[2025] KEPPDT 1 (KLR)

Angwenyi & 6 others v Kioni (Complaint E016 (NRB A) of 2024) [2025] KEPPDT 1 (KLR) (12 February 2025) (Judgment)

Neutral citation: [2025] KEPPDT 1 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E016 (NRB A) of 2024

D. Nungo, Chair, AA Abdikadir & T. Chepkwony, Members

February 12, 2025

Between

Jimmy Angwenyi

1st Complainant

Naomi Shabaan

2nd Complainant

Peter Mositet

3rd Complainant

Nelson Dzuya

4th Complainant

Joshua Kutuny

5th Complainant

Joel Kibe

6th Complainant

Jubilee Party

7th Complainant

and

Jeremiah Kioni

Respondent

Judgment

1. Vide Complaint dated 13th November 2024 (hereinafter referred to as the Complaint), the Complainants seek the following prayers from this Tribunal;-i.Declaration be and is hereby issued declaring that the notice dated 7th November 2024 is improper illegal and unlawful;ii.A declaration that the Respondent herein has no powers to unilaterally, independent of the National Management Committee to create and/or come up with his own agenda for consideration by the National Executive Committee of the Jubilee Party;iii.An order directing the Respondent herein to comply with the constitution of the jubilee party;iv.Costs of the complaint be awarded;

2. That further, vide the Notice of Motion Application dated 13th November 2024 that was filed together with the Complaint (hereinafter referred to as the Application), the Complainants sought the following orders;-i.Spent ii. Spent iii. Spent iv. Spentv.That the 1st to the 6th Complainants herein be allowed to attend to any and all Jubilee party organs meetings that they are members of without any limitations, and or restrictions by the Respondent or anyone working under the direction of the Respondent pending hearing and determination of the instant application.v.That the 1st to the 6th Complainants herein be allowed to attend to any and all Jubilee Party organ meetings that they are members of without any limitations, and or restrictions by the Respondent or anyone working under the direction of the Respondent pending hearing and determination of the instant applicationv.That the Honourable Tribunal be pleased and does hereby issue a conservatory order maintaining the membership of the 1st to the 6th Complainants as members of the National Executive Committee of the 7th Complainantv.Any other further orders the Honourable court deems fit and just to issue in the circumstances.v.That the costs of the application herein be provided for

3. Parties hereto entered into a consent to have the application subsumed in the Complaint and the two to be heard concurrently. Accordingly, hearing of the Complaint and application proceeded on the 29th January 2025 inter partes. The Complainants were represented by Omwanza Nyamweya Advocate, and the Respondent was represented by Mr. Awele Advocate and Mr. Nderitu Advocate.

Proceedings Before the Substantive Hearing 4. On the stated date of 29th January 2025, just a few minutes before the commencement of the substantive hearing of this Complaint, the Respondent’s Counsel, Mr. Awele, brought to the attention of the Tribunal that his client had re-considered the matter after the delivery of the Tribunal’s ruling on the Respondent’s preliminary objection, and he had instructions to enter into a consent with the Complainants that the impugned notices dated 7th November 2024 subject of the instant Complaint be withdrawn. According to the Respondent’s Counsel, the withdrawal of the notices would settle any other grievances in respect of the impugned meeting subject hereof. Counsel accordingly requested that the Complaint be marked as compromised with no orders as to costs.

5. In response, Counsel for the Complainants, Mr. Omwanza, indicated to the Tribunal that even though he had no problem with the intended withdrawal of the notices, his instructions were to proceed with the hearing of the Complaint in order for the Tribunal to pronounce itself on various issues revolving around summoning of meetings. He submitted that apart from the order specifically praying for a nullification of the impugned notices, there were other additional orders that they had sought for the Tribunal’s consideration.

6. In reply to the Complainants’ Counsel’s argument that there were additional orders sought that the Tribunal should decide on, Counsel for the Respondent argued that the outcome of the proceedings would be an academic exercise as the Tribunal would be merely giving an advisory opinion based on a moot matter, and with the likelihood of the Tribunal embarrassing itself by granting orders which were otherwise mischievous and unenforceable. That such orders would have far reaching consequences and would further be pre-emptive of future endeavors of the party. According to Counsel, it was not necessary to engage the Tribunal in such an academic exercise bearing in mind that should any future meeting be called and the Complainants find themselves aggrieved, they will still have recourse to this Tribunal.

