[2024] KEPPDT 482 (KLR)

Mwinzi & another v Mawia & another; Wiper Democratic Movement & another (Interested Parties) (Complaint E019 (NRB 'A') of 2023) [2024] KEPPDT 482 (KLR) (9 January 2024) (Judgment)

Neutral citation: [2024] KEPPDT 482 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E019 (NRB 'A') of 2023

W Mutubwa, Vice Chair, G. Gathu & T. Chepkwony, Members

January 9, 2024

Between

Munyoki Mwinzi

1st Complainant

Daniel Ngoima Kimanzi

2nd Complainant

and

Harrison Maluki Mawia

1st Respondent

Boniface Mukwate Katula

2nd Respondent

and

Wiper Democratic Movement

Interested Party

Kitui County Assembly

Interested Party

Judgment

1. This dispute concerns the leadership of the county assembly of Kitui. The Complainants allege that they were elected as the leader of majority and majority whip in the county assembly of Kitui. These Complainants allege that by virtue of their election to such positions, they replaced the 1st and 2nd Respondents who previously held the positions.

2. The Speaker of the 2nd Interested Party raised issue with the election of the Complainants and the way the communication of their election was done. As a result, he did not recognize the complainants as the leader of majority and majority whip. The 1st and 2nd Respondents also allegedly failed to vacate their offices.

3. Vide a Complaint dated 12th October 2023, the Complainants seek the following orders:-1. That the Applicants be declared as the duly elected leader of majority and majority whip respectively;2. That it be declared that the 1st and 2nd Respondents are in office illegally as the leader of majority and majority whip in the Kitui County Assembly respectively;3. That the 1st and 2nd Respondents be restrained from representing the interests of the Interested Party in Kitui County Assembly as majority leader and the majority whip respectively;4. That the tribunal do make any further or such further orders as it may deem necessary in the circumstances;5. Costs of this application (sic) be provided for.

4. The Complaint is opposed by the 1st and 2nd Respondents and the 2nd Interested Party. The 1st Interested Party supports the Complain. The Respondents and the 2nd Interested Party have also questioned the jurisdiction of this tribunal vide notices of preliminary objections dated 24th October 2023 and 19th October 2023 respectively.

The Complainants’ case. 5. The Complainants’ case is that on 4th September 2023, a majority of the member of the 1st Interested Party in the County Assembly of Kitui voted to remove the 1st and 2nd Respondents from office. Thereafter the said majority of members elected the Complainants as leader of majority and majority whip respectively.

6. The Complainants allege that the Speaker of the 2nd Interested Party has acted in a partisan manner by refusing to recognize the Complainants as the leader of majority and majority whip respectively. The Complainants further indicate that the 1st and 2nd Respondents have never raised an issue with their removal and that the National Executive Committee of the 1st Interested Party pronounced itself on the matter on 3rd October 2023 and resolved that the Complainants were the right office holders.

The 1st and 2nd Respondents case. 7. The 1st and 2nd Respondents filed a Replying Affidavit sworn by the 1st Respondent on 6th November 2023 in response to the Complaint.

8. Summarized, the 1st and 2nd Respondents case is that the they were not accorded a fair hearing prior to their removal. Moreover, they allege that that their removal was not in accordance with the standing orders of the county assembly of Kitui in that the threshold of a majority was not achieved. This they allege is because one Honourable Mary Mbithe wrote to the Speaker of the 2nd Interested Party denying ever having attended the meeting during which the 1st and 2nd Respondents were removed from office. Further, the 1st and 2nd Respondents indicated that the Complainants could only assume their positions once formal communication was made to the Speaker by the majority whip and this has never happened to date. The 1st and 2nd Respondents also state that the dispute is prematurely before the Tribunal as it has never been subjected to the 2nd Interested Party’s Internal Dispute Resolution Mechanism (IDRM) as required by section 40 (2) of the Political Parties Act. Moreover, the Respondents indicate that the dispute is not one envisaged under section 40 (1) of the Political Parties Act.

The 1st Interested Party’s case. 9. The 1st Interested Party filed a Replying Affidavit sworn by Shakila Abdala on 27th November 2023. The 1st Interested Party has given a chronological account of the genesis of this dispute which it claims started on 8th April 2023 when the 1st Interested Party’s coordinator in Kitui County informed the Secretary General of the 1st Interested Party of grievances by the members of the County Assembly of Kitui.Several meetings over the issue were held culminating in the meeting of 4th September 2023 at which a decision was made to remove the Respondents from their positions and leader of majority and majority whip. Subsequently, a meeting was held on 8th September 2023 between the National Management Committee of the 1st Interested Party and its members in the County Assembly of Kitui over the issue.

10. The 1st Interested Party further states that its National Executive Committee deliberated on the matter on 3rd October 2023 and resolved that the Complainants were the duly elected leader of majority and majority whip in the county assembly of Kitui. The 1st Interested Party thereafter wrote to the Speaker of the 2nd Interested Party notifying him of the changes but the Speaker has since refused to effect the changes. The 2nd Interested Party’s case.

11. The 2nd Interested Party case is that this dispute is between the Complainants and the speaker disguised as a dispute over the election of the leader of majority and majority whip. It argues that in the circumstances, the Tribunal does not have jurisdiction as the Speaker is not one of the parties contemplated under section 40(1) of the Political Parties Act.

12. Moreover, the 2nd Interested Party contends that the process of removal of the 1st and 2nd Respondents from their positions did not comply with the requirements of the Standing Orders of the county assembly of Kitui.

Issues for determination 13. The Tribunal has analyzed the matter and framed the following issues for determination: -1. Whether Tribunal has jurisdiction to hear and determine this dispute.2. Whether due process was followed in removal of the 1st and 2nd Respondents. from their positions as leader of majority and majority whip in the county assembly of Kitui.3. Whether the orders sought can be granted.

Analysis and Determination. Whether Tribunal has jurisdiction to hear and determine this dispute. 14. The Respondents and the 2nd Interested Party have filed preliminary objections dated 24th October 2023 and 19th October 2023 respectively challenging the jurisdiction of this Tribunal. The challenge is based on two fronts. Firstly that the Speaker of the County Assembly of Kitui is not one of the disputants envisaged under section 40(1) of the Political Parties Act and secondly that the dispute was not subjected to the 1st Interested Party’s IDRM as required under section 40(2) of the Political Parties Act.

15. On the first front, the gist of the arguments in support of the Preliminary Objection is that this dispute is between the Complainants and the Speaker. In the circumstances the Respondents and the 2nd Interested Party argue that since the Speaker is not one of the parties envisaged under section 40(1) of the Political Parties Act, then the Tribunal does not have jurisdiction to hear and determine the dispute.

16. Is the dispute really one between the Speaker and the Complainants? It does not seem so. The Speaker is not a party to this matter. The entity that is a party is the County Assembly of Kitui and it is actually an interested party.

17. The Supreme Court in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR stated thus as regards an interested partyConsequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way.…”

18. The dispute concerns the leadership of the County Assembly of Kitui. That is a clear definable stake for the County Assembly. Joining it to this dispute does not in any way imply that the Tribunal has assumed jurisdiction that is not emanate from section 40(1) of the Political Parties Act.

19. Moreover, as the 2nd Interested Party has indicated, the Speaker of the County Assembly is obligated to comply with the law. He is also obligated to comply with any orders that may be issued by this Tribunal (See Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2014] eKLR).

20. On the second front, this Tribunal, section 40(2) of the Political Parties Act requires a party to attempt to subject a dispute falling under section 40(1) (a) (b), (c) (e) or (fa) to a political party’s IDRM before filing it with the Tribunal. The key word is attempt.There is no requirement to exhaust the IDRM. This Tribunal has had occasion to discuss what amounts to a good faith attempt in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022).

21. In this instance, the 1st Interested Party whose IDRM is the subject of the preliminary objection, has confirmed that there were attempts at pursuing the same. There is also evidence of meetings held with the members of the 1st Interested Party in the County Assembly of Kitui. In the circumstances, it cannot be said that there was non compliance with section 40(2) of the Political Parties Act.

22. The preliminary objections are therefore without merit and the same are dismissed.

Whether due process was followed in removal of the 1st and 2nd Respondents from their positions as leader of majority and majority whip respectively in the county assembly of Kitui. 23. The 1st and 2nd Respondents were removed from their respective positions following a meeting held on 4th September 2023. They allege that they never received notice of the meeting. They raise an objection with the screenshots of the invitations annexed to the Replying Affidavit of Shakila Abdala sworn on 27th November 2023 on the basis that a certificate of electronic evidence was not attached. The Tribunal has however had sight of a certificate of electronic evidence dated 27th November 2023 annexed to the aforesaid Replying Affidavit.

24. As regards the meeting, the Tribunal finds on a balance of probability that the 1st and 2nd Respondents were notified of the meeting of 4th September 2023 but they failed to attend.

25. The 1st and 2nd Respondents contend that the meeting that led to their removal did not get to the threshold of 50% since Honourable Mary Mbithe denied having attended the meeting in an undated letter to the Speaker of the 2nd Interested Party. However the said Mary Mbithe swore an affidavit in which she recanted her undated letter and confirmed that she indeed signed the minutes.

26. The 1st and 2nd Respondents have not denied having attended the meeting of 8th September 2023 with the management committee of the 1st Interested Party at which the issue of their removal was discussed. They never raised those issues during that meeting. Indeed, the Tribunal has not seen any attempt by the 1st and 2nd Respondents to protest against their removal from office.

27. In the circumstances, we find that the process of removal of the 1st and 2nd Respondents from their positions as leader of majority and majority whip complied with the standing orders of the County Assembly of Kitui as well as with the rules of natural justice and we have no reason to fault the process.

Whether the orders sought can be granted. 28. We are alive to the fact that election of leader of majority and majority whip is a political process which the Tribunal should keep away from in the first instance. However, the Tribunal is not being called upon to elect the leadership rather it is our understanding that the Tribunal is being called upon to give effect to the wishes of the members of the County Assembly of Kitui which have not been acted upon by the Speaker of the 2nd Interested Party. The reason given by the Speaker of the 2nd Interested Party for failing to give effect to the resolutions of the majority party cannot stand. The standing orders require that communication to the Speaker is done by the majority whip. This was done by the 2nd Complainant in a letter dated 5th September 2023. However the Speaker did not act on this letter on the basis that it should have been signed by the majority whip or the deputy majority whip. The Speaker seems to have abandoned his role as a neutral umpire and waded into the dispute involving the members of the majority party in the county assembly of Kitui.

29. For the foregoing reasons, we issue the following orders:-i.A declaration is hereby issued that the process of removal of the 1st and 2nd Respondents as leader of majority and majority whip respectively in the County Assembly of Kitui and the election of the Complainants as leader of majority and majority whip respectively in the County Assembly of Kitui in a meeting held on 4th September 2023 was lawful and proper.ii.Unless otherwise elected as such subsequently, the 1st and 2nd Respondents are hereby restrained from holding themselves or acting as the leader of majority and majority whip respectively in the County Assembly of Kitui.

30. Each party shall bear its own costs.

DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JANUARY 2024. DR. WILFRED MUTUBWA - VICE CHAIRPERSON PRESIDINGGAD GATHU - MEMBERTHERESA CHEPKWONY - MEMBER