[2022] KEPPDT 962 (KLR)

Nyamu & 2 others v Muturi & 4 others; Registrar of Political Parties & 2 others (Interested Parties) (Complaint E010 (NRB) of 2022) [2022] KEPPDT 962 (KLR) (Civ) (20 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 962 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E010 (NRB) of 2022

J M’Mbetsa, Presiding Member, S M Nderitu & AM Mbithi, Members

May 20, 2022

Between

Wambugu Nyamu

1st Complainant

Daniel K Munene

2nd Complainant

King’ori Choto

3rd Complainant

and

Justin B Muturi

1st Respondent

Esau Kioni

2nd Respondent

Jacob Haji

3rd Respondent

Joseph Munyao

4th Respondent

Joseph Mathai

5th Respondent

and

Registrar Of Political Parties

Interested Party

Democratic Party Of Kenya

Interested Party

Kenya Kwanza

Interested Party

Judgment

The Background 1. The complaint in this matter was filed under certificate of urgency together with a notice of motion application all dated April 11, 2022. The complainants sought orders that; the Tribunal be pleased to order that the coalition agreement between the Democratic Party and the 3rd interested party is null and void, the appointment of the 1st respondent as party leader of the democratic Party is null and void and the Director of Criminal Investigations and Ethics and Anti-Corruption Commission investigates the source of undisclosed funds used to organize and host the Party’s National Delegates Convention (NDC) of February 20th with the view to charging and prosecuting culprits thereof.

2. The matter was certified urgent by the tribunal on April 13, 2022 and the complainants were directed to serve the pleadings upon the respondents and all Interested parties. The Tribunal also directed that once served, the parties file their responses and appear before the tribunal on April 19, 2022 for further directions. There were several other adjournments granted to enable compliance and also give parties an opportunity to resolve the complaints through the Internal Dispute Resolution Mechanisms of the 2nd Interested Party. The parties were not able to resolve the matter amicably and eventually on May 12, 2022, the Complaint was heard by way of highlights of written submission. After the hearing, the Complainants renewed their application for interim orders pending determination of this matter today. Noting that the matter was pending for over a month before us and the parties could not reach consensus, the Tribunal found merit in granting interim orders to safeguard the subject matter of the complaint.

The Complainant’s Case 3. The complainants stated that on February 20, 2022, a Special National Delegates Convention (SNDC) of the 2nd interested party was held where one of the resolutions passed was the appointment of the 1st respondent as Party Leader of the Democratic Party. It was also resolved that that he would contest for Presidency on the Party ticket and that the Party would not get into any form of pre-election coalition agreements before the August 2022 General Elections but would only consider a post-election agreement. The complainants’ case was that the 1st respondent’s ascension to office as the Party Leader was endorsed by the national delegates with resistance, because he had not paid the subscription fees and he had not been a member of the Party, at least a year prior to the said appointment.

4. The complainants submitted that this appointment of the 1st respondent was thus unlawful and contravened article 10 (b) (I) of the Party Constitution which provides that no person, except with the leave on application granted by a majority decision of the outgoing National Executive Committee (NEC), shall be eligible to be elected if such a person had not been a member of the party for a period of one year preceding such election for the position of Party Leader.

5. The complainants further alleged that the respondents had been conducting affairs of the party in an improper manner, had concealed information on the delegates who attended the convention and failed to disclose the source of funds for the branded T- shirts and caps which were used during the convention. They further allege that the funds used at the SNDC meeting have not been accounted for since the meeting as the same were not channeled through the appropriate party structures and accounting systems.

6. The complainants assert that the jurisdiction of the tribunal is invoked where it is established that there was an attempt to resolve the dispute at the party level in accordance with section 40(2) of the Political Parties Act (Revised Edition 2022). The complainants stated that they wrote a complaint to the Secretary General of the 2nd interested party seeking resolution of among other issues the irregular appointment of the 1st respondent as party leader. They alleged that the complaint was not acted upon even after the expiry of 21 days given and that they wrote another letter dated March 23, 2022 which was also not acted upon.

7. The complainants aver that the 3rd respondent wrote a letter dated April 21, 2022 to the 1st interested party alleging that a reconciliatory meeting held to resolve the complaints had resolved to have the complainants withdraw the current complaint which was misleading. When the matter came up for mention on April 22, 2022, counsel for the 2nd interested party sought for more time to resolve the dispute and gave a commitment that the Party would hold a Special NDC as recommended by the Ad-hoc Committee before the end of April 2022. However, this was not forthcoming even at the date when the matter was heard.

8. The complainants submit that they made attempts to resolve the dispute through the party’s internal dispute resolution mechanism but their attempts were frustrated by the respondents. The complainants relied on the case of Musalia Mudavadi and 4 others v Angela Gathoni Wambura and 2 others (2019) which held that;‘’...there are situations where political parties may for their own reasons refuse to set in motion their IDRM when called upon to do so by aggrieved parties. If the court were to be confronted by such a situation, it would not be powerless and would be in a position to grant the aggrieved party a remedy that would best serve the ends of justice...’’The complainants thus plead that the tribunal has jurisdiction to entertain the matter.

9. Regarding, the signing of a coalition agreement between the respondents on behalf of the 2nd interested party, the Complainants submitted that the authority to enter into a coalition agreement is the preserve of the NDC and the respondents cannot purport to make decisions on behalf of the NDC. The Complainants argue that such decisions can only be made by at least 250 members at an NDC and not by the Respondents.

