[2023] KEPPDT 1265 (KLR)

Jubilee Party v Internal Disputes Resolution Committee of the Jubilee Party & another; Kenyatta (Interested Party) (Complaint E013 (NRB A) of 2023) [2023] KEPPDT 1265 (KLR) (18 August 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1265 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E013 (NRB A) of 2023

D. Nungo, Chair, W Mutubwa, Vice Chair, T. Chepkwony, G. Gathu, S Musau, MM Yusuf Jin & AA Abdikadir, Members

August 18, 2023

Between

The Jubilee Party

Applicant

and

The Internal Disputes Resolution Committee of the Jubilee Party

1st Respondent

Nelson Dzuya

2nd Respondent

and

H.E. Uhuru Kenyatta

Interested Party

Ruling

1. Two Applications are for consideration by this Tribunal. The first is the Notice of Motion Application dated 17th July, 2023 filed by M/s Kamotho Njomo & Company Advocates on 28th July, 2023, wherein the Applicant seeks the following Orders:i.That the Honourable Tribunal be pleased and does hereby certify the instant as urgent and does hereby direct that the application be heard ex-parte in the first instance.ii.That the Honourable Tribunal be pleased and does hereby order and or direct that the Honourable Chairperson Ms. Desma Nungo does hereby recuse and or disqualify herself from hearing and or determine any other matter and or applications pertaining to the Complainant/ 1st Applicant and its organs.iii.That the Honourable Tribunal be pleased and does hereby direct that the instant file be paced before a different impartial bench of the Honourable Tribunal for hearing and determination.iv.Any other further orders the Honourable Tribunal deems fit and just to issue.v.Costs for the Instant application be provided.

2. The Application is based on the following grounds:i.That the Applicants are apprehensive that their rights to a fair trial, fair hearing and fair administrative process have been greatly hampered and are in continued attack and infringement by the omissions and/or commissions of the chair of the Honourable Tribunal.ii.That according to the Complainant herein, the judgement in a related suit being PPDTA E003 of 2023 was unduly released to the public at 0800 hours on 11th July, 2023. The release of the said judgement cannot be attributable to either the minority or majority bench.iii.That the release of the judgment was made with the sole intent of besmirching, soiling and or defaming the majority members in the said judgement.iv.That it is thus not illogical and/or improper to hold that the Honourable Chairperson of the Tribunal has failed, ignored and or refused to take responsibility for her failure as the Chairperson of the Honourable Tribunal.v.That an office is only as good as its bearer. The Chairperson has allowed the continued infringement of the right to a fair trial, fair hearing and fair administrative action by failing to protect her fellow officers of the Tribunal from attacks that seeks to influence and or curtail the judicial independence of the majority bench that made a decision based on the law, the filed pleadings, the facts and exercising their judgement and judicial powers.vi.the fact of the improper and prejudicial exercise of her powers as the Chairperson of the Tribunal can be clearly gleaned from her disposition and issuance of various ex-parte orders that were all in favour of the Complainant and ceasing the seamless functioning of the 1st Applicant as follows:a.In PPDTC E009 of 2023, the Honorable Chairperson on 22nd May, 2023 solely issued temporary orders in favour of the Complainants.b.In PPDTA E003 of 2023, the Honourable Chairperson sitting on the 26th May, 2023 solely issued temporary orders in favour of the Complainants.c.In PPDTC E010 of 2023, the Honourable Chairperson sitting on the 26th May, 2023 solely issued temporary orders in favour of the Complainants.d.In PPDTC E011 of 2023, the Honourable Chairperson sitting on the 29th May, 2023 solely issued temporary orders in favour of the Complainants.e.In PPDTC E012 of 2023, the Honourable Chairperson sitting on the 29th May, 2023 solely issued temporary orders in favour of the Complainants.f.In PPDTC E013 of 2023, the Honourable Chairperson sitting on the 14th June, 2023 solely issued temporary orders in favour of the Complainants.vii.Further to the above and to add insult to injury, on 16th June, 2023 in PPDTC E010 of 2023, whereas the Tribunal was aware of the existence of the various advocates representing the parties in the suit, proceeded to issue further ex-parte orders that completely gagged the 1st Applicant’s organs and curtailed the 1st Applicant’s operations.viii.That the Respondents to the aforementioned suit were not accorded similar latitude when they filed an application in PPDTC E010 of 2023 to lift the illegal ex-parte orders issued.ix.That the numerous and continued orders outlined in (6) above were issued by one judicial officer. It is clear beyond peradventure that the said judicial officer was and is biased and complacent in issuing orders hereinabove.x.That it’s an actual miscarriage of justice and an actual infringement of the rights of the Applicants’ rights to fair hearing, fair trail and fair administrative action accorded to every citizen in the Republic of Kenya through the Constitution of Kenya, 2010. xi.That it is the Applicants’ contention that the Honourable Chairperson of the Tribunal has failed, is nonchalant and compromised due to consistent failure to uphold the highest tenets and principles of judicial practice.xii.That from the paragraphs above it is plain and clear to any reasonable persons looking at the Honourable Chairperson’s conduct that she has been full of impropriety, partial, biased and mostly prejudicial to the Applicants.xiii.That it’s not in question that the Applicants are utterly convinced that the Honourable Chairperson has not been impartial. She has been consistently issuing orders favoring and according the Complainant/ Respondent unlimited opportunity to bring unnecessary confusion and or interruption to the Jubilee Party.xiv.That the actions of the Honourable Chairperson of the Tribunal have brought unnecessary disrespect to the jubilee as a body.xv.That the behavior and conduct of the Honourable Chairperson do not in any way or form affirm and or reaffirm the Applicants’ faith in the integrity of the judiciary as a body and the Honourable Tribunal.xvi.That the Honourable Madam Chair by her words and conduct throughout the five suits being PPDTC E009 of 2023, PPDTC E010 of 2023, PPDTC E011 of 2023, PPDTA E003 of 2023 and PPDTC E012 of 2023 as evidenced hereinabove has exhibited manifest bias and prejudice against the Applicants.xvii.That the Honourable Madam Chairperson has failed to exhibit respect for the rule of law, compliance with the law, avoid impropriety and the appearance of impropriety and act in a manner that promotes public confidence in the integrity and the impartiality of the Judiciary.vii.That as it stands the Applicants’ rights to access to just and fair administrative action have been infringed upon by the Honourable Chairperson of the Tribunal.vii.That this Application is brought timeously and in good faith.viii.That this Honourable Tribunal has the jurisdiction to grant the orders sought to protect its dignity, do justice and prevent any further abuse of its process.ix.That it is in the interest of justice that the orders sought be granted.

