[2023] KEPPDT 1356 (KLR)

Kioni & 3 others v Office of the Registrar of Political Parties & another; National Disciplinary Committee of the Jubilee Party & 2 others (Interested Parties) (Appeal E003 (NRB 'A') of 2023) [2023] KEPPDT 1356 (KLR) (11 July 2023) (Judgment) (with dissent)

Neutral citation: [2023] KEPPDT 1356 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Appeal E003 (NRB 'A') of 2023

D. Nungo, Chair, G. Gathu & S Musau, Members

July 11, 2023

Between

Jeremiah Kioni

1st Appellant

David Murathe

2nd Appellant

Kagwe Gichohi

3rd Appellant

The Jubilee Party

4th Appellant

and

The Office Of The Registrar Of Political Parties

1st Respondent

Anne N Nderitu

2nd Respondent

and

The National Disciplinary Committee of the Jubilee Party

Interested Party

Joshua Kutuny

Interested Party

Kanini Kega

Interested Party

Judgment

Introduction 1. The 1st to 3rd Appellants have at all material times been members and officials of the 4th Appellant. Following resolutions that were made in a National Executive Committee (NEC) meeting that was held on 10th February 2023, the 1st, 2nd and 3rd Appellants were suspended from the party and referred to the National Disciplinary Committee (TNDC) for disciplinary action. TNDC conducted a disciplinary process against them and vide the decisions of the TNDC dated 10th May 2023 and 15th May 2023, the 1st and 2nd Appellants were expelled and the 3rd Appellant suspended from the Jubilee party. Another NEC meeting was convened on 19th May 2023, which meeting ratified the subject TNDC decisions and sanctions against the 1st to 3rd Appellants. On the same date, the party Deputy Secretary General (DSG) forward the NEC resolution ratifying the TNDC decisions to the Respondents to effect. The RPP reviewed the documentation furnished and effected the changes vides her letter dated 19th May 2023 (the decision) that was copied to the Appellants.

2. The Appellants are aggrieved by the decision of the RPP and they have filed the instant Amended Appeal dated 31st May 2023 (the Appeal) seeking the following reliefs from this Tribunal:-i.A declaration that the Respondents’ letter dated 19th May 2023 violated the Appellants right to fair administrative action and was in any event unreasonableii.An order quashing and/or setting aside the Respondents’ letter dated 19th May 2023. iii.An order directing the Respondents to update the register of officials of the Jubilee Party accordinglyiv.Costs of the Appeal.

3Together with the Appeal, the Appellants also filed a Notice of Motion Application under certificate of urgency (hereinafter referred to as the Application) seeking the following orders: -i.This application be certified urgent, heard and orders granted ex-parte in the first instanceii.Pending the hearing and determination of the application inter partes, the Hon. Tribunal be pleased to issue conservatory orders staying the Respondents decision embodied in the letter dated 19th May 2023. iii.Pending the hearing and determination of the Appeal, the Hon. Tribunal be pleased to issue conservatory orders staying the Respondents decision embodied in the letter dated 19th May 2023. iv.The costs of and occasioned by the Application be provided for.

4The Application was placed before the Tribunal Chairperson on the 26th May 2023 when the following directions were issued: -i.THAT the Notice of Motion application dated 25th May 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.THAT the Appeal and Notice of Motion application dated 25th May 2023 be served upon the Respondents and Interested Parties within three (3) days of the date hereof and a return of service be filed.iii.THAT the Respondents and Interested Parties to file and serve their response(s) to the Application within five (5) days of the date of service. iv. THAT the Notice of Motion Application dated 25th May 2023 be listed for mention on 2nd June 2023 at 2. 30pm to check on compliance and/or for further directions.v.THAT pending the hearing and determination of the Application inter partes, interim conservatory orders are hereby issued staying the Respondents’ decision embodied in the letter dated 19th May 2023.

5. Taking into consideration that this matter related to three other pending cases, namely, PPDT Nairobi Compliant No. E010 of 2023, PPDT Nairobi Complaint No. E011 of 2023, and PPDT Nairobi Complaint No. E012 of 2023, and that all the cases raised issues of great public interest, the Chairperson of the Tribunal designated the entire 7 member tribunal bench (the tribunal) to adjudicate over all the disputes. Accordingly, all parties hereto appeared before the tribunal on 2nd June 2023 for the mention of the matter.

6. During the mention of the case on 2nd June 2023, the 1st to 4th Appellants were represented by Mr. Awele Advocate, Mr. Nderitu Advocate and Ms. Kwamboka Advocate. Mr. Njomo Advocate also appeared for the 4th Appellant having been instructed by the Jubilee party faction represented by the 3rd Interested Party herein. The 1st and 2nd Respondents were represented by Ms. Cheruiyot Advocate, and the 1st Interested Party was represented by Mr. Omwanza Nyamweya Advocate. The 1st and 2nd Interested Parties were represented by Mr. Manyara Advocate. Ms. Cheruiyot Advocate brought to the attention of the Tribunal that she had filed a Notice of Motion Application dated 2nd June 2023 (hereinafter referred to as the Respondents’ application) seeking the following orders: -i.That this application be certified urgent and directions be issued in the first instance.ii.That the Honourable Tribunal strikes out the name of the 2nd Respondent Anne Nderitu as unnecessary party.iii.That the Honourable Tribunal lacks jurisdiction over the person of the 2nd Respondent.iv.That the costs of the Application be provided for.

7. In consideration of the two pending applications referred to above and in the interests of an expeditious disposal of the time bound proceedings herein, the tribunal built consensus with all the parties and it was directed that all the applications will be heard together with the Appeal. Counsel for the Appellant sought leave to amend the Appeal. Similarly, Counsels for the Respondents and Interested Parties sought for more time to enable them file responses. Parties were accordingly allowed more time to file their respective pleadings and the case was fixed for a further mention on 12th June 2023.

8. The Appeal together with the applications were heard substantively on 23rd June 2023 inter partes in an open physical tribunal session.

9. We state at the onset of this Judgment that whereas there was a contest on the representation of the 4th Appellant, we elected not to substantively dwell on the same on merits as our determination would have the resultant effect of locking out persons affected by these proceedings. This is because the tribunal acknowledges that the contest on representation is occasioned by the different factions within the party. Accordingly, in the interest of allowing all parties who are affected an opportunity to participate in these proceedings, the tribunal made the conscious decision to consider all the pleadings and evidence filed by all law firms claiming instructions from the different factions within the party.

The 1st to 4th Appellants’ Case and Submissions (by the firm of Awele Jackson Advocates LLP) 11. The Appeal is based on the following grounds:-i.That the Appeal is nullity ab initio as it is anchored on various illegalities including the notice convening NEC meeting dated 2nd February 2023, the resolutions of the NEC meeting of 10th February 2023, the TNDC disciplinary hearings, and the NEC meeting of 19th May 2023 that ratified the TNDC decisions.ii.The RPP received the NEC meeting resolutions of 19th May 2023 and in blatant disregard of the decision of the Tribunal in PPDTA Appeal E003 of 2023 condemned the Appellants unheard.iii.The RPP as the office statutorily mandated to update records of registered political parties and to notify members of the same knew who the substantive Secretary general (SG) was as at 2nd February 2023 when the chain of events that culminated in the impugned TNDC and RPP decisions were triggered.Had she acted impartially and objectively upon receipt of the letter dated 19th May 2023, she would not have made the impugned RPP decisioniv.The Respondents past and present conduct over the same subject matter between the same parties smack of gross abuse of office and impartiality and demonstrates the blatant conspiracies that underpin the Appeal herein and further highlight the urgency and necessity of the orders soughtv.The Appellants challenge the TNDC decision on grounds inter alia that NEC meeting of 10th February 2023 that sanctioned the disciplinary processes was convened in contravention of Article 10. 5 of the party constitution, that the TNDC disciplinary proceedings were fraught with procedural and substantive violations of the right to fair administrative action and the jubilee party constitution that renders it a nullity, and that the purported NEC meeting of 19th May 2023 that purported to adopt the impugned TNDC decisions was not convened in accordance with the party constitution.vi.The principle that the RPP is not simply a conduit but a critical player in determining whether decisions communicated to her office have complied with the law is now well anchored in decisional laws and was affirmed by the Tribunal in PPDTA Appeal E001 of 2023. vii.The RPP’s duty is not to merely rubberstamp decisions of political parties or their institutions. Where the law is not adhered to those aggrieved by the decisions are at liberty to invoke the jurisdiction of the Tribunal to resolve their grievances.viii.That had the Respondents faithfully and impartially discharged their responsibilities, they would not have made the impugned decision. The Respondent purported to ratify the TNDC and NEC decision barely hours after receiving communication of the same from the interested party in a clear show of partiality, bad faith and abuse of office.

12. Vide their Written Submissions on record, the Appellants have identified three main issues for determination, that is, whether the Registrar of Political Parties can be enjoined to an Appeal under Section 40(1)(f) of the PPA; whether the Registrar’s decision embodied in her letter dated 19th May 2023 was made in compliance with Section 34(a) and (g) of the PPA, the Fair Administrative Action Act (FAAA) and the Constitution of Kenya 2010; and whether the decision of the Registrar of Political Parties was biased, negligent and/or discriminatory.

13. On the first issue concerning joinder of the 2nd Respondent, it is submitted that Section 33 of the PPA establishes the Office of the Registrar of Political Parties headed by the Registrar, and under Section 40(1)(f) of the PPA, the jurisdiction of the tribunal is specifically against decisions of the Registrar of Political Parties and not the Office of the Registrar of Political Parties. That section 33 of the PPA in essence distinguishes the Office of the Registrar of Political Parties from the holder of the said office being the Registrar of Political Parties.

14. It is submitted that whereas under Section 33(5) of the PPA the Office of the Registrar shall be independent and shall not be subject to direction or control of any person or authority. However, the conduct of the Registrar in this dispute has been anything but independent, transparent, impartial or in good faith and borders on abuse of office and in violation of Article 10 of the Constitution as read with the Public Officer Ethics Act.

15. It is the Appellants’ contention that by her conduct, the 2nd Respondent has deliberately and with ulterior motives violated the law in order to facilitate their ouster from office by persons sympathetic to the ideals of the Kenya Kwanza coalition, and that there is nothing therefore doctrinally abnormal in her answering to the issues raised, that as the accounting officer of the 1st Respondent she cannot hide behind immunity to evade answering to the issues raise in this Appeal that directly question her fidelity to the law and adherence to the principles of good governance under Article 10 of the Constitution, and that under Article 250(9) of the Constitution, commissioners and holders of independent offices are insulated from personal liability only for actions and decisions taken in good faith.

16. In this regard they relied on the case of Republic vs. Anti Counterfeit Agency ex-parte Caroline Mangala T/A Hair Works Saloon (2019) eKLR, and the case of R vs. Commissioner for Co-operatives ex-parte Kirinyaga Tea Growers Co-operative Society Ltd.

