Kioni v Jubilee Party & another; Dzuya & 12 others (Interested Parties) (Complaint E009 (NRB A) of 2023) [2023] KEPPDT 1278 (KLR) (10 July 2023) (Judgment)
Neutral citation:
[2023] KEPPDT 1278 (KLR)
Republic of Kenya
Complaint E009 (NRB A) of 2023
W Mutubwa, Vice Chair, T. Chepkwony, AA Abdikadir & MM Yusuf Jin, Members
July 10, 2023
Between
Hon. Jeremiah Ngayu Kioni
Complainant
and
Jubilee Party
1st Respondent
Registrar of Political Parties
2nd Respondent
and
Nelson Dzuya
Interested Party
Wanjiku Nduati
Interested Party
Robert Wanga
Interested Party
Mutembei Marete
Interested Party
Teresia Jesrusah Michael
Interested Party
Waithaka Ngaruiya
Interested Party
Hon. James Kanini Kega
Interested Party
Hon. Adan Keynan
Interested Party
Hon. Kenneth Gatobu
Interested Party
Hon. Fatuma Dullo
Interested Party
Hon. Advice Mundalo
Interested Party
Hon. Samuel Arama
Interested Party
Hon. Maitu Sabina Wanjiru Chege
Interested Party
Judgment
Introduction
1.The Complainant filed a complaint dated 19th May, 2023 before the Tribunal seeking the following declarations and orders:i.A declaration that the Jubilee Party National Disciplinary Committee does not have jurisdiction to hear and determine dispute relating to party officials.ii.A declaration that the Complainant was not given a fair hearing in accordance to Articles 47 and 50 of the Constitution. iii. A declaration that the 2nd, 3rd and 4th Respondents are not members of the Jubilee Party National Disciplinary Committee.iv.A declaration that the judgement of the Purported Jubilee Party National Disciplinary Committee was wrong for shifting the burden of proof from the Complainant to the charged member.v.A declaration that the findings of the Purported Jubilee Party National Disciplinary Committee were not supported by evidence.iv.A declaration setting aside the judgement and order of the Purported Jubilee Party National Committee dated 10th May, 2023.iv.A declaration setting aside the purported adoption and/or ratification of the Judgement dated 10th May, 2023.
2.The Tribunal directed that all interlocutory matters would be subsumed into the Complaint; heard and disposed of together in this judgment. Objections and interlocutory matters are therefore considered together with the merits in this judgement.
3.The matter was heard on 22nd June, 2023. The Advocates on record for the Complainant are Mr. Mbuthi Gathenji SC and Mr. Jackson Awele. Mr. Njomo is on record for the 1st Respondent. Ms. Cheruiyot is on record for the 2nd Respondent. Mr. Njomo is also on record for the 1st Interested Party. Mr. Omwanza is on record for the 2nd to 6th Interested Parties; while Mr. Manyara was on record for the 7th to 13th Interested Parties.
Complainant’s Submissions
4.Mr. Mbuthi Gathenji opened his address by stating that when the Complainant appeared before the 1st Respondent party’s National Disciplinary Committee (NDC) there was drama from beginning to end. He added that the committee gave orders that the Complainant was guilty of misconduct without following due procedure and providing any evidence in support of the allegation.
5.Learned Counsel then stated that the Complainant was expelled following the Judgement delivered on 15th May, 2023. Mr. Gathenji submitted that the expulsion through Judgement was contrary to the provisions of the Jubilee Party Constitution that provides that the Committee should only make findings, reports and decisions.
6.Counsel also referred to the minutes of the National Executive Committee (NEC) meeting held on 10th February 2023 wherein it was recorded that the Complainant had committed ‘unacceptable conduct ‘and not ‘misconduct’.
7.Mr. Gathenji stressed that a member and an official are different, with different disciplinary processes. He then invited the Tribunal to look at paragraph 23 to 45 of the Complainant’s written submissions wherein he set out the differences. Counsel submitted further that the IDRC’s jurisdiction does not extend to disciplinary matters and, as such, it lacked powers to deal with this matter and ought to have downed its tools.
8.Mr. Gathenji submitted that the descision reached by the Committee was marred with illegalities as the Complainant was denied the opportunity to mitigate, contrary to Article 50 of the Constitution of Kenya, 2010. Further, Mr. Gathenji stated that the Complainant was not given an opportunity to address the Committee and no evidence or documents were adduced.
9.Counsel pointed out that the Complaint against the Complainant herein had no particulars and that no charge sheet was presented. In a nutshell, he stated that there was no evidence to justify the removal of the Complainant. He concluded by urging the Tribunal to grant the orders as prayed.
10.Mr. Awele, addressed the Tribunal and begun his address by stating that he was in support of the arguments presented by Mr. Gathenji SC. He then proceeded to state that the Jubilee Party is a political party and a creature of the law created pursuant to the Political Parties Act and the Constitution of Kenya 2010.
