Salu & another v Wiper Democratic Movement Party (Appeal E002 (NRB) of 2025) [2025] KEPPDT 3 (KLR) (Appeals) (11 June 2025) (Judgment)
Neutral citation:
[2025] KEPPDT 3 (KLR)
Republic of Kenya
Appeal E002 (NRB) of 2025
D. Nungo, Chair, AA Abdikadir & T. Chepkwony, Members
June 11, 2025
Between
Hon Fastina Mwende Solomon Salu
1st Complainant
Hon Jacquelyne Cate Kalenga
2nd Complainant
and
Wiper Democratic Movement Party
Respondent
Judgment
1.These proceedings were originated by the Statement of Complaint dated 10th March, 2025 (the Complaint). The Complainants are nominated Members of the County Assembly (MCA), Kitui County, from the Wiper Democratic Party, the Respondent herein.
2.The Complainants claim that they faced disciplinary proceedings after allegedly refusing to adhere to the party position by voting in support of a motion to impeach the Deputy Speaker (the DS) of the Kitui County Assembly, Hon. Christopher Nzilu Nzioka. Charges were preferred against them and after hearing, the Disciplinary Committee (hereinafter referred to as the DC) issued its Decision dated 4th March 2024 in which they were found to have breached section 14A [1][e] of the Political Parties Act 2011 and Article 7.3(i)(x) & (xii) of the Respondent's Constitution. Consequently, they were suspended from the party for three months and required to pay a fine of Kshs. 1,000,000 each within 60 days of the decision.
3.On appeal to the Respondent’s National Executive Council (hereinafter referred to as NEC), a decision dated February 12, 2025 was issued reducing the fine imposed to Kshs. 300,000 each, while upholding other aspects of the DC’s decision.
4.Being dissatisfied with the decision of the NEC, the Complainants filed the instant Complaint praying the Tribunal finds that:i.The Complaint is merited and thus allowed.ii.The decision by the Respondent dated February 12, 2025 imposing a hefty and punitive fine of Kshs. 300,000 on the Complainants be set aside and the entire decision by the Respondent’s Disciplinary Committee dated 4th March 2024 be set aside.
5.Pursuant to the directions that were issued by this Tribunal, the Respondents were granted leave to file and serve their responses to the Complaint. In addition, parties elected to prosecute the Complaint by way of written submissions which were also orally highlighted by the parties on 13th May 2025.
6.The Complainants were represented by Mr. Kioko of SKM Advocates LLP, while the Respondents were represented by Ms. Kirui of LAK Advocates.
The Complainants’ Complaint and Submissions
7.The Complainants relied on the Complaint, their List of Documents, the Supplementary Affidavit sworn by Hon. Fastina Mwende Solomon Salu on the 24th of April, 2025 and their Written Submissions.
8.The Complainants fault the Respondent’s process leading to the decisions issued on February 12, 2025 and on 4th March 2024, as well as the justifications and form of the decision dated February 12, 2025.
9.The Complainants fault the process for the reasons that it is against Section 11 of the County Assemblies Powers and Privileges Act to institute criminal or civil proceedings against a Member, and that upon issuance of the summons, they claim that they were not issued with the evidence relied upon by the Respondent and documents requested in their letters dated 13th December 2023.
10.Further, that there was gender discrimination against the two Complainants as they were the only female party members against whom disciplinary proceedings were preferred although at least 8 other male members belonging to the Respondent allegedly voted in support of the impeachment motion.
11.Lastly, the Complainants fault the process as the Complainant in their disciplinary proceedings did not appear physically at the hearing.
12.In regard to the justification of the decision, the Complainants claim that the proceedings against them are a bar against free speech, and further state that there was no resolution by the Wiper Democratic Movement Party pursuant to the party’s constitution that officially communicated a party position.
13.In regard to the nature of the decision, the Complainants allege that there were no reasons adduced in the decision explaining the final orders of the NEC, that the same was not signed and that the same was excessive.
The Respondent’s Response and Submissions
14.The Respondent opposes the Complaint, and relies on their Response to the Complaint, the Replying Affidavit sworn by Shakila Abdalla on the 7th of April 2025 and their Written Submissions dated 13th May, 2025.
