[2023] KEPPDT 1273 (KLR)

Kodhe v Orange Democratic Movement Party & another (Complaint E008 (KSM) of 2023) [2023] KEPPDT 1273 (KLR) (29 November 2023) (Judgment) (with dissent - AA Abdikadir, Member)

Neutral citation: [2023] KEPPDT 1273 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E008 (KSM) of 2023

D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members

November 29, 2023

Between

Hon. Phelix Odiwuor Kodhe

Complainant

and

Orange Democratic Movement Party

1st Respondent

Office of the Registrar of Political Parties

2nd Respondent

Judgment

Introduction 1. The Complainant is the Current Member of Parliament (MP) for Langata Constituency, and a life member of the Orange Democratic Movement (ODM) Party. He avers that while dispensing and pursuing his electorate’s interest in his stated capacity as the MP for Langata Constituency, he attended a meeting with H.E. President William Samoei Ruto and H.E. Deputy President Hon. Rigathi Gachagua at State House in Nairobi on 7th February 2023 which was purely official and had nothing to do with politics.

2. Following the meeting, the Complainant was served with a notice to show cause (NTSC) letter dated 13th February 2023 calling on him to show cause why he should not be subjected to disciplinary processes for his purported dalliance with party competitors having violated Section 14A of the Political Parties Act 2011, Article 11 of the Party Constitution and the Party’s Code of Conduct. In furtherance of the NTSC, disciplinary proceedings were ultimately conducted against the Complainant before the 1st Respondent’s Disciplinary Committee (DC) and the DC deemed the Complainant to have resigned.

3. The DC Finding and Recommendation was forwarded to the 1st Respondent’s National Executive Committee (NEC) and NEC ratified the same and then issued a presser thereon on 6th September 2023 without any notice to the Complainant. The Complainant allegedly learnt of the decision made against him in the media on the stated date of 6th September 2023.

4. Aggrieved by the DC disciplinary processes and its Findings and Recommendations and the consequential ratification thereof by NEC, the Complainant filed the instant Complaint dated 11th September 2023 (hereinafter referred to as the Complaint) challenging the said DC Decision and the procedure on several grounds. The Complainant accordingly seeks the following prayers,i.That this Honourable tribunal be pleased to issue a declaration that the decision of the 1st Respondent to expel the Complainant Hon Phelix Odiwuor Kodhe from the ODM party is illegal, premature, and incapable of being implemented for having been made without ratification by the National Governing Council in Violation of Article 12(1)(b) and Article 75(6) of the Orange Democratic Movement Part’s Constitution.ii.That this Honourable Tribunal be pleased to issue an order quashing the 1st Respondent's decision to expel the Complainant Hon. Phelix Odiwuor Kodhe from the Orange Democratic Movement Party as the decision violates Article 27(1) & (2), Article 96 of the Constitution, Article 38 of the Constitution and Article 130(1) and 131 (1) & (2) of the Constitution of Kenya.iii.That this Honourable tribunal be pleased to issue a declaration that the Disciplinary proceedings conducted by the 1st Respondent against the Complainant on the 25th of July 2023 were unprocedural, unlawful, and in violation of the right to a fair administrative action and fair hearing as per Article 47 and 50(2) of the Constitution of Kenya and fair Administrative Action Activ.That this Honourabler Tribunal be pleased to issue a declaration that the disciplinary proceedings conducted by the 1st Respondent against the Complainant on the 25th of July 2023 violated the Political Parties Act, the Fair Administrative Action Act, and Article 75(5) and (6) of the 1st Respondents constitutionv.That this Honourable tribunal be pleased to issue a declaration that the Disciplinary Committee of the 1st Respondent convened on the 25th of July 2023 was not properly constituted for violating section 12 of the Political Parties Act and in contempt of the decision in Ben Murumbi Sihanya & Another (interested parties) {2021} eKLR and thus the decision of the National Executive Committee adopting the Recommendations of the said Committee is invalid and has no effect in law.vi.That this Honorable tribunal be pleased to issue a declaration that by singling out the Complainant for disciplinary proceedings for meeting the president and deputy president of the Republic of Kenya the 1st Respondent discriminated against the Complainant in violation of Article 27 of the Constitution of Kenya.vii.That this Honourable Tribunal be pleased to issue a permanent injunction restraining the 2nd Respondent from removing the name of the Complainant, Hon Phelix odiwuor Kodhe from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July 2023 and the illegal decision to expel him from the ODM partyviii.That this Honourable Tribunal be pleased to issue a permanent injunction restraining the 1st Respondent from interfering with, de-whipping, or in any manner attempting to remove the name of the Complainant Hon Phelix odiwuor Kodhe from the register of the members of the Orange Democratic Party based on the illegal disciplinary proceedings conducted on 25th July 2023. ix.Any other order this Honourable Tribunal may deem fit for the end of justicex.The costs of this suit be borne by the 1st Respondent.

5. The Complainant was filed together with a Notice of Motion application dated 11th September 2023 under certificate of Urgency (hereinafter referred to as the first application) seeking inter-alia: -i.conservatory and/or interim orders staying the implementation and or enforcing the decision of the 1st Respondent to expel the Complainant from the membership of the 1st Respondent Orange Democratic Party pending the hearing and determination of the application.ii.An order of Temporary injunction restraining the 2nd Respondent from effecting the decision to expel the Applicant from the ODM party and or removing the name of the applicant Hon. Phelix Odiwuor Kodhe from the register of the members of the ODM party pending hearing and determination of this application.iii.That a conservatory order and or interim order be issued barring the 1st Respondent from removing the Complainant, Hon. Phelix Odiwuor Kodhe as a committee member of the Broadcasting and Library Committee and Diaspora Affairs and Immigrant Workers Committee pending the hearing and *determination of the Application.

6. The application was placed before the Tribunal for directions on 12th September, 2023. Upon consideration thereof, the Tribunal, in exercise of its discretion under Regulation 5(5)(g) as read together with Regulation 42(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 (the PPDT Regulations), granted the following interim orders ex-parte in the first instance:-i.That the Notice of Motion application dated 11th September 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only. ii. THAT the Complaint and Notice of Motion application dated 11th September 2023 be served upon the Respondents within two (2) days of the date hereof.iii.That the Respondents 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 11th September 2023 be listed for mention on 25th September 2023 at 2. 30pm to check on compliance and/or for further directions.v.That in the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues interim conservatory orders staying the implementation and/or execution of the decision of the 1st Respondent to expel the Complainant/Applicant, Hon. Phelix Odiwuor Kodhe, from the Orange Democratic Movement Party.vi.That in the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues an order of temporary injunction restraining the 2nd Respondent from effecting the decision of the 1st Respondent to expel the Applicant from the Orange Democratic Movement Party and/or removing the name of the Applicant, Hon. Phelix Odiwuor Kodhe, from the register of members of the Orange Democratic Movement Party.vii.That in the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues an order of temporary injunction restraining the 1st Respondent from de-whipping the Applicant and/or removing the Applicant, Hon. Phelix Odiwuor Kodhe, as a committee member of the Broadcasting and Library Committee and the Diaspora Affairs and Immigrant Workers Committee.

7. During the mention of the first application on 25th September, 2023, Counsel for the 1st Respondent, Mr. Makori Advocate, indicated that the 1st Respondent was willing to concede to the first application in order pave way for the issuance of directions on the substantive Complaint in the interest of time. There being no objection by the Complainant and the 2nd Respondent, the first application was allowed in terms of prayers number 5, 6 and 7 thereof. Accordingly, after consulting with all the parties on their preferred mode of prosecution of the substantive Complaint, and balancing all interests, directions were issued to the following effect:-i.That the Respondents to file and serve their responses and all documents they intend to rely on in response to the Complaint within 7 days.ii.Corresponding leave is granted to the Complainant to file and serve Further Affidavit if need be within 4 days of serviceiii.Matter to be mentioned on 6th October 2023 to check on compliance and for further directions as to the hearing of the Complaint.

8. On 6th October 2023 when the matter came up for mention, the Tribunal established that all parties had complied by filing their pleadings as directed and parties stated their preference to prosecute the Complaint vide written submissions. Accordingly, directions were issued to parties on filing of written submissions and the Complaint was fixed for hearing on 25th October 2023 by way of highlighting of parties’ written submissions.

9. However, on the 24th October 2023 when the matter came up for hearing as had been scheduled, Counsel for the Complainant, Mr. Okore Advocate, holding brief for Prof. Ojienda, SC, brought to the attention of the Tribunal that they had filed a Notice of Motion Application dated 23rd October 2023 (hereinafter referred to as the second application) seeking orders for consolidation of the Complaint with other related Complaints. He accordingly sought for directions on the hearing of the second application. In light of this development and upon building consensus with all the parties on the way forward, it was agreed by consent of all the parties that the second application be deemed as withdrawn with no orders as to costs, and the Complaint was adjourned for hearing on 7th November 2023.

10. Pursuant to the directions of the Tribunal, the matter proceeded for hearing by way of viva voce evidence and cross examination of witnesses on 7th November, 2023. Parties also filed their written and highlighted the same on the 15th November 2023.

11. At the hearing of the Complaint, the Complainant was represented by Prof. Ojienda, SC and Ms. Awuor Advocate. The 1st Respondent was represented by Mr. Makori Advocate, and the 2nd Respondent was represented by Ms. Ndwiga Advocate, holding brief for Mr. Wakoko Advocate.

The Complaint and Submissions 12. The Complaint is supported by the Complainant’s Supporting and Further Affidavit, and the Complainant’s Written Submissions and List and Bundle of Authorities in support thereof, amongst other pleadings and documents on record.

13. The Complainant was issued with a notice to show cause (NTSC) letter dated 13th February 2023 calling on him to show cause why he should not be subjected to disciplinary processes for his purported dalliance with party competitors having violated Section 14A of the Political Parties Act 2011, Article 11 of the Party Constitution and the Party’s Code of Conduct. Annexed to the NTSC letter was a letter dated 9th February 2023 indicating that the meeting held on 7th February 2023 with the President and his Deputy caused immense embarrassment, ridicule anxiety, and disgust among the members of the ODM party and called for the party to have the Complainant deemed as having resigned from ODM under Section 14A of the Political Parties Act or in the alternative be expelled from the party.

14. The Complainant responded to the NTSC vide a letter dated 15th February 2023 indicating that the meeting was on an official basis and further relied on Articles 130 and 131 of the Constitution asserting that the President and the Deputy President are symbols of national unity.

15. Vide summons dated 10th July 2023 the Complainant was invited for a hearing at Chungwa House on 19th July 2023. Also Annexed to the summons was a piece of paper titled ‘Evidence’ referring to incidences that occasioned the said disciplinary hearing.

16. The Complainant responded with a letter dated 17th July 2023, requesting an adjournment of the hearing to August 2023. The 1st Respondent responded to the Complainant’s said letter on July 18th, 2023, informing him that the hearing would be held on 25th July 2023, at a venue to be communicated, because time was running out considering the decision to charge was sent and received on 3rd July 2023.

17. The date scheduled for the hearing happened not to be convenient for the Complainant as the President was visiting his Constituency and in the circumstances, the Complainant appointed his Advocates Ms, Veralucy Awuor and Mr. Evans Oruenjo to represent him on the hearing date and seek an adjournment to 26th July 2023.

18. However, upon the Advocates appearing before the DC, they were expelled on the grounds that they had no formal appointment letter from the Complainant and so they were not present at the disciplinary proceedings of the Complainant.

19. On the 6th of September 2023, the 1st Respondent issued a presser to the public indicating that the national executive committee had passed a resolution to adopt the recommendations of the ODM disciplinary committee to expel among other members, the Complainant.

20. Counsel for the Complainant submitted on 5 issues which he had identified for determination, that is;-i.whether the Complainant was expelled from the ODM Party, ii. whether due processes were followed in the expulsion of the Complainant, iii. whether the ODM Disciplinary Tribunal was properly constituted, iv. whether the Complainant was denied legal representationv.whether the Complainant espoused the ideologies of another political party

21. On the first issue, the Complainant, while relying on various provisions of the ODM Constitution, stated that the Complainant testified that he is a life member of ODM and has never at any point expressed any intention to quit the ODM party. That there being no meeting of the National Governing Council between 25th July 2023 when the purported disciplinary hearing against the Complainant which took place in his absence and on 6th September 2023 when the presser was issued as contemplated under Articles 49 and 50 of the ODM Constitution, the decision deemed to be arrived at is premature and a scheme to force the Complainant to leave the party against his will.

22. On the second issue, the Complainant relied on Articles 47(1) & (2) of the Constitution of Kenya and various provisions of the ODM Constitution, ODM Disciplinary Committee (Practice and Procedure) Rules 2022, Fair Administrative Action Act and case laws and submitted that the 1st Respondent disregarded the procedures set out by its own constitution and disciplinary rules before expelling the Complainant from the party. The same was expounded on the grounds of,i.Failure to serve the Complainant with the 1st Respondent's decisionii.The notice to show cause letter of 13th February 2023 had generalized allegations,iii.The complainant was never served with the summons of 10th July 2023 iv. There was a single complaint on 9th February 2023v.The complainant was never served with the decision to charge dated 3rd July 2023 vi. The complainant was never heardvii.There was no evidence to substantiate the allegationsviii.Denying the complainant, the right to legal representation

23. On the issue of whether the Complainant should be deemed to have resigned from the ODM Party the Complainant relied on Section 14A (1) (e) of the Political Parties Act and the decision in Civil Appeal no 539 of 2016 Isaac Aluoch Polo Aluochier vs Gideon Moi & 3 others (2016) e KLR while maintaining that a mere visit to the President and Deputy president cannot be deemed to be identifying with the ideologies of another political party.

24. The Complainant further expounded the same on 3 limbs, that is, the complainant was performing his duties of legislative representation under Article 96 of the Constitution of Kenya; the Complainant met the President of the Republic of Kenya and the Deputy President of Kenya and not the party leaders of UDA. The complainant relied on Articles 130(1), 131 (1)(a), 131(2), 136, and 138 of the Constitution of Kenya and Presidential Election petition E005, E001, E002, E003, E004, E007& E008 of 2022(Consolidated) Raila Odinga & 16 others vs Ruto & 10 others; and that the allegation of how the Complainant had identified with the ideologies of another political party had not been proved. The complainant relied on Civil Appeal no 539 of 2016 Isaac Aluoch Polo Aluochier vs Gideon Moi & 3 others (2016) e KLR, The court of appeal in Civil Appeal no. 77 of 2015 quoting the case of Gupta vs Continental Builders Ltd (1976-80) IKLR 809, Article 38and 27 of the Constitution of Kenya 2010.

25. It was argued that the Complaint was meritorious and the complainant had been forcefully ejected from the party under the disguise of Section 14A of the Political Parties Act and there was no evidence whatsoever that he had promoted the ideologies of any rival political party or accepted an office of a rival political party.

26. The Complainant further submitted that the prayers sought were premised on the grounds that,a) The purported decision to expel Hon. Phelix Odiwuor Kodhe is premature and incapable of being implemented as it has not been ratified by the National Governing Council.In reliance on Articles 12(1)(b) and 75(6) of the ODM constitution, the Complainant highlighted four distinctive procedures that must be followed before a decision to expel a member is made. First, the ODM Disciplinary Committee hears the Complaint; second, the ODM makes a decision and forwards its recommendation to the National Executive Committee (NEC); third, the NEC adopts the recommendation and imposes the sanctions outlined in Article 75(6) of the Party's Constitution; and finally, the NEC's resolution must be ratified by the National Governing Council before the member is expelled.In the circumstance, the Complainant stated that no disciplinary hearing was conducted hence the decision of the National Executive Council to expel the Complainant has not been ratified by the National Governing Council hence the 2nd Respondent cannot enforce a non-existent decision.b) Violation of Article 47 of the constitution and Section 14A (2) (a) of the Political Parties Act.The Complainant while relying on Article 47(1) and 47(2) of the Constitution of Kenya 2010, Rule 26 of the Disciplinary Committee (practice and procedure) Rules 2022, and section 14A(2)(a) of the Political Parties Act stated that he is yet to be served with the purported decision of the National Executive Committee issued vide the presser of 6th September 2023 and the Ruling of the ODM Disciplinary Committee that recommended and approved his expulsion.c) Violation of the Right to Fair Administrative Action and Fair hearingThe complainant brought out this ground in 7 limbs namely,i. The notice to show cause letter of 13th February 2023 had generalized allegationsUnder this limb, the Complainant relied on Article 76(5) of the ODM constitution while stating that the notice to show cause letter dated 13th February 2023 issued to the Complainant was generalized with no specific allegation as it stated that ‘my office received a complaint from a member of the party raising a plethora of issues that border on your general conduct as a member of the party and in specific your dalliance with party competitors’. The claimant contends that it did not refer to the alleged conduct or the competitors and that omitting the specifics of the accusation violates the Complainant's right to a fair hearing and fair administrative action.ii. The Complainant was never served with the summons of 10th July 2023In reliance on Rule 18(2) of the ODM Disciplinary Committee (Practice and Procedure), the complainant states that he was never served with a summons dated 10th July 2023 and only got to know about them on social media.iii. The summons dated 10th July 2023 had different charges from the notice to show cause letter dated 13th February 2023The Complainant who relied on Article 75(5) of the ODM Constitution and Rules 4(3) (a), 5, and 7 of the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 alleged that the purported complaint of February 9th, 2023, related to a single event of February 7, 2023, and the summons of July 10th, 2023, alluded to multiple claims that were never included in the notice to show cause letter of February 13, 2023. Moreover, the Complainant claimed that the annexed "Evidence" referred to completely different incidents that were never included in the Notice to Show Cause letter, and there were no complaints regarding those additional charges that were simply added to the summons of 10th July 2023 and never went through the processes of registering complaints. Still on the "fresh" charges, the Complainant asserted that there was no complaint regarding these additional charges, no notice to show cause was issued to the Complainant, and no decision was made to charge the Complainant regarding the fresh allegations, therefore the disciplinary committee lacked jurisdiction to hear the allegations.iv. The summons did not contain the decision to charge dated 3rd July 2023The complainant cited Rules 17(3)(a) and 11(2) of the Disciplinary Committee (Practice and Procedure) Rules 2022 when contending that the summons dated 10th July 2023 should have been accompanied by the decision to charge, which was not followed, putting the aforementioned provisions in violation.v. Denying the Complainant, the right to legal representationThe Complainant relied on violations of Article 50(1) of the Constitution of Kenya 2010, Sections 3(e) and 4(a) of the Fair Administrative Action Act, Article 76(9) of the ODM Constitution, and Rule 21(1) of the Disciplinary Committee (practice and procedure) Rules 2022 when emphasizing that the advocates who had appeared before the Disciplinary Committee on the 25th July 2023 to seek adjournment were expelled on the grounds that they had no written letter of appointment.iv. The complainant was never heard.The complainant avered that upon the Complainant's advocates being expelled from the hearing by the 1st Respondent the hearing proceeded hence denying him the opportunity to be heard.iv. There was no evidence to substantiate the allegations.When relying on S 4(3) of the Fair Administrative Action Act the Complainant stated that there was no evidence whatsoever that was tabled before the disciplinary committee or annexed to the summons of 10th July 2023 to substantiate the allegations that the Complainant through his conduct had associated with the ideologies of another political party.d. The ODM Disciplinary Committee was improperly constitutedThe Complainant relied on section 12 (1) (c) & (d)of the Political Parties Act, 2011 and the case of Ben Murumbi Sihanya & another vs Ethics and Anti-Corruption Commission; Registrar of Political Parties & another (interested parties {2021} when stating that by the virtue that the chairperson Prof Ben Murumbi Sihanaya being a public officer the 1st Respondent does not have a Disciplinary Committee. Further, in the same vein, as the Chairperson lacked the capacity to chair the committee, the Complainant raised the issue of quorum while relying on Article 75(1) & (2) of the ODM Constitution.e. The complainant did not violate s14A (1) (e) of the Political Parties ActThe complainant cited S14A (1) (e) of the Political Parties Act and stated that the Complainant could not be deemed to have resigned from the 1st Respondent or be expelled and expounded the same on the grounds that,a.The Complainant was performing his duties of legislative representation under Article 96 of the Constitution of Kenyab.The Complainant met the President of the Republic of Kenya and the Deputy President of Kenya and not party leaders of UDAc.The allegation of how the Complainant had identified with the ideologies of another party had not been provedd.The decision to expel the Complainant violates Article 38 of the Constitution of Kenya, the decision to expel the Complainant from the Party for meeting the Head of State and his Deputy is discriminatory as several ODM members have met President William Ruto in his capacity as the Head of State and Government and none of those leaders have been issued with notices to show cause.

The 1st Respondent's Response and Submissions 27. The 1st Respondent being represented by the learned Council Edward Makori filed their response to the Complaint dated 2nd October 2023 while relying upon the ODM Constitution, the Political Parties Act, and the ODM Disciplinary Committee (Practice and Procedure) Rules 2022.

28. The 1st Respondent reiterated that the Party has a detailed constitution that its members have agreed to be bound by and the said primary document that governs their affairs and interactions and further provides how disputes and disciplinary matters are handled and dispensed as the Party endeavors to ensure that the process is followed for the end of justice, to meet the aspirations of the Constitution and ensure fairness and transparency in the process.

29. In reliance on Article 12 (1) and other sections of the ODM Constitution, the 1st Respondent stated that the Complainant is on record urging the citizens to shun the peaceful protests called by the ODM and Azimio la Umoja to decry the high cost of living and given that the Complainant has been promoting interest of a competing political party against those of ODM and disobeying lawful decision of the Party, under the law he is deemed to have resigned ipso facto

30. The 1st Respondent then received a complaint on 9th February 2023 regarding the conduct of the Complainant herein from one member Hon. Eddy Gicheru Oketch the current senator of Migori. The Complaint before the DC was grounded on the facts that;-i.On 7th February 2023, the complainant herein demonstrated close association with a different political party whose ideologies, interests, and policies he had been promoting from within the Orange Democratic Movement Partyii.In reliance on Section 14A (1) (e) of the Political Parties Act, the Complaint be deemed to have resigned from the party for promoting the ideologies, interests, or policies of another political party.

31. In accordance with the Party’s Rules and Regulations, the complaint before the DC was processed on 13rth February 2023 and a show cause Notice was served upon the Complainant enclosed with a communique to the Complainant for perusal hence the allegation that the complainant was served with a generalized letter with no specific allegation is false.

32. The 1st Respondent stated that the Complainant received the said NTSC letter and responded vide a response dated 14th February 2023 stating the meeting was on official grounds for purposes of advancing development agendas

33. The 1st Respondent alleges that while the matter was still pending determination it received another complaint from one Dr. Nathan Barasa Wangusi a member of the 1st Respondent party and a resident of Langata Constituency expressing the betrayal of their trust bestowed upon the Complainant and prayed that the Complainant be deemed to have resigned.

34. Under the guidance of Rule 10 (4) of the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 the 1st Respondent commenced the investigation and additional facts and findings came as outlined in the 1st Respondent document titled “EVidence Hon. Felix Odiwuor”

35. Consequently, the 1st Respondent invited the Complainant to attend a disciplinary hearing vide a notice to appear dated 10th July 2023 upon service of the summons and the findings of the 1st Respondent in the document of Evidence hence disregarding the Complainant’s allegation that the document referenced as evidence and the Complaint of Dr. Nathan Barasa Wangusi were a new set of charges against the Complainant.

36. The 1st Respondent stated that the initial disciplinary hearing was to be conducted on the 19th of July 2023 as detailed in the summons dated 10th July 2023 and upon adjournment sought by the Complainant the same was scheduled on 25th of July 2023 with reasons given a cumulative 15 days to prepare his defence.

37. In reference to Rule 11 of the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 the 1st Respondent stated that the decision to charge should be forwarded to the Committee and not the Complainant which was indeed forwarded.

38. The 1st Respondent stated that the Complainant was reminded of the same hearing and given a pin via WhatsApp and chose not to attend but rather attend a nonmandatory function demonstrating that his loyalty and preference was with Ruto’s Regime and not the ODM party. Moreover, it is false to conclude that the Complainant was denied a fair hearing yet he deliberately chose not to appear.

39. In reliance on Rule 25 of the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 and the fact that the representatives did not carry any notice of appointment nor did the Complainant himself appear and present them as his representatives, the hearing proceeded with his absence notwithstanding.

40. The Disciplinary hearing, determination, and recommendation report was forwarded to the ODM National Executive Committee in tandem with the Party Rules which held a meeting on 6th September and upon consideration chose to adopt the same report.

41. Further, the Complainant was served with both the report of the Disciplinary Committee and the minutes of the ODM National Executive Committee.

42. The 1st Respondent spelt out that the case of Ben Murumbi Sihanya and Anor vs Ethic and AAnti Corruption Commission; Registrar of Political Parties & Anor (interested parties) 2021 was instituted by Ben Sihanya himself and the court decision did not declare the petitioner was prohibited from holding an office at the 1st Respondents disciplinary tribunal.

