[2023] KEPPDT 1279 (KLR)

Kioni & 3 others v National Disciplinary Committee of the Jubilee Party & 2 others (Complaint E010 (NRB A) of 2023) [2023] KEPPDT 1279 (KLR) (10 July 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1279 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E010 (NRB A) of 2023

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

July 10, 2023

Between

Jeremiah Ngayu Kioni

1st Complainant

David Murathe

2nd Complainant

Kagwe Gichohi

3rd Complainant

The Jubilee Party

4th Complainant

and

The National Disciplinary Committee of the Jubilee Party

1st Respondent

Joshua Kutuny

2nd Respondent

Kanini Kega

3rd Respondent

Judgment

Introduction 1. The Complainants filed a Complaint dated 25th May, 2023 in which they seek the following declarations and orders:a.A declaration that on the 2nd day of February, 2023, the 1st Complainant was the substantive holder of the position of Secretary General of the Jubilee Party.b.A declaration be issued that the purported notice under the hand of the 2nd Respondent dated 2nd February 2023, the agenda, resolution, letter dated 10th February,2023 and the impugned decision of the 1st Respondent purporting to expel or suspend the complainants were null and void.c.A declaration that the 3rd Respondent’s letter dated 19th May, 2023 and all resolutions of the National Executive Committee (NEC) purportedly made on 19th May, 2023 were consequently null and void.d.An order quashing and/or setting aside the purported notice dated 2nd February, 2023, the agenda, resolution, letter dated 10th February, 2023 and the impugned decision of the 1st Respondent purporting to expel or suspend the complainants, the 3rd Respondent’s letter dated 19th May, 2023 and all resolutions of the NEC purportedly made on 19th May, 2023. e.Costs of the Complaint.

2. The Tribunal directed that all interlocutory matters would be subsumed into the Complaint; heard and disposed of together in this judgment. Objections and interlocutory matters are therefore considered together with the merits in this judgement.

Complainants’ submissions (Mr. Awele) 3. The 1st to 4th Complainants were represented by Mr. Awele, who appeared alongside Professor Sihanya.

4. Mr. Awele started by stating that the Complaint was an Appeal from the decision of a lower Court and as such, the Tribunal should look at the evidence adduced and reach its own conclusions. Counsel stated that the Complaint is anchored on allegations of violations of the Constitution of Kenya, 2010 the Fair Administrative Action Act, 2015, and the principles of natural justice. Mr. Awele then cited the case of Edwin Dande v The Inspector General of Police (2022) eKLR in submitting that a merit review has to be conducted where the Complaint is clothed as a Constitutional question.

5. He then stated that Section 7 of the Fair Administrative Action Act clothes the Tribunal with power to set aside any decision that contravenes the provision. He stated that the decisions complained about violate the said provision. He proceeded to state that the decision reached in the 4th Complainant’s NEC meeting held on 10th February 2023 is an illegality, null and void ab initio.

6. Mr. Awele submitted that according to Article 22 of the Jubilee Party Constitution, either the Secretary General or the Party Leader must give Notice before a meeting is convened. Mr. Awele pointed out that the Tribunal had not been told who issued the Notice of the impugned meeting.

7. Mr. Awele added that the party Internal Dispute Resolution Committee (IDRC) had expanded the mandate of the Chairperson of the Party to include the calling of meetings. He then pointed out that there was no attempt to serve the Complainants with a notice to the effect that their conduct was to be discussed.

8. Mr. Awele stated that the power to preside over a meeting by the Chair is not to make him convener of the meeting. He then stated that according to the rules of statutory interpretation, where language is plain there is no need to supply any other interpretation.

9. Mr. Awele went on to state that the NEC is not a disciplinary organ, thus, its decision to suspend had no basis whatsoever in law. He then emphasized that NEC had no jurisdiction to hear and determine disciplinary matters and that the said jurisdiction is vested in the 1st Respondent, the NDC as provided for under Article 14. 1.4 of the Jubilee Party Constitution.

10. Mr. Awele then stated that in this case, the NEC was the Complainant, jury, judge and executioner. Further, the NEC directed a quasi-judicial organ to proceed and convene. That, as a result, the Complainants read bias and influence over the NDC by the NEC.