15.It is the Respondent’s argument that being in receipt of a complaint that was made to the party dated 5th October 2023, they proceeded to institute disciplinary proceedings against the Complainants. That first, they issued show-cause letters dated 12th October, 2023, 8th December, 2023, and 18th January, 2024, to which they received responses dated 18th October, 2023, 13th December, 2023, and 26th January, 2024.
16.The Respondent’s further argue that the Complainants appeared before the DC on 27th February, 2024, where they admitted to the offences and justified their choice to vote as informed by personal grudges against the DS. That pursuant to the hearing,the DC then issued its decision.
17.That upon appeal to the NEC, in its meeting on the 22nd January, 2025, the NEC reached the same verdict but reduced the fine.
18.It is the Respondent’s assertion that they followed all procedural requirements in relation to the hearings and availed all the requested documents to the Complainants. Further, that the proceedings were conducted fairly and did not discriminate against the Complainants on the basis of gender.
19.The Respondent also claims that the fine imposed is within agreeable limits and that the instant Complainants’ claims of not being allowed to cross-examine the complainant before the DC is a new issue and therefore outside the Jurisdiction of this Tribunal.
Tribunal’s Analysis and findings
20.As emergent from the parties’ pleadings and submissions, we identify the following as issues for determination:i.Whether this Tribunal has jurisdiction to entertain this matter?ii.Whether the charges preferred against the Complainants disclose actionable disciplinary offences?iii.Whether the proceedings leading to the impugned decision by the Respondent were marred with legal and procedural lapses and irregularities and therefore contrary to the rules of natural justice and procedural fairness?iv.Whether the decision by the Respondent is in contravention of the Respondent’s Constitution, Rules and other governing laws?v.Whether the sanctions imposed are excessive and unreasonable?vi.Who bears the costs of this suit?
Whether this Tribunal has jurisdiction to entertain this matter?
20.In the celebrated case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) which presently forms Jurisprudential canon, Nyarangi J. correctly averred as follows,
21.The bestowal and limitation of Jurisdiction can only be effected by legislation. The Supreme Court of the land in Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) stated doth,
22.In asserting the Jurisdiction of the tribunal, reliance is placed upon the Political Parties Act Chapter 7D of the Laws of Kenya (hereinafter referred to as the PPA), which creates this Tribunal. The jurisdiction of this tribunal is derived from section 40 of the PPA which states as follows:
23.Taking into consideration the nature of the dispute before us, being one between members of a political party and their political party, and thus falling under Section 40(1)(b) of the PPA, Section 40(2) of the PPA makes it clear that the Jurisdiction of this Tribunal can only be invoked where there is evidence of an attempt to subject the dispute subject hereof to the Respondent party’s internal dispute resolution mechanism (IDRM). This tribunal with therefore first focus on whether all the issues before it had been dealt with by the Respondent’s IDRM.
24.The Respondent’s IDRM is found in Chapter 7 of the Respondent’s Constitution, which makes provision on Dispute Resolution and Disciplinary Mechanisms. Article 7.1. provides as follows on Internal Dispute Resolution;a.The Party Members shall attempt at the first instance to settle disputes amicably through negotiations.b.Any member may, at any time and without prejudice to any other dispute resolution mechanism provided for under this constitution, seek and settle any complaint or dispute through mediation, conciliation, or reconciliation.c.The mediation will be conducted under the Nairobi Centre for international Arbitration (NCIA) mediation rules 2015 or other rules which may be chosen by the parties.d.Members are free to choose any person to facilitate mediation, conciliation or reconciliation either from within the party or from outside the partye.Mediators will be engaged on voluntary terms or on such terms as parties to the dispute will agree.f.The mediators and conciliators shall communicate the outcome of the mediation, conciliation, or reconciliation to the NEC for adoption.g.Members that are dissatisfied with the outcome of any alternative dispute resolution mechanisms shall escalate the dispute to the Disciplinary Committee for consideration.h.Members dissatisfied with decisions of the Disciplinary Committee can refer the matter to NEC whose decision in the matter will be finali.A party may nonetheless appeal any such outcome to the Tribunal.j.The party will make efforts to establish from its membership a list of qualified dispute resolvers who may be from all sectors and professions and include religious leaders.
25.From the above provisions in the party constitution, it is clear that the IDRM mechanisms that were available to the parties in this case were attempts at negotiations in the first instance, mediation, conciliation or reconciliation, filing complaint with the DC, and reference to NEC. We note from the record that the Complainants were subjected to a disciplinary process by the DC, and ultimately the DC referred their Report & Recommendations to NEC. We further note that Article 7.1(h) of the party constitution provides that members that are dissatisfied with the decision of the DC can refer the matter to NEC, whose decision in the matter will be final, and Article 7.1(i) provides that a party may nonetheless appeal any such outcome to the Tribunal.
26.While the Respondent’s claim is that mediation was an available IDRM, it cannot be gainsaid that the party disciplinary proceedings against the Complainants were initiated by the Respondent. The Respondent did not attempt to mediate the matter in the first instance, and elected to directly escalate it to the DC. In other words, the Respondent elected to by-pass negotiations, mediation, conciliation or reconciliation in the first instance. As is clear from the Respondent’s Constitution, referrals from the DC to the NEC culminate in a final decision appealable to the Tribunal. Therefore, the Respondent cannot hide behind that claim.
27.We have in addition considered the Respondent’s submission that the Complainants have introduced the following new allegations before this Tribunal, that were not raised during the IDRM:i.The claim of not being aware of the identity of the complainant during the disciplinary proceedings; ii. The allegation of gender discrimination; iii. The contention regarding cross-examination of the complainant; andiv.The claim related to rape allegations.
28.From our perusal of all the communication placed before us exchanged between the Complainants and the Respondent relating to the Complainants’ Disciplinary proceedings, it is our observation that the issues raised in this Complaint are similar to the issues that were raised before the IDRM proceedings both at the DC and NEC level. For instance, we have gone through the Complainants’ letters dated 18th October 2023 and 13th December 2023, and also the Complainants’ letters dated 30th April, 2024, and we note that save for the issue of rape, all the rest of the allegations highlighted above were subject of the IDRM proceedings before the Respondent. We note that the allegation of rape is not before us. Accordingly, taking into consideration the issues that arose before the IDRM and the ones before us, we are not persuaded by the contention that there are new issues before us that were not subjected to IDRM in the first instance.
29.We in the foregoing circumstances find that the parties attempted IDRM prior to invoking the Jurisdiction of this Tribunal, and this Tribunal is therefore seized with the Jurisdiction to hear and determine all matters in the instant Complaint.
Whether the charges preferred against the Complainants disclose actionable disciplinary offences?
30.From the show cause letters that were addressed to the Complainants, the charge against the Complainants is that they failed to carry out the Respondent’s directive to its members to oppose the impeachment motion against the DS, as communicated in the Respondent’s letter dated 30th September 2023, thus violating Article 7.3(i)(x) & (xii) of the Respondent's Constitution, which reads as follows,
31.Further, the Respondent stated that the Complainants violated Section 14A(1)(e) of the PPA, which states as follows,
32.The Complainants have challenged the legality of the charges framed against them, arguing that there was no party position that had been arrived at by way of a resolution of any of the party organs recognized under Chapter 3 of the party constitution and communicated to the MCAs nominated by the Respondent. In response, the Respondents relied on its letter dated 30th September 2023 communicating its position to its nominated MCAs in Kitui County Assembly.
33.We have gone through the Respondent’s said letter dated 30th September 2023 addressed to all the Respondent’s nominated MCAs, Kitui County Assembly. The letter refers to the Certificate of Pledge that was signed by the nominated MCAs, committing themselves to the authority of the party and to obey the party constitution, rules, policies, ideologies, etc. as laid down by the party leadership. The letter indicated that the party was not supporting the impeachment of the DS and his replacement with a person whose interests the party felt were not in line with the party’s interests, and accordingly directed them to oppose and rescind their signatures in support of the impeachment motion. The letter was signed by the Secretary General (SG) of the Respondent.
