[2022] KEPPDT 965 (KLR)

Omole v Mghanga & 2 others; Communist Party of Kenya (CPK) (Interested Party) (Complaint E024 (NRB) of 2022) [2022] KEPPDT 965 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 965 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Complaint E024 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 10, 2022

Between

Booker Ngesa Omole

Complainant

and

Julius Mwandawiro Mghanga

1st Respondent

Benedict Wachira

2nd Respondent

Registrar Of Political Parties

3rd Respondent

and

Communist Party Of Kenya (Cpk)

Interested Party

Judgment

1. The Complainant and the Respondents are all members of the Interested Party’s Political Party. The 1st Respondent is the Party’s Chairperson the 2nd Respondent is the Party’s Secretary General, and the Complainant is the Vice Chairperson and the Organising Secretary. The matter arises out of a coalition agreement dispute where the Interested Party joined the Kenya Kwanza Coalition on 12th April 2022.

2. The Complainant filed a Complaint accusing the Respondents of making ultra vires decisions that affect the independence and freedom of the Interested Party and its members. The Complainant avers that the 1st and 2nd Respondents have made unilateral decisions on behalf of the party and its members and have failed to involve the Central Committee in entering the coalition agreement with the Kenya Kwanza Alliance Coalition. In a rejoinder, the Respondents indicate that they have exercised due authority in entering the coalition agreement and pray for the complaint herein to be dismissed. The Parties complied with the directives of this Honourable Tribunal and filed submissions and affidavits which have been considered by this Tribunal.

3. The Complainant was represented by the firm of Gitoba Imanyara & Co. Advocates, the 1st Respondent was represented by Isoe Joel Law Advocates, the 2nd Respondent represented himself and the Interested Party was represented by A. Omondi & Company Advocates.

The Complainant’s Case 4. Learned Counsel of the Complainant stated that the 1st and 2nd Respondents actions were contrary to Article 7. 4 of the Party Constitution which provides for Party meetings to be held every two months and no meetings had been convened for the last Four (4) years, more specifically the Central Committee meetings. They have made arbitrary and unilateral decisions that affect the party and its membership without consulting the party and its members. This includes entering a coalition with Kenya Kwanza Alliance whose objectives are contrary to the Party’s objectives and its Constitution as laid out under Articles 3, 7. 3 (6) and 7. 4 of the Interested Party’s Constitution.

5. The Complainant in response to an email received by the 2nd Respondent on the 9th of April 2022 expressing the intention to join Kenya Kwanza Alliance, indicated that the move would jeopardize the Party, its objectives, and a violation to its Constitution. He further warned that the move would be a political suicide for him as an aspirant vying in areas where the Kenya Kwanza Alliance was not popular. Furthermore, the Complainant indicated that a decision of this nature could only be decided by the Central Committee. He was therefore shocked to see the 1st and 2nd Respondents on television on the 12th of April 2022 signing an agreement to join the Kenya Kwanza Coalition.

6. The Complainant contends he has made efforts to resolve the matter within the party through Internal Dispute Resolution Mechanisms (IDRM) but no action has been taken by the Respondents. The following measured were undertaken by him to avert the looming crisis and resolve the dispute amicably:a.A letter dated 9th April 2022, the Complainant wrote to the 2nd Respondent requesting him to convene a Central Committee meeting as per the Party’s Constitution; no response has been received to date;b.A letter dated 10th April 2022 to the Central Committee on the action by the Respondents, no response was received;c.A letter dated 10th April 2022 sent to the Registrar of Political Parties confirming whether the Coalition with Kenya Kwanza had been registered, the Registrar responded that no documents had been registered to that effect;d.By the minutes of the meeting held by the Nairobi Working Committee on 12th April, 2022 and forwarded to the Respondents, the Complainant herein requested the Respondents to start an internal process to preserve the Party Constitution, no response to the email was received;e.By an email sent on 15th April, 2022 to the Respondents by the Complainant requesting the Respondents to start an internal process to preserve the Party Constitution, an email of response is yet to be received;f.By an email dated 11th April 2022 by the Young Communist League writing to the Party officials requesting for a way forward and a confirmation that the rumours to join Kenya Kwanza Alliance without consulting with the membership were untrue, a response is yet to be received.g.A letter sent to the office of the Registrar of Political Parties indicating such irregularities dated 13th April 2022 and a response of the same was received dated 14th April 2022.