11.Mr. Awele further submitted that Article 2 of the Constitution of Kenya 2010 provides that the Constitution is the Supreme law of the Republic and binds all persons at both levels of government. Additionally, he submitted, that Article 2(4) provides that anything that is inconsistent with the Constitution is void to the extent of the inconsistency; and further referred the Tribunal to Article 91 which outlines the basic requirements for formation of a political party.
12.It was learned counsel Mr. Awele’s argument that every political party has a democratically elected governing body and that the removal of any official must be democratically done. He further emphasized that the removal must be done in a manner that not only promotes democracy and the Rule of Law, but also observes the code of conduct for political parties, which provisions are mandatory.
13.Counsel further cited section 3 of the Political Parties Act, 2011, which provides that a Political Party may, subject to the Constitution, be formed in Kenya to further purposes which are not contrary to the Constitution or the Laws of Kenya.
14.Learned counsel added that pursuant to the provisions of the Constitution, a political party must have a code of conduct. He then stated that the compliance by members and officials to the code is not a discretionary matter or suggestion, but rather, it is a directive; and that failure to comply renders any actions null to the extent of the inconsistency.
15.Mr. Awele then emphasized that the Party’s Constitution was approved by the National Delegates Convention which is the highest organ of the party and represents the aspirations of the wider membership. Thus, the Constitution must be sanctified, respected and upheld. It was also his argument that it is under the said Constitution, where one can find the manner of convening meetings, provisions governing the relationship between the members and the officials, as well as provisions on the proper management of the party. He stated that the objective of having these provisions was so that political parties would find meaning in the democratic set up of the state. To do so, he counseled, would assure checks and balances, harmony and good governance of the country. That it is the Secretary General of the Party that calls meetings and convenes meetings of its organs. He then added that chaos in political parties reflects the manner in which a country is ultimately governed.
16.Mr. Awele pleaded with the Tribunal to give effect to the provisions of the Jubilee Party Constitution. He summarized the following points in his conclusion:i.It is not disputed that the Jubilee Party held a National Delegates Convention on 22nd March 2022 wherein the officials of the National Executive Committee were elected. He then referred the Tribunal to paragraph 117 and 118 of the Complainant’s Replying Affidavit, to which he had annexed the Gazette Notice identifying the Secretary General as one Jeremiah Kioni. He asserted that no other document had been placed before the Tribunal to contradict this position. He proceeded to state that by virtue of Section 60 of the Evidence Act, that is a document for which judicial notice could be taken; and as such, there was no basis for Mr. Kanini Kega or Honourable Kutuny to appoint another Counsel for the Jubilee Party.ii.There is no provision in the Jubilee Party Constitution that provides that the National Executive Committee could appoint an acting Secretary General. That this is a specific power of the NDC.iii.The powers of the Jubilee Party must be given in the strictest sense, in what the members intended.iv.That the 1st Interested party was the Complainant, investigator, judge and jury. That he went outside his mandate under the party constitution to direct the IDRC and NDC, which are independent organs of the party. That the 1st Interested party was so conflicted as chairperson of NEC which received the NDC report, and as a complainant in the proceedings. In essence that the 1st Respondent was a judge in his own cause. That Ms. Fatuma Dulo who had been replaced in the senate leadership role did not testify yet she was a complainant in the NDC proceedings.
1st Respondent’s Submissions (Mr. Njomo)
17.Mr. Njomo, for the 1st Respondent, set off by stating that he exhibited letters of instructions and his firm’s appointment. He then proceeded to submit on the descision to suspend the Complainant as Secretary General of the Jubilee Party. He stated that following the Complainant’s suspension, he could not hold himself as the Secretary General of the Party. Mr. Njomo pointed out that since the Complainant had not challenged the said descision, then it should stand. He then stated that the minutes of the meeting held on 10th February, 2023 were clear that the conduct of 3 officials including the Claimant were the subject of allegations of misconduct.
17.Mr. Njomo then pointed out that the Complainant did not utilize IDRM before formally challenging the meeting held of 10th February, 2023. He stated that disciplinary processes were invoked against the Complainant.
18.He also stated that it was not disputed that the Complainant received summons to appear before the Party. He cited Article 16 of the Party’s Constitution for the proposition that the Internal Dispute Resolution Committee (IDRC) does not possess the mandate to deal with disciplinary issues and, as such, the Complainant should not have been before the IDRC but the NDC.
19.Mr. Njomo then stated that Mr. Nelson Dzuya presented evidence before the NDC. He then stated that under the party’s constitution, once the NDC makes a descision, it is escalated to the NEC and that there is no requirement for another hearing at the NEC or before the Registrar. To buttress this point, counsel relied on authority number 4 on his list of authorities, a Supreme Court of Kenya Petition number 25 of 2019 The Senate and 2 others v Council of Governors and others. Being a decision that is binding on this Tribunal, on that score, he urged us to depart from our decision in Appeal no. 1 of 2023.
21.Learned Counsel maintained that Ms. Fatuma Dulo had no obligation to testify in the NDC proceedings since she was not a complainant notwithstanding the fact that the action of her removal from the senate role had affected her adversely.
22.Mr. Njomo proceeded to add that the law abhors a vacuum, and in the absence of the Secretary General, his deputy can undertake the roles of the Secretary General.
23.Counsel also stated that the minutes of the NEC resolution adopting the NDC decision with respect to the disciplinary proceedings against the Complainant were procedurally submitted to the Registrar of Political Parties in accordance with the party’s constitution. That, according to the 1st Respondent Party’s Constitution, the NDC is expected to submit its decision to the NEC which in turn submits its resolutions to the Registrar of Political Parties.
2nd Respondent’s Submissions
24.Ms. Cheruiyot, on record for the 2nd Respondent, submitted that a decision had been made and effected by the time the Tribunal’s orders were received. She stated that the complaint was untenable and the orders sought should be discharged.
1st Interested Party’s Submissions
25.Mr. Njomo, also on record for the 1st Interested party, stated that he wished to adopt the submissions he made for the 1st Respondent.
2nd to 6th Interested Parties Submissions
26.Mr. Omwanza, counsel for the 2nd to 6th Interested Party started his address by stating that the NDC is established by Article 14 of the Party’s Constitution. He then added that the powers of the Committee are clearly outlined in the party’s constitution and that the Committee is a quasi-judicial body.
27.Counsel invited the Tribunal to refer to the annexures marked WN7 to the Replying Affidavit of Wanjiku Nduati which showed the Charge sheet and Complaint against the Complainant. He then pointed out therefrom that Mr. Dzuya was not the Complainant but a witness, and that the Party was the Complainant. He added that the Complainant was duly served with a hearing notice and summons and, as such, had proper notice of what was required of him hence the reason he appointed Mr. Gathenji SC to appear for him.
28.That after directions were issued, the Complainant filed a Preliminary Objection on the basis that the reconstitution of the committee was improper. He referred the Tribunal to annexure WN11 to the Affidavit of Wanjiku Nduati which is a letter confirming that the NDC remained the same as that appointed on 10th March 2022 with the 6th to 11th Interested Parties and minutes filed 10th March 2022.
29.Counsel went on to state that immediately after the Complainant herein was suspended, he purported to dismiss the Chair and the Vice Chair of the NDC, and the 4th and 5th Interested Parties from the committee with the aim of making the committee completely dysfunctional.
30.Counsel contended further that an official of the party is not an employee and thus issues of misconduct of officials cannot go to the IDRC but NDC. He stressed that the Complainant’s preliminary objection was dismissed in the presence of his counsel. He reiterated that the 1st Interested Party was cross examined by the Complainant’s Advocate.
31.Mr. Omwanza further stated that a Ruling was made on the Preliminary Objection and the proceedings of the Committee were communicated to the Complainant who did not attend the meeting, but instead, filed an Affidavit. Counsel submitted that the Complainant’s rights to fair administrative action were protected.
32.Learned Counsel also stated that the NDC asked the Complainant for information on his complaint against Mr. Dzuya. Several opportunities were given but he still did not do so. At which point, the matter was forwarded to IDRC for hearing and determination.
7th to 13th Interested Parties Submissions (Mr. Manyara)
33.Mr. Manyara aligned his submissions with those of Mr. Nyamweya and Mr. Njomo. He proceeded to state that NEC is a governing body and a creature of the Jubilee Party Constitution. He then asserted that the NEC did not work to mete out an injustice to the Complainant.
34.He then referred the Tribunal to provisions regarding the NEC and NDC in the party’s Constitution that require the NDC to ensure discipline in the Party and a similar role for the NEC. He urged that no injustice was visited on the Complainant. He referred to the sequence of events and timelines as detailed in the affidavit of Wanjiku Nduati in response to allegations of procedural impropriety levelled against the NDC by the complainant.
35.Learned counsel concluded by stating that he was of the view that the Complainant was now making an effort to bring in matters that the Tribunal had no jurisdiction over.
Complainant’s Rejoinder
36.In rejoinder, Mr. Gathenji stated that he had cross referenced the Complainant’s Affidavit with supporting documents (he referred to page 19 and 20 of the Complainant’s affidavit). He maintained that there was no mention of the particulars of misconduct against the complainant in the charge sheet.
37.Mr. Awele also addressed the Tribunal and emphasized that there was no mention of any misconduct but rather ‘unacceptable conduct’.
38.Learned Counsel further stated that the meeting held by NEC comprised of the same people as those who had referred the matter to the NDC. He also stressed that in the NDC judgement, the committee did not make any adverse findings against the complainant. He submitted that the Tribunal is not bound by the Jubilee Party Constitution if the same is against the Fair Administrative Action Act, 2015 and the Constitution of the Republic of Kenya, 2010. Counsel insisted that the Committee received no credible evidence against the Complainant.
