[2017] KEHC 892 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 577 OF 2016

IN THE MATTER OF AN APPLICATION BY ARTHUR MUKIRA

GACHUGIFOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY

WAYOF CERTIORARI PROHIBITION AND MANDAMUS

AND

IN THE MATTER FOR ARTICLES 23(3) (F), 27, 28, 47 AND

50(1) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTIONS 4, 6,7,10 (1), 11 AND 12 OF

THEFAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015.

BETWEEN

ARTHUR MUKIRA GACHUGI..............................................APPLICANT

VERSUS

KENYA TEA DEVELOPMENT HOLDINGS LTD....1ST RESPONDENT

CHINGA TEA DEVELOPMENT

AGENCY HOLDINGS LTD..........................................2ND RESPONDENT

JOHN KENNEDY OMANGA......................................3RD RESPONDENT

AND

PETER TIRAS KANYANGO...................................INTERESTED PARTY

JUDGMENT

1. This judgment comes after parties had gone through many motions that took most of the judicial time resolving interlocutory issues raised by the parties’ advocates on record and which then militates against any belief that it is cast in stone that a Judicial Review matter must be determined within 90 days from the date of institution in court, as stipulated in Section 8 of the Fair Administrative Action Act, 2015. I say so because the respondents viciously raised this issue urging the court to strike out these proceedings because the case was not determined within 90 days from the date of its institution. Without delving too much into that matter, I must mention that although this matter is brought under the provisions of the Fair Administrative Action Act, Section 12 of the Fair Administrative Action Act on the application of common law and rules of natural justice invites the application of sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules on the filing of applications for judicial Review.

2. Under the Law Reform Act and Order 53 of the Civil procedure Rules, there is no time limitation for hearing and determination of the Judicial Review remedies of Certiorari, Mandamus and Prohibition.

3. In addition, the Fair Administrative Action Act, 2015 did not repeal the Law Reform Act. It is for that reason that I wholly adopt my own ruing in JR 502 and 503 of 2016 Republic Versus The Public Procurement Administrative Review Board and Kenya Power &Lighting Company Limited Exparte Kleen HomesSecurity Services Limited which dealt with the issue of whether or not public procurement matters once filed in court must be determined within 45 days as stipulated in Section 175 (1) of the Public Procurement and Asset Disposal Act, 2015.

4. In the above twin cases, this court applied the decision in the case of Selex Sistemi Integrati [2008]eKLR rendered by Nyamu J and upon satisfying itself that it was practically impossible to determine all public procurement matters within the 45 days stipulated by the Act, and held that the legislature could not have intended to deprive parties of access to justice by fixing such limited time, notwithstanding the fact that the judges allocated to hear and determine these matters deal with all sorts of cases besides the public procurement matters and therefore the legislature intended that public procurement matters be heard and determined expeditiously and within reasonable time, not necessarily within the specified period under the Act.

5. The court did then, as it does now, distinguish cases of public procurement and any other Judicial Review matter, from Election Petitions which latter come once in 5 years and go, and whose stipulated time frames for conclusion is contemplated by the Constitution at Article 87 (1) and implemented by the Elections Act, 2011.

6. Further, the history and rationale behind the time stipulation in the Elections Act implementing Article 87 (1) of the Constitution on timely resolution of electoral disputes goes back to the pre-2010 situation where election petitions remained in court until the following general election which then defeated the whole purpose of challenging an election.

7. For those reasons, I find that it would not be in the interest of justice to strike out this matter which has not been heard and determined in 90 days, considering the volumes and volumes of documents and arguments that parties placed before the court to enable it determine interlocutory issues, which exceeded the period stipulated even before the main motion could be heard and determined.

8. A court of law, it has been said and held severally, ought not to do an injustice to the parties. In the same vein, Parliament represents the will of the people and it could not have purposed to visit an injustice to the very people who vested in it the legislative power.

