Mbungu v Speaker Kirinyaga County Assembly & 3 others (Complaint E004 (NYR) of 2024) [2025] KEPPDT 7 (KLR) (Admiralty) (15 January 2025) (Ruling)
Neutral citation:
[2025] KEPPDT 7 (KLR)
Republic of Kenya
Complaint E004 (NYR) of 2024
D. Nungo, Chair, AA Abdikadir & T. Chepkwony, Members
January 15, 2025
Between
Daniel Mureithi Mbungu
Complainant
and
The Speaker Kirinyaga County Assembly
1st Respondent
The Clerk, County Assembly of Kirinyaga
2nd Respondent
United Democratic Alliance Party
3rd Respondent
Kenya Kwanza Aliliance
4th Respondent
Ruling
1.The 1st and 2nd Respondents have raised a preliminary objection dated 26th November 2024 (hereinafter referred to as the first PO) on grounds that both the Complaint and Application are premature and grossly defective for invoking this Tribunal’s original jurisdiction without first exhausting the political party’s internal dispute resolution mechanism (IDRM). That this Tribunal lacks jurisdiction to determine the issues raised and/or grant the orders sought in the Complaint and application in view of Articles 32 and 39 of the 3rd Respondent’s Constitution; and that the 3rd Respondent is already seized of the matter and has in fact convened a consultative meeting slated for 28th November 2024 to address the issues raised in this Complaint.
2.The 3rd and 4th Respondents have similarly filed a Notice of Preliminary Objection dated 26th November 2024 (hereinafter referred to as the second PO), on similar grounds that this tribunal lacks jurisdiction to entertain this matter as it offends the provisions of Section 40 (1)(2) of the PPA and Article 39 of United Democratic Alliance constitution.
3.Pursuant to this tribunal’s directions, the first and second PO were heard inter partes on 13th December 2024. At the hearing of the PO, the Complainant was represented by Mr. Kosgei Advocate and the 1st and 2nd Respondents were represented by Mr. Isahi Advocate and Mr. Ng’ang’a Advocate. There was, however, no appearance for the 3rd and 4th Respondents despite service.
The 1st and 2nd Respondents’ Submissions on the first PO.
4.The 1st and 2nd Respondents relied on their Written Submissions dated 9th December 2024. They referred the Tribunal to the provisions of Section 40(2) of PPA on evidence of an attempt at IDRM, and further referred to Section 40(3) of PPA which require coalition agreement to provide for IDRM.
5.They submit that the Complainant is a member of the Kenya Kwanza coalition of parties and that the instant dispute is one between members of the same political party/coalition of parties. They referred to Article 39 of the 3rd Respondents constitution and submitted that the same provides for a multi-tiered dispute resolution mechanism specifically the Internal Dispute Resolution Committee (IDRC) as the IDRM. That the Complainant has not invoked let alone exhausted the said IDRM as per the party’s constitution or coalition agreement so as to give the party a good faith chance to resolve his grievance in the first instance.
6.They submit that it is settled law that this Tribunal will always require parties to demonstrate compliance with the foregoing statutory provisions in line with the doctrine of exhaustion, and that the Tribunal will only entertain a matter prematurely subject to the established exceptions. In this regard they relied on various cases including Abdul Salam Kassim v Hazel Nyamoki Katana & Anor; Jeconia Okungu
7.The Tribunal was further referred to how it has extensively addressed itself on the permitted exceptions in the case of Nchebere & 15 Others vs National Chairman Orange Democratic Movement & 2 Others (22022) KEPPDT 1064 (KLR). Considering the guidance in the Nchebere Case, they submit that the Complainant herein has not pleaded and/or demonstrated any attempt to resolve the dispute using the internal structures within the party and/or coalition. Further, the Complainant has not demonstrated that the party’s IDRM is inaccessible and/or inoperative, or that he was frustrated by the party’s IDRM to warrant any exemptions and have audience before the Tribunal. In any event, the tribunal cannot possibly assess the efficacy of the IDRM considering that the Complainant has not attempted to invoke it.
8.Further reliance was also placed in the case of Parleto vs Nicholas & Another; Speaker County Assembly of Laikipia & 2 Others (interested Parties) (2024) KEPPDT 366 (KLR) and they submit that it is an abuse of process for the Complainant to completely bypass/disregard the clearly established IDRM.
