[2023] KEPPDT 1351 (KLR)

Odhiambo v Orange Democratic Movement Party & another (Complaint E005 (KSM) of 2023) [2023] KEPPDT 1351 (KLR) (29 September 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1351 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E005 (KSM) of 2023

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

September 29, 2023

Between

Elisha Ochieng Odhiambo

Complainant

and

Orange Democratic Movement Party

1st Respondent

Office Of The Registrar Of Political Parties

2nd Respondent

Judgment

1. The Complainant is a life member of the Orange Democratic Movement (ODM) Party, the 1st Respondent, and was elected in the 2022 General Elections as Member of Parliament (MP), Gem Constituency, under the 1st Respondent’s party ticket.

2. On 6th September 2023, the 1st Respondent issued a presser to the public that its National Executive Committee (NEC) had passed a resolution to adopt the recommendations of the 1st Respondent’s Disciplinary Committee (DC) to deem the Complainant to have resigned from the party for having violated Section 14A of the Political Parties Act 2011 (the PPA), Article 11 of the 1st Respondent’s Constitution, and the 1st Respondent’s Code of Conduct. This was as a consequence of complaints that had been filed against him that led to the disciplinary proceedings before the DC.

3. Aggrieved by the 1st Respondent's acts, omissions, and the DC decision, the Complainant filed the instant Complaint challenging the DC decision, the procedure, and the mode of arrival at the said decision, on several grounds, as set out in the Complaint dated 11th September 2023 and all the pleadings and documents in support thereof. The Complainant accordingly seeks the following reliefs from the Tribunal:-i.That this Honorable Tribunal be pleased to issue a declaration that the decision of the 1st Respondent to expel the Complainant Hon Elisha Ochieng Odhiambo from the Orange Democratic Party is unlawful and incapable of being implemented.ii.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 24th of July 2023 were unprocedural and in violation of the right to a fair administrative action and fair hearing as per Article 47 & 50 ofthe Constitution of Kenya 2010. iii.That this Honorable Tribunal be pleased to issue a declaration that the disciplinary proceedings by the 1st Respondent against the Complainant on the 24th of July 2023 violated the Political Parties Act, the Fair Administrative Action Act, and the 1st Respondent's Constitution.iv.That the Honorable Tribunal be pleased to issue a declaration that the Disciplinary Committee of the 1st Respondent convened on 24th 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.v.That the Honorable Tribunal be pleased to issue a Mandatory Injunction restraining the 2nd Respondent from removing the name of the Complainant,Hon Elisha Ochieng Odhiambo from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on the 24th July 2023. vi.Any other order this Honorable Tribunal may deem fit for the end of Justice. vii. The Cost of this suit be borne by the 1st Respondent.1. Together with the Complaint, the Complainant filed a Notice of Motion Application dated 11th September 2023 (the application), filed under certificate of urgency, and seeking, inter-alia: -i.conservatory and/or interim orders staying the implementation and/or enforcement of the decision of the 1st Respondent to expel the Complainant from the membership of the ODM party pending the hearing and determination of the application.ii.That a conservatory order and/or interim order be issued barring the 1st Respondent from removing the Complainant from Departmental Committee on Energy and Members Service and Facilities Committee in the National Assembly pending the hearing and determination of the application.1. The said application was placed before the Tribunal for directions, and upon consideration of the application ex-parte, the Tribunal issued orders to the following effect; -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.iii.That the Notice of Motion Application dated 11th September 2023 be listed for mention on 20th September 2023 at 2. 30pm to check on compliance and/or for further directions.iii.That an interim conservatory order is hereby issued staying and/or halting the implementation and/or enforcing the decision of the 1st Respondent to expel the Complainant, Elisha Ochieng Odhiambo, from the membership of the 1st Respondent, Orange Democratic Party pending the hearing and determination of this Application.iii.That an interim conservatory order is hereby issued barring the 2nd Respondent from effecting and/or enforcing the decision of the 1st Respondent by removing the Complainant, Elisha Ochieng Odhiambo, as a member of the 1st Respondent, Orange Democratic Movement, pending the hearing and determination of this Application.iii.That an interim conservatory order is hereby issued barring the 1st Respondent from removing the Complainant, Elisha Ochieng Odhiambo, as a committee member of the Departmental Committee on Energy and Members Service and Facilities Committee in the National Assembly, pending the hearing and determination of this Application.

6. On the 20th September 2023 when the application came up for hearing as scheduled, Counsel for the 1st and 2nd Respondents indicated that they would not be opposing the application and instead proposed that directions be issued on the hearing of the substantive Complaint in the interest of time. Accordingly, the application wasallowed with the concurrence of all the parties.

7. In consideration of the proposal by all parties hereto, the Tribunal directed parties to file written submissions and scheduled the matter for mention on 2nd October 2023 to confirm compliance. The Complaint was accordingly mentioned on 2nd October 2023 when directions were given for hearing of the Complaint on 23rd October 2023 by way of highlighting of the written submissions. However, on the 23rd October 2023 when the matter came up for hearing, the Complainant’s Counsel requested for an adjournment which was allowed by the Tribunal and the matter was stood over forhearing on the 30th October 2023.

8. During the hearing of the Complaint, the Complainant was represented by Mr. P. Nyamodi Advocate and Mr. Oruenjo Advocate. The 1st Respondent was represented by Mr. Anzala Advocate, and the 2nd Respondent was represented by Ms. Ndwiga Advocate, holding brief for Mr. Wakoko Advocate.

The__Complaint and Submissions.__ 9. The Complaint is supported by various documents filed on behalf of the Complainant including the Supporting Affidavit sworn by the Complainant, the Complainant’s Further Affidavit, Written Submissions, List and Bundle of Documents on record,amongst other pleadings.

10. In crux, the Complainant avers that he held an official meeting with the President ofthe Republic of Kenya, H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH at Statehouse in Nairobi, on 7th February 2023,in his capacity as MP Gem Constitutency.

11. Pursuant to the meeting, the Complainant was served with a Notice to Show Cause (NTSC) letter dated 13th February 2023 asking him why he should not be subjected to a disciplinary process for his purported dalliance with party competitors for allegedly violating Section 14A of the Political Parties Act 2011 (the PPA), Article 11 of the Party Constitution, and the Party’s Code of Conduct. The Complainant responded to theNTSC vide his letter dated 15th February 2023.

