[2023] KEPPDT 1358 (KLR)

Musamali v Nyaribo; United Progressive Alliance Party (Interested Party) (Complaint E005 (NRB 'A') of 2023) [2023] KEPPDT 1358 (KLR) (18 July 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1358 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E005 (NRB 'A') of 2023

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

July 18, 2023

Between

Eliki Tom Musamali

Complainant

and

Hon Amos Kimwomi Nyaribo

Respondent

and

United Progressive Alliance Party

Interested Party

Judgment

Introduction 1. The Complainant has at all material times been a member and National Chairperson of the United Progressive Alliance Party (UPA), the Interested Party herein. He avers that he came across a letter from the Officer of Registrar of Political Parties (ORPP) referring to a notice dated 13th March 2023 that had been issued by the Respondent for a Special National Delegates Conference (SNDC) that was scheduled for 21st April 2023. According to the Complainant, the notice was issued in breach of the party constitution.

2. Aggrieved by the subject SNDC notice, the Compliant filed the Complaint herein on 19th April 2023 together with a Notice of Motion application dated 19th April 2023 seeking the following orders: -i.That for reasons appearing on the Certificate of Urgency, this Application be certified as urgent and be heard in the first instance.ii.That pending the hearing and determination of this application, an injunctive order be issued, restraining the Respondent, all interested party’s leaders and officials, delegates and any other persons acting on their behalf from convening and or attending the meeting to be held on 21st April 2023 pursuant to the notice that the Respondent issued to the Registrar of Political Parties on 13th March 2023. iii.That pending the hearing and determination of the Application, a conservatory order do issue, maintaining the status quo ante obtaining in the interested party prior to the notice that was issued by the Respondent on the 13th March 2023, that purported to call a special national Delegates Conference of the interested party on 21st April 2023. iv.That pending the hearing and determination of this application, a conservatory order do issue restraining the Respondent, all the interested party’s leaders and officials, delegates and any other persons acting on their behalf from presenting to and/or effecting at the Registrar of Political Parties any return, step or proceeding in furtherance to any meeting to be held pursuant to the notice that the Respondent issued on 13th March 2023v.That pending the hearing and determination of the complaint herein an injunctive order be issued, restraining the Respondent, all interested party’s leaders and officials, delegates and any other persons acting on their behalf from convening and or attending the meeting to be held on 21st April 2023 pursuant to the notice that the Respondent issued to the Registrar of Political Parties on 13th March 2023. vi.That pending the hearing and determination of the complaint herein, a conservatory order do issue, maintaining the status quo ante obtaining in the interested party prior to the notice that was issued by the Respondent on the 13th March 2023, that purported to call a special national Delegates Conference of the interested party on 21st April 2023. vii.That pending the hearing and determination of the complaint herein, a conservatory order do issue restraining the Respondent, all the interested party’s leaders and officials, delegates and any other persons acting on their behalf from presenting to and/or effecting at the Registrar of Political Parties any return, step or proceeding in furtherance to any meeting to be held pursuant to the notice that the Respondent issued on 13th March 2023viii.Costs of this application be provided for.

3. The application was certified urgent and directions issued for service and inter partes mention on the 25th April 2023, and subsequently fixed for hearing on 4th May 2023. However, on the 4th May 2023 when the application came up for hearing, the tribunal’s attention was drawn to a contest between the firm of Sinana & Company Advocates and Anyoka & Associates on the representation of the interested party; a Notice of Motion Application dated 4th May 2023 that had been filed by Anyoka & Associates on behalf of the interested party; and a preliminary objection that had been filed by the Respondent. Directions were accordingly issued for the hearing of the preliminary objection together with the contest on representation in priority to the two stated applications dated 19th April 2023 and 4th May 2023.

4. Accordingly, the preliminary objection to the tribunal’s jurisdiction and the contest on representation was argued inter partes on 16th May 2023 and a ruling thereon delivered on 26th May 2023. On the same date, we issued directions for hearing of the Notice of Motion application dated 4th May 2023, which application was subsequently heard on 7th June 2023 and a ruling thereon delivered on 19th June 2023.

5. As at 19th June 2023, there was only one application pending, that is the Complainant’s application dated 19th April 2023. The Complainant subsequently sought and was granted leave to amend his Complaint, and directions were issued for filing of the Amended Complaint, the responses, and the hearing of the Complaint simultaneously with the Notice of Motion application dated 19th April 2023 in the interest of an expeditious disposal of the Complaint within the limited timelines.

6. The Complaint was ultimately heard inter partes on 13th July 2023 when the Complainant was represented by Mr. Dennis Anyoka Advocate, the Respondent was represented by Mr. Franklin Mwendani Advocate, and the Interested Party was represented by Mr. Julius Anyoka Advocate. During the hearing of the Complaint, the Complainant’s counsel informed the tribunal that he had abandoned the Notice of Motion application dated 19thApril 2023 for the reason that the same had been overtaken by events.

The Complainant’s Case and Submissions 7. Vide the Amended Complaint dated 20th June 2023, the Complainant seeks the following reliefs from this Tribunal:-i.A Declaration that the purported Special National Delegates Conference meeting of the Interested Party held on 21st April 2023 together with all resolutions that emanated from it are null and void.ii.A Declaration that the notice that was issued by the Respondent on the 13th March 2023 convening the Special National Delegates Conference meeting of the Interested Party on the 21st April 2023 was null and void.iii.A conservatory order preserving the status of the National Executive Council (NEC) ante the alleged Special National Delegates Conference held on 21st April 2023. iv.An injunctive order restraining the Respondent from convening, conducting or calling a special National Delegates Conference without following the right procedure set in the Interested party’s Constitution.

