REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ELECTION PETITION APPEAL NO. 5  OF 2017

JOSEPH MBOYA NYAMUTHE..........................................APPELLANT

VERSUS

THE ORANGE DEMOCRATIC MOVEMENT.......1^ST RESPONDENT

DR. LILIAN GOGO...................................................2^ND RESPONDENT

AND

HON. GEORGE ONER OGALO.................1^ST INTERESTED PARTY

WILLIAM OMBURO ODAJE....................2^ND INTERESTED PARTY

JOHN WASHINGTON AGUTU..................3^RD INTERESTED PARTY

(Being an appeal from the ruling and order of the Political Parties Disputes

Tribunal (M.O. Lwanga-Presiding Member, Desma Nungo, Paul Ngotho

and Dr. Adeline Mbithi) dated 6^th May, 2017 in Tribunal Cause Number 69 of 2017)

JUDGMENT

1. This is  an  appeal   arising  out  of   a  ruling  made  by  the  political  parties disputes  tribunal  and  delivered  on the  6^th  day  of  May, 2017 in which  the  said  tribunal  dismissed  the  claim by  the  appellant  on   the ground  that  it  had  no  jurisdiction to  entertain  the same  before  the  appellant exhausted  internal  party  dispute  resolution  mechanism.

2. Joseph Mboya Nyamuthe, hereinafter referred to as the appellant, is a life member of a political party known as Orange Democratic Movement the first respondent in respect of this appeal.

3. On 24^th April, 2017, the appellant together with the second respondent Dr. Lilian Gogo, Hon. George Oner Ogalo (1^st Interested Party), William Omburo Odaje (2^nd Interested Party) and John Washington Agutu (3^rd Interested Party) both members of the 1^st Respondent, participated in joint primary nomination exercise for the position of Member of Parliament Rangwe Constituency.

4. Upon completion of the exercise albeit alleged cases of electoral malpractices, the second respondent was nonetheless declared the winner by the first respondent and consequently was issued with a nomination certificate as the first respondent’s nominee for the position of Member of Parliament for Rangwe Constituency.

5. According to the appellant, the nomination exercise was tainted and manipulated by top party officials upon whose directions the returning officer was working and every effort to raise the said electoral malpractices in particular to the returning officer and top party officials was ignored. 

6. Aggrieved by the decision of the 1^st respondent in declaring the 2^nd respondent the winner, the 1^st, 2^nd and 3^rd interested parties lodged their appeals to the party’s national dispute resolution organ on 24^th April, 2017 seeking for annulment and or a repeat of the whole exercise

7. However, the appellant herein opted to straight away file his claim to the political party’s disputes tribunal on 4^th May, 2017 challenging the manner in which the nomination exercise was conducted and results announced in Rangwe Constituency.  In his claim, he cited the 1^st and 2^nd respondents together with the 1^st, 2^nd and 3^rd interested parties.

8. Among the orders sought before the political parties tribunal by the appellant (claimant) and by “extension the interested parties “was:

1. That the nomination of the 2^nd respondent Dr. Lilian Gogo as the 1^st respondent’s nominee for the position of the member of Rangwe Constituency be nullified.

2. That the honourable tribunal be ordered to tally the results of the nomination of the Member of Parliament for Rangwe Constituency from Kochia, Kagan, East and West Gem Wards and the results thereof be declared.

3. That in the alternative, the honourable tribunal be pleased to order the 1^st respondent to repeat the nomination exercise for its nominee for the position of the Member of the National Assembly for Rangwe Constituency.

4. That the Honourable court be pleased to issue such further orders as it shall deem fit and just in the circumstances.

9. Before the hearing of the claim, Professor Ojienda, counsel for the 2^nd respondent raised a preliminary objection on a point of law.  The said preliminary objection centered on the lack of jurisdiction by the tribunal in entertaining the claim under Section 40 of the Political Parties Act before the appellant/claimant exhausted the internal party dispute resolution mechanism which was mandatory.  In contrast, Mr. Onyango learned counsel for the appellant opposed the preliminary objection  thereby  submitting  that  political parties disputes tribunal has jurisdiction under section  40(1)(fa)  to entertain  directly  a dispute  arising  out of  party  primaries.    

10. After considering the preliminary objection, the honourable members of the tribunal upheld the same thereby dismissing the claim on the 6^th May, 2017 conceding that they had no jurisdiction to entertain the claim as the claimant (appellant) had not lodged his appeal to the 1^st respondent’s internal dispute resolution mechanism before proceeding to the tribunal contrary to Section 40 (2) of  the political parties Act and that appeals by the interested parties were not representative of the appellant’s  appeal before the 1^st respondent.

11. Dissatisfied with this ruling, the appellant swiftly moved to the High Court and filed this petition appealing against the decision of the

Tribunal.  Simultaneously filed with the appeal is a notice of motion dated 7^th May, 2017 and filed in court same day seeking a temporary injunction restraining the 1^st respondent either by itself, its servants or anybody else acting on its behalf from forwarding and or gazetting the name of the 2^nd respondent herein to the Independent Electoral and Boundaries Commission as its nominee for the position of Member of Parliament for Rangwe Constituency.

12. When both parties appeared before me on 8^th May, 2017 for directions, by consent, they agreed to dispense with hearing of the aforesaid notice of motion and instead proceed with the main appeal to save  on  time.  Parties agreed for the respondents to file their responses and proceed with the hearing the following day save for the 3^rd interested party who withdrew from participating further after delivery of the tribunal’s verdict.

13. In his memorandum of appeal, the appellant listed nine grounds particularized as hereunder:

1. That the tribunal erred in law and fact in upholding the 2^nd respondent’s preliminary objection dated 6^th May, 2017, by holding that it lacked the jurisdiction to hear and determine the appellant’s claim before it on the ground that the appellant had skipped mandatory step of first instituting the claim with the 1^st 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 1^st respondent’s appeal’s tribunal.

3. That the tribunal erred in law in ignoring the fact that the mischief behind the enactment of Section 40 (1) (f a) as read together with Section 40 (2) of the Political Parties Act by the legislature was to protect political parties members especially nomination aspirants in disputes where political parties internal dispute resolution bodies were themselves being accused of misconduct and therefore could not be Judges in their own disputes under the rules of natural justice.

4. That the tribunal erred in law and fact in failing to find that the 1^st respondent’s tribunal had itself gone rogue by assuming a jurisdiction which it did not have and failing to release the results of the appeals which had been filed before it by 1^st, 2^nd and 3^rd interested parties within 48 hours as provided in Article 12.2 of the 1^st respondent’s election and nomination rules.

5. That the tribunal erred in law and fact in holding that there was no appeal which had been filed before the respondent’s national appeal’s tribunal on the dispute before it while in fact there were three pending appeals and on which the said tribunal had refused and or ignored to give a decision.

6. That in upholding the 2^nd respondent’s 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.

7. 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. 

8. That the tribunal, by considering irrelevant matters, misdirected itself on the application of the principles of law and in all circumstances of the claim before it, failed to exercise its discretion judiciously. 

9. That the tribunal erred and misdirected itself in law by selectively Interpreting the law thereby aiding the cause of the 1^st and 2^nd respondents as against the appellant.

14. The appellant therefore urged the honourable court for orders that, the ruling and or order of the tribunal made on the 6^th May, 2017 be set aside and instead be substituted therefore with an order dismissing the 2^nd respondent’s notice of preliminary objection dated 6^th May, 2017 and that; the tribunal be directed to proceed and hear the appellant’s claim dated 5^th May, 2017 and determine the same on its merits.

15. During the hearing, Mr. Kenyatta for the appellant urged the court to consider all the nine grounds although in essence he did not argue them individually.  Both counsels basically approached their submissions generally while oscillating on the main ground i.e. whether the political parties disputes tribunal has jurisdiction to entertain a dispute out of party primaries directly without the affected party (complainant/ claimant) first having exhausted their internal dispute resolution mechanism.

16. Mr. Kenyatta contended that the political parties disputes tribunal has jurisdiction under Section 40 sub-section 1 and 2.  Counsel urged the court to consider the plain reading and wording of Section 40 of the political parties which provides jurisdiction of the tribunal as follows:

“Sub-section (1) – the tribunal shall determine:

(a) Disputes between 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 registrar under this Act.

(fa) Disputes arising out of party primaries.

Section 40 (2) goes further to say:

“Notwithstanding sub-section (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”.

17. According to Kenyatta, Section 40 (2) only makes it mandatory for disputes falling under Section 40 (1) paragraphs a, b, c and e to first go through internal party disputes resolution mechanism before approaching the political parties disputes tribunal.  Counsel opined that issues arising out of Section 40 (1) paragraphs d, f and (fa) need not go through any party internal dispute resolution mechanism hence any aggrieved party can directly approach the tribunal.

18. Learned counsel contended that his client’s dispute squarely falls under Para (fa) and therefore it is not one of such cases covered under Section 40 (2) aforementioned which mandatorily requires a party to exhaust internal dispute resolution mechanism.

19. Based on that argument  alone, counsel submitted that the political parties disputes tribunal had jurisdiction to entertain the claim by his client and that the preliminary objection was misplaced hence the tribunal should be overruled  and therefore  directed  to hear the main claim and make substantive orders thereof.

20. In support of his submission, Mr. Kenyatta submitted that, in introducing paragraph (fa) to Section 40 (1) of the Political Parties Act,  parliament was alive to the fact that in party primaries, aspirants quite often suffer in the hands of internal dispute resolution mechanism officials  in  which case   members are frustrated and their claims end up not being litigated on time hence the need by parliament to curb that mischief by allowing aggrieved parties to ventilate their disputes before an impartial and independent organ in this case the political parties disputes tribunal.

21. Counsel urged the court not to interpret Section 40(1) narrowly and that the provision should be given its literal interpretation.  He referred the court to the case of Joseph Kaberia Kahinga & 11 others vs Attorney General (2016) eKLR in which the court held that:

“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature.  If the language proves to be ambigous, I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language.  The courts now adopt a purposeful approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted”.

22. Learned counsel averred that Article 38 of the constitution provides that every citizen has a right to participate in political parties activities and that his client is entitled to a fair hearing before an impartial tribunal in accordance with Article 50 of the 2010 Constitution.

23. In response, Professor Ojienda for the respondents opposed the appeal and urged the court to dismiss the same and uphold the political parties’ disputes tribunals ruling which held that they had no jurisdiction.

24. Counsel submitted that, the applicant being a member of Orange Democratic Party (1^st respondent) is bound by the internal party dispute resolution mechanism in accordance with Section 40(1) paragraph b and Section 40 (2) of the political parties Act and Rule 19. 2.3 of the Orange Democratic Movement Party (1^st respondent).

25. Learned counsel contended that, the intention of Parliament was to have a process of solving complaints at the party level to avoid flooding the political party’s disputes tribunal with unnecessary cases.  He  urged  the  court  not  to adapt  a  literal   approach in  interpretation   paragraph  (fa).

The respondents counsel cited several authorities in support of his arguments  which  the  court  appreciated  and  made  reference  to.

26. Mr. Nyangweso for the 1^st interested party merely associated himself with the submissions of the appellant.

27. I have considered the grounds of appeal herein and submissions by both counsels.  Although the appellant listed nine grounds of appeal, they basically concentrated on the main ground i.e. jurisdiction of the political parties disputes tribunal.

28. Issues for determination are:

a. Whether the political party’s disputes tribunal has jurisdiction to entertain disputes arising out of party primaries before the aggrieved party exhausts internal party dispute resolution mechanism.

b. Whether the tribunal’s holding that they did not have jurisdiction denied the appellant a right to a fair hearing.

c. Whether a member of a party who is aggrieved by results out of party primaries is automatically bound by his party’s internal dispute resolution mechanism.

29. According to the applicant, Sections 40 (1) and 40 (2) have no effect on Section 40 (1) (fa).  Professor Ojienda relied on the case of Adan Ali Wako vs Nura Diba Billa and 2 others (2017) eKLR where J. Gikonyo held that “where there is provision of internal dispute resolution mechanism a party should exhaust that process first in accordance with Section 40 (1) of the Political Parties Act”.    

Similar preposition was held in the case of;  Stanley Mugathi Daudi and  4 others  -versus - Cyprian Kubai  Kiingo member  of parliament  Igembe Central  Constituency and 3  others ( 2013) eKLR and  Ephrahim Mwangi Maina  –versus-  Attorney  General  & 2  Others (2013) eKLR. 

It  is  apparent  from  the  authorities  quoted herein  above,  that the   honourable   Judges  were  dealing  with issues  touching  on  parties  disputes in  respect  of  Section  40 (1)  and  (2)  before  the  introduction  of  Section 40 (1) (fa).  With paragraph  (fa)  now  in  place, the  legal landscape  obviously  is  on a  trajectory of  its  own.

30. Counsel for the respondent  further  invited the court  to    make  reference  to  Justice Ngugi Mumbi’s approach in the case of Stephen Asura Ochieng and 2 others vs Orange Democratic Movement Party and 2 others (2011)eKLR in which the honourable Judge  held

“To my mind, the intention behind the establishment of the political parties Tribunal was to create a specialized body for the resolution of inter party and intra party disputes.  The creation of the tribunal was in line with Provisions of Article 159 of the Constitution which provides for the exercise of judicial power by courts and tribunal’s established under the Constitution and for the use of alternative dispute resolution mechanism.  Further, a major concern in the administration of justice in Kenya has been the extent to which the courts have been unable to deal expeditiously with matters before them.  A situation in which disputes between Members of political parties among themselves or with their parties wind up on the constitutional division of the High court would clearly be prejudicial to the expeditious disposal of cases.

31. What mischief was the introduction of Section 40 (1) (fa) vide Political  parties  amendment  Act  No.21/2016 intended to cure.  According to Professor Ojienda, paragraph (fa) was intended to take care of a situation where parties do not have internal disputes resolution mechanism.   Mr. Kenyatta on the other hand argued that, the provision was intended to protect nomination aspirants who may not get justice before the party dispute resolution tribunal.

32. From the plain reading and wording of Section 40(1) (fa), one is able  to  distinguish disputes between members of a Political Party  under  paragraph  (a) and disputes between a member of  a political party and a political party   under paragraph (b) from disputes arising out of party primaries as  provided  for under paragraph ( fa).

33. When  Parliament  in  their wisdom decided to  introduce  paragraph “fa” in Section 40(1) in the year 2016 while  fully aware that Section 40 (a) and  (b) already in existence could  properly take care of disputes arising out of  party primaries, they must have had a reason in specifically isolating  disputes arising out of party primaries from those under paragraph a,b,c & e. 

34. Although  the Court  did  not  have  a  Parliamentary  Hansard  to extract  the  actual   objective  and  intention  in  introducing  paragraph  (fa),  it  is  not  lost  in  my mind  that,   where  the  words  and  language  used  in a statute  are  clear  and  or  explicit  on  the  face  of  it  and  therefore  no  element  of  ambiguity,  a court  should  not  endeavor  in  farfetched  fishing  expedition trying  to import  and  attach  some unnecessary  and   unwarranted construction and  or interpretation  of  statute which  would  otherwise   distort   the  very  purpose  for  which  such  statute  or  provision  was established  and  or  meant  to  achieve.

35. In  construction  of  statutes, MN Rao  Amita Dhanda  10^th Edition  on  interpretation of  statutes  page 432  gives  a  clear  analysis  to  the effect  that,  in  Construction  of  statutes  in  the first  instance,  the grammatical  sense  of  the  word  is  to be  adhered  to.  The  words  of  a  statute  must  prima facie  be given  the  ordinary  meaning (see Nokes -vs- Don caster  amalgamated  collieries (1940) AC 1014 Page 1022 and Oriental  Insurance  Company  limited  -vs-  Sardar  Saddhu  Singh AIR ( 1994 Raj.44).   Where  there  is  no ambiguity  in the  words,  there  is no room  for  construction

( See  Yates -vs-  United states 1 L Ed 2^nd  1356   Page 1387  per Harlan  Judge In  which  the  learned  Judge  held  “ where  the  intention is  clear,  there is no  room  for  construction  nor  exercise  for  interpretation  or  addition.” 

In  the  same  vein,  when  the  language of  a  statute  is  un ambiguous  in  interpreting  the  provisions  thereof,  it  is  not  necessary  to  look  in  the  legislative intent or  the  object  of   the  act  (See Aru Nadar  -vs-  Authorized  officer  land  reforms  ( 1998)  7 SCC 159  ( Supreme  Court  of  India),    In  the  case  of  Browdor  -vs-  United  states  85 L Ed 862,  Judge  Reed  held “  No  single   argument  has  more  weight in a statutory  interpretation  than  the  plain meaning  of  the  words”.  In the  instant  case  I  do  hold  that  the  words  are  clear  and  un ambiguous  therefore   requiring   no   further  interpretation.

36. I am alive to  the contribution made  by  Article  159  of  the  Constitution   in so far as  alternative  dispute  resolution mechanism  is concerned  thereby  curbing  and reducing unnecessary  litigation  in  our  courts  and consequently  saving   on  costs  and  time. Equally, I am aware  that Section 40(2) requiring parties to exhaust internal  party  dispute  resolution mechanism within their parties before  approaching  the  tribunal  was  meant to control, manage and  reduce the amount  of cases flowing  to  the  tribunal thereby  flooding  the  justice  system  at  that  level  and  thereafter  the  courts hence making  it  almost  impossible  to  effectively discharge   justice  in  a manner  that is  just,  expeditions  and  affordable  in  compliance  with  the   overriding objective  under Section  1A  and  1B  of  the  Civil  Procedure Act. 

37. Key questions therefore arise: wasn’t  parliament aware  that  by  introducing  paragraph (fa) to Section 40 (1) of the Political Parties Act and  by  excluding  it  from  Section 40(2),  would  open  a  pandora box  and increased  litigation  thereby  allowing members aggrieved by decisions arising out of Party  primaries  to directly  access  the   Tribunal?  Wasn’t parliament   aware  that,   the parties  have  their   internal   dispute  resolution   mechanism   to deal  with  disputes  arising  out  of   party  primaries   hence   the   same  should  not  directly   proceed  to  the  Tribunal  before  exhausting their  internal dispute resolution  mechanism  as  it  is  the  case  with  disputes  under  Section  40 (1)  a, b, c  and e ?  wasn’t  Parliament  aware  that   paragraph  ( fa)  will render  political parties internal  dispute  resolution  futile.

38. Parliament  definitely  wanted  to  remove  disputes  arising  out  of  party primaries from the jurisdiction of the parties’ dispute  resolution  mechanism  to  a  more  independent  body ( tribunal)  given  the  seriousness  of  such  disputes in which the outcome may automatically  in  some  regions  translate  to  one  becoming a  member of  parliament   even  before  the actual elections. 

39. The  answer  to  me  is  simple,  they were  aware and  the introduction of paragraph (fa) was deliberate thus giving  a  member aggrieved by  decisions  arising  out  of  party  primaries  the  option  of  either starting  with  Internal  party  dispute resolution  mechanism, under Section  40 (1) paragraph (a & b) or straight away  go to the  Tribunal  which  is the  position   in  the appellant’s   case,  it  therefore  means,  that  a  party aggrieved  by  the outcome  of  party  primaries  is  not  necessarily  bound  by  the  party  nomination  rules  and regulations  which  require  that  such  aggrieved  party  do appeal  to the   party  national  appeals  tribunal.

40. I  do  not  see  any wrong committed  by the appellant in directly  approaching  the  tribunal  under Section  40 (1)  (fa)  of the Political  Parties  Act. That is  why  that  particular  dispute  is  not included  under  Section 40 (2)  which  distinctly  states  that,   disputes  under  paragraph  a, b, c, and  e  should first be sorted out at  the   level of  Internal  party  disputes  resolution  mechanism.

41. I do not see any  ambiguity   as  between Section  40 (1)  paragraph  a  and b  and  paragraph (fa). Paragraphs a, b, c and e deals with other party disputes except party primaries. Those disputes  that  can go directly to  the  tribunal  are  those covered  by paragraph  (d)  (f)  and ( fa) hence their  exclusion  from Section  40  (2).

42. Although   the appellant  is a life member  of  the   1^st   respondent, any  dispute  between  him  and  the  party  or  co-member  other  than  a  dispute  arising  out  of   primary  disputes   must  first go through  the  party  internal  disputes  resolution  mechanism.  It is therefore not true that the appellant   erred by approaching the Tribunal first as submitted by Professor Ojienda  in respect of the dispute herein.

43. As stated in the case of Speaker of National Assembly and Stephen Asura Ochieng cited by Professor Ojienda, where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be followed.  In this particular case, the procedure is clearly provided for and stipulated in Section 40 (1) (fa) of the Political Parties Act which is a statute hence the tribunal was properly seized of the matter. I believe lady Justice Mumbi Ngugi would have been persuaded to arrive at a different approach in the case of Stephen Asura Ochieng if Paragraph (fa) of Section 40 (1) were in existence.

44. I have painfully agonized as to why parliament thought of introducing paragraph (fa) at this particular point in time thereby watering down the gains made by Article 159 of the Constitution and Section 40 (2) of the Political Parties Act in so far as alternative dispute resolution mechanism is concerned.  Was the amendment mischievously made as it has happened before?  Or was it  an  omission on the  part  of  the  printers in  not  including  paragraph  (fa)  in Section 40(2).   Be that as it may, a party’s fundamental right to a fair hearing under Article 50 and the right to participate in political activities cannot be sacrificed at the altar of convenience, pressure of time in litigation before the tribunal/ courts or lack of sufficient resources and personnel.

46. In my opinion, parliament made a  painful decision which we must adjust to live with until the same parliament takes a bold step to amend  Section 40(1) by either removing  Paragraph (fa) completely or specifically by adding  it to Section 40 (2)  for  the  sake of Article  159 ( 1)  ( c ) of  the  constitution  thereby  promoting  alternative  dispute resolution  mechanism.

46. A court can therefore not be a partaker of parliament’s mistakes in otherwise giving a different interpretation other than pronouncing the clear   wording and language of their legislation.

47. For those reasons, I am satisfied that the appellant has sufficiently persuaded the court and the appeal is hereby allowed with a declaration that the political parties disputes tribunal has jurisdiction to hear a dispute arising out of party primaries under Section 40 (1) (fa) which the honourable members of the tribunal did not address themselves to, hence misapprehended and misinterpreted Section 40 of the political parties Act. 

48. Accordingly, the appeal herein succeeds and the political parties disputes tribunal’s decision/ruling upholding the 2^nd respondent’s preliminary objection dated 6^th May, 2007 be and is hereby set aside and the file be remitted back to the tribunal to immediately reconstitute a fresh panel to hear and determine the appellant’s/claimant’s claim filed before the tribunal on 4^th May, 2017.  Considering the confusion caused by the introduction of Section 40 (1) (fa), I will order that each party bears its own costs.

DATED AND DELIVERED IN COURT AT NAIROBI THIS 10^TH DAY OF MAY, 2017

J. N. ONYIEGO

JUDGE

In the presence of;

………………….....………Advocate for the Appellant

…………………………Advocate for the Respondent