9.According to the 1st and 2nd Respondents, the 3rd Respondent has, in any event, out of its own motion, and in a bid to promote unity in the coalition, initiated the process of resolving the instant dispute.
10.That the Complainant has contended that some of the Members of the County Assembly, the Complainant excluded, have written to the coalition a letter dated 18th November 2024 regarding the use of their signatures, which letter was written on the same date these proceedings were filed, and there is no evidence that the said letter was served upon the 3rd Respondent. Accordingly, the letter cannot be viewed as a genuine attempt at IDRM. In any event, even if it were to be regarded as an attempt to resolve the matter, it is noteworthy that the letter was responded to by the 3rd Respondent vide a letter dated 18th November 2024 which invited Members of Kirinyaga County Assembly for a consultative meeting on 28th November 2024 to address the issues raised in the letter. This notwithstanding, the Complainant moved the Tribunal on the same date of 18th November 2024.
11.In light of the foregoing, the 1st and 2nd Respondents submit that this Tribunal should exercise restraint and dismiss the entire complaint with costs to it. This would in essence promote ADR as the Tribunal is bound to do pursuant to the provisions of Article 159 (2) of the Constitution of Kenya 2010.
The 3rd and 4th Respondents Submissions on the second PO.
12.Vide their Written Submissions dated 9th December, the 3rd and 4th Respondents have identified two issues for determination, that is, whether the Respondent’s PO meets the threshold of a PO, and whether this Tribunal is seized with the jurisdiction to hear and determine this matter.
13.On the first issue, the 3rd and 4th Respondents submit that the law pertaining to POs is articulated in the case of Mukisa Biscuit Manufacturing Co. Ld vs Westend Distributors (1969) EA 696, and also in the case of David Karobia Kiiru vs Charles Nderitu Gitoi & Anor (2008) eKLR. It is their submission that the PO raised falls within the definition of a PO as discussed in the stated cases as theirs is a challenge to the jurisdiction of this Tribunal to hear and determine the instant Complaint. According to them, the Complaint has been filed in breach of Section 40(2) of the PPA and Article 38 of the 3rd Respondent’s Constitution.
14.With respect to the question whether this Tribunal has jurisdiction, the Tribunal was referred to the locus classicus case of Owners of the Motor Vessel
15.The Respondents relied on various cases including Gabriel Bukachi Chapia vs ODM & Anor (2017) eKLR ; Adan Ali Wako vs Nura Diba Billa & 2 Others (2017) eKLR; and Samuel Kamau & Another vs. Kenya Commercial Bank Limited & Others (2012) eKLR.
16.They submit that it is evident from the Complainant’s pleadings that the cause of action herein arose on 18th November 2024 when a motion to remove him as a majority leader of Kirinyaga County Assembly was tabled and passed before the Assembly, and that he filed this dispute before the Tribunal on 18th November 2024 on that very date. That this is evident that he failed to attempt IDRM as provided for under the 3rd Respondent’s constitution. Relying on the case of Nchebere & 15 Others vs. National Chairman Orange Democratic Movement & 2 Others(Complaint E002 of 2022) (2022) KEPPDT 1064 (KLR), they further submitted that the Complainant has not demonstrated any of the circumstances in the said case to prove a bona fides attempt at IDRM, and that he therefore falls short of the doctrine of exhaustion and should not be granted audience by this Tribunal.
17.Addressing the question whether the Complainants should be granted the orders sought, they submit that the members of the 3rd and 4th Respondents being majority members of Kirinyaga County Assembly lost confidence in their majority leader, held a meeting on 18th November 2024 and the majority of them voted for the removal of Complainant as majority leader and replaced him with another person in accordance with the Standing Orders of Kirinyaga County Assembly. They referred the Tribunal to how the issue of removal of majority leaders has been discussed in courts in the cases of Born Bob Maren vs. Speaker Narok County Assembly & 3 Others (2015) eKLR; and Republic vs County Assembly of Migori & 4 Others ex-parte Johnson Omollo Owiro, and maintain that a Majority or Minority leader comes into office through an election which is an expression of the wishes of his party, and equally he reigns in office at the pleasure of his party.
18.It is their submission that the Complainant’s case is thus frivolous, vexatious and an abuse of process and prays that the Tribunal dismisses the same with costs to the Respondents.
The Complainant’s Submissions on the PO.
19.Vide his Written Submissions dated 13th December 2024, the Complainant has identified various issues for determination, that is, whether the 3rd Respondent has already taken a position with respect to this matter; whether the Preliminary Objection is merited; and whether the Tribunal is bound to defer to IDRM considering that the 3rd Respondent has already taken a position in the matter.
20.The Complainant submits that the 3rd Respondent has expressly taken a position on the matter as under paragraph 22 of the 3rd Respondent’s submissions on the preliminary objection, the 3rd Respondent has indicated that the meeting of 18th November 2024 was procedural and that it was in accordance with the standing orders of the County Assembly, and further that the 3rd Respondent has submitted under paragraph 24 of their submissions that the position of the Complainant as the Majority Leader is at the pleasure of the 3rd Respondent. Based on the stated submissions, the Complainant contends that he cannot, by any stretch of imagination expect to get fair hearing before the IDRM as the position taken is overtly in support of the illegal and unlawful resolution that was being tabled for adoption at supersonic speed before the County Assembly of Kirinyaga on 18th November 2024.
21.On the issue whether the PO is merited, it is the Complainant’s submission that this Tribunal has been asked to determine whether or not the party is already seized of the matter as it retires to make a determination whether or not it has jurisdiction. Particularly, ground 3 of the first PO makes mention of ongoing processes before the 3rd Respondent. According to the Complainant, the question whether or not the 3rd Respondent is already seized of the dispute is a question of fact, and that the PO does not therefore raise pure points of law, but is riddled with questions of fact. He relied on the holding in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A 696 and submitted that the first PO, viewed in totality, therefore, is not a pure matter of law and must as of necessity be dismissed. He also relied on the case of Keya v Adingo (Environment and Land Appeal 4 of 2024) [2024] KEELC 6618 (KLR) (9 October 2024) (Judgment).
22.Furthermore, the Complainant invited the Tribunal to note the mischief of approbation and reprobation. That the Respondents want to have this dispute determined beyond the precincts of the Tribunal where they allege the party IDRM is the proper forum, yet at the same time, it is stated that the Complainant has already been lawfully removed. To the extent of the approbation and reprobation, the Tribunal was urged to do justice by dismissing the preliminary objection as it is meant to subvert the justice of this complaint by subjecting the complainant to lynching and mob justice. He relied on the Tribunal’s holding in Jillo v United Democratic Alliance & Another; Speaker, County Assembly of Isiolo (Interested Party) (Complaint E001(MRU) of 2023) [2023] KEPPDT 1354 (KLR) (Civ) (22 May 2023) (Ruling) where this tribunal dismissed a preliminary objection challenging its jurisdiction to handle the complaint, and further submitted that Article 159 (2) (d) & (e) of the Constitution of Kenya requires dispensation of justice without undue regard to technicalities and the realization of the purpose and principles of the constitution.
23.The Complainant further submits that in determining that the Complainant was no longer fit to serve as the majority leader, the 3rd Respondent ought to have been guided by the principles in Article 10 (transparency, public participation and good governance) as well as Article 47 on fair administrative action that it lawful and accords persons the right to defend themselves. However, the 3rd Respondent facilitated the use of forged signatures and did not avail an opportunity to the complainant to be heard. It was only upon the intervention of this Tribunal that the opportunity to defend oneself is made reference to by the 3rd Respondent. Accordingly, the reversionary inherent power of the Tribunal donated by the constitution and statute ought to guide the Tribunal in preventing the Respondents from commencing an illegal process then falling back to a technicality to avoid the ventilation of the legality or otherwise of the process they have jointly undertaken. Reference was also made to the case of Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints [2016] eKLR.
24.With respect to the issue whether the Tribunal is bound to defer to IDRM considering that the 3rd Respondent has already taken a position in the matter, it was submitted that the Tribunal ought to also consider that the law is settled that where an administrative mechanism provided for by the law is either non-existent or is overtly compromised, an aggrieved party has every right to proceed to the next phase where justice will be served. The case before the Tribunal is one such case as the 3rd Respondent has already taken a position with respect to the matter before the Tribunal. He relied on the holding in Mulwa Msanifu Kombo v Kenya Airways (2013) eKLR; Benard Ambasa v Institute of Human Resource Management & 3 others; and Lilian Ngala Anyango (Interested Party) [2021] eKLR.