43. In reliance to the Court of Appeal decision in Owners of the Moor Vessel ”Lilian S” vs Caltex Oil (Kenya) Ltd (1998) eKLR the 1st Respondent stated that upon the complainant submitting himself before the Disciplinary Committee and raising no objection on the jurisdiction and competence the decision delivered on 25th July 2023 remains standing.

44. The 1st Respondent maintains that the Decision by the NEC to expel has not been ratified by the NGC as the complainant was not expelled but rather deemed to have resigned under section 14A (1) (e) of the Political Parties Act.

45. The 1st Respondent stated that the complainant was not keen on ventilating his defence because, after 15 day period before the hearing, he did not even put a letter in rebuttal to all the instances of misconduct detailed in the document titled Evidence.

46. The 1st Respondent further avered in reliance to various sanctions in the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 and reference to its bundle of documents that the complainant has no cause of action at all against it on the grounds that due process was not followed,i.The complainant was issued with the show cause notice ii. The complainant received the show cause notice and responded iii. The investigation of the complaint before determinationiv.The complainant was given the evidence and facts to be relied upon by the 1st Respondent at the Disciplinary hearing,iv.The complainant was issued with the summons to attend the Disciplinary Hearingiv.The complainant failed to appear or send recognized representatives to the Disciplinary Hearingiv.The Disciplinary Tribunal considered all the facts, evidence, and law in arriving at its decisioniv.The report of the disciplinary tribunal was forwarded to the ODM National Executive Committee for adoptioniv.The Complainant was served with the Report of the Disciplinary Committee and the Minutes of the ODM National Executive Committee in tandem with section 14A (2) (a) of the Political Parties Act.

47. The 1st Respondent relied on Articles 11 and 12 (1) of the ODM Party Constitution, the ODM Code of Conduct as read together with Section 14A (1) (e) of the Political Parties Act a person is deemed to have resigned from a political party if s/he promotes the ideology/ies, interests or policies of another Political Party while maintaining that the salient facts preceding this Dispute and as enumerated and set out in the Reply to the Complaint demonstrate that the Complainant by egregious conduct acted in such a manner that the provisions of Section 14A (1) (e) of the Political Parties Act were met. Specifically, the Complainant we assert is by conduct deemed to have resigned from the Orange Democratic Movement Party.

48. Based on the facts relating to substantive and procedural laws the 1st Respondent premised his submissions on 6 issues for determination as follows,i.Whether Hon. Phelix Odiwuor was expelled or was deemed to have resigned?ii.Whether Due Process was followed in the Disciplinary Process relating to the Complainant?iii.Whether the Disciplinary Committee was justified in arriving at the decision that the Complainant was deemed to have resigned from the ODM Party?iv.Whether the National Governing Council need to ratify the decision of the National Executive Committee in respect of the Complainant?v.Whether the ODM Disciplinary Committee was properly constituted?vi.Who bears the costs of the suit?

49. On the first issue, the 1st Respondent stated that at no point was the 1st Respondent expelled from the 1st Respondent Party as is alleged in both the Complaint and the Complainant’s Submissions.

50. The 1st respondent relied on the Complaint of one Hon. Eddy Gicheru Oketch, currently Senator of Migori County, the Show Cause issued to the Complainant was with regard to his conduct detailed in the Complaint of Hon. Eddy Gicheru Oketch, The second Complaint was from one Dr. Nathan Barasa Wangusi, a member of ODM and a resident of Lang’ata, the Recommendation Report of the Disciplinary Committee, The Minutes of the ODM National Executive Committee to demonstrate that the Complainant was not expelled as alleged but was deemed to have resigned from the ODM Party, under Section 14A (1) (e) of the Political Parties Act No. 11 of 2012.

51. On the second issue the on whether due process was followed in the disciplinary process relating to the complainant? The learned counsel for the 1st Respondent sought to rely on Article 47 of the Constitution of Kenya 2010 and Section 4 of the Fair Administrative Action Act, 2015 while stating that the whole process was followed and all canons of administrative justice met as demonstrated below,i.The Complainant herein was given a Show Cause Notice and the Complaint of Hon. Eddy Gicheru Oketch attached to it for his better understanding of the nature of the Complaint and Charges against him.ii.The Complainant was given all documents to be relied upon by the 1st Respondentiii.Summons and Service of Documents the evidence shows that the Complainant was indeed served with the summons to attend the disciplinary hearing emphasizing Rule 18 (2) of the ODM Disciplinary Committee (Practice and Procedure) Rules, 2022, that service can be done through WhatsApp, messages and other Social Media Platformsiv.The Complainant was allowed to be heard and to make representations in that regard stating that it was evident that there was no supporting evidence to show or prove that the persons who appeared at the Disciplinary hearing and who alleged to be acting for the Complainant were the Complainant’s Representatives. The said persons; Had no notice of appointment, Had no instruction notes, and Were not identified by the complainant either prior to or during the hearing as his representatives.v.The Complainant was duly informed of the decision of the Disciplinary Committee and the ODM National Executive Committee.

52. On the third issue of whether the disciplinary committee was justified in arriving at the decision that the complainant was deemed to have resigned from the ODM party, the 1st Respondent relied on Section 14A (1) (e) of the Political Parties Act and Article 12 (1) of the ODM Party Constitution.

53. The Learned Counsel further affirmed that the arch-rival political party of the ODM party in Azimio la Umoja is UDA in the Kenya Kwanza Coalition and spelt out Some of the activities, ideologies, and/or interests of Hon. William Ruto in UDA which the complainant promoted in direct conflict with those of ODM party are as follows;i.While the ODM party was of the ideology that, there should be public protests to decry the high costs of living, Hon. Phelix Odiwuor, in tandem with Kenya Kwanza ideologies, is on record with six others, urging the populace to shun the party-sanctioned Azimio La Umoja peaceful and lawful protestsii.While ODM and its members continuously and vehemently contested the legitimacy of the UDA Government, its policies, objectives, and interests, Hon. Phelix Odiwuor was on record declaring his support for Hon. William Ruto, and while at it, Hon. Phelix Odiwuor is on record urging the public to pray and support Hon. William Ruto and his governmentiii.On the date of his own Disciplinary Hearing, despite unequivocal reminders and notices, the Complainant chose to attend non-mandatory activities of Hon. William Ruto over the Disciplinary Committee proceedings in his Cause, which further demonstrated where his allegiances lay.

54. It is from the foregoing that the 1st Respondent concluded that the series of conducts of the Complainant was not a coincidence. He was deliberate about it and he was out to support another political party.

55. On the fourth issue of whether the national governing council needed to ratify the decision of the NEC in respect of the Complainant, the 1st Respondent submitted that the Complainant’s allegations in Paragraphs 41 of the Complaint and reproduced in his submissions that the Decision of the NEC to expel has not been ratified by the National Governing Council are premised on incorrect apprehension of the ODM Rules the Complainant was not expelled from the ODM Party.

56. It was the 1st Respondent’s submissions that the Complainant was and is deemed to have resigned from the ODM party under Section 14A (1) (e) of the Political Parties Act owing to his conduct and newfound political affiliation with the Kenya Kwanza Coalition, ideas, and interests.

57. Additionally, given that the Complainant had been advocating the interests of a rival political party against those of ODM and disregarding the party's legal decisions, he was regarded to have resigned ipso facto under the law.

58. Further, it was submitted that the National Governing Council is only engaged where there is a recommendation for expulsion or suspension of a member and In this matter, the National Executive Committee recommended that the Complainant be deemed to have resigned.

59. On the fifth issue whether the ODM disciplinary committee was properly constituted? The 1st Respondent relied on the Court of Appeal decision in the case of Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227, and submitted that the case of Ben Murumbi Sihanya & another v Ethics and Anti-Corruption Commission; Registrar of Political Parties & another (interested parties) [2021], which was instituted by Prof Ben Sihanya as Petitioner praying for several reliefs. In that matter, no Cross Petition was seeking any positive orders against the Petitioner in favor of the Respondents therein. The Court decision did not declare that the Petitioner was forthwith prohibited from holding an office at the 1st Respondent’s Disciplinary Committee and In any case, the said decision of the Court has since been appealed and is now active before the Court of Appeal.

60. On the final issue of who bears the costs of the suit, it was submitted that the costs follow the event to compensate the successful party for the trouble and costs incurred to defend a suit.

6147. It was stated that the entire process was demonstrably fair and the Complainant had failed to demonstrate bias, prejudice, or lack of due process the Tribunal should uphold the decision of the Disciplinary Committee while relying on Isaac Mwaura Maigua v Jubilee Party & another [2021] eKLR.

The 2nd Respondent’s Response and Submissions 62. The 2nd Respondent filed a Replying Affidavit dated 19th September 2023 stating that both the Application and the Complaint do not contain any grievances in terms of the Complainant being aggrieved by the 2nd Respondent.

63. It stated that the 1st Respondent, in a letter dated 7th September 2023, submitted to the 2nd Respondent resolutions of its National Executive committee along with an extract of the Minutes of a meeting held on 6th September 2023, which included a request for the removal of the Complainant from the ODM Party register of members due to having been found to have resigned from the 1st Respondent within the meaning of Section 14A of the Political Parties Act 2011.

64. The 2nd Respondent vide a letter dated 11th September 2023 addressed to the 1st Respondent called upon the latter to, among other issues, submit further documents required for a disciplinary process under the 1st Respondent's party Constitution. the 1st Respondent submitted the additional documents vide a letter dated 13th September 2023.

65. The 2nd Respondent acknowledged receipt of the additional documents and appreciated the import of the conservatory orders issued by the Tribunal in the Complainant.

Issues for Analysis and Determination. 66We have considered all the parties’ pleadings and written and oral submissions and we isolate the following key issues for determination.i.Whether there has been established a cause of action against the 2nd Respondent / Whether the Complaint is premature before the Tribunal.ii.Whether the Complainant was expelled from the ODM Party or deemed to have resigned from the ODM Party.iii.Whether the Disciplinary Committee was legally constituted?iv.Whether the disciplinary proceedings violated the provisions of Article 47 and 50 of the Constitution as read together with Section 4 and 6 of the Fair Administrative Action Act and the ODM Party Constitution and the Disciplinary Committee (Practice & Procedure) Rules 2022?v.Whether the decision by the National Executive Committee to adopt the recommendations of the Disciplinary Committee and seek the 2nd Respondent’s implementation thereof is lawful.vi.Whether ODM Disciplinary Findings and Recommendations were merited / Whether the Complainant’s actions violated the ODM Party Laws.

Whether there has been established a cause of action against the 2nd Respondent / Whether the Complaint is premature before the Tribunal. 67. The 2nd Respondent has in their Affidavit in response detailed the chronology of events that occurred following the presentation by the 2nd Respondent of a request to have the Complainant’s name removed from the register of members of the 1st Respondent.

68. In it submissions, it came out clearly that they did not take any substantive action on the matter and that accordingly, the Complainant has no cause of action against them. Indeed it is pleaded that after the 2nd Respondent received the 1st Respondent’s request to remove the Complainant’s name from the register of the 1st Respondent in accordance with the 1st Respondent’s NEC resolution, the 2nd Respondent called for further documentation in support of the impugned disciplinary process against the Complainant. When the documentation was furnished, the 2nd Respondent was unable to process the request further as there was already in place an interim order that had been issued by the tribunal restraining them from implementing the 1st Respondent’s resolution and recommendation to deem the Complainant as having resigned. Neither the Complainant nor the 1st Respondent has controverted this position.

69. In essence, it follows that there is no complaint that has been made by the Complainant against the 2nd Respondent and we do agree with the submission of the 2nd Respondent that the the Complainant has not established any cause of action against them. The 2nd Respondent has been evidently unnecessarity burdened with these proceedings by being joined as a substantive party without any substantive claim or allegation having been made against them.

70. We considered a similar scenario where the Registrar of Political Parties was unnecessarily made a substantive party to a complaint in the case of PPDT Kisumu Complaint No. E005 of 2023 Elisha Ochieng Odhiambo vs. Orange Democratic Movement Party & Another, where we observed as follows:-“…The fact that the 2nd Respondent will be called upon to implement and/or execute orders of this Tribunal does not in itself justify such a joinder particularly where no specific complaint or allegation has been made against the 2nd Respondent. Attendance to tribunal proceedings consumes considerable time and resources bearing in mind that the 2nd Respondent designates a legal officer to process the 2nd Respondent’s responses and to appear in all tribunal hearings. It is unnecessary to subject the 2nd Respondent to the burden and expense of defending disputes that are filed before the tribunal even where such disputes do not directly challenge the 2nd Respondent’s actions and/or omissions…”

71. Our views remain the same and we find no reason to depart from our foregoing observations in the case of Elisha Ochieng Odhiambo (supra).

72. With respect to the question whether the Complaint is premature for the reason that the 2nd Respondent has not made any determination, it is not disputed that the instant matter is a Complaint that has been filed before the tribunal in consonance with its jurisdictional mandate under Section 40(1)(b) of the PPA as read together with the PPDT Regulations. Needless to note, it is not an appeal filed pursuant to Section 40(1)(f) of the PPA as there is no decision that has been made by the 2nd Respondent.

73. Whilst dealing with a similar situation in the case of Elisha Ochieng Odhiambo (supra) this Tribunal observed as follows:-“…Turning to the question whether the Complaint is premature for the reason that the 2nd Respondent has not acted on the request to remove the Complainant’s name from the party register, we note that the instant case has been presented as a Complaint against the 1st Respondent’s internal dispute resolution processes and not an appeal against any decision of the 2nd Respondent. The 1st Respondent conducted an internal party disciplinary process that led to the DC decision deeming the Complainant to have resigned pursuant to Section 14A(1)(e) of the PPA. This DC decision was then ratified by NEC and forwarded to the 2nd Respondent to remove the Complainant’s name from the register of members of the Respondent. The Complainant is aggrieved by the subject DC determination deeming him to have resigned and its consequential ratification by NEC for want of compliance with Article 47 and 50 of the Constitution, Section 14A(2)(a) and (b) of the PPA, the Respondent’s Constitution and DC Rules. This Tribunal has jurisdiction under Section 40(1)(b) of the PPA to hear and determine the instant Complaint. Section 14A(3), (4) and (5) of the PPA provides on processes that follow after a political party deems a member to have resigned. These include the notification issued to the 2nd Respondent to remove such a member’s name from the register and the procedure that should apply. These provisions do not therefore oust the Tribunal’s jurisdiction to hear and determine this dispute. To wait until the 2nd Respondent makes a determination on whether or not it will remove the Complainant’s name from the register would in our opinion set the stage for the dispute to be transformed and narrowed down to an appeal against the decision of the 2nd Respondent under Section 40(1)(f) and be subject of the legal and procedural limitations of such an appellate process. The 1st Respondent may in fact only participate in the appeal as an interested party and not a substantive party yet it is the 1st Respondent’s decision that aggrieves the Complainant. …”

74. We have considered the facts and circumstances of this case and our reasoning in the above case and we find no reason to depart therefrom. In the result, it is our finding that Complaint is properly before the Tribunal.

Whether the Complainant was expelled from the ODM Party or deemed to have resigned from the ODM Party. 75. The Complainant has vide its written submissions isolated this issue for determination. He submitted that he is a life member of ODM and has never at any point expressed any intention to quit the ODM party and that the decision to deem him to have resigned was a scheme to force him to leave the party against his will and thus amounted to an expulsion. The 1st Respondent on the other hand maintains that the Complainant was not expelled from the party but was deemed to have resigned.

76. Section 14A of the PPA provides on when a member may be deemed to have resigned from a political party as follows: -“(1)A person who, while being a member of a political party shall be deemed to have resigned from that party if that person—a.forms another political party;b.joins in the formation of another political party;c.joins another political party;d.in any way or manner, publicly advocates for the formation of another political party; ore.promotes the ideology, interests or policies of another political party.(2)A political party shall, before deeming a member to have resigned under subsection (1)—a.notify the member that he or she has been deemed to have resigned from the political party and that the political party intends to remove his or her name from the list of its members; andb.afford the member a fair opportunity to be heard in accordance with the procedure set out in the constitution of the political party.(3)A political party which deems a member to have resigned from the political party shall notify the Registrar in writing of the member’s resignation and request the Registrar to remove that person’s name from the register of members of that political party.(4)Upon the notification under subsection (3), the Registry may, where the Registrar is satisfied that the political party has complied with the procedure under subsection (2), remove the member’s name from the register of members of the political party within seven days of the notification and notify the member in writing that he or she has ceased to be a member of that political party.(5)Where the Registrar is not satisfied in accordance with subsection (4), the Registrar shall refer the matter back to the concerned political party for reconsideration…”

77. And Section 14B of the PPA on the other hand provides on expulsion of a member from a political party as follows: -“(1)A person may be expelled from a political party if that person contravenes any of the provisions of the constitution of the political party.(2)A political party shall before expelling a member under subsection (1), afford such member a fair opportunity to be heard in accordance with the internal party disputes resolution mechanism prescribed in the constitution of the political party”

78. In the instant case, we note that the NTSC dated 13th February 2023 enclosed complaint that was presented vide a letter dated 9th February 2023 from the firm of Aguko, Osman and Company Advocates addressed to the Secretary General of the 1st Respondent and the Chairperson of the 1st Respondent’s DC. The letter is referenced ‘Deregistration and/or Expulsion of Hon. Prof. Tom Ojienda, SC, Hon. Gideon Ochanda, Hon. Caroli Omondi, Hon. Elisha Odhiambo, Hon Paul Abuor, Hon. Mark Nyamita, and Hon. Felix Odiwuor alia Jalang’o from Orange Democratic Movement Party membership.’

79. Vide the subject letter dated 9th February 2023, the said Legal Counsel for one Senator Eddy Gicheru Oketch, invited the 1st Respondent to deem the Complainant and others as having resigned from the party under Section 14A(1)(e) of the PPA, and initiate the process of having their name struck out of the party members register in accordance with the provisions of Section 14 (2) and (3) of the PPA, or in the alternative, commence necessary disciplinary action for purposes of having the Complainant and others expelled from the party if found culpable under Section 14B of the PPA. The DC considered the complaint and we note from the DC Finding and Recommendation that the DC recommended that the Complainant be deemed to have resigned.

80. The DC Findings and Recommendations were forwarded to NEC and from the record, NEC resolved that the Complainant be deemed to have resigned by dint of his conduct. This is the same resolution that the 2nd Respondent alluded to.

81. Going by the wording of the NEC resolution that was forwarded to the 2nd Respondent for implementation, it is therefore clear that the Complainant was deemed to have resigned from the ODM Party.

82. Having so found, we have gone ahead to consider the Complainant’s pleadings and prayers sought vis a vis the responses. Our view is that whereas reference may have in some instances in the pleadings been made to expulsion as opposed to ‘deemed to have resigned’, we note that both the Complainant and the Respondents have referred to and relied on the same DC proceedings subject hereof.

83. We have further considered that from a reading of Section 14A and 14B of the PPA, both provisions on expulsion of a member or deeming a member to have resigned require due process whereby such a member is granted a fair opportunity to be heard in accordance with the party laws. Indeed the crux of the instant complaint and the reliefs sought revolve around due process in relation to the same DC proceedings alluded to by both parties. Accordingly, nothing stops the tribunal from inquiring into the Complaint with a view to establishing whether the 1st Respondent’s decision to deem the Complainant to have resigned was arrived at in accordance with the law and granting appropriate reliefs.

84. We considered the same position in the case of Elisha Ochieng Odhiambo (supra) and we stated as follows:-“…We have holistically considered the Complainant’s pleadings and our view is that whereas reference may have been made to expulsion as opposed to ‘deemed to haveresigned’, we note that the DC proceedings referred to by the Complainant in his pleadings are the same ones that the 1st Respondent alludes to as having led to the decision deeming the Complainant to have resigned. These are the DC proceedings that are subject of challenge before us as is even evident from the reliefs sought in the Complaint.We have further considered that in any event, from a reading of Section 14A and 14B of the PPA, both provisions on expulsion of a member, or deeming a member to have resigned, require due process whereby such a member is granted a fair opportunity to be heard in accordance with the party laws. The crux of the instant complaint revolves around due process in relation to the same DC proceedings alluded to by both parties. Accordingly, it would be unjust to dismiss the Complaint that challenges the entirety of the DC proceedings on the sole basis that it made reference to ‘expulsion’ as opposed to ‘deemed to have resigned.’…”

85. We therefore find no reason for locking out the Complainant from the seat of justice solely because the words ‘expulsion’ have been used instead of ‘deem to have resigned.’ The gravamen of this dispute is whether there was due process in arriving at the impugned DC Finding and Recommendation.

Whether the Disciplinary Committee was legally constituted? 86. The Complainant has challenged the legality of the composition of the DC that was Chaired by Prof. Ben Sihanya arguing that by virtue of the finding in ELRC Petititon No. E055 of 2020, Professor Ben Murumbi Sihanya & Another vs. The Ethics and AntiCorruption Commission & 2 Others, Prof. Ben Sihanya illegally Chaired the DC and if it was to be so deemed, the rest of the DC members did not constitute quorum in accordance with the ODM party constitution and the DC Rules.

87. The 1st Respondent has opposed these submissions on grounds, inter alia, that there were no declaratory orders issued against Prof. Ben Sihanya on the question of his sitting as the Chairperson of the DC.

88. In the case of Elisha Ochieng Odhiambo (supra) where the same issue was raised, we stated thus:-“….We have considered the record and we note that at paragraphs 34, 37 and 38 of the Judgment delivered by Mathews N. Nduma, J on 9th December 2021 in ELRC Petititon No. E055 of 2020, Professor Ben Murumbi Sihanya & Another vs. The Ethics and Anti-Corruption Commission & 2 Others, the Court stated: -“…34. It follows therefore the 1st petitioner is prohibited under Section 12 of the Political Parties Act, and Section 23 of the Leadership and Integrity Act to hold office in a poltical party…37. Whereas a lecturer at an institution of higher learning enjoys academic freedom and is not barred from expressing his or her political opinion, such an officer is bound to relinquish his position if he is appointed or elected to an office in a political party. Holding the office of lecturer at a public university and at the same time holding an appointed office of Chairperson of a disciplimary committee in a dominant political party amounts to performing daily and/or continuous political activities that may be seen to compromise the political neutrality of the office of lecturer in a public university within the meaning of Section 23(2) of the Leadership and Integrity Act as read together with Section 12(1)(c) of the Political parties Act.38. Following the above exegesies, and in answer to issues (i) and (ii) above the court finds that the action by the Respondent in giving the 1st petitioner the opportunity to elect to remain a lecturer at the University of Nairobi or opt to become the Chairperson of the Disciplinary Committee of Orange Democratic Movement was lawful, fair, just and in accordance with the Leadership and Integrity Act and did not violate any of the rights or freedoms of the petitioner set out in this petition or at all…”It is clear that the High Court at paragraph 34 of the Judgment above made an express finding that Prof. Ben Sihanya is prohibited under Section 12 of the Political Parties Act, and Section 23 of the Leadership and Integrity Act to hold office in a poltical party. This is a finding that binds this Tribunal. We have not been shown any decision or order from the Court of Appeal setting aside or staying this finding and in the circumstances, our hands are tied…”

89. And in the case of PPDT Kisumu Complaint No. E007 of 2023 Prof. Tom Ojienda SC vs. Orange Democratic Movement Party & Another, we observed as follows:-“…We maintain the same position as guided by the High Court determination and bearing in mind that the exclusion of the Chairperson of the DC would render the DC inquorate and in breach of Article 76(1) and (3) of the party Constitution as read together with Rule 12(6) of the DC Rules, we arrive at the inescapable finding that the DC was improperly constituted…”

90. In the case of Republic vs. Kirinyaga University College & 2 Others ex-parte Isaya Kamau Kagwima [2015]eKLR, the Court declared a nullity an improperly constituted disciplinary hearing.

91. Taking into consideration the circumstances of this case and reasoning in the cited judicial authorities, we find that the Complainant did not appear before a duly constituted DC. Accordingly, the findings and recommendations against the Complainant arising from the impugned DC hearing and all consequential ratification by the Respondent’s NEC are a nullity and we so declare.

Whether the disciplinary proceedings violated the provisions of Article 47 and 50 of the Constitution as read together with Section 4 and 6 of the Fair Administrative Action Act and the ODM Party Constitution and the Disciplinary Committee (Practice & Procedure) Rules 2022? 92. In consideration of this issue, it is inescapable to firat and foremost outline the constitutional, statutory and case law underpinnings on the right to a fair hearing, fair administrative action, application of the rules of natural justice.

93. Article 47 of the Constitution provides on the the right to fair administrative action as follows, inter alia:1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action,the person has the right to be given written reasons for the action. (Emphasis ours)

94. Article 50(1) of the Constitution is express that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

95. The Fair Administrative Action Act, 2015 at Section 4(3)&(4) details the ingredients of fair administrative action thus: 1. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.

