Kioni v Party & another; Dzuya & 12 others (Interested Parties) (Complaint E009 (NRB A) of 2023) [2023] KEPPDT 1266 (KLR) (10 July 2023) (Judgment)

Citation
Kioni v Party & another; Dzuya & 12 others (Interested Parties) [2023] KEPPDT 1266 (KLR)
Media Neutral Citation
[2023] KEPPDT 1266 (KLR)
Court
Political Parties Disputes Tribunal
Outcome
Allowed
Case number
Complaint E009 (NRB A) of 2023
Judges
D. Nungo, G. Gathu, S Musau
Judgment date
10 July 2023
Language
English
Type
Judgment
Original source file
Download DOCX (156.7 KB)
Introduction
1.The Complainant herein was subjected to disciplinary proceedings at the party level vide the 1st Respondent’s National Disciplinary Committee (TNDC) Complaint No. 1 of 2023. Consequently, the TNDC rendered its Judgment dated 10th May 2023 which Judgment was adopted and/or ratified by the 1st Respondent’s National Executive Committee (NEC) on the 19th May 2023. Pursuant to the subject TNDC Judgment, the Complainant was found guilty of some charges and was consequently expelled from the party.
2.Aggrieved by the TNDC Judgment, the Complainant filed the instant complaint dated 19th May 2023 (hereinafter referred to as the Complaint) seeking the following reliefs from this Tribunal: -i.A declaration that the Jubilee Party National Disciplinary Committee does not have jurisdiction to hear and determine disputes relating to party officials.ii.A declaration that the Complainant was not given a fair hearing in accordance with Article 47 and 50 of the Constitutioniii.A declaration that the 2nd, 3rd and 4th Interested Parties are not members of Jubilee Party National Disciplinary Committee.iv.A declaration that the Judgment of the purported Jubilee Party National Disciplinary Committee was wrong for shifting the burden of proof from the complainant to the charged memberv.A declaration that the findings of the purported Jubilee Party National Disciplinary Committee were not supported by evidencevi.A declaration setting aside the Judgment and orders of the purported Jubilee Party National Disciplinary Committee dated 10th May 2023.vii.A declaration setting aside the purported adoption and/or ratification of the Judgment dated 10th May 2023.
3.The Complainant filed the Notice of Motion Application dated 19th May 2023 (hereinafter referred to as the Application) seeking the following orders that: -i.That this application is certified urgent and heard ex-parte in the first instance.ii.That a conservatory order be issued staying the decision to expel the Complainant from the 1st Respondent pending the hearing and determination of this Notice of Motion iii. That a conservatory order be issued prohibiting the 2nd Respondent from receiving and or acting on any communication from the Interested Parties purporting to expel the Complainant from the membership of the 1st Respondent pending the hearing and determination of this Notice of Motion.iii.That a conservatory order be issued staying the decision to expel the Complainant from the membership of the 1st Respondent pending the hearing and determination of the Complaint filed herein.iv.That a conservatory order be issued prohibiting the 2nd Respondent from receiving and or acting on any communication from the Interested Parties purporting to expel the Complainant from the 1st Respondent pending the hearing and determination of the Complaint filed herein.v.That the costs of this application be provided for.
4.The Application having been filed under Certificate of Urgency, the same was placed before the Tribunal Chairperson on 22nd May 2023 when the following directions were issued:-i.THAT the Notice of Motion application dated 19th May 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.THAT the Complaint and Notice of Motion application dated 19th May 2023 be served upon the Respondents and Interested Parties within three (3) days of the date hereof and a return of service be filed.iii.THAT the Respondents and Interested Parties to file and serve their response(s) to the Application within five (5) days of the date of service.iv.THAT the Notice of Motion Application dated 19th May 2023 be listed for mention on 31st May 2023 at 2.30pm to check on compliance and/or for further directions.v.THAT pending the hearing and determination of the Application inter partes, interim conservatory orders are hereby issued staying the decision delivered by the 1st Respondent’s National Disciplinary Committee on 10th May 2023 to expel the Complainant/Applicant from membership of the 1st Respondent.vi.THAT pending the hearing and determination of the Application inter partes, interim conservatory orders are hereby issued prohibiting the 2nd Respondent from acting on any communication from the 1st Respondent and Interested Parties purporting to expel the Complainant/Applicant from the membership of the 1st Respondent.
5.Taking into consideration that this matter related to three other pending cases, namely, PPDT Nairobi Compliant No. E010 of 2023, PPDT Nairobi Complaint No. E011 of 2023, and PPDT Nairobi Complaint No. E012 of 2023, and that all the cases raised issues of great public interest, the Chairperson of the Tribunal designated the entire 7 member tribunal bench (the tribunal) to adjudicate over all the disputes. Accordingly, all parties hereto appeared before the tribunal on 31st May 2023 for the mention of the matter.
6.During the mention of the case on the 31st May 2023, the Complainant was represented by Mr. Muturi Advocate holding brief for Mr. Mbuthi Gathenji SC. The 1st Respondent was represented by Mr. Njomo Advocate from the firm of Kamotho Njomo & Company Advocates claiming instructions through Kanini Kega, the 7th Interested Party herein onthe one hand, and Mr. Awele Advocate and Mr. Nderitu Advocate both from the firm of Awele Jackson Advocates LLP claiming instructions through the Complainant herein. The 2nd Respondent was represented by Mr. Mwangi Kibicho Advocate and Ms. Cheruiyot Advocate, the 1st Interested Party was represented by Mr. Njomo Advocate, the 2nd to 6th Interested Party was represented by Mr. Omwanza Nyamweya Advocate, and the 7th to 13th Interested parties were represented by Mr. Manyara Advocate. Mr. Mwangi Kibicho Advocate drew the tribunal’s attention to the 2nd Respondent’s Notice of Motion application dated 30th May 2023 that was also filed under certificate of urgency. The 2nd Respondent’s application sought the following orders:-i.That this application be certified urgent and heard in priority to the application dated 19th May 2023 filed in this complaint.ii.An order do issue consolidating the instant Complaint with Nairobi PPDTC/E011/2023, PPDTC/E012/2023 and Appeal PPDTA/E003/2023.iii.Upon consolidation, the Honourable Tribunal strikes out the name of the 2nd Respondent in PPDTA/E003/2023 Anne N. Nderitu as unnecessary party.iv.Upon consolidation, the 2nd Respondent be grated 3 days leave to file its joint response and pleadings.v.The Honourable tribunal do make such other and further orders as it may deem fit, necessary and expedient in the interest of justicevi.That costs of this Application be provided for.
7.In consideration of the Complaint, the application, the 2nd Respondent’s application, and all the parties’ reports on their respective status of compliance and the various requests made, and further in the interest of having a just and expeditious determination of all issues in controversy between the parties, the tribunal developed consensus with all the parties’ stated legal counsels and the following further directions were issued: -i.That PPDT Nairobi Complaint No. E009 of 2023, PPDT Nairobi Compliant No. E010 of 2023, PPDT Nairobi Complaint No. E011 of 2023, and PPDT Nairobi Complaint No. E012 of 2023 shall be heard together. The 2nd Respondent’s Notice of Motion application dated 30th May 2023 is therefore allowed to this extent only with the modification that the consolidation is replaced with the hearing of the subject complaints together. Any other issue pending consideration in the 2nd Respondent’s subject application to be incorporated in the 2nd Respondent’s reply to the Complaints. The application dated 19th May 2023 on the other hand to be heard together with the Complaint.ii.All parties to serve each other with their respective pleadings in all the Complaints so as to ensure that all parties are duly informed of all matters.iii.The Respondents and Interested parties in all the 4 Complaints to file and serve their respective replies to the Complaints and application together with all the documents they intend to rely on in defence to the Complaints within 7 days.iv.Corresponding leave is granted to the Complainants in all 4 Complaints to file and serve Supplementary Affidavits in further response if they so wish within 3days of date of servicev.The 4 Complaints to be mentioned on 9th June 2023 to check on compliance and for further directions as to hearing.v.Tribunal file in PPDT Nairobi Appeal No. E003 of 2023 is not before the tribunal and is therefore not to be handled together with the stated 4 complaints.vi.Both Counsels claiming to have instructions from Jubilee Party to file their respective pleadings based on their respective instructions and the tribunal will consider all information furnished.
8.When this case came up for further mention on 9th June 2023, not all parties had complied with the tribunal’s last directions. In addition, Mr. Njomo Advocate and Mr. Manyara Advocate requested for leave to file additional documents. Accordingly, balancing the interests of all parties, the tribunal issued the following further directions, inter alia, that: -i.All counsels to serve each other with all documents they have filed with a call to all counsels to be vigilant to reach out to one another and to cross check with the filing portal to ensure they have all the parties’ pleadings and documents. ii. As tribunal is not keen to lock out any documents or information from any party and whereas Mr. Njomo’s and Mr. Manyara’s clients have no right of reply, the tribunal extends special leave to them to file and serve Further Affidavits that they intend to place on record within 3 days in the interests of securing all information and documents necessary for the tribunal to adjudicate this dispute.iii.Corresponding leave is granted to the Complainant to file and serve Further replies if they so wish within 3 days of service. iv. Parties desirous of filing written submissions on the Complaints to do so and serve by close of business on 20th June 2023.v.All the Complaints to be heard on 22nd June 2023 as from 10am in an open physical tribunal session at Milimani Law Courts.
9.This Complaint was subsequently heard inter partes on 22nd June 2023 when all the parties’ respective counsels made their oral submissions. The applications which sought orders similar to the reliefs sought in the complaint were subsumed within the complaint.
10.We state at the onset of this Judgment that whereas there was a contest on the representation of the 1st Respondent, we elected not to substantively dwell on the same. This is because the tribunal acknowledges that the contest on representation is occasioned by the different factions within the party. Accordingly, in the interest of allowing all parties who are affected an opportunity to participate in these proceedings, the tribunal made the conscious decision to consider all the pleadings and evidence filed by all law firms claiming instructions from the different factions within the party.