25.On the question of costs, the Complainant referred the Tribunal to the principle that costs are at the discretion of the Court and usually follow the event, as provided for under Section 27(1) of the Civil Procedure Act, and referred to the case of Orix Oil
26.We have considered the parties’ submissions on the first and second POs and we therefore isolate the following issues for determination: -i.Whether the Preliminary Objections are Proper?ii.Whether the Tribunal has Jurisdiction to hear and determine this Complaint? iii. What are the appropriate reliefs to grant?
Whether the Preliminary Objections are Proper?
27.As we have already highlighted above, the Complainant has relied on the case of Mukisa Biscuits Manufacturing Company limited v West End Distributors Limited [1969] EA 696 and argued that the PO is not proper as it is based on facts that require ascertainment. According to the Complainant, the Tribunal will need to determine, inter alia, whether the 3rd Respondent is seized of this matter amongst other issues highlighted above.
28.A preliminary objection was defined in the case of Mukisa Biscuits Manufacturing Company limited v West End Distributors Limited [1969] EA 696 as:
29.In essence, a PO consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. The case gives examples of PO as objection to jurisdiction of court, plea of limitation, amongst others. The PO must be argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained. This position has been fortified in numerous judicial authorities including the case of Oraro vs. Mbaja (2005) KLR 141 and County Government of Migori vs INB Management Consulting Ltd [2019] eKLR.
30.Applying the above definition of PO to this case, it is not in dispute that the PO filed herein has raised objection to our jurisdiction to hear and determine this Complaint. An objection to jurisdiction has been given as an example of a PO in the Mukisa Biscuit Case (supra). Section 40 (2) of the PPA provides that the Tribunal shall not hear or determine a dispute under Section 40(1) (a), (b), (c), (e) or (fa) of the PPA unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.
31.In essence, in instances of objection to jurisdiction brought pursuant to Section 40(2) of the PPA, and noting that the section requires evidence of an attempt at IDRM, it would be inescapable for this Tribunal to consider evidence in arriving at a determination whether or not there was IDRM. The Complainant has already submitted on the question whether there was an attempt at IDRM and his reservations on the 3rd Respondent’s IDRM. Section 40(2) of the PPA invites this Tribunal to consider the same in considering the question of jurisdiction.
32.In light of the foregoing, and having considered the circumstances of this case, we are not persuaded by the Complainant’s argument that the POs before us are not proper given that they both challenge the question of our jurisdiction. The POs essentially revolves around the question of engaging IDRM – a matter of law as provided for by section 40(2) of the PPA.
Whether the Tribunal has Jurisdiction to hear and determine this Complaint?
33.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:
34.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:-
35.From the foregoing provision, it is evident that disputes between members of a political party, disputes between a member and the political party, disputes between political parties and or coalition parties, and disputes between coalition partners require that internal dispute resolution mechanism (IDRM) of a political party be invoked/attempted in the first instance prior to moving the tribunal.
36.From our perusal of the pleadings and documents on record, and also considering the parties submissions, it is noteworthy that this Complaint originated from the changes that were effected in the position of Majority Leader Kirinyaga County Assembly by the Kenya Kwanza Coalition. The Complainant is a member of the 3rd Respondent who is a member of the 4th Respondent coalition political party. Noting that the changes were made by the 4th Respondent coalition political party, it is inescapable to address our minds to the question of IDRM in that context.
37.What amounts to an attempt at IDRM and the exceptions thereto in the context of a coalition political party has not been without litigation before this Tribunal and Courts. This Tribunal has considered an attempt at IDRM in the context of a coalition party and issued guidelines in Abubakar Mohamed Khalif vs Mohamed Abdi Farah & 7 Others (Nrb A PPDT Complaint No. E002 of 2024) wherein the Tribunal heldthat:-
38.The question that therefore begs to be answered is whether there is evidence of an attempt to subject the dispute subject hereof to IDRM of the 4th Respondent. We note that the Complainant did not make any submissions on any attempts at IDRM within the context of the 4th Respondent coalition political party. We have also not been shown any evidence of an attempt to resolve the matter through the 4th Respondent’s IDRM, yet it is a meeting of the 4thRespondent that effected the impugned change in leadership.