9. In the end, I do not hesitate to find and hold that the objection to the time within which these proceedings should have been heard and determined is overruled and dismissed and the court therefore proceeds to determine the matter on its merits based on the material placed before it.

10. Now into the main motion is that the exparte applicant hereinArthur Mukira Gachugi seeks from this court Judicial Review orders stipulated in his substantive notice of motion dated 1st December, 2016.

11. The prayers sought are:

1. Certiorari to quash the decision of the 1st respondent Kenya Tea Development Agency Holdings Limited dated 14th November 2016 in respect to a petition filed by the interested Party Peter Tiras Kanyago and two others on the lack of an ‘O’ level education qualification of the applicant as per the Articles of Association of Chinga Tea Factory, the 2nd respondent and lack of qualification for board member election nomination for board member of Kenya Tea Development Agency Holdings Limited the 1st respondent herein;

2. Certiorari quashing the decision of the 2nd respondent Chinga Tea Factory Company Limited pursuant to a letter dated 15th November 2016 removing the applicant from the position of Director on the ground that the applicant did not qualify for the position of Director and further declaring his office vacant:

3. Certiorari quashing the advertisement of 16th November 2016 of the 2nd respondent issued by the Company Secretary John Kennedy Omanga, the 3rd respondent notifying candidates to submit their documents for nomination for the position of director occupied by the applicant.

4. Prohibition prohibiting the 3rd respondent from further advertising the position of Director occupied by the applicant.

5. A prohibition directed at the 1st respondent from appointing anyone to replace the applicant as a Board member of the company at their general meeting.

6. Mandamus compelling the 3rd respondent to place the applicant’s name before the shareholders for appointment as a Director of Kenya Tea Development Agency Holdings Limited representing zone 4 during the Annual General Meeting.

7. Mandamus directed at the 1st respondent to compel the said respondent to allow the applicant to undertake his duties as a Board member of the 1st respondent.

8. Any further orders and directions as it may deem fit and just to grant.

12. The respondents and the interested party opposed the notice of motion by filing replying affidavits thereto.

13. The notice of motion is supported by the statutory statement and verifying affidavit and annextures together with the further affidavit and supplementary affidavit sworn by the exparte applicant as filed on 9th March 2017.

The exparte applicant’s case

14. The exparte applicant’s case is that he has been a director of the 2nd respondent for 12 years since 2004 and that he discharged his functions without any hindrance from members of the 1st respondent and 2nd respondent companies for all those years.

15. That when the vacancy for the positions of board member of the 1st respondent fell open, the applicant applied to be considered after allegedly complying with all the requirements. The interested party herein and another member also contested the same position.

16. It is alleged that the applicant submitted the required academic qualifications as stipulated in Article 88(2) of the Articles of Association of Chinga Tea Factory (The 2nd respondent) and that he was duly cleared by the 3rd respondent Company Secretary to contest for the said position of member of the 1st respondent.

17. That the scheduled elections were conducted on 28th October 2016 wherein the exparte applicant won and was issued with an election certificate on the same day by the Returning Officer of the Zone 4 Mr Willis Odhiambo.

18. It is claimed that after the elections were held, the interested party herein Peter Tiras Kanyago together with 2 other persons who were the losers filed a petition dated 27th October 2016 before the results of the election were announced, challenging the eligibility of the exparte applicant to be appointed as a Director of the 2nd respondent, despite the applicant having served as a director of the 2nd respondent for the last 12 years and the 2nd respondent having validated the last election for the applicant’s following his nomination and successful election.

19. According to the exparte applicant, the petition challenging the applicant’s election on account of eligibility was heard and determined by the Company Secretary Mr John Kennedy Omanga, the 3rd respondent herein on 14th November 2016 who concluded that the applicant did not have the required minimum academic requirements as per Article 88 (2) of the Chinga Tea Factory Articles of Association.

20. That the 3rd respondent then on 15th November 2016 wrote a letter to the applicant disqualifying the applicant from the position of Director of Chinga Tea Factory and the 3rd respondent went further and on 16th November 2016 wrote a letter notifying submission of candidacy for directors, declaring the position of the applicant vacant and invited members of the 2nd respondent Chinga Tea Factory to apply for the position of Director before 5th December 2016.

21. It is at the time that the exparte applicant herein approached this court seeking for redress and obtained leave of court vide chamber summons dated 18th November 2016, to institute these Judicial Review proceedings.

22. The exparte applicant in his grounds in support of the remedies sought claims that the 3rd respondent acted ultra vires, abused his powers and usurped jurisdiction of the Board in making the determinations that he did not have as a Company Secretary, whose role is filing annual returns and other public filings as well as maintaining the company’s statutory books and registers and organizing for meetings for Directors and shareholders, but not hearing and determining election petitions for members.

23. It was further averred by the exparte applicant that the 3rd respondent in exercising his administrative powers of entertaining the petition failed to accord the applicant principles of good governance stipulated in Article 18 of the Constitution on the national values that bind all persons.

24. Further, the applicant alleges that the 3rd respondent failed to embrace the rules of natural justice. That he did not accord the applicant a hearing as stipulated in Section 4(4) of the Fair Administrative Action Act,2015 to enable the applicant be present and be represented by an advocate or to cross examine his accusers hence his right under Articles, 48,47,50(1) of the Constitution on fair hearing were violated.

25. The exparte applicant further claims that the 3rd respondent did not follow due process in disqualifying the exparte applicant from the position of director of the 1st and 2nd respondents in that the 3rd respondent was the sole decision maker, was biased and was not fair in his decision making.

26. That the procedure of conducting election petitions as per the Election of Tea Factory Company Directors Nominees and Buying Centre Committees Members Procedures,2016 were violated in that the committee was never constituted to determine the petition or complaint by aggrieved members hence the applicant was denied a fair hearing by the 3rd respondent who determined the election petition without the powers to do so.

27. It was further alleged that the 3rd respondent decision was biased and not based on objective criteria. The applicant claims that the 3rd respondent reports directly to the interested party who challenged the applicant’s qualifications hence the 3rd respondent could only have been acting under the direction of the interested party chairman of the 1st respondent, contrary to Section 7(2) of the Fair Administrative Action Act, 2012.

28. It was therefore asserted that the 3rd respondent acted illegally in disqualifying the applicant hence the order sought should be granted with costs.

The Respondents’ case

29. The respondents filed a joint replying affidavit on 19th December 2016 sworn by John Kennedy Omanga the third Respondent on 16th December 2016 contending that he is the Company Secretary for the 1st and 2nd respondents. It was deposed that the applicant is a member of Chinga Tea Factory which is among the 54 Tea Factories in zone 4 who have a Management Agreement with the 1st respondent wherein the latter manages the affairs of the all the 54 factories companies, and that on 26th June 2010 the 1st respondent invoked Clause 12. 1 of the Management Agreement and assigned the performance of all its duties and responsibilities under the respective Management Agreements for the 54 factory companies, the 2nd respondent herein included, to the Kenya Tea Development Agency Management Services Ltd (MS) which is a wholly owned subsidiary of the 1st respondent.

30. That the Management Agent M/S Kenya Tea Development Agency Management Services Ltd organized for provision of Company Secretarial and Legal Services to the 2nd respondent and to ensure that all obligations imposed on the 2nd respondent by the Companies Act and the 2nd respondent’s Memorandum and Articles of Association are carried out.

31. The 3rd respondent deposed that he is also the duly appointed Company Secretary of the said 54 Tea Factory Companies, including the 2nd Respondent, and the Company Secretary for the 1st respondent’s Subsidiary Companies including the Kenya Tea Development Agency Management Services Ltd hence he is the Kenya Tea Development Agency Group Company Secretary.