3. The second Application is a Notice of Motion dated 18th July, 2023 filed by M/s Awele Jackson Advocates LLP on 24th July, 2023, wherein the Applicant seeks the following Orders:i.That Hons. Wilfred Mutubwa, Theresa Chepkwony, Muzna Mohammed Yusuf Jin, and Abdirahman Adan Abdikadir, members of the Political Parties Dispute Tribunal, recuse themselves from presiding over this complaint.ii.That the Chairperson of the Honourable Tribunal be pleased empanel a bench other than Hon. Wilfred Mutubwa, Hon. Theresa Chepkwony, Hon. Abdirahman Adan Abdikadir and Hon. Muzna Mohammed Yusuf Jin to hear this complaint.iii.That the costs of and occasioned by the Application be provided for.

4. The Application is based on the following grounds:i.On 11th July, 2023, by an unprecedented split decision, this Tribunal by a slim majority of 4:3 members dismissed PPDT Appeal Number E003 of 2023. ii.Whereas the said decision was scheduled for delivery at 2. 30 pm on 11th July 2023, the majority decision was leaked and circulated in the public domain on 11th July, 2023 at 8. 00am, hours before its delivery.iii.The said decision had, in breach of customary practice and rules of procedure, already been signed by the majority of 4 members of the Tribunal and was accordingly the controlling decision of the Tribunal in the Appeal.iii.These circumstances give rise to a reasonable apprehension in the minds of the Appellants, as well as reasonable, fair- minded members of the public at large with an interest in the outcome of the complaint that the independence and impartiality of the majority bench (Hons. Wilfred Mutubwa, Theresa Chepkwony, Muzna Mohammed Yussuf Jin, and Abdirahman Adan AbdiKadir) was compromised and that the Appellants will not get a fair trial before the said members.iii.The PPDT owned up to the said leakage, and in validating the appellants’ apprehension, termed the incident as “most unfortune”. In effect, this was a tacit admission of violation of the Judicial Service Act and in particular section 31 and 32 of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 that prescribe in unequivocal terms that a judge or judicial officer shall not disclose to any unauthorized person for any purpose, any confidential information. The code defines confidential information as including information that has not been made a matter of public records relating to pending cases.iii.In the event, there is reasonable basis to impugn the impartiality of the majority bench in any matter related to PPDT Appeal No. 3 of 2023. The Applicant is, as a result, reasonably apprehensive that the 4 tribunal members are not impartial and cannot be neutral arbiters of this Complaint or any matter concerning the same parties.iii.These proceedings relate to substantially the same parties and the subject matter. viii. The Applicant’s constitutional right of fair hearing and the attendant public interest in ensuring democratic governance of political parties far outweigh the prejudice, if any, that may be occasioned on the majority members presiding over this dispute.ix.The objective of this application is to secure a credible environment for the objective hearing and determination of the current complaint and safeguard the complainant’s right to fair hearing before an impartial tribunal as constitutionally guaranteed.x.It is in the public interest that the application be allowed to preserve public confidence in the administration of justice. Its alternative is to risk violation a cardinal constitutional guarantees of the right to fair trail, upon which the entire judicial edifice is built.

5. The Interested Party, filed Grounds of Opposition dated 4th August, 2023 to the Application dated 17th July, 2023 stating that:i.The application is without merit on the basis that it is unsubstantiated and unfounded while lacking legal and factual basis.ii.The applicants under Ground 2 have failed to demonstrate in law and fact why the Honourable Chairperson of the Tribunal is being blamed for the pre-signing, leakage and delivery of the judgment dated July 11, 2023. iii.The applicants have failed to mention that the judgement was drafted, pre signed and delivered by the majority 4 namely Honourable Wilfred Mutubwa, Theresa Chepkwony, Muzna Muhammed Yusuf Jin, and Abdirahman Adan Abdikadir contrary to the Civil Procedure Rules Order 21 Rule.iv.The applicants claim but and fail to show both in fact and law how the Chairperson failed, ignored and/or refused to take responsibility of the presigning, leakage and delivery of the judgement of the majority dated for July 11, 2023. v.The Honorable Chairperson was within her rights to issue the temporary orders as provided for by section 5 (5) of the Political Parties Disputes Tribunal (Procedure) Regulation, 2017 as read with section 39 of the Political Parties Act, 2011 and all applicable laws.vi.The members of the Tribunal enjoy decisional independence under the Constitution 2010, the Judicial Service Code of Conduct 2020 and Bangalore principles of 2022, and any other relevant laws. Every individual member of the Tribunal is responsible for the content, signing, release and delivery as well as the consequences of their decision, ruling and judgements, actions and omissions. vii. The applicants have claimed that the Chairperson gave orders that were in favour of the Complainant yet they have failed to show how the aforementioned orders were detrimental and/or adversely affected the applicants.viii.The applicants have claim bias by the Honourable Chairperson is a frivolous, vexatious and malicious afterthought that the Applicants are clutching at to seek request for the recusal of the Honourable Chairperson. At al material times, the applicants were given a right to be heard, right to fair administrative action and fair trial and orders are as per the discretion of the Tribunal.viii.Further the Chairperson had the power to make the conservatory orders and practice also shows that the Chairperson can do. In any event the decisions she made are similar to what the full bench made in Annexure ND6, PPDTC/E010/2023. viii.This entire application reads as an appeal or an application for review but without sufficient grounds, any legal basis and in the wrong forum.

