Godfrey Murithi Muchiri, Charles Njeru Nyaga, Margaret Mukwanjeru Gitari, Leonard Gitonga & Denis Mutwiri Muthitu v Speaker, Tharaka Nithi County Assembly, Clerk, Tharaka Nithi County Assembly & Tharaka Nithi County Assembly [2020] KEHC 7164 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

HCCC NO. 2 OF 2020

GODFREY MURITHI MUCHIRI...........................................................1ST APPLICANT

CHARLES  NJERU NYAGA....................................................................2ND APPLICANT

MARGARET MUKWANJERU GITARI................................................3RD APPLICANT

LEONARD GITONGA.............................................................................4TH APPLICANT

DENIS MUTWIRI MUTHITU................................................................5TH APPLICANT

VERSUS

THE SPEAKER, THARAKA NITHI COUNTY ASSEMBLY.........1ST RESPONDENT

THE CLERK, THARAKA NITHI COUNTY ASSEMBLY.............2ND RESPONDENT

THE THARAKA NITHI COUNTY ASSEMBLY.............................3RD RESPONDENT

R U L I N G

1. GODFREY MURITHI MUCHIRI and 4 others (Plaintiffs) have  sued the Speaker, Tharaka Nithi County Assembly and 2 others over party elections involving Jubilee Party a party the Plaintiffs say they belong.  The Plaintiffs claim that the party made party elections on 24th February 2020 to elect  leaders in the County Assembly and that after the elections, the Plaintiffs   were  elected to various positions to wit;

a. Majority Party Leader- Godfrey Murithi Muchiri

b. Deputy Party Leader- Charles Njeru Nyaga

c. Majority Party Whip- Margaret Mukwanjeru Gitari

d. The County Assembly Board Representative - Leonard Gitonga

2.  The Plaintiffs claim that the members of the County Assembly who lost the  elections presented what they term "a wrong list" comprising the following;

a. Majority Party Leader- Peterson Mwirigi Kathenya

b. Deputy Party Leader- Asumpta Mukwanjeru Gabriel

c. Majority Party Whip- Boniface Njeri Kigwari

d. Majority Deputy Whip- Samwel Muthini Karangi

e. The County Assembly Service Board Representative - John Njagi Mucee.

3.  The Plaintiffs have averred that despite getting clarification from Jubilee Party as to which list was legitimate and genuine, the Defendants have planned for a meeting to swear in the  losers instead of the victors of the  party  elections held.

4. The Plaintiffs have filed an urgent applications dated 3rd March 2020 seeking inter aliaorders of temporary injunction to restrain the defendants from announcing and/or swearing the new elected leaders from the  Majority Party, Jubilee Party in the County Assembly pending determination of this    matter.

5. The Defendants/Respondents filed grounds of opposition to the said  application and a  Preliminary Objection to the entire suit stating that this court lacks jurisdiction to entertain the application and the entire suit courtesy of Article 159 2(c) of the Constitution of Kenya 2010 and also in   view of the provisions of Section 39, 40 and 41of the Political Parties Act  No. 11of2011.  They have further averred that the  suit is premature in their view and that the jurisdiction of this court have been triggered prematurely.

6.  In view of the Preliminary Objection raised, this court directed the parties in this  suit to canvass the Preliminary Objection first before going into the merits of the case because the  P.O (Preliminary Objection) touched on the jurisdiction of this court to handle  this case.

7.  The Defendants have submitted through learned counsel Mr. Saluny that the pleadings filed by the Plaintiffs indicate that the Plaintiffs were contestants in various positions in the Jubilee Party that won majority seats in the County Assembly of Tharaka Nithi.  The Respondents contend that the  nature of  the case is an issue between members of Jubilee Party which in their view is an issue that falls within the jurisdiction of Political Tribunal. They contend that this court lacks jurisdiction to deal with  the dispute in  the first instance.  They have pointed out that Section 39 of the Political Parties Actcreates a Tribunal which is mandated to handle party disputes. They have further emphasized that Article 159 (2) (c) of the ConstitutionKenya 2010 promotes use of alternative dispute resolution mechanisms.  They contend that in this instance, the Political Parties Disputes Tribunal created under  Section 39 of the Political Party Act is the  alternative dispute resolution  mechanism available for the Plaintiffs for utility before  approaching this court.

8. They have further contended that under Section 40 (2) of the Political Party Actthe first port of call is the internal party organs even before a party approaches the Tribunal.  They have faulted the  Plaintiffs for not initiating  any internal party processes.

9.  The Defendants have drawn the attention of this court on the provisions of  Section 41(2) of the Political Party Act which gives this court appellate jurisdiction on decisions  made by Political  Parties Disputes Tribunal and  that this suit is premature to that extent.

10. The Defendant/Respondents have further submitted that the seats in the County Assembly were declared vacant and presently no business in the House can be transacted and that the interim orders issued have hampered operations in the County Assembly and the County  at large.

11. They contend that the role of Speaker of County Assembly is purely nominal   as it only accepts decisions of officials as elected by individual Party and only facilitates the swearing in of the office bearers.  They have faulted the Plaintiffs for suing the wrong parties and non joinder claiming that the new elected officials should have been sued.

12.  The Plaintiff/Applicants have opposed the Preliminary Objection raised by the Defendants stating that under Article 165 (3) of the Constitution of  Kenya 2010, this court is granted jurisdiction over all civil matters and   especially in this matter where they have claimed that their political  rights have been infringed.

13.  According to the Applicants, they initiated internal resolution mechanisms of the party as per exhibit GMM4 in their affidavit but they have alleged that the County Assembly chose to ignore the decision of the Internal Party Committee dated 25th February 2020 which in their view declared the  Plaintiffs/Applicants the winners as  opposed to the other list forwarded for swearing in.  They contend that the action  of Defendants not to honour the party's internal decision precludes them from relying  on Article 159 (2) of  the Constitution of Kenya.  They point out that the very action of the Respondents made them come to court for redress.

14. The Applicants submitted that there were no notice by the Registrar of  Political Parties declaring the seats vacant and therefore the business of County Assembly is going on because the office bearers are still in the office.

15. The Applicants have further contended that if this court was to find that this matter should be handled by political parties Disputes Tribunal, it should transfer the matter to the Tribunal rather than shirking out the suit and have relied on the decision of Linus Kamunyo Muchira -vs- Speaker EmbuCounty Assembly Majority Leader [2016] eKLR.

16. This court has considered the Defendants'  Preliminary Objection and the response made. The main and the only issue is whether this court has jurisdiction to deal with Political Disputes such as the one presented by the Plaintiffs.

17. There is no dispute that under Article 38 of Constitution of Kenya 2010  political rights of every citizen of Kenya is protected.  Every citizen has a right to make political choice as enunciated under Article 38 of the Constitution of Kenya.  The Plaintiffs like  any other Kenya therefore have every right to make political  decision  of their choice and no one can force   them to associate with  a party or political idea they do not subscribe to. The Plaintiffs have alleged from the bar through counsel that their political       rights have been infringed.

18.  Looking at the suit before me, the Plaintiffs are scanty on how their political  rights enshrined in the Constitution of Kenya have been infringed or about to be infringed if that was the case, one would have expected them to lodge a Constitutional Petition listing down their grievances and  how their constitutional rights have been or about to be infringed  and by whom.  In    my view a party cannot just allege from the bar that his/her constitutional rights have been or about to be infringed.

19. The suit by the Plaintiffs is hinged on apparent political differences among members of the County Assembly from the same Political Party- Jubilee Party. Under the Political Parties Act, 2011 parliament enacted the said statute to deal with registration, regulation, funding of Political Parties and connected purposes like solving internal party disputes among members. The Section 39 of the Statute establishes the Political Parties Disputes Tribunal whose functions are clearly spelt under Section 40 of the Actas follows:-

" (1) The Tribunal shall determine;

a. Disputes between the members of a political party..................

(2) Notwithstanding subsection

(1) the Tribunal shall not hear or determine a dispute under paragraph (a) (b) (c) or (e) unless the dispute has been heard and determined by the Internal Political Party Dispute Resolution Mechanism."