8. The Complaint is presented on the grounds stated on the face of the Amended Complaint as read together with the Complainant’s Supporting Affidavit sworn on 20th June 2023 and all other affidavits on record.

9. In crux, the Complainant contends that the UPA (previously known as the Party of Economic Democracy (PED)) has a constitution that was ratified by party members before the party changed its name. The Constitution has never been amended and it is the document that governs the conduct of party affairs. Article 7. 3 of the party constitution makes provision for procedure for meetings at the National Delegates Conference (NDC), and Article 7. 3.3 makes provision for procedure to be followed pertaining issuing of notices for Special National Delegates Conference (SNDC).

10. It is the Complainant’s contention that the Respondent chaired a meeting of the Interested Party’s national officials and elected representatives, in which he caused a resolution to be passed, for a SNDC to be held on 21st April 2023. That under the party constitution, the only person who has the authority and mandate to convene a SNDC is the National Chairperson, who is the Complainant herein.

11. He submits that the Respondent consequently proceeded to issue a notice of the SNDC dated 13th March 2023 to the Office of the Registrar of Political Parties (the ORPP), which notice the ORPP acknowledged vide a letter dated 17th March 2023. The Respondent in his capacity as party leader had no authority to issue notice nor convene the SNDC and the only other procedure for convening SNDC which is through requisition in writing signed by at least one third of the delegates eligible to attend an ordinary session of the NDC was also not followed. The SNDC meeting of 21st April 2023 accordingly proceeded in disregard of Article 7. 3.3 of the party constitution. He submits that despite the illegality, on the 22nd May 2023, the Respondent proceeded to publish on the daily nation newspaper an alleged list of the new NEC for the interested party.

12. The Complainant relied on his written submissions on record together with the oral submissions that were made during the hearing, and he accordingly prays that the reliefs sought in the Amended Complaint be granted.

The Respondent’s Response & Submissions 13. In response to the Complaint, the Respondent filed his Response dated 22nd June 2023 which states:-i.That Article 7. 3.3 is wide and extends the scope of convening the Special National Delegates Conference. It delimits the mandate as an exclusive function of the chairman to other party organs such as Office of Secretary General and the delegates under Articles 7. 3.4; 7. 3.5; and 7. 3.6 of the Party Constitution.ii.The convention already held on 21st April 2023 was held pursuant to Article 7. 3.3 which encompass Articles 7. 3.4; 7. 3.5; and 7. 3.6 as well.iii.That the UPA Constitution at Article 7. 2.2A enumerates who is a delegate in the party and therefore competent to participate and take part in the decision making of the National Delegates Conference including issuing notices and voting at the SNDC. These delegates includes (at Article 7. 2.2A.(3)) all governors, all national officials and all members of parliament and all members of branches and who in total should not be more than 3000 persons [Art.7. 2.2A(19)].iv.That other than being the bona fide party leader at the time of convening the delegates meeting, the Respondent was also a delegate as clearly stipulated in 7. 2.2A.(3) of the party constitution, being a member of the Council of Governors of the Interested Party and capable of issuing notices for SNDC.v.That the members of the party led by one Kepha Ndege Moenga did petition the Chairman and the Secretary General and the Party Leader more than 90 days before the Special National Delegates Conference as required under Article 7. 3.4 and 7. 3.5 and 7. 3.6 of the UPA Constitution.vi.The Notice herein challenged by the complainant was expressly issued under Article 7. 2, 7. 3.3 and 6. 3.2X. It was issued within the statues by bona fide party members and the dispute is a mere misinterpretation of the Constitution. vii. The communication, given the circumstances, were made following extensive administrative processes and whose intentions were in good faith and to comply with the law as demanded by the statute and the regulator and is neither inconsistent with the constitution or ultra vires.viii.The Special National Delegates conference was therefore properly convened and more than the requisite one third of members requisitioning attending and making quorum as provided for under Articles 7. 3.3 and 7. 3.7 of the constitution.viii.The constitution filed herein and marked ETM 1, the (PED Party Constitution) is a document sui generis forming the substratum of the dispute herein. The same document was declared inconsistent with Article 91 of the Constitution of Kenya 2010. On that basis alone, the Special National Delegates Conference was required to provide a platform where members of the new party, the United Progressive Alliance would interrogate the constitution, amend articles that were inconsistent and provide for a proper governance structure. The absence of this would lead to penalties such as suspension and deregistration of the party.x.The Respondent contends that he acted pursuant to Section 9(2) of the Political Parties Act, and that his actions did not contravene the party constitution but rather were aimed at accomplishing the review of the constitution and its amendments therein to fully satisfy the mandatory requirements of Section 9 of the Political Parties Act which could not be done by a non-compliant National Executive Committee.xi.The IDRM Committee is not founded on the party constitution and the prayers sought are incapable of being granted.