7. The Complainant has moved this Honourable Tribunal by way of complaint dated 25th April 2022 seeking the following orders:a.The Complaint be certified urgent and determined at the soonest time possible and the Honourable Tribunal to consider the need to stop any further adverse actions by the Respondent;b.A temporary injunction restraining the Respondents from proceeding with any activities linked to the purported Kenya Kwanza Alliance Coalition pending hearing and determination of the complaint;c.A temporary injunction restraining the Respondents from proceeding with any activities linked to Kenya Kwanza Alliance Coalition pending hearing and determination of the Complaint and/or such time that the congress meeting shall be held;d.The Tribunal directs the Respondents to call for a National Congress meeting within reasonable timelines;e.The Tribunal to direct the National Organising Secretary to call for a meeting and if the Secretary General fails to call for the meeting within the timelines issued by the Tribunal;f.The Tribunal directs the Respondents to surrender all the Party documents in their Private Custody to the Party Headquarters for access by the membership including Party Certificates, corresponding files, CPK assets, Accounts and official agreements/coalition documents affecting the Party;g.The Tribunal give direction for all meetings held to discuss party matters, be held at the Communist Party Headquarters at Swiss Cottages on Ring Road Kileleshwa, Nairobi;h.The Tribunal finds that any coalition and documents purporting the same with Kenya Kwanza Alliance be declared illegal ab initio and thereby revoked;i.Any other prayer the Honourable Tribunal deems fit.

The 1st and 2nd Respondent’s Case 8. The 1st Respondent adopts the 2nd Respondent’s response to the complaint in toto. The 2nd Respondent submitted a Replying Affidavit in response to the Complainant’s Notice of Motion dated 25th April 2022. He claims the prayers sought by the Complainant have nothing to do with the Interested Party joining Kenya Kwanza Coalition but are geared towards undermining the powers bestowed upon the leadership of the Party.

9. The Communist Party of Kenya has different leadership structures with the highest structure being the National Congress and the Central Committee elected by it. National Congress meets once a year to pass relevant resolutions and to elect the leadership. The Central Committee forms the highest organ of the party after the National Congress. The National Congress and the Central Committee are created through Articles 7. 3 and 7. 4 of the Party Constitution respectively.

10. The 2nd Respondent states that on 5th January 2019 the Communist Party held its National Congress in Nairobi where it passed amongst others, a resolution concerning Alliances, Coalitions and Mergers and identified the procedure to be followed when entering Alliances, Coalitions and Mergers. The resolution provided that:a.the National Congress authorises the National Chairperson and the Secretary General of the Party to engage, negotiate, form and/or to enter into alliances and/or coalitions with other political parties on behalf of the Party;b.any alliances formed or entered into shall be for the advancement of a lawful agenda in line with the Constitution and the laws of Kenya;c.any alliance or coalition formed or entered into will have objectives that are identifiable with the objects, purposes and the manifesto of the Party;d.any alliance or coalition entered or formed by the party shall have an opt out clause; ande.if any alliance or a coalition entered by the party fail to adhere to the objectives and goals of the alliance or coalition, the National Chairperson and Secretary General shall invoke the opt-out clause and cause the Party to leave the said alliance or coalition.

11. The 2nd Respondent avers that the Party has not merged with Kenya Kwanza Alliance but has formed a coalition with other Parties under the Kenya Kwanza Alliance. Thus, the Complainant is misleading this Honourable Tribunal. The 2nd Respondent contends that the two-party officials have always informed the Central Committee of their activities in the execution of the coalition.

