Machi v Registrar of Political Parties (Appeal E002 (NRB A) of 2024) [2024] KEPPDT 504 (KLR) (Appeals) (11 September 2024) (Judgment)
Neutral citation:
[2024] KEPPDT 504 (KLR)
Republic of Kenya
Appeal E002 (NRB A) of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
September 11, 2024
Between
Makokha Timothy Machi
Appellant
and
The Registrar of Political Parties
Respondent
Judgment
1.The Appellant filed an appeal dated 11th June, 2024 before the Tribunal seeking the following orders:a.An Order directing the Respondent to amend and correct the acronym assigned to the name ”The Alliance for Welfare and Economic Emancipation” from Awema to Tawe.b.Costs of the claim.
2.Parties filed their respective pleadings, responses and submissions and the matter was fixed for highlighting of submissions on 20th August, 2024. On this day, Mr. Bulowa appeared for the Appellant and Ms. Ndwiga was present holding brief for Mr. Wakoko for the Respondent.
3.The Tribunal received written submissions filed by the Claimant dated 6th August, 2024 and by the Respondent dated 7th August, 2024. The Tribunal has considered the said submissions as well and all other documents filed by the parties in this matter and the highlighting of submissions on 20th August, 2024.
The Appellant’s Submissions
4.The Appellant submits that in intending to exercise his constitutional rights under Article 36 and 38 of the Constitution of Kenya, 2010 to form and participate in the activities of an association/political party, he applied for a name search and reservation of political party on the 17th of April, 2024 for which he paid the requisite fees to the Respondent and submitted three names for a search and reservation, all of which were abbreviated to Tawee.
5.That the Respondent approved one of the names but abbreviated the name to Awema instead of Tawee as had been indicated by the Appellant. The Respondent did not offer reasons for the change.
6.That the Appellant, aggrieved with the Respondent’s actions, wrote to it vide a letter dated the 15th of May, 2024 requesting for a change in the acronym to the one intended by the Appellant, but the Respondent never acted nor offered an explanation in that regard.
7.That the acronym Awema was erroneously, arbitrarily, unilaterally and un-procedurally chosen and given by the Respondent without the Appellant having ever proposed or consented to the same.
8.The Appellant submits that the relevant provisions of law that govern the registration of political parties in Kenya is Part II – Registration and Regulation of Political Parties Act and refers to Section 3[2] thereof. The Appellant also refers to Article 36 of the Constitution on the freedom of association.
9.The Appellant submits that the right to form, join and participate in the activities of a political party also entails the freedom to choose the name, acronym, and symbol of such a political party. He submits that section 4B of the Political Parties Act 2011 [the PPA] provides that the Respondent herein has a statutory obligation to reserve and subsequently register the name of a political party as has been submitted to it, except in only one instance, where such name has already been reserved for a proposed or an already registered political party.
10.The Appellant further relies on the right to fair administration action as provided for under Article 47 of the Constitution, specifically that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
11.The Appellant submits that the Respondent approved the name suggested by the Appellant in its application, but instead of opting for the abbreviation proposed, it unilaterally and arbitrarily formulated its own abbreviation without giving any reasons or explanation for the same. That the Appellant wrote back requesting for a change in the abbreviation and reversion to the abbreviation originally submitted, but there was no response or explanation by the Respondent. This led to this Appeal.
12.The Appellant further submits that the acronym Awema does not in any way relate to the name of the Appellant’s political party, and is bound to cause confusion to the members of the public. That such decision by the Respondent is unprocedural and without any basis in law.
The Respondent’s Submissions
13.The Respondent relies on the Replying Affidavit sworn by Joy Onyango dated 6th August, 2024 and their submissions dated 7th August, 2024. The issues raised by the Respondent are:a.Whether the Respondent was justified in not approving the abbreviation Tawee;b.Whether this Tribunal can grant prayer D[a] as sought by the Appellant; andc.Whether this Tribunal should award costs against the Respondent.
14.The Respondent submitted that whereas they reserved the name, they did not, however, reserve the proposed abbreviation for not conforming to the law. That Article 91 of the Constitution provides for the basic requirements of a political party, including the duty to promote and uphold national unity, and prohibits a political party from engaging in the advocacy of hatred. That Section 8 of the PPA provides that certain party abbreviations cannot be registered on account of public interest.
15.That the right to associate is not absolute, and is subject to limitations contemplated under Article 24 of the Constitution. That these limitations include the discretion of the Respondent not to register a party abbreviation which is against public interest.
16.The Respondent urges this Tribunal to take judicial notice of various facts, specifically that the phrase Tawee, has been a term in Kenya’s political discourse signifying a rejection of certain demographics. That, as a phrase, Tawee has been associated with being non-inclusive and likely to propagate hatred against the prohibited framework under Article 91 of the Constitution.
17.On the second issue as formulated by the Respondent, the Respondent submits that the Appellant’s main part of the pleadings referred to the Respondent’s refusal to register the abbreviation Tawee yet the order being sought by the Appellant is for the abbreviation Tawe.
18.The Respondent relies on the principle of separation of powers and implores this Tribunal not to direct the Respondent on how to register political parties. The Respondent further submitted that if this Tribunal observes that the communication by the Respondent not to reserve the abbreviation Tawee was insufficient, then this Tribunal should direct the Respondent to consider approving the abbreviation rather than giving an order for the registration.
Analysis and Determination
19.We have considered all the material placed before us by the parties and now determine that the following three questions fall for our determination:i.Whether the decision by the Respondent to reject the abbreviation Tawee and replace it with the abbreviation Awema was fair and procedural.ii.What orders can this Tribunal issue.iii.Who bears the costs of this suit?
20.We will consider the questions framed in the order in which they appear above.
Whether the decision by the Respondent to reject the abbreviation Tawee and replace it with the abbreviation Awema was fair and procedural.
21.The gist of the Appeal by the Appellant is that the rejection of the abbreviation Tawee and its replacement with the abbreviation Awema was unfair and unprocedural as no reasons were given for such rejection and replacement. That such rejection and replacement was an administrative decision that affected his rights and freedom and he was therefore entitled to written reasons for the same. That in spite of his request for amendment, he did not receive any response to his request by the Respondent. On the other hand, the Respondent’s position is that the abbreviation Tawee does not conform to the law.
22.In consideration of the parties’ rival submissions, we remain alive to the provisions of Article 47 of the Constitution of Kenya 2010, which provides on the right to fair administrative action as follows:1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
23.Additionally, the Fair Administrative Action Act, 2015 at Section 4[3]&[4] details the ingredients of fair administrative action thus:3.Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;c.notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.4.The administrator shall accord the person against whom administrative action is taken an opportunity to—a.attend proceedings, in person or in the company of an expert of his choice;b.be heard;c.cross-examine persons who give adverse evidence against him; andd.request for an adjournment of the proceedings, where necessary to ensure a fair hearing.
24.Section 7[2] of the Fair Administrative Action Act, 2015 provides grounds upon which a court or tribunal may review an administrative action. The grounds include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power.
25.The status of fair administrative action in Kenya’s constitutional and jurisprudential framework was discussed by Onguto, J in Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR, where the learned Judge expressed himself inter alia as follows:
26.Section 2 of the FAA defines an “administrative action” to include - the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. It is thus noteworthy that Respondent’s functions are administrative duties and needless to note, fair administrative action is envisaged in the performance of those administrative duties under Article 47 of the Constitution.
27.Turning to the record before us, it is noteworthy that consequent upon the Appellant’s application for reservation of the name, The Alliance for Welfare and Economic Emancipation, and the acronym Tawee, the Respondent approved the subject name, but did not, however, approve the acronym, Tawee. Instead, the Respondent proposed a new acronym, Awema. We have perused the letter written in response to the application for reservation of the name acronym and we do not see any communication giving a reason for rejection of the abbreviation Tawee and its replacement with the abbreviation Awema. In fact, in the subject letter, the abbreviation is simply changed without any reference to the abbreviation as provided in the application. We have not seen any other communication from the Respondent to the Appellant communicating the reasons for its decision. We further note that the Respondent did not even respond to the letter by the Appellant dated 15th May, 2024 where the Appellant requested for the acronym to be changed to the one intended by the Appellant.
28.We further note that the reasons advanced by the Respondent for declining the use of the acronym Tawee, were disclosed, for the first time, in these proceedings. The Written Submissions filed by the Respondent in fact raises several issues, which issues were not raised or brought about in their Replying Affidavit. It is alleged that the abbreviation suggested by the Appellant discriminates against certain demographics.
29.It has been judicially underscored that submissions and authorities are suggestions that are neither persuasive nor binding on the Court, as they express a party’s partisan view of the case. The same are not evidence and as such, concrete proof still stands as the goal of litigation. See finding of Tanzanian Court in the case of Salim Said Mtomekela v Mohamed Abdallah Mohamed, Dar-Es-Salaam Court of Appeal Civil Appeal No. 149 Of 2019[Mugasha. J.A. Kihwelq. J.A. Rumanyika. J.A]. We have also considered Barclays Bank [T] v Jacob Muro, Civil Appeal No. 357 of 2018; Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR; Erastus Wade Opande v Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007; Nancy Wambui Gatheru v Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993; Ngang’a & Another v Owiti & Another [2008] 1KLR [EP] 749, and the Court of Appeal case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR. In essence, it would be an affront to justice if this Tribunal was to consider the merits of the new issues raised by the Respondents for the first time in their written submissions. The reasons for declining the acronyms ought to have been communicated to the Appellant in the first instance.
30.We therefore agree with the Appellant that any person whose rights are to be affected by an administrative decision ought to be given reasons for such decision, especially in the current case where the Appellant made an application for a name which application was partially allowed and the abbreviation of the name was changed with no reasons for the same. This position has been judicially underscored in numerous cases including Philip Mururi Ndaruga v Gatemu Housing Co-operative Society Ltd [2016] eKLR; and Republic v Deputy County Commissioner Lower Yatta Sub-County & another; Munyao [Exparte]; Muinde & another [Interested Parties] [Judicial Review 17 of 2021] [2022] KEELC 2722 [KLR] [29 June 2022] [Judgment], amongst others. We thus find that failure by the Respondent to give reasons for his decision rendered the said decision irrational, unreasonable, and unsound and further the said decision was tainted with illegality and impropriety.
31.Taking into consideration the totality of the foregoing, we therefore find that the decision by the Respondent to reject the abbreviation Tawee and replace it with the abbreviation Awema was arrived at in blatant breach of the Appellant’s right to fair administrative action.
What orders can this Tribunal issue.
32.The Appellant seeks an Order directing the Respondent to amend and correct the acronym assigned to the name “The Alliance for Welfare and Economic Emancipation” from Awema to TAWE. The Respondent has taken note that the abbreviation applied for and referred to in the pleadings was Tawee yet the order seeks the name TAWE. The Appellant’s counsel submitted that this was a clerical error and confirmed that the abbreviation they wanted was Tawee.
33.The Respondent also referred to the principle of separation of powers and implored this Tribunal not to direct the Respondent on how to register political parties. Reference was made to the Constitutional Petition No. 64 of 2012 Hellen Atieno Magudha & Others v the Registrar of Political Parties [2013]eKLR, which concerned the refusal of the Registrar of Political Parties to register Madaraka People’s Movement. That even after the Court finding that the Petitioner’s right to fair administrative action was infringed, the court did not direct the Registrar to register the party, but to consider registering the same. In the current case we have found earlier that the decision by the Respondent was not fair and procedural for failure to give reasons and/or explanation for the decision. Taking cue from the decision of the High Court, we are of the considered opinion that this matter warrants a referral back to the Respondent to consider amending the acronyms.
Who bears the costs of this matter?
34.Costs ordinarily follow the event. A successful party should be awarded costs to cover the exigencies of the litigation. However, in this matter, the Appellant has partly succeeded and we therefore order that each party to bear its own costs.
Disposition
35.Taking into consideration the reliefs sought, we hereby make the following orders:i.This matter be and is hereby referred back to the Respondent to consider amending and correcting the acronym assigned to the name, ‘The Alliance for Welfare and Economic Emancipation’, from Awema to Tawee.ii.Each party to bear its own costs.
36.Those are the orders of the Tribunal.
DATED AND DELIVERED AT NAIROBI ON THE 11TH DAY OF SEPTEMBER 2024.HON. DESMA NUNGO[CHAIRPERSON]---------------------------------------------------------HON. STEPHEN MUSAUMEMBER………………… ……………………………..HON. MUZNA JINMEMBER………………………………………………….HON. ABDIRAHMAN ADAN ABDIKADIRMEMBER