17. The Appellants submit that the decision of the RPP was biased, negligent and/or discriminatory as the question of the validity of the meeting of 10th February 2023 has been recurring since 13th February 2023 when she made the first illegal decision to ratify the illegal meeting which decision was successfully appealed against. When she received the letter dated 19th May 2023, a reasonable, objective, impartial independent registrar would have taken time to satisfy herself that all issues bearing upon weighty decision involving the expulsion of members have been resolved in compliance with the law. However, she yet again ratified the impugned decisions in a matter of hours from the time of receipt of the letter while all the while sitting on the 1st Appellant’s letters over the same issue. No effort was made to hear the Appellants notwithstanding that the decision she ratified purported to expel them from the party, and then only shared her decision on 22nd May 2023 at 1956hours. The tribunal was referred to the cases of Amani National Congress Party vs. Godfrey Osotsi & Another (2021) eKLR, and Nicholas Kiptoo Arap Korir Salata vs. Independent Electoral & Boundaries Commission and 7 Others (2015) eKLR.

18. It is further submitted that the RPP failed to interrogate various issues prior to making her decision including the validity of the notice and meeting of 2nd February 2023 upon which the expulsion decision of the TNDC and the NEC were anchored; the legality of the meeting of 10th February 2023 and the resolutions made thereat which triggered the illegal disciplinary proceedings and TNDC decision that she purported to ratify; the legality of the TNDC proceedings and decisions dated 10th and 15th May 2023; and the legality of the ratification decision dated 19th May 2023. The 4th Appellant’s Case and Submissions (by the firm of Kamotho Njomo & Company Advocates)1. Under the representation of the firm of Kamotho Njomo & Company Advocates, the 4th Appellant is in opposition of the Appeal. They relied on Affidavits sworn by the said Nelson Dzuya on 29th May 2023 in opposition to the Application and Appeal.2. It is Mr. Dzuya’s deposition in the Affidavit sworn on 29th May 2023 that he is the Chairperson of the Jubilee party, the alleged 4th Appellant. Jubilee party has not authorised the filing of the Appeal and the proceedings before the Tribunal are therefore improper with respect to the 4th Appellant and should be struck out. He has annexed his instruction letter marked as ND1 and avers that the 1st, 2nd and 3rd Complainants were suspended during NEC meeting of 10th February 2023 as per the resolutions he has produced and marked as ND2. 3.The suspension was conducted within the provisions of the Jubilee party constitution. The Appellants challenged their suspension and resolutions of the stated NEC meeting of 10th February 2023 before this tribunal in PPDT Complaint No. E001 of 2023 and this tribunal delivered its decision on 19th April 2023 (annex ND3) directing that the dispute be referred to the party’s internal dispute resolution mechanism (IDRM). The party lodged a complaint to the party’s TNDC in the required form through him, and the TNDC issued a hearing notice and summons to the complainant as evidenced by annex ND4. 4.The TNDC proceeded to hear the Complaint No. 1/2023 against the 1st Appellant on 8th May 2023 at 2pm. Directions for hearing of the complaints against the 2nd and 3rd Appellants were also given (TNDC Complaints No. 2 and 3 of 2023). The Appellants did not appear before the TNDC on 8th May 2023 but were represented by two advocates who filed necessary documents in opposition to the charges levelled against them. The matters were heard on merit after full participation of all the parties before the TNDC and Mr. Dzuya tendered evidence as the only witness for Jubilee party before TNDC. After conclusion of the hearings, TNDC reserved delivery of its Judgment as per Article 14. 1.12 of the Jubilee party constitution which provides that TNDC shall report its findings and decisions to NEC for adoption, ratification, variation or substitution in accordance with Article 14. 4 of the party constitution.5. Mr. Dzuya avers that as former members of the Jubilee party, the Appellants are fully aware of the stated provision of the party constitution and the allegation that they were not furnished with the Judgments does not have any basis as TNDC acted within the party’s constitutional provision in submitting the decisions to NEC. In any event, the Appellants through their advocates applied for copies of the TNDC decisions and the same were supplied to them through their advocate’s email after they had been adopted by NEC (annex ND6).6. Pursuant to the party constitution, NEC met and adopted the TNDC decisions on 19th May 2023 as per the NEC minutes annexed as ND7. The NEC minutes were submitted to the RPP who confirmed that the disciplinary process was in accordance with the party constitution and confirmed expulsion and suspension of the complainants vide letter dated 19th May 2023 (ND8). NEC did not therefore reverse its role on disciplinary matters and TNDC acted independently and did not rubberstamp NEC decision of 10th February 2023 as alleged. Mr. Dzuya appeared as a witness before TNDC proceedings against the complainants in accordance with the specific role given to the National Chairperson under Article 10. 3 clause 2 of ensuring that there is discipline, proper conduct and order in the party.7. Mr. Dzuya has further averred that the members of TNDC were appointed by NEC in a meeting held on 26th February 2022, the same meeting that appointed the 1st Appellant as the SG. There was no meeting of NEC that had been properly constituted to change the membership of TNDC and the meeting allegedly held on 28th April 2023 seeking to change the membership of TNDC was irregular and a nullity as it was not only attended by strangers but also the 1st Appellant allegedly acting as the SG at a time when he was on suspension from 10th February 2023.

The 1st and 2nd Respondents’ Case and Submissions 19. The 1st and 2nd Respondents relied on their Response to the Amended Appeal dated 5th June 2023, the Replying Affidavit sworn by Ali A. Surraw on 5th June 2023, and their Written Submissions.

