[2021] KEPPDT 679 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. E002 OF 2021

HON. ISAAC MWAURA MAIGUA......................................COMPLAINANT

VERSUS

JUBILEE PARTY................................................................1STRESPONDENT

REGISTRAR OF POLITICAL PARTIES.......................2NDRESPONDENT

JUDGMENT

Background

1. The Complaint herein is dated 9th February 2021 and it is supported by an Affidavit sworn by the Complainant, Hon. Isaac Mwaura Maigua, on the same date. It is further supported by a Supplementary Affidavit sworn by the said Complainant on 4th March 2021 and the Complainant’s Written Submissions dated 19th April 2021.

2. In response and opposition to the Complaint, the 1st Respondent filed a Replying Affidavit sworn on 24th February 2021 by Hon. Raphael Tuju, the Secretary General (SG) of the 1st Respondent and the 1st Respondent’s Written Submissions dated 26th April 2021.

3. On 24th February 2021, the 2nd Respondent filed a Replying Affidavit sworn on its behalf by its Compliance Officer, one Joy Onyango. The 2nd Respondent has in addition filed their Written Submissions dated 27th April 2021.

4. After close of pleadings, the Complainant’s Counsel sought and was granted leave to cross examine Hon. Raphael Tuju on 12th April 2021 on the contents of his aforementioned Affidavits. There-after, parties highlighted their afore-mentioned written submissions virtually via video link on 3rd May 2021.

The Complainant’s Case.

5. The Complainant is aggrieved by the decision that was made on 8th February 2021 by the 1st Respondent to expel him from the party. It is the Complainant’s case that the decision was made in total contravention of the law and had been reached without application of any due process.

6. The Complainant avers, inter alia, that the charges preferred against him before the party disciplinary organ were based on a vague show cause letter, without any written and signed complaint, which paved way to his subjection to an unprocedural, illegal and unlawful disciplinary process that was contrary to Article 13. 11 of the 1st Respondent’s Constitution, Sections 4, 6 and 7 of the Fair Administrative Action Act (FAA), Articles 47 and 50 of the Constitution of Kenya 2010 and the threshold set in section 14 of the Political Parties Act (PPA).

7. The Complainant alleges that the impugned disciplinary process relied upon unauthenticated and unverified information in total disregard to his defence, all in a bid to arrive at a preconceived outcome.

8. The Complainant states further, that he was not allowed adequate time to prepare an adequate defence and the party disciplinary organ neglected to take into consideration an affidavit he had filed in response to the allegations levelled against him or to consider the supporting evidence annexed to his said affidavit.

9. It is also the Complainant’s case that the organ that purported to conduct the impugned disciplinary proceeding is devoid of any legal mandate under the Jubilee party laws.

10. The Complainant alleges blatant and repeated discrimination in application of the party legal provisions on its members and seeks the following orders against the Respondents:-

a.A declaration that the disciplinary proceeding by the 1st Respondent against the Complainant violated Article 47 and 50 of the Constitution.

b.A declaration that the disciplinary proceedings by the 1st Respondent against the Complainant were unprocedural, and violated the Political Parties Act, the Fair Administrative Action Act and article 13:11 of the 1st Respondents’ constitution.

c.A declaration that in the absence of a substantive National Executive Committee meeting convened to discharge its disciplinary mandate, the decision to expel the Complainant by any other organ is invalid, illegal and have no effect in law.

d.A declaration that the Complainant was denied the right to fair hearing at the disciplinary committee and the resultant decision is unlawful and have no effect in law.

e.A permanent injunction restraining the 2nd Respondent by themselves, their agents, and/or servants or employees from removing the name of the Complainant from the membership list of the 1st Respondent political party.

f.A declaration that the Complainant did not violate section 45 (5) of the Political Parties Act or the 1st Respondents’ constitution or at all.

g.That the costs be awarded to the Complainant.

The 1stRespondent’s Case.

11. The 1st Respondent submits that the Complaint lacks merit and is based on a misrepresentation of facts.

12. The 1st Respondent depones that the charges levelled against the Complainant by the National Disciplinary Committee (NDC) were clearly laid out in the charge sheet that was served upon the Complainant. In particular, the Complainant was alleged to be in contravention of Article 13. 3.1 D, F & J of the Jubilee party constitution. It is denied that the charge was brought under article 13. 3.1 D, E & J as alleged by the Complainant.