12. Prior to joining the Kenya Kwanza Coalition, the Party had entered into two coalitions that were represented by the Complainant as the 2nd Respondent was out of the country pursuing his studies. These coalitions are the Coalition of Coast Political Parties and the United Political Front.

13. On 12th April 2022 the Party joined Kenya Kwanza Coalition. The Party was attracted by Articles 2 and 3 of the Coalition Agreement which are in line with the CPK objectives and manifesto. Prior to the joining the Coalition, members of the Central Committee were involved, including the Complainant who was an active participant in the meetings including the final meeting with the Presidential candidate of Kenya Kwanza Coalition, His Excellency Dr William Ruto. It is strange that the Complainant now recants and denies any participation in the formation of the coalition.

14. The Complainant received the Kenya Kwanza Draft Agreement three days before the signing, and he had no issues with the Agreement, apart from the fact that he felt the Agreement should have specified how much money the Party was going to get and which specific appointments the Party was going to get after the elections in the event of a win. Subsequently, the Complainant sent a letter to the 2nd Respondent on 9th April 2022 demanding that he call a Central Committee meeting. On 10th April 2022 he went ahead to claim publicly, via many mass messages on his WhatsApp networks that the 1st and 2nd Respondent intended to auction the party to United Democratic Alliance (UDA). From his actions the Complainant was not seeking to have the matter resolved internally but to embarrass the Party.

15. The Complainant was invited for a Central Committee meeting on 12th April 2022 at Ngong Racecourse. He chose to unconstitutionally call for a parallel meeting at the Party headquarters on the 11th of April. He invited members of the Central Committee, aspirants intending to vie with the Party and the media. His agenda was to stop the signing of the Kenya Kwanza Agreement. Out of the nine Central Committee members only the Complainant and Mr Gacheke Gachichi attended the parallel meeting. Six members attended the Ngong Racecourse meeting and the signing ceremony and one member was indisposed.

16. In this regard, the Complainant tried to undermine the Constitution of the Party and to usurp the powers of the Secretary General, by calling for a Central Committee meeting and for a National Congress. His attempts failed and desperation has led him to use a non-existent ‘Working Committee’ and a dysfunctional Young Communist League to give instructions to the Central Committee.

17. The Complainant has illegally and out of pettiness locked the 2nd Respondent out of the Party’s headquarters by removing his biometric data that opens the doors and changed the passwords and recovery email/telephone of the Party’s official email address and removed the 2nd Respondent as an Administrator to the Party’s Facebook page which they co-managed. It is dishonest of the Complainant to request this Honourable Tribunal to direct that the Central Committee meetings be held at Swiss Cottages when he knows that he removed the 2nd Respondent’s biometrics from the security gate, and he can no longer access the premises. The Central Committee resolved to move the Party headquarters from the shared office at Swiss Cottages to a more independent location.

18. In response to the Complainant assertion that the decision to enter into a coalition agreement will jeopardise his chances in the forthcoming national elections, the Respondents states that the Complainant has previously vied for the position of Member of Parliament of Gem constituency in 2013 and 2017 where he garnered about 2,400 and 900 votes respectively. The winner won by over 30,000 votes. Thus, it is misleading for him to aver that his loss in the present election will be caused by the Party joining Kenya Kwanza Alliance

19. Lastly, the Respondents aver that the Complainant did not exhaust all IDRMs as envisaged under the Party’s regulations. Thus, the Application together with the attendant Complaint filed herewith are premature and cannot be sustained. Further, the Complainant has not demonstrated the real risk or injury he might suffer if the injunctive reliefs sought are not granted apart from stating that the members of the Party will suffer irreparable harm.

20. The 1st and 2nd Respondent pray for the Complainant’s Application and Complaint to be struck out with costs as they have no merit.

