[2023] KEPPDT 1364 (KLR)

Nchore & another v Democratic Party & 2 others; Registrar of Political Parties (Interested Party) (Complaint E016 (NRB 'A') of 2023) [2023] KEPPDT 1364 (KLR) (6 December 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1364 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E016 (NRB 'A') of 2023

G. Gathu, Presiding Member, MM Yusuf Jin & S Musau, Members

December 6, 2023

Between

Jesse Saruni Nchore

1st Complainant

Kipng'etich Sigey

2nd Complainant

and

Democratic Party

1st Respondent

Dr Jacob Haji, Secretary General

2nd Respondent

Esau Kioni, Chairman

3rd Respondent

and

Registrar Of Political Parties

Interested Party

Judgment

Introduction 1. Vide an amended Complaint dated 27th October 2023, the Complainants seek the following orders:-1. THAT this Honorable Tribunal do grant Temporary orders and/or restraining and conservatory grants an order restraining the 1st Respondents either by themselves, their agents, servants, employees or any other person or any member of the 1st Respondent from convening any meeting of the National Governing Council on 8th September, 2023 or any other day and/or dealing, acting or undertaking in anyway whatsoever and/or discussing and/or effecting any changes in the National Executive Committee effectingALL the resolutions arrived at during the NGC meeting held on 8th September, 2023. 2.THAT an order be issued allowing the Claimants to form an interim committee to run the 1st Respondent’s affair’s mobilize resources to plan for a National Delegates Conference an ensure an election is conducted compelling the 1st Respondent to openly, and publicly form a committee to mobilize resources to conduct a National Delegates Conference, to ensure that a proper election is conducted with the key inclusion of all the members.3. THAT upon granting prayer (b) above an order be issued directing the 1st Respondent to conduct the National Executive Committee elections through a National Delegates Conference within the next 9 months.4. An order declaring that the Resolutions and/or ratification resultant from the meeting held on 8th September, 2023, were illegal, irregular, null and void.5. THAT an order be issued restraining the Respondents either by themselves, their agents, servants, employees or any other person or any member of the 1st Respondent from dealing with the Nomination fees paid to the 1st Respondent by the National Executive Committee aspirants pending the hearing and determination of this application Complaint.6. THAT cost of this suit be provided for.

2. The amended complaint was filed pursuant to leave granted by this Tribunal on 10th November 2023. In response to the amended Complaint, the 1st Respondent filed a response dated 16th November 2023. The 2nd and 3rd Respondents filed a response dated 14th November 2023.

3. The Interested Party filed a Replying Affidavit sworn on 27th November 2023 by Joy Onyango.

The Complainants’ case. 4. The Complainants’ case is that the Respondents have violated the constitution of the1st Respondent in various ways which are summarized below:- 1. Failing to hold a National Delegates Convention (NDC).

2. Substituting the NDC with the National Governing Council (NGC) which was held on 8th September 2023.

3. Charging nomination fees to aspirants intending to vie for various positions in the 1st Respondent.

4. Intending to co-opt members into the National Executive Committee (NEC) through the NGC rather than hold elections.

5. The Complainants state that they have made various attempts to have the issues they have raised resolved through the 1st Respondent’s Internal Dispute Resolution Mechanism but these efforts have not borne fruit.

The 1st Respondent’s case. 6. The 1st Respondent contends that an NDC was indeed scheduled for 18th August 2023. However, the 1st Respondent’s NEC resolved to cancel the NDC and also postpone elections for members of the NEC due to various challenges including financial challenges.

7. The 1st Respondent’s NEC and the Party Management Committee thereafter found it prudent to call upon the NGC to ratify urgent business for the functioning of the 1st Respondent. The NGC was subsequently held on 8th September 2023.

8. The 1st Respondent also raises an issue with the justiciability of the concerns over the resolutions of the NGC held on 8th September 2023 given that the same were not part of the initial complaint.

The 2nd and 3rd Respondent’s case. 9. The 2nd and 3rd Respondents contend that the 1st Respondent’s NEC met on 6th July 2023 and inter alia other resolutions resolved that the Independent Electoral and Boundaries Commission (IEBC) would supervise party elections during the 1st Respondent’s NDC. The NDC would be held on 18th August 2023 and that a notice advertising the same would be sent out by 11th July 2023.

10. On 1st August 2023, the Management Committee of the 1st Respondent met and resolved to revoke the notice calling for the NDC due to financial constraints.

11. The 2nd and 3rd Respondents contend that the NGC proceeded on 8th September 2023 and the following resolutions were arrived at:-1. The 1st Respondent would work with like minded Parties in future.2. The 1st Respondent would start grassroot elections in all counties with immediate effect. These elections will be supervised by the Party Elections Commission in preparation for the NDC and the General Elections of 2027.

12. The 2nd and 3rd Respondents further contend that the amended Complaint raises issues that have not been subjected to the 1st Respondent’s IDRM thus ousting the jurisdiction of this Honourable Tribunal.

The Interested Party’s case. 13. The Interested Party filed a Replying Affidavit sworn by Joy Onyango on 27th November 2023. This affidavit was filed on 4th December 2023 way after the Tribunal had given a date for judgement. However, given the statutory functions of the Interested Party and the nature of this dispute, the Tribunal found it prudent to consider the affidavit.

14. The Interested Party’s position is that it is yet to make a determination on the substance of the matters raised by the Complainants. However, it has confirmed knowledge of the issues raised by the Complainants as well as the minutes of the NGC held on 8th September 2023 submitted to it by the 1st Respondent on 21st September 2023.

Issues for determination 15. The Tribunal has analyzed the parties pleadings and statements herein and determined that the issues for determination are:-1. Whether this Tribunal has jurisdiction to hear and determine the dispute on account of the alleged new matters raised by the Complainants in the amended Complaint.2. Whether the charging of nomination fees by the 1st Respondent to aspirants for various positions in the 1st Respondent and its organs were lawful.3. Whether the NGC held on 8th September 2023 and resolutions arrived therein were lawful.

Analysis and Determination. Whether this Tribunal has jurisdiction to hear and determine the dispute on account of the alleged new matters raised by the Complainants in the amended Complaint. 16. The Respondents submit that the Complainants have raised new matters in their amended complaint which new matters oust the jurisdiction of the Tribunal in accordance with section 40(2) of the Political Parties Act which reads thus:-“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.”

17. According to the Respondents, the new matters are to do with the resolutions arrived at during the NGC and the exclusion of major stakeholders.

18. It is not in dispute that the Complainants had raised an issue with the NGC held on 8th September 2023. Indeed, the Complainants made efforts to stop the NGC through this Tribunal which efforts were not successful. The Interested Party’s letter dated 30th August 2023 addressed to the 2nd Respondent also notes that the Complainants had raised issues with the NGC scheduled for 8th September 2023. The Interested Party directed the 2nd Respondent to resolve the issues through IDRM.

19. It is therefore not in doubt that the Complainants had attempted to invoke IDRM towards resolution of their concerns with the scheduled NGC. The Tribunal finds that these issues were broad enough to cover the entire conduct of the NGC and the Complainants can therefore not be said to have introduced new matters.

20. The Tribunal therefore has jurisdiction to hear and determine the dispute.

Whether the charging of nomination fees by the 1st Respondent to aspirants for various positions in the 1st Respondent and its organs were lawful. 21. Article 30 of the 1st Respondent’s Constitution provides for the sources of funds for the 1st Respondent. The sources include:-1. Membership dues2. Voluntary contributions3. Donations, bequests and grants;4. Proceeds of any investment, project or undertaking;5. Net income from publications and other items offered for sale to the public.6. Such public funds as may be provided under the Political Parties Act or any other law.

22. The above provision is in line with section 27 of the Political Parties Act. The Complainants are dissatisfied with the amounts charged as well as the level of membership participation in arriving at the figures charged.

23. Membership dues or fees are payments that members are required to pay. These would include fees payable by a special category of members for example aspirants. Nomination fees are part of membership dues from a special category of membership and we have not been pointed to any provision in the law or in the 1st Respondent’s constitution prohibiting the raising of funds through such means. It also seems to be a non-contentious point that the 1st Respondent needs to raise funds to finance various activities including the proposed NDC.

24. Obviously such fees should be arrived at after consultation with the membership and should be passed by the relevant party organs. We have not seen any evidence that the same was not done and we cannot fault the Respondents over this.

Whether the NGC held on 8th September 2023 and resolutions arrived therein were lawful. 25. The validity of the NGC held on 8th September 2023 touches on three issues being the notice period for the meeting, the attendance at the meeting and the resolutions thereof.

26. The 2nd Respondent did issue a notice calling for the NGC on 8th September 2023. The Notice was published on 17th August 2023. The Complainants were aware of the notice and even moved this tribunal seeking to stop the NGC. Article 13 (f) of the 1st Respondent’s constitution provides that the notice of the NGC meeting should be issued at least fourteen (14) days before the meeting. This requirement was observed noting the date of the notice as aforesaid.

27. The notice also indicated the categories of persons eligible to attend the meeting. From a plain reading of the notice, the criteria of eligibility to attend the meeting was as specified in article 13 (b) of the 1st Respondent’s constitution. This criteria was replicated word for word on the said notice. We therefore cannot fault the Respondents on the issuance of the notice.

28. On the attendance at the meeting, we note that this is a compliance issue within the mandate of the Interested Party. The Interested Party has the necessary expertise and capacity to determine that the attendance at the meeting comprised of bonafide members of the 1st Respondent duly authorized to attend the meeting. The Interested Party has indicated that the matter is pending before it and it is only fair that the Tribunal allows the Interested Party to discharge its mandate in that regard noting the appellate jurisdiction of this Tribunal as regards decisions of the Interested Party.

29. As regards resolutions arrived at the said meeting, we note that the resolutions arrived at the meeting were:-1. The 1st Respondent would work with like minded Parties in future.2. The 1st Respondent would start grassroot elections in all counties with immediate effect. These elections will be supervised by the Party Elections Commission in preparation for the NDC and the General Elections of 2027. 3.The NGC approved the proposed constitutional amendments. Elijah Mbweke, Chairperson Kisii County proposed and was seconded by Janeffer Kimetto, Chairperson, Narok County.”

30. Of interest is resolution number 3. The interest arises on the question of whether the NGC can lawfully amend the 1st Respondent’s constitution. Article 12 as read with article 37 of the 1st Respondent’s constitution points to this being the mandate of theNDC. The NEC can only provisionally pass a resolution amending the Constitution and that amendment must be ratified by the NDC. The NGC does not seem to have any role in the amendment of the 1st Respondent’s constitution.

31. As such, the resolution is contrary to the 1st Respondent’s constitution and therefore null and void. This finding does not affect the other two resolutions.

Final disposition: 32. The final orders of the Tribunal are:-1. A declaration is hereby issued that the specific resolution of the 1st Respondent’s NGC held on 8th September 2023 purporting to amend the 1st Respondent’s constitution is null and void. This finding does not affect the other two resolutions.2. Save for the foregoing declaration, the Complainants complaint is otherwise dismissed.3. In the interest of party unity, each party shall bear its own costs.

DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF DECEMBER 2023. GAD GATHU - (PRESIDING MEMBER)MUZNA JIN - (MEMBER)STEPHEN MUSAU - (MEMBER)