39.What the Complainant did was to raise concerns regarding his faith and/or confidence in the 3rd Respondent’s IDRM based on the 3rd Respondent’s submissions, and without mentioning any attempts to invoke the 4th Respondent’s IDRM through his party. We note that the concerns raised have not been pleaded by the Complainant in his pleadings. It is well settled law that factual issues cannot be pleaded in parties’ submissions and we therefore have reservations on relying on unpleaded factual issues referred to in parties’ submissions as persuasive in this matter. Further, in any event, and as we have already observed, allegations touching on the 3rd Respondent’s IDRM are immaterial in this case bearing in mind that the IDRM that should have been applicable is the 4th Respondent’s IDRM.
40.We have further considered the letter dated 18th November 2024 and we note that the same cannot be regarded as an attempt at IDRM in the context of a coalition political party for various reasons. Firstly, the letter is not addressed to the 4th Respondent’s IDRM. Secondly, the letter is written by persons who claim that their signatures were forged. The subject authors of the letter are not the proper persons to invoke the IDRM mechanisms under the coalition agreement. The proper person should be the Complainant’s political party on behalf of the Complainant.
41.Indeed in Abubakar Mohamed Khalif & Abdi Ibrahim Daar vs. Mohammed Abdi Farah & 5 Others (Nrb A PPDT Complaint No. E017 of 2023), we stated; -
42.And in the case of PPDT Complaint No. 15 of 2020 Hon. Patrick Musili vs ODM & Others, we stated as follows:-
43.Similarly, in Abubakar Mohamed Khalif vs Mohamed Abdi Farah & 7 Others (Nrb A PPDT Complaint No. E002 of 2024 (Supra), the Tribunal posed this as a question for consideration in assessing a bona fides attempt at IDRM in the context of a coalition, that is, whether “the IDRM instituted by a person with locus to refer the dispute to the selected IDRM mechanism in consonance with the terms of the constitutive document of the coalition or the coalition agreement.” All these decisions lead us to our finding that the authors of the letter under reference were not the proper persons to invoke IDRM in the context of a coalition.
44.Thirdly, it is our further observation that the said letter dated 18th November 2024 was written on the same date that this Complaint was filed. With due respect to Counsel, even if were to consider the letter, the fact that it was written on the same date the Complainant filed the instant complaint cannot be seen as a bona fides attempt at IDRM. How is the IDRM mechanism expected to have acted on the same dispute already subjected to the Tribunal?
45.In Parleto vs Nicholas & Another; Speaker County Assembly of Laikipia & 2 Others (interested Parties) (2024) KEPPDT 366 (KLR), it was stated;-
46.And further stated that;
47.We find the reasoning and finding in the above case persuasive in this case where the Complainant similarly moved the Tribunal on the same date he claims IDRM was invoked.
48.In light of our foregoing observations, it is our finding that the Complainant has failed to adduce evidence of an honest attempt at the 4th Respondent coalition political party’s IDRM. Neither has he demonstrated that any of the exceptions to IDRM apply in this case.
49.In PPDT No. 12 of 2018, Amani National Congress vs Orange Democratic Movement & Other, we struck out the Complaint for want of exhaustion of IDRM within the NASA coalition agreement.
50.And in Amani National Congress Party v Godfrey Osotsi & another [2021] eKLR, Mbogholi Msagha observed as follows:-
51.We cannot agree more with the positions 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.
52.Having found that we have no jurisdiction, what follows is enunciated in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd:
53.And also in the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR where the Court stated as follows:-
54.Taking cue from the above decisions, we have no option but to strike out this Complaint as we down our tools.
55.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 cohesion, we direct that each party bears its own costs.
Disposition.
56.In light of the foregoing, we make the following orders:i.The 1st and 2nd Respondents’ Preliminary Objection dated 26th November 2024 and the 3rd and 4th Respondents Preliminary Objection dated 26th November 2024 be and are 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 (VIRTUALLY) AT NAIROBI THIS 15TH DAY OF JANUARY 2025.HON. DESMA NUNGO, HSC(CHAIRPERSON)HON. ABDIRAHMAN ABDIKADIR(MEMBER)HON. THERESA CHEPKWONY(MEMBER)