39.Counsel also pointed out that on the 8th May 2023, they appeared and were told to proceed. That there were police in combat gear to intimidate them. That a fair trial constitutes a conducive environment to proceed with the trial.
Analysis and Determination
40.We have considered all the material placed before us by the parties and now determine that the following three questions fall for our determination:i.Whether the Disciplinary proceedings against the complainant were proper, lawful, fair and in accordance with the Jubilee Party Constitution?ii.What order should we make in the matter?iii.Who bears the costs of this suit?
41.We will consider the questions framed in the order in which they appear above.
Whether the Disciplinary proceedings against the complainant were proper, lawful, fair and in accordance with the Jubilee Party Constitution?
42.The gist of the Complaint by the Complainant is that the proceedings mounted against him by the 1st Respondent fell both procedurally and substantively short of the standards established in Articles 47, and 50 of the Constitution of Kenya, did not meet the test of impartiality and fairness set in the Fair Administrative Action Act, 2015 and were generally marred by multiple infractions of the Jubilee Party Constitution and breaches of its internal disciplinary rules.
43.While the complaint invited us to address both procedural and the substantive questions relating to the disciplinary processes against him, most of the matters raised are purely procedural, and constituted an invitation to examine the procedural aspects of the disciplinary process rather than a merit analysis of its findings.
44.While we agree with the complaint that we are free to examine both facts and the law, in determining the propriety of the decision of the NDC, we, however, do not agree that our jurisdiction under section 40(2) is appellate. We have held, severally, that ours is an original jurisdiction. However, we venture to add that when an IDRM process returns a verdict, we exercise a sui generis jurisdiction that reflects both original and appellate jurisdictions.
45.In summary the specific breaches complained of, as we have distilled them, are:i.That the party National chairman, Mr. Nelson Dzuya, was the Complainant, prosecutor, jury and judge in the cause;ii.That the NEC meeting of 10/2/2023 which directed the NDC to conduct disciplinary proceedings against the Complainant did not possess such power and acted ultra vires its mandate;iii.That the NEC having directed the NDC to convene disciplinary proceedings against the Complainant, rendered such proceedings lacking in impartiality and independence, since the NEC interfered with the NDC by directing its convening;iv.The NEC, in receiving the decision of the NDC and adopting the same, sat as Judge in its own cause;v.The Complainant was not afforded notice to appear and defend himself before the NDC;vi.The NDC did not treat the Complainant fairly, denied him an adjournment, and hence an opportunity to put forward his defence;vii.The NDC did not furnish the Complainant with details of particulars of the Complaint against him;viii.The NEC did not conduct a fair hearing or allow the Complainant an opportunity to mitigate or present his defence after it received the decision of the NDC, thereby contravening Articles 47 and 50 of the Constitution of Kenya, and section 7 of the Fair Administrative Action, Act, 2015;ix.The NEC meeting of 10th February 2023 could not appoint an acting secretary general, in any event such a position does not exist in the party’s constitution; andx.The NDC was not properly constituted when it heard and determined the dispute, since some its members who sat in the matter had been relieved of their offices by Hon. Jeremiah Kioni, hence its actions were void ab initio.
46.Most of the grounds raised in this complaint are the very same in Complaints number 10, 11 and 12. Parties filed responses and made or relied on submissions and affidavits cutting across the three matters. In the interest of judicial economy, consistency and brevity, where an issue has been addressed herein or in Complaint No.10, the same will, therefore, be taken as having addressed the same question raised in the other two matters.
47.We will now deal with each of the afore-stated grounds before positing our conclusion.
Conflict of interest by the Chairman, Mr. Nelson Dzuya
48.It is the Complainant’s contention that the 1st Interested Party directed the NDC of the 1st Respondent to convene and deal with disciplinary proceedings against the Complainant. He advanced that the National Chairman of the 1st Respondent party does not possess the constitutional mandate to direct an independent organ of the party, such as the NDC, particularly one with quasijudicial authority. Accordingly, it is the Complainant’s view that the directives by the chairperson robbed the NDC of its independence and impartiality, with its outcome predetermined.
49.The Complainant further stated that the 1st Interested Party was the Complainant in the NDC cause against him, yet he also chaired the NEC which directed the NDC to undertake proceedings against him. He saw this as a conflict which completely adulterated the NDC proceedings from a fair trial and fair administrative action perspective.
50.The Complainant further urged that the 1st Interested Party having chaired the NEC of 10.2.2023, which suspended him, testified before the NDC, and received the NDC report in a NEC meeting he chaired on 13.5.2023 undertook multiple roles that put him in conflict of interest leading to a contaminated process.
51.We agree with the Complainant that any person whose rights are to be determined by a judicial organ is entitled to an unqualified right to a fair hearing/trial, adequate notice and facilities to appreciate the allegations against him and to adequately respond thereto. The hallmarks of any judicial or administrative process is impartiality and strict observance of the rules of natural justice; principal of which is the absence of conflict of interest, or in other words one cannot be a judge in his own cause.
52.The beginning point is to interrogate the Jubilee Party’s Constitution, so as to establish the extent of the remit of the National Chairperson of the party. Article 9.1 of the Jubilee party constitution empowers the National Chairperson to:1.Preside over and chair the meetings of the National Executive Committee, the Management Committee and the National Advisory Committee.2.Ensure discipline, proper conduct and order in the party in accordance with the constitution and have overall authority over all the organs of the party.3.On behalf of the National Executive Committee oversee over all organs of the party.4.Appoint the Chairperson and Members of the Elections Board in accordance with the Constitution.5.Appoint the chairperson and Members of National, County and Constituency Disciplinary Committees in accordance with the Constitution6.Forge a strong sense of unity within party organs and amongst party ranks and ensure a pleasant working relationship between party officers and members.7.In consultations with NEC issue policy directions and guidelines to all the party officials, members and employees from time to time.8.Symbolise the image of the party, defend the party, its constitution, policies, interest, programmes and actions.9.Perform such duties and exercise such powers conferred upon him or her by this constitution and take any action or give any directives which in his or her opinion will enable the party to archive is objectives and interests.10.Be a signatory to all Party bank accounts.11.Subject to the provisions of this constitution or any other written law, sign the nomination certificates of all party candidates.
12.Ensure adherence to party policy by the officials and members.
13.Continue in office and perform the duties of the office of the chairperson until a new chairperson is elected and takes the oath of office.14.Perform such duties and functions as are inherent or customary to the office of the National Chairperson.Upon being elected, the National Chairperson shall take oath of allegiance to the party and such other oath of due execution of their office as may be prescribed by the NEC.
53.It is clear from the party Constitution that the National Chairperson is mandated to ensure discipline, proper conduct, and order in the party; to appoint inter alia, chairperson of the NDC and to generally defend the party, its constitution and policies. He is also the Chairperson of the NEC, the National Management and National Advisory Committees of the party, by dint of Article 9.1. He is also mandated to oversee all organs of the party.
54.Prima facie, the National Chairperson of the party cannot be faulted for undertaking the roles bestowed upon him by the party’s supreme law, its constitution.
55.In his affidavit sworn on 25th May 2023, the 1st Interested Party is categorical that the Complainant in the NDC Complaint was the Jubilee Party and that he only appeared as its witness before the NDC.
56.We have carefully perused the complaint and summons. The same are produced as exhibit ND3 to the Replying Affidavit of Nelson Dzuya sworn on 5th June 2023. Nowhere does it mention Mr. Dzuya as the Complainant. It is also discernible from the Complainant’s own preliminary objection filed in the NDC, exhibited as ND6 to Mr. Dzuya’s Affidavit aforesaid, and the NDC’s directions (ND8) that they describe the Jubilee Party as Complainant right from the title. We have not seen any rebuttal to these depositions by Mr. Dzuya.
57.In any event, it is common ground that the 1st Interested Party did not appoint the Chairperson of the NDC, although he was legally, under the party’s constitution, entitled to do so. It is an agreed fact that the NDC was constituted on 28th February 2022 when there was no dispute at all on the leadership of the party and the Hon. Raphael Tuju was its Secretary General. The minutes of the meeting of 28th February 2022 are annexed to the Replying Affidavit of Nelson Dzuya dated 5th June 2023 and exhibited as exhibit “ND-12”. That is the NDC that heard the disciplinary proceedings against the Complainant.
58.In fact, it is the Complainant who made attempts at interfering with the constitution of the NDC following our decision in Appeal no. 1 of 2023 made on 19/4/2023. Taking into account the specific and general roles of the National Chairperson of the party, as spelt out in the 1st Respondent party’s Constitution, we do not find any merit in the argument that the NEC cannot direct that an appropriate organ of the party convenes to undertake its role. We have not seen any evidence, apart from assumptions and suppositions, that the NDC was either directed in the discharge of its mandate or that its judicial independence was taken away by the 1st Interested Party. There is also no evidence to support the fact that the 1st Interested Party, an individual with no more than one vote in a NEC of 30 persons, could have influenced the NEC to the Complainant’s detriment. We must add that the National Chairman neither committed the matters to the NDC as an individual or in his capacity as National Chairman, but as a resolution of the NEC which he chairs by dint of the party’s constitution. In the absence of compelling, or indeed any evidence, we find no merit in this ground of the Complaint.
Is the NEC resolution of 10/2/2023 suspending the Complainant, null and void or in excess of its authority?