13. The 1st Respondent avers that the mode of proceedings of NDC is contained in its decision marked as Annexure `RT 1’ annexed to its Replying Affidavit filed in response to the Complaint herein. That the said disciplinary process was conducted in line with Article 13. 3.3 of the Jubilee Party constitution. The 1st Respondent contends that the National Chairman of the party referred the matter to NDC which then issued a complaint, summons and charge sheet which were served upon the Complainant in accordance with the Jubilee party laws.

14. The 1st Respondent has at paragraphs 14 through to 67 of its Replying Affidavit outlined the details of the charges that were levelled against the Complainant as presented during the disciplinary process and the deliberations thereon that culminated to the impugned decisions. In essence, the 1st Respondent maintains that the Complainant was afforded a fair hearing before the NDC, that he was given notice and was invited for the NDC hearing, that he filed an Affidavit and also called witnesses in his defence, and further that he was represented by his Advocates.

15. The 1st Respondent has further challenged the jurisdiction of this Tribunal to hear and determine the Complaint on grounds that the Complainant did not refer the dispute to the party’s internal dispute resolution mechanism (IDRM) prior to moving this Tribunal in contravention of Section 40(2) of the PPA. The 1st Respondent thus seeks the dismissal of the Complaint herein.

The 2ndRespondent’s Case.

16. The 2nd Respondent submitted inter alia that the 1st Respondent is a registered political party with a Constitution which stipulates process of discipline in consonance with the 2nd Schedule of the Political Parties Act.

17. The said 2nd Respondent contended that discipline of party members is an analogous right as per party laws and that the political party subject hereof has provided a procedure for expulsion of members.

18. It was submitted that the party Constitution and laws govern the right of political parties to expel a member, and also right of a member to be granted a fair hearing. The Tribunal was invited to look inti whether the party complied with its own laws.

Issues for Analysis and Determination

19. We have considered the parties’ pleadings and identified the following key issues for determination:-

i. Whether the Tribunal has jurisdiction to hear and determine this matter.

ii. Whether the Complainant’s disciplinary proceedings were conducted in accordance with the party laws/Whether the Complainant was granted a fair hearing.

iii.What are the appropriate reliefs to grant?

Whether the Tribunal has Jurisdiction to hear and determine the Complaint

20. The 1st Respondent has challenged the jurisdiction of this Tribunal on the grounds that the 1st Respondent’s IDRM was not invoked prior to filing of this Complaint in breach of Section 40(2) of the PPA. In response to this objection, it was submitted on behalf of the Complainant that the National Management Committee (NMC) had acted on behalf of the National Executive Committee (NEC) whose decision is final and accordingly, IDRM had been exhausted.

21. We have considered the parties’ submissions and from the record, it is evident from the party Constitution that the NDC is the party’s apex disciplinary organ. As per the party Constitution, the decisions of the NDC are transmitted to NEC for further action. It is not in dispute that in this case, the NDC decision was forwarded to NMC for action on behalf of NEC. The NEC decision being final, we agree with the Complainant that he exhausted all the IDRM within the party and that the Complainant is therefore property before the Tribunal. We accordingly overrule the objection on our jurisdiction.

Whether the Complainant’s disciplinary proceedings were conducted in accordance

with the party laws/Whether the Complainant was granted a fair hearing.

22. Pedestal to addressing our minds to this issue, we have taken the liberty to highlight below the various party laws that we consider of relevance to the subject matter herein.

23. Article 5 of the 1st Respondent’s Constitution provides that expulsion of a member can occur when such member is deemed to have contravened the party’s Constitution or the Code of Conduct (as provided under part (c) thereof); and under (d) where a member has had his or her membership terminated upon subjection to a disciplinary procedure.

24. Article 9 of the 1st Respondent’s Constitution outlines the duties of the party’s National Chairman to include; ensure discipline, proper conduct and order in the party in accordance with this constitution and have overall authority over all the organs of the party.

25. Article 13. 1 of the Jubilee party constitution establishes and details the role and mandate of the National Disciplinary Committee (NDC) and we note that in particular part (4) enables the said organ to hear and determine matters relating to or concerning discipline within the party. Article 13. 4 outlines the scope of penalties for disciplinary measures which include as set out at (b) expulsion. It is thus clear that the NDC has the mandate to exercise disciplinary conduct over the 1st Respondent’s membership.

26. The Jubilee Party National Disciplinary Committee Regulations, 2017 (NDC Regulations) makes the following elaborate provisions governing jubilee party disciplinary proceedings:-

i. Regulation 8 of the NDC Regulations makes provision for preparation and service of a charge sheet and a hearing notice upon a charged party member. The details of the charge sheet are as set out in Regulation 9 which includes the following:-

a) The charge sheet to be in writing as set out in Form A of the First Schedule

b) The charge sheet to set out sufficient details of description of the violation or act of misconduct

c) Provide the date and place of the offence

d) Identify the provisions of the Constitution or party rules that have been violated

e) Inform the charge member of his or her right to be represented by an advocate or a member of the party before the disciplinary enquiry commences

f) Provide the date, time and venue for the hearing

g) Inform the charged member that the disciplinary proceedings will be a one stage inquiry and that he or she will also be required to lead evidence in mitigation of sanctions if so desired

h) Inform the charged member that his or her defense shall be by sworn affidavits as he/she may consider necessary in support of his/her request; provided that the charged member may request for oral evidence to be adduced

i) Inform the charged member that if he or she does not appear at the venue on the date and time determined for such proceedings or does not remain in attendance when required to do so by the committee, the proceedings will continue in the absence of the charged member.

ii. Regulations 10 to 12 make provisions on service of charge sheet and proof of service. Pursuant to Regulation 13 and 14 of the NDC Regulations, the charge sheet and all relevant documents should be served upon the charged party member within 48 hours prior to the hearing date. The Regulations make further elaborate provisions on conduct of hearings before the NDC. Regulation 5 provides for expeditious determination of disputes presented before NDC within 14 working days from the date the charge sheet is received. Upon determination of the matter, Regulations 41 and 52 of the NDC Regulations require that the NEC and the charged member be informed of the ruling.

iii. We also take note of Regulation 8 which provides that a disciplinary process commences with service of a charge sheet and a hearing notice.

27. Whilst considering the parties’ submissions, our analysis shall adopt the approach of perusing the Complaint and all supporting evidence as well as countering evidence in facets, in order to determine whether the Complainant was properly subjected to a disciplinary process in accordance with the party laws highlighted above.

28. It is not in dispute that pursuant to Article 9 of the 1st Respondent’s Constitution; the 1st Respondent’s National Chairman is mandated to ensure party discipline. In exercise of his mandate, the National Chairman referred the disciplinary matter subject hereof to the NDC.

29. It is further not in dispute that the NDC disciplinary process commences with a charge against a party member. As already stated above, the charge sheet detailing all the particulars and summons or notice of hearing should be served upon the concerned member facing disciplinary proceedings.

30. The Complainant in this case is not contesting service of the summons and charge sheet upon him. The Claimant has in fact produced the hearing notice and summons which is stated to have enclosed a charge sheet. What is, however, in contest is, firstly, whether the charges were clearly particularised and secondly, the notice period which the Claimant contends was insufficient. The Complainant submits that allegations against him were vague and therefore indeterminate.

31. We note that paragraph 5 of the Complainant’s Affidavit in support of the Complaint details the charges. In addition, the Complainant’s Replying Affidavit sworn on 3rd February 2021 filed before the 1st Respondent’s NDC and marked as annexure IMM-4 in his original Complaint bundle filed before this Tribunal also has the particulars of charges at paragraph 5 thereof. Service of the charges and particulars is also admitted at paragraph 5 of the Complainant’s Written Submissions on record. The NDC decision similarly details the particulars of the charges at paragraphs 2 and 3 thereof.

32. The NDC minutes of the disciplinary proceedings of 4th February 2021 were placed on record and no party objected to the production and/or content of the same. From the minutes, it is stated that the charges and particulars were read out to the Complainant and he pleaded not guilty where-after evidence was tendered before the NDC in support of the charges. There is no record of any objection raised by the Complainant in relation to the alleged vagueness, or request for further particulars of the charges prior to the commencement of the hearing before the NDC. The only recorded objection by the Complainant relates to the allegation that the Complainant was served with evidence at the beginning of the session. As per the subject NDC minutes, whereas the Complainant was granted an opportunity to have the proceedings adjourned due to late service of evidence, the record reflects that his defence team refused to adjourn.

33. With respect to the conduct of the hearing, the NDC minutes detail how the Complainant before the NDC proceedings tendered evidence in support of the charges against the Complainant and was there-after cross examined by the Complainant’s Advocate. In addition, the Complainant herein relied on his Replying Affidavit sworn on 3rd February 2021 and further adduced additional evidence on oath before the NDC in detailed response to the charges that had been levelled against him. The NDC minutes at paragraphs 9, 10 and 11 of the Complainant’s Replying Affidavit filed before the NDC outlines the Complainant’s take or understanding of the directives and/or actions of his political party in his response to the said charges.

34. The Complainant at paragraphs 20, 21, 22 & 23 of his said Replying Affidavit filed before the NDC as read together with the NDC minutes further outlined alleged grounds of perceived discriminatory action and tendencies against him as seen in the actions taken by the party organs.

35. From our examination of the NDC record, we do not agree with the Complainant that the charges levelled against him were vague as alleged. In any event, as we have already observed, there is no evidence in the NDC proceedings that this issue was raised as a preliminary issue for determination prior to the commencement of the NDC hearing. It is evident that the Complainant made comprehensive submissions and tendered evidence in response to all the charges levelled against him. The Complainant was in fact represented by an Advocate and two other party members of good standing who are also stated to be Advocates.

36. With respect to the allegation of sufficiency of notice and service of evidence, we note that the NDC Regulations are express that summons should be served within 48 hours prior to the hearing. The Regulations further makes provisions for timelines for service of evidence. From the record, it is evident that the 1st Respondent dealt within the timelines that guide the party’s disciplinary process as prescribed in the party laws. If the Complainant felt that the notice period was nevertheless insufficient, the question we ask ourselves is whether he sought for an adjournment and/or more time prior to the commencement of the NDC hearing. From our perusal of the record, there is no evidence that the Complainant sought and was declined an adjournment of the proceedings to allow him what he considered sufficient time to prepare. In fact from the NDC minutes already referred to above, the Complainant was granted an opportunity to adjourn the proceedings but his defence team insisted on proceeding with the hearing.

37. We have further considered whether the Complainant’s submission before the party disciplinary process was taken into consideration. The 1st Respondent has in our opinion shown that the concerns and sentiments of the Complainant were addressed by the party organ. The said 1st Respondent attached and marked as annexure RT-1 the NDC’s reasoned decision and minutes capturing deliberations of the said party organ. We have considered the same and the additional issues raised by the Complainant and based on the record before us, we find no sufficient basis to fault the NDC’s exercise of its discretion.

38. We further note that it is not in dispute that as per the party Constitution, NEC has the powers to set aside, vary or substitute the decision of NDC. The 1st Respondent’s Constitution mandates the National Management Committee (NMC) to perform functions of the National Executive Committee (NEC) in circumstances where NEC cannot be urgently convened. The party SG testified to the challenges the party faced in constituting NEC and the fact that the matter at hand was urgent as it concerned party discipline. Taking into consideration that NEC had not been fully constituted and that NMC can exercise the mandate of NEC in urgent matters as per the party Constitution, and further that the matter at hand was one concerning party discipline, we find the party SG’s justification for the need for NMC to urgently attend to matters of party discipline persuasive.

39. From what we have outlined in our analytical paragraphs above, it is clear that there were charges levelled against the Complainant and that he was taken through a disciplinary process where the charges were set out to him, he proceeded to state his case and deliberation by the party organ followed culminating in a decision. We therefore find that the disciplinary process and the consequential decisions were in line with the Jubilee party laws.

40. Having found that the process was conducted in accordance to the party laws, we find it difficult to sustain the allegation of bias and/or discrimination raised by the Complainant. Indeed, his attempt to show that other party members had been treated differently was countered at the cross examination of the party Secretary General (SG) when the said SG stated that in all cases the party always gave some leeway and opportunity to errant members to conform before taking disciplinary action against them.

41. It was the said SG’s submission, that each case is treated/handled independently and that in this instant the Complainant remained adamant, refused to engage the party organs and instead questioned their authority to act.

42. Further, the Complainant did not present or substantiate other similar cases that may point to bias or discrimination. We are therefore of the considered opinion that the Complainant was granted a fair hearing.

What are the appropriate reliefs to grant?

43. Taking into consideration the foregoing circumstances, we find that the Complaint has no merit.

44. Thus, we order as follows:

(a) That the Complaint dated 9th of February 2021 be and is hereby dismissed.

(b) That costs be awarded to the 1st Respondents.

It is so ordered.

DATED AT NAIROBI THIS 7TH DAY OF MAY 2021.

DESMA NUNGO

(CHAIRPERSON)

..........................................

MILLY LWANGA ODONGO (MEMBER)

DR. ADELAIDE MBITHI

(MEMBER)