7. There being no consent between the parties on compromising the Complaint in its entirety, the Tribunal directed the parties to elect to either proceed with the hearing as scheduled, or take some reasonable time to pursue a negotiated settlement. There was, however, no concurrence between the parties on taking time to pursue negotiated settlement, and the Complaint accordingly proceeded for hearing inter partes as scheduled.

8. It is noteworthy that the Respondent’s Counsel indicated to the Tribunal that he would let the inter partes hearing of the Complaint proceed substantively even though he had not filed a substantive response to the Complaint. The only document that was on record at the material time was the Respondent’s Replying Affidavit filed in response to the application.

The Complainants’ Pleadings and Submissions 9. The Complainants relied on the Complaint, the Application, and the Supporting Affidavits on record sworn by Nelson Dzuya on behalf of all the Complainants.

10. They contend that the National Executive Committee (NEC) of the Jubilee Party, the 7th Complainant herein, is an organ created and operationalized under Article 8. 2(1) of the 7th Complainant’s Constitution, and has its duties set out under Article 8. 2(2), (3), (4), (5) and (6). The Tribunal was referred to Gazette Notice No: 3194 of 22nd March 2022 which lists the current NEC members as duly upheld in a Judgment of the High Court delivered on 30th September 2024. That pursuant to the said gazette notice, the NEC members of the 7th Complainant are identified as follows:i.Party Leader - H. E. Uhuru Kenyattaii.Deputy Party Leader (Strategy) - Jimmy Angwenyi iii. Deputy Party Leader (Operations) - Kinoti Gatobu iv. Deputy Party Leader (Outreach) - Naomi Shabaanv.Deputy Party Leader (Programmes) - Peter Mositet vi. National Chairperson - Nelson Dzuya vii. Deputy National Chairperson - David Murathe viii. Secretary General - Jeremiah Kioni ix. Deputy Secretary General - Joshua Kuttunyx.National Treasurer - Kagwe Gichohi xi. Deputy National Treasurer - Ruweida Mohamed xii. National Organizing Secretary - Abdulkadir Haji xiii. Deputy National Organizing Secretary - Mutava Musyimi xiv. National Director Elections - Kanini Kega xv. National Deputy Director Elections - Rachel Nyamai xvi. Women League National Chairperson - Fatuma Gedi xvii. Youth League National Chairperson - Mulembe Mundalo xviii. Persons with Disabilities League National Chairperson - Wanja Maina (Ms.) xix. Council of Elders: National Chairperson - Njenga Mungai xx. Business Council: National Chairperson - Joel Kibe xxi. Parliamentary Secretary - Adan Keynan Wehliye xxii. Executive Director Wambui Gichuru (Ms.)

11. That without considering the above NEC membership, the 1st Respondent issued letters to only select members of the NEC to the exclusion of all the Complainants. To demonstrate this, they contend that on 7th November 2024, the Respondent issued letters to Hon. Kanini Kega, Hon. Hon. Captain Ruweida Mohamed, Hon. Hon. Adan Keynan, Hon. Hon. Mulembe Mundalo, Hon. Kinoti Gatobu, and Ms. Wambui Gichuru, requiring them to attend a NEC meeting set for 15th November 2024.

12. The Complainants further contend that the Respondent unilaterally, illegally, unlawfully and wrongfully, decided to expel six members of the NEC in outright breach of the party constitution, and further that the Respondent also unilaterally set the agenda for the NEC in contravention of Article 8. 3 (2) (c) of the party Constitution which provides that it is the duty of the National Management Committee (NMC) of the 7th Complainant to set the agenda for the NEC. That the NMC has never been summoned by the Respondent herein and thus has not set, approved and/or approved the placing of the agenda set out in the notice dated 7th November 2024 for discussion by the NEC.

13. That by failing to invite the 4th Complainant, who is the National Chairperson of the Respondent, the Respondent breached Article 10. 3 of the 7th Complainant’s Constitution which provides that it is the duty of National Chairperson, the 4th Complainant, to preside and chair any meeting of the NEC and the NMC. Further, it is submitted that Article 22 (3) of the party Constitution restates and reaffirms the position that NEC shall be convened in accordance with the party Constitution and the National Chairperson shall preside over the same. That having not invited 4th Complainant, the Respondent herein is wholly bent to have the Deputy Chairperson who is working in cahoots with the Respondent herein to overrun the other members of the NEC and force the acceptance of their agenda. That by ignoring, refusing and or denying the Complainants the opportunity to attend the said NEC meeting, the Respondent has infringed on the exercise of the political rights by the Complainants as set out under article 38 (1), (a), (b) and (c) of the constitution of Kenya 2010.