2. The administrator shall accord the person against whom administrative action is taken an opportunity to—a.attend proceedings, in person or in the company of an expert of his choice;b.be heard;c.cross-examine persons who give adverse evidence against him; andd.request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

96. Section 7(2) of the Fair Administrative Action Act, 2015 provides grounds upon which a court or tribunal may review an administrative action. The grounds include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power.

97. In conducting review of disciplinary proceedings, the right to fair administrative action cannot be divorced from the right to fair hearing provided for under Article 50 of the Constitution even though the rights are distinct as observed by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR. In the South African case of President of the Republic of South Africa & others v South African Rugby Football Union & others (CCT16/98) 2000 (1) SA 1 the Court underscored the importance of the constitutional right of fair administrative as follows:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

98. It has been judicially underscored that fair administrative action imports the principles of natural justice. In Onyango Oloo vs. Attorney General [1986-1989] EA 456, it was held:“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...To “consider” is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion... “Consider” implies looking at the whole matter before reaching a conclusion...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decisionmaking body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”

99. In Republic vs. The Honourable The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004, the Court expressed itself as follows:“Whereas the rules of natural justice are not engraved on tablets of stones, fairness demand that when a body has to make a decision which would affect a right of an individual it has to consider any statutory or other framework in which it operates. In particular it is well established that when a statute has conferred on a body the power to make decision affecting individuals, the courts will only require the procedure prescribed to be introduced and followed by way of additional safeguards as that will ensure the attainment of fairness. In essence natural justice requires that the procedure before any decision making authority which is acting judicially shall be fair in all circumstances. .…Although the courts have for a long time supplemented the procedure that had been laid down in a legislation where they have found that to be necessary for that purpose, before this unusual kind of power is exercised, it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of legislation. Additional procedural safeguards will only ensure the attainment of justice in instances where the statute in question is inadequate or does not provide for the observance of the rules of natural justice. The courts took their stand several centuries ago, on the broad principle that bodies entrusted with legal powers could not validly exercise them without first hearing the people who were going to suffer as a result of the decision in question. …. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing just as much a cannon of good administration is unchallengeable as regard its substance. The courts can at least control the primary procedure so as to require fair consideration of both sides of the case. …. As part of a reasonable, fair and just procedure the court has a cardinal duty to uphold the constitutional guarantees, the right to fair hearing which entails a liberal and dynamic approach in order to ensure the rights enjoyed by an individual is not violated...”It follows that this Court has the powers to interfere with the decision of the Respondent arrived at in the exercise of its statutory mandate where the Respondent’s powers are not validly exercised. To make a decision adversely affecting the applicant without affording the applicant an opportunity of being heard is in my view such invalid exercise of power warranting this Court to interfere.In my view the respondent broke all the procedural rules relating to fairness in its proceedings. It issued prejudicial orders on a mention date; it did not bother to confirm whether its directions were complied with in order to ensure the fairness of the process; andit did not confirm whether the Applicant was duly notified at every stage of theproceedings. Accordingly, its decision cannot be allowed to stand…”

100. The right to fair hearing and fair administrative action and application of the rules of natural justice before the DC has been codified in Article 76 (3),(4),(5) and (6)of the ODM Party Constitution as read together with Rules 4, 13(2) and 20(2) of the DC Rules which enjoin the DC to uphold the constitutional and statutory tennets on the right to a fair hearing and fair administrative action. We shall therefore proceed to analyse the facts and evidence adduced by the parties in these proceedings with a view to establishing whether the disciplinary proceedings subject hereof were conducted in accordance with the law that the 1st Respondent committed itself to observe and uphold.

101. From the record, it is not in dispute that the disciplinary process against the Complainant was initiated vide a Notice to Show Cause (NTSC) dated 13th February 2023 under the authorship of CPA Hon. John Mbadi, EGH, the National Chairperson.The NTSC states as follows;‘…My office is in receipt of a complaint from a member of the party raising a plethora of issues the border on your general conduct as a member of the party and in specific your dalliance with party competitors.Your public display, conduct and general comportment not only violates section 14Aof the Political Parties Act 2011, Article 11 of the Party Constitution and the Party’s Code of Conduct that you signed ut has facilitated to send mixed signalsand cause unnecessary anxiety within the party membership and supporters…’

102. Needless to note, the NTSC is general. It does not specify or particularise the so called ‘plethora of issues’ complained about that allegedly border on the Complainant’s general conduct that violate Section 14A of the PPA and Article 11 of the Party Constitution and the Party’s Code of Conduct. The Complainant’s alleged public display, conduct and general comportment that allegedly violates the law has also not been specified.

103. In order to cure this, the 1st Respondent argues that the NTSC was sent together with a letter from the law firm of Aguko, Osman & Company Advocates dated 9th February 2023 addressed to the Secretary General, ODM and the Chairperson ODM Disciplinary Committee. This is what the 1st Respondent identifies as the complaint and it states;-‘…on 7th February 2023 the members of the Orange Democratic Movement Party were treated to blatant and arrogant violation of the Party Constitution as read together with Section 14A(1)(e) of the Political Parties Act No. 11 of 2011 of the Laws of Kenya by the above mentioned party members. The said provision states ….On the said day and the period before the aforementioned party members have shown close association with a different political party whereupon they have been captured by the media appearing together with both the Party leader and deputy Party leader of the United Democratic Alliance Party whose ideologies, interests and policies they have been promoting from within the Orange Democratic Movement Party.It suffices to say that they actions do not only fly on the face of the entire legal framework governing political parties’ membership but have also caused immense embarrassment, ridicule, anxiety and disgust amongst the members of the Orange Democratic Movement Party and its party leadership at large…’

104. From a reading of the letter dated 9th February 2023, the only issue brought out relates to the allegation that the Complainant was on 7th February 2023 captured by the media appearing together with both the Party leader and deputy Party leader of the United Democratic Alliance Party whose ideologies, interests and policies the 1st Respondent claims the Complainant has been promoting from within the Orange Democratic Movement Party. The subject letter made the following prayers;i.The Office of the Party Secretary General does proceed immediately to deem the Complainant and others as having resigned from the party under Section 14A(1)(e) of the PPA, and initiate the process of having their name struck out of the party members register in accordance with the provisions of Section 14 (2) and (3) of the PPAii.In the alternative, commence necessary disciplinary action for purposes of having the Complainant and others expelled from the party if found culpable under Section 14B of the PPAiii.That pending action as prayed, the Complainant and others be recalled by the party from all parliamentary leadership positions and committees that they are serving in

105. We have seen the Complainant’s comprehensive response to the NTSC vide letter dated 14th February 2023 where the Complainant has provided a detailed account of what transpired and affirmed his commitment to the policies and ideologies of the 1st Respondent. We, however, note from the record that there was no communication to the Complainant in rejoinder to his stated letter dated 14th February 2023.

106. From the evidence before us, the next communication that was issued to the Complainant was the letter dated 10th July 2023 authored by Prof Ben Sihanya, Chairperson, ODM Disciplinary Committee, referenced ‘Notice to Appear for Disciplinary Hearing’ (hereinafter referred to as the notice to appear). The notice to appear reads;-‘…The ODM Disciplinary Committee is in receipt of a complaint against you from the ODM National Chairperson citing gross violations of Article 11(1)(e) of the party constitution and code of conduct.The specific complaints are that, contrary to the ODM Constitution, Code of Conduct and lawful decisions as well as the Constitution of Kenya 2010 and the relevant laws of Kenya, you have conducted yourself as follows;i.That you have openly associated with and supported policies of a rival political party.ii.That you have openly opposed lawful decisions made by party organs iii. That you betrayed the public trust bestowed upon you by party membersiv.That by your conduct and general comportment, you promote the ideology, interests or policies of another political party. Therefore, you are in violation of Article 11(1)(e) of the Party Constitution and Code of Conduct as read tohether with Section 14A(1)(e) of the Political Parties Act 2011…Therefore the ODM Disciplinary Committee pursuant to Article 75 and 76 of the ODM Constitution summons you to appear in person before the committee sititng on Wednesday 19th Juy 2023 at 8. 30am at Chungwa House Nairobi.Take note that disciplinary actions include reprimand. Censure, fine, suspension, expulsion, and/or any other sanction under the Constitution of Kenya, the Political Party Act, the ODM Party Constitutionand all relevant laws, rules and regulation….In conducting the hearing, the Disciplinary Committee will also be guided by the principles of fair administrative action, natural justice and due process….We have enclosed herewith the complaint, notice to show cause and part of the evidence and entirety of evidence being within your knowledge…”

107. Vide a letter dated 17th July 2023, the Complainant acknowledged receipt of notice to appear dated 10th July 2023 and requested for the date to be rescheduled. The Chairperson ODM Disciplinary Committee responded to the request vide letter dated 18th July 2023 which rescheduled the Complainant’s disciplinary hearing to 25th July 2023. The letter informs the Complainant of the strict timelines bearing in mind that the Committee received the decision to charge on 3rd July 2023.