6. The Interested Party also sought the following orders from the Tribunal:a.The Application for recusal of the Honourable Chairperson be denied.b.The Application for recusal of the Honourable Wilfred Mutubwa, Theresa Chepkwony, Muzna Mohammed Yusuf Jin, and Abdirahman Adan Abdikadir be allowed as prayedc.Any other orders and/or relief as the Tribunal may deem just and fit to grant

The Complainant/Applicant’s Written Submissions to the Notice of Application dated 18 th July, 2023. 7. The Complainant’s submissions were dated 7th August, 2023 and filed on the same date. The Applicant begun its address by stating that the submissions filed are with respect to the uncontroverted leakage of the judgement of the majority members of this Tribunal in PPDT No. E003 of 2023 before its official disclosure by the Tribunal.

8. The Complainant/Applicant stated that the said judgment had before its delivery been pre-signed by 4 members of the Tribunal, contrary to Order 21, Rule 3(1) of the Civil Procedure Rules that provides that a judgement pronounced by the judge who wrote it shall be dated and signed by him in open court at the time of pronouncing it.

9. The Complainant/Applicant proceeded to cite Section 4(d)&(f) of the Judicial Service Act as read with regulation 31 and 32 of the Judicial Service (Code of Conduct and Ethics) regulations 2020 which prohibit a judicial officer from disclosing confidential information to unauthorized persons. The code also defines confidential information to include information that has not been made a matter of public record relating to pending cases.

10. The Complainant/Applicant cited Article 50(1) of the Constitution which guarantees every person the right to have their dispute determined by an impartial court and further cited Article 47(1) which guarantees every person the right to fair administrative action that is expeditious, efficient, lawful and procedurally fair.

11. The Complainant/Applicant relied on the legal maxim requiring that justice not only be done but be seen to be done.

12. The Complainant/Applicant cited the Supreme Court decision in the case of Jasbir Singh Rai and 3 others vs. Tarlochan Singh and 4 others, Petition No. 4 of 2012 [2013] eKLR wherein the Court stated the following when confronted with the issues of recusal:“…it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the nonparticipation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised…”

13. The Complainant/Applicant also relied on the case of Alliance Media Kenya Limited vs. Monier 2000 Limited & Njoroge Regeru HCCC No. 370 of 2007 eKLR where Warsame J emphasized the importance of ensuring that the confidence of the public is not eroded by the failure of judges to recuse themselves when an application is made.

14. The Complainant/Applicant quoted the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 prescribing the circumstances warranting recusal of a judicial officer one of which is where his/her impartiality might be reasonably questioned.

15. The Complainant/Applicant also relied on the Court of Appeal decision in Republic v Mwalulu & Others [2005] wherein when addressing the question of disqualification of a Judge, the Court stated that the test to be applied in such scenarios is objective and the facts constituting bias must be specifically alleged and established. The Court went on to state that when dealing with the issue of disqualification, all it can do is carefully examine the facts alleged to show bias and from those facts draw an inference, as any reasonable and fair-minded person would do. The Court then emphasized that the single fact that a judge has sat on many cases involving one party cannot be sufficient reason for that judge to disqualify himself.

16. The Complainant/Applicant stated that the question arising out of its application is under what circumstances the majority judgement was pre-signed and made available to the general public ahead of its scheduled delivery. The Complainant/Applicant then stated that at the time of delivery of the said judgement, the Tribunal owned up to the leakage and failed to explain the circumstances under which it was leaked. On this basis the Complainant/Applicant concluded that the judgement was not merely leaked but the leakage was a culmination of the breaches complained of.

17. The Complainant/Applicant also stated that based on the behavior of the affected members of the Tribunal, in that they ignored the issue and did not attempt to assuage the parties and public’s fears over their perceived impartiality, any reasonable person would conclude that the Tribunal members were biased and that their decision was unlawfully influenced against the Applicant.

18. The Complainant/Applicant further relied on the South African Constitutional Court decision in the case of President of the Republic of South Africa and others v South African Rugby football Union and Others 1999 (4) SA 147 and stated that essentially, in considering an application for recusal: the court first presumes that judicial officers are impartial in adjudicating disputes; the applicant bears the onus of rebutting the presumption of judicial impartiality, and; the presumption of judicial impartiality requires cogent or convincing evidence to be rebutted.

19. The Complainant/Applicant also relied on the Supreme Court decision in Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR wherein the Court was considering an application by the Judicial Service Commission for recusal of various judges on grounds that the judges had participated in related deliberations before it. The Complainant/Applicant then quoted the following excerpts from this decision:We have considered the above rival submissions. The Supreme Court has a special constitutional mandate which cannot be delegated to any other forum in the entire governance set-up. The Court is firmly guided by certain precious values, which provide the context within which it takes ultimate responsibility for matters of dispute settlement, in accordance with the law. This scenario is objectively depicted by the late Lord Denning (18991999) of England who thus spoke of the candor and trust associated with the judicial appointment:“[E]very Judge on his appointment discards all politics and all prejudices. Someone must be trusted. Let it be the Judges” [see Allan C. Hutchinson, laughing at the Gods: Great Judges and How they made the Common Law (Cambridge: University Press, 2012), p.156.

20. The Complainant/Applicant the quoted Justice Ibrahim who stated as follows: Another truth, which is a reality now, is that among the Supreme Court Judges, we shall/may have former JSC Commissioners. It cannot therefore be stated in general terms that any Supreme Court Judge who sits/sat in the JSC will, as a matter of cause, not adjudicate in a matter where the JSC is a party. Such a pronouncement will be a total mockery of the Sovereign will of the People of Kenya who established the two institutions in the Constitution and willed that they carry out their various functions simultaneously.Tied to the constitutional argument above, is the doctrine of the duty of a judge to sit. Though not profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every judge takes an oath of office: “to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a court of law.In respect of this doctrine of a judge’s duty to sit, Justice Rolston F. Nelson; of the Caribbean Court of Justice in his treatise – “Judicial Continuing Education Workshop: Recusal, Contempt of Court and Judicial Ethics; May 4, 2012; observed:“A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason”…From my readings, it is not lost to my mind that there is a criticism of this doctrine for being subject of abuse by judges, so as to sit in matters when it is blatantly clear that they are biased and ought not to have sat. However, where judiciously invoked, this doctrine of the duty to sit is a key component of Constitutionalism. I will invoke that doctrine in this matter and hold that all Judges of the Supreme Court of Kenya, members of the Judicial Service Commission or former members, have a duty to sit in this matter so as to affirm Constitutionalism.