12. On 15th June 2023, the Complainant received another NTSC letter of even date raising a new complaint against him in relation to his conduct in the National Assembly. Heresponded to the second NTSC through his letter dated 16th June 2023.

13. Be that as it may, the Complainant was issued with a Notice to Appear for disciplinary hearing dated 10th July 2023, calling on him to attend a hearing before the DC on 19th July 2023. He responded to the notice stating that the notice was too short and that the hearing date was not convenient and requested that the same be rescheduled. In response, the Chairperson of the 1st Respondent’s DC wrote a letter dated 18th July 2023 advising the Complainant that the case had been rescheduled for hearing on 24th July 2023.

14. It is the Complainant’s case that on 24th July 2023 when the case came up for hearing, his lawyers were present and tried engaging with the DC but they were denied an opportunity to participate substantively in the proceedings before the DC. In the result, the hearing proceeded in his absence and also in the absence of his lawyers. Thereafter, it is not until the 6th September 2023 when he learnt from the Press Statement issued by the 1st Respondent that the 1st Respondent’s NEC had passed a resolution to adopt the recommendations of the DC to deem him to have resignedfrom the party.

15. The Complainant has isolated various issues for determination as detailed in hiswritten submissions on record.

16. With regard to the question whether the Complainant's actions leading to the disciplinary hearing violated the ODM party constitution and the code of conduct, the Complainant submitted in two limbs.i.The meeting with the President H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH.ii.Voting for the Finance Bill 2023. 1.The Complainant asserted in the first limb that by dint of Article 131(2) of the Kenyan Constitution, he paid a visit to Kenya's Head of State and Government, who represents national unity, rather than the United Democratic Alliance (UDA) Party's Party Leader and Deputy Party Leader, and that there was no proof affixed to the NTSC letter of 13th February 2023 to demonstrate that he visited UDA premises,participated in a UDA conference or rally, or any of its internal processes, and further that there was no indication how visiting the Head of State promoted the ideologiesand policies of a rival political party.

18. On the second limb, the Complainant stated that Article 95(1) of the Constitution of Kenya provides that: ‘the National Assembly represents the people of the constituencies and special interests in the National Assembly.’ In furtherance thereof, it is his submission that he traversed his constituency consulting with his constituents on the Finance Bill 2023, and therefore voted in favor of the Bill, as per the wishes of his constituents who are the people he represents in the National Assembly. He maintains that he was strictly performing his duties of representation as MP for Gem Constituency as mandated by Article 95(1) of the Constitution. According to the Complainant, his conduct in Parliament did not in any way violate the party’s Constitution and/or Code of Conduct and even if there was a conflict, the provisions of the Constitution of Kenya would override both. He further submitted that the repsonsibilities bestowed upon him by the Constitution of Kenya in his capacity as MP Gem Constitutency cannot under any circumstances be questioned or challenged by any person beforethe DC.

19. On the issue whether the Complainant's actions could be deemed as resignation from the ODM party, the Complainant relied on several provisions of the Constitution and the wordings of Section 14(5)(e) of the PPA and Article 12(1)(c) of the ODM Constitution on termination of membership and contended that whereas the 1stRespondent’s case before the DC was anchored on the allegation that the Complainantis alleged to have promoted the ideology, interest or policies of another political party and is therefore deemed to have resigned from the ODM party, neither the PPA nor the ODM Constitution have defined the extent to which attending meetings and mere expression of remarks made by members of a party are to be construed as campaigning or promoting the ideologies, interests or policies of another party.

20. Further, by dint of Article 24(3) of the Constitution of Kenya, the Complainant elucidated that the 1st Respondent is under a duty to justify the limitation by providing evidence before the Tribunal to support that the words uttered by the Complainant fell within Article 14(5)(e) of the PPA and that the alleged private meeting was to bolster the Complainant’s support for UDA and the Kenya Kwanza Coalition.

21. On the issue whether the Complainant’s disciplinary proceedings were conducted in accordance with the Constitution of Kenya and the ODM Party Laws, the Complainant relied on various provisions of the ODM Constitution, the ODM Disciplinary Committee (Practice and Procedure) Rules 2022 (the DC Rules), and the PPA.

22. The Complainant submitted that the summonses issued on July 10, 2023, were never served in compliance with Rule 18 (2) of the DC Rules. He further averred that he learned about the summons on social media on July 10, 2023, and even though the Complainant notified the 1st Respondent via text message that he had not been served as required by Rule 18 of the DC Rules, the 1st Respondent nevertheless failed and/orrefused to serve him.

23. Further, the Complainant stated that the alleged invitation to a disciplinary hearing referred to completely different incidents that were never included in the NTSC letter, and the effect of the new arguments was that they fundamentally changed the nature of the proceedings despite the fact that the Complainant had already responded to the charges that were laid against him. The Complainant sought to rely on the doctrine of common law that denotes that a party is bound by their pleadings.

24. The Complainant submitted that by ambushing him with several other allegations that had nothing to do with the NTSC of 13th February 2023 and 15th June 2023, the 1st Respondent violated Article 47 and 50(2) of the Constitution of Kenya, Article 75(5) of the ODM Constitution and Rule 4 of the DC Rules, and further that supplying the Complainant with a different set of the ODM Constitution affected the Complainant’spreparation for trial thus infringed his right to fair hearing.

25. It was further submitted that the DC did not allow the Complainant to be represented by his Advocates of choice in violation of the DC Rules and the Complainant’s right to a fair hearing. In the same vein, the Complainant averred that a litigant who appoints an advocate of his/her choice to represent him/her enjoys the constitutional right to legal representation, which overrides the 1st Respondent’s alleged provision,which limits the Complainant’s choice of his preferred counsel.

26. It was further submitted that despite the Complainant's request for an adjournmentof the matter to a more convenient date and sending his advocates as hisrepresentatives, the DC denied the Complainant a hearing, thus infringing on his right to a fair hearing. The dismissal of the Complainant's Advocates due to the absence of the Complainant infringed the principle of natural justice that dictates that a party should not be condemned unheard.

