[2023] KEPPDT 1269 (KLR)

Musamali v Nyaribo; United Progressive Alliance Party (Interested Party) (Complaint E005 (NRB A) of 2023) [2023] KEPPDT 1269 (KLR) (Civ) (26 May 2023) (Ruling)

Neutral citation: [2023] KEPPDT 1269 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E005 (NRB A) of 2023

D. Nungo, Chair, S Musau & T. Chepkwony, Members

May 26, 2023

Between

Eliki Tom Musamali

Complainant

and

Amos Kimwomi Nyaribo

Respondent

and

United Progressive Alliance Party

Interested Party

Ruling

Introduction 1. This Complaint was filed together with a Notice of Motion Application dated 19th April 2023 under certificate of urgency. The application was certified urgent and directions issued for service, filing of responses, and hearing of the application on 25th April 2023 inter partes.

2. On 25th April 2023 when the application came up for hearing, the Respondent and Interested Party had not complied with the tribunal’s directions and they sought for more time to file their responses. The Tribunal adjourned the matter to allow parties time to file their documents. When the matter came up for hearing of the application on 4th May 2023, the Respondent indicated that they had filed a preliminary objection in response to the application.

3. However, with respect to the interested party, two lawyers from two different law firms, namely, Mr. Julius Anyoka from Anyoka & Associates and Ms. Sinana from Sinana & Company Advocates appeared and claimed to have instructions to represent the interested party. The firm of Anyoka & Associates had filed a notice of motion application under urgency seeking to inter alia bar the Complainant’s Counsel, Mr. Dennis Anyoka, from representing the Complainant. There was also a preliminary objection filed by the same law firm. The firm of Sinana & Company Advocates on the other hand claimed that they were in the process of filing their documents.

4. In light of the developments, more particularly the preliminary objections to our jurisdiction, we directed that we would prioritize the hearing and determination of the preliminary objections on jurisdiction and the contest on representation of the Interested Party. Parties were accordingly directed to file their respective affidavits on the two issues and oral submissions on the same were made on 16th May 2023.

5. During the oral submissions, the Complainant was represented by Mr. Dennis Anyoka Advocate and the Respondent was represented by Mr. Mwendani Advocate. Mr. Julius Anyoka Advocate and Ms. Sinana Advocate made their oral submissions on representation of the Interested Party and also on the PO. This ruling is thus in respect of the PO on jurisdiction and contest on representation of the Interested party.Submissions by the Respondent on the PO and Contest on Representation of the Interested Party

6. The Respondent filed his preliminary objection dated 26th April 2023. The same is based on the following grounds that:-i.The application dated 19th April 2023 and the Complaint annexed thereto are premature for failure to exhaust Internal Dispute Resolution Mechanisms (IDRM) within the tenets of section 40 of the Political Parties Act.ii.The issues raised in the application dated 19th April 2023 are functus officio, the Special National Delegates Meeting having already been convened and discharged its mandate. iii. This tribunal is devoid of jurisdiction to entertain the instant application and the complaint thereto.

7. In support of his preliminary objection, the Respondent has sworn an Affidavit dated 15th May 2023. According to the Respondent, the Complainant in his Complaint Form 1A simply stated that efforts to procure an amicable resolution through engagement by the Interested Party had not borne any fruit, and that there is absolutely no reference to an IDRM having actually taken place in his affidavit in support of the Complaint. According to the Respondent, the instant dispute is on the NDC and not the internal party wrangles and that no evidence has been produced to demonstrate that the dispute subject hereof was referred to IDRM in the first instance.

8. He submits that the averments at paragraph 3 to 11 of the Complainant’s Further Affidavit and the annexures referred to are falsehoods and clearly made up and produced to pre-empt the preliminary objection by attempting to advance a case that there was an attempt at IDRM by the Complainant.

9. It is his submission that the various correspondences between the Complainant, the Party Leader and the Registrar of Political Parties (RPP) are consistent that the dispute had not actually been subjected to IDRM and that such proceedings had not commenced. To this end, he referred to various documents, namely, the letter by the Complainant dated 12th April 2023 which states that the dispute has been forwarded to IDRM for determination; the notice by the Complainant dated 18th April 2023 calling for a special NEC meeting which has no reference to any IDRM report or proceedings; the letter by the Party Leader in response to the Complainant’s letter dated 18th April 2023 where the Party Leader is reminding the Chairman that the dispute has to go through IDRM process of the party constitution and is clearly not aware of any process that may have taken place; the letter by RPP dated 19th April 2023 where the Registrar in the last paragraph is directing the parties to pursue IDRM; the letter by the Party Leader dated 19th April 2023 which shows that he is clearly not aware of any IDRM process since he is trying to comply with the Registrars directive to pursue an amicable settlement; the letter by the Chairman to the Party Leader dated 19th April 2023 where the Chairman threatens that he shall invoke IDRM to ventilate the dispute; and the minutes of the Special NEC meeting held on 19th April 2023 which shows that IDRM was proposed and considered in that meeting in which Mr Dennis Moturi Anyoka’s name was proposed and endorsed as the Chairman.

10. That notwithstanding, even if it were to be said there was IDRM, the said IDRM is not the appropriate organ desired by the party Constitution. The same could not be of effect since the NEC was dysfunctional and non-compliant. Further, a disputant or Complainant, being the chairman, cannot preside over a meeting whose effect is to provide rules of process and mandate to a standing committee of the party to appoint persons to the committee including the chair to administer discipline and dispute he has raised. That alone purges the principles of equity and natural justice. The said committee, disciplinary or IDRM are unconstitutional and of no effect.

11. The Respondent is in support of the NDC and he maintains that the events leading to the NDC are within the provisions of Articles 7. 3.3; 7. 3.4; 7. 3.5; 7. 3.6; 7. 3.7 and 7. 3.8 of the party constitution as detailed in his Affidavit. The party was required to file returns to the Registrar of Political Parties which office scrutinizes the process and renders itself on issues of compliance pursuant to Section 34C. This mandate cannot be ceded to the Complainant or the tribunal. It is therefore premature, at this point in time, to scrutinize the process whereas the returns of the same are before the appropriate organ pursuant to the law. Section 34C(4) of the PPA requires a party dissatisfied of any changes as to records of the party to approach this tribunal on its appellate jurisdiction from the decision of the RPP.

12. On the question of representation of the Interested Party, the Respondent submitted that all correspondences from the party are drawn from the office of the Secretary General. The tribunal was referred to a letter confirming that Michael Monari was the Secretary General and there was therefore no vacancy in that office. Accordingly, instructions issued by the Secretary General Mr. Michael Monari to the firm of Anyoka & Associates to represent the Interested Party should stand.

Submissions by the firm of Anyoka & Associates Advocates on the PO and the contest on Representation of the Interested Party 13. The firm of Anyoka & Associates filed their PO dated 4th May 2023 raising the following grounds: -i.This Complaint contravenes Section 40 of the Political Parties Act, 2011 where the Tribunal lacks jurisdiction to handle the said matter as the Complainant has evaded the mandatory step of settling a dispute through the parties Internal Dispute Resolution Mechanism (IDRM).ii.The Complaint is premature, unfounded and is an abuse of abuse of the court process.

14. They have also filed Replying Affidavit sworn by Michael Monari Ombabah on 4th May 2023. Mr. Monari avers that he is the Secretary General of the Interested Party and he has annexed a confirmation letter dated 2nd May 2023, a copy of his identity card, and his letter of authority to the firm of Anyoka & Associates to act for the Interested Party in the Complaint herein. He referred to paragraph 3 of the Affidavit sworn by Josiah Omolo Odanga which acknowledges that for an appointment or change of officials to take effect, the Registrar of Political Parties (RPP) must confirm and update the records.

15. Mr. Monari submits that the purported ground for removal of Mr. Monari on the basis of his appointment to Kenya Literature Bureau is not tenable and that the issue had been litigated before in Katiba Institute vs Attorney General High Court Petition No. 331 of 2016 where it was held that the positions of Chair and board members of parastatals and state corporations were not offices in public service. Assuming that the appointment violated the PPA, the purported removal, suspension or expulsion is premature and there is no evidence that the purported change from Mr. Monari to Mr. Odanga was communicated to the RPP in order for it to take effect under Section 34 of the PPA. It is thus clear that the Complainant is attempting to bypass the RPP by assuming role of the regulator himself. As per communication from the RPP in Monari’s Affidavit, it is confirmed that as at 2nd May 2023, Mr. Monari is the Secretary General of the Interested Party and this position has not been set aside. Accordingly, having been appointed by Mr. Monari, the firm of Anyoka & Associates is the one with proper instructions to represent the Interested Party and that the Notice of Change by Sinana & Company Advocates and any other submissions ought to be struck out.