14. The Respondent in addition filed a Supplementary Affidavit sworn on 22nd June 2023 and he deposes as follows:-i.The Complaint herein and the issues raised therein are not alien to him as they stem out of a conflict between the office of the Secretary General and the office of the National Chairman, which conflict was subject of PPDTC Complaint No. E028 of 2021. ii.The Complainant has held the party hostage from as far back as 2021 making arbitrary changes of office bearers and pushing papers at whim. In fact, he has been the long standing antagonist in all disputes involving the Interested Party. The Complainant’s actions or omissions of duty or breach thereof is the one and single most cause of dispute within the party. It is his constructive survival antic aimed at harnessing as much political power within the party as he can.iii.The UPA adopted a constitution drafted in 2012 and the non compliance of the national executive committee dates from as far back as November 2021 at the time of changing leadership from PED TO UPA. Some of the members in the governing body had since left the party or ceased to be party officials. This has been the obtaining legal reality informed of all the national officials as contained in several of the NEC meeting where only 9 or 11 members would be attending. The NEC was therefore incapable of making binding decisions based on this non-compliance and the same could only be cured via a SNDC.iv.The complainant has not provided with precision or specificity of what claim he is entitled to flowing from his allegation of breach of rights. In fact, the complainant asks the court to retain the status of the interest Party obtaining as at 21st of April 2023. This status quo was one of non-compliance, a unconstitutional National Governing Organ, without requisite party organs such as the IDRC, the Code of Conduct and with glaring conflicts of function and duties of the National Chairman to that of the Secretary General.v.That following the filing of returns, the Complainant has registered his objection and the ORPP has responded to the objection therein. The same is the appropriate course of action as envisaged by section 34 c of the statute.vi.The issues herein are issues of the interpretation of the party constitution. Such interpretation requires logic, equality, reasonableness, balanced proportionality, objectivity and correctness, integrity of the constitution and its unity. Further, the interpretation herein is evident of the principle of presumption of constitutionality of the notice issued on 13th March 2023 and therefore valid and binding.vii.The orders sought in the Amended Complaint have either been overtaken by events, are legally incapable of being granted, implemented or lacking effect. That the threshold required of grant of conservatory orders has not been reached and the stay therein sought lacks specificity. Further, the complaint is brought to the tribunal as a pre-emptive move. The complainant ought to have approached the tribunal on appeal from the ORPP and not on the current Complaint. The Complaint has therefore not matured or crystallized for the attention of the tribunal. That the IDRM process has neither been pursued or an attempt made thereto, and the same cannot be assumed or implied as it forms the crux of the Complaint herein.

15. The Respondent also relied on his written and oral submissions, and all the judicial authorities that he referred to.

The Interested Party’s Case and Submissions 16. In response to the Amended Complaint, the Interested Party relied on the Replying Affidavit and Supplementary Affidavit sworn by Michael Monari on 26th June 2023 and 5th July 2023 respectively.

17. We highlight the depositions in the interested party’s affidavit sworn on 26th June 2023 as follows:-i.In response to paragraphs 4 to 11 of the affidavit in support of the amended complaint, the interested party’s SG avers that the same are immaterial to the validity or otherwise of the notice convening the SNDC since the subject notice was not issued pursuant to any of the provisions referred to in the subject paragraphs.ii.The SNDC was properly convened pursuant to the provisions of Articles 7. 3.3, 7. 3.4, 7. 3.5, and 7. 3.6 of the party constitution.iii.Though Mr. Monari is the bona fide SG of the interested party with duties and responsibilities expressly provided for in Article 6. 3.4 of the party constitution, the Complainant in a conspiracy and well calculated scheme has unlawfully and irregularly in utter disregard to the party constitution purported to suspend the SG and proceeded to allocate himself various duties as detailed inthe affidavit.iv.That the ORPP being alive to the challenges that were facing the party convened a meeting on 18th January 2023 and salient directions were given as per minutes of the subject meeting and the ORPP’s letter dated 27th January 2023. v.The Complainant locked the SG from his duties and has not explained how he expected the SG to perform his duties under Article 7. 3.3 of the party constitution as the Complainant has alluded to in paragraphs 5 and 13 of his supporting affidavit.vi.Faced with limited options on how to advance the aims, values and objectives of the party, the Respondent being a member and in the spirit of Article 5. 3.1(A) of the constitution, took all the necessary steps in the circumstances to carry out the objects and policies of the party. He in the exercise of his powers under the constitution proceeded to issue the notice on behalf of the delegates. vii. The Respondent’s actions are therefore in tandem with the constitution and in compliance with the ORPP’s directions, and the same are intended to accomplish the review of the party constitution and its amendments in terms of Section 9 of the PPA.viii.The actions and body language by the Complainant and his irregular deliberations through various minutes of NEC are clear that he wants to maintain the status quo by all means, he is not keen to addressing issues of amendments to the constitution and holding of electorates to get a fresh mandate, and his interest is only in the political party funds.viii.The amended complaint is not made in good faith since the Complainant has used his position to defy and frustrate the advisory and/or directive by the ORPP and efforts to hold an NDC to give members an opportunity to amend and ratify the constitution that best serves their interests and to elect officials of their choice.