18. The 2nd Respondent has in her application and Response averred that she has been sued in her personal capacity as the holder of the office of the 1st Respondent. That the tribunal has no jurisdiction over the person of the 2nd Respondent and the tribunal should in the first instance pronounce itself on the same. In accordance with Section 33 of the PPA, the 1st respondent can sue and be sued in its own name and the 2nd Respondent being a holder of the office need not be a party in these proceedings. The 2nd Respondent contends that she has no personal interest in these proceedings and in any event the appeal relates to a decision issued by the 1st respondent. That no orders have been sought against the 2nd Respondent to warrant her involvement in this matter in her personal capacity. She accordingly prays that her name be struck out from these proceedings. She has relied on the cases of S.K. Macharia vs KCB and 2 Others, Supreme Court Civil Appeal (Application) No. 2 of 2011; Law Society of Kenya vs The Center for Human Rights and Democracy & 13 Others Civil Appeal No. 308 of 2012; and Kenya Anti-Corruption Commission v Judith Marilyn Okungu & Another (2013) eKLR

19. The Respondents submit that on 10th March 2022, the 1st respondent received documents of the 4th Appellant’s NEC meeting held on 26th February 2022 and duly recorded resolutions of the 4th Appellant’s NEC meeting and the party officials appointed. The subject minutes were confirmed by the Gazette Notice relied upon by the Appellants, and that the 1st respondent did not have in its record any change of party officials. That subsequently, the 4ht Appellant’s NEC through the 2nd Interested Party wrote to the 1st Respondent following a meeting held on 10th February 2023 which this Tribunal referred to IDRM.

20. Vide letter dated 19th May 2023, the 4th Appellant informed 1st Respondent of the resolutions of its NEC meeting of 19th May 2023 and the report of the TNDC expelling the 1st and 2nd Appellants and suspending the 3rd Appellant. The letter of 19th May 2023 to the RPP enclosed several documents including notice of NEC meeting dated 11th May 2023, minutes of NEC meeting dated 19th May 2023, list of members in attendance, the reports of the TNDC containing the disciplinary findings, and the ruling of the IDRC staying the special NDC that had been scheduled for 22nd May 2023.

21. It is the 1st respondent’s contention that in furtherance of her functions, she confirmed from the TNDC report and judgment that the 1st, 2nd and 3rd Appellants participated in the disciplinary process in line with Section 14B(2) of the PPA. From the decisions it was evident that the 1st to 3rd Appellants were ably represented and participated throughout the hearing. She further confirmed that the NEC meeting was held in accordance with the constitution, and was also satisfied that TNDC had adhered to due process and proceeded to inform the 2nd interested party of its decision to update its record and register of party members vide its letter of 19th May 2023.

22. According to the Respondents, the Appellants issue seem to be the efficiency of the 1st Respondent’s office and not on any substantive reason for appeal. There was no complaint received by the 1st Respondent which required the 1st Respondent to call the Appellants to present their views or trigger an investigation and to this extent they relied on case of Charles Nyandusi & 3 Others vs. Registrar of Political Parties & Another (2017) eKLR. They submit that the actions of the 1st Respondent are not to micro-manage political parties in conducting their affairs but to perform its functions in accordance with the law.

23. The Respondents maintain that the 1st Respondent’s letter went beyond scrutinizing the documents forwarded to it and found them to be in line with the PPA and the party constitution. The decision to expel the 1st and 2nd Appellants and to suspend the 3rd Appellant was made by the TNDC and NEC and not by the Respondents. They submit that the PPA does not require the Respondents to go beyond confirming that a fair hearing was conducted as provided under Section 14B(2) of the PPA. Section 34 (a) and (g) of the PPA does not direct the 1st Respondent to conduct its own hearing of any evidence brought before it but is expected to show that the decision of the political party presented to it was in compliance with the law. It is not the duty of the 1st Respondent to question the decision of the 4th Appellant TNDC having confirmed that all parties were accorded a right to be heard and no complaint was raised before it to interfere with the internal resolutions of a party. There was no breach of the Appellant’s right to fair administrative action and in any event that breach has not been demonstrated.

24. The Respondents therefore maintain that they independently discharged their mandate in full compliance with the law and its efficiency or otherwise cannot be the Appellants’ main ground of Appeal.