27. On the issue whether the DC convened on 24th July 2023 was properly constituted, the Complainant relied on the Court decision in Ben Murumbi Sihanya & Another vs. Ethics And Anti-Corruption Commission; Registrar of Political Parties & Another (Interested Parties) [2021] eKLR which found that Prof. Ben Sihanya, the Chairperson of the DC, was barred from holding a political office while he was still a public officer, particularly, a lecturer at the University of Nairobi. According to the Complainant, it was improper for the DC Chairperson to sit in the DC hearing, and in the absence of the Chairperson, the DC faced a quorum hitch that rendered the DC improperlyconstituted.

28. On the issue whether the decision of NEC to adopt the recommendations of the DC and seek the 2nd Respondent’s implementation of the same is lawful, the Complainant relied on Article 12(1)(b) of the ODM Constitution and submitted on the four distinct processes that must be undertaken before a decision to expel a member is done whichinclude:-i.The ODM DC hears the Complaint;ii.The ODM DC decides and forwards its recommendations to the NEC;iii.The NEC then adopts the recommendation and imposes the sanctions prescribed under Article 75(6) of the Party’s Constitution; andiii.The NEC’s resolution must then be ratified by the National GoverningCouncil (NGC) before the said member is expelled.

29. Accordingly, it is the Complainant’s submission that the purported decision to expel the Complainant is premature and incapable of being implemented as it has not beenratified by the NGC.

30. As regards the question whether the reliefs sought by the Complainant should be granted, the Complainant relied on the decision of the Court in Okiya Omtatah Okoiti vs. Communication Authority Of Kenya & 8 Others [2018] eKLR whichpointed out that most precise definition of "appropriate relief" is the one given by the South African Constitutional Court in Minister of Health & Others vs Treatment Action Campaign & Others while citing that the disciplinary process was irregular and therefore the claimant is entitled and is deserving of the orders he seeks as theonly remedial measures to rectify the impugned process.

The 1stRespondent’s Response and Submissions. 31. In response and opposition to the Complaint, the 1st Respondent filed a Response toComplaint, Witness Statement, List & Bundle of Documents, and Written Submissions, amongst other pleadings and documents that form part of the recordbefore us.

32. It is the 1st Respondent’s submission that on 7th February 2023, the Complainant was seen attending a private meeting with the President of the Republic of Kenya, H.E. Dr. William Samoei Ruto, C.G.H., and the Deputy President, H.E. Rigathi Gachagua, EGH, who are also the Party Leader and Deputy Party Leader of the UDA party and the Kenya Kwanza coalition without any notice to the leadership of the 1st Respondent. Pursuant thereto, a complaint dated 9th February 2023 was filed by one of the members of the 1st Respondent, Senator Eddy Gicheru Oketch, which complaint called for investigations in accordance with the provisions of the ODM Constitutionand the DC Rules.

33. The 1st Respondent states that upon conclusion of the investigations, the following facts came to the fore: -i.That on 7th February 2023 the Complainant while in the company of other MPs held a meeting with UDA Party leaders where they agreed to co-operate and work together in furtherance of objectives of the UDA party that are in direct ompetition with the ODM party.ii.That the Complainant while in the company of six other MPs met H.E. the Deputy President whereupon they agreed to co-operate in furtherance of the policies of UDA and Kenya Kwanza. That after the meeting, one Senator Prof Tom Ojienda spoke on behalf of the group stating that “these are follow-up meetings to the one we had at state lodge Kisumu…. politics and developments go hand in hand and that is why we are looking for goodwill from the current government. It is not always about the law…”iii.At the time the Complainant was engaged in the above activities, he was aware that the 1st Respondent and its members were in direct contest with the UDA party and continuously and vehemently contested the legitimacy of the said UDA Government, its policies, objectives, and interests.iv.By promoting the policies of the 1st Respondent's direct competitor, it was evident that the Complainant was supporting that competitor’s ideals and objectives.v.On 17th March 2023 the Complainant while in the company of six other MPs addressed the Press at Parliament Buildings where the Complainant made it clear that he would not respect the decision of the 1st Respondent's leadership to call for demonstrations and picketing.vi.That this press statement was made while well aware that the decision to join the public protests/processions was made pursuant to meetings, informed deliberations, and endorsement of various party organs of the Azimio Coalition of which the 1st Respondent is a key and founding member.vii.Further, the aforesaid decision was a lawful decision of the 1st Respondent ODM Party because the right of assembly, demonstrations picketing and petitions is guaranteed in the Constitution.viii.Subsequent to this meeting, the Complainant also attended a public rally in Migori County where he publicly uttered certain words against the Party Leaderof ODM and members of the Azimio Coalition.

34. On the issue of the Finance Bill, the 1st Respondent submitted that upon the presentation of the Bill to the public, the Minority Leader in the National Assembly called for a Parliamentary Group meeting of the Azimio Coalition which was scheduled for 30th May 2023 to discuss the issues raised in the Bill and take a unified position with regard to voting in Parliament. Consequently, a resolution was made to vote against the Bill, which resolution was read out publicly in a press briefing on the same day. However, on the voting day on 14th June 2023, and in total disregard of the resolution, the Complainant voted to support the Finance Bill 2023, which conduct generated the complaint dated 15th June 2023 by Senator Edwin Sifuna.

35. On the issue of the procedure of the hearing, the 1st Respondent submitted as follows; i. On notice of the charges preferred, the 1st Respondent stated that both the Complaints dated 9th February 2023 and 15th June 2023 were duly served and received by the Complainant who responded to them.ii.The 1st Respondent submitted that the charges leveled against the Complainant related to violation of Clause 26 of the Code of Conduct signed by the Complainant and pursuant to Clause 27 of the Code of Conduct, the Complainant was liable to be subjected to the internal party mechanism which he deliberately failed to attend.ii.The Complainant was duly served with summons containing the 2 complaints and evidence relating to the allegations and invited to appear before the DC on 19th July 2023 via WhatsApp message. The Complainant responded via a letter dated 17th July 2023. Further, the Complainant was given a 9-day notice affording him a reasonable time to prepare and appear before the Committee. iv. On the decision to charge, the 1st Respondent submitted that the Complainant was supplied with all the requisite documents that were relied upon by the 1st Respondent during the hearing and further stated that the letter dated 3rd July 2023 confirmed that a decision to charge was made.v.On the issue of the right to representation, the 1st Respondent relied on Rule 25 of the DC Rules and the case of Techno Service Limited vs Nokia International Oy-Kenya & 3 others (2020) eKLR and submitted that no evidence was adduced on the appointment of a recognized agent to appear before the Committee to represent the Complainant.vi.On the alleged failure to grant the Complainant a hearing, the 1st Respondent submitted, while relying on the provisions of Rule 19(3) of the DC Rules and backing up the same with the decisions in Wilfred Achilla vs Mombasa Golf Club 2021 and Republic vs University of Nairobi Ex Parte Billy Graham Mukenye (2019), that all notices were sent and received accordingly, as demonstrated by the Complainant's response, and the Complainant requested for postponement, which was granted. He however failed to show up on the rescheduled hearing date thus failed to utilize the chance and opportunity to be heard.v.With respect to the composition of the DC, the 1st Respondent submitted that the Complainant relied on the case of Murumbi Sihanya & Anti-Corruption Commission & Others 2021 which is still pending appeal before the Court of Appeal, and that in any event, the Complainant did not object to the competence of the DC while responding to the summons dated 10th July 2023. viii. On the issue of the decision made by the 1st Respondent, the 1st Respondent stated that by joining a given political party, an individual commits to subscribe to the ideologies of the party, and that the decision was in response to the Complainant’s conduct of publicly asking members of the party to defy decisions made by organs of the party, and openly promoting the policies and ideologies of UDA by voting for the Finance Bill.

The 2ndRespondent’s Response and Submissions. 36. In response to the Complaint, the 2nd Respondent filed its Replying Affidavit onrecord.

37. It is the 2nd Respondent’s submission that the Complainant has not been aggrieved by the 2nd Respondent. The 2nd Respondent received a letter from the 1st Respondent detailing the resolutions of the 1st Respondent’s NEC meeting and requesting for the removal of the Complainant from the 1st Respondent’s register of members in accordance with Section 14A of the PPA.

38. In line with the pronciples of fair administrative action, the 2nd Respondent requested for documents in support of the disciplinary process that had been conducted by the DC against the Complainant. The same were furnished to the 2nd Respondent and at the material time, the 2nd Respondent appreciated the conservatory orders that this Tribunal issued. Accordingly, the 2nd Respondent has not made any determinationaffecting the rights of the Complainant under Section 14A(4) of the PPA.

Issues for Analysis and Determination. 39. The tribunal has considered the parties’ pleadings and submissions and isolated the following issues for determination.i.Whether there has been established a cause of action against the 2nd Respondent Whether the Complaint is premature before the Tribunal.ii.Whether the Complainant was expelled from the ODM Party or deemed tohave resigned from the ODM Party.iii.Whether the Disciplinary Committee was properly constituted?iv.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. v.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.vi.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. 40. The 2nd Respondent has 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. 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 todeem the Complainant as having resigned.

41. We have evaluated the pleadings and evidence and we note that neither the Complainant nor the 1st Respondent has controverted this position. There is no complaint that has been made against the 2nd Respondent. Accordingly, we agree with the 2nd Respondent that the the Complainant has not established any cause of action against the 2nd Respondent. It was therefore not necessary to join the 2nd Respondent in these proceedings as a substantive party.

42. 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. The 2nd Respondent had to, for instance, designate a legal officer to review the matter and draft and file 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 and we accordingly strike out the 2nd Respondent from these proceedings with costs to the Complainant.

43. Turning to the question whether the Complaint is premature for the reason that the2nd 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.

Whether the Complainant was expelled from the ODM Party or deemed to have resigned from the ODM Party. 44. Rival arguments were made by parties as to whether the Complainant was expelled from the party or deemed to have resigned from the party. According to the Complainant’s pleadings and submissions, the Complainant was expelled from the party. The 1st Respondent on the other hand maintains that the Complainant was not expelled from the party but was deemed to have resigned. The 2nd Respondent informed the tribunal that the resolution that was forwarded to it deemed the Complainant to have resigned from the 1st Respondent political party.

45. We start by making it clear that even though expulsion of a member from a political party and deeming a member of a political party to have resigned lead to the same outcome of termination of membership in a political party, the legal provisions governing the same are distinct.

44. Section 14A of the PPA provides on when a member may be deemed to have resigned from a political party as follows: -“(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. 2. 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.

3. 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.

4. 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…”

44. On the other hand, Section 14B of the PPA provides on expulsion of a member from a political party as follows: -“(1)A person may be expelled from a political party if that person contravenes any of the provisions of the constitution of the political party. 2. A political party shall before expelling a member under subsection (1), afford such member a fair opportunity to be heard in accordance with the internal party disputes resolution mechanism prescribed in the constitution of the political party

44. In the instant case, we note that the first NTSC dated 13th February 2023 was premised on a complaint where the complainant invited the 1st Respondent 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 (2) and (3) of the PPA, or in the alternative, commence necessary disciplinary action for purposes of having the Complainant and others expelled from the party if found culpable under Section 14B of the PPA. The DC considered the complaint and we note from the DC Finding and Recommendation that the DC recommended that the Complainant be deemed to have resigned. On the other hand, with respect to the NTSC dated 15th June 2023, the DC Finding and Recommendation was that the Complainant be expelled from the party.In essence, the DC made the two recommendations in the two cases.

49. However, the two DC Findings and Recommendations were forwarded to NEC and from the record, NEC resolved that the Complainant be deemed to have resigned by dint of his conduct. This is the resolution that the 2nd Respondent alluded to. Accordingly, we find that notwithstanding the earlier proceedings, the consequential NEC resolution was that the Complainant was deemed to have resigned from the ODM Party.

50. It has been submitted before us that since the Complaint was improperly grounded on the Complainant’s pleading that he was expelled as opposed to deemed to haveresigned, then the Complaint cannot stand and the same ought to be dismissed.

49. We have holistically considered the Complainant’s pleadings and our view is that whereas reference may have been made to expulsion as opposed to ‘deemed to have resigned’, we note that the DC proceedings referred to by the Complainant in his pleadings are the same ones that the 1st Respondent alludes to as having led to the decision deeming the Complainant to have resigned. These are the DC proceedings that are subject of challenge before us as is even evident from the reliefs sought in the Complaint.

50. We have further considered that in any event, from a reading of Section 14A and 14B of the PPA, both provisions on expulsion of a member, or deeming a member to have resigned, require due process whereby such a member is granted a fair opportunity to be heard in accordance with the party laws. The crux of the instant complaint revolves around due process in relation to the same DC proceedings alluded to by both parties. Accordingly, it would be unjust to dismiss the Complaint that challenges the entirety of the DC proceedings on the sole basis that it made reference to‘expulsion’ as opposed to ‘deemed to have resigned.’

Whether the Disciplinary Committee was properly constituted? 49. 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 inaccordance with the ODM party constitution and the DC Rules.

49. The 1st Respondent has opposed these submissions on two main grounds, firstly, that there was no positive order barring Prof. Ben Sihanya from sitting as the Chairperson of the DC, and secondly, that the Complainant did not, in any event, raise these issuesas prelimnary issues during the DC hearing.

49. 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 Ethicsand Anti-Corruption Commission & 2 Others, the Court stated: -“…34. It follows therefore that 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 sene 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 orfreedoms of the petitioner set out in this petition or at all…”

49. 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 political 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 andin the circumstances, our hands are tied.

49. The High Court having made a determination in the matter, and bearing in mind that the DC would not have been quorate under Article 76(1) and (3) of the party Constitution as read together with Rule 12(6) of the DC Rules with the exclusion of the DC Chairperson, we have no option but to find that the DC was not properlyconstituted.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?

49. Article 47 of the Constitution provides on the the right to fair administrative action as follows, inter alia: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. (Emphasis ours)

50. And Article 50(1) of the Constitution is express that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunalor body.

49. Additionally, the Fair Administrative Action Act, 2015 at Section 4(3)&(4) details theingredients of fair administrative action thus:

1. 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 proposedadministrative 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.

2. 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 afair hearing.

49. 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 ofpower.

49. The importance of the constitutional right to 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…”

49. 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.

50. 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.”

65. 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 asfollows:“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; andit did not confirm whether the Applicant was duly notified at every stage of theproceedings. Accordingly, its decision cannot be allowed to stand…”

66. 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 laws that the 1st Respondent committed to observe and uphold.

66. 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 that 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 14A of 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…’

66. From a reading of the NTSC, our immediate observation is that the same does not specify or particularise the so called ‘plethora of issues’ complained about that allegedly border on the Complainant’s general conduct that violate Section 14A of the PPA and Article 11 of the Party Constitution and the Party’s Code of Conduct. The Complainant’s alleged public display, conduct and general comportment thatallegedly violates the law has also not been specified.

66. 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 Constituino 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 Movement Party and its party leadership at large…’

70. 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 UDA whose ideologies, interests and policies the 1st Respondent claims the Complainant has been promoting from within the ODM party. The subject complaint letter made the following prayers;i.The Office of the Party Secretary General does proceed immediately to deem the Complaintnat 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(2)and (3) of the PPAii.In the alternative, commence necessary disciplinary action for purposes of having the Complainant and others expelled from the party if found culpableunder 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 aredserving in

70. We have seen the Complainant’s response to the NTSC vide letter dated 15th February 2023 and we note that: -i.The Complainant responded to the allegation that he met the Head of State on 7th February 2023 by confirming that he attended the meeting which was a follow up to a Nyanza region leaders consultative meeting that had been held for development purposes; that he met the President in his capacity as Head of State and Government and symbol of national unity, which meeting was held in State House and not at UDA offices.ii.The Complainant brought to the attention of the 1st Respondent that the NTSC did not particularise how he promoted another party’s ideologies, interests,and policies.iii.The Complainant sought guidelines and regulations to aid members on how members should interact with other state officers for purposes of following up on national government projects in their constitutencies so that they sre not deemed to be promoting another party’s ideology.iv.The Complainant confirmed his allegiance to the 1st Respondent.

70. We further note from the record that there was no communication to the Complainant in rejoinder to his stated letter dated 15th February 2023. Be that as it may, on 15th June 2023, the Complainant was served with another NTSC letter dated 15th June 2023 under the authorship of Sen. Johnes Mwashushe Mwaruma, the National Vice Chairperson, which NTSC states;-‘…The party is in receipt of a complaint regarding your conduct in the chamber of the National Assembly on 14th June 2023 during the voting on the Finance Bill, 2023 whose particulars are well within your knowledge.Your said conduct was a betrayal of the trust bestowed upon you by the party and more importantly by the people who elected you and in open violation of the sated position of theparty and the Azimio Coalition on the matter.

70. Just like the earlier NTSC dated 13th February 2023, the NTSC dated 15th June 2023 raised general allegations. It was allegedy served together with complaint dated 15th June 2023 signed by the ODM Secretary General, Hon. Edwin Sifuna. In the letter,Hon Sifuna presented a complaint to the effect that various party members defied the party position on the Finance Bill on 14th June 2023 at the National Assembly andcalled for disciplinary measures against them.

70. We have had sight of Complainant’s letter dated 16th June 2023 in response to the NTSC dated 15th June 2023. In response, the Complainant states that the letter does not particularise the conduct or betrayal of the specific trust bestowed upon him by the party thus hindering his attempt to respond to the the said conduct or betrayal.He requested for further particulars to enable him respond to the complaint.

70. There is no evidence on record to demonstrate that the 1st Respondent responded to the Complainant’s request for particulars. Instead, we have seen a letter from the National Chairperson of the 1st Respondent dated 3rd July 2023 addressed to Prof. Ben Sihanya, Chairperson, ODM DC. It is referenced ‘Transmittal of Disciplinary Mattersfor Action Against Hon. Prof Tom Ojienda, Hon. Gideon Ochanda, Hon. CaroliOmondi, 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 and Procedure ) Ryules 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 tothe show cause letters and the additional evidence for your review and necessary action…”

76. From the evidence before us, the next communication that the Complainant received from the 1st Respondent was the letter dated 10th July 2023 authored by Prof Ben Sihanya, Chairperson, DC, 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 membersiv.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 tohether 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 sititng onWednesday 19th Juy 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 PoliticalParty Act, the ODM Party Constitutionand 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…”

77. Vide a letter dated 17th July 2023, the Complainant acknowledged receipt of notice to appear dated 10th July 2023 and requested for the date to be rescheduled. The Chairperson of the DC responded to the request vide letter dated 18th July 2023 which rescheduled the Complainant’s disciplinary hearing to 24th July 2023 at 9. 30am at a venue to be communicated in Nairobi County. The letter informed the Complainant of the strict timelines bearing in mind that the DC received the decision to charge on 3rd July 2023.

78. On 24th July 2023 when the matter came up, the transcribed proceedings at page 53 to 55 of the 1st Respondent’s Bundle of Documents demonstrate that Mr. Nelson Havi Advocate appeared before the DC together with other lawyers to represent the Complainant. The relevant excert of the proceedings is produced below for ease ofreference; -“…(A team of lawyers led by Nelson Havi walk-in and inform the Committee that they are appearing for Hon.Elisha Odhiambo)Prof Sihanya: What was the factual basis because we even heard you just got theinstructions, you don’t have the papers that really troubled us and we wanted to find out because how would we engage you even if you are a member….how did you come in because the respondent is not here to say I appointed so and so and-or the Party are you familiar with the representation whether the respondent sought representation or paperwork were done by a lawyer on their behalf.Adv. Barbara Malowa: I am not awareProf. Sihanya: So do you have anything to show that you are appointed because these are personal matters about the respondent we can’t discuss with anybody, there are 20 million advocates-sorry, 20,000 advocates I am sorry, I withdraw, 20, 000 advocates, do you have anything to show that you were appointed?Adv. Nelson Havi: Chair, if you look at the Rules, there is not format on- filing and appointment letter. Basically, we went by the Rules as per Rule 21 that a respondent can appear himself or be represented by an advocate….there is no requirement for filing of complaint, notice of appearance or rather appointment. We did not come before this tribunal without having authority to represent our client. We have also signed your attendance sheet as the respondents.(Laughter)Prof. Sihanya: That’s ex post facto, that’s after the fact (laughter) Yes?Adv. Nelson Havi: And I believe that, even why you gave us an opportunity to deliberate on the issues before you know that we are advocates and we cannot act for a client who has not engaged us.Prof. Sihanya: Ok….Adv. Nelson Havi: It would be so unethical of us.Prof. Sihanya: It is ok, it just worried us we just thought-we wanted us when you said you didn’t have the pleadings because that would be a basis even if nothing else how then were we to engage you. How then were we to know that you have been formally appointed by the respondent, so I think we leave it at that unless you have something else that also raised an issue that if you said you didn’t have the pleadings and if you have not corresponded with the Party before how do we establish and the respondent is not here and has not communicated to us on representation if at all………appointed by the respondent, so I think we leave it at that unless you have something else that also raised an issue that if you said you didn’t have the pleadings and if you have not corresponded with the Party before, how do we establish and the respondent is not here and has not communicated to us on representation, if at all.Adv. Nelson Havi: That’s why Mr. Chairman we were requesting that you rule on allthe issues because you will find that the issue….Prof. Sihanya: No, we can’t….Sorry, sorryAdv. Nelson Havi: Or rather you give ruling on other issues so that….Prof. Sihanya: No, those issues are….so specific and so personal to the complainant and the respondent so that it is wrong for a tribunal to discuss issues without the presence of the respondent and without their authority to discuss their matters.They can actually complain that who told you they were my representatives. We have more than 20,000 advocates, who told you that I have authorized them to represent us, those issues cannot be….so we can’t go to the factual or facts of the case.Those are parts of the facts of the matter, that we cannot go into….of course those confidentiality issues. So, we really appreciate your coming, unless there is....anyone? No, we would have been in a completely different situation if the respondent would have either written to the Party or us.That would bring a different state of issues. That I am sending so and so. So here, nonappearance, no communication that I am sending so and so, you are saying that you have….no, you don’t even have pleadings and all the papers were sent in good time that anybody who is coming to disciplinary committee-appear before us we expect toacknowledge in the first instance that we have received. So you are here, telling us that, yes, we don’t have pleadings. Any other issue before we conclude this business? Adv. Nelson Havi: Yes Mr. Chair, we were actually responding on the issue of pleadings because we thought that we were file further pleadings and if you want to act, we have them. So, we’re basically saying we were not prepared because we were appointed just the other day. It’s not that we were not ready, we are ready and that’s why we came for an adjournment so that we can adequately prepare.Prof. Sihanya: You can’t be ready and ask for an adjournment in the same sentence. You can’t be ready and seek adjournment in the same sentence.Adv. Nelson Havi: We are ready to representProf. Sihanya: To the best of my knowledge of legal practice (laughs). To the best of my legal practice you can’t say I am ready to proceed and seek adjournment in the same sentence.Adv. Nelson Havi: But I am not ready to proceed. We need to prepare.Prof. Sihanya: So we can add there, in any case you are not ready to proceedAdv. Nelson Havi: YeahProf. Sihanya: So I think we can leave it there. We appreciate that you came-you were able to meet the DC here but not in the sense of going through the proceedings. If somebody says I came here because am the respondent we will hear them before, hear them a bit after we have gotten credentials. Are you the one? Then we can proceed to the factual and legal issues. So that’s the basis according to which we listened to you, Sawa sawa? All the best(inaudible) I wish you all the best and good afternoon.Tony Moturi: Let’s continue (Oath taking)Sen. Eddy: I Eddy Gicheru Oketchs solemnly declare that the evidence I shall give beforethis committee shall be the truth, the whole truth and nothing but the truth….

79. From the foregoing it is evident that the Complainant’s counsel was not allowed an opportunity to represent him due to non filing of an appointment letter and further because their membership in the party was not established. Indeed the DC stated asfollows in its Finding and Recommendations on this issue; -“…Having heard both parties, the DC found as follows:- 1. ODM DC Rules are approved by NEC and therefore not made on the spot

2. That the ODM constitution supersedes Rule 21 of the ODM Rules (Disciplinary Committee (Practice & Procedure) Rules, 2022)

3. That Rule will be applied to the extent that it does not conflict with the ODM Constitution

4. That each complainant and respondent will appear in person, accompanied by next friend or representative who is an ODM member. Each friend or representative will need to prove that there is an ODM member.5. Each representative or next friend will need to prove that they have been appointed by the respondent or complainant.The four lawyers who claimed to be representing the respondent had no evidence of having been appointed by the respondent to represent him. They claimed that they had just been appointed by the respondent to represent him. They claimed that they had just been appointed yet they could not produce any evidence, not even a text message to prove their assertions. They also refused to give their ID numbers so that their membership statuses could be established. The DC found the lawyers not to be properly before the DC, as their credentials with regards to ODM membership and appointment by Hon. Odhiambo werenot availed. As a result, the DC asked the lawyers to leave.Before leaving the room, the four lawyers requested for the ruling in writing. The DC informed them that as per the ODM Constitution, the DC makes recommendations to theODM NEC.

80. At the hearing, we note different proceedings were held with respect to the two notices to show cause. With respect to the complaint relating to the NTSC dated 15th June 2023, the decision of the DC states that; -“…The Complainant was present and ready to proceed and the Respondent had not turned up. Also, the Respondent had asked for a date outside the 30 days within which the DC should conclude its activities. Given the fact that the respondent had not turned up and the two constraints, the DC proceeded to hear the Complainant’s case, after theComplainant had taken oath.

80. And the DC decision states the findings and recommendations thus; -“…The FindingsThe DC found Hon. Odhiambo to have: 1. Voted in support of the Finance Bill, 2023 and hence against the ODM position with respect to the Finance Bill, 2023, despite being aware of the Party’s stand andposition;2. Not objected to or complained about the resolution of ODM and Party’s position on the bill;3. He therefore defied the ODM position and hence violated Article 11 (1) (e) of the ODM Constitution. This amounts to gross misconduct.DC Recommendations to NEC The DC recommendations that Hon. Elisha Ochieng’ Odhiambo be expelled from the ODM Party.

80. It is therefore evident that with respect to NTSC dated 15th June 2023, the DC recommended that the Complainant be expelled from the ODM Party.

80. We further note that with respect to the NTSC dated 13th February 2023, it is evident from the DC Decision that numerous issues that were not subject of the NTSC wereconsidered. In fact, a section of the decision reads; -

1. “…Was associating with and advancing the causes and agenda of Kenya Kwanza andin particular UDA.2. The Complainant considered the respondent’s conduct to amount to a violation of the provisions of Section 14A (1) (e) of the Political Parties Act, 2011 and Article 11(1) (e)of the ODM Constitution.3. That the Respondent’s continued associations with UDA, and sustained disassociation with ODM and the Party’s position(s) and interests was continuing to affect the interests of ODM. He gave examples of the association that was not in the interest of ODM as specified thus, that:

a.On 7/2/23 and 17/2/23 Hon. Odhiambo and other ODM members met with UDA’s Party Leader and agreed to cooperate and work together to further UDA’s objectives, when they well know that UDA is a rival party in competition against the objects of ODM;b.On 27/3/23 on Look Up TV Channel, Hon. Odhiambo implored the people of Gem Constituency not to demonstrate as there was no need for demonstrations;c.And he told Hon. Willian Ruto that he had told those who wanted to demonstrate in Gem on Monday that “Wajaribu wataona”;d.On several occasions he has been in the company of people in the competition who have made statements against the interests and policies of ODM and he did not protest and/or disown the statements. If anything, he acquiesced; ande.That on a number of occasions Hon. Odhiambo had voted against ODM party’s position in the national assembly, and in favor of the Kenya Kwanza position;f.That this was in violation of Article 11 (1) (e) of the ODM Constitution and Section 14A (1) (e) of the Political Parties Act, 2011. 1.The Complainant cited several YouTube links as evidence supporting their allegations.

2. That Hon. Odhiambo’s sustained disassociation with ODM and association with a rival political party is tantamount to conduct that could justly be deemed as amounting resignation from ODM, as contemplated under Section 14A (1) (e) of the Political Parties Act, 2011.

3. That they pray that the respondent’s membership in the ODM Party be terminated for contravening the Political Parties Act, 2011 and the ODM Constitution.

4. Ms. Malowa informed the hearing that Hon. Odhiambo:

a.Had on 16/9/22 attended an ODM meeting that resolved not to recognize the Ruto government (see register of his attendance attached) and he never objected to that resolution, andb.However subsequently, including on 7/2/23, he decided to promote the ideologies,interests and policies of UDAFor details, please see evidence attached.

84. On the basis of the above considerations, we have taken note of the DC Findings and Recommendations as reproduced hereunder;-“…DC Findings (on page 68 to 69)Hon. Odhiambo was found to have 1. Been invited to the disciplinary hearing and had reasonable time to make arrangements to appeal;2. Defied ODM’s party positions, interests, policies or ideology on various aspects and instead promoted and supported UDA/Kenya Kwanza’s positions, interests, policies and/or ideology;3. Not respected ODM Party’s Code of Conduct including observing discipline andobeying lawful decisions made by the Party organs;4. This is a second disciplinary issue during the same period of time. The first case is ODM/DCHN/0006/2023;5. Defied ODM party positions and decisions and thus grossly violated Article 11(1) (e) of the ODM constitution and Section 14A (1) (e) of the Political parties Act, 2011. This amounts to gross misconduct; and

6. By his conduct as described above and as relayed in evidence, he is deemed to have resigned from the ODM Party. As a result, ODM should remove Hon. Odhiambo’s name from the membership of the ODM Party. DC Recommendations to NEC (on page 69) The DC recommends that:1. Hon. Elisha Ochieng’ Odhiambo, 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 ODMmembership…”

84. 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 the various 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 responses to the two NTSC. This is notwithstanding the request for particulars. Interestingly, the DC decision states that it found that the Complainant’s response was unsatisfactory but does not address itself to the request that the Complainant made for particulars thus acted in breach of Article 50(2)(j) of the Constitution and Section 4(3)(g) FAA Act.iv.The 1st Respondent’s National Chairperson did not seek any further information and/or clarification from the Complainant 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 Rule 17(5) of DC Rules 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 proceesed in accordance with the DC Rules.This was in breach of Article 47(1) of the Constitution, Section 14A(2)(b) of the PPA, Section 4(1) of FAA Act.vii.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 instead qualified the Complainant’s right to legal representation and introduced requirements of filing a letter or appointment that has not been prescribed in the DC Rules.viii.The Complainant was not informed of the Decision and the reasons thereof and only came to learn of the DC findings and recommendations on 6th September 2023 during a press statement that was issued by the 1st Respondent to communicate the decision to the public. This was after the 1st Respondent’s NEC had already considered the DC’s Findings & Recommendations, and forwarded the resolution ratifying the same to the 2nd Respondent for implementation and/or execution. 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) as read together with Section 4(2) and 6 of the FAA Act and Section 14A(2)(a) of the PPA.

84. 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.

84. 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 maydecide to bring forward; [underlined parts our own]

84. 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 breached Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act, 2015…”

84. 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…” 90. With respect to the question of failing to furnish the Complainant the decision and itsreasoning 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 anddemocratic society such as ours.”

91. 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 wasmade in compliance with the law and to facilitate the right to review or appeal…”

92. 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 and 50 of the Constitution, Section 4 and 6 of the Fair Administrative Action Act, Section 14A(2) of the PPA, 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 whichuphold 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.

93. Having 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, we find this question moot.

94. Be that as it may, even if we were wrong in our determination, we note that both deeming a member to have resigned and expulsion are actions that amount tocessation of membership with the party.

95. 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.Whether ODM Disciplinary Findings and Recommendations were arrived at inaccordance with the law / Whether the Complainant’s actions violated the ODM Party Laws.

96. Parties have made substantive submissions on this issue. We have already made a finding that the TNDC disciplinary proceedings against the Complainant wereconducted in breach of the law. Consequently, the same attracts an order for settingaside ex debito justitiae. Our finding under this issue is therefore inconsequential.

97. 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 delve into 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 underthis issue.

What are the appropriate reliefs to grant? 98. Taking into consideration the totality of the facts and circumstances in this case andin light of the foregoing, we find that the Complaint is merited.

99. 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, having struck out the complaint against the 2nd Respondent, the Complainant is onthe other hand condemned to pay costs incurred by the 2nd Respondent in defendingthese proceedings.

100. Upon consideration of the reliefs sought, we make the following orders;-i.That this Honorable Tribunal hereby declares that the disciplinary proceedings by the 1st Respondent conducted against the Complainant on the 24th of July 2023 were unprocedural and in violation of the right to a fair administrative action and fair hearing as per Article 47 & 50 of the Constitution of Kenya 2010, Section 14A(2) of the Political Parties Act, the Fair Administrative Action Act,and the 1st Respondent's Constitution.ii.That the Honorable Tribunal hereby declares that the Disciplinary Committee of the 1st Respondent convened on 24th 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. That the Honorable Tribunal be pleased to issue a Mandatory Injunction restraining the Registrar of Political Parties from removing the name of the Complainant, Hon Elisha Ochieng Odhiambo from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on the 24th 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). 101. 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.

102. 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.

103. 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 Partyapplied 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 inthis and related matters.

104. 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 issuedin this matter.

105. 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? 106. 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 theparties’ pleadings and documents supplied and come to the conclusions hereunder.

107. At paragraphs 44 & 45 of the Complaint dated 11th September 2023, theComplainant states as follows:“44. The Complainant is heavily aggrieved by the decision of the 1st Respondent to remove his name from the register of the members of the 1st Respondent under the auspices of Section 14A through a fundamentally flawed process.

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

108. In the 1st Respondent’s Disciplinary Committee Report titled ‘ODM/DCHN/008/2023: Hon. Elisha Ochieng Odhiambo…’ and dated 3rd August 2023 the Committee finds that “Hon Odhiambo was found to have …5. Defied ODM partypositions and decisions …and Section 14A (1)(e) of the Political Parties Act, 2011… 6. 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 dintof his conduct, be deemed to have resigned from the ODM Party…”

109. The 1st Respondent’s letter to the Complainant dated 11th September 2023 and referenced ODM/2023/183/009 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 NECminutes. 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.”

110. The 1st Respondent’s 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 haveresigned from the Party within the meaning of Section 14A of the Political Parties Act.”

111. 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.”

112. 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.

113. 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.

114. 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 ofthat 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?

115. 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 requestto remove the Complainant from the register pursuant to the dictates of Section 14(A).

116. Fortunately, the 2nd Respondent has answered this question in its Replying Affidavit dated 19th September 2023 by Joy Onyango. The Deponent attached the 2nd Respondent’s letter evenly dated 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 thedetermination required under Section 14A (4) of the Political Parties Act, 2011 as to affect therights of the Applicant/Complainant.” What is the import of the situation where the 2nd Respondent has yet to make this determination?

117. Having considered this state of affairs, I am of the opinion that since the 2ndRespondent 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.

118. 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 politicalparty dispute resolution mechanisms. 2. A coalition agreement shall provide for internal dispute resolution mechanisms.”

119. 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.

120. 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...”

121. 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.

122. 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.

123. 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.

124. 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.

125. 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.

125. 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 anyappeal from the Registrar’s decision would lie to this Tribunal.

126. 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 127. 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.That this Honorable Tribunal hereby declares that the disciplinary proceedings by the 1st Respondent conducted against the Complainant on the 24th of July 2023 were unprocedural and in violation of the right to a fair administrative action and fair hearing as per Article 47 & 50 of the Constitution of Kenya 2010, Section 14A(2) of the Political Parties Act, the Fair Administrative Action Act, and the 1st Respondent's Constitution.ii.That the Honorable Tribunal hereby declares that the Disciplinary Committee of the 1st Respondent convened on 24th 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. That the Honorable Tribunal be pleased to issue a Mandatory Injunction restraining the Registrar of Political Parties from removing the name of the Complainant, Hon Elisha Ochieng Odhiambo from the register of the members of the Orange Democratic Party on the basis of the illegal disciplinary proceedings conducted on the 24th 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.

128. 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 JINMEMBERHON. ABDIRAHMAN ADAN ABDIKADIRMEMBER32PPDT Kisumu Complaint No. E005 of 2023 Judgement