11. Mr. Awele placed reliance on the case of Ali Hassan Joho vs. the Inspector General of Police and others (2017) eKLR and stated that justice must not only be done but must be seen to be done. He then submitted that NEC acted ultra vires its constitutional powers under the Jubilee constitution.

12. Counsel proceeded to state that the NEC’s decision was concealed from the Complainants and that, further, they were neither served with notice of the meeting held on 19th May, 2023, nor the meeting held on 11th May, 2023. That compliance with the Fair Administrative Action Act is not a suggestion but a requirement in law.

Mr. Njomo’s submissions for 4th Complainant and Mr. Nyamweya for 1st Respondent 13. Mr. Njomo, who was also on record for the 4th Complainant, commenced by stating that the 4th Complainant Party filed an Affidavit indicating that it had not authorized the filing of this Complaint. He proceeded to state that the constitutionality or propriety of provisions of the party Constitution was not the subject of these proceedings. He proceeded to submit that pursuant to Article 10 (3) of the party Constitution, the Deputy Secretary General is to deputize the Secretary General.

14. He proceeded to state that according to Article 14 of the Jubilee Party Constitution, the Chairperson has the role of appointing the NDC Chairperson and that this is his Constitutional mandate. That the Party Chairman could also refer disciplinary matters to the NDC. In this case, he stated, the functions of the Chairperson, NEC, NDC were not ultra vires the party Constitution.

15. Mr. Njomo proceeded to read clause 4 of the minutes of the meeting held on 10th February, 2023, and made further reference to an affidavit of service to support his position that the Complainants were duly served with the notice. He also added that the IDRC appreciated that all NEC members had been served. He also pointed out that this Tribunal had not been told where the NDC erred in law in reaching the conclusion it did.

16. Counsel referred to Article 14. 2 of the Jubilee Party Constitution and stated that this was the requirement of the constitution of the party to report its finding and decision to the NEC. He then pointed out that the Tribunal has not been asked to annul the Jubilee Party Constitution. He further submitted that the NDC’s decisions did not overlook or breach the 4th complainant’s Constitution. He then stated that there was nothing wrong with NDC members sitting in February and May, 2023.

17. Counsel advanced that the 1st Complainant asked for additional time to put his case to the IDRC which was granted. Instead of putting his case to the IDRC, the 1st Complainant went ahead to dismantle the disciplinary committee by way of a meeting which he described as illegal, held on 28th April 2023.

18. That the 1st Complainant even attempted to transfer one Mr. Mutembei from the IDRC to the NDC on 29th April 2023, and to dismiss one Ms. Theresia Jerusa, and the NDC vice chairperson Mr. Robert Mwango. That the 1st Respondent was engaging carrot and stick tactics. The intention, according to counsel, was to have the NDC membership go below the threshold of 3 members and hence cripple its operations. Counsel referred to annextures to the affidavit of the 3rd Respondent in illustration of these allegations.

19. Counsel submitted that annextures WN-13, and 17 to the Replying Affidavit of Wanjiku Nduati dated 21st June 2023 showed that the Complainants were served with charge sheets and particulars of charges. They replied by way of affidavits. Their counsel consented to a hearing by affidavits. To this end, reliance was placed on certified copies of the proceedings of the NDC. That the Complainants’ chose not to attend in person but were represented by counsel including a senior counsel.

20. Counsel also submitted that the decisions reached on 10th February, 2023 did not overlook or breach the Jubilee Party Constitution.

2nd and 3rd Respondents’ Submissions 21. Mr. Manyara, on record for the 2nd and 3rd Respondents begun by stating that 2nd and 3rd Respondents would rely on the Affidavit of Kanini Kega, who is the 3rd Respondent herein. Further, that he wished to rely on the 3rd

Respondent’s Submissions. 22. He then submitted that NEC discharged its mandate by adopting the NDC decision and further forwarding the decision to the ORPP. He stated that the 2nd and 3rd Respondents discharged their constitutional mandate and obligations under the Party’s Constitution.

