[2023] KEPPDT 1268 (KLR)

Omole v Registrar of Political Parties & another (Tribunal Appeal E004 (NRB A) of 2023) [2023] KEPPDT 1268 (KLR) (16 August 2023) (Judgment)

Neutral citation: [2023] KEPPDT 1268 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Tribunal Appeal E004 (NRB A) of 2023

W Mutubwa, Vice Chair, AA Abdikadir & MM Yusuf Jin, Members

August 16, 2023

Between

Booker Ngesa Omole

Appellant

and

Registrar of Political Parties

1st Respondent

Communist Party of Kenya (CPK)

2nd Respondent

Judgment

Introduction 1. The Appellant filed an appeal dated 8th June, 2023 before the Tribunal seeking the following orders:a.The finding by the 1st Respondent that the disciplinary proceedings conducted over the Appellant by the 2nd Respondent were proper be quashed;b.The changes to the Party records and the Party register of the Communist Party of Kenya as communicated through the 1st Respondent’s letter dated 31/05/2023 be quashed;c.The 2nd Respondent be ordered to conduct disciplinary proceedings of the Complainant afresh in line with the Constitution of the Communist Party of Kenya and relevant Kenyan law;d.The 1st Respondent be ordered to reinstate the Complainant in the Party records and the Party register of the Communist Party of Kenya as he was prior to the changes quashed in prayer (b) above being made;e.The Respondents be ordered to bear the costs of these proceedings.

2. Parties filed their respective pleadings and responses and the matter was fixed for hearing on 20th July, 2022. On this day, the advocate for the Claimant was not present and the Tribunal directed that the matter be heard by way of written

Submissions 3. The Tribunal received written submissions filed by the Claimant and by the 1st Respondent. The Tribunal has considered the said submissions as well and all

other documents filed by the parties in this matter.

Claimant’s Position 4. The Appellant challenges the decision of the 1st Respondent to remove the Appellant as a member and National Organising Secretary of the Communist Party of Kenya from the Party records and register of the Communist Party of Kenya as communicated through letter dated 31/05/2023.

5. The Appellant alleges that there were questions over the propriety of the disciplinary proceedings conducted by the 2nd Respondent that resulted in the expulsion of the Appellant from the Party. The Appellant contends that that these issues which were raised before the 1st Respondent render the proceedings constitutionally indefensible. That the 1st Respondents decision to recognize these proceedings ought to be quashed.The Appellant was not tried by an independent and impartial adjudicating body.