The Complainant’s Case and Submissions
11.The Complainant has raised five main grounds of challenge of the TNDC Judgment, namely, lack of jurisdiction by the TNDC to hear and determine disputes relating to party officials; lack of procedural fairness in the proceedings leading up to the impugned judgment of the TNDC; lack of capacity of the 2nd, 3rd and 4th interested parties to sit in the TNDC; incorrectness of the findings of the TNDC; and lack of legality by the 7th to 13th interested parties to ratify the decision of the disciplinary committee.
12.On the question of the jurisdiction of the TNDC, the Complainant avers that the party constitution provides for different dispute resolution organs including the TNDC and the Internal Dispute Resolution Committee (IDRC), and that the organ with the jurisdiction to hear and determine disputes relating to the officials of the party is the IDRC. To this end, the Complainant’s counsel submitted as follows: -i.That the matters brought to the TNDC pursuant to the complaint dated 26th April 2023 were internal matters concerning officials of the party and should have been referred to IDRC if at all.ii.That as detailed in paragraphs 17, 18 and 19 of the affidavit of Jeremiah Kioni sworn on 9th May 2023 filed with the TNDC, the TNDC had no jurisdiction to hear and determine the complaint.iii.The charges derived from the complaint dated 26th April 2023 and the particulars thereof are in similar context with the complaints that the complainant herein referred to the TNDC vide his letter dated 20th April 2023. However, the TNDC Chairperson, Wanjiku Nduati, in response to the complainant’s complaint that was referred to TNDC, stated at paragraph 11 of her replying Affidavit sworn on 8th June 2023, that the TNDC invoked its rules and inquired into the complaints filed by the complainant and noted that the issues raised were matters within the ambit of the IDRC. The complainant’s complaint vide letter dated 24th April 2023 was thus referred to IDRC which delivered a ruling on 18th May 2023 in IDRC Complaint No. 4 of 2023 that the complainant only came to learn of in the course of these proceedings.iv.As admitted by the TNDC in response to the complainant’s complaint dated 20th April 2023, that the subject complaints were acts of commission or omission by party officials thus internal matters that had no relevance to discipline, it is the Complainant’s submissions that complaints raised against him before the TNDC were similarly internal party matters within the jurisdiction of IDRC and not TNDC.v.That TNDC was obviously biased and discriminated against the complainant. They dismissed the preliminary objection on technicality without considering the context of the complaint in relation to officials of the party vis a vis an ordinary member, and that the issue of jurisdiction was therefore not exhaustively resolved.
13.With respect to allegation of lack of procedural fairness in the proceedings leading to the impugned judgment, the Complainant pleaded and submitted as follows:-i.Service of the complaint, charge and summons for the hearing was not procedurally done in accordance with the TNDC Regulations.ii.The complainant raised a preliminary objection before the TNDC dated 8th May 2023 which preliminary objection was dismissed on the same date but a reasoned ruling on the dismissal of the preliminary objection was not delivered to the parties. The parties later came to learn that there was a ruling delivered on 11th May 2023 after Judgment was delivered in the matter. The Complainant submits that withholding the reasoned ruling denied him a chance to know why an adverse ruling was made against him and further denied him the chance to challenge the same.iii.The complainant and his counsel were given less than one working day to prepare for the hearing which time was inadequate. The TNDC declined the application by the complainant’s counsel to adjourn the hearing and afford the complainant and his advocate sufficient time to prepare for the complainant’s defence. The hearing was rushed and proceeded until 7.30pm despite protests from the counsel for the complainant and pleas for adjournment.iv.The complaint was heard in an intimidating environment the hearing venue being a private hotel with armed policemen manning the perimeter and roaming the grounds outside the hearing venue.v.The procedure adopted by the committee violated Articled 47 and 50 of the Constitution of Kenya, and the Fair Administrative Action Act, 2015 (the FAA).
14.The Complainant has further averred that the findings of TNDC were incorrect and unconstitutional. To demonstrate this, the Complainant submitted as follows: -i.That pursuant to Regulation 23 and 28 of the TNDC Regulations, the complainant was obliged to plead guilty or otherwise of the charges. Further pursuant to Regulation 29, the onus of proof was on the complainant before the TNDC (the party through Mr. Nelson Dzuya).ii.However, at the hearing before the TNDC, Mr. Nelson Dzuya failed to adduce evidence in support of the charges. That he failed to produce witness statements for the individuals subject of the first charge, namely, witness statement for complainant in letter dated 11th February 2022; witness statement in respect of complainants in decision not to field candidates in Kandara, Garissa township and Elgeyo Marakwet; witness statement of members affected by letters dated 10th February 2023 invited to disciplinary proceedings; witness statement of complainants aggrieved by convening the National Delegates Convention (NDC); witness statement of the National Executive Director allegedly dismissed by letter of 17th March 2023, witness statement of Mr. Kamau Thuo whose appointment was revoked by the complainant; and witness statement of Hon. Mary Wanjiru Kariuki who was allegedly served with the notice to show cause by the complainant.iii.Mr. Nelson Dzuya further failed to submit witness statement of or adduce evidence from Senator Fatuma Dullo and Senator Margaret Kamar in reference to the second charge that was brought against the complainant herein on the allegations that their removal was attributable to the complainant.iv.As regards the third and fourth charge against the complainant herein, Mr. Dzuya failed to adduce evidence on the complainant’s failure to convene NEC meetings and instead maintained that such allegations were in public domain.v.Despite the lack of evidence and written statements of affected persons subject of the various charges as confirmed by Mr. Nelson Dzuya during his cross examination, the TNDC placed the burden of proof on the complainant herein and reached a finding against him. The complainant submits that findings at paragraphs 33(a), 37, 38, 39 and 40 of the TNDC decision were incorrect. vi. Further, that as evidenced by paragraphs 41 and 42 of the TNDC decision, the TNDC failed to exercise impartiality and became the witness to matters alleged in the complaint and made extraneous remarks which displayed its obsession and lack of impartiality by concluding that the complainant was running a political party like his personal property. The TNDC holding at paragraph 43 was biased and not based on evidence and failed to address the burden of proof which was on Mr. Dzuya on behalf of the party.vii.That the TNDC decision is vague and failed to consider the complainant’s sworn affidavit and evidence on cross examination, and that TNDC did not fully analyze the law and evidence.
15.It is the Complainant’s further submission that the 2nd, 3rd and 4th Interested Parties lacked capacity and/or locus standi to sit in the TNDC. According to the complainant, the 2nd, 3rd and 4th interested parties were removed from TNDC by the NEC resolutions of 28th April 2023 and that the membership of TNDC was reconstituted. The issue was brought to the attention of the TNDC as a preliminary issue and the same should have been determined in the first instance. The TNDC, however, failed to determine this issue.
16.The Complainant submitted as follows on the contention of lack of legality by the 7th to 13th interested parties to adopt or ratify the decision of the TNDC: -i.As per the minutes annexed as ND1 in the Replying Affidavit of Nelson Dzuya on 25th May 2023, the 6th to 13th interested parties attended NEC meeting of 10th February 2023 that recommended disciplinary action against the complainant herein. In other words, they were the accusers.ii.The same NEC, the accusers, again convened meeting of 19th May 2023 to adopt, confirm and ratify the judgment of TNDC. In this case, the said interested parties again sat as judges in their own cause in a matter whose outcome was predetermined from the inception. There was a clear case of conflict of interest and at no stage did they declare their interest or recuse themselves.iii.The 1st interested party sat in the meeting of 10th February 2023, wrote the complaint to the TNDC, appointed the chairperson of the TNDC, was the party’s sole witness before the TNDC, and sat in the NEC meeting to receive and ratify the decision of the TNDC. On all these occasions, he never recused himself or even declared a conflict of interest.iv.Fatuma Dullo and Wambui Gichuru who sat in NEC meeting of 19th May 2023 were also conflicted as pursuant to the charges against the complainant before the TNDC, they were aggrieved parties.v.The contents of the TNDC decision were not disclosed to the complainant notwithstanding that there was an order to expel him effective from the date of the TNDC decision. Instead, the decision was forwarded to NEC who proceeded to ratify the same. This is notwithstanding Regulation 26 of TNDC Regulations which provide that the charged member shall have the opportunity for mitigation before sanction. The TNDC did not invite the complainant to make any mitigation before giving its sanction. The complainant did not have an opportunity to make representation before NEC adopts, ratifies, varies or substitutes its decision contrary to the rules of natural justice, Section 4 of FAA, Articles 47 and 50 of the Constitution of Kenya.
17.It is the Complainant’s contention that he was served with the TNDC proceedings on 16th June 2023 and he has annexed the same to his affidavit sworn on 19th June 2023.
18.The Complainant has in addition to the above made submissions in respect to the legality of the notice constituting the NEC meeting of 10th February 2023, the attendance to the subject meeting of 10th February 2023 and its resolutions. We, however, note that the subject submissions are not founded on the Complaint as currently before us. The same were alluded to in the Affidavit of Hannah Wanja Maina sworn on 8th June 2023, the Affidavit of Hon. John Njenga Mungai sworn on 7th June 2023, and the Further Affidavit of Hon. Jeremiah Kioni sworn on 8th June 2023, and further in the Complainant’s Written submissions filed in this cause. There is no specific prayer in the complaint relating to the meeting of 10th February 2023. We shall substantively address our minds to the same later in this Judgment.
The 1st Respondent’s Case and Submissions (by the firm of Awele Jackson Advocates LLP)
19.The 1st Respondent represented by the firm of Jackson Awele Advocates LLP are in support of the Complaint and Mr. Awele reiterated the Complainant’s submissions. It is his submission that the Constitution of Kenya is the Supreme law of the Republic and it binds all persons under Article 1 thereof. Pursuant to Article 2(4) of the Constitution, everything done in contravention of the constitution is void to the extent of the inconsistency.