108. The DC hearing proceeded on 25th July 2023 and we have hereunder reproduced excerpts of the transcribed proceedings on record: -“…Prof Sihanya: Who is next?Tony Moturi: Jalang’o. OK Fine, Hon. Phelix Odiwuor Prof Sihanya: How do you proceed? (Silence) Ah- you are welcome ah-you have been here both of you?Sen Eddy: YesProf Sihanya: uhm-So, we do-we don’t need to introduce the chair, we don’t need to do introductions? You can dispense with that?Seth Kakusye: We canProf Sihanya: We would go to the issue of- has there has been a communication of representation? We must establish that preliminary matter first because one has to appoint their advocates. You have advocates that can appear here but whether you can appear in this matter, it depends on whether we have communication about your appointment.Committee (inaudible) yeah, so can we hear DC secretary whether-the status of the Tony Muturi: Chair there is no communication from ah-from Honorable Jalang’o on representation or his appearance for that matter Prof Sihanya: So, just introduce yourselves Adv Lucy Awuor: I’m Vera Lucy Awuor, Advocate for the respondentProf Sihanya: Uh-name?Adv Alice Awuor: Phelix Odiwuor a.k.a JalangoProf Sihanya: Can you indicate the basis of your appearing here?Advocate Lucy Awuor: I work with the firm of Professor Tom Ojienda and Associates. I’m holding brief for Professor Ojienda who was duly appointed by ah- Jalango to act on this matter.Prof Sihanya: Dou you have express letter of appointment? That is one issue but the other issue is whether we received it.Seth Kakusye: Chair…Prof Sihanya: Whether a member is not here, we must either receive the letter directly that so and so was appointed. So, you….Adv. Lucy Awuor: I don’t have a notice of appointmentProf Sihanya: Letter of appointment. So, ok. So Wakili please introduce yourself Adv Oruenjo: My name is Oruenjo Evans. I appear today with my learned colleague with instructions from Professor Ojienda and to represent Phelix Odiwuor, who was the respondent in this matter.Prof. Sihanya: Uh-so do you- ah –what is the basis of your claim to his representationAdv Oruenjo: AhProf Sihanya: Of the memberAdv Oruenjo: Mr. Chair, Appointment as per Section 2 of the Advocates Act, Instructions can be Oral or written. We do affirm that our instructions were oral and Mr. Jalango was here yesterday. Unfortunately, his matter was not listed in the cause list yesterday and we are aware because we were also aware because we were with him that Professor Ojienda would appear for him. (silence) I believe that the secretariat was here yesterday and they saw Jalango around the premises. I wish…Prof Sihanya: We see peopleTony Moturi: ChairProf Sihanya: We see so many people but whether (laughter) they are given instructionsTony Moturi: ChairProf Sihanya: We can’t say who says what to who, that’s why it must be in writing to us Tony Moturi: Just to clarify what my learned colleague Oruenjo is alleging that the secretariat was here yesterday and so we-we not only saw the Honourable Jalango yesterday but met with him with Professor Ojienda and I don’t know where they got information that their matter was being heard yesterday and I was – a short interaction, I just informed, ah-both of them as respondents that their matters were scheduled for today. Professor Ojienda proceeded to inform us that he was here purposely the Advocate for Honourable Jalango.Prof Sihanya: But did you see a letter from….Tony Moturi: There was nothing like a letterProf Sihanya: Saying he has been appointed because there is one issue an Advocate saying I represent so and so generally but in a domestic tribunal like this just like in KRA- some KRA matters, some KIPI matters, Kenya Industrial Properties Institute matters, uh-bank transactions, they normally require notes. Advocates generally, but one appointed and one with the right so, the fact that you met him and he said, that’s important. So members,Prof Sihanya: Advocate, say somethingAdv Gad Aguko: I think the meeting that the secretariat is talking about must have been an informal meeting. At no point did Professor Ojienda appear with Honourable Phelix before this committee yesterday. The meeting which we are being told about … somewhere and I can say it was around the streets and that it not an appointment. If he needed to make an appointment, he would have done a proper communication to the secretariat. So, we cannot actually rely on a-an informal discussion which was had somewhere. Professor himself was here today. He could have given a written communication that he has been appointed. So we cannot actually rely on anything Oral unless we have something written shoeing that they have been appointed.Prof Sihanya: He neither gave verbal or written communication about his appointment. Neither verbal nor written and he was here for four hours. (Laughter)Adv Oruenjo: Mr. President, I do wish to respond if you look at the last letter that you wrote to the respondent, in that letter you have indicated that, Yeah, that the respondent is required to defend himself. There is nowhere in the Rules or in the communications the respondents were required to file anything, where they were going to file it, whether there was a registry where that registry was situated. The only thing that we were waiting for was this hearing, so that we proceed to defend the respondents. So there was nothing to file, like a notice of appointment and there is no provisions in the rules or anywhere. Even my learned the complainant is here just by virtue of the letter that he wrote for the complainant. Without that letter, that letter was written by the complainant himself then it means he would not appear to this meeting today. So, we had and I think that is really unfair because it goes both ways, because if you are claiming you ought to have filed a something like an appointment it goes both ways, it goes even for the complainant, that they ought to have filed something to show that I am representing this and this. At the time of writing a complaint does not mean that you are representing him in these proceedings. You have to differentiate instructions to write a complaint and instructions to appear before this complaint. It’s like you doing one letter, it doesn’t give you an authority to act for the plaintiff somewhere, so we…..Adv. Gad Oguka: Just a small response, for my situation is different where my client is here and he confirms that he has appointed me. On your end, nobody is confirming to have appointed you, there is no communication showing that you have been appointed and we are just relying on your word. So you actually need to substantiate your appointment then you can proceed. (inaudible exchange).Florence Omosa: What we’ve been doing because as we said this is kind of family issues, it’s not like you’re going to register as an Advocate Gad has said and little was said about it yesterday. If the respondent or the complainant is present and declares, like, Senator Ojienda did in the morning, just came with him and he declared these are my advocates. He didn’t write anything to us. For those who were not here like Abuor in the morning. He sent a note, just a note so that there is evidence so and so is representing so and so otherwise anybody can walk from the streets and come and say I’m representing so and so. So, Chair, you can do the final sentence of so that we go over the ruling of that. We are going to go on in his absence and we cannot-be represented in his absence.Prof. Sihanya: Thank you. For the reasons we have given, one, no written communication directly to us about his representation. Two, Member Ojienda who was here, even though he didn’t mention it, he didn’t write a letter, he didn’t mention it but even then, we would have needed the direct presence of the respondent saying I have appointed so and so. In front of us, that is all, that one you know under Section 2 of the Advocates Act or appointment when you are there and I think both of you have appeared before……. Who appointed you here but when they are here, they can appoint you verbally or orally. When they are not here, it must be a letter to us. So we……. the dilemma for us, the problem for us with this somebody says I’m representing so and so, we go on with the proceedings we go to court, I was not represented, where was the letter? Where did I tell you? You have discussed my private matters with strangers. I am going to sue you for breach of privacy. I hope you understand it can go on and on and on so, we release you. We thank you for coming and we release you. We thank you for coming but you have served here before in other important cases. (Laughter) You have giv-(Laughter then inaudible exchange).Sen Eddy Oketch: Chair, Let’s continue I want to really go.Prof.Sihanya: Ok, so let us resume. What happened in this matter, why are we here?How did we come to be here?Tony Moturi: Chair….Prof. Ben Sihanya: Then complainant, the DC membersTony Moturi: Chair, summons were issued on 12th July, 2023 (inaudible) for the member to appear before the Disciplinary committee on 18th July, 2023. On 18th July, 2023, Hon. Phelix Odiwuor wrote to the DC seeking an adjournment. On the same date, the DC wrote to the Respondent inviting him to appear before the DC on a new date of 25th July, 2023 which is today at 12. 30 pm, and the said member did not appear and neither has he communicated on the status of his appearance.Prof. Ben Sihanya: There is a communication from social media (inaudible) or noSen. Eddy Oketch: Chair, I had launched a complaint on one member Hon. Phelix Odiwuor who is in this complaint I did accuse that on 7th February, 2023, the member, in the company of other members of parliament paid a visit to the UDA Party Leader where they agreed to work together in furtherance of the objectives of that Party. That extent Chair I sought the action of the party based on Section 14A (1) (e) of the Political Parties Act which directs and guides that any member who has been deemed to have associated or in any way advances the interests of another party, then that member is deemed, should be deemed to have left the other party, and therefore should resign or should be expelled from the party like ODM. I found that consistent with ODM Constitution Article 12, the ODM constitution which also requires the same in terms of termination of membership and in the matter of details, I wish to request that through you chair, I allow my Wakili, GadAguko to take you through. Thank you.Prof. Sihanya: (Inaudible exchange) Advocate? I think we can release him, huh? Sen. Eddy Oketch: Can you release me coz I have finished and need to go to my medical check-ups.Prof.Sihanya: Yeah.Adv.Gad Aguko: Thank you.Prof. Ben Sihanya: ODM the DCAdv. Gad Aguko: Thank you Mr. Chair. We lodged a complaint with a letter dated 9th February, 2023. Subsequent from the date of the complaint, the member has on several occasions had dalliance with the United Democratic Alliance, which is actually a rival party and proceeded to make utterances and conduct himself in a manner that undermines the ideals of the sponsoring party –ODM. And it is for that reason we urge that this committee relies on the same to make a determination that the said member has contravened Section 14A of the Political Parties Act as read together with the ODM Constitution Article 12 and strike his name off the membership of the Party. Thank you.Adv. Barbara Malowa: Chair, on my part, it is quite difficult to proceed since the member is not here. I would have wanted to put some questions to him. Nevertheless, I associate myself with the submissions of the complainant.Prof. Sihanya: Ok, DC.DCISeth Kakusye: For me I think Mr. Chair, Hon. Phelix is a big setback, he should have communicated. And if Hon. Ojienda was representing him, as the two advocates told us, why was it so difficult for him to state so since Hon. Phelix’s matter was coming after his. Prof. Sihanya: We thank the complainant and the ODM for their role in these proceedings of Member Phelix Odiwuor and the Disciplinary Committee will make its recommendations and communicate to the NEC…”

109. And from the text of the DC Finding we also note that the DC handled the question of representation as reproduced below: -“…Having heard both parties, the DC ruled as follows: 1. That each complainant and respondent will appear in person, accompanied by next friend or representative who is an ODM member;

2. Each friend or representative will need to prove that they are an ODM member;

3. Each representative or next friend will need to prove that they have been appointed by the respondent or complainant.

The two lawyers who claimed to be representing the respondent had no evidence of having been appointed by the respondent to represent him. Hon. Odiwuor had not communicated with the DC about representation or his absenteeism. Though the two lawyers had been established to be ODM members, the DC found them (lawyers) not to be properly before the DC, as they had not availed proof of having been appointed by Hon Odiwuor. As a result, the DC asked the lawyers to leave.The lawyers left at 7. 36 pm and subsequently the hearing started…”

110. We also highlight the DC record after the lawyers left in order to demonstrate that numerous issues were covered that fell outside the NTSC:-“…The complainant was Senator Oketch who stated that Hon. Odiwuor: 1. Was associating with and advancing the agenda of Kenya Kwanza and in particular UDA.

2. Conduct to amount to a violation of the provision of Section 14A(1)(e) of the ODM Constitution.

3. Continued association with UDA, and sustained disassociation with ODM and the Party’s position(s) and interests was continuing to affect the interests of ODM and specifically that:a.On 7/2/23 and 17/2/23 Hon Odiwuor and other ODM members met with UDA’s Party Leader and agreed to cooperate and work together to further UDA’s objectives, when they well know that UDA is a rival party in competition against the objects of ODM;b.In January 2023, Hon Odiwuor said, among others, that: “if Ruto fails, we all fail. We want the president to succeed in leading us. He has the mantle that’s it.”c.And he went ahead to state that he doesn’t care if his associating with the ruling party will jeopardize his re-election, adding “These things don’t move me…….”d.On several occasions, including on 17/3/23, he had been in the company of people from ODM and others from the competition who have made statements against the interests and policies of ODM including that they will not demonstrate. Hey also asked members of the public not to demonstrate. Hon Odiwuor did not protest and/or disown the statements. If anything, he acquiesced; ande.That on a number of occasions Hon Odiwuor voted against ODM party’s position in the national assembly, and in favor of the Kenya Kwanza/UDA position.f.That this was in violation of Article 11 (1) (e) of the ODM Constitution and Section 14A (1) (e) of the Political Parties Act, 2011;

4. The Complainant cited several YouTube links as evidence supporting their allegations.

5. That Hon Odiwuor’s sustained disassociation with ODM and association with a rival political party is tantamount to conduct that could justly be deemed as amounting to resignation from ODM, as contemplated under Section 14A (1) (e) of the Political Parties Act, 2011

6. That they pray that the respondent’s membership in the ODM be terminated for contravening the Political Parties Act, 2011 and the ODM Constitution.

111. And the DC Findings sections whereof have been reproduced hereunder: -“…DC FindingsHon Odiwuor was found to have 1. Been invited to the disciplinary hearing and had reasonable time to make arrangements to appear. Indeed, he was in Nairobi and found time to appear on the wrong day;

2. No respected ODM Party’s Code of Conduct including observing discipline and obeying lawful decisions made by Part organs;

3. Despite having acknowledged his initial mistake he subsequently continued to defy ODM’s positions and decisions, and, to instead promote the ideology, interests or policies of UDA/Kenya Kwanza.

4. Defied ODM party positions and decisions and thus grossly violated Article 11(1) (e) of the ODM Constitution and Section 14A (1)(e) of the Political Parties Act, 2011. This amounts to gross misconduct;

5. By his conduct as described above and as relayed in evidence, he is deemed to have resigned from the ODM Party. DC Recommendations to NECThe DC recommends that:1. Hon. Phelix Odiwuor Khodhe, by dint of his conduct, he deemed to have resigned from the ODM Party.2. The Party (ODM) pursues the process of removing the said member from the ODM membership

112. In a nutshell, we make the following observations from the record and evidence adduced in respect to the DC proceedings in totality as partly highlighted above;-i.Whereas Rule 10(2) of the DC Rules provide that the show cause letter shall state the alleged violation, offence or such other matter that the member is accused of, the NTSC issued to the Complainant fell short of this requirement. The 1st Respondent instead elected to annex the Complaint. In essence, the NTSC did not frame the offences appropriately together with the requisite particulars to enable the Complainant respond effectively. This was also in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act.ii.The 1st Respondent did not communicate with the Complainant after receiving his response to the NTSC.iii.The 1st Respondent’s National Chairperson did not seek any further information and/or clarification from him in the course of the alleged further investigations in consonance with Rule 11(1)(c) of the DC Rules. We say so bearing in mind that the National Chairperson alludes to having undertaken further investigations which seem to have uncovered additional complaints not subject of the NTSC thus infringing on the Complainant’s right to adduce and challenge evidence under Article 50(2)(k) of the Constitution.iv.Whereas Rule 17(3)(a) of the DC Rules make it mandatory for the summons to be accompanied by the documents referred to in Rule 11(2), the notice to appear did not enclose certain crucial documents including decision to charge and all evidence intended to be adduced. From a reading of the notice to appear’ it expressly states that it has enclosed ‘…the complaint, notice to showcause and part of the evidence and entirety of the evidence being within your knowledge…”v.The document titled evidence served upon the Complainant together with the notice to appear had different incidents that were never included in the Notice to Show Cause letter. There were no complaints regarding those additional charges which never went through the processes of registering complaints. From a reading of the DC Rules, it is questionable whether the DC had jurisdiction to hear the fresh allegations without subjecting them through the complaints process provided for by the 1st Respondent. This departure from due process was in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act..vi.Whereas Article 50(2)(g), Section 4(5) FAA Act, Article 76(9) and Rule 21(1) of the DC Rules allows the Complainant to be represented by an Advocate of his choice, the Complainant was denied legal representation. The 1st Respondent insisted on a formal appointment which is not provided for within its DC Rules. In the absence thereof, the Complainant’s lawyers were asked to leave the proceedings. This was in violation of Article 50(1)and(2)(g) of the Constitution of Kenya 2010, Sections 3(e) and 4(a) of the Fair Administrative Action Act, Article 76(9) of the ODM Constitution, and Rule 21(1) of the DC Rules.vii.The DC proceedings went on in the absence of both the Complainant and his lawyers thus occasioning the Complainant who had sent his lawyers to represent him grave injustice.viii.Whereas Rule 5(1) of the DC Rules is express that all proceedings before the DC shall be initiated by way of a complaint, there are certain proceedings that were held before the DC that fell outside the NTSC dated 13th February 2023. From the above DC proceedings, it is evident that the DC hearing proceeded with the consideration of numerous issues that were not subject of the NTSC dated 13th February 2023. This was in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act.ix.The Complainant was not informed of the Decision and the reasons thereof and only came to learn of the DC findings and recommendations on 6th September 2023 during a press statement that was issued by the 1st Respondent to communicate the decision to the public. This was after the 1st Respondent’s NEC had already considered the DC’s Findings & Recommendations, and forwarded the resolution ratifying the same to the 2nd Respondent for implementation and/or execution.x.It is not until 11th September 2023 after the institution of the instant proceedings that the Complainant received formal communication of the decision from the 1st Respondent. It was improper for the DC not to communicate to the Complainant its decision which went to the root of affecting the Complainant’s right under Article 38 of the Constitution of Kenya. The record reflects that the DC decision was in fact known by third parties even before the Complainant was notified. This was in breach of the Complainant’s right under Article 47(2) as read together with Section 4(2) and 6 of the FAA Act and Section 14A(2)(a) of the PPA.