The Respondent’s Pleadings and Submissions 14. As we have already highlighted above, the Respondent’s Counsel indicated to the Tribunal that he would proceed with the hearing of this Complaint notwithstanding the fact that he had not filed any pleadings in response to the Complaint.

15. He contends that given that the Respondent had expressed his willingness to withdraw the impugned notice that according to him forms the substratum of the instant Complaint, this Tribunal will have to render a decision on legal issues and that they would not file any response. As regards the orders sought, he submitted that he had already expressed his apprehension on the same before commencement of the hearing. We have already highlighted the same above. In a nutshell, his position is that the Tribunal should not engage in what he considers to be an academic exercise given that the substratum of the complaint is moot, and further that there is a likelihood of the Tribunal embarrassing itself by granting orders which were otherwise mischievous and unenforceable, which orders would have far reaching consequences and would further be pre-emptive of future endeavors of the party.

16. Further, we had already acknowledged that the Respondent had earlier on filed a Replying Affidavit in opposition to the application. We will therefore proceed to highlight the averments contained therein as it already forms part of the record before us.

17. Vide the said Replying Affidavit, the Respondent avers that the Tribunal lacks jurisdiction to hear and determine this Complaint. This Judgment will not revisit the jurisdictional issues raised touching on Section 40 of the PPA as the Tribunal already considered the same and delivered its ruling on 10th January 2025.

18. In addition to raising the jurisdictional issue, the Respondent contends in his said Replying Affidavit, that the Complaint is defective as it was originated by the Complainants who acted in breach of the Orders of the High Court in ELRC Petition No. E008 of 2024, Joseph Kagai vs. Nelson Dzuya & 9 Others. The Respondent’s argument is that the Complainants do not deserve the orders sought as they failed to disclose to this Tribunal the full facts bearing on the Complaint. That the Complaint was in fact filed without the sanction of the Secretary General who is the official spokesperson of the party. In this regard, they relied on the decision of the High Court in the consolidated cases, Civil Appeal No. E630, E635, E736, E750, E764 and E008 of 2024 Jeremiah Kioni & 5 Others vs. National Disciplinary Committee Jubilee Party & 15 Others.

Analysis and Determination 19. Flowing from the parties’ pleadings and submissions, we have identified the following key issues for determination; -i.Whether the Complaint/Application is defective?ii.Whether the Notices dated 7th November 2024 were issued in accordance with the party Constitution?iii.What are the appropriate reliefs to grant?

Whether the Complaint/Application is Defective? 20. We have framed this issue for our determination bearing in mind the Respondent’s contentions in the Replying Affidavit referred to above that was filed in response to the application.

21. The Respondent contends that the Application is defective as it is originated by the Complainants who acted in breach of the High Court orders made on 3rd October 2024 in Nairobi ELRC Petition No. E008 of 2024, Joseph Kagai vs Nelson Dzuya & 9 Others. We have gone through the subject decision and we note that the High Court made the following orders:-i.The 1st to 7th Respondents ought not to hold office as officials of a political party and public office at the same time as that violated Article 232(2)(b) of the constitution and Section 23(2) of Leadership and Integrity Act as read with Section 12(1)(c) of the Political Parties Act.ii.The 1st to 7th Respondents are granted an opportunity to make an election as to which office they wish to relinquish and which one they opt to retain and the court puts the seven (7) respondents to such terms to exercise their discretion within 30 days of this order failing which the position held in the state corporation or public office pursuant to the stated appointment as public officers shall automatically be relinquished by the respondents.iii.There is no evidence before the court of actual or any remuneration made to the seven (7) respondents by Jubilee Party while they held the public offices they were appointed to. The prayer that the respondents fund the remuneration paid to the respondents while they held two positions is dismissed for lack of proof. iv. This being a public interest litigation, the court finds that each party to meet their own costs of the suit.

22. This Tribunal by all means appreciates and respects the jurisprudence emanating from the High Court as espoused in the aforesaid case of Nairobi ELRC No. E008 of 2024. However, from our perusal of the orders, the Complainants were granted an opportunity to make an election or in default automatically relinquish the position they held in in the state corporation or public office pursuant to their respective appointments as public officers. We do not know what transpired in terms of the choices that the Complainants made. It has therefore not been pointed to us how the Complainants violated the subject orders. In essence, there is no sufficient evidence before us to enable us form an opinion that the Complainants are in breach of the Orders of the High Court. We therefore find no justifiable basis for deeming this Complaint as defective on the basis of the Respondent’s unsubstantiated averments.

23. It has further been contended that the Complaint is defective for having been filed without the sanction of the Secretary General, who is the official spokesperson of the party. In so submitting, the Respondent relied on the Judgment delivered on 30th September 2024 in Civil Appeal E630 of 2023 Jeremiah Kioni & 3 Others vs. The National Disciplinary Committee of the Jubilee Party & Others (as Consolidated with Civil Appeal Numbers E635 of 2023, E736 of 2023, E750 of 2023, E764 of 2023 and E008 of 2023).

24. It is instructive to note that there are 7 persons cited as Complainants in this matter. Out of the 7, 6 are natural persons/individuals whose locus standi to institute the instant Complaint is not in question. It therefore follows that our finding on whether or not the filing of the Complaint was sanctioned by the party will be inconsequential.

Whether the Notices dated 7th November 2024 were issued in accordance with the party Constitution? 25. As we have already highlighted above, the Respondent in this case expressed his willingness to withdraw the said notices dated 7th November 2024 provided the Complaint is compromised in its entirely. However, no consent was recorded by the parties to withdraw the notices and/or compromise this Complaint in its entirety. It therefore follows that the question of the legality or otherwise of the notices remains a live issue for determination by this Tribunal.

26. The Complainants have advanced three main grounds to support their argument that the notices were unlawful. Firstly, they contend that despite being NEC members, they were not invited to the NEC meeting. Secondly, that the failure to invite the 4th Complainant, who is the National Chairperson, further breached Article 10. 3 of the party Constitution as it is the National Chairperson to preside and chair NEC and NMC meeting. Thirdly, they argue that the Respondent unilaterally set the agenda in breach of Art. 8. 3(2)(c) of the party Constitution which provides for the NMC to set the agenda.

27. With respect to the first ground, the record reflects that invitation notices were issued to specific NEC members as evidenced by documents annexed to the 1st Complainant’s Affidavit marked ND2 to ND7. The subject NEC members to whom the notices were addressed include Kanini Kega, Ruweida Mohamed, Adan Keynan, Mulembe Mundalo, Kinoti Gatobu and Wambui Gichuru. As per the afore-stated Judgment delivered by the High Court on 30th September 2024 in Civil Appeal E630 of 2023 Jeremiah Kioni & 3 Others vs. The National Disciplinary Committee of the Jubilee Party & Others (as Consolidated with Civil Appeal Numbers E635 of 2023, E736 of 2023, E750 of 2023, E764 of 2023 and E008 of 2023), the composition of NEC of the Jubilee Party reverted to Gazette Notice No. 3194 of 22nd March 2022 and we have not been shown any subsequent gazette notice that changes this position.

28. Pursuant to the said Gazette Notice No. 3194, all the Complainants are listed as NEC members. However, we have not been furnished with any evidence to demonstrate that any of the Complainants herein received the notice and/or were invited to the NEC meeting. The Respondent elected not to respond to this issue arguing that the same was moot in light of his willingness to withdraw the notices. We have already observed that no consent was entered into withdrawing the notices. The factual allegations by the Complainants that there was failure on the part of the Respondent to invite all NEC members remain uncontested. Accordingly, based on the record before us, we find that the Respondent issued the notices in breach of Article 8. 2(1)(A) as read with Article 9. 1 of the party constitution in so far as there was selective invitation of national officials without any justification yet the party constitution is express that all national officials form part of NEC.

29. As regards the contention that the Respondent unilaterally set the agenda in breach of Art. 8. 3(2)(c) of the party Constitution, we have perused the record before us, and more particularly, the subject notice. All we can glean from the face of the notices is that they were authored by the Respondent. There is nothing before us to suggest and/or demonstrate that the Respondent unilaterally set the agenda of the meeting in breach of Article 8. 3(2)(c) of the party constitution. With respect to the arguments revolving around breach of Articles 10. 3(1) of the party constitution, our view is that the same are premature as all parties after all acknowledge that the NEC meeting scheduled for 15th November 2024 did not take place.

30. In a nutshell, we have already found that the Respondent issued notices in breach of Article 8. 2(1)(A) as read with Article 9. 1 of the party constitution. We also take into consideration the reality that the date for the intended NEC meeting has since passed. Accordingly, the notices cannot stand and we therefore enter a finding on this issue in the negative.

What are the appropriate reliefs to grant? 31. The Complainants have urged this Tribunal to grant the reliefs sought as detailed in paragraphs 28 to 31 of the Complaint as read together with prayers number 5 to 7 on the face of the application which was heard together with the Complaint. We had replicated the reliefs sought at the introduction section of this Judgment, and we now proceed to consider all the prayers as hereunder.

32. Firstly, the Complainants pray that this Tribunal declares that the notice dated 7th November 2024 is improper illegal and unlawful. We have already considered the record before us and found that the Respondent issued the notices in breach of Article 8. 2(1)(A) as read with Article 9. 1 of the party constitution in so far as there was selective invitation of national officials. It therefore follows that the notice dated 7th November 2024 is improper illegal and unlawful and we accordingly allow this prayer.

33. Secondly, the Complainants seek a declaration that the Respondent herein has no powers to, unilaterally and independent of the NMC, create and/or come up with his own agenda for consideration by the NEC of the Jubilee Party. From our foregoing analysis, we have already observed that there is no evidence before us to suggest and/or demonstrate that the Respondent unilaterally set the agenda of the meeting in breach of Article 8. 3(2)(c) of the party constitution. Accordingly, we find no basis for granting this prayer in these proceedings.

34. The third prayer sought by the Complaints is an order directing the Respondent to comply with the constitution of the jubilee party. It goes without saying that all parties hereto are bound by the provisions of the constitution of Jubilee Party by virtue of being officials and/or members of the party. the constitution is like a social contract that governs the affairs of the party and also the relationship between the party and its members. Taking into consideration the anxiety expressed by the Complainants and the facts and circumstances giving rise to these proceedings, we find no fault in granting the order sought.

35. Fourthly, the Complainants have, vide the application that was subsumed in the Complaint, sought for two orders (prayer number 5 and 6) to the effect that they be allowed to attend to any and all Jubilee party organs meetings that they are members of without any limitations, and or restrictions by the Respondent or anyone working under the direction of the Respondent pending hearing and determination of the instant application. From the wording of the order, it is evident that the same is being sought pending the hearing and determination of the instant application. In other word, it is an interlocutory order. Noting that the application was subsumed in the Complaint and both were heard together, these orders cannot issue. In any event, we have already granted the order directing the Respondent to comply with the constitution of the Jubilee Party. This should cover the Complainants’ political rights and interests under the party constitution.

36. The Complainants in addition pray that the Tribunal be pleased to issue a conservatory order maintaining the membership of the 1st to the 6th Complainants as members of the National Executive Committee of the 7th Complainant. As already observed, pursuant to the afore-stated Judgment delivered by the High Court on 30th September 2024 in Civil Appeal E630 of 2023 Jeremiah Kioni & 3 Others vs. The National Disciplinary Committee of the Jubilee Party & Others (as Consolidated with Civil Appeal Numbers E635 of 2023, E736 of 2023, E750 of 2023, E764 of 2023 and E008 of 2023), the composition of NEC of Jubilee Party reverted to Gazette Notice No. 3194 of 22nd March 2022. The Court has already decided on this issue and we find no legal and/or justifiable basis for making any further orders in respect thereto.

37. With respect to costs, the legal position is that the same ordinarily follow the event. The Complainants have partially succeeded in these proceedings. Accordingly, we direct that each party bears its own costs in the interest of fostering party unity.

Final Orders/Disposition 38. In light of the foregoing, we order as follows: -

i.A Declaration be and is hereby issued that the Notice dated 7th November 2024 was issued in breach of Article 8. 2(1)(A) as read with Article 9. 1 of the party constitution to the extent that there was selective invitation of the members of the Jubilee Party’s National Executive Committee (NEC).ii.An Order be and is hereby issued directing the Respondent to comply with the Constitution of the Jubilee Party.iii.Each party to bear its own costs of these proceedings.

DATED AND DELIVERED (VIRTUALLY) AT NAIROBI THIS 12TH DAY OF FEBRUARY 2025. HON. DESMA NUNGO, HSC - (CHAIRPERSON)HON. ABDIRAHMAN ABDIKADIR - (MEMBER)HON. THERESA CHEPKWONY - (MEMBER)