6. The Appellant submits that the right to a fair hearing is protected by the Constitution of Kenya 2010 and that one of the cardinal rules of natural justice is that “No man shall be a judge in their own cause”. The Appellant further submits that that he was not tried by an independent and impartial adjudicating body. This, he bases on two grounds:a.The members of the Disciplinary Committee were part of both the Central Committee that resolved to initiate disciplinary proceedings against the Appellant, and the Central Committee that adopted the findings of the Disciplinary Committee. In his submissions, the Appellant has set out the process, chronology and facts of the disciplinary proceedings.The disciplinary proceedings against the Appellant were initiated by a notice of a meeting of the Central Committee of the party by the Secretary General dated 11/09/2022. Agenda No.5 of that notice shows that discipline in the party would be discussed including disciplinary proceedings against the National Organizing Secretary, the Appellant herein. This meeting would take place on 15/09/2022. The minutes of this meeting show that of the 7 people in attendance, the quorum included: Jacintah Kamau (National Treasurer); Tony Mboyo (Secretary for Arts and Culture); and Gitahi Ngunyi (Secretary for Workers and Cooperatives). When agenda No. 5 concerning discipline in the party was discussed, the complaint against Appellant was brought by National Chairperson. The complaint comprised of a number of issues which the National Chairperson expressed, necessitated that disciplinary proceedings be initiated against the Appellant. Importantly, the minutes reflect that the members in attendance resolved to initiate these disciplinary proceedings, with no indication that the three members named refrained from voting or that they voted against this motion. Following the adoption of the resolution to initiate disciplinary proceedings against the Appellant, the members next proposed and selected those who were to comprise the Disciplinary Committee. Rather than appoint an independent and impartial body, the Central Committee proposed three of its members, Gitahi Ngunyi, Tony Mboyo, and Jacintah Kamau into the Disciplinary Committee. The Appellant does not dispute that the Central Committee has this power under article 4. 2.8 of the party’s Constitution. However, the appointment of these three meant people who had already expressed a decision over whether the conduct of the Appellant warranted disciplinary proceedings were going to conduct the same disciplinary proceedings including drawing up a list of charges an offences and the rules of that disciplinary committee. This, the Appellant submitted, could not possibly amount to a fair hearing. Equally, once the Disciplinary Committee finalized its hearing, its decision had to be adopted by the Central Committee as a final finding of the disciplinary proceedings. What was worrying to the Appellant was that the three members of the Disciplinary Committee also participated as members of the Central Committee in adopting their own finding. The Appellant asserts that the Disciplinary Committee members, as members of the Central Committee of the Party, had already expressed an opinion over the subject of the disciplinary proceedings. The Appellant further asserts that the conflation of their multiple capacities in these proceedings unquestionably imbued them with interest in the outcome of these proceedings. This raises the conclusion that there was a reasonable likelihood of bias by these Central Committee members.The Appellant relied on the case of Prayosha Ventures Limited v NIC Bank Ltd & another; Beartice Jeruto Kipketer & another (Interested Parties) [2020] eKLR, which, quoting the Commentaries on the Bangalore Principles of Judicial Conduct, at paragraph 81, stated: “The test is “what would such a person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly.” … I bear in mind that the test insists that the apprehension of bias must be a reasonable one, held by reasonable, fair minded and informed persons, who apply themselves to the question and obtain the required information. Can this be said to the case here? I am alive to the decision in Tumaini v R, where Mwakasendo J held, view, that “in considering the possibility of bias, it is not the mind of the Judge which is considered but the impression given to reasonable people….”Relying on the same, he submits that the disciplinary proceedings against him were not conducted by an independent and impartial adjudicating body that could guarantee his right to fair hearing under Article 50(1) of the Constitution of Kenya.b.The Disciplinary Committee was both the prosecutor and judge of the disciplinary proceedings.Once again the Appellant set out the facts relating to this issue. The Appellant asserts that this manner in which the disciplinary proceedings proceeded could not guarantee a fair hearing before an independent and impartial tribunal. He was going to be heard by people who had participated extensively in particularizing complaints against him into specific charges alleging violation of specific internal laws of the party. Additionally, they would lead the proceedings and have the leeway to question and cross-examine the Appellant during the disciplinary proceedings. The Appellant contends that this presented a conflict with the interests of the Disciplinary Committee to provide an impartial hearing. When taken into account alongside the fact that their members were essentially the same Central Committee members who adopted the resolution to initiate disciplinary proceedings, the members of the disciplinary committee could not reasonably be said to have lacked bias or an opinion on the subject of those disciplinary proceedings. Further, the fact that the rules they drafted allowed them to interject in the proceedings without the Appellant having an equal opportunity to challenge the charges and accompanying evidence, placed them at an antagonist position to the interests of the Appellant. They could not possibly be impartial and independent of any bias. In conclusion, the Appellant submits that he has established that the Disciplinary Committee members were involved in: adopting the decision to institute disciplinary proceedings against the Appellant; in voting for themselves to constitute members of the DC; in drawing particularized charges against the Appellant; in prosecuting the Appellant including interjecting and questioning the Appellant; and thereafter in adopting the Disciplinary Committee decision as members of the Central Committee of the party.The Appellant quoted the finding of the High Court in Republic v Kenya School of Law ExParte Thomas Otieno Oriwa [2015] eKLR quoting the Court of Appeal in Beatrice Wanjiru Kimani vs. Evanson Kimani Njoroge Civil Appeal No. 79 of 1998 [1995-1998] 1 EA 134 which in turn quoted R vs Sussex Justices ex-parte McCarthy; which stated, “The test of independence or impartiality is whether a right thinking member of society would form the opinion that there was a ‘reasonable suspicion of bias’ or ‘a real likelihood of bias’ by the adjudicator.”According to the Appellant a fair and reasonable assessment of these facts leads to conclusion that these disciplinary proceedings were not conducted before an independent and impartial tribunal.The Appellant notes that when he was informed by the Registrar of Political Parties through her letter dated 08/05/2023 of the decision of the party to expel him, his advocate wrote back on 11/05/2023 raising concerns over the propriety of these disciplinary proceedings with her office. Despite this, according to the Appellant the Registrar either willingly ignored or failed to properly supervise these disciplinary proceedings in exercise of her powers under section 34(a) of the Political Parties Act. Therefore, the Appellant urges this Tribunal to quash the Registrar’s decision in her letter dated 31/05/2023 recognizing these disciplinary proceedings expelling the Appellant for violating article 50(1) right to fair hearing before an independent and impartial body.The Appellant was not served with a written statement of reasons following the conclusion of disciplinary proceedings

7. The Appellant submits that Article 47 of the Constitution provides for the Right to Fair Administrative Action which states that: “(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. This is restated in the Fair Administrative Action Act under section 4 which provides that where an administrative action to be taken is likely to adversely affect the rights or fundamental freedoms of a person, the person is entitled to: c) a notice of a right to a review or internal appeal against an administrative decision, where applicable; and, (d) a statement of reasons pursuant to section 6. Section 6 expounds on this providing that the subject of the administrative decision ought to be supplied with a statement of reasons to enable one undertake an appeal or review of the administrative decision. It therefore requires that this statement of reasons should contain information including the reasons why the decision was made, and any documentation used in arriving at the decision in question.