20.Article 91 of the Constitution provides for basic requirements of formation of political parties to include the political party must have a democratically elected governing body, that every political party must promote the objects and principles of the constitution and the law, and that political parties must subscribe to and observe the code of conduct of political parties. Sections 3 and 4 of the PPA are anchored on the constitution and they make provision for the formation of political parties and requirements of a political party. It is therefore the 1st Respondent’s submission that the Jubilee party is a creature of the Constitution of Kenya, the Political Parties Act, and its own constitution that represents the wishes and aspirations of party members as duly approved at the NDC, the highest decision-making organ of the party. The party must therefore act in strict adherence to the laws that govern it, and that failure to comply renders everything done contrary to the law invalid.
21.The 1st Respondent relied on the Replying Affidavit and Further Affidavit sworn by the Complainant on 6th June 2023 and 14th June 2023 respectively. In the Replying Affidavit, the Complainant deposes that he is the bona fide SG of the party having been elected as such by the 1st Respondent’s NDC in 2022 and duly gazetted by the 2nd Respondent vide Gazette Notice Number 3195 of 22nd March 2022, and with the exclusive mandate under Article 10.5 of Jubilee party constitution to commence legal proceedings on behalf of the party, instruct advocates representing the party and issue official communication on behalf of the party. He submits that the party can only act through its authorised officials and organs. That the National chairperson’s right under Article 14.1.7 of the Jubilee party constitution is specific to his office and can only be exercised by the person holding the said office. To the extent that the National chairperson purported to file the complaint before TNDC in the name of the Jubilee party, the same was non-suited and fatally defective. That by entertaining the complaint without evidence that Jubilee party’s NEC authorised the filing of the same, the TNDC perpetuated the very offence that it purported to find the complainant guilty of, to wit, acting without the authority of party organs.
22.It is further submitted that as evidenced by the letter marked D by Nelson Dzuya directing the IDRC to convene, the TNDC was at all material times acting under the direction of the 1st interested party and was accordingly not an impartial arbiter in the dispute before it. From the subject letter marked D, the TNDC was directed to preside over the proceedings giving rise to the impugned decision by the 1st interested party. It is a settled principle that justice must not only be done but seen to be done, and considering the issues raised about the conduct of the members of the TNDC during the shambolic hearing carried out in the matter, it is clear that the TNDC hearing was a mere façade intended to paint a picture of a fair hearing that never was.
23.That as per the Gazette Notice No. 3195 of 2022, the members of Jubilee party NEC were appointed by the NDC of 22nd March 2022 and subsequently by the meeting of 22nd May 2023. The purported adoption of the impugned decision of the TNDC by a NEC meeting of 19th May 2023 could only have been validly done by the NEC properly convened by the SG or the party leader as authorised by the party delegates. That the alleged adoption of the impugned decision on 19th May 2023 is invalid as there is no record of any notice convening the said meeting, there is no record of the minutes of the said meeting, that the letter communicating the resolutions of the said meeting to the 2nd Respondent was authorised by the 7th interested party without the SG’s authority and the alleged recall of the letter is a belated attempt to sanitise the 2nd Respondent’s attempt to rectify the glaring errors and missteps by the interested parties that have given rise to these proceedings, that the NEC decision to adopt the said harsh penalty expelling the complainant from the party was made recklessly and in violation of the complainant’s right to fair administrative action and was accordingly in violation of Article 47 of the Constitution as read with the FAA, and that the purported expulsion was originated and anchored on an illegal suspension decision made at the illegal meeting of 10th February 2023 and which illegality is confirmed in paragraph 9 of the affidavit of Kanini Kega and is the subject of PPDT Nairobi Complaint No. E010 of 2023. That Kanini Kega’s allegation that the Complainant was appointed by NEC betrays a gross misapprehension of the constitution of the Jubilee party as all members of NEC are appointees of NDC and not NEC. The fact that the illegal decision has been undertaken or implemented does not divest the tribunal of its jurisdiction over the matter. The dispute over the legality of the meeting of 10th February 2023 was not only implicitly determined by TNDC in its impugned decision but was also submitted to the IDRC for determination but rebuffed by the committee on unreasonable grounds that effectively shut him out of the IDRC. That the IDRC decision of 7th June 2023 is legally untenable and is premised on a gross misapprehension of the jubilee party constitution, that the Chairperson of the party has no power to convene meetings of any party organ or direct the DSG to convene meetings as alleged, and further that the IDRC failed to interrogate the purported letter dated 31st January 2023 to the DSG in order to establish inter alia the minute and resolutions of the purported NMC meetings that called for the NEC meetings. That there is no record of any letter from Nelson Dzuya requesting the complainant to convene a meeting in compliance with directives of NMC as alleged or at all. There is therefore sufficient basis for the tribunal’s jurisdiction over the matter, and that decisions of NEC as relates to officials of the party can only be implemented by the 2nd Respondent after ratification by the NDC and gazettement in accordance with Section 20 as read with Section 34C of the Political Parties Act (the PPA), and further as bonafide officials of the party are duly appointed by the highest decision making organ of the party, the expulsion of the complainants from the party can only be made by and/or with the sanction of the NDC.
24.It is further submitted on behalf of the 1st Respondent that the purported notice of meeting of 19th May 2023 was an afterthought and a vain attempt to cover up the illegalities raised in these proceedings as the notice was neither prepared on the date that it is claimed it was prepared as it was not part of the documents that were submitted to the 2nd Respondent on 19th May 2023, that the notice purportedly issued on 11th May 2023 was more than 1 week before TNDC rendered its impugned decision purporting to expel the complainant and demonstrated that TNDC was acting in collusion with and under direction of a third party, there is no evidence that the notice was served on all NEC members as required by the party constitution, and the notice was signed by an unauthorised person who is not the SG of the party. It is further submitted that the purported decision of the IDRC is new evidence arising in the course of these proceedings concocted as an afterthought in response to the issues raised in the complaint, and that the TNDC decision is callous and brazen act of fraud as particularised in paragraph 7(a) to (m) of the complainant’s Further Affidavit of 14th June 2023 and demonstrates the extent to which the Respondents are willing to subvert the rule of law and to manipulate the proceedings before this tribunal.
The 1st Respondent and the 1st Interested Party’s Case and Submissions (by the firm of Kamotho Njomo & Company Advocates)
25.Under the representation of the firm of Kamotho Njomo & Company Advocates, the 1st Respondent and the 1st Interested Party are in opposition of the complaint. They relied on Affidavits sworn by the said Nelson Dzuya on 25th May 2023, 8th June 2023, and 12th June 2023 in response to the Complaint.
26.Mr. Dzuya avers and submits that it is not true that the Complainant is the Secretary General (SG) of the 1st Respondent. He was suspended during NEC meeting of 10th February 2023 as per the resolutions he has produced and marked as ND1. As per the minutes, the SG had failed to take action and the law does not allow a vacuum. The Jubilee party cannot be crippled if the SG fails to call NEC meetings and this was the reason for the meeting of 10th February 2023. Where the SG fails to take up his role, the Deputy SG can take it up under the party constitution.
27.The Complainant challenged his suspension and resolutions of the stated NEC meeting of 10th February 2023 before this tribunal in PPDT Appeal No. E001 of 2023 and this tribunal delivered its decision on 19th April 2023 directing that the dispute be referred to the party’s internal dispute resolution mechanism (IDRM). The party lodged a complaint to the party’s TNDC in the required form through him, and the TNDC issued a hearing notice and summons to the complainant as evidenced by annex ND3.
26.That the first hearing was scheduled for 5th May 2023 but the same did not proceed for the reason that the venue was invaded by unruly people mobilised by the complainant who caused a security breach and accosted the advocate representing the party. Communication was issued by the TNDC rescheduling the hearing to 8th May 2023 and that it was necessary for security to be provided on the material date. However, the complainant did not appear before the TNDC on 8th May 2023 but was represented by two advocates who did not complain of intimidation by security officers.
27.According to Mr. Nelson Dzuya, when the matter was called out, the complainant’s counsel, Mr. Gathenji SC, raised a preliminary objection on issues of law, which objection was dismissed. The complaint was thereafter heard and Mr. Dzuya testified on behalf of the party and was cross examined by the complainant’s counsel. The complainant opted to file an affidavit in response to the charges and the TNDC rendered its decision that was forwarded to NEC pursuant to Article 14.1.12 of the party constitution. That TNDC acted within the constitution by forwarding its decision to NEC. The NEC met and adopted the TNDC decision on 19th May 2023 and communication was issued to the 2nd Respondent accordingly. The 2nd Respondent in its letter dated 19th May 2023 confirmed that the complainant had been expelled from the party as at 19th May 2023. He maintains that the charges against the complainant were disciplinary in nature and TNDC had jurisdiction over the same, and further that the complainant was taken through a fair hearing before the TNDC having been represented by two advocates of his choice, and having filed sworn affidavit on 9th May 2023. He avers that he filed a supplementary affidavit before the TNDC on the same date of 9th May 2023 in response to the complainant’s sworn affidavit.
28.It is submitted on behalf of Nelson Dzuya that Jubilee party changed its party officials in accordance with the provisions of its constitution and thereafter submitted its returns as required to the 2nd Respondent in line with Section 20 of the PPA and the Complainant was expelled form the party after the conclusion of the disciplinary process conducted in accordance with the party constitution and the former officials cannot therefore claim to continue holding positions that they have lost through the disciplinary process on the basis that the 2nd Respondent has not gazetted the changes.
29.That the Complainant was subjected to the TNDC which is a party organ distinct from IDRC which handles disputes other than disciplinary matters which are within the mandate of TNDC, and that the letter dated 23rd February 2023 relied on by the Complainant written by Nelson Dzuya marked annex D is addressed to the IDRC and not to TNDC and it is therefore not true that TNDC ignored any complaint as alleged by the complainant. Further, contrary to the submissions of the complainant, the NEC meeting of 19th May 2023 was properly convened after a notice to that effect dated 11th May 2023 was issued to the NEC members with the agenda being consideration of TNDC decisions against charged members who had appeared before it. Mr. Dzuya denies having resigned and maintains that he has held his position as the Chairperson of the party from 26th February 2022 and that his participation in TNDC proceedings was clearly in line with his mandate and responsibility donated to him by the party constitution. He further contends that all concerns raised in this case regarding the NEC meeting of 10th February 2023 must first be subjected to the party’s IDRM before they are adjudicated before this tribunal. That the IDRC of the party in any event considered the complainant’s complaint regarding the legality of the meeting of 10th February 2023 and delivered its decision on 7th June 2023. It is therefore Mr. Dzuya’s contention that the TNDC having been adopted and effected by the 2nd Respondent vide letter of 19th May 2023, this complaint has been overtaken by events, is fatally defective and ought to be struck out with costs.
The 2nd Respondent’s Case
30.The 2nd Respondent filed their Replying Affidavit sworn by the 2nd Respondent’s Assistant Registrar in charge of Regulation and Compliance, one Mr. Ali Surraw, on 7th June 2023. According to the 2nd Respondent, the complaint herein emanates from a dispute between members of a party and the political party, and that there is no single complaint filed as against the 2nd Respondent.
31.That in the complaint, no orders have been sought against the 2nd Respondent. The Complainant has, however, sought conservatory orders prohibiting the 2nd Respondent from taking any further action in furtherance of the decision to expel the Complainant from the membership of the 1st Respondent.
32.The 2nd Respondent submits that in compliance with its functions under Section 34 (da) of the PPA, the 2nd Respondent on 19th May 2023 updated the records and register of the 1st Respondent ‘s party members and that in view of the letter dated 19th May 2023, the orders sought in the complaint and the application are overtaken by events.
The 2nd to 6th Interested Parties’ Case
33.The 2nd interested party is the Chairperson of the TNDC and the 3rd to 6th Interested Parties are members of the TNDC. They relied on the Replying Affidavit sworn by Wanjiku Nduati, the 2nd interested party, on the 8th June 2023.
34.It is the interested parties’ submission that TNDC is an organ of the party duly formed and recognized under Article 7(8) of the party constitution. Article 14 of the party constitution outlines the roles and mandate of TNDC, and Article 14.4 outlines disciplinary sanctions to be meted out by TNDC including expulsion. Article 6 of the party constitution sets out instances where a member of the party can be expelled and pursuant to Article 6(1)(f), a member can lose his membership upon being subjected to a disciplinary procedure. In the conduct of its disciplinary process, the TNDC is bound by the Jubilee party constitution and the TNDC Regulations 2022 which outline the disciplinary procedure.
35.It is submitted that the complainant filed two separate complaints before the TNDC on 24th April 2023. The TNDC proceeded to issue directions requiring the complainant to provide better particulars in support of his complaints. He instead sought several adjournments and severally requested for more time to file the particulars. The same were however not filed. Consequently, TNDC invoked Rule 15 of the TNDC Regulations and inquired into the complaints as filed and upon inquiry it noted that the issues raised were matters within the ambit of IDRC, a committee formed under Article 7.10 of the party constitution. The TNDC accordingly forwarded the complaints to IDRC vide its ruling dated 18th May 2023 with notice to the complainant.
36.The TNDC received a complaint from the 1st interested party on 24th April 2023, which complaint was against the conduct of the complainant herein and TNDC was invited to find that the complainant had violated the provisions of Jubilee party constitution and required to be subjected to disciplinary procedures of the party. TNDC requested for particulars and upon being furnished with the same, a charge sheet was drawn by TNDC together with summons for service upon the complainant. On 2nd May 2023, TNDC effected service of the complaint, charge sheet and summons upon the complainant by way of whatsapp through its member Teresiah Jerusah (the 5th interested party), an advocate of the High Court of Kenya. After service, the complainant replied to the 5th interested party confirming receipt of charge sheet and hearing notice and he therefore had proper notice and appointed Mr. Gathenji SC to represent him at the hearing.
37.Hearing of the charges against the complainant was to take place on 5th May 2023 at Fairview Hotel at 10am. However, upon arrival at the hotel at 9.30am, she noticed an influx of young men and women into the hotel and on reaching the meeting room, she found the place almost full and there was no room for TNDC members. The proceedings were therefore frustrated and TNDC in the circumstances invited the advocates for the parties to an informal meeting at a secluded part of the hotel and in which meeting it was agreed that it was not feasible to hold a hearing due to the evident security threat. That at around 1pm, the TNDC was granted another room to enable it meet formally and they met and formally, adjourned the matter and issued directions as to hearing on 8th May 2023.
38.On 8th May 2023 when the matter came up for hearing, the complainant’s raised a preliminary objection and a ruling was delivered dismissing the same and written reasons reserved for a later date. The hearing of the complaint proceeded immediately after dismissal of the objection and the complainant’s counsel was present and cross-examined Mr. Nelson Dzuya. The complainant’s counsel sought leave to file an Affidavit on behalf of the complainant in response to the complainant, which leave was granted and the affidavit was filed on 9th May 2023. The TNDC considered the complainant’s affidavit and rendered its decision on 10th May 2023 by way of forwarding the same to NEC in accordance with Article 14.1.12 of the party constitution and Regulation 51 of the TNDC Regulations. The requirement to forward TNDC decision to NEC is a one stage process and NEC does not sit again in hearing.
39.The interested parties maintain that the complainant was accorded all his entitlements to a fair hearing as underscored in the case of Victoria Mutai & 28Others vs. Kirinyaga University (2020) eKLR and he participated fully in the proceedings through his counsel, that the presence of security during the hearing was informed by the events of 5th May 2023 and had no effect on the complainant’s right to a fair hearing. The date of 10th May 2023 was reserved for delivery of TNDC decision and not for highlighting of submissions as the complainant alleges. The TNDC decision was transmitted to the complainant on 19th May 2023 and it is therefore not true that the complainant did not receive the same.
40.The interested parties further submit that the party constitution established the TNDC and the IDRC. Article 7(10) and 16B mandates IDRC to hear and determine disputes in the party save for disputes of a disciplinary nature. The charges against the complainant herein as set out in the complaint dated 26th April 2023 were of a disciplinary nature and hence within the mandate of TNDC and not the IDRC.
41.It is further submitted that the Chairperson and members of the TNDC were appointed by NEC in the meeting of 26th February 2022 and a resolution to that effect signed by NEC and submitted to the 2nd Respondent who officially acknowledged receipt of the same. The membership of the TNDC remains the same as is evidenced by the confirmation from the 2nd Respondent.
42.The interested parties have denied that the burden of proof was shifted to the complainant as alleged, and they maintain that they were guided by the principle that he who alleges must prove. They submit that the question of constitutionality and or illegality of any of the TNDC regulations and/or the constitution of the party can only be determined by the High Court as it has the exclusive jurisdiction under Article 165 of the Constitution of Kenya.
43.It is the interested parties’ further submission that after the suspension of the complainant vide resolutions of the meeting held on 10th February 2023, the complainant dismissed the 2nd to 4th interested persons from TNDC in an attempt to make the committee dysfunctional. They submit that the argument by the complainant in his objection before TNDC that disciplinary action within the mandate of TNDC related to party members and not officials is not tenable as party officials are in the first place party members and they are not employees of the party, and that the ruling on the objection dated 11th May 2023 was well grounded.
The 6th to 13th Interested Parties’ Case
44.The 7th to 13th Interested Parties relied on the Replying Affidavit and Further Replying Affidavit sworn by Kanini Kega on 29th May 2023 and 12th June 2023 respectively.
45.It is submitted that the 7th interested party (Hon. Kanini Kega) is the acting SG of the Jubilee party. The NEC is established under Article 8.2 of the party constitution and its duties outlined therein to include inter alia ensuring that all decisions made by party organs are duly carried out and all the policies are adhered to and ensuring proper order, discipline, and strict adherence to the party’s constitution, by-laws, and party policies by all officials, members, and all organs of the party. To this end, Article 14.1.12 mandates TNDC to report its findings and decisions to NEC for adoption, ratification, variation or substitution.
47.The interested parties submit that it is not true that the complainant is the party’s SG as he was suspended during a NEC meeting held on 10th February 2023. The complainant challenged his suspension as well as the resolutions of the meeting of 10th February 2023 before this tribunal and the tribunal directed that the dispute be submitted to IDRM.
48.The complainant was charged before the TNDC pursuant to the resolutions of NEC of 10th February 2023 and a complaint filed by the national chairperson of the party. The members of TNDC were appointed by NEC in a meeting held on 26th February 2022 which is the same meeting that had appointed the complainant as SG and its membership has never changed. The complainant was given a fair hearing where TNDC reached a decision that was forwarded to NEC as provided for under Article 14.1.12 of the party constitution. Pursuant to Article 8.2.5 of the party constitution, NEC met and adopted the TNDC decision on 19th May 2023. The acting SG thereafter wrote a letter submitting the minutes of the NEC meeting of 19th May 2023 to the 2nd Respondent before traveling to Arusha, Tanzania to attend his parliamentary business. After the acting SG left, the Deputy SG Hon. Joshua Kutuny noted some errors in the documents that the acting SG had submitted and recalled the acting SG’s letter. After making the necessary changes, the Deputy SG then forwarded the minutes to the 2nd Respondent under his signature. The 2nd Respondent upon review of the submitted documents updated its record and the register of party members. That in the circumstances, the complaint has been overtaken by events and the prayers sought cannot be issued after implementation of the TNDC decision and the NEC resolutions vide the 2nd Respondent’s letter dated 19th May 2023.
49.The interested parties further submitted that they are aware of the IDRC Dispute No. E005 of 2023 where the complainant challenged the legality of the NEC meeting of 10th February 2023, and the IDRC’s finding that the NEC meeting held on 10th February 2023 was properly convened in consonance with the party constitution.
Issues for Analysis and Determination
51.We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the TNDC was duly constituted in accordance with the provisions of the party Constitution/Whether the TNDC had jurisdiction to hear and determine disputes relating to party officials /Whether the Complainant was discriminated against?ii.Whether the Complainant’s disciplinary proceedings were conducted in accordance with the party laws/Whether the Complainant was granted a fair hearing before an independent and impartial TNDC?iii.Whether the findings of the TNDC were in accordance with the law?iv.Whether the 7th to 13th Interested Parties had the legal capacity to ratify the decision of the TNDC / Whether the 7th to 13th Interested Parties were conflicted?v.What are the appropriate reliefs to grant?
