Ojienda v Orange Democratic Party & another (Complaint E007 (KSM) of 2023) [2023] KEPPDT 1274 (KLR) (29 November 2023) (Judgment)
Neutral citation:
[2023] KEPPDT 1274 (KLR)
Republic of Kenya
Complaint E007 (KSM) of 2023
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
November 29, 2023
Between
Prof. Tom Odhiambo Ojienda SC
Complainant
and
Orange Democratic Party
1st Respondent
Office of the Registrar of Political Parties
2nd Respondent
Judgment
Introduction
1.The Complainant is a Senior Counsel and a life member of the Orange Democratic Movement (ODM) party, the 1st Respondent herein. He was elected as Senator of Kisumu County in the August 2022 General Elections under the ODM Party ticket.
2.However, on 6th September 2023, the 1st Respondent issued a presser to the public to the effect that the 1st Respondent’s National Executive Committee (NEC) had passed a resolution to adopt the Recommendations of the 1st Respondent’s Disciplinary Committee (DC) to deem the Complainant as having resigned from the ODM party.
3.Aggrieved by the stated DC Recommendation, the Complainant filed the instant Complaint dated 11th September, 2023 (hereinafter referred to as the Complaint) wherein he seeks the following Orders from the Tribunal:i.A declaration that the decision of the 1st Respondent to expel the Complainant from the ODM party is illegal, premature and incapable of being implemented for having been made without the ratification of the National Governing Council.ii.An order quashing the 1st Respondents decision to expel the Complainant from the ODM party.iii.An order declaring the disciplinary proceedings by the 1st Respondent conducted against the Complainant on 25th July, 2023 unprocedural, unlawful and in violation of the right to a fair administrative action and fair hearing.iv.A declaration that the disciplinary proceedings by the 1st Respondent conducted against the Complainant on 25th July, 2023 violated the Political Parties Act, the Fair Administrative Actions Act and Article 75(5) and (6) of the 1st Respondent’s Constitution.v.A declaration that the Committee of the 1st Respondent convened on 25th July, 2023 was not properly constituted.vi.A declaration that by singling out the Complainant for disciplinary proceedings discriminated against the Complainant.vii.A permanent injunction restraining the 2nd Respondent from removing the name of the Complainant from the register of members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023.viii.A permanent injunction restraining the 1st Respondent from interfering with, de-whipping or in any other manner attempting to remove the name of the Complainant from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023.ix.Any other order that this Honourable Tribunal may deem fitx.Costs of the suit.
4.The Complaint was filed together with a Notice of Motion Application dated 11th September, 2023 under Certificate of Urgency (hereinafter referred to as the first application) in which the Complainant sought the following orders:i.Thatthe Application be certified as urgent and heard ex-parte in the first instance.ii.Thata conservatory order be issued staying the implementation and/or execution of the decision to expel the Complainant/Applicant from the 1st Respondent pending the hearing and determination of the Notice of Motion.iii.Thata temporary injunction be issued restraining the 2nd Respondent from effecting the decision to expel the Applicant from the 1st Respondent pending the hearing and determination of the Notice of Motion.iv.Thata temporary injunction be issued restraining the 1st Respondent from de-whipping the Applicant and/or removing the Applicant as a committee member of the County Public Investments Committee and the Security Committee pending the hearing and determination of the Application filed herein.v.Thata conservatory order be issued staying the implementation and/or execution of the decision to expel the Complainant/Applicant from the 1st Respondent pending the hearing and determination of the Complaint. vi. THAT a temporary injunction be issued restraining the 2nd Respondent from effecting the decision to expel the Applicant from the 1st Respondent pending the hearing and determination of the Complaint.vi.Thata temporary injunction be issued restraining the 1st Respondent from de-whipping the the Applicant and/or removing the Applicant as a committee member of the County Public Investments Committee and the Security Committee pending the hearing and determination of the Complaint.vii.Thatthe costs of this application be provided for.viii.Any other order that the Honourable Tribunal may deem fit.
5.The first application was placed before the Tribunal for directions on 12th September, 2023. Upon consideration thereof, the Tribunal, in exercise of its discretion under Regulation 5(5)(g) as read together with Regulation 42(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 (the PPDT Regulations), granted thefollowing interim orders ex-parte in the first instance:-i.Thatthe Notice of Motion application dated 11th September 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.Thatthe Complaint and Notice of Motion application dated 11th September 2023 be served upon the Respondents within two (2) days of the date hereof.iii.Thatthe Respondents to file and serve their response(s) to the Application within five (5) days of the date of service.iv.Thatthe Notice of Motion Application dated 11th September 2023 be listed for mention on 21st September 2023 at 2.30pm to check on compliance and/or for further directions.v.Thatin the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues interim conservatory orders staying the implementation and/or execution of the decision of the 1st Respondent to expel the Complainant/Applicant, Hon. Prof. Tom Odhiambo Ojienda SC, from the Orange Democratic Movement Party.vi.Thatin the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues an order of temporary injunction restraining the 2nd Respondent from effecting the decision of the 1st Respondent to expel the Applicant from the Orange Democratic Movement Party and/or removing the name of the Applicant, Hon. Prof. Tom Odhiambo Ojienda SC, from the register of members of the Orange Democratic Movement Party.vii.Thatin the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues an order of temporary injunction restraining the 1st Respondent from de-whipping the Applicant and/or removing the Applicant, Hon. Prof. Tom Odhiambo Ojienda SC, as a committee member of the County Public Investments Committee and the Security Committee.
6.During the mention of the first application on 21st September, 2023, Counsel for the 1st Respondent, Mr. Ambala Advocate, indicated that the 1st Respondent would concede to the first application and pave way for the issuance of directions on the substantive Complaint in the interest of time. There being no objection by the Complainant and the 2nd Respondent, the first application was allowed in terms of prayers number 5, 6 and 7 thereof. Accordingly, after consulting with all the parties on their preferred mode of prosecution of the substantive Complaint, and balancing all interests, directions were issued to the following effect:-i.That the Respondents to file and serve their responses and all documents they intend to rely on in response to the Complaint within 7 days.
ii.Corresponding leave is granted to the Complainant to file and serve Further Affidavit if need be within 4 days of serviceiii.Matter to be mentioned on 3rd October 2023 to check on compliance abd for further directions as to the hearing of the Complaint.
7.On 3rd October 2023 when the matter came up for mention, the Tribunal established that not all parties had complied for various reasons that were explained. Taking into consideration the interest of all parties, the Tribunal allowed all parties more time to enable them comply and a hearing date was fixed for 24th October 2023.
8.However, on the 24th October 2023 when the matter came up for hearing as had been scheduled, Counsel for the Complainant, Mr. Nelson Havi Advocate, brought to the attention of the Tribunal that whereas he was ready to proceed, he had received instructions from his client to file a Notice of Motion Application dated 23rd October 2023 (hereinafter referred to as the second application) seeking orders for consolidation of the Complaint with other related Complaints. He accordingly sought for directions on the hearing of the second application. In light of this development and upon building consensus with all the parties on the way forward, it was agreed by consent of all the parties that the second application be deemed as withdrawn with no orders as to costs, and the Complaint was adjourned for hearing on 8th November 2023.
9.Pursuant to the directions of the Tribunal, the matter proceeded for hearing by way of viva voce evidence and cross examination of witnesses on 8th and 9th November, 2023. Parties also filed their written submissions as follows: -i.The Complainant filed their written submissions dated 10th November, 2023ii.The 1st Respondent filed their written submissions dated 14th November, 2023.iii.The 2nd Respondent did not file written submissions but relied on their Replying Affidavit.
