[2023] KEPPDT 386 (KLR)

Owiti v Wachira & another; Registrar of Political Parties (Interested Party) (Complaint E149 (NRB) of 2022) [2023] KEPPDT 386 (KLR) (Civ) (23 February 2023) (Ruling)

Neutral citation: [2023] KEPPDT 386 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E149 (NRB) of 2022

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

February 23, 2023

Between

David Otieno Owiti

Complainant

and

Benedict Wachira

1st Respondent

Mwandawiro Mghanga

2nd Respondent

and

Registrar of Political Parties

Interested Party

Ruling

1. Vide a Notice of Motion Application dated January 22, 2023 (hereinafter referred to as the Application), the Communist Party of Kenya seeks the following orders from this Tribunal: -i.Spentii.That this Honourable Tribunal be pleased to grant leave to the Applicant/the Intended 3rd Respondent, the Communist Party of Kenya, to be joined as a 3rd Respondent in this matter.iii.That the Complainant be directed to serve all the pleadings to the Applicant/intended 3rd Respondent within 3 days hereof or such other period of time as deemed appropriate by this Tribunal.iv.That the Applicant/intended 3rd Respondent be granted leave to file and serve the necessary pleadings within the time determined by the Honourable Tribunalv.That the costs of the Application be provided for.

2. The Application is supported by an Affidavit sworn by Benedict Wachira on the January 22, 2023.

3. In crux, it is the Applicant’s submission that considering the dispute as presented, the reliefs sought, and further considering the fact that the 1st and 2nd Respondents have been sued in their capacity as national officials of the Applicant, it follows that any decision arising from this matter would directly affect the Applicant, the Communist Party of Kenya (CPK). Mr Opwora, Counsel for the Applicant, submits that their joinder will enable the Tribunal to effectually and completely adjudicate upon and settle all questions involved in the dispute. It is the Applicant’s contention that in any event, no prejudice shall be suffered by the Respondents if the prayers sought are granted.

The 1st Respondent’s Response 4. The 1st Respondent did not file any response to the application. In his oral submissions, Mr Wachira, the 1st Respondent, stated that he is in support of the application for joinder of the Applicant as a 3rd Respondent and thus fully associates himself with the submission of the Applicant. He referred the tribunal to Order 1 Rule 8 and Order 1 Rule 10 of the Civil Procedure Rules 2010which provides that a court shall join any necessary party who may enable the Court effectively adjudicate and settle all issues in controversy in a case. He submits that bearing in mind that the 1st and 2nd Respondents are sued in their capacity as party officials, and further that the complainant seeks prayers touching on the party, including a prayer for the party to hold a National Delegates Conference, it is only logical for the party to be joined. He argues that it is not proper for officials of a party to be sued without suing the party.

The 2nd Respondent’s Response 5. The 2nd Respondent is in support of the application. His Counsel, Mr Oriri, submits that parties are before the tribunal because there exists a dispute which relates to the running of affairs of the Applicant. This is not a private issue. The subject matter of the dispute is therefore the Applicant political party, and any decision by the tribunal will determine the propriety or otherwise of the running of the affairs of the Applicant political party, and thus affect the Applicant. It is therefore in the interest of justice that the Applicant be joined in the proceedings with a view to allowing the party to participate and adduce documents in support of the party position.

The Interested Party’s Response 6. Counsel for the interested party, Ms Ndwiga, confirmed that the interested party did not file any document in response to the Application. She indicated that the interested party did not intend to submit on the application and that they would abide by the decision of the Tribunal

The Complainant’s Response 7. The Complainant filed a Replying Affidavit dated February 15, 2023 in opposition to application.

8. He avers that the nature of dispute relates to the conduct of the 1st and 2nd Respondents in their capacity as Secretary General and Chairman of the party respectively, and that the dispute is therefore one between members of a political party, and not a member and the political party. Accordingly, the Communist Party is not a necessary party to the proceedings.

9. He further avers that considering that the Supporting Affidavit filed by the Applicant was signed by the 1st Respondent, who is the Secretary General of the party, what he intends to swear on behalf of the Applicant can still be done in his capacity as the 1st Respondent.

10. It is the Complainant’s further contention that the Applicant does not meet the threshold to be included in the proceedings as a Respondent. According to him, pursuant to the provisions of Order 1 Rule 10 of the Civil Procedure Rules, such an application for joinder as a Respondent can only be made by a party already participating in the proceedings. He relied on Kingori vs Chege & 3 Others [2002] 2 KLR 243 that held that “either party” denotes that the formal move has to be made by a party already participating in the proceedings and it would mean that an intending party cannot come on his own and choose which position he wants. Accordingly, he submits that the Complainant has a right to choose who they want to sue and that the Court cannot get into that arena.

11. He avers that for a party to be joined as a Defendant/Respondent, two conditions must be met, that is, there must be a right to some relief against him in respect of the matter involved in the suit, and, his presence should be necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively. He claims that from the Complaint filed, it is evident that the presence of the Applicant was not needed herein as a Respondent to enable the tribunal issue a decree or effectively dispose of the complaint.

Issues, Analysis and Determination. 12. We have considered the Application and the main issue for determination is whether the Applicant has met the legal requirements for grant of an order for joinder as sought in the application.

13. The application is essentially based upon Order 1 Rule 10(2) of the Civil Procedure Rules 2010 which stipulates as follows:"2. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

14. In Pravin Bowry v John Ward and Another[2015] eKLR the Court of Appeal considered, the principles to be considered in an application for joinder of parties to a suit. The Court referred to the Ugandan case of Deported Asians Custodian Board v Jaffer Brothers Ltd[1999] 1 EA 55 (SCU) where the court stated as follows:“A clear distinction is called for between joining a party who ought to `have been joined as a defendant and one whose presence before the court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit because the party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies (on an application of a defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” (Emphasis by underline)

15. The Court of Appeal in the said case also referred to its earlier decision in Civicon Limited v Kivuwatt Limited and 2 Others[2015] eKLR on the interpretation of Order 1 of the Rules. The court observed as follows:“Again, the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined.…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”

16. The Applicant avers that it is the subject matter of the dispute and that its joinder as a 3rd Respondent would enable the Tribunal to effectually and completely adjudicate upon and settle all questions involved in the Complaint.

17. We note that the application is objected to by only one party, that is, the Complainant. The Interested Party stated that they would abide by the decision of this tribunal. The rest of the parties are in support of the application. We further note that the main reasons for the Complainant’s objection are in twofold. First, that the applicant has not met the threshold for joinder and that the application has been made by one who is not a party; and secondly, that the dispute at hand is largely between members of the political party and the political party need not be joined.

18. We have perused the pleadings and we note that the Complainant has made the Applicant’s administration and its running of party business the core of this dispute.In this regard, the Complainant has raised numerous issues that directly touch on the Applicant, including the following; -i.The 2nd Respondent’s membership status with the Applicant;ii.A written notice from the Office of the Data Protection Commission on complaints about illegal entries in the Applicant’s membership register;iii.The Secretary General’s brother, Mr Emmanuel Mwaniki’s access to the Applicant’s membership portal;iv.The Applicant’s contravention of Section 27 of the Political Parties Act on the receipt of Kshs 46,149. 7 from John Cox, a citizen of the United States of America;v.The Applicant’s Secretary General soliciting from foreign government mainly Chinese government for funding;vi.The permanent closure of the Applicant’s headquarters and branch offices since August 8, 2022 contrary to the Political Parties Act;vii.The Applicant’s County Committees have not met since the 2019 Congress;viii.The Applicant’s political bureau was yet to be instituted four years after the National Congress;ix.The Applicant’s County Committee elections that fall due every two and half years have not been conducted;x.The Applicant’s Women League need to be ratified by the National Congress of the party; andxi.The need of the Applicant’s National Congress to meet and ratify the Youth Communist League leadership.

19. As demonstrated above, the Applicant has an interest or stake in the matter in question, which interest is clearly identifiable, and their presence would enable the tribunal to resolve all the matters in the dispute concerning the Applicant political party. Considering further the prayers sought, the Applicant stands to suffer prejudice in case of non-joinder as orders may be issued that may affect the party without hearing the party with a view to clarifying matters touching on the Applicant’s activities as a party.

20. We are thus of the considered opinion that looking at this matter holistically, and taking into consideration the reasoning by the Court of Appeal in the above cases on the subject of joinder, the grounds put forth by the Complainant in opposition to the application are not merited. For the tribunal to hear and settle all issues in this dispute, the interests of justice dictate that the Applicant participates in these proceedings bearing in mind that the reliefs sought directly touch on and are likely to affect the Applicant. The party needed to have been joined as a substantive party in light of the orders sought against it.

21. In the foregoing circumstances, we are persuaded that the Applicant has satisfactorily demonstrated that it meets the parameters that warrant the exercise of this tribunal’s discretion to allow the application and we accordingly allow the same. The costs of the application shall be in the cause.

Disposition 22. In light of the foregoing, we order as follows:-i.That this Honourable Tribunal hereby grants leave to the Applicant, the Communist Party of Kenya, to be joined in this matter as the 3rd Respondent.ii.That the Complainant to amend the Complaint accordingly and serve all the pleadings upon all the Respondents and Interested Party within 3 days of the date hereof.iii.That leave is granted to the Respondents and Interested Party to file and serve their responses to the amended Complaint within 5days of service, with corresponding leave to the Complainant to file any reply within 3 days of service.iv.This matter shall be mentioned on March 9, 2023 at 2. 30pm to confirm compliance and for directions as to hearing of the Complaint.v.That the costs of the application shall be in the cause

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF FEBRUARY 2023. DESMA NUNGO…… ………………………………………(CHAIRPERSON)FLORA M. MAGHANGA-MTUWETA…………………….(MEMBER)RUTH WAIRIMU MUHORO………………………………...(MEMBER)