Peter Wangwe Puka, Antony Wafuku Sikulu, John Simiyu Khayaki, Fredrick Wanyonyi Matanda & Edward Wamalwa Atnasi v Moses Masika Wetangula & Chrisanthus Wakhungu Wamalwa; Forum for the Restoration of Democracy-Kenya [Ford Kenya] (Interested Party) [2021] KEPPDT 680 (KLR)

THE REPUBLIC OF KENYA

IN THE POLITICAL PARTIES DISPUTES TRIBUNAL AT NAIROBI

COMPLAINT NO. E007 OF 2021

PETER WANGWE PUKA..........................................................1STCOMPLAINANT

ANTONY WAFUKU SIKULU....................................................2NDCOMPLAINANT

JOHN SIMIYU KHAYAKI.........................................................3RDCOMPLAINANT

FREDRICK WANYONYI MATANDA......................................4THCOMPLAINANT

EDWARD WAMALWA ATNASI.................................................5THCOMPLAINANT

VERSUS

MOSES MASIKA WETANGULA..................................................1STRESPONDENT

CHRISANTHUS WAKHUNGU WAMALWA..............................2NDRESPONDENT

AND

FORUM FOR THE RESTORATION

OF DEMOCRACY-KENYA

[FORD KENYA].......................................................................INTERESTED PARTY

RULING

Background

1. This Complaint dated 8th March 2021 was filed on 9th March 2021 together with a Notice of Motion Application of even date under Certificate of Urgency. The Tribunal Chairperson considered the matter ex-parte in the first instance and issued the following orders:-

i. That the Notice of Motion application dated 8thMarch 2021 be and is hereby certified urgent for consideration ex-parte in this first instance only.

ii. That the Complaint and Notice of Motion application dated 8thMarch 2021 be served upon the Respondents and Interested Party immediately.

iii. The Respondents and Interested Party to file and serve their responses to the pleadings.

iv. Mention on 22ndMarch 2021 at 2. 30pm virtually to confirm compliance and for further directions.

v. That pending the hearing and determination of this application inter parties, this

Honourable Tribunal hereby issues an interim conservatory order restraining the 1stand 2ndRespondents and the Interested Party from presenting to and/or effecting at the Registrar of Political Parties any return effecting the removal of the Complainants from the positions of Chairman of the Interested Party’s Kwanza Constituency, Saboti Constituency, Endebess Constituency and Kiminini Constituency branches

2. On 22nd March 2021 when the matter came up for mention for further directions inter partes as scheduled, Mr. Ondego Advocate appeared on behalf of and also held brief for Mr. Ogunde Advocate for the Complainants. The 2nd Respondent, Hon. Chrisanthus Wakhungu Wamalwa, appeared in person, and Mr. Milimo Advocate, appeared for the Interested Party. There was no appearance for the 1st Respondent despite service.

3. During the stated mention date, Mr. Milimo, Counsel for the Interested Party, informed the Tribunal that he had instructions to apply for recusal of the Chairperson of the Tribunal based on the Chairperson’s previously disclosed past involvement with the party. The 2nd Respondent expressed himself stating inter alia that the Chairperson of the Tribunal was biased in her issuance of orders and that he would move to file a Petition to the Judicial Service Commission for her removal. Counsel for the Complainants in reaction to the stated emerging issues raised by the Interested Party and the 2nd Respondent urged the Tribunal to direct that a formal application be filed to enable them take instructions and file written responses thereto.

4. Upon consideration of the parties’ position on the matter, the Tribunal made the following orders in respect to filing of a formal application seeking orders for recusal of the Chairperson of the Tribunal:-

i. That the Interested Party to file and serve their application seeking to have the Chairperson of the Tribunal recuse herself within 7 days

ii. That the Complainants and the Respondents to file and serve their responses within 7 days of the date of service

iii. That the application for recusal be heard inter partes on 14thApril 2021 virtually.

5. In consonance with the Tribunal’s directions, the Interested Party filed a Notice of Motion Application dated 6th April 2021 brought under the provisions of Order 51 Rule 1, Sections 1A, 1B & 3A of the Civil Procedure Act and all other enabling laws. The application sought the following orders:-

a. That the Honourable Chairperson of the Tribunal Hon. Desma Nungo recuses herself from hearing and determining this matter.

b. That upon the Honourable Chairperson recusing herself, this matter be placed before a differently constituted Bench of the Honourable Tribunal for purposes of determining this Complaint.

c. That the costs of this application be borne by the Complainant.

6. The said recusal application is founded on the grounds laid out in the face of the Notice of Motion Application and supported by the affidavit sworn by the Deputy Secretary General of the Interested Party, one Millicent Abudho in Nairobi on 6th April 2021. On 15th April 2021, the Interested Party filed a Further Affidavit, also sworn by the said Millicent Abudho wherein she has alleged that the Chairperson of this Tribunal had indeed been a member of the Interested Party. She has annexed (MA) an extract of a page on which appeared the logo of the Interested Party and wherein this Tribunal’s Chairperson Ms. Desma Nungo is listed as number 4 under a table titled ` FORD Kenya Elections and Nominations Board Members’. The Interested Party has also filed their Written Submissions and List of Authorities.

7. In response to the application by the Interested Party, the Complainants did on 14th April 2021 file their Replying Affidavit sworn by the 1st Complainant on 13th April 2021 together with a List of Authorities. In addition, on 16th April 2021, the Complainants filed their Skeletal Written submissions.

8. Although they had been served with the recusal application and an Affidavit of Service duly filed, the Respondents to the Complaint had not filed any documents as at the date of the inter partes virtual hearing of the recusal application. However, during the stated virtual hearing of the subject application on 14th April 2021, Mr. Chesoro Advocate from the firm of Milimo Muthomi and Co. Advocates, who were already on record for the Interested Party, confirmed that they had since come on record for all the 3 Respondents on whose behalf they were also prosecuting the recusal application.

The Application

9. The essence of the Interested Party’s displeasure with the Chairperson of this Tribunal sitting in this matter and in the chain of matters currently pending before this Tribunal wherein the political party {Ford Kenya] is a party, is that in PPDT Complaints Nos. 9 of 2020, E002/2020 and E003/2020 all presented before this Tribunal, the Chairperson declined to grant interim orders as sought at the ex-parte stage.

10. It is the Applicants’ contention, that on the other hand, in PPDT Complaints Nos. 19/2020, E006/2021, E007/2021, E008/2021 & E009/2021 handled before this Tribunal in ex-parte sittings chaired by the said Chairperson, interim orders sought were granted.

11. The application provides further that the Interested Party has noted that in the applications where interim orders sought are so granted, the applicants are party members allied to one Hon. Eseli Simiyu, the Secretary General of the Interested Party. While in instances where no such sought interim orders are granted, the applicants are persons aligned to the Party Leader.

12. It is the Interested Party’s’ contention that this Tribunal’s Chairperson, having allegedly been a party member, and in deed a member of the disciplinary organ of the Interested Party during the 2013 general elections build up period, when she worked under the direction of the said Hon. Eseli Simiyu [Secretary General (SG) Ford Kenya], appears to have some lingering loyalty to the said SG and bias against the party members aligned to the Party Leader (the 1st Respondent herein).

The Complainants submissions in response to the recusal application

13. The Complainants submit that the Interested Party has not shown that this Tribunal’s Chairperson has been a member of the Interested Party. It is their further submission that the Interested Party alludes to a breakaway faction which they claim has at all times been granted interim orders. Yet, they submit, the decision to grant or refuse to grant Interim Orders by any Tribunal or Court of Law is an issue of judicial discretion which is exercised depending on the particular circumstances of each case and therefore the refusal to grant interim orders is no evidence of bias.

14. The Complainants go on to submit that in some of the instances or cases listed by the Applicant in their attempt to demonstrate this Tribunal’s Chairperson’s bias, the parties themselves in fact withdrew their application thereby denying the Tribunal and in deed the Chairperson an opportunity to listen to the full application on merit. They submit that the application has not demonstrated bias as anticipated in law and should be dismissed with costs.

15. The Complainants, vide their Replying Affidavit sworn on 13th April 2021 by Peter Wangwe Puka for and on behalf of all the Complainants, deny that they have ever interacted with this Tribunal’s Chairperson, and state that they are bonafide office bearers of the Interested Party’s various organs with genuine grievances concerning actions by the Interested Party in respect to their positions, and that the said political party’s SG and Leader have no role in their pursuit of their interests and/or matter.

Our Analysis and Determination

16. Noting that determining bias can and is usually quite objective, we must first look at the legal principles that have been enunciated by superior courts in regard to this issue. We will thereafter apply the facts of this case to the applicable legal principles.

17. The Court of Appeal in the case of Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLRobserved as follows:-

“… For quite some time there was contestation in several Commonwealth jurisdictions regarding the proper test to be applied in such case: was it real likelihood of bias or reasonable apprehension of bias by a reasonable person.

In R. v. Gough (1993) AC 646, the House of Lords adopted the real danger test, meaning that the question to ask is whether there was a real danger that a fair trial was likely to be denied. The test did not win universal acceptance within the Commonwealth and in Magill v. Porter (2002) 2 AC 357, the House of Lords subsequently modified the test to whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.

The East Africa Court of Justice adopted the same test in Attorney General of Kenya v Prof Anyang’ Nyong’o &10 Others EACJ Application No. 5 of 2007 when it stated:

“We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the judge did not (will not) apply his mind to the case impartially. Needless to say,

(a) litigant who seeks disqualification of a judge comes to court because of his own perception that there is appearance of bias on the part of the judge. The court however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.”

The Supreme Court of Canada expounded the test in the following terms in R. v. S. (R.D.)[1977] 3 SCR 484:

“The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence.”

That is the test we propose to adopt in this application as it is the accepted test…”

18. In the case of Metropolitan Properties (FG-C) Ltd Vs. Lannon & Others [1969] 1 QB 577, the test applied by Lord Justice Edmund Davis was:

“Disqualification was imperative even in the absence of a real likelihood of bias if a reasonable man would reasonably suspect bias.”

19. In the case of Philip K. Tunoi & Another Vs. Judicial Service Commission & Another [2016]eKLR, the Court of Appeal in considering an application for recusal stated:

“…In considering the possibility of bias, it is not the mind of the judge which is considered but the impression given to reasonable people.……

The facts of this case would not in our view, on the authority of Porter v. Magill (supra) lead a fair-minded and informed observer to conclude that there is real possibility that the Presiding Judge will be biased. It was not shown that circumstances exist that are likely to show that a real possibility exists that the Presiding Judge’s integrity or impartiality might reasonably be questioned………

If in The People case, in light of the circumstances obtaining in it, there were no grounds for recusal of the members of the bench, the present application is a far cry from what the law requires to be established to arrive at a finding of existence of possibility of bias. It is our finding that the application lacks merit as there is no evidence of circumstances that would give rise to prejudice or jaundiced view on the part of the Presiding Judge…. In conclusion and applying the test in Porter v. Magill [2002] (supra), no fair-minded and informed observer, having considered the facts, would conclude that there is a possibility that the Presiding Judge or this Court will not be impartial or fair or will be biased. In the result, we dismiss the notice of motion dated 15thFebruary, 2016 with costs to the respondents…”

20. Further in the case of Jasbir Singh Rai & 3 Others Vs. Tarlochan Singh Rai & 4 Others (2013) eKLR, Supreme Court of Kenya Petition No. 4 of 2012, Hon. Justices P. K. Tunoi, J. B. Ojwang, N. S. Ndungu, M. K. IbrahimandS. Wanjala (JJSC)had this to say;

“… The recusal principle, therefore, with regard to the Supreme Court, must not be invoked but for good cause; and neither is it to be invoked without weighing the merits of such invocation against the constitutional burdens of the Court, and the public interest….

Even as this Court takes cognizance of the merits of the individual Judge’s personal convictions, and of matters of ethics, in such a situation, it is inclined in favour of a choice which begins with the Judge’s commitment to the protection of the Constitution, as the basis of the oath of office. The shifting scenarios of personal inclination should, in principle, be harmonized with the incomparable public interest of upholding the Constitution, and the immense public interest which it bears for the people, whose sovereignty is declared in Article 1(1).It follows that the recusal of a Judge of the Supreme Court is a matter, in the first place, for the consideration of the collegiate Bench, whose decision is to set the matter to rest…..

It follows that the Supreme Court concept, as it stands in the Constitution, and as a symbol of ultimate juristic authority, imports a varying set of rules of recusal, in relation to the practice in other superior Courts….”

21. From the foregoing authorities, it is trite law that, in determining an application for recusal a court, and a tribunal such as this, sitting as a court, must address its mind to the question “will a reasonable and fair minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant seeking such recusal will not be possible?” The test of bias is thus clearly spelt out and the same requires substantiation and that mere suspicion is not enough.

22. Turning to the facts of the instant case, we have taken note of the gist of the application; which is alleged apparent bias by this Tribunal’s Chairperson in cases where orders were or were not issued. In addition, we have taken into account allegation of rift within the political party in question and alignment to certain national office bearers. The allegation that this Tribunal’s Chairperson was or is a member of the political party, or that she had and continues to have links with any of the Complainants or with the SG was not supported and remain mere fears in the mind of the Applicant. The direct link between this Tribunal’s Chairperson and any one side of the alleged divide within the political party has not been shown other than that imputed to decisions of this Tribunal.

23. Additionally, we have noted the submissions in response to the application as filed on behalf of the Complainants, in particular the submission that in most of the instances listed by the Applicant, they are the ones who had withdrawn the applications thereby denying this Tribunal and its Chairperson an opportunity to listen to the applications on merit.

24. Our Regulations as read together with the Civil Procedure Rules contain provisions under which orders to prevent the ends of justice from being defeated through grant of temporary injunction or such other interlocutory order as may appear just and convenient is anticipated. Additionally, the said laws outline basic ingredients that must present for the orders to be granted at ex-parte hearing.

25. The Applicant has not alleged and/or demonstrated that the interim ex-parte orders issued by the Chairperson in the first instance were irregular and/or that the Chairperson did not exercise her discretion judiciously. We note that the Applicant seeking the Chairpersons’ recusal has in their own application submitted that this Tribunal has at times granted interim orders and other timesnot. In deed this is the very nature of litigation otherwise matters could very well be dispensed off at the filing stage if outcomes would be so predictable. Each matter must be heard in its own merit. Our main interest therefore is in determining if the perceived reasoning in the mind of the Applicant as to why the orders go whichever way is justified. Their application for more time to file a supplementary affidavit afforded them an opportunity to file all and any documents that may have helped this Tribunal determine this matter. We note that they only filed the subject Tribunal orders and a page listing the members of their political party disciplinary organ in 2013 in which list the name of this Tribunal’s Chairperson is included.

26. The fact that this Tribunal’s Chairperson sat in the Ford Kenya disciplinary organ in 2013, that is 7 years ago, is not new to the Counsels representing the parties herein. As admitted during the hearing of the application, the same has been disclosed in their presence in proceedings involving the party including in PPDT Complaints Nos. 19 of 2020, E002/2020 and E003/2020 referred to herein. It is thus clear that the feeling or anticipation of bias is fuelled by two facts, firstly that favourable orders expected by the Interested Party were not issued thus bias against the Interested Party; and secondly that there is now a split in the political party. The import of these two suppositions is already discussed in the previous paragraphs where we have shown that the alleged fears are not substantiated.

27. With these factors in mind, the materiality of recusal, particularly in the case of a collegiate bench, must also be considered in any given case. The Political Parties Act and in deed even the Regulations that operationalise procedure before this Tribunal determine that, for proper constitution, matters must be heard by a bench of three members of this Tribunal. In deed the law allows for even a dissenting opinion in the event that there is one. When a Tribunal such as this produces to the persons who present their matters before it, reasoned decisions that even at the interim stage are mostly unanimous or by majority, can such presented unsubstantiated fears of bias, as in this instant, be merited?

28. In the face of the foregoing profound observations in the judicial authorities referred to and our analysis of the facts and circumstances of this case, we conscientiously take the stand that the instant matter is not one calling for the recusal of the Chairperson of this Tribunal.

29. Thus, we order as follows:

(a) That the Notice of Motion application dated 6th April 2021 be and is hereby dismissed.

(b) That the costs of the application be borne by the Respondent and Interested Party.

It is so ordered.

DATED AT NAIROBI THIS 23RD DAY OF APRIL 2021

DESMA NUNGO

(CHAIRPERSON)

.........................................

MILLY LWANGA ODONGO

(MEMBER)

PAUL NGOTHO

(MEMBER)

DR. ADELAIDE MBITHI

(MEMBER)