8. The Appellant states that in the case of disciplinary proceedings conducted in the Communist Party of Kenya, this statement of reasons would be a resolution of the Central Committee of the party adopting the decision of the Disciplinary Committee following conclusion of the disciplinary hearings. This is especially where the punishment to be imposed is expulsion from the party which articles 4. 2.14 and 4. 2.17 of the Constitution of the Communist Party of Kenya provides shall be done by the Central Committee. As such, it is the resolution of the Central Committee of the party that marks the conclusion of disciplinary proceedings and the imposition of a final sentence at the first instance in disciplinary proceedings conducted by the Communist Party of Kenya. In the disciplinary proceedings conducted against the Appellant, he was served with this resolution of the Central Committee of the party dated 19/04/2023 on 08/06/2023 as can be seen in the email produced as BNO-15 and BNO-16 in the Appellant’s Supporting Affidavit sworn on 08/06/2023. By then, the Registrar had already found that the disciplinary proceedings had been conducted properly and adopted the resolution to expel the Appellant by her letter dated 31/05/2023. This is despite the fact that when the Registrar wrote to the Appellant on 08/05/2023 informing him of the party’s decision to expel him, he wrote back through his advocate in a letter dated 11/05/2023 informing her that the Appellant had not been served with the resolution of the Central Committee party expelling him. The Appellant expressed in that letter that it was only the resolution of the Central Committee that could expel him, and the fact that he was unaware of any resolution was concerning. Unquestionably, expulsion from the party would amount to an administrative action affecting the rights of the Appellant. Any expulsion would affect his political rights under article 38 to be a member of, to participate in activities of and to hold office in a political party. Therefore, it was imperative that for that administrative action to be fair, the appellant ought to have been served with a statement of reasons which also inform him of his right to internally appeal the decision. This was not done prior to the expulsion of the Appellant. It is noteworthy that when the resolution of the Central Committee of 19/04/2023 was eventually served on the Appellant, the same resolutions indicate that the Secretary General of the party was instructed to serve the resolution to the Appellant. This was not done in time. The Appellant asserts that this failure to serve the Appellant with a written statement of reasons for the Central Committee of the Party to expel him offended his right to fair administrative action. The Appellant submits that the Registrar of Political Parties, having been informed of this failure in the Appellant’s letter dated 11/05/2023, she ought to have first satisfied herself that the party complied with article 47(2). Despite this, the Registrar proceeded to recognize the expulsion of the Appellant prior to him having set eyes on the resolution of the Central Committee marking the end of Disciplinary proceedings. For this reason, the Appellant submits that the decision of the Registrar ought to be quashed.

The Appellant was not informed of his internal right of appeal, and the ORPP ignoredthe Appellant’s contention that he had an internal right of appeal. 9. The Appellant submitted that under article 4. 2.19 of the Constitution of the Communist Party of Kenya, persons found guilty in a disciplinary proceeding have a right of appeal to Central Committee if they are ordinary members, or to National Congress if they are Central Committee members. The Appellant in this case was a Central Committee member serving as the National Organizing Secretary at the time of 10 the disciplinary proceedings. This meant that he enjoyed a right to appeal and challenge the decision arising from disciplinary proceedings before a National Congress. As established in the discussion in the preceding section, the Appellant had a right to be served with a written statement of reasons which include information on whether the Appellant had a right to internal appeal or review of the decision, and information on the manner and period within which the appeal shall be lodged. Equally established is that the Appellant was only served with the resolution of the Central Committee and other documents on 08/06/2023, after his expulsion had been recognized and acted upon by the Registrar on 31/05/2023. Clearly, the Appellant was denied of his right of internal appeal. The Appellant wishes to note that having been denied a right to internally appeal the decision of the Central Committee, he was statutorily barred from directly approaching Court to challenge that decision. This is because section 9(2) of the Fair Administrative Action Act demands that one exhausts all internal remedies including appeal mechanisms prior to challenging an administrative decision. It was therefore imperative that the Registrar ought to have satisfied herself that there was a right to internal appeal that had been made available to the Appellant prior to deciding to recognize the Appellant’s expulsion from the Party. She did not and for this reason, her decision ought to be quashed. Prayers In conclusion, the Appellant prays that this Tribunal finds that the Registrar of Political Parties failed in her responsibility under section 38(4) of the Political Parties Act to properly monitor and supervise the disciplinary proceedings conducted against the Appellant. The Appellant urges this Tribunal to find that the disciplinary proceedings underlying the Registrar’s decision in her letter dated 31/05/2023 violated the Appellant’s right to a fair hearing, and to fair administrative action. The Appellant therefore prays that this Tribunal quashes the Registrar of Political Parties’ decision to recognize the expulsion of the Appellant from the Communist Party of Kenya, and her decision to effect changes to the party records and register to reflect this position.

