invoke the 1st Respondent’s internal dispute resolution mechanism (IDRM), and that failure to invoke IDRM renders a complaint one 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.
6.The 2nd Respondent in addition submits that pursuant to Section 7 of the Political Parties Disputes Tribunal (Procedure) Regulations 2017 (the PPDT Procedure Regulations), any party aggrieved by a decision of a political party must file a complaint within 30days. That the impugned decision, was made way back in February 2024, and that 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. That failure to adhere to the mandatory provisions of Section 7 of the PPDT Procedure Regulations renders the entire complaint fatal.
7.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 implementation in consonance with the Meru County Assembly Standing Orders passed a vote of no confidence against the 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.
8.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. That this being the position, the 2nd Respondent ought not to have been sued as a Respondent.
Submissions on behalf of the Complainants.
9.The Complainants relied on their Written Submissions and List of Authorities dated 25th July 2024, and the oral submissions made at the hearing of the PO. They 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.The Complainants acknowledge that it is vital for them to first demonstrate that this Tribunal is feted with the requisite jurisdiction, before delving into any other issues. Towards this end, 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.
11.It is the Complainants’ submission that on 6th March, 2024, they wrote letters dated 6th March, 2024, registering their complaints and frustrations with the 1st Respondent and inviting the 1st Respondent to resolve the instant dispute in consonance with the party constitution and the Political Parties Act, No 11 of 2011. The letters were received by the 1st Respondent on the same date of 6th March 2024, and the Complainants annexed copies of the duly received letters for the Tribunal’s perusal.
12.The 1st Respondent has not filed an affidavit in court to deny or controvert the said letter or their contents, and that the evidence of compliance with the doctrine of exhaustion therefore remains unchallenged.
13.The Complainants submit that they proceeded to file the instant complaint before this Honourable tribunal because the 1st Respondent did not take any step(s) 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. According to the Complainants, a complaint to the 1st Respondent’s IDRM does not take any specific form, and their letters dated 6th March 2024 constituted enough evidence that IDRM had been attempted. In this regard, the Complainants relied on the case of David M. Mbuthi v Jubilee Party & Another [2017] eKLR; where it was held that even a complaint letter would suffice as evidence has invoked Section 40(2) of the PPA or attempted IDRM.
14.The Complainants in addition relied on the cases of 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).
15.With respect to the question of joinder of the 2nd Respondent in these proceedings, 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.
16.The Complainants accordingly maintain that the PO is unmerited and the same should be dismissed with costs.
Submissions on behalf of the 1st Respondent.
17.The 1st Respondent did not participate in these proceedings despite service.
Tribunal’s Analysis and Findings
18.Flowing from the PO and the parties’ respective submissions, we have isolated 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?
19.In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:
20.The Supreme Court of Kenya in the case of Samuel Kamau Macharia Vs KCB & 2 Others, Civil Application No. 2 of 2011 stated as follows on the issue of jurisdiction:
21.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.
22.To the extent that the Complainants are challenging the decision of 1st Respondent to remove them from various committees, as evidenced by the pleadings and the prayers sought in the Complaint, there is no gainsaying that the dispute is one between members of a political party and the political party. For such a dispute, Section 40(2) of the PPA requires that evidence of an attempt to subject the dispute to IDRM be adduced prior to moving the Tribunal. The question that therefore begs to be answered, is whether there has been adduced any evidence of an attempt to subject the dispute to the 1st Respondent’s IDRM.
23.The 1st Complainant has demonstrated that she presented her complaint to the party vide his letter dated 6th March 2024 addressed to the Chairperson of the 1st Respondent’s Internal Dispute Resolution Committee. The subject matter of the letter is “Ref: My Discharge as a Member of Budget Committee and Vice Chairperson of the Lands and Physical Planning 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, she was informed that her political party, the 1st Respondent, had communicated that she be discharged from the committees 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 Jubilee 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 6th March 2024.
24.The 2nd Complainant has similarly produced his letter of complaint dated 6th March 2024 addressed to the Chairperson of the 1st Respondent’s Internal Dispute Resolution Committee. The subject matter of the letter is “Ref: My Discharge from the Implementation Committee of the 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, he was informed that his political party, the 1st Respondent, had communicated that he be discharged from the 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 Jubilee 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 was also received by the 1st Respondent on 6th March 2024.
25.The 3rd Complainant has also exhibited his letter of complaint dated 6th March 2024 addressed to the Chairperson of the 1st Respondent’s Internal Dispute Resolution Committee. The subject matter of the letter is “Ref: My Discharge from the Budget Committee of the County Assembly of Meru.” In the letter, the 3rd Complainant states that by a communication made by the Speaker in the floor of the Assembly, he was informed that his political party, the 1st Respondent, had communicated that he be discharged from the 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 Jubilee 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 similarly stamped as received by the 1st Respondent on 6th March 2024.
26.As we have already highlighted, the 1st Respondent did not participate in these proceedings with a view to stating the party’s response or position. This is despite service having been effected upon them. Absent their participation, there was no evidence to counter the Complainants’ evidence and/or to demonstrate that the 1st Respondent responded to the Complainants’ letters dated 6th March 2024. As we have previously observed, the 1st Respondent should have at the very least 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: -
27.In view of the foregoing, we find that the Complainants are entitled to approach this Tribunal, and we accordingly assume jurisdiction to hear and determine this matter.
28.With respect to parties’ submissions on the provisions of Regulation 7 of the PPDT (Procedure) Regulations, we remain persuaded by our finding in PPDT Meru Complaint No. E005 of 2024, Hon. Nicholas Kinyua Josphat & Anor vs. Party of National Unity & Another where we observed as follows: -
29.We find no reason to depart from our foregoing observation, which we adopt herein, given the similarity in the facts and circumstances of both cases. In relying on our stated decision, it is our understanding, as we already observed in PPDT Meru Complaint No. E006 of 2024, Hon. John Muguna Thuranira vs. Democratic Party & Another, that the finding of the Supreme Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others [2020] eKLR did not necessarily bar tribunals from referring to and/or relying on persuasive pronouncements in their previous determinations where the tribunal deems fit.
30.With respect to the challenge to our jurisdiction on the basis of the vote of no confidence that was allegedly entered into against the 1st Complainant, we hold the same position that we did in the similar case of PPDT Meru Complaint No. E005 of 2024, Hon. Nicholas Kinyua Josphat & Anor vs. Party of National Unity & Another, where we made the following observations: -
31.In light of the foregoing, we find that the instant dispute is properly before the Tribunal and that we have jurisdiction to hear and determine the same.
Whether the 2nd Respondent is a necessary party in these proceedings?
32.In PPDT Meru Complaint No. E006 of 2024, Hon. John Muguna Thuranira vs. Democratic Party & Another, we observed thus:-
33.The facts of this case being similar to the facts in the above case of PPDT Meru Complaint No. E006 of 2024, Hon. John Muguna Thuranira vs. Democratic Party & Another, we similarly find that the issue of joinder cannot be determined summarily through the instant PO.
Who should bear the costs?
34.Costs ordinarily follow the event. However, noting that we are yet to hear the complaint substantively, costs shall be in the cause.
Disposition
35.In light of the foregoing, we make the following orders:i.That the Notice of Preliminary Objection filed by the 2nd Respondent dated 10th July 2024 be and is hereby overruled.ii.Costs in the cause.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF AUGUST 2024. HON. DESMA NUNGO, HSC - (CHAIRPERSON)HON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER