[2021] KEPPDT 683 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL

AT NAIROBI

COMPLAINT NO. E004 OF 2021

HON. MUCHIRI KARIUKI.………………..…………………….. 1STCOMPLAINANT

HON. KIHIKA SULEIMAN KIMANI .……….………………..2NDCOMPLAINANT

HON. GATHUNGU PETER KAMAU…………..……………..3RDCOMPLAINANT

HON. NJATHA SAMUEL KINYANJUI…………………….…4THCOMPLAINANT

HON. MWANGI ESTHER NYAMBURA.….………..….…….5THCOMPLAINANT

HON. IRERI MARGARET WANJIRU…………………………6THCOMPLAINANT

HON. GEORGE WANJIRU CHIA……………………………..7THCOMPLAINANT

VERSUS

JUBILEE PARTY………..…………………...……………...….………….RESPONDENT

AND

RAPHAEL TUJU, Acting Secretary

General Jubilee Party……………………………………..……1stINTERESTED PARTY

NELSON DZUYA, Acting

Chairman Jubilee Party……………………………………….2ndINTERESTED PARTY

SPEAKER County Assembly

Of Nyandarua……………………………………….………….3rdINTERESTED PARTY

RULING

1. The Complainants herein came before this Tribunal vide a Certificate of Urgency dated 11th February 2021, raising concern that the Respondent was about to implement a decision that had been reached through an unlawful process. The Chairperson of this Tribunal certified the matter as urgent.

2. With the said certificate was filed a Notice of Motion Application, brought under provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules 2010, Section 41 of the Political Parties Act and Article 159 (2) (d) of the Constitution of Kenya 2010 dated 11th February 2021 (hereinafter referred to as the 1st Application”). Vide the said 1st application the Complainants seek the following orders:-

i. Spent.

ii. THAT pending the hearing and determination of this application inter parties this Honourable Tribunal be pleased to stay any further implementation of the Respondent’s decision of 9th.February, 2020, purporting to dewhip the Complainants/Applicants from all assembly committees; suspend the Applicants/Complainants from house sittings; and fining the Applicants/Complainants Ksh. 100,000/=;

iii. THAT pending hearing and determination of the Complaint herein, the Respondent be and are hereby restrained from implementing the impugned decision of the Respondent suspending the Complainants/Applicants from the business of the house.

iv. THAT the costs of this application be provided for.

Submissions in respect of the 1stApplication

3. Vide their pleadings, including the affidavit sworn on behalf of all the Applicants by Hon. Muchiri Kariuki, it is alleged that the decision to suspend the Complainants/Applicants from the Respondent political party were made in contravention of the party constitution, provisions of the Political Parties Act, Fair Administrative Actions Act and the Constitution of Kenya.

4. The Complainants/Applicants are duly elected and nominated members of the Respondent in the County Assembly of Nyandarua. On 6th February, 2021, the said Complainants/Applicants received letters from the Jubilee Party IDRC (hereinafter the Committee), setting out alleged offences and requiring them to appear before the said Committee on 8th February, 2021 at 10. 00am when the complaint against them would be heard.

5. The Complainants/Applicants aver that the Internal Dispute Resolution Committee (the said Committee) is an unknown creature in the Jubilee Party Constitution and purported to usurp the powers of the National Executive Committee (NEC), yet it had no jurisdiction to handle such matters. In deed no party organ envisaged in the jubilee party constitution has the power to suspend a duly elected member of the County Assembly.

6. The charges against the Complainants/Applicants was allegedly made pursuant to a complaint lodged on 20th January, 2021 by the Jubilee Party Leadership in Nyandarua which accused them of violation of various provisions of the Party Constitution and the same were summarized in four charges that included violation of the party code of conduct for members, lack of respect and disloyalty to the party, breach of jubilee party position in regard to the separation of powers between the assembly and the executive, and gross misconduct. These alleged violations had the resultant effect of bringing the party into disrepute.

7. The Complainants/Applicants aver that the said charges were general, wide, vague and not clear as the same laid out no particulars. They insinuated guilt on the part of the Applicants, requiring them to prove their innocence contrary to rules of fair hearing and natural justice.

8. The Complainants/Applicants immediately wrote to the Committee requesting that the disciplinary hearing be deferred to a later date as the notice was too short in face of the fact that there was important business going on in the County Assembly which the Complainants/Applicants needed to be part of and further that they needed ample time to prepare to respond to the charges.

9. Further, it is the Complainants/Applicants contention that their Advocates appeared before the Committee and reiterated their said sentiments as set out in their communication to the Committee, however the Committee insisted on proceeding with the hearing, the absence of the Complainants/Applicants notwithstanding. This resolution to proceed was also contrary to the Regulations of the Disciplinary Committee which provide for service of a charge sheet within 48 hours before the hearing. Further, Regulation 16 (a) and (c) and Regulation 20 that guide the Committee proceedings, provide that any preliminary point raised by the charged member shall be dealt with at the outset of the proceedings and the Chairperson make a ruling first.

10. On the following day, after the alleged disciplinary process, the Complainants/Applicants received letters notifying them of a decision that was purportedly made by the said Committee recommending the suspension of the Complainants/Applicants, their de-whipping and imposing a fine of Ksh. 100,000/= on each of them. The said Committee also referred the Complainants/Applicants to the national disciplinary committee to consider their expulsion from the party.

11. The actions of the Respondent contravened various laws including Article 13. 1.10 and 13. 1.11 of the party constitution; and the requirements of the Political Parties Act and Sections 4, 6 and 7 of Fair Administrative Action Act, and contrary to Articles 27, 47 and 50 of the Constitution of Kenya, 2010.

12. It is the Complainants/Applicants case that the Secretary General, that is the 1st Interested Party herein, vide a letter, has since purportedly proceeded to confirm to the Speaker, County Assembly of Nyandarua, the 3rd Interested Party herein, the suspension of the Complainants/Applicants from the house business and the other Committees in which the Complainants/Applicants sit for between three and six (6) months respectively and imposing a fine of Ksh. 100,000/= on each of them without availing the reasons thereof as required under Regulation 52 of the Jubilee Party National Disciplinary Committee Regulations, 2017, the implementation of which directives the 3rd Interested Party is proceeding with.

Ex-parte directions issued by this Tribunal in respect of the 1stapplication

13. The Complainants/Applicants presented their case before this Tribunal on 11th February 2021 when their matter was certified urgent by the Chairperson and in addition the following directives issued:

a. That the Complaint and Notice of Motion application dated 11thFebruary 2021 be served upon the Respondent and Interested Parties immediately.

b. The Respondent and Interested Parties to file and serve their responses to the pleadings.

c. Mention on 18thFebruary 2021 at 2. 30pm virtually to confirm compliance and for further directions.

d. That pending the hearing and determination of this application inter parties, this Honourable Tribunal hereby stays any further implementation of the Respondent’s decision of 9thFebruary, 2021, purporting to de-whip the Complainants/Applicants from all assembly committees; suspend the Applicants/Complainants from house sittings; and fining the Applicants/Complainants Ksh. 100,000/=;

Submissions in respect of the 2ndApplication

14. On 9th March 2021, the 3rd Interested Party in the Complaint herein presented before this Tribunal under certificate of urgency, a Notice of Motion application brought under Order 51 Rule 15 of the Civil Procedure Rules and all enabling provisions of the law supported by an affidavit sworn by Hon. Zachary Mwangi Njeru.

15. This application by the 3rd Interested Party (hereinafter referred to as the 2nd Application”) seeks the following orders:-

i. Spent.

ii. THAT the application be heard on priority to the Complainants application dated 11thFebruary 2021 and in the alternative the order issued on 11thday of February 2021 be varied to allow hearing and determination of this application.

iii. THAT the interim orders issued by the Tribunal on 11thday of February 2021 be set aside varied and/or discharged.

iv. The costs of this application be borne by the Complainants in any event.

16. The 2nd application is supported by the Affidavit sworn by Hon. Zachary Mwangi Njeru, described as the Speaker of the County Assembly of Nyandarua, who avers that the orders obtained by the Complainants in lieu of the first instance hearing of the 1st application were obtained through forum shopping, deceit, fraud, misrepresentation and non-disclosure of material facts.

17. At the hearing before the Committee (subject of which the Complainants based their arguments in reference to the said 1st application), the issue of non-appearance before the Committee, which enjoys the status such as of a court of first instance, was addressed and a ruling duly issued before the said Committee proceeded to hear and determine the substantive charge against the said Complainants. Before the said Committee could deliver its ruling on the application for adjournment sought by the advocates acting for the Complainants, the said Advocates, without excusing themselves left thereby choosing to abscond the hearing.

18. The said 2nd application submits that Notice to Show Cause letters sent out to the Complainants did not elicit any response and thus stood uncontroverted. The said 2nd application submits that a ruling was issued from the Committee and it is the Complainants who did not apply for a copy of the same.

19. Further it is submitted in the said 2nd application, of additional note is the fact that internal party processes have not been exhausted as anticipated under law, more particularly the Political Parties Act.

Ex-parte directions issued by this Tribunal in respect of the 2ndapplication

20. The said 3rd Interested Party made their application before this Tribunal on 9th March 2021 when their matter was certified urgent by the Chairperson and in addition the following directives issued:

a. That the Notice of Motion application dated 9thMarch 2021 be served upon the Complainants, Respondent and 1stand 2ndInterested Parties immediately.

b. The Complainants, Respondent and 1stand 2ndInterested Parties to file and serve their responses.

c. Mention on 15thMarch 2021 at 2. 30pm virtually to confirm compliance and for further directions.

The Preliminary Objection

21. In the meantime, the Respondent, 1st and 2nd Interested Parties through their Advocate on record filed a Preliminary Objection on the ground that this Tribunal has no jurisdiction to hear this matter.

22. Their objection is premised on the fact that the Complainants presented before this Tribunal without having first exhausted the internal party processes as is required under Section 40 (2) of the Political Parties Act as read with Article 159 (2) of the Constitution of Kenya.

Issues for Analysis and Determination

On jurisdiction of this Tribunal

23. This Tribunal directed that the two applications be argued together with the Preliminary Objection and this ruling is in respect of the same.

24. The Respondent and 1st & 2nd Interested Parties have challenged the Tribunal’s jurisdiction to hear and determine this matter on the ground that no IDRM was invoked contrary to the provisions of Section 40 of the PPA (Political Parties Act) and the Jubilee Party constitution.

25. The jurisdiction of this Tribunal has been attacked on the grounds that IDRM was not exhausted prior to filing the instant complaint. The Complainants and the Speaker County Assembly of Nyandarua have countered this averment stating that IDRM applied and a conclusive decision made and further that the said decision was not appealable according to the laws and rules of Jubilee Party; the subject party herein.

26. A preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West-End Distributors Limited [1969] EA 696, as one which "consists of a point of law which has been pleaded, or which arises by clear implication, and which if argued as a preliminary point, may dispose of the suit. The court further stated that;-

"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion".

27. We have considered the parties arguments on whether or not IDRM was exhausted as anticipated in law. Whereas the Complainants have alleged that they were subjected to IDRM prior to the commencement of these proceedings, the Respondents have denied that IDRM was undertaken within the meaning of section 40(2) of the PPA.

28. We note that the determination on the issue as to whether IDRM was instituted, from the circumstances presented in the instant case contain factual issues that have to be ascertained and therefore do not constitute pure points of law. In the circumstances, the preliminary objection in respect of section 40(2) of the PPA fails.

As to whether the 2ndapplication is rightly before this Tribunal

29. Counsel for Hon. James Ndegwa the Speaker, County Assembly of Nyandarua objected to the viability of the application filed on behalf of one Hon. Zachary Mwangi Njeru, Acting Speaker Nyandarua County Assembly on the ground that an Interested Party cannot lawfully bring an application in a matter but should limit their participation only to presenting information that may help in the resolution of the matter or issues at hand.

30. We note that the Supreme Court did in Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others; Petition No. 12 of 2013 unreported, address itself to the question of Amicus and an Interested Party and their roles and proceeded to note that an Interested Party has a stake in the matter even though not party ab initio.

31. We note that a party with a stake in the decision can make an application and thus find that the said 2nd application filed on behalf of the said Acting Speaker is properly before us.

Whether the interim orders issued by this Tribunal on 11thFebruary 2021 need to be set aside or sustained until final hearing and determination of this Complaint.

32. The Principles governing the granting of interim orders are well established by numerous decisions of courts. First, an applicant has to show a prima facie case with a probability of success. Secondly, an interlocutory injunction would not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated for by an award of damages. Thirdly, if the court is in doubt, it would decide an application on the balance of convenience.

33. All we are required to do at this stage is to establish, firstly, whether the Complaints/Applicants vide the 1st application raises a prima facie case with chances of success, and secondly, whether the Complainants/Applicants stand to suffer prejudice if the subject matter is not preserved by way of conservatory orders.

34. Black’s Law Dictionary defines prima facie case as one which is “… sufficient to establish a fact or raise a presumption unless disproved or rebutted…”This definition is fortified in numerous judicial authorities including in the Court of Appeal decision in Mrao Limited vs. First American Bank Limited (2003) KLR 125, Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR. Applying the definition to the presented facts and circumstances of the instant case, we are of the considered opinion that the Complainants/Applicants have demonstrated that they have a prima facie case with chances of success.

35. On the issue of prejudice, the Applicants have pleaded and demonstrated that their positions in the County Board have been threatened as a consequence of the Respondent’s allegedly irregular processes. In Eldoret High Court Petition No. 11 of 2012, The Centre for Human Rights and Democracy & Others vs. The Judges and Magistrates Vetting Board & Others,the Court held that where there is a threat to the rule of law, the Court has powers to grant interim measures of protection so that the aggrieved party is not rendered helpless in the eyes of the wrong visited or about to be visited upon him or her, and so as not to expose others to preventable perils or risks by inaction or omission. Taking cue from this decision, we agree with the Applicants’ contention that they stand to be prejudiced if conservatory orders are not granted.

36. In view of the foregoing, we find that the Notice of Motion Application dated 11th February 2021 is merited and we accordingly grant the following orders:-

i. That a Conservatory Order be and is hereby issued prohibiting and/or restraining the Respondent from operationalizing or implementing the impugned decision of the Respondent’s National Disciplinary Committee

suspending the Complainants/Applicants from House business for three and six months respectively, referring the Applicants to the National Disciplinary Committee and in addition imposing a fine of Kshs 100,000 on all the Applicants.

ii. That a Conservatory Order be and is hereby issued prohibiting and/or restraining the Interested Parties from acting upon, communicating or depositing the said impugned decision upon any person for implementation pending the hearing and determination of this Complaint.

iii. That the costs of this application be in the cause

It is so ordered.

Datedat Nairobi this16th day of April 2021

MILLY LWANGA ODONGO.

(PRESIDING MEMBER)

PAUL NGOTHO

(MEMBER)

DR. ADELAIDE MBITHI

(MEMBER)