1st Respondents Position 10. The 1st Respondent relies on the Replying Affidavit by Silvia Makanga dated 30th June, 2023 which gives the factual response to the appeal. The issues raised by the 1st Respondent are two:a.Whether the disciplinary proceedings against the Appellant were conducted in line with the party constitutionb.Whether the 1st Respondent complied with the law in terms of updating the register of members of the 2nd Respondent.

Whether the disciplinary proceedings against the Appellant were conducted in linewith the party constitution 11. The 1st Respondent submitted that the Second Schedule to the Political Parties Act, 2011 provides for the contents of a party constitution which include rules on Internal Party dispute resolution mechanism. That the 2nd Respondents party constitution provides for various elements of the disciplinary process including the venue of the hearing, role of the central committee, role of the disciplinary committee, and the right of appeal within the Communist Party of Kenya.

12. The 2nd Respondent submits that the venue of disciplinary process against the Appellant was rightfully conducted in Wundanyi Party headquarters offices. Article 4. 2.21 of the 2nd Respondent’s constitution provides, inter alia, that dispute resolution processes as well as disciplinary hearings shall be heard and determined at party headquarters. By dint of operation of section 40 of the PPA which provides for change in party particulars as read with gazette notice No. 1571 signed on 25th January 2023 and published on 10th February 2023, the party headquarters are in Wundanyi.

13. The 1st respondent further submitted that the organ mandated to hear and determine disputes and disciplinary matters in terms of article 4. 2.8 of the 2nd respondent’s constitution is a disciplinary committee appointed by the central committee comprising a minimum of 2 or a maximum of 5 persons. That the party constitution does not prescribe any other elements for the disciplinary committee, and the 1st Respondent submitted that the disciplinary committee was duly established on that account.

14. The 1st Respondent went on to submit that at the point of hearing the case, the record shows that following adjournment occasioned by the Appellant, the Appellant neither appeared nor was he represented. The Appellant chose to raise issues concerning disciplinary process in other fora rather than the one created for him. The 1st Respondent submits that this was a clear ploy to frustrate the party’s right to expel errant members.

15. On the issue of whether the Appellant was furnished with sufficient information to enable him to answer to the charges, the 1st respondent submits in the affirmative. The 1st respondent submits that where a person has been afforded a particular platform to enjoy a certain right, and the person chooses to ignore the very platform on account of pretexts, such a person cannot be approaching this Honorable tribunal with clean hands.

16. The 2st Respondent relied on the case of Peter Ngigi Kigira VS Fredrick Nganga Kigira [20220eKLR where Justice Kemei pronounced:“Although the constitution guarantees the right to be heard the Applicant was granted the opportunity to be heard but squandered it by failing to attend Court for the hearing not once but twice. The right to be heard does not mean a party will be heard on his own terms, if that were to be the case than the business of the Court would be interrupted at will as and when a party feels like being heard. Once a date has been given and a party fails to appear for the hearing the court in mandated to proceed with the hearing of the parties that are ready to be heard. Courts time is precious and must be utilized prudently.”

17. The 1st Respondent when on to submit that whereas the 2nd Respondents party constitution provides for an appellate process, the same does not automatically operate as a stay of the decision.

Whether the 1st Respondent complied with the law in terms of updating the registerof members of the 2nd Respondent. 18. The 1st respondent submits that its duty in the matter as contemplated under Section 14B of the PPA is to ensure that the 2nd respondent offers a fair hearing to the Appellant as provided in the Party Constitution. The 1st Respondent submitted that it is not required to re-try the case which has already been trued at Party level under the guise of regulation of political parties. The 1st Respondent stated that it did not only review the 2nd Respondent’s disciplinary process, but also afforded the Appellant an opportunity to address himself on the documents submitted to the 1st Respondent and satisfied Article 47 of the Constitution by making a decision accompanied with reasons and furnishing the same on the 2nd Respondent. The 1st respondent submitted that it did not have to investigate the concern on the change of the 2nd Respondents party head office given that the same had gone through the legal process under section 20 of the PPA on facilitating the change of the 2nd Respondents party head office,

19. The 1st respondent submitted that it was on the basis of confirmation of compliance of the disciplinary process with the party constitution that the 1st Respondent proceeded to inform the Appellant of the consequent updating on the party register.

20. The 1st Respondent therefore prays that this tribunal dismiss the Appeal with costs.

The 2nd Respondents position. 21. The 2nd Respondent adopted the facts as set out in the Replying Affidavit sworn by Benedict Wachira, the Secretary General of the 2nd Respondent, on 23rd June, 2023.

