Kaaria & 5 others v United Democratic Alliance & another (Complaint E004 of 2024) [2024] KEPPDT 516 (KLR) (6 August 2024) (Ruling)
Neutral citation:
[2024] KEPPDT 516 (KLR)
Republic of Kenya
Complaint E004 of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
August 6, 2024
Between
Hon Evans Mawira Kaaria
1st Complainant
Hon Fridah Naito Gitobu
2nd Complainant
Hon Simon Kiambi Ngaruni
3rd Complainant
Hon Faith Kananu Koome
4th Complainant
Hon Douglas Mutea
5th Complainant
Hon Elijah Kimathi
6th Complainant
and
United Democratic Alliance
1st Respondent
County Assembly of Meru
2nd Respondent
Ruling
Introduction
1.Vide the 2nd Respondent’s Notice of Preliminary Objection dated 10th July 2024 (hereinafter referred to as the First PO), the 2nd Respondent seeks to oust the Jurisdiction of this 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.The 1st Respondent has similarly filed a Notice of Preliminary Objection dated 22nd July 2024 (hereinafter referred to as the Second PO). Pursuant to the Second PO, the Jurisdiction of this Tribunal has been challenged on the grounds that: -i.The Tribunal lacks Jurisdiction to entertain this matter as it offends Section 40(1) (2) of the Political Parties Act.ii.The Application has been filed prematurely before this Tribunal in contravention of Article 39 of the United Democratic Alliance Constitution and therefore this Tribunal lacks Jurisdiction.
3.The First PO and the Second PO were heard, inter partes, on the 29th July 2024, when the Complainants were represented by Mr. Kibet Advocate, holding brief for Mr. Busiega Advocate, and the 1st Respondent was represented by Mr. Sanare Advocate.The 2nd Respondent was on the other hand represented by Mr. Muriuki Advocate.
The 2nd Respondent’s Submissions on the First PO
4.The 2nd Respondent relied on the First PO, and the 2nd Respondent’s Written Submissions dated 19th July 2024.
5.Vide their Written submissions, the 2nd Respondent contends that 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.
6.The 2nd Respondent submits that the provisions of Section 40 of the Political Parties Act 2011 (the PPA), make it mandatory for the Complainants to first register and/or ventilate their complaints /grievance with the 1st Respondent’s IDRM prior to instituting action before this Tribunal. According to the 2nd Respondent, the Complainants acted in breach of the provisions of Section 40(2) of the PPA by failing to invoke the 1st Respondent’s internal dispute resolution mechanism (IDRM), which failure renders the Complaint incompetent and one for striking out.
7.The Tribunal was referred to the findings in various cases as highlighted in the 2nd Respondent’s written submissions, including the cases of 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.
8.It is the 2nd Respondent’s further submission that the instant complaint offends the mandatory provisions of Section 7 of the Political Parties Disputes Tribunal (Procedure) Regulations 2017 (the PPDT Procedure Regulations), which require any party aggrieved by a decision of a political party, to file a complaint within 30days. They submit that the impugned decision subject hereof was made in February 2024, and that the Complainants herein filed this Complaint outside the 30days period, without seeking leave of the Tribunal to file the Complaint out of time. The 2nd Respondent submits that failure to adhere to the mandatory provisions of Section 7 of the PPDT Procedure Regulations renders the entire complaint fatal.
9.The 2nd Respondent has in addition stated in their Written Submissions, 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 Complainants 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.
10.The 2nd Respondent in addition 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.
The 1st Respondent’s Submissions on the Second PO
11.The 1st Respondent relied on the Second PO and it is their submission that they are challenging the Tribunal’s jurisdiction to hear and determine this matter. That Article 39 of the 1st Respondent’s constitution establishes the party’s Internal Dispute Resolution Committee, which is the party’s IDRM. They submit that pursuant to Article 39, an aggrieved party has the right of appeal to the national Executive Committee. The 2nd Respondent’s contention is therefore that this Complaint was filed before the Tribunal in breach of Section 40(2) of the PPA.
12.It is the 1st Respondent’s submission that previously, before this Complaint was filed before the tribunal, the Complainants had approached the party but at that time, the party had not established its IDRM. However, to show the desire to determine the matter, the 1st Respondent’s Secretary general took it upon himself to adjudicate over the matter and a consent dated 19th January 2024 was filed in PPDT Meru Complaint No. E001 of 2024. That in the same case, vide a letter dated 23rd April 2024, the Secretary general of the 1st Respondent asked the Complainants to be reinstated. The 1st Respondent’s contention is that they have tried to once again reach the complainants to arrive at an amicable solution in vain.
13.Counsel submitted that the PPA allows members of a party to address their disputes internally in the first instance before moving the Tribunal, and that allowing the complaint to proceed before this Tribunal will be in disregard of the role of this Tribunal to protect and encourage IDRM and ADR. He submits that the letter dated 23rd April 2024 did not relate to the instant dispute, as this was a new dispute and the complainants had not subjected the same before the party’s IDRM. That the complaint herein is therefore premature and the complainants should file a formal complaint before the party’s IDRM established under Article 39 of the party constitution.
The Complainants’ Submissions in Response to the First PO and the Second PO.
14.The Complainants filed Written Submissions dated 25th July 2024 and List of Authorities dated 25th July 2024. They relied on the said documents and the oral submissions made at the hearing of the First and Second PO.
15.The Complainants have, in their written submissions, isolated three main issues for determination. Firstly, the Complainants raise the question whether this Honourable Tribunal has the Jurisdiction to hear and determine the complaint/suit. In their written submissions in response to this issue, 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. The Tribunal was in addition referred to the provisions of Section 40(1) and (2) of the Political Parties Act 2011 (the PPA) and its provisions outlining the jurisdiction of the Tribunal.
16.According to the Complainants, on 26th February 2024, they wrote letters dated 26th February 2024, addressed to the 1st Respondent, 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 26th February 2024. They aver that the 1st Respondent has not filed an affidavit before this Tribunal to deny or controvert the said letters or their contents, and that the evidence of compliance with the doctrine of exhaustion therefore remains unchallenged.
17.It is the Complainants’ submission that they proceeded to file the instant complaint before this Honourable tribunal for the reason that the 1st Respondent did not take any step(s) to resolve the stalemate. They submit that they stood to suffer prejudice if they were only left with the option of 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, their letters dated 26th February 2024 constituted enough evidence that IDRM had been attempted. They referred to a similar finding in 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.
18.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).
19.The second issue that the Complainants identified for determination is whether the 2nd Respondent has been properly joined in these proceedings. The Tribunal was referred to the provisions of Order 1 rule 1 of the Civil Procedure Rules, and it is the Complainants’ submission 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 further 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.
20.With respect to the third issue for determination, being the question of costs, the Complainants pray that the First and Second PO be dismissed and that costs be awarded to them.
Tribunal’s Analysis and Findings
21.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?
22.A useful starting point in addressing the core issue raised in this case is to define the word “Jurisdiction.” In common parlance, the term jurisdiction means the power of the courts to decide and try a case or issue. 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.” And Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.
23.The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR stated as follows: -
24.On the centrality of jurisdiction, the Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR stated that: -
25.From the foregoing, it is sufficiently settled that a Court’s jurisdiction is derived from the Constitution, an Act of Parliament or both. This 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; 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.
26.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.
27.The Complainants annexed a copy of the 1st Respondent’s Constitution. Whilst making its submissions, the 1st Respondent referred the Tribunal to the provisions of Article 39 of its constitution, which provides on the establishment of the 1st Respondent’s Internal Dispute Resolution Committee. We were, however, not directed to any provision in the party constitution or regulations that speaks to the form of the complaint and/or procedure to be adopted for the determination of any complaint before the 1st Respondent’s Internal Dispute Resolution Committee.
28.Be that as it may, we note that the 1st Complainant presented his complaint to the party vide his letter dated 26th February 2024, addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge from the Budget Committee of the 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 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 UDA 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 26th February 2024.
29.The 2nd Complainant has similarly produced her letter of complaint dated 26th February 2024 addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge as a Member PAC Committee and Vice Chairperson of the Committee on Water, 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 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 UDA 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 26th February 2024.
30.The 3rd Complainant has also exhibited his letter of complaint dated 26th February 2024 addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge from the PAC Committee of the County Assembly of Meru and the Deputy Majority Whip.” 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 and position of deputy majority whip 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 UDA 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 26th February 2024.
31.Similarly, the 4th Complainant has produced her letter of complaint dated 26th February 2024 addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge as a Member and Vice Chairperson of the Implementation Committee of the County Assembly of Meru.” In the letter, the 4th 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 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 UDA 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 26th February 2024.
32.The 5th Complainant has also annexed his complaint to the party vide his letter dated 26th February 2024, addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge from the Implementation Committee and Vice Chairperson of Health Services Committees of the County Assembly of Meru.” In the letter, the 5th 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 committees 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 UDA 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 26th February 2024.
33.With respect to the 6th Complainant, he has also produced his letter of complaint to the party dated 26th February 2024, addressed to the Secretary General of the 1st Respondent. The subject matter of the letter is “Ref: My Discharge from the Implementation Committee and Vice Chairperson of Roads Energy and Transport Committees of the County Assembly of Meru.” In the letter, the 6th 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 committees 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 UDA 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 26th February 2024.
34.From the record, the Complainants have in addition produced a letter from the Secretary General of the 1st Respondent dated 23rd April 2024. The subject matter of the letter is “Ref. Reinstatement of Hon. Members to Various Committees of the County Assembly.” The letter is addressed to the Majority Leader of the 2nd Respondent, and it refers to a resolution that was made that no member of the UDA party in the County Assembly shall be de-whipped from their respective County Assembly Committees and that the members be reinstated to their committees with immediate effect. The letter further reads that: -
35.Counsel for the 1st Respondent alluded to the letter dated 23rd April 2024 which is not contested. We are, however, not convinced by the 1st Respondent’s submission that the party IDRM giving rise to the said letter dated 23rd April 2024 related to an earlier case filed before this Tribunal, being PPDT Meru Complaint No. E001 of 2024 Hon. Fridah Naito Gitobu vs The United Democratic Alliance & 3 Others, and not this case.This is because the Consent Order entered into in PPDT Meru Complaint No. E001 of 2024 Hon. Fridah Naito Gitobu vs The United Democratic Alliance & 3 Others was filed on 19th January 2024. Further, the earlier case had only one Complainant, being the 2nd Complainant herein. The 1st, 3rd, 4th, 5th and 6th Complainants herein were not parties to the previous case. It is instructive to note that the Complainants’ complaint letters referred to above in this case are all dated 26th February 2024, and received by the 1st Respondent on the same date.
36.Noting the 1st Respondent party’s clear position on reinstatement of the complainants as expressed in the letter dated 23rd April 2024 highlighted above, which letter was received by the Office of the Majority Leader of the 2nd Respondent on 25th April 2024, we are not persuaded by the Respondents’ contention that the 1st Respondent party was not granted an opportunity to resolve the dispute subject hereof in the first instance. The content of the letter is self-explanatory and it relates to all the Complainants herein. As highlighted, the 1st Respondent agreed with the complainants’ grievances and directed that they all be reinstated in their respective positions. The complainants in this case are therefore not aggrieved by the party’s decision and it would in our opinion be strange to expect them to file another complaint with the party’s IDRM. In a nutshell, our view is that in light of the party’s position as expressed in the 1st Respondent’s letter dated 23rd April 2024, the complainants’ complaints relating to their discharge from various county assembly committees stands determined by the party.
37.In the case of Eric Kamande & 2 others v Amos Murigi & 2 others [2020] eKLR, the Court stated as follows:-
38.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.
39.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: -
40.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.
41.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: -
42.In light of the foregoing, we find that the instant dispute is properly before the Tribunal and we have jurisdiction to hear and determine the same.
Whether the 2nd Respondent is a necessary party in these proceedings?
43.This issue arises from the First PO. In PPDT Meru Complaint No. E006 of 2024, Hon. John Muguna Thuranira vs. Democratic Party & Another, where we considered a similar PO, we observed thus:-
44.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 First PO.
Who should bear the costs?
45.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
46.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.That the Notice of Preliminary Objection filed by the 1st Respondent dated 22nd July 2024 be and is hereby overruled.iii.Costs in the cause.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF AUGUST, 2024.HON. DESMA NUNGO, HSC - CHAIRPERSONHON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER