Kioni & 3 others v National Disciplinary Committee of the Jubilee Party & 2 others (Complaint E010 (NRB 'A) of 2023) [2023] KEPPDT 1361 (KLR) (10 July 2023) (Judgment) (with dissent)
Neutral citation:
[2023] KEPPDT 1361 (KLR)
Republic of Kenya
Complaint E010 (NRB 'A) of 2023
D. Nungo, Chair, G. Gathu & S Musau, Members
July 10, 2023
Between
Jeremiah Kioni
1st Complainant
David Murathe
2nd Complainant
Kagwe Gichohi
3rd Complainant
The Jubilee Party
4th Complainant
and
The National Disciplinary Committee of The Jubilee Party
1st Respondent
Joshua Kutuny
2nd Respondent
Kanini Kega
3rd Respondent
Judgment
1.The 1st, 2nd and 3rd Complainants were at all material times officials of the Jubilee Party, the 4th Complainant, holding the positions of Secretary General (SG), Vice Chairman (VC), and Treasurer respectively. On 2nd February 2023, the 2nd Respondent and one Nelson Dzuya, the Deputy Secretary General (DSG) and the National Chairperson respectively of the 4th Complainant, issued a notice convening a National Executive Committee (NEC) meeting of the 4th Complainant on 10th February 2023. At the NEC meeting held on the 10th February 2023 at Sarova Woodlands Hotel, Nakuru, the following resolutions were made: -i.That the party convenes a special National Delegates Convention (NDC) within a period of six months.ii.That pending the convention of a special NDC;a.The NEC commences the process of exiting the Azimio coalition.b.The NEC engages with the ruling coalition on the possibility of creating a working cooperation arrangement with it.c.The NEC demands that Jubilee party be recognised as a parliamentary party with all the rights and benefits accruing thereto taking into account that Jubilee party is the third largest party in Parliament.iii.That the following party officials are suspended forthwith and their cases referred to the party’s Internal Dispute Resolution (IDRM) for further determination;a.Secretary General, Hon. Jeremiah Kionib.The National Treasurer, Mr. Kagwe Gichohic.The National Vice Chairperson, Hon. David Murathe iv. That the National Disputes Resolution Committee be convened immediately to consider the matters of the suspended officials listed above.v.That the NEC hereby co-opts the following members of NEC to comply with the two thirds gender rule as required by the Registrar of Political Parties in her communication dated 25th January 2023;a.Hon. Irene Njoki Murembob.Hon. Sabina Chegec.Hon. Margaret Kamard.Hon. Jerusha Momanyi vi. That the following NEC members will hold the following offices in an acting capacity pending the outcome of the IDRM referred to above;a.Hon. Kanini Kega – Ag. Secretary Generalb.Hon. Rachel Nyamai – Ag. National Treasurerc.Hon. Adan Keynan – Ag. National Vice Chairperson vii. That Hon. WaJeff Wilson Mwangi is coopted as the acting National Chairperson of the National MCA Caucas pending the convening of a National MCA Caucas meeting.viii.That H.E. Governor Abdi Ibrahim Hassan be coopted as a member of NEC.
2.The resolutions of the NEC meeting of 10th February 2023 triggered a chain of events in furtherance thereof, including, the commencement of disciplinary proceedings against the complainants herein before the National Disciplinary Committee (TNDC) and TNDC decisions dated 10th May 2023 and 15th May 2023 expelling the 1st and 2nd Complainants, and suspending the 3rd Complainant from Jubilee Party; NEC meeting and resolution of 19th May 2023 that ratified the TNDC decisions; the decision of the Registrar of Political Parties dated 19th May 2023 that effected the TNDC decisions and NEC resolution of 19th May 2023, amongst other events.
3.Aggrieved by the chain of events in furtherance of the resolutions of the NEC meeting of 10th February 2023, the Complainants have filed the instant complaint vide the Complaint dated 25th May 2023 (hereinafter referred to as the Complaint) seeking the following reliefs from this tribunal: -i.A declaration that on the 2nd February 2023 the 1st Complainant was the substantive holder of the position of Secretary General of the Jubilee Party.ii.A declaration be and is hereby issued that the purported notice under the hand of the 2nd Respondent dated 2nd February 2023, the agenda, resolution and letter dated 10th February 2023 and the impugned decision of the 1st Respondent purporting to expel or suspend the complainants are null and void.iii.A declaration that the 3rd Respondent’s letter dated 19th May 2023 and all resolutions of the NEC purportedly made on the 19th May 2023 are consequently null and void.iv.An order quashing and/or setting aside the purported notice dated 2nd February 2023, the agenda, resolution and letter dated 10th February 2023, the impugned decision of the 1st Respondent purporting to expel or suspend the complainants, the 3rd Respondent’s letter dated 19th May 2023 and all resolutions of the NEC purportedly made on 19th May 2023.v.Costs of the complaint.
4.Together with the Complainant, the Complainant filed the Notice of Motion Application dated 25th May 2023 (hereinafter referred to as the Application) under certificate of urgency seeking the following orders that: -i.That this application is certified urgent, heard and orders granted ex-parte in the first instance.ii.Pending the hearing and determination of the application inter partes, the Hon. Tribunal be pleased to issue conservatory orders staying the Respondents’ decision that purportedly expelled the 1st and 2nd Complainants and suspended the 3rd Complainant.iii.Pending the hearing and determination of the application inter partes, the Hon. Tribunal be pleased to issue conservatory orders staying the letter dated 19th February 2023 in so far as the same purported to expel or suspend the 1st – 3rd Complainants herein.iv.Pending the hearing and determination of the complaint, the Hon. Tribunal be pleased to issue conservatory orders staying the Respondents’ decision that purportedly expelled the 1st and 2nd Complainants and suspended the 3rd Complainant.v.Pending the hearing and determination of the complaint, the Hon. Tribunal be pleased to issue conservatory orders staying the letter dated 19th February 2023 in so far as the same purported to expel or suspend the 1st – 3rd Complainants herein.vi.The Hon. Tribunal be pleased to admit the complaint against the purported decision of the NEC in so far as the same purported to adopt and forward to the ORPP the impugned decision of the 1st Respondent.vii.The costs of and occasioned by the application be provided for.
5.In consideration of the Application that was placed before the Tribunal Chairperson on 26th May 2023 for directions under certificate of urgency, the Tribunal Chairperson issued the following directions and/or orders:-i.That the Notice of Motion application dated 25th May 2023 be and is herebycertified urgent for consideration ex-parte in this first instance only.ii.That the Complaint and Notice of Motion application dated 25th May 2023 be served upon the Respondents within two (2) days of the date hereof and a return of service be filed.iii.That the Respondents to file and serve their response(s) to the Application within three (3) days of the date of service.iv.That the Notice of Motion Application dated 19th May 2023 be listed for mention on 31st May 2023 at 2.30pm to check on compliance and/or for further directions.v.That pending the hearing and determination of the Application inter partes, interim conservatory orders are hereby issued staying the Respondents’ decision that purportedly expelled the 1st and 2nd Complainants and suspended the 3rd Complainant.
6.Taking into consideration that this matter related to three other pending cases, namely, PPDT Nairobi Compliant No. E009 of 2023, PPDT Nairobi Complaint No. E011 of 2023, and PPDT Nairobi Complaint No. E012 of 2023, and that all the cases raised issues of great public interest, the Chairperson of the Tribunal designated the entire 7 member tribunal bench (the tribunal) to adjudicate over all the disputes. Accordingly, all parties hereto appeared before the tribunal on 31st May 2023 for the mention of the matter.
7.During the mention of the case on the 31st May 2023, the 1st to 4th Complainants were represented by Mr. Awele Advocate, Mr. Nderitu Advocate, and Ms. Kwamboka Advocate. Mr. Njomo Advocate of the firm of Kamotho Njomo & Company Advocates also appeared claiming to have instructions from Kanini Kega, the 3rd Respondent, to represent the 4th Complainant. The 1st Respondent was represented by Mr. Omwanza Nyamweya Advocate, and the 2nd and 3rd Respondents were represented by Mr. Manyara Advocate.
8.In consideration of the Complaint and the application, and all the parties’ respective reports on their status of compliance and the various requests made, and further in the interest of having a just and expeditious determination of all issues in controversy between the parties, the tribunal developed consensus with all the parties’ stated legal counsels and the following further directions were issued: -i.That PPDT Nairobi Complaint No. E009 of 2023, PPDT Nairobi Compliant No. E010 of 2023, PPDT Nairobi Complaint No. E011 of 2023, and PPDT Nairobi Complaint No. E012 of 2023 shall not be consolidated but heard together on the same date.ii.All parties to serve each other with their respective pleadings in all the Complaints so as to ensure that all parties are duly informed of all matters.iii.The Respondents and Interested parties in all the 4 Complaints to file and serve their respective replies to the Complaints and application together with all the documents they intend to rely on in defence to the Complaints within 7 days.iv.Corresponding leave is granted to the Complainants in all 4 Complaints to file and serve Supplementary Affidavits in further response if they so wish within 3days of date of servicev.The 4 Complaints to be mentioned on 9th June 2023 to check on compliance and fir further directions as to hearing.v.Both Counsels claiming to have instructions from Jubilee Party to file their respective pleadings based on their respective instructions and the tribunal will consider all information furnished.
9.When this case came up for further mention on 9th June 2023, not all parties had complied with the tribunal’s last directions. In addition, Mr. Njomo Advocate and Mr. Manyara Advocate requested for leave to file additional documents. Accordingly, balancing the interests of all parties, the tribunal issued the following further directions, inter alia, that: -i.All counsels to serve each other with all documents they have filed with a call to all counsels to be vigilant to reach out to one another and to cross check with the f filing portal to ensure they have all the parties’ pleadings and documents. ii. As tribunal is not keen to lock out any documents or information from any party and whereas Mr. Njomo’s and Mr. Manyara’s clients have no right of reply, the tribunal extends special leave to them to file and serve Further Affidavits that they intend to place on record within 3 days in the interests of securing all information and documents necessary for the tribunal to adjudicate this dispute.iii.Corresponding leave is granted to the Complainant to file and serve Further replies if they so wish within 3 days of service. iv. Parties desirous of filing written submissions on the Complaints to do so and serve by close of business on 20th June 2023.v.All the Complaints to be heard on 22nd June 2023 as from 10am in an open physical tribunal session at Milimani Law Courts.
