UNIVERSITY OF NAIROBI

SCHOOL OF LAW
ADMINISTRATIVE LAW II

POLITICAL PARTIES
DISPUTE TRIBUNAL
GROUP FIVE

COURSE FACILITATOR: MS.KOKI MBULU

GROUP FIVE MEMBERS

1. OLUNGA BRIAN OSUNDWA
2. OMALLA TRACY JOAN
3. SIMIYU WANYONYI ANTHONY
4. NTINYARI VIVIAN
5. NGETICH EVANS KIPROTICH
6. ODHIAMBO BENARD OCHIENG
7. WAGURA HELLEN NYAWIRA
8. KABURU SHEILA KAGWIRIA
9. THUKU JOSEPH KARURI
10.ODHIAMBO NADIA OWINO

G34/2714/2011
G34/2856/2011
G34/2794/2011
G34/2806/2011
G34/2756/2011
G34/2767/2011
G34/2730/2011
G34/2743/2011
G34/2698/2011
G34/2780/2011

THE POLITICAL PARTIES DISPUTE TRIBUNAL

Article 92 of the constitution of Kenya 2010 provides that Parliament shall enact legislation to provide
for matters to do with Political Parties including regulation; roles and functions; registration and
supervision; establishment and management; accounts and audit. Pursuant to this Article, The Political
Parties Act 2011 was enacted.
Establishment of the Tribunal
The Political Parties Dispute Tribunal was first established under the Political Parties Act 2007, Part III (s
5-11).
The Tribunal is now established under Section 39 of the Political Parties Act 2011.
Rationale for establishment
Effective dispute resolution mechanism is at the heart of credible, free and fair elections in the electoral
cycle. Traditionally, the tendency was to judicially settle political party disputes. With the limited
capacity of the High Court and the new devolved system of governance however, there developed a
need to come up with a way to deal effectively with political party disputes in order to avoid subsequent
litigation through election petitions.
This informed the formation of the Political Parties Dispute Tribunal. This system specially established
for political parties and candidates hopes to reduce the number of political disputes that end up in the
High Court.
The Tribunal is also meant to ensure speedy resolution of political party disputes and hence reduce the
backlog of such cases in courts. S. 41 (1) of the Political Parties Act mandates the Tribunal to settle
matters before it expeditiously and in any case within 3 months.
The Tribunal which is established as a specialized mechanism for political party dispute resolution
comprises individuals who specialize on political and electoral disputes, and whose only mandate and
focus are political disputes. The Tribunal is thus a body with unparalleled expertise to effectively deal
with political party disputes.
Composition
The composition of the Tribunal is set out in section 39 (2) of the said Act. The members are to be
appointed by the Judicial Service Commission based on the following qualifications:
a) A chairperson who shall be a person qualified to be appointed a judge of the High Court.

These qualifications are laid out as1 :

At least ten years experience as a superior court judge or professionally qualified

magistrate; or

At least ten years experience as a distinguished academic or legal practitioner or such

experience in other relevant legal field; or

Held the qualifications specified above for a period amounting, in aggregate, to ten
years.

b) Four other members one of whom shall be an advocate of the High Court of Five years standing.
The members are to be sworn in on oath as provided for in the fourth schedule of The Political Parties
Act.
The current members of the Tribunal are:
1. Peter Simani Chairman
2. Chacha Odera
3. Esther Mbale
4. Rev. Jesea Mutura
5. Amalema James.
These members are to serve on a part time basis and shall hold office for a non-renewable term of six
years. The Tribunal shall be said to be at a quorum when three members, one of whom must be an
advocate, are present2.
A person shall be disqualified to be appointed as a member of the Tribunal if that person is a member of
the public service or takes an active part in the activities of a political party. They shall also be
disqualified if they have not met the requirements set out in Chapter Six of the Constitution which
provides for leadership and integrity.3
For the proper functioning of the Tribunal, it is necessary that the Secretary and other staff members to
be appointed. S. 43 of The Political Parties Act makes provision for the Judicial Service Commission to do
so.