The Interested Party’s Case 21. The Interested Party is the Communist Party of Kenya, a registered Political Party in the Republic of Kenya. The Central Committee did not meet frequently in 2020 due to fear of COVID-19 and the ban of political meetings. However, it contends that several Central Committee meetings have been held in the four years. Further, the Complainant was elected as the National Organizing Secretary (alongside the whole Central Committee) on 5th January 2019 at the Party National Congress. Moreover, it was not until 2020 that he was appointed by the Central Committee as the Acting National Deputy Chairperson. Therefore, it is strange that he refers to himself in his pleadings as the Deputy Chairperson yet claims that the organ that appointed him to that position has never met for over four years.

22. The Interested Party denies that the 1st and 2nd Respondents have acted ultra vires and against the interest of the Party. The National Congress of 5th January 2019 authorized the National Chairperson and the Secretary General to enter alliances and coalitions on behalf of the Party, and this has been done two times before, and the Kenya Kwanza was the third coalition that the party had entered. Moreover, the Complainant is the one that led the process and even chaired some of the meetings of the previous two alliances/coalitions that the Party joined.

23. Even though the authority to enter coalitions was given to the Secretary General and National Chairperson, the 1st and 2nd Respondent have always involved the Central Committee of the Party. Even on joining Kenya Kwanza coalition, the Complainant was involved as evidenced in a photos produced as evidence, where he is present with the leader of Kenya Kwanza coalition, Dr William Ruto, and email exchanges concerning the draft coalition agreement.

24. The Interested Party contends that there is no harm suffered by the Complainant in his political aspirations. His argument that the coalition will affect his political aspirations negatively is false. The basis of joining a coalition is based on the objectives and the programme of that coalition, and not on personal political interests of one or two.

25. The Interest Party prays that the Complaint is dismissed with costs.

Tribunal’s Analysis and Findings 26. We have evaluated the evidence laid before us and have distilled the following issues as falling for our consideration and determination:i.Whether this Tribunal has the requisite jurisdiction to entertain the complaint?ii.Whether the 1st and 2nd Respondents acted ultra vires when they signed the Kenya Kwanza Coalition agreement on behalf of the Party?iii.What are the appropriate remedies available in the present circumstances?

Whether this Tribunal has the requisite jurisdiction to entertain the complaint 27. The 1st Respondent has raised as a preliminary issue, the question of the Tribunal’s jurisdiction to hear and determine this matter. The 1st Respondent cites that the Complainant did not exhaust the internal dispute resolution mechanisms as envisaged under the Political Parties Act and the CPK Constitution. The Complainant on the other hand has provided that he indeed made an effort to reach the Respondents in writing, in order to resolve the matter within the party, but no response was given, and no actions were taken by the Respondents to facilitate the same.

28. The crux of the issue on jurisdiction hinges on the interpretation of the Tribunal’s authority as articulated under sections 40 (1) and (2) of the Political Parties Act of 2011 (as amended in 2022). The wording of section 40 (2) is as follows:Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless a party to the dispute adduces evidence of an attempt to subject it to the internal political party dispute resolution mechanisms.

29. Article 6. 6 of the party’s constitution states that “internal disputes shall be resolved within the body in dispute itself, following methods stipulated in this Constitution and through democratic centralism.” Of relevance in this regard is Article 4. 2. Although the said Article is titled “Disputes and Discipline of Members”, a close reading of its contents suggests a focus on breach of a party’s discipline and not as in the instant case, disputes between the party and a member. Notwithstanding, one can discern that the Central Committee is mandated to draw up rules of procedure to be followed [Article 4. 13] and the place that dispute resolutions process is to be heard and determined [Article 4. 21].

30. In the instant case, the Complainant has demonstrated that from the 9th day of April 2022 to the 15th Day of April 2022, he sent out different letters to the Respondents in a bid to resolve the matter but received no response. The time between the first letter and the date that the complaint was filed before this Tribunal would reasonably have given time to the Respondents to respond. It has been averred by the 2nd Respondent that the Complainant was invited for a Central Committee meeting to be held on 12th April and 18th April 2022, and that he declined to attend. We have also taken note of the 2nd Respondent’s email of 19 April 2022 whereby he requests the Complainant to set out the issues in contention relating to the coalition agreement.

31. In our view the substance of the complaint is evident from the series of correspondence by the Complaint to the Respondents, namely his opposition to the formation of a coalition with the Kenya Kwanza Alliance. There was no specific acknowledgement of this letters by the Respondent prior to the date that the coalition agreement was signed i.e. 12th April. The invitation to the Central Committee meetings of 12th April 2022 and 18th April 2022, cannot be taken as an honest attempt to engage the Complainant as the signing of the proposed coalition agreement was either underway or had already occurred. In the premise, and in line with the nature of the complaint herein, the Complainant had no other recourse but to seek redress before this Tribunal.

32. The Tribunal has made its position clear on the importance of parties engaging IDRM mechanisms before moving the Tribunal to hear the matter. In Gabriel Bukachi Chapia v Orange Democratic Movement & another (Complaint No 237 of 2017), para 24, this tribunal stated that:‘We note that this dispute was never brought or subjected to any kind of internal dispute resolution mechanism, to give the party a good faith chance to resolve it in the first instance. In those circumstances, we find that this dispute was filed prematurely before us.’

33. However, the Tribunal is conscious that the doctrine of exhaustion is not absolute and where it can be shown that the a “Claimant attempted to resolve the matter using the party’s internal dispute resolution mechanism (IDRM)” as was stated in Rushila Akoth Odida & 2 others v Orange Democratic Movement (Complaint No 331 of 2017), para 13, foundations that dictated the amendments to section 40(2) remains intact.

34. This Tribunal thus finds that the Complainant did make an attempt to resolve this matter through IDRM as provided under Section 40 (2). The Tribunal is of the view that this Tribunal is properly seized of the matter both under section 40 and 41 of the Political Parties Act, 2011.

Whether the 1st and 2nd Respondents acted ultra vires when they signed the Kenya Kwanza Coalition agreement on behalf of the Party 35. The Complainant states that the 1st and 2nd Respondent made a unilateral decision affecting the party and its membership failing to involve the membership or the Central Committee in joining Kenya Kwanza Coalition. The decision by the Respondents in this regard, is therefore ultra vires. In rejoinder, the Respondents and Interested party affirm that the coalition with Kenya Kwanza Alliance Coalition was in keeping with the party’s constitution and the procedure outlined therein for entering a coalition with other parties.

36. This phrase ultra vires according to the Black’s Law Dictionary, is traditionally understood to mean: ‘An act that is beyond the lawfully conferred powers of the corporation or municipality to perform under any circumstances or for any purpose.’ Accordingly, one must turn to the constitutional document to examine whether a said act is in accordance with the powers conferred therein. In the event that it not, ultra vires act is that it will be deemed void and not bind the various persons or parties involved.

37. In the present case, amongst the purposes provided in Article 2 of the party’s constitution is that of forming and entering alliances with other political parties for a common purpose that is consistent with the party’s constitution and party manifesto [Article 2. 12]. The structure mandated with exercising functions pursuant to this purpose is the National Congress. Article 7. 3.6 provides that the National Congress is to decide on criteria and procedure for mergers and coalitions with other parties. Furthermore, the same Article states that such mergers and coalition shall be made on common ideological positions and common objectives. Moreover, can be observed that the National Congress may delegate its functions to other structures as evident in Article 7. 4.1 where its decisions and instructions may be carried out by Central Committee.

38. It is not contested that the decision to enter the coalition agreement was taken by the 1st and 2nd Respondents as the National Chairperson and Secretary General of the Party. The Tribunal however has been shown a Resolution dated 5th January 2019 by the National Congress where amongst other things the Congress authorized the National Chairperson and the Secretary General to engage, negotiate, form and/or enter alliances and/or coalitions with other political parties. Nothing in the resolution qualifies how the two officials should exercise this delegated authority excepts clause A (2)-(4) of the said resolution which provides that the coalitions entered shall be in line with the Constitution and laws of Kenya and have objectives identifiable in the objects of the party. Of note, is the absence of additional procedural requirements that would subordinate the delegated acts to consultation with other structures and/or the party members.