Complainants’ Rejoinder 23. In response, Mr. Awele stated that statutes should be interpreted literally except where there is ambiguity. The Deputy Secretary General can only act where the Secretary General is absent and he has personally delegated.

24. He further stated that the NEC has a general disciplinary mandate and the only time the NEC interacts with a disciplinary matter is when it receives the NDC report or findings.

25. He then submitted that one cannot be a judge in one’s cause. He cited the case of Godfrey Ososti v ANC. Mr. Awele also quoted Articles 47 and 50 of the Constitution of Kenya 2010 which provide that one cannot sit in a matter in which they have an interest in. He then pointed out that the Complainants approached IDRM but were rebuffed on technicalities.

Analysis and Findings 26. We have considered the pleadings filed by the parties, oral submissions made and the law cited; and are of the view that the following three questions fall for our consideration and determination:i.Whether the tribunal has jurisdiction to hear and determine the matter?ii.Whether the complaint is merited?iii.Who bears the costs of this suit?

27. We will address the issues as framed in the sequence in which we have laid them out above.

(i) Whether the Tribunal has jurisdiction to hear and determine the matter? 28. Jurisdiction is everything. It is the soul of the existence of the tribunal’s authority. Without it, we are bereft of the mandate to proceed and assess the merits of the parties’ respective cases. This is not a novel area. We have time and again considered questions of our jurisdiction and determined the same with relative consistency. It is important that we rehash both the statutory and jurisdictional basis of our jurisdiction, so that context to our conclusions to follow will be set.

29. The issue of jurisdiction is key as it is everything. In R v. Karisa Chengo [2017] eKLR, the court determined that:By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

30. The gravamen of the 4th Complainant’s jurisdictional Objection is set out in its Application dated 21st June 2023 to the effect that the Complainants have not exhausted the Internal Party Dispute Resolution Mechanisms, and as such, have not properly invoked the jurisdiction of this tribunal. In essence, the Respondents posit that the complaint runs afoul section 41(2) of the Political Parties Act, 2011.

31. While this proposition is, generally, legally sound, this is a well-trodden and beaten road. There are ample authoritative pronouncements on this question, both by this Tribunal and by superior courts. This Tribunal has stated, times without number, that it takes seriously the legal edict in section 40(2) of the Political Parties Act, 2011. The Tribunal will always require parties to demonstrate compliance with the provision of statute before moving this tribunal. This requirement is also known as the doctrine of exhaustion.

32. Indeed, in Abdul Salam Kassim v Hazel Nyamoki Katana & another, para 4; Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7; Frederick Okolla Ojwang v Orange Democratic Movement & 2 others (Complainant No 247 of 2017), para 6; and Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that:We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

33. Like all general rules, there are exceptions. The doctrine of exhaustion is not absolute; it bears some exceptions. This tribunal and courts have spoken to some of these exceptions. We shall refer to a few of them for purposes of illustration.

34. In Ibrahim Abdi Ali v Mohamed Abdi Farah & Another (Complaint No 29 of 2015), we held, that:Where a party can show that he made honest attempts at resolving the dispute within the party but the party’s process was not satisfactory for such reasons as delay, the individual cannot be faulted for moving the Tribunal even where his party has not concluded a hearing and a determination of his matter.

35. In Jared Kaunda Chokwe Barns v Orange Democratic Movement & 2 Others, we made the following pronouncement on the question:‘In light of this we find that by writing to the Party, the Complainant made an attempt to engage the Party in resolving the dispute. Indeed, if the 1st Respondent was to act on the dispute the presumption is, the same would have been resolved. We therefore find that the Complainant made an attempt to engage the Party internal dispute mechanism and thus, we have the jurisdiction to determine this complaint.’

36. In Jeconia Okungu Ogutu & another v Orange Democratic Movement Party & 5 others (Complaint 200 of 2017), para 7, we confirmed that:Where there has been an attempt to refer to the IDRM, this Tribunal becomes well seized of the matter.

37. In Moses Saoyo Kusero v Jubilee Party of Kenya & another (Complaint No 217 of 2017), para 7; while in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, the tribunal stated that:It is clear that the Claimant’s attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM). A copy of the letter written to the party seeking a resolution of their grievance was produced at page 25 of their bundle.

