[2023] KEPPDT 1264 (KLR)

Gichohi v Party & another; Dzuya & 13 others (Interested Parties) (Tribunal Case E011 (NRB A) of 2023) [2023] KEPPDT 1264 (KLR) (10 July 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1264 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Case E011 (NRB A) of 2023

W Mutubwa, Vice Chair, T. Chepkwony, AA Abdikadir & MM Yusuf Jin, Members

July 10, 2023

Between

Kagwe Gichohi

Complainant

and

Jubilee Party

1st Respondent

Registrar of Political Parties

2nd Respondent

and

Nelson Dzuya

Interested Party

Wanjiku Nduati

Interested Party

Robert Wanga

Interested Party

Mutembei Marete

Interested Party

Teresia Jerusah Michael

Interested Party

Waithaka Ngaruiya

Interested Party

Hon. James Kanini Kega

Interested Party

Hon. Adan Keynan

Interested Party

Hon. Boniface Kinoti Gatobu

Interested Party

Hon. Fatuma Dullo

Interested Party

Hon. Samuel Arama

Interested Party

Hon. Maitu Sabina Wanjiru Chege

Interested Party

Hon. Advice Mundalo

Interested Party

Hon. Joshua Kutuny

Interested Party

Judgment

Introduction 1. The Complainant filed a complaint dated 25th May, 2023 before the Tribunal seeking the following orders:a.A declaration setting aside the judgment and order of the purpoted Jubilee Party National Disciplinary Committee dated 15th May, 2023 and its purpoted adoption and/or ratification by the National Executive Committee be issued; andb.An order directing the 1st Respondent to reinstate the Complainant as a member and the National Treasurer of Jubilee Party.

Complainant’s Submissions 2. The Complainant was represented by Mr. Mbuthi Gathenji SC who begun by stating that his submissions in E009 and E010 of 2023 shall apply Mutatis Mutandis in this matter.

3. Referring to the resolution adopted by National Executive Committee (NEC) on 10th February, 2023, Mr. Gathenji reiterated that the allegation that the Complainant had not presented the annual statements to NEC was not supported by evidence. He further pointed out that the Complainant was charged with counts based on matters relating to the years 2021 and 2022, yet the meeting was in February 2023.

4. Mr. Gathenji then argued that the Complainant did not concede as he was served with the hearing notice on 10th May, 2023 and that further, he did not receive any other documents supporting the allegations against him.

5. He further stated that the Chairperson of the NEC did not testify in this case and that the Committee insisted that the Board of Directors deal with the Complainant.

6. Mr. Gathenji stated that the Committee held that it was the obligation of the Complainant to disapprove the allegations. He then pointed out that the Complainant had no opportunity to present the final accounts prior to that date and that further, it was the Secretariat’s role to prepare the same.

7. Mr. Gathenji further stated that there was no evidence that the Complainant did not submit the accounts to the National Executive Committee, but rather, this position was based on the 1st Interested Party’s opinion.

8. Counsel further stated that the Ruling was to be delivered on email yet the Complainant received the same on 22nd June, 2023.

9. Mr. Gathenji then cited Article 14(3) of the Jubilee Party Constitution which provides instances necessitating Disciplinary action, and was of the view that none of them existed in the current matter.

1st Respondent’s submissions 10. The 1st Respondent was represented by Mr. Njomo. He begun by referring the Tribunal to the paragraph 4 of the Minutes recorded during the Committee meeting held on 10th February, 2023.

11. Mr. Njomo then stated that the Chairperson appeared as indicated in the Minutes. He also stated that the Complainant did not adduce any evidence in response to the allegations.

12. In conclusion, he submitted that due process was followed.

2nd Respondent’s Submissions 13. The 2nd Respondent was represented by Ms. Cheruiyot.

14. She begun by stating that the 2nd Respondent received and acted on communication from the Interested Party.

15. She also pointed out that the allegation of collusion against the 2nd Respondent is serious yet the same was not particularized.

16. Ms. Cheruiyot relied on Section 34 (c) of the Political Parties Act No.11 of 2011 and stated that the same does not give a time indication within which to issue a decision.

17. Ms. Cheruiyot then invited the tribunal to look at the case of Githu Muigai and another v LSK and another [2015] eKLR for the legal proposition that authority must be in the four corners of Statute.

18. In conclusion, Ms. Cheruiyot stated that the Complainant was interpreting the provisions of the Act differently and looked at efficiency of the 2nd Respondent as collusion. She then prayed that the Complaint against the 2nd Respondent be dismissed.

2nd to 6th Interested Parties Submissions 19. The 2nd to 6th Interested Parties were represented by Mr. Omwanza. He began by stating that the Charge Sheet did not address timelines of the financial statements.

20. He reiterated that the Rules require that process be served within 48 hours and that the Complainant was served by WhatsApp on 2nd May, 2023. He added that an Affidavit of Service has been filed to that effect.

21. He then went on to state that on 5th May, 2023 the Tribunal sat and no one was present except Mr. Gichuhi. In the circumstances, the matter was adjourned to 8th May, 2023 when Counsel for the Complainant said that he had not have formal instructions. The matter was then adjourned to 10th May, 2023. On the material date, he stated that he was not ready to proceed and parties agreed to proceed by documents as proposed by Mr. Gathenji, SC.

22. In conclusion, Mr. Omwanza stated that the complainant was not improperly treated by the NEC Committee.

7th to 13th Respondents submissions 23. The 7th to 13th Respondents were represented by Mr. Manyara who stated that he wished to adopt his submissions in E009 and E010 of 2023.

Complainant’s rejoinder 24. In his rejoinder, SC Mr. Gathenji stated that the Complainant was served on 25thMay, 2023 with Summons but not the Complaint.

25. Mr. Gathenji concluded that the Complainant was never confronted with any evidence prior to 10th February, 2023 or any Notice to show cause.

Analysis and determination. 26. We have examined the material placed before us, and notice that the complaint raises matters identical to those in Complaints no 9, 10 and 12. Indeed counsel filed consolidated responses and submissions citing across the three matters, and in their oral addresses to the Tribunal adopted earlier made submissions.

27. From the record, we have identified the following cross cutting grievances, issues and matters as having been raised by the Complainants:i.Procedural fairness of the NDC proceedings, including service of the charge, dismissal of the Complainant’s preliminary objection, sufficiency of summons and the general conduct of the proceedings, which the Complainant alleges lacked impartially, leading to a decision that was unfair, null and void;ii.Whether the NDC or IDRC was the proper forum for the impugned proceedings;iii.Violation of Article 47 and 50 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015;iv.Legality of the decisions of the NDC and NEC on account of their constitution and the meeting of 10. 2.2023; andv.The legal merit or correctness of the findings and decision of the NDC.

28. We shall adopt most of the submissions and findings we have reached in Complaints no. 9 and 10 of 2023 save for the exhibits specifically relevant to this Complaint which we shall cross reference for completeness of record.

(vi) Procedural fairness of the NDC proceedings, including service of the charge, dismissal of the Complainant’s preliminary objection, sufficiency of summons and the general conduct of the proceedings, which the Complainant alleges lacked impartially, leading to a decision that was unfair, null and void 29. On the matters raised by the Complainant in this respect we reiterate and adopt our findings and holdings contained in paragraphs 42 to 58; and 66 to 78 of our Judgement in Complaint number 9 of 2023, with only the following modifications:i.The record shows, and it was an uncontested fact that the Complainant’s advocates consented to a trial by affidavits. The parties also consented to the adoption of proceedings, particularly relating to the viva voce evidence of Mr. Nelson Dzuya tendered in NDC Complaint No. 1 of 2023 Jubilee Party v Hon. Jeremiah Ngayu Kioni. As the English would say, the Complainant cannot have his cake and eat it. The Complainant cannot now be heard to complain that the 1st Interested Party did not testify. It is, to say the least, disingenuous, and sound foul for a party to himself choose an abbreviated process and question its outcome on account of his own choices as a basis for setting aside an adverse decision.ii.A consent is an agreement binding on parties. The effect of a consent is that it can only be set aside if one demonstrates existence of grounds vitiating a contract. In any event, the Complainant has not sought to set aside the consent his advocates entered into on his behalf. Trial by affidavits, following a consent is as fair a process as any other. It is common, even in proceedings before this Tribunal. In fact, it is the default approach or norm before us, instead of viva voce evidence. We can only reach the conclusion that the allegation of failure to call the 1stInterested party is an afterthought.iii.The principles that appertain to setting aside of a consent orders are well established in a long line of cases including Brooke Bond Liebig v Mallya (1975) EA 266 where Mustafa Ag. VP stated thus:The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.iv.Similarly, in the case of Flora N. Wasike v Destimo Wamboko [1988] eKLR Hancox JA cited Setton on Judgments and Orders (7th edition) Vol 1 page 124, and reiterated that:Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which wouldenable a court set aside an agreement.v.None of the grounds aforesaid for setting aside a consent have been pleaded or established by the Complainant, at all.vi.Further,a.Reference to the Complaint is to be made to Annexture exhibit WN4 to the Replying Affidavit of Wanjiku Nduati dated 14thJune 2023. b.While the Affidavit evidencing service on the Complainant of the Complaint, Charge Sheet and Hearing Notice (Summons), in accordance with Regulation 11(b) of the 1st Respondent’s NDC Regulations, is to be made to Exhibit WN5 annexed to the aforesaid Replying Affidavit of Wanjiku Nduati.c.In any event, it is our further conclusion that once a party enters appearance, in person or through counsel, the question of the effectiveness or propriety of service of summons, becomes moot. Be that as it may, our finding is that the Complainant was properly and effectively served with process in this matter.d.On the ruling on the preliminary ojection, the same is annexed as exhibit WN8 to the said Replying Affidavit of Wanjiku Nduati.e.The Complainant’s evidence before the NDC, the NDC’s decision and evidence of transmission, and communication of the decision to the complainant by email through his advocates on record, are marked as annextures WN9, WN10 and WN11, to the aforesaid Replying Affidavit of Wanjiku Nduati.

30. We, therefore, find no merit in the allegations of lack of notice, and procedural flaws in the proceedings of the NDC.

ii. Whether the NDC or IDRC was the proper forum for the impugned proceedings 31. In this regard we adopt our findings contained in paragraphs 79 to 85 of our Judgment in Complaint No.9 of 2023.

vii. Violation of Article 47 and 50 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015; 32. In this respect we adopt our findings contained in paragraphs 59 to 62; and 79-85 of our Judgment in Complaint No.9 of 2023.

viii. Legality of the decisions of the NDC and NEC on account of their Constitution and the meeting of 10. 2.2023; 33. In this respect we adopt our findings contained in paragraphs 59 to 62; and 79-85 of our Judgment in Complaint No.9 of 2023.

v. Merits or correctness of the NDC findings and decision. 34. It is the Complainant’s case that the evidence as presented not only did not support the charge, but, that the threshold of proof of the charge fell below that required by law.

35. There is no dispute that the Complainant was the National Treasurer of the party during the period which related to the charges. There is also no dispute that under Articles 9(1) and (2) of the party’s Constitution relating to the role of the National Treasurer, he is required to prepare and present financial statements and ensure that they are audited annually.

36. The Complainant’s defence is that the charges relate to accounts due in June 2023 which was yet to be due legally. From the charge sheet, and Complaint before the NDC, it is clear to us that the financial year in question was 2021, now past. We do not therefore agree with the Complainant that the accounts were not due. Accounts for the year 2021 were due by 30th June 2022. This is a matter for which we can take judicial notice of under section 60 of the Evidence Act, Cap. 80.

37. The Complainant also alluded to the fact that the secretariat is charged with the responsibility of preparing accounts and keeping financial records. While that may be true, the ultimate responsibility and supervisory role under Article 9(1) and (2) of the party’s Constitution is on the party’s Treasurer. In other words, on matters regarding financial accounting and probity, the buck stops with the party treasurer.

38. On the question whether the Judgment rendered was supposed to be a decision instead. We opine that a Judgment is a decision. Lexical syntax, legal jargon and technicalities are discouraged by Article 159 of the Constitution of Kenya, 2010. Tribunals, staffed with lawyers and non-lawyers are called to do substantive justice. The main consideration is whether by calling its decision a Judgment the NDC took away any fundamental right to a fair trial as guaranteed by both the National and party constitution. In other words, what deficiency did the decision or Judgement suffer in passing the ultimate message? Was the Complainant prejudiced by these semantical choices by the NDC? We see none, both latently and patently; and none has been advanced.

39. The Complainant also alluded to a loss of the right to mitigate as a procedural flaw in the NDC process. A reading of Rule 26 and 27 of the party’s NDC Regulations shows that mitigation is available to a subject who pleads guilty to charges levelled against him. The Complainant did not concede but entered defence through counsel, and filed affidavits, essentially denying any wrongdoing. Mitigation, was therefore a right he forewent by choice.

40. The Complainant chose not to participate in the proceedings in person or to attend the hearing in person but by counsel and tendered affidavit evidence. This is despite, as the record shows, the party and lead counsels prosecuting the causes, protesting the inability to cross examine the Complainant, when his Advocates had cross-examined the party’s witness. Having made that conscious choice not to attend, the Complainant cannot say he did not take plea as the NDC rules require. He cannot approbate and reprobate at will, and take advantage of his own choices. In other circumstances, his untested evidence would have been struck out. We think that the NDC acted prudently in allowing the other party to rebut allegations by way of further affidavits, instead of the draconian act of striking out the Complainant’s affidavit. That to us is a demonstration of even handedness as the Tribunal bent backwards to ensure a merit based outcome in the matter instead of technicalities.

41. Lastly, the record shows that indeed reasons reserved in the summary ruling of 8th May 2023, on the Complainant’s preliminary objection, were given on 15th May 2023 in a ruling delivered simultaneously with the Judgment of the NDC. It is, therefore, not true that no reasoned ruling was made. In fact, the NDC makes clear reference to the ruling in Kioni’s case since the matters were argued together with cross filings and cross references, just as it happened before us.

42. In effect, we find that the NDC properly directed itself on the matter of the charge, the Constitutional responsibility of the party’s treasurer; properly weighed the evidence adduced before it, found no accounts having been furnished as required by law, and there being no proper legal excuse proffered, suspended the party’s treasurer.

43. We find no merit in the complaint and, thus, dismiss it in its entirety. The net effect of our decision is that the suspension of the Complainant by the NDC stands, so do the subsequent decisions of the NEC adopting the suspension, and the 2nd Respondent effecting the same.

Who bears the costs of these proceedings? 44. Costs follow the event. A successful party should be awarded costs to cover the exigencies of the litigation. We do not see why we should depart from this principle. The Complainants shall bear the costs of the Respondents and Interested Parties.

Disposition 45. We hereby make the following orders:i.The Complaint is hereby dismissed.ii.The costs of the Respondents and Interested Parties shall be borne by the Complainants.

46. Those are the orders of the Tribunal.

DATED AND DELIVERED IN VIRTUAL COURT ONTHE 10TH DAY JULY 2023……………………………………………………HONOURABLE DR. WILFRED A. MUTUBWA OGW C.ARB FCIARBVICE CHAIRMAN-------------------------------------HONOURABLE THERESA CHEPKWONY MEMBER------------------------------HONOURABLE ABDIRAHMAN ADAN ABDIKADIRMEMBER……………………………………………………….HONOURABLE MUZNA MOHAMED YUSUF JINMEMBER