22. The 2nd Respondent highlighted pertinent timelines as follows:a.On 15th September 2022, the Party in its Central Committee (hereinafter “CC”) meeting resolved to institute disciplinary proceedings against the Appellant; outlined the alleged offences committed; and appointed a Disciplinary Committee in line with the Party Constitution to hear the matter. the meeting also resolved to move the Party headquarters to Taita Taveta County.b.The minutes of the said meeting were shared with CC members on 14th January 2023, which was seven days before the subsequent CC meeting and the Appellant acknowledged receipt of the minutes, and promised to visit the new headquarters “soon.”c.Vide a letter from the ORPP dated 25th January 2023 (which was in response to a letter sent by the Party on 6th & 10th January 2023), the ORPP acknowledged that the disciplinary proceedings against the Appellant had been initiated by the Party and requested the Party to inform the office of the outcome.d.On 6th February 2023 the Disciplinary Committee (DC) summoned the Appellant for the Disciplinary Hearing that was scheduled for the 13th of February 2023. The summons was accompanied by the charges, the evidence and the procedure to be taken at the disciplinary hearing.e.The Appellant responded to the summons by requesting for a postponement of the hearing, given that he was set to travel out of the country during the scheduled date.f.On 7th February 2023 the DC agreed to postpone the Appellant’s Hearing by more than two weeks so as to accommodate the Appellant’s travel and also to accord him an extra seven days to prepare. The new date was set for 24th February 2023. g.On 18th February 2023, the Appellant’s advocate wrote to the DC raising concerns about the location of the Party headquarters and the impartiality of the DC.h.On 20th February 2023 the DC responded to the Advocate, reiterating the location of the Party headquarters, giving directions to the headquarters including a google maps link and even asked the Advocate/Appellant to call the Chair of the DC in case they got lost. The DC further assured the Appellant of its neutrality.i.On 23rd February 2023, that is on the eve of the disciplinary hearing, the Advocate wrote to the DC stating that neither the Appellant nor his representative would attend the disciplinary hearing.j.On 24th February 2023, the DC wrote to the Appellant and his advocate informing them that as per the Constitution of the Party, the Appellant had been suspended for a period of 30 days for refusing to attend the disciplinary hearing, and informed him that the next disciplinary hearing shall be held on 14th March 2023. The DC also insisted on the need to attend the said hearing noting that it was a serious offence not to attend.k.On the eve of the fresh hearing date, the Appellant’s advocate wrote to the DC stating that they would not attend the hearing and that they should be informed of the decision of the DC.l.On 3rd April 2023, the DC wrote to the Appellant and his Advocate informing them of the outcome of the Disciplinary Hearing attaching the judgement therein.m.Vide a letter dated 24th April 2023, the Party communicated the outcome of the disciplinary process to the ORPP and attached the Judgement of the Disciplinary Committee, the Notice for the Central Committee meeting as well as the Minutes of the Central Committee meeting that expelled the Appellant.n.On 3rd May 2023, the ORPP wrote to the Party acknowledging receipt of the above-mentioned letter as well as its attachments, and further requested for four more documents in relation to the Disciplinary process (they included the charges, the evidence, the summons, and communications between the Party and the Appellant & his advocate).o.On 5th May 2023, the Appellant held a meeting with the Registrar of Political Parties where, inter alia, he warned her not to act on the decision of the Party expelling him.p.On 8th May 2023, the ORPP wrote to the Appellant, requesting him to, within seven days, respond to the decision on his expulsion by the Party where she attached the communication from the Party to her office, for the purposes of fair administrative process.q.Vide a letter dated 9th May 2023, the Party responded to the ORPP with a letter that contained a number of documents and notices that she had requested for.r.On 11th May 2023, the Appellant addressed two letters to the ORPP in response to the meeting held on 5th May 2023 and ORPP’s letter dated 8th May 2023 respectively.s.On 22nd May 2023, the ORPP wrote to the Party requiring the Party to report back to her office within 14 days to the letter titled “DISCIPLINARY PROCEEDINGS AGAINST THE NATIONAL ORGANISING SECRETARY.” She also attached a copy of the second letter.t.On 27th May 2023, the Party responded to the letter from the Registrar that was particularly addressed to the disciplinary process. In the letter, the Party made reference to its previous letters.u.On 5th June 2023, the Party was informed to go and collect three letters from the ORPP, and the first letter was a copy of a letter addressed to the Appellant dated 22nd May 2023 where the ORPP responded to one of the Appellant’s letters that addressed her office. The second letter was addressed to the Appellant informing him that his name had been removed from the Party register; and the third letter was addressed to the Secretary General informing the Party of the same. The letters addressed to the Appellant were copied to the Party while the letter addressed to the Party was copied to the Appellant.v.On 6th June 2023 the Party wrote to the Appellant informing him of the culmination of his expulsion from the Party, and even though the Party knew that he had already received the relevant communication from the Registrar and the Party, still attached the said letters and decisions.w.On the same day, 6th June 2023, the Appellant circulated a rancorous and abusive whatsapp message that was aimed at the Party Secretary General, the Registrar of Political Parties, one of the Assistant Registrar of Political Parties (Mr Ali Surrow) and the Director of Compliance at ORPP’s office suggesting that they all connived to expel him from the Party.x.On 12th June 2023, the Appellant filed the matter at hand before this Honourable Tribunal.

