[2021] KEPPDT 677 (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

JUDGMENT

Introduction

1. The Complainants herein are all members of the Senate holding the said offices by virtue of their nomination as such by Jubilee Party, the 1st Respondent herein. On or about the 15th of May 2020, they received letters dated 13th May 2020 calling on them to show cause why they should not be subjected to disciplinary proceedings for inter alia their alleged failure to attend a parliamentary group meeting organised by the party and held on Sunday May 10th 2020 at State House.

2. Subsequently the Jubilee Party National Disciplinary Committee (NDC) allegedly commenced a disciplinary hearing against them which process culminated in their expulsion from the party. Aggrieved by the party’s process and decision to expel them, they moved to this Tribunal by way of Complaint dated 9th February 2021 seeking redress against the effects of the said party process and decision.

3. The complaint is supported by an Affidavit sworn by Sen. Millicent Omanga on 9th February 2020 and an Affidavit sworn on 2nd March 2021 by Sen. Irungu Kang’ata, a jubilee party member and Senator who was at the material time the Majority Whip of the said party in the Senate.

4. On 16th February 2021, the 1st Respondent filed a Notice of Appointment of Advocates under protest and subsequently filed and served a Replying Affidavit sworn on 1st March 2021 by the party Secretary General, Hon. Raphael Tuju. On 9th March 2021 the 1st Respondent, filed a Further Affidavit sworn by the said Secretary General, Raphael Tuju.

5. The 2nd Respondent filed their Replying Affidavit sworn by one Joy Onyango, their compliance officer, on 3rd March 2021.

6. After the close of pleadings, and at the request of the Complainants, cross examination of the 1st Respondent’s Secretary General, the said Raphael Tuju was undertaken virtually on 15th April 2021. Parties thereafter proceeded to file their written submissions and highlighted the same orally on 27th April 2021.

The Complainants’ Submissions

7. The Complainants fully relied on their pleadings and Written Submissions dated 21st April 2021. It is the Complainants’ case that even before they presented themselves before the party disciplinary committee, the Senate Majority Whip, one Senator Irungu Kangata, had advised them that the charges against them were to be withdrawn and that their appearance before the disciplinary organ would be merely consultative.

8. In addition, it is the Complainants’ case that much to their consternation, when they presented before the said party disciplinary process, they were bombarded with vague charges and forced to proceed with the disciplinary process. The Complainants contend that they were not the only jubilee party members who failed to attend the subject parliamentary group meeting, thus the decision to proceed with their disciplinary process was discriminatory. In deed the 5th Complainant, Sen. Iman Falhada Dekow, submits that she had tendered her apologies to the said parliamentary group meeting, a fact that she had called to the attention of the party disciplinary committee, and thus she did not anticipate that the disciplinary process against her would proceed.

9. The Complainants claim that the disciplinary process against them was unfair and in contravention of among other laws, Articles 13. 1.10 and 13. 1.11 of the party Constitution, Regulations 5,8,9,10, 12,13,20 and 52 of the NDC Regulations 2017, Sections 4,6,and 7 of the Fair Administrative Action Act and Article 27, 47 and 50 of the Constitution of Kenya. Further, it is the Complainants’ submission that there was no properly convened National Executive Committee (NEC) meeting that would have ratified the decisions by the said disciplinary organ, thus any alleged ratification cannot be lawful. The move by the National Management Committee (NMC) to vary the decision allegedly on behalf of NEC has also been challenged.

10. The Complainants aver that the allegations made against them did not meet the criteria set in law and more particularly as stipulated under Section 14 (5) of the Political Parties Act; under which one would be deemed to have resigned from their party and that would allow for their expulsion. They therefore pray for:-

i.A declaration that the disciplinary proceeding by the 1st Respondent against them violated Article 47 and 50 of the Constitution.

ii.A declaration that the disciplinary proceedings by the 1st Respondent against the Complainants were unprocedural, and violated the Political Parties Act, the Fair Administrative Action Act and article 13:11 of the 1stRespondents’ constitution.

iii.A declaration that there was no National Executive Committee of the 1st Respondent convened on 8th February 2021 or any other time properly constituted to adopt any decision of the disciplinary committee of the party, and thus the report of the NMC is invalid and have no effect in law.

iv.A declaration that the Complainants were denied the right to fair hearing at the disciplinary committee and the resultant decision is unlawful and have no effect in law.

v.An order restraining the 2nd Respondent by themselves, their agents, and/or servants or employees from removing the name of the Complainants from the membership list of the 1st Respondent political party.

vi.That the costs be awarded to the Complainants.

The 1stRespondent’s Submissions

11. The 1st Respondent relied on their pleadings and Written Submissions dated 26th April 2021. It is the 1st Respondent’s case that notices to show cause were issued against each of the Complainants herein detailing particulars of their alleged breaches of party laws. The particulars of the Complainants’ breaches against party rules and laws were allegedly clearly outlined in the said notices. The 1st Respondent further submits that the Complainants were invited to attend the disciplinary proceedings and that they each individually confirmed attendance as they acknowledged receipt of the said notices. The 1st Respondent thus denies that the disciplinary process amounted to an ambush.

12. The 1st Respondent further avers that the Complainants were afforded an opportunity to respond to the charges made out against them at the proceedings before the party disciplinary organ which then deliberated on the proceedings and reached a determination.

13. It is the 1st Respondent’s case that the decision by the NDC was reached within the time stipulated in the party laws. The SG deponed, on behalf of the 1st Respondent that, however, in line with Article 13. 12 of the Jubilee party constitution which requires that such decision be channelled to the NEC for adoption, ratification, variation or substitution, the said decision was subsequently subjected to this said ratification process through the National Management Committee (NMC).

14. It is further the 1st Respondents case that Article 7. 1 of the party constitution establishes the NMC which can act on behalf of the NEC on urgent matters where the NEC cannot undertake such urgent action.

The 2ndRespondent’s Submissions

15. The 2nd Respondent has relied on their pleadings and Written Submissions dated 26th April 2021. She submits that as custodian of all registered political parties’ constitutions, she has read and understood the party process of expulsion of its errant members. In addition, the said 2nd Respondent recognises that the 2nd schedule of the Political Parties Act requires each party to provide in their laws for a disciplinary process.

16. The 2nd Respondent invited the Tribunal to determine whether the 1st Respondent complied with the law. The Tribunal was referred to Section 14(7) of the Political Parties Act.

Issues for Analysis and Determination

17. Flowing from the parties’ pleadings, we have isolated the following key issues for determination.

i. Whether the 1st Respondent’s disciplinary proceedings leading to the expulsion of the Complainants were conducted in accordance with the law.

ii. Whether the 1st Respondent’s decision to expel the Complainants was arrived at justly and fairly / whether the Complainants were discriminated against by the 1st Respondent.

iii. What are the appropriate reliefs to grant?

Whether the 1stRespondent’s disciplinary proceedings leading to the expulsion of the Complainants were conducted in accordance with the law.

18. Article 47 of the Constitution of Kenya 2010 as read together with Section 4 of FAA Act No. 4 of 2015 makes provision for fair administrative action. An administrative action is defined under section 2 of the FAA Act to include any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

19. The application of the rule of law and natural justice is codified in Article 13. 1.10 and 13. 1.11 of the 1st Respondent’s Constitution as read together with the Jubilee Party National Disciplinary Committee Regulations 2017 (NDC Regulations). The highlights of the very elaborate provisions that govern jubilee party disciplinary proceedings include the following that are of relevance to this case:-

i. Regulation 8 of the NDC Regulations makes provision for preparation and service of a charge sheet and a hearing notice upon a charged party member. The details of the charge sheet are as set out in Regulation 9 which includes the following:-

a) The charge sheet to be in writing as set out in Form A of the First Schedule

b) The charge sheet to set out sufficient details of description of the violation or act of misconduct

c) Provide the date and place of the offence

d) Identify the provisions of the Constitution or party rules that have been violated

e) Inform the charge member of his or her right to be represented by an advocate or a member of the party before the disciplinary enquiry commences

f) Provide the date, time and venue for the hearing

g) Inform the charged member that the disciplinary proceedings will be a one stage inquiry and that he or she will also be required to lead evidence in mitigation of sanctions if so desired

h) Inform the charged member that his or her defense shall be by sworn affidavits as he/she may consider necessary in support of his/her request; provided that the charged member may request for oral evidence to be adduced

i) Inform the charged member that if he or she does not appear at the venue on the date and time determined for such proceedings or does not remain in attendance when required to do so by the committee, the proceedings will continue in the absence of the charged member.

ii. Regulations 10 to 12 make provisions on service of charge sheet and proof of service. Pursuant to Regulation 13 and 14 of the NDC Regulations, the charge sheet and all relevant documents should be served upon the charged party member within 48 hours prior to the hearing date. The Regulations make further elaborate provisions on conduct of hearings before the NDC. Regulation 5 provides for expeditious determination of disputes presented before NDC within 14 working days from the date the charge sheet is received. Upon determination of the matter, Regulations 41 and 52 of the NDC Regulations require that the NEC and the charged member be informed of the ruling.

iii. We also take note of Regulation 8 which provides that a disciplinary process commences with service of a charge sheet and a hearing notice.

20. Turning to the facts of the case, the Complainants aver that on 15th May 2020, they received notices to show cause dated 13th May 2020 annexed to the Complainants’ Supporting Affidavit and marked as ‘MO 1’. We note that the subject notices to show cause expressly state that the Complainants are called upon to show cause why disciplinary proceedings should not be commenced against them for violating the party constitution. They are signed by the National Chairperson of the Partyand not the NDC. The Complainants responded to the said notices to show cause on 15th May 2020. We have looked at annexure marked `MO 2’ being the subject responses by the Complainants where they sought further details in reference to the alleged violations as outlined in the said notices, and in some instances; as in that of Sen. Victor Prengei (4th Complainant) proceeded to detail the level and extent to which they have been loyal and supportive of the party.

21. The 1st Respondent has at paragraphs 10, 11, 12, 13 and 14 of the Replying Affidavit sworn by Hon. Raphael Tuju on 1st March 2021 summarised the disciplinary procedures that were conducted against the Complainants as follows:-

i. That NTSC dated 13th May 2020 were issued to the Complainants to show cause why disciplinary proceedings should not be commenced against them for the listed allegations against them.

ii. That the Complainants responded to the Notice to Show Cause on 15th May 2020

iii. That in line with the party constitution, the Complainants appeared before the NDC on 26th and 27th May 2020 when they were given an opportunity to defend themselves and they gave evidence on oath which was recorded by NDC.

22. We note that whereas the 1st Respondent claims that the Complainants were made aware of the charges vide the notices to show cause, the party disciplinary procedures already highlighted above do not make reference to a “Notice to show cause” [NTSC] and neither is it included in any part of the interpretation clause.

In any event, as we have already observed, the NTSC was not signed by NDC and merely called upon the Complainants to show cause why they should not be subjected to a disciplinary process.

23. The NDC Regulations elaborately provide for the charge sheet (setting out both content and process of its execution). The fundamental question that we need to address is whether NDC charge sheets were issued and served upon the Complainants prior to the disciplinary hearing. The 1st Respondent’s witness Hon. Raphael Tuju stated during his cross examination that he did not sit in the NDCbut believed that the charge sheets and summonses were served and that the party constitution was complied with. However, despite being a contested issue, we have not been furnished with any evidence of any of the specific charge sheets or summonses and/or evidence of service thereof. The onus was on the 1st Respondent to demonstrate that charge sheets were issued by NDC and served upon the Complainants together with summonses prior to the hearing in consonance with the NDC Regulations.

24. In the case of Kori Erick Ng’ang’a vs. University of Nairobi (2019) eKLR, the Court of Appeal observed as follows:

“… We have perused the record and we are clear in our minds that no charges were served upon the appellant before the date scheduled for the hearing of the disciplinary case, therefore the issue of adequate time to prepare, answer and responded to the charges is a fundamental issue which was addressed by the trial court during hearing.

Secondly it is common ground that the appellant was only informed about the hearing by way of a telephone call. That mode/method of communication is a manifest expression that the respondent did not give due weight to the nature and extent of the disciplinary matter which had the potential of expelling the appellant from the university, which was a drastic and radical outcome.

In instances where the outcome has he likelihood of resulting prejudice or injuries to an individual, it is incumbent or prudent, or reasonable to give the party adequate, sufficient and reasonable opportunity to defend or give his side of the story. Here is a case where the appellant was called to a disciplinary hearing without being given adequate and sufficient notice of what he intends to meet or expect at the hearing. It is clear that the appellant was never informed of the purpose and reasons as to why he was required to appear before the disciplinary committee. It may be argued that the appellant knew the reason but in order to show that the respondent complied with the principles of fair hearing as enshrined in Articles 47 and 50 of the Constitution, it was reasonably expected to be served with a proper notice containing the charges and informing him of the consequences of his non-attendance or even the eventual outcome of the process… “

25. 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 1stRespondent’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.

27. Taking into consideration the totality of the facts and circumstances of this case, we find that the 1st Respondent’s alleged disciplinary proceedings and the NDC decision of 29th May 2020 leading to the expulsion of the Complainants were not conducted in accordance with the law. Relying on the Court of Appeal decision in Omega Enterprises (K) Limited vs. Kenya Tourist Development Corporation Limited & 2 Others [1998] eKLR, and having found the NDC processes and decision unlawful, the decision by the 1st Respondent to then proceed to transmit the outcome of that impugned process to the national organ including the subsequent decision of 8th February 2021 cannot stand. There was no proper initiation of the process that could elicit an outcome that would be adopted or ratified by the national organ.

28. Having found that the NDC decision of 29th May 2020 and all subsequent processes were a nullity, we shall not address our mind to the rest of the issues that we isolated for determination. We further state that our Judgment in this matter does not preclude the 1st Respondent from commencing fresh disciplinary proceedings against the Complainants if they so wish provided that the disciplinary process is conducted in adherence to the 1st Respondent’s laws.

29. On the question of costs, the general principle is that costs follow the event. The Complainants are therefore entitled to costs. We have considered the 2nd Respondent’s plea and the circumstances of this case and we accordingly issue an order for costs of the Complainants as against the 1st Respondent.

Disposition

30. In light of the foregoing, we make the following orders:-

i. A declaration be and is hereby issued that the disciplinary proceedings and the consequential decisions by the 1st Respondent against the Complainants were unprocedural and violated the provisions of Articles 13. 1.10 and 13. 1.11 of the party Constitution, Regulations 5,8,9,10,12,13,20 and 52 of the National Disciplinary Committee Regulations 2017, Sections 4 of the Fair Administrative Action Act and Articles 47 and 50 of the Constitution of Kenya and are thus a nullity and of no consequence in law.

ii. An order restraining the 2nd Respondents by themselves, their agents, and/or servants or employees from removing the names of the Complainants from the membership list of the 1st Respondent Political Party on the basis of the disciplinary proceedings subject hereof.

iii. The costs of the Complaint be and are hereby awarded to the Complainants as against the 1st Respondent.

It is so ordered.

DATED AT NAIROBI THIS 5TH DAY OF MAY 2021.

DESMA NUNGO

(CHAIRPERSON)

_______________

MILLY LWANGA ODONGO

(MEMBER)

PAUL NGOTHO

(MEMBER)

DR. ADELAIDE MBITHI(MEMBER)