[2023] KEPPDT 1259 (KLR)

Munuku v Amemba & 2 others (Complaint E002 (KKG) of 2023) [2023] KEPPDT 1259 (KLR) (19 December 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1259 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E002 (KKG) of 2023

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

December 19, 2023

Between

Fredrick Ojiambo Munuku

Complainant

and

Paul Odhiambo Amemba

1st Respondent

Office of the Registrar of Political Parties

2nd Respondent

National Reconstruction Alliance Party

3rd Respondent

Judgment

Introduction 1. The Complainant is a male adult of sound mind, a bona-fide member and the Chair of the National Reconstruction Alliance Party (NRA), the 3rd Respondent herein, a political party duly registered with the Registrar of Political Parties, the 2nd Respondent herein, under the Political Parties Act, 2011 (the PPA).

2. On 3rd August 2023, the Complainant issued notice to convene a National Delegates Convention (NDC) of the 3rd Respondent on 25th August 2023, which NDC was conducted as scheduled. It is not until the 20th September 2023, when the Complainant came to learn that there was yet another notice in the Citizen Weekly placed by the 1st Respondent dated 10th August 2023, calling for the 3rd Respondent’s NDC on 24th September, 2023, which NDC was also held as scheduled.

3. Aggrieved by the afore-going actions of the 1st Respondent, the Complainant filed the Complaint herein dated 22nd September 2023, which Complaint was subsequently amended vide Amended Complaint dated 25th September 2023 (hereinafter referred to as the Complaint), and he seeks the following reliefs from this Tribunal:-i.That this Honorable Tribunal be pleased to issue an order declaring that the 1st Respondent had no power to call for the NDC meeting of the NRA Party.ii.This Honourable Tribunal issue a declaration that the NDC meeting held on 24th September, 2023 is illegal and a nullity for being conducted in breach of the NRA Constitution.iii.This Honourable Tribunal issues an order of permanent prohibition restraining the 2nd Respondent from acting on, effecting or implementing the resolutions of the NDC held on the 24th day of September 2023.

4. The Complaint was filed together with a Notice of Motion Application dated 22nd September 2023, which was subsequently amended vide Amended Notice of Motion Application dated 25th September 2023 (hereinafter referred to as the Application) under Certificate of Urgency. The initial application dated 22nd September 2023 was placed before the Tribunal on 25th September 2023 for directions when orders were issued to the following effect: -i.THAT the Notice of Motion application dated 22nd September 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only.ii.THAT the NRA Party to be joined in these proceedings as the 3rd Respondent and the pleadings to be amended accordingly.iii.THAT the Amended Statement of Complaint and Notice of Motion application be served upon the Respondents and the NRA Party within three (3) days of the date hereof.iv.THAT the Respondents to file and serve their response(s) to the Application within seven (7) days of the date of service.v.THAT corresponding leave is granted to the Complainant/Applicant to file and serve further reply if need be within three (3) days of service.vi.THAT the Notice of Motion Application be listed for mention on 11th October 2023 at 2. 30pm to check on compliance and for further directions as to hearing.vii.THAT pending the inter-partes hearing and determination of the Application, this Honourable Tribunal hereby issues conservatory orders staying the decision or resolutions of the NDC meeting of the NRA as called by the 1st Respondent and held on Sunday the 24th day of September 2023. viii.THAT pending the inter-partes hearing and determination of this Application, the 2nd Respondent be and is hereby restrained/prohibited from acting on, implementing or giving effect to the communication and any other decision or resolution passed on the 24th day of September 2023 in an NDC meeting called and held by the 1st Respondent.

5. Agutu & Company Advocates filed a Notice of Appointment of Advocates dated 26th September 2023 on behalf of the 3rd Respondent, and subsequently a Notice of Motion Application dated 11th October 2023 (the second Application) seeking to inter alia restrain the firm of K. Walumbe & Company Advocates from representing the 3rd Respondent. K. Walumbe & Company Advocates filed a Memorandum of Appearance dated 3rd October 2023 on behalf of both the 1st and 3rd Respondents together with a preliminary objection dated 3rd October 2023 (the PO).

6. Pursuant to the directions of this Tribunal, the PO and the second application were heard together and a ruling thereon delivered on 14th November, 2023. Vide the subject ruling, the PO was overruled and the second application was dismissed. Accordingly, both the firm of K. Walumbe & Company Advocates and Agutu & Company Advocates were allowed to represent the different leadership factions of the 3rd Respondent.

7. After delivery of the ruling, directions were issued on the Complaint and parties were directed to file their respective written submissions. Parties complied and hearing of the Complaint proceeded on 8th December, 2023.

8. During hearing, the Complainant was represented by Dr. Miyawa Advocate, the 1st Respondent was represented by Mr. Walumbe Advocate, and the 2nd Respondent was represented by Ms. Ndwiga Advocate. The 3rd Respondent was represented by both Mr. Agutu Advocate and Mr. Walumbe Advocate.

The Complainant’s Submissions 9. The Complainant relied on the Amended Complaint, his Affidavits filed herein and his Written Submissions dated 4th December, 2023. He contends that as the duly elected Chairperson of the NRA party, he, on the 3rd August 2023, acting with proper authority and having been directed by the 2nd Respondent, caused to be published in the Standard Newspaper a 21-day notice calling for the National Delegates Convention (NDC) of the NRA party to be held on the 25th August 2023.

10. The main agenda of the NDC was stated to be nomination of the National Executive Committee (NEC) members and to ratify the change of office location. The planning and organization of the NDC was done in consultation with all party officials including the 1st Respondent, the then National Secretary General.

11. Indeed, on 25th August, the NDC went well and new NEC members were nominated and elected into office as follows:i.National Chair: Fredrick Munukuii.Secretary General: Joseph Otsieno Barasaiii.National vice chairman: David Nina (ID: 29368774)iv.Deputy secretary General: Abdi Noor Aden Doke (ID: 34810546)v.National Organizing secretary: Boniface Namani (ID:vi.National deputy organising secretary: Dennis Munene. (ID: 33352192)vii.National treasurer: Irene Mwai (ID: 21587710)viii.National women’s leader: Agnes Musoli (ID: 9831913)ix.National youth leader: Patrick Mureithi. (ID:x.National deputy youth leader: Elmi Ummulkheir Mohamed (ID: 35806094).

12. To the surprise and consternation of the Complainant, on or about the 20th September 2023, the Complainant was informed that there was yet another notice dated 10th August 2023 that had been published in the Citizen Weekly by the 1st Respondent, purportedly acting as the National Secretary General (SG), calling for an NDC of the 3rd Respondent on the 24th September, 2023. The Complainant submitted that the purported calling of the NDC was illegal in law and under the 3rd Respondent’s constitution because:i.Under Article 11(5)(c) of the NRA Constitution, it is only the Chairperson who can call or convene an NDC and in his absence or inability, the Vice Chair.ii.The Secretary General has a duty to consult the Chairperson regarding the venue and agenda of the NDC but no role in convening the NDC (Article 11(5)(c) of the Constitution).iii.The Chairperson/Complainant made all attempts to consult the 1st Respondent with a view to holding the NDC but his pleas were to no avail.iii.The Chairperson needed no concurrence of the 1st Respondent to hold an NDC.iv.As the Chairperson, having consulted the 1st Respondent, and there being no response, he published a 21 days’ notice in the newspaper calling for the NDC.iii.An NDC duly called by the Chairperson was already called by notice on 3rd August 2023 and took place on the 25th August 2023. iii.As at the time of purportedly issuing the NDC notice on 10th August, the 1st Respondent had not consulted the Chairperson of the NRA party.

13. In response to the 1st Respondent’s contention that the NEC held a meeting on 3rd August 2023 and approved a special NDC to be held on 24th September 2023, the Complainant submits that if there was any NEC conducted, the entire proceedings of such a NEC and NDC meeting is totally illegal for the following reasons:i.The Chairperson must chair all NEC meetings as provided for at page 15 of the 3rd Respondent’s Constitution. The Complainant, who is the Chairperson, never sat through the purported NEC meeting.ii.A special NDC can only happen as an alternative to a general NDC and not as a first option.iii.There was no exceptional circumstances justifying the calling of a special NDC by the Secretary General at a time when a General NDC had been called by the Chairperson.iv.The 1st Respondent was aware of the previous consultations by the Chairperson inviting him to a meeting to hold an NDC but he ignored all those consultations.v.The Chairperson was bypassed in calling for a special NDC without any reason or justification.vi.The Chairperson never presided over the alleged meeting of NEC of 3rd August therefore the same is invalid and resolutions null and void.vii.Under paragraph 5(b)(ii) of Article 11, of the NRA Constitution, a special NDC can only be convened as and when the Chairperson in consultation with the National Management Committee deems it fit or a resolution of 2/3 of members of NEC which must be presided over by the Chairperson.viii.No proof of consultation of National Management Committee has been provided neither did the Chairperson preside over or convene the purported NEC.1. The Complainant went on to submit that the NDC called by the Complainant and held on 25th August 2023 was procedural and lawful in that it complied with the 3rd Respondent’s Constitution and Rules.2. On the allegations whether non-party members were elected into office, the Complainant submitted that formal approval of registered members of a party is done through the e-citizen system maintained by the 2nd Respondent, and that once this is done, the custodian of records is the 2nd Respondent and it is the 2nd Respondent who can adduce proof or not of entry into the record of a party. That under section 34 of the Political Parties Act the Registrar has the duty of: (d) verifying and making publicly available the list of all members of political parties; (da) keeping and maintaining a register of members of registered political parties. It is the 2nd Respondent who bears the duty of confirming or denying the true and existing members of the NRA party.

16. The Complainant submitted that all the officials of the NRA party who were elected on 25th August 2023 are members of the 3rd Respondent, and that for the allegation that they are not members, one must tender before this Court documents from the 2nd Respondent showing that they are not.

The 1st and 3rd Respondent’s Response and Submissions (by K. Walumbe & Company Advocates) 17. The firm of K. Walumbe & Company Advocates acting for the 1st and 3rd Respondents relied on their Affidavits on record and their Written Submissions dated 7th December, 2023.

18. On the issue of whether the NDC notice published in the Star Newspaper dated 10th August, 2023 is valid, the 1st and 3rd Respondents submitted that an NDC can be called by NEC or by the Vice Chair. They referred to Article 27 of the 3rd Respondent’s Constitution which provides that “…the first elections shall be conducted as decided by NEC in a resolution.” Furthermore, Article 11(5)(b)(ii) of the NRA Party Constitution provides that the NEC may call an NDC through a resolution by 2/3 of its members, and Article 11(5)(c)(i) of the NRA Party constitution provides that in the absence of the Chair, the Vice Chair may convene an NDC.

19. That the NEC, in line with the 3rd Respondent’s Constitutional provisions, resolved to call for an NDC meeting held on 3rd August, 2023. During the same meeting, NEC resolved that elections be held at the NDC. As such, the 1st Respondent, being the bona fide Secretary General of the party, proceeded to publish the notice for the NDC and outlined the agenda. Additionally, the Chairperson of the 3rd Respondent’s National Elections Board (NEB), proceeded to publish the notice for the party’s elections, as required under the party Constitution and Election & Nomination Rules. That the NDC was held and elections conducted as scheduled, and returns have been filed with the 2nd Respondent herein who is yet to review the same and make a decision regarding their legitimacy or otherwise.

20. The 1st and 3rd Respondents submit that since the 2nd Respondent has not reviewed the returns filed by the parties and made a decision on the same, this Honourable Tribunal should be reluctant to wade into the realm of reviewing the substance of the proceedings of the NDC. The first instance forum to review the returns should be the 2nd Respondent.

21. They further submit that the Complaint is not about validity of the elections conducted at NDC, but it is about whether or not the 1st Respondent had the mandate to call for an NDC, and maintains that the NDC was not called by the 1st Respondent but by NEC and convened by the Vice Chair of the Party. The 1st Respondent only caused the same to be published in the Star Newspaper on 10th August, 2023. It is their submission that once the Tribunal establishes that the NDC was properly called, it ought to leave the returns filed thereafter to be considered by the 2nd Respondent.

22. On the issue of the validity of the NDC conducted by the Complainant, the 1st and 3rd Respondents submit that the NDC called by the Complainant and elections conducted at the said NDC were a sham. From the onset, there are strict requirements under Article 27(c) of the NRA constitution relating to the first elections of the NRA party officials. The same could only have been conducted on a date determined by NEC through a resolution. There is no allowance for the Complainant to unilaterally call for elections.

23. That Article 81(e) of the Constitution of Kenya 2010, requires the electoral system to comply with the principle of free and fair elections which are: by secret ballot; conducted by an independent body; transparent; administered in an impartial, neutral, accurate and, accountable manner. The election purportedly conducted in the NDC called by the Complainant did not comply with the above stated principles. The elections were called by the Complainant who was also a contestant thus not impartial. The NEB which conducted the elections was chosen by the same contestants at the NDC thus rendering the said NEB partial. The said elections are impossible to verify since there was no list of registered delegates. Furthermore, voting was done by acclamation, whose results cannot be verified. They further contend that the basic requirement for any election to be conducted is to have a verifiable list of registered voters, and that in the present case, a verifiable list of registered delegates contemplated under Article 5 of the NRA constitution is mandatory.

24. The Complainant, acting in his capacity as the Chair of the 3rd Respondent, purports to have called for an NDC in which elections were conducted, new officials elected and thus the interim officials, including the 1st Respondent ousted from office. That the Complainant has produced minutes and a list of attendants at the said NDC who he alleges voted as delegates but he has not shown whether the said list of people who participated in the said elections were registered delegates; whether there was sufficient quorum of delegates to conduct an NDC; and whether the results of the elections by public acclamation can be verified. The 1st and 3rd Respondents submit that the list of attendants provided by the Complainant does not comprise of NRA party delegates. The people purportedly voted into office are not delegates and do not even qualify to vie and be elected as party officials.

25. On the issue of validity of the NDC conducted on 24th September, 2023 the 1st and 3rd Respondents submit that the same was properly called and convened, further that the same was conducted in accordance with the 3rd Respondent’s Constitution, the NRA Election and Nomination Rules, and the PPA. That upon publicizing the notice for NDC and agenda, the NEB chair proceeded to publish the notice for elections as required under rule 7 of the NRA Party Election and Nomination Rules. The notice was published in the Star Newspaper of 11th August, 2023; on the NRA party official website and announced on KBC radio. The 1st Respondent then filed the list of registered delegates with the 2nd Respondent for purposes of verification. Interested candidates were called upon to present their nomination papers to NEB for verification. The NEB chair published the campaign period on the NRA party website. On the day of the NDC, people in attendance were verified against registered delegates list to ascertain quorum and whether they qualified to vote. Voting was done and results announced by NEB. The returns were submitted to the 2nd Respondent who was estopped from considering the same by virtue of this Tribunal’s order. The 1st and 3rd Respondents further submit that in any event, the issue as to whether elections conducted at the NDC held on 24th September, 2023 complied with the law has not been raised before this Tribunal. Any person with a complaint on the same can present their grievances to the 2nd Respondent as contemplated under Section 20 of the PPA.

The 2nd Respondent’s Response and Submissions 26. The 2nd Respondent filed their Memorandum of Appearance dated 9th October 2023 together with their Replying Affidavit sworn by Geraldine Mukele, an Advocate of the High Court of Kenya and a Senior Compliance Officer of the 2nd Respondent, on 9th October 2023.

27. It is the 2nd Respondent’s contention that they received counter filings from the Complainant and the 1st Respondent which necessitated the issuance of the 2nd Respondent’s letter dated 13th July 2023 to address the underlying issues within the 3rd Respondent. In the letter, the 2nd Respondent directed the 3rd Respondent to among other issues, hold a National Delegates Convention. In compliance with this directive, the Complainant and the 1st Respondent both held and submitted their respective NDC returns on 4th October 2023 and in response, the 2nd Respondent acknowledged receipt of both sets of the NDC returns vide their letter dated 6th October 2023 and appreciated the import of the conservatory orders issued by this Tribunal.

28. The 2nd Respondent’s said letter dated 6th October 2023 acknowledged knowledge of the instant Complaint challenging the conduct of the NDC held on 24th September 2023 and the interim orders issued, and stated that the 2nd Respondent would only act on the merit of the parties’ respective NDC returns upon hearing and determination of this Complaint.

The 3rd Respondent’s Response and Submissions (by Agutu & Company Advocates) 29. In response to the Complaint and the Application, the 3rd Respondent’s Chief Executive Officer, Mr. Justice Paul Ayiengah, swore a Replying Affidavit on behalf of the 3rd Respondent. The 3rd Respondent also filed Written Submissions dated 7th December, 2023. The 3rd Respondent is in support of the Complaint.

30. On the issue of whether the 1st Respondent has powers under the 3rd Respondent’s Constitution to convene an NDC on behalf of the Party, the 3rd Respondent relies on the provisions of Article 7 of the NRA Constitution and submits that the mandate of the 1st Respondent is to ensure meetings take place as provided under the 3rd Respondent’s Constitution. The 3rd Respondent further relies on Article 11 of their constitution and submits that this explains how the Secretary General shall ensure that NDC takes place as provided under Article 7 of the 3rd Respondent’s Constitution.He submits that the quoted provisions of the 3rd Respondent’s Constitution do not in any way envisage a situation where the 1st Respondent whether expressly or impliedly can convene or even cause the convention of any NDC on behalf of the 3rd Respondent. That the 1st Respondent acting in the capacity of the 3rd Respondent’s Secretary General has no powers incidental or otherwise to convene an NDC under any circumstance on behalf of the 3rd Respondent.

31. On the question under what circumstance can a National Deputy Chairperson of a Party act/execute the duties of the National Chairperson of the Party with respect to convening an NDC, the 3rd Respondent submits that this can only be done when the National Chairperson is absent or unable, and the 1st Respondent has not shown any evidence of the same.

Issues for Analysis and Determination. 32. Flowing from the parties’ pleadings and submissions on record, we have isolated the following key issues for determination: -i.Whether the Complaint is premature before the Tribunal?ii.Whether the NDC Meeting of 24th September 2023 was convened and/or held in compliance with the PPA and the party laws.iii.What are the appropriate reliefs to grant?

Whether the Complaint is premature before the Tribunal? 33. As we consider this issue, we remain alive to the fact that the 1st Respondent and the 3rd Respondent (represented by Mr. Walumbe Advocate of the firm of K. Walumbe & Company Advocates) had earlier in these proceedings raised a preliminary objection (PO) to our jurisdiction on various grounds including the question whether the matter was premature before the tribunal, arguing that it was still pending resolution before the 2nd Respondent.

34. We note that at the hearing of the PO, the 2nd Respondent, however, elected not to submit substantively on the PO and instead stated that they would abide by the findings of the tribunal. We nevertheless considered the rest of the parties’ submissions on the PO and found that the PO was not a proper one as there were numerous contested facts that needed to be ascertained and this could only be done after hearing the Complaint substantively. In essence, we did not delve into the merits of the PO.

35. Noting that the question of the prematurity of the Complaint still featured in the pleadings herein and the parties’ submissions on the Complaint, and having heard all parties substantively, nothing therefore precludes us from considering the merits of the question whether this matter is premature before us for the alleged reason that it is a dispute that is still pending resolution before the 2nd Respondent.

36. From our evaluation of the record, all parties hereto seem to allude to the fact that the 3rd Respondent has had a series of underlying issues that necessitated the involvement of the 2nd Respondent even prior to the filing of the instant Complaint. Indeed in consideration of all the issues, the 2nd Respondent authored a letter dated 13th July 2023 addressed to both the Complainant and the 1st Respondent herein concerning the simmering dispute within the 3rd Respondent.

37. From the letter, it is evident that the issues in dispute have been diverse including issues to do with resolutions from an earlier NDC of 21st September 2022; the party Constitution; Membership status of NEC members; holder of the position of the Vice Chairperson; Bank Signatories; Office Inspection; and Correspondence with the 2nd Respondent.

38. In consideration of all the issues, the 2nd Respondent’s issued directions in the said letter dated 13th July 2023 as follows: -“…Directions from the Registrar.Since the NRA was fully registered, it has never held party elections which is the only way to appoint substantive officials of the party. At the time of full registration on 2nd February 2021, all the officials of the party assumed their positions on interim basis and therefore the party has no gazette officials. It is a statutory requirement for the party to hold election and appoint officials substantively. In this respect, the Registrar directs that party as follows: -a.That the party to convene National Delegates Convention (NDC) within ninety (90) days from the date of this letter to conduct party elections and put in substantive officials.b.That the authorized bank signatories Chairperson, Treasurer, Secretary general, and Executive Director as per the NRA Constitution and records held by this office c) That the effective and operative NRA Constitution is the one received by this office on 10th July 2020. c.That all correspondences with the Office of the Registrar shall only be accepted if submitted by the Secretary general and/or the Chairman.d.That all interim officials of the party should work together in preparation for the NDC in line with party Constitution; party election and nomination rules; and PPA 2011. e.That unless allowed above, all matters stand closed until the return of the NDC are filed in this Office.f.That failure to adhere to the above directions, an action will be taken against the partyg.That any party official dissatisfied with the above or any previous decisions of the Registrar is at liberty to invoke the provisions of Section 40 of the PPA, 2011 for legal redress….”

39. From the foregoing directions, it is clear that the 2nd Respondent provided a clear path for the party to follow towards the resolution of the outstanding issues. Of significant importance is the direction issued to the parties hereto and all interim party officials to work together and conduct an NDC, and that ‘all matters stand closed until the return of the NDC are filed’ in the 2nd Respondent’s office.

40. We have considered that in the dispute subject hereof challenging the legality of an NDC that was held on 24th September 2023, the 1st Respondent has in response claimed that the NDC was in concurrence with the directions of the 2nd Respondent. We have further considered that the Complainant has also alluded to an NDC which was conducted on 25th August 2023 which he claims was conducted in concurrence with the directions of the 2nd Respondent.

41. We have in addition considered that as per the 2nd Respondent’s letter dated 13th July 2023, the 3rd Respondent was expected to file returns of its NDC. As confirmed by the 2nd Respondent in her response to this Complaint, there are already counter-filings by both parties. A determination will therefore have to be made on the returns of the NDC and/or whether the same were in concurrence with the directions of the 2nd Respondent. As of now, the matter is pending before the 2nd Respondent who is yet to consider and make a determination thereon.

42. Taking into consideration the totality of the facts and circumstances of this case, most importantly, the evident engagement of the 2nd Respondent to resolve the issues bedeviling the 3rd Respondent prior to the filing of this Complaint, we are of the considered opinion that we should allow the 2nd Respondent to first conclude on the elaborate process that she had already mapped out before this Complaint was filed. Pursuant to this process, the next stage was to have the 2nd Respondent check on compliance with her directions as she considers the returns of the 3rd Respondent’s NDC counter filings and make a determination on the matter, where-after any aggrieved party may be at liberty to apply. Accordingly, we find that the dispute is premature before us.

43. Having found that this Complaint is premature, we shall not delve into the merits of the legality of the NDC meeting of 24th September 2023 and leave the matter for consideration before the 2nd Respondent in the first instance.

44. On the question of costs, noting that the dispute is still pending resolution before the 2nd Respondent, we shall not award costs in favour of any party. Each party shall bear their own costs of these proceedings.

What are the appropriate reliefs to grant? 45. In light of the foregoing, we order as follows:-i.The Amended Complaint filed herein be and is hereby struck out.ii.Each party to bear its own costs of these proceedings.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF DECEMBER 2023. …………………………………………………HON. DESMA NUNGO HSCCHAIRPERSON...................HON. STEPHEN MUSAUMEMBER……………………………………………………….HON. MUZNA JINMEMBER……………………………………………………….HON. ABDIRAHMAN ADAN ABDIKADIR