59.Questions over the propriety of the meeting of 10.2.2023 and the resolutions emanating therefrom have been the subject of two of our decisions: Appeal no 1 of 2023; and Complaint no. 10 of 2023 delivered together with this judgment. In both decisions we have declined to annul or set aside the resolutions of that meeting for the reasons contained in those judgments. For completeness of record, in this file, it suffices to state that the challenges to the resolutions reached in the meeting, including the validity or otherwise of the actions of the NEC, have been settled in the aforesaid decisions and the IDRC decision of the Jubilee Party of 7th June 2023. We cannot revisit those matters, unless, as stated in our Judgement in Complaint no 10 of 2023, if, as and when we are moved appropriately in a Complaint against the said IDRC decisions. As it stands today, the IDRC decision to the effect that the meeting of 10/2/2023 was properly constituted and its resolutions valid, has not been challenged or set aside, and remains in force. That decision also settles the questions on the constitutionality of the appointment/election of the 7th Interested Party as Acting Secretary General of the 1st Respondent party and all the other officials who came in by the resolutions of that meeting.
60.In any event, the suggestion by the Complainant that the 1st Respondent’s NEC has no role whatsoever in the discipline of members of the party is patently inaccurate. Article 7(N) of the 1st Respondent’s Constitution readily answers this by stating that the National Executive Committee shall have the following functions:
61.The NEC supervises the party organs, and also ensures that they “convene theirmeetings as per the Constitution”. There is nothing in that mandate to suggest that the NDC is subservient or controlled by the NEC. The constitutional architecture of the Jubilee Party’s Constitution not only creates checks and balances, but also ensures coordination of party organs. Party organs are not islands and do not exist in isolation of one another, but in a harmonious interdependence. After all, they serve the same membership with common objectives. The doctrine of separation of powers famously attributed to the 18th Century French Philosopher Montesquieu, applies to party constitutions as it does to republican state constitutions. In essence, although executive, judicial and legislative organs of institutions are independent of one another in terms of decision making, they are interdependent in terms of coordination and facilitation.
62.For the reason afore-going, we find no merit in the ground and dismiss the same.
In receiving and adopting the NDC decision, was the NEC lacking in impartiality hence rendering the Disciplinary proceeds against the Complainant null and void?
63.Article 13 of the Jubilee Party’s Constitution defines the disciplinary process against a member. At the end of the process the NDC submits its findings to the NEC for adoption, ratification, variation or substitution. This mandate is couched in mandatory terms under Article 13.1.12 and 13.1.13 of the Jubilee Constitution, which merit reproduction for ease of reference:
64.It is fairly obvious that the NDC is required to forward its findings to the NEC, and for the latter to either adopt, ratify, vary or substitute the same. This is what happened in the present case. It may very well be that the Complainant is not happy with the architecture of Article 13 of the party’s Constitution, however, the same is binding upon him and all other members of the party. Indeed, we agree with Mr. Njomo’s submissions that the Complainant before us does not invite us to invalidate or quash any part of the Jubilee Constitution. On the contrary, the Complainant asserts that his rights under the same said Constitution have been violated. A plain reading of the Constitution which the Complainant relies on points to the exact opposite conclusion.
65.As we have already found the National Chairperson of the 1st Respondent was not the Complainant before the NDC, he chaired the NEC of 13/5/2023 which received the NDC findings and decision. This did not constitute any overreach of the Constitution but actually, compliance therewith. The National Chairperson and the NEC were merely exercising their constitutional mandate. A decision emanating from a trial process, complete with procedural and decisional independence, outside the control or proceedings of the NEC cannot be said to have been flawed. We equally dismiss the ground of the Complaint.
Procedural propriety of the NDC proceedings
66.We will address all the allegations of procedural impropriety during the NDC proceedings together, for brevity; and because the same are inter related.
67.Firstly, the Complainant states that service of the Complaint, charge and summons for hearing were not procedurally done in accordance with regulations of the NDC.
68.The 1st Interested Party’s Replying Affidavit sworn on 5th June 2023 exhibits the Hearing Notices and Summons sent to the Complainant as “ND3”. The summons captured the date, place and essence of the disciplinary process. The Complainant was served by email. It is not clear from the Complainant’s case what was omitted in the summons and how such omission prejudiced his ability to defend himself. We are satisfied that the summons contains elements of a proper notice and materials, including the name of the Complainant, the subject of the summons, the subject matter, procedural rights of the charged member, day and place of the hearing, the issuer of the summons, and the enabling regulations. The summons is dated 2.5.2023.
69.The Complainant confirms having attended the hearing of the matter on 8th May 2023 after it was adjourned from 5th May 2023 due to security threats at the Fairview hotel Nairobi where it was initially set to be undertaken. It is common ground that the Complainant offered Affidavit evidence in answer to the allegations against him. He was represented by counsel, including Senior counsel Mr. Mbuthi Gathenji SC. The Affidavit filed by the Complainant in the NDC proceeding, is annexed to Mr. Dzuya’s Replying Affidavit and is marked
70.The Complainant complains of police presence at the hearing. He does not explain how that hindered the presentation of his case. An examination of the proceedings and conduct of the proceedings of the NDC show that the Complainant was allowed to cross examine the 1st Interested Party. In any event, the Complainant could not possibly be intimidated by police when he was not physically present, having chosen to participate only through counsel and affidavit evidence. Following the skirmishes of 5/5/2023 at Fairview Hotel, it was reasonable to expect enhanced security on 8/5/2023 when the proceedings resumed. In any event, presence of police, even in a court room like was the case during this tribunal’s hearing of this matter, is more of an assurance of security than it is the opposite. There is also no evidence adduced to indicate that the security personnel present at the venue of the hearing interfered with the proceedings in any way.