18. In addition, vide the supplementary affidavit of 5th July 2023, the interested party avers that:-i.The party has for a long time been jeopardized by the long-standing difference between the office of the National Chairperson and that of the Secretary General (SG). The tiff was a foundational weakness from 2012 following the adoption of a constitution whose drafting was based on the repealed PPA, and which has occasioned noncompliance with statutory provisions and a noncompliant/dysfunctional NEC.ii.The regulator (ORPP) on numerous occasions indulged the party on noncompliance dating as far back as 2021, and made reminders to the party to comply by amending its constitution and reorganize the composition of NEC failure to which the party would be suspended and deregistered. The Chairperson was insubordinate and usurped the office of the SG.iii.Pursuant to Article 7. 3.4, the delegates led by Kepha Moenga petitioned the Chairman through the SG to convene a SNDC to cure breaches in the party constitution and to appoint a competent NEC but the pleas were disregarded. iv. In order to preserve the interests of the party and its stakeholders, it was incumbent upon the delegates to exercise the provisions of Article 7. 3.4 and 7. 3.5 of the party constitution. The delegates caused to be published the notice convening SNDC to resolve issues of non-compliance within the party.iv.The delegates then met on 21st April 2023, and upon confirming that the requisite quorum had been met, proceeded to deliberate on changes to the constitution and a re-constitution of NEC, and afterwards lodged the returns with the ORPP.v.The Complainant in an attempt to overturn the judicious SNDC of 21st April 2023 lodged an objection with the ORPP questioning the publication of the changes. The ORPP vide letter of 13th June 2023 directed the Complainant to have issues resolved internally. Even so, the changes were necessary as they sought to revise the constitution to provide for, inter alia, IDRM, in order to be able to deal with such matters as had been directed by the ORPP in line with Article 91 of the Constitution of Kenya, and to elect a competent governing body in the best interest of the party. Such changes cannot be reversed as it would only serve the tumble the party back into the chaos it is trying to emerge from.vi.It is proper that the Complaint be dismissed for want of locus and ripeness since the matters it raises are now moot.

19. The interested party also relied on their written and oral submissions and the judicial authorities referred to therein.

Issues, Analysis and Determination 20. We have isolated the following key issues for determination: -i.Whether the Tribunal has jurisdiction to hear and determine this matter?ii.Whether the notice convening the Special Session of the National Delegates Convention meeting of 21st April 2023, the subject meeting, and the resolutions emanating therefrom complied with the law?iii.What are the appropriate reliefs to grant in this case? iv. Who should bear the costs?

Whether the Tribunal has jurisdiction to hear and determine this matter? 21. The Court defined jurisdiction in the case of Phoenix of E.A Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR as follows:-“It is a truism, jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae”

22. And in the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989)1, the Court stated as follows:“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 judgement is given.”

23. Jurisdiction of courts and tribunals emanates and flows from either the Constitution or legislation, or both. The Supreme Court of Kenya in the case of Samuel Kamau Macharia Vs KCB & 2 Others, Civil Application No. 2 of 2011 was succinct on this point, by stating thus:“A Court's jurisdiction flows from either the Constitution or Legislation, or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law.”

24. In the context of this Tribunal, our jurisdiction is circumscribed by Article 169 (1) (d) of the Constitution as read with Sections 40 of the Political Parties Act, 2011which provides on 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 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 nominations2. 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

25. From the foregoing provisions of Section 40 of the PPA, it is clear that disputes between party members and disputes between a member and a political party cannot be heard and determined by this tribunal unless there is evidence that an attempt has been made to subject the dispute to the party’s internal dispute resolution mechanism (IDRM).

26. The Respondent had earlier on in these proceedings raised an objection to our jurisdiction arguing that the dispute subject hereof had not been subjected to IDRM. However, in our ruling delivered on 26th May 2023, we observed as follows at paragraphs 41 to 49 of our subject ruling: -“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 Companylimited 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 vs. 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: -The facts raised by one party must be accepted by the other party.It must be a matter of law capable of disposing off the suit.It must not raise any factual arguments which require proof by way of evidence.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 andconcluded 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…”

27. From our ruling above, it is clear that we found that there was no proper preliminary objection as defined in law. We did not therefore consider the question of IDRM on merit. Having subsequently heard the parties substantively on merit, nothing precludes us from ascertaining the contested facts with a view to establishing whether there was an honest attempt at IDRM.

28. What amounts to an honest attempt at IDRM was considered in the case of John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022), where the Tribunal pronounced itself as follows:-“Our pre-amendment position that a party must demonstrate bona fides (an honest attempt) in pursuing IDRM remains good law. Furthermore, the party to a dispute should also show that, among others:a.The unavailability of the organ to resolve disputes;b.If the same is available; it is inoperative, fraught with conflict of interest, obstructive, in perpetual paralysis or subject to inordinate delays which may compromise the subject matter of the dispute;c.Reasonable time is afforded to the party to respond, constitute or activate an IDRM organ and deal or determine the dispute;d.Due consideration should be given to the urgency and public interest in the subject matter of the dispute; ande.The reliefs sought should be proportionate, and if alternative remedies suffice to mitigate the harm likely to be suffered, the same should be considered. In essence, the utilitarian or proportionality of the process and remedies should be considered so as to achieve an equilibrium.The foregoing list is by no means exhaustive, but is a useful compass for navigating the frontiers delimited by section 40 (2) of the Political Parties Act, 2011. ”

29. In essence, a party that has not made an honest attempt at IDRM should demonstrate that any of the circumstances listed above exist as a bar thereto.

30. Turning to the facts of this case, we note that the parties initially had a contest as to the applicable party constitution. However, during the hearing of the Complaint, all parties somewhat referred to the same party constitution. Upon being prompted by this tribunal to clarify on the matter, all parties were in agreement that as at the date of the SNDC subject hereof, there was only one party constitution that was applicable. This is the same one that they all relied on, and this therefore settles the initial contest on the applicable party constitution.