The 1st Interested Party’s Case and Submissions 25. The 1st Interested Party relied on the Replying Affidavit sworn by Wanjiku Nduati, the Chairperson of the 1st Respondent, on the 14th June 2023. She deposes, inter alia, as follows:-i.This tribunal on 19th April 2023 in PPDTA Appeal No. E001 of 2023 pronounced itself on the question of the meeting of 10th February 2023 and the resolutions therefrom in the following manner;a.A declaration be and is hereby issued that the respondent’s letter dated 13th February 2023 is null and void and of no consequential effect.b.The prayer for a declaration of invalidity of the notice issued by the interested party dated 2nd February 2023, the agenda, resolutions and the letter dated 10th February 2023 is rejected.c.The prayer for an order quashing and/or setting aside the purported notice issued by the interested party dated 2nd February 2023, the agenda, resolution and letter dated 10th February 2023 is also declined.d.The interim orders issued herein on 16th February 2023 hereby stand discharged.e.Each party to bear its own costs of the proceedings.i.After the tribunal’s determination, the 1st Appellant proceeded to file two complaints on 24th April 2023 before the TNDC, that is, Complaint No. 1 and 2 of 2023. TNDC confirmed receipt of the complaints and issued directions requiring provision of particulars in support of the complaint (annex WN3). The 1st Appellant sought several adjournments whilst requesting for more time to file the particulars in support of his allegations (annex WN4). However, he ultimately failed to provide particulars in support of his allegations.iii.In the meantime, the 1st Appellant issued several letters to various members of the TNDC in a bid to threaten and or interfere with its proceedings as evidenced by letters marked as annex WN5 to annex WN10 referred to paragraph 7(i) to (v) of the Replying Affidavit.iv.The 1st Appellant vide resolution marked as annex WN 11 went a step further and reconstituted the TNDC by appointing one Ndegwa Njiru as the Chairperson of TNDC in violation of the law, the constitution of Jubilee party and the TNDC Regulations.v.The above notwithstanding and following the 1st Appellant’s refusal to furnish particulars, the TNDC invoked Rule 15 of the TNDC Rules and inquired into the complaints as filed and noted that the issues raised were matters within the ambit of the IDRC established under Article 7. 10 of the party constitution. TNDC proceeded to forward the two complaints to the IDRC vide its ruling given on 18th May 2023 with notice to the 1st Complainant. The 1st Appellant was served with the IDRC ruling on the 18th May 2023 as evidenced by email marked WN21. The complaint forwarded to the IDRC also proceeded for hearing and the IDRC delivered its decision annexed and marked as WN 19 in Further Affidavit. It is not true that the 1st Appellant’s complaint dated 20th April 2023 to the TNDC was rejected or that he withdrew the complaint. vi. The 1st Respondent (TNDC) received complaints against the 1st to 3rd Complainants herein from the Chairperson of NEC (annex WN13). The TNDC upon receipt of the complaints requested the complainant to provide particulars. The Chairperson of NEC provided particulars and charges were drawn separately for the 1st to 3rd Appellants herein. Hearing notices and summons were issued to all (annex WN14).vii.Its rather interesting that the 4th Appellant through its NEC Chairperson appeared before TNDC as the complainant, and he has now joined the said charged members as co-complainants to overturn decisions on his complaints in breach of the law and procedure.vii.The hearing of all the charges against all the complainants was to take place on 5th May 2023 at Fairview Hotel at 10am. However, upon arrival at the hotel at 9. 30am, the TNDC Chairperson noticed an influx of young men and women into the hotel and on reaching the meeting room, she found the place almost full and there was no room for TNDC members. The proceedings fixed for 10am were therefore frustrated and TNDC in the circumstances invited the advocates for the parties to an informal meeting at a secluded part of the hotel and in which meeting it was agreed that it was not feasible to hold a hearing due to the evident security threat. That at around 1pm, the TNDC was granted another room to enable it meet formally and they met and formally adjourned the matter and issued directions as to hearing on 8th May 2023. viii.On 8th May 2023 when the matter came up for hearing, security precautions were taken by the TNDC in accordance with its directions of the hearing of 5th and 8th May 2023 annexed to the Replying Affidavit and marked as annex WN16. The hearing of the complaints against the 1st to 3rd Appellants proceeded and each of the complainants filed their responses (annex Wn17) and were accorded their rights to a fair hearing, fair trial and fair administrative action. It is clear from the Replying Affidavits filed by TNDC in PPDTC Complaint No. E009, E011 and E012 filed by the 1st to 3rd Appellants annexed to the Replying Affidavit (WN18) that the 1st to 3rd Appellants fully participated in the TNDC proceedings.ix.The same Appellants have filed the instant complaint on similar grounds and are abusing this tribunal’s processes by filing a multiplicity of suits all arising from a singular event.vii.The 1st and 2nd Appellants are no longer the SG and VC respectively of the Jubilee party, both having been expelled from the party. The 3rd Appellant is also not the treasurer of the party having been suspended. The TNDC Judgments in respect of the Appellants have been marked as annex WN20. xii. The Appellants are misleading the tribunal by claiming that the ORPP plays any further administrative and or quasi judicial role in the disciplinary process under the party constitution. All IDRM procedures have been completed and as it stands the communication by the ORPP dated 19th May 2023 is proper and in compliance with the constitution of the party. The question of constitutionality and or illegality of any of the TNDC Regulations and/or the constitution of the party can only be determined by the High Court of Kenya as it has the exclusive jurisdiction under Article 165 of the Constitution of Kenya 2010.

26. The 1st Interested Party also relied on their Written Submissions dated 21st June 2023.

The 2nd and 3rd Interested Parties’ Case and Submissions 27. The 2nd and 3rd Interested Parties relied on Replying Affidavit sworn by Kanini Kega on 12th June 2023.

28. Hon. Kanini Kega has deposed in the Replying Affidavits that he is the acting SG of the Jubilee party. The NEC is established under Article 8. 2 of the party constitution and its duties outlined therein include inter alia ensuring that all decisions made by party organs are duly carried out and all the policies are adhered to and ensuring proper order, discipline, and strict adherence to the party’s constitution, by-laws, and party policies by all officials, members, and all organs of the party. To this end, Article 14. 1.12 mandates TNDC to report its findings and decisions to NEC for adoption, ratification, variation or substitution.

29. He further deposes that it is not true that the 1st to 3rd Appellants are the party’s SG, VC and Treasurer as they were expelled and suspended during a NEC meeting held on 10th February 2023 as evidenced by minutes produced marled as exhibit JKK-2. The Appellants challenged their suspension as well as the resolutions of the meeting of 10th February 2023 before this tribunal and the tribunal vides its Judgment delivered on 19th April 2023 (marked as JKK-3) directed that the dispute be submitted to IDRM.

30. The 1st to 3rd Appellants were charged before the TNDC pursuant to the resolutions of NEC of 10th February 2023 and a complaint filed by the national chairperson of the party. The members of TNDC were appointed by NEC in a meeting held on 26th February 2022, which is the same meeting that appointed the 1st to 3rd Appellants herein in their previous posts.

31. The Appellants were given a fair hearing where TNDC reached the decisions that were forwarded to NEC as provided for under Article 14. 1.12 of the party constitution. Pursuant to Article 8. 2.5 of the party constitution, NEC met and adopted the TNDC decisions on 19th May 2023. The acting SG Hon. Kanini Kega thereafter wrote a letter submitting the minutes of the NEC meeting of 19th May 2023 to the ORPP before traveling to Arusha, Tanzania to attend his parliamentary business. After he left, the DSG Hon. Joshua Kutuny noted some errors in the documents that the acting SG had submitted and recalled the acting SG’s letter. After making the necessary changes, the DSG then forwarded the minutes to the ORPP under his signature. The ORPP upon review of the submitted documents updated its record and the register of party members. That in the circumstances, the complaints have been overtaken by events and the prayers sought cannot be issued after implementation of the TNDC decision and the NEC resolutions vide the 2nd Respondent’s letter dated 19th May 2023.