71.The Complainant asserted that the summons and charge sheet/complaint were inadequately drafted for him to properly comprehended the details of the allegations against him. On the contrary, a summary of the Complaint produced by Mr. Dzuya as ND3 exhibited to his affidavit dated 5th June 2023, tells quite the opposite. The documents set out the charges, particulars thereof, and procedural rules with fair detail. It is quite apparent that a cursory look at the charge sheet will show that the same is very detailed.
72.Mr. Dzuya also filed two affidavits before the NDC, both have been annexed to his response. The Affidavits gave details of the complaint with fair sufficiency. Again, the record of the NDC does not show that Complainant protested the adequacy of the Complaint. He proceeded to respond thereto by way of affidavit evidence, and a preliminary objection; and subsequently crossexamined the 1st Interested Party. The hearing was scheduled to start at 2.00pm on 8.5.2023, and by the Complainant’s own account/admission ended at 7.30pm. This was more than adequate time for hearing considering that only one witness testified. The material examined depicts a picture far from the conduct of a party who was unprepared or who was intimidated or who had insufficient information on the case against him.
73.The Complainant states that the dismissal of his preliminary objection dated 8/5/2023 and request for adjournment did not give him an opportunity to prepare his defense. We note that the summons and Complaint against the Complainant are dated 2nd May 2023. He was also able to file a Replying Affidavit. The matter was adjourned on 5/5/2023, to 8/5/2023, at 2.30pm. The record shows that the Complainant’s Advocates were allowed to submit on his preliminary objection, and a ruling delivered shortly thereafter. Reasons for the ruling were reserved. Proceedings also show that the Complainant’s Advocate admitted that his preliminary objection did not constitute pure points of law, hence required buttressing with evidentiary material. In essence, according to the elementary understanding of what a preliminary objection would entail, the Complainant’s counsel’s own admission was that his preliminary was a non-starter. There was no need, therefore, to adjourn proceedings to consider what was admittedly a fairly plain and obvious position in law. In any event, courts can dismiss objections in limine, as they have always done during trial or cross examination, and may decline request for adjournments if, in their discretionary assessment of the circumstances, an application for the adjournment is either unmerited or only meant to delay or scuttle the proceedings. It is a trite preposition of law that for a discretion of the court or tribunal to be interfered with, cogent evidence must be led to demonstrate that the discretion was not judicious or was either exercised whimsically, or capriciously. We see no such evidence laid before us.
74.We also conclude that the Complainant is caught up by the doctrine of waiver. The evidence points to his voluntary participation in the NDC proceedings. He cannot extricate himself from the proceedings. His conduct is consistent with a person who submitted himself to the judicial authority of the NDC and cannot now be heard to approbate against its mandate simply because the outcome was undesirable for him. In any judicial proceedings there are two possible outcomes. When one submits thereto, one acknowledges the possibility of the decision going against one.
75.We find support to our conclusion in the decision of the court in Bilita Wambui v Embakasi Ranching Company Limited [2022] eKLR where Oguttu Mboya J was faced with the issue: Whether the unreserved participation and conduct of the Defendant during and in the course of the proceedings herein would amount to waiver and therefore Whether, the Doctrine of waiver applies?
76.The learned judge held that:53.Suffice it to note, that the manner in which the Defendant conducted herself and participated in the proceedings is one that conforms with a conduct which was not only voluntary, but bespoke of acquiescence and submission to the jurisdiction of the court.54.In my humble view, the Defendant herein had all the right to file and/or take out a motion to strike out the subject suit and/or otherwise raise a preliminary objection, to vindicate her right, premised and/or anchored on non-service of summons to enter appearance.55.However, the Defendant did not choose to do so and instead unreservedly participated in the proceedings, up to and including the conclusion thereof. In this regard, the question that arises is whether the conduct of the Defendant herein fits within the four corners of the Doctrine of waiver.56.In my humble view, the Defendant had a right to protect and/or vindicate her interest by taking the necessary action, but same chose not to do so. To the contrary, same adopted a conduct, which reflected and/or represented forfeiture, abandonment and/or otherwise waiver of the rights.57.In the premises, it is my finding and holding that the Doctrine of waiver is relevant and applicable in the circumstance of the subject matter, taking into account the level of participation of the Defendant in the subject matter and the unreservedly participation during the proceedings, which ostensibly underscore the application of the Doctrine of waiver.58.In support of the foregoing legal position, I adopt and rely on the holding in the case of 748 Air services Ltd v Theuri Munyi (2017) eKLR, where the Court of Appeal cited various decisions including the case of Banning vs Wright (1972) 2 All ER 987, at page 998; where the House of Lords stated thus: -"The primary meaning of the word waiver in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted. A person who is entitled to a stipulation in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waivers are not always in writing. Sometimes a person’s actions can be interpreted as a waiver - waiver by conduct". Closer home in the case of Sita Steel Rolling Mills Ltd vs Jubilee Insurance Company Ltd [2007] eKLR the Court stated thus:“A waiver may arise where a person has pursued such a course of conduct as to evince an intention to waive his right or where his conduct is inconsistent with any other intention than to waive it. It may be inferred from conduct or acts putting one off one’s guard and leading one to believe that the other has waived his right.”This Court also did explore at some length the issues of waiver, estoppel and acquiescence in the Serah Njeri Mwobi case (supra) and we adopt its analysis in respect of waiver and estoppel by conduct, thus: "The doctrine of waiver operates to deny a party his right on the basis that he had accepted to forego the same rights having known of their existence. The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. See Seascapes Limited vs Development Finance Company of Kenya Limited, [2009] eKLR. The words waiver, estoppel and acquiescence have also been defined by the Halsbury’s Laws of England, 4th Edition, Volume 16. At page 992 waiver has been defined as follows:-„Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge. A person who is entitled to rely on a stipulation existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right... The waiver may be terminated by reasonable but not necessarily formal notice unless the party who benefits by the waiver cannot resume his position, or termination would cause injustice to him".”59.Based on the foregoing, I come to the conclusion that the Defendant herein is bound by the Doctrine of waiver, abandonment, estoppel and acquiescence and consequently, same cannot now be heard to raise the issue of non-extraction of summons to enter appearance as a basis to non-suit the Plaintiff.
77.We agree with the learned judge and similarly come to the conclusion that the Complainant herein is bound by the doctrine of waiver, abandonment, estoppel and acquiescence and consequently, he cannot now be heard to raise the issues he seeks to raise on adequacy of notice and particulars of charges.
78.The Complainant’s complaint does not also lay out the specific NDC regulations that were breached by the NDC and how those alleged breaches prejudiced his position. The Complainant on this account, is long on generalities, surmises, assumptions, and allegations; and short on compelling evidentiary content. This allegation is equally unsubstantiated and consequently fails.
Jurisdiction of the IDRC versus NDC
79.The Claimant advances that the proceedings against him ought to have been taken to the party IDRC and not NDC. In his view, questions related to the party officials are not disciplinary but IDRC matters.
80.We find this line of submissions and indeed complaint curious to say the least. We have examined the Complaint before the NDC and the one currently before us.
81.The proceedings before the NDC were purely on disciplinary matters. The proceedings did not relate to the leadership disputes in the party. The matters relating to the changes in officials of the party following the NEC meeting of 10.2.2023 were the subject of our decision of 19.4.2023 in Appeal no. 1 of 2023 The matter was subsequently referred to the party IDRC which rendered a decision on 7/6/2023.
82.We have addressed the status of the IDRC decision of 7/6/2023 in our considered decision in Complaint no. 10 of 2023, delivered alongside this Judgment. We need not say more but only to add that the proceedings exhibited as ND 3 and 6 to the Replying Affidavit of Nelson Dzuya clearly show the nature of the proceedings before the NDC. Matters of discipline of party members, be they officials or not, in our view, are matters which the Jubilee party’s constitution has reserved for its disciplinary organs, principal of which is the NDC, under Article 13.1 of the said party’s constitution. Article 13.1.4 provides that
83.We believe that the above-quoted part of the party’s constitution is succinctly clear enough on the subject matter of the NDC.
84.The upshot of the foregoing analysis is that this complaint fails in all material respects. For avoidance of any doubt, the disciplinary proceedings adopted the NEC on 19th May 2023 and the finding expelling the Complainant from the Jubilee Party is sustained. The Complainant’s complaint is dismissed in its entirety.
85.Having reached the conclusion in the paragraphs above, we need not consider the 2nd issue as framed, since no relief would flow from a judgment in the negative. We are left to address the last issue as framed, which involves costs of these proceedings.
Who bears the costs of this matter?
86.Costs follow the event. A successful party should be awarded costs to cover the exigencies of the litigation. We do not see why we should depart from this principle. The Complainant shall bear the costs of the Respondents and Interested Parties in this Complaint.
Disposition
87.We hereby make the following orders:i.The Complaint is hereby dismissed.ii.The costs of the Respondents and Interested Parties shall be borne by the Complainant.
88.Those are the orders of the Tribunal.
DATED AND DELIVERED IN VIRTUAL COURT ONTHE 10TH DAY JULY 2023HONOURABLE DR. WILFRED A. MUTUBWA OGW C.ARB FCIARB - VICE CHAIRMANHONOURABLE THERESA CHEPKWONY - MEMBERHONOURABLE ABDIRAHMAN ADAN ABDIKADIR - MEMBERHONOURABLE MUZNA MOHAMED YUSUF JIN - MEMBER