38. The silver lining and constant theme running through the maze of the forequoted decisions is that, the requirement to exhaust internal dispute resolution mechanisms is a principle with exceptions. As we noted in our recent decision in Complaint No. E020 of 2021 Oscar Kambona v Schola Nyenze and Others: The exceptions are founded on good reason. At times, the internal mechanisms prescribed in party constitutions and other governing instruments are either non-existent, inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute.

39. It merits noting that the fore-cited cases were delivered before the Political Parties Act was amended vide the Political Parties (Amendment) Act 2021. There was a significant shift in the wording of section 40(2) of the Act. The Section previously read as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.

40. The current wording of section 40 (2) is as follows:2. Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject to the internal political party dispute resolution mechanisms.

41. It is clear that the current state of the law does not require that the IDRM is exhausted, but that evidence of attempt at IDRM is led by a party to the dispute. Political parties’ nominations (previously described as primaries) have also been brought into the fold of disputes that would require attempt at IDRM before invoking the Tribunal’s jurisdiction. The foregoing amendment was meant to accord the law with our previous pronouncements and those of the courts. It is, therefore, necessary to restate the import of the amendment to the province of the doctrine of exhaustion as reset by the statute. A brief background is, therefore, essential.

42. The doctrine of exhaustion of remedies was first embodied by the Court of Appeal in Speaker of National Assembly vs Karume (1992) KLR 21. The said Court further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR as follows:It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

43. Nyamweya J in Republic v Cabinet Secretary of the National Treasury & 5 others Ex parte Gitson Energy Ltd [2021] eKLR, dealt with the exceptions to the general rule, including the adequacy of the remedy sought in the internal process vis- à-vis court intervention. The learned Judge observed that:In considering whether an alternative remedy is effective, the Court must consider the adequacy of the alternative remedy as a matter of substance in addition to its availability. In this respect the alternative remedy should be convenient, expeditious and effective in practical terms, and the procedure employed should provide the claimant with the outcome sought as a matter of substance.It is for this reason that section 9 (4) of theFair Administrative Action Act, provides that the Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined inthe Constitutionor law and permit the suit to proceed before it. (Emphasis added).

44. While the exceptions to the exhaustion requirement are not clearly delimited, the Court of Appeal gave guidelines when they would apply in Republic vs. National Environment Management Authority, Civil Appeal No. 84 of 2010, as follows:...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

45. Likewise, it was held by the High Court in the matter of the Mui Coal Basin Local Community (2013) eKLR; R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya and Mohamed Ali Baadi and others vs The Attorney General & 11 others [2018] eKLR that in reaching a decision as to whether an exception applies, courts will undertake an analysis of the facts, regulatory scheme involved, the nature of the interests involved including the level of public interest involved, and the polycentricism of the issues and the ability of a statutory forum to determine them.

46. In our considered view, while section 40 (2) has been amended, the fundamentals that informed the need for IDRM being the first port of call remain intact. The need to underwrite party harmony and cohesion while ensuring strong structures of democratization within political parties remains critical.

47. The amendment to section 40(2) renders it necessary for us to offer guidance on what, in our understanding, an attempt at invoking IDRM would involve.

48. In our decision in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022) we stated that our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law.Furthermore, the party to a dispute should also show that, among others:i.The unavailability of the organ to resolve disputes;ii.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;iii.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;iv.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; andv.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.

49. The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011.

50. It is apparent from the foregoing discourse, that our jurisdiction is circumscribed. We can only take up jurisdiction if the complainant demonstrates an honest effort towards IDRM.

51. In our decision delivered on 1st April, 2023 in PPDT Appeal No. 1 of 2023 Hon. David Murathe & Others v Office of the Registrar of Political Parties we referred all disputes regarding the validity, legality and propriety of the Party’s NEC held on 10. 2.2023 to the party IDRM processes. We also committed questions of discipline of the Complainants to the relevant party organ. In this case the National Disciplinary Committee of the 4th Complainant political party.

52. It is instructive to note that at paragraphs 38 and 39 of our decision aforesaid, we addressed ourselves to the status of the meeting of 10. 2.2023 and the resolutions ensuing therefrom. We concluded thus:Turning to this case, we note that in response to the jurisdictional issue raised by the Respondent and the interested party,the Appellants have in paragraph 21 of their submissions acknowledged that there are pending IDRM proceedings challenging the subject internal party documents and processes. They are in agreement that any prayers concerning the same before this tribunal are premature, but maintain that the tribunal nevertheless retains jurisdiction under section 40(1)(f) of the PPA as read with section 7(1)(b) of the FAA to inquire into the procedural and substantive merits of any decision of the Respondent founded on the said underlying internal party issues.Noting that the Appellants do not dispute that the underlying internal party issues require IDRM in the first instance, and that they have in fact invoked IDRM processes that are said to be ongoing, and in consideration of the foregoing judicial authorities, this tribunal is under an obligation to allow the 4th Appellant deal with the dispute that they are already seized of independently in the first instance. To this extent, we are careful not to make any statements that may prejudice or prejudge the matter bearing in mind that the dispute may in future find its way back to the tribunal subject to compliance with the provisions of Section 40 of the PPA. We therefore find that we do not at this stage have jurisdiction to consider and grant any prayers for nullification of the notice dated 2ndFebruary 2023, the agenda, resolution and letter dated 10thFebruary 2023 as sought in this Appeal.Emphasis supplied

53. In our decision fore-quoted, we noted that the Appellants therein, complainants herein, had acknowledged that there are pending IDRM proceedings challenging the subject internal party documents and processes.They were also in agreement that any prayers concerning the same before thistribunal are premature. We also found that Complainants did not dispute thatthe underlying internal party issues require IDRM in the first instance, andthat they had, themselves, in fact, invoked IDRM processes that wereongoing. For those reasons, we declined to interfere with the ongoing IDRMprocesses with regard to the meeting of 10th February 2023 and the resolutionsemanating therefrom. As far as we are aware our decision aforesaid was never appealed against nor has it been reviewed or set aside at all.

54. We are now aware, through the material placed before us that the 1st Complainant, on the very next day after our ruling, presumably in an effort to comply therewith, in fact wrote a letter dated 20th April 2023 seeking to pursue IDRM as directed in our decision in Appeal no. 1 of 2023. This letter is annexed and marked as exhibit WN19 to the Further Affidavit of Wanjiku Nduati, the Chairperson of the NDC, sworn on 21st June 2023. The Complaints were assigned numbers 1 and 2 of 2023. Contrary to the 1st Complainant’s assertion, his complaint was indeed admitted by the 4th Respondent.

55. Hardly five days later, on 25th April 2023, the Vice Chairperson of the 4th Respondent, one Robert Odanga, wrote an email to the 1st Complainant seeking particulars/details of the complaint, to which the 1st Complainant responded on the same day that he had “noted.” On the next day, the 1st Complainant responded requesting for more time. This was followed by more requests for extension of time, which were graciously granted by the 1st Respondent, including the 1st Respondent being given copies of the party rules on IDRM procedures. This email trail is found at annexture WN3 of the Affidavit of Wanjiru Nduati sworn on 14th June 2023.

56. The email correspondence cited in the paragraph foregoing starkly contradicts the allegations made by the Complainants to the effect that the 1st Complainant’s complaints were either not addressed at all; his letters were not responded to, or were responded to after a long time, in a bid to frustrate him. It is clear to us that the 1st Respondent is being economical with the facts before this Tribunal. His Complaints seem to have been properly addressed, he was accommodated, addressed with utmost courtesy and with instantaneous responses on email. It is him who kept seeking extension of time and adjournment of proceedings. He was, in a manner of speaking, the author of his own misfortune.

57. When required to supply details of their complaint for the proposed IDRM to commence, he sought extension of time, time and again, but never withdrew his complaints. Requests for particulars or evidence when one complains is not unusual or unreasonable requests. However, the 1st Complainant, for reasons best known to him, never provided the material/particulars requested. Nonetheless, the 4th Complainant constituted the IDRM process to address the complaints regarding the NEC meeting of 10. 2.2023 as requested by the 1st Complainant. Despite service, the Complainants chose, as they are at liberty to, not to participate in the proceedings of the party Internal Dispute Resolution Committee (IDRC), choosing instead to file the current proceedings on the 25th day of May 2023 whilst IDRC proceedings were pending. See exhibit annexture WN 21 to the Further Affidavit of Wanjiku Nduati sworn on 21st June 2023.