10.At the hearing of the Complaint, the Complainant was represented by Mr. Nelson Havi Advocate and Ms. Awuor Advocate. The 1st Respondent was represented by Mr. Ambala Advocate and Ms. Anyango Advocate, and the 2nd Respondent was represented by Ms. Ndwiga Advocate, holding brief for Mr. Wakoko Advocate.
The Complainant’s Complaint and Submissions
11.The Complaint is as set out in the Complaint and the Affidavits and all documents that have been filed on behalf of the Complainant. The Complainant contends that on 7th February 2023, he visited H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH at the State House in Nairobi, a meeting the Complainant states was in his capacity as the Senator of Kisumu and had nothing to do with politics.
12.Consequently, the Complainant was served with a notice to show cause letter dated 13th February 2023 purporting to ask him why he should not be subjected to a disciplinary process for his purported dalliance with party competitors and was accused of violating Section 14A of the Political Parties Act 2011, Article 11 of the Party Constitution and the Party’s Code of Conduct. Annexed to the Notice to Show cause letter was a letter dated 9th February 2023 alleging that the meeting with H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH, caused immense embarrassment, ridicule, anxiety, and disgust amongst the members of the 1st Respondent, and called on the 1st Respondent to have the Complainant deemed as having resigned from ODM under Section 14A of the Political Parties amongst other prayers as set out therein.
13.The Complainant responded to the Notice to Show Cause letter on 15th February 2023 explaining that the meeting was in an official capacity and further relied on Articles 130 and 131 of the Constitution. The 1st respondent did not revert to the same. Later, the Complaint came across summons for hearing addressed to him on 10th July 2023 on social media inviting him for a disciplinary hearing scheduled for 19th July 2023 at Chungwa House. Annexed to the summons was a document titled ‘Evidence’ with incidents amounting to the alleged misconduct.
14.The Complaint wrote to the 1st Respondent on 17th July 2023 informing the 1st Respondent that he was yet to be served officially with the letter inviting him for a disciplinary hearing and requesting an adjournment to August 2023. The 1st Respondent reverted to the Complainant on 18th July 2023 stating that the 1st Respondent having received the Decision to Charge on 3rd July 2023, time had run out and the hearing would be conducted on the 25th July 2023 at a venue that was to be communicated.
15.The Complainant appeared before the DC for the hearing of the complaint against him on 25th July 2023 together with his Advocate, Mr. Nelson Andayi Havi, who was denied audience on the ground that he was not a member of the ODM Party. The Complainant alleges the same violated Rule 21(1) of the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 (the DC Rules), and further that the DC used a different Constitution from the one supplied to them in justifying its decision to deny the Complainant the right to legal representation
16.The Complainant further alleges that at the hearing before the DC, he was ambushed with several other allegations that had nothing to do with the meeting held on 7th February 2023, and that he was not given ample time to express himself and respond unlike his counterpart, the accuser, Senator Eddie Muok, who was given ample time to prosecute his case against the Complainant.
17.On 6th September 2023, the 1st Respondent issued a presser to the public to the effect that the 1st Respondent’s NEC had passed a resolution to adopt the Recommendations of the DC to deem the Complainant as having resigned from the ODM party. At the material time, the subject DC Recommendation had not been communicated to the Complainant who only learnt of the same from the 1st Respondent’s press release.
18.The Complainant has raised, inter alia, the following issues for determination: -i.Whether the Complainant was expelled from the ODM Party.ii.Whether due processes were followed in the expulsion of the Complainant. iii. Whether the ODM Disciplinary Tribunal was properly constituted. iv. Whether the Complainant was denied legal representation.iii.Whether the Complainant espoused the ideologies of another political party.iv.Whether the Complainant was discriminated against.
19.The Complainant relied on the ODM Constitution and the PPA and submitted that the ODM DC undertook a shambolic hearing against the Complainant without adequate legal representation, and forwarded its Findings and Recommenations to the 1st Respondent’s NEC for adoption and ratification. The Recommendation to deem him to have resigned was ratified and in the circumstances, it is the 1st Respondent who decided to force the Complainant to leave the party against his will and notwithstanding that the Complainant testified that he is a life member of ODM and has never at any point expressed any intention to quit the ODM party. The Complainant submitted that the action taken against him amounted to an expulsion as the 1st Respondent has not indicated before the Tribunal the process of deeming a member to have resigned.
20.On the second issue, the Complainant submitted that the 1st Respondent flagrantly disregarded the procedures set down by its own Constitution and Disciplinary Rules before expelling the Complainant from the party, and he set out the grounds of violation of the Complainants right to fair administrative action and fair hearing as indicated from paragraph 14 to 57 of their submissions while relying on the Constitution of Kenya, the PPA, the ODM Constitution, the DC Rules 2022, and decided cases.
21.On the third issue, the Complainant submitted that the DC that sat to hear the matter was improperly constituted as the DC Chairperson, Prof Ben Murumbi Sihanya, is prohibited by Section 12 of the PPA from holding that position as he is a public officer, and further relied on the case of Ben Murumbi Sihanya & another v Ethic and Anti- Corruption Commission; Registrar of Political Parties & another (interested Parties) {2021] eKLR.
22.On the fourth issue, the Complainant submitted that the Courts have held that a person cannot be deemed to have resigned from a party based on mere assumptions. The specific words and or conduct must be set out in evidence before such a decision can be made. He relied on the reasoning and finding in case of Civil Appeal 539 of 2016 Isaac Aluoch Polo Aluochier vs Gideon Moi & 3 others {2016} eKLR.
23.The Complainant further set out grounds in paragraphs 68-81 supporting that the official visit to the statehouse to meet H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH, could not be deemed to be identifying with the ideologies of another political party.
24.On the fifth issue, the Complainant relied on Article 38 of the Constitution of Kenya and submitted that the Complainant made a deliberate choice to be a life member of the 1st Respondent and by forcefully ejecting him out of the party under the disguise of Section 14A of the PPA when he has not wronged the party in any way violates his constitutional right.
25.On the sixth issue, the Complainant relied on Articles 27(1),(4), and (5) of the Constitution of Kenya and stated that he was singled out for purposes of disciplinary processes for meeting with H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH, to further the Complainant’s development agenda for his County, yet several other leaders have met H.E. Dr. William Samoei Ruto, C.G.H. in his capacity as the Head of State and Government and none of them have been issued with notices to show cause.
The 1st Respondent’s Response and Submissions
26.In response and opposition to the Complaint, the 1st Respondent filed their Response dated 29th September, Witness Statement and Bundle of Documents, Written Submisisons, amongst other documents that they relied on.
27.The 1st Respondnet has in his pleading provided a brief background of the utterances and conduct of the Complainant that projected that his allegiance, loyalty, and preference had changed from his sponsoring party, the 1st Respondent, to the rival formation, the UDA Party, and Kenya Kwanza coalition, which could only mean that the Complainant had resigned from the 1st Respondent Party and that his preferred party was thenceforth the UDA.
28.A notice to show cause letter was served on the Complainant on the 13th February 2023 which was received and responded to vide a response dated 15th February 2023. The 1st Respondent before rendering its Decision did further investigation and more additional facts came xto fore, as outlined in paragraph 5 (V) of the 1st Respondent's Response.
29.After the conclusion of investigations, the findings of the 1st Respondent were detailed in a document titled ‘evidence: Tom Ojienda Prof’ which was used to refer the Complainant's case to the DC pursuant to Rule 11(1)(d) of the DC Rules 2022.
30.The Complainant was invited to attend a disciplinary hearing vide a Notice to Appear dated 10th July 2023 and attached to this was the document titled ‘Evidence: Tom Ojienda Prof’. However, an adjournment was granted to 25th July 2023 on the Complainant’s request, and the Complainant was thus given a further 7 days, making a cumulative period of 15 days, to prepare his defence.
31.That the hearing proceeded on the 25th of July 2023 despite the Complainant making all possible efforts to derail and delay the hearing of the Complaint against him.
32.The 1st Respondent on addressing the issue of representation relied on Article 75(10) of the 1st Respondent constitution which provides that a member who is under disciplinary process is entitled to representation by him/herself in person or by a representative or next friend provided that they are members of ODM.
33.The Complainant later returned with their advocates who did not utter anything apart from introducing themselves and had the Complainant prosecute his case hence it is false to indicate that the Complainant was denied the right to a fair hearing.
34.The 1st Respondent maintains that the Complainant was given ample time to prepare his defence and was served with the evidence that would be relied on but was not keen on ventilating his defence. The 1st Respondent further submitted that the Complainant has no cause of action at all against it on the grounds illustrated in paragraph 12 of the 1st Respondent's Response.
35.The 1st Respondent has in their submissions identified the following issues for determination: -i.Whether there was procedural fairness on the part of the 1st Respondent in the conduct of the Complainant's disciplinary process.ii.Whether there was substantive fairness in the decision of the 1st Respondent to deem the Complainant to have resigned from the Party by dint of his conduct.iii.Costs.
36.On the first issue, the 1st Respondent relied on the ODM Constitution and the Disciplinary Committee(Practice & Procedure) Rules 2022 while expounding on the procedures set out for fair and just resolution of complaints and any matters of discipline in the party and stated it is a requirement under Rule 13 of Schedule 2 of the Political Parties Act 2011.
37.The 1st Respondent relied on the witness statement of Anthony Moturi to illustrate how the party followed its internal processes to serve the Complainant with all documents necessary to conduct the disciplinary process
38.Further, the complainant admitted that he attended the hearing whose outcome was a true reflection of what happened. The 1st Respondent further indicated that the charges leveled against the Complainant were not generalized but were clear and precise with evidence being served and later produced during the hearing.
39.The 1st Respondent further stated that the Complainant at no point raised an objection against any issue as to the generalization of the charges or sought any clarity on the same, and that the Complainant was not expelled from the ODM party but was deemed to have resigned through his conduct.
40.It was further submitted that the Complainant was aware of the provisions of the ODM party constitution at Article 75(10) hence his right to legal representation was not denied.
41.On the issue of whether the Disciplinary committee was properly constituted, the 1st Respondent stated that the court in Ben Murumbi Sihanya & another v Ethics and Anti-Corruption Commission; Registrar of Political Parties & another (interested Parties) {2021] eKLR did not declare that the Chairperson of the 1st Respondent’s DC was forthwith prohibited from holding an office at the 1st Respondent’s DC, and further that the case is still active before the Court of Appeal.
42.On the second issue, the 1st Respondent relied on the case of Daniel Chacha Chacha when stating that as a legal requirement, an administrative body must also show as a fulfillment of the principles of natural Justice that the decision was based on logical proof and evidential material
43.It was submitted that the Complainant was served with the notice to show cause letter and he responded thereto and after consideration of the Complaint and response, the National Chairman of the party transmitted the matter to the DC for a disciplinary hearing and the Complainant was invited to appear for the disciplinary hearing.
44.During the hearing, the charges which had been served to the Complainant and spelled out clearly were read out to the Complainant. The DC consisted of members who had not taken part in lodging the Complaint and upon considering all the evidence being laid out, the DC made its Findings and Recommendations and forwarded the same to the NEC.
45.Accordingly, the 1st Respondent maintains that the DC Findings and Recommendations were sound in law, reasonable, and did not violate the Complainant's right to fair administrative action or any constitutional provisions as alleged or at all. That the onus is on the Complainant to show that the Decision he is complaining of is not grounded in law, and that it was unreasonable for the DC to come to such a conclusion.
46.On the last issue, it was submitted that costs are discretionary but always follow the event.
The 2nd Respondents' Response and Submissions.
47.The 2nd Respondent relied on their Replying Affidavit dated 19th September 2023. It is the 2nd Respondent’s contention that the Complaint filed herein does not disclose any cause of action against the 2nd Respondent.
48.The 2nd Respondent avers that vide a letter dated 7th September 2023, the 1st Respondent made a request for the removal of the Complainant herein from the ODM register of members on account of having been deemed to have resigned from the 1st Respondent within the meaning of Section 14A of the Political Parties Act 2011. The 1st Respondent submitted to the 2nd Respondent an extract of minutes of its NEC Meeting of 6th September 2023 that included the said recommendation that the Complaint herein had been deemed to have resigned from the 1st Respondent.
49.Upon receipt of the 1st Respondent’s letter, the 2nd Respondent responded thereto vide a letter dated 11th September 2023 wherein they requested for further documents relating to the disciplinary process from the 1st Respondent. The same were forwarded vide a letter dated 13th September 2023 and the 2nd Respondent acknowledged receipt thereof.
50.However, the 2nd Respondent appreciated the import of the conservatory orders issued by the Honourable Tribunal in the interim and did not therefore proceed to make any determination required under section 14A(4) of the Political Parties Act 2011 so as to affect the rights of the Complainant.
Issues for Analysis and Determination
51.Flowing from the parties’ pleadings and submissions, the Tribunal has identified the following issues for determination.i.Whether there has been established a cause of action against the 2nd Respondent / Whether the Complaint is premature before the Tribunal.ii.Whether the Complainant was expelled from the ODM Party or deemed to have resigned from the ODM Party.iii.Whether the Disciplinary Committee was legally constituted?iv.Whether the disciplinary proceedings violated the provisions of Article 47 and 50 of the Constitution as read together with Section 4 and 6 of the Fair Administrative Action Act and the ODM Party Constitution and the Disciplinary Committee (Practice & Procedure) Rules 2022?v.Whether the decision by the National Executive Committee to adopt the recommendations of the Disciplinary Committee and seek the 2nd Respondent’s implementation thereof is lawful.vi.Whether ODM Disciplinary Findings and Recommendations were merited / Whether the Complainant’s actions violated the ODM Party Laws.
Whether there has been established a cause of action against the 2nd Respondent / Whether the Complaint is premature before the Tribunal.
52.The 2nd Respondent has submitted that they had not made a determination against the Complainant to warrant any cause of action against them. After the 2nd Respondent received the 1st Respondent’s request to remove the Complainant’s name from the register of the 1st Respondent in accordance with the 1st Respondent’s NEC resolution, the 2nd Respondent called for further documentation in support of the disciplinary process against the Complainant, which documentation were furnished. However, by the time the same were received, there was already in place an interim order that had been issued by the tribunal restraining them from implementing the 1st Respondent’s resolution and recommendation to deem the Complainant as having resigned.
53.We have evaluated the pleadings and evidence and we note that neither the Complainant nor the 1st Respondent has controverted this position. There is no complaint that has been made against the 2nd Respondent. Accordingly, we agree with the 2nd Respondent that the the Complainant has not established any cause of action against the 2nd Respondent. It was therefore not necessary to join the 2nd Respondent in these proceedings as a substantive party.
54.In the case of PPDT Kisumu Complaint No. E005 of 2023 Elisha Ochieng Odhiambo vs. Orange Democratic Movement Party & Another, we observed as follows:-
55.We remain of the considered view that where there is no specific complaint against the 2nd Respondent, it is unfair to cause them to appear in proceedings before the Tribunal. Ordinarily, notice of tribunal decisions can be issued to the 2nd Respondent without requiring their substantive participation unless in cases where they have an interest to defend. We therefore have no reason to depart from our foregoing observations in the case of Elisha Ochieng Odhiambo (supra).