113. We have considered numerous judicial authorities touching on the observations we have made above. In PPDTC No. E003 of 2021 Sen. Mary Yiane & 4 Others vs. Jubilee Party & Anor, where we observed as follows:-“…In another case of Republic vs. Chuka University ex-parte Kennedy Omondi Waringa & 16 Others [2018] eKLR, it was held that a tribunal or administrative body that makes its own rules must be prepared to adhere to those rules regulating the execution of its business and where it fails to do so, then the Court will not hesitate to intervene to declare the actions or failure to adhere to those rules ultra vires. 26. Based on the foregoing, we cannot see the party provisions that support the 1st Respondent’s averments that the disciplinary process was in line with the party laws and procedures. In deed from our analysis, a disciplinary process would commence, as per the laws of the party, by way of a clearly laid out process that would leave no doubt of question in the mind of those engaged as to what was going on. Undoubtedly expulsion of a person from a party has serious implications, thus when an entity such as a political party outlines a clear process, more so the manner in which its membership will become aware that such serious process has been initiated against them, then such process need be clearly initiated.

114. And in Gathigia vs Kenyatta University Nairobi HCMA No. 1029/2007 [2008] KLR 587 the Court held:-“i.if a statute prescribes, or statutory rules and regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed;ii.if no procedure is laid down, there may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue;iii.In such a case the tribunal, which should be properly constituted, must do its best to act justly and reach just ends by just means. It must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as a trial. It need not examine witnesses; and it can obtain information in any way it thinks best……….;iv.The person accused must know the nature of the accusation made;v.A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view and to make any statement they may decide to bring forward; [underlined parts our own]

115. In Isaac Mwaura Maigua v Jubilee Party & 3 others [2021] eKLR (High Court Civil Appeal E248 of 2021), the High Court stated as follows:-“… 48)It is a cardinal rule of natural justice that the right of a fair hearing can only be exercised, upon a party being granted more time to prepare his evidence to respond and controvert evidence that was produced during the disciplinary hearing 49) This court is satisfied that the appellant was not accorded a fair hearing notwithstanding the fact that the appellant did not apply for adjournment of the hearing of the disciplinary proceedings. The Tribunal therefore erred when it held that the appellant was granted a fair hearing. 50) It is apparent that on the face of it that the 1st respondent breached its Constitutional and its Disciplinary Regulations. It also goes without saying that the 1st respondent breached Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act, 2015…”

116. In PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, which decision was upheld by the High Court in we stated:-“…The Complainant is further aggrieved that his right to fair hearing was impaired by the Respondent who refused to afford him reasonable opportunity to access all records and information concerning the financial activities of the party so as to enable him to respond to the charges.….In the case of Dennis Edmond Apaa & 2 Others v Ethics and Anticorruption Commission & Another [2012] eKLR, the court affirmed that the right to fair hearing includes the right to be informed in advance of the evidence upon which charges are based and to reasonable access to the same. The Tribunal is of the considered opinion that considering the gravity of the allegations, adequate provision and need not have been afforded the Complainant despite his failure to submit a written response within the short time allowed him. Indeed we note from the record of the said disciplinary proceedings that another Member of the party was allowed time to present herself before the Committee at a future date…”

117. With respect to the question of failing to furnish the Complainant the decision and its reasoning in good time, in Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that: - “… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.”

118. Similarly in PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, we stated:-‘…Whereas the Complainant alleges that the reasoned decision subject hereof was not availed to him despite having requested for the same, the Respondent argues that the subject decision was communicated to the Complainant vide the Respondent’s letter dated 19th March 2019. From the record, there seems to be no reasoned decision but a record of the purported disciplinary proceedings and a verdict dated 19th March 2019 signed by the Disciplinary Committee. The complainant avers that he only had sight of this record two months later when he was in the process of filing the instant proceedings. We agree with the Complainant that the right to be supplied with a decision under Sections 5(1)(d) and 6(1) of FAA Act is a substantive right intended to determine whether the decision was made in compliance with the law and to facilitate the right to review or appeal…”

119. In light of our foregoing observations and the principles enunciated in the case laws referred to above, we reach the inescapable conclusion that the 1st Respondent acted in breach of Article 47 and 50 of the Constitution, Section 14A(2) of the Political Parties Act, Section 4 and 6 of the Fair Administrative Action Act, Article 76 (3),(4),(5) and (6)of the ODM Party Constitution, and Rules 4, 13(2) and 20(2) of the DC Rules all which uphold the right to a fair hearing and fair administrative action.

Whether the decision by the National Executive Committee to adopt the recommendations of the Disciplinary Committee and seek the 2nd Respondent’s implementation thereof is lawful. 120. Having found that the DC processes were in breach of Article 47 and 50 of the Constitution, Section 4 and 6 of the Fair Administrative Action Act, Article 76 (3),(4),(5) and (6)of the ODM Party Constitution, and Rules 4, 13(2) and 20(2) of the DC Rules, we find this question moot.

121. Be that as it may, even if we were wrong in our determination, It is noteworthy that both deeming a member to have resigned and expulsion are actions that amount to cessation of membership with the party.

122. In consideration of a similar question in the case of Elisha Odhiambo (supra) we stated as follows:-“…We note that Article 12(1) of the ODM Constitution provides that one shall cease to a member of the Respondent “by a resolution passed by the National Executive Council and ratified by the National Governing Council.” It is not disputed that the NEC resolution was not ratified by the National Governing Council (NGC). Accordingly, the decision of NEC to adopt the recommendations of the DC and proceed to apply to the 2nd Respondent without subjecting the same to the NGC for ratification was in breach of Article 12 of the Respondent’s Constitution…”

123. Taking into consioderation the facts of this case and the foregoing decisions, we find that the decision of NEC to adopt the recommendations of the DC and proceed to apply to the 2nd Respondent to remove the Complainant’s name from the party register before ratification by the National Governing Council was in breach of Article 12 of the Respondent’s Constitution.

Whether ODM Disciplinary Findings and Recommendations were arrived at in accordance with the law / Whether the Complainant’s actions violated the ODM Party Laws. 124. As we consider this issue, we remain alive to the fact that we have already found that the DC was improperly constituted, and further that the disciplinary proceedings against the Complainant were conducted in breach of the law. In essence, the DC proceedings are a nullity and our finding on this issue is inconsequential.

125. Be that as it may, we stated as follows in the case of Prof. Tom Ojienda SC (supra) when considering this issue;-“…Further in any event, we are alive to the fact that a political party retains the right to discipline its member and we can only interfere with that right when due process is not complied with as was in this case. This does not mean that the party cannot institute fresh disciplinary proceedings against the Complainant if they so wish and provided there is legal compliance. If we elect to examine the legality of the DC decision in this judgment, we will have to scrutinize the evidence and get into the arena of the merits or otherwise of the charges. Should we do so, we may make certain statements that may prejudge or prejudice the merits of the charges and the party’s right to discipline the Complainant. We have accordingly elected not to make a finding under this issue….”

126. We are inclined to taking a similar position in this case just in case the 1st Respondent may in future wish to prefer fresh charges against the Complainant in furtherance of its right to discipline its members.

What are the appropriate reliefs to grant. 127. In light of the foregoing, we find that the Complaint against the 1st Respondent is merited. We however dismiss the Complaint against the 2nd Respondent.

128. On the question of costs, it is well settled that costs ordinarily follow the event. This position is also codified in Regulation 43(2) of the PPDT Regulations. We find no good reason to depart from the same. Accordingly, the Complaint is allowed with costs to the Complainant, which costs shall be borne by the 1st Respondent. However, having dismissed the complaint against the 2nd Respondent, the Complainant is on the other hand condemned to pay costs incurred by the 2nd Respondent in defending these proceedings.

129. Upon consideration of the reliefs sought, we make the following orders;-i.That a Declaration be and is hereby issued that the decision of the 1st Respondent arising from the Disciplinary Committee proceedigs of 25th July 2023 is illegal, premature, and incapable of being implemented for having been made without ratification by the National Governing Council in Violation of Article 12(1)(b) and Article 75(6) of the Orange Democratic Movement Part’s Constitution.ii.A Declaration be and is hereby issued that the Disciplinary proceedings conducted by the 1st Respondent against the Complainant on the 25th of July 2023 were unprocedural, unlawful, and in violation of the right to a fair administrative action and fair hearing as per Article 47 and 50(2) of the Constitution of Kenya, Section 14A(2) of the Political Parties Act, Section 4 and 6 of the Fair Administrative Action Act, and Article 75(5) and (6) of the 1st Respondents constitution and the 1st Respondent’s Disciplinary Committee Procedure Rulesiii.A Declaration be and is hereby issued that the Disciplinary Committee of the 1st Respondent convened on the 25th of July 2023 was not properly constituted and thus the decision of the National Executive Committee adopting the Recommendations of the said Committee is invalid and has no effect in law.iv.A Permanent Order for injunction is hereby issued restraining the Registrar of Political Parties from removing the name of the Complainant, Hon Phelix odiwuor Kodhe from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July 2023. v.A Permanent Order for injunction is hereby issued restraining the 1st Respondent from de-whipping, or in any manner attempting to remove the name of the Complainant Hon Phelix odiwuor Kodhe from the register of the members of the Orange Democratic Party based on the illegal disciplinary proceedings conducted on 25th July 2023. vi.Save for costs for the 2nd Respondent which shall be borne by the Complainant, the 1st Respondent shall bear the Complainant’s costs of these proceedings.

The Dissenting Opinion of Abdirahman Adan (member). 130. I have been notified of the decision of the majority. With profound respect, I am, however, not in one with it and the final Orders they have proposed.

131. I have considered all the pleadings, evidence on record, and submissions of the parties. For reasons that shall shortly become apparent, I would, on my part, summarize them as follows.

132. The ODM Party has made a decision to deem the Complainant to have resigned from the party pursuant to Section 14(A) of the Political Parties Act. The procedural and substantive propriety of this decision has been challenged by the Complainant before this Tribunal. In accordance with the said Section 14(A), the ODM Party applied to the Office of the Registrar of Political Parties moving it to remove the name of the Complainant from its register. The Registrar is yet to determine the application by the ODM Party due to the conservatory orders that were issued by this Tribunal in this and related matters.

133. The Complainant has put a case before this Tribunal to find against the legality of the decision by the ODM Party for varying reasons. The ODM Party has refuted these assertions, and it holds that it acted within the law and justifiably. On its part, the Registrar of Political Parties states that the Complainant has no complaint against it as it is yet to determine the application by ODM due to the conservatory orders issued in this matter.

134. On my part, and this is the reason I depart from the majority, I do not find that this Tribunal has the requisite jurisdiction, at this stage of the emanating dispute, to handle the Complaint. Since I am not convinced of this Tribunal’s jurisdiction in the instant complaint, and since any appeal from the pending decision by the Registrar would lie to this Tribunal, I do not venture to comment on any aspect of the legality or otherwise of the subject ODM decision.

What is the impugned decision complained about? 135. In my mind, the preliminary step to resolve this Complaint is to inquire as to what exactly is the impugned decision complained about. To do so, I have perused the parties’ pleadings and documents supplied and come to the conclusions hereunder.

136. At paragraphs 35 & 36 of the Complaint dated 11th September 2023, the Complainant states as follows:“35. The Complainant is heavily aggrieved by the decision of the 1st Respondent to remove his name from the register of the members of the 1st Respondent under the auspices of Section 14A through a fundamentally flawed process.

36. It is against this background that the Complainant has sought the intervention of this Honourable Tribunal.”

137. In the 1st Respondent’s Disciplinary Committee report titled‘ODM/DCHN/0014/2023: Hon. Phelix Odiwuor Khodhe…’ and dated 3rd August 2023 the Committee finds that “Hon Odiwuor was found to have …4. Defied ODM party positions and decisions …and Section 14A (1)(e) of the Political Parties Act, 2011… 5. By his conduct as described above and as relayed in evidence, he is deemed to have resigned from the ODM Party.” The Report recommends to the NEC that “1. [The Complainant], by dint of his conduct, be deemed to have resigned from the ODM Party…”

138. The 1st Respondent’s letter to the Complainant dated 11th September 2023 and referenced ODM/2023/184/009 by Oduor Ong’wen states, inter alia, that “the NEC had deliberated and adopted the report of the Disciplinary Committee where you were deemed to have resigned from the Party.” Attached to this letter, are excerpts of the referenced NEC minutes. In these minutes, it is indicated that the NEC recommended that the Complainant, among others, “by dint of their conduct be deemed to have resigned from the Party.”

139. The 1st Respondent’s letter to the 2nd Respondent dated 7th September 2023 and referenced ODM/2023/181/009 by Oduor Ong’wen states, inter alia, that “the purpose of writing this letter is… to communicate to you the resolution of NEC adopting the recommendations of the Disciplinary Committee finding the five members to be deemed to have resigned from the Party within the meaning of Section 14A of the Political Parties Act.”

140. The 2nd Respondent, through her letter dated 11th September 2023 and referenced RPP/FRP/021 Vol. VIII (39), acknowledges receipt of the above referenced letter from the 1st Respondent and states, inter alia, that “Section 14(4)(A) of the Political Parties Act, 2011 (PPA) requires the Registrar to determine compliance of the referenced party process with Section 14A (2) of the PPA before updating the party register.”

141. Persuaded firmly by these documentations and the pleadings, I have no doubt that the impugned decision is the 1st Respondent’s decision to deem the Complainant to have resigned from the ODM Party pursuant to the dictates of Section 14 (A) of the Political Parties Act.

142. I am unable to see any correspondence or document from the 1st Respondent to the Complainant, indicating that the 1st Respondent did expel the Complainant from the Party pursuant to Section 14 (B) of the Political Parties Act. Any such conclusion or insinuation would be a wrong conclusion of fact in my considered opinion.

Section 14 (A) of the Political Parties Act. 143. The next step would be to ask ourselves what are the statutory provisions in Section 14 (A) of the Political Parties Act. For this, I find it necessary to reproduce the entire section hereunder:“14A.When a member may be deemed to have resigned from a political party(1)A person who, while being a member of a political party shall be deemed to have resigned from that party if that person—a.forms another political party;b.joins in the formation of another political party;c.joins another political party;d.in any way or manner, publicly advocates for the formation another political party; ore.promotes the ideology, interests or policies of another political party.(2)A political party shall, before deeming a member to have resigned under subsection (1)—a.notify the member that he or she has been deemed to have resigned from the political party and that the political party intends to remove his or her name from the list of its members; andb.afford the member a fair opportunity to be heard in accordance with the procedure set out in the constitution of the political party.(3)A political party which deems a member to have resigned from the political party shall notify the Registrar in writing of the member’s resignation and request the Registrar to remove that person’s name from the register of members of that political party.(4)Upon the notification under subsection (3), the Registry may, where the Registrar is satisfied that the political party has complied with the procedure under subsection (2), remove the member’s name from the register of members of the political party within seven days of the notification and notify the member in writing that he or she has ceased to be a member of that political party.(5)Where the Registrar is not satisfied in accordance with subsection (4), the Registrar shall refer the matter back to the concerned political party for reconsideration.(6)Subsection (1) (c), (d) and (e) shall not apply to a member of a political party which enters or proposes to enter into a merger or a coalition with another political party.”

Has the Registrar of Political Parties made a decision under Section 14 (A) (4) & (5) of the Political Parties Act? 144. Naturally, it behooves upon this Honnourable Tribunal to next consider whether the Registrar of Political Parties has made a decision on the 1st Respondent’s request to remove the Complainant from the register pursuant to the dictates of Section 14(A).

145. Fortunately, the 2nd Respondent has answered this question in its Replying Affidavit dated 19th September 2023 by Joy Onyango. The Deponent attached the 2nd Respondent’s letter evenly dated and referenced RPP/FRP/021 Vol VIII (13) addressed to the 1st Respondent that informs the Party that the office has received its documentation but is stopped by the conservatory orders issued by this Tribunal from deliberating further on the matter. Thus, I agree with Joy Onyango when she avers at paragraph 10 of her Affidavit that “the 2nd Respondent has therefore not made the determination required under Section 14A (4) of the Political Parties Act, 2011 as to affect the rights of the Applicant/Complainant.”

What is the import of the situation where the 2nd Respondent has yet to make this determination? 146. Having considered this state of affairs, I am of the opinion that since the 2nd Respondent is yet to make its determination under Section 14(A) (4) & (5) of the Political Parties Act, there are two major implications that significantly affect these proceedings.

147. The first is that this Honourable Tribunal’s jurisdiction over the issue is ousted. The PPDT does not enjoy a broad and limitless judicial review jurisdiction. The jurisdiction of the PPDT is limited to matters provided under Section 40 of the Political Parties Act, to wit,:“40. Jurisdiction of Tribunal(1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.3).A coalition agreement shall provide for internal dispute resolution mechanisms.”

148. In my considered opinion, two fundamental issues flow from Section 40(1)(f) of the PPA. One, there is an express statutory dictate providing an appellate jurisdiction over the Registrar’s decisions to the PPDT. Two, the Registrar’s decisions under the PPA enjoy statutory protection to the extent that they can only be appealed from to the PPDT and not reviewed by the PPDT. Both of these issues import legislative protection of decisions ringfenced by the Act to be in the Registrar’s province from any immature interference by this Honourable Tribunal. In other words, I am effectively persuaded that where the Political Parties Act donates decisional power to the Registrar of Political Parties, this Honourable Tribunal cannot usurp that power until a proper appeal to a crystallized decision has been procedurally lodged before us.

149. In statutory interpretation, the specific always outweighs the general. Section 14A (3) to (5) of the Political Parties Act outweighs Section 40 (1) (b) in that the Complainant cannot assert that since “disputes between a member of a political party and the political party” fall under the general jurisdictional remit of the PPDT, then they are free to present a dispute regarding the ODM Party’s decision that is pending scrutiny and determination by the Registrar under Section 14A (4) & (5). On this, I would associate myself with the dicta by the Court of Appeal in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR at para. 44, to wit:“We hasten to add that a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...”

150. Besides, the Doctrine of Ripeness informs us that absent a determination by the Registrar under either Section 14A (4) or (5) of the Political Parties Act, the decision by ODM remains abstract without any substantive import. Without ripeness, the subject complaint lacks justiciability. In my opinion, it would be wise under the Doctrine of Deference to hold this dispute in abeyance and await the Registrar’s determination.

151. In the premise, I would hold that since the 2nd Respondent has yet to make its decision on the 1st Respondent’s application under Section 14 (A) of the PPA, this Honourable Tribunal lacks any jurisdiction to consider the present Complaint.

152. The second implication, which I note is a close cousin of the first, relates to the doctrinal principle of exhaustion. This doctrinal principle, if I understand it correctly, provides that if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. Indeed, Justice Mrima in Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR held that the doctrine of exhaustion acts as a bar to a court’s jurisdiction.

153. In this instant complaint, the Registrar is yet to determine the 1st Respondent’s motion under Section 14 (A) of the PPA. That process ought to be foremost exhausted before the appellate jurisdiction of this Honourable Tribunal or the judicial review jurisdiction of the appropriate court of law can be triggered. I would also, for this doctrinal principle, hold that the Tribunal lacks jurisdiction to entertain the Complaint.

154. It is now settled that a Court cannot “arrogate to itself jurisdiction through the craft of interpretation.” The Court’s jurisdiction is donated by either the Constitution or Statute or both. And, a Court’s jurisdiction is not a matter of procedural technicality but one that goes to the root of the Courts’ adjudication process. If a Court lacks jurisdiction to entertain a matter, it downs its tools. And I would so down my tools and dissent.

155. Before I pen off, I must comment on what I firmly believe to be a jurisdictional misadventure by the majority. The majority dedicates only a single paragraph to this question. In it, the majority frames it as a question of whether the Complaint is premature and they proceed to note that “the instant case has not been framed as an appeal against any decision of the [Registrar] under Section 40(1)(f) of the PPA.” First, of course, it cannot ‘be framed’ as an appeal because the Registrar is yet to make its decision due to our conservatory orders. Secondly, the majority falls into the trap that the Court of Appeal has warned about in Orange Democratic Movement v Yusuf AliSupra. Jurisdiction is not a matter of ‘framing’ or draftsmanship. It flows from the law and the substance of the complaint. The reality is, and I had hoped that the majority would have interrogated this, that Section 14A (2) of the PPA dictates what a political party must do before deeming a member to have resigned, i.e. (i) notify the member of its intention; and, (ii) afford the said member a fair opportunity to be heard in accordance with the procedure set out in the party’s constitution. A statutory responsibility is thereafter placed on the Registrar under Section 14A (4) and (5) of the PPA to assess whether the party has complied with the procedure under Section 14A (2) of the PPA. This express donation of power to the Registrar is not one for confusion. The Registrar does not conduct a clerical task under Section 14A (4) and (5); rather, its statutory duty therein is quasi-judicial. What the majority have done is to usurp this mandate, and it is all the more precarious for this Tribunal to assert jurisdiction at this stage when any appeal from the Registrar’s decision would lie to this Tribunal.

156. I would have ordered that (a) the Complaint be dismissed for lack of jurisdiction on account of the pending determination by the Registrar with no order as to costs; (b) the conservatory orders in this matter be vacated; (c) the 2nd Respondent be at liberty to determine the subject motion unless otherwise lawfully stopped; (d) parties be at liberty to thereafter apply. However, as the majority hold otherwise, the final Orders of the Honourable Tribunal shall be as proposed by the majority.

Final Orders of the Tribunal 157. Pursuant to the provisions of Section 39 and 41(3A) of the PPA as read together with Regulation 29 of the PPDT (Procedure) Regulations, 2017, the Decision of this Tribunal is determined by the Majority Opinion. Accordingly, upon consideration of the reliefs sought and the Majority Opinion, we make the following Final Orders;-i.That a Declaration be and is hereby issued that the decision of the 1st Respondent arising from the Disciplinary Committee proceedings of 25th July 2023 is illegal, premature, and incapable of being implemented for having been made without ratification by the National Governing Council in Violation of Article 12(1)(b) and Article 75(6) of the Orange Democratic Movement Part’s Constitution.ii.A Declaration be and is hereby issued that the Disciplinary proceedings conducted by the 1st Respondent against the Complainant on the 25th of July 2023 were unprocedural, unlawful, and in violation of the right to a fair administrative action and fair hearing as per Article 47 and 50(2) of the Constitution of Kenya, Section 14A(2) of the Political Parties Act, Section 4 and 6 of the Fair Administrative Action Act, and Article 75(5) and (6) of the 1st Respondents constitution and the 1st Respondent’s Disciplinary Committee Procedure Rulesiii.A Declaration be and is hereby issued that the Disciplinary Committee of the 1st Respondent convened on the 25th of July 2023 was not properly constituted and thus the decision of the National Executive Committee adopting the Recommendations of the said Committee is invalid and has no effect in law. iv. A Permanent Order for injunction is hereby issued restraining the Registrar of Political Parties from removing the name of the Complainant, Hon Phelix odiwuor Kodhe from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July 2023. v.A Permanent Order for injunction is hereby issued restraining the 1st Respondent from de-whipping, or in any manner attempting to remove the name of the Complainant Hon Phelix odiwuor Kodhe from the register of the members of the Orange Democratic Party based on the illegal disciplinary proceedings conducted on 25th July 2023. v.Save for costs for the 2nd Respondent which shall be borne by the Complainant, the 1st Respondent shall bear the Complainant’s costs of these proceedings.

158. Orders accordingly.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 29TH DAY OF NOVEMBER 2023. HON. DESMA NUNGO HSC - CHAIRPERSONHON. STEPHEN MUSAU - MEMBERHON. MUZNA JIN- MEMBERHON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER