[2024] KEPPDT 364 (KLR)

Nifiu & 2 others v The County Assembly of Nairobi City & 4 others; Joshua Kuttuny (Interested Party) (Complaint E025 (NRB A) of 2023) [2024] KEPPDT 364 (KLR) (22 February 2024) (Judgment)

Neutral citation: [2024] KEPPDT 364 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E025 (NRB A) of 2023

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

February 22, 2024

Between

Hon.Fiu Nifiu

1st Complainant

Hon.Robert Mbatia

2nd Complainant

Hon.Mary Wanjiru Kariuki

3rd Complainant

and

The County Assembly of Nairobi City

1st Respondent

Majority Chief Whip, Nairobi County Assembly

2nd Respondent

Azimio La Umoja One Kenya Coalition

3rd Respondent

The Jubilee Party

4th Respondent

Hon.Jeremiah Kioni

5th Respondent

and

Hon. Joshua Kuttuny

Interested Party

Judgment

1. This dispute concerns the membership of the Complainants in various committees of the County

Assembly of Nairobi. 2. On 27th October 2023, the Complainants claim that they were appointed to various committees of the County Assembly of Nairobi. They further claim that the the 1st and 3rd Complainants held leadership positions within the Environment and Natural Resources Committee and the Labour and Social Services Committee respectively.

3. On 20th April 2023, the 5th Respondent wrote to the 3rd Respondent requesting the de-whipping of the Complainants from various committees of the Assembly on the ground that the Complainantswere working against the position of the 4th Respondent while being members of the 4th Respondent through the 1st Respondent.

4. On 24th April 2023, the 3rd Respondent issued notices of discharge from various committees tothe Complainants which took effect immediately. The Complainants then attempted to appeal to the Speaker of the 2nd Respondent to have the decision rescinded to no avail. They thereafter approached the 1st Respondent, which eventually resolved the matter in their favour.

5. The Complainants allege that even after the 1st Respondent resolved the matter in their favour, the 2nd and 3rd Respondents have failed to reinstate them to various committees hence occasioning the filing of this Complaint.

6. Vide a Complaint dated 30th November 2023, the Complainants seek the following orders:i.A Declaration that the disciplinary action taken against the Complainants herein in terms of discharged from Committees of the County Assembly of Nairobi City was unlawful, illegal, invalid, null and void.ii.A Declaration that the letter by the 5th Respondent dated 20th April 2023 is illegal, invalid and ofno effect.iii.An Order in the nature of an injunction to Quash the Notices of Discharge from Committees bythe 3rd Respondent to the Complainants dated 24th April 2023. iv.An Order for compensation for loss of income during the period of absence from committee sittings to be borne by the 3rd and 5th Respondents.v.Any other further or alternative Order as the Honourable Tribunal may deem fit.vi.Costs and interests of this suit.7. The Complaint is opposed by the 2nd and 3rd Respondents who filed Grounds of Opposition dated 19th January 2023. The 1st Respondent and the Interested Party support the Complain. The 4th and 5th Respondents did not participate in these proceedings in spite of having been served.

The Complainants’ case. 1. The Complainants case is that the 1st and 2nd Complainants are elected members of the County Assembly of Nairobi representing Karura and Kariobangi South wards respectively while the 3rd Complainant is a nominated member of the said County Assembly.

2. On 27th October 2023, the Complainants were appointed to various committees of the CountyAssembly of Nairobi with the 1st and 3rd Complainants holding leadership positions within the Environment and Natural Resources Committee and the Labour and Social Services Committee respectively.

3. The Complainants claim that the 5th Respondent wrote a letter dated 20th April 2023 to the 3rdRespondent urging for the discharge of the Complainants from various committees of the County Assembly of Nairobi. Acting on the said letter, the 3rd Respondent proceeded to issue notices of discharge to the Complainants vide letters dated 24th April 2023.

4. The Complainants claim that the 5th Respondent had no authority to issue the said letter dated20th April 2023, having been suspended from the 1st Respondent and considering the decision of this Tribunal in NRB PPDT APPEAL NO. E001 OF 2023 which was rendered on 19th April 2023.

5. The Complainants further contend that the decision to discharge them from various committees was taken without affording them a fair hearing. The decision also meant that they did not belong to any committees of the 2nd Respondent which effectively contravened the provisions of section 14 (1) (4) of the County Governments Act. The said section requires that a member of a County Assembly belongs to at least one committee of the Assembly.

The 1st Respondent’s and the Interested Party’s Case. 6. The 1st Respondent filed a Replying Affidavit sworn by Nelson Dzuya on 22nd December 2023. The Interested Party filed a Replying Affidavit which he swore on 22nd December 2023. Though variously described as a 1st Interested Party, there being no other Interested Party then the proper reference to him is Interested Party.

7. The affidavits by the 1st Respondent and the Interested Party are almost similar, word for word.8. Summarized, the 1st Respondent’s and the Interested Party’s case is that the 5th Respondent’s letter dated 20th April 2023 addressed to the 3rd Respondent is illegal, null and void. The reason according to the 1st Respondent and the Interested Party is that at the time, the 5th Respondent had been suspended from the 1st Respondent vide resolutions of the 1st Respondent’s NEC dated 10th February 2023. The 5th Respondent filed an appeal before this Tribunal being NRB PPDT APPEAL NO. E001 OF 2023. In a judgement rendered on 19th April 2023, this Tribunal declined to quash the said resolutions.

9. In the circumstances according to the 1st Respondent and the Interested Party, the 3rdRespondent should not have acted on the letter dated 20th April 2023 but rather should have acted on a letter dated 24th April 2023 written by Hon. Kanini Kega on behalf of the 1st Respondent.

9. The 1st Respondent and the Interested Party also argues that the purported disciplinary action against the Complainants was carried out in contravention of the 1st Respondent’s constitution. For this reason, the 1st Respondent and the Interested Party indicate that the NEC of the 1st Respondent met and resolved that the Complainants be reinstated to the various committees which they were members of. This decision of the NEC was communicated to the 3rd Respondent vide a letter dated 24th October 2023.

10. The 1st Respondent and the Interested Party further indicated that the 5th Respondent had taken out contempt proceedings against the 1st Interested party in NRB HCCC NO. E060 OF 2023 but claims that the 1st Interested Party is not in contempt.

11. The 1st Respondent and the Interested Party therefore seek that the Complaint be allowed with costs to be borne by the 3rd and 5th Respondents.

The 2nd and 3rd Respondents case. 9. The 2nd and 3rd Respondents filed Grounds of Opposition dated 19th January 2023. Summarized, the 2nd and 3rd Respondents case is that the 2nd Respondent is not a proper party to this suit. They contend that the 2nd Respondent is not a political party and cannot be involved in the affairs of any political party in the assembly.

9. Moreover, they contend that the 2nd Respondent does not allocate committees to its members and only approves names of members that are tabled by the Selection Committee.

10. The 2nd and 3rd Respondents further contend that that the 3rd Respondent is only mandated to propose names of members to join various committees but the ultimate decision is made by a Select Committee and the final approval by the 2nd Respondent.

11. The 2nd and 3rd Respondents also argue that the dispute is prematurely before the Tribunal as it has never been subjected to the 1st and 4th Respondents Internal Dispute Resolution Mechanism (IDRM) as required by section 40 (2) of the Political Parties Act.

Issues for determination 9. The Tribunal has analyzed the matter and framed the following issues for determination: -a.Whether the 2nd Respondent should be struck off from this Complaint.b.Whether this Tribunal has jurisdiction to hear and determine this dispute.c.Whether due process was followed prior to the discharge of the Complainants from various Committees of the County Assembly of Nairobi.d.Whether the orders sought should be granted.

Analysis and Determination.

Whether the 2nd Respondent should be struck off from the suit. 18. Vide its Grounds of Opposition dated 19th January 2023, the 2nd Respondent has indicated thatit is not a proper party to this dispute and sought to be struck out from the suit. On the other hand, the Complainants argue that the 2nd Respondent is a necessary party in the matter to give effect to any orders of the Tribunal and that in any event, under Order 1 rule 9 of the Civil Procedure Rules, no suit should be defeated by reason of misjoinder or non-joinder of a party.

19. While indeed the 2nd Respondent is not one of the parties envisaged under section 40 (1) of thePolitical Parties Act, it is clear that it is a necessary party to this dispute. The committees which the Complainants complaint of having been discharged from are organs of the County Assembly pursuant to section 14 (1) (b) of the County Governments Act.

18. As such, the prayer to have the 2nd Respondent struck out from the Complaint is not merited. Whether Tribunal has jurisdiction to hear and determine this dispute.

19. The 2nd and 3rd Respondents have challenged the jurisdiction of this Tribunal to hear and determine this dispute. Vide their Grounds of Opposition dated 19th January 2023, they claim that the Complainants have not exhausted the Internal Dispute Resolution Mechanisms (IDRM) of the 1st and 4th Respondents. They urge the Tribunal to be guided by the decision of this Tribunal in PPDT Complaint Number E020 of 2023-Anthony Kiragu & Another vs UDA and another.

20. 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 as claimed by the 2nd and 3rd Respondents. This Tribunal has had occasion to consider what amounts to a good faith bonafidesattempt in John Mworia Nchebere & Others vs The National Chairman Orange Democratic Movement & Others (Nrb PPDT Complaint No. E002 OF 2022).

18. In this instance, the Complainants have indicated that they attempted to have the dispute resolved internally through the IDRM of the 1st Respondent. The 1st Respondent does not deny this and actually confirms that its National Executive Committee met on 23rd October 2023 and resolved that the decision to discharge of the Complainants from various committees of the County Assembly of Nairobi be revoked. This decision was communicated to the Speaker and the Majority Whip of the County Assembly vide a letter dated 24th October 2024.

19. The 4th Respondent did not participate in these proceedings in spite of having been served. It is only the 1st Respondent which participated and having confirmed that the Complainants did invoke its IDRM, there can be no basis for holding that the Complainants did not comply with the provisions of section 40(2) of the Political Parties Act.Whether due process was followed in the discharge of the Complainants from various committees of the 2nd Respondent.

18. Article 47 (1) of the Constitution of Kenya provides that Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

19. Section 2 of the Fair Administrative Actions Act defines “administrative action” as including:(a) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (b) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;

20. The actions of the 5th Respondent and the 3rd Respondent in writing the letters dated 20th April2023 and 24th April 2023 were clearly administrative actions. It fell upon the 5th and the 3rd Respondents to ensure that the actions were procedurally fair. A key element of procedural fairness that they should have observed is according the Complainants a chance to be heard prior to taking the administrative action complained of.

28. It seems that upon receipt of the letter written by the 5th Respondent on behalf of the 1stRespondent dated 20th April 2023, the 3rd Respondent proceeded to issue the notices of discharge to the Complainants on 24th April 2023.

29. There is no indication from the 3rd Respondent as to whether the Complainants were accorded a hearing prior to issuing the notice of discharge. Moreover, notwithstanding the leadership disputes in the 1st Respondent, there has been no indication that the Complainants were accorded a hearing prior to the letter dated 20th April 2023 being issued on behalf of the 1st Respondent.

30. The decision to discharge the Complainants from the various committees therefore smacks of procedural unfairness.

31. In any event, section 14 (1) (4) of the County Governments Act requires that a member of the County Assembly is appointed to at least one Committee of the County Assembly. The Complainants seem to have been discharged from all Committees of which they were members thus contravening the aforesaid provision of the County Governments Act.

32. In the circumstances, the decision to discharge the Complainants from various commitees of the2nd Respondent is unlawful.

Whether the orders sought can be granted. 28. Having found that the process of removal of the Complainants was not fair or lawful, we have no hesitation in revoking the directive by the majority whip discharging the Complainants from various committees. However, as regards the prayer for compensation for loss of income, we note that the Complainants did not annex evidence of the income due to them. The Supplementary Affidavit of the 1st Complainant sworn on 30th January 2024 does not have any of the annexures it purports to be annexed to it. However, on 2nd February 2024, Counsel for the Complainants however filed a tabulation of the purported monthly income lost in respect of the 1st and 3rd Complainants. Apart from the tabulation, no other documents were filed. The tabulation was also not introduced by way of an affidavit.

29. As such, the Tribunal finds that there is no evidence of the income that the Complainants purport to have lost. In any event, the Complainants have not complained that their salaries were not paid.

What they complain about is allowances from committee sittings. 28. The Principles of Public Finance under Article 201 of the Constitution require that public money is used in a prudent and responsible manner. It would not be prudent or responsible to pay sittings which the Complainants did not attend.

29. Odunga J (as he then was) in Republic v The Speaker of County Assembly of Nyandarua Interested Party Samuel Kimani Gachuhi Ex Parte David Mwangi Ndirangu [2016]eKLR held as follows with regard to prayers for payment of allowances due for the period the Applicant was not in office:-With respect to the other allowances I agree that the same are only due and payable when actual work has been done. I therefore agree that pursuant to the provisions of Article 201 of the Constitution, the applicant is not entitled to the same.

28. In the circumstances, we decline the prayer for payment of compensation to the Complainants.

29. For the foregoing reasons, we issue the following declaration that the disciplinary action taken against the Complainants herein in terms of being discharged from Committees of the County Assembly of Nairobi was unlawful, illegal, invalid, null and void and therefore of no effect.

39. For avoidance of doubt, prayers number (i), (ii) and (iii) of the complaint are allowed.

40. Any other order/declaration not specifically issued is declined.

41. Each party shall bear its own costs.

Dated and delivered virtually this 22nd day of February 2024. Dr. Wilfred Mutubwa ……………… ………………………………(Vice Chairperson Presiding)Gad Gathu………… …………………………………..(Member)Theresa Chepkwony …… ………………………………..(Member)5/5