Trenk & another v Wakhungu; United Democratic Alliance (Interested Party) (Complaint E023 (NRB) of 2023) [2024] KEPPDT 498 (KLR) (2 February 2024) (Judgment)
Neutral citation:
[2024] KEPPDT 498 (KLR)
Republic of Kenya
Complaint E023 (NRB) of 2023
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
February 2, 2024
Between
Walter Mukinginyi Trenk
1st Complainant
Francis Ingosi Kaburu
2nd Complainant
and
Cleophas Malala Wakhungu
Respondent
and
United Democratic Alliance
Interested Party
Judgment
Introduction
1.On 4th October 2023, it was reported by sections of media that the Respondent had appointed regional coordinators and county managers for purposes of the interestedparty’s grassroot elections that were scheduled to be held from 9th December 2023.
2.The Petitioners claim that the subject appointments were not done procedurally and without consultation with the party organs such as the National Executive Committee (NEC) and the National Elections Board (NEB), and they have accordingly filed the instant Petition seeking the following orders, inter alia, that:-i.A Declaration do issue that the appointment of Regional and County Managers vide Notice referenced UDA/1/NRCM/01/23 dated 04/10/23 is in contravention of Article 3(i)(xix), 4.2(ii), 21.1(a), 21.1(d) of the UDA Constitution and is therefore null and void.ii.A Declaration do issue that the appointment of Regional and County Managers was unconstitutional, unlawful, and therefore null and void.iii.An Order do issue that the National Elections Board is the only organ mandated to make announcements related to the preparations for the forthcoming grassroot elections.iv.An Order do issue that all persons who held executive offices before 29th be restrained from discharging any duties related to the party apart from essential ones such as financial facilitation to the NEB as a way of providing a level playing field for all participants.v.An order that the costs of the Petition be awarded to the Petitioners.
3.The Petitioners in addition filed Notice of Motion Application dated 1st November 2023 under certificate of urgency seeking the following orders:-i.That for reasons to be recorded, this application be certified urgent, heard exparte, and assigned an inter parties hearing date for disposal of prayers (b), (c) and (d).ii.That for reasons to be recorded, this Honourable Tribunal be pleased to certify the Petition filed herewith as urgent and that it be assigned a near date for taking of directionsiii.That pending the hearing and determination of the Petition, the Honourable Tribunal be pleased to issue an injunction to retrain the Respondent, Cleophas Malala, Wakhungu, from exercising the functions of office of the Secretary General of the Interested Party, the United Democratic Alliance.iv.That in the alternative to prayer (c) above and pending the hearing and determination of the Petition herein, the Honourable Tribunal be pleased to issue a conservatory order restraining the Respondent, Cleophas Malala Wakhungu from exercising the functions of office of the Secretary General of the Interested Party, the United Democratic Alliance.v.That the costs of this application be in the cause.
4.On 15th November 2023 when the matter was placed before the Tribunal for directions on the Notice of Motion application filed under certificate of urgency, the Tribunal issued the following orders: -i.Thatthe Notice of Motion application dated 1st November 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.Thatthe Petition and the Notice of Motion application dated 1st November 2023 be served upon the Respondent and Interested Party within three (3) days of the date hereof.iii.Thatthe Respondent and Interested Party to file and serve their response(s) to the Application within seven (7) days of the date of service.iii.Thatthe Notice of Motion Application be listed for mention on 1st December 2023 at 2.30pm to confirm compliance and for further directions as to hearing.
5.In consonance with the directions of the Tribunal, the Respondent and Interested Party responded to the application vides a Notice of Preliminary Objection dated 20th November 2023 (hereinafter referred to as the PO).
6.Considering that the PO challenged the jurisdiction of this Tribunal, directions were issued for hearing of the PO in priority and parties elected to file affidavits and written submissions thereon for the Tribunal’s consideration. A ruling on the PO was delivered by this tribunal on 17th January 2023 thus paving way for the hearing and determination of the Petition and the application.
7.Considering the strict statutory timelines for hearing and determination of matters filed before the Tribunal, directions were given that the application be subsumed within the Petition and appropriate responses, documents and written submissions be filed by all parties hereto. Accordingly, the Petition was heard on the 30th January 2024 by way of highlighting of written submissions.
8.At the hearing of the Petition, the 1st and 2nd Petitioners appeared in person and presented their submissions. The Respondent and Interested Party was on the other hand represented by Mr. Kibet Advocate.
The Petition and Submissions
9.Vide the Petition and Affidavits filed herein, the Petitioners aver that the Respondent was on the 4th October 2023 reported by sections of the media that he had appointed regional and county managers for purposes of forthcoming grassroots elections scheduled for to be held from 9th December 2023. The purported appointment was done without consultation with relevant organs of the party such as the NEC and the NEB. That the Respondent overstepped his mandate and usurped the roles and mandate of NEB and it is clear that he is bent on compromising the process by appointing his cronies and friends as election management officials.
10.It is the Petitioner’s further contention that the appointments were not done on merit but based on the good rapport that the Respondent had with the appointees,particulars whereof are detailed in the Petition. It is for instance averred that some of the appointees such as the ones for Western, Nairobi and Vihiga Regions were based on previous relationship between the Respondent and the subject appointees. The appointments were done non-competitively and without the knowledge of other party members who would have been more qualified than the appointees, and that the Respondent is a contestant in the forthcoming grassroots elections and is therefore conflicted in his appointment of the said managers.
11.In a nutshell, the Petitioners contend that the appointment of the regional and county managers is unlawful given that it is in contravention of Article 47 of the Constitution of Kenya 2010; it is contrary to the Fair Administrative actions Act No. 4 of 2015; it violates the Mwongozo Code of Conduct that requires integrity in appointments; it is inconsistent with the guiding principles in the Leadership & Integrity enacted under Article 73 of the Constitution of Kenya 2010; and that given that the Respondent has chosen to usurp the powers of NEB, if this Tribunal does not check, address or sanction such mischief, the Respondent shall continue to perpetuate the illegality against the members’ interests.
12.In their Further Affidavit filed on 24th January 2023, the Petitioners aver that after the filing of the suit herein in November of 2023, the Respondent has continued to violate the law, the constitution of Kenya and the constitution of the Interested Party as on 8th January 2024, he made various appointments without the use of a competitive process to allow members of the Interested Party a chance to participate in the recruitment exercise.
13.It is further averred that the Respondent has in his Replying Affidavit dated 22nd January 2024 made untruthful and unsubstantiated claims that the Petitioners are not members of the Interested Party yet they participated in the last general elections as candidates on the Interested Party's ticket. They both checked their membership status on the Office of the Registrar of Political Parties (ORPP) portal on receiving and going through the Respondent's subject Replying affidavit and found that they are still listed as members of the Interested Party, and that by falsely alleging that the Petitioners are not members of the Interested Party, the Respondent lied under oath and appropriate legal measures should be taken against him.
14.As regards the Respondent’s claims in paragraph 7 of their Affidavit that neither the NEC nor the NEB has complained about his usurpation of their mandate and that the petitioners should therefore not raise any concerns, the same is unknown to law. They further aver that there is no single Article in the Interested Party's constitution that sets out the ceding of a party organ's mandate to another and that the Respondent’s claim that the appointments he made on the 4th of October were meant to support the NEB in discharging its mandate by the secretariat is not true. That the only support envisaged under Article 21.1.11 of the Interested Party’s constitution that the Secretariat is expected to give to the NEB is that of the nature of secretarial functions such as typing and allocation of office space but not the recruitment of personnel which is the core function of the NEB.
15.They submit that allowing the Respondent and the Party Secretariat to recruit personnel for the NEB would be a serious conflict of interest that would compromise the conduct of a free and fair grassroots elections since most of the recruited personnel are cronies of the Respondent who is keen to run for a position within the party. It is further not true that the recruitment of the personnel was done meritoriously based on their competence and service to the party as it is common knowledge that the Respondent and some of the appointees joined the party after the general elections, and it is fair and just that this Tribunal declares the recruitment of the subject regional coordinators and managers of the Interested Party as null and void and directs that a competitive process be conducted afresh by the Interested Party.
16.The Petitioners relied on the written submissions filed in this case.
The Respondent and Interested Party’s Response and Submissions
17.In response to the Petition, the Respondent and Interested Party filed their Replying Affidavit sworn by Cleophas Malalah Wakhungu on 22nd January 2024. They contend that the Petition is misconceived, scandalous, frivolous, incompetent and vexatious and otherwise an abuse of the court process and should summarily be dismissed withcosts.
18.They maintain that the appointment of the reginal coordinators and county managers was done procedurally and with due regard to the rule of law and the party’s constitution. That neither the NEC nor the NEB have complained about the appointment of the regional coordinators and county managers as the respective organs of the party verily understand the distinction of the appointments and the Petitioners’ allegations. The appointments were done in good faith and to aid the preparation of party activities in respective counties including the recruitment of members in preparation for grassroots elections. They maintain that the appointments were done meritoriously based on the competence of the appointees and their service to the party.
19.They submit that the Petitioners are not members of the United Democratic Alliance Party and therefore lack locus standi to institute this suit.
20.It is further contended that the appointment of regional coordinators and county managers is not an administrative exercise and the Petitioners do not therefore accrue any right under Article 47 of the Constitution of Kenya 2010 and the Fair Administrative Actions Act, and that the Interested Party is not a state corporation and is therefore not bound by the Mwongozo Code.
21.It is the Respondent and Interested party’s submission that the appointments were done with integrity and are consistent with the principles of leadership and integrity under Article 73 of the Constitution of Kenya 2010. That there was compliance with the party constitution, in particular, Article 21.1.11 thereof, which mandates the party Secretariat to provide support to the NEB.
22.The Respondent and Interested Party therefore pray that the Petition be dismissed with costs in its entirety.
Issues for Analysis and Determination.
23.Flowing from the parties’ pleadings and submissions, we have isolated the following key issues for determination in this case: -i.Whether the Petitioners have locus standi to bring the instant Petition?ii.Whether the appointment of the regional and county managers was done in accordance with the law?iii.Whether the merits of the appointments/reorganization of 8th January 2024 should be considered by this Tribunal in this case?iv.What are the appropriate reliefs to grant?
Whether the Petitioners have locus standi to bring the instant Petition?
24.In addressing our mind to the question of locus standi, we must first consider that this issue has been discussed widely within the Kenyan jurisdiction. The Court in the matter of Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR while referring to the matter of Ms. Priscilla
25.Taking into consideration the foregoing, it is our view that the Tribunal should not give an unduly restrictive interpretation to the expression locus standi in order to inordinately deny parties an avenue to resolve their dispute.
26.The Court in the matter of Michael Osundwa Sakwa (supra) asserts this position by finding that;
27.In the instant case, the Respondent and Interested Party claim that the Petitioners are not members of the Interested Party. They have gone ahead and challenged the Further Affidavit filed by the Petitioners to counter this allegation, arguing that the said Affidavit is unsigned and was not commissioned, and should therefore not be considered by the Tribunal. They further challenge the documentation produced by the Petitioners to support their membership claims.
28.We have gone through the Further Affidavit on record and we confirm that it was neither signed by the Petitioners nor commissioned by a commissioner for oaths/magistrate. Interestingly, we note that the Replying Affidavit of the Respondent and Interested Party was also not properly dated. It simply indicates sworn on 22nd of 2024.
29.Ordinarily, as per jurisprudence set out by the court in numerous cases, including Civil Application No. 26 of 2018 Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR, an unsigned, undated, etc affidavit is defective.
30.Be that as it may, even if we are to ignore the depositions in the Further Affidavit filed by the Petitioners for being defective, we cannot similarly ignore the evidence of the Petitioners when they appeared before the Tribunal in person during the hearing of the Petition. The 1st Petitioner stated that he did not have a membership card but he participated in the interested party’s nominations, and further stated that the ORPP portal had information about his membership.
31.The 2nd Petitioner on the other hand stated that he was a member of the party who vied as a Member of the County Assembly (MCA) as per his nomination certificate on record, and further gave his membership details.
32.Considering these averments and the documentation referred to, and further considering that the Respondent is the custodian of the record of membership and has not furnished any evidence to counter the Petitioners,’ yet he is the same one desiring this Tribunal to find that the Petitioners are not members of the party, we are of the considered opinion and we do find that the Petitioners have demonstrated on a balance of probabilities that they are members of the Interested Party.
33.Indeed, the question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
34.Taking into consideration the totality of the foregoing, we find that the Petitioners have locus standi to institute the instant action before the Tribunal.
Whether the appointment of the Regional and County managers was done in accordance with the law.
35.It has been averred that the Respondent breached the law and the party constitution by appointing the regional and county managers unlawfully and without consulting with NEC and NEB, a position that has been denied by the Respondent and the Interested Party.
36.The Respondent and Interested Party maintain that the appointments were done in good faith and to aid the preparation of party activities in respective counties including the recruitment of members in preparation for grassroots elections, that the appointments were done meritoriously based on the competence of the appointees and their service to the party.
37.In consideration of this issue, we first start by turning to the notice that was issued in the media on 4th October 2023 in respect of the contested appointments. The Respondent has admitted vide his pleadings that he issued the notice and has in fact justified the same. The introduction to the subject notice reads as follows: -
38.From a reading of the subject notice, it is clear that the appointment of the regional and county managers was expressly stated to be for purposes of preparing for the interested party’s grassroots elections. Contrary to the Respondent’s assertion, there is no mention of any other objective of the appointment of the regional and county managers.
39.We have perused the constitution of the interested party as produced by the parties with a view to appreciating the constitutional underpinning of the contested appointments. We note that two versions of the party constitution were produced, one dated March 2022 (produced by the Petitioner) and another dated September 2023 (produced by the Respondent). We have perused both versions of the constitution and we note that all the material constitutional provisions relating to this matter are the same. The specific provisions we will be referring to hereunder will therefore be similar in both constitutions.
40.Having stated so, our first observation is that there is no provision for the position of regional or county manager in the party constitution. We do not agree with the Respondent’s submission that Article 24.9.1.5 of the party constitution, grants him the role of appointing such regional and county managers. Article 24.9.1.5 simply provides that the SG is responsible for all the party’s affairs at the National Secretariat, the organs or bodies which relate to the National Secretariat and the Party’s management from the grassroots to the National level. We note that the party constitution provides for county executive committees to deal with party affairs at the regional level. We were not shown any other constitutional provisions pursuant to which the subject appointments were made.
41.We have further noted that in respect of elections, the party constitution expressly provides for the appointment of election coordinators to supervise party elections. Pursuant to Article 21 thereof, such appointment of election coordinators can only be made by the NEB. Indeed, the constitution is express that NEB is the party organ that is mandated to plan, organize, direct and coordinate internal party elections. In the exercise of its mandate, the party constitution provides that ‘NEB shall act independent of any direction from anybody or other organ of the party but may incorporate experts from outside it’.
42.We have further considered the functions of various offices or organs referred to in this case, that is, the NEC under Article 8; the functions of the National Secretariat under Article 22; and the roles of the Secretary General (SG) under Article 24; and we note that none have the substantive mandate to handle matters touching on party elections. Article 8 of the constitution only mandates NEC to liaise and coordinate with NEB to ensure free, fair and transparent election of party officials at all levels. It therefore follows that in matters concerning the interested party’s elections, NEB should be in the forefront.
43.There is nothing on record to demonstrate that the interested party’s NEB took the lead in the alleged non-disputed forthcoming grassroots elections. Neither is there evidence of any involvement or consultation with NEC. Whereas it was claimed that NEB is yet to be constituted, neither the Respondent nor the Interested Party have controverted this allegation.
44.As regards allegation of cronyism, favoritism, etc, on the part of the Respondent, we have considered the record and we find no evidence to substantiate the same. We nevertheless agree with the Petitioners that for purposes of ensuring that the interested party’s grassroots elections are free and fair, the Respondent, as a potential contestant (which fact was not denied), should not solely be seen to be on the forefront in planning for the same without NEB and NEC involvement as per the Interested Party’s Constitution.
45.Taking into consideration the totality of the foregoing, we find that the purported appointment of regional and county managers for purposes of preparing for the forthcoming grassroots elections was done in breach of the provisions of Article 21 of the party constitution and was therefore unconstitutional.
Whether the merits of the appointments of 8th January 2024 should be considered by this Tribunal?
46.The Petitioners have challenged the appointments of 8th January 2024 and in response, the Respondent and Interested Party have not only challenged the Further Affidavit but also stated that the Petitioners have introduced new evidence that is not founded on the Petition.
47.We have considered the record and the parties rival submissions and we note that we had already addressed our mind to the Further Affidavit and we need not say more.
48.As regards the claims of 8th January 2024, we note that the Petition filed herein relates to appointment of regional and county managers as notified on 4th October 2023. The same does not relate to communication issued on 8th January 2024 on re-organisation of the secretariat. In fact, no specific prayer has been sought in the Petition in relation to the subject re-organisation/appointment of 8th January 2024.
49.We accordingly agree with the Respondent and the Interested Party that the issue relating to the appointments/re-organisation of 8th January 2024 is not grounded on the Petition before us. Consequently, we shall not delve into discussing this issue substantively on merit.
What are the appropriate reliefs to grant/Disposition.
50.The Petitioners have succeeded in this claim and the default legal position has always been that costs ordinarily follow the event. We find no reason to depart from this position.
51.In consideration of the foregoing and the reliefs sought, we order as follows: -i.A Declaration be and is hereby issued that the appointment of Regional and County Managers vide Notice referenced UDA/1/NRCM/01/23 dated 04/10/23 for purposes of preparing for the UDA party grassroots elections is unlawful and in contravention of Article 21 of the UDA Constitution and is therefore null and void.ii.A Declaration be and is hereby issued that the National Elections Board is the only organ of the Interested Party mandated to plan, organize, direct and coordinate internal party elections, and therefore make announcements related to the preparations for the forthcoming grassroot elections.iii.Costs of the Petition are hereby awarded to the Petitioners.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 2ND DAY OF FEBRUARY 2024.HON. DESMA NUNGO HSC - CHAIRPERSONHON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER