[2021] KEPPDT 684 (KLR)

REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL

AT NAIROBI

APPEAL NO. E001 OF 2020

HEZRON AWITI BOLO......................................................................APPELLANT

VERSUS

REGISTRAR OF POLITICAL PARTIES.......................................RESPONDENT

JUDGMENT

Introduction

1. The Democratic Labor Party was initially duly registered on 1st October 2012. A change of particulars was later effected properly changing its name to the Vibrant Democratic Party. The Party continued with its operations in compliance with all requirement outlined under the Political Parties Act.

2. Vide a Gazette Notice No. 6171 dated on 5th June 2018 and published on 22nd June 2018, the Respondent issued Notice of Deregistration of the said Vibrant Democratic Party.

3. The Appellant being the last recorded Leader of the said Party lodged this appeal against the said action taken by the Respondent.

4. All pending applications having been dispensed off, the parties proceeded, by consent, to file their written submissions and orally highlighted the same in an open online session held on 27th January 2021.

Submissions on behalf of the Appellant

5. The Appellant submits that the Respondent acted in contravention of the law and rules of natural justice in determining to effect the de-registration of the said Vibrant Democratic Party.

6. That the duly recognized management team of the said Vibrant Democratic Party were never advised in writing that the party had been noted for deregistration. The alleged breach has to date never been particularized to the said political party’s management.

7. The Appellant avers that had the Respondent followed the laid out procedure for deregistration, the said political party would have been provided occasion to remedy any shortcoming and thus avoid deregistration.

8. It is the Appellant’s contention that had they known of the existence of the said Gazette Notice dated 5th June of 2018, they would not have proceeded to file their returns on 4th January 2019 and on 3rd July 2019 as required by law.

9. The Appellant thus prays that this Tribunal determines that the Respondent acted in complete violation of the applicable provisions of the law and contrary to the rules of natural justice and thus lift the purported deregistration.

The Respondent’s Submissions

10. It is the Respondent’s case that Vibrant Democratic Party was fully registered in accordance to the provisions of the law until it flouted the provisions of Section 31(2) of the Political Parties Act, 2011 which requires parties, within three months after the end of each financial year, to submit to the Auditor-General the accounts of the party in respect to that year. Vide a notice dated 7th September, 2017 the Respondent directed that, all fully registered parties, including the then Vibrant Democratic Party, to comply with the provisions of the aforementioned Section 31(2) of the Political Parties Act, 2011.

11. It is the Respondent’s case that the communication was relayed to the Secretary General of the said Political Party using the address provided. In addition, a notice dated 12th February, 2018 directed to Vibrant Democratic Party through its Secretary General required the party to, interalia, remedy the breach within ninety days or show cause why it should not be deregistered. The communication did not elicit any response and or action from the said political party.

12. Further that, a Gazette Notice Number 6171 published in Kenya Gazette on 22nd June, 2018 by the Respondent notified the Vibrant Democratic Party that it would stand deregistered after thirty days of the notice for breach of various legal provisions enumerated in the notice and further invited any person with written submissions concerning the deregistration to submit the same to the Respondent within seven days of the notice. Nothing was forthcoming and as a result the said party stood deregistered.

13. The Respondent thus prays that this Tribunal dismiss the appeal with costs.

Issues for Analysis and Determination

14. Parties herein identified various issues that this Tribunal need to address herself to in determining this appeal. However, we have merged the issues into two main issues for determination, that is, whether we have Jurisdiction to hear and determine the Appeal; and whether the Respondent complied with the law prior to deregistration of Vibrant Democratic Party. We thus proceed to systematically look into the circumstances that have given rise to this appeal.

15. We must start with jurisdiction. This Tribunal has jurisdiction under Section 40 (2) (f) of the Political Parties Act [PPA], to determine appeals from decisions of the Registrar of Political Parties. This being an appeal, we then address our mind as to whether it is in reference to a decision of the Registrar of Political Parties. We note that this aspect is not in dispute. Both parties present that the Registrar made a decision. The decision was to deregister the political party in reference. We thus have jurisdiction.

16. The next question therefore is whether the decision of the Registrar was made in line with the provisions of the law and rules of natural justice.

17. The Respondent submits that there was a breach by the political party and it was in the course of addressing this breach by the political party in issue that a process commenced culminating in the deregistration of the party as notified vide the impugned Gazette Notice.

18. Section 21 of the Political Parties Act makes the following express provisions on deregistration of a political party:-

(1) The Registrar may deregister a political party if the political party: -

(a) has contravened the provisions of Article 91 of the Constitution

(b) does not promote free and fair nomination of candidates

(c) does not adhere to the law relating to the nomination of candidates

(d) does not respect the national values and principles of the Constitution

(e) obtained its registration in a fraudulent manner

(f) has instigated or participated in the commission of an election offence; or

(g) has acted contrary to the provisions ofsection 26

(h) does not have representation of special interest groups

(i) does not maintain the requirements set out undersection 7

(j) has contravened the provisions of Article 81(b) of the Constitution

(2) The Registrar shall, before deregistering a political party: -

(a) inform the political party, in writing, of the particulars of the breach or contravention

(b) inform the political party, in writing, of the intention to deregister the political party; and

(c) direct the political party to remedy the breach or contravention within ninety days or otherwise show cause why the party should not be deregistered

(3) The Registrar may suspend the registration of a political party to enable that political party to remedy the breach specified in the notice issued by the Registrar under subsection (2)

(4) A political party that has been suspended undersubsection (3)shall not be entitled to any of the rights and privileges specified insection 15

(5) The Registrar shall deregister a political party which has not remedied the breach or complied with the Act as required by the Registrar under subsection (2)

(6) The Registrar shall deregister a political party which has been declared to be a prohibited organization under the provisions of any written law

(6A). The Registrar shall, within fourteen days after deregistration of a political party under subsection (5), cause a notice of the deregistration to be published in the Gazette

19. We have gone through the Respondent’s Replying Affidavit and the documents that have been annexed. Annex JO-1 is a letter dated 7th September 2017 addressed to the Secretary Generals, of all fully Registered Political Parties. The letter states that it is a reminder to political parties to comply with the law in relation to accounts, more specifically, Section 31 of the PPA which provides that all political parties shall within three months after the end of every financial year submit to the Auditor General the accounts of the political party in respect of that year by filling form PPF 5. This letter does not in our opinion constitute a notice under section 21 (2) of the PPA as it is not addressed to Vibrant Democratic Party and neither does it make a statement of breach or any particularisation thereof as against Vibrant Democratic Party. In addition, there is no notification therein of any intention to deregister Vibrant Democratic Party.

20. Annex JO-2 is a letter dated 12th February 2018 ‘Re: Notice to Show Cause Why Vibrant Democratic Party should not be deregistered’. The letter simply restates the provisions of Section 21(1)(a) to (f) and 21(2)(a) to (c) of the PPA and then concludes by directing the party to remedy the breach within ninety days or otherwise show cause why the party should not be deregistered. Apart from stating the law, the letter does not state and/or particularise any breaches or contraventions of the law by Vibrant Democratic Party.

21. We have further perused the Gazette notice dated 5th June 2018 (Annex JO-3) and we strangely note that some of the grounds stated therein for deregistration were not even stated as breaches and/or particularised in the notice to show cause letter dated 12th February 2018.

22. In essence, the Respondent did not in their Replying Affidavit annex correspondence that would support and show the systematic manner, as anticipated under the Political Parties Act, in which the breach was addressed. Section 21 (3) PPA anticipates a suspension as a prelude to deregistration. At the very least we would have expected copies of correspondence or extracts to show that such communication was in deed effected. This was not forthcoming.

23. Even if the Respondent’s letters referred to above were to be regarded as notices which we disagree as per our reasoning above, it was the Appellant’s contention that the subject letters were in any event not addressed to the right contact person and/or not addressed to the correct address. In response, the Respondent merely averred that they addressed the letters and effected service upon the Secretary General of the party as identified by the party constitution. No evidence was, however, tendered to support their contention that service was effected upon the said party’s secretary general. The constitution of the allegedly deregistered political party was not presented nor was any communication or documentation presented that would support this contention. In deed the only documents we had sight of containing the party’s principal officers and postal address were the financial statements filed by the political party for the year ending June 2018 which state that the management team include the Party Leader, Chairman, Secretary General and National Treasurer.

24. Lord Denning J. in Miller –vs- Minister of Pensions (1947) 2 ALL ER 372, discussing that burden of proof had this to say-

“That degree is well settled. It must carry a reasonable degree of probability, but not sohigh as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.

Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally(un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

25. In Autar Singh Bahra & Another Vs Raju GovindjiHCC 548 of 1998 the court stated as follows;

“Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged……..”

26. In view of the foregoing, we find that the Respondent has failed to demonstrate that they issued the requisite notifications to the registered officials of the said Vibrant Democratic Party in consonance with Section 21(2) of the PPA.

27. A decision to de-register a political party is weighty with far-reaching consequences under Section 22 of the Political Parties Act. The same also impacts on the ultimate realisation of political rights as enshrined in Articles 38 and 91 of the Constitution. It is therefore of paramount importance that due process be followed prior to deregistration. This is more so bearing in mind the elaborate compliance and vetting processes that political parties are subjected to prior to full registration. It also follows that such deregistration process would be well documented and any scrutiny thereof should demonstrate that due process was in deed applied.

28. Having found that the processes leading to deregistration of Vibrant Democratic Party were flawed, any subsequent action by the Registrar of Political Parties based on such a flawed process is a nullity and cannot therefore stand. This includes the purported notification of deregistration vide gazette notice dated 5th June 2018 and all subsequent processes.

Conclusion/Disposition

29. Taking into consideration the totality of the foregoing circumstances, we order as follows: -

i. That a declaration be and is hereby issued that the Registrar of Political Parties acted in violation of Section 21 of the Political Parties Act in deregistering Vibrant Democratic Party.

ii. That the decision of the Registrar of Political Parties to de-register Vibrant Democratic Party as communicated vide Gazette Notice dated 5th June 2018 and all subsequent processes in furtherance thereof be and are hereby nullified.

iii. That the de-registration of Vibrant Democratic Party be and is hereby lifted

iv. That each party to bear its own costs.

Orders accordingly.

DATED AT NAIROBI THIS 8TH DAY OF FEBRUARY 2021.

DESMA NUNGO

(CHAIRPERSON)

MILLY LWANGA

(MEMBER)

PAUL NGOTHO

(MEMBER)

DR. ADELAIDE MBITHI

(MEMBER)