31. The Complainant’s submission was that he had made attempts at IDRM in vain. He referred to the Internal Dispute Resolution Committee being the party organ that the dispute was subjected to and relied on the letter dated 31st March 2023 and minutes of IDRM proceedings of 4th April 2023. We further note that objections to the SNDC were also raised by the Complainant and the Respondent invited the Complainant vide letter dated 19th April 2023 to a NEC meeting to ventilate over the same, which meeting the Complainant declined to attend, claiming that the Respondent had no powers to handle disputes, and that the same should be subjected to the party’s Internal Dispute Resolution Committee.

32. We have gone through the party constitution and we have not seen any Article establishing the stated Internal Dispute Resolution Committee. The Complainant’s counsel referred us to Article 8 of the constitution. However, the section of the constitution that was availed made provision only for a Disciplinary Committee and not Internal Dispute Resolution Committee. The constitutional foundation of this supposed Internal Dispute Resolution Committee has therefore not been sufficiently demonstrated to us.

33. Most importantly, our perusal of the party constitution reveals bits and pieces of the following provisions that make reference to disputes: -i.Article 6. 3.1(1)(vii) mandates the party leader to provide wise counsel and judicious directives to national officials specifically or to party member in general on any matter in dispute or under controversy within any party organ or amongst party members.ii.Article 6. 3.1(2)(x) mandates the National Chairperson to consult and take counsel from the party leader on any matter in dispute or under controversy within the party organ or amongst party members.iii.Article 7. 5A.2(viii) provides that the Central Committee shall mediate on internal disputes affecting the party.iv.Article 8. 3 and 8. 4 establishes a Disciplinary Committee to receive, hear and determine all cases of discipline concerning party members.v.Article 10 invokes arbitration

34. From the foregoing provisions, it is evident that the party constitution does not provide a clear and/or comprehensive approach to dispute resolution. Different persons (including the Complainant and the Respondent) and different organs (including Central committee) seem to have a role without any definition and/or distinction. The fact that the party constitution has major gaps in its provisions on IDRM was within the knowledge of the parties hereto. Even though the interested party (the party) averred that IDRM had not been pursued, they admitted in their Replying Affidavit that the party constitution had gaps on IDRM, and that this is one of the areas that required a constitutional review before a proper IDRM can be conducted. The party deposed that there was need to revise the constitution to provide for, inter alia, IDRM, and also in order to be able to deal with such matters as had been directed by the ORPP in line with Article 91 of the Constitution of Kenya.

35. In our opinion, having considered the provisions of the party constitution and the circumstances of this case, we are left to conclude that a proper attempt at IDRM was not practicable in light of the constitutional gaps that we have observed above. We cannot therefore fault the Complainant for moving the tribunal when the cause of action subject hereof arose. Some of the exceptions to an honest attempt at IDRM, as we have already observed, were highlighted in the case of John Mworia Nchebere Case (supra), which exceptions were in any event not exhaustive. We posit that the absence of a clear IDRM mechanism of handling disputes in the party constitution is one such exception. We accordingly find that we can assume jurisdiction granted the circumstances of this case.

Whether the notice convening the Special Session of the National Delegates Convention meeting of 21st April 2023, the subject meeting, and the resolutions emanating therefrom complied with the law? 36. The Complainant submitted that the Complaint arises out of the notice issued by the Respondent to convene Special NDC, which notice was not issued in accordance with the party constitution, and further that the notice was never served upon any member of NEC or the Complainant, and that they only learnt of it through letter from the ORPP dated 17th March 2023.

37. As we address our minds to this issue, this tribunal acknowledges that it must be guided by the provisions of the constitution of the interested party. As we had already observed, all parties hereto relied on the same party constitution that was applicable as at the date of the SNDC. We will accordingly refer to the same with a view to breathing life to its provisions on the mode of convening SNDC.

38. Articles 7. 3.3, 7. 3.4, 7. 3.5, 7. 3.7 and 7. 3.8 of the party constitution provide on a Special session of the NDC as follows:-“…7. 3.3Special Session;A Special Session of the National Delegates Conference shall be summoned by the National Chairperson upon the decision of the National Executive Committee or upon a requisition in writing signed by at least one third of the delegates eligible to attend an ordinary session of the National Delegates Conference.The notice and agenda convening the meeting shall be sent out by the Secretary general at least twenty one days before such date and published at least twice on a daily English newspaper with the greatest circulation, in addition to at least two Swahili radio broadcasts carried by a leading broadcasting station.4. Where a Special Session of the National Delegates Conference is requisitioned by delegates, a notice calling upon the National Chairperson to summon the conference including the agenda and date desired for the conference shall be served upon the Secretary general not later than sixty-five working days before the date proposed; but where the National Chairperson fails to summon the Conference within twenty one working days after due service of the notice, the conference shall, subject only to Article 17. 3.6 hereunder, stand duly summoned and properly convened on the date, place and time contained in the notice.5. Where a Special Session of the National Delegates Conference requisitioned by delegates is convened in default of the National Chairperson summoning the same, the delegates requisitioning the conference shall, not less than twenty one working days before the proposed date, cause a notice convening the conference to be published on a daily English newspaper with the greatest circulation and carried by a leading Swahili radio broadcast provided always, that such notice shall contain the agenda, place, date and time of the conference…..7. Quorum of the ordinary special session of the National Delegates Conference shall be 30% of eligible members present and voting.8. Decisions shall be taken through the vote by consensus, secret ballot or by a unanimous resolution…”

