[2021] KEPPDT 675 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL

AT NAIROBI

COMPLAINT NO. E003 OF 2021

SEN. MARY YIANE..............................................1STCOMPLAINANT

SEN. WAQO NAOMI JILO..................................2NDCOMPLAINANT

SEN. MILLICENT OMANGA.............................3RDCOMPLAINANT

SEN. PRENGEI VICTOR.....................................4THCOMPLAINANT

SEN. IMAN FALHADA DEKOW.........................5THCOMPLAINANT

VERSUS

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

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

RULING

1. Vide the Notice of Motion Application dated 9th February 2021 (hereinafter referred to as the Application”), the Complainants seek the following orders:-

i. Spent.

ii. Spent

iii. Spent

iv. That pending hearing and determination of the complaint herein, the 1st and 2nd Respondents be and are hereby restrained from implementing the impugned decision of the 1st Respondent expelling the Applicants from the Jubilee Party (the 1st Respondent).

v. That costs of this application be provided for

2. The application is supported by the Supporting Affidavit sworn on behalf of the Complainants by Sen. Millicent Omanga on 9th February 2021 and the Supplementary Affidavit sworn by Irungu Kangata on 2nd March 2021. In crux, the Complainants claim, inter alia, that the purported disciplinary process against them was initiated vide a vague show cause letter, without any written and signed complaint, with no reasonable basis or justification and was malicious; that therewas no disciplinary process conducted by the disciplinary committee and that instead they were asked to attend a consultative meeting that turned out to be a disciplinary hearing where they were not given an opportunity to defend the charges against them; that the disciplinary process was unprocedural, illegal, unlawful having been conducted in contravention of Article 13:11 of the party constitution, the Political Parties Act and Sections 4, 6 and 7 of the Fair Administrative Action Act and Articles 47 and 50 of the Constitution; that the Complainants were discriminated against and they stand to be greatly prejudiced as their rights are threatened.

3. The application is opposed by the 1st Respondent vide the Replying Affidavit and Further Affidavit sworn by Raphael Tuju on 1st March 2021 and 9th March 2021 respectively. In crux, the 1st Respondent contends, inter alia, that the Complainants were taken through a proper disciplinary process; that they were issued with notices to show cause detailing the charges and that they appeared before thedisciplinary committee and were heard and a decision delivered. The 1st Respondent maintains that the disciplinary process was anchored in the law and that the 1st Respondent stands to be prejudiced if it cannot discipline its members.

4. The 2nd Respondent has also responded to the application vide the Replying Affidavit sworn by Joy Onyango on 3rd March 2021. The 2nd Respondent averred, inter alia, that they had not interacted with the disciplinary process; that they leave the matter to the Tribunal to exercise its discretion and that they would abide by the determination of the Tribunal.

Issues for Analysis and Determination

5. The parties focussed their submissions primarily on the main principles for grant of injunction as enunciated in the celebrated case of Giella versus CassmanBrown (1973) EA 358and as also reiterated in the case ofNguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014)eKLR,amongst numerous other judicial authorities. That is, whether the Applicants had established a prima facie case, and who stands to be prejudiced/suffer irreparable harm by grant of the orders sought.

Whether the Applicants have established a Prima Facie Case?

6. In the case of Mrao Ltd Versus First American Bank of Kenya Ltd (2003) eKLR, the Court of Appeal gave a definition of a prima facie case. The court stated that :

“... in civil cases, it is a case in which, on the material presented to the court or a tribunal properly directing itself, will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

7. As already highlighted above, the Complainants contend that the process applied by the 1st Respondent violated their right to due process for a number of reasons. To wit that they were invited to a consultative process which was converted into a disciplinary process without due regard to the party processes that guide the initiation of such disciplinary processes. Further the impugned disciplinary process progressed in spite of the Complainants call for time to prepare their response. The Complainants allege that the fact that they were heard well over six months before a decision was delivered exposed the process to abuse. It is the Complainants’ submission that the stated acts of omission and/or commission demonstrated clear and obvious gross violation of their right to due process on the face of it and thus their claim to a prima facie case.

8. Counsel for the 1st Respondent on their part submitted that the Complainants did not establish a prima facie case. Their allegation that they were not properly advised of the nature of proceedings they were to submit to cannot stand as notices to show cause had issued against them. They were, in the course of the hearing, afforded adequate time to state their case and even present their defence. The reasoned decision of the party disciplinary process was explained to them. The process applied was in tandem, so submitted counsel for the 1st Respondent, withnot only the party laws, rules and processes but also with the national law and in line with the spirit and principles of the Constitution of Kenya 2010.

9. Applying the above definition of a prima facie case to the parties’ submissions and documents on record, it seems that both the Complainants and the 1st Respondents have maintained that their legal rights were infringed by either party. All parties have raised contentions which require consideration on merit and that are not liable to be rejected summarily. The case could go either way subject to evidentiary material that can only be analysed conclusively after a substantive hearing. We are therefore not persuaded, on the face of it, that the Complainants have demonstrated a strong prima facie case. We accordingly find in the negative under this head.

Whether the Complainants Stand to Suffer Irreparable Harm/Prejudice?

10. On the question of prejudice, the Complainants relied on the case of Centre forRights Education and Awareness (CREAW) & 7 Others vs Attorney General [2011] eKLRand submitted that they stood to be prejudiced as the rule of law and their rights were under threat. According to the Complainants, the 1st Respondent would in the absence of any orders continue to implement the impugned decision and give directions to the 2nd Respondent to act on the same.

11. The 1st Respondent on the other hand submitted that the Complainants acted in violation of the party laws thus necessitating disciplinary proceedings, and that the 1st Respondent stands to be prejudiced and suffer irreparable harm if they cannot be allowed to discipline its members vide a process that is anchored in the law, a situation that may lead to total anarchy within political parties.

12. Bearing in mind our above finding on the issue of prima facie case, and the fact that both the Complainants and the 1st Respondent claim that they stand to suffer prejudice as a consequence of certain breaches of law by either party, we are equally not persuaded to find in favour of the Complainants under this head.

What are the appropriate reliefs to grant?

13. We note that the Claimants’ primary concern at this stage would be the preservation of the subject matter of the Complaint. We further note that the 2nd Respondent, during the hearing of the application, submitted to the authority of this Tribunal and stated that they would await the outcome of these proceedings before taking any further action on the matter. There is thus no demonstrated threat of conclusive implementation of the 1st Respondent’s decision before the conclusive determination of this matter within the prescribed statutory timelines. Therefore, balancing all interests herein, it is our considered opinion that it is in the interest of justice that this matter be fully and comprehensively disposed of so that conclusive determination on all contested issues is made upon substantive hearing. Thus we order as follows:

a. That the Notice of Motion application dated 9th February 2021 be and is hereby dismissed.

b. That the costs of the application be in the cause.

c. That parties do forthwith take directions on priority hearing of the substantive Complaint on merit.

It is so ordered.

DATEDAT NAIROBI THIS 31ST DAY OF MARCH 2021

DESMA NUNGO……......(CHAIRPERSON)

MILLY LWANGA ODONGO.....(MEMBER)

PAUL NGOTHO ..........................(MEMBER)

DR. ADELAIDE MBITHI...........(MEMBER)