Onderi v Orange Democratic Movement Party; Mbadi & 4 others (Interested Parties) (Complaint E001 (KSM) of 2024) [2025] KEPPDT 5 (KLR) (13 May 2025) (Judgment)

Neutral citation: [2025] KEPPDT 5 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E001 (KSM) of 2024

D. Nungo, Chair, S Musau & AA Abdikadir, Members

May 13, 2025

Between

Hon. Amos Onderi

Complainant

and

Orange Democratic Movement Party

Respondent

and

Hon. John Mbadi

Interested Party

Hon. Henry Moracha

Interested Party

Hon. John Ombati

Interested Party

The Kisii County Assembly

Interested Party

The Speaker, The Kisii County Assembly

Interested Party

Judgment

Introduction

1.The Complainant is a Member of the Kisii County Assembly, representing the people of Bokimonge Ward. Pursuant to the Standing Orders of Kisii County Assembly, and by virtue of being a member of the Respondent, he was nominated as a member of the Budget & Appropriations Committee and the Health Services Committee of the Kisii County Assembly, and was also elected as Chairman of the Health Services Committee.

2.However, vide a letter dated 1^st November 2023, the Respondent and the 1^st Interested Party informed the 2^nd and 3^rd Interested Parties that the Complainant had been dewhipped from the stated Budget & Appropriations Committee, and the Health Services Committee of the Kisii County Assembly. On 14^th November 2013, the 2^nd and 3^rd Interested Parties communicated the decision to de-whip the Complainant to the 4^th and 5^th Interested Parties, which decision was ultimately communicated and adopted by the House on 15^th November 2023.

3.Aggrieved by the Respondent’s and the 1^st Interested Party’s decision to de-whip him from the subject House Committees, the Complainant filed the instant Complaint seeking the following reliefs from this Tribunal: -i.A declaration be and is hereby issued that the process of de-whipping the Complainant from the Committee of Budget and Appropriation in Kisii County Assembly was a total violation of his right as a bona fide member of the Respondent.ii.An Order be and is hereby issued for reinstatement of the Complainant herein to his position as Chairman in the Committee of Health Services, Kisii County Assembly with full salary and attached allowances.iii.An Order be and is hereby issued for reinstatement of the Complainant herein to his position as member of the Committee of Budget and Appropriations and the Committee on Health Services, Kisii County Assembly with full salary and attached allowances.iv.A Declaration be and is hereby issued that the communication from the Respondent through the 1^st Interested Party dated the 1^st day of November 2023 purporting to de-whip the Complainant from the Kisii County Assembly Committees is null and void.v.An Order be and is hereby issued that the Complainant be compensated by way of general damages to be assessed at court rates.vi.Costs of this Complaint.vii.Any other orders or directions this tribunal considers appropriate and just to grant.

4.Pursuant to the directions that were issued by the Tribunal, the Respondents and the Interested Parties filed their respective responses where-after parties exchanged their written submissions. The Complaint was thereafter heard inter parties by way of highlighting of the parties’ written submissions on the 29^th April 2024.

5.At the hearing of the Complaint, the Complainant was represented by Mr. Ochoki Advocate, the Respondent and the 1^st Interested Party were represented by Mr. Makori Advocate, the 2^nd and 3^rd Interested Parties were represented by Mr. Mbakaya Advocate, and the 4^th and 5^th Interested Parties were represented by Ms. Nyamwaya holding brief for Onserio OndimuAdvocate.

The Complaint

6.The Complainant contends that during his tenure as a member of the Budget & Appropriation Committee and the Health Services Committee, and as the Chairman of the Health Services Committee, he executed his mandate and duties with integrity, decorum and respect to the rule of law, and that he has demonstrated utmost loyalty to the Respondent, in line with the requirements of Article 11 of the Respondent’s Constitution.

7.It is the Complainant’s contention that the decision to de-whip him was therefore arrived at irregularly, without according him a fair hearing, and thus in breach of Article 50 and 47 of the Constitution of Kenya 2010. That the Respondent failed to call for and/or examine any evidence in relation to the allegations that were made against him that resulted in his de-whipping, which allegations were otherwise orchestrated and choreographed.

8.On the question of IDRM, the Complainant averred that the Respondent and the 1^st Interested Party issued him with a Notice to Show Cause dated 23^rd October 2023, requiring him to show cause why disciplinary action should not be taken against him in respect of allegations that had been raised by the 2^nd and 3^rd Interested Parties on 21^st October 2023. He replied to the notice to show cause vide his letter dated 26^th October 2023, and no further response was issued to him save for the letter from the Respondent de-whipping him without being given a chance to defend his case.

9.The Complainant has, through 3 letters, dated 22^nd November 2023, 18^th December 2023, and 18^th January 2024, sought to have the matter amicably settled through IDRM in vain. His subject letters have neither been acknowledged nor responded to by the Respondent and the 1^st Interested Party. According to the Complainant, his attempts at IDRM have therefore been frustrated and/or unanswered, resulting into the continuing breach of his rights under the Constitution of Kenya and the party constitution.

10.Vide his Written Submissions dated 10^th April 2024, the Complainant has identified two main issues for determination, that is, whether the proceedings leading to his dewhipping were done in accordance with the law; and whether he is entitled to the reliefs sought.

11.On the first issue, the Complainant maintains that his de-whipping was done in breach of the law, as he was de-whipped without being granted a fair hearing contrary to the provisions of Article 47 and 50 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act. To this end, he relied in the case of Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board (2016) eKLR, and further referred the tribunal to Halsbury Laws of England 5^th Edition 2010 Vol. 61 at paragraph 639.

12.According to the Complainant, the powers of the 1^st Interested Party in matters discipline is limited to issuance of Notice to Show Cause under Rule 10 of the Respondent’s Disciplinary Committee Rules, and that there is no party law that grants him powers to impose disciplinary measures which is a function delegated to the Disciplinary Committee, and that the Respondent has, in any event, not furnished any evidence of allegations made against the Complainant. The Complainant further relied on the case of R vs Commissioner of Co-operatives ex-parte Kirinyaga Tea Growers Co-operative Savings and Credit Society Ltd (1999) EA 245.

13.With respect to the issue whether the Complainant is entitled to reliefs sought, the tribunal was referred to the cases of Judicial Service Commission vs Mbalu Mutava & Another (2014) eKLR; Dry Associates Limited vs Capital Markets Authority & Another (2012) eKLR;Attorney General vs Kituo Cha Sheria & 7 Other (2017) eKLR; Kenneth Njiru Njorani vs Dodhia Packaging Limited Case No. 431 of 2010; and James Orengo vs Attorney General Nairobi HCCC 207 of 2002, amongst others, and maintains that the Complainant is entitled to the reliefs sought.

The Response by the Respondent and the 1^st Interested Party

14.In opposition to the Complaint, the Respondent and the 1^st Interested Party relied on their Replying Affidavit sworn by Anthony Moturi on 25^th March 2024.

15.They aver that by a letter dated 21^st October 2023, the party received a complaint about the conduct of the Complainant. According to the Respondent and 1^st Interested Party, the complaints were of a grievous nature touching on the Complainant’s loyalty to the party. In consideration of the complaints, the 1^st Interested Party wrote to the Complainant, a letter dated 23^rd October 2023, requesting him to show cause. The Complainant respondent to the 1^st Interested Party vide the letter dated 26^th October 2023, wherein the Complainant denied all the complaints that had been made against him.

16.Pursuant to Rule 10(4) of the ODM Disciplinary Committee (Practice & Procedure) Rules 2022, the Respondent’s disciplinary committee is mandated to investigate into the conduct of a member who is accused of any form of misconduct. Given that the accusations against the Complainant were serious in nature, and further considering that he was in a pivotal position within the ranks of the party at the county level, the Complainant was de-whipped from two committees in the interim, pending investigation and consideration of the show cause notice and his response thereto.

17.According to the Respondent and the 1^st Interested Party, the Respondent’s Disciplinary Committee is still conducting investigations on the matter and shall revert with its findings, and that before a final decision is made by the Respondent’s Disciplinary Committee, the Complainant will be afforded an opportunity to state his defence, and to respond in detail to the allegations against him, in compliance with the party laws. Further, that the findings of the Disciplinary Committee will also go through the party organs before a final decision is made. It is therefore their case that this Complaint is premature as the matter is still pending before the party, and a final decision is yet to be made on the same.

18.It is the Respondent’s and the 1^st Interested Party’s further submission that the right to de-whip a party member is a sacrosanct right that can be exercised by the party as an interim measure pending disciplinary processes. That the spirit of temporary suspension of an office holder is entrenched in Articles 158(4), 168(5), and 251(4)(a) of the Constitution of Kenya, and that their action was therefore lawful. In any event, the Complainant shall not suffer irreparable injury as in the event the investigations are concluded and the complaints against him are found to lack merit, the Complainant will be reinstated with all the attendant benefits.

19.It is the Respondent and 1^st Interested Party’s submission that reinstating the Complainant to the pivotal duties to represent the Respondent, and yet he is accused of sabotaging the Respondent’s operations, shall be tantamount to usurping the Respondent’s right to discipline its members, and will be an outright contravention of the spirit of the Constitution of Kenya. They maintain that their actions were in compliance with the law, and further in tandem with Standing Order No. 157 of Kisii County Assembly. That a notice was duly issued through the letter dated 14^th November 2023 to the 5^th Interested Party, directing him to discharge the Complainant from the crucial committees in the House, and on 15^th November 2023, communication was made to the House discharging the Complainant from the County Assembly Committees.

20.The Respondent and 1^st Interested Party filed their Written Submissions dated 22^nd April 2024 and they have identified two main issues for determination, that is, whether the Complainant has exhausted the Respondent’s IDRM processes, and secondly, whether the Respondent retains the right to de-whip the Complainant.

21.On the issue whether IDRM was exhausted, they relied on the cases of Speaker of the National Assembly vs. James Njenga Karume (1992) eKLR; and William Odhiambo Ramogi & 3 Others vs Attorney General and 4 Others, Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR; and submitted that where there exists a sufficient and adequate avenue or forum to resolve a dispute to finality, a party ought to pursue that avenue or forum and not invoke the court process.

22.On the second issue, they submit that the right to de-whip a party member is a sacrosanct right that can be exercised by the party as an interim or even final measure pending the disciplinary processes as was done in this case. That the letter of 1^st November 2023 that set into motion the de-whipping envisaged that there was a process that was still to be done. In any event, the removal of a member from a committee is a right preserved by the sponsoring political party vide the Standing Orders, in this case Standing Order No. 157 of Kisii County Assembly. That the decision to appoint and later de-whip the Complainant is and remains a political decision, and that the tribunal should not enter into the arena of making political decisions for political parties. They relied on the case of Blackburn vs. Attorney general (1971) 1 WLR 1037 .

The Response by the 2^nd and 3^rd Interested Parties

23.The 2^nd and 3^rd Interested Parties have opposed the Complaint vide their Replying Affidavit sworn by Henry Moracha on 6^th March 2024.

24.According to the said interested parties, the Complaint lacks merit. They confirm that they authored the complaint letter dated 21^st October 2023 highlighting incidences of the Complainant’s indiscipline, and that the process leading to the de-whipping of the Complainant was done in accordance with Article 86 of the Constitution of Kenya.

25.The 2^nd and 3^rd Interested Parties aver that they were privy to the fact that the Complainant was given an opportunity to respond to the Notice to Show Cause letter dated 23^rd October 2023, and that the Complainant responded thereto vide his letter dated 26^th October 2023. That dissatisfied with the response, the Respondent sent the letter dated 1^st November 2023 to the 3^rd Interested party’s office directing him to dewhip the Complainant in the interim as the Respondent contemplated on the next cause of action with regard to the complaint received.

26.That acting under the directions of the Respondent and pursuant to Standing Order No. 157 of Kisii County Assembly, the 3^rd Interested Party issued a notice through a letter dated 14^th November 2023 to the 5^th Interested Party directing him to discharge the Complainant from the Health Services Committee and the Budget & Appropriations Committee. On 15^th November 2023, a communication from the Chair was made to the House discharging the Complainant from the stated committees.

27.The 2^nd and 3^rd Interested Parties maintain that the Complainant was de-whipped in the interim in compliance with the law, and that the Respondent had already initiated a process in full compliance with the law, which process should be left to continue to its logical conclusion in accordance with the party laws.

28.The 2^nd and 3^rd Interested Parties filed Written Submissions dated 29^th April 2024 where they have identified two main issues for determination, that is, whether the process of de-whipping the Complainant was procedural; and whether the Complainant has exhausted all available remedies before approaching this Tribunal.

29.On the question whether the Complainant’s de-whipping was procedural, it is the 2^nd and 3^rd Interested Parties’ submission that due process was followed. That in consideration of the provisions of Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, what the constitution requires is the notification of the intention to take action against a person likely to be adversely affected, and the reasons for the intended action. There was a constitutional and statutory obligation placed on the Respondent to give the Complainant prior and adequate notice of the nature and reasons of the proposed administrative action and an opportunity to be heard.

30.On 1^st November 2023, the Respondent wrote to the Complainant informing him of the nature of the complainant and further requiring temporary de-whipping pending investigations and further action, and that the Complainant has not been de-whipped as alleged, but rather he is required to pave way for investigations and further action, which would in turn lead to the Complainant’s opportunity to be heard.

31.They further submit that the decision to add or remove a member from a House Committee within the County Assembly is not an administrative one, but is rather guided by the Standing Orders of the County Assembly.

32.With respect to the question whether the Complainant exhausted all available remedies before moving the tribunal, the 2^nd and 3^rd Interested Parties submitted on the doctrine of exhaustion and referred the tribunal to various cases including the 5 Judge Bench in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others, Muslim for Human Rights and 2 Others (Interested Parties) (2020) eKLR; R vs Independent Electoral & Boundaries Commission (IEBC) ex-parte National Super Alliance (NASA) Kenya & 6 Others (201) eKLR; and Geoffrey Muthiga Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR. They submit that from the record, it is clear that the matter is pending resolution before the party, and that this Tribunal therefore has no jurisdiction.

The Response by the 4^th and 5^th Interested Parties

33.The 4^th and 5^th Interested Parties have opposed the Complaint vide their Replying Affidavit sworn by Jacob M. Onkeo, the Acting Clerk of the Kisii County Assembly, on 6^th March 2024.

34.They aver that on 1^st November 2023, Hon. John Ombati, the Chief Whip in Kisii County Assembly, received a letter from the Respondent referenced de-whipping Hon. Amos Begi Onderi from County Assembly Committees, and highlighting incidences of indiscipline. Pursuant to Standing Order No. 157 Kisii County Assembly, the Speaker was notified that a County Assembly party that nominated a member to a select committee may give notice in writing to the Speaker, that the member should be discharged from the Committee, and that such discharge takes effect upon receipt of the said notice by the Speaker. Accordingly, on 14^th November 2023, and pursuant to the stated Standing Order No. 157, the Majority Chief Whip, Hon. John Ombati , gave a notice in writing that the Complainant be discharged from the Budget and Appropriations Committee and the Health Services Committee, and vide communication issued to the 4^th and 5^th Respondent on 15^th November 2023, the Complainant was discharged from the subject committees.

35.They aver that the 5^th Interested Party is guided by the Constitution of Kenya, Acts of Parliament and any rules of business that may from time to time be decided by Members of the County Assembly. They maintain that they were guided by Standing Order No. 157 of Kisii County Assembly.

