United Democratic Party v Cleophas Wakhungu Malalah & 2 others

2. It is the Applicant’s case that on 19th August 2024 its National Executive Council resolved to replace Mr. Malalah as Secretary General. Following that resolution, the Registrar of Political Parties duly caused the said changes to be published in the Kenya Gazette through Gazette Notice Vol. CXXVI No. 128 dated 19th August 2024. 3. The material facts giving rise to the present application are largely uncontested. On 2nd August 2024, members of the Applicant party convened and resolved to discharge the 1st Respondent from the position of Interim Secretary General. The Applicant thereafter communicated this resolution to the Registrar of Political Parties, the 2nd Respondent herein. Pursuant to section 20(1) of the Political Parties Act, the Registrar caused a notice of the proposed change in the party’s officials to be published in the Kenya Gazette on 19th August 2024 (Kenya Gazette Vol. CXXVI, No. 128, Notice No. 10349). The said Gazette Notice invited any written objections or reservations to the proposed changes within seven days, failing which the changes would take effect. 4. No objections or reservations were lodged within the stipulated period. 5. Consequently, upon the lapse of the statutory notice period on 26th August 2024, the change in the office of Secretary General took effect. The Interested Party, Hon. Hassan Omar, thereupon assumed office as Acting Secretary General of the Applicant, while the 1st Respondent ceased to hold that position. It is further not in dispute that, by virtue of these developments, the 1st Respondent also ceased to be a member of the Applicant party. This position is reflected in the official records of the party and was subsequently affirmed by the party’s Internal Dispute Resolution Committee in a ruling delivered on 3rd October 2024. 6. Aggrieved by his removal, the 1st Respondent moved the Political Parties Disputes Tribunal. On 26th September 2024, he lodged a Memorandum of Appeal together with a Notice of Motion before the PPDT in Appeal No. PPDTA E005 of 2024, challenging the Registrar’s Gazette Notice and, in essence, seeking to overturn the Applicant’s decision to replace him with the Interested Party as Acting Secretary General. On 27th September 2024, the PPDT issued certain directions and interim orders in the said appeal. In response thereto, the Applicant instituted the present proceedings on 4th October 2024, contending that the PPDT lacked jurisdiction to entertain the 1st Respondent’s appeal. The Applicant subsequently obtained interim orders from this Court staying the proceedings and directives of the PPDT pending the determination of the present application. 7. It is noteworthy that the Respondents did not file any replying affidavits or submissions in opposition to the present application. Analysis and Determination 8. Having carefully considered the Applicant’s Notice of Motion dated 4th October 2024, together with the submissions filed on 20th February 2025, the Court is of the considered view that the following issues arise for determination: i. Whether the Political Parties Disputes Tribunal had jurisdiction to hear and determine PPDTA Appeal No. E005 of 2024, in light of section 20(1) and section 40 of the Political Parties Act. ii. Whether the 1st Respondent had locus standi to invoke the jurisdiction of the PPDT, given the claim that he had ceased to be a member of the party as of 26th August 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19416/eng@2025-04-28 2

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iii. Whether the PPDT proceedings constituted an abuse of process 9. At the forefront of the issues for determination is the question of the jurisdiction of the Political Parties Disputes Tribunal. It is now well settled that jurisdiction is the lifeblood of any judicial or quasi-judicial proceeding; without it, a court or tribunal lacks the authority to take even the first step. The oft-cited pronouncement in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR remains instructive, wherein the Court of Appeal emphatically stated that “jurisdiction is everything; without it, a court has no power to make one more step.” Once a court forms the view that it lacks jurisdiction, it must immediately down its tools. 10. The same principle was reiterated by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, which affirmed that a court’s jurisdiction flows strictly from the Constitution or legislation and cannot be assumed or expanded through judicial craft. It is against these settled principles that this Court must interrogate whether the Political Parties Disputes Tribunal (PPDT) possessed jurisdiction to entertain the 1st Respondent’s complaint. 11. The jurisdiction of the PPDT is circumscribed by statute, specifically section 40 of the Political Parties Act. That provision enumerates the disputes the Tribunal is empowered to determine, including disputes between members of a political party and the party itself under section 40(1)(b), and appeals from decisions of the Registrar of Political Parties under section 40(1)(f). The statute further imposes an express qualification in section 40(2), which requires that disputes between a political party and its members must first be subjected to the party’s internal dispute resolution mechanisms before the Tribunal’s jurisdiction can be invoked. 12. The legislative design is therefore clear: the Tribunal is not a court of first instance for all disagreements arising within political parties, but rather a specialized forum whose jurisdiction arises only within the narrow confines prescribed by the Act. 13. In the instant matter the 1st Respondent presented his complaint before the Tribunal as an appeal against a purported “decision” of the Registrar of Political Parties, evidently with the intention of bringing the dispute within the ambit of section 40(1)(f) and thereby circumventing the requirement for prior internal dispute resolution. 14. The impugned decision was the Registrar’s publication in the Kenya Gazette on 19th August 2024 of a notice communicating the Applicant party’s internal resolution to remove the 1st Respondent from the office of Acting Secretary General and replace him with the Interested Party. The pivotal question, therefore, is whether that publication constituted a “decision of the Registrar” capable of being appealed to the Tribunal. 15. Section 20(1) of the Political Parties Act provides that where a fully registered political party intends to change or amend its constitution, rules, or the title, name or address of any party official, the party must notify the Registrar of the intended change. Upon receipt of such notification, the Registrar is required, within fourteen days, to cause a notice of the intended change to be published in the Gazette. 16. The language of the statute is mandatory; the Registrar “shall” publish the notice. The Registrar’s role at that stage is therefore not discretionary but purely administrative and ministerial. Once notified by the political party of the intended alteration, the Registrar’s statutory duty is to publicize that information for the benefit of the public and any interested persons. 17. The publication of the Gazette Notice is followed by a period during which objections or reservations may be raised. The Act contemplates a thirty-day period alongside publication in the newspapers, although the particular Gazette Notice in the present matter invited objections within seven days. After https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19416/eng@2025-04-28 3