21. The Complainant/Applicant also quoted Justice Njoki Ndung’u who opined as follows:Additionally, to find that membership of a Judge in the 1st respondent, automatically disqualifies him or her on the basis of perceived bias from hearing and determining any matter relating to the 1st respondent would be to stretch the perception of bias too far.…It must always be remembered that there is a presumption of impartiality of a Judge. In the case of President of the Republic of South Africa & 2 others v South African Rugby Football Union & 3 others, (CCT16/98) [1999] the South African Constitutional Court held that there was a presumption of impartiality of judges by virtue of their training. Therefore, they would be able to disabuse themselves of any irrelevant personal beliefs or predispositions when hearing and determining matters.

22. The Complainant/Applicant submitted that there is a hard balance between the duty to sit and recusal of oneself from hearing and determining the matter. It proceeded to state that on one hand, as an adjudicator, one must consider that recusal aims at maintaining the appearance of impartiality and on the other hand, one has a constitutional duty to sit in cases assigned to him or her and can only refuse to hear a case where an extremely good reason is presented.

23. The Complainant/Applicant quoted the decision in Republic v Mwalulu & others wherein the Court stated that the single fact that a judge has sat on many cases involving one party cannot be sufficient reason for that judge to disqualify himself.

24. The Complainant/Applicant went on to state that by parity of reasoning, the mere fact that the chairperson issued interim orders in related cases that were eventually heard contemporaneously cannot ipso facto infer bias. It went on to state that if the Applicant believed that the chairperson exercised her discretion injudiciously, they ought to have appealed the same and as it stands, no appeal has been filed to question the said orders.

25. The Complainant/Applicant submitted that the evidence of impartiality as against the four members whose judgement in PPDTA E003 of 2023 is as clear as day. It went on to state that any fair-minded person considering the said circumstances would easily conclude that the only reason the chairperson’s recusal is sought is because Mr. Njomo’s clients were displeased with her decisions and not because the events of the nature proven in respect of the judgement of the four members of the Tribunal.

26. In conclusion, the Complainant/Applicant stated that no evidence has been adduced to prove that the chairperson leaked or caused leakage of the judgement of the Tribunal as alleged. It stated that the Application dated 17th July, 2023 is in the event speculative and an abuse of the court process as it has not met the threshold for recusal of a judicial officer and is for dismissal. The Complainant/Applicant then prayed that its Application be allowed with costs in the cause.

The 1st Respondent’s Written Submissions to the Notice of Application dated 18th July, 2023. 27. The 1st Respondent summarized the orders sought in the Notice of Motion Application dated 18th July, 2023 as well as the contents of its Replying Affidavit dated 7th August, 2023. The 1st Respondent identified the following issues for determination:a.Has the application met the threshold for recusal?b.Costs of the application

28. The 1st Respondent begun by quoting the definition of recusal from the Black’s Law Dictionary which states that it is the removal of oneself as a judge or policy maker in a particular matter, especially because of conflict of interest.

29. The 1st Respondent relied on the decision in the case of Edward Mwangi Macharia v Maina & Maina Advocates [2019] eKLR wherein the court while quoting the Supreme Court decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR stated that the grounds on which recusal of a judicial officer can be based on is whether there is a perception of fairness, of conviction, and of moral authority to hear the matter. The 1st Respondent went on to quote Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR wherein the majority of the Supreme Court Judges set out the test for determining the question of recusal as follows:11. In an American case, Perry v. Schwarzenegger, 671 F. 3d 1052 (9th Circ. February 7, 2012) it was held that the test for establishing a Judge’s impartiality is the perception of a reasonable person, this being a “wellinformed, thoughtful observer who understands all the facts”, and who has “examined the record and the law”; and thus, “unsubstantiated suspicion of personal bias or prejudice” will not suffice.12. Such a broad test is adopted too in South African Defence Force and Others v. Monnig and Others (1992) (3) SA 482 (A), p.491“The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person accused before a court of law should have a fair trial.”

30. The 1st Respondent also quoted Justice M.K. IBRAHIM in his concurring ruling, where he reaffirmed the standard or test as follows:“…in R vs Liverpool City Justices, ex parte Topping [1983] 1 WLR 119 elaborated on the test applicable. The Court has to address its mind to the question as to whether a reasonable and fair-minded man sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. If the answer is in the affirmative, disqualification will be inevitable.”

31. The 1st Respondent then quoted the final paragraphs in the Supreme Court Majority Ruling as follows:Even as this Court takes cognizance of the merits of the individual Judge’s personal convictions, and of matters of ethics, in such a situation, it is inclined in favour of a choice which begins with the Judge’s commitment to the protection of the Constitution, as the basis of the oath of office. The shifting scenarios of personal inclination should, in principle, be harmonized with the incomparable public interest of upholding the Constitution, and the immense public interest which it bears for the people, whose sovereignty is declared in Article 1(1). It follows that the recusal of a Judge of the Supreme Court is a matter, in the first place, for the consideration of the collegiate Bench, whose decision is to set the matter to rest.

