Ontiri v United Progressive Alliance Party (UPA) & another [2022] KEHC 10867 (KLR)

Ontiri v United Progressive Alliance Party (UPA) & another (Election Petition Appeal E002 of 2022) [2022] KEHC 10867 (KLR) (Civ) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10867 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Election Petition Appeal E002 of 2022

WA Okwany, J

June 9, 2022

Between

Everlyne Kemunto Ontiri

Complainant

and

United Progressive Alliance Party (UPA)

1st Respondent

National Elections Board (NEB)

2nd Respondent

(Being an appeal from the judgement and decree of the Political Parties Dispute Tribunal of Kenya at Nairobi delivered on 27th of April 2022 by Hon. DR. Willy Matubwa, Fatuma Samana and CHRP Sifuna Walubengo vide complaint No. E002 of 2022)

Judgment

Background 1. The Appellant hearing Everlyne Kemunto Ontiri offered herself for nominations as the 1st respondent’s (UPA) Member of County Assembly (MCA) for Manga Ward in Nyamira County. The nomination was conducted through a process christened ‘direct nomination’ on 20th April 2022 and one Enock Ogori Okero was issued with the UPA ticket to vie for elections for the position of MCA in the said ward.

2. Aggrieved by the said direct nomination, the appellant herein lodged a complaint before the Political Parties Disputes Tribunal (PPDT) of Kenya at Nairobi on 21st April 2022. The respondents, on the other hand, raised a preliminary objection to the entire complaint on the ground that the PPDT lacked the jurisdiction to entertain the complaint, as the appellant had not exhausted UPA’s Internal Dispute Resolution Mechanism (IDRM) before lodging the complaint.

3. Through a decision rendered on 27th April 2022, the PPDT upheld the respondents’ objection and held that the complaint was premature before it. The PPDT further held that it lacked the jurisdiction and accordingly struck out the complaint thereby precipitating the instant appeal.

The Appeal 4. The appellant listed the following grounds of appeal in the Memorandum of Appeal dated 17th May 2022. 1.That the tribunal erred in law and fact in upholding the 2nd respondent’s preliminary objection dated 23rd April, 2022 by holding that it lacked the jurisdiction to hear and determine the appellant’s claim before it on the ground that the appellant has skipped mandatory step of first instituting the claim with the 1st respondent’s national appeals tribunal pursuant to Section 40 of the Political Parties Act.2. That the Tribunal erred in law and fact in failing to find and hold that in fact Section 40(2) of the Political Parties Act as read together with Section 40(1) of the said Act allowed the appellant to file his claim before the tribunal without the need to first file an appeal with the 1st respondent’s appeal’s tribunal (reason) being the 1st respondent has no IDRM organ.3. That the tribunal erred in law and fact in ignoring the fact that the 1st and 2nd respondent tendered evidence in documents that showed that they had not established an IDRM organ as a political party.4. That the tribunal erred in law and fact and refused and failed to deduce that acceptance letters and correspondence between the appellant and the respondents as evidence of attempted IDRM however vague the attempted dispute resolution was which cannot be attributed to the appellant alone.5. That the tribunal erred in law and fact that such disputes are subject to Section 40(2) of the Act and must first be subjected to the internal party dispute resolution mechanism before the Political Parties Disputes Tribunal takes cognizance of them only where a party has established the internal dispute resolution mechanism and therefore the appellants case is not one of such cases covered under Section 40(2) aforementioned which mandatory requires a party to exhaust internal dispute resolution mechanism.6. That the tribunal erred in law and fact and failed to hold that failure by the respondents to establish internal party dispute was contrary to Section 9 of the Act as read with paragraph 23 of the 2nd Schedule to the Act, that makes it mandatory and is statutory requirement that every political party must have provision in its constitution and rules for internal party dispute resolution mechanism in accordance with Article 47 and 50 of the Constitution.7. That in upholding the 2nd respondent’s preliminary objection, the tribunal denied the appellant his constitutional right to have the dispute between him and the respondents resolved in open and public hearing before the tribunal contrary to Article 50(1) of the Constitution of Kenya.8. That the tribunal erred in law and fact by failing to appreciate and to take into consideration the evidence in the affidavit filed by the Appellant and the respondent’s own admission that there was a meeting held at Hemingways to resolve the dispute and thereby arriving at the wrong conclusion.9. That the tribunal erred in law and fact by finding that the appellant’s claim could fail for failure to prove that she attempted dispute resolution, which act, does not fall within the category of preliminary objection as it required investigation of evidence.10. That the tribunal erred by ignoring to hear an application for contempt before taking a preliminary objection and then it skipped a greater part of what took place in proceedings in court a testament hat one could be forgiven to think the tribunal acted with bias.11. That the tribunal erred in law and fact in placing undue regard to procedural technicalities while ignoring the express and plain provisions of the Political Parties Act and the Constitution of Kenya 2010 contrary to Article 159(2) (a) and (b) of the said Constitution.12. That the tribunal erred and misdirected itself in law by selectively interpreting the law thereby aiding the cause of the 1st and 2nd respondents as against the appellant.13. That in view of the foregoing, the Political Parties Disputes Tribunal had jurisdiction to entertain the appellant’s claim and the preliminary objection was misplaced hence the tribunal should be overruled and directed to hear the main claim and make substantive orders thereof.

5. On 23rd May 2022, this court directed the parties to canvass the application by way of written submissions which they highlighted on 9th June 2022.

6. I have considered the Record of Appeal, and the parties’ respective submissions. I find that the main issue for determination is whether the PPDT erred in finding that it lacked the jurisdiction to entertain the appellant’s complaint.

7. The appellant submitted that the parties had, prior to the nominations engaged in dispute resolution when the respondent failed to call the meeting on 14th April 2022. She argued that UPA did not have an IDRM provision under its constitution and that in view of the fact that the time was of essence, she had no alternative than approach the Tribunal.

8. On their part, the respondents submitted that UPA nominations is governed by its Elections and Nominations Rules, which at Rule 19 provides for the party’s IDRM. According to the respondents, the PPDT arrived at the correct finding in striking out the appellant’s complaint, as the appellant did not demonstrate that she attempted to invoke UPA’s IDRM and was frustrated.

9. Courts have taken the position that if a suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself.

10. In Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others v Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another v Eric Cheruiyot & 15 Others (unreported) the Court of Appeal rendered itself on the doctrine of jurisdiction as follows: -“Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above-cited treatise by John Beecroft Saunders held as follows:Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.In Samuel Kamau Macharia and Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(68).A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”

11. In the instant case, the objection to the jurisdiction of the PPDT was raised by way of a preliminary objection. This calls for a look at the law on preliminary objections.

12. The validity of any preliminary objection is measured against the requirement that it must raise pure issues of law capable of disposing of a dispute at once. The court is therefore required to ensure that a preliminary objection is not based on factual matters that require proof through evidence.

13. What constitutes a preliminary objections was discussed in the oft cited case of Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd, (1969) E.A. 696 page 700 where the Court observed as follows: -“...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration....A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”

14. In Omondi v National Bank of Kenya Ltd & Others [2001] KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that the objection must raise pure points of law. It was held thus: -“…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion.”

15. On the question as to whether jurisdiction is a point of law, the Supreme Court in Petition No. 7 of 2013 Mary Wambui Munene v Peter Gichuki Kingara and Six Others, [2014] eKLR, stated that ‘jurisdiction is a pure question of law.’

16. Bearing in mind the principles espoused in the above-cited cases over the centrality of jurisdiction and what constitutes a preliminary objection, I will turn to consider if in this case, the PPDT had the jurisdiction to hear and determine the appellant’s complaint.

17. Section 40 of the Political Parties Act (PPA) stipulates as follows on the mandate of the PPDT: -(1)The Tribunal shall determine—(a)disputes between the members of a political party;(b)disputes between a member of a political party and a political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners; and(f)appeals from decisions of the Registrar under this Act;(fa)disputes arising out of party primaries.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

18. A simple reading of Section 40 (2) shows that imposes a restriction on the tribunal’s jurisdiction to the extent that it can only entertain a dispute that has been heard and determined by the party’s IDRM.

19. The dispute herein was between a member of a Political Party and a Political Party thus falling within the ambit of the provisions of Section 40(1) (b).

20. Courts have held the position that where there a law prescribes a procedure for the redress of any particular grievance, that procedure should be strictly followed. (See Kimani Wanyoike v ECK CA 213/95).

21. In Mutanga Tea & Coffee Company Ltd v Shikara Limited & another (2015) eKLR the Court of Appeal held that : -“…..This court has in the past emphasized the need for aggrieved parries to strictly follow any procedure that are specifically prescribed for resolution of particular disputes.”

22. In the instant case, I note that it was not disputed that the impugned decision to issue direct nomination ticket to the appellant’s opponent was made on 20th April 2022 and that the appellant lodged her complaint to the PPDT on 21st April 2022. The appellant conceded that she did not invoke the UPA’s IDRM after the nomination but went straight to the PPDT because UPA did not have an IDRM in place and time was running out on her.

23. I have perused UPA’s Election and Nominations Rules and I note that 18. 8 allows the party to adopt direct nomination method under the title; Automatic Nomination of Candidates, while Rule 19 provides, in detail, for Disputes Resolution and Appeals Tribunals. The said Rules stipulate as follows: -

24. I find that contrary to the appellant’s assertions, the UPA Election and Nominations Rules clearly provide for IDRM. The appellant was therefore required to file her complaint with the party’s dispute resolution organ for their determination in the first instance before moving to thePPDT in the event she was not satisfied with their decision. I further find that the appellant’s undoing was her decision to bypass UPA’s IDRM by filing the complaint to PPDT directly thereby contravening the clear provisions of Section 40 of the PPA on the Tribunal’s jurisdiction.

25. It is therefore my finding that the PPDT made the correct finding that the Tribunal arrived at the right decision in upholding the respondents’ preliminary objection to its jurisdiction.

26. In sum, I find that the instant appeal lacks merit and I therefore dismiss it. Considering that the dispute herein involves a political party and one of its members, I make no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JUNE 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Anyoka for Respondent.Appellant present in person.Court Assistant- Sylvia