34.We note that Article 6.9 of the Respondent’s Constitution designates the SG as the official spokesperson of the party, and with the mandate to manage correspondence of the party organs. Under Chapter 3 of the party Constitution, the SG is indeed a member of the party leadership organs. The Complainants have not disputed that the Respondent’s letter dated 30th September 2023 was signed by the SG. The SG stated in the said letter that the direction emanated from the deliberations by the party leadership. Considering the contents of the letter and the duties and responsibilities of the SG as set out in the Respondent’s Constitution, we are not persuaded by the Complainants’ submission that there was no party position that was communicated to them.
35.In light of the foregoing, we find that the charges that were preferred against the Complainants were grounded on tangible provisions of law and that the facts and circumstances thereof disclosed actionable disciplinary offences.
Whether the proceedings leading to the impugned decision by the Respondent were marred with legal and procedural lapses and irregularities and therefore contrary to the rules of natural justice and procedural fairness?
36.Having found that there were actionable charges against the Complainants, it is the duty of the Tribunal to establish whether the proceedings of the party’s IDRM and the resultant decisions were the result of a fair legal process and in accordance with the rules of natural justice.
37.The right to a fair hearing is enshrined in Article 50 of the Constitution of Kenya,which underscores the importance of the right in the Kenyan legal space.
38.The yardstick of a fair hearing exists, having been defined by Justice Njoki Ndungu as part of the Supreme Court bench in Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014 [2014] eKLR as follows,
39.The Tribunal must also evaluate whether the proceedings were conducted in accordance with the rules of natural justice, defined in Kidero & others v Waititu & others (supra) as including,
40.The Respondent’s IDRM has a clear process as set out in its Disciplinary Committee (Practice and Procedures) Rules, 2023 (hereinafter “the Rules”). The evidence before the Tribunal shows the following chronology of events:i.The Respondent's Disciplinary Committee issued show-cause letters to the Complainants on 12th October, 2023, 8th December, 2023, and 18th January, 2024.ii.The Complainants submitted written responses dated 18th October, 2023, 13th December, 2023, and 26th January, 2024.iii.The Complainants were afforded a hearing before the Disciplinary Committee on 27th February, 2024.iv.A decision dated March 4, 2024 was communicated by the Committee in accordance with Rule 26 of the Respondent’s Disciplinary Committee (Practice and Procedures) Rules, 2023.v.The Complainants appealed against the Decision by the Disciplinary Committee dated 4th March 2024.vi.The National Executive Committee then communicated its decision vide letters dated February 12, 2025.
41.It is alleged in the Statement of Complaint that requests for necessary documentation used as evidence, requested through the Complainants’ letters dated 12th October, 2023, 18th October, 2023 and 13th December, 2023 were ignored, leading to the Complainants being condemned on the basis of evidence they could not counter.
42.From our perusal of the subject letters, we note that the Complainants requested for the complaint, disciplinary rules of procedure, letter dated 13th October 2023, evidence and information on how the complainants voted and party resolution stating the party position.
43.We have perused the following letters from the Respondent, which letters we note enclosed various documents that were forwarded to the Complainants; -i.The Respondent’s letter dated 8th December 2023 which enclosed the party’s directive as per letter dated 30th September 2023, the impeachment motion documents and Hansard record showing how the Complainants voted. ii. The Respondent’s letter of Notice to Show Cause dated 18th January 2024 which enclosed documents mentioned and enclosed in letter dated 8th December 2023 referred to above, together with complaint, impeachment motion, and letters dated 12th October 2023 and 8th December 2023.iii.The Respondent’s letter dated 31st January 2024 which enclosed a copy of the Disciplinary Rules.
44.We further note that the Complainants filed, as part of their List of Documents dated 12th March, 2025, the Report & Recommendations of the Disciplinary Committee dated March 4, 2024. The veracity of this report has not been disputed. Page 2 of the report states that the following documents were provided:i.A copy of the complaint letter dated 5/10/2023 from the Complainant before the Disciplinary Committeeii.The letter to all nominated Members of the County Assembly of Kitui dated 30/9/2023 from the Respondent; iii. Certificates of Pledge dated 31/5/2022 & 1/6/2022;iv.Motion for removal of the Deputy Speaker of County Assembly of Kitui dated 27/9/2023;iv.Hansard recordv.Disciplinary rules.
45.Taking into consideration the foregoing, this Tribunal is not therefore ready to accept the assertions by the Complainants that they were not furnished with the requisite documents relevant in the disciplinary process.
46.As regards the identity of the complainant in the disciplinary proceedings, it is as conspicuous as a knocked out incisor that the letter dated 5th October 2023 discloses that the Complainant was Senator Shakilla Abdalla in her capacity as the SG of the Respondent, which is in accordance with Rule 6 of the Rules, which states that an official of the party may lodge a complaint.
47.We have further considered the allegation that there was no hearing. The evidence adduced before the Tribunal suggests that the Complainants were given ample opportunity to respond to the allegations against them. Various hearing notices were issued by the DC in compliance with Rule 17(2) of the Rules. We particularly refer to the hearing notices dated 21st February, 2024 referring to a hearing on the 27th of February, 2024 and issued in compliance with Rule 17(2) of the Rules. The Respondent, in its letter dated 4th March, 2024, confirmed that the hearing took place on 27th February 2024, and that the two Complainants were present. Both the DC decision dated 4th March 2024 and the Complainant’s Supplementary Affidavit on record confirm that the Complainants appeared before the DC on the stated date. In fact, the Complainants aver in their Affidavits that they admitted before the DC that they had voted in support of the impeachment motion, but that they did not admit to violating the provisions of Section 14A(1)( e) of the PPA and Article 7.3(i)(x) and (xii) of the party constitution.
48.To the foregoing extent, we are not persuaded by the claim that the Complainants were not granted an opportunity to be heard before the DC.
49.The Complainants further claimed that they were not granted a hearing before NEC. They have, nevertheless, placed on record their letters addressed to NEC detailing their reasons for dissatisfaction with the DC finding. The same were acknowledged by the Respondent. Did the Complainants expect to physically appear before NEC for a hearing and/or a re-hearing, similar to what happens before the DC? If so, what were the Respondent’s rules of procedure relating to appeals before the NEC? It is instructive to note that the Complainants did not take us through the party’s rules of procedure governing appeals before NEC. The Complainants only referred us to the Rules relating to proceedings before the DC. There is absolutely no evidence to demonstrate that the Respondent’s procedural rules on appeal were flouted. It therefore follows that we do not have sufficient evidence before us to enable us make a finding in favor of the Complainants on this specific claim.
50.Taking into consideration the totality of the foregoing circumstances, our conclusion is that there is no sufficient evidence to demonstrate that the proceedings leading to the impugned decision by the Respondent were marred with legal, procedural lapses and irregularities, and therefore contrary to the rules of natural justice and procedural fairness. The Tribunal’s finding on this issue is accordingly in the negative.
Whether the decision by the Respondent is in contravention of the Respondent’s Constitution, Rules and other governing laws?
51.The Complainants have faulted the Respondent’s decision for being in violation of Section 8 of the County Assemblies Powers and Privileges Act. That the Respondent illegally entertained a complainant founded on proceedings before the county assembly.
52.Section 8 of the County Assemblies Powers and Privileges Act states as follows, “No civil or criminal proceedings may be instituted in any court or tribunal against a member of a county assembly by reason of any matter said in any debate, petition, motion or other proceedings of a county assembly.”
53.The issue of parliamentary privilege has been the subject of significant Jurisprudential pronouncements. In the case of Rosemary Mulee v County Assembly of Machakos & another [2016] KEHC 6288 (KLR), Nyamweya J stated as follows,
54.In our view, Members of Parliament should not look over their shoulders when conducting debates in Parliament. They must express their opinions without any fear. The Court should be hesitant to interfere, except in very clear circumstances, in matters that are before the two Houses of Parliament and even those before the county assemblies.”
55.The above reasoning is by all means good law, and the Tribunal respects and upholds the same position. An important question that we must, however, ask ourselves, is, whether party disciplinary proceedings before party organs, like the DC in this case, amount to civil or criminal proceedings before a court or tribunal as contemplated under Section 8 of the County Assemblies Powers and Privileges Act. In other words,did the disciplinary proceedings before the DC and NEC amount to civil or criminal proceedings before a court or tribunal?
56.Our considered view is that disciplinary proceedings before the DC are anchored on the provisions of the Respondent’s Constitution, which constitution serves as a binding social contract between the Respondent and its members, including the Complainants herein. The DC is not recognized as a court within the framework of Article 162 of the Constitution of Kenya, and we are not therefore persuaded that conducting disciplinary proceedings before the DC would equate to conducting civil or criminal proceedings before a court as contemplated under Section 8 of the County Assemblies Powers and Privileges Act. Such an interpretation would in our opinion limit the right of political parties to discipline rogue members who blatantly flout party laws, positions or directives, yet this tribunal and courts have consistently upheld the right of political parties to discipline their members provided such disciplinary processes are conducted in accordance with the law.
57.The Complainants have further faulted the decision by the Respondent as being in contravention of its own constitution, rules and other governing laws. Specifically, the NEC decision is faulted for not providing reasons for the decision as required by Rule 26(1) of the Rules. It is instructive to note that the Tribunal was not furnished with the purported NEC decision. All that the Complainants furnished were letters dated 12th February 2024 addressed to them communicating the resolution by NEC to reduce the fine from Kshs. 1,000,000/- to Kshs. 300,000/- after NEC had considered various factors including the Complainants’ appeal and the broader interests of party unity. Based on the record before it, this Tribunal has no basis for finding that the NEC decision did not give reasons, considering that the Tribunal has not had the benefit of seeing the same. Further and in any event, we have also considered that to the extent that the Complainants challenge the NEC decision for being in breach of Rule 26(1) of the Rules, which Rules we have already observed regulate the DC, and not the NEC, we cannot arrive at a finding that Rule 26(1) of the Rules was breached as alleged.
58.We have further considered the issues raised of gender discrimination and the oral submissions by the Advocates for the Complainants. It is our observation that the sections of the Hansard to which we were directed bear no differentiation between the party membership of the Members of the County Assembly in relation to how they voted. In fact, the voting was conducted in alphabetical order with no reference to the specific voter’s party. Consequently, the Tribunal cannot point out the parties to which the members belong as the Assembly consists of members from various parties including the Wiper Democratic Party, the Jubilee Coalition, NARC, CCU and also independent members as noted at page 24 of the Respondent’s Replying Affidavit. It is our position that the Complainants have not adduced any evidence of the party membership of the voters as taken down in the Hansard or voting patterns of their alleged male colleagues of the Wiper party, and there is therefore no evidence available against which to weigh their claim.
59.Ultimately, the Tribunal finds on a balance of probabilities, and based on the record before it, that the decision by the Respondent was not contrary to the Constitution or any governing law.
Whether the sanctions imposed are excessive and unreasonable?
60.The Complainants in this case have not objected to the power of the Respondent’s DC to impose a fine. We note from the record that the NEC reduced the fine imposed by the DC to 30% of the original amount. Notwithstanding the reduction, the Complainants still contend that the sanctions imposed are excessive, unreasonable and unfounded in law.
61.We have considered the record and we note that there is no evidence adduced by the Complainants, either in the form of a former decision or a prescribed penalty by any law, that would allow the Tribunal to make a comparative analysis as to the propriety of the fine imposed. There is no yardstick with which this Tribunal can gauge the fine. In essence, the Complainants’ claims have not been substantiated. Accordingly, this Tribunal will refrain from interfering with the decision of the Respondent without justifiable basis.
62.From the discussions above, we have concluded that the charges disclosed actionable offences. Further, we have found that there were no procedural lapses in how the Respondent arrived at its final decision. The entirety of the proceedings did not contravene the Respondent’s Rules or constitution, or any other national or county governing laws. Accordingly, our conclusion is that the instant Complaint lacks merit and is for dismissal.
Who bears the costs of this suit?
55.It is trite law that costs follow the event. However, in the interest of reconciliation and maintaining favorable relations between the parties, this Tribunal directs that each party bears its own costs.
Final Orders
55.In light of the foregoing, this Tribunal orders as follows:i.The Complaint herein be and is hereby dismissed in its entirety.ii.Each party to bear its own costs.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 11TH JUNE 2025.HON. DESMA NUNGO, HSC(CHAIRPERSON)....................................HON. ABDIRAHMAN ABDIKADIR(MEMBER)....................................HON. THERESA CHEPKWONY(MEMBER)**