Thuranira v Democratic Party & another (Complaint E006 (MRU) of 2024) [2024] KEPPDT 511 (KLR) (5 August 2024) (Ruling)
Neutral citation:
[2024] KEPPDT 511 (KLR)
Republic of Kenya
Complaint E006 (MRU) of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
August 5, 2024
Between
Hon. John Muguna Thuranira
Complainant
and
Democratic 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 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, and the 2nd Respondent’s Written Submissions dated 19th July 2024.
4.In reference to the provisions of Section 40 of the Political Parties Act 2011 (the PPA), it is the 2nd Respondent’s submission that the Complainant 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.
5.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.
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 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.
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.Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.
17.It has been judicially underscored that jurisdiction is so central in judicial proceedings.A Court acting without jurisdiction is acting in vain. All it engages in is nullity.Indeed Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1, expressed himself as follows on the issue of jurisdiction:
18.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:
19.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.
20.To the extent that the Complainant is challenging the decision of 1st Respondent to remove him from the budget committee, 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. It is thus inescapable to ascertain whether there has been adduced any evidence of an attempt to subject the dispute to the 1st Respondent’s IDRM.
21.The 1st Respondent’s constitution form part of the record before us. It is noteworthy that Article 28 thereof provides that any dispute shall be resolved through the established party internal mechanism. We were, however, not directed to any provision in the party constitution that speaks to the form of the complaint and/or procedure to be adopted for the determination of the complaint.
22.Be that as it may, the Complainant has demonstrated that he presented his complaint 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 from the Implementation Committee of County Assembly of Meru.” In the letter, the 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 Implementation 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 DP 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.
23.The 1st Respondent did not participate in these proceedings with a view to stating the party’s response or position despite service. It therefore follows that no evidence has been adduced before us to demonstrate that the 1st Respondent responded to the Complainant’s letter. We are of the considered opinion that the 1st Respondent should have at the very least responded to the Complainants’ letter 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 parties’ submissions on the provisions of Regulation 7 of the PPDT (Procedure) Regulations. In PPDT Meru Complaint No. E005 of 2024, Hon. Nicholas Kinyua Josphat & Anor vs. Party of National Unity & Another we observed as follows: -
26.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. We at this juncture take a moment to comment on the submissions by Counsel for the 2nd Respondent that this tribunal cannot rely on its previous determination in a matter. In so submitting, Counsel relied on the finding by the Supreme Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others [2020] eKLR. It is instructive to note that the Supreme Court decision under reference held that tribunals are not bound by their previous decisions and that matters should be determined on a case to case basis, depending on the facts in place. This finding, in our understanding, does not in itself bar tribunals from referring to and/or relying on persuasive pronouncements in their previous determinations where the tribunal deems fit. The essence of the Supreme Court determination was to provide specialized tribunals with significant flexibility in responding to changes that affect the subject matter before the tribunal and not necessarily to bar tribunals from being persuaded by their previous decisions where they deem fit.
27.As regards the submissions on the objection to our jurisdiction relating to the vote of no confidence that was allegedly entered into against the Complainant, we have perused the record before us and we find no such record of any vote of no confidence that was entered against the Complainant herein. In PPDT Meru Complaint No. E005 of 2024, Hon. Nicholas Kinyua Josphat & Anor vs. Party of National Unity & Another, we addressed our minds to the matter and made the following observations:-
28.Noting that we have no record on the purported declaration of a vote of no confidence against the Complainant, and further noting that the we have already observed that the facts and circumstances of this case are at all fours with the facts and circumstances in PPDT Meru Complaint No. E005 of 2024, Hon. Nicholas Kinyua Josphat & Anor vs. Party of National Unity & Another (supra), we find no reason to depart from the finding that we made therein.
29.Taking into consideration the totality of the foregoing, it is our finding that the Complaint relating to the 1st Respondent’s purported removal of the Complainant from the house committee is therefore properly before the Tribunal.
Whether the 2nd Respondent is a necessary party in these proceedings?
30.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 Complainants on the other hand contend that the 2nd Respondent did not act on the instructions of the 1st Respondent, but instead 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 alleged declaration of vote of no confidence against the 1st Complainant, we are of the view that the issue of joinder 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?
31.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
32.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