10.On the 15th June 2023 prior to the date set for the hearing of the complaint, the complainants filed another Notice of Motion Application dated 15th June 2023 under certificate of urgency (hereinafter referred to as the Second Application) seeking the following orders from this tribunal:-i.This application be certified urgent, heard and orders granted ex-parte in the first instance.ii.Pending the hearing and determination of the application inter partes, the Hon. Tribunal be pleased to issue conservatory orders and/or injunction restraining the Respondents and/or their representatives jointly and severally from convening any meetings of any organ of the Jubilee party, issuing correspondence, notices or any communication and/or making any public representations on behalf of the Jubilee party.iii.Pending the hearing and determination of the application inter partes, the Hon. Tribunal be pleased to issue conservatory orders staying the communiques dated 6th and 13th June 2023 issued by the 3rd Respondent as annexed in the supporting affidavit hereto as exhibit ‘B’.iv.Pending the hearing and determination of the Complaint, the Hon. Tribunal be pleased to issue conservatory orders and/or injunction restraining the Respondents and/or their representatives jointly and severally from convening any meetings of any organ of the Jubilee party, issuing correspondence, notices or any communication and/or making any public representations on behalf of the Jubilee party.v.Pending the hearing and determination of the Complaint, the Hon. Tribunal be pleased to issue conservatory orders staying the communiques dated 6th and 13th June 2023 issued by the 3rd Respondent as annexed in the supporting affidavit hereto as exhibit ‘B’.vi.Subject to the decision of the Hon. Tribunal in the consolidated complaints, the Hon. Tribunal be pleased to quash the communique dated 13th June 2023 issued by the 3rd Respondent titled ‘notice to withdraw from the Deed of Agreement for Azimio la Umoja One Kenya Coalition’.vii.Such other or further orders as the tribunal may deem necessary in the interests of justice.viii.The 3rd Respondent be condemned to personally pay the costs of and occasioned by this Application in any event.
11.The Second Application was placed before the Tribunal on 16th June 2023 when the following directions were given: -i.That the Notice of Motion application dated 15th June 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.That the Notice of Motion application dated 15th June 2023 be served upon the Respondents and Interested Party immediately and a return of service be filed.iii.That the Respondents and Interested Party to file and serve their response(s) to the Application within two (2) days of the date of service.iv.That as this Complaint already has a hearing date fixed for 22nd June 2023 at 10am, the Application be and is hereby listed for hearing on the same date simultaneously with the Complaint.v.That pending the hearing and determination of the Complaint and Applications filed herein inter partes, interim conservatory orders are hereby issued restraining all parties hereto and/or their representatives jointly and severally from issuing any communication and/or making any public representations on behalf of Jubilee party, and further staying communication dated 6th and 13th June 2023 issued by the 3rd Respondent and any other communication and/or decisions that may have been issued and/or taken by any of the parties hereto on behalf of Jubilee party during the pendency of these proceedings.
12.The Complaint, the Application and the third Application came up for hearing before the Tribunal on 22nd June 2023 as scheduled. At the commencement of the session, Mr. Njomo Advocate brought to the attention of the tribunal another Notice of Motion Application dated 21st June 2023 (hereinafter referred to as the third Application) that he had filed on the eve of the hearing date under certificate of urgency. The thirdApplication seeks the following orders from the tribunal: -i.That this Application be certified as urgent and be heard ex-parte in the first instance for reasons of the urgency.ii.That pending the inter partes hearing of this Application, there be a temporary stay of the ex-parte orders granted on the 16th June 2023 in the Notice of Motion Application dated 15th June 2023.iii.That this Honourable Tribunal be pleased to hear this Application and the Notice of Motion Application dated 15th June 2023 before hearing Complaints Numbers PPDTC E009, E010, E0100 and E012 of 2023 that are scheduled to proceed on 22nd June 2023 and the related matter being PPDTA Appeal Number E003 of 2023 involving similar parties and similar issues which will be coming up for hearing on Friday 23rd June 2023.iv.That the ex-parte orders given on 16th June 2023 in the Notice of Motion Application dated 15th June 2023 be set aside and/or vacated pending the hearing and final determination of this Application and the Notice of Motion Application dated 15th June 2023.v.That in the alternative and without prejudice to prayer number 4 above, the exparte orders given on 16th June 2023 in the Notice of Motion Application dated 15th June 2023 be set aside on grounds that this Honourable Tribunal has no jurisdiction to hear the Notice of Motion Application as it is premised on new issues that were not raised in the main complaints and which fall squarely in the 4th Complainant’s IDRM.vi.That the costs of this Application be provided for.
13.In recognition that the substantive Complaint was already scheduled for hearing on the 22nd June 2023 and with the expectation that a final holistic determination would be made on the Complaint, and further in the interests of an efficient, effective and expeditious determination of the complaint, and all parties having been served with the third Application, the tribunal engaged Mr. Njomo Advocate and all the parties hereto in developing a consensus and directions were issued to the effect that the Complaint, the Application, and the Second Application proceeds for hearing simultaneously with the third Application, with the third Application being deemed to be in response to the Second Application.
14.This Complaint was accordingly heard inter partes on the stated dated of 22nd June 2023 as scheduled, and all the parties’ respective counsels made their oral submissions. The applications which sought orders similar to the reliefs sought in the Complaint were subsumed within the complaint.
15.We state at the onset of this Judgment that whereas there was a contest on the representation of the 1st Respondent, we elected not to substantively dwell on the same on merits as our determination would have the resultant effect of locking out persons affected by these proceedings. This is because the tribunal acknowledges that the contest on representation is occasioned by the different factions within the party. Accordingly, in the interest of allowing all parties who are affected an opportunity to participate in these proceedings, the tribunal made the conscious decision to consider all the pleadings and evidence filed by all law firms claiming instructions from the different factions within the party.The 1st to 4th Complainants’ Case and Submissions (by the firm of Awele Jackson Advocates LLP)
16.The Complainant has challenged the legality of the notice dated 2nd February 2023, the NEC meeting of 10th February 2023 and the resolutions emanating therefrom, and all the consequential processes in furtherance thereof on the following grounds as pleaded in the Complaint: -i.The Jubilee party and all its members are governed by and are subservient to a party constitution.ii.Pursuant to Article 10.5 of the said party constitution, the Secretary general of the Party has the sole mandate of convening meetings of the NEC, and the National Delegates Convention (NDC), is the party spokesperson, custodian of legal documents and is responsible for all correspondence between the party and third parties.iii.On 2nd February 2023 when the Hon. Kutuny purported to issue a notice convening NEC meeting, Hon. Jeremiah Kioni was by dint to a decision of the NDC gazette by the ORPP on 22nd March 2022 substantively and lawfully in office and was of sound mind and disposition to discharge the aforesaid mandate as Secretary General (SG).iv.The Hon. Kutuny as the Deputy Secretary General (DSG) of the party therefore has/had no power or authority at the material time to execute the functions of the SG’s office while the substantive holder of the said office was still in office.v.In the event, the notice dated 2nd February 2023 under the hand of the Hon. Joshua Kutuny that purported to convene a NEC meeting and all subsequent meetings purportedly held and resolutions passed pursuant thereto were/are a nullity.vi.By the same vein, the impugned TNDC decisions were anchored on a nullity and is similarly null and void.vii.In any event, the impugned TNDC decisions are fraught with procedural and substantive violations of the right to fair administrative action and the jubilee party constitution that render it a nullity as follows;vi.Pursuant to Article 14 of the party constitution, the TNDC has the original and exclusive mandate to hear and determine disciplinary complaints against any member of the party.vii.The mandate of the NEC in disciplinary matters can only be invoked upon the tabling of a decision of the TNDC made under Article 14.12 of the party constitution.viii.In the instant case, the NEC reversed roles and purported to pass a substantive resolution that was merely passed on to the TNDC to rubberstamp. In effect, the TNDC received a verdict and not a complaint.ix.There is thus no record of any complaint or indeed charges by any person against any of the complainants capable of sustaining disciplinary proceedings as purported.x.The complainants have not been furnished with the purported decision of the 1st Respondent so as to enable them appreciate the reasons therefor.vi.From the foregoing, the 1st Respondent ex facie ratified and/or perpetuated gross illegalities that fly in the face of the party constitution and fundamental guarantees to fair hearing and fair administrative action enshrined in the Constitution of Kenya 2010.vii.The subsequent NEC meeting of the 19th May 2023 that purported to adopt the impugned TNDC decisions was similarly not convened as prescribed by the Jubilee party constitution.viii.The trial purportedly conducted by the Respondent was in the event a sham with a pre-determined outcome and was in any event anchored on gross illegalities.ix.The Chairman and members of the TNDC that presided over the impugned TNDC decisions had no authority to do so as they had been removed form office pursuant to a resolution of the NEC convened by the party leader and which decision was ratified by the NDC held on the 22nd May 2023.vi.The mere fact that the Complainants appeared before the 1st Respondent cannot excuse or sanitize the illegalities complained of.vii.The meeting of 2nd February 2023 was in its true tenor and object a coup on the organs of the Jubilee party by the 2nd and 3rd Respondents, and that the 1st Respondent, by the impugned TNDC decision, has implicitly legitimized the same.
17.The Complaint is supported by the Application and Supporting Affidavit sworn by the 1st Complainant on 25th May 2023, the Supplementary Affidavit sworn by the 1st Complainant on 7th June 2023, the Further Affidavit sworn by the 1st Complainant on 14th June 2023, the second Application and Supporting Affidavit sworn by the 1st Complainant on 15th June 2023, and the Complainants’ Written Submissions and List & Bundle of Documents dated 20th June 2023.
