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Otuge & 7 others v CEO/Executive Director, Orange Democratic Movement Party & 7 others (Complaint E005 (KSM) of 2024) [2025] KEPPDT 8 (KLR) (26 February 2025) (Judgment)

Otuge & 7 others v CEO/Executive Director, Orange Democratic Movement Party & 7 others (Complaint E005 (KSM) of 2024) [2025] KEPPDT 8 (KLR) (26 February 2025) (Judgment)
Citation
Otuge & 7 others v CEO/Executive Director, Orange Democratic Movement Party & 7 others [2025] KEPPDT 8 (KLR)
Media Neutral Citation
[2025] KEPPDT 8 (KLR)
Court
Political Parties Disputes Tribunal
Outcome
Struck out
Case number
Complaint E005 (KSM) of 2024
Judges
D. Nungo, AA Abdikadir, T. Chepkwony
Judgment date
26 February 2025
Language
English
Type
Judgment
Original source file
Download DOCX (88.0 KB)
Collections
Date published
20 June 2025
Case action
Judgment
Filing county
Nairobi
Order
i. That the complaints in the Amended Complaint dated 20th January 2025 revolving around the validity of the elections of 27th November 2024 and prayers (b), (c), (e), (f) and (g) thereof were struck out for want of jurisdiction. ii. That the contents of the Report titled ‘Report on Disputes in Kisumu East and Rongo Party Branches’ dated October 2023 were quashed in so far as the same related to the 1st and 2nd Complainants. iii. Each party to bear its own costs of the proceedings.
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Introduction
1.These proceedings were originated by the Statement of Complaint dated 19th November 2024, later amended on 20th January 2025 (the Complaint), which complaint was filed by 8 elected members of the O.D.M. Kisumu East Branch, having been elected in the year 2015, and their term extended by the National Delegates Conference of 2022.
2.The complainants contend that they were illegally removed from their positions in the party leadership pursuant to an illegal meeting convened between the 3rd Respondent and delegates from the 2nd Respondent’s National Executive Committee. The complainants aver that the meeting was convened on the basis of false allegations of instigating violence against fellow elected leaders. The complainants allege that the ouster led to their being locked out of the party’s grassroots elections held on the 27th November, 2024, the ramifications of which being that they lost their positions.
3.Consequently, the Complainants filed the instant amended complaint and are seeking the following orders;-a.An order of permanent injunction restraining the new office holders namely Steve Ouma Owiti (Branch chair), Oscar Nyangweso (secretary), Alex Ombago (assistant secretary), Grace Jowi Jobita (women league leader), Haroun Kodiwuor (youth league chairperson), Joash Ligo (chair Nyalenda A ward), Ali Hassan Akako (chair Manyatta B ward), Eliakim Ogai (chair Kagulu Ward), all recently appointed by the defendants herein restraining them, their agents, representatives, assigns or any other person acting through them, from holding office in O.D.M. Kisumu East Branch based on any recommendation of the October, 2023 report.b.An order of permanent injunction restraining the new office holders namely Steve Ouma Owiti (Branch chair), Oscar Nyangweso (secretary), Alex Ombago (assistant secretary), Grace Jowi Jobita (women league leader), Haroun Kodiwuor (youth league chairperson), Joash Ligo (chair Nyalenda A ward), Ali Hassan Akako (chair Manyatta B ward), Eliakim Ogai (chair Kagulu Ward), all recently appointed by the defendants herein restraining them, their agents, representatives, assigns or any other person acting through them, from holding office in O.D.M. Kisumu East Branch as a result of the elections held on the 27th November, 2024.c.An order quashing the decision that barred the complainants from running in the elections of 27th November 2024 based on the report of November 2023.d.An order quashing the report of the committee as it is injurious to the reputation of the complainants as persons who have held public offices before in their careers.e.An order nullifying the elections held on the 27th day of November, 2024, by the 2nd Respondent in Kisumu East Branch.f.An order compelling the 2nd Respondent to conduct fresh elections in Kisumu East Branch.g.An order compelling the 2nd Respondents to clear the Complainants and allow them to run in the repeat elections in Kisumu East Branch.h.Costs of this suit.
4.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 oral submissions.
5.The complainants were represented by Sala & Mudany Advocates, while the Respondents were represented by Makori & Karimi Advocates.
The Complainants’ Complaint and Submissions
6.The Complainants relied on the Amended Complaint, Witness Statements, List of Documents, Further List of Documents and Further Affidavit.
7.It is the Complainants’ claim that the substratum of the matter is a disagreement between the women league leadership and the Branch Organising Secretary, Joseph Omondi Ocholla.
8.That the complaint arose from an illegal meeting convened by the branch deputy chairperson on the 9th of March. As per the minutes of this meeting, the sub-branch committee unanimously passed a vote of no-confidence in the 1st Complainant and elected the 12th Respondent as the acting chairperson.
9.They further contend that the resolutions were forwarded as a complaint to the National Executive Committee of the 2nd Respondent through the 3rd respondent.
10.Consequently, the 2nd Respondent’s National Executive Counsel wrote to the 1st Complainant vide a letter dated 25th of August 2023, requiring him to respond to the allegations. The Complainant avers that he offered his response vide the letter dated 1st September, 2023.
11.It is their further contention that the National Executive Committee sent a delegation to investigate the allegations. The delegation comprised the national organizing secretary, the legal officer, the membership officer and a member of the national elections board.
12.The Complainants allege that the delegation held a consultative meeting instead of a hearing, and afterwards retreated to write a report. It is on the basis of that report that the Complainants claim that they were replaced by new members contrary to the party structure, which should have seen the matter referred to the National Disciplinary Committee. The Complainants decry the new members taking over their functions in a bid to validate their positions.
13.It is their position that during the grassroots elections conducted by the 2nd Respondent on the 27th day of August, 2024, the 12th Respondent was tasked with the mandate of conducting the elections and locked them out by directing the election officials to his home and rigging himself and the 5th to 11th respondents into the Kisumu East Branch leadership.
14.A further assertion on their part is the refusal of the Respondents to engage them through the Internal Dispute Resolution Mechanism as ordered in the Tribunal’s judgment dated 11th July, 2024, in respect of Complaint No. E003 of 2024.
The Respondents’ Response and Submissions
15.The Respondents oppose the amended Complaint dated 20th January, 2025. They rely on their Response dated 31st January 2025 and appurtenant annexures thereto.
16.It is the Respondents’ argument that being in receipt of the Kisumu East Branch Executive Committee resolutions to suspend the 1st complainant and pursuant to a visit by a delegation to the party’s headquarters on 24th August, 2023 raising many allegations against him, the National Office wrote to the 1st Complainant as well as the County Coordinating Committee.
17.They acknowledge receipt of the 1st Complainant’s letter dated 1st September, 2023 responding to the allegations, and state that they sent a delegation to probe deeper into the matter on 19th October 2023. The delegation then convened a meeting with branch members and officials and proceeded to table a report.
18.It is their position that the Complainants’ allegation of the dispute arising from a disagreement between the women league leadership and the Branch Organising Secretary, Joseph Omondi Ocholla, is a fallacy. Along the same lines, they dismiss the claim that the 12th Respondent was tasked with organizing the grassroots elections as non-factual. Furthermore, that none of the other Complainants were ousted, only the 1st Complainant.
19.It is their averment that any alleged faults with the grassroots elections should be addressed to the Polling Units Disputes Tribunal. Emphasis is similarly placed on the presence of an Internal Dispute Resolution Mechanism to which the Respondents maintain the dispute should be referred.
20.The Respondents expressly traverse the allegations against the dispute emanating from a member and the chairperson leading to a replacement of a majority of the Branch leadership and the existence of any meeting conducted on 7th March, 2023.Moreover, they deny receiving any demand or intention to sue from the Complainant.
21It is further argued that the Complaint is defective as it bypasses an extant IDRM within the 2nd Respondent. In addressing the failure to employ it as ordered by the court, the Respondents claim that since all seats had been declared vacant before the elections, the order was unenforceable.
12.Lastly, they firmly deny that the 12th Respondent was tasked with conducting the elections or executed any election malpractice, and summarily, they deny that the Complainants were locked out of the elections and put them to strict proof thereof.
Tribunal’s Analysis and findings
23.As emergent from the parties’ pleadings and submissions, we identify the following as issues for determination:a.Whether this Tribunal has jurisdiction to entertain this matter?b.If the foregoing question is answered in the affirmative, whether the Complainants were legally removed from their position; whether the grassroot elections were conducted in accordance with the law?c.What orders should the Tribunal grant?
Whether this Tribunal has jurisdiction to entertain this matter?
24.The definition and importance of jurisdiction was underscored by the Court of Appeal in Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR, where the court held:“It is a truism, jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction? In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”
25.The source and scope of Jurisdiction has been well addressed by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the judges held that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… 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.”
26.This Tribunal is established by Section 39 of the Political Parties Act (the PPA). The jurisdiction of this tribunal is derived from Section 40 of the PPA which states asfollows:“(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 nominations.(2)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.”
27.The question that begs to be answered is whether the Complainants complied with Section 40(2) of the PPA. According to them, they did comply by demanding for the party’s compliance with a previous Judgment of this Tribunal delivered in PPDT Kisumu Complaint No. E003 of 2024 Robert Oruko Otuge & 7 Other vs ODM & Others. They argue that the subject matter of this dispute had already been brought before the Tribunal and an order granted for reference to IDRM, which order the Respondents did not comply with. That this tribunal should in the circumstances assume jurisdiction. The Respondents on the other hand argue that the instant complaint has introduced a new cause of action which requires IDRM in the first instance.
28.We now proceed to examine the Judgment referred to delivered by this Tribunal in PPDT Kisumu Complaint No. E003 of 2024 Robert Oruko Otuge & 7 Other vs ODM & Others, as we also analyze the parties’ rival submissions on the question whether there was an attempt to subject the dispute herein to the party’s IDRM.
29.From our perusal of the pleadings on record, more specifically the Amended Complaint filed herein dated 20th January 2025, and the affidavits in support thereof, it is evident that the dispute in the instant complaint revolves around two main issues, namely, the ouster of the complainants from their positions, and the ODM Kisumu East branch grassroot elections conducted on 27th November 2024.
30.On the other hand, the dispute in PPDT Kisumu Complaint No. E003 of 2024 Robert Oruko Otuge & 7 Other vs ODM & Others, as can be deciphered from the Judgment delivered therein on 11th July 2024, concerned only the issue of the Complainants’ removal from their offices in the Kisumu East Branch. The gravamen of that complaint, to quote the Judgment in the matter, was“…specific violations, such as trying to organize the Kisumu Chapter branch without following the proper procedures, denouncing the complainants without giving them achance to be heard and designating an undefined delegation to handle issues…”
31.And the Orders issued in the said Judgment were to the following effect, that;- “The matter is referred to the party IDRM to be heard and determined within 30days. The Complainants are at liberty to submit a complaint with the Tribunal if, after 30days, they are still dissatisfied with the process or no proceedings have been undertaken or completed by the party…”
32.With the foregoing in mind, it is appreciable that the instant complaint differs considerably from PPDT Kisumu Complaint No. E003 of 2024 Robert Oruko Otuge & 7 Other vs ODM & Others. It introduced a new cause of action that was not subject of the Judgment in PPDT Kisumu Complaint No. E003 of 2024 Robert Oruko Otuge & 7 Other vs ODM & Others. The Complainants’ argument that this Tribunal should assume jurisdiction over this entire complaint, on the basis that it had already referred the dispute herein to IDRM, is in the circumstances not entirely persuasive. Therefore, as we address our minds to the question whether the instant complaint was subjected to the party’s IDRM in the first instance, it is inescapable to take into consideration the different aspects of the dispute as pleaded in this case.
33.To the extent that the subject matter of the dispute in the instant complaint concerns the ouster of the Complainants, we do appreciate that the same is similar with the subject matter of the dispute in PPDT Kisumu Complaint No. E003 of 2024 Robert Oruko Otuge & 7 Other vs ODM & Others. The Complainants argued that they wrote a demand letter calling on the party to comply with the aforementioned Judgment that had directed the party to resolve the matter through IDRM. Notably, the demand letter dated 29th October, 2024 is from the Complainants’ Advocate addressed to the 2nd Respondent’s Chief Executive Officer demanding the 2nd Respondent to fast track the resolution of the matter through IDRM, noting that there was already a delay of over three months in contrast to the Court’s deadline of thirty days. We note that no evidence has been tendered by the Respondents to show that they had started engaging the party’s IDRM.
34.This Tribunal is of the view that a generous amount of time has been afforded to the 2nd Respondent to resolve the dispute in regard to the validity of the Complainants’ ouster through the party’s IDRM. There is, however, no evidence of any response to the complaints’ demand letter dated 29th November 2024, and further no evidence of any attempts by the party to invoke IDRM. The only logical conclusion we can arrive at in the circumstances is that the party failed to and/or frustrated the Complainants’ efforts to invoke IDRM.
35.In analyzing whether the present circumstances warrant any exemption to the exhaustion requirement, it is necessary to consider the decision of this tribunal given by a differently constituted bench in Wanyonyi v Ford Kenya Party & 2 others [2022] KEPPDT 922 (KLR) stating,“….the party alleging to have attempted to invoke IDRM should show that, among others,:i.There is no duly constituted party organ charged with the responsibility of IDRM in the political party; or ii. 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; or iii. Reasonable time has been afforded to the political party to respond, constitute or activate an IDRM organ to hear and determine the dispute; iv. Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.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.”
36.This Tribunal also notes the decision of Nyamweya, J in Republic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd [2021] eKLR, which dealt with the exceptions to the doctrine of exhaustion, including the adequacy of the remedy sought in the internal process vis-à-vis court intervention. The learned Judge observed that,“In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the complainant with the outcome sought as a matter of substance. It is for this reason that section 9 (4) of the Fair Administrative Action Act, provides that the 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. (Emphasis added).”
37.Taking into consideration the exemptions to IDRM and/or the doctrine of exemption as enunciated in the above judicial authorities, we are of the considered view that the party’s failure to invoke IDRM notwithstanding our earlier orders amounted to frustrating attempts at IDRM. We accordingly agree with the Complainants that granted the circumstances of the case, this Tribunal can assume jurisdiction over the dispute revolving around the alleged removal of the Complainants.
38.With respect to the complaint revolving around the legality and/or validity of the grassroots elections conducted on the 27th of November 2024, it was the Respondents’ contention that the first port of call for dispute resolution should have been the Polling Units Disputes Tribunal, being the party’s IDRM. In response, the Complainants maintain that they pursued IDRM and they relied on their letter dated 27th November 2024 and an Mpesa receipt claiming the same to be evidence of payment of requisite fees for IDRM.
39.We have perused the Complainants’ Further Affidavit and Certificate of Electronic Evidence both dated 18th February 2025 together with the appurtenant Mpesa message relied on as proof of payment of the requisite fees for IDRM. We note that the subject Mpesa message confirms that there was a payment of Kshs. 3,000/- that was made on the 4th December 2024 to Mobifin Plus Limited for Account Number XXXXXXX. No evidence was, however, led to link these details with the 2nd Respondent. The recipient has not been shown to be directly tied to the 2nd Respondent, which leaves this Tribunal with no definite way of knowing what the payment was for, or if at all it reached the 2nd Respondent. This Tribunal is therefore wary of relying on the same to demonstrate payment of requisite fees towards IDRM and/or to demonstrate an attempt at engaging in IDRM. In the result, this tribunal does not subscribe to the Complainants’ submission that the payment made comprises evidence of a legitimate attempt at IDRM.
40.Secondly, we have considered the Complainants’ letter dated 27th November 2024 raising various irregularities in the grassroot elections that were conducted on 27th November 2024. We do note that this letter was written on the same date that the instant complaint was filed before the Tribunal. We in the circumstances ask ourselves several questions. Did the Complainants intend to have the party resolve the complaint via the party’s IDRM whilst at the same time pursuing the matter before this Tribunal? Could the party attend to the matter whilst the same was pending before the Tribunal? Was the party really accorded reasonable opportunity to attend to the complaint prior to approaching this Tribunal?
41.Faced with similar questions, this Tribunal, in PPDTC Nairobi A E111 of 2023 Suleka Hulbale Harun vs Mariam Sheikh Omar & Anor stated thus:-“
65.We have evaluated the record and we note that there has been produced a Complaint that was prepared for filing with the 2nd Respondent’s IDRM. The Complaint is dated 1st August 2022. The Complainant avers that her lawyer went to the 2nd Respondent’s offices on 2nd August 2022 and found the place closed. He nevertheless served the documents upon a security officer who accepted service at 3.50pm. The following day, she moved straight to the Tribunal to file the instant Complaint claiming that the party failed to respond.
66.We are at pains to understand how the complaint documents could be so casually lodged with the party through a security officer without a follow up. We find it strange that instead of the Complainant even making a follow up on the following day, being the 3rd August 2022, the Complainant elected to move straight to the Tribunal to file this Complaint. Even if it were to be argued that the complaint was successfully delivered to the party through the security officer, did the complainant expect the party to act between the evening of 2nd August 2022 and 3rd August 2022 when she elected to move the Tribunal? Was the party really granted reasonable time to respond or resolve the matter?
69.The foregoing unanswered questions in our considered opinion cast doubt as to whether the Complainant was genuinely and honestly desirous of having this matter resolved by the party in the first instance. It appears to us that the complaint documents intended to be lodged with the party were prepared as a mere formality and with the hope that they would qualify as an attempt at IDRM but with no real intention of subjecting the dispute to IDRM.…”
42.And in PPDTC Nairobi B E002 of 2023 John Macharia Gachiri vs United Democratic Alliance & Others, we similarly stated as follows:-“
27.We note that both the Petition and Notice of Motion Application instituting action in this matter are dated 24th July 2025, which implies that the subject pleadings were drafted on or before the 24th July 2023. We further note that this Complaint was filed in the tribunal’s e-filing portal on 25th July 2023. Considering the subject letter dated 27th July 2023 relied on by the Complainant to demonstrate an attempt at IDRM, it therefore follows that the pleadings in this case were drafted and filed two or three days before the Complainant wrote the subject letter dated 27th July 2023 inviting the party to look into the dispute. We have also considered the fact that the letter dated 27th July 2023 was served upon the 1st Respondent during the pendency of this Complaint. Considering all these, we are not persuaded that the Complainant made an honest bona fides attempt at IDRM prior to moving the tribunal. It appears to us that the letter dated 27th July 2023 was written as a mere formality without the real intention of letting the party adjudicate over the dispute in the first instance.
28.In finding that IDRM was not properly attempted, the Tribunal in the John Mworia Nchebere Case (supra) cautioned, at para 51 thereof, that ‘IDRM is neither a dress rehearsal, pit stop nor an ornamental provision’ in the Political Parties Act, but serves ‘a functional utility under Articles 38 and 159 of the Constitution’…”
43.Taking cue from our reasoning in the above cases and the observations we have made above concerning the letter dated 27th November 2024 and the date of filing the instant complaint, we find it difficult to accept the Complainants’ assertion that their said letter dated 27th November 2024 constituted evidence of an honest and genuine attempt at invoking the party’s IDRM in the first instance.
44.Therefore, in the absence of evidence of a genuine attempt at resolving the issue of elections via the extant IDRM, this Tribunal finds that all the complaints revolving around the conduct of grassroot elections of 27th November 2024 as presented before it vide the instant complaint are premature.
45.In the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) the court stated,“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…”
46.Accordingly, any purported attempt to address our minds to the validity of the grassroots elections and the prayers sought in relation thereto, to wit, prayers (b), (c), (e), (f) and (g) would be tantamount to vesting this tribunal with jurisdiction in breach of Section 40(2) of the PPA, and thus ultra vires. The only option available for us is to down our tools with respect to the subject complaint as we hereby do.
Whether the Complainants were legally removed from their position?
47.We are proceeding to analyze this issue in light of our finding above that we have jurisdiction to hear and determine the complaint revolving around the alleged ouster of the Complainants.
48.As we examine this issue, we remain alive to the judicially underscored position that whereas political parties have the power to whip and de-whip its members, this power cannot be absolute. 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…”
49.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…”
50.It is thus this Tribunal’s mandate to evaluate whether the alleged ouster of the complainants was undertaken in accordance with the law. We have analyzed the evidence presented by the parties and we do note that vides the Branch Executive Special General Meeting of 12th March 2023, it was resolved that the 1st Complainant be suspended from the position of branch Chairperson on account of various allegations. The Kisumu County Co-ordinating Committee endorsed the resolution and forwarded the same to the national secretariat.
51.In response, the national secretariat wrote two letters dated 25th August 2025, one addressed to the Chairperson of the 3rd Respondent, and the other addressed to the 1st Complainant. The one addressed to the Chairperson of the 3rd Respondent stated, inter alia, that the 1st Complainant’s ouster was done pursuant to Article 70 of the 2nd Respondent’s Constitution, and that he would be afforded an opportunity to be heard. The letter addressed to the 1st Complainant informed him of the allegations and invited him to respond to enable the party conclusively address the issues. The said letter restates verbatim, the provisions of article 71(2) of the O.D.M. constitution, which affords an office bearer adequate opportunity to defend himself prior to the ouster. The specific provision restated is,“It is hereby provided that prior to the removal of any office bearer, he/she shall be granted adequate opportunity to defend himself/herself against any allegations that may have been levelled against him/her.”
52.This Tribunal notes that Article 71(1)(f) of the party constitution permits for the ouster of an office holder upon the recommendation of sub-Branch Executive Committee, with the resolution of the National Executive Committee. The provision is set out as follows,“71(1) Any person holding an office in the Party shall cease to hold such office (f) Upon the resolution of the National Executive Committee that such person ceases to hold office. The National Executive Committee may make such resolution suo moto or upon the recommendation of the Disciplinary Committee, Polling Unit Steering Committee, Sub- Branch Executive Committee or Branch Executive Committee.”
53.Article 70 provides that where a vacancy occurs, the sub-branch committee may recommend a suitable replacement to assume the office with the resolution of the National Executive Committee, stating,“Where a vacancy arises in any office, Polling Unit, Sub-Branch, Branch and/or County and in the considered view of the National Executive Committee it is not possible or practical to hold an election to fill the vacancy so arising, the National Executive Committee, on the recommendation of the respective committee of the said Polling Unit, Sub-Branch, Branch and/or County where the vacancy has arisen, shall appoint a Party member to assume the vacant office for the remainder of the term or until such a time that an election will be held in respect thereof. It is hereby provided that the member so appointed to assume the vacant office would otherwise be qualified to be a candidate for that position if an election were to be held.”
54.The question that now begs to be answered is whether the 1st Complainant was afforded an opportunity to defend himself prior to his ouster?
55.We have already referred to the letter dated 25th August 2023 addressed to the 1st Complainant inviting him to respond to the allegations made against him. The record shows that the 1st Complainant did indeed lodge a response vide a letter dated 1st September 2023 through his advocate, and vide another letter of even date that he signed in person. To this extent, it would be arguable that the 1st Complainant was granted an opportunity to defend himself.
56.As stated in the letter dated 25th August 2023, the 1st Complainant was invited to respond to enable the party conclusively address the issues. However, there is no evidence before us to demonstrate how the party considered the 1st Complainant’s defence vis a vis the allegations made and the outcome of that process. There is no evidence that the party communicated the outcome to the 1st Complainant. This Tribunal is therefore left wondering how the 1st Complainants points of defence were considered as against the accusations that were levelled against him. Interestingly, the closest communication we have seen from the party is the letter from the 1st Respondent dated 8th February 2024 addressed to one Paul Akeyo, the ODM Chairman Kisumu County Coordinating Committee. The subject letter was copied to the 1st Complainant and it referred to a meeting that was held on 19th October 2023 giving rise to a Report dated October 2023.
57.Article 47 of the Constitution of Kenya and Sections 4 and 6 of the Fair Administrative Actions Act protects the 1st Complainant’s right to fair administrative action, which includes his right to be given written reasons of any administrative action or decision taken against him. Accordingly, whereas there is sufficient evidence to demonstrate that the 1st Complainant was granted an opportunity to defend himself against the allegations that were made against him as we have already highlighted above, there is no evidence of the party’s written decision and reasons thereof. Instead, we note that the party elected to send a delegation to visit the branch to gather more information, leading to the Report dated October 2003. Our view is that neither the Report dated October 2023 nor the letter dated 8th February 2024 constitute the party’s administrative decision or written reasons within the meaning of Section 6 of the Fair Administrative Action Act. We accordingly find that despite the fact that the 1st Complainant seems to have been granted an opportunity to defend himself, the party still ended up infringing his right to fair administrative action.
58.We have further perused the subject Report dated October 2023 and we note that various allegations were made against the 1st and 2nd Complainant in the subject meeting held on 19th October 2023. However, there is no attendance list that was produced to demonstrate that they were present in the said meeting. Further, whereas the report captures issues that were raised against them and the conclusions arrived at, there is no evidence of their participation, whether by themselves or through their representative. We therefore take issue with the contents of the Report which evidently demonstrate that the said Complainants were not heard prior to arriving at the conclusions made in the meeting of 19th October 2023, which conclusions were, needless to note, prejudicial to the 1st and 2nd Complainants.
59.As regards the rest of the Complainants, this Tribunal notes that there is insufficient information and evidence on record to support the alleged ouster and illegality claims. The only resolution relating to ouster, as confirmed by the 1st Respondent’s letter dated 25th August 2023, was with respect to the 1st Complainant. There is no official party record communicating the ouster of the rest of the Complainants. The Tribunal therefore has no basis for regarding them as having been ousted.
What orders should the Tribunal grant?
60.This Tribunal already downed its tools in respect of reliefs sought as a consequence of and/or revolving around the elections of 27th November 2024. It therefore follows that prayers (b), (c), (e), (f) and (g) cannot be granted. This therefore leaves us with prayers (a) and (d), and lastly prayer (h) on costs.
61.The Complainants have at prayer (a) sought for a permanent order for injunction to restrain the new office holders namely Steve Ouma Owiti (Branch chair), Oscar Nyangweso (secretary), Alex Ombago (assistant secretary), Grace Jowi Jobita (women league leader), Haroun Kodiwuor (youth league chairperson), Joash Ligo (chair Nyalenda A ward), Ali Hassan Akako (chair Manyatta B ward), Eliakim Ogai (chair Kagulu Ward), from holding office in O.D.M. Kisumu East Branch based on any recommendation of the October, 2023 Report. Notwithstanding our finding above, we find difficulty in granting this order as framed, as we are not persuaded that the election of the new office bearers was based on the recommendation of the October, 2023 Report. Our understanding is that grassroots elections, which were in any event already scheduled for the first quarter of the year as stated in the letter dated 8th February 2024, were actually conducted on the 27th of November, 2024. In other words, the grassroot elections were already in schedule and the same were not conducted as a consequence of the conclusions arrived at in the Report dated October 2023. The grassroot elections, it is submitted, brought on board new representatives of the Kisumu East Branch. Essentially, the elections of 27th November 2024 shifted the remedies available to the Complainants, and as we have already found, any complaints against the aforementioned elections, should have been directed to the IDRM in the first instance.
62.With respect to prayer (d), the Complainants seek an order ‘quashing the report of the committee as it is injurious to the reputation of the complainants as persons who have held public offices before in their careers.’ It is not clear to us which committee is being referred to in this case. However, we had already found that the 1st Complainant’s right to fair administrative action was infringed. We in addition expressed our reservations as to the manner in which the Report dated October 2023 was arrived at. It therefore follows that the Report dated October 2023 cannot stand in so far as it relates to the 1st and 2nd Complainants. It is in the interest of justice that the same be quashed, and we accordingly, to some extent allow prayer (d) in the Amended Complaint, to the extent that the Report dated October 2023 is quashed, in so far as it relates to the 1st and 2nd Complainants, for having been prepared in breach of the 1st and 2nd Complainant’s right to fair administrative action.
63.As regards costs, the law is that costs follow the event. In this case, the Complainants have only succeeded partially. Accordingly, we are of the considered view that each party should bear its costs of these proceedings.
Disposition
64.In light of the foregoing, we order as follows:i.That the complaints in the Amended Complaint dated 20th January 2025 revolving around the validity of the elections of 27th November 2024 and prayers (b), (c), (e), (f) and (g) thereof are hereby struck out for want of jurisdiction.ii.That the contents of the Report titled ‘Report on Disputes in Kisumu East and Rongo Party Branches’ dated October 2023 be and are hereby quashed in so far as the same relate to the 1st and 2nd Complainants.iii.Each party to bear its own costs of these proceedings.It is so ordered.
DATED AND DELIVERED (VIRTUALLY) AT NAIROBI THIS 26TH DAY OF FEBRUARY 2025.HON. DESMA NUNGO, HSC - (CHAIRPERSON)HON. ABDIRAHMAN ABDIKADIR - (MEMBER)HON. THERESA CHEPKWONY - (MEMBER)
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1. Constitution of Kenya 35692 citations
2. Fair Administrative Action Act 2484 citations
3. Political Parties Act 661 citations

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