32. Further, the 1st Respondent quoted the High Court in Edward Mwangi Macharia v Maina & Maina Advocates [2019] eKLR wherein the court inclined itself with the Supreme Court in Rai vs. Rai and quoted Republic v Independent Electoral and Boundaries Commission and another, Ex-parte Coalition of Reforms and Democracy (CORD) [2017] eKLR and stated as follows:12. Having considered the above arguments, the question that then arises is: what constitutes bias? The High Court in Republic v Independent Electoral & Boundaries Commission & another Ex parte Coalition for Reforms and Democracy (CORD) [2017] eKLR with reference to the Bangalore Principles on Judicial Conduct reasoned thus:“Bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to judicial proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind, an attitude or point of view, which sways or colors judgement and renders a judge unable to exercise his or her functions impartially in a particular case. However, this cannot be stated without taking into account the exact nature of the bias.”13. The court went further to cite the decision rendered by the Constitutional Court of South Africa in President of the Republic of SouthAfrica v The South African Rugby Football Union & Others Case CCT 16/98 in which it was stated inter alia as follows:“Courts have rightly recognized that there is a presumption that judges will carry out their oath of office…This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias.”

33. The 1st Respondent then stated that the claims by the applicant are solely based on the following reasons:a.The majority tribunal members are not impartialb.The tribunal members signed a judgement before the date of the issuancec.The judgement of the tribunal leakedd.The members have issued judgements that were not favorable to them in the previous suit and this is related to the suit of the same subject and the same parties.

34. The 1st Respondent submitted that the applicants herein have not met the threshold for grant of the recusal application as firstly, they have failed to show evidence of any real or perceived impartiality on the majority members of the Tribunal. The 1st Respondent then emphasized that no evidence has been adduced to show that the majority members of the Tribunal are a party, or related to a party, or are material witnesses or have any financial interest in the outcome of the case.

35. On the question of signing a judgement before delivery, the 1st Respondent relied on the averments made in paragraphs 12 and 17 of its Replying Affidavit and stated that in this instance, members of the Tribunal have room to file a Replying Affidavit explaining the manner in which judgements are signed. To buttress this, the 1st Respondent relied on the Court of Appeal descision in Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019) [2021] KECA 366 (KLR) where the court noted the following with respect to the affidavit filed by Lady Justice Njoki:Njoki SCJ took the unusual, but in the circumstances quite understandable and necessary step, of filing an affidavit within proceedings over which she was one of the judges. In the affidavit, sworn on June 6, 2016, she stated that she was on duty on the material day, and took issue with misleading factual allegations made by JSC and CRJ denying the fact of her having been on duty, and querying her integrity and the integrity of the manner in which she handled the two applications before her. Those aspersions had in fact been picked up by the media, and given prominence causing Njoki SCJ much distress.

36. On the leaking of the judgement, the 1st Respondent stated that the same is an administrative function and should be undertaken through the proper disciplinary process.

37. On the question of having ruled against the Applicant in the previous judgement and the matter being the same subject and the same parties, the 1st Respondent stated that from the filings before the Tribunal, the complainants and respondents in the suit are different individuals from different organs of the party.

38. The 1st Respondent stated that in the instant suit, the Office of the Registrar of Political Parties (ORPP) is neither a party in her personal nor official capacity. It went on to state that it is evident that the suit had The National Disciplinary Committee of the Jubilee Party (TNDC) as the Respondent and not the Internal Dispute Resolution Committee (IDRC). The 1st Respondent stated that the subject matter in the previous suit was a decision of the ORPP while in the instant suit, it is a descision and/or finding of the IDRC.

39. The 1st Respondent then stated that the rules of sub-judice are clear. The parties herein are different and the subject matter is not the same. It then relied on the finding in Edward Mwangi Macharia v Maina & Maina Advocates [2019] eKLR wherein the court stated as follows:The mere fact that the parties have appeared before this court on previous occasions and that in those occasions this court ruled in favour of the respondent cannot by itself amount to bias or impartiality on the part of the court.

40. The 1st Respondent then summarized the principles of necessity as set out in the Supreme Court Ruling in Jasbir Singh Rai and 3 others vs. Tarlochan Singh and 4 others, Petition No. 4 of 2012 [2013] eKLR as follows:Necessity and Statutory AuthorityIn circumstances in which all the members of the only tribunal competent to determine a matter are subject to disqualification, they may be allowed to sit and determine the matter under the doctrine of necessity to avoid a miscarriage of justice. This common law principle will however, only apply in very exceptional circumstances which are required to be very clear.

41. The 1st Respondent also pointed out that since there are two applications for recusal before the Tribunal, there will be no one left to determine the applications as the remaining two members will not in any way make a quorum to sit, hear and determine any matters before the tribunal as relates to this suit.

42. The 1st Respondent then submitted that the Application should be dismissed as it had failed to meet the threshold for recusal since it failed to provide cogent evidence to rebut the presumption that judges will carry out their oath of office.

43. With respect to costs, the 1st Respondent stated that since the instant application was duly filed by the Applicant, Mr. Jeremiah Kioni, he should bear the cost pursuant to the dictates of the Civil Procedure Act. To buttress this point, the 1st Respondent quoted Justice (Retired) Richard Kuloba at page 101 of his book, Judicial Hints on Civil Procedure wherein he stated as follows:“The law of costs as it is understood by the courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributable to him, which would induce the court to deprive him of his costs – the court has no discretion and cannot take away the plaintiff’s right to cost. If the Defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course.”

The Interested Party’s Submissions in response to the Application for recusal dated 18th July, 2023 and the Application dated 17th July, 2023. 44. The Interested Party, after summarizing the brief facts leading to the filing of each of the two Applications before the Tribunal summarized the following issues for determination:i.Whether the Complainant’s Application dated 18th July, 2023 is merited?ii.Whether the 1st and 2nd Respondent’s Application dated 17th July, 2023 is merited?iii.What are the appropriate remedies and orders regarding the two (2) applications?

Part 1 – The Interested Party’s Submissions in support and affirmation of the Application for recusal dated 18th July, 2023. 45. The Interested Party begun by affirming the legal and factual grounds as submitted upon by the Complainant.