18.In his Supplementary Affidavit sworn on 7th June 2023 in response to the Replying Affidavit sworn by Nelson Dzuya claiming to act on behalf of the 4th Complainant in response to the Complaint, the 1st Complainant has, inter alia, deposed as follows: -i.The SG of Jubilee party and the party leader have the exclusive mandate under Article 10.5 of the Jubilee party constitution to commence legal proceedings on behalf of the party, instruct advocates representing the party and issue official communication on behalf of the party. The National Chairperson has no authority to issue official communication on behalf of the party including purporting to undertake or institute proceedings on behalf of the party as purported by Mr. Nelson Dzuya.ii.The 1st to 3rd Complainants are the SG, the VC and Treasurer respectively of Jubilee party having been elected as such by the party’s NDC held in the year 2022 and subsequently duly gazette by the Office of the Registrar of Political Parties (ORPP) vide Gazette Notice No. 3195 of 22nd March 2022. Having been appointed by the highest decision-making organ, their expulsion or suspension, if procedurally undertaken, can only take effect with the sanction of the NDC. Decisions of NEC can only accordingly be implemented by the ORPP after ratification by the NDC and subsequent gazettement in accordance with Section 20 as read with Section 34C of the Political Parties Act (the PPA). iii. The contention that the meeting of 10th February 2023 was sanctioned by this tribunal in PPDTA Appeal No. E001 of 2023 is grossly misleading and a selective reading of the tribunal’s decision.iv.The DSG has no powers to convene NEC meeting as purported vide notice dated 2nd February 2023, and there is no evidence that the SG was requested to hold meetings and declined to do so. The notice of 2nd February 2023 was illegal and was in any event not served on all members of NEC as confirmed by Mr. Njenga Mungai, a NEC member, who also attested that the meeting of 10th February 2023 was actuated by ulterior political motives with the ultimate objective being the auction of the party to the Kenya Kwanza Coalition.iv.The 1st Complainant’s attempts to submit his complaints before the Internal Dispute Resolution Committee (IDRC) were frustrated by the IDRC on the basis that the same had been submitted by way of a letter dated 8th March 2023 thereby leaving the Complainants with no choice but to approach the Tribunal. This is notwithstanding that pursuant to Rule 13(2) of the IDRC Rules (yet to be ratified by NEC), the lodging of a complaint in writing is provided for in permissive terms and is discretionary. Ironically, the proceedings of TNDC in Complaint No. 1 of 2023 were commenced by way of a letter and admitted for hearing, a classic demonstration of partiality and double standards on the part of TNDC and IDRC.iv.The same complaint arose in proceedings in TNDC Complaint No. 1 of 2023 wherein Mr. Nelson Dzuya, on cross examination, confirmed to have illegally directed the DSG to convene the meeting of 10th February 2023 without recourse to the party leader or the substantive SG. TNDC ignored the issue central as it was to the determination of the issues before it and neglected to determine it on the basis that the issue was live before another tribunal when in fact there was no such issue being entertained by any other tribunal at the time.iv.The 1st Complainant did everything possible to address the illegality of the meeting of 10th February 2023 with the party’s IDRM to no avail, having attempted to submit the issue before the party to IDRC and TNDC without success, the Tribunal is, on the authority of its long-standing authorities, very well endowed with jurisdiction to determine the issue with finality.iv.TNDC was at all material times acting under the direction and control of Mr. Nelson Dzuya, the 4th Complainant’s National Chairperson, as per letter marked ‘E’. The Chairperson of TNDC was appointed by the said Mr. Nelson Dzuya. The TNDC was accordingly not an impartial arbiter in the dispute before it.iv.The purported adoption of the TNDC decisions by NEC on 19th May 2023 was illegal for various reasons including notice convene NEC meeting was without authority of SG, meeting was held at an undisclosed location away from the designated party offices, that the letter communicating the resolutions of the meeting to the ORPP was sent without authority of the SG, the NEC decision was made in violation of the effected persons’ right to fair administrative action and was accordingly in violation of Article 47 of the Constitution as read with the Fair Administrative Action Act (the FAAA), the purported expulsion and suspension was anchored on an illegal suspension decision made at the illegal meeting of 10th February 2023.v.By purporting to refer the disciplinary issues against the complainants to NEC and for NEC to purport to suspend the complainants before a hearing at TNDC, the NEC acted ultra vires the constitution and violated the complainants’ right to a fair hearing. NEC is not a disciplinary organ contemplated under Article 14.3.3 of the party constitution and it does not have the original or any jurisdiction to hear disciplinary matters in the first instance and to do so would be antithetical to the rule of natural justice nemo judex in re causa sua. The complainants were condemned unheard before NEC at the illegal meeting of 10th February 2023 and its decision compromised the objectivity of the TNDC over the matter as the outcome was premeditated and a fait accompli considering that TNDC is a quasi judicial body appointed by NEC
19.Further, in his Further Affidavit sworn on 14th June 2023 in response to the Further Affidavits sworn by Wanjiku Nduati, Nelson Dzuya, and Kanini Kega, the 1st Complainant has, inter alia, deposed as follows: -i.The Further Affidavits sworn by Wanjiku Nduati, Nelson Dzuya, and Kanini Kega, provide the clearest evidence of the charade and circus surrounding the purported expulsion and suspension of the Complainants. They are replete with deliberately concocted evidence in a vain attempt to conceal the illegalities raised in the complaint.ii.The Jubilee party constitution does not grant power to NEC to appoint the SG or other NEC official in an acting capacity or at all as the illegal meeting of 10th February 2023 purported to do. Any such appointment was a nullity.iii.The purported notice of meeting of 19th May 2023 was an afterthought and a vain attempt to cover up the illegalities raised in these proceedings as the notice was neither prepared on the date that it is claimed it was prepared as it was not part of the documents that were submitted to the 2nd Respondent on 19th May 2023, that the notice purportedly issued on 11th May 2023 was more than 1 week before TNDC rendered its impugned decision purporting to expel and suspend the complainants and demonstrated that TNDC was acting in collusion with and under direction of a third party, there is no evidence that the notice was served on all NEC members as required by the party constitution, and the notice was signed by an unauthorised person who is not the SG of the party.iv.The IDRC decision is new evidence arising in the course of these proceedings concocted as an afterthought in response to the issues raised in the complaint, and that the said decision is callous and brazen act of fraud as particularised in paragraph 7(a) to (m) of the complainant’s Further Affidavit of 14th June 2023 and demonstrate the extent the to which the Respondents are willing to subvert the rule of law and to manipulate the proceedings before this tribunal.v.The IDRC decision of 7th June 2023 is legally untenable and is premised on gross misapprehension and/or misinterpretation of the Jubilee party constitution which does not accord the Chairperson of the party the power to convene meetings of any party organ. The powers attributed to the Chairperson at paragraph 22 of the IDRC decision of 7th June 2023 are a classic illustration of excessive peering into the text of the constitution of the party in order to achieve an expedient meaning that was never intended by the drafters of the constitution. The IDRC failed to interrogate the purported letter dated 31st January 2023 to the DSG in order to establish inter alia the minutes and resolutions of the purported NMC meetings that called for NEC meetings. There is no record of any letter from Nelson Dzuya requesting the 1st Complainant to convene a meeting in compliance with the NMC directives as alleged and the conduct of the 1st Respondent and IDRC demonstrates they are not independent arbiters. This being a first appeal from the impugned decisions, the tribunal has nonetheless the powers to reappraise the evidence before it and to reach its conclusions on the substantive issues of law and procedure raised in the Complaint.
20.The Complainants further avers as follows in the Supporting Affidavit sworn by the 1st Complainant on 15th June 2023 in support of the Second Application andComplaint: -i.Pursuant to the conservatory orders issued by this tribunal on 26th May 2023 pending the hearing of the Complaint, the effect of the totality of the orders is that the officials of the Jubilee party remain as per the resolutions of the NDC and the changes to the register of officials embodied in Gazette Notice No. 3195 of 22nd May 2022.ii.The Complainants are concerned that the 3rd Respondent has in utter disregard of this tribunal’s orders and in violation of the sub judice rule continued to act in utter disregard of the spirit and text of the tribunal’s orders by taking actions, issuing correspondence and notices including notices of 6th and 13th June 2023, convening meetings and purporting to pass resolutions that seek to pre-empt the Judgment of this tribunal and thereby undermine the authority of the tribunal to determine the complaint fairly and with finality.iii.The 3rd Respondent is aware of the existence of conservatory orders herein and fully understands or should have been advised by his counsel that the key issue in controversy is his standing and/or authority to continue communicating on behalf of the Jubilee party as he is purporting to do.
21.Mr. Awele Advocate relied on his Written Submissions and submitted that the tribunal was sitting as a first appeal from IDRM decisions and being a first appeal, it was the duty of the tribunal to review the evidence adduced before IDRM and satisfy itself that the decisions were well founded. The Complaint is anchored on violation of fundamental provisions of the Constitution of Kenya, the Fair Administrative Act (FAAA) and principles of natural justice, and that in the case of Edwin Dande & Others vs. Inspector General National Police Service & Others SC Petition No.6(E007) of 2022 consolidated with Petition 4 (E005) of 2022 and 8(E010) of 2022 the Supreme Court held at para 85 that where a party approaches a court under the provisions of the constitution then the court must of necessity review the merits of the challenged decision. Jubilee party constitution is a derivative of the Constitution of Kenya 2010 and one the requirements is that persons whose rights are likely to be affected by any decision must be given a right to fair administrative action under Article 47 of the Constitution of Kenya and Section 4 and 7 of the FAAA. All decisions by Jubilee’s IDRM violated the subject provisions of the law. Central to the complaint are 4 decisions.
22.On the question whether the notice of 2nd February 2023 was issued in compliance with the law, the Complainants submit that the Jubilee party constitution is to members of the party what the Constitution of Kenya 2010 is to the people of Kenya. As the constitutive document promulgated by the highest decision making organ of the party, the constitution binds all members and organs of the party and anything done in contravention of the constitution is null and void. Strict compliance with its provisions is therefore mandatory and not discretionary. Article 2.5(1) and (6) of the party constitution proclaims the rule of law as a value for Jubilee party, and pursuant to Section 6(2)(e ) of the PPA, the Jubilee party was formed and registered on an undertaking to be bound by the PPA and the Code of Conduct set out in the First Schedule to the PPA. Under Section 6 of the First Schedule to the PPA, every political party undertook to respect, uphold and defend the constitution of Kenya; respect, uphold and defend their respective political party constitutions, political party election rules, political party nomination rules and any other political party rules and regulations developed and agreed upon in accordance with this code of conduct; respect, uphold and promote human rights and the rule of law; respect, uphold and promote good governance, integrity, respect, tolerance, transparency and accountability; perform transparency and accountability in all its legislation and regulations, structures, procedures and performance. It therefore follows that anything done in contravention of the Constitution of Kenya, the Jubilee party constitution and the law is null and void to the extent of their inconsistency with the said laws.
23.It was further submitted that the party constitution makes comprehensive provisions that regulate the appointment of party officials, the convening of party meetings and stipulates the powers and responsibilities of various office holders and organs of the party. Key among these provisions is the designation of the powers and responsibilities of the party leader, SG of the party, the DSG and the National Chairperson of the party. Article 22.2 of the party constitution provides that NEC shall be convened in accordance with the constitution and the National Chairperson shall preside over the same. Article 10.5(2), (5), (7) of the party constitution provide that the SG will convene meetings of NEC, be in charge of correspondence and communication on behalf of the party and issue notices. Article 8.2(5) further states that notice of NEC meetings shall be sent out by the SG at least 7 days before the date of the meeting. As regards the party leader, Article 10.1 of the party constitution provides that the party leader may summon a meeting of any organ of the party at any time and Article 8.2(6) provides that he may summon a meeting of NEC or attend any meeting of NEC. Article 10.3 stipulates the powers of the National Chairperson and nothing in the said provisions empower him to convene or issue correspondences on behalf of the party. Similarly Article 10.6 stipulates the powers and responsibilities of the DSG as to deputize the SG. This power can only be exercised subject to such instructions as the SG may issue or in the absence of the SG.
24.The Complainants submit that the above provisions serve a salutary purpose whose basic and underlying object is to ensure the observance of the rule of law in the management of the affairs of the party and to provide checks, counterchecks and balances between members and officials inter-se and members and organs of the party, and were promulgated to ensure transparency rule of law, integrity and democracy in the management of the affairs of the party.
25.According to Mr. Awele, it has not been controverted that vide Gazette Notice No. 3195 of 22nd March 2022, the ORPP ratified the election the party’s NEC officials as elected by the highest decision making organ, the NDC of 2022. As at 2nd February 2023 when Mr. Dzuya and Hon. Kutuny issued the illegal notice of 2nd February 2023, it is not in dispute that the 1st Complainant was the SG of the party, and Hon. Uhuru Kenyatta, Party Leader. There was no rational or legal basis whatsoever under the party constitution authorizing Mr. Dzuya and Hon. Kutuny to issue the notice of 2nd February 2023. As demonstrated in the 1st Complainant’s Further Affidavit of 14th June 2023, Mr. Dzuya’s allegation that the SG refused to convene meetings as directed by NMC hence the decision to bypass him is an afterthought and without evidence. The purported letter of 31st January 2023 that the IDRC purportedly relied on to validate the illegal notice contained bare allegations without evidence of the issues stated therein and could not be reasonable basis for validating the said notice as IDRC purported. The purported meetings of the NMC that directed the SG to convene meetings were not exhibited before IDRC or supplied to the SG then or in these proceedings. The inevitable conclusion is that these were pretextual and bare assertions intended to achieve a predetermined outcome. Counsel for the Complainant submitted that it is a trite rule of evidence codified under Section 108 of the Evidence Act that ‘the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side’. Contrary to the IDRC finding that the burden of proof was on the complainant to controvert the allegation that he refused to obey lawful NMC directives, it is submitted that even assuming the SG had been accorded a hearing no such burden had shifted to him so no evidence had been led on a balance of probability as to shift the burden of proof to him.
26.The IDRC’s attempt to validate the illegal notice of 2nd February 2023 by reading into the National Chairperson’s powers the substantive power to issue notices and to convene meetings of the party was in vain, misapprehended and desperate attempt to expand the text and spirit of the party constitution by judicial craft contrary to the finding by Mativo, J in Nairobi HC Constitutional Petition No. 472 of 2017 Apollo Mboya vs AG & 2 Others (2018) eKLR to the effect that judicial and quasi judicial bodies have no power to read into any law substantive provisions not expressly provided for therein or which are not readily discernable from the context of the law as is. If it was the intention of the party constitution to give the National Chairperson power to convene meetings, nothing would have been easier than for it to state so in plain language as it did under Articles 8.2(5), 10.1, 10.5(2), (5), (7) of the party constitution. The Complainants also relied in the case of Council of County Governors vs. Attorney General & Another (2017) eKLR.
28.Further, no evidence was tendered before IDRC and none has been tendered in these proceedings to justify the failure to serve the illegal notice of 2nd February 2023 on all NEC members and in particular the persons whose conduct the illegal meeting of 10th February 2023 intended to discuss and to pass judgment against, thus a violation of the principle audi alteram partem. The Complainants accordingly submit that the Respondents’ actions fall squarely within the remit of this tribunal under Section 7(2) of the FAAA and that the notice of 2nd February 2023 was illegal for non compliance with mandatory provisions of the party constitution.
29.With respect to meeting of 10th February 2023, counsel for the Complainants submitted that the common theme in the minutes of the meeting of 10th February 2023, the Respondents affidavits, the TNDC decision and the ratification decision is that the expulsion and suspension of the complainants is intertwined with the illegal notice of 2nd February 2023 and meeting. It follows therefore as a matter of law and public policy that all decisions anchored on the illegal notice and meeting were illegal ab initio. The status quo prevailing before the illegal notice and meeting of 10th February 2023 is that Hon. Jeremiah Kioni and H.E Uhuru Kenyatta remain the bonafide SG and Party leader of the Jubilee party respectively with the full power and authority as prescribed under the party constitution to do that which they have done since then. Further, the deliberations and resolutions of the said meeting is replete with flagrant procedural and substantive violations of fundamental principles of natural justice, fair administrative action and the Jubilee party constitution and is accordingly invalid. In respect to disciplinary proceedings, whereas the Chairperson of the party has the power to commence disciplinary proceedings, the rules of natural justice, the FAAA and the express text and spirit of the party constitution intended that the said power be exercised by the national chairperson and not NEC. Secondly, the decision to impose any of the sentences contemplated in the party constitution can only be made after and not before the affected person is heard. NEC does not have the power to originate or commence disciplinary proceedings, pass a substantive sentence on it, direct the TNDC to convene and thereafter purport to ratify the TNDC’s decision on the same issues. The meeting of 10th February 2023 violated each of the above principles and is accordingly invalid. A cursory look at the minutes of the illegal NEC meeting of 10th February 2023 shows that the decision to suspend and refer the disciplinary cases to TNDC was initiated and made by NEC and not the Chairperson. NEC is not a disciplinary organ contemplated under Article 14 of the party constitution and it does not have the original or any jurisdiction to consider disciplinary matters in the first instance and its mandate in disciplinary matters can only be invoked at the tail end of disciplinary proceedings upon tabling of decision of TNDC under Article 14.1.12 of the party constitution. It is then that NEC would mete out the punishment prescribed under Article 14.4.1.
30.It is further submitted that even assuming that the Chairperson was the complainant and not NEC, the fact that he presented the complaint to NEC in the absence of the complainants, prosecuted it then participated in the passing of the expulsion and suspension sentences was a violation of the nemo judex in re causa sua rule. The FAAA envisages that each and every decision taken by an administrator that may adversely affect the legal rights of a person entitles such person the full panoply of rights under Section 4(3) and (4) of the FAAA. For purposes of the decision to suspend the complainants NEC was an administrator within the meaning of Section 2 of the FAAA and ought to have afforded the complainant the above rights before it considered and passed the suspension sentence.
31.There is nothing in the party constitution that grants or delegates power to NEC to appoint the SG or other official in an acting capacity or at all as was purported in the illegal meeting of 10th February 2023. The purported appointments violated Section 7(2)(a) of the FAAA and were a nullity and all actions undertaken by such appointments were similarly a nullity. This applies to all notices Hon. Kanini Kega has been issuing in the purported capacity of acting SG as was held in the case of Okiya Omtata Okoiti & 3 Others vs Anne Waiguru, the Cabinet secretary Devolution and Planning & 6 Others (2021) eKLR.
32.With respect to the TNDC decision of 18th May 2023 and the IDRC decision of 7th June 2023, it is submitted that the same was riddled with illegalities and irregularities that go to the root of its validity. As set out in paragraph 6 and 7 of the Further Affidavit of Jeremiah Kioni sworn on 14th June 2023, the IDRC decision was concocted as an afterthought in response issues raised in the complaint, and in violation of Section 7(2) of the FAAA and should be set aside. It has further been demonstrated in the same Further Affidavit that the 1st Complainant’s complaint dated 8th March 2023 was rejected on the same date by the IDRC for want of the prescribed format. A similar complaint was also lodged on 20th April 2023 and rejected on the same ground on 25th April 2023. By their own admission, TNDC confirms that the said complaint was withdrawn by the 1st Complainant on 26th April 2023. Therefore, having declined to entertain the complaint dated 20th April 2023 and further the same having been withdrawn on 26th April 2023, TNDC lost jurisdiction to further deal with the same as it purported vide its ruling of 18th May 2023. TNDC had no jurisdiction under the party constitution to originate and/or refer complaints to IDRC. The purported referral was a fraud and an afterthought because in TNDC decision of 10th May 2023, TNDC expressly stated at paragraph 26 that the dispute over the suspension of the complainants was not before them and the issue was live before another tribunal when in fact that was not the case. As at 10th May 2023, the TNDC had conceded that it had no jurisdiction over the complaint. Then as at 18th May 2023, it purportedly referred the complaint to the IDRC. IDRC accepted the reference and notified the Respondents during the pendency of these proceedings and rendered a decision with no notice to the 1st complainant who was not afforded an opportunity to be heard.
33.Counsel for the Complainants further submitted on the illegality of the TNDC decisions of 10th and 15th May 2023 and NEC ratification of 19th May 2023. It is his submission that TNDC was manifestly biased. Article 14 of the party constitution envisaged TNDC as an independent quasi-judicial body. However, everything TNDC did in arriving at its decision was not impartial. TNDC was at all material times acting under the direction and control of third parties. Minutes of 10th February 2023 directed TNDC to convene immediately to consider the charges. On 23rd February 2023, the National Chairperson wrote to IDRC directing it to convene and hear complaint. A similar letter was sent to TNDC on 20th April 2023. On 19th May 2023, TNDC only released its decision to the complainants after it had been directed to do so by the Executive Director of NEC. The TNDC grabbed a complaint that it had rejected and which had been withdrawn and proceeded ex-parte to refer it to IDRC without notice to the original complainant. Further, TNDC members are appointed by NEC and the Chairperson of TNDC is appointed by the National Chairperson. The effect of this on the independence and impartiality cannot be ignored and the tribunal was invited to apply the holding in Hassan Ali Joho vs Inspector General of Police & 3 Others (2017) eKLR.
34.It is further submitted that Section 4(2) of the FAAA entitles every person to a copy of the written reasons for any administrative action that is taken against him. As administrators that presided over the proceedings giving rise to the impugned TNDC decision, TNDC had an obligation to supply the complainants with a copy of their decision as soon as the same was made. They did not send the decision until 19th May 2023 after they were directed by a third party. This is the same day the decision was submitted to NEC who ratified it on the same date. This is also the same date the same was submitted to ORPP and the ORPP effected it on the same day. The chain of events led to the inescapable conclusion that the impugned decision was deliberately and unreasonably kept from the complainants in order to defeat their right of appeal. Section 4(3)( c) of the FAAA entitled the complainant to know decision as soon as rendered and notice of a right to a review or internal appeal against the same before the NEC. Article 14.1.13 of the party constitution contemplates a decision of the NEC as the final decision on a disciplinary matter. This decision is distinct from that of TNDC and each administrator has the obligation to share its decision with an affected person independently. NEC was an administrator in its own right and had a similar obligation to hear the complainants before making its final decision.
35.The Complainants further submitted that the ratification decision of 19th May 2023 was in breach of the party constitution.The 4th Complainant’s Case and Submissions (by the firm of Kamotho Njomo & Company Advocates)
36.Under the representation of the firm of Kamotho Njomo & Company Advocates, the 4th Complainant is in opposition of the complaint. They relied on Affidavits sworn by the said Nelson Dzuya on 29th May 2023 in opposition to the Application and Complaint, and the third Application and Supporting Affidavit sworn by Nelson Dzuya on 21st June 2023.
37.It is Mr. Dzuya’s deposition in the Affidavit sworn on 29th May 2023 that he is the Chairperson of the Jubilee party, the alleged 4th Complainant. Jubilee party has not authorised the filing of the Complaint and the proceedings before the Tribunal are therefore improper with respect to the 4th Complainant and should be struck out. He has annexed his instruction letter marked as ND1 and avers that the 1st, 2nd and 3rd Complainants were suspended during NEC meeting of 10th February 2023 as per the resolutions he has produced and marked as ND2.
38.The suspension was conducted within the provisions of the Jubilee party constitution. The Complainants challenged their suspension and resolutions of the stated NEC meeting of 10th February 2023 before this tribunal in PPDT Appeal No. E001 of 2023 and this tribunal delivered its decision on 19th April 2023 (annex ND3) directing that the dispute be referred to the party’s internal dispute resolution mechanism (IDRM).The party lodged a complaint to the party’s TNDC in the required form through him, and the TNDC issued a hearing notice and summons to the complainant as evidenced by annex ND4.
39.The TNDC proceeded to hear the Complaint No. 1/2023 against the 1st Complainant on 8th May 2023 at 2pm. Directions for hearing of the complaints against the 2nd and 3rd Complainants were also given (TNDC Complaints No. 2 and 3 of 2023). The Complainants did not appear before the TNDC on 8th May 2023 but were represented by two advocates who filed necessary documents in opposition to the charges levelled against them. The matters were heard on merit after full participation of all the parties before the TNDC and Mr. Dzuya tendered evidence as the only witness for Jubilee party before TNDC. After conclusion of the hearings, TNDC reserved delivery of its Judgment as per Article 14.1.12 of the Jubilee party constitution which provides that TNDC shall report its findings and decisions to NEC for adoption, ratification,variation or substitution in accordance with Article 14.4 of the party constitution.
40.Mr. Dzuya avers that as former members of the Jubilee party, the complainants are fully aware of the stated provision of the party constitution and the allegation that they were not furnished with the Judgments does not have any basis as TNDC acted within the party’s constitutional provision in submitting the decisions to NEC. In any event, the Complainants through their advocates applied for copies of the TNDC decisions and the same were supplied to them through their advocate’s email after they had been adopted by NEC (annex ND6).
41.Pursuant to the party constitution, NEC met and adopted the TNDC decisions on 19th May 2023 as per the NEC minutes annexed as ND7. The NEC minutes were submitted to the Office of the Registrar of Political Parties (ORPP) who confirmed that the disciplinary process was in accordance with the party constitution and confirmed expulsion and suspension of the complainants vide letter dated 19th May 2023 (ND8). NEC did not therefore reverse its role on disciplinary matters and TNDC acted independently and did not rubberstamp NEC decision of 10th February 2023 as alleged. Mr. Dzuya appeared as a witness before TNDC proceedings against the complainants in accordance with the specific role given to the National Chairperson under Article 10.3 clause 2 of ensuring that there is discipline, proper conduct and order in the party.
42.Mr. Dzuya has further averred that the members of TNDC were appointed by NEC in a meeting held on 26th February 2022, the same meeting that appointed the 1st Complainant as the SG. There was no other meeting of NEC that had been properly constituted to change the membership of TNDC and the meeting allegedly held on 28th April 2023 seeking to change the membership of TNDC was irregular and a nullity as it was not only attended by strangers but also the 1st Complainant allegedly acting as the SG at a time when he was on suspension from 10th February 2023.
43.Mr. Nelson Dzuya has in addition deposed as follows in his Supporting and Replying Affidavits sworn on 21st June 2023 in support of the third Application and in opposition to the second Application and Complaint: -i.The tribunal’s ex-parte orders dated 16th June 2023 have the effect of paralyzing the operations of the organs of the 4th Complainant without giving the parties an equal opportunity to be heard yet they have been premised on new issues raised by the 1st to 3rd Complainants including communiques dated 6th and 13th June 2023 that have not been raised in this Complaint and fall squarely within the 4th Complainant’s IDRM and outside the jurisdiction of this tribunal. The 1st to 3rd Complainants are attempting to sneak in IDRM matters before this tribunal in blatant disregard of the law and apparent abuse of judicial process.ii.The 1st to 3rd Complainants have purported to consolidate PPDTC E009, E010, E011 and E012 of 2023 out of their own accord without any orders from this tribunal.iii.As laid down in numerous judicial authorities, it is apparent that the tribunal issued the ex-parte orders upon misrepresentation of facts by the 1st to 3rd Complainants and as such, it behooves the tribunal to take up its duty and responsibility to protect its dignity and prevent the abuse of its process by setting aside the irregularly obtained orders.
The 1st Respondent’s Case and Submissions
43.The 1st Respondent relied on the Replying Affidavit sworn by Wanjiku Nduati, the Chairperson of the 1st Respondent, on the 14th and 21st June 2023. She deposes, inter alia, as follows:-i.This tribunal on 19th April 2023 in PPDTA Appeal No. E001 of 2023 pronounced itself on the question of the meeting of 10th February 2023 and the resolutions therefrom in the following manner;a.A declaration be and is hereby issued that the respondent’s letter dated 13th February 2023 is null and void and of no consequential effect.b.The prayer for a declaration of invalidity of the notice issued by the interested party dated 2nd February 2023, the agenda, resolutions and the letter dated 10th February 2023 is rejected.c.The prayer for an order quashing and/or setting aside the purported notice issued by the interested party dated 2nd February 2023, the agenda, resolution and letter dated 10th February 2023 is also declined.d.The interim orders issued herein on 16th February 2023 hereby stand discharged.e.Each party to bear its own costs of the proceedings.ii.After the tribunal’s determination, the 1st Complainant proceeded to file two complaints on 24th April 2023 before the TNDC, that is, Complaint No. 1 and 2 of 2023. TNDC confirmed receipt of the complaints and issued directions requiring provision of particulars in support of the complaint (annex WN3). The 1st Complainant sought several adjournments whilst requesting for more time to file the particulars in support of his allegations (annex WN4). However,he ultimately failed to provide particulars in support of his allegations.ii.In the meantime, the 1st Complainant issued several letters to various members of the TNDC in a bid to threaten and or interfere with its proceedings as evidenced by letters marked as annex WN5 to annex WN10 referred to paragraph 7(i) to (v) of the Replying Affidavit.ii.The 1st Complainant vide resolution marked as annex WN 11 went a step further and reconstituted the TNDC by appointing one Ndegwa Njiru as the Chairperson of TNDC in violation of the law, the constitution of Jubilee party and the TNDC Regulations.ii.The above notwithstanding and following the 1st Complainant’s refusal to furnish particulars, the TNDC invoked Rule 15 of the TNDC Rules and inquired into the complaints as filed and noted that the issues raised were matters within the ambit of the IDRC established under Article 7.10 of the party constitution. TNDC proceeded to forward the two complaints to the IDRC vide its ruling given on 18th May 2023 with notice to the 1st Complainant. The 1st Complainant was served with the IDRC ruling on the 18th May 2023 as evidenced by email marked WN21. The complaint forwarded to the IDRC also proceeded for hearing and the IDRC delivered its decision annexed and marked as WN 19 in Further Affidavit. It is not true that the 1stComplainant’s complaint dated 20th April 2023 to the TNDC was rejected or that he withdrew the complaint.ii.The 1st Respondent (TNDC) received complaints against the 1st to 3rd Complainants herein from the Chairperson of NEC (annex WN13). The TNDC upon receipt of the complaints requested the complainant to provide particulars. The Chairperson of NEC provided particulars and charges were drawn separately for the 1st to 3rd Complainants herein. Hearing notices and summons were issued to all (annex WN14).ii.Its rather interesting that the 4th Complainant through its NEC Chairperson appeared before TNDC as the complainant, and he has now joined the said charged members as co-complainants to overturn decisions on his complaints in breach of the law and procedure.ii.The hearing of all the charges against all the complainants was to take place on 5th May 2023 at Fairview Hotel at 10am. However, upon arrival at the hotel at 9.30am, the TNDC Chairperson noticed an influx of young men and women into the hotel and on reaching the meeting room, she found the place almost full and there was no room for TNDC members. The proceedings fixed for 10am were therefore frustrated and TNDC in the circumstances invited the advocates for the parties to an informal meeting at a secluded part of the hotel and in which meeting it was agreed that it was not feasible to hold a hearing due to the evident security threat. That at around 1pm, the TNDC was granted another room to enable it meet formally and they met and formally adjourned the matter and issued directions as to hearing on 8th May 2023.iii.On 8th May 2023 when the matter came up for hearing, security precautions were taken by the TNDC in accordance with its directions of the hearing of 5th and 8th May 2023 annexed to the Replying Affidavit and marked as annex WN16. The hearing of the complaints against the 1st to 3rd Complainants proceeded and each of the complainants filed their responses (annex Wn17) and were accorded their rights to a fair hearing, fair trial and fair administrative action. It is clear from the Replying Affidavits filed by TNDC in PPDTC Complaint No. E009, E011 and E012 filed by the 1st to 3rd Complainants annexed to the Replying Affidavit (WN18) that the 1st to 3rd Complainants fully participated in the TNDC proceedings.ii.The same complainants have filed the instant complaint on similar grounds and are abusing this tribunal’s processes by filing a multiplicity of suits all arising from a singular event.ii.The 1st and 2nd Complainants are no longer the SG and DSG respectively of the Jubilee party, both having been expelled from the party. The 3rd Complainant is also not the treasurer of the party having been suspended. The TNDC Judgments in respect of the Complainants have been marked as annex WN20. xii. The Complainants are misleading the tribunal by claiming that the ORPP plays any further administrative and or quasi judicial role in the disciplinary process under the party constitution. All IDRM procedures have been completed and as it stands the communication by the ORPP dated 19th May 2023 is proper and in compliance with the constitution of the party. The question of constitutionality and or illegality of any of the TNDC Regulations and/or the constitution of the party can only be determined by the High Court of Kenya as it has the exclusive jurisdiction under Article 165 of the Constitution of Kenya 2010.
The 2nd and 3rd Respondents’ Case and Submissions
44.The 2nd and 3rd Respondents relied on two Replying Affidavits sworn by Kanini Kega on 29th May 2023 and 12th June 2023.
45.Hon. Kanini Kega has deposed in the Replying Affidavits that he is the acting SG of the Jubilee party. The NEC is established under Article 8.2 of the party constitution and its duties outlined therein include inter alia ensuring that all decisions made by party organs are duly carried out and all the policies are adhered to and ensuring proper order, discipline, and strict adherence to the party’s constitution, by-laws, and party policies by all officials, members, and all organs of the party. To this end, Article 14.1.12 mandates TNDC to report its findings and decisions to NEC for adoption,ratification, variation or substitution.
46.He further deposes that it is not true that the 1st to 3rd complainants are the party’s SG,VC and Treasurer as they were suspended during a NEC meeting held on 10th February 2023 as evidenced by minutes produced marled as exhibit JKK-2. The complainants challenged their suspension as well as the resolutions of the meeting of 10th February 2023 before this tribunal and the tribunal vides its Judgment delivered on 19th April 2023 (marked as JKK-3) directed that the dispute be submitted to IDRM.
47.The 1st to 3rd complainants were charged before the TNDC pursuant to the resolutions of NEC of 10th February 2023 and a complaint filed by the national chairperson of the party. The members of TNDC were appointed by NEC in a meeting held on 26th February 2022, which is the same meeting that appointed the 1st to 3rd Complainants herein in their previous posts.
48.The complainants were given a fair hearing where TNDC reached the decisions that were forwarded to NEC as provided for under Article 14.1.12 of the party constitution. Pursuant to Article 8.2.5 of the party constitution, NEC met and adopted the TNDC decisions on 19th May 2023. The acting SG Hon. Kanini Kega thereafter wrote a letter submitting the minutes of the NEC meeting of 19th May 2023 to the ORPP before traveling to Arusha, Tanzania to attend his parliamentary business. After he left, the DSG Hon. Joshua Kutuny noted some errors in the documents that the acting SG had submitted and recalled the acting SG’s letter. After making the necessary changes, the DSG then forwarded the minutes to the ORPP under his signature. The ORPP upon review of the submitted documents updated its record and the register of party members. That in the circumstances, the complaints have been overtaken by events and the prayers sought cannot be issued after implementation of the TNDC decision and the NEC resolutions vide the 2nd Respondent’s letter dated 19th May 2023.
49.Hon. Kanini Kega has in addition deposed that he is aware of the decision by the 4th Complainant’s IDRC in IDRC Dispute No. E005 of 2023, Hon. Jeremiah Kioni vs. Nelson Dzuya and Hon Joshua Kutuny, where the 1st Complainant had challenged the legality of the NEC meeting of 10th February 2023. IDRC in its decision found that the NEC meeting of 10th February 2023 was properly convened and held under the 4th Complainant’s constitution. A copy of the decision has been annexed to the Replying Affidavit marked as JKK-9. Issues for Analysis and Determination
50.We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether the Tribunal has jurisdiction to entertain the complaint as presented by the Complainant?ii.Whether the notice convening the meeting of 10th February 2023 and the subject meeting complied with the law?iii.Whether the TNDC disciplinary processes and decisions of 10th May and 15th May 2023 purporting to expel the 1st and 2nd Complainants and to suspend the 3rd Complainant and the NEC ratification thereof on 19th May 2023 was in breach of the lawiv.What are the appropriate remedies in the present instance? / Disposition Whether the Tribunal has jurisdiction to entertain the complaint as presented by the Complainant?
51.As we have already highlighted above, the Respondents have challenged our jurisdiction to hear and determine the dispute revolving around the legality of the NEC meeting of 10th February 2023. The challenge to our jurisdiction is based on the grounds that the question of the legality of the NEC meeting of 10th February 2023 has not been subjected to the party’s internal dispute resolution mechanism (IDRM), contrary to Section 40 of the PPA, and this tribunal’s Judgment delivered on 19th April 2023 in PPDTA Appeal E001 of 2023, where the tribunal had directed that the subject dispute be referred to IDRM in the first instance.
52.In response, the Complainants submitted that the dispute revolving around the legality of the NEC meeting of 10th February 2023 was referred to IDRM vide the 1st Complainant’s complaint letter dated 20th April 2023 that was filed with the TNDC. According to the Complainants, the TNDC frustrated the process by refusing to charge Nelson Dzuya and Joshua Kutuny for want of particulars, yet at the same time irregularly proceeding, without notice to the complainants, to unilaterally undertake an inquiry, and thereafter referring the dispute to IDRC. IDRC on the other hand purportedly proceeded to hear the dispute without notice to the complainant and made a finding that the meeting of 10th February 2023 was conducted in accordance with the party constitution.
53.In the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR the court defined jurisdiction as follows:-
54.And in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil(Kenya) Ltd. (1989)1, the Court stated as follows:
55.Jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. The Supreme Court of Kenya in the case of Samuel Kamau Macharia Vs KCB & 2 Others, Civil Application No. 2 of 2011 was succinct on this point, by stating thus:
56.In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011which provides on jurisdiction of the Tribunal as follows:-1.The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa).disputes arising out of party nominations2.Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms. (3) A coalition agreement shall provide for internal dispute resolution mechanisms
57.From the foregoing provisions of Section 40 of the PPA, it is clear that disputes between party members and disputes between a member and a political party cannot be heard and determined by this tribunal unless there is evidence that an attempt has been made to subject the dispute to IDRM. It is not in dispute that the issues underlying the internal party processes leading to the issuance of the notice dated 2nd February 2023, the agenda, resolution and NEC meeting of 10th February 2023 are internal issues between the party and its membership. Accordingly, pursuant to Section 40(1)(a)(b) as read together with Section 40(2) of the PPA, the tribunal can only assume jurisdiction once an attempt at IDRM is demonstrated.
58.What amounts to an attempt at IDRM has not been without litigation. It is instructive that prior to the 2022 amendments to the PPA, Section 40 (2) of the Act provided that the Tribunal shall not hear or determine disputes under Section 40(1)(a), (b), (c) or (e) of the PPA unless the dispute has been heard and determined by IDRM.While section 40 (2) of the Political Parties Act was couched in mandatory terms, the Tribunal took a less restrictive approach to the fulfilment of this requirement especially in circumstances where political parties frustrated or did not have operational IDRM processes. Accordingly, in several decisions, including Benjamin Andola Andayi v Rachel Ameso Omollo and Others PPDT Complaint 37 as consolidated with 61 of 2017 and Jeconia O Ogutu & Others v ODM & Others PPDT Complaint 200 of 2017, the Tribunal held that an honest attempt to exhaust IDRM is sufficient to vest the Tribunal with jurisdiction. The Tribunal in Margaret Ndalama & 4 Others V Wiper Democratic Movement Kenya PPDT Complaint No. 4 Of 2015, found that a complainant will be deemed to have satisfied the party IDRM, provided that it has moved the party to constitute a tribunal for the purpose.
59.Similarly, the courts in interpreting this pre-amendment position, took into consideration not only the mandatory statutory requirement for a dispute to be heard and determined before the party’s IDRM prior to moving the tribunal, but also the dynamics within the political parties where strict compliance with this mandatory requirement for a hearing and determination was frustrated in a manner that defeated justice. It is no wonder that in the case of Musalia Mudavadi & 4 others v Angela Gathoni Wambura & 2 others [2019] eKLR, whereas the High Court found that the tribunal was wrong in its finding that a mere attempt to set in motion a party’s IDRM was sufficient to give it jurisdiction to hear and determine a dispute falling under Section 40(1) of the PPA, the Court also made the following observations: -
60.Pursuant to the Memorandum to Parliament on the Political Parties (Amendment) Bill, 2021, the justification for the amendment of Section 40(2) of the PPA was inter alia that “from experience, some parties frustrate their members by delaying resolution of disputes.” This justification was made following the realization that we have already alluded to above that many complaints before the tribunal and courts became nonsuited simply on account of the fact that political party mandarins could ignore an invitation to resolve a dispute through the party’s IDRM in order to frustrate a disputant’s bid to lodge a dispute within the party in the first instance. Section 40(2) of the PPA was accordingly amended by deleting the words “unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms” and substituting therefor the words “unless a party adduces evidence of an attempt to subject a dispute to the internal political party dispute resolution mechanisms.” In essence, the current legal position is that a party is required to adduce evidence of an attempt to subject the dispute to IDRM.
61.This Tribunal has considered an attempt at IDRM in light of the stated amendments to Section 40(2) and issued guidelines in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022) wherein the Tribunal held that:-
62.In essence, a party that has not attempted IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto.
63.In considering the objection to our jurisdiction, it is inescapable for us to examine the record placed before us with a view to appreciating the circumstances surrounding the alleged attempt by the Complainant to have the question of the legality of the NEC meeting of 10th February 2023 subjected to the party’s IDRM.
64.We have been referred to the institution of IDRM vide the 1st Complainant’s complaint letter dated 20th April 2023 addressed to the TNDC. The same reads as follows;
65.From the above letter, it is evident that the subject matter thereof is a complaint relating to the NEC meeting of 10th February 2023. The letter was sent to TNDC on 24th April 2023 before the instant complaint was filed at the tribunal. From the record, the TNDC Vice Chairperson, Mr. Robert Wanga, acknowledged receipt of the same vide his email dated 25th April 2023. In the same email, Mr. Wanga requested the 1st Complainant to furnish particulars of the complaint in accordance with Form A (First Schedule) of TNDC Regulations 2022 by 26th April 2023. The record shows that the complaint was registered with TNDC as Complaint No. 4 of 2023, Jeremiah Kioni vs. Nelson Dzuya and Joshua Kutuny.
66.We also note from the record that the 1st Complainant sought for extension of time on 26th April 2023 and was given an extension until 27th April 2023. On 27th April 2023, he once again asked for a further extension, which was granted until 2nd May 2023 vide an email of 28th April 2023 on the following terms as we have lifted from the subject email: -i.That the extension is hereby marked as the final extension.ii.That you furnish the Committee with particulars of the Complaint dated 20th April 2023 by Tuesday 2nd May 2023 at noon failing which the Committee shall deem the complaint letter to be the only document available and shall proceed to charge the members, the absence of the particulars notwithstanding.iii.That you are at liberty to file the additional complaints as earlier on requested, also by Tuesday 2nd May 2023 at noon.iv.That all additional complaints should be accompanied by particulars as required under the TNDC Regulations 2022, First Schedule, Form A and the evidence in support of the Complaint, including documents if any. However, in the absence of the particulars, charges shall be drawn on the basis of the complaint as lodged. (emphasis ours)
67.From the above email communication granting the final extension, TNDC was clear that should the 1st Complainant not furnish particulars, TNDC would proceed to charge the members based on the complaints as lodged, the absence of particulars notwithstanding. Despite TNDC’s own subject directions as formally communicated to the 1st Complainant, we have gone through the record and it appears that no charges were preferred against Nelson Dzuya and Joshua Kutuny. The TNDC seemingly ignored its stated communique and instead invoked its powers under Regulation 15 of the TNDC Regulations, 2022, and proceeded to inquire into the complaint suo moto. Consequently, vide TNDC ruling delivered on 18th May 2023, the TNDC issued orders that ‘the Complaint lodged vide the letter dated 20th April 2023 is hereby referred to the Jubilee Party National Dispute Resolution Committee for consideration and appropriate action’. In the subject ruling, the TNDC stated as follows:-
68.We have also noted that parallel to the TNDC conducting an inquiry as aforesaid, on 2nd May 2023, being the deadline date that the TNDC had set to the 1st Complainant to furnish particulars failing which they would proceed to charge Nelson Dzuya and Joshua Kutuny in respect of complaint dated 20th April 2023, the TNDC instead charged the Complainants herein with various offences as per the charge sheets on record. Indeed at paragraph 12 of the Replying Affidavit filed herein on behalf of the Respondents, Wanjiku Nduati, the TNDC Chairperson, stated on oath “that on 2nd May 2023, the TNDC through its member Teresiah Jerusah Michael, an Advocate of the High Court of the Republic of Kenya effected service of the Complaint, the Charge Sheet and summons upon the complainant by way of WhatsApp in accordance with Regulation 11(b) of the Jubilee Party (TNDC) Regulations 2022.”
69.From the record, it is also evident that pursuant to the TNDC ruling of 18th May 2023, the 1st Complainant’s complaint was registered with the Internal Dispute Resolution Committee (IDRC) under Dispute No. 005 of 2023, Hon. Jeremiah Kioni vs. Nelson Dzuya and Hon. Joshua Kutuny. The IDRC seems to have issued a Notification of Dispute dated 26th May 2023 that was served upon the Respondents who filed their response on 29th May 2023 as acknowledged in the determination. In its Determination dated 7th June 2023, the IDRC stated: -1.This dispute was referred to this Committee vide a ruling of the National Disciplinary Committee of the Party (TNDC) dated 18th May 2023. The ruling was accompanied by a complaint dated 20th April 2023 filed before the TNDC by the complainant.2.The gist of the complaint was that the Respondents, “in contravention of Articles 8.2(5) and 8.2(6) of the constitution of Jubilee Party, purportedly convened a ‘National Executive Committee (NEC) meeting on 10th February 2023 and purported to adopt far reaching resolutions that inter alia countermanded lawful decisions of the National Delegates Convention, the supreme organ of the party’…4.By a Notification of Dispute dated 26th May 2023, this Committee notified the Respondents of the dispute and required them to file their responses within 2 days from the date of the notification.5.The 1st Respondent filed his response dated 29th May 2023 opposing the dispute on the following grounds:i.The Complainant was expelled from the party on 10th May 2023 and he therefore had no capacity to pursue the dispute.ii.Article 10.3(5) of the party constitution gives power to the chairperson, in consultation with NEC, to issue policy directions and guidelines to all the party officials, members and employees from time to time. Subsection 11 of the same Article requires the chairperson to ensure adherence to party policy by the officials and members.iii.The chairperson has powers under Article 10.3(7) of the constitution to perform such duties and exercise such powers and take any action or give any directions which in his opinion will enable the party to achieve its objectives and interests. iv. The Deputy Secretary general acted in accordance with the lawful directions given by the chairperson by convening the National Executive Committee (NEC) meeting of 10th February 2023.v.The complainant has failed to discharge his responsibilities as holder of the office of Secretary General, including convening of NEC meetings, thus paralyzing the operations of the organs of the party….19.The Complainant asserts that the Respondents contravened Articles 8.2(5) and 8.2(6) of the constitution of Jubilee Party by convening a National Executive Committee (NEC) meeting of 10th February 2023 where they purported to adopt far reaching resolutions that inter alia countermanded lawful decisions of the National Delegates Convention, a supreme organ of the party.23.We have perused the evidence presented by the Respondents and note that the basis upon which they convened the NEC meeting of 10th February 2023 is laid out in the letter from the National Chairperson (the 1st respondent) to the Deputy Secretary General (the 2nd Respondent) dated 31st January 2023…26.We are persuaded that the complainant had failed to convene a NEC meeting as resolved by the National management Committee necessitating the intervention of the 1st Respondent. The material placed before us reveals a systematic blatant disregard of the party constitution by the complainant aimed at holding other party organs to ransom thus paralyzing the activities of the party….29.It is our considered finding that the complainant breached his fiduciary duty in failing to convene any NEC meeting as laid out above and the 1st Respondent was justified to direct the 2nd Respondent to convene that NEC meeting as laid out in his letter of 31st January 2023. Accordingly, this Committee finds that the Respondents did not contravene Articles 8.2(5) and (6) of the party constitution in convening the National Executive Committee (NEC) meeting that was held on 10th February 2023.30.Accordingly, this Committee finds as follows:aThis dispute is properly before this Committeeb.The NEC meeting held on 10th February 2023 was convened in accordance with the provisions of the party constitutionc.The Respondents did not contravene provisions of the party constitution in convening meeting held on 10th February 2023…”
70.Applying the law, the facts and circumstances of this case, and the interpretation of the phrase ‘attempt at IDRM’ and exceptions thereto as underscored in the above judicial authorities, we are of the considered view that the complainants in this case have demonstrated that there was an attempt to subject this dispute to the party’s IDRM. We state so based on the following key observations that we have made from our foregoing scrutiny of the record before:-i.The subject matter of this dispute, to wit, the legality of the meeting of 10th February 2023, was subjected to the party’s IDRM vide complaint letter dated 20th April 2023.ii.The TNDC admitted the complaint subject hereof but did not prefer charges against Nelson Dzuya and Joshua Kutuny notwithstanding the lapse of the deadline date of 2nd May 2023 that TNDC had set for furnishing particulars, failing upon which charges would be preferred against Nelson Dzuya and Hon. Kutuny. Interestingly, charges were instead preferred against the Complainants herein vide separate complaints on the stated date of 2nd May 2023.iii.TNDC conducted an inquiry on the complaints relating to the meeting of 10th February 2023 without notice to the 1st Complainant and referred the matter to IDRC on 18th May 2023 having found that it did not have jurisdiction. iv. There is no evidence on record of the Complainants’ participation in the purported inquiry that was done by the TNDC. As per the record, the TNDC sent him the subject ruling on 18th May 2023 via email, obviously after the inquiry. This TNDC determination was made before the instant complaint was filed.v.The Complainants learnt vide letter dated 19th May 2023 authored by ORPP that TNDC had expelled the 1st and 2nd Complainants and suspended the 3rd Complainant from the Jubilee party, which disciplinary processes leading to the impugned TNDC decisions had been conducted in furtherance of the resolutions of the meeting of 10th February 2023.v.The complainants herein filed the instant Complaint before the tribunal on 25th May 2023, after receiving communication of their expulsion and suspension on 19th May 2023. This is the date when the cause of action in this matter arose, and by this date, we have already noted that the TNDC had without reference to the Complainant downed its tools on the one hand and on the other hand referred the matter to IDRC again without notice to the Complainant. Interestingly, whereas the party was well aware that the dispute concerning the meeting of 10th February 2023 had not been conclusively resolved, the party went ahead to act on the resolutions.vi.Prior to filing the instant Complaint, the IDRC never communicated to the Complainant on the dispute that had been referred to it by TNDC. Instead, notice was exclusively issued to Nelson Dzuya and Joshua Kutuny who filed their responses.v.The dispute before IDRC apparently proceeded for hearing during the pendency of these proceedings without notice to the complainants herein. It is no wonder that from the text of the IDRC decision, there is no mention of any service of any of the IDRC processes having been effected upon the complainant. Be that as it may, the IDRC substantively considered the question of the legality of the meeting of 10th February 2023 (without the complainants’ participation), and reached a finding that the meeting of 10th February 2023 was convened in accordance with the law.v.In essence, the subject matter of the dispute subject of these proceedings was subjected to two party organs, and both party organs have considered and reached a finding on the same.
71.We have further considered the fact that the IDRC has already made a finding on the question of validity of the meeting of 10th February 2023 under the afore-going circumstances and the party organs cannot now be said to be available to resolve the dispute. As we have already observed, the TNDC elected to conduct an inquiry without informing the complainant until after its ruling on 18th May 2023 and immediately thereafter, the communication from the party and the ORPP of 19th May 2023 expelling and suspending the Complainants was issued. The Complainants moved the tribunal under urgency to seek justice in light of the developments and we cannot fault them for doing so. If the party was genuine in resolving the dispute, it wouldn’t have issued the communication of 19th May 2023 during the pendency of a dispute that the party knew too well was interlinked with the TNDC decision to expel and suspend the Complainants. We also find it strange that the IDRC proceeded to hear and determine the dispute without the knowledge of the complainant. The manner in which the party organs handled the dispute is in our opinion obstructive, secretive, fraught with- malice and conflict of interest, and the calculated delay in attending to the matter substantively only after the events of 19th May 2023 yet initially they had ignored and/or neglected to attend to the same is appalling. Most significantly, the dispute relating to the validity of the meeting of 10th February 2023 is now fait accompli before the party’s IDRM.
72.In the case of Eric Kamande & 2 others v Amos Murigi & 2 others [2020] eKLR, the Court stated as follows:-
73.We find no reason to depart from the reasoning of the High Court in the above case.Taking into consideration the totality of the foregoing circumstances, we accordingly find that we are properly seized of jurisdiction to hear and determine the question of the validity of the meeting of 10th February 2023.
Whether the notice convening the meeting of 10th February 2023 and the subject meeting complied with the law?
74.As we consider this issue, we must state at the onset that this tribunal is not bound by the findings of the TNDC of 18th May 2023 and the IDRC of 7th June 2023 on the question of the validity of the meeting of 10th February 2023. Our jurisdiction under the PPA is sui generis and we neither exercise appellate nor an extension of the party’s IDRM. Reflecting on the tribunal’s jurisdiction, Lesiit, J stated as follows in the case of Thomas Ludindi Mwadeghu v John Mruttu & another [2017] eKLR:-
75.Similarly in the case of Agnes Nailentei Shonko Wachira vs. John Njoroge Chege vs United Democratic Alliance, PPDT at Nairobi A Complaint No. E020 of 2022 we observed as follows:-
76.Turning to the facts of this case, the Complainants have challenged the validity of the NEC meeting of 10th February 2023 mainly on the ground that the notice convening the subject meeting and the proceedings thereof were in breach of the law and the party constitution. The Respondents on the other hand maintain that the notice was issued in accordance with the law by the Deputy Secretary General (DSG) upon receipt of instructions from the National Chairperson as the SG had refused to convene meetings as directed by the National Management Committee (NMC). They submit that the National Chairperson can intervene in exercise of his powers under Article 10.3(5) of the party constitution which empowers him, in consultation with NEC, to issue policy directions and guidelines to all the party officials, members and employees from time to time, and to ensure adherence to party policy by the officials and members; and further that Article 10.3(7) of the constitution grants the Chairperson powers to perform such duties and exercise such powers and take any action or give any directions which in his opinion will enable the party to achieve its objectives and interests.
77.We are alive to the fact that the PPA makes it mandatory for all political parties to have a constitution as a pre-condition to registration. Pursuant to Section 9 of the PPA as read together with the Second Schedule thereto, party constitutions should, inter alia, provide for the governing body requirements including the name of the governing body; the eligibility criteria for election to the governing body; the positions, titles and terms of office; the rights and duties of members of the governing body; the procedure for the election of members of the governing body and other political party organs, including committees; guidelines for the operations of the governing body and its committees; quorum; frequency of meetings; decision making powers; and guidelines for meetings; procedure for convening meetings; procedure for meetings and the official recording of resolutions passed at meetings. Accordingly, as we address our minds to this issue, we first begin by laying out the procedure that the Jubilee party constitution provides for convening NEC meetings,and the roles of the various office holders during NEC meetings as hereunder.
78.Article 8.2 (5) and (6) of the Jubilee party constitution provides: -
79.Article 10.1 of the Jubilee party constitution provides as follows: -
80.Article 10.5 of the Jubilee party constitution provides as follows: -
81.Article 10.6 is on the Deputy Secretary General and it provides that:-
83.Article 22(3) provides as follows on procedure at meetings:-
84.The above party’s constitutional provisions as regards the procedure for constituting NEC meeting and the office bearers’ roles appear plain and unambiguous in our opinion. The intention can be construed from the language used in the provisions which inevitably discloses its purpose and effect. The language of the provision must be taken as conclusive unless there is ambiguity or an expressed legislative intention to the contrary. These sentiments were expressed by the Court of Appeal while analyzing how to determine the intention of a statute, in County Government of Nyeri & Anor. Vs. Cecilia Wangechi Ndungu [2015] eKLR where the learned judges held thus:
85.In Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No. 26 of 2014 [2014] eKLR, the Court observed as follows:
86.Similarly, in Apollo Mboya v Attorney General & 2 others [2018] eKLR, the Court stated as follows:
86.Our interpretation of the foregoing provisions of the party constitution as guided by the principles underscored in the above judicial authorities is as follows:-i.NEC meeting is convened by way of issuance of notice convening meeting which notice shall be sent out by the SG to NEC members at least seven (7) days before the date of the meeting.ii.The DSG deputizes the SG according to his respective portfolio. iii. Apart from the SG, the party leader may also summon a NEC meeting.iv.The National Chairperson’s role is to preside over a NEC meeting. The constitution does not grant him the express mandate to convene a NEC meeting.
88.In the instant case, we note that the notice convening the NEC meeting of 10th February 2023 was not issued by the SG. The same was issued under the hand of the DSG. We also note that all parties agree that as at 2nd February 2023, the party SG and NEC members were as per the Kenya Gazette Notice No. 3195 issued on 22nd March 2022.The 2nd and 3rd Respondents have in their Affidavits deposed that changes to NEC were however made in the impugned meeting of 10th February 2023, which meeting suspended the Complainants herein. In other words, it is not in dispute that as at 2nd February 2023 when the subject notice was issued, the party SG, Deputy Chairperson and National Treasurer were the 1st, 2nd and 3rd Complainants herein respectively.
89.We have further considered that the Respondents do not dispute the mandate of the SG to issue notices convening NEC meetings under the party constitution. Their argument is that the 1st Complainant failed to discharge his responsibilities as holder of the office of SG, including convening of NEC meetings.
90.Having observed that it is the SG and the party leader who have the mandate to convene NEC meetings under the party constitution, a question that begs an answer is whether the Respondents were justified in by-passing the 1st Complainant and issuing instructions to the DSG to convene the NEC meeting of 10th February 2023. Did the 1st Complainant fail to discharge his responsibilities of, inter alia, convening NEC meetings? Did any such failure warrant a directive from the Chairperson to the DSG?
91.We have scrutinized the record and we note that the allegation that the 1st Complainant failed to convene NEC meetings has not been substantiated. We have not been furnished with any communication addressed to the 1st Complainant calling on him to convene any NEC meeting in vain. We say so bearing in mind that with respect to the directive to the DSG, the Respondents produced the Chairperson’s letter dated 31st January 2023 requesting the DSG to convene a meeting. No similar letter has, however, been produced from any party organ or member requesting the 1st Complainant to convene a NEC meeting prior to the issuance of the Chairperson’s directive dated 31st January 2023. We have further considered the contents of the subject letter dated 31st January 2023 and we note that no evidence has been furnished to support the allegations therein. The purported minutes of the NMC meeting that directed the 1st Complainant to convene NEC meetings have not been placed before us for consideration. Interestingly, the record reflects that the 1st Complainant seems to have issued a notice for an NDC meeting for 24th and 25th March 2023 that earned him disciplinary charges before TNDC.
92.Therefore, based on the record before us, we find no justification in by-passing the 1st Complainant in this matter. Pursuant to our above interpretation of the party constitution, the DSG deputizes the SG according to his respective portfolio. It has not been demonstrated that the 1st Complainant was absent and/or that he failed and/or refused to convene NEC meetings as alleged.
93.From our scrutiny of the record, we in addition note that the Kenya Gazette Notice No. 3195 referred to above enlisted the following as members of NEC: -i.H.E. Uhuru Kenyatta – Party Leader ii. Jimmy Angwenyi – Deputy Party Leader (Strategy) iii. Kinoti Gatobu – Deouty Party Leader (Operations) iv. Naomi Shabaan – Deputy Party Leader (Outreach)v.Peter Mositet – Deputy Party Leader (Programmes) vi. Nelson Dzuya – National Chairperson vii. David Murathe – National Chairperson viii. Jeremiah Kioni – Secretary Generalix.Joshua Kutuny – Deputy Secretary Generalx.Kagwe Gichihi – National Treasurerxi.Ruweida Mohamed – Deputy National Treasurerii.Abdulkadir Haji – National Organising Secretaryiii.Mutava Musyimi – Deputy National Organising Secretaryiv.Kanini Kega – National Director of Electionsv.Rachel Nyamai – National Deputy Director of Electionsvi.Fatuma Gedi – Women League National Chairpersonxvii.Mulembe Mundalo – Youth League National Chairpersonxviii.Wanja Maina – Persons with Disabilities League National Chairpersonvi.Njenga Mungai – Council of Elders National Chairpersonvii.Joel Kibe – Business Council National Chairpersonviii.Adan Keynan Wehliye – Parliamentary Secretaryix.Wambui Gichuru – Executive Director
94.As we have already observed above, all parties hereto agree on the above composition of NEC as at 10th February 2023 before the disputed changes were made. We have compared the above list of NEC members with the list of persons who attended the NEC meeting of 10th February 2023 and we note that only 1 person is acknowledged as having resigned, that is, Hon Fatuma Gedi. The presumption is therefore that all the rest of the NEC members still served as such. Be that as it may, we have taken note of the following anomalies:-i.Out of the list of 14 persons who were present in the meeting of 10th February 2023, three of them, namely, Hon. Fatuma Dullo Adan, Hon. Samuel Arama and Hoh. Joseph Githuku Kamau, are not listed as NEC members by the subject Gazette notice.ii.So many NEC members whose names appear in the Gazette notice were not present in the NEC meeting of 10th February 2023. Strangely, their names are not recorded under either the list of persons who were absent and/or absent with apology.iii.Most conspicuously, notwithstanding that the Complainants were NEC members and that they did not attend the NEC meeting, none of their names appear in the list of persons who were absent.
95.We have considered the question of service of notices and the Complainants averment that despite one of the agenda items making them subjects of discussion in the NEC meeting of 10th February 2023, they were not served with the subject notice dated 2nd February 2023. In response to this averment, the Respondents maintain that NEC members were served via WhatsApp. However, there is no evidence that has been produced before us to demonstrate service of the notices to NEC members. Apart from the complainants herein, two other NEC members, namely, Njenga Mungai and Wanja Maina, have sworn affidavits deposing that they were not notified of the NEC meeting of 10th February 2023. Noting that the Respondents did not furnish any evidence of service of notices, and further taking into consideration the glaring anomalies highlighted above, we find it difficult to believe that the Respondents complied with the requirement of sending out the notice of the NEC meeting to all NEC members.
96.We have further considered the contents of the minutes of the meeting of 10th February 2023 and it appears that NEC proceeded and considered the allegations against the complainants without hearing from them and then purported to suspend them from their respective positions pending reference of the matter to the TNDC, and further purported to appoint NEC members. We note that the party constitution does not grant NEC the powers it purported to exercise, and the same in any event violated the provisions of Section 7(2)(a) of the FAAA.
97.Taking into consideration the foregoing, we find that the notice of 2nd February 2023 and NEC meeting held on 10th February 2023 was in breach of the law and party constitution.
98.In consideration of this issue, we note that all the TNDC disciplinary processes were conducted in furtherance of the resolutions of the NEC meeting of 10th February 2023. We have already found above that the notice and meeting held on 10th February 2023 was in breach of the law and party constitution and was therefore laced with illegality.In Okiya Omtatah Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 6 Others [2021] eKLR, the court held: -
99.In the dicta in Omega Enterprises (Kenya) Ltd -v- Kenya Tourist Development Corporation Ltd & 2 Others (1998) eKLR and Paramount Bank Ltd -vMohammed Ghias Qureishi, Civil Appeal No. 239 of 2001, it was held that if an act is void, it is a nullity in law and any proceeding founded on such act is also a nullity in law.
100.In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169 Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;
101.Consequently, considering the above judicial authorities, it is our finding that no valid resolutions could emanate from the deliberations of the meeting of 10th February 2023. The resolutions are a nullity. Therefore, all processes that were undertaken by any party organ in furtherance of any of the resolutions of the meeting of 10th February 2023 including all the TNDC disciplinary processes leading to the TNDC decisions of 10th and 15th May 2023 against the 1st to 3rd Complainants herein and the NEC ratification thereof on 19th May 2023 are all a nullity and of no consequence whatsoever. Therefore, we need not say more under this issue.
102.Further and in any event, it is also instructive that the disciplinary processes leading to the TNDC decisions of 10th May and 15th May 2023 purporting to expel the 1st and 2nd Complainants and to suspend the 3rd Complainant were also subject of challenge in PPDTC No. E009 of 2023; PPDTC No. E011 of 2023; and PPDTC No. E012 of 2023 that were separately filed by the Complainants. In the Judgments delivered by the Tribunal on 10th July 2023 in the three cases, the tribunal found that the disciplinary processes were conducted in gross violation of the Complainants’ right to a fair hearing as protected under Article 47 of the Constitution of Kenya as read together with the Fair Administrative Action Act and the Jubilee party constitution. The TNDC decisions are accordingly set aside.
Disposition
DATED AND DELIVERED AT NAIROBI (AS A DISSENTING OPINION) THIS 10TH DAY OF JULY 2023.(CHAIRPERSON)HON. GAD GATHU(MEMBER)HON. STEPHEN MUSAU(MEMBER)