36.It is further averred that the discharge of the Complainant was conducted in accordance with Section 14(4) of the County Governments Act, by ensuring that each Member of the County Assembly is appointed to at least one (1) committee, and that the Complainant is still a member of the Selection Committee.

37.The 4^th and 5^th Interested Parties accordingly maintain that they are neutral in political party issues as they do not take part in decision making or discharging members from House Committees, and that once a member has been discharged by their political party, the 5^th Interested Party is just but a conveyor belt to other members of the County Assembly as his task is merely to communicate the decision of a political party. They further aver that they are unnecessary parties to the Complaint as there is no allegation of breach of law that has been made against them, and further no reliefs have been sought against them.

38.The 4^th and 5^th Interested Parties filed their Written Submissions dated 29^th April 2024 wherein they have highlighted one issue for determination, that is, whether the 4^th and 5^th Interested Parties are necessary parties in these proceedings. According to them, from the factual exposition leading to de-whipping of the Complainant, they only acted in accordance with Standing Order No. 157 of Kisii County Assembly, and it is an established parliamentary practice that the 5^th Interested Party is merely a conveyor belt of information. He applies his mind to any communication or information received before admission and presentation before the House in order to comply with the Standing Orders of the County Assembly and to protect the dignity of the House. That they do not play a role in the political party disciplinary procedures and they should therefore not have been made parties to this Complaint. Issues, Analysis and Determination.

39.Flowing from the parties’ pleadings and submissions, we have isolated the following issues for our determination: -i.Whether the Tribunal has Jurisdiction/Whether the Complaint is Premature?ii.Whether the 4^th and 5^th Interested Parties are necessary parties in these proceedings?iii.Whether the process leading to the de-whipping of the Complainant was conducted in accordance with the law?

Whether the Tribunal has Jurisdiction/Whether the Complaint is Premature

40.We have, in the foregoing paragraphs, highlighted the grounds upon which the Respondent, and the 1^st, 2^nd and 3^rd Interested Parties, claim that the Tribunal has no jurisdiction as the instant Complaint is pre-mature. According to the Respondent, and the 1^st, 2^nd and 3^rd Interested Parties, this matter should be referred back to the Respondent to conclude its investigations as provided for under Rule 10(4) of the Respondent’s Disciplinary Committee (Practice & Procedure) Rules 2022 (the DC Rules), where-after the Complainant will be afforded a hearing before the Respondent makes its findings.

41.Several decisions have been handed down by the courts regarding the issue of jurisdiction. In Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1, Nyarangi, JA expressed himself as follows:“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given...Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

42.Similarly, the Supreme Court in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR expressed itself as follows:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

43.The Tribunal derives its jurisdiction from Article 169 (1) (d) of the Constitution of Kenya 2010, as read together with Section 40 of the Political Parties Act, 2011 (the PPA). Section 40 of the PPA provides 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.

44.The instant Complaint is between members of a political party and a political party thus falling under Section 40(1)(a) and (b) of the Political Parties Act 2011 (the PPA). Section 40(2) of the PPA requires that the Complainant adduces evidence of an attempt to subject the dispute to the Respondent’s internal dispute resolution mechanism (IDRM) prior to moving the Tribunal. This is akin to the doctrine of exhaustion of remedies which is now of esteemed juridical lineage in Kenya.

45.We have further considered the doctrine of exhaustion as espoused in the judicial authorities that were relied upon by the Respondent and the 1^st, 2^nd and 3^rd Interested Parties. The Court of Appeal considered the issue of doctrine of exhaustion in depth in NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) where it observed that;“The principle running through these cases is where there was an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it…’’.(emphasis given).

46.The foregoing decision was upheld by the Supreme Court in Abidha Nicholus v Hon Attorney General and Others (SC Pet. No. E007 OF 2023).

47.The Court of Appeal in William Odhiambo Ramogi & 3 others v Attorney General & 4 others ; Muslims for Human Rights & 2 Others (interested parties) (2020)e KLR further explained exceptions to the doctrine of exhaustion and the threshold of determining whether or not exhaustion of the alternative mechanisms could be excused. The Court in the William Odhiambo Ramogi decision relied on the decision in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, and stated:-‘After exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus: ‘’What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.’’

48.The Court then concluded:-‘’60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62.In the instant case, the Petitioners allege a violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.’’

49.Against the foregoing legal background, the main question that we would wish to address our mind to is whether the Complainant provided evidence of an attempt at IDRM and/or whether the dispute is still pending before the party.

50.On IDRM, it is our understanding that all parties agree that the complaints against the Complainant that led to him being de-whipped were referred to the party. The Complainant, the Respondent, and the 1^st, 2^nd and 3^rd Interested Parties have all referred us to the NTSC dated 23^rd October 2023 and the Complainant’s response dated 26^th October 2023. According to the Respondent and the 1^st Interested Party, the complaints are still under investigations pursuant to Rule 10(4) of the DC Rules. The Complainant on the other hand, does not believe that the party is keen to grant him a fair hearing and/or resolve the matter, as a decision to de-whip him has in any event already been made. According to him, he did not receive any communication after his letter dated 26^th October 2023 responding to the NTSC. He wrote further reminder letters dated 22^nd November 2023, 18^th December 2023 and 18^th January 2024 in vain.

51.We have perused the Complainant’s letter of 22^nd November 2023, which letter was written about one month after the Complainant responded to the NTSC vide his letter dated 26^th October 2023. In this letter, the Complainant stated that despite his efforts to try and defend himself on the allegations made against him, he had not received any further communication from the Respondent and the 1^st Interested Party on the purported allegations. He stated that the complaints against him were mere allegations and called for proper investigations to be conducted so that he is not wrongfully punished. There is, however, no evidence that the Complainant’s letter of 22^nd November 2023 referred to above was ever responded to.

52.We have further perused the Complainant’s further letter dated 18^th December 2023 wherein he once again requested that the disputed complaints be referred to the Respondent’s IDRM, and that he be granted an opportunity to be heard before any drastic measure is taken against him. Again, no evidence has been placed before us to demonstrate that this letter was responded to.

53.We have seen the Complainant’s further reminder letter dated 18^th January 2024 which we note was also not responded to.

54.Considering that the Respondent and the 1^st Interested Party did not respond to any of the afore-mentioned letters that were written to them, we are not persuaded that the Respondent and the 1^st Interested Party are genuinely interested in resolving the dispute at the party level. Had this been the case, the Respondent and 1^st Interested Party would have, at the very least, responded to the Complainant’s letters with an update on status and/or advised him appropriately.

55.We have further considered the Respondent and the 1^st Interested Party’s claim that the complaint is still under investigation under Rule 10(4) of the DC Rules. We note that the Objects and Guiding Principles of disciplinary proceedings under the DC Rules are espoused under Rule 3 as follows: -“

(1)The object of these Rules is to provide the procedure for just, lawful, efficient, expeditious, proportionate, procedurally fair and affordable resolution of complaints by the Committee.

2.In the exercise of its powers and authority, and in the due discharge of its functions under these Rules, the Committee shall be guided by the following principles– (a) Justice shall be administered to all irrespective of status.b.Justice shall be administered without undue regard to procedural technicalities.c.Efficient use of available Party and administrative resources.d.Timely and affordable disposal of complaints.e.The use of appropriate technology.

3.The Committee shall be guided by rules of fair administrative action and natural justice in its processes and procedures, and in particular, that:a.any party to proceedings before the Committee shall have reasonable notice of the proceedings;b.any person whose rights are likely to be affected shall be given reasonable opportunity to present their case before the Committee; andc.there shall be a presumption of innocence of any party who is subject to proceedings before the Committee…”

56.And Part II of the DC Rules makes provision for Complaints handling process. Rules 10 and 11 of the DC Rules provide: -“

10.Notice to Show Cause1.The National Chairperson shall review the received complaint, and where it appears to him or her that it discloses a disciplinary offence, shall issue a show cause letter to the person against whom a complaint has been lodged to answer the complaint within a reasonable period.2.The show cause letter shall state the alleged violation, offence or such other matter that the member is accused of.3.The member against whom a complaint has been lodged shall respond to the show cause letter in writing within the period set out in the letter.4.In the exercise of the functions under this rule, the National Chairperson may constitute a team to act in advisory capacity, to conduct investigation, enquiry or review into such matters as he or she may deem relevant to the complaint.5.The team constituted under this rule may be appointed from among members of the Party’s Legal Committee, National Elections Board, National Secretariat or such other relevant Party organ, as may be necessary to assist the National Chairperson perform the functions under this rule.

11.Decision to Charge or not to Charge(1)At the expiry of the period within which a response is to be made, the National Chairperson may proceed as follows:(a)Where there is no response to the show cause letter, the National Chairperson shall either refer the matter to the Committee for further review and/or action or direct the Secretariat to close the matter. (b) Where there is a response, review the response and if satisfied that the issues in the complaint have been adequately addressed in the response issue direction to the National Secretariat to close the matter and advice the complainant accordingly.c.Where the National Chairperson may require further information and/or clarification, he or she may seek the further information and/or clarification from any of the parties, the Secretariat and/or any other organ of the Party.c.Where the Chairperson is of the considered view that the person against whom a complaint has been lodged has a case to answer, refer the matter to the Disciplinary Committee.2.Where the National Chairperson makes a decision to refer a complaint to the Committee under sub rule (1)(d) above, he or she shall forward the following documents to the Committee:a.The Decision to Charge.b.The complaint.c.The notice to show cause letter.d.The response to the notice to show cause.e.Any document that the National Chairperson is of the considered view may assist the Committee to determine the complaint.3.The Decision to Charge may take any such form as the National Chairperson deems fit. (4) A party may withdraw a complaint at any time before a Decision to Charge has been made by the National Chairperson…”

57.In this case, as we have already highlighted above, it is not in dispute that a NTSC letter dated 23^rd October 2023 was issued to the Complainant in accordance with the afore-highlighted provisions of Rule 10(1) of the DC Rules. The Complainant responded to the NTSC within the prescribed timelines, vides his letter dated 26^th October 2023, in compliance with the above provisions of Rule 10(3) of the DC Rules.

58.We note that Rule 10 (4) empowers the National Chairperson to constitute a team to act in advisory capacity, to conduct investigation, enquiry or review into such matters as he or she may deem relevant to the complaint. However, contrary to the contentions by the Respondent and the 1^st Interested Party, no evidence has been furnished of any such team that may have been constituted by the 1^st Interested Party or any investigations that were being carried out.

59.Further, pursuant to the above provisions of Rule 11(1)(b) & (d) of the DC Rules, at the expiry of the period within which a response to the NTSC is to be made, the National Chairperson, upon receipt of the response, reviews the same and either closes the matter if satisfied with the response, or refers the matter to the Disciplinary Committee if he is of the considered view that there is a case to answer. We note that Rule 11(1)(c) of the DC Rules allow the National Chairperson to seek further information and/or clarification from any of the parties, the Secretariat or any party organ. However, no evidence has been adduced before us to demonstrate that the 1^st Interested Party sought for further information and/or clarification.

60.We further note with concern that whereas the National Chairperson, the 1^st Interested Party herein, is in fact the person who authored the NTSC, and is also the person who has the powers to constitute a team to conduct investigations and/or seek more information as highlighted in the foregoing provisions of the DC Rules, the National Chairperson did not swear any Affidavit to speak to the Complaints handling process that he purportedly undertook under the DC Rules and/or any pending investigations.

61.We have further considered the passage of time from the date the NTSC letter was issued to the date of filing this Complaint, and we are of the view that had the Respondent or 1^st Interested Party been interested in resolving the matter at the party level, they would have done so within reasonable time. The Respondent had more than three months between the date the complaints were presented to it and the date this matter was filed before this Tribunal. Suffice it to note that the DC Rules speaks to timely resolution of disputes, and has even provided set timelines for the conduct of disciplinary proceedings before the Disciplinary Committee. Therefore, the fact that the Respondent and 1^st Interested party took all that time and still did not respond to the Complainant’s reminders, in our opinion, offends the guiding objects and principles of dispute resolution as enshrined in the DC Rules, and is a clear indication that the Respondent and the 1^st Interested Party had no bona fides intention to have the matter resolved conclusively at the party level.

62.The Tribunal in the case of Ibrahim Abdi Ali v Mohamed Abdi Farah & Another held that:“Where a party can show that he made honest attempts at resolving the dispute with the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving to the Tribunal even where his party has not concluded a hearing and a determination of his matter…”

63.And in PPDT Complaint No. 3 of 2018 Amos Murigi vs. Jubilee Party & 4 Others, the tribunal observed and held as follows:-“

24.It is clear from the foregoing that the Petitioner made an attempt at pursuing internal party dispute resolution as contemplated under section 40(2) of the PPA. The Tribunal has taken and continues to take a flexible approach in considering whether a party has taken sufficient steps in an attempt to have the political party resolve his/her dispute. The tribunal appreciates the minimum control over the course of the dispute that a party retains beyond the party’s notification and request to the political party to resolve the dispute. There was no submission of any further or additional action that had been taken by the political party since the failed attempted mediation of 25/26 January 2018. The Petition herein was filed on 30^th January and at the time of final submissions, on 13^th April 2018, no update of such internal process was provided. We are thus not persuaded by the said Respondent’s arguments that the Petitioner should await the internal process for him to take any further steps.

25.Whereas PPDT has in many instances recognized that IDRM forums have wide powers that allow for fuller interrogation of any allegations by the various actors that would allow for a clear picture of issues in dispute, this tribunal has on previous occasion held that IDRM processes must be conducted in a timely and transparent manner (Tom Mboya Hillary vs Amani national Congress PPDT Complaint No. 23 of 2017).

26.In view of the foregoing this tribunal concludes that it is properly seized of the matter and will proceed to hear the substantive claim….”

64.This tribunal has also considered what amounts to an attempt at IDRM in various cases. In the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022), the Tribunal held that:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011.”

65.Taking into consideration the facts and circumstances of this case and the foregoing exposition on the applicable law and judicial authorities, we find that the Complainant has demonstrated evidence of attempts at IDRM, which efforts were frustrated by the Respondent and 1^st Interested Party. The unsubstantiated claim by the Respondent and the 1^st Interested Party that the matter is still pending investigations is in our opinion an afterthought and is at best intended to defeat justice. Accordingly, we find that we have jurisdiction.

Whether the 4^th and 5^th Interested Parties are necessary parties in these proceedings?

66.The 4^th and 5^th Interested Party have raised this issue in their submissions, claiming that it was not necessary to join them in these proceedings, as they did not make the impugned decision to de-whip the Complainant. That their role was to simply apply the Standing Orders of Kisii County Assembly and communicate the decision of the Respondent to the County Assembly. They therefore pray that the case against them be struck out.

67.In consideration of this issue, it is noteworthy that the parties raising this issue have been joined in these proceedings not as substantive parties, but as interested parties. The explanation given by the Complainant is that they are the ones who effected the impugned decision of the Respondent and the 1^st Interested Party and that they are likely to be affected by these proceedings and will also be the implementors of any decision of this Tribunal.

68.Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party as person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.

69.Black’s Law Dictionary defines an Interested Party as “a party who has a recognizable stake (and therefore standing) in the matter.”

70.Further, The Supreme Court of Kenya in Communications Commission of Kenya and 4 Others …Vs… Royal Media Services Limited & 7 Others Petition No. 15 OF [2014] eKLR defined who an Interested Party is, and held as follows:“An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:i.Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;ii.Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;iii.Joinder to prevent a likely course of proliferated litigation….”

71.Considering the definition of an interested party and their role in proceedings before the Court as underscored above, and further considering that the 4^th and 5^th Interested Parties have participated and shed more light in this matter thus supporting in settling all the questions in these proceedings, we find no reason to fault the Complainant for having included the 4^th and 5^th Interested Parties as interested parties in these proceedings. Needless to note, the 4^th and 5^th Interested Parties are, in any event, likely to be affected by the decision of the Tribunal. We accordingly reach a finding on this issue in the affirmative.

Whether the process leading to the de-whipping of the Complainant was conducted in accordance with the law?

72.According to the Respondent and the Interested parties, due process was followed prior to de-whipping the Complainant. The Respondent and the 1^st Interested Party claim that there were complaints that had been levelled against the Complainant and that they de-whipped the Complainant in the interim pending further cause of action by the party.

73.In consideration of this issue, we are mindful of the settled legal position that the election of party leadership or Committee membership in the County Assembly or the National Assembly is a political matter involving the internal affairs of the political party. We for instance refer to the reasoning of the Court in the case of Born Bob Maren v Speaker Narok County Assembly & 3 others [2015] eKLR, where it was held, inter alia:-“Although the positions of the Majority and Minority Party Leaders are created under section 10 of the County Governments Act, it is the Standing Orders which provide for the process of election and removal of the Majority and Minority Party Leaders by the party members. The process is clearly a matter involving the internal affairs of a political party as the Petitioner has conceded in his submissions. His further submissions that the matter ceases to be such once the party decision is communicated to the County Assembly is difficult to accept for the following reason.The Minority or Majority Party Leader comes into office through an election which is an expression of the wishes, of his party. Equally he remains in office at the pleasure of his party. As Majanja J. succinctly stated in Republic –Versus- County Assembly of Migori & 4 others Ex parte Johnson Omollo Owiro:“The election of the Majority Leader is a prerogative of the members of the party or coalition having the Majority in the Assembly……His position is in the hands of the Party or coalition……….”.….I too find that the questions relating to the process and the decision by the Minority Party to remove the Petitioner from the position of the leader of Minority Party and to replace him with the 3^rd Respondent is a political matter involving the internal affairs of the Minority Party or parties. The minutes of the meeting of 9/9/14 demonstrate this fact starkly. Parliament, in recognition that such disputes will occur within political parties, has provided a mechanism for dealing with them. Hence the provisions of Sections 39 and 40 of the Political Parties Act. Section 39 provides for the establishment of the Political Parties Disputes Tribunal while Section 40 sets out its jurisdiction.”

74.Without necessarily departing from the above reasoning, and in consideration of instances where political parties invoke disciplinary processes as a pre-condition for discharging a party member from party leadership or membership in the House Committee in the County or National Assembly, we have remained consistent that in the exercise of any such internal party disciplinary process leading to discharging a member from the leadership or membership in House Committee in the County or National Assembly, there must be regard to due process and observance of the rule of law.

75.Indeed in the case of PPDT Complaint No. 11 of 2019, Hon. Hassan Abdi Guyo vs. Jubilee Party of Kenya & Another we observed thus: -“…It is expected of political parties that they must manage their activities, including discipline of its members. The key factor is that all these must be done in line with the constitutional values and principles and also in accordance to the party laws…”

76.Similarly, in the case of PPDT Complaint No. 1 of 2019, Hon. Aisha Jumwa vs. ODM & Another, we stated as follows: -“…This Tribunal appreciates the right of political parties to discipline their members as protected under the provisions of the PPA. The process must, however, be procedurally fair and according to the constitutional and statutory enactments especially where the results of the process would adversely affect the rights and fundamental freedoms of the person against whom administrative actions and decisions are taken…”

77.Therefore, noting that the reason for de-whipping the Complainant herein was attributed to allegations of misconduct and that a disciplinary process that was referred to, it is thus inescapable for the tribunal to examine the disciplinary process that parties submitted on, with a view to determining whether the Complainant was de-whipped in accordance with the due process and the law. As already highlighted, the Respondent submitted that the Complainant’s disciplinary process was pursuant to the party Constitution and the DC Rules. Whereas we were not referred to the specific provisions of the party constitution, we were nevertheless taken through the disciplinary rules which we shall rely on in making our determination.

78.We had highlighted the Objects and Guiding Principles of the Disciplinary Rules above. Needless to note, the same uphold the constitutional provisions on the right to fair hearing and fair administrative action and the application of the rules of natural justice. It therefore goes without saying that the Respondent is bound by the said laws and rules in the conduct of its disciplinary proceedings.

79.Article 47 of the Constitution provides on the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This constitutional provision has been effectuated by the Fair Administrative Action Act, 2015. The status of fair administrative action in Kenya’s constitutional and jurisprudential framework was discussed by Onguto, J in Kenya Human Rights Commission vs NonGovernmental Organizations Co-ordination Board [2016] eKLR a case in which the powers of the same Respondent were in question, in which the learned Judge expressed himself inter alia as follows:“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied] Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.The Petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heardstates that:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”

80.As we have already observed, it is not in dispute that the Complainant was issued a notice to show cause letter dated 23^rd October 2023 (NTSC), which NTSC was responded to vides the Complainant’s letter dated 26^th October 2023. It is further not in dispute that on or about the 1^st November 2023, the 1^st Interested party wrote a letter to the Majority Whip directing him to de-whip the Complainant from the House Committees as the party contemplates the next cause of action.

81.It is noteworthy that as at 1^st November 2023 when the 1^st Interested Party directed the Majority whip to de-whip the Complainant, the Complainant had already responded to the NTSC, and also requested for a hearing as we have already highlighted above. Be that as it may, it appears that there was no due consideration of the Complainant’s response and request. The Respondent and 1^st Interested Party instead contend that the accusations that had been made against the Complainant were so serious such that there was need to de-whip him in the interim pending further action. They have, however, not furnished any evidence before us in support of the alleged complaints.

82.In consideration of the foregoing laws and judicial precedents and the facts and circumstances of this case as highlighted above, it is our considered opinion that the Complainant was not accorded a fair hearing and/or fair administrative action prior to arriving at the decision to de-whip him on account of indiscipline. As we had already observed, the record reflects that the 1^st Interested Party did not consider his response to the NTSC prior to issuing the directions to have him de-whipped pending further party processes. Interesting to note is that there is no evidence or any communication that was issued to the Complainant informing him that he was being de-whipped pending further action. None of the correspondences that were referred to by the Respondent and the 1^st, 2^nd and 3^rd Interested parties were copied to and/or addressed to the Complainant. As we have already observed, the Complainant wrote three reminder letters requesting to be heard in vain. What therefore comes out clearly to us is that the Complainant was denied an opportunity to be heard.

83.We have further gone through the Respondent’s disciplinary process as outlined in the DC Rules that we had already referred to above, and we note that there is no provision that in any event grants the National Chairperson of the Respondent the powers to make any interim recommendations and/or directions to de-whip a party member in the interim as was done in this case, or to make any other interim recommendations/directions pending disciplinary process. We had already highlighted the role of the National Chairperson in the disciplinary process as provided for in Rules 10 and 11 of the DC Rules referred to above. Part VI of the DC Rules expressly provide that any disciplinary recommendations may only be made by the Disciplinary Committee. We are therefore not persuaded that it was within the powers of the 1^st Interested Party to de-whip the Complainant in the interim as purported in the letter of 1^st November 2023.

84.In PPDT Complaint No. 013 of 2021, Hon. Kieru John Wambui & Another vs Jubilee Party 7 5 Others, wherein the Complainants successfully challenged their removal from the Nyandarua County Assembly Service Board, we stated as follows:- “…35. We thus have no further information that would show the local process that was applied by the party at the county level and whose resolution was adopted at the national level. This is contrary to what the Respondent, 1^st, 4^th and 5^th Interested Parties imply. The Complainants have conversely, stated that they were never aware of any process and were only advised of the resolution. We are swayed to the side of the Complainants that there was no process and the impugned decision was arbitrary.36.In view of the foregoing, we find that the impugned communication from the political party (the Respondent herein) through its acting SG (the 1^st Interested Party herein) was unjustified…”

85.Taking into consideration the totality of the foregoing circumstances, we reach a finding on this issue in the negative.

What are the appropriate reliefs to grant?

86.Having found merit in the Complainant’s claim, we are inclined to allowing the same in terms of prayers number 1 to 4 thereof. On the question of costs, we are of the considered opinion that each party should bear its own costs in the interests of fostering party unity.

87.Accordingly, we order as follows: -i.A declaration be and is hereby issued that the process of de-whipping the Complainant from the Committee of Budget and Appropriation in Kisii County Assembly was a total violation of his right as a bona fide member of the Respondent.ii.An Order be and is hereby issued for reinstatement of the Complainant herein to his position as Chairman in the Committee of Health Services, Kisii County Assembly with full salary and attached benefits.iii.An Order be and is hereby issued for reinstatement of the Complainant herein to his position as member of the Committee of Budget and Appropriations and the Committee on Health Services, Kisii County Assembly with full salary and attached benefits.iv.A Declaration be and is hereby issued that the communication from the Respondent through the 1^st Interested Party dated the 1^st day of November 2023 purporting to de-whip the Complainant from the Kisii County Assembly Committees is null and void.v.Each party shall bear its own costs of these proceedings.Orders accordingly.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 13^TH DAY OF MAY 2024.HON .DESMA NUNGO HSC - CHAIRPERSONHON. STEPHEN MUSAU - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER

Onderi v Orange Democratic Movement Party; Mbadi & 4 others (Interested Parties) (Complaint E001 (KSM) of 2024) [2025] KEPPDT 5 (KLR) (13 May 2025) (Judgment)

Onderi v Orange Democratic Movement Party; Mbadi & 4 others (Interested Parties) (Complaint E001 (KSM) of 2024) [2025] KEPPDT 5 (KLR) (13 May 2025) (Judgment)

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1.	Constitution of Kenya	35693 citations
2.	Fair Administrative Action Act	2484 citations
3.	County Governments Act	1656 citations
4.	Political Parties Act	661 citations