1.The Petition in this matter arose from the Petitioner’s discovery that he was a registered member of the United Democratic Alliance, the 3rd Respondent in these proceedings.
2.The Petitioner vehemently denied any membership to any political party since he was in the process of registering his own political party and is aware that one cannot belong to more than one political party.
3.Upon the realization, the Petitioner lodged complaints with the 2nd, 3rd, 4th, 5th, 6th and 9th Respondents. According to the Petitioner, none of the complaints has so far been conclusively dealt with, hence, the current proceedings.
4.None of the Respondents participated in this matter.
5.The Petitioner made submissions in requesting the Court to grant the conservatory orders sought in the Notice of Motion dated 9th May, 2022. The conservatory orders aim at barring the 1st Respondent from receiving, processing and clearing of any candidate for any electoral seats arising from nominations conducted by political parties for purposes of the general election scheduled for the 9th August, 2022.
6.Given that the Petitioner made several complaints over the allegedly unconsented registration to the 3rd Respondent and that such complaints are still pending, suffice to look at whether this Court has jurisdiction over the issues raised in the Petition.
9.Returning to the matter at hand, there is no doubt that the dispute relates to the elections scheduled for 9th August, 2022. It is, therefore, a pre-election dispute.
10.I will now look at how the Constitution and the law provides for pre-election disputes.
11.Article 82(1) of the Constitution provides as follows: -Parliament shall enact legislation to provide for-(a)the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;(b)the nomination of candidates;(c)the continuous registration of citizens as voters;(d)the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and(e)the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.
12.In Article 88, the Constitution established the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the 1st Respondent’, ‘the IEBC’ or ‘the Commission’). It provides as follows: -
13.Section 74 of the Elections Act further provides for the settlement of disputes as follows: -
15.There is also Section 40 of the Political Parties Act, No. 11 of 2011 which provides for the jurisdiction of the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’). The Tribunal is established under Section 39 of the said Act.
16.The jurisdiction of the Tribunal is provided as follows: -
17.The Constitution and the law, therefore, primarily creates two avenues for settlement of pre-election disputes since any dispute arising out of the declaration of the results of an election is a preserve of the Courts.
19.It is settled in law that whenever the Constitution and/or the law provides for an avenue for dispute resolution, such must be strictly adhered to. In this matter, I will ascertain whether it is the Commission, the Tribunal or this Court which has jurisdiction over the subject dispute.
20.However, before doing so, I will attempt a brief look at the doctrine of exhaustion of remedies.
21.The doctrine of exhaustion in Kenya traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -
22.Clause 3 is on traditional dispute resolution mechanisms.
24.The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
26.Further, in Civil Appeal 158 of 2017, Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another  eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -
27.As pointed out, the matter relates to a pre-election dispute. From the above discussion, it is the position that the Commission and the Tribunal have specific and well demarcated functions.
28.The dispute is multi-faceted. The Petitioner has unresolved complaints against the 2nd, 3rd, 4th, 5th and 9th Respondents.
29.Section 40 of the Political Parties Act gives the Tribunal jurisdiction over disputes between the members of a political party, disputes between a member of a political party and the political party, disputes between political parties, disputes between an independent candidate and a political party, disputes between coalition partners, appeals from decisions of the Registrar and disputes arising out of party nominations.
30.Deriving from the law and as matters stand, the Petitioner’s complaint against the 2nd Respondent is a preserve of the Tribunal. I say so because the 2nd Respondent has since failed or refused to determine the complaint before it. According to Section 2 of the Fair Administrative Actions Act, No. 4 of 2015 "failure", in relation to the taking of a decision, includes a refusal to take the decision.
31.The failure on the part of the 2nd Respondent to make a decision on the Petitioner’s complaint is, therefore, a decision of the 2nd Respondent which is appealable to the Tribunal under Section 40 of the Political Parties Act.
32.The Petitioner’s dispute against the 3rd Respondent is a dispute between a political party and a member of the party. That is also a preserve of the Tribunal.
33.The Constitution and the law also creates a criminal justice system with the mandate over the complaints against the rest of the Respondents.
34.It is, therefore, the position in law that the Petitioner’s dispute is prematurely before this Court. It is the Tribunal and the other law enforcement agents who have initial mandates over the pre-election disputes.
35.In such a scenario, until and unless the Petitioner is able to demonstrate that any of the exceptions to the doctrine of exhaustion is applicable in this matter, the doctrine becomes a complete bar to the jurisdiction of this Court.
36.The Petitioner has not demonstrated how the exceptions to the doctrine of exhaustion apply in this matter. The pleadings and dispositions on record are silent on the aspect.
37.In such a scenario, the jurisdiction of the Court is improperly invoked and this Court must decline to entertain the matter.
38.Having said so, the following final orders do hereby issue: -a.This Court lacks jurisdiction to deal with the dispute in this matter on account of the doctrine of exhaustion.b.The Petition and the Notice of Motion dated 9th May, 2022 are hereby struck out.c.The Court file is hereby marked as closed.