52.We must state at this point that in our identification of issues for determination in this matter, we did not highlight the contest revolving around the legality of the NEC meeting of 10th February 2023. This is notwithstanding the fact that parties pleaded and submitted substantively on the same, including the question relating to jurisdiction. We say so because as we have already stated above, the Complaint herein does not seek any relief relating to the subject meeting. In any event, we are alive to the existence of another complaint (PPDTC Complaint No. E010 of 2023) filed before this tribunal whose subject matter is the legality of the NEC meeting of 10th February 2023, and in which complaint we have rendered our decision. We shall therefore say no more in this matter.
Whether the TNDC was duly constituted in accordance with the provisions of the party Constitution/Whether the TNDC had jurisdiction to hear and determine disputes relating to party officials /Whether the Complainant was discriminated against?
53.TNDC is established under Article 14 of the party constitution. Article 14.1(4) of the party constitution grants the TNDC both original and appellate jurisdiction to hear and determine matters relating to or concerning discipline within the party. From the wording of the subject provisions, disciplinary processes against party officials have not been excluded from the TNDC jurisdiction. Our interpretation is that all matters concerning party discipline includes even matters concerning discipline of party officials. We are therefore not persuaded by the Complainant’s submission that the TNDC did not have jurisdiction to hear charges against him, and that the organ with the jurisdiction to hear and determine disputes relating to the officials of the party is the IDRC. We state so as we have also considered the provisions of Article 16B of the party constitution which grants the IDRC the jurisdiction to hear and determine all party disputes other than disputes arising from party nominations and elections and party discipline.
54.With respect to the challenge to the TNDC’s composition, it was submitted that the 2nd, 3rd and 4th interested parties had no capacity to sit in the TNDC for the reason that their appointments at TNDC had been terminated and minutes have been produced to that effect. The Respondents on the other hand maintain that the said interested parties were appointed by the NEC meeting of 26th February 2022 and the subsequent NDC meeting of 22nd March 2022 that ratified the same, which NEC and NDC meetings were the same ones that appointed the Complainant. A letter from the RPP dated 6th June 2023 confirming the TNDC membership was relied on.
55.As we address our minds to this issue, we have considered the role of the Office of the Registrar of Political Parties (ORPP) in keeping register of political parties which register should include an accurate and updated list of the party officials including their full names, addresses, telephone numbers and email addresses as provided for under Section 34(e) of the Political Parties Act 2011 (the PPA) as read together with Rule 9(2)(f) of the Political Parties (Registration) Regulations, 2019. We have further considered the powers of the ORPP to make changes in political party records as provided for under 34C of the PPA and we also note that the law provides for an elaborate process for effecting change in office holders of a political party under Rule 5 of the Political Parties (Registration) Regulations, 2019. There is in fact a requirement for submission of a Notice of Change of Party Officials (Form PP7) as set out in the First Schedule of the subject Regulations. Whereas it is alleged that there were changes to the TNDC composition, we have not been furnished with any such particulars that were filed with the ORPP to reflect the same. The ORPP has confirmed that as per its record on 6th June 2023, the said interested parties were still members of the TNDC. In consideration of the provisions of Section 34(e) and 34C of the PPA as read together with Rules 5 and 9 of the Political Parties (Registration) Regulations, 2019, we find it safer to rely on the letter from the ORPP dated 6th June 2023 in so far as it confirms the TNDC membership as at the date of the subject letter.We accordingly find that the TNDC was duly constituted.
56.The Complainant has further submitted that the TNDC was biased and discriminated against him. According to him, the matters brought to the TNDC pursuant to the complaint dated 26th April 2023 were internal matters concerning officials of the party and should have been referred to IDRC if at all. He compares the charges derived from the complaint and the particulars thereof with the complaints that the complainant herein referred to the TNDC vide his letter dated 20th April 2023, which complaints the TNDC Chairperson referred to the IDRC without notice to him.
57.We have perused the complaint letter dated 20th April 2023 and the Complaint dated 26th April 2023 and we note that both complaints relate to violations of the provisions of the party constitution by party officials. The complaint dated 20th April 2023 for instance states inter alia that “Hon. Nelson Dzuya and Joshua Kutuny in contravention of Article 8.2(5) of the constitution of jubilee party, purportedly convened a National Executive Committee (NEC) meeting on 10th February 2023 and purported to adopt far reaching resolutions that inter alia countermanded lawful decisions of the National Delegates Convention, the Supreme organ of the party.” The complaint dated 26th April 2023 against the Complainant herein states that the Complainant spoke on behalf of the party without reference to party organs and made pronouncements that are beyond the description to his official duties including “purporting to convene a National Delegates Convention without consulting the relevant party organs; purporting to issue a letter dated 11th August 2023 without consulting NEC; purporting to issue letters dated 10th February 2023 inviting members to disciplinary proceedings, failure to convene NEC” etc. Needless to note, both complaints constituted acts of commission or omission by party officials.
58.We note from the record that with respect to the complaint dated 20th April 2023, TNDC found that it had no jurisdiction. However, with respect to the complaint against the Complainants, TNDC assumed jurisdiction and delivered its decision with very express findings in relation to the highlighted particulars. We in the circumstances agree with the Complainant that there was some form of discrimination that was meted against him by the TNDC and this renders TNDC biased and/or impartial in the manner in which they handled the disciplinary proceedings against the Complainant as compared to the complaint by the Complainant to the TNDC against Hon. Nelson Dzuya and Hon. Joshua Kutuny as per the 20th April 2023 complaint.
59.In Isaac Mwaura Maigua v Jubilee Party & 3 others [2021] eKLR, the High Court on an appeal against this tribunal’s decision stated as follows:-“…The tribunal in its decision came to the conclusion that the 1st respondent did not discriminate against the complainant in the disciplinary process. The tribunal stated in page 10 of its judgment in part as follows: “Indeed, his attempt to show that other party members had been treated differently was countered at the cross-examination of the party secretary General (S.G) when the said SG stated that all cases the party always gave some leeway and opportunity to errant members to conform before taking disciplinary action against them .........Further the complainant did not present or substantiate other similar cases that may point to bias or discrimination. We are therefore of the considered opinion that the complainant was granted a fair hearing.” 52) The proceedings before the tribunal clearly show that the secretary general of Jubilee party testified before the tribunal. In cross- examination at pages 22-23 the 1st respondent’s SG stated in part as follows:“I took issue of the involvement of the complainant to UDA. UDA previously known as PDR PDR has a coalition agreement with Jubilee party .....Jubilee was in coalition agreement with people Democratic party but changed to UDA. The coalition agreement is not complete. There was a big election in Kibra, I am aware Jubilee Party members campaigned for ODM and the party had a candidate. Matter was raised to Sakaja but we did not have a scenario similar to this where party member went against ODM cannot have coalition. I do not know of disciplinary proceedings against Sakaja and Maina kamanda….’The question is whether the tribunal erred in finding that the appellant was not discriminated against in the entire disciplinary process. I have already taken into account the rival submissions over this issue. It is apparent from the proceedings conducted before the tribunal that the 1st Respondent’s Secretary General admitted that the 1st respondent had a coalition agreement with PDR which later changed to UDA.…It is also evident that the appellant was accused of inter alia that he advanced the policies of another political party namely UDA. The proceedings further indicate that some members of the 1st respondent namely Sakaja and Maina Kamanda supported the ODM candidate in the Kibra by-election yet they were not summoned to undergo any disciplinary process like the appellant.… With respect, I am persuaded by the appellant’s argument that the 1st respondent selectively conducted disciplinary proceedings against him for associating himself with another political party just like the other named parties. The tribunal therefore fell into error when it held that the appellant was not discriminated in the entire disciplinary process. The appellant did not need to tender further evidence to establish discrimination since the evidence of the 1st respondent’s S.G was sufficient to establish the allegation of discrimination.…”
60.We are guided by the court’s reasoning and finding in the above case and we find no reason to depart from the same. We accordingly find that the Complainant was discriminated against.
Whether the Complainant’s disciplinary proceedings were conducted in accordance with the party laws/Whether the Complainant was granted a fair hearing before an independent and impartial TNDC
61.Article 38 of the Constitution of Kenya guarantees every citizen political rights including the right to participation in activities of a political party. Article 47 of the Constitution also guarantees every citizen the right to constitutional due process. Whenever a member of a political party is deprived of this right through disciplinary proceedings such as expulsion, such a member is entitled to due process. This includes the right to notice and a fair hearing prior to the administration of any harsh punishment. In order to establish whether there was legal compliance in the disciplinary proceedings against the Complainant, it is therefore necessary to first and foremost outline the various constitutional, statutory and party laws that we consider of relevance to the subject matter herein.
62.The material part of Article 47 of the Constitution provides for the right to fair administrative action as follows:
1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
63.Additionally, the Fair Administrative Action Act, 2015 at Section 4(3)&(4) details the ingredients of fair administrative action thus:
1.Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.
2.The administrator shall accord the person against whom administrative action is taken an opportunity to—a.attend proceedings, in person or in the company of an expert of his choice;b.be heard;c.cross-examine persons who give adverse evidence against him; andd.request for an adjournment of the proceedings, where necessary to ensure a fair hearing.
64.Section 7(2) of the Fair Administrative Action Act, 2015 provides grounds upon which a court or tribunal may review an administrative action. The grounds include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power.
65.The importance of the constitutional right of fair administrative action was appreciated in the South African case of President of the Republic of South Africa & others v South African Rugby Football Union & others (CCT16/98) 2000 (1) SA 1 where it was held that:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”
66.In conducting review of disciplinary proceedings, the right to fair administrative action cannot be divorced from the right to fair hearing provided for under Article 50 of the Constitution even though the rights are distinct as observed by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR.
67.In our view fair administrative action imports the principles of natural justice. In Onyango Oloo vs. Attorney General [1986-1989] EA 456, it was held:“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...To “consider” is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion... “Consider” implies looking at the whole matter before reaching a conclusion...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decisionmaking body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”
68.In Republic vs. The Honourable The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004, the Court expressed itself as follows:“Whereas the rules of natural justice are not engraved on tablets of stones, fairness demand that when a body has to make a decision which would affect a right of an individual it has to consider any statutory or other framework in which it operates. In particular it is well established that when a statute has conferred on a body the power to make decision affecting individuals, the courts will only require the procedure prescribed to be introduced and followed by way of additional safeguards as that will ensure the attainment of fairness. In essence natural justice requires that the procedure before any decision making authority which is acting judicially shall be fair in all circumstances. .…Although the courts have for a long time supplemented the procedure that had been laid down in a legislation where they have found that to be necessary for that purpose, before this unusual kind of power is exercised, it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of legislation. Additional procedural safeguards will only ensure the attainment of justice in instances where the statute in question is inadequate or does not provide for the observance of the rules of natural justice. The courts took their stand several centuries ago, on the broad principle that bodies entrusted with legal powers could not validly exercise them without first hearing the people who were going to suffer as a result of the decision in question. …. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing just as much a cannon of good administration is unchallengeable as regard its substance. The courts can at least control the primary procedure so as to require fair consideration of both sides of the case. …. As part of a reasonable, fair and just procedure the court has a cardinal duty to uphold the constitutional guarantees, the right to fair hearing which entails a liberal and dynamic approach in order to ensure the rights enjoyed by an individual is not violated...”It follows that this Court has the powers to interfere with the decision of the Respondent arrived at in the exercise of its statutory mandate where the Respondent’s powers are not validly exercised. To make a decision adversely affecting the applicant without affording the applicant an opportunity of being heard is in my view such invalid exercise of power warranting this Court to interfere.In my view the respondent broke all the procedural rules relating to fairness in its proceedings. It issued prejudicial orders on a mention date; it did not bother to confirm whether its directions were complied with in order to ensure the fairness of the process; and it did not confirm whether the Applicant was duly notified at every stage of the proceedings. Accordingly, its decision cannot be allowed to stand…”
69.The right to fair hearing and fair administrative action and application of the rules of natural justice before the TNDC has been codified in Article 14.1.11 of the Jubilee Party Constitution as read together with the Jubilee Party National Disciplinary Committee Regulations, 2022 (TNDC Regulations). The TNDC Regulations has the following elaborate provisions governing Jubilee party disciplinary proceedings: -i.Regulation 6 provides that the objective of disciplinary procedure is to ensure that in all disciplinary proceedings:a.There is a formal procedureb.There is a just and fair procedurec.A member is presumed innocent until proven guiltyd.A member has a chance to defend herself or himself.ii.Regulation 8 of the TNDC Regulations makes provision for preparation and service of a charge sheet and a hearing notice upon a charged party member.The details of the charge sheet as set out therein includes the following:-a.The charge sheet to be in writing as set out in Form A of the First Scheduleb.The charge sheet to set out details of description of the violation or act of misconductc.Provide the date and place of the offenced.Identify the provisions of the Constitution or party rules that have been violatede.Give a date and time for hearing.iii.Regulation 10 provides that the summons shall contain the following information: -a.Inform the charged member of his or her right to be represented by an advocate or a member of the party before the disciplinary enquiry commences.b.Provide the date, time and venue for the hearingc.Inform the charged member that the disciplinary proceedings will be a one stage inquiry and that he or she will also be required to lead evidence in mitigation of sanction if so desiredd.Inform the charged member that his or her defense shall be by sworn affidavits as he/she may consider necessary in support of his/her request; provided that the charged member may request for oral evidence to be adducede.Inform the charged member that if he or she does not appear at the venue on the date and time determined for such proceedings or does not remain in attendance when required to do so by the committee, the proceedings will continue in the absence of the charged member.iv.Regulations 9, 11 and 12 make provisions on service of charge sheet and proof of service as follows: -a.It is preferable that the charge sheet is served personally on the charged member.b.If personal service is not possible, the charge sheet and summons shall be sent by email to the last known email address, mobile enabled messaging applications to the last known telephone number of charged member, registered post to the last known address, or pint and social media.c.A return of service sworn by a member of the party duly authorized to effect service of summons shall constitute sufficient proof of service.v.Pursuant to Regulation 13 and 14 of the TNDC Regulations, the charge sheet and all relevant documents should be served upon the charged party member within 48 hours prior to the hearing date. Regulation 5 provides for expeditious determination of disputes presented before TNDC within reasonable time from the date the charge sheet is served.vi.The Regulations make further elaborate provisions on conduct of hearings before the TNDC including the reading of the charges by the Chairperson of the TNDC to the charged member and the taking of plea, proceedings following plea of guilty, proceedings following plea of not guilty, the onus of proof, hearing and close of the complainant’s case, hearing and close of the charged member’s case, arguments, adjudication, ruling and sanction, and announcement.vii.We also take note of Regulation 8 which provides that a disciplinary process commences with service of a charge sheet and a hearing notice.
70.In the case at hand this Tribunal has been invited to consider whether the disciplinary proceedings subject hereof upheld procedural fairness in consonance with the foregoing legal provisions and procedural laws that govern TNDC. It is therefore inescapable to scrutinize the record to check whether the 1st Respondent’s TNDC conducted the disciplinary process against the Complainant in accordance with the law. This is in line with our finding in PPDTC No. E003 of 2021 Sen. Mary Yiane & 4 Others vs. Jubilee Party & Anor, where we observed as follows:-“…In another case of Republic vs. Chuka University ex-parte Kennedy Omondi Waringa & 16 Others [2018] eKLR, it was held that a tribunal or administrative body that makes its own rules must be prepared to adhere to those rules regulating the execution of its business and where it fails to do so, then the Court will not hesitate to intervene to declare the actions or failure to adhere to those rules ultra vires.
26.Based on the foregoing, we cannot see the party provisions that support the 1st Respondent’s averments that the disciplinary process was in line with the party laws and procedures. In deed from our analysis, a disciplinary process would commence, as per the laws of the party, by way of a clearly laid out process that would leave no doubt of question in the mind of those engaged as to what was going on. Undoubtedly expulsion of a person from a party has serious implications, thus when an entity such as a political party outlines a clear process, more so the manner in which its membership will become aware that such serious process has been initiated against them, then such process need be clearly initiated.
71.And in Gathigia vs Kenyatta University Nairobi HCMA No. 1029/2007 [2008] KLR 587 where the Court held:-“i.if a statute prescribes, or statutory rules and regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed;ii.if no procedure is laid down, there may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue;iii.In such a case the tribunal, which should be properly constituted, must do its best to act justly and reach just ends by just means. It must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as a trial. It need not examine witnesses; and it can obtain information in any way it thinks best……….;iv. The person accused must know the nature of the accusation made;v.A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view and to make any statement they may decide to bring forward; [underlined parts our own]
72.We have examined the record and made various observations on the chronology of events in the Complainant’s disciplinary process. Our starting point is the charge sheet which the TNDC has submitted was drawn based on the complaint that was lodged before it and the particulars that were furnished. We have perused the Charge Sheet and we note that the same expressly states that the Jubilee party (the complainant before TNDC) referred a complaint against the Complainant herein on 24th April 2023. The hearing notice and summons that were prepared pursuant to the TNDC Regulations also refer to a complaint lodged on 24th April 2023. However, from our record, there is only one Complaint Form A dated 26th April 2023 that requests for disciplinary action against the Complainant herein. The subject document shows that it is signed by the Chairperson of Jubilee Party on behalf of the complainant before the TNDC. It is the same document that the TNDC Chairperson has annexed to her Replying Affidavit. We have not seen any other complaint form or letter against the Complainant herein. The charge sheet as drawn, the summons and hearing notice were in the circumstances defective as they related to a different complaint before the TNDC.
73.With respect to service of charge sheet, summons and hearing notice for 5th May 2023, we note that there was a contest as to date of service as the Complainant claims that he was served by way of WhatsApp on 4th May 2023, and the TNDC on the other hand claim that the complainant was served via WhatsApp on 2nd May 2023. Most importantly, we note that whereas the TNDC Regulations that we have outlined above are clear that personal service is the preferred mode of service and that alternative modes of service under Regulation 11 thereof can only be resorted to if personal service is not possible, this regulation was not complied with. The TNDC claim to have served through WhatsApp in the first instance. The TNDC did not, however, file a return of service to confirm proof of service as is provided for under the TNDC Regulations above.
74.We have also considered the record as regards the events of 5th May 2023 and the TNDC, Nelson Dzuya and the Complainant herein all agree that the hearing did not proceed on the material date due to various reasons including interference with the venue and instances of breach of security. According to the Complainant, an informal session was held when parties were advised that the matter was adjourned and that a hearing date would be communicated. The TNDC Chairperson has however averred that after the Complainant’s counsel left, a venue was availed to the TNDC and a formal session was held at 1pm. Apparently, as per the proceedings on record, the Complainant’s counsel was requested to wait until 12.30pm but he had to leave for other commitments. We have looked at the proceedings of 5th May 2023 and we make the following observations: -i.The record of the TNDC on the time of the formal session that was conducted on 5th May 2023 is contradictory. Whereas the TNDC Chairperson has stated that there was a formal session of the TNDC at 1pm, the record of the TNDC proceedings for 5th May 2023 show proceedings were conducted at 2pm. The TNDC Orders made on the 5th May 2023 on the other hand indicate on the face thereof that TNDC sitting was at 1.30pm.ii.There seems to be some variations between the directions issued in the record of proceedings of 5th May 2023 and the extracted TNDC Orders dated 5th May 2023.a)As per the proceedings, the directions of the TNDC were that;“…1)The matter is hereby adjourned for further hearing on Monday 8th May at 2pm2.The venue will be communicated by close of business today3.We shall give directions as to who shall be expected to be present for that hearing.Those are the orders of the Committee…”b)The Order dated 5th May 2023 on the other hand read as follows;“1.That the hearing of the complaints is hereby adjourned to 8th May 2023 at 2pm at Gracia Gardens along Dennis Pritt Road2.Due to security reasons, the Committee hereby invokes Rule 14 (b), (c ), and (d) of the National Disciplinary Committee (TNDC) Regulations 2022 and directs that only the person named therein shall be admitted at the said sitting3.Persons who are eligible to appear under Rule 14( e) shall only be those who have filed sworn statements with the Committee prior to the hearing.
4.A reasoned ruling shall be delivered on notice…”
iii.The Order of 5th May 2023 implies that there was a pending ruling whose subject is not reflected in TNDC’s own proceedings.
75.We have also looked at the proceedings of 8th May 2023 and 10th May 2023 and we make the following observations:i.As we have already observed above, the formal session for Friday 5th May 2023 was conducted in the afternoon and hearing date was fixed for Monday 8th May at 2pm in the absence of the Complainant and his Counsel. It follows that the earliest that the Complainant would have been served with the hearing notice is the afternoon of Friday 5th May 2023 for a hearing on Monday 8th May 2023 at 2pm.ii.The Complainant’s counsel sought for an adjournment to allow him adequate time to prepare and file affidavit but the same was declined. From the annexed proceedings, the reason for refusing the adjournment was that ‘directions were issued and served on 5th May 2023’ and that the Complainant’s counsel had not ‘sufficiently explained why he is not ready to proceed.’iii.The Complainant was not present in person on the hearing date of 8th May 2023, but was represented by his Counsel. Be that as it may, the record of TNDC proceedings of 8th May 2023 does not reflect how the procedure for reading of charges and taking of plea under the TNDC Regulations outlined above was handled by the TNDC. Contrary to TNDC Regulations 24 and 25, there is no record of either a plea of guilty or not guilty.iv.The Complainant’s Counsel raised a preliminary objection that proceeded for hearing on 8th May 2023 and a ruling was given on the same date and the reasoned ruling was to be furnished later. From the record, we note that the reasoned ruling is dated 11th May 2023 after the delivery of the TNDC Judgment on 10th May 2023. Suffice it to note that the ruling on the preliminary objection gives orders as relates to further hearing.v.After the ruling on the preliminary objection was delivered, the TNDC proceedings show that the Complainant’s Counsel again sought for time to file Affidavit and also indicated that he would proceed using written submissions. The TNDC however stuck to its earlier pronouncement that the matter should proceed.vi.The TNDC Regulations set out an elaborate procedure for disciplinary hearing where a plea of not guilty is entered. The same has been highlighted above and includes the hearing and closing of the complainant before the TNDC’s case, hearing and close of the charged member’s case, arguments, etc. From the record of the TNDC proceedings furnished, it is evident that the TNDC did not adopt the order of proceedings that its own regulations provide for. As we have already observed, there is no record of plea taking after the hearing and dismissal of the preliminary objection.vii.After the close of the complainant before the TNDC’s case, the TNDC Regulations provide for the opening and close of the charged member’s case. From the TNDC proceedings in respect of the Complainant’s case was to the effect that he was granted leave to file an affidavit with corresponding leave to respond by the morning of 10th May 2023. TNDC gave directions for delivery of Judgment on 10th May 2023 without any consideration for the earlier request by the Complainant’s Counsel for written submissions or without affording the parties an opportunity to present arguments, which may include arguments in aggravation of or mitigation of sanction as provided for under Regulation 44 of TNDC Regulations.viii.On 10th May 2023, TNDC Chairperson informed the parties that Judgment was ready and that the TNDC members were signing the same in the presence of the parties. The Judgment was however not delivered to the parties but forwarded to NEC. Notwithstanding that the final order of TNDC decision expelled the Complainant with effect from the date of the decision which is dated 10th May 2023, the Complainant was not made aware of the decision.ix.Further, the TNDC did not heed to the Complainant’s Counsel’s request to file written submissions notwithstanding the same having been presented once again on 10th May 2023.
76.From our above observations, there was lack of procedural fairness in various ways.Service of the charge and summons was not procedural in accordance with TNDC Regulations, the reasoned ruling on the dismissal of the preliminary objection was not delivered to the parties until after judgment, the complainant and his advocate were not given sufficient time to prepare for the complainant’s defence bearing in mind service was done on afternoon on Friday 5th May 2023 for hearing on Monday 8th May 2023, and the Complainant’s counsel’s requests for adjournment was declined, hearing was conducted without allowing the Complainant opportunity to present his written arguments/submissions in accordance with TNDC Regulations despite his request. All these issues have been subject of litigation in various cases which we now highlight below.
77.Courts and this Tribunal have had an opportunity to pronounce themselves on the question of service and adequacy and sufficiency of notice. In Joseph Nyandiko Nyanchama v Kenya Pipeline Company Limited [2019] eKLR, the Court stated: -“
…66.The Petitioner was issued with a show cause letter and asked to respond within 48 hours. He wrote an email to the Respondent’s Human Resource asking for extension of time within which to respond and requested for further information and copy of the investigation report. The Respondent did not respond to his request.
67.From the onset therefore, the Respondent breached the Petitioner’s right to a fair hearing, which include the right for sufficient time to prepare and to be given the necessary documents and materials to prepare for his case as envisaged under Articles 47 and 50 of the Constitution…
69.In the scenario provided above, the Petitioner was denied adequate time to respond to allegations against him and adequate material to prepare for the case. Despite a disciplinary hearing being conducted, the Respondent’s action/omission negated a proper disciplinary action which is free and fair and therefore this Court finds that the Petitioner was not accorded a fair hearing.
70.From the foregoing analysis, this Court finds the termination of the Petitioner unfair and unjustified and in breach of the Petitioner’s rights to a fair hearing under Article 47 and 50(1) of the Constitution and Article 41 of the Constitution in breach of fair labour practices…”
78.Similarly in the case of Munir Sheikh Ahmed v National Bank of Kenya [2020] eKLR, the Court pronounced itself as follows:-“…In the reply to the letter to show cause, the petitioner lamented that the time allowed to prepare his defence was short. He states that he raised the same issue at the disciplinary hearing. The respondent failed to exhibit the minutes of the disciplinary hearing. Accordingly, the Court finds no reason to doubt the petitioner’s account of his objection to the short time of 24 hours allowed to prepare his defence prior to making a substantive written response and subsequently appearing for the disciplinary hearing. …. The Court therefore finds that while the respondent purported to comply with section 41 of the Employment Act, 2007 on a notice and hearing prior to the termination, the petitioner was seriously prejudiced in view of the very short time allowed to prepare the defence and in view of the otherwise vague allegations devoid of due particulars and as the petitioner had objected to…”
79.This Tribunal had an occasion to pronounce itself on the same issues whilst referring to the TNDC Regulations in the case of Isaac Mwaura Maigua v Jubilee Party & Another [2021] eKLR (PPDTC No. E002 of 2021), where the tribunal observed as follows:-“….36. With respect to the allegation of sufficiency of notice and service of evidence, we note that the NDC Regulations are express that summons should be served within 48 hours prior to the hearing. The Regulations further makes provisions for timelines for service of evidence. From the record, it is evident that the 1st Respondent dealt within the timelines that guide the party’s disciplinary process as prescribed in the party laws. If the Complainant felt that the notice period was nevertheless insufficient, the question we ask ourselves is whether he sought for an adjournment and/or more time prior to the commencement of the NDC hearing. From our perusal of the record, there is no evidence that the Complainant sought and was declined an adjournment of the proceedings to allow him what he considered sufficient time to prepare. In fact from the NDC minutes already referred to above, the Complainant was granted an opportunity to adjourn the proceedings but his defence team insisted on proceeding with the hearing.
80.However, in an appeal against the above Tribunal’s decision to the High Court in Isaac Mwaura Maigua v Jubilee Party & 3 others [2021] eKLR (High Court Civil Appeal E248 of 2021), the High Court disagreed with the Tribunal and stated as follows:-“…47) The thinking of the Tribunal that since the appellant did not seek for an adjournment to enable him prepare for his defence meant he was given a fair hearing, in my view is wrong.…. 48) 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 49) This court is satisfied that the appellant was not accorded a fair hearing notwithstanding the fact that the appellant did not apply for adjournment of the hearing of the disciplinary proceedings. The Tribunal therefore erred when it held that the appellant was granted a fair hearing. 50) It is apparent that on the face of it that the 1st respondent breached its Constitutional and its Disciplinary Regulations. It also goes without saying that the 1st respondent breached Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act, 2015…”
81.In PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, which decision was upheld by the High Court in we stated:-“…The Complainant is further aggrieved that his right to fair hearing was impaired by the Respondent who refused to afford him reasonable opportunity to access all records and information concerning the financial activities of the party so as to enable him to respond to the charges.….In the case of Dennis Edmond Apaa & 2 Others v Ethics and Anticorruption Commission & Another [2012] eKLR, the court affirmed that the right to fair hearing includes the right to be informed in advance of the evidence upon which charges are based and to reasonable access to the same. The Tribunal is of the considered opinion that considering the gravity of the allegations, adequate provision and need not have been afforded the Complainant despite his failure to submit a written response within the short time allowed him. Indeed we note from the record of the said disciplinary proceedings that another Member of the party was allowed time to present herself before the Committee at a future date…”
82.We have considered the reasoning in the above decisions and the observations we have made above relating to late service of the hearing notice barely a working day to the date of the hearing, the requests for adjournment and an opportunity to file arguments, all of which were declined by the TNDC, under circumstances that we consider were unreasonable. What prejudice would have been suffered by the TNDC or the complainant before the TNDC if the Complainant herein was granted an opportunity to present submissions? Or an adjournment for just one day in a matter where there was no strict timeline for determination of the dispute? Suffice it to note that the charges were dated 2nd May 2023 and the hearing date of 5th and 8th May 2023 was barely one week from the date of preferring the charges. Was there some magic in the date of 10th May 2023 that the decision had to be made then without considering giving the parties a fair chance?
83.The refusal to accommodate submissions or arguments which are provided for in the TNDC Regulations as highlighted above went to the root of even denying the Complainant an opportunity to mitigate hence suffer prejudice, yet mitigation is provided for as of right in the TNDC Regulations. Sanctions by TNDC were accordingly given without a hearing on the same. It is not in our opinion enough to say that the Complainant filed an affidavit. An opportunity to present submissions should have been considered even with limited timelines. Indeed in Republic v Advocates Disciplinary Tribunal & another Ex Parte Asige Japheth Savwa [2016] eKLR, Court observed that: -“…23.Since the parties had agreed that the matter would be heard by way of affidavits, some form of a hearing was contemplated. However, according to the Respondent when the matter came for mention on 24th August, 2015 the Respondent Tribunal proceeded to give a judgement date……..24.In my view even where the hearing is supposed to be by way of affidavit evidence unless the parties indicate that they do not intend to address the Tribunal, the Tribunal ought to hear them either orally or by way of written submissions…”
84.By virtue of the afore-stated procedural irregularities touching on service, adequacy and sufficiency of notice as observed above, we find that the Complainant’s right to a fair hearing was breached.
85.We had further observed that the Complainant was not informed of the decision on 10th May 2023 when he appeared before the TNDC. Interestingly, the TNDC record reflects that TNDC indicated that they were signing the decision in his presence. Was his attendance for that date ceremonial just to witness the signing of the decision? We note that the decision of 10th May 2023 ordered that the Complainant was expelled from the party with effect from the date of the decision. Notwithstanding the provisions of the TNDC Regulations, we find it most unprocedural that TNDC did not communicate to the Complainant its decision on the same date yet the decision went to the root of affecting the Complainant’s right under Article 38 of the Constitution of Kenya. Interestingly, the outcome was known by third parties even before he knew it! The question of failing to furnish the Complainant the decision and its reasoning in good time as we have observed above in respect to proceedings of 8th and 10th May 2023, has not been without litigation. In Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that: -“… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.”
86.Similarly in PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, we stated:-‘…Whereas the Complainant alleges that the reasoned decision subject hereof was not availed to him despite having requested for the same, the Respondent argues that the subject decision was communicated to the Complainant vide the Respondent’s letter dated 19th March 2019. From the record, there seems to be no reasoned decision but a record of the purported disciplinary proceedings and a verdict dated 19th March 2019 signed by the Disciplinary Committee. The complainant avers that he only had sight of this record two months later when he was in the process of filing the instant proceedings. We agree with the Complainant that the right to be supplied with a decision under Sections 5(1)(d) and 6(1) of FAA Act is a substantive right intended to determine whether the decision was made in compliance with the law and to facilitate the right to review or appeal…”
87.In the case of Republic vs. Firearms Licencing Board and & others exparte Julius Okeyo Owidi (2018) e KLR the Court expressed itself in the following words relating to this issue.“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”. Disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.”
88.Taking into consideration the wholesomeness of the facts and circumstances of this case, the law and the foregoing judicial authorities, we find that the disciplinary process against the Complainant was tainted with a lot of procedural irregularities and the same was conducted in breach of Article 47 and 50 of the Constitution of Kenya, Section 4 and 7 of the Fair Administrative Action Act, the Jubilee party Constitution and the TNDC Regulations, and the principles of natural justice.
Whether the findings of the TNDC were in accordance with the law
89.We have already made a finding that the TNDC disciplinary proceedings against the Complainant were conducted in breach of the law. Consequently, the same attracts an order for setting aside ex debito justitiae. Our finding under this issue is therefore inconsequential.
90.Further in any event, we are alive to the fact that a political party retains the right to discipline its member and we can only interfere with that right when due process is not complied with as was in this case. This does not mean that the party cannot institute fresh disciplinary proceedings against the Complainant if they so wish and provided there is legal compliance. If we elect to examine the legality of the TNDC decision in this judgment, we will have to scrutinize the evidence and get into the arena of the merits or otherwise of the charges. Should we do so, we may make certain statements that may prejudge or prejudice the merits of the charges and the party’s right to discipline the Complainant. We have accordingly elected not to make a finding under this issue.
Whether the 7th to 13th Interested Parties had the legal capacity to ratify the decision of the TNDC / Whether the 7th to 13th Interested Parties were conflicted?
91.The Complainant submitted that as per the Gazette Notice No. 3195 of 2022, the members of NEC were appointed by the NDC of 22nd March 2022 and subsequently by the meeting of 22nd May 2023, and that the purported adoption of the impugned decision of the TNDC by a NEC meeting of 19th May 2023 could only have been validly done by the NEC properly convened by the SG or the party leader as authorised by the party delegates.
92.We note from the record that there is a contest as to the legitimate members of NEC that should have sat in the NEC meeting of 19th May 2023. As we have earlier on observed, both parties agree that NEC members as at 10th February 2023 were those ratified by the NDC meeting of 22nd March 2022. Submissions have been made by both parties that there were changes to NEC. However, none of the parties have furnished this tribunal with any evidence of change of particulars with the ORPP. Nelson Dzuya deposed in his Affidavit on record that the party submitted returns to the ORPP. In support, he annexed a page of a form reflecting changes in signatories. No applicable forms relating to changes in NEC or party officials as outlined above were however annexed.
93.The contest in this matter on the composition of NEC is a good reason why this Tribunal should be cautious in relying on minutes of party meetings and resolutions thereof as the sole document to demonstrate conclusive proof of changes in party officials. This is because, a great number of contests on party leadership have been characterized by confusion occasioned by different centres of power within the same political party convening and often generating minutes with parallel resolutions. It is for this reason that in consideration of the role of the ORPP under Section 34 of the PPA as alluded to above, and unless there is a dispute as to the ORPP’s refusal to effect changes, this Tribunal has been considering minutes together with record of change of particulars as held with the ORPP.
94.We note that the ORPP has sworn an affidavit annexing only confirmation of membership of TNDC and not NEC. In the circumstances, we are accordingly left with no option but to rely on the undisputed list ORPP record of Jubilee Party NEC members as at 10th February 2023 in the absence of any conclusive evidence of change of the subject particulars. Accordingly, noting that the list of attendees who attended the meeting of 19th May 2023 does not tally with list of NEC members as at 10th February 2023, and also considering that many persons who attended NEC meeting of 19th May 2023 are not listed in the earlier list, we find that the NEC meeting of 19th May 2023 was not properly constituted. Applying the same reasoning, we also find that the notice convening the subject meeting of 19th May 2023 was irregular and in breach of Article 8.2(5) of the party constitution as it was not convened by the legitimate SG as per the ORPP record at the material time.
95.It has further been submitted that the 7th to 14th interested parties were conflicted, and that NEC proceeded to ratify the TNDC decision without granting the Complainant an opportunity to mitigate contrary to Regulation 26 of TNDC Regulations which provide that the charged member shall have the opportunity for mitigation before sanction. As we had already observed above, there were instances of conflict of interest that we can decipher from the record. The Complainant’s accusers attended NEC meeting of 10th February 2023 that recommended disciplinary action against him; that NEC again convened meeting of 19th May 2023 to adopt, confirm and ratify the judgment of TNDC. The party Chairperson was conflicted as he sat in the meeting of 10th February 2023, wrote the complaint to the TNDC, participated in the appointment of the chairperson of the TNDC, was the party’s sole witness before the TNDC, and sat in the NEC meeting to receive and ratify the decision of the TNDC.Fatuma Dullo and Wambui Gichuru also sat in NEC meeting of 19th May 2023 yet were also conflicted having been cited as aggrieved parties in the charges that were framed against the Complainant herein.
96.In Amani National Congress Party v Godfrey Osotsi & another [2021] eKLR, where this Tribunal had found conflict of interest in the ANC party SG sanctioning the charges and sitting to ratify the same, the High Court on an appeal against the subject tribunal decision observed:-“…There is also the complaint by the respondent that the Disciplinary Committee and National Executive Council were conflicted. This is a serious allegation in administrative justice system. The respondent having been removed as the Secretary General of the appellant, his successor is the one who was driving the disciplinary process. There is nowhere in the material presented that any of those members declared a conflict of interest….My assessment of the records presented is that the appellant fell short of the required standards in the disciplinary process and compliance with the law in addressing its differences with the respondent. There is no room to depart from the decisions reached by the PPDT in the two appeals...”
97.Taking into consideration the foregoing, we find that the 7th to 13th Interested Parties had no legal capacity to ratify the decision of the TNDC, and further that the said interested parties were in any event conflicted.
What are the appropriate remedies in the present instance?
98.Having found that the disciplinary process against the Complainant was conducted in breach of Article 47 and 50 of the Constitution of Kenya, Section 4 and 7 of the Fair Administrative Action Act, the Jubilee party Constitution and the TNDC Regulations, and the principles of natural justice, and further having found that the 7th to 13th Interested Parties had no legal capacity to ratify the decision of the TNDC, and further that the said interested parties were in any event conflicted, it follows that the TNDC decision of 10th May 2023 is an illegality and cannot stand. Similarly, the purported ratification of the TNDC decision by NEC on 19th May 2023 cannot also stand.
99.On the question of costs, the same ordinarily follows the event. We have considered the circumstances surrounding this case and more so the conduct of the TNDC and we find no reason to depart from this principle. We accordingly award costs to the Complainant as against the 1st respondent and the Interested parties.
Disposition
100.Considering the foregoing, we would have granted the following orders: -a.A declaration be and is hereby issued that the Complainant was not given a fair hearing in accordance with Article 47 and 50 of the Constitution.b.The Decision/Judgment of the Jubilee Party National Disciplinary Committee dated 10th May 2023 against the Complainant herein and be and is hereby set aside in its entirety.c.The purported adoption and/or ratification of the Decision/Judgment of the Jubilee Party National Disciplinary Committee dated 10th May 2023 against the Complainant herein by NEC on 19th May 2023 be and is hereby overturned.d.Costs of these proceedings are hereby awarded to the Complainant as against the 1st Respondent and the interested parties.
DATED AND DELIVERED AT NAIROBI (AS A DISSENTING OPINION) THIS 10TH DAY OF JULY 2023.HON. DESMA NUNGO HSC - (CHAIRPERSON)HON. GAD GATHU - (MEMBER)HON. STEPHEN MUSAU - (MEMBER)
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Act 4
1. Constitution of Kenya 27942 citations
2. Employment Act 5272 citations
3. Fair Administrative Action Act 1990 citations
4. Political Parties Act 646 citations

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