32. Hon. Kanini Kega has in addition deposed that he is aware of the decision by the 4th Complainant’s IDRC in IDRC Dispute No. E005 of 2023, Hon. Jeremiah Kioni vs. Nelson Dzuya and Hon Joshua Kutuny, where the 1st Appellant had challenged the legality of the NEC meeting of 10th February 2023. IDRC in its decision found that the NEC meeting of 10th February 2023 was properly convened and held under the 4th Complainant’s constitution. A copy of the decision has been annexed to the Replying Affidavit marked as JKK-9.

Issues for Analysis and Determination 33. Flowing from the parties’ pleadings and submissions, the following issues can be distilled for determination:i.Whether the 2nd Respondent should be struck out of these proceedings for want of jurisdiction?ii.Whether the Registrar’s decision dated 19th May 2023 was made in compliance with Section 34(a)(da)&(g) of the Political Parties Act, Article 47 of the Constitution of Kenya, and the Fair Administrative Action Actiii.What are the appropriate remedies in the present instance? / Disposition

34. We have considered the majority judgment and we respectfully disagree with their analysis and finding in one key issue, that is, Whether the Registrar’s decision dated 19th May 2023 was made in compliance with Section 34(a)(da)&(g) of the Political Parties Act, Article 47 of the Constitution of Kenya and the Fair Administrative Action Act. We accordingly proffer our dissenting opinion on this issue as hereunder.

35. Section 34 of the PPA provides on the following functions of the Registrar of Political Parties (RPP):-a.register, regulate, monitor, investigate and supervise political parties to ensure compliance with this Act;b.administer the Fund;c.ensure publication of audited annual accounts of political parties:d.verify and make publicly available the list of all members of political parties:(da)keep and maintain a register of members of registered political parties;e.maintain a register of political parties and the symbols of the political parties (f) ensure and verify that no person is a member of more than one political party and notify the Commission of the findings(fa)certify that an independent candidate in an election is not a member of any registered political party(fb)certify that the symbol intended to be used by an independent candidate in an election does not resemble the symbol of a registered political party;(fc)certify that the names appearing in a party list are the names of members of the political party presenting the party list;(fd)regulate political party nominations in accordance with this Act;(fe)train political party election agents upon the request and financing by the political party;g.investigate complaints received under this Act; andh.perform such other functions as may be conferred by this Act or any other *written law.

36. In the exercise of the foregoing functions, it is now well settled that the RPP does not blindly rubberstamp decisions or documents from political parties or their institutions and organs. The RPP has the legal mandate to undertake independent inquiries and/or investigations with a view to satisfying herself that whatever decision or documentation that is presented to her by political parties for her action under the PPA is compliant with the law. Indeed in the case of Amani National Congress Partyv Godfrey Osotsi & Another [2021] eKLR, A. Mbogholi Msagha, J stated as follows:- “…The Registrar of Political Parties has powers under Section 34 (a) and (g) of the Political Parties Act which are extensive and independent. The duty of the Registrar is to conduct independent inquiries and ensure compliance with the law. In so doing, it has been held the duty is not merely to rubber stamp decisions of political parties or their institutions. – see Republic vs. Registrar of Political Parties & 6 others ex parte Edward Kings Onyancha Maina & 7 others (2017) e KLR.…Section 15 (7) of the Political Parties Act empowers political parties to expel members, but this can only be effected “if a member has infringed the constitution of the political party and after the member has been afforded a fair opportunity to be heard in accordance with the internal party disputes resolution mechanism as prescribed in the Constitution of the party…”

37. Similarly in the case of Republic v Registrar of Political Parties& 6 others Exparte Edward Kings Onyancha Maina & 7 others [2017] eKLR, Odunga, J observed as follows:-“…Under section 34(1) of the Political Parties Act, one of the functions of the Registrar of Political Parties is to register, regulate, monitor, investigate and supervise political parties to ensure compliance with the Act. Accordingly, I agree that as the regulator, monitor and supervisor of political parties, it is upon the Registrar to ensure that those who purport to have entered into the merger agreement are indeed the duly authorised officials of the party or parties in question of course without purporting to micro-manage the manner in which the said parties conduct their affairs. To that extent I agree with the decision of the Political Parties Disputes Tribunal in Appeal No. 5 of 2016 - Party of National Unity & Another vs. The Registrar of Political Parties & 2 Others - that the Registrar is not simply a conduit but a critical player in determining whether parties seeking to merge have complied with the law. Where therefore the law is not adhered to those aggrieved by the decision are at liberty to invoke the jurisdiction of the Tribunal to resolve their grievances…”

38. The Appellants case is that the RPP did not check on legal compliance prior to making her decision vide her letter dated 19th May 2023. The RPP on the other hand maintains that she checked on legal compliance and was satisfied. The interested parties are all in support of the position taken by the RPP.

39. From the record, it appears that the RPP received an initial letter dated 19th May 2023 authored by Hon. Kanini Kega and forwarding minutes of NEC and other documents.However, on the same date of 19th May 2023, the subject letter was recalled vide a letter by the party’s DSG of even date due to unspecified errors. On the same date, the DSG wrote to the RPP another letter dated 19th May 2023 that was received by the RPP on the same date. The subject letter from the DSG partly reads:-“…this is to inform you that the National Executive Committee (NEC) held a meeting on 19th May 2023 convened to deliberate on the reports of the National Disciplinary Committee (TNDC) and the Internal Dispute Resolution Committee.The NEC resolved to adopt the reports of the TNDC whose findings were as follows:i).Hon. Jeremiah Kioni was found guilty of indiscipline and expelled from the party ii) Hon. David Murathe was found guilty of indiscipline and expelled from the party iii) Mr. Kagwe Gichohi was found guilty of indiscipline and suspended from the party for two years……We forward herewith the following documents to enable your office to update your records accordingly;i)Notice for a NEC meeting dated 11th May 2023 ii) Minutes of the NEC meeting dated 19th May 2023 iii) List of members in attendanceiv.The reports of the National Disciplinary Committee containing the disciplinary findingsiv.The ruling of the Internal Disputes Resolution Committee staying the special NDC that had been scheduled for 22nd May 2023Yours faithfully,Hon. Joshua KutunyNational Deputy Secretary General, Jubilee Party”