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the lapse of the notice period and consideration of any representations received, the political party may proceed to implement the changes in accordance with its constitution. Importantly, the Registrar’s function at the stage of publication is not to adjudicate upon the merits of the party’s internal decision but merely to give public notice of it. 18. The nature of this statutory function was explained with clarity in Chama Cha Uzalendo v Registrar of Political Parties [2017] eKLR, where the Court held that upon receiving notification of intended changes under section 20, the Registrar “has no option but to… cause a notice of the intended change… to be published in the Gazette,” and that any discretion on the part of the Registrar only arises upon receipt of representations following publication. The Court emphasized that the gazettement is essentially a statutory formality intended to notify the public of a party’s internal decision rather than a substantive determination by the Registrar. 19. In light of this statutory framework, the Court is persuaded that the publication of the Gazette Notice on 19th August 2024 did not constitute a “decision of the Registrar” within the meaning contemplated by section 40(1)(f) of the Act. The Registrar was not exercising a quasi-judicial or discretionary mandate capable of giving rise to an appeal. Rather, the Registrar was performing a mandatory statutory duty. Consequently, there was no appealable decision upon which the jurisdiction of the Tribunal could properly be anchored. 20. This conclusion finds firm support in established precedent. In Charles Nyandusi & 3 others v Registrar of Political Parties & another [2017] eKLR, the High Court considered a scenario in which a party official challenged a Gazette notice issued under mandatory statutory provisions of the Political Parties Act. The Court held that the Registrar’s act of gazettement was a statutory administrative function, not a discretionary decision capable of being appealed to the Political Parties Disputes Tribunal. The Court further observed that internal party disputes must ordinarily be addressed through the party’s internal mechanisms and, where appropriate, the Tribunal’s jurisdiction under section 40 of the Act, rather than by recasting a ministerial act as an appealable decision. 21. The reasoning in that decision is directly applicable in the present case. The 1st Respondent’s appeal before the Tribunal was, in substance, an attempt to challenge his removal from party office an inherently internal dispute between a party member and the party leadership. By framing the matter as an appeal against the Registrar, the 1st Respondent sought to circumvent the statutory requirement to exhaust the party’s internal dispute resolution mechanisms and to secure immediate intervention from the Tribunal. However, jurisdiction cannot be conferred upon a tribunal through artful drafting or by mischaracterizing a ministerial act as an appealable decision. 22. To allow such an approach would undermine the carefully structured dispute resolution framework established under the Political Parties Act. It would further defeat the purpose of section 40(2), which mandates that internal party mechanisms be exhausted before the Tribunal’s jurisdiction may be properly invoked. Indeed, the evidence before this Court establishes that the Applicant’s Internal Dispute Resolution Committee considered the dispute and, on 3rd October 2024, delivered a ruling confirming that the 1st Respondent had ceased to be a member and official of the party. In these circumstances, the attempt to invoke the Tribunal’s jurisdiction under the guise of an appeal against the Registrar was manifestly misconceived. 23. The law is well settled that proceedings undertaken without jurisdiction are a nullity. As observed in Macfoy v United Africa Co Ltd [1961] 3 All ER 1169, a nullity is incurably defective, and every act founded upon it is likewise void. Furthermore, the existence of a statutory appellate framework does not oust this Court’s supervisory jurisdiction where a tribunal has acted without authority. In Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2014] https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19416/eng@2025-04-28 4

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eKLR, the Court of Appeal affirmed that judicial review remains available where proceedings are a nullity or where insisting on alternative remedies would serve no practical purpose. The Court held: “ …where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made … it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself … whether the statutory appeal procedure was suitable to determine it.” 24. In the present matter, the Tribunal assumed jurisdiction where none existed, and the proceedings before it are therefore void ab initio. 25. Even assuming, arguendo, that jurisdiction had otherwise existed, the issue of locus standi would nonetheless present an insurmountable obstacle to the 1st Respondent’s case. 26. Section 40(1)(b) of the Political Parties Act authorizes the Tribunal to hear disputes between “a member of a political party” and the party. The Applicant has demonstrated, through documentary evidence and the ruling of its Internal Dispute Resolution Committee dated 3rd October 2024, that the changes in the office of Secretary General took effect on 26th August 2024 after the lapse of the gazettement period. From that date, the 1st Respondent ceased to hold office and ceased to be a member of the Applicant party. When he filed the appeal before the Tribunal on 26th September 2024, he was therefore no longer a member of the United Democratic Party. 27. A person who is not a member of a political party cannot invoke the Tribunal’s jurisdiction under section 40(1)(b) as though he were. The Tribunal’s mandate under that provision is confined to disputes involving existing members of political parties. While a former member may in appropriate circumstances challenge the propriety of disciplinary or expulsion processes, such a challenge must still be grounded in the party’s internal dispute resolution structures and the statutory framework governing party membership. 28. In the present case, the 1st Respondent’s internal challenge had already been considered and dismissed by the party’s Internal Dispute Resolution Committee. Consequently, by the time he approached the Tribunal, he no longer stood in the capacity of a party member but rather in the position of a stranger to the party 29. The absence of locus standi further reinforces the conclusion that the Tribunal lacked jurisdiction ratione personae. Notably, the Respondents did not adduce any material before this Court to challenge the Applicant’s evidence regarding the 1st Respondent’s status. No replying affidavit was filed to establish that the 1st Respondent remained a member or held a legally recognizable interest capable of sustaining proceedings before the Tribunal. In these circumstances, the Court accepts the Applicant’s evidence that the 1st Respondent lacked the requisite standing to invoke the Tribunal’s jurisdiction. 30. The circumstances surrounding the initiation of the Tribunal proceedings also give rise to serious concerns of abuse of process. Abuse of process occurs where judicial or quasi-judicial procedures are employed for purposes extraneous to the genuine pursuit of justice. The Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR described it as the improper use of the judicial machinery in a manner that is oppressive, vexatious, or calculated to achieve collateral advantages. The submissions before the Court indicate that the 1st Respondent had previously sought similar relief in multiple fora, including constitutional and tribunal proceedings concerning disputes within other political entities. Although the full details of those proceedings are not before this Court, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19416/eng@2025-04-28 5

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the pattern highlighted by the Applicant suggests that the 1st Respondent was attempting to obtain favourable relief through multiple, parallel avenues. 31. Even more concerning is the allegation that the 1st Respondent failed to disclose to the Tribunal material facts, including that the gazetted changes had already taken effect and that he was no longer a member of the Applicant party. If this allegation is accurate, the interim orders obtained from the Tribunal on 27th September 2024 would have been secured on the basis of incomplete and misleading disclosure. Courts and tribunals exercise their authority on the fundamental assumption that litigants will act with candour and in good faith. The deliberate or negligent withholding of material information, particularly in ex parte proceedings, strikes at the very integrity of the adjudicative process. 32. While the Court’s determinations on jurisdiction and locus standi are sufficient to dispose of the matter, the surrounding circumstances further underscore that the proceedings before the Tribunal were fundamentally flawed. The appeal filed before the Tribunal was void ab initio, and all consequential orders arising therefrom are likewise without legal effect. Allowing the proceedings to continue would serve only to perpetuate uncertainty within the Applicant party and disrupt its internal governance structures. 33. In the exercise of its supervisory jurisdiction under Articles 165(6) and 165(7) of the Constitution, and pursuant to the powers conferred by section 8 of the Law Reform Act and section 11 of the Fair Administrative Action Act, this Court is satisfied that the proceedings and orders of the Political Parties Disputes Tribunal in Appeal No. PPDTA E005 of 2024 cannot be permitted to stand. They are, as a matter of law, null and void and must accordingly be quashed. 34. In conclusion, and for the reasons set out above, the Court proceeds to make the following orders. a. An order of certiorari be and is hereby issued bringing into this court and quashing the directions and orders made on 27th September 2024 by the Political Parties Dispute Tribunal in PPDT Appeal No. E005/2024 and quashing any and all subsequent orders emanating from or in furtherance of those proceedings. b. An order of certiorari be and is hereby issued quashing and setting aside the entire proceedings in PPDT Appeal No. E005/2024 and the 1st Respondents Appeal before the PPDT is hereby terminated and shall not be heard or be proceeded with by the tribunal and any orders substring therein if any stand vacated. c. A declaration be and is hereby issued affirming the Gazette Notice Volume CXXVI No. 128 dated 19th August 2024 (10349) and the changes therein the removal of the 1st Respondent as acting Secretary General and appointment of the Interested Party in that capacity remain valid and in force and this court orders uphold the status quo established by that Gazette Notice. d. Each party shall bear its own costs. Orders accordingly DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 28TH DAY OF APRIL 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Applicant: Ms. Gathira h/b Dr. Kamotho https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19416/eng@2025-04-28 6

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Counsel for the Respondents – No appearance Counsel for the Interested Party - No appearance Court Assistant : Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19416/eng@2025-04-28 7

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