The 1st, 2nd, 4th and 5th Respondents' Case 10. The said respondents raised a preliminary objection regarding the jurisdiction of the Tribunal on grounds that the dispute, pursuant to section 40 (2) of the thePolitical Parties Act of 2011 and article 38 of Constitution of the 2nd interested party, should be heard and determined by the internal party dispute resolution mechanism, before proceeding to the tribunal. The respondents alleged that the Complainants failed to adhere to the said provision and further that they had not made any attempts to resolve the dispute within the party as required by the Constitution of the 2nd interested party. The respondents also alleged that the complaint instituted was time barred since Section 7(1) of the Political Parties Act provides that ‘’a dispute to the tribunal shall be commenced within thirty days from the date of the decision complained of...’’ It was the respondent’s case that the election of the 1st respondent was conducted on February 20, 2022 and as per section 7(1) (b) of the Political Parties Act the complaint ought to have been lodged with the Tribunal on or before March 19, 2022.

11. The respondents averred that the complainants also failed to follow the laid down procedure in launching a complaint as provided for in the 2nd interested party’s constitution. The respondents’ alleged that the complainants did not demonstrate that they wrote any letter to the secretary general of the 2nd interested party. The 1st, 2nd ,4th and 5th respondent say that they formed an ad hoc committee to investigate the matter but as the investigations were being carried out, the Complainants instituted the suit before the committee could complete its work. The Respondents submit that the complainants were not keen on invoking the internal dispute resolution mechanism considering the time between launching the complaint with the registrar of political parties and filing the complaint.

12. The respondents further submit that the 1st respondent is a member of the Democratic Party of Kenya having been issued with a membership certificate by the 1st interested party after meeting the necessary requirements. They defend the appointment of the 1st respondent as the party leader saying that following the National Executive Committee meeting held on February 8, 2022, the 1st respondent was recommended for appointment as party leader at the Special National Delegates Convention that was held on February 20, 2022. It is their case that the appointment was done in accordance with the party constitution and that the subsequent signing of a coalition agreement by the 1st respondent with the 3rd interested party was done in consultation with the 2nd respondent herein, who is the National Chairman of the Party.

13. It is the respondents position that an NDC is held every 5 years and that a Special NDC can be convened by the party leader on the request of NEC or on requisition by signatures of at least a third of the delegates. The respondents term the allegations regarding the source of and misuse of funds as bare allegation and put the complainants to strict proof of the allegations. It is their position that donations and contributions are recognized under article 30 of the Party constitution as some of the sources of party funds. The Respondents further state that the Party upholds the policy of zero tolerance to corruption.

The 1st Interested Party’s Case 14. The 1st interested party in its replying affidavit stated that it received a letter dated March 17, 2022 from Democratic Party of Kenya submitting documents pertaining to the Special National Delegates Convention held on February 20, 2022. The Party additionally submitted minutes of the NDC, notice convening the Special NDC and a Notice and Minutes of the Management Committee Meeting held on March 8, 2022, whose intent was to ratify the resolutions of the Special National Delegates Convention.

15. The 1st Interested Party further stated that one of the agendas of the Special National Delegates Convention was the change of the party officials. The 1st Interested Party averred that they reviewed the aforementioned documents and in accordance with its mandate initiated the gazettement of the change of the governing body of the 2nd Interested Party. The form filed with the Registrar shows that the change in National Officials that was being made was the Appointment of the 1st Respondent as Party Leader and the 4th Respondent as the Party Patron.

The 2nd Interested Party’s Case 16. The 2nd Interested Party’s position in this matter is articulated by its Secretary General who is also the 3rd Respondent herein. In his affidavit of April 22, 2022, the Secretary General notes that this Tribunal issued Orders on April 19, 2022 giving parties time to resolve the issues internally as provided for in the Party Constitution. The deponent avers that the Ad-hoc Committee convened by the Party met on April 19, 2022 and the meeting was followed by a National Executive Committee meeting on April 20, 2022 in which the Complainants were present. The deponent at paragraph 8 of the affidavit says that one of the resolutions from the NEC was for the 1st Respondent to convene a Special NDC as soon as possible.

17. There was no appearance by the 3rd Interested Party despite being served and the matter proceeded in their absence. Parties thereafter filed their written submissions and did oral highlights on May 12, 2022. It was also indicated by counsel for the Complainants that the 1st Complainant had instructed him that he no longer wished to pursue the complaint and wished that his name be expunged from the proceedings. This request was not opposed by any of the Parties and the Tribunal granted the request. For good order however and since this request was made during the hearing, the heading of the judgment has the names of all the Complainants. There is no prejudice either to be suffered by the said Complainant since no adverse orders are being issued against him.

18. The Complainants state in the Pleadings that the Democratic Party of Kenya was founded on December 25, 1991 by the retired 3rd President of the Republic of Kenya Mzee Mwai Kibaki, who is now gone before us and may his soul rest in peace. The slogan of the party from the face of the Constitution is ‘Umoja na Haki’ and this is captured in all the other pages of the Constitution as ‘Unity & Justice’. Some of the guiding principles and values of the Party set out at page 2 are accountability, transparency, dignity, tolerance, integrity in leadership, rule of law, unity in diversity, equity, equality and inclusivity. In making this decision, this Tribunal has been guided not only by the Constitution of Kenya and the laws of the land but also by the constitution of the 2nd Interested Party.

Issues For Determination 19. The tribunal has considered all the pleadings filed together with written submissions and after hearing the parties, we frame the following issues for determination:a.Whether this Tribunal has the Jurisdiction to hear and determine this complaint;b.Whether the 2nd Interested Party’s Coalition Agreement with the 3rd Interested Party was entered into in accordance with the Party Constitution;c.Whether the 1st Respondent was validly nominated and elected as the Party Leader of the 2nd Interested Party;d.Whether the donation of funds for the Special NDC held on February 20, 2022 is contrary to Section 28 of the Political Parties Act and theConstitution of the 2nd Interested Party; ande.What orders lend themselves for us to issue?

Issue A: Whether this Tribunal has the Jurisdiction to hear and determine this Complaint 20. The 1st, 2nd, 4th and 5th Respondents filed a Preliminary Objection on 8th May 2022 challenging the jurisdiction of this Tribunal on the basis that the Constitution of the 2nd Interested Party provides for an Internal Dispute Resolution Mechanism under article 28(b) and (c). The Respondents explained the IDRM procedure within the Party which involves an aggrieved member writing to the Secretary General of the Party and argued that the Complainants did not write such a letter before filing this dispute. It is their position that they learnt of the dispute for the first time when they received a letter dated April 11, 2022, from the Registrar of Political Parties.

21. The respondents state that after receiving the Registrar’s letter, they formed an Ad Hoc Committee of four members to look into the issue raised by the Registrar and while the committee was still considering the issue, the Complainants instituted this complaint before the Tribunal. The said Respondents thus argue that the Complainants were not keen on invoking the internal disputes resolution mechanism of the party since the Registrar wrote on 9th April 2022 and by April 11, 2022 this dispute had been filed. They concluded that the Complainants had not demonstrated any attempt to resolve this complaint within the party organs before filing this dispute, as required by Section 40(2) of the Political Parties Act and the 2nd Interested Party’s Constitution.

22. They relied on the decision in Gabriel Bukachi ChapiavsODM &another (2017) eKLR where the Court of Appeal held that;“In effect the PPDT should not entertain disputes between members of a political party, disputes between a member of a political party and a political party, disputes between political parties and disputes between coalition partners, unless such dispute is in the first instance heard and determined by the internal political party dispute resolution mechanism.”

23. Further, the Respondents raised an objection that this matter was filed out of time because Regulation 7 (1) (b) provides that a dispute to the Tribunal shall be commenced by filing a complaint within thirty days from the date of making the decision complained of. They say the election of the 1st Respondent was conducted on February 20, 2022 and this complaint is dated April 11, 2022 hence it is out of time. They cite Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR to submit that Jurisdiction flows from the law and a court cannot arrogate to itself jurisdiction through craft of interpretation.

24. The complainants in response to the preliminary objection admit that the 2nd Interested Party’s Constitution provides for an Internal Dispute Resolution Mechanism, that they complied with the law and the party Constitution on this issue hence the dispute is properly before us. It was their submission that Article 28 of the Democratic Party of Kenya Constitution only requires the Complainants to write to the Secretary General of the Party who would then initiate the IDRM process. They aver that on 21st February, 23rd March and 5th April, 2022, the complainants raised their dispute with the Secretary General in writing and these letters were never acted upon until April 13, 2022 when the Secretary General summoned an Ad hoc committee. The ad-hoc committee recommended that the Party Leader convenes a special National Delegates Committee to resolve these issues but this recommendation was not acted upon.

25. Regarding the challenge on the complaint being time barred, the Complainants submitted that the only reason this matter delayed is because the Respondents frustrated the constant follow ups by the claimant to resolve the issues raised in their letter. It was their view that the objection was oxymoronic because the Respondents in one part say that the claimants jumped the gun by filing this complaint and on the other part, that the complaint is time barred.

26. This Tribunal derives its jurisdiction from Section 40 of the Political Parties Act, No. 11 of 2011, as amended from time to time. Section 40 (2) particularly provides that;(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.”

27. The Complainants were therefore correct in arguing that all that is required of them before filing a dispute with the Tribunal is to adduce evidence of an attempt to subject the matter to Internal Political Party Dispute Resolution Mechanism. The Complainants have produced 3 letters addressed to the secretary General of the Party complaining of the issues presently before us. The first letter was written a day after the Special NDC while the last one is dated 5th April 2022 and all are stamped as received. The 3rd Respondent has not denied receipt of these letters in any of his two Replying Affidavits. It is also an admitted fact by both the Complainants and the Respondents that the Party Constitution requires an aggrieved member to write to the 3rd Respondent.

28. The Complainants have demonstrated that they wrote to the 3rd Respondent not once but thrice over a period of 3 months voicing their complaints now before us. The 1st,2nd, 4th and 5th Respondents say that they had never heard of the complaints before the letter from the Registrar of Political Parties or the filing of this suit but we note that the Constitution did not require them to be notified by the Complainants. The 3rd Respondent is the only person under the Party Constitution who was required to be notified and then he would take up the complaint from there. The letters produced by the Complainants are a sufficient demonstration of an attempt to resolve the issues they raise therein.

29. The other objection was that Regulation 7 (1) (b) provides that a dispute to the Tribunal should be commenced by filing a complaint within thirty days from the date of making the decision complained of. They allege that the 1st Respondent was elected on February 20, 2022 and any complaint should have been filed by March 19, 2022 hence this complaint should not be entertained. Counsel for the 1st ,2nd ,4th and 5th respondents also argued that the matters herein are res-judicata since the ad-hoc committee that was dealing with the issue had not concluded its work. This, as seen earlier was opposed by the complainants who submitted that the respondents accuse them of not waiting for the IDRM process to be concluded and on the other hand, they say that the complainants waited for more than 30 days before filing the complaint before us. In dealing with this issue, we shall consider the totality of the circumstances that led the parties to this Tribunal and then render ourselves.

30. We start by making an observation that the 3rd respondent and the Party itself have not filed any objection to these proceeding and for good reason. When the Respondents and the interested parties were served with the pleadings herein, the 1st and 2nd interested parties were the only parties who heeded the summons to attend the Tribunal and they did so through counsel on April 19, 2022. Counsel for the 2nd Interested Party who is also its legal advisor indicated that the DP Party was keen to resolve the issues complained of amicably since the Complainants were its members and indeed 2 of them sat in the National Executive Committee. He sought the Tribunal’s indulgence and confirmed that the Complainants had been invited to a reconciliation meeting later that day or the following day. The Complainants were agreeable to having the matters resolved amicably within the Party structures and agreed to the adjournment sought by their Party.

31. On April 22, 2022, the Secretary General of the Party who is also the 3rd Respondent swore an affidavit stating that he had the authority of its National Executive Committee to make the affidavit. The Secretary General of the Party in the affidavit notes that this Tribunal issued Orders on 19th April 2022 giving parties time to resolve the issues internally as provided for in the Party Constitution. The deponent at paragraph 4 says that the National Executive Committee appointed an Ad-hoc Committee which met on April 19, 2022. He says that this meeting was followed by a full National Executive Committee meeting on April 20, 2022, and the Complainants were present at both forums.

32. We pause here to note that the Ad-hoc committee which was appointed and sat on April 19, 2022, was constituted of NEC Members with the exception of the Party’s Legal Secretary who was to act as an ex-oficio member. We also note that in paragraph 7 of the affidavit, the Secretary General states on oath that the objector members of NEC and other National Executive Committee members met for a further reconciliatory meeting. The 1st ,2nd & 4th Respondents are all members of the National Executive Committee and after they joined these proceedings, they did not impeach or disavow any part of the said Affidavit of the 3rd Respondent.

33. The Secretary General at paragraph 8 of the affidavit says that one of the resolutions from the NEC was for the 1st Respondent to convene a Special NDC as soon as was possible. The reason for passing the said resolution as explained by counsel was for the NDC to consider all the issues raised by the Complainants as they emanated from the NDC of February 20, 2022. It is submitted by the Complainants that such NDC was yet to be convened as at the time of the hearing and this fact was not disputed by any of the respondents or the 2nd Interested party. Counsel for the 1st,2nd,4th and 5th respondents submitted that the ad-hoc committee was yet to complete its work and its report was yet to be received but this is a total contradiction of what the Secretary General of the Party says on oath.

34. The Respondents raising this preliminary objection appeared for the first time on May 9, 2022, after all the above had happened. We say that their objections are brought too late in the day because the affidavit of the 3rd Respondent captures attempts to resolve the issues in dispute internally at the highest levels of the Party. All this was done before they entered appearance and filed the Preliminary Objection. The 1st, 2nd and 4th respondents are all NEC members and it is inconceivable that the NEC could have sat and deliberated on those complainants without their knowledge. In fact it is confirmed by the Secretary General on oath that the objector NEC members and the other NEC members met on 20th April 2022 to deal with the matters complained of herein. Instead of the 1st Respondent acting on the NEC resolution to convene a Special NDC, the Respondents with the exception of the 3rd Respondent disregarded all these IDRM efforts and chose to raise objections to these proceedings.

35. So, in disposing with the objections, we observe that the failure of the 1st Respondent to act on the NEC recommendations, which are captured in minutes filed herein together with a letter to the Registrar of the Political Parties dated April 21, 2022, demonstrates insincerity and unwillingness on their part to have this dispute resolved internally. In John Mworia Nchebere &others vsThe National Chairman Orange Democratic Movement &others (NRB PPDT Complaint No. E002 OF 2022), this Tribunal issued guidelines on what amounts to an attempt at IDRM. In the stated case, we held that:-“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

37. In the above decision, it is clear that not only must a complainant attempt IDRM but then the IDRM organ within the party must be functional which is to say that it should be available, operative, without conflict of interests, not obstructive and not delaying the matters in dispute. Apart from the complaint relating to the coalition agreement, the Respondents and the 2nd Interested Party had ignored all the other written complaints raised from February 2022 until April 2022 when they received pleadings in this matter. It is also evident that after the dispute was filed, the Tribunal gave parties time to resolve all the issues, recognizing that article 159 (2) (c) of the Constitution of Kenya requires it to promote alternative forms of dispute resolution. This opportunity was also granted since parties were willing to explore amicable settlement and to assist the process, we did not issue any Interim Orders in the matter until May 12, 2022, after parties had failed to resolve the dispute using the party organs.

38. Further and without prejudice to the above, the doctrines of estoppel and waiver apply to the objections raised. Estoppel precludes a person from asserting something contrary to what is implied by a previous action or statement of that person, a principle affirmed by the Court of Appel in Seascapes LimitedvDevelopment Finance Company Of Kenya Limited [2009] eKLR. On the other hand, the High Court inSita Steel Rolling Mills Ltd vs. Jubilee Insurance Company Ltd [2007] eKLR had this to say on waiver;“A waiver may arise where a person has pursued such a course of conduct as to evince an intention to waive his right or where his conduct is inconsistent with any other intention than to waive it. It may be inferred from conduct or acts putting one off one’s guard and leading one to believe that the other has waived his right.”

39. One may want to look at these as doctrines that developed in other jurisdictions but they are close home and domesticated in our statutes. Section 120 of the Evidence Act provides as follows:“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

40. Having narrated how the Respondents who are members of NEC participated in appointing an ad-hoc committee, delegated 3 of their members to serve in that committee, convened as a full NEC on April 20, 2022 to receive the report of the Committee and recommended the calling of a special NDC, the 1st, 2nd and 4th Respondents are estopped from raising the objection under Regulations 17 and their actions amount to a waiver of their right to rely on this regulation. The 5th Respondent is indicated from the various documents with us as being a member of the J.B Secretariat and has no footing in raising an objection in a party where he is not a member.

41. Finally, Regulation 40 provides that the Tribunal is, in the resolution of disputes under the Regulations, not bound by technicalities or legal rules of procedure and may waive any rules or procedural requirements. The Respondents with full knowledge of there being a dispute before the Tribunal chose to abide by the directions of this tribunal to attempt resolving this matter internally, as confirmed by the 3rd respondent in his affidavit. The NEC they serve in formed an ad-hoc committee which field a report with NEC and these recommendations were disregarded by the 1st respondent. The tribunal cannot therefore allow a recalcitrant party to hide behind a rule of procedure which they had already waived and only revert to it when it is convenient. The Tribunal noting the history of this dispute thus waives the requirements of Regulation 7 (1) so that this dispute can be heard and determined on merit.

42. It is therefore the finding of this tribunal that the preliminary Objections raised by the respondents are without merit and are hereby dismissed in their entirety. The complainants having made an honest attempt to resolve the issues in dispute within the party organs, this matter is properly before us and the Preliminary objection by the 1st, 2nd, 4th and 5th respondent is hereby dismissed in its entirety.

Issue B: Whether the 2nd Interested Party’s Coalition Agreement with the 3rd Interested Party was entered into in accordance with the Party Constitution 43. In their letter to the Registrar of Political Parties dated April 9, 2022, the complainants stated that they were objecting to the announcement by the party leader that morning to the effect that the Democratic Party of Kenya had entered into a collation agreement with the 3rd Interested Party. Their objection was grounded on the assertion that this move was made contrary to the resolutions passed by the Special National Delegates Conference held on 20th February 2022. Their request was for the registrar to reject any coalition documents purporting to join their party to Kenya Kwanza.

44. The Registrar responded on April 11, 2022 and acknowledged that her office had received minutes of the Special NDC from the 2nd Interested party on March 18, 2022. She observed in her letter that under Minute number MIN/SNDC/05/20/02/2022, the party had resolved that it would go it alone in the General Elections 2022 and will NOT enter into any pre-election arrangements or coalition with any political parties. The Registrar advised the 3rd Respondent that the complaint by the three members was merited and guided the party to resolve it internally as required by Section 34(g) of the Political Parties Act, 2011.

45. We shall not regurgitate what happened thereafter but relevant to this issue is that the 3rd Respondent swore a second affidavit on May 10, 2022 in which he says that he did this with the authority of all the Respondents. The affidavit is drawn and filed by the firm of Yator and Associates Advocates who are on record for the 1st, 2nd, 4th and 5th Respondents thus it is not in doubt that the 3rd Respondent speaks for all the Respondents when he states at paragraph 17 that;“..the resolutions of the National Delegates Conference held on February 20, 2022 remain in full force until another National Delegates Conference is convened in strict adherence to the provisions of Article 12(c) and (d) of the 2nd Interested Party Constitution”

46. This is the clearest confirmation of the fact that the resolutions of an NDC can only be revisited by another NDC and this would explain why the National Executive Committee, after receiving the Ad-Hoc Committee’s report, recommended that the Party Leader does convene a Special NDC to deal with the issues raised by the Complainants. Article 11 (a) of the 2nd Interested Party’s Constitution provides for the duties of the Party leader, key among them being; Providing leadership to ensure unity and efficiency in the party and articulate party policies;

Chairing meetings of NGC and NDC

Ensuring discipline and proper order in the Party in accordance with theConstitution.

47. The Constitution of the Party further provides at Article 12 (a) that the National Delegates Convention (NDC) is the highest organ of the Party and some of its powers, duties and obligations include determining, reviewing, formulating and approving all Party policies. The interface therefore between the Party Leader and the NDC is that the NDC makes the policies and the Party Leader provides leadership in articulating those policies. The party leader is therefore the spokesperson or agent of the NDC which is the principal. In that symmetry then, the agent can only speak on behalf of the principal and cannot say or do things that are not sanctioned by the principal. If the agent were to do such things that are not sanctioned, then the deeds of the agent will not bind the principal unless the principal thereafter ratifies such deeds.

48. This analogy of the agency principle is not a farfetched theory operable within commercial spaces only but is equally a present aspect in the running of political party affairs. We say this because Regulation 12 of the Political Parties (Registration) Regulations, 2019 provides in part that;“(1)Political parties which have agreed to form a coalition shall deposit the coalition agreement with the Registrar, together with Form PP 19 set out in the First Schedule, accompanied by—a.a declaration showing that the rules and procedures of the political parties entering into the coalition relating to the formation of the coalition have been followed; andb.minutes of the meeting of the governing bodies of each of the political parties entering into the coalition, sanctioning the coalition.”

49. To that end then, it is not the Party Leader’s position that carries the day when it comes to what the Party position on coalitions before the August 2022 General Elections is, but rather the policy and declarations of the governing bodies of the political party sanctioning such agreements. In the current dispute, this position is succinctly clear from the 2nd Interested Party’s Constitution and Regulation 12 above. Indeed the 3rd Respondent speaking on behalf of all the Respondents in his affidavit of May 10, 2022 was emphatic that the resolutions of NDC regarding the party joining coalitions remain in full force until another NDC is convened.

50. The Respondents in their affidavit of May 10, 2022 at paragraph 11 state that the action of the 1st Respondent in joining the 3rd Interested party and forming a coalition was a decision which was made, subject to consultation with the 2nd Respondent as provided by the party constitution.The Constitution of the Party does provide that the Party Leader can facilitate dialogue, consultations within and without the party and cooperation with other political parties in consultation with the National Party Chairperson but as stated earlier, the Party Leader is an agent of the Party’s NDC and can only articulate policies approved by the NDC.

51. After this analysis, it is the finding of this Tribunal that until another NDC is convened to either vary the resolutions of February 20, 2022 or ratify the acts of the 1st Respondent in having the 2nd Interested Party join a coalition, any coalition agreement entered into in the name of the Democratic Party of Kenya with any party or political outfit, before the 2022 General Elections, is null and void.

Issue C: Whether the 1st Respondent was validly nominated and elected as the Party Leader of the 2nd Interested Party; 52. The Complainants state in their pleadings that on February 20, 2022, the 2nd Interested Party held a special National Delegates Convention at the Bomas of Kenya where several resolutions were passed. Relevant to these proceedings are the resolutions appointing the 1st Respondent as the Party Leader of the Democratic Party of Kenya and the flag bearer of the Party’s Presidential aspirations in the upcoming 2022 general elections.

53. The Complainants allege that these resolutions were reached but with some resistance because the 1st Respondent was appointed in contravention of Article 10 (b) (i) of the Party Constitution, which is to the effect that except with the leave of the outgoing National Executive Committee, no person is eligible to be elected unless he/she has been a member of the party for a period of 1 year preceding such election. The Complainants equally allege that the 1st Respondent is also yet to pay the requisite fee for appointment to such a position and he has not filed any document to show that he sought leave of the outgoing NEC. The Complainants also allege that the appointment of the 1st Respondent was made amid serious conflict of interest concerns since the said Respondent funded the special meeting that installed him as party leader with a sum of Kshs. 10. 5 million.

54. In the affidavit sworn on their behalf by the 3rd respondent, the Respondents assert that the 1st Respondent has been a member of the 2nd Interested Party and attached a copy of his membership certificate. The Respondents aver that the Resolutions of the Special NDC that appointed him as Party Leader have always been available and were indeed delivered to the Registrar of Political Parties on March 17, 2022.

55. To put this issue into context, we analyze the 2nd Interested Party’s Constitution and the circumstances under which the 1st Respondent was elected party leader. Article 12 b. (iii) and xiii) provide that the powers of the NDC are to elect from among the eligible members of the Party the National Officials of the Party as provided in theConstitution and to consider any such other items as may be referred to it by the NGC or the NEC. Minute no SNDC/03/20/02/2022 of the February 20, 2022 Special NDC indicates that the election of the 1st Respondent as the Party Leader was recommended by the NEC in its meeting of 8th February 2022. The minute reads that;“The Secretary General, Dr. Haji, reported to the members on the National Executive Committee (NEC) meeting which was held on Tuesday, 08 February 2022 and the following recommendations made:1. Hon. Justin Bedan Muturi to be elected as the party leader;2. Hon. Justin Bedan Muturi to be nominated as the Party Presidential Candidate in the forthcoming General Elections 2022. 3.The NEC recommended to the Special NDC the appointment of Hon. Joseph Konzollo Munyao as the Party Patron”

56. So, from the above minute, the name of the 1st Respondent came to the NDC as a recommendation by the NEC which is a recognized avenue under the Party Constitution. Looking at the Article 10 of theConstitution on eligibility, it is provided that;b)No person, except with the leave on application granted by a majority decision of the outgoing NEC, shall be eligible to be elected if such a person had not been a party member for a period of one year preceding such election, for the following positions;i.Partly Leader …”

57. It is clear from the Constitution of the 2nd Interested Party that for the 1st respondent to be appointed as party leader, he ought to have been a member of the Party for a period of 1 year before his appointment on February 20, 2021 or in the alternative, get leave of the majority of the outgoing NEC to be so elected. The 1st respondent’s Membership Certificate filed together with the Respondents’ further documents is dated August 26, 2021 so obviously, the first part of this requirement had not been met as at February 20, 2022 when the 1st Respondent was elected Party Leader or even to date. The next question then would be whether the second requirement of getting leave from a majority of the outgoing NEC was met.

58. The respondents in their affidavit of May 10, 2022 have in their uploaded document titled ‘further annexures’ produced as annexure KK2, the minutes of the National Executive Committee meeting held on February 8, 2022, from which the above recommendation is said to have emanated from. The agenda of the meeting is set out at a minute identified as MIN/NEC/01/08/02/2022 and the items for discussion were; an update on preparation of the Special NDC, issue of coalition, way forward and AOB. Other relevant items of the minutes of NEC are;a.MIN/NEC/02/08/02/2022 states that the agenda for the Special NDC would be to endorse the presidential candidate.b.MIN/NEC/03/08/02/2022 notes at paragraph iv that Hon J.B Muturi shall be the Democratic Party of Kenya Presidential Candidate.

59. These minutes are signed by the Party Chairman, who is the 2nd Respondent and the 3rd Respondent and all the other Respondents were also present at the said meeting.We have combed through these minutes several times and the result has been the same; that there was no recommendation from NEC that the 1st Respondent be appointed as the party leader or that the 4th Respondent be appointed as the Party Patron. The report to the NDC by the Secretary General on February 20, 2022 that those were the recommendations from the NEC meeting of February 8, 2022 was not only misleading, but also nonfactual as it does not appear anywhere in the agenda of the said meeting. The Special NDC therefore ratified recommendations on matters that had NOT been discussed and recommended at the NEC meeting of February 8, 2022, or at all.

60. Could the NEC and the NDC have elected the 1st Respondent as the Party leader while still maintaining fidelity to the Party Constitution? The simple answer is yes but the following circumstances had to be present;a.Noting that the 1st respondent was 6 months old in the Party thus not eligible for elections to any national office, there ought to have been an application for leave to an outgoing NEC to exempt the 1st Respondent from compliance with the rule.b.Article 14 (a) of the Constitution of the Party provides that the NEC consists of among others, all the national officials. We note that the officials who sat in the NEC on February 8, 2022 are also captured in the minutes of the Special NDC held on February 20, 2022, as being among ‘Present NEC members’ who attended the NDC. There is nothing in the Agenda of the Special NDC nor in any other documents produced by the Respondents to show that the NEC that sat on February 8, 2022 left office after that date and were re-elected to office on or before February 20, 2022. Indeed, that is not pleaded anywhere by the Respondents and the conclusion drawn from this analogy is that the NEC that sat on February 8, 2022 remained so constituted as at the date of the Special NDC. Up to the date of hearing this dispute, there was no indication by the Respondent that the NEC of February 8, 2022 had vacated office.

61. We thus conclude that even if the meeting of February 8, 2022 had recommended the appointment of the 1st Respondent as the Party Leader, which for avoidance of doubt, it did not, the NEC that made that recommendation was required to have vacated office so that the recommendation presented to the NDC for ratification would be a recommendation by an outgoing NEC. This proviso under Article 10 (b) of the Democratic Party Constitution Acts as a fail-safe valve for this exact situation that the party is facing. There having been no leave obtained from an outgoing NEC to the effect that the 1st Respondent be appointed Party Leader and the 4th Respondent be appointed Party Patron, the resolutions ratified by the Special NDC on February 20, 2022 can only be seen as an exercise in futility.

62. Interestingly, there is no similar provision for the nomination of a member to run for President and Deputy President under the party ticket. There is no requirement of being a member of the Party for at least 1 year or even a waiver by NEC and the power to nominate the Party Flag bearer lies solely with the NDC under article 12 (b) (iv) of the Party Constitution. We believe that the Complainants are aware of the non- existence of such a requirement and that is why they only ask the tribunal to determine the issue of election of the Party Leader.

63. It is really an unfortunate set of circumstances for the Democratic Party of Kenya, more so if the desire of its members was to have the 1st Respondent as their Party Leader but the members and its leaders must uphold and be guided by their own Constitution. It is our finding therefore that the 1st Respondent was not validly nominated and elected as the party leader of the 2nd Interested party in the Special National Delegates Convention of February 20, 2022.

Issue D: Whether the donation of funds for the Special NDC held on February 20, 2022 is contrary to Section 28 of the Political Parties Act and theConstitution of the 2nd Interested Party. 64. The respondents also deny the allegations regarding the source of funds for branding of T-Shirts and caps used during the Special NDC and refer to Article 30 of the Party’s Constitution regarding the source of funds for the Party. The Respondents further aver that Article 12 of the Party Constitution mandates the Party Leader to call for a special NDC on the recommendation of the NEC or a requisition in writing submitted by at least a third of the delegates. The Respondents cite Article 30 of the Party Constitution to submit that voluntary contributions, donations and grants from any source not proscribed by the law are included as some of the sources of the funds of the Party.

65. It is admitted in the Management Committee minutes of March 8, 2022, which were supplied to the Tribunal by the parties and are stamped as received by the Registrar of Political Parties on March 18, 2022, that the 1st Respondent donated a sum of Kshs. 10. 5 Million to the 2nd Interested Party. At MIN/MGMT/0/08/03/2022 titled ‘Review of Special NDC’, it is captured at paragraph 4 that;“Dr. Haji explained that the money was provided by Hon. JB Muturi and that it didn’t come from the Party Account. Deputy National Treasurer-Operations, Veronicah Maina confirmed that she received 10. 5 million and delivered 2 million back to Hon. J.B Muturi.”

66. The claimants in paragraphs 32 and 36 of their Further Affidavit sworn on May 11, 2022 depose that this contribution is contrary to the 5% cap under Section 28 of the Political Parties Act and that they have well founded fears that the funding of the NDC was in violation of the Political Parties Act and the Proceeds of Crime and Anti-Money Laundering Act. They rely on Exhibit 18 which they say are the audited accounts for the year ended June 2021 as the basis for these allegations.

67. Section 107 of the Evidence Act, cap 80 Laws of Kenya provides that:1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person Going by the above provision of the law, the Complainants bear the burden of proving the existence of any fact that they allege. From the onset, we note that the source of the funds is known and disclosed not only to the complainants in the minutes they themselves have produced but also that there is no basis laid by them in taking the tangent that the 1st Respondent could have donated proceeds of crime to the party. The 1st Respondent is a Public Officer who is also the leader of one arm of government and is equally subject to the Leadership and Integrity Act that requires several compliances.

68. The complainants therefore ought to table cogent evidence to lay a basis for their ‘well- founded fear’ that the money donated by the 1st respondent could be proceeds of crime. Being a public officer, the 1st respondent’s financial records are available with the relevant authorities so the complainants could have obtained and produced them as a basis for their allegation/apprehension. They have not provided any documents to demonstrate that the 1st Respondent was not capable of donating such an amount or that the money was not legally acquired and this therefore remains a reckless and unproven allegation.

69. Regarding the donated amount being more than the 5% cap provided under Section 28 of the Political Parties Act, the said section provides that;(2)Subject to subsection (6), no person or organisation shall, in any one year, contribute to a political party an amount, whether in cash or in-kind exceeding five percent of the total expenditure of the political party.”

70. The Complainants produced exhibit 18 at page 49 of their Further Affidavit and the document is titled “Democratic Party of Kenya Financial Statements for the Year Ended June 2021’. The document shows that the total expenditure of the Party was Kshs. 1,592,885. 00. The statement then bears 3 signatures at the bottom and is dated July 8, 2021. We have considered this document being the basis of the allegations made by the Complainants and we are not persuaded that it a proper document for us to base our decisions on, for the following reasons.

71. Firstly, the serious allegations made by the Respondents raise a criminal or quasi- criminal responsibility on the Respondents and therefore the standard of proof is quite high. The document presented fails all the tests that are set out in the Evidence Act, Cap 80 regarding documentary evidence, and the exceptions thereto. The document is not an original and being a copy, it is not authenticated by any person as being a true copy of the original. Similarly, it is not indicated whose signatures appear on the document so that it can be said to be the true record of the accounts of the 2nd Interested Party for the said period, neither is any of the Complainants said to be the maker of the document to enable them produce it as evidence. This document and the alleged well- founded fear are not enough for the Complainants to discharge the burden of proof of the facts they allege.

72. Secondly, even if the said accounts were authenticated, they would still not be useful in proving the allegations that the donation made by the 1st Respondent exceeds the 5% cap on donations imposed by the law. Section 28(2) prohibits a contribution to a political party of an amount exceeding five percent of the total expenditure of the political party in any one year. [Emphasis added]. The Actdoes not give the definition of ‘year’ but this being a financial matter, our interpretation of the word ‘year’ as used in Section 28(2) is that the cap relates to donations given in one financial year of a party. The Complainants state and produce a document that says that those are the audited accounts for the year ended June 30, 2021, meaning the Party’s financial year runs from June of one year to June of the other year, like the Government financial calendar.

73. These financial results therefore would apply to the year 2020/2021 and yet, the Complaints admit that the donation complained of was given to fund the Special NDC of February 20, 2022. The Complaints have not submitted to us the Financial Statement for the year ending June 30, 2022 for the obvious reason that the year is still running. These are the only results that would validate the Complaint that the donation used to funds the Special NDC of February 20, 2022 exceeded the legal limit of 5% of the Party’s expenditure for the year 2021/2022. The Complainants have therefore jumped the gun on this issue and should obtain the audited accounts for the said year once they are published, before making such an allegation.

74. If their allegation is that the funds were given in the previous financial year and therefore are contrary to the Act, then the burden of proof lay with the Complainants and they have not discharged it. The date the funds were received is not indicated by any of the parties but noting that all parties admit the funds were given for the purpose of Organizing the Special NDC, it is reasonable to conclude that the funds were given in the current financial year. This conclusion is supported by the fact that the 1st Respondent was not a member of the Party in the previous financial year and the minutes of the Meeting held on 8th March 2022 capture the donation under the agenda ‘Review of Special NDC’.

75. It is our finding therefore that this issue is not ripe for this Compliant, it is equally unsubstantiated and we cannot therefore make order sought by the Complainants on this issue.

Issue D:What orders lend themselves for us to issue? 76. The Complainants sought several orders in the Complaint dated April 11, 2022 but we note with concern that Prayers 5. 1 to 5. 6 are sought as interim prayers pending the hearing and determination of this dispute. These prayers should have been sought in the Notice of Motion filed with the Complaint because the Tribunal cannot award interim orders at the end of the hearing. The tribunal had earlier on considered the Notice of Motion and granted suitable conservatory orders that had been sought in the Application. The other issue is that even if the prayers sought under paragraph 5. 5 and 5. 6 had been sought as final orders, which is not the case anyway, the same have not been supported by any evidentiary material that would lead the Tribunal to grant such orders. The Claimant had the burden of proof to substantiate the allegation of misuse of funds and without audited accounts or any other documents being provided for the current financial year, the Complainant would only be engaging this Tribunal in a fishing expedition.

77. On Prayers 5. 7 to 5. 9, the tribunal has considered all the evidence and rendered itself in the affirmative regarding issue 5. 7 and 5. 8 to the extent that the coalition agreement signed between the 2nd Interested Party and the 3rd Interested party was not sanctioned by the Party and that the 1st Respondent was not validly appointed as the party leader of the 2nd Interested Party. On the prayer for the Tribunal to Order the Director of Criminal Investigation and the Ethics and Anti-Corruption Commission to investigate the sources of the undisclosed funds used to organize and host the NDC of February 2022 with a view of charging and prosecuting the culprits thereof, we have made a finding that the sources of the funds were disclosed in the minutes of March 8, 2022. The Complainants produced these minutes in their further affidavit and the minutes are marked as received by the Registrar of Political parties.

78. We also made a finding that the complainants had failed to demonstrate to us the basis of their well-founded fear that the funds donated by the 1st Respondent were the proceeds of crime. Even if indeed the complainants have reasons to believe that the funds were proceeds of crime, they do not require an order from the Tribunal for the EACC or the DCI to investigate the issue. All they have to do is file a complaint with the two bodies and they will take it up from there. We shall therefore not grant this order.

79. The Complainant did not seek costs in their Notice of Motion or in the Complaint while the Respondents in their Preliminary Objection dated May 6, 2022 prayed for dismissal of the Complaint with costs. The 1st and 2nd Interested parties did not seek any award of costs in the Responses they filed. The Complainants’ submissions on who should bear the costs state that awarding costs is at the discretion of the Tribunal and that costs should be awarded to compensate a successful litigant and not to punish an unsuccessful party. The Complainants had not pleaded that they should be awarded costs and since parties are bound by their pleadings, we do not find it fit to award the same since the Respondents were not given an opportunity by the Claimants to rebut the submissions on why costs should not be awarded. As for the Respondents, their Preliminary Objection was dismissed and their defense to the Complaint was largely unsuccessful. Bearing in mind that all the parties are members of the same Party and some of the antagonists serve in the highest organs of the party, it is only fair that each party bears their own costs, to foster unity in a party whose Motto is ‘Unity and Justice’

Disposition 80. Finally, we thank counsel for all their efforts and professionalism in guiding us and their clients in this matter. We also thank all the parties for their decorum and civility in this process. Having heard all the submissions by the parties and considered the evidence placed before this Tribunal, were hereby Order that;1. The 1st, 2nd, 4th & 5th Respondents Preliminary Objection dated May 6, 2022 and all other objections regarding jurisdiction of the tribunal are hereby dismissed in their entirety;2. That the purported coalition agreement entered into with the 3rd Interested Party by the 1st Respondent on behalf of the Democratic Party of Kenya was done without the authority of the Democratic Party of Kenya and is null and void.3. That the appointment of the 1st Respondent as the Party Leader of the Democratic Party of Kenya by the Special National Delegates Convention on February 20, 2022 was un-procedural and is hereby declared null and void;4. That each party shall bear its own costs of these proceedings.It is so ordered.

DATED AT AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF MAY, 2022. JESSICA M’MBETSA (PRESIDING MEMBER)SAMUEL MBIRIRI NDERITU, FCIARB (MEMBER)DR. ADELAIDE M. MBITHI (MEMBER)