39. The above party’s constitutional provisions as regards the manner of convening SNDC appear plain and unambiguous in our opinion. The intention can be construed from the language used in the provisions which inevitably discloses its purpose and effect. The language of the provision must be taken as conclusive unless there is ambiguity or an expressed legislative intention to the contrary. These sentiments were expressed by the Court of Appeal while analyzing how to determine the intention of a statute, in County Government of Nyeri & Anor. Vs. Cecilia Wangechi Ndungu [2015] eKLR where the learned judges held thus:“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”

40. In Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No. 26 of 2014 [2014] eKLR, the Court observed as follows:“In Pepper vs. Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the Court is not to be held captive to such phraseology. Where the Court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous, I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”

41. Similarly, in Apollo Mboya v Attorney General & 2 others [2018] eKLR, the Court stated as follows:“…It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court cannot not go to its aid to correct or make up the deficiency. Courts decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but cannot not legislate itself…”

42. Our interpretation of the foregoing provisions of the party constitution as guided by the principles underscored in the above judicial authorities is therefore as follows:-i.The Chairperson has the constitutional mandate to convene SNDC, but he can only do so with the decision of the National Executive Committee (NEC).ii.The other option is that a SNDC can also be convened by way of a requisition in writing signed by at least one third of the delegates eligible to attend. iii. Where SNDC is requisitioned by delegates, a notice calling upon the Chairperson to summon the conference including the agenda and date desired for the conference shall be served on the SG not later than 65 working days before the date proposed.iv.If the Chairperson fails to summon the conference within 21days after service of the notice, the conference shall stand summoned and properly convened on the date, place and time on the notice.iv.If SNDC is convened in default of the Chairperson summoning the same, the delegates who requisitioned the conference shall cause to be published on the dailies the notices.

43. In this case, it is not in dispute that the Chairperson did not convene the SNDC, and that NEC did not make any decision to summon the same. In any event, we note from the minutes of a NEC meeting of 17th March 2023 that was chaired by the Complainant that NEC resolved that the party would not call for NDC before 2025. The option of convening the SNDC through the Chairperson was therefore not applied in this case.

44. The Respondent and interested party have submitted that the SNDC in this case was convened vide the alternative option of requisition by delegates. Reference has been made to the letter dated 15th February 2023 by one Kepha Ndege Moenga addressed to the Complainant, the Respondents and the Secretary General (SG). The subject requisition letter referenced “Notification of Demand for Requisition for a Special National Delegates Conference” reads: -“…On my own behalf and on behalf of the United Progressive Alliance (UPA) delegates, I on November 1, 2022 called upon the National Chairman as required by Article 6. 3.3 vii and viii of the constitution to summon a National Delegates Conference.The NDC was to discuss the following agenda:-1. Elect new party officials2. Include elected members of the party in the governance of the party3. To strengthen the party and give it a national outlook4. Party constitution amendmentsA close reading of the constitution at Article 12(1) and (2) indicates that the party constitution was repealed on December 2, 2019, and the constitution of the new party (UPA) we are currently using has been on transition since December 7, 2012. In my letter I noted that the law does not allow the interim members to serve for more than five years as interim officials.Whereas the constitution requires 65 working days as notice in case of a special session of the NDC and 21days in case of an ordinary session of the NDC, the National Chairperson appears not to have acted on our demands.I have also been informed that the party leadership structure has not met its elected and nominated leaders after the 2022 general elections.On my own behalf and on behalf of UPA delegates we are seeking your intervention as the UPA party leader to hold a meeting of the UPA elected and nominated leaders to chart a way for the party and to cause a special session of the NDC to discuss the above stated agenda and any other as guided by the party leader on April 21, 2023 either The Luke Hotel Nairobi or Kasarani Indoor Arena, whichever is convenient, as from 9am.Be advised that if you don’t intervene on the above, we will move forward to have the special NDC pursuant to Article 7. 3.4 and 7. 3.6 of the constitution…”

45. In response to the above letter, the Complainant’s counsel made submissions contesting the said Kepha’s party membership and delegate status. Counsel further submitted that one person cannot qualify for requisition for a meeting, amongst other factual claims. We have perused the pleadings and we note that the Respondent and the Interested Party made various factual depositions on oath detailing, inter alia, how the requisition was made by delegates represented by Kepha Moenga, and all the processes that ensued. It was pleaded that the requisition letter was done by the said Kepha on his own behalf and also on behalf of delegates. They annexed the requisition letter dated 15th February 2023 and the letter referred to therein dated 1st November 2022, which letter refers to an enclosed a list of delegates. Notwithstanding service upon the Complainant of the affidavits detailing these factual allegations, the Complainant did not file any Further/Supplementary Affidavit in reply thereto. This is despite the fact that he sought and obtained leave to do so. The Complainant after receiving the responses elected to file only his Written Submissions.

46. It therefore follows that all the factual allegations by the Respondent and Interested Party relating to the requisition of the SNDC by delegates have not been controverted by the Complainant. Accordingly, the afore-going factual statements that were made by the Complainant’s Counsel in an attempt to challenge Kepha’s membership/delegate status and the requisition, amongst others, were not grounded on any pleadings or affidavits filed before us. They were statements made from the bar and with due respect, we consider the same an afterthought. We therefore find difficulty in placing weight on such submissions that have not been founded on pleadings.

47. Further, we also note that the Complainant did not plead lack of service of the requisition letter upon him. The requisition letter shows that it was addressed to the Complainant in his official capacity using the official party’s contacts. The same was duly stamped as received on the 17th February 2023. The presumption that we therefore make, on a balance of probabilities, is that the requisition letter came to his attention. Be that as it may be, there is no evidence that the Complainant responded formally to this requisition by at the very least raising any of the stated issues that he now raises through his counsel at the point of making submissions.

48. We have considered the Respondent’s submission that in the absence of any response by the Complainant to the requisition letter dated 15th February 2023, they reverted to the afore-highlighted provisions of Article 7. 3.4 of the party constitution. The subject provision states that where the Chairperson fails to summon the SNDC within 21days after service of the requisition, the SNDC shall subject to Article 7. 3.6 stand duly summoned and properly convened. We have no reason to fault the Respondent and the Interested Party in this regard. In fact, pursuant to our interpretation of Article 7. 3.5 of the party constitution above, what was now expected was for the delegates to cause to be published the notice. The Respondent submitted that they published in the newspaper the notice on behalf of the delegates on 13th March 2023 well within the timelines prescribed in the party constitution.

49. In light of the foregoing, it is our view that the Complainant’s submission that notice was issued by the Respondent, or that the notice can only be issued by the SG does not arise in this case. Neither does the allegation that notice was never served upon any member of NEC or the Complainant, which allegation was in any event not founded on pleadings. In any event, evidence has been furnished of the publication of the notice which was in the public domain.

50. We have further considered the phrase “at least one third of the delegates eligible to attend an ordinary session of the NDC” and we note that the party constitution has certain gaps that make it difficult for this tribunal to ascertain with certainty the correct number of delegates that constitute the one third fraction. This is for the following reasons:-i.Article 7. 2.2A of the party constitution lists the persons eligible to attend National Delegates Conference. From the listing, we are not able to establish with accuracy the total number of delegates eligible to attend NDC. None of the parties led evidence in that regard.ii.What is, however, clear to us is that Article 7. 2.2A (19) of the party constitution expressly provides that the maximum number of delegates present at any NDC shall not exceed 3000 delegates. There is, however, no provision for the minimum number of delegates.iii.Article 7. 3.7 provides that the quorum of the ordinary or special sessions of the NDC shall be 30% of eligible members present and voting. This similarly does not provide on the minimum number of eligible members who should attend and vote.

51. The afore-going gaps in the party constitution’s provisions on quorum was acknowledged in the meeting that NEC held with the ORPP on 18th January 2023 and the Complainant herein attended the subject /meeting and is therefore well aware of the same. The minutes of the subject meeting expressly reflect that the party constitution does not provide for the quorum and procedures for meeting. We are therefore at pains to appreciate the Complainant’s counsel’s submissions on the matter, which submissions were in any event not founded on the Complainant’s pleadings and affidavits on record.

52. In making our determination under this issue, we have further considered the question of legal compliance within the context of the historical circumstances surrounding the interested party. All the parties hereto acknowledge that the interested party has been faced with challenges including wrangles between party officials (the Complainant and Respondent included) for a considerable period of time. Most of these challenges have been exacerbated by the gaps in the party constitution that needed to be addressed. In essence, the Complainant’s quest to challenge the SNDC for being non-compliant with a non-compliant party constitution must be checked against any bona fide efforts that were made towards addressing the party’s compliance status.

53. The record reflects that the party’s NEC held a meeting with the ORPP on 18th January 2023 in an effort to address some of these issues. The key highlights of this meeting that was attended by the Complainant herein, and the agreed way forward, was captured in the minutes of the subject meeting, and the ORPP’s letter dated 27th January 2023, as follows: -i.Issues to do with disputes between party officials to be subjected to IDRM before invoking any disciplinary processesii.Party Constitution to be returned for review and deliberations and adoption by relevant party organs. The review to address the governance issues in the party.iii.Party to abandon all proposed changes in party officials until party constitution is amended.iv.All statutory filings be countersigned by National Chairperson and the SG until the dispute within the party is resolved and constitution of the party is reviewedv.It was also noted that constitution does not provide for quorum and procedure for meetings and that the same be incorporated during the constitutional review.

54. Soon after the meeting of 18th January 2023, we note that the ORPP wrote a letter to the party dated 25th January 2023 advising the party of its legal compliance status. Just as had been discussed in the meeting of 18th January 2023, the ORPP advised the party vide its stated letter of 25th January 2023 that the party was non-compliant in the composition of its governing body, the party constitution and financial reporting.

55. We do not have a record of any response by the Complainant to the ORPP’s letter dated 25th January 2023 calling for compliance. We, however, note that the Respondent wrote to the ORPP the letter dated 10th February 2023 requesting for an extension until end of March 2023, which extension the ORPP granted vide letter dated 14th February 2023. We have further put together all the correspondences and minutes produced by the parties after the ORPP’s letters of 25th and 27th January 2023 and the following appears to be the chronology of events after the ORPP’s stated letters: -i.On 15th February 2023, the interested party received a requisition for an SNDC from delegates to enable the party address the various challenges that the party was facing.ii.On 1st March 2023, the Respondent wrote a letter to the Complainant and the SG calling on them to convene a meeting of joint parliamentary and national officials to lay down the agenda for the SNDC.iii.As we already stated, we have not seen any response to this letter by the Complainant. We, however, note that on the 15th March 2023, the Complainant wrote to the ORPP informing the ORPP that the SG had been appointed to the Board of Kenya Literature Bureau and raising issues to do with the legality of him continuing to hold position of SG. This letter was sent by the Complainant notwithstanding the deliberations of the meeting of 18th January 2023 where it had been agreed that the party abandons all proposed changes in party officials until party constitution is amended, and that all statutory filings be countersigned by National Chairperson and the SG until the dispute within the party is resolved and constitution of the party is reviewed.vi.From the record, on 16th March 2023, the Respondent again wrote to the Complainant and the SG requesting that a NEC meeting be called to consider issues of compliance and proposed amendments to the constitution. We do not have a record of the Complainant’s response to this letter.v.Be that as it may, we note that on 17th March 2023, the Complainant chaired a NEC meeting whose deliberations included presentation on various allegations against the Respondent and the SG including the move to remove the SG. The meeting also discussed issues of constitutional non-compliance and it was agreed that the Complainant seeks further guidance from the ORPP. Interestingly, NEC in this meeting agreed that there would be no NDC until the year 2025, and the tribunal is left wondering how the party would have conclusively attended to the compliance issues as raised by ORPP as a matter of urgency without subjecting the constitution to the supreme party organ. iv. Between 28th. 29th and 30th March 2023, the record reflects numerous objections to the SNDC. The objections were by the Complainant and 12 other persons, 11 of whom were NEC members just like the Complainant. This is not surprising in light of their resolution they made on the meeting of 17th March 2023 that there would be no NDC before 2025. The objections were forwarded to the ORPP who referred the same to the Respondent vide letter dated 19th April 2023 calling on Respondent to handle them internally in accordance with the party constitution.vi.Meantime, the only other correspondence we see around 11th April 2023 and 12th April 2023 are the Respondent’s letter to the Complainant denouncing attempted removal of the SG, and the Complainant’s letter to the Respondent denouncing the meeting of the national officials and NDC, respectively. vi. We note that on 19th April 2023, the Respondent issued notice to the entire NEC for a meeting to ventilate on the objections that had been raised. However, the Complainant declined to attend the NEC meeting claiming that there was an IDRM Committee chaired by the Complainant’s counsel and that the Respondent did not have powers to handle the disputes. It is however not clear why the Complainant could not attend the NEC meeting so as to raise the subject concerns so as to inform any resolutions by NEC as regards the objectionsvii.The next record after the correspondence of 19th April 2023 is of the SNDC meeting which was held on 21st April 2023 and various resolutions made.

56. From the foregoing chronology of events, it seems to us that the Complainant herein has not been focused on driving the party towards its constitutional review and legal compliance. The Complainant in our view was more focused on attending to disputes involving party officials under a constitutional regime that did not make clear provisions on dispute resolution as we already observed above. The only record that we saw where he stated he would follow up with the ORPP to guide on the compliance issues is in the minutes of the meeting of 17th March 2023, which is the same meeting we had observed NEC resolved that there would be no NDC until the year 2025. There is no record of the Complainant making any follow up with the ORPP after the meeting of 17th March 2023. As we have already highlighted above, the most he did to the party after that was to focus on the disputes, while the party continued to be exposed to the detrimental consequences of non-compliance.

57. In light of the foregoing, we are left to conclude that based on the record before us, the Complainant did not in our opinion present himself as having the broader bona fides interests of the party at heart. We had already observed that he chaired a NEC meeting on 17th March 2023 where it was blanketly declared that the party would not hold any NDC until 2025 and all his efforts were thus geared towards ensuring any SNDC failed. There is no record of any alternative pathway that he provided and/or pursued with a view to achieving the party’s timely legal compliance, the dire consequences of non-compliance notwithstanding. With these reflections, and noting that he who comes to court should come with clean hands, we find it difficult to believe that the Complainant’s genuine intention of challenging the SNDC was for want of compliance with the party constitution, which constitution he was well aware had gaps and required a review as a matter of urgency. How could a constitutional review be achieved without subjecting such a process to the NDC, the supreme organ of the party? This therefore makes us tread very carefully in consideration of the reliefs that the Complainant has sought in this case.

58. Balancing the interests of the Complainant on one hand, as compared with the interests of the party, the party members, delegates, and the public (which public funds the interested party) on the other hand, we find it unjustifiable to undo the efforts that have been made by the supreme organ of the interested party to drive the interested party towards a status of legal compliance. We accordingly find that given the circumstances of this case, the notice convening the Special Session of the National Delegates Convention meeting of 21st April 2023, the subject meeting and the resolutions emanating therefrom followed the law.

What are the appropriate reliefs to grant in this case? 59. We have already pronounced ourselves on the legality of the SNDC and its resolutions in the context of the historical circumstances of the party and its stated constitutional gaps. There is therefore no occasion and/or basis for grant of any of the reliefs sought in the Amended Complaint. The Complaint is unmerited and is for dismissal.

Who bears the costs of these proceedings? 60. Costs ordinarily follow the event. However, the circumstances of this case call for the need to foster unity within the party. Condemning the Complainant to pay costs may not assist in the process. Accordingly, we order that each party bears its own costs of these proceedings.

Disposition 61. In light of the foregoing, we order as follows: -

i.That this Tribunal has Jurisdiction to hear and determine this matter granted the circumstances of this case.ii.That the Amended Complaint filed herein be and is hereby dismissed.iii.Each party to bear its own costs of these proceedings

Dated and delivered at Nairobi this 18th day of July 2023. DESMA NUNGO……………………………………… (CHAIRPERSON)STEPHEN MUSAU……………………………….…….. (MEMBER)THERESA CHEPKWONY…………………..…………. (MEMBER)