56.Turning to the question whether the Complaint is premature for the reason that the 2nd Respondent has not made any determination, we note that the instant case has been presented as Complaint in accordance with Section 40(1)(b) of the PPA as read together with the PPDT Regulations. It has not been framed as an appeal against any decision of the 2nd Respondent.
57.In the case of Elisha Ochieng Odhiambo (supra) we stated thus:-
58.We have no reason to depart from our foregoing observations and we accordingly find that the Complaint is properly before the Tribunal.
Whether the Complainant was expelled from the ODM Party or deemed to have resigned from the ODM Party.
59.The Complainant has vide its written submissions isolated this issue for determination. As already highlighted above, the Complainant submitted that the purported DC Recommendation to deem him to have resigned was ratified by the 1st Respondent’s NEC and in the circumstances, it is the 1st Respondent who decided to force the Complainant to leave the party against his will notwithstanding that the Complainant is a life member of ODM, and that he has never at any point expressed any intention to quit the ODM party. The Complainant accordingly argued that the action taken against him amounted to an expulsion, and that the 1st Respondent has not indicated before the Tribunal the process of deeming a member to have resigned.
60.The 1st Respondent on the other hand maintains that the Complainant was not expelled from the party but was deemed to have resigned. The 2nd Respondent informed the Tribunal that the resolution that was forwarded to it deemed the Complainant to have resigned from the 1st Respondent political party.
61.We have considered the parties’ pleadings and it is appreciable that whereas it is arguable that both expulsion of a member from a political party and deeming a member of a political party to have resigned lead to the same outcome of termination of membership in a political party, the legal provisions governing the same under the PPA are distinct.
62.For instance, Section 14A of the PPA provides on when a member may be deemed to have resigned from a political party as follows: -
63.On the other hand, Section 14B of the PPA provides on expulsion of a member from a political party as follows: -
64.In the instant case, we note that the NTSC dated 13th February 2023 enclosed complaint that was presented vide a letter dated 9th February 2023 from the firm of Aguko, Osman and Company Advocates addressed to the Secretary General of the 1st Respondent and the Chairperson of the 1st Respondent’s DC. The letter is referenced ‘Deregistration and/or Expulsion of Hon. Prof. Tom Ojienda, SC, Hon. Gideon Ochanda, Hon. Caroli Omondi, Hon. Elisha Odhiambo, Hon Paul Abuor, Hon. Mark Nyamita, and Hon. Felix Odiwuor alia Jalang’o from Orange Democratic Movement Party membership.’
65.Vide the subject letter dated 9th February 2023, the said Legal Counsel for one Senator Eddy Gicheru Oketch, invited the 1st Respondent to deem the Complainant and others as having resigned from the party under Section 14A(1)(e) of the PPA, and initiate the process of having their name struck out of the party members register in accordance with the provisions of Section 14 (2) and (3) of the PPA, or in the alternative, commence necessary disciplinary action for purposes of having the Complainant and others expelled from the party if found culpable under Section 14B of the PPA. The DC considered the complaint and we note from the DC Finding and Recommendation that the DC recommended that the Complainant be deemed to have resigned.
66.The DC Findings and Recommendations were forwarded to NEC and from the record, NEC resolved that the Complainant be deemed to have resigned by dint of his conduct. This is the same resolution that the 2nd Respondent alluded to.
67.In light of the foregoing legal provisions and the facts of this case leading to the aforestated NEC resolution that was submitted to the 2nd Respondent, we do not agree with the Complainant that the fact that the 1st Respondent forcefully deemed him to have resigned from the party should lead us to the conclusion that he was expelled from the party. Going by the wording of the NEC resolution that was forwarded to the 2nd Respondent for implementation, we find that the Complainant was deemed to have resigned from the ODM Party.
68.Having so found, and bearing in mind that the Complainant raised the issue that the 1st Respondent did not demonstrate the procedure for deeming to resign under the ODM Constitution and the ODM DC Rules, we have gone ahead to holistically consider the complainant’s pleadings vis a vis the responses. Our view is that whereas reference may have been made to expulsion as opposed to ‘deemed to have resigned’, and further whereas the tribunal was not pointed to express provisions on ‘deeming to resign’, we note that the DC proceedings referred to by the Complainant in his pleadings are the same ones that the 1st Respondent alludes to as having led to the decision deeming the Complainant to have resigned. The same DC proceedings are subject of challenge before us as evident from the reliefs sought in the Complaint.
69.We have further considered that in any event and from a reading of Section 14A and 14B of the PPA, both provisions on expulsion of a member or deeming a member to have resigned require due process whereby such a member is granted a fair opportunity to be heard in accordance with the party laws. The crux of the instant complaint revolves around due process in relation to the same DC proceedings alluded to by both parties. Accordingly, nothing stops the tribunal from inquiring into the Complaint with a view to establishing whether the 1st Respondent’s decision to deem the Complainant to have resigned was arrived at in accordance with the law.
70.This is the same position we took in the case of Elisha Ochieng Odhiambo (supra) where we similarly stated as follows:-
Whether the Disciplinary Committee was legally constituted?_
71.The Complainant has challenged the legality of the composition of the DC that was Chaired by Prof. Ben Sihanya arguing that by virtue of the finding in ELRC Petititon No. E055 of 2020, Professor Ben Murumbi Sihanya & Another vs. The Ethics and AntiCorruption Commission & 2 Others, Prof. Ben Sihanya illegally Chaired the DC and if it was to be so deemed, the rest of the DC members did not constitute quorum in accordance with the ODM party constitution and the DC Rules.
72.The 1st Respondent has opposed these submissions on grounds, inter alia, that there were no declaratory orders issued against Prof. Ben Sihanya on the question of his sitting as the Chairperson of the DC.
73.In the case of Elisha Ochieng Odhiambo (supra) where the same issue was raised, we stated thus:-
74.We maintain the same position as guided by the High Court determination and bearing in mind that the exclusion of the Chairperson of the DC would render the DC inquorate and in breach of Article 76(1) and (3) of the party Constitution as read together with Rule 12(6) of the DC Rules, we arrive at the inescapable finding that the DC was improperly constituted.
75.In the 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. and could not in the circumstances render a valid determination.
76.And in the case of Republic vs. Kirinyaga University College & 2 Others ex-parte Isaya Kamau Kagwima [2015]eKLR, the Court declared a nullity an improperly constituted disciplinary hearing.
77.Taking into consideration the circumstances of this case and reasoning in the cited judicial authorities, we find that the Complainant did not appear before a duly constituted DC. Accordingly, the findings and recommendations against the Complainant arising from the impugned DC hearing and all consequential ratification by the Respondent’s NEC are invalid and a nullity in law and we so declare.
Whether the disciplinary proceedings violated the provisions of Article 47 and 50 of the Constitution as read together with Section 4 and 6 of the Fair Administrative Action Act and the ODM Party Constitution and the Disciplinary Committee (Practice & Procedure) Rules 2022?
78.Article 47 of the Constitution provides on the the right to fair administrative action as follows, inter alia: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.(Emphasis ours)
79.And Article 50(1) of the Constitution is express that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
80.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.
81.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.
82.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:
83.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.
84.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:
85.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:
86.The right to fair hearing and fair administrative action and application of the rules of natural justice before the DC has been codified in Article 76 (3),(4),(5) and (6)of the ODM Party Constitution as read together with Rules 4, 13(2) and 20(2) of the DC Rules which enjoin the DC to uphold the constitutional and statutory tennets on the right to a fair hearing and fair administrative action. Is is therefore inescapable to analyse the facts and evidence adduced by the parties in these proceedings with a view to establishing whether the disciplinary proceedings subject hereof were conducted in accordance with the law that the 1st Respondent committed itself to observe and uphold.
87.We note that the disciplinary process against the Complainant was initiated vide a Notice to Show Cause (NTSC) dated 13th February 2023 under the authorship of CPA Hon. John Mbadi, EGH, the National Chairperson. The NTSC states as follows;
88.From a reading of the NTSC, our immediate observation is that the same does not specify or particularise the so called ‘plethora of issues’ complained about that allegedly border on the Complainant’s general conduct that violate Section 14A of the PPA and Article 11 of the Party Constitution and the Party’s Code of Conduct. The Complainant’s alleged public display, conduct and general comportment that allegedly violates the law has also not been specified.
89.According to the 1st Respondent, the NTSC was sent together with a letter from the law firm of Aguko, Osman & Company Advocates dated 9th February 2023 addressed to the Secretary General, ODM and the Chairperson ODM Disciplinary Committee.This is what the 1st Respondent identifies as the complaint and it states;-
90.In essence, the single complaint in the letter dated 9th February 2023 relates to the allegation that the Complainant was on 7th February 2023 captured by the media appearing together with both the Party leader and deputy Party leader of the United Democratic Alliance Party whose ideologies, interests and policies the 1st Respondent claims the Complainant has been promoting from within the Orange Democratic Movement Party. The subject complaint letter made the following prayers;i.The Office of the Party Secretary General does proceed immediately to deem the Complainant and others as having resigned from the party under Section 14A(1)(e) of the PPA, and initiate the process of having their name struck out of the party members register in accordance with the provisions of Section 14 (2) and (3) of the PPAii.In the alternative, commence necessary disciplinary action for purposes of having the Complainant and others expelled from the party if found culpable under Section 14B of the PPAiii.That pending action as prayed, the Complainant and others be recalled by the party from all parliamentary leadership positions and committees that they are serving in
91.We have seen the Complainant’s comprehensive response to the NTSC vide letter dated 15th February 2023 where the Complainant stated thus: -This complaint is frivolous, malicious and amounts to nothing but witch hunts as: One, I was performing my duties of representation of Kisumu County under Article 96 of the Constitution of Kenya which provides that… In this case, I went to meet the President to further the development agendas for Kisumu County particularly; one, Flood control by building of dykes in Kabonyo and Gem Rae Schemes, two, completion of KisumuMamboleo Road, three, Establishment of AKADO TVET and four, completion of Rabour- chiga Road. Further, I met the President as the Head of State and not as the Party Leader of UDA. Indeed, there is no evidence annexed to this Complaint that I visited UDA offices or took part in UDA’s activities. There is no evidence annexed to the complaint showing how this official meeting identifies with the ideologies of UDA.Secondly, the complaint violates Article 27 of the Constitution of Kenya that prohibits discrimination and different treatment. There are several ODM members who have met President William Ruto in his capacity as the Head of State and Government. They include ….. No explanation has been given for this differential treatment.Thirdly, this complaint violates Article 32 and 36 of the Constitution of Kenya. Article 32 (1) of the Constitution of Kenya provides: Every person has the right to freedom of conscience, religion, thought, belief and opinion; Article 32(4) of the Constitution provides that: A person shall not be compelled to act, or engage in any act that is contrary to the person’s belief or religion.’ This complaint directly violates Article 32 of the Constitution as the complainant is purporting to compel me to resign from ODM! More absurdly, this complaint is compelling me to identify with the ideologies of UDA which I do not identify with! Article 36(2) of the Constitution provides ‘A person shall not be compelled to join an association of any kind.’ This kind of complaint is unconstitutional and violates Article 36 (2) as it seeks to compel me to join UDA, a party that I have never wanted to join.Lastly, this complaint violates Article 38 of the Constitution of Kenya which provides that: ‘Every citizen is free to make political choices……’ The complainant is purporting to compel me to be a member of UDA in violation of Article 38 of the Constitution. The complainant cannot purport to make that choice for me. I made a choice to be a member of ODM and that choice remains to date.From the foregoing, it is apparent that I have not violated section 14A (1) (e) of the Political Parties Act as there is no evidence that has been annexed to this complainant showing that I identify with the ideologies and interests of UDA. Further, there is no single provision in both the ODM Constitution and ODM Code of Conduct that prohibits its elected members from meeting the President of Kenya if the President was elected through a rivalling party. In the circumstances, there is no violation of either Party Constitution or the Code of conduct. What the complainant is trying to do is set the bar so low for the expulsion of its members and to have a subdued membership that does not have freedom of thought, conscience or opinion and the Party should not accept that invitation.Whether I caused immense embarrassment, ridicule, anxiety and disgust among the ODM membership and leadership?The complainant has demonstrated how meeting the President of the Republic of Kenya caused immense embarrassment, ridicule, anxiety and disgust among the ODM membership and leadership. More fundamentally, there is no provision of the ODM Constitution that provides that a member can be deemed to have resigned and/ or can be expelled from the group if he causes immense embarrassment, ridicule, anxiety and disgust among the ODM membership and leadership by taking a photograph with the Head of State merely because the President was elected by a rivalling Party.Whether I should be deemed to have resigned from the ODM Party?Article 12 (c) denotes that a party shall cease being a member of the Party by accepting an office, subscribing to, or promoting activities of another Political Party; or such other organization whose aims and objectives are in competition with or in conflict with those of ODM.From the above explanation it is apparent that I met the President on a single occasion on the 7th of February 223 to further the developmental agenda of Kisumu. No evidence has been tabled to show how this meeting transformed into identifying with the ideologies and interests of a rivalling party. I have also re-affirmed my commitment to the ODM Party and denounced any attempt by the complainant to compel me to join the UDA Party. I can’t therefore be deemed to have resigned from the ODM Party. More fundamentally, it is apparent that there is nothing in the complaint whatsoever to warrant my expulsion from this esteemed party.Indeed I have been a faithful member of ODM Party. As a senior Counsel of the Bar, I have on innumerable occasions defended the ODM party, its interests and all its members in cases instituted against them on a pro bono basis. The cases include…..etc.I have also taken part in several projects and events of the ODM Party including being the lead Advocate in the Dr. Ida Odinga Library, Research, Innovation and Resource Centre. I also undertook the Kisumu County Voter Registration Drive within 25 wards in Kisumu County with a bid of ensuring that we have the numbers for the August 2022 General elections. I have also set up the Prof Tom Ojienda Foundation whose object is supporting children pursue education in line with Article 7 of the Constitution.As the Senator of Kisumu County, I have spoken robustly in the Senate on matters affecting the residents of the stronghold of ODM Party on issues such as sugarcane farming and the sugar industry, health services, cage fish farming, rice farming in Kisumu County among others. It is therefore absurd that the Complainant would cast doubt on to my commitment to the ODM Party.In conclusion, I have and continue to remain loyal to my party ODM. No complaint, no allegation or claim can change that…”
92.We note from the record that there was no communication to the Complainant in rejoinder to his stated letter dated 15th February 2023.
93.From the evidence before us, the next communication that the Complainant received, as per the Complainant’s statement, by chancing upon it on social media from the 1st Respondent, was the letter dated 10th July 2023 authored by Prof Ben Sihanya, Chairperson, ODM Disciplinary Committee, referenced ‘Notice to Appear for Disciplinary Hearing’ (hereinafter referred to as the notice to appear). The notice to appear reads;-
94.Vide a letter dated 17th July 2023, the Complainant acknowledged receipt of notice to appear dated 10th July 2023 and requested for the date to be rescheduled. The Chairperson ODM Disciplinary Committee responded to the request vide letter dated 18th July 2023 which rescheduled the Complainant’s disciplinary hearing to 25th July 2023 at 9.30am at a venue to be communicated in Nairobi County. The letter informs the Complainant of the strict timelines bearing in mind that the Committee received the decision to charge on 3rd July 2023.
95.The DC hearing proceeded on 25th July 2023 and the transcribed proceedings have been produced at pages 96 to 108 of the 1st Respondent’s Bundle of Documents. We have hereunder reproduced sections thereof that will inform our Judgment: -
96.We also highlight the DC Findings sections whereof have been reproducedhereunder: -
97.In a nutshell, we make the following observations from the record and evidence adduced in respect to the DC proceedings in totality as partly highlighted above;-i.Whereas Rule 10(2) of the DC Rules provide that the show cause letter shall state the alleged violation, offence or such other matter that the member is accused of, the NTSC issued to the Complainant fell short of this requirement. The 1st Respondent instead elected to annex the Complaint. In essence, the NTSC did not frame the offences appropriately together with the requisite particulars to enable the Complainant respond effectively. This was also in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act.ii.The 1st Respondent did not communicate with the Complainant after receiving his response to the NTSC.iii.The 1st Respondent’s National Chairperson did not seek any further information and/or clarification from him in the course of the alleged further investigations in consonance with Rule 11(1)(c) of the DC Rules. We say so bearing in mind that the National Chairperson alludes to having undertaken further investigations which seem to have uncovered additional complaints not subject of the NTSC thus infringing on the Complainant’s right to adduce and challenge evidence under Article 50(2)(k) of the Constitution.iii.Whereas Rule 17(3)(a) of the DC Rules make it mandatory for the summons to be accompanied by the documents referred to in Rule 11(2), the notice to appear did not enclose certain crucial documents including decision to charge and all evidence intended to be adduced. From a reading of the notice to appear’ it expressly states that it has enclosed ‘…the complaint, notice to showcause and part of the evidence and entirety of the evidence being within yourknowledge…” The Complainant claimed that the document titled evidence initially served upon him not only had new complaints but also did not contain certain information relating to links. This was in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act..v.Whereas Article 50(2)(g), Section 4(5) FAA Act, Article 76(9) and Rule 21(1) of the DC Rules allows the Complainant to be represented by an Advocate of his choice, the Complainant was not allowed to have Mr. Nelson Havi Advocate to represent him before the DC. The reason for this was that Mr. Nelson Havi was not a member of the ODM party. There was a lot of discussion over the issue and the DC ruled that the Complainant is allowed to be accompanied by next friend or representative who is an ODM member, and each friend or member will need to prove that they have been appointed by the Complainant. This is notwithstanding the fact that the DC Rules that were provided to the Claimant were different from the Rules that the DC actually applied. The decision to disallow the Complainant to be represented by and advocate of his choice regardless of his membership of the 1st Respondent and the insistence on an appointment went against the said rules and regulations, as well as the rules of natural justice.vi.Whereas Rule 5(1) of the DC Rules is express that all proceedings before the DC shall be initiated by way of a complaint, there are certain proceedings that were held before the DC that fell outside the NTSC dated 13th February 2023. We further note from the DC Proceedings and Findings that whereas the DC Chairperson acknowledged that the main basis of the complaint is the letter of 9th February 2023, he stated that there are particulars or details found in the entire bundle of documents which is based on section 14A of the PPA and especially promoting ideology and interest or policies of another political party, and the DC confirmed that they would take the bundle of documents in totality. In the result, the hearing proceeded with the consideration of numerous issues that were not subject of the NTSC dated 13th February 2023 were considered. This was in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act. Examples of such issues are:a.Reference to events of 17th March, 2023, a date after the date of the Notice to Show Cause.b.Reference to events of 16th September, 2022, which had not formed part of the Notice to Show Cause or its accompanying letter of Complaint,c.Reference to attendance at demonstrations which had not formed part of the Notice to Show Cause or its accompanying letter of Complaint.d.Reference to various statements that the Complainant allegedly made against ODM’s position, and the allegations that in a number of occasions, he was in the company of those who made statements against ODM’s ideology, interests and policies, in his presence and publicly, but he never at all stood up to defend the Party against the pronouncementse.Allegations that the Complainant took MCAs to PS of Interior’s officevii.The Complainant was not informed of the Decision and the reasons thereof and only came to learn of the DC findings and recommendations on 6th September 2023 during a press statement that was issued by the 1st Respondent to communicate the decision to the public. This was after the 1st Respondent’s NEC had already considered the DC’s Findings & Recommendations, and forwarded the resolution ratifying the same to the 2nd Respondent for implementation and/or execution. It is not until 11th September 2023 after the institution of the instant proceedings that the Complainant received formal communication of the decision from the 1st Respondent. We find it most unprocedural that DC 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. This was in breach of the Complainant’s right under Article 47(2) as read together with Section 4(2) and 6 of the FAA Act.
98.We have further considered numerous judicial authorities touching on the observations we have made above. In PPDTC No. E003 of 2021 Sen. Mary Yiane & 4 Others vs. Jubilee Party & Anor, where we observed as follows:-
99.And in Gathigia vs Kenyatta University Nairobi HCMA No. 1029/2007 [2008] KLR 587 the Court held:-
100.In Isaac Mwaura Maigua v Jubilee Party & 3 others [2021] eKLR (High Court Civil Appeal E248 of 2021), the High Court stated as follows:-
101.In PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, which decision was upheld by the High Court in we stated:-
102.With respect to the question of failing to furnish the Complainant the decision and its reasoning in good time, in Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that: -
103.Similarly in PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, we stated:-
104.In light of our foregoing observations and the principles enunciated in the case laws referred to above, we reach the inescapable conclusion that the 1st Respondent acted in breach of Article 47 and 50 of the Constitution, Section 4 and 6 of the Fair Administrative Action Act, Article 76 (3),(4),(5) and (6)of the ODM Party Constitution, and Rules 4, 13(2) and 20(2) of the DC Rules all which uphold the right to a fair hearing and fair administrative action.
Whether the decision by the National Executive Committee to adopt the recommendations of the Disciplinary Committee and seek the 2nd Respondent’s implementation thereof is lawful.
105.Having found that the DC processes were in breach of Article 47 and 50 of the Constitution, Section 4 and 6 of the Fair Administrative Action Act, Article 76 (3),(4),(5) and (6)of the ODM Party Constitution, and Rules 4, 13(2) and 20(2) of the DC Rules, we find this question moot.
106.Be that as it may, even if we were wrong in our determination, we have already observed that both deeming a member to have resigned and expulsion are actions that amount to cessation of membership with the party.
107.In that regard and in the case of Elisha Odhiambo (supra) we stated as follows:- “…We note that Article 12(1) of the ODM Constitution provides that one shall cease to a member of the Respondent “by a resolution passed by the National Executive Council and ratified by the National Governing Council.” It is not disputed that the NEC resolution was not ratified by the National Governing Council (NGC). Accordingly, the decision of NEC to adopt the recommendations of the DC and proceed to apply to the 2nd Respondent without subjecting the same to the NGC for ratification was in breach of Article 12 of the Respondent’s Constitution…”
108.We have no reason to depart from our above observations and we accordingly find that the decision of NEC to adopt the recommendations of the DC and proceed to apply to the 2nd Respondent to remove the Complainant’s name from the party register before ratification by the National Governing Council amounted to a breach of Article 12 of the Respondent’s constitution.
Whether ODM Disciplinary Findings and Recommendations were arrived at in accordance with the law / Whether the Complainant’s actions violated the ODM Party Laws.
109.Parties have made substantive submissions on this issue. We have already made a finding that the DC was improperly constituted and further that the 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.
110.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 DC 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.
What are the appropriate reliefs to grant?
111.Taking into consideration the totality of the facts and circumstances in this case and in light of the foregoing, we find that the Complaint is merited.
112.On the question of costs, it is well settled that costs ordinarily follow the event. This position is also codified in Regulation 43(2) of the PPDT Regulations. We find no good reason to depart from the same. Accordingly, the Complaint is allowed with costs to the Complainant, which costs shall be borne by the 1st Respondent. However, having dismissed the complaint against the 2nd Respondent, the Complainant is on the other hand condemned to pay costs incurred by the 2nd Respondent in defending these proceedings.
113.Upon consideration of the reliefs sought, we make the following orders;-i.An order be and is hereby issued declaring the disciplinary proceedings by the 1st Respondent conducted against the Complainant on 25th July, 2023 unprocedural, unlawful and in violation of Article 47 of the Constitution of Kenya, Section 14A of the Political Parties Act, Section 4 and 6 of the Fair Administrative Actions Act, Article 75(5) and (6) of the 1st Respondent’s Constitution as read together with the 1st Respondent’s Disciplinary Committee (Procedure) Rules and the rules of natural justice.ii.A declaration be and is hereby issued that the Disciplinary Committee of the 1st Respondent convened on 25th July, 2023 was not properly constituted.iii.A Declaration be and is hereby issued that the Decision of the Respondent’s Disciplinary Committee and the National Executive Committee to deem the Complainant as having resigned was incapable of being implemented for having been made without ratification of the National Governing Council and as such a contravention of Article 12(1) (b) and Article 75(6) of the Orange Democratic Movement Party’s Constitutioniv.A permanent order for injunction be and is hereby issued restraining the Registrar of Political Parties from removing the name of the Complainant from the register of members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023.v.A permanent order for injunction be and is hereby issued restraining the 1st Respondent from interfering with, de-whipping or in any other manner whatsoever attempting to remove the name of the Complainant from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023.vi.Save for costs for the 2nd Respondent which shall be borne by the Complainant, the 1st Respondent shall bear the Complainant’s costs of these proceedings.
The Dissenting Opinion of Abdirahman Adan (Member.
114.I have been notified of the decision of the majority. With profound respect, I am, however, not in one with it and the final Orders they have proposed.
115.I have considered all the pleadings, evidence on record, and submissions of the parties. For reasons that shall shortly become apparent, I would, on my part, summarize them as follows.
116.The ODM Party has made a decision to deem the Complainant to have resigned from the party pursuant to Section 14(A) of the Political Parties Act. The procedural and substantive propriety of this decision has been challenged by the Complainant before this Tribunal. In accordance with the said Section 14(A), the ODM Party applied to the Office of the Registrar of Political Parties moving it to remove the name of the Complainant from its register. The Registrar is yet to determine the application by the ODM Party due to the conservatory orders that were issued by this Tribunal in this and related matters.
117.The Complainant has put a case before this Tribunal to find against the legality of the decision by the ODM Party for varying reasons. The ODM Party has refuted these assertions, and it holds that it acted within the law and justifiably. On its part, the Registrar of Political Parties states that the Complainant has no complaint against it as it is yet to determine the application by ODM due to the conservatory orders issued in this matter.
118.On my part, and this is the reason I depart from the majority, I do not find that this Tribunal has the requisite jurisdiction, at this stage of the emanating dispute, to handle the Complaint. Since I am not convinced of this Tribunal’s jurisdiction in the instant complaint, and since any appeal from the pending decision by the Registrar would lie to this Tribunal, I do not venture to comment on any aspect of the legality or otherwise of the subject ODM decision.
What is the impugned decision complained about?
119.In my mind, the preliminary step to resolve this Complaint is to inquire as to what exactly is the impugned decision complained about. To do so, I have perused the parties’ pleadings and documents supplied and come to the conclusions hereunder.
120.At paragraphs 33 & 34 of the Complaint dated 11th September 2023, the Complainant states as follows:
121.In the 1st Respondent’s Disciplinary Committee Report titled ‘ODM/DCHN/0013/2023: Hon. Tom Ojienda…’ and dated 3rd August 2023 the Committee establishes that “Hon Tom Ojienda …8. Defied ODM party positions and decisions … 9. By defying… he grossly violated… and Section 14A (1)(e) of the Political Parties Act, 2011… 10. By his conduct as evidence above, he is deemed to have resigned from the ODM Party.” The Report recommends to the NEC that “1. [The Complainant], by dint of his conduct, be deemed to have resigned from the ODM Party…”
122.The 1st Respondent’s letter to the Complainant dated 11th September 2023 and referenced ODM/2023/187/009 by Oduor Ong’wen states, inter alia, that “the NEC had deliberated and adopted the report of the Disciplinary Committee where you were deemed to have resigned from the Party.” Attached to this letter, are excerpts of the referenced NEC minutes. In these minutes, it is indicated that the NEC recommended that the Complainant, among others, “by dint of their conduct be deemed to have resigned from the Party.”
123.The 1st Respondent’s letter to the 2nd Respondent dated 7th September 2023 and referenced ODM/2023/181/009 by Oduor Ong’wen states, inter alia, that “the purpose of writing this letter is… to communicate to you the resolution of NEC adopting the recommendations of the Disciplinary Committee finding the five members to be deemed to have resigned from the Party within the meaning of Section 14A of the Political Parties Act.”
124.The 2nd Respondent, through her letter dated 11th September 2023 and referenced RPP/FRP/021 Vol. VIII (39), acknowledges receipt of the above referenced letter from the 1st Respondent and states, inter alia, that “Section 14(4)(A) of the Political Parties Act, 2011 (PPA) requires the Registrar to determine compliance of the referenced party process with Section 14A (2) of the PPA before updating the party register.”
125.Persuaded firmly by these documentations and the pleadings, I have no doubt that the impugned decision is the 1st Respondent’s decision to deem the Complainant to have resigned from the ODM Party pursuant to the dictates of Section 14 (A) of the Political Parties Act.
126.I am unable to see any correspondence or document from the 1st Respondent to the Complainant, indicating that the 1st Respondent did expel the Complainant from the Party pursuant to Section 14 (B) of the Political Parties Act. Any such conclusion or insinuation would be a wrong conclusion of fact in my considered opinion.
Section 14 (A) of the Political Parties Act.
127.The next step would be to ask ourselves what are the statutory provisions in Section 14 (A) of the Political Parties Act. For this, I find it necessary to reproduce the entire section hereunder:
Has the Registrar of Political Parties made a decision under Section 14 (A) (4) & (5) of the Political Parties Act?
128.Naturally, it behooves upon this Honourable Tribunal to next consider whether the Registrar of Political Parties has made a decision on the 1st Respondent’s request to remove the Complainant from the register pursuant to the dictates of Section 14(A).