58. Furthermore, following our orders in Appeal no. 1 of 2023, the 4th Complainant’s National Disciplinary Committee, convened and heard cases against the Complainants. This time the Complainants participated in the proceedings with the benefit of learned Counsel. The outcome of the Disciplinary proceedings is the subject of other related matters which we will address separately.

59. We note that, while IDRC proceedings mounted on account of our orders in Appeal no. 1 of 2023 were pending, the Complainants moved this court in this matter. It is common ground that it was not until 7/6/2023 that a decision of the IDRC was reached upholding the declaration of the NEC of 10. 2.2023 and the consequent resolutions. The decision of the IDRC is exhibited as annexture WN19 to the Replying Affidavit of Wanjiku Nduati sworn on 14th June 2023. Indeed, as it stands today, the decision of the IDRC of 7/6/2023 is uncontested.

60. It should be underscored from the foregoing parts of this decision that our jurisdiction can only be invoked after the IDRM process has been concluded or failed. As at 25. 5.2023 when the current proceedings were commenced, IDRC proceedings were well, live and underway. We fail to understand why a party who sought judicial intervention on account of grievance arising out of a matter that was important to it, would fail to avail itself the opportunity of advancing its case before a legitimate party organ and instead chose to file suit before this tribunal in utter disregard and breach of our orders.

61. It has also been established through the trail of letters annexed to by the Replying affidavit of Wanjiku Nduati sworn on 14th June 2023 and filed by the 1st Respondent as annextures (exhibits WN 5,6,7, 8 and 9), that the 1st Complainant was actively attempting to reconstitute the IDRC and National Disciplinary Committee of the 4th Complainant, on 28th and 29th April 2023, just shortly after our decision of 19th April 2023 in Appeal number 1 of 2023. This was in anticipation of the commencement of IDRC and NDC proceedings which the 1st Complainant himself had commenced on 20th April 2023. This evidence was not controverted by the 1st Complainant. Such a party cannot avail himself the refuge of this tribunal while intermeddling with an independent judicial process and failing to participate in the processes established by the party.

62. It is apparent that the Complainants did not intend to honestly participate in the IDRM processes, particularly the IDRC proceedings. This Tribunal cannot countenance such inequitable conduct and indolence so as to take up jurisdiction in a matter which commenced before conclusion of the IDRC proceedings while the Complainants all along led the party to believe that all he needed was time to put his house in order.

63. The Complainants suggested that since the IDRC proceedings were concluded during the pendency of these proceedings, the Tribunal should take up the matter, in this cause anyway. When this question was posed to learned counsel, Mr. Awele, for the Complainants, his proposal was that this Tribunal should deal with the matter without concluding on the ultimate status of the NEC meeting of 10. 2.2023.

64. It must be recalled that the Respondents, and Mr. Njomo for the 4th Complainant have vehemently opposed any consideration of the matters determined by the party IDRC on 7th June 2023 by this Tribunal, ostensibly on account of want of jurisdiction. Mr. Njomo filed an application under certificate of urgency on 21th June 2023 ostensibly irked by the Complainants bid to “sneak” in the new cause of action relating to the IDRC decision vide an application, under certificate of urgency, dated 16th June 2023.

65. This proposal by the Complainants to veer into the merits of the IDRC decision of 7th June 2023 presents a serious challenge. For instance, how can a tribunal deal with a matter which was not in existence when this Complaint was brought/filed on 25th May 2023? How can we deal with a subsequent cause of action in a suit filed earlier? These rhetorical questions cast a long shadow of doubt as to the jurisdictional and procedural aptness of suggestion by the Complainants. The cause of action in the IDRC arose on 7th June 2023, it is not possible to supplant the current cause which was filed much earlier, on 25th May 2023, on subsequent matters unless amendment of pleadings was sought and granted, which was not the case herein. The proper thing for the Complainants to do, if aggrieved by the decision of the party IDRC of 7th June 2023 is to take out a fresh Complaint against that decision. The invitation to deal with matters not before us is respectfully declined. To do so would sorely prejudice the other parties who have only responded to the issues as pleaded and advanced in this case. In any event, the party IDRC proceedings were never stayed by this Tribunal or any court at all.

66. The equitable accommodation of this tribunal, and, indeed any court from which equitable accommodation is sought, demands candour. He who comes to equity must do equity, and he who seeks equity must do so with clean hands. The two maxims of equity are instructive in the current scenario. A party who engages in activities to undermine the constitution of party organs, particularly independent disciplinary and quasi-judicial bodies such as the IDRC, is devoid of candour, and utmost good faith and cannot seek to benefit from the equitable accommodation of this Tribunal. The less we say of this matter the better.

67. On the basis of our observations foregoing, we find that this entire complaint is premature and is brought in beach of orders of 19th April 2023 in Appeal no. 1 of 2023. The matters in issue herein having been determined by way of an IDRC decision of the 4th Complainant on 7th June 2023 and can only find firm footing before us in a complaint filed subsequent to that decision, as provided for in Section 40(2) of the Political Parties Act, 2011.

68. While we have previously held that this tribunal would take jurisdiction in a matter should we be convinced that an honest attempt at IDRM has been made by a complainant, that is unfortunately not the case in this matter. The Complainant cannot seek fortitude in this exception to the general rule under section 40(2) of the Political Parties Act, for the reason that in the current case, the complaints denied the right nor were they frustrated from commencing IDRM. Nor was the IDRM structure/organ non-existent. In fact, the evidence on record shows that the 1st Complainant commenced IDRM, through a letter, failed to supply information in support of his complaint, despite being granted several extensions of time on his own request.

69. We must emphasise that where a party IDRM organ is ready, able and willing to discharge its mandate, a party who willfully avoids or disregards the IDRM process cannot benefit from the exception to the general provisions of Section 40(2) of the Political Parties Act, 2011. To countenance such conduct would be to undermine the very noble objectives of Section 40(2) of the Political Parties Act,2011 which aims to encourage and strengthen internal political party organs and systems, particularly those meant for resolution of internal party disputes. We are fortified in our view by the legal maxim, “one cannot benefit from one’s own wrong”.

70. From the material placed before us, it is apparent that a functional IDRM structure exists within the party constitution and in practical terms. It is functional and fully constituted.

71. The exceptions set out in the John Mworia Nchebere case cited above, in our view, do not exist in this case. The party IDRM is not dysfunctional nor is it nonexistent. There is no allegation or evidence that its constitution runs afoul the objective of the party’s constitution.

72. It is our considered view, therefore, that the complaint filed herein was filed prematurely. We cannot take jurisdiction unless it is demonstrated that the Complainant has honestly attempted IDRM. In the words of court in the celebrated decision in Owners of Motor Vessel Lillian ‘s’ V Caltex (K) Ltd 1989 KLR 1, , we have no option but to down our tools.

73. In the upshot we agree with both Mr. Njomo and Nyamweya for the 4th Complainant and the 1st Respondent and make the orders as hereunder.

74. Having determined issues number 1 in the negative, issue number 2 is, therefore, moot. We will now address the question on costs.(ii)Who bears the costs of this matter?

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

Disposition 76. We hereby make the following orders:i.The Complaint is hereby struck out.ii.The costs of the Respondents and Interested Parties shall be borne by the Complainants.

77. Those are the orders of the Tribunal.

DATED AND DELIVERED IN VIRTUAL COURT ONTHE 10TH DAY JULY 2023……………………………………………………HONOURABLE DR. WILFRED A. MUTUBWA OGW C.ARB FCIARBVICE CHAIRMAN-------------------------------------HONOURABLE THERESA CHEPKWONY MEMBER---------------------------------------------------------HONOURABLE ABDIRAHMAN ADAN ABDIKADIRMEMBER……………………………………………………….HONOURABLE MUZNA MOHAMED YUSUF JINMEMBERCOMPLAINT NO. E010 OF 2023 14