16. It is his contention that the tribunal lacks jurisdiction to handle the matter without proof that it has been conclusively dealt with by the party’s Internal Dispute Resolution Mechanism (IDRM). He is not aware of any complaint in regards to the notice dated 13th March 2023 that was filed and determined by the party’s IDRM, or any efforts made by the Complainant to deal with the matter internally. In any event, efforts by the Registrar of Political Parties and the Respondent to have an amicable resolution for the dispute were never embraced by the Complainant despite him being aware of the existence of such mechanism. He has produced copies of various letters dated 11th April 2023, 17th April 2023, 18th April 2023, 19th April 2023 attesting as such. According to Mr. Monari, the efforts by the Respondent including that on the RPP were ignored and by the time the RPP and the Respondent made a formal plea to the Complainant for an amicable resolution of the objections to NDC, the same had been overtaken by event since the Complainant had already approached the tribunal.

17. He maintains that as at 19th April 2023, no dispute had been referred to IDRM and that all minutes purporting to refer to IDRM proceedings are a forgery and were backdated to pre-empt the PO. In any event, the correspondences and minutes referred to in the Complainant’s Further Affidavit emanated from the Complainant and Mr. Odanga and the same had no force of law as that they should have emanated from Mr. Monari, the legitimate Secretary General. It was further submitted that the Complainant’s correspondences show that he is the Complainant, investigator, prosecutor, judge, and the executive who has taken it upon himself to enforce orders of the judge.

18. He maintains that in any event the Complaint has not been brought in good faith since Complainant has used his position to defy and frustrate the directive or advisory by the RPP, and efforts to hold NDC to give members an opportunity to ratify a constitution that best serves their interest and electing officials of their choice. The NDC was properly convened pursuant to Art.7. 3.4 and 7. 3.5 of the party constitution, and the Respondent and Interested Party acted on a request as provided by the party constitution therefore fully complying with the procedure provided.

Submissions by the firm of Sinana & Company Advocates on the PO and the contest on Representation of the Interested Party 19. Sinana & Company Advocates relied on their Affidavit sworn by Josiah Omolo Odanga on 11th May 2023.

20. On jurisdiction, it was submitted that the party is governed by the party Constitution, the Constitution of Kenya, the PPA and other laws. The party Constitution was amended and the provisions on dispute resolution by way of arbitration and mediation were removed. That currently, disputes relating to the party are addressed through internal dispute resolution committee and if the same fails it is referred to the tribunal.

21. Tribunal was reminded that Section 40(2) of the PPArefers to an attempt at IDRM and the tribunal has pronounced itself on what amounts to an attempt. There were indications in the minutes of 17th March 2023 that the party was pursuing IDRM and that the same is still progressing. Reference was made to the Complainant’s Affidavit which annexed various notices served upon the Respondent inviting him for meetings to discuss the prevailing dispute. It was noted that in one of the responses, the Respondent replied by stating that the notice was null and void. Further, in an attempt to resolve the dispute amicably, the party invited the RPP to sit in a meeting and in the RPP’s letter of 27th January 2023, the RPP stated issues that were discussed and gave appropriate directions.

22. It is thus submitted that the Complainant has demonstrated an attempt at IDRM and that his attempts have been frustrated by the Respondent. In the circumstances, the tribunal has jurisdiction to hear and determine the instant complaint.

23. On the question of representation, it was submitted that it was not contested that Mr. Monari was previously appointed as Ag. Secretary General, the previous SG Mr. Geoffrey Morara having resigned as SG. The said appointment was done by NEC in a special meeting held on 5th July 2022 and it was on an interim basis. This fact was communicated to the RPP. Subsequently, vide Gazette Notice No. 2880 annexed to Mr. Odanga’s Affidavit, Mr. Monari was appointed as member of board of Kenya Literature Bureau for a period of 3 years with effect from 10th March 2023. By virtue of that appointment, Mr. Monari became a public officer as defined under the Constitution and pursuant to Section 12 of the PPA, he was disqualified from holding any political party office or engaging in political party activities from the effective date of his appointment. This was brought to the attention of the RPP in a letter dated 17th March 2023 and the RPP noted the appointment and asked the party to notify her office of resolutions emanating from planned NEC meeting. There was a special NEC meeting on 17th March 2023 as per the minutes produced and the meeting resolved to appoint Josiah Odanga as Ag Secretary General to replace Mr. Monari. Despite Mr. Monari’s appointment as public officer, he has refused to relinquish his position as SG.

