A. INTRODUCTION.
1. The Appellants emanates from the ruling and order of the Political Parties Disputes Tribunal (Hon. Desma Nungo, Hon. Steven Musau and Hon. Theresa Chepkwony) dated and delivered on 23rd March 2023 in PPDT Complaint No. E149 of 2022.
2. The memorandum of appeal dated 18th April, 2023 sets out the following grounds, in summary:
a. That the Tribunal erred in law and in fact in finding it lacked jurisdiction to determine whether, in light of the express bar under Article 77(2) of the Constitution, the 2nd Respondent could serve concurrently as a State Officer and the holder of an office in a political party.
b. That the Tribunal erred in failing to find that the 2nd Respondent’s concurrent service as a State Officer and holder of office in a political party was in contravention of Article 77(2) of the Constitution.
c. That the Tribunal erred in failing to find that the 2nd Respondent’s appointment as a State Officer amounted, by operation of law, to his resignation from office within the Party.
d. That the Tribunal erred in failing to find that the 1st Respondent violated Sections 27(1)(c) and 27(3) of the Political Parties Act by soliciting direct finances for Party activities from another political party and from the head of a foreign government.
e. That the Tribunal erred in failing to find that such violation was incompatible with the 1st and 2nd Respondents further holding office in a political party operating in Kenya.
f. That the Tribunal erred in failing to find that the 1st and 2nd Respondents’ failure to submit a declaration of finances received by the Party violated Section 27(4) of the Political Parties Act.
g. That the Tribunal erred in failing to find that the 1st and 2nd Respondents had changed the registered address of the Party’s head office contrary to Section 20 of the Political Parties Act.
h. That the Tribunal erred in failing to find that such violation of Section 20 of the Political Parties Act was incompatible with them further holding office in the Party.
i. That the Tribunal erred in failing to find that the 1st and 2nd Respondents violated the Communist Party of Kenya’s Constitution by unilaterally, and without Party authorization, signing a coalition agreement with the Kenya Kwanza Alliance.
j. That the Tribunal erred in failing to grant any remedy notwithstanding its own finding that there were deficiencies in the Party’s Internal Dispute Resolution mechanism which prevented member grievances from being adequately addressed.
3. On the basis of the above grounds, the Appellant that this appeal be allowed and that the Court issues the following orders:
a. A declaration that the 2nd Respondent relinquished, by operation of Article 77(2) of the Constitution, his position as Chairperson of the Communist Party of Kenya and that the position has consequently fallen vacant.
b. A declaration that the 1st Respondent cannot serve as Secretary General of the Communist Party of Kenya, having violated multiple mandatory provisions of the Political Parties Act, and that the position has consequently fallen vacant.
c. A declaration that the 1st and 2nd Respondents violated the Communist Party of Kenya’s Constitution by unilaterally signing a coalition agreement with the Kenya Kwanza Alliance without Party authorization.
d. A declaration that there are serious leadership issues within the Communist Party of Kenya necessitating a national congress to hold elections and make decisions over the Party’s future.
e. An order directing the 3rd Respondent to plan, publish notice of, and convene a national congress within three months of judgement.
f. A declaration that all official Party activities undertaken by the 1st and 2nd Respondents from the institution of the Complaint be rendered null and void.
g. Costs of the appeal.
B. THE DUTY OF THIS COURT.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
C. THE APPELLANT’S COMPLAINT.
5. A brief history of the matter is that the Appellant (the Complainant before the Tribunal) filed before the Tribunal an amended complaint dated 27th February, 2023 in which he pleaded that the 2nd Respondent, Mwandawiro Mghanga, was unlawfully continuing to occupy and exercise the functions of the office of the national chairperson of the 3rd Respondent (hereinafter “the party”).
6. He contended that the 2nd Respondent had been appointed as a County Executive Committee Member for Lands, Mining and Housing in Taita Taveta County in November, 2019 and, by virtue of Article 77(2) of the Constitution and the relevant Ethics and Anticorruption Commission circular, was required to relinquish his position as party chairperson.
7. The Appellant stated that the 2nd Respondent had, on 10th October, 2020, communicated to the party his resignation as chairperson with immediate effect, but had nevertheless continued to discharge the functions of that office without any formal process of reinstatement.
8. He further pleaded that the 4th Respondent, when approached for clarification, confirmed that her office had not received any notification of either the 2nd Respondent’s resignation or reinstatement.
9. The Appellant further alleged that the actions and omissions of the 1st Respondent, the party’s secretary-general, were unlawful and ultra vires. In particular, he complained of irregularities in the party’s membership register, including the alleged admission of persons who had not applied to become members and the unauthorized access to the party’s membership portal and bulk uploading of members’ names.
10. He relied on a notice from the Office of the Data Protection Commissioner concerning complaints of illegal entries in the party’s membership register and alleged that the 1st Respondent’s brother, Emmanuel Mwaniki, had been authorized to access the membership portal and enter members in bulk.
11. The Appellant also complained of the employment and suspension of party workers without written contracts or formal disciplinary processes, citing the case of Winnie Obiero, and contended that these actions exposed the party to employment-related litigation.
12. He further alleged that the party’s assets were at risk owing to outstanding rent liabilities of approximately Ksh.6 million and that the party’s headquarters and branch offices had remained closed since 8th August, 2022 without notice to the membership or the public.
13. The Appellant also alleged breaches of Section 27 of the Political Parties Act concerning the receipt and solicitation of funds from foreign persons and governments.
14. He pleaded that the 1st Respondent had written to the Chinese Government and other foreign governments and political parties seeking financial support, including a request for approximately Ksh. 15 million to support candidates participating in the electoral process. He further alleged that the party’s national treasurer had acknowledged receipt of Ksh.46,149.70 from John Cox, a citizen of the United States of America.
15. The Appellant contended that the party had failed to disclose its other sources of funding and that the financial statements published by the national treasurer omitted expenditure relating to rent and salaries.
16. The Appellant further pleaded that there was an urgent need for the party’s national congress to be convened. He alleged that the party’s county committees had not met since the 2019 national congress, that the political bureau had not been constituted, and that the elections of county committees, which were required to be held every two and a half years under the party constitution, had not been conducted.
17. He also raised the need for the national congress to ratify the establishment of the women league, which had been formed in July, 2021, and the young communist league, which had operated under interim leadership following the retirement of its previous leadership. He contended that the national congress, being the supreme organ of the party and the body empowered to amend its constitution, was required to consider and ratify those developments.
18. The Appellant further pleaded that he had made efforts to resolve the matters internally before approaching the Tribunal, but that his attempts to obtain clarification from the 1st Respondent had been dismissed as “nonsense” and his written communication through advocates had been described as “hogwash”. He alleged that his attempts to raise concerns within the party had also been met with threats of expulsion, demeaning comments and silence.
19. Consequently, the Appellant sought, inter alia, urgent consideration of the complaint; an order restraining the 1st and 2nd Respondents from performing any functions or duties on behalf of the party pending determination of the complaint; an order compelling the 1st Respondent to publish notice and initiate the process of convening the national congress within three months, failing which the national organizing secretary would be authorized to do so; a declaration that the 2nd Respondent was illegally in office and should cease performing the functions of national chairperson; declarations that the functions performed by him since his alleged resignation were unlawful; and a declaration that the 1st Respondent had failed in his obligations relating to the party’s membership records, data management, employment and dismissal of staff, alleged nepotism and solicitation of funds in contravention of the Political Parties Act, the party constitution and the Constitution of Kenya.
D. THE 1ST RESPONDENT’S RESPONSE.
20. The 1st Respondent filed a response to the complaint dated 4th March, 2023 in which he pleaded that the Appellant was not a member of the party and, consequently, that the Tribunal lacked jurisdiction to entertain the complaint.
21. He denied the allegations contained in the complaint denied that the 2nd Respondent had resigned as the party’s national chairperson. He stated that, as secretary-general, he had never received any resignation from the 2nd Respondent or any notification from the Registrar of Political Parties confirming such resignation.
22. On the allegations concerning the party’s membership register, the 1st Respondent denied that the party had illegally registered any person as a member. He acknowledged receipt of a communication from the Office of the Data Protection Commissioner, but maintained that the communication was principally intended to introduce the new data protection regime to political parties and address the collection, handling and protection of members’ personal data.
23. He stated that the party had responded to the one complaint raised against it and that the ODPC was satisfied with its response. He further denied that Emmanuel Mwaniki had made any illegal entries into the membership register, stating that Mwaniki was a longstanding party member who had provided technical and information-technology assistance to the party and had participated in training conducted by the Office of the Registrar of Political Parties and the Independent Electoral and Boundaries Commission on the relevant membership systems.
24. The 1st Respondent further denied allegations of unlawful employment practices. He stated that he had never employed or suspended party employees without a legal basis or written contracts and maintained that Winnie Obiero, whom the Appellant had identified as an example of an unlawfully employed and dismissed worker, had never been an employee of the party but had merely undertaken an attachment at the party while pursuing her studies at Jaramogi Oginga Odinga University of Science and Technology.
25. He also denied that the party was in rent arrears or that its assets were at risk as alleged by the Appellant. He contended that the only evidence relied upon by the Appellant was a demand letter dated 26th May, 2022, which had not been followed by any suit or other legal proceedings.
26. The 1st Respondent further denied that the party headquarters had remained closed since 8th August, 2022, explaining that the party had relocated its headquarters to Wundanyi Town in Taita Taveta County after experiencing difficulties with the official who had been hosting the party in his offices. He maintained that the party continued to operate its offices in accordance with the law and had offices in 24 counties.
27. With respect to the allegations concerning foreign funding, the 1st Respondent denied that the party had received funds from a foreigner or that the national treasurer had informed party members that she had received such funds.
28. Regarding the alleged payment from John Cox, he explained that the then party organising secretary, Booker Omole, had informed him that Mr Cox had sent US$400 to the party. According to the 1st Respondent, he had been informed that Mr Cox was a Kenyan citizen residing in the United States and had consequently directed the national treasurer to verify the transaction with the bank. He stated that although the money had been sent to the party’s account, it could not initially be accessed because the account had been designated in the name of Susan Nduta Wamburi, who was the organizing secretary’s secretary, rather than in the name of the party.
29. He denied having solicited funds from the Government of China or any other foreign government, although he acknowledged that there had been consideration of fundraising for party candidates, which he contended was governed by the applicable IEBC guidelines and the Election Campaign Financing Act.
30. In response to the allegations concerning the convening of the national congress, the 1st Respondent maintained that the county committees were active and had been conducting their activities and elections as required.
31. He further stated that the party’s political bureau had been established in 2019 following the national congress. He denied the existence of a women’s league within the party and maintained that the youth league already existed and did not require ratification by the national congress. He also denied that a youth league congress had been held six months before the filing of the complaint.
32. On the question whether the Appellant had attempted to resolve the dispute internally, the 1st Respondent denied that any meaningful attempt had been made. He stated that the Appellant had instead sent an email which he characterized as abusive and infantile and which, in his view, did not merit a response.
33. He further contended that most of the issues subsequently raised before the Tribunal had not been contained in the communication sent to him through the Appellant’s advocates. He therefore maintained that the reliefs sought before the Tribunal were founded on baseless allegations and constituted an attempt to use the Tribunal to undermine the party’s leadership. Consequently, the 1st Respondent urged the Tribunal to dismiss the complaint with costs.
E. THE 2ND RESPONDENT’S RESPONSE.
34. The 2nd Respondent resisted the complaint by filing a response dated 5th March, 2023 in which he contended that the Appellant was not a member of the party and, consequently, that the Tribunal lacked jurisdiction to entertain the complaint.
35. The 2nd Respondent denied that he had ever resigned as the national chairperson of the party and maintained that the allegation of his resignation was unfounded.
36. He further denied that the party engaged in illegal recruitment of members, contending that such conduct would be contrary to the party’s ideology and interests.
37. Regarding Emmanuel Mwaniki, he stated that he had been an active member of the party for over 13 years, had consistently supported the party financially and organizationally, and had recently been co-opted into the central committee. He therefore maintained that Mwaniki’s provision of voluntary information-technology services to the party did not amount to illegal recruitment or nepotism.
38. The 2nd Respondent further denied that Winnie Obiero was an employee of the party, explaining that she had merely undertaken her university attachment at the party headquarters. He stated that he had personally paid her a monthly allowance of Ksh.10,000/-, while the former national organizing secretary had contributed a similar amount.
39. He also denied that the party had any rent arrears at Swiss Cottages, explaining that the party had been hosted there in offices belonging to the former national organizing secretary. He maintained that the party’s branches were active and continued to undertake its organisational and ideological activities, that elections were conducted when due, and that the party maintained county offices as required by law.
40. On the party’s internal organs, the 2nd Respondent, who stated that he was a member of the political bureau, confirmed that the bureau had been established following the 2019 national congress. He denied that the party had a women’s league, maintaining that party organs could only be created in accordance with the party constitution.
41. He acknowledged the existence of a youth league and stated that the central committee had, upon the advice of its chairperson, resolved to support and strengthen the organ. He further stated that an attempt to create a splinter within the youth league had been made but was unsuccessful.
42. With regard to the allegations of foreign funding, the 2nd Respondent stated that although the party maintained good relations with communist parties in Africa and elsewhere, it had never received funding from such parties.
43. Concerning the sum of approximately Ksh.47,000 allegedly received from a foreigner, he contended that the Appellant had not produced evidence establishing that the donor was an alien. Nevertheless, he stated that, should it be established that the money had in fact been received from a foreigner in contravention of the law, the party was prepared to surrender the funds to the consolidated fund.
44. In relation to his continued occupation of the office of national chairperson, the 2nd Respondent contended that upon his appointment as a county executive committee member in Taita Taveta County, he had been required to choose between resigning from the county executive position and resigning as national chairperson of the party.
45. He maintained that he chose to resign from the county executive committee position and continued to serve as national chairperson. He stated that, since the 2019 national congress, he had continuously and diligently discharged the functions of the office, including chairing central committee meetings, communicating the party’s position to the public, organizing study circles and cells, and co-signing party nomination certificates and other documents with the secretary-general.
46. The 2nd Respondent further denied the allegations concerning the inactivity of the party’s county committees, county offices and political bureau. He questioned the basis upon which the Appellant had reached those conclusions, noting that the Appellant was neither a member of the political bureau nor a member of any county committee and had not demonstrated that he had undertaken any inspection of the party’s offices across the country.
47. He maintained that the party had been unable to employ additional workers because of inadequate financial resources.
48. Ultimately, the 2nd Respondent maintained that the complaint was without merit and prayed that it be dismissed with costs.
F. THE 3RD RESPONDENT’S RESPONSE.
49. In its response dated 5th March, 2023, the party contended that the Appellant was not its member and therefore lacked locus standi to institute the complaint, with the consequence that the Tribunal lacked jurisdiction to entertain the matter.
50. The party denied that the 2nd Respondent had ever resigned as its national chairperson and maintained that the allegations concerning illegal recruitment of members were unfounded.
51. The party further contended that the allegations made by the Appellant were largely based on hearsay and unsubstantiated assertions and that no substantive evidence had been presented to demonstrate that the 2nd Respondent had resigned as national chairperson.
52. It further contended that the issue concerning Winnie Obiero was purely an employment dispute falling within the jurisdiction of the Employment and Labour Relations Court and could not properly be ventilated before the Tribunal.
53. The party maintained that the other allegations contained in the complaint were equally unfounded and factually misleading. It consequently urged the Tribunal to dismiss the complaint with costs to the Respondents.
G. THE 4TH RESPONDENT’S RESPONSE.
54. The 4th Respondent did not file any response to the complaint and did not, therefore, place before the Tribunal any pleadings in answer to the allegations and reliefs sought by the Appellant.
H. THE APPELLANT’S SUPPORTING AFFIDAVIT.
55. In his supporting affidavit sworn on 27th February, 2023, the Appellant deposed that he was an active member of the the party, holding membership number 1191, and was therefore entitled to lodge the complaint before the Tribunal after the Respondents allegedly failed or refused to address his concerns.
56. In support of his membership, he annexed a copy of his membership card, marked DOO-1. He further deposed that the dispute principally concerned the continued occupation of the office of national chairperson by the 2nd Respondent and what he considered to be various governance, membership, financial and administrative irregularities within the party.
57. On the question of the 2nd Respondent’s eligibility to continue serving as national chairperson, the Appellant referred to a circular issued by the Ethics and Anti-Corruption Commission dated 1st October, 2020, marked DOO-2, concerning the restriction of appointed State and Public Officers from participating in the affairs of political parties pursuant to Article 77(2) of the Constitution.
58. He deposed that the 2nd Respondent had been appointed by the Governor of Taita Taveta County as the county executive committee member for lands, mining and housing by an offer letter dated 20th November, 2019, which he accepted on 21st November, 2019.
59. The Appellant annexed the relevant offer letter, the 2nd Respondent’s resignation letter and the Governor’s letter accepting the resignation.
60. He further deposed that, while serving as a county executive committee member, the 2nd Respondent communicated to the party by email dated 10th October, 2020 that he was quitting the position of national chairperson with immediate effect.
61. According to the Appellant, despite that resignation, the 2nd Respondent continued to perform the functions of national chairperson without any formal process of reinstatement.
62. The Appellant further deposed that, on 1st October, 2022, he wrote to the Registrar of Political Parties through his advocates seeking clarification on the legal status of the party in relation to the 2nd Respondent’s position as national chairperson. A copy of that letter was annexed as DOO-5. He stated that, in response, the Registrar, by a letter dated 17th October, 2022, marked DOO-6, informed his advocates that her office was not aware of any resignation or reinstatement of the 2nd Respondent because neither had been forwarded to the Registrar by the party as required by law.
63. The Appellant relied on the foregoing correspondence, together with the other documents relating to the issue, as evidence in support of his contention that the 2nd Respondent was unlawfully continuing to occupy the office.
64. With respect to the party’s membership register, the Appellant deposed that, on 16th July, 2021, the party received a written notice from the Office of the Data Protection Commissioner concerning complaints of illegal entries in the party’s membership register. He contended that the notice demonstrated that persons had been entered into the register despite not having applied to become members.
65. He further referred to reports in the media concerning alleged manipulation of political party membership data to meet statutory membership thresholds and stated that the party had been discussed during a live television interview between the Registrar of Political Parties and Jeff Koinange, a TV journalist.
66. The Appellant additionally deposed that the party administrator had confirmed that the 1st Respondent’s brother, Emmanuel Mwaniki, had been authorized to access the membership portal and enter members in bulk. The Appellant relied on the relevant communication from the Data Protection Commissioner in support of these allegations.
67. The Appellant also challenged the manner in which the 1st Respondent was administering the party’s human resources and financial affairs. He deposed that the 1st Respondent had employed party workers without written contracts and had suspended them without warning letters, citing Winnie Obiero as an example.
68. He contended that such conduct exposed the party to legal suits and financial liability. He further alleged that the party was facing a threat to its assets following a landlord’s demand for payment of approximately Ksh.6 million in rent arrears. Copies of the relevant correspondence were annexed as DOO-8.
69. On the party’s finances, the Appellant deposed that, on 4th April, 2022, the national treasurer had acknowledged receipt of Ksh.46,149.70 from a foreign person, which he contended contravened Section 27 of the Political Parties Act. He annexed the treasurer’s communication to party members concerning the receipt of the funds as DOO-9.
70. He further alleged that the financial statements published by the treasurer omitted expenditure relating to rent and salaries and did not disclose the sources of funds used to operate the party to its members and the public. He additionally deposed that, on 23rd January, 2022, the 1st Respondent had written to foreign governments, particularly the Government of China, seeking financial support, and that, on 1st April, 2022, he had written to foreign governments and political parties seeking support of up to Ksh.15 million for candidates participating in the electoral process. He relied on the bundle of correspondence marked DOO-12 in support of those allegations.
71. The Appellant further deposed that he had attempted to obtain clarification from the 1st Respondent on matters concerning the integrity and dignity of the party. He stated that, through his advocates, he wrote to the 1st Respondent on 21st September, 2022, but that the response received through the advocates described his communication as “hogwash”. Copies of the two letters were annexed as DOO-10 and DOO-11.
72. He also alleged that the party headquarters and branch offices had remained closed since 8th August, 2022 without notice to the party membership or the public and in contravention of the Political Parties Act.
73. The Appellant also raised concerns regarding the functioning of the party’s internal organs. He deposed that the county committees had not met since the 2019 national congress and that the 1st Respondent had failed or refused to initiate the process for their meetings, with no reports having been published for the membership. A copy of the minutes of the last national congress was annexed as DOO-13.
74. He further alleged that the political bureau had not been constituted four years after the national congress and that the elections of county committees, which under Article 10.1 of the party constitution were required to be held every two and a half years, had not been conducted.
75. Finally, the Appellant deposed that the women league of the party had been formed in July, 2021 and had held its inaugural meeting at Luanda in Vihiga County, attended by approximately 40 women from ten counties. He contended that the league required ratification by the national congress, which he described as the supreme organ of the party and the body authorized to amend its constitution.
76. He similarly deposed that the young communist league had operated under interim leadership for more than six months following the retirement of its senior leadership and the holding of a youth congress, and that the national congress was therefore required to ratify those developments and any consequential constitutional amendments.
I. THE 1ST RESPONDENT’S AFFIDAVIT.
77. n his affidavit sworn on 4th March, 2023 in opposition to the complaint, the 1st Respondent deposed that he was the secretary-general of the party of Kenya and was therefore competent to respond to the allegations raised by the Appellant. He raised a preliminary objection to the jurisdiction of the Tribunal, contending that the Appellant was not a member of the party.
78. He stated that, according to the party’s records and those of the 4th Respondent, the Appellant had ceased to be a member of the party on 30th December, 2022. In support of that contention, he annexed as BW-1 copies of a search conducted on the Integrated Political Parties Management System (IPPMS), his letter to the 4th Respondent seeking a search and the response confirming that the Appellant was not a member of the party.
79. The 1st Respondent explained that, following numerous complaints concerning recruitment into and resignation from political parties, the 4th Respondent, in consultation with political parties and other relevant institutions, had developed mechanisms through the USSD and eCitizen platforms through which persons could join or resign from political parties.
80. He stated that the systems linked an individua
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1. The Appellants emanates from the ruling and order of the Political Parties Disputes Tribunal (Hon. Desma Nungo, Hon. Steven Musau and Hon. Theresa Chepkwony) dated and delivered on 23rd March 2023 in PPDT Complaint No. E149 of 2022.
2. The memorandum of appeal dated 18th April, 2023 sets out the following grounds, in summary:
a. That the Tribunal erred in law and in fact in finding it lacked jurisdiction to determine whether, in light of the express bar under Article 77(2) of the Constitution, the 2nd Respondent could serve concurrently as a State Officer and the holder of an office in a political party.
b. That the Tribunal erred in failing to find that the 2nd Respondent’s concurrent service as a State Officer and holder of office in a political party was in contravention of Article 77(2) of the Constitution.
c. That the Tribunal erred in failing to find that the 2nd Respondent’s appointment as a State Officer amounted, by operation of law, to his resignation from office within the Party.
d. That the Tribunal erred in failing to find that the 1st Respondent violated Sections 27(1)(c) and 27(3) of the Political Parties Act by soliciting direct finances for Party activities from another political party and from the head of a foreign government.
e. That the Tribunal erred in failing to find that such violation was incompatible with the 1st and 2nd Respondents further holding office in a political party operating in Kenya.
f. That the Tribunal erred in failing to find that the 1st and 2nd Respondents’ failure to submit a declaration of finances received by the Party violated Section 27(4) of the Political Parties Act.
g. That the Tribunal erred in failing to find that the 1st and 2nd Respondents had changed the registered address of the Party’s head office contrary to Section 20 of the Political Parties Act.
h. That the Tribunal erred in failing to find that such violation of Section 20 of the Political Parties Act was incompatible with them further holding office in the Party.
i. That the Tribunal erred in failing to find that the 1st and 2nd Respondents violated the Communist Party of Kenya’s Constitution by unilaterally, and without Party authorization, signing a coalition agreement with the Kenya Kwanza Alliance.
j. That the Tribunal erred in failing to grant any remedy notwithstanding its own finding that there were deficiencies in the Party’s Internal Dispute Resolution mechanism which prevented member grievances from being adequately addressed.
3. On the basis of the above grounds, the Appellant that this appeal be allowed and that the Court issues the following orders:
a. A declaration that the 2nd Respondent relinquished, by operation of Article 77(2) of the Constitution, his position as Chairperson of the Communist Party of Kenya and that the position has consequently fallen vacant.
b. A declaration that the 1st Respondent cannot serve as Secretary General of the Communist Party of Kenya, having violated multiple mandatory provisions of the Political Parties Act, and that the position has consequently fallen vacant.
c. A declaration that the 1st and 2nd Respondents violated the Communist Party of Kenya’s Constitution by unilaterally signing a coalition agreement with the Kenya Kwanza Alliance without Party authorization.
d. A declaration that there are serious leadership issues within the Communist Party of Kenya necessitating a national congress to hold elections and make decisions over the Party’s future.
e. An order directing the 3rd Respondent to plan, publish notice of, and convene a national congress within three months of judgement.
f. A declaration that all official Party activities undertaken by the 1st and 2nd Respondents from the institution of the Complaint be rendered null and void.
g. Costs of the appeal.
B. THE DUTY OF THIS COURT.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
C. THE APPELLANT’S COMPLAINT.
5. A brief history of the matter is that the Appellant (the Complainant before the Tribunal) filed before the Tribunal an amended complaint dated 27th February, 2023 in which he pleaded that the 2nd Respondent, Mwandawiro Mghanga, was unlawfully continuing to occupy and exercise the functions of the office of the national chairperson of the 3rd Respondent (hereinafter “the party”).
6. He contended that the 2nd Respondent had been appointed as a County Executive Committee Member for Lands, Mining and Housing in Taita Taveta County in November, 2019 and, by virtue of Article 77(2) of the Constitution and the relevant Ethics and Anticorruption Commission circular, was required to relinquish his position as party chairperson.
7. The Appellant stated that the 2nd Respondent had, on 10th October, 2020, communicated to the party his resignation as chairperson with immediate effect, but had nevertheless continued to discharge the functions of that office without any formal process of reinstatement.
8. He further pleaded that the 4th Respondent, when approached for clarification, confirmed that her office had not received any notification of either the 2nd Respondent’s resignation or reinstatement.
9. The Appellant further alleged that the actions and omissions of the 1st Respondent, the party’s secretary-general, were unlawful and ultra vires. In particular, he complained of irregularities in the party’s membership register, including the alleged admission of persons who had not applied to become members and the unauthorized access to the party’s membership portal and bulk uploading of members’ names.
10. He relied on a notice from the Office of the Data Protection Commissioner concerning complaints of illegal entries in the party’s membership register and alleged that the 1st Respondent’s brother, Emmanuel Mwaniki, had been authorized to access the membership portal and enter members in bulk.
11. The Appellant also complained of the employment and suspension of party workers without written contracts or formal disciplinary processes, citing the case of Winnie Obiero, and contended that these actions exposed the party to employment-related litigation.
12. He further alleged that the party’s assets were at risk owing to outstanding rent liabilities of approximately Ksh.6 million and that the party’s headquarters and branch offices had remained closed since 8th August, 2022 without notice to the membership or the public.
13. The Appellant also alleged breaches of Section 27 of the Political Parties Act concerning the receipt and solicitation of funds from foreign persons and governments.
14. He pleaded that the 1st Respondent had written to the Chinese Government and other foreign governments and political parties seeking financial support, including a request for approximately Ksh. 15 million to support candidates participating in the electoral process. He further alleged that the party’s national treasurer had acknowledged receipt of Ksh.46,149.70 from John Cox, a citizen of the United States of America.
15. The Appellant contended that the party had failed to disclose its other sources of funding and that the financial statements published by the national treasurer omitted expenditure relating to rent and salaries.
16. The Appellant further pleaded that there was an urgent need for the party’s national congress to be convened. He alleged that the party’s county committees had not met since the 2019 national congress, that the political bureau had not been constituted, and that the elections of county committees, which were required to be held every two and a half years under the party constitution, had not been conducted.
17. He also raised the need for the national congress to ratify the establishment of the women league, which had been formed in July, 2021, and the young communist league, which had operated under interim leadership following the retirement of its previous leadership. He contended that the national congress, being the supreme organ of the party and the body empowered to amend its constitution, was required to consider and ratify those developments.
18. The Appellant further pleaded that he had made efforts to resolve the matters internally before approaching the Tribunal, but that his attempts to obtain clarification from the 1st Respondent had been dismissed as “nonsense” and his written communication through advocates had been described as “hogwash”. He alleged that his attempts to raise concerns within the party had also been met with threats of expulsion, demeaning comments and silence.
19. Consequently, the Appellant sought, inter alia, urgent consideration of the complaint; an order restraining the 1st and 2nd Respondents from performing any functions or duties on behalf of the party pending determination of the complaint; an order compelling the 1st Respondent to publish notice and initiate the process of convening the national congress within three months, failing which the national organizing secretary would be authorized to do so; a declaration that the 2nd Respondent was illegally in office and should cease performing the functions of national chairperson; declarations that the functions performed by him since his alleged resignation were unlawful; and a declaration that the 1st Respondent had failed in his obligations relating to the party’s membership records, data management, employment and dismissal of staff, alleged nepotism and solicitation of funds in contravention of the Political Parties Act, the party constitution and the Constitution of Kenya.
D. THE 1ST RESPONDENT’S RESPONSE.
20. The 1st Respondent filed a response to the complaint dated 4th March, 2023 in which he pleaded that the Appellant was not a member of the party and, consequently, that the Tribunal lacked jurisdiction to entertain the complaint.
21. He denied the allegations contained in the complaint denied that the 2nd Respondent had resigned as the party’s national chairperson. He stated that, as secretary-general, he had never received any resignation from the 2nd Respondent or any notification from the Registrar of Political Parties confirming such resignation.
22. On the allegations concerning the party’s membership register, the 1st Respondent denied that the party had illegally registered any person as a member. He acknowledged receipt of a communication from the Office of the Data Protection Commissioner, but maintained that the communication was principally intended to introduce the new data protection regime to political parties and address the collection, handling and protection of members’ personal data.
23. He stated that the party had responded to the one complaint raised against it and that the ODPC was satisfied with its response. He further denied that Emmanuel Mwaniki had made any illegal entries into the membership register, stating that Mwaniki was a longstanding party member who had provided technical and information-technology assistance to the party and had participated in training conducted by the Office of the Registrar of Political Parties and the Independent Electoral and Boundaries Commission on the relevant membership systems.
24. The 1st Respondent further denied allegations of unlawful employment practices. He stated that he had never employed or suspended party employees without a legal basis or written contracts and maintained that Winnie Obiero, whom the Appellant had identified as an example of an unlawfully employed and dismissed worker, had never been an employee of the party but had merely undertaken an attachment at the party while pursuing her studies at Jaramogi Oginga Odinga University of Science and Technology.
25. He also denied that the party was in rent arrears or that its assets were at risk as alleged by the Appellant. He contended that the only evidence relied upon by the Appellant was a demand letter dated 26th May, 2022, which had not been followed by any suit or other legal proceedings.
26. The 1st Respondent further denied that the party headquarters had remained closed since 8th August, 2022, explaining that the party had relocated its headquarters to Wundanyi Town in Taita Taveta County after experiencing difficulties with the official who had been hosting the party in his offices. He maintained that the party continued to operate its offices in accordance with the law and had offices in 24 counties.
27. With respect to the allegations concerning foreign funding, the 1st Respondent denied that the party had received funds from a foreigner or that the national treasurer had informed party members that she had received such funds.
28. Regarding the alleged payment from John Cox, he explained that the then party organising secretary, Booker Omole, had informed him that Mr Cox had sent US$400 to the party. According to the 1st Respondent, he had been informed that Mr Cox was a Kenyan citizen residing in the United States and had consequently directed the national treasurer to verify the transaction with the bank. He stated that although the money had been sent to the party’s account, it could not initially be accessed because the account had been designated in the name of Susan Nduta Wamburi, who was the organizing secretary’s secretary, rather than in the name of the party.
29. He denied having solicited funds from the Government of China or any other foreign government, although he acknowledged that there had been consideration of fundraising for party candidates, which he contended was governed by the applicable IEBC guidelines and the Election Campaign Financing Act.
30. In response to the allegations concerning the convening of the national congress, the 1st Respondent maintained that the county committees were active and had been conducting their activities and elections as required.
31. He further stated that the party’s political bureau had been established in 2019 following the national congress. He denied the existence of a women’s league within the party and maintained that the youth league already existed and did not require ratification by the national congress. He also denied that a youth league congress had been held six months before the filing of the complaint.
32. On the question whether the Appellant had attempted to resolve the dispute internally, the 1st Respondent denied that any meaningful attempt had been made. He stated that the Appellant had instead sent an email which he characterized as abusive and infantile and which, in his view, did not merit a response.
33. He further contended that most of the issues subsequently raised before the Tribunal had not been contained in the communication sent to him through the Appellant’s advocates. He therefore maintained that the reliefs sought before the Tribunal were founded on baseless allegations and constituted an attempt to use the Tribunal to undermine the party’s leadership. Consequently, the 1st Respondent urged the Tribunal to dismiss the complaint with costs.
E. THE 2ND RESPONDENT’S RESPONSE.
34. The 2nd Respondent resisted the complaint by filing a response dated 5th March, 2023 in which he contended that the Appellant was not a member of the party and, consequently, that the Tribunal lacked jurisdiction to entertain the complaint.
35. The 2nd Respondent denied that he had ever resigned as the national chairperson of the party and maintained that the allegation of his resignation was unfounded.
36. He further denied that the party engaged in illegal recruitment of members, contending that such conduct would be contrary to the party’s ideology and interests.
37. Regarding Emmanuel Mwaniki, he stated that he had been an active member of the party for over 13 years, had consistently supported the party financially and organizationally, and had recently been co-opted into the central committee. He therefore maintained that Mwaniki’s provision of voluntary information-technology services to the party did not amount to illegal recruitment or nepotism.
38. The 2nd Respondent further denied that Winnie Obiero was an employee of the party, explaining that she had merely undertaken her university attachment at the party headquarters. He stated that he had personally paid her a monthly allowance of Ksh.10,000/-, while the former national organizing secretary had contributed a similar amount.
39. He also denied that the party had any rent arrears at Swiss Cottages, explaining that the party had been hosted there in offices belonging to the former national organizing secretary. He maintained that the party’s branches were active and continued to undertake its organisational and ideological activities, that elections were conducted when due, and that the party maintained county offices as required by law.
40. On the party’s internal organs, the 2nd Respondent, who stated that he was a member of the political bureau, confirmed that the bureau had been established following the 2019 national congress. He denied that the party had a women’s league, maintaining that party organs could only be created in accordance with the party constitution.
41. He acknowledged the existence of a youth league and stated that the central committee had, upon the advice of its chairperson, resolved to support and strengthen the organ. He further stated that an attempt to create a splinter within the youth league had been made but was unsuccessful.
42. With regard to the allegations of foreign funding, the 2nd Respondent stated that although the party maintained good relations with communist parties in Africa and elsewhere, it had never received funding from such parties.
43. Concerning the sum of approximately Ksh.47,000 allegedly received from a foreigner, he contended that the Appellant had not produced evidence establishing that the donor was an alien. Nevertheless, he stated that, should it be established that the money had in fact been received from a foreigner in contravention of the law, the party was prepared to surrender the funds to the consolidated fund.
44. In relation to his continued occupation of the office of national chairperson, the 2nd Respondent contended that upon his appointment as a county executive committee member in Taita Taveta County, he had been required to choose between resigning from the county executive position and resigning as national chairperson of the party.
45. He maintained that he chose to resign from the county executive committee position and continued to serve as national chairperson. He stated that, since the 2019 national congress, he had continuously and diligently discharged the functions of the office, including chairing central committee meetings, communicating the party’s position to the public, organizing study circles and cells, and co-signing party nomination certificates and other documents with the secretary-general.
46. The 2nd Respondent further denied the allegations concerning the inactivity of the party’s county committees, county offices and political bureau. He questioned the basis upon which the Appellant had reached those conclusions, noting that the Appellant was neither a member of the political bureau nor a member of any county committee and had not demonstrated that he had undertaken any inspection of the party’s offices across the country.
47. He maintained that the party had been unable to employ additional workers because of inadequate financial resources.
48. Ultimately, the 2nd Respondent maintained that the complaint was without merit and prayed that it be dismissed with costs.
F. THE 3RD RESPONDENT’S RESPONSE.
49. In its response dated 5th March, 2023, the party contended that the Appellant was not its member and therefore lacked locus standi to institute the complaint, with the consequence that the Tribunal lacked jurisdiction to entertain the matter.
50. The party denied that the 2nd Respondent had ever resigned as its national chairperson and maintained that the allegations concerning illegal recruitment of members were unfounded.
51. The party further contended that the allegations made by the Appellant were largely based on hearsay and unsubstantiated assertions and that no substantive evidence had been presented to demonstrate that the 2nd Respondent had resigned as national chairperson.
52. It further contended that the issue concerning Winnie Obiero was purely an employment dispute falling within the jurisdiction of the Employment and Labour Relations Court and could not properly be ventilated before the Tribunal.
53. The party maintained that the other allegations contained in the complaint were equally unfounded and factually misleading. It consequently urged the Tribunal to dismiss the complaint with costs to the Respondents.
G. THE 4TH RESPONDENT’S RESPONSE.
54. The 4th Respondent did not file any response to the complaint and did not, therefore, place before the Tribunal any pleadings in answer to the allegations and reliefs sought by the Appellant.
H. THE APPELLANT’S SUPPORTING AFFIDAVIT.
55. In his supporting affidavit sworn on 27th February, 2023, the Appellant deposed that he was an active member of the the party, holding membership number 1191, and was therefore entitled to lodge the complaint before the Tribunal after the Respondents allegedly failed or refused to address his concerns.
56. In support of his membership, he annexed a copy of his membership card, marked DOO-1. He further deposed that the dispute principally concerned the continued occupation of the office of national chairperson by the 2nd Respondent and what he considered to be various governance, membership, financial and administrative irregularities within the party.
57. On the question of the 2nd Respondent’s eligibility to continue serving as national chairperson, the Appellant referred to a circular issued by the Ethics and Anti-Corruption Commission dated 1st October, 2020, marked DOO-2, concerning the restriction of appointed State and Public Officers from participating in the affairs of political parties pursuant to Article 77(2) of the Constitution.
58. He deposed that the 2nd Respondent had been appointed by the Governor of Taita Taveta County as the county executive committee member for lands, mining and housing by an offer letter dated 20th November, 2019, which he accepted on 21st November, 2019.
59. The Appellant annexed the relevant offer letter, the 2nd Respondent’s resignation letter and the Governor’s letter accepting the resignation.
60. He further deposed that, while serving as a county executive committee member, the 2nd Respondent communicated to the party by email dated 10th October, 2020 that he was quitting the position of national chairperson with immediate effect.
61. According to the Appellant, despite that resignation, the 2nd Respondent continued to perform the functions of national chairperson without any formal process of reinstatement.
62. The Appellant further deposed that, on 1st October, 2022, he wrote to the Registrar of Political Parties through his advocates seeking clarification on the legal status of the party in relation to the 2nd Respondent’s position as national chairperson. A copy of that letter was annexed as DOO-5. He stated that, in response, the Registrar, by a letter dated 17th October, 2022, marked DOO-6, informed his advocates that her office was not aware of any resignation or reinstatement of the 2nd Respondent because neither had been forwarded to the Registrar by the party as required by law.
63. The Appellant relied on the foregoing correspondence, together with the other documents relating to the issue, as evidence in support of his contention that the 2nd Respondent was unlawfully continuing to occupy the office.
64. With respect to the party’s membership register, the Appellant deposed that, on 16th July, 2021, the party received a written notice from the Office of the Data Protection Commissioner concerning complaints of illegal entries in the party’s membership register. He contended that the notice demonstrated that persons had been entered into the register despite not having applied to become members.
65. He further referred to reports in the media concerning alleged manipulation of political party membership data to meet statutory membership thresholds and stated that the party had been discussed during a live television interview between the Registrar of Political Parties and Jeff Koinange, a TV journalist.
66. The Appellant additionally deposed that the party administrator had confirmed that the 1st Respondent’s brother, Emmanuel Mwaniki, had been authorized to access the membership portal and enter members in bulk. The Appellant relied on the relevant communication from the Data Protection Commissioner in support of these allegations.
67. The Appellant also challenged the manner in which the 1st Respondent was administering the party’s human resources and financial affairs. He deposed that the 1st Respondent had employed party workers without written contracts and had suspended them without warning letters, citing Winnie Obiero as an example.
68. He contended that such conduct exposed the party to legal suits and financial liability. He further alleged that the party was facing a threat to its assets following a landlord’s demand for payment of approximately Ksh.6 million in rent arrears. Copies of the relevant correspondence were annexed as DOO-8.
69. On the party’s finances, the Appellant deposed that, on 4th April, 2022, the national treasurer had acknowledged receipt of Ksh.46,149.70 from a foreign person, which he contended contravened Section 27 of the Political Parties Act. He annexed the treasurer’s communication to party members concerning the receipt of the funds as DOO-9.
70. He further alleged that the financial statements published by the treasurer omitted expenditure relating to rent and salaries and did not disclose the sources of funds used to operate the party to its members and the public. He additionally deposed that, on 23rd January, 2022, the 1st Respondent had written to foreign governments, particularly the Government of China, seeking financial support, and that, on 1st April, 2022, he had written to foreign governments and political parties seeking support of up to Ksh.15 million for candidates participating in the electoral process. He relied on the bundle of correspondence marked DOO-12 in support of those allegations.
71. The Appellant further deposed that he had attempted to obtain clarification from the 1st Respondent on matters concerning the integrity and dignity of the party. He stated that, through his advocates, he wrote to the 1st Respondent on 21st September, 2022, but that the response received through the advocates described his communication as “hogwash”. Copies of the two letters were annexed as DOO-10 and DOO-11.
72. He also alleged that the party headquarters and branch offices had remained closed since 8th August, 2022 without notice to the party membership or the public and in contravention of the Political Parties Act.
73. The Appellant also raised concerns regarding the functioning of the party’s internal organs. He deposed that the county committees had not met since the 2019 national congress and that the 1st Respondent had failed or refused to initiate the process for their meetings, with no reports having been published for the membership. A copy of the minutes of the last national congress was annexed as DOO-13.
74. He further alleged that the political bureau had not been constituted four years after the national congress and that the elections of county committees, which under Article 10.1 of the party constitution were required to be held every two and a half years, had not been conducted.
75. Finally, the Appellant deposed that the women league of the party had been formed in July, 2021 and had held its inaugural meeting at Luanda in Vihiga County, attended by approximately 40 women from ten counties. He contended that the league required ratification by the national congress, which he described as the supreme organ of the party and the body authorized to amend its constitution.
76. He similarly deposed that the young communist league had operated under interim leadership for more than six months following the retirement of its senior leadership and the holding of a youth congress, and that the national congress was therefore required to ratify those developments and any consequential constitutional amendments.
I. THE 1ST RESPONDENT’S AFFIDAVIT.
77. n his affidavit sworn on 4th March, 2023 in opposition to the complaint, the 1st Respondent deposed that he was the secretary-general of the party of Kenya and was therefore competent to respond to the allegations raised by the Appellant. He raised a preliminary objection to the jurisdiction of the Tribunal, contending that the Appellant was not a member of the party.
78. He stated that, according to the party’s records and those of the 4th Respondent, the Appellant had ceased to be a member of the party on 30th December, 2022. In support of that contention, he annexed as BW-1 copies of a search conducted on the Integrated Political Parties Management System (IPPMS), his letter to the 4th Respondent seeking a search and the response confirming that the Appellant was not a member of the party.
79. The 1st Respondent explained that, following numerous complaints concerning recruitment into and resignation from political parties, the 4th Respondent, in consultation with political parties and other relevant institutions, had developed mechanisms through the USSD and eCitizen platforms through which persons could join or resign from political parties.
80. He stated that the systems linked an individua
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