129.Fortunately, the 2nd Respondent has answered this question in its Replying Affidavit dated 19th September 2023 by Joy Onyango. The Deponent attached the 2nd Respondent’s letter evenly dated and referenced RPP/FRP/021 Vol VIII (13) addressed to the 1st Respondent that informs the Party that the office has received its documentation but is stopped by the conservatory orders issued by this Tribunal from deliberating further on the matter. Thus, I agree with Joy Onyango when she avers at paragraph 10 of her Affidavit that “the 2nd Respondent has therefore not made the determination required under Section 14A (4) of the Political Parties Act, 2011 as to affect the rights of the Applicant/Complainant.”
What is the import of the situation where the 2nd Respondent has yet to make this determination?
130.Having considered this state of affairs, I am of the opinion that since the 2nd Respondent is yet to make its determination under Section 14(A) (4) & (5) of the Political Parties Act, there are two major implications that significantly affect these proceedings.
131.The first is that this Honourable Tribunal’s jurisdiction over the issue is ousted. The PPDT does not enjoy a broad and limitless judicial review jurisdiction. The jurisdiction of the PPDT is limited to matters provided under Section 40 of the Political Parties Act, to wit:
132.In my considered opinion, two fundamental issues flow from Section 40(1)(f) of the PPA. One, there is an express statutory dictate providing an appellate jurisdiction over the Registrar’s decisions to the PPDT. Two, the Registrar’s decisions under the PPA enjoy statutory protection to the extent that they can only be appealed from to the PPDT and not reviewed by the PPDT. Both of these issues import legislative protection of decisions ringfenced by the Act to be in the Registrar’s province from any immature interference by this Honourable Tribunal. In other words, I am effectively persuaded that where the Political Parties Act donates decisional power to the Registrar of Political Parties, this Honourable Tribunal cannot usurp that power until a proper appeal to a crystallized decision has been procedurally lodged before us.
133.In statutory interpretation, the specific always outweighs the general. Section 14A (3) to (5) of the Political Parties Act outweighs Section 40 (1) (b) in that the Complainant cannot assert that since “disputes between a member of a political party and the political party” fall under the general jurisdictional remit of the PPDT, then they are free to present a dispute regarding the ODM Party’s decision that is pending scrutiny and determination by the Registrar under Section 14A (4) & (5). On this, I would associate myself with the dicta by the Court of Appeal in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR at para. 44, to wit:
134.Besides, the Doctrine of Ripeness informs us that absent a determination by the Registrar under either Section 14A (4) or (5) of the Political Parties Act, the decision by ODM remains abstract without any substantive import. Without ripeness, the subject complaint lacks justiciability. In my opinion, it would be wise under the Doctrine of Deference to hold this dispute in abeyance and await the Registrar’s determination.
135.In the premise, I would hold that since the 2nd Respondent has yet to make its decision on the 1st Respondent’s application under Section 14 (A) of the PPA, this Honourable Tribunal lacks any jurisdiction to consider the present Complaint.
136.The second implication, which I note is a close cousin of the first, relates to the doctrinal principle of exhaustion. This doctrinal principle, if I understand it correctly, provides that if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. Indeed, Justice Mrima in Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR held that the doctrine of exhaustion acts as a bar to a court’s jurisdiction.
137.In this instant complaint, the Registrar is yet to determine the 1st Respondent’s motion under Section 14 (A) of the PPA. That process ought to be foremost exhausted before the appellate jurisdiction of this Honourable Tribunal or the judicial review jurisdiction of the appropriate court of law can be triggered. I would also, for this doctrinal principle, hold that the Tribunal lacks jurisdiction to entertain the Complaint.
138.It is now settled that a Court cannot “arrogate to itself jurisdiction through the craft of interpretation.” The Court’s jurisdiction is donated by either the Constitution or Statute or both. And, a Court’s jurisdiction is not a matter of procedural technicality but one that goes to the root of the Courts’ adjudication process. If a Court lacks jurisdiction to entertain a matter, it downs its tools. And I would so down my tools and dissent.
139.Before I pen off, I must comment on what I firmly believe to be a jurisdictional misadventure by the majority. The majority dedicates only a single paragraph to this question. In it, the majority frames it as a question of whether the Complaint is premature and they proceed to note that “the instant case has not been framed as an appeal against any decision of the [Registrar] under Section 40(1)(f) of the PPA.” First, of course, it cannot ‘be framed’ as an appeal because the Registrar is yet to make its decision due to our conservatory orders. Secondly, the majority falls into the trap that the Court of Appeal has warned about in Orange Democratic Movement v Yusuf AliSupra. Jurisdiction is not a matter of ‘framing’ or draftsmanship. It flows from the law and the substance of the complaint. The reality is, and I had hoped that the majority would have interrogated this, that Section 14A (2) of the PPA dictates what a political party must do before deeming a member to have resigned, i.e. (i) notify the member of its intention; and, (ii) afford the said member a fair opportunity to be heard in accordance with the procedure set out in the party’s constitution. A statutory responsibility is thereafter placed on the Registrar under Section 14A (4) and (5) of the PPA to assess whether the party has complied with the procedure under Section 14A (2) of the PPA. This express donation of power to the Registrar is not one for confusion. The Registrar does not conduct a clerical task under Section 14A (4) and (5); rather, its statutory duty therein is quasi-judicial. What the majority have done is to usurp this mandate, and it is all the more precarious for this Tribunal to assert jurisdiction at this stage when any appeal from the Registrar’s decision would lie to this Tribunal.
140.I would have ordered that (a) the Complaint be dismissed for lack of jurisdiction on account of the pending determination by the Registrar with no order as to costs; (b) the conservatory orders in this matter be vacated; (c) the 2nd Respondent be at liberty to determine the subject motion unless otherwise lawfully stopped; (d) parties be at liberty to thereafter apply. However, as the majority hold otherwise, the final Orders of the Honourable Tribunal shall be as proposed by the majority.
Final Orders of the Tribunal
141.Pursuant to the provisions of Section 39 and 41(3A) of the PPA as read together with Regulation 29 of the PPDT (Procedure) Regulations, 2017, the Decision of this Tribunal is determined by the Majority Opinion. Accordingly, upon consideration of the reliefs sought and the Majority Opinion, we make the following Final Orders;-i.An order be and is hereby issued declaring the disciplinary proceedings by the 1st Respondent conducted against the Complainant on 25th July, 2023 unprocedural, unlawful and in violation of Article 47 of the Constitution of Kenya, Section 14A of the Political Parties Act, Section 4 and 6 of the Fair Administrative Actions Act, Article 75(5) and (6) of the 1st Respondent’s Constitution as read together with the 1st Respondent’s Disciplinary Committee (Procedure) Rules and the rules of natural justice.ii.A declaration be and is hereby issued that the Disciplinary Committee of the 1st Respondent convened on 25th July, 2023 was not properly constituted and thus the decision of the National Executive Committee adopting the Recommendations of the said Committee is invalid and has no effect in law.iii.A Declaration be and is hereby issued that the Decision of the Respondent’s Disciplinary Committee and the National Executive Committee to deem the Complainant as having resigned was incapable of being implemented for having been made without ratification of the National Governing Council and as such a contravention of Article 12(1) (b) and Article 75(6) of the Orange Democratic Movement Party’s Constitutioniv.A permanent order for injunction be and is hereby issued restraining the Registrar of Political Parties from removing the name of the Complainant from the register of members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023.v.A permanent order for injunction be and is hereby issued restraining the 1st Respondent from interfering with, de-whipping or in any other manner whatsoever attempting to remove the name of the Complainant from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023.vi.Save for costs for the 2nd Respondent which shall be borne by the Complainant, the 1st Respondent shall bear the Complainant’s costs of these proceedings.
142.Orders accordingly.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 29TH DAY OF NOVEMBER 2023.HON. DESMA NUNGO HSC - CHAIRPERSONHON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER