[2021] KEPPDT 678 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. E004 OF 2021

HON. MUCHIRI KARIUKI...................................................... 1ST COMPLAINANT

HON. KIHIKA SULEIMAN KIMANI ...................................2ND COMPLAINANT

HON. GATHUNGU PETER KAMAU.....................................3RD COMPLAINANT

HON. NJATHA SAMUEL KINYANJUI...................................4TH COMPLAINANT

HON. MWANGI ESTHER NYAMBURA.................................5TH COMPLAINANT

HON. IRERI MARGARET WANJIRU….................................6TH COMPLAINANT

HON. GEORGE WANJIRU CHIA.............................................7TH COMPLAINANT

VERSUS

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

AND

RAPHAEL TUJU, Acting Secretary

General Jubilee Party.....................................................1st INTERESTED PARTY

NELSON DZUYA, Acting

Chairman Jubilee Party................................................2nd INTERESTED PARTY

SPEAKER County Assembly

of Nyandarua...................................................................3rd INTERESTED PARTY

JUDGMENT

1. The 1st, 2nd, 3rd and 4th Complainants are elected Members of the County Assembly of Nyandarua and are members of the Respondent, Jubilee party.

2. The 5th, 6th and 7th Complainants are also members of the Respondent, Jubilee party and are nominated Members of the County Assembly of Nyandarua.

3. The 1st Interested Party is the acting Secretary General (SG) of the Respondent. The 2nd Interested Party is the acting Chairman of the Respondent, while the 3rd Interested Party is the Speaker of the County Assembly of Nyandarua.

4. On 6th February 2021, the Complainants received letters outlining particulars of their alleged offences in contravention of the Respondent’s laws, from the Jubilee Party Disciplinary Committee. The said letters required their appearance before the said Committee on 8th February 2021 at 9. 30 am at the Respondents’ Headquarters.

5. The Complainants sought an adjournment of the said date set for their appearance before the Disciplinary Committee both in writing and through their advocates who presented before the said Disciplinary Committee to seek the adjournment.

6. The sought adjournment was declined and the process proceeded culminating in a decision to suspend all the Complainants.

7. Aggrieved by this process and decision, the Complainants on 11th February 2021 filed the Complaint herein seeking orders for:-

a. A declaration that the disciplinary proceedings by the Respondent against the Complainants violated Articles 27, 47 and 50 of the Constitution;

b. A declaration that the disciplinary proceedings by the Respondent against the Complainants were unprocedural, and violated the Political parties Act, the Fair Administrative Action Act and article 13 of the Respondents constitution;

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

d. A declaration that the ratification or implementation of the decision of the disciplinary committee is unlawful and has no legal effect;

e. An order restraining the Respondent and the Interested Party by themselves, their agents and/or servants or employees from implementing the decision emanating from the Respondent disciplinary committee to suspend the Complainants from the party, House business or any committee in which they are members;

f. An order restraining the Respondent and the Interested Party by themselves, their agents and/or servants or employees from transmitting the recommendation to refer the three Complainants to the national party disciplinary organ and further restraining the party organs from deliberating on their expulsion from the party based on the impugned decision;

g. The immediate and unconditional reinstatement of the Complainants to the party and respective committees in which they are members;

h. Damages for loss of credit and integrity;

i. The costs of the complaint;

j. Interest on (g) and (h) at court rates.

8. Together with the Complaint 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. This Tribunal issued interim conservatory orders on the same day after certifying the matter urgent.

9. On the 1st day of March 2021, the Respondent, 1st and 2nd Interested Parties appointed their advocates who came on record under protest and lodged their Preliminary Objection (PO) on 2nd March 2021.

10. The 3rd Interested Party appointed their advocates who came on record on 3rd March 2021 and proceeded on 9th March 2021 to file an application seeking to have the interim orders issued by this Tribunal on 11th February 2021 set aside.

11. The said PO and the 3rd Interested Party’s application seeking to set aside this Tribunal’s earlier orders was heard together with the Complainants’ application. The PO failed and the applications were dispensed with thus paving way for filing of written submissions on the Complaint. The Complaint proceeded for hearing by way of oral highlights of the written submissions vide video link on 4th May 2021.

The Complainants’ case

12. It is the Complainants’ submission that the party disciplinary committee which purported to summon them and propose their suspension 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.

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

14. The Complainants contend that the said disciplinary committees’ determination to proceed despite their request, both in writing and through the physical presentations made by the advocates was contrary to the Regulations of the Disciplinary Committee which not only provide for service of a charge sheet 48 hours before the hearing, but which further, under Regulation 16 (a) and (c) and Regulation 20 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 before proceeding with the charges.

15. It is the Complainants submissions that 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.

The Respondent, 1st & 2nd Interested Party’s case

16. It is the Respondent, 1st and 2nd Interested Parties case that the disciplinary process at the County level was properly executed and a decision issued. However, it is their considered view that if the Complainants are dissatisfied with the said decision their next port of call need be the party organs at the national level and it is only after exhaustion of the party processes that they can come before this Tribunal.

17. It is their further submission that this Tribunal must not act in instances where the parties involved have not 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.

The 3rd Interested Party’s case

18. The 3rd Interested Party avers that the Complainants are engaged in forum shopping, deceit, fraud, misrepresentation and non-disclosure of material facts as at the hearing before the party disciplinary committee, the issue of non-appearance before the said party 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. This is in line with the party laws and procedures and the said disciplinary committee then proceeded to deliberate and rule.

19. Further it is the 3rd Interested Party’s case that the Complainants have an option to appeal to the party’s national organ, if dissatisfied with the party disciplinary committee’s decision.

Issues for Analysis and Determination

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

i. Whether this Tribunal has jurisdiction to hear and determine this matter

ii. Whether the Complainants’ disciplinary process complied with the party laws/Whether the Complainants were granted a fair hearing.

On jurisdiction of this Tribunal

21. As we address our minds to this issue, we are alive to our ruling delivered on 16th April 2021 wherein we overruled the preliminary objection on our jurisdiction arguing that it was based on contested factual issues that required to be ascertained and therefore did not constitute pure points of law. Nothing therefore precludes us from considering the jurisdictional issues raised during the hearing of this Complaint on merits and more so whilst ascertaining the contested facts.

22. The issue of jurisdiction is key as it is everything. In deed the learned court did in R v. Karisa Chengo [2017] eKLR, determine that;

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

23. It is thus imperative that before any other determination/action is taken the Political Parties Dispute Tribunal confirms that it is properly seized of the matter.

24. The Respondent, 1st and 2nd Interested Parties have challenged the Tribunal’s jurisdiction to hear and determine this matter on the ground that the party’s internal dispute resolution mechanism (IDRM) was not invoked or exhausted prior to filing this Complaint contrary to the provisions of Section 40 of the Political Parties Act (PPA) and the Jubilee Party Constitution. It is the Respondent’s, the 1st and 2nd Interested Party’s contention that the dispute at hand was handled at the County level and that the Complainants did not pursue the available mechanisms for appeal at the national level.

25. The Complainants 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.

26. Section 40 of the Political Parties Act (PPA) provides for the jurisdiction of the Tribunal as follows;

“(1) The Tribunal shall determine—

a. disputes between the members of a political party;

b. disputes between a member of a political party and a political party;

c. disputes between political parties;

d. disputes between an independent candidate and a political party;

e. disputes between coalition partners; and

f. appeals from decisions of the Registrar under this Act;

g.disputes arising out of party primaries.

27. The Act, further in subsection (2) of section 40, gives a condition for the jurisdiction of the Tribunal with regard to disputes covered in (a), (b), (c), and (e), to have them first subjected to internal political party dispute resolution mechanisms. (emphasis our own).

28. In essence, the instant dispute being between members of a political party and a political party, this Tribunal can only assume jurisdiction where it is demonstrated that a party’s IDRM has been explored. The only exception would be under circumstances where attempts to invoke IDRM are frustrated by the party as expressed in the case of Musalia Mudavadi & 4 others v Angela Gathoni Wambura & 2 others [2019] eKLR.

29. Article 13. 2 of the jubilee party constitution establishes a county disciplinary committee which as is stated at part 9 thereof shall “ hear matters referred to it by the County Chairperson, the County Secretary or the County Executive Committee”

30. We have also read article 13. 2 (10) of the said jubilee party constitution and note that it provides that “the County Disciplinary Committee shall have the power to fine, remove the whip, suspend, or recommend expulsion of any member or office bearer in a County, Constituency, Ward and Polling Centre Committee. Such suspension or recommendation for expulsion shall be reported to the National Executive Committee for adoption, ratification or variation”.

31. Article 13. 1 of the said jubilee party constitution establishes the National Disciplinary Committee (NDC). Pursuant to Article 13. 1(7), the NDC shall inter alia have appellate jurisdiction to hear appeals from the County Disciplinary Committee.

32. We note that the impugned decision of the Respondent subject hereof was communicated to the Complainants vide letters dated 9th February 2021. In the subject letters, it is expressly stated as follows:-

“… Do note that, the party’s appeals mechanisms are available to you in the event that you choose to appeal.

Further, the Committee has recommended that you be summoned to the National

Disciplinary Committee to consider your expulsion from the party…”

33. It is thus clear to us that the Complainants were made aware of their right to appeal against the impugned decision vide the existing party’s appeals mechanisms. Despite having been made aware of their right to appeal within the party’s structures, the Complainants herein filed the instant Complaint on 11th February 2021. No attempt has been shown, by the Complainants, or even averred in their pleadings, that they attempted to lodge an appeal to the national body as outlined in their party laws at any time between the date the county committee delivered its ruling and the date they lodged the compliant herein with this Tribunal. It was in fact their submission that no such appeal lay, yet as we have seen from their party laws, such appeal process is clearly outlined.

34. In Gabriel Bukachi Chapia v Orange Democratic Movement & another [2017] eKLR, the Court of Appeal held as follows:-

“… In this case, however, the dispute is between a member of the political party and the political party and falls under Section 40(1)(b) of the Act and is required, under Section 40(2) of the Act to be heard by the party’s internal dispute resolution mechanism before the PPDT can take cognizance of it. There is ample authority for the proposition that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be followed. [See Speaker of the National Assembly vs. Hon. James Njenga Karume, Civil Application No. 92 of 1992 (2008) 1KLR 425 and also Kimani Wanyoike vs. Electoral Commission & another [1995] eKLR]…The learned Judge of the High Court was therefore right in upholding the decision of the PPDT that the complaint before the PPDT was premature. As submitted by the respondents, no material was presented either before the PPDT or the High Court by the appellant to support the assertion that the 1st respondent’s National Appeals Tribunal was not operational as at 5th May 2017 when the appellant says he learnt with shock that the 2nd respondent had been declared to be the 1st respondent’s nominee for the position in question…”

35. The holding in the above case of Gabriel Bukachi Chapia was cited with approval in the case of Clerk, Nairobi City County Assembly v Speaker Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] eKLR,.

36. Taking into consideration the foregoing reasons and the findings in the above cases, and in the absence of any evidence by the Complainants to demonstrate that their attempt to invoke IDRM was frustrated, we find that jurisdiction cannot, at this stage vest in this Tribunal. This Tribunal is not properly seized of jurisdiction and we accordingly uphold the Preliminary Objection.

37. Consequentially this Complaint be and is hereby struck out for want of jurisdiction. As for the costs, we order that each of the parties herein bears their own costs.

It is so ordered.

DATED AT NAIROBI THIS 10TH DAY OF MAY 2021

DESMA NUNGO

(CHAIRPERSON)

___________________

MILLY LWANGA ODONGO

(MEMBER)

PAUL NGOTHO

(MEMBER)

DR. ADELAIDE MBITHI

(MEMBER)