20. The operative words in the above provisions is "shall" which shows that parliament clearly placed party matters and affairs including disputes on the     doorstep of;

(1) The Political Party itself through its  internal mechanisms.

(2) Political Parties Disputes Tribunal.

The Tribunal is given strict timelines of determining disputes within 3 months from when they are lodged and the Act under Section 41 (2) gives this court only appellate  jurisdiction over the decisions of the Tribunal.

21.  The Plaintiffs have invoked the jurisdiction of this court under Article 165(3) (a) which grants this court unlimited jurisdiction in both criminal and civil matters.  It is however trite that the Constitution of Kenya requires wholesome interpretation because one Article thereof cannot be read in   isolation.  Under  Article 165(5) for example the jurisdiction of this court is ousted on matters reserved exclusively for the Supreme Court, and issues touching on Article 162(2) of the Constitution.  A further reading of  Article 159 (1) (c) indicates that one of the principles guiding this court in    the exercise of its judicial authority is the     promotion of alternative forms of disputes resolution mechanisms.  So where a Statute clearly states that  such a dispute should first be handled by a  Statutory body, it is not proper for the court to usurp jurisdiction.  In this instance the Statute clearly grants  this court appellate jurisdiction  over political disputes involving either   members of Political Parties or members of a political party and the party     itself.

The law cited above has clearly stated that the first port of call is the internal party organ then the Tribunal  itself.  It is only then and upon Tribunal   making a decision that the appellate jurisdiction of this court can be   invoked.  The original jurisdiction to deal with party affairs rests in other avenues as cited in the Political Parties Act and unless a party can demonstrate that the other avenues provided is an impediment to right to access justice, or any other fundamental rights there is no basis to invoke inherent jurisdiction of this court under Article 165(3) of the ConstitutionofKenya.  I do not find basis for the Plaintiff/Applicants to invoke the said  jurisdiction because no basis has been laid before me.

22.  In the case of ALBEITY HASSAN ABDALLA -V- INDEPENDENTELECTORAL AND BOUNDARIES COMMISSION (IEBC),MOHAMMED ADAN ALI, ANUAR LOITIPTIP & WIPER DEMOCRATIC MOVEMENT PARTY [2018] EKLRthe Court of Appeal dealt with the issue, inter alia, of whether the HC had jurisdiction to handle the issue of nomination of party agents. The Court of Appeal upheld the decision of the HC on that question of law that it did not have the jurisdiction because those were party affairs and any dispute on them should have been taken before the Political Parties Disputes Tribunal. The court stated;

“Consequently, in so far as the grievance regarding the appointment of the party agent is concerned, given that party agents were indeed appointed by the 4th respondent in terms of subsection (1) of Section 30 of the Elections Act, the subsequent internal wrangles pertaining to that appointment were  between the appellant and his political party (the 4th respondent) and  ought to have been referred to the PPDT for resolution. As we dispose of this issue we also point out that it is trite law that where the law provides a   resolution mechanism, the same should be strictly adhered to (see. Speakerof National Assembly v Njenga Karume [2008] 1 KLR 425, where it held that:-

“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

23.   Similarly in Republic -vs- Benjamin Jomo Washaili majority WhipNational Assembly & 4 others exparte Alfred Kiptoo Keter & 3 others [2018] eKLR, the Applicants had sought to block their ouster from departmental committees in parliament where they served, Odunga J   declined and held as follows:-

“42. It is however my view that the onus is upon the applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. In Re   Preston [1985] AC 835 at  825D Lord Scarman was of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort. I therefore associate myself with the position adopted by Emukule, J in Revital Healthcare (EPZ) Limited & Another vs. Ministry of Health & 5 Others [2015] eKLR at paragraph 10 where he cited with approval the case of Damian Belfonte vs. The Attorney General of Trinidad and Tobago C.A 84 of 2004 in which it was held that:-

“…where there is a parallel remedy, Constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature, which, at least arguably indicates that the means of least redress otherwise available would not be adequate. To seek constitutional relief in the absence of such feature would be a misuse, an abuse of the Court’s process.”