40. The RPP responded to the said letter vide her letter dated on 19th May 2023 which partly reads as follows:-“…Reference is made to the above subject matter and your letter conveying inter alia resolutions of the National Executive Committee (NEC) in regard to the National Disciplinary Committee decisions.The office notes that pursuant to the judgment in PPDT Appeal No. E001 of 2023 Hon. David Murathe & 3 Others vs. Office of the Registrar of Political Parties & Another, the tribunal observed the need to internally resolve the issues emanating from the Jubilee Party (JP) NEC meeting of 10th February 2023. It is further noted that the party concluded the disciplinary processes against Hon. Jeremiah Kioni, Hon. David Murathe, and Mr. Kagwe Gichohi wherein they participated in line with Section 14B(2) of the Political Parties Act 2011 (PPA). Consequently, the party expelled Hon. Kioni, Hon. Murathe and suspended Mr. Kagwe.Following a review of the submitted documents in line with the PPA and the party constitution, this office is satisfied that the party adhered to the due process. Accordingly, pursuant to Section 34(da) of the PPA, this office has updated its records and the register of party members.By a copy of this letter, the persons copied herein are notified of the same…” (emphasisours)

41. From the RPP’s letter above, it is clear that she acknowledges the Judgment of this tribunal in PPDTA Appeal No. E001 of 2023. In fact, she notes that in the subject judgment, the tribunal had observed the need to resolve issues emanating from the Jubilee party NEC meeting of 10th February 2023. We note that in our subject Judgment which forms part of the record, we found that we did not have jurisdiction to consider and grant any prayers for nullification of the notice dated 2nd February 2023, the agenda and resolutions of the NEC meeting of 10th February 2023 for want of IDRM. It therefore follows that as at 19th April 2023, the RPP was aware that IDRM was yet to be concluded concerning the issues subject of PPDTA Appeal E001 of 2023.

42. We further note that from the DSG’s letter dated 19th May 2023 to the RPP, the RPP was notified only of the TNDC disciplinary proceedings concerning the Appellants herein and the Internal Dispute Resolution Committee (IDRC) decision staying the National Delegates Convention (NDC) that was scheduled for 22nd May 2023. There is no mention whatsoever of any IDRM proceedings and findings in respect of the legality of the NEC meeting of 10th February 2023, which meeting made several resolutions including the resolutions sanctioning the TNDC processes. It is therefore questionable whether the RPP holistically checked on the question of legal compliance by the party as mandated under the PPA. Had she done so, she would have noticed that out of the documents that were forwarded to her by the DSG, there was no record of how the party handled and concluded the dispute on the legality of the meeting of 10th February 2023, which dispute she was well aware existed and formed subject of PPDTA Appeal No. E001 of 2023 where she was a party. As we have already pointed out above, she in fact referred to the dispute in her own letter. In other words, considering the circumstances of this case, our opinion is that the RPP could only establish compliance with Section 14B of the PPA by confirming due process in not only TNDC disciplinary proceedings but also due process in IDRC proceedings relating to legality of the meeting of 10th February 2023. Interestingly, the IDRC decision on the legality of the NEC meeting of 10th February 2023 came much later after the RPP had made her impugned decision. The same is annexed to the 3rd interested party’s affidavit filed herein and shows it was rendered on 7th June 2023.

43. In addition, we also note that on the 16th May 2023, the RPP received a letter dated 16th May 2023 from the 1st Appellant herein communicating to her that certain changes had been made in TNDC and that she should disregard any decision coming from TNDC. There is no record of any acknowledgement of the subject letter by the RPP. What is however clear is that as at 19th May 2023 when the DSG forwarded the decisions from TNDC, the RPP was aware that there was a dispute concerning the persons who convened sittings of TNDC. The RPP nevertheless proceeded to make her decision of 19th May 2023 which she copied to the Appellants while knowing that she was yet to address the Appellants on the intertwined issue raised in the 1st Appellant’s letter dated 16th May 2023.

44. We have further perused the RPP’s Replying Affidavit on record and at paragraph 5 thereof, she confirms that the RPP received documents of the 4th Appellants NEC meeting of 26th February 2022 and the party officials appointed. The minutes of the NEC meeting listing the party officials that were appointed has been annexed by the RPP, which is the same list that the Appellants confirmed as reflected in the Gazette Notice No. 3195 of 2022 that they produced. Important to note is that at paragraph 7 of their replying affidavit, the RPP points out to the tribunal that “the 1st Respondent did not have in its record any change of party officials.” In fact, the only change the RPP alludes to is the one of 19th May 2023 subject of the instant appeal. It therefore follows that by the RPP own admission, as at 19th May 2023, the legitimate party NEC members were as per the Gazette Notice No. 3195 and the minutes of NEC meeting of 26th February 2022.

45. We have looked at the list of NEC members that the RPP has confirmed had not been changed prior to 19th May 2023, and compared the same with the list of persons who attended the NEC meeting on 19th May 2023. We note that many of the persons who attended the NEC meeting of 19th May 2023 are in fact not listed as NEC members in the list that the RPP acknowledges has never been changed prior to 19th May 2023. Had the RPP scrutinized the minutes forwarded to her, she would have noticed this very important variance and sought to investigate or inquire into the matter. The fact that the RPP went ahead and effected the resolution of the NEC meeting of 19th May 2023 whose list of attendees did not tally with the list of NEC members in her own record as at the material date is questionable. In our opinion, this was a key aspect of compliance that was within her mandate to look into. As per her affidavit, she only limited her compliance check to quorum and not the persons who formed the quorum.

46. We have further noticed that the DSG’s letter to the RPP dated 19th May 2023 inviting the RPP to effect changes was not copied to the Appellants herein. Meaning that as at the time the RPP was considering the same, she should have been aware that the Appellants were not aware that the same had been referred to her office. Noting that she was ultimately to make a decision that would affect the Appellants right to political association, due process would have necessitated that the RPP informs the Appellants of the same prior to effecting the changes. However, the RPP did not do so until after making the decision to expel and suspend the Appellants, which RPP’s decision was communicated to the Appellants way after the effect. We find that there was some procedural impropriety first in not informing the Appellants of the DSG’s letter and secondly sending it to the Appellants via email on 22nd May 2023 at 7. 56pm way after effecting the changes. In fact the record reflects that it is the 1st Appellant who went to collect the original letter on 23rd May 2023 at 2. 20pm under protest.

47. In PPDTA Appeal E001 of 2023 Hon. David Murathe & 3 Others vs. Office of the Registrar of Political Parties & Another, we pronounced ourselves as follows: -“…It is also noteworthy that Respondent’s functions are administrative duties and needless to note, fair administrative action is envisaged in the performance of those administrative duties under Article 47 of the Constitution. …It is, however, not in dispute that no person made representations before her. Neither has it been demonstrated that she made any investigations beyond what she claims was in the documentation furnished.Section 2 of the FAA defines an “administrative action” to include - the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. In essence, whereas the Respondent knew that the Appellants were likely to be affected by the exercise of her function under the PPA and her finding, she did not allow them a reasonable opportunity to be heard. Her action or finding was procedurally unfair…. We therefore find that the Respondent acted in violation of Section 34(1) of the PPA as read together with Article 47 of the Constitution and Sections 7(2)(a)(v) and 7(2)(b)(c)(f)(m) & (n) of the FAA…”

48. We still maintain our position as per our decision above that the RPP ought to have applied fair administrative action in her quest to exercise her powers under the PPA especially knowing that the letter that had been forwarded to her by the DSG inviting her to effect changes against the Appellants had not been copied to the Appellants.

49. In conclusion, the record reflects that the speed at which the RPP acted on the communication from the DSG was nothing comparable with the speed at which she handled communication from the 1st Appellant, who was the SG as per her own record prior to 19th May 2023. The letter of 16th May 2023 is just one of the examples on record. We already stated that on the 19th May 2023 the RPP received the first letter from the 3rd interested party forwarding documents to her. No sooner had she attended to the same than she received another letter from the DSG recalling it. Soon thereafter, she received another letter dated 19th May 2023 from the DSG now forwarding proper documentation for her necessary action. The documentation forwarded to the RPP by the DSG showed that there was a NEC meeting that was held on the same date of 19th May 2023. Needless to note, there is reasonable basis to conclude that given the stated series of events of the 19th May 2023, the RPP only had a few hours to consider the DSG’s letter and documents and make her impugned decision on the same date of 19th May 2023. There is no gainsaying that her decision impacted on the Appellants’ right to political association and such a weighty matter required a meticulous examination of the documentation furnished and her record. We accordingly echo the observations in the case of Amani National Congress Party v Godfrey Osotsi & Another [2021] eKLR, A. Mbogholi Msagha, J (already referred to above) where the court stated as follows:-…It is clear from the foregoing that the letter from the Registrar of Political Parties acknowledging communication from the appellant was, to say the least, inadequate. It is also noted that the letter from the appellant was dated on the same date and acknowledged by the Registrar on the same date. There is no reason to question the efficiency of the Registrar’s office. However, the matter presented by the appellant for ratification was weighty and impacted on the 1st respondent’s rights to political association.Going by the provisions of Section 34 (a) and (g) of the Political Parties Act, the Registrar’s words in the letter of acknowledgment dated 13th May, 2019 stating, “The contents therein are duly noted” can hardly be said to have been in due execution of those powers and or functions. With respect, that falls short of the scrutiny required by Section 15 of the same Act cited above.A meticulous examination of the proceedings which took place in the appellant’s internal dispute resolution mechanism, and the ultimate decision was called for in this matter. The Registrar’s office fell short of this.Where an office does not execute its duties to the expected standards conferred by law, the same must be faulted because prejudice is likely to adversely affect the other parties…”

50. Taking into consideration the wholesomeness of the foregoing facts and circumstances, the applicable law, and all the judicial authorities referred to above, we reach the conclusion that the RPP acted in violation of Section 34(1)(a)(da)(g) as read together with Article 47 of the Constitution and the FAAA.

Disposition 51In light of the foregoing, we would have granted the following orders, that: -i.A declaration be and is hereby issued that the decision contained in the Respondents’ letter dated 19th May 2023 was not made in compliance with Section 34(a(da))&(g) of the Political Parties Act, Article 47 of the Constitution of Kenya and the Fair Administrative Action Actii.An order is hereby issued quashing and/or setting aside the Respondents’ letter dated 19th May 2023. iii.The Respondents are hereby ordered to immediately reinstate the Appellants and update the register of officials of the Jubilee Party accordingly.iv.Costs of the Appeal are hereby awarded to the Appellants.

DATED AND DELIVERED AT NAIROBI (AS A DISSENTING OPINION) THIS 11TH DAY OF JULY 2023. HON. DESMA NUNGO HSC - (CHAIRPERSON)HON. GAD GATHU - (MEMBER)HON. STEPHEN MUSAU - (MEMBER)