Kizito v Orange Democratic Movement Party & 4 others (Complaint E009 (KSM) of 2023) [2023] KEPPDT 1262 (KLR) (23 November 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1262 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E009 (KSM) of 2023

W Mutubwa, Vice Chair, T. Chepkwony & G. Gathu, Members

November 23, 2023

Between

Hon. Regina Atieno Kizito

Complainant

and

The Orange Democratic Movement Party

1^st Respondent

The Office of the Registrar of Political Parties

2^nd Respondent

The Speaker, Kisumu County Assembly

3^rd Respondent

The County Assembly of Kisumu

4^th Respondent

The Independent Electoral and Boundaries Commission

5^th Respondent

Judgment

Description

1.The Complainant is a Member of the County Assembly of Kisumu nominated by the 1^st Respondent under the provisions of the Elections Act, 2012 and Article 177 of the Constitution of Kenya, 2010.

2.The 1^st Respondent is a registered Political Party in Kenya which is subject to the provisions of Article 91 of the Constitution of Kenya, 2010.

3.The 2^nd Respondent is the Registrar of Political Parties whose office is established under Section 33 of the Political Parties Act.

4.The 3^rd Respondent is the Speaker of the County Assembly of Kisumu, elected as such under the provisions of Article 106(1)(a) of the Constitution of Kenya, 2010.

5.The 4^th Respondent is the County Assembly of Kisumu, a State Organ established under the provisions of Articles 176 and 177 of the Constitution of Kenya, 2010.

6.The 5^th Respondent is the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution of Kenya.

Procedural History.

7.The Complainant herein, filed a Notice of Motion Application under Certificate of Urgency dated 11^th September 2023 in which she sought the following Orders:a.Thatthis Application be certified urgent and be heard ex-parte in the first instance.b.Thatpending the hearing and determination of this Application inter-partes, a Conservatory Order be and is hereby issued staying the decision made on 6^th September 2023 by the 1^st Respondent’s National Executive Committee and communicated to the 3^rd and 4^th Respondents on 7^th September 2023 recalling and or revoking the nomination of the Complainant/ Application as member of the 4^th Respondent.c.Thatpending the hearing and determination of this Application inter-parties, a Conservatory Order be and is hereby issued restraining the Respondents either by themselves, their servants, agents, employees, organs, or any person or entity acting on their behalf or authority from expelling, removing and or suspending or commencing the process of expelling, removing, suspending and or replacing the Complainant/Applicant as a member of the 1^st and 4^th Respondents respectively.d.Thatpending the hearing and determination of this Application, a Conservatory Order be and is hereby issued by way of injunction restraining the Respondents either by themselves, their servants, agents, employees, organs or any person, organ or entity acting on their behalf or authority from implementing, executing, and or ratifying the decisions and/or resolutions of the 1^st Respondent dated 06/09/2023 and 07/09/2023 revoking and or recalling the nomination of the Complainant/Applicant as a member of the 4^th Respondent or in any way interfering with the membership, emoluments, benefits, privileges, and or duties of the Complainant/Applicant as a member of the 4^th Respondent.e.Thatpending the hearing and determination of this Complaint, a Conservatory Order be and is hereby issued staying the decision made on 6^th September 2023 by the 1^st Respondent’s National Executive Committee, and communicated to the 3^rd and 4^th Respondents on 7^th September 2023 recalling and or revoking the nomination of the Complainant/Applicant as a member of the 4^th Respondent.f.Thatpending the hearing and determination of this Complaint, a Conservatory Order be and is hereby issued restraining the Respondents either by themselves, their servants, agents, employees, organs, or any person or entity acting on their behalf or authority from expelling, removing and or suspending or commencing the process of expelling, removing, suspending and or replacing the Complainant/ Applicant as a member of the 1^st and 4^th Respondents respectively.g.Thatpending the hearing and determination of this Complaint, a Conservatory Order be and is hereby issued by way of injunction restraining the Respondents herein, their servants, agents, employees, and or any person acting on their behalf or authority from implementing, executing, and or ratifying the decisions and/or resolutions of the 1^st Respondent dated 06/09/2023 and 07/09/2023 revoking and or recalling the nomination of the Compliant/Applicant as a member of the 4^th Respondent or in any way interfering with the membership, emoluments, benefits, privileges, and or duties of the Complainant/Applicant accruing thereof as a member of 4^th Respondent.h.Thatthis Honourable Tribunal be pleased to issue any or further Order it may deem fit to grant to meet the end of justice.i.Thatthe Costs of this Application be borne by the Respondents.

8.The said Application was filed alongside the Complaint also dated 11^th September 2023 in which the Complainant sought the following reliefs:a.A declaration that the Disciplinary proceedings by the 1^st Respondent against the Complaint are unlawful and unconstitutional hence illegal and invalid.b.A declaration that the decision of the 1^st Respondent’s disciplinary committee issued against the Complainant presented and adopted by the 1^st Respondent’s National Executive Committee on 6^th September 2023 or thereof is illegal and invalid and is hereby set aside.c.A declaration that the Complainant did not breach the 1^st Respondent’s Constitution or Code of Conduct and/or violated the provisions of Section 14 of the Political Parties Act at all.d.A declaration that the recommendation by the 1^st Respondent’s National Executive Committee made on 6^th September 2023 to revoke the nomination of the Complainant as a member of the 4^th Respondent is illegal, invalid, and of no effect.e.An Order quashing the 1^st Respondent’s letter dated 7^th September 2023 issued to the 3^rd Respondent.f.An Order quashing the 3^rd Respondent’s letter dated 7^th September 2023 and the communication issued on the said date to the 4^th Respondent suspending the Complainant from the 4^th Respondent assembly.g.An Order of permanent injunction restraining the 2^nd Respondents by themselves, their agents, servant, and or person acting on its behalf or authority from suspending and or removing the name of the Complainant from the 1^st Respondent party’s members register or in any way or manner removing, terminating or replacing or interfering with the Complainant as a member of the 4^th Respondent.h.A declaration that the Complainant shall remain a member of the 4^th Respondent Assembly and is entitled to all the privileges, powers, emoluments, and benefits accruing to her office as a member of the 4^th Respondent Assembly.i.Costs and interest thereof.j.Such other orders and reliefs as the Tribunal shall deem fit and expedient to grant in the interest of justice.

9.The said Application was heard by Hon. Wilfred Mutubwa on 25^th September, 2023 who issued the following interim orders:a.By consent, the Application is compromised by extension of interim orders issued until the determination of the matter.b.The 1^st Respondent has 7 days from today to file and serve its response to the Complaint.c.The Complainant has 14 days from the date of service by the 1^st Respondent to file and serve its Supplementary Affidavits and written submissions.d.The Respondents have 14 days thereafter to file and serve their written submissions.e.The matter will proceed on 30^th October, 20223 at noon for highlighting of written submissions.f.The question of the constitution of the whole bench to hear the matter will be communicated to the parties after consultation with the Tribunal Chairperson and members.

Complainant’s Submissions

10.The Complainant filed written submissions dated 16^th October 2023 on 18^th October 2023.

11.Therein, the Complainant began her address by giving a summary of the facts leading up to the filing of the Complaint, a summary of her case as gleaned from the Pleadings filed, as well as a summary of the Respondent’s case.

10.Based on the summary provided, the Complainant isolated the following issues as falling for determination by the Tribunal:a.Whether the 1^st, 3^rd, and 4^th Respondents’ Preliminary Objections can be sustained;b.Whether the Disciplinary Proceedings against the Complainant were legal;c.Whether the recommendation to revoke the Complainant’s nomination as a member of the Kisumu County Assembly is legal and sustainable;d.Whether the Complainant is entitled to the reliefs sought as against the Respondents; ande.Who should pay the costs of this Complaint?

A. Whether the 1^st, 3^rd, and 4^th Respondents’ Preliminary Objections can be sustained.

13.The Complainant submitted that the 1^st, 3^rd, and 4^th Respondents’ Preliminary Objections are all moot and misconceived both in law and fact as they do not meet the cardinal test set in the classical case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969]. The Complainant stated that in this case, the court defined a Preliminary Objection as one that consists purely of a point of law that has been specifically or impliedly pleaded, which, if argued as a preliminary point, may dispose of the suit. The Complainant also emphasized the court’s holding that a preliminary objection ought to be argued based on facts, and cannot be raised if any fact is yet to be ascertained, or if what is sought is the exercise of judicial discretion.

14.In response to the 1^st Respondent’s Preliminary Objection arguing that the Complaint is fatally defective on account of joinder of the 2^nd Respondent as a Party, the Complainant cited Order 1 Rule 9 of the Civil Procedure Rules, which provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. The Complainant also pointed out that Section 41(3) of the Political Parties Act and Regulation 39 of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 permits the use of the Civil Procedure Rules 2010 by this Tribunal.

15.The Complainant relied on Maureen Onsongo v EOH Limited and EOH/Copy Cat Limited Company [2021] wherein the court stated that misjoinder or non-joinder of parties cannot be grounds to defeat a suit. In the same vein, the Complainant stated that the 2^nd Respondent has not objected to being a party to these proceedings, and on this basis, the Complainant concluded that the 1^st Respondent’s objection was gratuitous and unnecessary.

16.The Complainant proceeded to respond to the 3^rd and 4^th Respondent’s Preliminary Objection which was based on the ground that the Tribunal lacks jurisdiction to review the 3^rd and 4^th Respondents’ decision against the Complainant.

17.The first limb of argument advanced by the Complainant was that the 3^rd and 4^th Respondents’ objection, being specific to the jurisdiction of the Tribunal over the 3^rd and 4^th Respondent only, could not lead to the disposal of the entire suit (complaint). The Complainant cited Moses Wanjala Lukoya v Bernard Alfred Wekesa Sambu & 3 others where the court held that in line with the Mukisa Biscuits case, a Preliminary Objection not capable of disposing an entire suit cannot be sustained. On this basis, the Complainant prayed that the Tribunal strike out the 3^rd and 4^th Respondent’s Preliminary Objection in limine.

18.Secondly, the Complainant submitted that the Tribunal had jurisdiction to determine the issues raised in the Complaint in so far as they involve the parties and that further, the Tribunal has jurisdiction to issue orders against the 3^rd and 4^th

Respondents as proper and necessary parties to the Complaint.

19.The Complainant cited Order 1, Rule 3 of the Civil Procedure Rules which permits the inclusion of proper and necessary parties in a suit. She relied on the reasoning of the Court in Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] where the Court held as follows:“A party may be joined in a suit, not because there is a cause of action against it, but because the party’s presence is necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. For a person to be enjoined on the ground that his presence in the suit is necessary for the effectual and complete settlement of all questions in the suit, one of two things has to be shown. Either it has to be shown that the orders, which the Plaintiff seeks in the suit, would legally affect the interest of that person, and that it is desirable, for the avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the court in that suit.”

20.Based on the above ratio decidendi, the Claimant stated that the evidence on record shows that the 3^rd and 4^th Respondents are intricately entangled in the issues in dispute between the Complainant and the 1^st Respondent. To demonstrate this, the Complainant pointed out that the decision of the 1^st Respondent was made to revoke the nomination of the Complainant as a member of the 4^th Respondent. The Complainant further stated that vide a letter dated 07/09/2023 the 3^rd and 4^th Respondents suspended her from the Assembly on the directive of the 1^st Respondent. (Refer to paragraph 9 of the Statement of Response dated 01/09/2023)

21.The Complainant submitted that the 3^rd and 4^th Respondents implemented the impugned decision of the 1^st Respondent and accordingly, by their actions, brought themselves within the jurisdiction of the Tribunal under Section 40 of the Political Parties Act. As such the orders sought would directly affect the interests of the 3^rd and 4^th Respondent.

22.In conclusion, the Complainant submitted that the Tribunal has jurisdiction to determine and issue orders against the 3^rd and 4^th Respondents, and consequently, the 3^rd and 4^th Respondents’ Preliminary Objection ought to be dismissed as being unfounded and unmerited.

B. Whether the disciplinary proceedings instigated against the complainant were Illegal.

23.The Complainant submitted that the entire disciplinary process was a façade orchestrated to unfairly victimize her. To buttress this submission, the Complainant presented the following arguments:i.The charges were vague

24.The Complainant presented the charges as contained in the Summons dated 10^th July, 2023 which are captured herein below:a.That you refused, declined, neglected, and or failed to attend, without any lawful excuse, a consultative meeting convened by the County Assembly of Kisumu and chaired by the ODM Party Leader.b.That you voted for a candidate other than the Party candidate, for speaker of the County Assembly of Kisumu.

25.Concerning the first charge, the Complainant stated that the same is vague and superfluous as it neither discloses the date of the alleged meeting, nor the venue and agenda of the same. The Complainant also stated that while the charge contends that the meeting was convened by the County Assembly of Kisumu, the charge does not disclose who invited the meeting on behalf of the 4^th Respondent.

26.In further response to the first charge, the Complainant submitted that the 4^th Respondent is a State institution established under Article 177 of the Constitution. She further submitted that the 4^th Respondent is an independent institution and can in no way be seen as an entity, member, or agent of the 1^st Respondent. On this basis, the Complainant argued that the 1^st Respondent cannot sustain a charge against it based on alleged failure to attend a meeting allegedly convened by the 4^th Respondent.

27.In response to the second charge, the Complainant pointed out that the charge neither discloses the candidate she voted for nor does it disclose the 1^st Respondent’s preferred candidate. She also pointed out that the charge does not disclose where and when the voting took place. The Complainant cited Amani National Congress Party v Geoffrey Osotsi & another where the court in setting aside disciplinary proceedings, underscored the clarity of charges as follows: “In the proceedings relating to matters affecting the rights of the parties, it must be unequivocal that no doubt is left as to the clarity of the allegations so that the response required achieves the same standards. In the records presented before the court, the process was clouded as if some cards were not meant to be placed on the table. That obviously worked to the disadvantage of the Respondent.”

28.The Complainant submitted that the charges were unclear and shrouded in mystery and this prevented her from preparing a proper response as required by the rules of fair hearing.

29.The Complainant also pointed out that the 1^st Respondent is now attempting to provide the particulars of the 1^st charge in paragraphs 17(a) and (b) of its Response and urged the Tribunal to ignore the same as they were not contained in theSummons dated 10^th July, 2022.i.The charges were illegal

30.The Complainant submitted that the charges offend her right to vote in any election or referendum by secret ballot as protected by Article 38(3) of the Constitution of Kenya. She stated Clause 6 of the First Schedule of the Elections Act 2011 and Standing Order No. 5(1) of the Kisumu County Assembly Standing Orders both mandate that the election of the Speaker of a County Assembly be done by secret ballot.

31.The Complainant proceeded to provide a detailed definition of the term ‘secret ballot’ which is captured below:‘Secret ballot’ means the expression by ballot, voting machine, or otherwise but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such a choice cannot be identified with the choice expressed.

32.The Complainant relied on Wanja Maina Hannah v Independent Electoral and Boundaries Commission & 2 others [2017] wherein the Court held that the election of a Speaker of the County Assembly constitutes an election under the Elections Act. On this premise, the Complainant submitted that since the law requires that the voting exercise is done in secret, without restrictions, coercion, and supervision; effectively, the ballot cast and the outcome thereof cannot be identified with a particular voter or member of the County Assembly.

33.The Complainant concluded by stating that the 1^st Respondent’s charge purporting to describe how she voted in a secret ballot is incurably defective and an affront to her rights as protected by Article 138 of the Constitution.i.The charges violated the Complainant’s right to immunity

34.The Complainant submitted that the charges were founded upon privileged information that is protected by parliamentary immunity. She stated that as a member of the County Assembly, she is immune from prosecution for acts done during proceedings in the Assembly. She referred the Tribunal to Section 22(1) of the County Assembly Powers & Privileges Act which states as follows:No civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to a county assembly or a committee, by reason of any matter or thing brought by him or her therein by a report, petition, Bill, resolution, motion or other document written to a county assembly.

35.The Complainant also cited the case of Republic v Ethics and Anti-Corruption Commission Ex Parte Nairobi City County Assembly & 13 others [2019] wherein the court stated that proceedings protected under parliamentary immunity in the County Assembly include voting. The holding by the court is as summarised below:“An individual Member takes part in proceedings usually by speech, but also by various recognized forms of formal action, such as voting.”On this basis, the Complainant submitted that how she voted and expressed herself during the voting of the Speaker of Kisumu Assembly is privileged and immune from civil or criminal proceedings, including the Disciplinary proceedings instigated by the 1^st Respondent. She urged the Tribunal to find that the charges levied against her are unconstitutional, unsustainable, and fatally incompetent.i.The Disciplinary proceedings were unprocedural and illegal

36.The Complainant submitted that the entire disciplinary process was a façade grossly violated all known and set principles of fair hearing as envisaged in the ODM Constitution and guaranteed by law.

37.In Support of the above submission, the Complainant advanced the following arguments:a.The Composition of the Disciplinary Committee was illegal

38.The Complainant submitted that the Disciplinary Committee constituted by the 1^st Respondent was composed of and presided over by an unauthorized person. She stated that Section 12 of the Political Parties Act prohibits a public officer from holding a political party office yet Prof. Sihanya, the chairperson of the Disciplinary Committee, is a public officer serving as lecturer at the University of Nairobi.

39.The Complainant invited the Tribunal to take judicial notice of the existence of a Judgement dated 9^th December 2021, ELRC Petition No. E055 of 2020; Prof. Ben Sihanya & Orange Democratic Movement v The Ethics and Anti-Corruption Commission, at page 58 of the 1^st Respondent’s List of Documents. The Complainant explained that the above Petition, originated by Prof. Bernard Sihanya and the 1^st Respondent herein, sought orders to allow Prof. Bernard Sihanya to continue serving as the chairperson of the 1^st Respondent’s Disciplinary Committee while at the same time serving as an employee of the University of Nairobi.

40.The Complainant explained that the court dismissed the Petition and held that Prof. Sihanya was barred from holding a political/public office by dint of Section 12 of the Political Parties Act and Section 23 of the Leadership and Integrity Act.On this basis, the Complainant submitted that the 1^st Respondent's contention that there was no positive order barring Prof. Sihanya from holding the two impugned positions simultaneously is moot, hollow, and a contemptuous abuse of the authority of the court.

41.The Complainant proceeded to cite the case of Justus Kariuki Mate & another v Martin Nyanga Wambora & another [2014] eKLR where the Court stated that the duty to obey the law by all individuals and institutions is cardinal in the maintenance of the rule of law and the administration of justice. The court also held that a party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.

42.The Complainant submitted that in the absence of a court order staying or discharging the findings of the court, the 1^st Respondent cannot find solace in the pending appeal.

43.In response to the 1^st Respondent’s contention that the Complainant knowingly subjected herself and acquiesced to the jurisdiction and composition of the Disciplinary Committee, the Complainant submitted that it is trite that a party cannot consent to an illegal entity or proceedings. The Complainant supported her position by relying on the case of Republic v Nyahururu Division Land Disputes Tribunal & 3 others [2005] where the court held as follows:“It is trite law that parties cannot by their consent or conduct confer jurisdiction upon a Tribunal if no statute grants such jurisdiction. It matters not whether the applicant participated fully in the proceedings before the said tribunal, the fact remains that such proceedings were conducted by bodies which had no jurisdiction.”

44.The Complainant also relied on the Court of Appeal decision in Michael Sitsu Mwaura v Ethics & Anti-Corruption Commission & 4 others [2017] wherein it was upheld that no trial can lawfully be commenced by an illegally and improperly constituted entity.

45.The Complainant concluded by submitting that the Committee was improperly constituted in flagrant violation of Section 12 of the Political Parties Act and willful disobedience and disregard of the judgment of the Court. As such, they ought to be declared a nullity.b.The disciplinary hearing was discriminatory

46.The Complainant submitted that the disciplinary proceedings were biased, discriminatory, and violated her right to a fair hearing. In support of this submission, she stated that it is public knowledge that the 4^th Respondent is composed of 47 County Assembly members, of whom 46 are members of the 1^st Respondent and one who was elected on an independent ticket.

47.The Complainant proceeded to state that as per the Hansard Report dated 20^th September 2022, Mr. Elisha Oraro, the 1^st Respondent’s alleged preferred candidate for the Speaker got only 24 votes while the other 23 members of the Assembly opted to vote for Mr. Ongow as Speaker.

48.The Complainant stated that out of all who voted for Mr. Ongow as the Speaker, she and 3 other colleagues were isolated, prosecuted, and persecuted. On this basis, she submitted that the disciplinary proceedings were openly based on speculative vilification and unjustified bias against herself and the 3 other members. The Complainant relied on the classical case of Isaac Mwaura Maigua v Jubilee Part & 3 others [2021] wherein the court set aside the finding of the Tribunal that the Complainant was not discriminated against and observed as follows:“It is also evident that the appellant was accused of, inter alia, advancing the policies of another political party, namely UDA. The proceedings further indicate that some members of the 1^st Respondent supported the ODM Candidate in the Kibera By-election yet they were not summoned to undergo any disciplinary hearing.With respect, I am persuaded by the Appellants' argument that the 1^st Respondent selectively conducted the disciplinary proceedings against him. The Appellant did not need to tender further evidence to establish discrimination since the evidence of the 1^st Respondent’s S.G. was sufficient to establish the allegation of discrimination.”

49.Based on the above dictum, the Complainant submitted that she and 3 other colleagues were the victims of a deliberate witch hunt and unfair discrimination. On this basis, the Complainant urged the Tribunal to find that the disciplinary proceedings were conducted selectively and in violation of her rights guarding against discrimination.c.The disciplinary hearing was a trial by ambush

50.The Complainant stated that the Disciplinary Committee’s Minutes referenced ODM/DCH/004/2023 and produced by the 1^st Respondent show that she was ambushed with new charges/allegations different from those contained in the summons dated 10^th July 2023.

51.The Complainant stated that following her visit to Dr. Raymond Omollo, who is the current Principal Secretary of the State Department of Internal Security and Coordination of National Government, she was interrogated on her alleged association with the leadership of a regime whose legitimacy was challenged by the 1^st Respondent. She referred the Tribunal to paragraph 17 of the Response to the Complaint and paragraph 14 of the Witness Statement both dated 2^nd October, 2023 wherein the foregoing facts are admitted.

52.The Complainant submitted that the allegation of associating with an illegitimate regime was not contained in the Summons dated 10^th July 2023 and was also not brought to her attention before the hearing. She stated that this allegation was presented to her mid-hearing and she was required to respond. The Complainant cited Isaac Mwaura v Jubilee Party & 3 others wherein the court held as follows: “It is the opinion of this court that the conduct of providing evidence to the appellant at the time of hearing the complaint is outright ambush and put the applicant in a disadvantaged position in that he was at a loss as to how to answer the charges and the accusations leveled against him.It is a cardinal rule of natural justice that the right of a fair hearing can only be exercised, upon a party being granted more time to prepare his evidence to respond and controvert evidence that was produced during the disciplinary hearing.”

53.In conclusion, the Complainant submitted that the new charges were ambushing, conflicting, and confusing to her and that the proceedings violated her right to a fair hearing as guaranteed under Article 47 of the Constitution.d.The disciplinary hearing did not follow due process

54.The Complainant submitted that the disciplinary proceedings were conducted without due regard to the 1^st Respondent’s Constitution and the Disciplinary Committee (Practice and Procedure) Rules, 2022. She specifically referenced Rule 17(3)(a) which provides that the Summons issued by the Disciplinary Committee must be accompanied by the documents listed in Rule 11(2) which are:i.The Decision to Charge ii. The Complaintiii.The Notice to show cause iv. The Response to the Notice to Show Causev.Any other document that the chairperson is of the considered view may assist the committee in determining the complaint.The Complainant stated that apart from the Summons dated 10^th July, 2023 none of the documents listed above accompanied the summons. She further stated that she saw the accompanying documents when the 1^st Respondent filed its Response before the Tribunal.

55.In response to the 1^st Respondent’s contention that it served supporting documents to the Complainant via WhatsApp, she relied on the case of Catherine Chepkemoi Mukeyang v Evanson Lomaduny & another [2022] where the court held as follows:Service using WhatsApp is outside the means recognized by the law, and would, therefore, be bad service. WhatsApp is an instant messaging service, which uses the internet. Its use would therefore raise questions of proof of delivery, acknowledgment of receipt of service, or proof of identity of the intended recipient. Questions of authentication of such service would equally arise. Procedure for service cannot be sacrificed as mere technicalities. Personal service remains the best form of service. Indeed, from the evidence before the court, there is no proof that the Notice in question was served upon the Petitioner together with the annexures/ attachments thereto.Having found that the Respondent herein failed to serve the Petitioner with the evidentiary documents they sought to rely on during the motion, it is crystal clear that requiring her to submit on the same at the hearing of her impeachment was not only unfair but a breach of her fundamental rights and freedoms as envisaged by the Articles 25 (c), 47 (1) & (2), 50 of the Kenyan Constitution and Section 4 of the Fair Administrative Actions Act. Consequently, I find and hold that the Petitioner herein was prejudiced at the hearing of her impeachment motion and as a result, the impeachment proceedings against her were irregular and unprocedural.

56.Based on the above, the Complainant submitted that the 1^st Respondent breached its own procedure when it failed to furnish her with all the requisite documents. She also submitted that she was not provided with sufficient information to enable her to adequately prepare for the disciplinary hearing contrary to the rules of natural justice, thereby vitiating the entire disciplinary proceedings.

57.The Complainant further stated that contrary to Rule 23 of the Disciplinary Committee (Practice and Procedure) Rules 2022 which requires the attendance of the complainant during the hearing, the alleged complainant, Mr. Daniel Lee Kalungo, was not present. The Complainant stated that instead, according to the minutes dated 21^st July 2023, one Mr. Jared Omach, an officer of the 1^st Respondent, was sworn in and gave evidence on behalf of the complainant.

58.The Complainant herein cited Rule 21 of the Disciplinary Committee (Practice and Procedure) Rules, 2022 which provides that a party can only be represented by an Advocate of his or her choice and if not an Advocate, then a friend who is a member of the 1^st Respondent. On this basis, the Complainant herein submitted that the 1^st Respondent’s officer, Mr. Jared Omach, could not represent the complainant, neither could he be sworn in to give evidence on the complainant’s behalf. The Complainant herein thus concluded that there was no proper party or lawful complaint before the Disciplinary Committee.

59.Lastly, the Complainant submitted that the disciplinary proceedings were unprocedural as she was not given the recommendations of the Committee within 30 days of the hearing as mandated by Rules 19(3) and 26(1) of the Disciplinary Committee (Practice and Procedure) Rules, 2022. The Complainant stated that she only learned of the recommendations on 6^th September, 2023 through a Press Statement issued to the public by the 1^st Respondent’s NEC.

60.The Complainant further averred that the 1^st Respondent only communicated to her vide a letter dated 11^th September, 2023 and delivered on 15^th September, 2023 after the Complaint herein was filed and that the recommendations were only released to her in response to her demand letter dated 11^th September 2023. (Complainant’s exhibit marked RK-7 at page 56 of the Bundle of Documents).

61.The Complainant cited Section 4(3)(d) of the Fair Administrative Action Act, 2015 which mandates an administrator to give the person to be affected by administrative action a statement of reasons under Section 6. The Complainant stated that Section 6 of the Act explicitly provides that failure to give reasons shall lead to a presumption that the decision was taken without good reason. She proceeded to quote the Court of Appeal decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] where it was held as follows:“Our decision is fortified by the provisions of Section 6(4) of the Fair Administrative Action Act which stipulates that if reasons are not given, a presumption arises that the decision was taken without good reason. We accordingly find that Legal Notice No. 128 dated 17^th September 2008 is null and void as having been issued when the Minister had not considered the objection that had been lodged by the appellant.”

62.The Complainant submitted that the disciplinary process instigated by the 1^st Respondent did not follow due process, and urged the Tribunal to find the proceedings and recommendations thereof unlawful and invalid for procedural impropriety.e.The recommendation of the Disciplinary Committee lacked merit

63.The Complainant submitted that no evidence was adduced to sustain the illegal charges against her and as such, the decision of the Disciplinary Committee was bad in law.

64.Concerning the first charge, the Complainant stated that according to the record, no evidence was presented to the Disciplinary Committee to prove that there was a meeting. Further, the Complainant added that the notice inviting members for the said meeting was not produced. As such, there was nothing to show that there was a meeting she failed to attend. On this basis, the Complainant submitted that the first charge against her could not be sustained, for lack of evidence.

65.Concerning the Second Charge, notwithstanding its illegality, the Complainant stated that the 1^st Respondent did not produce any communication informing its members to vote for a particular candidate as speaker. Further, she stated that no resolution, letter, or advisory was adduced during the disciplinary hearing to establish that the 1^st Respondent recommended Mr. Elisha Oraro as the candidate for speaker.

66.In response to the 1^st Respondent’s contention that the Complainant admitted to voting for a particular candidate and that she was remorseful for not attending the meeting, she relied on Shinyada v Judicial Service Commission (Petition E106 of 2020) where the court rejected the view that being remorseful is an admission of guilt. In this case, the court held as follows:“It was alleged in the affidavit of the Chief Registrar, in response to the Petition, that the petitioner conceded that mistakes may have been made and that she was ready to learn, during the disciplinary hearing.The remorseful comments on the part of the petitioner, cannot be taken at face value, or lead to the conclusion that she admitted to being incompetent.The court is satisfied that there was no valid reason or reasons, to warrant the dismissal of the petitioner from service by the Respondent.”

67.The Complainant submitted that the Disciplinary Committee fell in grave error by justifying the charges against her as there was no valid evidence adduced. She also pointed out that since the voting of the speaker was by secret ballot as required by law, no evidence could be led or sustained in law to prove that she voted for a particular candidate in the said election.

68.In the upshot, the Complainant submitted that the findings of the Committee were injudicious, unjustified, unreasonable, and had completely departed from the basic principles of law. She urged the Tribunal to quash the decision for lack of merit.d.The recommendations of the Disciplinary Committee were ultra vires and irrational.

69.The Complainant stated that the particular decision of the Disciplinary Committee to revoke her nomination as a member of the County Assembly was outside the mandate of the ODM Constitution and Disciplinary Committee (Practice and Procedure) Rules, 2022. Specifically, the Complainant highlighted Rule 26(4) which outlines the recommendations that the Committee can give. These are captured below:The Committee may make any of the following recommendations:a.Reprimand, censure, and/or sanction;b.Fine;c.Suspension from the Party for a definite period; andd.Expulsion from the Party.

70.Based on the above statutory provision the Complainant submitted that the Committee had no power to recommend the revocation or removal of a member from an elective office, as such, this action was illegal.

71.To support the foregoing position, the Complainant relied on the South African case of AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and another quoted with approval in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] where the court held as follows:“The doctrine of legality requires that power should have a source in law, and is applicable whenever public power is exercised…. Public power…. can be validly exercised only if it is clearly sourced in law.Courts are similarly constrained by the doctrine of legality, i.e. to exercise only those powers bestowed upon them by law and, with it, the doctrine of legality is self-evident.”

72.The Complainant also cited the case of Republic v Fazul Mahamed & 3 other ExParte Okiya Omtata Okoiti [2018] which endorsed the position in the Suchan case.

73.The Complainant stated that the other recommendations consisting of a fine of Kshs. 500,000 and a suspension for 5 years were harsh and disproportional to the charges. She submitted that the discretion of the Committee was exercised capriciously and arbitrarily and relied on Amani National Congress Party v Godfrey Osotsi & Another where the court held as follows:“In the present case, the Appellant is said to have applied the last form of punishment, which is expulsion. There is no evidence that the preceding forms of punishment provided in the party Constitution had been considered. It is difficult to depart from the finding of the PPDT that the Respondent was not accorded a fair hearing in the circumstances.”

74.The Complainant urged the Tribunal to find that the recommended penalties were unconscionable, unwarranted, and unlawful.

75.In concluding this entire issue, the Complainant submitted that she had adduced enough evidence to show that the disciplinary proceedings against her were unjustified, unfair, incompetent, and illegal. On this basis, the Complainant urged the Tribunal to find that the decision of the disciplinary committee was irrational, extraneous, and arbitrary, hence null, void, and unenforceable.

C. Whether the revocation of the complainant’s nomination as a member of the Kisumu County Assembly is legal and sustainable.

76.The Complainant submitted that the 1^st Respondent’s decision to revoke her nomination as a member of the County Assembly of Kisumu has no standing in law and that further, it is unconstitutional and void.

77.The Complainant submitted that she was lawfully nominated and gazzetted by the 5^th Respondent as a member of the 4^th Respondent under Article 177 of the Constitution and Section 34 of the Elections Act. As such, her election can only be impeached by a court of law, through an election petition.

78.The Complainant relied on the case of Jaldesa Tuke Debalo v IEBC & Another wherein the court stated that upon gazettment of members of the county assembly, they are deemed to be elected members of the County Assembly. She also cited the Supreme Court decision in Moses Mwicigi & 14 others v IEBC [2015] wherein the Court stated as follows:“It is clear to us that the Constitution provides for two modes of election. The first is the election in the conventional sense of universal suffrage; the second is the ‘election’ by way of nomination through the party list.The Gazette Notice, in this case, signifies the completion of the election through nomination and finalizes the process constituting the Assembly. It therefore follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of the election petition.”

79.The Complainant submitted that she is a duly elected member of the 4^th Respondent and as such, her nomination cannot be revoked and/or recalled by the 1^st Respondent except through an election petition. She further submitted that the obligations and powers of the 1^st Respondent with regard to her nomination ended with the submission of the Party list to the 5^th Respondent, under Section 34(10) of the Elections Act. She stated that the 1^st Respondent, therefore, acted outside its mandate in purporting to revoke her nomination. At this point, the Complainant prayed that the Tribunal finds that the action of the 1^st Respondent was ultra-vires and unlawful, hence null and void.

80.The Complainant further submitted that in the context of the impugned disciplinary proceedings, she could only cease and be replaced as a member of the County Assembly if she was validly and legally expelled from the 1^st Respondent’s Party. She then posited that there was no valid decision or resolution to expel the her from the 1^st Respondent’s Party and that the same was expressly admitted in paragraph 49 of the 1^st Respondent’s Response to the Complaint dated 02/10/2023.

81.The Complainant quoted Regulation 56A of the Elections (General) Regulations 2017 which outlines the prerequisite conditions that a party must fulfill before expelling a nominated member of the County Assembly. She also quoted Section 17 of the Political Parties Act which clarifies that expulsion of a member of a political party can only be effected after the member has been accorded a fair hearing by the internal party dispute resolution mechanism as prescribed by the Party’s Constitution.

82.The Complainant, further, quoted Article 75(6) of the ODM Constitution which provides that the decision to either suspend or expel a member of the party must be ratified by the National Governing Council. Thereafter, she quoted Article 12(1)(b) which further provides that a member of a party shall cease to be such a member by a resolution passed by the National Executive Council and ratified by the National Governing Council.

83.The Complainant submitted that any decision to remove and/or replace her can only be effected following her lawful expulsion from the 1^st Respondent’s Party, which expulsion must be sanctioned through a fair and lawful internal procedure and ratified by the National Governance Council. At this point, she cited Amani National Congress Party v Godfrey Osotsi & Another [2021] wherein the Court found that the Appellant therein had violated the doctrine of exhaustion when it purported to expel the Respondent from the Party without the ratification of the National Governing Council.

84.The Complainant stated that in the instant case, there is undisputed evidence proving that the 1^st Respondent attempted to unlawfully effect her removal by circumventing and bypassing the provisions of the ODM’s Constitution. She therefore submitted that the 1^st Respondent’s contention that the NEC’s resolution did not require the ratification by its National Governing Council is mischievous, misconceived, and must be rejected.

85.In the upshot, the Complainant stated that the 1^st Respondent’s decision to revoke her nomination was moot, impotent, and an exercise in futility. On this basis, she prayed that the Tribunal finds that the said decision evades the doctrine of exhaustion and is therefore illegal, invalid, and a nullity.

D. Whether the complainant is entitled to the orders sought.

86.Concerning the Tribunal’s jurisdiction to grant the remedies sought, the Complainant submitted that the current dispute falls under the ambit of Section 40 of the Political Parties Act, which empowers the Tribunal to determine disputes between a member of a political party and the political party.

87.The Complainant further submitted that she has established by way of cogent evidence that the decision of the 1^st Respondent made on 6^th September 2023 to revoke her nomination as a member of the 4^th Respondent was unlawful, ultra vires, unconstitutional, null, and void.

88.The Complainant further stated that she adduced irrefutable evidence proving that the Disciplinary Proceedings commenced against her were unlawful, ultra vires, unconstitutional, and null and void. On this basis, the Complainant asserted that she had proven her case on a balance of probabilities as required by Regulation 27(3) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017.

89.The Complainant prayed that the Tribunal declares that the Disciplinary Proceedings against her are unlawful, null, and void and that consequently, proceeds to quash and set aside the decision of the 1^st Respondent’s NEC made on 6^th September 2023 and any other decision or action arising from the proceedings.

90.To lay a basis for the above prayer, the Complainant relied on the decision in Macfoy v United Africa Co. Ltd [1961] and in Republic v Fazul Mahamed & 3 others Ex-Parte Okiya Omtatah Okoiti wherein both courts agreed that a decision made without jurisdiction must be quashed and that where a court of law holds that a decision was made devoid of prerequisite jurisdiction, it is incurably bad in law, and thereby, a nullity.

91.The Complainant also cited the case of Isaac Mwaura Maigua v Jubilee Party & 3 others wherein the Court quashed disciplinary proceedings and all consequential actions by the 1^st Respondent were declared null and void. The holding of the court is summarised as follows:“This court has also concluded that the Jubilee Party’s National Disciplinary Committee processes and the decision that followed was unlawful. This court further finds that the decision of NDC which was varied by the NMC the suspension for six months to an expulsion from the 1^st Respondent party which was then transmitted to the national organ including the subsequent decision of 8^th February 2021 to deregister the appellant from the 1^st Respondent party and any gazette notices issued by the 3^rd and 4^th Respondents cannot stand.”

92.In placing reliance on the above dictum, the Complainant prayed that the Tribunal declare that the decision by the 3^rd and 4^th Respondent herein to suspend her from the County Assembly vide the letter dated 7^th September 2023 lacks legal foundation. Further, the Complainant prayed that the Tribunal quash the aforementioned letter, written in pursuit of an illegal decision.

93.Concerning her prayer for a grant of mandatory orders against the 2^nd and 5^th Respondent herein, the Complainant submitted that she has satisfied the prerequisite conditions for a grant of orders of permanent injunction. In support of her submission, the Complainant pointed out that from the evidence adduced, it is undisputed that the 1^st Respondent communicated to the 2^nd and 5^th Respondent to implement the impugned and illegal decision made on 6^th September 2023.

94.The Complainant also pointed out that under paragraph 5 of the 2^nd Respondent’s Replying Affidavit sworn by Joy Onyango on 19^th September 2023, the 1^st Respondent has already submitted to the 2^nd Respondent its decision to remove her as a member of the County Assembly of Kisumu. Given the foregoing, the Complainant stated that if not restrained or stopped, the Respondent shall proceed with the implementation of the impugned decision.

95.The Complainant submitted that under Section 34(a) of the Political Parties Act, the primary function of the 2^nd Respondent is to ensure that political parties comply with the law, and in doing so, it has been held in Amani National Congress Party v Godfrey Osotsi & Another that the office of the 2^nd Respondent cannot merely rubberstamp the decisions of the political parties. The Court in the aforecited decision stated as follows:“The Registrar must conduct independent inquiries and ensure compliance with the law. The duty is not merely to rubberstamp decisions of political parties or their institutions.”

96.The Complainant submitted that the 5^th Respondent cannot implement the impugned decision of the 1^st Respondent as it violated Sections 34, 37(1) of the Elections Act and Regulation 56A of the Elections (General) Regulations 2017. She further emphasized that implementation of the 1^st Respondent’s decision would be ultra-vires to the powers of the 5^th Respondent as established under the Constitution and the Elections Act. To bolster this assertion, the Complainant cited the case of Rahma Issak Ibrahim IEBC & 2 others [2017] eKLR where the court held as follows:“I am satisfied that IEBC acted outside its mandate and violated the Constitution and the Elections Act. Its actions of purporting to delete the Petitioner’s name as a duly nominated member of the Mandera County Assembly and substitute it with that of the 1^st Interested Party was ultra vires null and void.”

97.The Complainant further submitted that her removal as a member of the County Assembly of Kisumu would result in irreparable loss and damage as the same would be permanent, irreversible, and whose loss cannot be compensated by an award of damages. On this and the foregoing basis, the Complainant prayed that the Tribunal grants the orders of permanent injunction sought to stop the 2^nd and 5^th Respondents from implementing the impugned decision of the 1^st Respondent.

98.In conclusion, the Complainant submitted that her Complaint is competent and beseeched the Tribunal to grant the orders as sought.

The 1^st Respondent’s Submissions

99.The 1^st Respondent filed its written submissions on 30^th October, 2023. Therein, it provided a brief synopsis of the facts and background to the Complaint. Thereafter, the 1^st Respondent urged the Tribunal to specifically consider paragraphs 9, 12, and 17-33 of its Replying Affidavit as well as the entirety of its Response and Witness Statement recorded by Anthony Moturi dated 2^nd October, 2023.

100.In support of its Preliminary Objection, the 1^st Respondent submitted that the Complaint is fatally defective on account of the joinder of the 2^nd Respondent. It relied on the case of Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016 wherein the Court, in referring to the matter of Ms. Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission Nairobi HCCP No.1 of 2010 asserted as follows:“In Kenya, the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population.”

101.The 1^st Respondent submitted that the Registrar of Political Parties has no locus standi in these proceedings and urged the Tribunal to find that its joinder in this matter makes the suit fatally defective.

102.In the alternative and without prejudice to the foregoing, the 1^st Respondent submitted two issues for the Tribunal’s determination. The same are captured below:i.Whether the 1^st Respondent followed due procedure in relation to the disciplinary process of the Complainant; andii.Whether the decision by the Disciplinary Committee of the 1^st Respondent – the ODM Party – was justified in law and substance and whether the principles of natural justice were adhered to by the 1^st Respondent.

A. Whether the 1^st respondent followed due procedure in relation to the disciplinary process of the complainant

103.The 1^st Respondent began its address by citing Section 9 of the Political Parties Act which requires all Political Parties to include in their Constitutions, rules providing for the registration and cessation of political party membership. The 1^st Respondent also cited Rule 13 of Schedule 2 of the Act which lists out the mandatory requirements of every Party’s Constitution. The same are captured below:a.The disciplinary measures, methods, and procedure in accordance with Articles 47 50 of the Constitution of the Constitution of Kenya 2010;b.The possible disciplinary actions and reasons;c.The criteria for various disciplinary actions; andd.Consequences of each action.

104.The 1^st Respondent submitted that within the context of the law, cessation of membership includes the right to discipline and issue such sanctions against members that may include revocation of a member’s nomination.

105.It proceeded to state that its Constitution is fully compliant with the statutory requirements. To demonstrate this, the 1^st Respondent quoted Article 75 of its Constitution which is summarised below:Article 75(4) – The Disciplinary Committee shall have the power to receive, hear, and determine all cases of discipline concerning party members. Any party member may by a written and signed complaint, refer to the committee an issue of discipline. A disciplinary issue shall arise on the ground of gross misconduct and a member shall be liable to the Party’s disciplinary measures if he or she engages in any conduct prescribed by this Constitution, the Party’s Election and Nomination Rules, or any written law.Article 75(5) – The Disciplinary Committee shall afford a fair hearing to such a member complained against with reasonable opportunity to defend herself against the charges or allegations made against her in accordance with the rules of natural justice.

106.The 1^st Respondent also referred to Article 12(1)(c) of its Constitution which states as follows:A member of the Party shall cease to be such a member:(c)By accepting an office, subscribing to, or promoting activities of another Political Party; or such other organization whose aim and objectives are in competition with or in conflict with those of ODM.

107.The 1^st Respondent submitted that the charges against the Complainant were predicated on her actions which amounted to gross misconduct and disrespect of the Party and its leadership, contrary to Article 11 of the Party’s Constitution.

108.Concerning how the disciplinary process was carried out, the 1^st Respondent responded by inviting the Tribunal to refer to paragraphs 18 to 30 of its Response. It further stated that the Complainant must show that rules of natural justice were not complied with, which she has not done.

109.The 1^st Respondent cited Republic v National Police Service Commission Ex-parte Daniel Chacha Chacha wherein the High Court held as follows:“Therefore, the principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.”

110.In answering the question of whether the ingredients set out in the Daniel Chacha Chacha case were followed, the 1^st Respondent submitted as follows:a.The Complainant was notified and fully aware of the charges against her.b.The Complainant was given an opportunity to present her case and her submissions were fully considered and taken into account in the Disciplinary Committee’s deliberations and decision.c.The Disciplinary Committee was unbiased in deliberating and arriving at its decision.d.The Administrative decision was based on logical proof and evidential material and was fair in the circumstances of the case.

111.The 1^st Respondent further submitted that the proceedings before the Disciplinary Committee conformed with Rules 5,6,7,8,9,10,11,17,20,21,22 and 23 of the Disciplinary Committee (Practice and Procedure) Rules, 2022.

112.Concerning its service of all the documents before the Disciplinary Committee upon the Complainant, the 1^st Respondent stated that service was effected through a Courier Service and via WhatsApp, pursuant to Rule 18 of the Disciplinary Committee (Practice and Procedure) Rules, 2022.

113.The 1^st Respondent pointed out that the Complainant has not denied ownership of the telephone number used, she has not denied receiving the WhatsApp messages, nor has she denied the postal address used to post the documents. On this basis, the 1^st Respondent submitted that service was properly effected. To buttress this submission, it relied on the case of Oyunge Barnabus & 3 others (Suing as Administrators of the estate of Mathayo Ratemo Mayaka (deceased)) v Charles Oteki Rioba [2021] wherein the court held as follows:“However, through Legal Notice No. 22 dated 26th February, 2020, the Civil Procedure Rules, 2010 were amended and amongst the new provisions introduced were rules regarding mode of service provided for under Order 5 of the rules. I agree with learned counsel for the Respondent that the changes in the rules have been developed to fit the prevailing circumstances as we are experiencing the COVID19 Pandemic which makes personal service difficult. Specifically, Order 5, rule 22B, and Order 5, rule 22C which rules have introduced other modes of service other than the traditional physical service of the defendant.Order 5, rule 22B provides as follows;1.Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E-mail address.2.Service shall be deemed to have been effected when the Sender receives a delivery receipt.3.Summons shall be deemed to have been served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.4.An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service.35.Order 5, rule 22C provides that;1.Summons may be sent by mobile-enabled messaging Applications to the defendant's last known and used telephone number.2.Summons shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.3.Service shall be deemed to have been effected when mobile-enabled messaging services when the Sender receives a delivery receipt.4.An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the delivery receipt confirming service.36.The question that I need to determine is whether the Respondents met all the conditions set out in the aforementioned new rules.”

114.The 1^st Respondent submitted that it met all the conditions set out in the above dictum.

115.Contrary to the Complainant’s allegations that the charges were defective, the 1^st Respondent submitted that the same were unambiguous and contained sufficient information about the offenses committed. At this point, the 1^st Respondent relied on the Court of Appeal decision in Peter Ngure Mwangi v Republic [2014] wherein the court stated as follows:“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Ed.), page 52 paragraph 53, this Court stated in Yongov R, [198] eKLR that:“In England, it has been said: An indictment is defective not only when it is bad on the face of it, but also:i.when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offenses not disclosed in that evidence or fails to charge an offense which is disclosed therein,ii.when for such reason it does not accord with the evidence given at the trial.”

116.The 1^st Respondent also submitted that there were no inaccuracies and deficiencies between the charge against the Complainant and the evidence adduced in support of the charge.

117.Concerning the Complainant’s assertions that she is covered by parliamentary immunity and privilege, the 1^st Respondent submitted that failing to vote for the preferred candidate of the party amounts to gross misconduct that is not covered by such immunity. The 1^st Respondent relied on the case of Francis Matheka & 10 others v Director of Public Prosecutions & another wherein the court observed that privilege essentially belongs to the house as a whole and not the individual members. On this basis, the Court held that the ex-parte applicants could not claim privilege on matters not related to debates in the house.

118.The 1^st Respondent also associated itself with the holding and finding in Republic v Ethics and Anti-Corruption Commission Ex parte Nairobi City County Assembly and 13 others [2019]. In this case, the court held that the law did not permit the ex-parte applicant to use immunity as a shield against criminal culpability. On this basis, the 1^st Respondent herein submitted that the Complainant is not permitted to use immunity as a shield against charges of gross misconduct.

119.In response to the Complainant’s allegation that she was discriminated against, the 1^st Respondent stated that the assumption that 46 of the members of the County Assembly are 1^st Respondent Party members is wrong. The 1^st Respondent also stated that the County Assembly is comprised of members of different political affiliations, while others are independent candidates who vote based on their interests.

120.The 1^st Respondent submitted that the Complainant has failed to demonstrate with precision how her rights were violated, and that contrary to the allegations presented before this Tribunal, all parties to the complaint were sufficiently represented before the Disciplinary Committee, she was allowed to present her case, she had the liberty to call witnesses to testify and give evidence, and she also had the liberty to cross-examine the complainant, which she chose not to do. On this basis, the 1^st Respondent concluded that there was no trial by ambush as alleged.

121.Lastly, the 1^st Respondent submitted that its Disciplinary Committee forwarded a Report and Recommendation to the National Executive Committee which deliberated on the same and passed a resolution that the Complainant’s nomination be revoked. The 1^st Respondent emphasized that it was at this point that the Complainant was informed of the decision.

122.On the above basis, the 1^st Respondent submitted that proper procedure was followed and that the proceedings were in conformity with Articles 47(1) and 50(1) of the Constitution of Kenya. It urged the Tribunal to reach the same conclusion.

Whether the decision by the disciplinary committee of the 1^st respondent is justified in law and substance.

123.The 1^st Respondent submitted that its administrative action against the Complainant was based on logical proof and evidential material in compliance with the rules of natural justice.

124.The 1^st Respondent posited that traditionally, the rules of natural justice have been divided into two parts: Audi alteram partem- the duty to give persons affected by a decision a reasonable opportunity to present their case; and Nemo judex in cau sa sua debet esse- the duty to reach a decision untainted by bias. The 1^st Respondent stated that the Complainant was presented with the allegations against her and given numerous opportunities to present her case and that there is nothing to show that it exhibited bias during the investigations, the proceedings, or even after the final decision.

125.The 1^st Respondent relied on Republic v Kenya Power and Lighting Co. Ltd & Another [2013] in submitting that the law places the onus of proof on the complainant to demonstrate that an administrative decision was absurd and that no sensible tribunal properly applying its mind to the law and the material before it could arrive at such a decision.

126.The 1^st Respondent submitted that its Disciplinary Committee has not been shown to be unreasonable or to have violated the Complainant’s right to fair administrative action. It further submitted that its Disciplinary Committee was entitled to make the recommendations that it did and that the National Executive Committee (NEC) was well within its mandate under Article 75(6) of the ODM Constitution to revoke the Complainant’s nomination.

127.In response to the Complainant’s allegations that the 1^st Respondent’s Disciplinary Committee was not properly constituted, the 1^st Respondent submitted that it was properly constituted and a legally sound decision was rendered therefrom.

128.The 1^st Respondent buttressed its submission by referring to the case of Ben Murumbi Sihanya & Others v. Ethics and Anti-Corruption Commission; Registrar of Political Parties & Others (Interested Parties) 2021 which was instituted by Ben Sihanya who prayed for several reliefs. From this case, the 1^st Respondent highlighted the following for the Tribunal’s attention:i.There was no Cross Petition in the said matter seeking any positive orders against the Petitioner in favor of the Respondents therein.ii.The court in dismissing the Petition, did not issue any positive orders but only stated that the Respondent’s letter compelling Prof. Sihanya to choose whether to be a lecturer at the University of Nairobi or to be a chairperson of the ODM disciplinary committee did not violate his rights.iii.The court's decision did not declare that the Petitioner was forthwith prohibited from holding an office at the 1^st Respondent’s disciplinary tribunal.iv.The said decision of the Court has since been appealed and is now active before the Court of Appeal. Until the hearing and determination of the Appeal, the 1^st Respondent’s Disciplinary Committee is properly constituted. (See copy of the filed Memorandum of Appeal marked as ‘K’)v.In any event and on a without prejudice basis, the Complainantsubmitted himself to the Disciplinary Committee’s jurisdiction and was constituted and never raised any objection thereof.

129.The 1^st Respondent submitted that from 18^th July 2023 to when the decision was delivered, no objection was raised as to the Disciplinary Committee’s jurisdiction or competence to hear and determine the matter. The 1^st Respondent also stated that the question of its jurisdiction is not ripe for determination by this Tribunal by dint of Section 40(2) of the Political Parties Act.

130.In conclusion, the 1^st Respondent urged the Tribunal to consider the evidence adduced in its totality and reach the following conclusions:i.The Complainant was given all the facilities and the time to prepare her defence.ii.The 1^st Respondent complied with the requirements of its own Constitution and all relevant and applicable Statutes with provisions on fair play and natural justice.iii.The 1^st Respondent’s Disciplinary Committee was properly constituted.

131.The 1^st Respondent also reiterated that the Committee reasonably utilized its powers and discretion, its decision was supported by the evidence before it and the decision was made within the limit of the committee’s powers. The 1^st Respondent submitted that the Complaint is unmerited and should be dismissed with costs.

The 3^rd and 4^th Respondents’ Submissions

132.The 3^rd and 4^th Respondents filed their written submissions dated 29^th October 2023 on 30^th October 2023. Therein, the 3^rd and 4^th Respondents addressed themselves to the following issues:i.Whether the 3^rd and 4^th Respondents have been sued properly before this court and whether the complaints and orders sought against them can stand the test of jurisdiction.ii.Whether the claim has merit and what orders are appropriate.

A. Whether the 3^rd and 4^th respondents have been sued properly before this court and whether the complaints and orders sought against them can stand the test of jurisdiction.

133.The 3^rd and 4^th Respondents began their address by submitting that jurisdiction is everything and without it, this Tribunal ought not to move any further. In this regard, they relied on the court’s holding in Owners of Motor Vessel ‘Lilian S’ v Caltex Oil Kenya Ltd [1981].

134.The 3^rd and 4^th Respondents also relied on the Supreme Court decision in Independent Electoral Commission (2021) Constitutional Application No. 2 of 2011 wherein it was held that the jurisdiction of the court in Kenya is regulated by the Constitution, statutes, and principles laid in judicial precedence. The Court also stated as follows:“A court cannot arrogate to itself jurisdiction through the craft and interpretation or by way of endeavors to discern or interpret the intentions of parliament, where the wording of the legislation is clear and there is no ambiguity.”

135.The 3^rd and 4^th Respondents submitted that the Tribunal’s jurisdiction originates from Section 40 of the Political Parties Act (2015) which enumerates the identities of people who may be tried before the Tribunal. The same is captured below:1.The Tribunal shall determine:a.The disputes between members of a political party;b.Disputes between a member of a political party and the political party;c.Disputes between political parties;d.Disputes between an independent candidate and a political party;e.Disputes between coalition partners;f.Appeals from decisions of the Registrar under this Act; andg.Disputes arising out of party nominations2.The Tribunal shall not hear or determine a dispute under paragraphs a, b, c, e, or g unless a party to the dispute adds evidence of an attempt to subject the internal political party dispute resolution mechanisms.3.A coalition agreement shall provide for internal dispute resolution mechanisms.

136.The 3^rd and 4^th Respondents submitted that they are missing from the list provided by Section 40 of the Political Parties Act as they are not known members of any political party, nor are they a political party. As such, the 3^rd and 4^th Respondents stated that they have been improperly dragged before this court and no orders issued by the Tribunal are executable against them.

137.Further to the foregoing, the 3^rd and 4^th Respondents argued that the nature of the dispute against them ought to be placed before the Public Service Commission pursuant to Article 334(2)(1) of the Constitution of Kenya and Sections 86 and 87(2) of the Public Service Commission Act. They quoted Section 87(2) of the Public Service Commission Act which provides as follows:A person shall not file any legal proceedings in any court of law with respect to matters within the jurisdiction of the Commission to hear and determine appeals from county government public service unless the procedure provided for under this part has been exhausted.

138.The 3^rd and 4^th Respondents relied on Republic v National Environment Management Authority wherein the court held that a party should not be allowed to bypass the statutory appellate process provided under the County Government Act and Public Service Commission Act. They also cited Susan Wagiru Mwai & 65 others v County Government of Kirinyaga where the court declined jurisdiction because the applicant did not exhaust the internal mechanism of dispute resolution.

139.In the upshot, the 3^rd and 4^th Respondents submitted that the claim and orders sought against them are misplaced and ought to be dismissed with costs.

B. Whether the claim has merit and what orders are appropriate

140.The 3^rd and 4^th Respondents submitted that under Section 2 of the Evidence Act, this Tribunal is bound by the rules of evidence. On this basis, the 3^rd and 4^th Respondents stated that:a.The ODM life member certificate ought to be certified before production. Similarly, the Judgement delivered on 8^th September 2023 and the one delivered on 9^th December, 2022 ought to be certified before production.b.All electronically generated documents ought to be struck out for non-compliance with Section 106B of the Evidence Act.

141.In concluding their submissions, the 3^rd and 4^th Respondents submitted that the complaint against them was placed prematurely before the Tribunal as not all primary dispute resolution mechanisms were explored. Further, they submitted that the Tribunal is bereft of jurisdiction and as such, the dispute ought to be dismissed with costs.

Tribunal’s Analysis and Findings.

142.The Tribunal has considered, most carefully, the pleadings, written submissions, oral highlights, and authorities cited by the parties, in extensu, and hereby reaches the following conclusions.

143.The gist of the dispute between the parties can be summarised into the following three questions:a.Whether the Tribunal possesses the requisite jurisdiction to hear and determine the Complaint against the 3^rd and 4^th Respondents;b.Whether the disciplinary proceedings against the Complainant were proper, procedural, and lawful; andc.Who bears the costs of these proceedings?

144.We will address the issues listed above in the chronology of their listing.

a) Whether the Tribunal processes the requisite jurisdiction to hear and determine complaints against the 3^rd and 4^th Respondents.

145.We have held, times without number, that our jurisdiction is circumspect. It is drawn from Article 169 of the Constitution, and Sections 40 and 41 of the Political Parties Act, 2011, as amended.

146.Section 40 is most relevant to the current case. It reads:(1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and (fa) disputes arising out of party nominations.2.Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e), or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.3.A coalition agreement shall provide for internal dispute resolution mechanisms.

147.The 3^rd and 4^th Respondents submit, rightly so, that the foregoing provision identifies the nature of disputes to be dealt with by the Tribunal. However, the nature or subject matter of a dispute does not necessarily refer to the parties or persons subject to our jurisdiction. There is a distinction.

148.In essence, Sections 40 and 41 define the subject matter or jurisdiction rationae materiae, and not necessarily the jurisdiction rationae personae. In other words, while a party may not necessarily be a political party, coalition political party, member of a political party, an independent candidate, or the Registrar of Political Parties, it may be a necessary Party for purposes of giving effect to, or enforcement of the Tribunal's orders. Parties such as the 3^rd or 4^th Respondents, and the Independent Electoral and Boundaries Commission, in our estimation, fall within this category.

149.In any event, misjoinder or non-joinder is not fatal to a suit. A preliminary objection, in the words of the court in the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd EALR (1969) 696 case, must deal with the substance of the suit or dispute with finality. In this regard, the suit is still properly before us, and can still be sustained, even without the parties who view the suit against them as a non-starter. In other words, the non or misjoinder of the 3^rd and 4^thRespondents would not render the suit defective.

b) Whether the disciplinary proceedings against the Complainant were proper, procedural, and lawful.

150.The Complainant raises several matters that can be characterized as allegations of multiple breaches of her constitutional right to a fair process, legality, and propriety. The nature of which revolve around the composition of the Disciplinary Committee of the 1^st Respondent political party; the nature/clarity of charges brought against the Complainant; the procedures of the 1^st Respondent political party’s Disciplinary Committee, or lack of due process therein. The constitutional and statutory basis of the complaints has been extensively reproduced in earlier parts of this judgment.

151.We also have reproduced, in great detail, the substance of the parties’ respective positions in this matter, in the paragraphs foregoing. We need not rehash the same.

152.We choose to begin our analysis on the allegations of the composition of the 1^st Respondent’s Disciplinary Committee, since, should this limb of the Complaint succeed, it would render consideration of the other grounds moot.

153.The Complaint with regard to the composition of the 1^st Respondent’s Disciplinary Committee relates to the competence of its Chairperson, Professor Ben Sihanya, to serve in the said committee, let alone as its Chairperson. Reliance was placed on the decision of the Court in ELRC Petition No. E055 of 2020Professor Ben Sihanya & the ODM v Ethics and Anti-Corruption Commission. The Complainant pointed the Tribunal to paragraphs 34 and 35 of the decision which, for ease of reference, are reproduced hereunder:“34.It follows therefore, the 1st petitioner is prohibited under Section 12 of the Political Parties Act, and Section 23 of the Leadership and Integrity Act to hold office in a political party.35.Furthermore, the University of Nairobi being a statutory body governed by an Act of Parliament and a charter is governed by Article 232 (2) (b) of the Constitution of Kenya, 2010 which provides: -“(232 (2) - The values and principles of public service apply to public service ina.....................b.All state corporations.(3)Parliament shall enact legislation to give full effect to this effect.”(emphasis mine)36.It is pursuant to Article 232(3) that the Leadership and Integrity Act was enacted by Parliament to guide the code of ethics of all public officers including those in state corporations such as the 1st petitioner.37.Whereas a lecturer at an institution of higher learning enjoys academic freedom and is not barred from expressing his or her political opinion, such an officer is bound to relinquish his position if he is appointed or elected to an office in a political party. Holding the office of lecturer at a public university and at the same time holding an appointed office of Chairperson of a disciplinary committee in a dominant political party amounts to performing daily and/or continuous political activities that may be seen to compromise the political neutrality of the office of lecturer in a public university within the meaning of Section 23 (2) of the Leadership and Integrity Act as read with Section 12(1) (c) of the Political Parties Act.”

154.The Complainant urged us to find that the afore-stated decision barred Professor Ben Sihanya from holding the position of Chairperson of the Party’s Disciplinary Committee, while still serving as a public officer by dint of his employment at the University of Nairobi.

155.The Respondents were of contrary view. They held that the decision of the court did not constitute any positive orders or declarations, but it merely dismissed the petition. They also stated that the views expressed in the decision provoked an appeal by Professor Ben Sihanya, which is pending before the Court of Appeal. Although no Record of Appeal was exhibited before the Tribunal. Only a Notice of Appeal indicating intention to appeal was filed.

156.Our view of the matter is that decisions of superior courts are binding upon us as a Tribunal. This is the time-honoured principle of stares decisis, or precedent as underlined in our long-standing common law tradition. To depart from this principle would be to advance a philosophical shift from the DNA that our legal system is comprised of.

157.Whether the Respondents view the decision of the Superior Court as unsound or otherwise, is immaterial. The only way to depart therefrom is if we are shown a decision to the contrary by a court higher up in the hierarchy of our legal system.

158.The wordings of the court in the Petition afore-quoted are clear. They are not said in obiter, nor do they require deep discernment to understand their import. The court found, as a matter of fact and law, that Professor Ben Sihanya could not hold office in public service as a lecturer and as a member of the Disciplinary Committee of the ODM party at the same time. To say anything else would be an affront to the superior court. We cannot accept that invitation.

159.The allegations of the composition of the Disciplinary Tribunal and its illegality, by dint of the decision of the court aforesaid, and breach of Section 12 of the Political Parties Act, 2011, were raised by the Complainant in its pleadings. These allegations were not controverted by the Respondents. The factual accuracy thereof was not challenged. We also note that the evidentiary material relied upon is a reported judgment of a Superior Court of record readily available on the National Council for Law Reporting portal and, hence, a matter for which this Tribunal can take judicial notice, under section 60 of the Evidence Act (cap. 80).

160.Consequently, we find and hold that, there being no dispute that the proceedings of the 1^st Respondent party’s Disciplinary Committee were chaired and conducted by Professor Ben Sihanya; and that he also, at the same time, held the office of lecturer in a public university, contravened Section 12 of the Political Parties Act, 2011.

161.It cannot be argued that since the Complainant did not raise the matter before the Disciplinary Tribunal she countenanced, or somehow acquiesced in the illegality. Breach of the law, in this case, Section 12 of the Political Parties Act, 2011; and Chapter 6 of the Constitution of Kenya as elaborately found by the Employment and Labour Relations Court, are matters which cannot be cleansed by inaction, waiver or estoppel. An illegality breeds illegality, and nothing good can come out of it. It does not matter that the Complainant may have been indolent or even complicit in the illegality. Courts and tribunals as shrines of justice and must remain pure of illegalities. We are high priests of legality and propriety and must do all we can to uphold justice in its purity.

162.For the reasons foregoing, we find all the actions, orders, and directions made by the 1^st Respondent party’s Disciplinary Committee against the Complainant, null and void ab initio.

163.Having found as we have, on the legality of the entire process, we do not see the need to address the other grounds raised in the Complaint. The same are rendered, in our considered view, moot.

164.On the question of costs; whereas costs follow the event, we have considered the circumstances of this case and are of the considered view that each party should bear its own costs of these proceedings in the interest of fostering party unity

Disposition

165.In the upshot we make the following orders:i.A declaration is hereby made that the Disciplinary Proceedings by the 1^st Respondent against the Complainant are unlawful, illegal, invalid, null and void;ii.A declaration is hereby made that the recommendation by the 1^st Respondent’s National Executive Committee made on 6^th September 2023 to revoke the nomination of the Complainant as a member of the 4^th Respondent is illegal, invalid, and of no effect; andiii.We hereby quash the 3^rd Respondent’s letter dated 7^th September, 2023 and the communication issued on the said date due to the 4^th Respondent suspending the Complainant from the 4^th Respondent assembly.iv.Each Party shall bear its own costs

166.Those are the orders of the Tribunal.

DATED AT NAIROBI AND DELIVERED VIRTUALLY THIS 23RD DAY OF NOVEMBER 2023.HON. DR. WILFRED MUTUBWA OGW C. ARB - VICE CHAIRPERSON – PRESIDINGHON. THERESA CHEPKWONY - MEMBERHON. GAD GATHU - MEMBER

Kizito v Orange Democratic Movement Party & 4 others (Complaint E009 (KSM) of 2023) [2023] KEPPDT 1262 (KLR) (23 November 2023) (Judgment)

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1.	Constitution of Kenya	28045 citations
2.	Evidence Act	9480 citations
3.	Fair Administrative Action Act	1996 citations
4.	Elections Act	1095 citations
5.	Political Parties Act	646 citations
6.	Public Service Commission Act	353 citations
7.	Leadership and Integrity Act	322 citations