46. In submitting on the Constitutional, legal and regulatory matters arising, the Interested Party begun by citing Article 50(1) of the Constitution of Kenya, 2010 that provides for every person’s right to have any dispute that can be resolved by the application of the law, decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

47. The Interested Party affirmed the grounds raised vide the Application dated 18th July, 2023 for the recusal of the majority, namely Honourable Wilfred Mutubwa, Theresa Chepkwony, Muzna Mohammed Yusuf Jin and Abdirahman Adan Abdikadir. The Interested party stated that Article 50(1) warrants the empaneling of another independent and impartial tribunal or body as an impartial bench is central to crystallizing every party’s right to a fair trial, which is a non-derogable right under Article 25(c) of the Constitution.

48. The Interested Party then submitted that the Tribunal is bound by its rules, specifically, Rule 27(3) which provides that any issue including the application for recusal of the four members shall be proved on a balance of probabilities. The Interested Party stated that the Application raises a foundation that there might be a likelihood of bias in the hearing and determination of the substantive matter by the majority bench, matters which cannot be taken lightly.

49. The Interested Party then relied on the Supreme Court Ruling in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR wherein the Court stated that the grounds for the recusal of a judicial officer are not cast in stone. The Interested Party then submitted that under Principle 2 of the Bangalore Code of Judicial Conduct 2001 judicial officers are expected to be impartial while discharging their mandate and that such impartiality applies not only to the decision itself but also to the process by which the decision is made.

50. The Interested Party then cited Principle 2. 5 of the Bangalore Principles which provides for grounds upon which judicial officers can recuse themselves including where the judicial officer has actual bias or prejudice concerning a party. The Interested Party stated that such recusal can only be limited under the proviso that it would cripple the ability to constitute a quorate bench for the purposes of effectively discharging the tribunal’s mandate and where the recusal would lead to serious miscarriage of justice.

51. The Interested Party went on to state that in the event this application is allowed, the Tribunal would still be properly constituted by three members pursuant to Regulation 5(3) of the PPDT Regulations 2017 which provides that the Tribunal is properly constituted for purposes of any proceedings before it if it is comprised of 3 members, one of whom is an Advocate of the High Court.

52. The Interested Party then pointed out that the Constitution, statute and practice envisages instances where the Tribunal members can recuse themselves. He quoted Supreme Court Justice Ibrahim who while concurring in Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR stated that an application for recusal is a shield to protect the applicant’s interest so that his/her matter is heard by an impartial court.

53. The Interested Party, in citing Order 21 Rule 3(1) of the Civil Procedure Rules stated that by the majority Tribunal members pre-signing the decision, they put the entire process of hearing and determination of the matter into question.

54. In conclusion, the Interested Party submitted that the application has successfully raised valid questions on the process leading up to the decision making by the Tribunal and as such, it should be allowed as prayed.

Part II – The Interested Party’s Submissions in opposition to the Application for recusal of the Chairperson dated 17th July, 2023. 55. The Interested Party begun by stating that as per Article 160(5) of the 2010 Constitution, no judicial officer should be held liable for any judicial actions or omissions done in good faith or within the lawful discharge of their judicial mandate.

56. The Interested Party then relied on Principle I of the Bangalore Principles in submitting that the chairperson had the constitutional, legal and regulatory mandate to hear, determine and make the appropriate orders contested by the Applicant. He then submitted that the application filed ignores that the chairperson has the legal and statutory power, function and mandate under Regulation 5(5)(c) of the PPDT Regulations 2017 as read with Articles 23(3), 159 and 161 of the Constitution to hear and determine applications for grant of interim orders. He submitted that the above mandate cannot be questioned merely because the orders granted were not in favor of the Applicant.

57. The Interested Party cited Regulation 29(1) of the PPDT Regulations 2017 and other relevant authorities which provide that the decision of the Tribunal may be unanimous or determined by majority verdict. He then stated that an interpretation of this provision denotes that the Chairperson cannot take responsibility for the drafting, signing, delivery and leakage or the consequences thereof.

58. The Interested Party submitted that the Applicant has not proven its allegations and that upon perusing the Application and Supporting Affidavit, it is hard to draw a factual or legal nexus between the Application and how the alleged orders by the Chairperson affected the fundamental rights of the Respondents, if any.

59. The Interested Party further submitted that the Applicant should have filed an appeal or made a formal application for review of the alleged temporary orders and that its failure to do so cannot be visited upon the chairperson of the Tribunal.

60. The Interested Party stated that the Applicant ignored the Chairperson’s duty to sit as a judicial officer as envisaged by the Supreme Court in Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR wherein the Court held as follows:“Recusal and reassignment is not a matter to be lightly undertaken by a district judge, While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation not to recuse ourselves; absent valid reasons for recusal, there remains what has been termed a “duty to sit.”“the requirement of independence and impartiality of a judge is counter balanced by the judge’s duty to sit, at least where grounds for disqualification do not exist in fact or in law the duty in itself helps protect judicial independence against maneuvering by parties hoping to improve their chances of having a given matter determined by a particular judge or to gain forensic or strategic advantages through delay or interruption to the proceedings as was pointed out by the Supreme Court in the holding by the New Zealand Court of Appeal in Muir -v- Commissioner of Inland Revenue [2007] 3 NZLR 495. ”

61. The Interested Party also submitted that the Applicant should have provided an objective, evidence-based application based on the Constitution in order to disqualify the Chairperson from sitting. He further stated that members of the Tribunal are judicial officers bound by the provisions of the Judicial Service Act, 2011 as read with the Judicial Service Code of Conduct and Ethics which mandates judicial officers to exercise decisional independence while hearing and determining any matter before them. He emphasized that the Applicant has neither demonstrated how the chairperson failed to perform this duty, nor how the Chairperson’s decisions were influenced by the Complainant or at all.

62. The Interested Party then quoted the findings in the case of Oloololo Game Ranch Ltd v. National Land Commission & 2 others; Chief Land Registrar &2 (Intersted PARTIES) [2020] eKLR where the Court, in dismissing the application for recusal held as follows:‘the allegation of bias is unsubstantiated and is tantamount to wanting to stop this court from the conduct of judicial function and I consequently dismiss the same with costs.”

63. Based on the above case, the Intersted Party submitted that where a recusal application discloses no reasonable grounds to disqualify a judicial officer from sitting, then the Court is bound to dismiss it.

64. Based on the foregoing submissions, the Interested Party sought the following Orders from the Tribunal:1. That the Application for Honourables Wilfred Mutubwa, Theresa Chepkwony, Muzna Mohammed Yusuf Jun and Abdirahman Adan Abdikadir be allowed as prayed.2. That the Application for recusal of the Honourable Chairperson be denied as it raises no valid ground3. Any other orders and reliefs as the Tribunal may deem just and fit to grant.

Tribunal’s Analysis and Findings 65. We have carefully considered the rival submissions by the parties, and find the following two questions as falling for our consideration and determination:a.Whether the parties have met the threshold for the recusal of any of the members of the Tribunal?b.Who bears the costs of the applications?

Whether the parties have met the threshold for recusal of any member of the tribunal 66. There is a common understanding of the legal threshold for recusal of a judicial officer. Both sides to the applications most articulately set out the law with sufficient proficiency and precision. However, it is the application of the law to the obtaining facts that is diametrically different.

67. We agree with the submissions by the parties that judicial processes are sanctified and must possess sufficient integrity to imbue confidence in the users of courts and tribunals. Courts and tribunals must hold themselves to the highest level of integrity and moral turpitude. As the old adage goes, justice must not only be done but must be seen to have been done.

68. From the decisions cited by the parties before us, the principles that govern the recusal of judicial officers are fairly settled. Allegations of bias, potential or actual, must be supported by cogent evidence. This requirement is meant to insulate courts from assaults vide recusal applications whose sole intention is to seek a ‘favorable’ bench. Yet, we must also appreciate the duty of courts to view meriting recusal applications as advancing the cause of a fair and impartial judicial process. The obligations are, therefore, a two-way street, with duties and obligations on either side of the court, the bar and bench.

69. The role of the tribunal as an independent and impartial arbiter is ensconced in the rules of engagement and statutory provisions that create it.

70. The test as laid down in the myriad of cases cited before us; is one of a fair minded and informed observer. It is also incumbent upon a party alleging bias, lack of impartiality and independence of the tribunal to discharge the onus of proof to the required standard, in establishing the basis of his apprehension. Mere allegations or a strong sense of grievance or fear is not enough.

71. We find the words of the Supreme Court of Kenya in Jasbir Singh Rai & 3 others v Tarlachan Singh Rai & 4 others (2013) eKLR, quoting Porter v Magil (2002) 2AC 357 most illuminating in this regard:“The tests to be applied by a judge who recognises a possible apparent bias is thus a “double real possibility” test; the question he/she must ask him/herself is whether or not there is a possibility that a fair minded and informed observer might think that there was a real possibility of bias”.

72. Putting on the hat of a” fair minded and informed observer”, we evaluate the grounds advanced in the two applications against the frontiers of the law established in the foregoing paragraphs of our analysis.

73. The grievance relating to the application seeking the recusal of the Chairperson of the Tribunal is two-pronged. Firstly, that the Chairperson, in several cases relating to the Jubilee party, the 1st and 2nd Respondents, issued orders favourable to the Hon. Jeremiah Kioni, as against the 1st and 2nd Respondent; and that some of the orders, such as those issued on the 16th day of June 2023 in PPDTC E010 of 2023 had the effect of paralyzing the operations of the Complainant political party. Secondly, that the Chairperson of the Tribunal was personally culpable for the leakage of the decision of the PPDTA No. E003 of 2023.

74. On the first limb, from the onset, we underscore that the Tribunal is established under section 39 of the Political Parties Act, 2011 (as amended). Its jurisdiction is delineated by the statute under Section 40 of the same Act. The Political Parties Disputes Tribunal (PPDT) Regulations of 2017, operationalize sections 39 and 40 of the Act. To this end, the Chairperson of the Tribunal under Regulation 5(3), sits as a single member Tribunal, and can consider and determine urgent matters brought under certificate of urgency. In so doing, the Chairperson can issue interim, conservatory or interlocutory orders.

75. We have perused the records of the Tribunal in the matters the subject of the application by the Respondents (Annexture ND1 to 6 to the Affidavit of Nelson Dzuya of 17/6/2023) and do not discern any infraction of the Chairperson’s powers in issuance of the interim orders complained of. The orders were properly made in the course of the Chairperson’s execution of her mandate in accordance with the obtaining statute and regulations. In any event, there are sufficient safeguards and mechanisms, statutory and in the Regulations for redress in the event orders made at the ex parte stage require revisiting. We state that the Respondents did not seek the setting aside, review, nor did they appeal against the said orders, if they felt sufficiently aggrieved by the same. It cannot be acceptable recourse to train one’s guns on a judicial officer while these options exist.

76. The second limb of the application is without any factual basis. The matters relating to the most unfortunate leakage of the judgment of this Tribunal in Appeal No E003 of 2023 are the subject of pending administrative investigations. The less we say about it the better. Suffices it to state, however, that there is no adverse finding, thus far, against the Chairperson, or any member of the Tribunal, regarding the leakages. Nor have the Respondents offered any evidence to this effect. The allegations in this respect are as speculative as they are unfortunate.

77. In the absence of any cogent evidence of bias, lack of impartiality or independence established by the applicant, we find no merit in the application dated 18th July 2023. The same commends itself to dismissal.

78. We are fully conscious of the likely effect of the recusal of the five members of the Tribunal. The resulting status in such that the remaining two will not be able to form a quorum to sit as a bench in accordance with Regulation 5(3) of the PPDT Regulations, 2017. We are equally alive to the effect this might have on the ability of the Tribunal to discharge its mandate in this and other pending matters.