24. Mr. Josiah Odanga, having been duly appointed and being the Ag. SG, he appointed the firm of Sinana & Company Advocates to take up the conduct of the matter on behalf of the interested party. The firm of Anyoka & Associates has previously been involved in the activities of the party and cannot have been appointed by a person without powers to appoint, and who is also acting in cahoots with the Respondent to defeat justice. The firm of Sinana & Company Advocates therefore maintain that they filed their Notice of Change of Advocates regularly and the previous lawyers should cease from appearing as their firm is duly appointed by the current Ag. SG to represent the interested party.

Submissions by the Complainant on the PO and Contest on Representation of the Interested Party 25. The Complainant relied on his Further Affidavit sworn on 4th May 20923 in response to the question of jurisdiction. He submits that under Section 40(2) of the PPA, all that is required is evidence of an attempt at IDRM, which evidence has been detailed in his Further Affidavit.

26. He avers that he filed a Complaint to the party concerning the dispute subject hereof vide his letter addressed to the Chairman of the party’s IDRM received by the party on 30th March 2023. That upon receipt of the letter, the party’s IDRM held a meeting on 31st March 2023 when directions were issued for hearing of the dispute before IDRM on 4th April 2023. The Complainant attended the IDRM hearing and presented his case. The Respondent on the other hand failed to attend the hearing despite service.

27. As per the minutes of the IDRM produced, the committee deliberated on the dispute and found as follows: -i.Hon. Amos Nyaribo having been informed formally to attend the meeting but failed to attend was a clear indication that he did not respect the party constitution or its organsii.The dispute referred to the committee remained unresolved as it had not been handled to conclusion, Nyaribo having failed/refused/ and/or neglected to appear before the committee. All facts presented before the committee were not rebutted.iii.The matter be referred back to NEC for further action.

28. It is the Complainant’s further submission that the party constitution does not require that dispute be referred to NEC. According to the Complainant, the minutes of 19th April 2023 alluded to an endorsement that Mr. Dennis Anyoka would handle IDRM as Chairperson, and that the subject minutes did not state that IDRM was to commence at that time. Nothing shows that the dispute had not started.

29. He submitted that whereas it is alleged IDRM was established on 19th April 2023, it is evident in the letter from the RPP of 27th January 2023 annexed to the Affidavit of Josiah Odanga that several minutes were forwarded and from the minutes, an IDRM committee had been established. He submits that the meeting of 19th April 2023 could have been a discussion to assess whether there was anything else to be done in terms of disciplinary, that IDRM committee does not control NEC.

30. It is further submitted that there is a conflict between RPP and NEC as RPP has given different advisories. Earlier on RPP did not recognize Mr. Monari as SG under Section 12 of PPA and in a subsequent letter she now recognizes him. The alleged SG did not attend the meeting of the NEC as per the minutes annexed and there is nowhere he objects to his leaving the party and becoming a public officer.

31. The Complainant accordingly maintains that there has been fair attempt at IDRM and in the circumstances, this tribunal has jurisdiction to hear and determine this Complaint.

32. He further submits that in any event, for a PO to be a proper one in law, the principles of the Mukisa Biscuit Case ought to apply. That a PO must be on a pure point of law and it crosses to the realm of evidence and affidavits, the same is not a proper PO and should be overruled.

33. On representation of the interested party, it is the Complainant’s submission that appointment of lawyers should be done through NEC and not an individual. In the absence of minutes of a meeting appointing Anyoka & Associates Advocates, the law firm lacks locus standi in that regard.

Issues, Analysis and Determination 34. We have isolated the following key issues for determination: -i.Whether the Tribunal has jurisdiction to hear and determine this matter?ii.Which firm of Advocates is legitimately on record for the Interested Party in this matter?iii.Who should bear the costs?

Whether this Tribunal has jurisdiction to hear and determine this matter? 35. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”

36. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders also defines jurisdiction as follows:By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance 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 cognisance 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.

37. The place of jurisdiction is settled in law as demonstrated by the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) 1, where Justice Nyarangi J held that:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing.Jurisdiction must be acquired before judgment is given.”

38. Notably, this Tribunal is alive to the importance of the right to representation. Sacrosanct is the right that it is enshrined under Article 50 (2) of the Constitution of Kenya, 2010. However, as demonstrated above, jurisdiction is sacrosanct as it pertains to the powers that a Tribunal has to hear and determine matters that are brought before it. Without jurisdiction, any orders made by this Tribunal amounts to a nullity ab initio. As such, before this Tribunal delves into the merits of the case including that of the Interested Party’s representation, we must satisfy ourselves that we are possessed of the jurisdiction empowering us to do so.

39. The jurisdiction of this Tribunal flows from Article 169 (1) (d) of the Constitution of Kenya as read together with Section 40 of the Political Parties Act, 2011, which provides 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 the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e), or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.(3)A coalition agreement shall provide for internal dispute resolution mechanisms.

40. From the foregoing provisions of Section 40(1)(f) as read together with Section 40(2) of the Political Parties Act, it is clear to us that this is a dispute between members of the party thus falling within the provisions of Section 40(1)(a) and (b) of the PPA and that reference of the dispute to the party’s internal dispute resolution mechanism (IDRM) is required prior to moving the tribunal. All parties are clear on this. The main contention, however, is whether IDRM was attempted in this matter.

41. As we consider the parties’ rival submissions on whether there was an honest attempt at IDRM, our attention has also been drawn to the meaning of a preliminary objection.A preliminary objection was defined in the case of Mukisa Biscuits Manufacturing Company limited v West End Distributors Limited [1969] EA 696 as:“... So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… 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’.”

42. The above position has been fortified in numerous judicial authorities including the case of Oraro v Mbaja (2005) KLR 141 and County Government of Migori vs INB Management Consulting Ltd [2019] eKLR.

43. In a nutshell, for a preliminary objection to succeed, it must pass the test of being a preliminary objection, thus: -i.The facts raised by one party must be accepted by the other party.ii.It must be a matter of law capable of disposing off the suit.iii.It must not raise any factual arguments which require proof by way of evidence.iv.It must not call upon the court’s discretion.

44. Flowing from the parties’ affidavits and submissions as already highlighted above, it is evident that the contested question as to whether or not there was an honest attempt at IDRM is grounded on various contested factual allegations that require ascertainment. We cannot therefore assume at this juncture that the facts pleaded by either side are correct and/or accepted by the other party. We will for instance give examples of only four out of the many contested factual allegations/arguments that we cannot determine at this stage before hearing the parties substantively with a view to ascertaining the facts.

45. Firstly, the affidavits and the parties’ submissions bring out a contest as to the applicable version of the party constitution and/or mode of IDRM provided for under the party constitution. Whereas the Respondent claims that the party constitution makes provision for arbitration and mediation as modes of IDRM, the Complainant’s position is that the party constitution was amended and the current constitution did away with arbitration and only provides on IDRM committee. The tribunal is not able to make a finding on the applicable party IDRM at this at this preliminary stage bearing in mind that there is even a contest on the applicable party constitution.

46. Secondly, the documents produced by the Complainant to demonstrate IDRM have been contested by the Respondent who claims that the letter dated 31st March 2023 and the purported IDRM proceedings arising therefrom are falsehoods and made up and produced to pre-empt the preliminary objection by attempting to advance a case that there was an attempt at IDRM by the Complainant.

47. Thirdly, there is a contradiction on the content of the documents relied on to demonstrate IDRM. Whereas some documents show that IDRM was conducted and concluded and the matter referred back to NEC, the minutes of the meeting of NEC of 19th April 2023 relied on by the Complainant indicate that the matter was referred to IDRM and Mr. Dennis Anyoka Muturi endorsed to lead the IDRM process, which process may also be presumed to have commenced, if at all, after 19th April 2023. The purported IDRM proceedings of 4th April 2023 are therefore contested.

48. Fourthly, there is a contest as to whether disciplinary process is IDRM, or whether IDRM is a separate process. To this end, various correspondences and minutes have been produced which demonstrate existence of wrangles within the party. There is a claim on frustration of IDRM process from either side. The Complainant claims the Respondent has frustrated any attempts at IDRM, and the Respondent also puts blame on the Complainant for frustrating attempts at IDRM.

49. In light of the foregoing, we cannot ascertain at this stage whether there was an honest attempt at IDRM. We will need to hear the parties substantively with a view to ascertaining the above contested facts. It is therefore our considered view that the preliminary objections that have been raised by the Respondent and the Interested Party do not meet the definition of a preliminary objection within the meaning of the Mukisa Biscuits Case (supra). Accordingly, we find that the preliminary objections filed on behalf of the Respondent and Interested Party are improper and we overrule the same.

Which firm of Advocates is legitimately on record for the Interested Party in this matter? 50. Having overruled the PO, we will now delve in to the question of the Interested Party’s representation. The right to representation is provided under Article 50 (2) (g) and (h) of the Constitution of Kenya, 2010 which state as follows:(2)Every accused person has the right to a fair trial, which includes the right—(g)to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

51. The general rule is that it is not the business of the courts or tribunals to tell litigants which advocate should or should not act in a particular matter as each party to a litigation has the right to choose his or her own advocate. Unless it is shown to a Court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter, the parties must be allowed to choose their own counsel. See Republic (Ex Parte Lions Heart Self Help Group) v Attorney General & 4 others [2014] eKLR; William Audi Ododa & Another v John Yier & Another Civil Application No. Nai. 360 of 2004; Delphis Bank Ltd v Channan Singh Chatthe & 6 Others Civil Application No. Nai. 136 of 2005; Geveran Trading Co. Ltd v Skjevesland [2003] 1 ALL ER 1.

52. The right to choose an advocate was extensively discussed in the case of Chacha Mwita v Republic CRA 33 of 2019 and Migori CR Appeal 44 of 2019, where Mrima held that;Since the Constitution does not define the word ‘choose’ I will make reference to the Tenth Edition of the Black’s Law Dictionary on how the said word is defined.The said Dictionary does not expressly define the word ‘choose or choice’ but refers one to ‘Freedom of Choice’ (See page 294 thereof). At page 779 the Dictionary defines‘freedom’ as follows: -i.The quality, state or condition of being free or liberated esp. the right to do what one wants without being controlled or restricted by anyone.15. The Dictionary further defines ‘Freedom of Choice’ as ‘the liberty embodied in the exercise of one’s right’. The Second Edition of the Law Dictionary has the following to say about the ‘Freedom of Choice’: -Unfettered right to do what one wants when one wants as one wants, except where it infringes or prevents another from doing what that one wants, and do so on. Also excluded is doing something that would harm one’s self or another.

53. Whereas we are alive to the afore-highlighted principle that choice of representation should not be superimposed where the party has the ability to decide, we note that in the present matter, two law firms, namely Anyoka & Associates, and Sinana & Company Advocates, both claim to have instructions to represent the Interested Party.They have both filed Affidavits detailing the basis of their respective instructions. This therefore leaves the tribunal with no option but to determine which law firm has legitimate instructions based on the evidence adduced by the contesting law firms.

54. We have carefully considered the rival submissions by Sinana & Company Advocates and Anyoka & Associates, and also the submissions by the Complainant and the Respondent on the question of representation of the Interested Party.

55. We note that the Complainant challenged the purported instructions to Anyoka & Associates claiming that there was no evidence of NEC minutes issuing the instructions. Whereas this may be the case, we note that the same situation applies to the instructions claimed by Sinana & Company Advocates. There are similarly no NEC minutes produced to demonstrate the same. Noting that both law firms did not attach relevant NEC minutes approving their instructions, it is thus inescapable to evaluate the additional evidence and documentation adduced by the contesting law firms to enable us decide on this issue on a balance of probabilities.

56. To this end, we have noted that from the parties’ submissions, they all seem to have a point of convergence. They all submit that communication of instructions to lawyers to represent the interested party should emanate from the office of the Secretary General as provided for in the party constitution. The question that then begs to be answered is - who is the current Secretary General of the party? Parties made extensive submissions and adduced evidence on this. Mr. Monari has maintained that he is the Secretary General and he relied on the confirmation by the RPP in the letter dated 2nd May 2023. Mr. Odanga on the other hand has relied on the minutes of NEC meeting of 17th March 2023 which removed Mr. Monari from the position and appointed Mr. Odanga to represent the Party on Acting capacity.

57. Where there is a contest between parties as to the legitimate office bearers of a political party, where can the tribunal turn to? To answer this, we have considered the role of the RPP on keeping register of political parties which register should include an accurate and updated list of the party officials including their full names, addresses, telephone numbers and email addresses as provided for under Section 34(e) of the PPA as read together with Rule 9(2(f) of the Political Parties (Registration) Regulations, 2019. We have further considered the powers of the RPP to make changes in political party records as provided for under 34C of the PPA and we also note that the law provides for an elaborate process for effecting change in office holders of a political party under Rule 5 of the Political Parties (Registration) Regulations, 2019. There is in fact a requirement for submission of a Notice of Change of Party Officials (Form PP7) as set out in the First Schedule of the subject Regulations.

58. In China Young Engineering Company v L.G. Mwacharo T/A Mwacharo Associates & Another [2012] eKLR, the Court stated as follows: -“…My view is, when there is a dispute as to directorship and shareholding of a company, the best evidence to be relied on is the updated records from the Registrar of Companies. That registry is meant to keep the records of all Companies and for the purposes of the public to rely on the same as reflecting the true record of any particular company. If there is a fighting amongst directors and shareholders of a company, that is none of the business of third parties and/or the public. This is why there is penalty in late filing of change of particulars so that companies do file their returns in time so as to warn and/or inform the public as to who is the authorized officer or owner of a particular company. …”

59. In consideration of the provisions of Section 34(e) and 34C of the PPA as read together with Rules 5 and 9 of the Political Parties (Registration) Regulations, 2019, and also the reasoning in the above case, we find it safer to rely on the letter from the RPP dated 2nd May 2023 in so far as it states that the current SG of the interested party is Mr. Michael Monari. We state so also bearing in mind that whereas the law makes clear provision on the process of change of particulars, the Affidavit sworn by Mr. Josiah Odanga has not annexed any evidence of Form PP7s that were presented to the RPP in respect of the changes in the office of the party Secretary General in his favour, or any formal communication to the RPP of the alleged changes. Interestingly, he annexed Form PP7 that notified the RPP of the appointment of Mr. Michael Monari but conspicuously omitted to annex Form PP7 in respect of his purported appointment in place of Mr. Monari. This is notwithstanding the fact that the NEC resolutions under reference were made on 17th March 2023 over two months ago, and further that the RPP had in fact in her letter dated 17th March 2023 specifically advised the party to notify her office of the NEC resolutions of the meeting of 17th March 2023.

60. Taking into consideration the totality of the foregoing circumstances, and bearing in mind that the instructions issued to the firm of Anyoka & Associates Advocates were authored by Mr. Michael Monari in his capacity as the SG, we find that the said firm of Anyoka & Associates, have, on a balance of probabilities, demonstrated that they have legitimate instructions to represent the Interested Party in this case.

61. As we make the above finding on representation and for the avoidance of doubt, we remain alive to the Interested Party’s right to appoint counsel of their choice at any stage in these proceedings. Our finding does not therefore bar the Interested Party from in future exercising their free will on the matter of their legal representation if they so wish, and provided that any such instructions to counsel of their choice is done in consonance with the party constitution.

Who should bear the Costs? 62. In regards to costs of the preliminary objection and the contest on representation, we are of the considered view that the same be in the cause.

Disposition 63. In light of the foregoing, we order as follows: -i.That the preliminary objection dated 26th April 2023 filed by the Respondent and the preliminary objection dated 4th May 2023 filed by the Interested Party are both hereby overruled.ii.That the firm of Anyoka & Associates shall continue to represent the Interested Party unless otherwise replaced by the Interested Party vide instructions issued to counsel of their choice in accordance with the Interested Party’s constitution and rules.iii.That the Notice of Change of Advocates and all documents filed by the firm of Sinana & Company Advocates on behalf of the Interested Party are hereby struck out.iv.Costs in the cause.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MAY 2023. DESMA NUNGO - CHAIRPERSONSTEPHEN MUSAU - MEMBERTHERESA CHEPKWONY -MEMBER