Constitution of Kenya, 2010, Article 166 (5).

Subsections (3), (4) and (7) respectively, Section 39 of the Political Parties Act 2011.
3
Subsections (5) and (6), Section 39, Political Parties Act 2011.
2

Removal
Removal of a member from the Tribunal shall be done by the Judicial Service Commission on the
following grounds; if the member4:(a) becomes an undischarged bankrupt;
(b) is convicted of a criminal offence;
(c) is incapacitated by reason of prolonged physical or mental illness from performing the duties of
the office;
(d) violates the Constitution; or
(e) is otherwise unable or unfit to discharge the functions of the office.
Jurisdiction
The jurisdiction of the Political Parties Dispute Tribunal is expressly provided for in section 40 (1) of the
Political Parties Act 2011 as follows:
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 Act5.
There are however limitations to this jurisdiction.

The Political Parties Act 2011, S. 42.

The functions of the Registrar are outlined in Section 34 of the Political Parties Act. Part (b) that empowers the
Registrar to administer the Political Parties Fund was the subject in issue in the NARC Kenya case on PNU affiliate
funding of 2012 where they were demanding for more funds to be allocated to the party by the Registrar. The
Tribunal ruled that the Registrar should ascertain the correct figure to be allocated.
5

Section 40(2) provides that 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.
It is mandatory for all parties to outline their internal dispute resolution mechanism by dint of section 23
of the Second Schedule of the Political Parties Act. These mechanisms are meant to make dispute
resolution an in house matter as much as possible before seeking assistance from external sources.
This means that, as per the provision, where matters are internal to a political party, the Tribunals
jurisdiction only crystallizes once the party invoking the said jurisdiction can show that he/she has
exhausted all internal dispute resolution mechanisms6.
However there may be cases where political parties have failed to activate the existent party
mechanisms of electoral dispute resolution.
In such instances traditionally, since the High Court is vested with unlimited original jurisdiction in
criminal and civil matters by virtue of Article 1657, aggrieved persons thought they could bypass the
Tribunal.
In addressing this issue, Ngugi LJ in Stephen Asura Ochieng & 2 others v. Orange Democratic Movement
Party & 2 others8;
The question that arises is this: can it be properly argued that a dispute cannot be referred for
determination to the Political Parties Tribunal because the political party has failed or refused to
activate the internal party dispute resolution mechanism, thus leaving an aggrieved party with no option
but to turn to the High Court for redress? I think not. To hold otherwise would mean that parties could,
by failing to resolve disputes internally, frustrate the operations of the Tribunal and render it totally
redundant.
The issues in dispute between the petitioners and the respondents fell either under s. 40 (1) (a) or (1) (b)
of the Political Parties Act.
As members of the Orange Democratic Movement Party, the petitioners were entitled to participate in
the elections of the party. If there was a disagreement on who is a member and therefore entitled to
vote in the grassroots elections or where the elections should have been held, that was a matter that
could be and ought to have been settled through the internal party machinery.

The Judiciary Working Committee on Election Preparations; Pre-election dispute management: Between Judiciary
and Administrative Dispute Management Mechanisms; September, 2012; KLR Journal.
7
Constitution of Kenya 2010 .
8
Const. Petition No. 288 of 2011.

The court in this case ordered the party to activate its dispute resolution mechanism within seven days
failure of which the petitioners were at liberty to approach the Political Parties Disputes Tribunal.
In a ruling dated January 2012, the court in George Okode & 5 others v The Orange Democratic
Movement & Another,9 upheld the decision in Stephen Asura Ochieng & 2 others v. Orange Democratic
Movement Party & 2 others.
Resolution of disputes
Section 41 of the Political Parties Act provides for how disputes are to be resolved by the Tribunal. The
provisions are as follows:
1. The Tribunal shall determine any dispute before it expeditiously, but in any case shall determine
a dispute within a period of three months from the date the dispute is lodged.
2. An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts
and on points of law to both the Court of Appeal and the Supreme Court. 10
3. A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates
Court.
4. The Tribunal shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80)
and the Civil Procedure Act (Cap. 21), with the necessary modifications11, while ensuring that its
proceedings do not give undue regard to procedural technicalities.
Expenses of the Tribunal
The Political Parties Act provides for the expenses of the Tribunal in section 44 as follows:
(1)

The remuneration of the staff of the Tribunal and the expenses of the Tribunal shall be
paid out of monies allocated by the National Assembly to the Judiciary Fund.

(2)

The Chairperson and members of the Tribunal shall be paid such allowances and be
reimbursed such expenses as shall be determined by the Judicial Service Commission on
the recommendation of the Salaries and Remuneration Commission.

(3)

Pending the establishment of the Salaries and Remuneration Commission, the

Chairperson and members of the Tribunal shall be paid such allowances and be

Const. Petition No. 294 of 2011.

Contrast with section 7 (2) of the repealed Political Parties Act 2007 which provides that the decision of the
Tribunal shall be final.
11
The repealed Political Parties Act 2007 provided for the Chief Justice to make rules to regulate the procedure of
the Tribunal.
10

reimbursed such expenses as shall be determined by the Judicial Service Commission in

consultation with Treasury.
It is important to note that the Salaries and Remuneration Commission has now been
established.
Notable differences in the provisions for the Tribunal in the 2007 and 2011 Political Parties Acts

Appointment
In Section 5(2) of the 2007 Act, the Chief Justice had the mandate of appointing members of the
Tribunal subject to approval by Parliament whereas in Section 39 (2) of the 2011 Act, the
members are to be appointed by the Judicial Service Commission.

Number of members
The 2007 Act provides in Section 5(2) (b) for 3 members (the chairman and two other members)
whereas Section 39 (2) of the 2011 Act provides for the chairman and four other members.
Provision for a quorum of 3 members one of them being an advocate is also made in the 2011
Act.12

Tenure
Section 5(4) of the 2007 Act provided that the tenure of the members shall be a term of 5 years
and thereafter one is still eligible for appointment for a further term of 5 years whereas the
2011 Act in Section 39 (4) provides for a non-renewable term of 6 years.

Removal of a member
In the 2007 Act the removal of a member of the Tribunal was by the Chief Justice (Section 9)
whereas in the 2011 Act the removal of a member of the Tribunal is by the Judicial Service
Commission (Section 42).

Jurisdiction
The 2007 Act provides in Section 6 that the jurisdiction of the Tribunal is to determine disputes
between members of a political party; disputes between political parties forming a coalition;
and determination of appeals from decisions of the Registrar under the act.

12

Political Parties Act Section 39 (7) .

The 2011 Act in Section 40 on the other hand extends this to determining disputes between a
member of a political party and a party; and disputes between an independent candidate and a
political party.
It also provides that the Tribunal shall not hear or determine disputes between members of a
political party; between a member of a political party and a party; between political parties; or
between coalition partners unless the dispute has first been heard and determined by the
internal political party dispute resolution mechanism.

Rules of procedure
Section 8 of the 2007 Act gave the Chief Justice the mandate to make rules that would regulate
the procedure of the Tribunal whereas Section 41 (4) of the 2011 Act provides that the Tribunal
shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80) and the Civil
Procedure Act (Cap. 21), with the necessary modifications, while ensuring that its proceedings
do not give undue regard to procedural technicalities.

Appeals
The 2007 Act in Section 7(2) stated that the decision of the Tribunal was final whereas the 2011
Act in Section 41(2) provides for appeals to the High Court on matters of fact and matters of law
and to the Court of Appeal and Supreme Court on matters of law.

The Secretary to the Tribunal

In the 2007 Act (Section 10) the Attorney General was to designate an officer to be the Secretary
while in the 2011 Act (Section 43), the Secretary and other staff are appointed by the Judicial
Service Commission.

Expenses
In Section 11 of the 2007 Act, the allowances and reimbursements were to be determined by
the Chief Justice while in Section 44 of the 2011 Act these expenses are to be determined by the
Judicial Service Commission on the recommendation of the Salaries and Remuneration
Commission.
The same sections respectively provide that all expenses of the Tribunal, including the
allowances of the members were to be paid by the Government in the 2007 Act, whereas in the
2011 Act, the remuneration of the staff of the Tribunal and the expenses of the Tribunal are to
be paid out of monies allocated by the National Assembly to the Judiciary Fund.

The Political Parties Act 2011 repealed the 2007 Act and it is generally agreed that it cured some
fundamental flaws in the previous Act as illustrated.
Challenges
Since its conception, the Political Parties Disputes Tribunal has suffered a myriad of issues that have
resulted in its disability to operate effectively and even its suspension in the year 2012.
1. Ousting of its jurisdiction
Traditionally, parties have preferred to rush to court, bypassing the Political Parties Dispute
Tribunal.
However, The Judiciary Working Committee on Election Preparations (JWCEP) advised against
this and the Judiciary has since issued rulings directing such parties to exhaust internal party
dispute settlement mechanisms and the Tribunal before coming to court.
Probably an indication of an emerging trend, the recent dispute between the United Democratic
Forum (UDF), The National Alliance (TNA) and the United Republican Party (URP) over the
implementation of their pre-election coalition agreement was arbitrated by the Registrar of
Political Parties (though unsuccessfully) instead of being taken straight to the courts.13
2. Inadequate funding
The Tribunal has consistently been hampered in its operations by lack of sufficient funds.
In 2012, the chairman, Mr. Peter Simani wrote to the judiciary informing them that the
commission was cash strapped and was thus unable to perform its functions14.
3. Inadequate staff
In the same letter, Mr. Peter Simani highlighted that the Tribunal lacked adequate staff for
carrying out its functions effectively. He said that they had two young lawyers working for the
Tribunal on a pro bono basis and it was embarrassing to keep calling them for assistance while
they were not even salaried under the Tribunal.
4. Undermining of the Tribunal

13

The Kenya National Dialogue And Reconciliation (KNDR), Monitoring Project, Kenyas 2013 General Election, A

Review Of Preparedness, February 2013 Report

14

th

Muriithi Francis, Parties Dispute Tribunal Suspended. The Star,10 December 2012.

10

It is clear that the Tribunal has been undermined and not been accorded the respect it deserves.
This is especially evident in the constant displacement of the Tribunal from its operational
offices. The Tribunal was first displaced from its offices at Anniversary Towers, 21st Floor by the
Independent Electoral and Boundaries Commission. It was further displaced from the space
allocated to it in the Milimani Commercial Courts by magistrates. The Tribunal is however
currently located at room 243 in the Milimani Commercial Courts.
Conclusion
Despite the challenges that the Tribunal has faced, it is slowly gaining its footing. It is hoped that over
time it will establish itself as a specialized political dispute resolution mechanism that political party
members have confidence and trust in.

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Oath of Office/ Solemn Affirmation of

Chairperson and Members of the Political Parties Disputes Tribunal
I, .... having been
appointed as . do solemnly (swear/declare and
affirm) that I will at all times obey, respect and uphold the Constitution of Kenya
and all other laws of the Republic of Kenya, and that I will faithfully and fully,
impartially and to the best of my ability, discharge the trust and perform the
functions and exercise the powers devolving upon me by virtue of this
appointment without fear, favour, bias, affection, ill-will or prejudice.
(So help me God).
Sworn/declared by the said .
Before me this . day of ...
Chief Justice

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