79. It is for the foregoing reasons that we default to and are fortified in the doctrine of “Necessity and Statutory Authority” as espoused by Ibrahim SCJ in Jasbir Singh Rai v Tarlachan Singh Rai & Others (2013) eKLR in the following words.“In circumstances in which all the members of the only tribunal competent to determine a matter are subject to disqualification, they may be allowed to sit and determine the matter under the doctrine of necessity to avoid a miscarriage of justice. The common law principle will however, only apply in very exceptional circumstances which are required to be very clear.The Supreme Court of the United States of America in the case of Caperon v Massey vacated a decision by Justice Benjamin, a Judge of the West Virginia Supreme Court, in which he had declined to recuse himself. The Justice had been requested to recuse himself on the ground that his campaign to ascend to office as Judge had been heavily funded by the Respondent”.

80. His Lordship at paragraph 27 of the decision quoiting Simonson v General Motors Corporation U.S.D.C P. 425 stated that“recusal and reassignment is not a matter to be lightly taken by a district judge. While in proper cases, we have a duty to recuse ourselves, in cases such as the one before us we have commitment obligation not to recuse ourselves. Absent valid reason for recusal, this remains what have been termed as a duty to sit…”

81. Similarly, the PPDT is a specialized Tribunal; the only one that possesses the original and appellate mandates circumscribed in Section 40 of the Political Parties Act, 2011. Should the honourable members recuse themselves as sought, the tribunal would be rendered dysfunctional hence defeating the very purpose for which it was established. It simply will be bereft of the quorum necessary to conduct its business in matters relating to the parties hereto.

82. Turning to the Complainant’s application, primarily targeted at the recusal of Hon. Dr. Wilfred A. Mutubwa; Hon. Theresa Chepkwony; Hon. Abdikadir Adan; and Hon. Muzna Jin, ostensibly for being members of the Tribunal whose decision in the majority in Appeal No. E003 of 2023 had leaked.

83. The gravamen of the application is that the leakage of the decision had irretrievably tainted the four members of the Tribunal to the extent that their sitting to adjudicate matters involving the Complainant would undermine his right to a fair trial by an impartial arbiter. In other words, it is the Complainant’s view that the leakage of the decision was the joint and several responsibility of the four members of the Tribunal.

84. Our view of the matter is as follows. As stated elsewhere in our analysis foregoing, the question of the source and objective of the leakage remains a matter of active investigations, we shall not oblige the Complainant’s invitation to delve into the arena of speculation as to the source, or, indeed, objective of the leakage.

85. It, however, suffices to point out several immutable facts. One, the leaked decision was at all times material to the leak, in the custody of all members of the Tribunal. Two, notwithstanding the fact that it was a majority decision, it was the decision of the Tribunal, owned, by the entire tribunal, just as the entire membership of the Tribunal own the decisions of the sole member (Chairperson) in ex parte proceedings. Three, as at the date of the leakage, the Tribunal’s decision had already been reached and written, only awaiting delivery.

86. The applicant bases his application on some apprehension arising out of the leakage of the decision, but does not demonstrate how that leakage translates to bias, lack of impartiality or independence. Simply put, the fact of leakage of decision ipso facto, per se, does not necessarily imply bias or unfairness against the unsuccessful party in that case. Nor does it imply that the members of the Tribunal who appended their signatures thereto were responsible for the leakage. We find this ground, alone, insufficient to sustain recusal of the members.

87. It is not clear to us how the applicant was able to isolate the four members of the Tribunal cited in his application as being somehow responsible for the leakage, to the exclusion of the other three. It is curious to note that the three members that the applicant excludes from his application delivered a minority decision in his favour in the same said PPDT Appeal No. E003 of 2023, and PPDT Complaint No E 009 of 2023. The motive to exclude them from the application for recusal is evident and does not require strained interpretation.

88. The Applicant also advanced that under Regulation 5(3) of the PPDT Regulations, 2017, Tribunal’s quorum for a sitting is three members, Discernibly, the applicant’s view is that the three members against whom he seeks no recusal can form a quorum for Tribunal sittings. While this may be theoretically and practically true, the targeted challenge on four members of the Tribunal on account of their previous decision against the applicant is not only without legal or factual merit, but has a ring of calculated forum constitution, which cannot be countenanced.

89. Contrary to the submission by the applicant, this Tribunal in its various formations, including the impugned members, has issued orders ex parte, and inter partes in his favour, just as it has against him. In the absence of cogent compelling evidence, the fact that a decision is made against a party in a case is not demonstrative of bias or lack of impartiality. As is aptly put in legal circles “you lose some, and you win some; and that is life” or better still “a party is as good as his fact/case”. To blame a judicial officer, without substantive evidence, of lacking impartiality, is to say the least, unfair and uncalled for.

90. We find it also necessary to state that judgments, in this day and age of virtual proceedings, where Tribunal members sit far apart and deliver judgments, sometimes from different locations, may be pre-typed, and pre-signed. This practice does not erode the collegiality or lower the integrity of the decision. In a collegiate court with more than one judicial officer sitting, it is inevitable that decisions may have to be made and signed electronically in advance. The court Practice Directions issued by Emeritus Chief Justice David Kenani Maraga EGH on 4th March 2020 vide Gazette Notice no 3137 at the height of the COVID 19 pandemic, permits this approach for practical reasons: efficiency in case management of virtual court system.

91. We believe that we have said enough to demonstrate that the Complainant’s application dated 17th July 2023 equally fails.

Who bears the cost of the application? 92. Since the substantive complaint is still pending, and applications by either side have failed, we find it fair to order each party to bear its own cost of the two applications.

Disposition 93. In the upshot, our distinctive orders are as followsi.Both applications dated 17th and 18th July 2023 are dismissed.ii.Each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF AUGUS 2023. HON. DESMA NUNGO - HSC CHAIRPERSONHON. DR. WILFRED A. MUTUBWA LLD OGW C.ARB FCIARB - VICE CHAIRMANHON. THERESA CHEPKWONY - MEMBERHON. GAD GATHU - MEMBERHON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN - MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER