[2023] KEPPDT 1353 (KLR)

Ochanda v Orange Democratic Movement Party & another (Complaint E006 (KSM) of 2023) [2023] KEPPDT 1353 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1353 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E006 (KSM) of 2023

D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members

November 29, 2023

Between

Gideon Ochanda

Complainant

and

Orange Democratic Movement Party

1st Respondent

Office Of The Registrar Of Political Parties

2nd Respondent

Judgment

Introduction 1. The Complainant, is an elected Member of Parliament for Bondo Consituency, and a life member of the Orange Democratic Movement (ODM) Party, the 1st Respondent herein.

2. On or about the 6th September 2023, the Complainant received communication from the media that he had been deemed to have resigned as a member of the 1st Respondent following the 1st Respondent’s National Executive Committee (NEC)’s ratification of Findings and Recommendations of the 1st Respondent’s Disciplinary Committee (DC) that conducted disciplinary proceedings against him.

3. The Complainant having being aggrieved by the said disciplinary procedures and Findings and Recommendations of 1st Respondent’s DC and the consequential ratification thereof by NEC, filed the instant Complaint dated 11th September, 2023 (hereinafter referred to as the Complaint) and he seeks the following reliefs from this Tribunal: -a.That this Honorable Tribunal be pleased to issue a declaration that the decision of the 1st Respondent to expel the Complainant Hon Dr. Gideon Ochanda from the ODM Party is illegal, flawed and baseless.b.That this Honorable Tribunal be pleased to issue an order declaring that the disciplinary proceedings by the 1st Respondent conducted against the Complainant on the 25th July 2023 were un-procedural, and in violation of the Complainant’s right to a fair administrative action and the right to a fair hearing.c.That this Honorable Tribunal be pleased to issue a declaration that the disciplinary proceedings by the 1st Respondent against the Complainant on the 25th of July 2023 violated the Political Parties Act, the Fair Administrative Action Act and Article 75(5) and (6) of the 1st Respondent’s Constitution.d.That this Honorable Tribunal be pleased to issue a declaration that the Disciplinary Committee of the 1st Respondent convened on 25th July 2023 was not properly constituted and thus the decision of the National Executive Committee adopting the Recommendations of the said Committee is invalid and has no effect in law.e.That this Honorable Tribunal be pleased to issue a permanent injunction restraining the 2nd Respondent from removing the name of the Complainant, Hon Gideon Ochanda from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July 2023. f.Any other order this Honorable Tribunal may deem fit for end of justice.g.The costs of this suit be borne by the 1st Respondent.

4. The Complaint was accompanied with a Notice of Motion application dated 11th September 2023 (the application) filed under Certificate of Urgency, where the Complainant sought for orders that:i.That this Application be certified urgent and service be dispensed with in the first instance.ii.That pending the inter-partes hearing and determination of this Application, the Honorable Tribunal do issue restraining/conservatory orders against the 2nd Respondent from acting on, implementing or giving effect to the communication and any letter of the 1st Respondent purporting to communicate the suspension or expulsion from or deregistration of the Applicant as a member of the ODM party and/or imposing any other sanctions against the Applicant/Complainant.iii.That pending the hearing and final determination of this Complaint, the Honorable Tribunal do issue restraining/conservatory orders against the 2nd Respondent from acting on, implementing or giving effect to the communication and any letter of the 1st Respondent purporting to communicate the suspension or expulsion from or deregistration of the Applicant as a member of the ODM party and/or imposing any other sanctions against the Applicant/Complainant.iv.That Costs of this Application to be provided for.

5. The Application came up for directions before this Tribunal on the 12th September 2023 when the Tribunal in consideration thereof issued the following orders ex-parte in the interim:i.THAT the Notice of Motion application dated 11th September 2023 be and is hereby certified urgent for consideration ex-parte in this first instance only. ii. THAT the Complaint and Notice of Motion application dated 11th September 2023 be served upon the Respondents within two (2) days of the date hereof.iii.THAT the Respondents to file and serve their response(s) to the Application within five (5) days of the date of service.iv.THAT the Notice of Motion Application dated 11th September 2023 be listed for mention on 22nd September 2023 at 2. 30pm to check on compliance and/or for further directions.v.THAT in the interim and pending the hearing and determination of this Application, this Honorable Tribunal hereby issues interim orders restraining the 2nd Respondent from acting on, implementing or giving effect to the communication and any letter of the 1st Respondent purporting to communicate the suspension or expulsion from or deregistration of the Applicant as a member of the ODM party and/or imposing any other sanctions against the Applicant/Complainant.

6. On the 22nd September 2023 when the application came up for mention for further directions, Counsel for the 1st Respondent expressed his client’s willingness to have the application subsumed within the complaint to pave way for hearing of the Complaint expeditiously in the interest of time. Counsel stated that he had no objection to having the interim orders remaining in place pending the hearing and determination of the Complaint. There was no objection to the proposal by either the Complainant or the 2nd Respondent. Accordingly, and with the concurrence of the parties, the application was deemed as allowed in terms of prayer number 3 thereof and directions were issued for filing of responses to the substantive Complaint which was then fixed for mention on 5th October 2023 to check on compliance.

7. On 5th October 2023 when the Complaint came up for mention, parties confirmed their preferred mode of prosecuting the Complaint and in consideration thereof, the Tribunal directed parties to file their written submissions and the Complaint was fixed for hearing on 26th October 2023 by way of highlighting of written submissions. However, on the 26th October 2023 when the complaint came up for hearing, the same could not proceed as the Complainant sought for an adjournment to enable them file their Further Affidavit and written submissions. The complaint was accordingly stood over for hearing on 9th November 2023.

8. On the stated hearing date of 9th November 2023, parties highlighted their written submissions on the Complaint. During the hearing, the Complainant was represented by Dr. Miyawa Advocate and the 1st Respondent was represented by Mr. Awele Advocate. The 2nd Respondent was represented by Ms. Ndwiga Advocate holding brief for Mr. Wakoko Advocate.

The Complaint and Submissions 9. This Complaint is founded on the Complaint filed herein and supported by the Complainant’s Supporting and Further Affidavit, amongst other pleadings on record.

10. The Complainant was issued with a Notice to Show Cause (NTSC) letter dated 13th February, 2023 signed by Hon. John Mbadi, purporting to question him as to why he should not be subjected to disciplinary process for his alleged dalliance with party competitors. Enclosed in the NTSC letter was a letter dated 9th February, 2023 by Gad Aguko of Aguko Osman & Company Advocates addressed to the Secretary General and Chairman of the 1st Respondent and written on allegedly written on behalf of one Hon. Eddie Gicheru Oketch.

11. The NTSC letter alleged that the Complainant had met the Party Leader and Deputy Party Leader of the United Democratic Alliance (UDA) on 7th February, 2023 and that the Complainant’s meeting with the Party leader and Deputy Party Leader caused the ODM Party “immense embarrassment, ridicule, anxiety and disgust.” The letter called on the ODM party to have the Complainant deemed as having resigned from the party under Section 14A of the Political Parties Act, 2011 (the PPA) or to be expelled from the party in the alternative.

12. The Complainant responded to the NTSC letter on 15th February, 2023 and explained himself whilst also disassociating himself from the UDA party.

13. It is the Complainant’s contention that on 10th July, 2023, over four months after his response to the NTSC, he came across summons circulating on social media and inviting him to a disciplinary hearing. As per the Summons, the hearing was to take place at Chungwa House on 19th July, 2023. Annexed to the Summons of 10th July, 2023 was a piece of paper titled ‘evidence’. According to the Complainant, the purported ‘evidence’ alluded to unrelated incidences to those of the cause letter. The Complainant further pleaded that while the NTSC letter referred to a meeting of 7th February, 2023, the alleged ‘evidence’ referred to incidences of 17th February, 2023, March 14th, 2023 and March 17th, 2023. The Complainant avers that notwithstanding, this, there was no evidence attached as proof of the incidences the 1st Respondent was referring to and that there were no newspaper cuttings, internet link and or social media reports.

14. The Complainant then wrote to the 1st Respondent through a letter dated 18th July, 2023 informing the 1st Respondent that the notice was too short and could not consequently prepare adequately for the hearing and respond to the allegations. The Complainant also sought for more particulars and evidence in support of the allegations made against him.

15. The 1st Respondent then wrote back to the Complainant on even date informing the Complainant of the 1st Respondent’s receipt of instruction to charge him on the 3rd of July, 2023 and the consequent lapse of time which caused the hearing to be on the 25th of July, 2023 at a venue that was to be communicated to the Complainant. No evidence was served on the Complainant upon his request on this day and summons of the subsequent hearing were never served on him by the 1st Respondent either.

16. The Summons of 10th July, 2023 did not have the decision dated 3rd July, 2023 alluded to by the 1st Respondent to charge the Complainant and mentioned in the 1st Respondent’s letter of 18th July, 2023.

17. The Complainant was not able to personally attend the Hearing on 25th July, 2023 but was represented by his Advocate Dr.Miyawa Maxwel who appeared before the DC. Dr. Miyawa informed the DC that the hearing date of the 25th of July, 2023 was not made in consultation with the Complainant, who had already made arrangements to attend to matters outside of the country by the time the Complainant had received the 1st Respondent’s letter of the 18th of July, 2023. He sought for an adjournment of the hearing, consequent to which the DC ordered that the Complainant appear before it later on the same date either virtually or physically and warned that should the Complainant not attend the future hearings, then the same would proceed in his absence.

18. The Complainant was however not able to attend the hearing and despite requesting for an adjournment through his Advocate, the DC took a firm position that time had lapsed and that no further hearing would be conducted. The DC refused to excuse the Complainant’s absentia and expelled the Complainant’s Advocates from the room on the grounds that he could not be heard when his client was absent. The DC then proceeded to conduct a hearing of the Complainant’s case in his absence.

19. Despite the Complainant not being heard, the 1st Respondent on the 6th of September, 2023 issued a presser to the public that the National Executive Committee of the ODM Party had passed a resolution to adopt the DC’s recommendations to deem the Complainant to have resigned from the ODM party.

20. The Complainant came to know of the DC’s decision of his expulsion, on 6th September, 2023 from mainstream media yet again and was not issued with proper notice of the DC’s decision prior to this. It was only after the Complainant wrote to the 1st Respondent concerning the DC’s decision that he was issued with the same.

21. The Complainant presented its arguments under the following headings;i.The ODM Disciplinary Committee was Improperly Constituted as by Law Required;ii.The Disciplinary Committee was the Complainant, the Judge and the Prosecutor in their own cause and made a decision in violation of the natural justice principle of audi alteram partem; iii. Violation of Article 47 of the Constitution;iv.The 1st Respondent’s decisions offend Section 14A(2)(a) of the Political Parties Act;iv.Violation of the Right to a Fair Hearing under Article 25(c) and Article 50;v.The 1st Respondent is Prosecuting Before this Tribunal a New Cause of Action/Complaint Against the Complainant;iv.No ideology, interest or policy directions of ODM Party alleged to have been violated or those of UDA/Kenya Kwanza have been demonstrated;iv.The Duty of Representation of the people and special interests entails seeking development from the sitting Government;iv.The Complainant was discriminated against by the 1st Respondent’s selective Disciplinary Process; andiv.This complaint violates Article 36, 38 and 117 of the Constitution of Kenya.

22. On the issue of the constitution of the DC, it was submitted that Prof. Ben Sihanya, being a lecturer at the University of Nairobi, chaired the DC proceedings of the 1st Respondent being a public officer. The Complainant referred the Tribunal to the case of Ben Murumbi Sihanya & another v Ethics and Anti-Corruption Commission; Registrar of Political Parties & another (Interested Parties) [2021] eKLR, which enunciated the principle that “a public officer cannot hold a political party office.” He submitted that the decision of the DC was a nullity in law for offending Section 12 of the PPA and Section 23 of the Leadership and Integrity Act.

23. With respect to the contention that the DC was the Complainant, the Judge and the Prosecutor in their own cause and made a decision in violation of the principles of natural justice, the Complainant invited the Tribunal to take note of the following abnormalities in the proceedings as conducted by the 1st Respondent:i.The letter of complaint dated 9th February 2023 by Gad Aguko of Aguko of Osman & Company Advocates was addressed to the Chairman John Mbadi and was said to be written on behalf of Hon. Eddy Oketch.ii.The notice to show cause letter dated 13th February 2023 was signed by Hon. John Mbadi purporting to ask the Complainant why he should not be subjected to a disciplinary process for his purported dalliance with party competitors.iii.On 3rd July 2023, Hon. John Mbadi directed the Disciplinary Committee to commence hearing of the cases implicating the Complainant.iv.The said John Mbadi also sat in the National Executive Council that ratified the illegal and unlawful decision of the Committee.v.On 25th July, having refused to grant the Complainant’s advocates an adjournment because the Complainant was out of the country and could not attend physically or virtually, the DC proceeded to present his case before itself, heard it in his absence, adduced evidence before itself, cross- examined itself, passed a resolution and made a determination before itself. vi. According to the minutes marked as Annexure GO1 in the Complainant’s affidavit, the DC noted the Complainant’s inability to attend, and having expelled his advocate from the room, proceeded to hear the complaint, admitted evidence, made analysis, determination, findings and recommendation ex-parte.

24. The Complainant brought to the attention of the Tribunal the provisions of Article 47(1) of the Constitution and Rule 26 of the DC Rules 2022 and submitted that the 1st Respondent was in breach of the above provisions of the constitution together with the ODM constitution and rules such that:i.The Complainant is yet to be heard on any of the complaints that were raised against him by the 1st Respondent.ii.No written reasons or decision were given to the Complainant on the 6th September 2023 when the decision was made and broadcast to the general public in the media. The 1st Respondent admits that the said decision was sent to the Complainant on 11th September, 2023. iii.No notification was sent to the Complainant that he had been deemed to have resigned from the ODM party, which information he received in the media like all other non-affected Kenyans.iv.Even on the 7th September 2023 when the decision to expel and deregister the Complainant was given to the ORPP, the Complainant (whose rights were adversely affected) had not been notified of the decision neither had he received that communication.v.On 8th September 2023 when the Complainant’s advocates on record wrote to the 1st Respondent requesting to be issued with the resolutions of the Disciplinary Committee and those of NEC and the supporting minutes, none was provided until 11th September via Whatsapp message to the Complainant.vi.It is only on 11th September 2023 when the Complainant received the communication of his expulsion by NEC and request for removal from the ODM party register through a WhatsApp message, 4 days after the deeming decision of the 1st Respondent had been received by the 2nd Respondent.vii.The decision to expel the Complainant and have him deemed to have resigned from the ODM party and being informed as a secondary party despite the fact that his rights were gravely affected breaches Article 47(2) and Article 25(c) on the right to a fair trial.

25. The Complainant submitted that the decision of the 1st Respondent was illegal and a nullity as they failed to adhere to the requirements under Section 14A(2)(a). He cited the decision of this tribunal in PPDT No. 4 of 2019 Godfrey Osotsi versus Amani National Congress where this tribunal stated that where a decision is based on procedural impropriety and abuse of process, it is a nullity in law.

26. It is the Complainant’s further submission that the Tribunal should take note that the NTSC letter dated 13th February 2023 issued to the Complainant was generalized with no specific allegation. By failing to specify the charge against the Complainant, the 1st Respondent violated the Complainant’s right to a fair hearing in that it called for adjudication of a dispute without certainty or clarity as to the nature or scope of the dispute. He further submitted that he was never served with the summons dated 10th July, 2023 issued by Hon. Mbadi contrary to Rule 18 (2) of the DC Rules.

27. The Complainant further referred to this tribunal’s decision in PPDT Complaint 1 of 2019 Hon. Aisha Jumwa Katana versus ODM & Another. It was also the Complainant’s submission that the summons issued against him on of the 10th July, 2023 did not contain the decision to charge of the 3rd of July, 2023 contrary to Rule 17(3)(a) and 11(2) of the DC Rules 2022. It is his argument that without the decision to charge, the summons, notice to show cause and the purported “evidence” are defective in law.

28. It was the Complainant’s further argument that the allegations contained in paragraph 16a-16f of the 1st Respondent’s Response and paragraphs 20a-20f of the Supporting Affidavit are completely new charges that were brought before the tribunal for the first time. He contends that the annexures in paragraph 20 of the Supporting Affidavit of Tony Moturi were intended to be the evidence in support of the allegations and the charges before the DC, the same were not provided to the Complainant prior to the hearing despite his request for the same, neither was any such evidence produced before the DC on 25th July, 2023 during the ex-parte hearing.

29. The Complainant submitted that under Paragraphs 7-13 of the Response by the 1st Respondent, no party manifesto, ideology or interest have been provided before this Tribunal. He avers that he was not aware of any such ideologies, interest or policy direction of the ODM party that had been demonstrated to have been violated by his visit to the Head of State. Additionally, he submitted that none was provided before this Tribunal or availed before his hearing before the DC or even at the time of presenting his submissions before this Tribunal.

30. With respect to his duty of representation of the people and special interests, the Complainant submits that development agendas can only be achieved through cooperation of the national and county governments as envisioned under Article 6(2) of the Constitution and the Fourth Schedule of the Constitution of Kenya, and as such, that the duties of representation that an MP is constitutionally obligated to perform encompass representation, vouching and articulating my constituency interests before the executive of the government that implements national policies of development. For this reason, such solicitation for development projects from the Head of State cannot amount to or be equated in law to association with a rival political party.

31. The Complainant argued therefore that based on the provisions of Articles 130(1), 131(1) (a) and 132(2)(c) and (d) of the Constitution of Kenya, 2010, the Complainant visited the President and Deputy President of Kenya as the symbol of national unity. He visited the Head of State and Government of Kenya who symbolizes national unity and not the Party Leader and Deputy Party leader of UDA.

32. The Complainant further contended that he was discriminated against as he was singled out for meeting the President and his Deputy, in violation of Article 27 of the Constitution of Kenya, 2010. The Complainant argued that the President had visited many parts of Nyanza many times and has been accompanied by many ODM officials and on all these occasions, these leaders had begged for development from the Head of State, not as the head of the UDA party. The Complainant went on to ever in his submissions the reason why, whereas senior ODM leadership has been “wooing and begging” the Head of State for development, his attempts to do the same are being punished by expulsion from the ODM party. The Complainant submitted that this is discriminatory and in violation of his right to equal treatment and equal benefit of the law.

The 1st Respondent’s Case and Submissions 33. In response to the Complaint, the 1st Respondent filed their Response dated 28th September, 2023 together with its appurtenant annexures and a certificate of electronic records dated 28th September, 2023.

34. The 1st Respondent in its response raised a preliminary objection against the Complaint, stating that the Complaint was fatally defective on account of the 2nd Respondent’s joinder to the Complaint on the basis that the 2nd Respondent had no locus in the proceedings as the complaint was concerned with the internal dispute resolution mechanisms of the 1st Respondent.

35. The 1st Respondent stated that the ODM Party and all its members are governed by the Constitution of the Party, the Code of Conduct and various rules of practice and procedure including the DC Rules.

36. It is the 1st Respondent’s contention that the Complainant actively pursued and accepted close association with the leadership of the UDA/Kenya Kwanza coalitionthe very regime whose legitimacy the ODM party questions, and in a manner that in the eyes and minds of the members of the ODM party and supporters of the Azimio la Umoja one Kenya coalition party, suggested that they promote and support the said UDA/Kenya Kwanza coalition’s ideology, interests and policies.

37. The 1st Respondent gave the particulars of the Complainant’s offensive conduct stating that the Complainant:a.Had deliberately absented himself from the National Assembly during voting on the Finance Bill, 2023;b.The Complainant had acquiesced to public utterances dissuading member of the ODM Party and its supporters under the supporters of the ODM Party and its supporters of the Azimio la Umoja One Kenya coalition party from participating in the nationwide peaceful protests picketing called by the leadership of the ODM Party. In particular, on 17th March, 2023, the Complainant while in company of six other members of Parliament addressed the Press at the Parliament Buildings whence Hon. Caroli Omondi on behalf of the rest, urged Kenyans and the Party Members at large to keep off the planned public protests and processions that were scheduled for 20th March, 2023. The speech read by Hon. Caroli Omondi read in part;“We want to categorically state that we will not be participating in the planned demonstrations. We equally urge our constituents to do likewise….”c.While in the company of other members of Parliament held a meeting with UDA Party leaders where they agreed to cooperate and work together ostensibly in furtherance of policies, ideologies and interests of the UDA party, in direct competition with the ODM Party.d.On a Sunday, (which is not an official working day for official meetings), the Complainant while in company of Six other members of Parliament met the Hon. Rigathi Gachagua of the UDA Party whereupon, they agreed to cooperate in furtherance of the UDA Government’s interests.e.The foregoing was corroborated by the statement of Hon. Tom Ojienda who spoke on behalf of the group and said as follows;“ these are follow-up meetings to the one we had at State Lodge Kisumu…Politics and development go hand in hand that is why we are looking for good will from the current government. It is not always about the law…”f.The Complainant has, subsequent to the foregoing, made utterances in public rallies and in the media vowing to support and pursue ‘development’ from the leadership of the UDA party in a manner that reasonably suggests sycophany and patronage contrary to the ODM party code of conduct.”

38. The 1st Respondent submits that based on these complaints, Honorable, Eddy Oketch, the Senator of Migori County and life member of the 1st Respondent, through his Advocates, filed a complaint with the ODM Party dated 9th February, 2023, and requested the 1st Respondent to commence disciplinary action against the Complainant. The complaint was then brought to the attention of the chairperson of the party who concluded that it disclosed a disciplinary offence and thereby issued the cause letter dated 13th February, 2023 to the complainant to answer to the complaint. The show cause letter enclosed a copy of the complaint letter that set out the particulars of the offence upon which the disciplinary action was proposed.

39. The Complainant on the 15th February, 2023 acknowledged receipt of the show cause letter and audaciously acknowledged visiting state House to meet the head of state to ‘seek development for his people’. The 1st Respondent referred to the acknowledgment letter as ex facie rude and disdainful of the party and its disciplinary processes and accused the Complainant of not having any intention to respond to the complaints by Hon. Senator Eddy Oketch.

40. The Chairperson of the 1st Respondent sought for further information, and after considering the same alongside the show cause letter by the party, concluded that the Complainant had a case to answer and on the 3rd of July, 2023, made the decision to charge the Complainant alongside six others and transmitted the said decision to the disciplinary committee for a disciplinary hearing.

41. The Chairperson of the DC served upon the Complainant a notice to appear for disciplinary hearing (summons) on 10th July 2023 setting out the grounds of the disciplinary proceedings against him and requesting him to appear in person before the committee on 19th July, 2023 at 10. 45am at Chungwa House Nairobi. The 1st Respondent avers that the Chairperson of the DC enclosed in the summons a copy of the complaint, the notice to show cause, evidence and all the responses filed by the complainant on the notice to show cause.

42. The 1st Respondent further stated that the Complainant did not however on the day of the disciplinary proceedings appear in person before the committee and instead appeared through his advocate, who, sought for an adjournment on the said hearing on the premise that the chosen venue was not convenient to him and that the aforesaid date fell on the same day that the party leadership had called for peaceful protests and picketing against the Kenya Kwanza Coalition. The DC accommodated the Complainant’s request for adjournment and rescheduled the proceedings to the 25th July, 2023 and ordered that the Complainant appear in person on the said date.

43. The Respondent avers that on the said date of 25th of July, 2023, when the disciplinary proceedings were held at the Emory Hotel, with due notice to the Complainant, his advocate appeared 1hr 26 minutes after the time scheduled and despite efforts having been made to accommodate the Complainant to appear in person either virtually or physically and even extending his appearance up to 1800hrs, the Complainant still failed to appear. It was therefore at this point that the DC proceeded and considered all the evidence adduced before it and made its Findings and Recommendations.

44. After the DC made its Findings and Recommendations, the same, was presented as a report to NEC on 6th September, 2023, and NEC adopted the recommendations of the DC against the complainant. According to the 1st Respondent, the Complainant was notified of the Decision thereafter on 11th September, 2023 and supplied with a copy thereof upon the application.

45. With respect to the submission that the DC acted as a judge, the complainant and prosecutor in their own cause, the 1st Respondent submitted that the complaint was originated by Senator Eddy Oketch and prosecuted by the party through its legal counsel Ms. Barabara Malowa and the complainant. Consequently, the case was subjected to a free and fair hearing by an impartial tribunal before which the Complainant was granted a fair chance to present his case in person and through an advocate of his own.

46. The 1st Respondent rebutted the Complainant’s allegation that the DC was not properly constituted for the reason that Prof. Ben Sihanya was barred from holding a political office while still a public officer, and argued that the issue was the subject of Civil Appeal Number E057 of 2022 Prof.Ben Murumbi Sihanya & Another vs Ethics and Anti-Corruption Commission and the Registrar of political parties and is therefore subjudice. The 1st Respondent further avers that the above allegation constitutes a misrepresentation as no declaration was issued by the Employment and Labor Relations court barring Prof. Ben Sihanya from holding political office as alleged by the Complainant.

47. In response to the contention that the expulsion decision is premature as it has not been ratified by the party’s National Governing Council (NGC), the 1st Respondent avers that the said contention is premised on a misapprehension of the tenor and effect in law of the NGC’ ratification powers. The 1st Respondent contended that the failure to ratify a decision does not ipso facto mean that the decision is unlawful. That the decision only becomes unlawful if the ratifying authority fails to ratify it and that in the event that the ratifying authority has not declined to ratify a decision, it remains lawful for all intents and purposes. The 1st Respondent went on to further posit that so long as the ratification is done within a reasonable time, the Complainant or the tribunal cannot impose a date for ratification as the Complainant seem to suggest.

48. On the allegations that the decision was in violation of Article 47 of the Constitution of Kenya, 2010 and Section 14A(1)(e) of the Political Parties Act, 2011, the 1st Respondent contended that on the contrary, the Complainant was granted all the conveniences of fair trial but refused to take advantage of the same.

49. On the allegation that the summons dated 10th July, 2023 had different charges from the cause letter dated 13th February, 2023, the 1st Respondent avers that the National Chairperson of the party has the latitude under the disciplinary committee rules to seek additional evidence to substantiate his decision to charge at any point of the disciplinary process.

50. On the Complainant’s allegation that the Hon. John Mbadi being the one who originated to charges also sat in the NEC meeting that ratified the recommendations of the DC, the 1st Respondent avers that the mandate of the NEC is distinct and separate from that of the National Chairperson in disciplinary proceedings. The 1st Respondent contended that this mandate is clearly delineated in the party constitution and the DC Rules with the understanding that each will be discharged independently yet in comity with all other organs and offices of the party.

51. In response to the contention that the Complainant did not violate Section 14A (1) (e) of the Political Parties Act, 2011 the 1st Respondent averred that the basis and/or grounds giving rise to the conclusion that the complainant promoted the ideology interests and policies of the UDA party is a function of subjective political perceptions that only a political party can make. In this regard, the 1st Respondent went on to further urge this this tribunal to resist from rendering its opinion lest it risks substituting its opinion for that of the political party and consequently “descend on the political arena and lose its objectivity and as an objective arbiter”.

52. The 1st Respondent went on to further raise issue with the Complainant’s interpretation of the role of the President as a symbol of unity and commented among other things, that the Constitution of Kenya, 2010 has created under Article 1(3) of the Constitution the three arms of government and as such the Complainant’s duty of representation and the President’s duties as the Head of Government are sufficiently circumscribed in the Constitution of Kenya, 2010 in mandatory terms and “do not require party to beg, pledge allegiance or….show close association to the other in order to function or be seen to function”.

53. In response to the contention that the Complainant was discriminated against by the 1st Respondent, the 1st Respondent rejoined that the contentions at paragraphs 76 and 81 of the Complaint are unsubstantiated and speculative.

54. The 1st Respondent contended that the complainant’s right to associate with any person of his choice or participate in any activities of his choice or to make political choices is limited to the extent that he should not promote the ideologies of another political party in his capacity as an ODM member of the national assembly.

55. It was the 1st Respondent’s contention that the Complainant was lawfully deemed to have resigned from the ODM party and is liable for expulsion as recommended by the National Executive Committee.

The 2nd Respondent’s Response and Submissions 56. The 2nd Respondent relied on their Replying Affidavit sworn by Joy Onyango, on 21st September, 2023.

57. The 2nd Respondent noted in the Replying Affidavit that the Complainant did not suffer any grievances by the 2nd Respondent. They contend that vide a letter dated 7th September, 2023, the 1st Respondent submitted to the 2nd Respondent resolutions of the NEC which included the decision to remove the Complainant from the ODM party register of members on account of having been deemed to have resigned from the 1st Respondent within the meaning of Section 14A of the Political Parties Act, 2011. The 1st Respondent also submitted to the 2nd Respondent an extract of Minutes of the NEC meeting of 6th September, 2023 that included the recommendation that the Complainant be deemed to have resigned from the 1st Respondent.

58. Upon receipt of the 1st Respondent’s afore-said documentation, the 2nd Respondent wrote to the 1st Respondent a letter dated 11th September, 2023 calling upon them to submit further documents required for a disciplinary process under the 1st Respondent’s party constitution. These documents were submitted to the 2nd Respondents vide the 1st Respondent’s letter dated 13th September, 2023.

59. Consequently, the 2nd Respondent vide a letter dated 19th September, 2023 addressed to the 1st Respondent, acknowledged receipt of the further documents and appreciated the import of the conservatory orders issued by this Tribunal in the present matter.

60. In light of the above, the 2nd Respondent distanced itself from having made any decision pursuant to Section 14A (4) of the Political Parties Act, 2011 in a manner that would have affected the rights of the Complainant.-

Issues for Analysis and Determination. 61. The tribunal has considered the parties’ pleadings and submissions and identified the following issues for determination.i.Whether there has been established a cause of action against the 2nd RespondentWhether the Complaint is premature before the Tribunal.ii.Whether the Disciplinary Committee was legally constituted?iii.Whether the disciplinary proceedings violated the provisions of Article 47 and 50 of the Constitution as read together with Section 4 and 6 of the Fair Administrative Action Act and the ODM Party Constitution and the Disciplinary Committee (Practice & Procedure) Rules 2022?iv.Whether the decision by the National Executive Committee to adopt the recommendations of the Disciplinary Committee and seek the 2nd Respondent’s implementation thereof is lawful.v.Whether ODM Disciplinary Findings and Recommendations were merited /Whether the Complainant’s actions violated the ODM Party Laws.

Whether there has been established a cause of action against the 2nd Respondent / Whether the Complaint is premature before the Tribunal. 62. It is the 1st Respondent’s submission that the Complaint is defective for having joined the 2nd Respondent in proceedings that concern its internal political party dispute resolution processes.

63. The 2nd Respondent on the other hand submitted that they had not made a determination against the Complainant to warrant any cause of action against them. After the 2nd Respondent received the 1st Respondent’s request to remove the Complainant’s name from the register of the 1st Respondent in accordance with the 1st Respondent’s NEC resolution, the 2nd Respondent called for further documentation in support of the disciplinary process against the Complainant, which documentation were furnished. However, by the time the same were received, there was already in place an interim order that had been issued by the tribunal restraining them from implementing the 1st Respondent’s resolution and recommendation to deem the Complainant as having resigned.

64. We have evaluated the pleadings and evidence and we note that the Complainant has not controverted the position advanced by the Respondents to the effect that the 2nd Respondent was joined in these proceedings without any cause of action against them.There is no complaint that has been made against the 2nd Respondent. It was therefore not necessary to join the 2nd Respondent in these proceedings as a substantive party.

65. In the case of PPDT Kisumu Complaint No. E005 of 2023 Elisha Ochieng Odhiambo vs. Orange Democratic Movement Party & Another, we observed as follows:-“…The fact that the 2nd Respondent will be called upon to implement and/or execute orders of this Tribunal does not in itself justify such a joinder particularly where no specific complaint or allegation has been made against the 2nd Respondent. Attendance to tribunal proceedings consumes considerable time and resources bearing in mind that the 2nd Respondent designates a legal officer to process the 2nd Respondent’s responses and to appear in all tribunal hearings. It is unnecessary to subject the 2nd Respondent to the burden and expense of defending disputes that are filed before the tribunal even where such disputes do not directly challenge the 2nd Respondent’s actions and/or omissions…”

66. And in the case of PPDT Kisumu Complaint No. E007 of 2023 Prof. Tom Ojienda SC vs. Orange Democratic Movement Party & Another, in maintaining the above position, we in addition observed as follows:-“…We remain of the considered view that where there is no specific complaint against the 2nd Respondent, it is unfair to cause them to appear in proceedings before the Tribunal. Ordinarily, notice of tribunal decisions can be issued to the 2nd Respondent without requiring their substantive participation unless in cases where they have an interest to defend. We therefore have no reason to depart from our foregoing observations in the case of Elisha Ochieng Odhiambo (supra).

67. With respect to the question whether the Complaint is premature for the reason that the 2nd Respondent has not acted on the Respondent’s request to remove the Complainant’s name from the party register as a consequence of the Complainant having been deemed to have resigned from the party, we remain alive to the fact that this case has been presented as a Complaint in accordance with Section 40(1)(b) of the PPA as read together with the PPDT Regulations. It has not been framed as an appeal against any decision of the 2nd Respondent.

68. In the case of Elisha Ochieng Odhiambo (supra) we stated thus:-“…Turning to the question whether the Complaint is premature for the reason that the 2nd Respondent has not acted on the request to remove the Complainant’s name from the party register, we note that the instant case has been presented as a Complaint against the 1st Respondent’s internal dispute resolution processes and not an appeal against any decision of the 2nd Respondent. The 1st Respondent conducted an internal party disciplinary process that led to the DC decision deeming the Complainant to have resigned pursuant to Section 14A(1)(e) of the PPA. This DC decision was then ratified by NEC and forwarded to the 2nd Respondent to remove the Complainant’s name from the register of members of the 1st Respondent. The Complainant is aggrieved by the subject DC determination deeming him to have resigned and its consequential ratification by NEC for want of compliance with Article 47 and 50 of the Constitution, Section 14A(2)(a) and (b) of the PPA, the Respondent’s Constitution and DC Rules. This Tribunal has jurisdiction under Section 40(1)(b) of the PPA to hear and determine the instant Complaint. Section 14A(3), (4) and (5) of the PPA provides on processes that follow after a political party deems a member to have resigned. These include the notification issued to the 2nd Respondent to remove such a member’s name from the register and the procedure that should apply. These provisions do not therefore oust the Tribunal’s jurisdiction to hear and determine this dispute. To wait until the 2nd Respondent makes a determination on whether or not it will remove the Complainant’s name from the register would in our opinion set the stage for the dispute to be transformed and narrowed down to an appeal against the decision of the 2nd Respondent under Section 40(1)(f) and be subject of the legal and procedural limitations of such an appellate process. The 1st Respondent may in fact only participate in the appeal as an interested party and not a substantive party yet it is the 1st Respondent’s decision that aggrieves the Complainant. …”

69. Flowing from the above, we remain of the same view that the instant Complaint is properly before the Tribunal.

Whether the Disciplinary Committee was legally constituted? 70. The Complainant has challenged the legality of the composition of the DC that was Chaired by Prof. Ben Sihanya arguing that by virtue of the finding in ELRC Petititon No. E055 of 2020, Professor Ben Murumbi Sihanya & Another vs. The Ethics and AntiCorruption Commission & 2 Others, Prof. Ben Sihanya illegally Chaired the DC and if it was to be so deemed, the rest of the DC members did not constitute quorum in accordance with the ODM party constitution and the DC Rules.

71. The 1st Respondent has opposed these submissions on grounds, inter alia, that there were no declaratory orders issued against Prof. Ben Sihanya on the question of his sitting as the Chairperson of the DC, that the matter is sub judice in light of the case pending before the Court of Appeal, and further that the issue could not be raised in these proceedings as it was not raised before the DC.

72. We have considered the 1sr Respondent’s argument that the matter cannot be raised since it did not come up before the DC and we opine that the fact that the same was not raised before the DC does not bar the Complainant from raising it in these proceedings. In any event, the record reflects that both the Complainant and his Counsel did not participate substantively in the DC proceedings. We also do not agree with the Complainant that the mere fact that there is a pending appeal renders the matter before us sub judice. The Complainant has presented to the Tribunal a finding that is binding on the Tribunal unless set aside and we find it difficult to assume the same in the absence of any contrary orders from the Court of Appeal.

73. In the case of Elisha Ochieng Odhiambo (supra) where the same issue was raised, we stated thus:-“….We have considered the record and we note that at paragraphs 34, 37 and 38 of .the Judgment delivered by Mathews N. Nduma, J on 9th December 2021 in ELRC Petititon No. E055 of 2020, Professor Ben Murumbi Sihanya & Another vs. The Ethics and Anti-Corruption Commission & 2 Others, the Court stated: - “…34. It follows therefore the 1st petitioner is prohibited under Section 12 of the Political Parties Act, and Section 23 of the Leadership and Integrity Act to hold office in a poltical party…

37. Whereas a lecturer at an institution of higher learning enjoys academic freedom and is not barred from expressing his or her political opinion, such an officer is bound to relinquish his position if he is appointed or elected to an office in a political party. Holding the office of lecturer at a public university and at the same time holding an appointed office of Chairperson of a disciplimary committee in a dominant political party amounts to performing daily and/or continuous political activities that may be seen to compromise the political neutrality of the office of lecturer in a public university within the meaning of Section 23(2) of the Leadership and Integrity Act as read together with Section 12(1)(c) of the Political parties Act.

38. Following the above exegesies, and in answer to issues (i) and (ii) above the court finds that the action by the Respondent in giving the 1st petitioner the opportunity to elect to remain a lecturer at the University of Nairobi or opt to become the Chairperson of the Disciplinary Committee of Orange Democratic Movement was lawful, fair, just and in accordance with the Leadership and Integrity Act and did not violate any of the rights or freedoms of the petitioner set out in this petition or at all…”

It is clear that the High Court at paragraph 34 of the Judgment above made an express finding that Prof. Ben Sihanya is prohibited under Section 12 of the Political Parties Act, and Section 23 of the Leadership and Integrity Act to hold office in a poltical party. This is a finding that binds this Tribunal. We have not been shown any decision or order from the Court of Appeal setting aside or staying this finding and in the circumstances, our hands are tied…”

74. We maintain the same position as guided by the High Court determination and bearing in mind that the exclusion of the Chairperson of the DC would render the DC inquorate and in breach of Article 76(1) and (3) of the party Constitution as read together with Rule 12(6) of the DC Rules, we arrive at the inescapable finding that the DC was improperly constituted.

75. In the case of Republic vs. Chuka University ex-parte Kennedy Omondi Waringa & 16 Others [2018] eKLR, it was held that a tribunal or administrative body that makes its own rules must be prepared to adhere to those rules regulating the execution of its business and where it fails to do so, then the Court will not hesitate to intervene to declare the actions or failure to adhere to those rules ultra vires. and could not in the circumstances render a valid determination.

76. And in the case of Republic vs. Kirinyaga University College & 2 Others ex-parte Isaya Kamau Kagwima [2015]eKLR, the Court declared a nullity an improperly constituted disciplinary hearing.

77. Taking into consideration the circumstances of this case and reasoning in the cited judicial authorities, we find that the Complainant did not appear before a duly constituted DC. Accordingly, the findings and recommendations against the Complainant arising from the impugned DC hearing and all consequential ratification by the Respondent’s NEC are invalid and a nullity in law and we so declare.

Whether the disciplinary proceedings violated the provisions of Article 47 and 50 of the Constitution as read together with Section 4 and 6 of the Fair Administrative Action Act and the ODM Party Constitution and the Disciplinary Committee (Practice & Procedure) Rules 2022? 78. Article 47 of the Constitution also guarantees every citizen the right to constitutional due process. Whenever a member of a political party is deprived of this right through disciplinary proceedings whose penalty may curtail his rights under Section 38 of the Constitution, such a member is entitled to due process. This includes the right to notice and a fair hearing prior to the administration of any harsh penalty. In order to establish whether there was legal compliance in the disciplinary proceedings against the Complainant, it is therefore necessary to first and foremost outline the various constitutional, statutory and party laws that we consider of relevance to the subject matter herein.

79. The material part of Article 47 of the Constitution provides for the right to fair administrative action as follows: 1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

80. Additionally, the Fair Administrative Action Act, 2015 at Section 4(3)&(4) details the ingredients of fair administrative action thus:(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to—a.attend proceedings, in person or in the company of an expert of his choice;b.be heard;c.cross-examine persons who give adverse evidence against him; andd.request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

81. Section 7(2) of the Fair Administrative Action Act, 2015 provides grounds upon which a court or tribunal may review an administrative action. The grounds include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power.

82. The importance of the constitutional right of fair administrative action was appreciated in the South African case of President of the Republic of South Africa & others v South African Rugby Football Union & others (CCT16/98) 2000 (1) SA 1 where it was held that:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

83. In conducting review of disciplinary proceedings, the right to fair administrative action cannot be divorced from the right to fair hearing provided for under Article 50 of the Constitution even though the rights are distinct as observed by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR.

84. In our view fair administrative action imports the principles of natural justice. In Onyango Oloo vs. Attorney General [1986-1989] EA 456, it was held:“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...To “consider” is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion... “Consider” implies looking at the whole matter before reaching a conclusion....A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decisionmaking body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”

85. In Republic vs. The Honourable The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004, the Court expressed itself as follows:“Whereas the rules of natural justice are not engraved on tablets of stones, fairness demand that when a body has to make a decision which would affect a right of an individual it has to consider any statutory or other framework in which it operates. In particular it is well established that when a statute has conferred on a body the power to make decision affecting individuals, the courts will only require the procedure prescribed to be introduced and followed by way of additional safeguards as that will ensure the attainment of fairness. In essence natural justice requires that the procedure before any decision making authority which is acting judicially shall be fair in all circumstances. .…Although the courts have for a long time supplemented the procedure that had been laid down in a legislation where they have found that to be necessary for that purpose, before this unusual kind of power is exercised, it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of legislation. Additional procedural safeguards will only ensure the attainment of justice in instances where the statute in question is inadequate or does not provide for the observance of the rules of natural justice. The courts took their stand several centuries ago, on the broad principle that bodies entrusted with legal powers could not validly exercise them without first hearing the people who were going to suffer as a result of the decision in question. …. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing just as much a cannon of good administration is unchallengeable as regard its substance. The courts can at least control the primary procedure so as to require fair consideration of both sides of the case. …. As part of a reasonable, fair and just procedure the court has a cardinal duty to uphold the constitutional guarantees, the right to fair hearing which entails a liberal and dynamic approach in order to ensure the rights enjoyed by an individual is not violated...”It follows that this Court has the powers to interfere with the decision of the Respondent arrived at in the exercise of its statutory mandate where the Respondent’s powers are not validly exercised. To make a decision adversely affecting the applicant without affording the applicant an opportunity of being heard is in my view such invalid exercise of power warranting this Court to interfere.In my view the respondent broke all the procedural rules relating to fairness in its proceedings. It issued prejudicial orders on a mention date; it did not bother to confirm whether its directions were complied with in order to ensure the fairness of the process; and it did not confirm whether the Applicant was duly notified at every stage of the proceedings. Accordingly, its decision cannot be allowed to stand…”

86. The right to fair hearing and fair administrative action and application of the rules of natural justice before the DC has been codified in Article 76 (3),(4),(5) and (6)of the ODM Party Constitution as read together with Rules 4, 13(2) and 20(2) of the DC Rules which enjoin the DC to uphold the constitutional and statutory tennets on the right to a fair hearing and fair administrative action. It is therefore inescapable to analyse the facts and evidence adduced by the parties in these proceedings with a view to establishing whether the disciplinary proceedings subject hereof were conducted in accordance with the law that the 1st Respondent committed itself to observe and uphold.

87. We note that the disciplinary process against the Complainant was initiated vide a Notice to Show Cause (NTSC) dated 13th February 2023 under the authorship of CPA Hon. John Mbadi, EGH, the National Chairperson. The NTSC states as follows; ‘…My office is in receipt of a complaint from a member of the party raising a plethora of issues the border on your general conduct as a member of the party and in specific your dalliance with party competitors.Your public display, conduct and general comportment not only violates section 14Aof the Political Parties Act 2011, Article 11 of the Party Constitution and the Party’s Code of Conduct that you signed but has facilitated to send mixed signals and cause unnecessary anxiety within the party membership and supporters…’

88. From a reading of the NTSC, we note that the same does not specify the issues complained about that allegedly border on the Complainant’s general conduct that violates Section 14A of the PPA and Article 11 of the Party Constitution and the Party’s Code of Conduct. According to the 1st Respondent, the NTSC was sent together with a letter from the law firm of Aguko, Osman & Company Advocates dated 9th February 2023 addressed to the Secretary General, ODM and the Chairperson ODM Disciplinary Committee. This is what the 1st Respondent identifies as the complaint and it states;-‘…on 7th February 2023 the members of the Orange Democratic Movement Party were treated to blatant and arrogant violation of the Party Constitution as read together with Section 14A(1)(e) of the Political Parties Act No. 11 of 2011 of the Laws of Kenya by the above mentioned party members. The said provision states ….On the said day and the period before the aforementioned party members have shown close association with a different political party whereupon they have been captured by the media appearing together with both the Party leader and deputy Party leader of the United Democratic Alliance Party whose ideologies, interests and policies they have been promoting from within the Orange Democratic Movement Party.It suffices to say that they actions do not only fly on the face of the entire legal framework governing political parties’ membership but have also caused immense embarrassment, ridicule, anxiety and disgust amongst the members of the Orange Democratic MovementParty and its party leadership at large…’

89. In essence, the single complaint in the letter dated 9th February 2023 relates to the allegation that the Complainant was on 7th February 2023 captured by the media appearing together with both the Party leader and deputy Party leader of the United Democratic Alliance Party whose ideologies, interests and policies the 1st Respondent claims the Complainant has been promoting from within the Orange Democratic Movement Party. The subject complaint letter made the following prayers;-i.The Office of the Party Secretary General to proceed immediately to deem the Complainant and others as having resigned from the party under Section 14A(1)(e) of the PPA, and initiate the process of having their name struck out of the party members register in accordance with the provisions of Section 14 and (3) of the PPA.ii.In the alternative, necessary disciplinary action to be commenced for purposes of having the Complainant and others expelled from the party if found culpable under Section 14B of the PPAii.That pending action as prayed, the Complainant and others be recalled by the party from all parliamentary leadership positions and committees that they are serving in.

90. We have seen the Complainant’s response to the NTSC vide letter dated 15th February 2023 and we note that: -i.The Complainant protested why important communication to him should be done through social media.ii.He stated that he wondered why the party chose to act on allegations from a twice party defector without cross checking. He accordingly challenged the decision to write to him to show cause instead of asking for a response to the allegations.iii.On the allegation, he stated that he met the Head of State on his own invitation at State House and he did not have any relationship with UDA. He stated that he was a contributing life member of ODM and a branch secretary of the party.

91. We have seen letter from the National Chairperson dated 3rd July 2023 addressed to Prof. Ben Sihanya, Chairperson, ODM Disciplinary Committee (hereinafter referred to as DC). It is referenced ‘Transmittal of Disciplinary Matters for Action Againat Hon. Prof Tom Ojienda, Hon. Gideon Ochanda, Hon. Caroli Omondi, Hon. Elisha Odhiambo, Hon. Paul Abuor, Hon. Mark Nyamita and Hon. Felix Odiwuor’. It reads:-‘…The Office of the National Chairperson received Complaints against seven (7) members of Parliament alleging violation of the party Constitution and Code of Conduct.On 9th February 2023 my office received a complaint from Sen Eddy Oketch dated of even date. Show cause letters were issued to the affected members and responses received.Despite a prima facie case being established against the seven (7) members, there was nosufficient information to sustain a charge. Guided by Rule 11(1(c) of the ODM Disciplinary Committee (Practice and Procedure) Rules 2022, I instructed the National Secretariat to collect more evidence that will sustain a charge or charges.Having reviewed the complaint, their individual responses to the show cause letters and the additional evidence gathered, I am persuaded that the said members have not absolved themselves of the complaints made against them.Therefore, pursuant to Rule 11(1)(d)of the Party’s Disciplinary Committee (Practice andProcedure ) Rules 2022, I hereby refer their cases to you to commit to disciplinary hearing. I have enclosed herewith the Complaint, the notice to show cause letters, the responses to the show cause letters and the additional evidence for your review and necessary action…”

92. From the evidence before us, the next communication that the Complainant received from the 1st Respondent was vide the letter dated 10th July 2023 authored by Prof Ben Sihanya, Chairperson, ODM Disciplinary Committee, referenced ‘Notice to Appear for Disciplinary Hearing’ (hereinafter referred to as the notice to appear). The notice to appear reads;-‘…The ODM Disciplinary Committee is in receipt of a complaint against you from the ODM National Chairperson citing gross violations of Article 11(1)(e) of the party constitution and code of conduct.The specific complaints are that, contrary to the ODM Constitution, Code of Conduct and lawful decisions as well as the Constitution of Kenya 2010 and the relevant laws of Kenya, you have conducted yourself as follows;i.That you have openly associated with and supported policies of a rival political party.ii.That you have openly opposed lawful decisions made by party organs iii. That you betrayed the public trust bestowed upon you by party members iv. That by your conduct and general comportment, you promote the ideology, interests or policies of another political party. Therefore, you are in violation of Article 11(1)(e) of the Party Constitution and Code of Conduct as read together with Section 14A(1)(e) of the Political Parties Act 2011…Therefore the ODM Disciplinary Committee pursuant to Article 75 and 76 of the ODM Constitution summons you to appear in person before the committee sitting on Wednesday 19th July 2023 at 8. 30am at Chungwa House Nairobi.Take note that disciplinary actions include reprimand. Censure, fine, suspension, expulsion, and/or any other sanction under the Constitution of Kenya, the Political Party Act, the ODM Party Constitution and all relevant laws, rules and regulation….In conducting the hearing, the Disciplinary Committee will also be guided by the principles of fair administrative action, natural justice and due process….We have enclosed herewith the complaint, notice to show cause and part of the evidence and entirety of evidence being within your knowledge…”

93. The Complainant responded to the notice to appear through his lawyer Dr. Miyawa’s letter dated 18th July 2023. In the subject letter, the Complainant’s lawyer raised the following issues inter alia: -i.That the notice was too short and the Complainant was not able to adequately prepare to defend and/or respond to the allegations and therefore requested that the hearing be adjourned.ii.The Complainant expressed discomfort with conducting a disciplinary hearing within Chungwa House grounds based on a history of actual harassment and intimation of persons who express diverse opinions within ODM party by hired goons.iii.Requested for more particulars or evidence and any supporting documentation exhibiting the complaints

94. The Chairperson ODM Disciplinary Committee responded to the request vide letter dated 18th July 2023 which rescheduled the Complainant’s disciplinary hearing to 25th July 2023 at 8. 30am at a venue to be communicated in Nairobi County. The letter informs the Complainant of the strict timelines bearing in mind that the Committee received the decision to charge on 3rd July 2023. However, the Complainant’s request for particulars vide his letter dated 18th July 2023 referred to above was not addressed by the 1st Respondent.

95. On 24th July 2023 at around 10. 37pm, the Secretary to the 1st Respondent’s DC sent a whatsapp message to the Complainant informing him that the hearing would be held at Emory Hotel at the same time as indicated in the notice to appear. The Complainant read the message in the morning and responded at 9. 58am by stating that he was away and that he had appointed Dr. Maxwell Miyawa to represent him before the DC.

96. On 25th July 2023 when the matter came up, the transcribed proceedings as from page 132 to 143 of the 1st Respondent’s Bundle of Documents demonstrate that Dr. Miawa Advocate appeared before the DC to represent the Complainant. Our perusal of the transcripted proceedings reveal the following:-i.After Dr. Miyawa introduced himself as representing the Complainant, the DC Chairperson Prof. Ben Sihanya sought a confirmation as to whether his credentials had been established as a member of the ODM Party. It was confirmed that he was a member of the party.ii.The DC had reservations with the attendance of one Mr. John Mwai who was introduced as a lawyer appearing together with Dr. Maxwell Miyawa. The complainant before the DC and his counsel Gad Aguka had no problem with the appearance of the lawyer in the proceedings. ultimately, the DC ruled that the said lawyer exits the proceedings and Dr. Miyawa remained.iii.THE DC Chairperson stated that there was need for personal presence of the Complainant herein as the claims related to personal conduct or misconduct and that a lot of information was personal to him.iv.Dr. Miyawa requested for an adjournment but the same was declined and he was directed to get in touch with the Complainant and appear before the DC virtually as from 3. 30pm.

97. We note from the DC Decision at page 153 of the 1st Respondent’s Bundle of Documents that Dr. Miyawa appeared before the DC at 6. 50pm. We have reproduced excerpts thereof below: -“…DC Engagement and RulingThe DC ruled that Hon. Ochanda should appear in person or online (virtually) on 25/7/23, by latest 3. 30pm.After the ruling, Dr. Miyawa asked the DC to give him the ruling in writing. Prof. Sihanya informed Dr. Miyawa that the DC would follow the procedure set out in the ODM Constitution.At about 6. 50pm, Dr. Miyawa appeared for Hon. Ochanda and informed the DC that Hon. Ochanda was not able to appear at all, not physically or online.Subsequently, the DC ruled that it would go ahead and hear the matter in Hon. Ochanda’s absence. Dr. Miyawa was asked to leave and he left. Then the matter was heard as detailed below…” (emphasis ours)

98. From the foregoing, it is evident that the DC elected to proceed with the hearing of the case against the Complainant herein in the absence of both the Complainant and his duly instructed counsel, which instructions were communicated the DC. It is interesting to note from the DC decision that Dr. Miyawa was asked to leave the meeting and he left, and that the DC hearing proceeded. The Complainant’s counsel was not allowed an opportunity to represent him.

99. From the record, the DC hearing proceeded and numerous issues were brought out that did not in any event form part of complaint in the NTSC. We have reproduced sections of the DC Analysis, Findings and Recommendations as hereunder to demonstrate the same: -“…The complainant had evidence of Hon Ochanda having publicly spoken against the Party's position with respect to Ruto’s legitimacy. Also, Hon Ochanda was in a number of times, party statements made against ODM’s ideology, interests, and policies and never found it necessary to protest and /or defend the ODM position as required by Article 11 (1) (e) of the ODM Constitution. For example, he was in the company of some ODM/AZIMIO and non-ODM/AZIMIO members who urged people not to participate in the demonstrations that had been called by ODM/AZIMIO. He never objected to or corrected any of the statements meaning that he acquiesced to them. He was therefore party to statements that publicly defied the ODM party position on issues. He also voted against ODM’s positions on a number of issues in the National Assembly. He therefore grossly violated Article 11(1) (e) of the ODM Constitution.Hon. Ochanda seems oblivious or does not care that political parties are organs created and recognized by the Constitution of Kenya and related laws such as the Political Parties Act, 2011. So, a complainant by a member, a show cause letter from the ODM National Chairperson, or an invitation to a disciplinary hearing by the DC are all sanctioned by the Constitution of Kenya. And, in the case of an elected member who is a member of a political party and in particular, with respect to their conduct and being deemed to have resigned, is spelled out in Articles 91 and 103 of the Constitution. The ODM Constitution operates under the Political Parties Act 2011. Therefore, Hon Ochanda grossly violated Section 14 (1) (e) of the Political Parties Act, 2011. Hon Ochanda was therefore in gross violation of Article 11 (1) (e) of the ODM Constitution and Section 14A (1) (e)of the Political Parties Act,2011The DC took note of the fact that the lawyers who had Claimed on 24/7/23 to have been sent to represent Hon. Ochanda too, did so while Ochanda had a lawyer, Dr Miyawa. Hon Ochanda had appointed Dr Miyawa who had responded to the DC letter of 10/7/23 on behalf of Ochanda.DC FindingsHon Ochanda was found to have, 1. Received the DC Letter of invitation to a disciplinary hearing and the communication that changed the hearing date;

2. Chosen not to create time to appear before the DC or even appear virtually;

3. Not respected the ODM Party’s Code of Conduct which he had signed, including observing discipline and obeying lawful decisions made by party organs.

4. Defied ODM’s party positions, interests, policies, and/or ideology on various aspects and instead promoted and supported UDA/Kenya and Section 14A (1) (e)of the Political Parties Act,2011 this amounts to gross misconduct and

5. By his conduct as referred to above, and as relayed in evidence, he is deemed to have resigned from the ODM Party. DC Recommendations to NECThe DC recommendations that: 1. Hon. Gideon Ochanda Ogolla, by dint of his conduct, be deemed to have resigned from the ODM Party.

2. The Party (ODM) pursues the process of removing the said member from the ODM membership…”

100. In a nutshell, we make the following observations from the record and evidence adduced as partly highlighted above;-i.Whereas Rule 5(1) of the DC Rules is express that all proceedings before the DC shall be initiated by way of a complaint, there are certain proceedings that were held before the DC that fell outside the NTSC dated 13th February 2023. We have highlighted sections of the 1st Respondent’s pleadings and DC Determination that demonstrate that the DC considered several complaints that came way after 13th February 2023 that were not captured in the subject NTSC dated 13th February 2023. This was in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act. ii. Whereas Rule 10(2) of the DC Rules provide that the show cause letter shall state the alleged violation, offence or such other matter that the member is accused of, the two NTSC issued to the Complainant fell short of this requirement. The 1st Respondent instead elected to annex the Complaint. In essence, the NTSC did not frame the offences appropriately together with the requisite particulars to enable the Complainant respond effectively. This was also in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act.iii.The 1st Respondent did not communicate with the Complainant after receiving his response to the NTSC.iv.The 1st Respondent’s National Chairperson did not seek any further information and/or clarification from him in the course of the alleged further investigations in consonance with Rule 11(1)(c) of the DC Rules. We say so bearing in mind that the National Chairperson alludes to having undertaken further investigations which seem to have uncovered additional complaints not subject of the NTSC thus infringing on the Complainant’s right to adduce and challenge evidence under Article 50(2)(k) of the Constitution.v.Whereas Rule 17(3)(a) of the DC Rules make it mandatory for the summons to be accompanied by the documents referred to in Rule 11(2), the notice to appear did not enclose certain crucial documents including decision to charge and all evidence intended to be adduced. From a reading of the notice to appear’ it expressly states that it encloses the compolaint, the NTSC and evidence to the exclusion of any other document under Rule 11(2).Interestingly, the notice to appear states that it has enclosed ‘…the complaint,notice to show cause and part of the evidence and entirety of the evidence beingwithin your knowledge…” The Complainant claimed that the document titled evidence initially served upon him not only had new complaints but also did not contain certain information relating to links. This was in breach of Article 47(1) and 50(2)(j),(k) of the Constitution, Section 4(1) and 4(3)(a),(b) and (g) of FAA Act..vi.Whereas the Complainant sought particulars and evidence in his letter in response to the notice to appear/summons, the 1st Respondent did not address the Complainant on the same. They simply wrote letter communicating adjournment of the matter to 25th July 2023. The 1st Respondent therefore acted in breach of Article 50(2)(j) of the Constitution and Section 4(3)(g) FAA Act. vii. Whereas Rule 17(5) allows the DC to inform the parties to file such further documents, statements, information, legal arguments, etc, and further Rule 20(4) allows the DC to take evidence by affidavit, the DC did not consider any of these options yet it elected to proceed in the absence of both the Complainant and his legal counsel without taking into consideration that whereas the Complainant had responded to the NTSC issued, there were fresh complainants that were yet to be processed in accordance with the DC Rules.This was in breach of Article 47(1) of the Constitution, Section 4(1) of FAA Act. viii. Whereas Article 50(2)(g), Section 4(5) FAA Act, Article 76(9) and Rule 21(1) of the DC Rules allows the Complainant to be represented by an Advocate of his choice, the Complainant selected Counsel of his choice and the DC had communication from the Complainant of his appointment and further that the said Counsel was in fact a member of the 1st Respondent. Strangely, the DC elected to lock him out of the proceedings and instead went on with the hearing in the absence of both the Complainant and his Counsel.ix.No written reasons or decision were given to the Complainant on the 6th September 2023 when the decision was made and broadcast to the general public in the media. The 1st Respondent admits that the said decision was sent to the Complainant on 11th September, 2023. As at 7th September 2023 when the request to deregister the Complainant was made to the 2nd Respondent, the Complainant (whose rights were adversely affected) had not been notified of the decision and neither had he received that communication.ix.It is not until 11th September 2023 after the institution of the instant proceedings that the Complainant received formal communication of the decision from the 1st Respondent. We find it most unprocedural that DC did not communicate to the Complainant its decision on the same date yet the decision went to the root of affecting the Complainant’s right under Article 38 of the Constitution of Kenya. Interestingly, the outcome was known by third parties even before he knew it. This was in breach of the Complainant’s right under Article 47(2), and 25 (c) of the Constitution on the right to fair trial, as read together with Section 4(2) and 6 of the FAA Act.

101. We have further considered numerous judicial authorities touching on the observations we have made above. In PPDTC No. E003 of 2021 Sen. Mary Yiane & 4 Others vs. Jubilee Party & Anor, where we observed as follows:-“…In another case of Republic vs. Chuka University ex-parte Kennedy Omondi Waringa & 16 Others [2018] eKLR, it was held that a tribunal or administrative body that makes its own rules must be prepared to adhere to those rules regulating the execution of its business and where it fails to do so, then the Court will not hesitate to intervene to declare the actions or failure to adhere to those rules ultra vires. 26. Based on the foregoing, we cannot see the party provisions that support the 1st Respondent’s averments that the disciplinary process was in line with the party laws and procedures. In deed from our analysis, a disciplinary process would commence, as per the laws of the party, by way of a clearly laid out process that would leave no doubt of question in the mind of those engaged as to what was going on. Undoubtedly expulsion of a person from a party has serious implications, thus when an entity such as a political party outlines a clear process, more so the manner in which its membership will become aware that such serious process has been initiated against them, then such process need be clearly initiated.

102. And in Gathigia vs Kenyatta University Nairobi HCMA No. 1029/2007 [2008] KLR 587 the Court held:-“i.if a statute prescribes, or statutory rules and regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed; ii. if no procedure is laid down, there may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue; iii. In such a case the tribunal, which should be properly constituted, must do its best to act justly and reach just ends by just means. It must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as a trial. It need not examine witnesses; and it can obtain information in any way it thinks best……….;iv. The person accused must know the nature of the accusation made;v.A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view and to make any statement they may decide to bring forward; [underlined parts our own]

103. In Isaac Mwaura Maigua v Jubilee Party & 3 others [2021] eKLR (High Court Civil Appeal E248 of 2021), the High Court stated as follows:-“… 48) It is a cardinal rule of natural justice that the right of a fair hearing can only be exercised, upon a party being granted more time to prepare his evidence to respond and controvert evidence that was produced during the disciplinary hearing 49) This court is satisfied that the appellant was not accorded a fair hearing notwithstanding the fact that the appellant did not apply for adjournment of the hearing of the disciplinary proceedings. The Tribunal therefore erred when it held that the appellant was granted a fair hearing. 50) It is apparent that on the face of it that the 1st respondent breached its Constitutional and its Disciplinary Regulations. It also goes without saying that the 1st respondent breachedArticles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act, 2015…”

104. In PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, which decision was upheld by the High Court in we stated:-“…The Complainant is further aggrieved that his right to fair hearing was impaired by the Respondent who refused to afford him reasonable opportunity to access all records and information concerning the financial activities of the party so as to enable him to respond to the charges.….In the case of Dennis Edmond Apaa & 2 Others v Ethics and Anticorruption Commission & Another [2012] eKLR, the court affirmed that the right to fair hearing includes the right to be informed in advance of the evidence upon which charges are based and to reasonable access to the same. The Tribunal is of the considered opinion that considering the gravity of the allegations, adequate provision and need not have been afforded the Complainant despite his failure to submit a written response within the short time allowed him. Indeed we note from the record of the said disciplinary proceedings that another Member of the party was allowed time to present herself before the Committee at a future date…”

105. With respect to the question of failing to furnish the Complainant the decision and its reasoning in good time, in Zahara Noor Ismail Duale v Orange Democratic Movement Party [Complaint No 456 of 2017] para 11 the Tribunal held that: - “… political parties are under an obligation to supply affected persons with reasons for their decisions, in order to assess whether these reasons are justifiable in an open and democratic society such as ours.”

106. Similarly in PPDTC No. E004 of 2021 Godfrey Osotsi vs Amani National Congress, we stated:-‘…Whereas the Complainant alleges that the reasoned decision subject hereof was not availed to him despite having requested for the same, the Respondent argues that the subject decision was communicated to the Complainant vide the Respondent’s letter dated 19th March 2019. From the record, there seems to be no reasoned decision but a record of the purported disciplinary proceedings and a verdict dated 19th March 2019 signed by the Disciplinary Committee. The complainant avers that he only had sight of this record two months later when he was in the process of filing the instant proceedings. We agree with the Complainant that the right to be supplied with a decision under Sections 5(1)(d) and 6(1) of FAA Act is a substantive right intended to determine whether the decision was made in compliance with the law and to facilitate the right to review or appeal…”

107. In light of our foregoing observations and the principles enunciated in the case laws referred to above, we reach the inescapable conclusion that the 1st Respondent acted in breach of Article 47, 25(c) and 50 of the Constitution, Section 4 and 6 of the Fair Administrative Action Act, Article 76 (3),(4),(5) and (6)of the ODM Party Constitution, and Rules 4, 13(2) and 20(2) of the DC Rules all which uphold the right to a fair hearing and fair administrative action.

Whether the decision by the National Executive Committee to adopt the recommendations of the Disciplinary Committee and seek the 2nd Respondent’s implementation thereof is lawful. 108. We have already found that the DC processes were in breach of Article 47 and 50 of the Constitution, Section 4 and 6 of the Fair Administrative Action Act, Article 76 (3),(4),(5) and (6)of the ODM Party Constitution, and Rules 4, 13(2) and 20(2) of the DC Rules. Accordingly, our determination under this issue would ordinarily be inconsequential.

109. However, should we be wrong in our finding, we note that both deeming a member to have resigned and expulsion are actions that amount to cessation of membership with the party.

110. In consideration of this issue in the case of Elisha Odhiambo (supra) we stated as follows:-“…We note that Article 12(1) of the ODM Constitution provides that one shall cease to a member of the Respondent “by a resolution passed by the National Executive Council and ratified by the National Governing Council.” It is not disputed that the NEC resolution was not ratified by the National Governing Council (NGC). Accordingly, the decision of NEC to adopt the recommendations of the DC and proceed to apply to the 2nd Respondent without subjecting the same to the NGC for ratification was in breach of Article 12 of the Respondent’s Constitution…”

111. Granted the facts of this case which are similar to the facts and circumstances in the case of Elisha Odhiambo (supra), we have no reason to depart from our foregoing observations. We accordingly find that the decision of NEC to adopt the recommendations of the DC and proceed to apply to the 2nd Respondent to remove the Complainant’s name from the party register before ratification by the National Governing Council amounted to a breach of Article 12(1)(b) of the Respondent’s constitution.

Whether ODM Disciplinary Findings and Recommendations were arrived at in accordance with the law / Whether the Complainant’s actions violated the ODM Party Laws. 112. Parties have made substantive submissions on this issue. We have already made a finding that the TNDC disciplinary proceedings against the Complainant were conducted in breach of the law. Consequently, the same attracts an order for setting aside ex debito justitiae. Our finding under this issue is therefore inconsequential.

113. Further in any event, we are alive to the fact that a political party retains the right to discipline its member and we can only interfere with that right when due process is not complied with as was in this case. This does not mean that the party cannot institute fresh disciplinary proceedings against the Complainant if they so wish and provided there is legal compliance. If we elect to examine the legality of the DC decision in this judgment, we will have to scrutinize the evidence and get into the arena of the merits or otherwise of the charges. Should we do so, we may make certain statements that may prejudge or prejudice the merits of the charges and the party’s right to discipline the Complainant. We have accordingly elected not to make a finding under this issue.

What are the appropriate reliefs to grant. 114. Taking into consideration the totality of the facts and circumstances in this case and in light of the foregoing, we find that the Complaint is merited.

115. On the question of costs, it is well settled that costs ordinarily follow the event. This position is also codified in Regulation 43(2) of the PPDT Regulations. We find no good reason to depart from the same. Accordingly, the Complaint is allowed with costs to the Complainant, which costs shall be borne by the 1st Respondent. However, the Complainant is on the other hand condemned to pay costs incurred by the 2nd Respondent in defending these proceedings.

116. Upon consideration of the reliefs sought, we make the following orders;-i.An order be and is hereby issued declaring the disciplinary proceedings by the 1st Respondent conducted against the Complainant on 25th July, 2023 unprocedural, unlawful and in violation of Article 47 of the Constitution of Kenya, Section 14A of the Political Parties Act, Section 4 and 6 of the Fair Administrative Actions Act, Article 75(5) and (6) of the 1st Respondent’s Constitution as read together with the 1st Respondent’s Disciplinary Committee (Procedure) Rules and the rules of natural justice.ii.A declaration be and is hereby issued that the Disciplinary Committee of the 1st Respondent convened on 25th July, 2023 was not properly constituted and thus the decision of the National Executive Committee adopting the Recommendations of the said Committee is invalid and has no effect in law. iii. A permanent order for injunction be and is hereby issued restraining the Registrar of Political Parties from removing the name of the Complainant from the register of members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023. iv.Save for costs for the 2nd Respondent which shall be borne by the Complainant, the 1st Respondent shall bear the Complainant’s costs of these proceedings.

The Dissenting Opinion Of Abdirahman Adan (member). 117. I have been notified of the decision of the majority. With profound respect, I am, however, not in one with it and the final Orders they have proposed.

118. I have considered all the pleadings, evidence on record, and submissions of the parties. For reasons that shall shortly become apparent, I would, on my part, summarize them as follows.

119. The ODM Party has made a decision to deem the Complainant to have resigned from the party pursuant to Section 14(A) of the Political Parties Act. The procedural and substantive propriety of this decision has been challenged by the Complainant before this Tribunal. In accordance with the said Section 14(A), the ODM Party applied to the Office of the Registrar of Political Parties moving it to remove the name of the Complainant from its register. The Registrar is yet to determine the application by the ODM Party due to the conservatory orders that were issued by this Tribunal in this and related matters.

120. The Complainant has put a case before this Tribunal to find against the legality of the decision by the ODM Party for varying reasons. The ODM Party has refuted these assertions, and it holds that it acted within the law and justifiably. On its part, the Registrar of Political Parties states that the Complainant has no complaint against it as it is yet to determine the application by ODM due to the conservatory orders issued in this matter.

121. On my part, and this is the reason I depart from the majority, I do not find that this Tribunal has the requisite jurisdiction, at this stage of the emanating dispute, to handle the Complaint. Since I am not convinced of this Tribunal’s jurisdiction in the instant complaint, and since any appeal from the pending decision by the Registrar would lie to this Tribunal, I do not venture to comment on any aspect of the legality or otherwise of the subject ODM decision.

What is the impugned decision complained about? 122. In my mind, the preliminary step to resolve this Complaint is to inquire as to what exactly is the impugned decision complained about. To do so, I have perused the parties’ pleadings and documents supplied and come to the conclusions hereunder.

123. At paragraphs 29 & 30 of the Complaint dated 11th September 2023, the Complainant states as follows:“29. The Complainant is heavily aggrieved by the decision of the 1st Respondent to expel him from the ODM Party and further seek to remove his name from the register of the members of the 1st Respondent pursuant to Section 14A through a fundamentally flawed process.

30. It is against this background that the Complainant has sought the intervention of this Honourable Tribunal.”

124. In the 1st Respondent’s Disciplinary Committee Report titled ‘ODM/DCHN/0011/2023: Hon. Gideon Ochanda Ogolla…’ and dated 3rd August 2023 the Committee finds that “Hon Ochanda was found to have …6. Defied ODM party positions, interests, policies… 7. By defying…, he grossly violated…and Section 14A (1)(e) of the Political Parties Act, 2011… 8. By his conduct as described above and as relayed in evidence, he is deemed to have resigned from the ODM Party.” The Report recommends to the NEC that “1. [The Complainant], by dint of his conduct, be deemed to have resigned from the ODM Party…”

125. The 1st Respondent’s letter to the Complainant dated 11th September 2023 and referenced ODM/2023/186/009 by Oduor Ong’wen states, inter alia, that “the NEC had deliberated and adopted the report of the Disciplinary Committee where you were deemed to have resigned from the Party.” Attached to this letter, are excerpts of the referenced NEC minutes. In these minutes, it is indicated that the NEC recommended that the Complainant, among others, “by dint of their conduct be deemed to have resigned from the Party.”

126. The 1st Respondent’s2 letter to the 2nd Respondent dated 7th September 2023 and referenced ODM/2023/181/009 by Oduor Ong’wen states, inter alia, that “the purpose of writing this letter is… to communicate to you the resolution of NEC adopting the recommendations of the Disciplinary Committee finding the five members to be deemed to have resigned from the Party within the meaning of Section 14A of the Political Parties Act.”

127. The 2nd Respondent, through her letter dated 11th September 2023 and referenced RPP/FRP/021 Vol. VIII (39), acknowledges receipt of the above referenced letter from the 1st Respondent and states, inter alia, that “Section 14(4)(A) of the Political Parties Act, 2011 (PPA) requires the Registrar to determine compliance of the referenced party process with Section 14A (2) of the PPA before updating the party register.”

128. Persuaded firmly by these documentations and the pleadings, I have no doubt that the impugned decision is the 1st Respondent’s decision to deem the Complainant to have resigned from the ODM Party pursuant to the dictates of Section 14 (A) of the Political Parties Act.

129. I am unable to see any correspondence or document from the 1st Respondent to the Complainant, indicating that the 1st Respondent did expel the Complainant from the Party pursuant to Section 14 (B) of the Political Parties Act. Any such conclusion or insinuation would be a wrong conclusion of fact in my considered opinion.

Section 14 (A) of the Political Parties Act. 130. The next step would be to ask ourselves what are the statutory provisions in Section 14 (A) of the Political Parties Act. For this, I find it necessary to reproduce the entire section hereunder:“14A. When a member may be deemed to have resigned from a political party(1)A person who, while being a member of a political party shall be deemed to have resigned from that party if that person—a.forms another political party;b.joins in the formation of another political party;c.joins another political party;d.in any way or manner, publicly advocates for the formation of another political party; ore.promotes the ideology, interests or policies of another political party.(2)A political party shall, before deeming a member to have resigned under subsection (1)—a.notify the member that he or she has been deemed to have resigned from the political party and that the political party intends to remove his or her name from the list of its members; andb.afford the member a fair opportunity to be heard in accordance with the procedure set out in the constitution of the political party.(3)A political party which deems a member to have resigned from the political party shall notify the Registrar in writing of the member’s resignation and request the Registrar to remove that person’s name from the register of members of that political party.4. Upon the notification under subsection (3), the Registry may, where the Registrar is satisfied that the political party has complied with the procedure under subsection (2), remove the member’s name from the register of members of the political party within seven days of the notification and notify the member in writing that he or she has ceased to be a member of that political party. 5. Where the Registrar is not satisfied in accordance with subsection (4), the Registrar shall refer the matter back to the concerned political party for reconsideration.

6. Subsection (1) (c), (d) and (e) shall not apply to a member of a political party which enters or proposes to enter into a merger or a coalition with another political party.”

Has the Registrar of Political Parties made a decision under Section 14 (A) (4) & (5) of the Political Parties Act? 131. Naturally, it behooves upon this Honourable Tribunal to next consider whether the Registrar of Political Parties has made a decision on the 1st Respondent’s request to remove the Complainant from the register pursuant to the dictates of Section 14(A).

132. Fortunately, the 2nd Respondent has answered this question in its Replying Affidavit dated 21st September 2023 by Joy Onyango. The Deponent attached the 2nd Respondent’s letter dated 19th September 2023 and referenced RPP/FRP/021 Vol VIII (13) addressed to the 1st Respondent that informs the Party that the office has received its documentation but is stopped by the conservatory orders issued by this Tribunal from deliberating further on the matter. Thus, I agree with Joy Onyango when she avers at paragraph 10 of her Affidavit that “the 2nd Respondent has therefore not made the determination required under Section 14A (4) of the Political Parties Act, 2011 as to affect the rights of the Applicant/Complainant.”

What is the import of the situation where the 2nd Respondent has yet to make this determination? 133. Having considered this state of affairs, I am of the opinion that since the 2nd Respondent is yet to make its determination under Section 14(A) (4) & (5) of the Political Parties Act, there are two major implications that significantly affect these proceedings.

132. The first is that this Honourable Tribunal’s jurisdiction over the issue is ousted. The PPDT does not enjoy a broad and limitless judicial review jurisdiction. The jurisdiction of the PPDT is limited to matters provided under Section 40 of the Political Parties Act, to wit:“40. Jurisdiction of Tribunal(1)The Tribunal shall determine—a.disputes between the members of a political party;b.disputes between a member of a political party and the political party;c.disputes between political parties;d.disputes between an independent candidate and a political party;e.disputes between coalition partners;f.appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.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.3. A coalition agreement shall provide for internal dispute resolution mechanisms.”

135. In my considered opinion, two fundamental issues flow from Section 40(1)(f) of the PPA. One, there is an express statutory dictate providing an appellate jurisdiction over the Registrar’s decisions to the PPDT. Two, the Registrar’s decisions under the PPA enjoy statutory protection to the extent that they can only be appealed from to the PPDT and not reviewed by the PPDT. Both of these issues import legislative protection of decisions ringfenced by the Act to be in the Registrar’s province from any immature interference by this Honourable Tribunal. In other words, I am effectively persuaded that where the Political Parties Act donates decisional power to the Registrar of Political Parties, this Honourable Tribunal cannot usurp that power until a proper appeal to a crystallized decision has been procedurally lodged before us.

136. In statutory interpretation, the specific always outweighs the general. Section 14A (3) to (5) of the Political Parties Act outweigh Section 40 (1) (b) in that the Complainant cannot assert that since “disputes between a member of a political party and the political party” fall under the general jurisdictional remit of the PPDT, then they are free to present a dispute regarding the ODM Party’s decision that is pending scrutiny and determination by the Registrar under Section 14A (4) & (5). On this, I would associate myself with the dicta by the Court of Appeal in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR at para. 44, to wit:“We hasten to add that a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...”

137. Besides, the Doctrine of Ripeness informs us that absent a determination by the Registrar under either Section 14A (4) or (5) of the Political Parties Act, the decision by ODM remains abstract without any substantive import. Without ripeness, the subject complaint lacks justiciability. In my opinion, it would be wise under the Doctrine of Deference to hold this dispute in abeyance and await the Registrar’s determination.

138. In the premise, I would hold that since the 2nd Respondent has yet to make its decision on the 1st Respondent’s application under Section 14 (A) of the PPA, this Honourable Tribunal lacks any jurisdiction to consider the present Complaint.

139. The second implication, which I note is a close cousin of the first, relates to the doctrinal principle of exhaustion. This doctrinal principle, if I understand it correctly, provides that if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. Indeed, Justice Mrima in Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR held that the doctrine of exhaustion acts as a bar to a court’s jurisdiction.

140. In this instant complaint, the Registrar is yet to determine the 1st Respondent’s motion under Section 14 (A) of the PPA. That process ought to be foremost exhausted before the appellate jurisdiction of this Honourable Tribunal or the judicial review jurisdiction of the appropriate court of law can be triggered. I would also, for this doctrinal principle, hold that the Tribunal lacks jurisdiction to entertain the Complaint.

141. It is now settled that a Court cannot “arrogate to itself jurisdiction through the craft of interpretation.” The Court’s jurisdiction is donated by either the Constitution or Statute or both. And, a Court’s jurisdiction is not a matter of procedural technicality but one that goes to the root of the Courts’ adjudication process. If a Court lacks jurisdiction to entertain a matter, it downs its tools. And I would so down my tools and dissent.

142. Before I pen off, I must comment on what I firmly believe to be a jurisdictional misadventure by the majority. The majority dedicates only a single paragraph to this question. In it, the majority frames it as a question of whether the Complaint is premature and they proceed to note that “the instant case has not been framed as an appeal against any decision of the [Registrar] under Section 40(1)(f) of the PPA.” First, of course, it cannot ‘be framed’ as an appeal because the Registrar is yet to make its decision due to our conservatory orders. Secondly, the majority falls into the trap that the Court of Appeal has warned about in Orange Democratic Movement v Yusuf AliSupra. Jurisdiction is not a matter of ‘framing’ or draftsmanship. It flows from the law and the substance of the complaint. The reality is, and I had hoped that the majority would have interrogated this, that Section 14A (2) of the PPA dictates what a political party must do before deeming a member to have resigned, i.e. (i) notify the member of its intention; and, (ii) afford the said member a fair opportunity to be heard in accordance with the procedure set out in the party’s constitution. A statutory responsibility is thereafter placed on the Registrar under Section 14A (4) and (5) of the PPA to assess whether the party has complied with the procedure under Section 14A (2) of the PPA. This express donation of power to the Registrar is not one for confusion. The Registrar does not conduct a clerical task under Section 14A (4) and (5); rather, its statutory duty therein is quasi-judicial. What the majority have done is to usurp this mandate, and it is all the more precarious for this Tribunal to assert jurisdiction at this stage when any appeal from the Registrar’s decision would lie to this Tribunal.

143. I would have ordered that (a) the Complaint be dismissed for lack of jurisdiction on account of the pending determination by the Registrar with no order as to costs; (b) the conservatory orders in this matter be vacated; (c) the 2nd Respondent be at liberty to determine the subject motion unless otherwise lawfully stopped; (d) parties be at liberty to thereafter apply. However, as the majority hold otherwise, the final Orders of the Honourable Tribunal shall be as proposed by the majority.

Final Orders Of The Tribunal 144. Pursuant to the provisions of Section 39 and 41(3A) of the PPA as read together with Regulation 29 of the PPDT (Procedure) Regulations, 2017, the Decision of this Tribunal is determined by the Majority Opinion. Accordingly, upon consideration of the reliefs sought and the Majority Opinion, we make the following Final Orders;-i.An order be and is hereby issued declaring the disciplinary proceedings by the 1st Respondent conducted against the Complainant on 25th July, 2023 unprocedural, unlawful and in violation of Article 47 of the Constitution of Kenya, Section 14A of the Political Parties Act, Section 4 and 6 of the Fair Administrative Actions Act, Article 75(5) and (6) of the 1st Respondent’s Constitution as read together with the 1st Respondent’s Disciplinary Committee (Procedure) Rules and the rules of natural justice.ii.A declaration be and is hereby issued that the Disciplinary Committee of the 1st Respondent convened on 25th July, 2023 was not properly constituted. iii. A Declaration be and is hereby issued that the Decision of the Respondent’s Disciplinary Committee and the National Executive Committee to deem the Complainant as having resigned was incapable of being implemented for having been made without ratification of the National Governing Council and as such a contravention of Article 12(1) (b) and Article 75(6) of the Orange Democratic Movement Party’s Constitutioniv.A permanent order for injunction be and is hereby issued restraining the Registrar of Political Parties from removing the name of the Complainant from the register of members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023. iv.A permanent order for injunction be and is hereby issued restraining the 1st Respondent from interfering with, de-whipping or in any other manner whatsoever attempting to remove the name of the Complainant from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on 25th July, 2023. iv.Save for costs for the 2nd Respondent which shall be borne by the Complainant, the 1st Respondent shall bear the Complainant’s costs of these proceedings.

145. Orders accordingly.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) ON THIS 29TH DAY OF NOVEMBER 2023. ………………………………………………..HON. DESMA NUNGO HSC - CHAIRPERSON………………………………………………..HON. STEPHEN MUSAU - MEMBER………………………………………………..HON. MUZNA JIN - MEMBER………………………………………………..HON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER