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Court of AppealDismissedCivil Appeal E350 of 2022· [2022] KECA 912 (KLR)

Munene & another v Muturi & 7 others

Court of Appeal
22 July 2022
ASAsike-MakhandiaAMA.K. MurgorSKS. ole Kantai
3,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that political party disputes filed late or without first using the party's internal process will be thrown out, no matter their merits.

What this practically means

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Executive summary

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This is the Court of Appeal's reasoned judgment, delivered on 22nd July 2022, explaining its peremptory dismissal of 29th June 2022 of an appeal against Sergon, J.'s decision of 6th June 2022 in HCCA No. E348 of 2022. The appellants, officials of the Democratic Party of Kenya, had complained to the Political Parties Disputes Tribunal that the party's entry into a coalition agreement with Kenya Kwanza and the appointment of Justin Muturi as party leader were null and void. The PPDT overruled preliminary objections and allowed the complaints; the High Court on appeal allowed the respondents' appeal, holding the first complaint was filed outside the mandatory 30-day period with no extension application, and the preliminary objection was properly raised at any time. The Court of Appeal, sitting as a second appeal limited to matters of law under Section 41(2) of the Political Parties Act, affirmed the High Court. It held that the statutory 30-day timeline is mandatory, that discretion to extend time cannot be exercised suo moto, that Regulation 8(3) applies only to party primaries, and that a preliminary objection on a point of law may be raised at any stage. On the second complaint, the Court followed Dr. Lilian Gogo, holding the dispute fell under Section 40(1)(b) and was premature for failure to exhaust the party's internal dispute resolution mechanism. The appeal was dismissed with no order as to costs, the dispute being internal party wrangles.

Key legal issues

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01

Whether the PPDT had jurisdiction over a complaint filed outside the 30-day statutory period

Holding

The PPDT lacked jurisdiction; the timelines in the Political Parties Act are mandatory and no extension application was made, so the High Court rightly upheld the preliminary objection.

Reasoning

Section 75(1) of the Political Parties Act requires complaints to be filed within thirty days of the decision complained of. The first complaint arose on 20th February 2022 but was filed on 11th April 2022. The provisions are mandatory; Regulation 8(3) applies only to party primaries; and no application for extension of time appeared on the record. Filing late without seeking extension was a proper candidate for a successful preliminary objection.

p. 6
02

Whether a preliminary objection raised late in the proceedings can be disregarded

Holding

No - a preliminary objection on a point of law may be raised at any time and must be considered and dispensed with first.

Reasoning

Jurisdiction is a fundamental question going to the root of competence and can be raised at any point. The PPDT erred in dismissing the preliminary objection on the ground that it was raised too late; jurisdiction cannot be swept under the carpet as a procedural technicality.

p. 6
03

Whether the second complaint (the pre-election coalition pact) was premature for failure to exhaust the party's IDRM

Holding

Yes - the dispute fell under Section 40(1)(b) and was required to first go through the party's internal dispute resolution mechanism; the PPDT likely lacked jurisdiction despite timely filing.

Reasoning

Following Dr. Lilian Gogo, disputes between a member and a political party must first be subjected to the IDRM under Section 40(2). Where a clear procedure for redress is prescribed by statute, it should be followed. Timely filing does not cure non-exhaustion; the complaint was premature.

p. 7

Legal principles established

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  • A preliminary objection is an issue of law which can be raised at any time of the proceedings and must be considered and dispensed with first by any court or tribunal.
  • The 30-day timeline for filing complaints with the PPDT under the Political Parties Act is mandatory and discretion to extend time cannot be exercised suo moto.
  • Where an internal political party dispute resolution mechanism exists, it must be exhausted before the jurisdiction of the PPDT or courts is invoked.
  • Article 159 of the Constitution cannot be invoked to confer jurisdiction where none exists.

Court orders

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  1. 1.Appeal dismissed (peremptorily on 29th June 2022, reasons delivered 22nd July 2022)
  2. 2.No order as to costs

Authorities

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Legislation

  • Political Parties Act, 2011Section 40(1)
  • Political Parties Act, 2011Section 40(2)
  • Political Parties Act, 2011Section 41(2)
  • Political Parties Act, 2011Section 75(1)
  • Political Parties Act, 2011Section 7(1)
  • Political Parties Act, 2011Section 9
  • Political Parties Act, 2011Section 13(2A)
  • Political Parties Act, 20112nd Schedule, paragraph 23
  • Political Parties Disputes Regulations, 2017Regulation 7(1)
  • Political Parties Disputes Regulations, 2017Regulation 8(3)
  • Elections Act, No. 24 of 2011Section 13(2A)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticles 47 and 50
  • Constitution of the Democratic Party of KenyaArticle 28(b) & (c)
  • Constitution of the Democratic Party of KenyaArticle 38
  • Constitution of the Democratic Party of KenyaArticle 10
  • Court of Appeal RulesRule 34(7)
  • Court of Appeal RulesRule 87(1)

Cases cited (6)

  • Lillian S v Caltex Kenya Limited
    [1989] KLR 1

    Landmark authority on jurisdiction: jurisdiction is everything; a question of jurisdiction must be decided forthwith on the material before it.

  • Samuel Mathenge Ndiritu v Martha Wangare Wanjira & Another
    [2017] eKLR

    Relied on by appellants: without a complete record of appeal, the appeal becomes incompetent and ought to be struck out.

  • Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    Civil Appl. No. 2 of 2011 (UR)

    Relied on by respondents: even where a tribunal has discretion, it must be exercised judiciously.

  • Dr. Lilian Gogo v Joseph M. Nyamuthe & 4 Others
    Nairobi Civil Appeal No. 135 of 2017

    Disputes under Section 40(1)(a),(b),(c),(e) must first be subjected to the internal political party dispute resolution mechanism.

  • Speaker of the National Assembly v Hon. James Njenga Karume
    Civil Application No. 92 of 1992 [2008] 1 KLR 425

    Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be followed.

  • Kimani Wanyoike Vs. Electoral Commission & Another
    [1995] eKLR

    Cited alongside Karume for the proposition that prescribed procedures for redress should be followed.

On appeal from
High Court of Kenya at Nairobi
HCCA No. E348 of 2022
Jurisdiction invoked
Section 41(2) of the Political Parties Act, 2011 (second appeal on points of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Munene & another v Muturi & 7 others", Case Analysis (2022). Civil Appeal E350 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/912/eng@2022-07-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.