Accordingly, where there is an alternative remedy provided by an Act of   Parliament  which remedy is effective and applicable to the dispute before  the Court, the Court ought to ensure that that dispute is resolved in accordance with the relevant statute.  Accordingly I agree with the decision in Pasmore vs. Oswaldtwistle Urban District Council [1988] A C 887 that where an obligation is created by statute and a specific remedy is given by that statute, the persons seeking the remedy is deprived of any  other means of enforcement. I therefore agree with Mwera, J (as he then was) in Safmarine Container N V of Antwerp vs. Kenya Ports Authority (supra) to the extent that it is not only the Constitution that can limit/confer  jurisdiction of the court but that any other law may by express provision confer or limit that jurisdiction. In his decision the learned Judge relied on Article 159 of the Constitution. Clause (2)(c) of the said Article  provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that alternative forms of dispute resolution  including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Courts and Tribunals cannot be said to be promoting alternative dispute resolution mechanisms when they readily entertain disputes which ought to be resolved in other legal forums. Accordingly I agree that where there is an alternative remedy and procedure available for the resolution of the dispute that  remedy ought to be pursued and the  procedure adhered to."

24.  This court is guided by the  above positions taken by the courts in the  cited decisions.  I do not agree with the  Plaintiffs' position that Article 165(3) clothes this court to determine everything brought before it because  as I have observed above, where the Constitution clearly gives  a mandate to other courts and where a Statute clearly gives jurisdiction to another organ to first entertain the dispute, this court cannot usurp the jurisdiction save when the Statute itself is challenged on its constitutionality.  That certainly is  not  the case here.

25. The Plaintiffs have invoked Section 14 of the Political Party Actbut that  section deals with resignation of members of a Political Party or expulsion  of a  member from a Political Party which is not the case here.  The  Plaintiffs have  not demonstrated that they fully exhausted the  mechanisms provided  under the cited Statute. The letter exhibited in my  view does  not  demonstrate that there was a complaint filed and that the party upon hearing the complaints and the Respondents reached a resolution or a verdict.  The letter dated 25th February only talks of "thorough investigations" and does not state If the "thorough investigations" included hearing all the parties to the dispute.  In  any event   if the Plaintiffs claim that the internal partly mechanism was exhausted,  certainly the complaint was not forwarded to Political Parties Disputes Tribunal  as provided by the   statute.  This is because, the Plaintiffs  apparently conceded that they could  be headed there and that is why they  pleaded with this court to refer the dispute to he said Tribunal. They  have cited the decision of Hon. Justice  J.M  Bwononga in the case of Linus Kamunyo Muchira  -vs- SpeakerEmbu County Assembly [2016] eKLR but  I am respectfully not persuaded because in the first place, the Tribunal need to satisfy  itself that the  Plaintiffs have first complied with Section 40 (2) of the Act before entertaining the matter. So if this court were to transfer the matter as it is, there would be challenges to the Tribunal to decline to entertain the matter for want of procedure because then it would be violating the  directions given by this court to entertain the dispute.  The Tribunal as it were would find itself between a rock and hard place.  To follow the  procedure as per the Statute establishing it or the directions of this court.  That in my view is undesirable.  There is nothing preventing the Plaintiffs herein if they so desire to lodge their claim directly to the Tribunal.

In the premises this court finds merit in the  Preliminary Objection dated 9th March 2020 filed herein.  The same is sustained. The Plaintiffs have not   demonstrated that internal party mechanisms have been exhausted and/or   invoked the appellate jurisdiction of this court under Section 42(2) of the Political Party Act. The suit and the application in its entirety is struck out but I shall make no order as to costs because the Plaintiffs have demonstrated that they could be having a good cause though through a different forum provided by law other than this court.

Dated, signed and delivered at Chuka this 12th day of March 2020.

R.K. LIMO

JUDGE

12/3/2020

Ruling signed, dated and delivered in the open court in presence of Ouma holding brief for Saluny for the Respondents.

R. K LIMO

JUDGE

12/3/2020