39. It is our view that the National Congress was at liberty to expressly limit the manner that its delegated authority was to be exercised. In the absence of this limitation, the actions by the 1st Respondent and 2nd Respondent can only be questioned if they fall short of the express provisions of the limits inherent in the Resolution clause A (2)-(4). As aforestated, these limits require coalitions resonate with the objects of the party. This is in keeping with Article2. 12 and 7. 3.6 of the party’s constitution. Thus, what is necessary is to examine whether there is an indication in the coalition agreement of a common purposes (and not identical purpose) consistent with the party’s constitution. That common purpose is discernible from various provisions of Article 2 (Policies and Objectives) where parties under the Kenya Kwanza Alliance Coalition undertake to entrench democracy, reform the economy to ensure inclusion and eradicate poverty, promote equality. The Tribunal therefore finds that the 1st and 2nd respondent were well within their powers and mandate to sign the Kenya Kwanza Coalition Agreement on the 12th of April 2022.

40. References have been made by the Complainant to the absence of public participation by party members in the manner that the coalition agreement was entered. The importance of public participation in a consultation process cannot be understated. It forms a part of our national values and principles and the provided for in Article 91(g) of the Constitution has explicitly provided under its Article 91(g) that political parties are required to promote the objects and principles of this Constitution and the rule of law. In this regard, the Tribunal is guided by the comments of the Court of Appeal on Public Participation in 2017, where the court stated:“…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideas and aspirations of our democratic nation…”

41. The Complainant is of the view that the decision to enter the coalition agreement should therefore have been subjected to members through the forum of the National Congress. In so asserting, he claims that the requirement of public participation would thereby have been discharged. We have taken note that this is not the first time that the party has entered into coalition agreements, namely: the Coalition of Coast Political Parties and the United Political Front. No evidence has been placed before this Tribunal to show that these coalition agreements were subjected to the National Congress for approval by the party membership. Was there a peculiarity about this coalition that would have demanded a meeting of the National Congress? One may have been persuaded to think so, so if the coalition violated the provision of the party constitution (e.g., its purposes etc.) as far as such coalition are concerned. The Tribunal has not found this to be the case.

42. Moreover, as has been stated earlier, the resolution of 5th January 2019 delegating authority to the 1st and 2nd Respondent emanated from the National Congress where all members of the parties had an opportunity to participate in its wording. The wording is clear as far as the authority delegated to the 1st and 2nd Respondent in respect to their power to enter into coalitions with other parties on behalf of the party.

What are the appropriate remedies available in the present circumstances? 43. In general terms, the Complainant has asked the Tribunal to grant a temporary injunction restraining the Respondents from proceeding with any activities linked to the purported Kenya Kwanza Alliance Coalition. He has also prayed for orders directing the Respondent to call for a National Congress meeting.

44. Having found that the 1st and 2nd Respondents exercised due authority in entering the Coalition Agreement with Kenya Kwanza Coalition, the Tribunal hereby dismisses the complaint.

45. As a rule, costs follow the event. In the present case, we are of the considered view that each party bears its own costs of these proceedings in the interest of fostering party unity.

Disposition 46. In light of the foregoing, we make the following orders:i.The Tribunal has jurisdiction to preside over this matter.ii.The Complainant’s complaint is dismissed.iii.That each party bears their own costs.

Dated and delivered at Nairobi this 10 th day of May 2022. DESMA NUNGO……………………………………(CHAIRPERSON)DR. KENNETH MUTUMA................................................……(MEMBER)FLORA M. MAGHANGA-MTUWETA…………............................……….(MEMBER)RUTH WAIRIMU MUHORO………………….............………...(MEMBER)