23. The 2nd Respondent identified 2 issues for determination:a.Whether the disciplinary process was conducted in compliance with the party Constitution; andb.Whether the ORPP ascertained that the disciplinary process was conducted in compliance with the Party Constitution as per the concerns of the Appellant.

24. The 2nd Respondent submitted that the Appellant’s disciplinary process was conducted in strict compliance with the Party Constitution, and that the ORPP updated her records after giving a fair hearing to the Appellant and after ensuring that the Party disciplinary processes had been adhered to.

25. That the Appellant had challenged the procedure and not the substance of the disciplinary process. In fact, the Appellant has at paragraph 6 of his Supporting Affidavit admitted to one of the substantive aspects of his offences by acknowledging that he made abusive, undisciplined and false comments using the Party’s communication channels.

26. The Appellant has raised the issue of the venue in his application but has not made any reference to the same in his submissions. However, the 2nd Respondent submits that the Appellant was aware of the relocation of the party headquarters.

27. On the issue of receipt of minutes of meeting that adopted the list of offences and appointing a disciplinary committee, the 2nd Respondent goes on to submit that that the minutes of the meeting of 15th September 2022 were sent to the Appellant, and that he read those minutes and even proceeded to comment on certain contents of those minutes. That the members of the Disciplinary Committee were indeed members of the Central Committee as elected alongside the Appellant in the Party Congress of 2019, and are well known to the Appellant. That in line with the provisions of Article 4. 2.2 and article 4. 2.8 of the Party Constitution, the September 2022 meeting of the Central Committee resolved to conduct a disciplinary hearing against the Appellant, adopted a list of offences (see minute 5 of the said minutes and paragraph 9 of Wachira’s Supporting Affidavit), and appointed three members being: Gitahi Ngunyi, Jacintah Kamau and Anthony Mboyo as members of the Disciplinary Committee.

28. The initiation of disciplinary hearings against anyone does not mean assumption of guilty status. The fact that the Central Committee adopted the offences was only a first step in establishing the truth. And it was for this reason that the disciplinary hearing was invoked and the Appellant was invited to tell his side of the story/facts. Further, none of the members of the Disciplinary Committee had individually raised any complaint against the Appellant.

29. The Appellant’s disciplinary process was conducted in strict compliance with the Party Constitution. The Appellant has not challenged the constitutionality of theParty’s constitution. The Party and members of the Party can only conduct themselves as per the Party constitution and this is what the Party did.

30. The Appellant has not proven a single article of the party constitution that was violated.

31. The Appellant first knew of the intended disciplinary hearing against him in the notice of the meeting of 15th September 2022. The Appellant was later on 14th January 2023 furnished with the minutes of that meeting which had resolved to institute disciplinary hearing against him. The DC further summoned him for the disciplinary hearing scheduled for the 13th of February 2023 but he stated that he would be out of the country, and requested for a rescheduling of the same which was allowed. However, on the eve of the hearing, the Appellant decided not to attend the disciplinary hearing, knowing very well of the consequences of such conduct. Article 4. 2.14 of the Constitution of the Party provides that: Article 4. 2.14: “Refusal to participate in a disciplinary hearing or to accept the authority of the relevant party structure to impose disciplinary action shall constitute a serious offence, requiring immediate suspension for a period of at least 30 days. At the end of this period, the disciplinary hearing shall be restarted, and should the member repeat such a refusal, the member shall be expelled from the party by the Central Committee.” And as a result, the Appellant was suspended from the Party for 30 days. This suspension was as a result of automatic application of the Constitution of the Party to which the Disciplinary Committee could do nothing about. In essence, the hands of the DC were completely tied. Any contrary decision would have been in violation of the Constitution of the Party.

32. After the 30-day period elapsed, the Appellant once again wilfully refused to attend the disciplinary hearing. This was in spite of the Appellant knowing the consequences of refusal to attend the hearing, in addition to the fact that the DC’s warned him that failure to attend would have grave consequences. Once again, the Central Committee did not have any other option other than to expel the Appellant, due to the operation of article 4. 2.14. Any other decision by the Central Committee would have been in contravention of the Party constitution. The expulsion process when one refuses to attend a disciplinary hearing is a formality, unlike in the occasion that one attends.

33. The Constitution of the Communist Party of Kenya is drafted in such a manner that a person who refuses to attend his/her disciplinary hearing can only be suspended at the first instance, and expelled if he/she repeats non-attendance. In the case at hand, the Appellant consciously and deliberately refused to attend the hearings as expressed in writing through his advocate then, who is also his advocate in this Appeal. It is trite in law, that an individual who refuses to submit themselves to a disciplinary process cannot blame anyone else other than himself/herself.

34. On the issue of who was the Complainant the 2nd Respondent submitted that it was the Party that raised the complaint against the Appellant, suo moto. The same was communicated by the DC to the Appellant’s advocate. At no point did the National Chairperson or anyone else in their individual capacities bring a complaint against the Appellant. The Chairperson only conducted the CC meeting in his capacity as the Chair and as the driver of the agenda in Party meetings. Indeed, the DC, in response to the Appellant’s advocate, informed the Appellant that the complainant in the matter was the Party.

35. All in all, the 2nd Respondent submitted that the expulsion of the Appellant from the Party was procedural and constitutional, and as such the Tribunal should dismiss this Appeal.

36. On the second issue the 2nd Respondent submits that the ORPP did indeed ascertain that the process was compliant with the Party Constitution and that she began doing this even before the Appellant had raised any complaints with her office, and she only acted to remove the Appellant’s name from her records after she was satisfied that the due process was followed and after she had given the Appellant the necessary audience. Indeed, the process of updating her Register took close to two months after the 2nd Respondent had communicated the decision to expel the Appellant. The chronology given has already been referred to hereinabove.

37. The 2nd Respondent submits in conclusion that the Appellant was not interested in participating in the Party for whichever reasons and that the Appellant willfully refused to participate in Central Committee meetings. That the appeal should be dismissed with costs.

Analysis and Determination 38. We have considered all the material placed before us by the parties and now determine that the following three questions fall for our determination:i.Whether the Disciplinary proceedings against the complainant were proper, fair and in accordance with the Party Constitution?ii.Whether the ORPP complied with the law in terms of updating the register of members of the 2nd Respondent?iii.Who bears the costs of this suit?

39. We will consider the questions framed in the order in which they appear above.

(i) Whether the Disciplinary proceedings against the complainant were proper, fair and in accordance with the Party Constitution? 40. The gist of the Complaint by the Complainant is that the proceedings mounted against him by the 1st Respondent fell short of the standards established in Articles 50 of the Constitution of Kenya, did not meet the test of impartiality and fairness set in the Fair Administrative Action Act, 2015.

41. In summary the specific breaches complained of, as we have distilled them, are:i.The members of the Disciplinary Committee were part of both the Central Committee that resolved to initiate disciplinary proceedings against the Appellant, and the Central Committee that adopted the findings of the Disciplinary Committeeii.The Disciplinary Committee was both the prosecutor and judge of the disciplinary proceedingsiii.The Appellant was not served with a written statement of reasons following the conclusion of disciplinary proceedingsiv.The Appellant was not informed of his internal right of appeal, and the ORPP ignored the Appellant’s contention that he had an internal right of appeal

42. We will now deal with the afore-stated grounds before positing our conclusion.

43. It is the Appellants contention that the disciplinary proceedings were initiated by a notice of a meeting of the Central Committee of the Party by the Secretary General dated 11th September, 2022. The meeting was to be held on 15th September 2022. The complaint against the Appellant was brought by the National Chairperson. The resolution to initiate disciplinary proceedings was adopted, and the members to comprise the disciplinary body were proposed and selected. The Appellant does not Central Committee has the power to appoint the Disciplinary Committee under Article 4. 2.8 of the Party Constitution. His concern is that the appointed members had already expressed their decision and again they would be the same members to adopt their own decision.

44. We agree with the Complainant that any person whose rights are to be determined by a judicial organ is entitled to an unqualified right to a fair hearing/trial, adequate notice and facilities to appreciate the allegations against him and to adequately respond thereto. The hallmarks of any judicial or administrative process is impartiality and strict observance of the rules of natural justice; principal of which is the absence of conflict of interest, or in other words one cannot be a judge in his own cause.

45. The beginning point is to interrogate the party constitution, so as to establish the organ mandated to hear and determine disputes and disciplinary proceedings. Article 4. 2.8 of the Party constitution provides that a disciplinary committee will be appointed by the Central Committee, will comprise a minimum of 2 and a maximum of 5 persons. The Party constitution does not prescribe any other elements of the disciplinary committee. The members of the central Committee were elected alongside the Appellant in the Party Congress of 2019. Initiation of disciplinary proceedings does not mean assumption of a guilty status. The disciplinary committee members were appointed in accordance with the party constitution. The Appellant has not challenged or disputed the provisions of the same constitution. The Appellant has not proven any illegality or impropriety in the proceedings.

46. The Appellant also claims that he was not given a written statement of reasons following the conclusion of the hearing, nor was he informed of his internal right of appeal. From the evidence and the submissions before this Honourable Tribunal, it is clear that the Appellant was given notice of the institution of the disciplinary proceedings against him. He was in receipt of minutes of all meetings and all decisions taken.

47. In fact, the Appellant refused to attend the disciplinary proceedings. The Party constitution has clear provisions on the procedure and effect of refusal to participate in disciplinary hearing at Article 4. 2.14 which provides:“Refusal to participate in a disciplinary hearing or to accept the authority of the relevant party structure to impose disciplinary action shall constitute a serious offence, requiring immediate suspension for a period of at least 30 days. At the end of this period, the disciplinary hearing shall be restarted, and should the member repeat such a refusal, the member shall be expelled from the party by the Central Committee.”

48. Regardless of the membership of the Disciplinary Committee and Central Committee, the actions of the Appellant indeed had a predetermined outcome, not by the mindset of the members, but by the Party constitution itself. The Appellant was indeed the author of the decision to expel him, which decision is the one that was accepted and registered by the 1st Respondent herein.

49. We therefore find that the disciplinary proceedings against the complainant were proper, fair and in accordance with the Party Constitution

Whether the ORPP complied with the law in terms of updating the register of members of the 2nd Respondent? 50. We have been taken through the process followed by the ORPP in updating the register of members of the 2nd Respondent in the various affidavits filed herein as well as the submissions. Documents in support of this process have also been produced before this Honourable Tribunal. What has emerged from all this is that on 25th January, 2023, the 1st Respondent acknowledged that disciplinary proceedings against the Appellant had been initiated by the party and requested the party to keep her office informed of the outcome. On 24th April 2023 the Party communicated the outcome of the disciplinary proceedings to the 1st Respondent. On 3rd May, 2023 the 1st Respondent acknowledged this communication and sought more details from the 2nd Respondent. The 2nd Respondent replied by letter dated 9th May, 2023.

51. On 5th May, 2023 the 1st Respondent held a meeting with the Appellant where the Appellant inter alia requested the 1st Respondent not to effect the expulsion. It was resolved at this meeting that the Appellant would put his request in writing.

52. On 8th May, 2023 the 1st Respondent wrote to the Appellant requesting him to respond to the decision on his expulsion. On 11th May, 2023 the Appellant responded and on 22nd May the 1st Respondent requested the 2nd Respondent to report back to her in regard to the response. On 27th May, 2023 the 2nd Respondent responded to the letter in regard to the disciplinary process. On 5th June, the 2nd Respondents representative was called to collect three letters from the 1st Respondents office. By these letters, the 1st Respondent informed the Appellant and the 2nd Respondent that the Appellants name had been removed from the register of members of the Party.

53. The statutory mandate of the 1st Respondent is to check and verify compliance with the PPA. To what extent is she to check and verify this compliance? Our view is that she should interrogate the party constitution, review the decision making process, and draw objective conclusions in a fair and transparent manner. In this particular matter, the 1st Respondent indeed did all this. In fact she also went over and above and interrogated the documents provided to her, requested for more information from the parties and satisfied herself that the proceedings and decision made were fair and right. From the information before us, we do not see any non-compliance with her statutory duty. It is not for the Registrar to retry the matter or issues placed before her, she must satisfy herself that the resolutions and decisions comply with the party’s constitution and other relevant instruments and we do not discern any breach or failure on the part of the Registrar. She conducted her statutory function in strict accordance with the law.

54. The Registrar was judicious in her conduct, interrogated the facts and documents, and directed herself properly, both in law and fact. As a Registrar, and keeper of records, her fidelity is to the law and the decisions of party organs properly constituted, and their valid resolutions, notwithstanding that some members may be disgruntled.

55. From the foregoing, it is clear that the ORPP fully complied with the law in terms of updating the register of the members of the 2nd Respondent.

Who bears the costs of this matter? 56. Costs follow the event. A successful party should be awarded costs to cover the exigencies of the litigation. We do not see why we should depart from this principle. The Appellant has not proved his case and therefore the Appellant shall bear the costs of the Respondents and Interested Parties in this Complaint.

Disposition 57. We hereby make the following orders:i.The Appeal is hereby dismissed.ii.The costs of the Respondents will be borne by the Appellant.

58. Those are the orders of the Tribunal.

DATED AND DELIVERED IN VIRTUAL COURT ON THE 16TH DAY OF AUGUST 2023. ……………………………………………………HONOURABLE DR. WILFRED A. MUTUBWA OGW C.ARB FCIARB - VICE CHAIRMAN………………………………………………………HONOURABLE ABDIRAHMAN ADAN ABDIKADIR - MEMBER………………………………………………………HONOURABLE MUZNA MOHAMED YUSUF JIN - MEMBER