32. The 3rd respondent set out his duties and responsibilities as stipulated in the 1st and 2nd respondent’s Memorandum and Articles of Association; the Management Agreement; the Kenya Tea Development Agency Factory Director’s Code of Conduct; the Board’s, Governance Manual/Charter; his job description; the Companies Act and the certified Public Secretaries Act.

33. Among his duties and responsibilities as Group Company Secretary are overseeing and Managing Directors’ electoral process to the 1st and 2nd respondents.

34. According to the respondents, Directors of the 1st and 2nd respondents come into office by either appointment or election. Further, and material to this case is that Directors who are elected are elected by shareholders in a secret ballot in elections held in electoral zones to ensure equitable distribution of directorship, and that the exparte applicant is a member of the 2nd respondent and belongs to the Gikigie Electoral Area while the 2nd respondent is a corporate shareholder of the 1st respondent and falls in zone 4 Electoral Zone comprising Iriani,Chinga, Gathuthi, Ragati and Gitugi Tea Factories Companies Ltd.

35. Concerning the impugned elections, it was deposed that the memorandum and Articles of Association of the 1st and 2nd respondents provide for qualifications of persons eligible for office of Director and Educational level for sitting director of a shareholder tea factory of the 1st respondent.

36. It was deposed that Article 88 (2) of the said Articles of Association of the 2nd respondent provides that no person shall be qualified to hold office of a director unless he has attained a minimum ‘O’ level educational qualification and that the requirements were adopted by the respective tea factories pursuant to inter alia the recommendations of a Task Force Report on the Tea Industry commissioner by the Ministry of Agriculture.

37. The 3rd respondent maintained that his role in election of directors of the 54 Tea Factory Companies managed by the 1st respondent was to oversee and supervise the elections of Directors in his capacity as the Group Company Secretary; Company Secretary for the respective Tea Factories and the Company Secretary for the Managing Agency Kenya Tea Development Agency (MS) Ltd. It was contended that his office had over time formulated Rules and Regulations for elections and also drawn election manuals and regulations which stipulates the requirements that candidates must fulfill to qualify to vie for Directorship and in accordance with the Companies Act and respective Company’s Articles of Association.

38. That although the applicant had served as Director for 12 years, the first time that educational qualifications of minimum ‘O’ level qualification were applied were in the 2011/2012 elections as that is when the provisions of Article 88(2) of the Articles of Association of the 2nd respondent had been adopted.

39. It was contended that the applicant herein never submitted his Certificate attesting to his ‘O’ level education qualification but that instead, he petitioned Kenya National Examination Council to furnish the Managing Agent, Kenya Tea Development Agency, MS Ltd with is qualification.

40. That the Kenya National Examinations Council (KNEC) submitted a statement of examination results dated 17th December 2012 communicating to Kenya Tea Development Agency, MS Ltd that the applicant sat for his EACE examinations in 1976 at Chinga Boys High School and his result was a 9 (NINE) fail.

41. That when the Kenya Tea Development Agency(MS) Ltd through the 3rd respondent sought clarification from Kenya National Examination Council on 7th November 2013, on whether the qualifications certificates was issued with a “fail” result in order to determine the eligibility of the applicant in the election exercise, Kenya National Examination Council did not respond to that request.

42. Accordingly, the exparte applicant was prequalified for elections because the election manual regulations stipulates that no complaint or appeal can stop or suspend an election exercise and as a result the verification committee, the Presiding Officer and the Returning Officer prequalified the applicant to vie and he was successfully elected as Director of the 2nd respondent for the election year 2011/2012 and that he served his entire term until the 2012/2016 election year when he underwent the same prequalification exercise and upon his election, he was confirmed as Director of the 2nd respondent.

43. It was contended that in the 2015/2016 election, no appeal or petition was filed challenging his eligibility on grounds of academic qualifications hence there was no decision touching on his qualifications and that is why he served his whole term although that issue of his qualification remained pending since Kenya National Examination Council had not responded to the query as to whether a nine(9) fail at ‘O’ level was a qualification.

44. That when the 2016 elections were due, the 3rd respondent issued the usual notice of election of a board member to the 1st respondent from zone four, among other documents, as the interested party’s term was coming to an end under the ? retirement of Director’s Rule and that just like any other election for directors of the 1st respondent company, candidates were subject to pre-qualification conditions among them, that a candidate must be a sitting director of a member of tea factory from the electoral area(zone), and must have attained an “O Level Qualification.

45. That the applicant, the interested party and a Mr Daniel Kingathia Ndogoto submitted their applications but as had been the case before, the exparte applicant herein did not submit his educational prequalification certificate but instead sought Kenya National Examination Council to furnish the respondents with the same.

46. That on 4th October 2016 Kenya National Examination Council wrote a statement of examination results stating that the exparte applicant sat for his KCE in 1976 at Chinga Boys Secondary School and his result was a 9 which statement of results was forwarded to the verification committee in respect of Zone 4 Director’s elections.

47. That the verification committee considered the applicant’s documents and cleared all the three candidates to participate in the scheduled elections.

48. However, that after the said verification committee had cleared all the three candidates, one of the candidates Mr Daniel Kingathia Ndogoto withdrew his candidature on 24th October 2016.

49. That on 24th October 2016 the 1st respondent though the 3rd respondent sought clarification from Kenya National Examination Council on the educational prequalification of the exparte applicant and vide letter of 25th October 2016 Kenya National Examination Council wrote back stating that the statement of examination results dated 4th October 2016 earlier supplied had typographical errors and that the new one with correct version of the exparte applicant’s result had been attached. That the corrected statement as attached disclosed a result of “9 (NINE) FAIL.”

50. That the applicant participated in the scheduled elections for zone 4 and emerged the winner on 28th October 2016 and he was due to be placed before the shareholders of the 1st respondent for election and confirmation as director during the Annual General Meeting scheduled for 8th December 2016 but he could not reach that stage of election and be confirmed by the 1st respondent’s shareholders because: On 27th October 2016, a day prior to the nominee election date for the 1st respondent’s shareholders board member for zone 4 electoral area, the 3rd respondent received an email communication from the interested party herein alleging that the exparte applicant did not possess an ‘O’ level qualification and that if so, the applicant did not qualify to represent zone 4 in the 1st respondent.

51. That the 3rd respondent also received the Returning Officer’s report on the results of zone 4 electoral area for the 2nd respondent wherein the applicant had been elected but that there was a petition submitted to the Returning Officer prior to commencement of voting process challenging the prequalification of the applicant which petition was considered by Directors of the 2nd respondent upon which they agreed to forward it to the 1st respondent to deal as elections continued for the prequalified nominees.

52. That the petition which was filed by the interested party together with Ephantus Mukundi and Eustace Karanja claiming that the exparte applicant herein did not qualify to vie for directorship of their factories and of the 1st respondent’s Board because he lacked an ‘O’ level qualification required to be a Director of Chinga Tea Factory.

53. The 3rd respondent contended that upon receipt of the petition, he wrote to the petitioners on 28th October 2016 acknowledging the petition and copied it to the exparte applicant notifying him that a petition which had been filed challenging his elections would be subjected to due process.

54. That on 1st November 2016 the 3rd respondent wrote to the applicant informing him of his right to a fair hearing and gave him an opportunity to file a response to the petition and the applicant wrote on 2nd November 2016 stating that he stood by his letter of 30th October 2016 responding to the petition and urging that the petition be dismissed for lack of merit.

55. That in the said letter of response to the petition dated 30th October 2016 the exparte applicant had raised a preliminary objection to the jurisdiction of the 3rd respondent to handle the subject petition and on 3rd November 2016 the 3rd respondent overruled the preliminary objection after obtaining legal opinion from five(5) Law firms of repute, which opinions were shared with the exparte applicant, and that the exparte applicant responded to the said legal opinions on 10th November 2016.

56. That on 14th November 2016, the 3rd respondent after satisfying himself on the legal position as regards the applicant’s candidature and nomination, rendered a decision to the effect that the exparte applicant did not meet the minimum requirements to hold office of a Director of Chinga Tea Factory pursuant to Article 88(2) of the Articles of Association of the said Chinga Tea Factory (CTF). That having so found, the 3rd respondent simply invoked the provisions of Article 104 (a) as of the Articles of Association of Chinga Tea Factory on disqualificationand or vacation of office of Director which applied to the exparte applicant, and he declared that the prequalification of the exparte applicant as a candidate for the position of a director in the 1st respondent’s zone 4 directors’ nominations election was void; and informed the exparte applicant vide a letter dated 15th November 2016 of his disqualification as director.

57. The 3rd respondent also notified the vice chair and Directors of Chinga Tea Factory of the vacation of office of the exparte applicant herein.

58. The 3rd respondent maintains that in determining the eligibility and disqualification and vacationof office of director of the exparte applicant he accorded the applicant a fair hearing, that the applicant submitted himself to the jurisdiction of the 3rd respondent to handle the petition challenging his educational qualifications and that he actively participated in the said proceedings. He maintained that the decision of 14th November 2016 was grounded in law and fact and contended that the exparte applicant having failed his ‘O’ level examinations, he could not rely on his foreign academic qualifications which does not meet the recognition criteria pursuant to the provisions of the Universities Act, No. 42 of 2012 and the Regulations/guidelines made there under.

59. Further, that even though the applicant had served as Director previously with the same qualifications, those qualifications had never been subjected to validation though flagged out in 2011/2012 election year and that the only time that a determination was reached on those qualifications was on 14th November 2016.

60. The 3rd respondent denied that he cleared the applicant for the nomination and or elections and asserted that the applicant together with other nominees were cleared by the Verification Committees at the 2015/2016 election year and in respect of the election conducted in 2016.

61. The 3rd respondent also denied allegations that the interested party only filed the petition after losing in elections to the applicant and stated that the petition was submitted on 28th November 2016 prior to commencement of the voting exercise as per the Returning Officer’s report and that the petition was preceded by an inquiry email send by the interested party to the 3rd respondent on 27th October 2016.

62. The 3rd respondent maintained that the exparte applicant was given every opportunity to be heard and to be represented by his advocate in defence and that the language of the response to the petition attests that the author was a legal mind but submitted in the name of the exparte applicant.

63. That no prejudice has been demonstrated for absence of legal representation of the exparte applicant in the proceedings leading to the exparte applicant’s disqualification.

64. The 3rd applicant contends that he never removed the applicant from office but that the applicant was disqualified from holding office of the Director of CTF Company Ltd and consequently, his office as director stood vacated under Article 88(2) as read with Article 104(a) (a) and 105(a) of the Articles of Association of CTF company Ltd.

65. That removal of director procedure is quite different from disqualification or vacation of office of a director. The 3rd respondent contended that it was his legal duty to carry out due diligence on the eligibility of directorship and that is why he wrote to Kenya National Examinations Council to clarify what the statement of examination result meant hence he never acted maliciously or in bad faith and that neither did he intend to prejudice the exparte applicant’s legal rights. Further, that similar requisitions for clarification had been made to Kenya National Examinations Council in respect of other contenders not just the exparte applicant.

66. According to the 3rd respondent, the decision to seek clarification from Kenya National Examinations Council was made independent of external or interested party interference and that such decision was guided only by his mandate under the statute and other applicable instruments.

67. That the exparte applicant ably presented his defence against the petition which case was considered and a determination was reached hence, Article 10 of the Constitution was never violated and that the 3rd respondent’s diligence in the management and handling of elections had earned him a commendation from the Managing Director.

68. The 3rd respondent further contended that following the disqualification of the exparte applicant, the election for zone 4 directorship became void and were a no contest and inconclusive hence the zone 4 Directors were notified of fresh elections process which were scheduled for 27th February 2017 and that is the reason why the December 8th 2016 Annual General Meeting had no agenda for confirmation of nominees director in respect of zone 4 electoral zone.

69. It was also contended that following the nullification of the zone 4 elections for directors, the 2nd respondent’s shareholders were notified sand candidates were invited to submit their applications in the normal manner and that the exparte applicant is free to submit his application afresh for consideration.

70. The respondents further contended that the Judicial Review orders sought can only issue against a public body and not the respondents who are not public bodies/officer and that the respondents have filed an appeal before the Court of Appeal to revisit this issue of whether non- public bodies/persons can be subject of Judicial Review remedies.

71. That in any event, any wrongs committed by the 3rd respondent are done for and on behalf of the 1st and 2nd respondents for which he is employed as a company secretary hence he cannot be sued in his personal capacity as he bears no personal responsibility and that this issue is pending before the Court of Appeal for determination.

72. That there is no cause or justiciable or semblance of a justiciable cause by the exparte applicant against the respondents to warrant grant of orders sought hence the notice of motion is an afterthought, hopelessly defective, misconceived, frivolous, vexatious, devoid of merit and an abuse of the court process craving to be struck out with costs.

73. It was also contended that to grant the orders sought will paralyze the operations of the respondents and render of no effect and inconsequential the Memorandum and Articles of Association of the 1st and 2nd respondents and will open a Pandora’s box by setting a bad and dangerous precedent of a person who is unqualified to hold an office of Director being allowed to continue holding the office, his lack of qualification notwithstanding.

74. That nothing stops the exparte applicant from sitting for his ‘O’ level certificate exams to qualify to vie for position of director and offer his candidature once such vacancy of director arises.

75. It was contended that it is in the interest of shareholders of the 1st and 2nd respondents and the wider public interest that only qualified candidates hold fiduciary offices of director in their respective companies.

76. The respondents also raised a preliminary objection filed on 23rd May 2017 contending that the proceedings herein having been brought under the Fair Administrative Action Act, 2015 in particular, Section 8 of the Act, which stipulates that the proceedings must be concluded within 90 days from the date of filing and that 90 days having lapsed these proceedings are invalid, null and void and therefore the court no longer has jurisdiction to preside over and determine the same.

The Interested Party’s Case.

77. In a replying affidavit filed on 15th December 2016 and sworn by the interested party Peter Tiras Kanyago, it was deposed that the issue of disqualification of the applicant as director arises from the mandatory provisions of the Companies’ Articles of Association, Article 88(2) of the 2nd respondent’s Articles of Association that require possession of an ‘O’ level qualification for a candidate vying for directorship.

78. That the 3rd respondent issued a notification for candidates to submit their application for Kenya Tea Development Agency Holdings Director position for zones 2,4,7 and 8 which were due for rotational cycle in October 2016 and he vied and qualified as a sitting director of a member Tea Factory from the electoral/zonal area 4.

79. It was deposed that the elections manual stipulates that complaints prior to issuance of elections notices and release of prequalified candidates shall be made to the Company Secretary.

80. That on his part, on 27th October 2016 he wrote an email to the Company Secretary inviting the latter to confirm whether the allegation that the applicant had not attained ‘O’ level qualification which was a requirement to hold director’s position at the 2nd respondent was true.

81. That Ephantus Mukundi and Eustace G. Karanja had similar misgivings and so they jointly petitioned seeking for suspension of the scheduled elections for 28th October 2016 until the allegations were investigated. That he had since learnt that the relevant election manual stipulates that no appeal or complaint could stop elections or suspend an election exercise.

82. That when the nomination exercise kicked off on 28th October 2016 the Returning Officer Mr Willis Odhiambo informed candidates that there was a petition and it was discussed with the candidates that the same be forwarded to the head office but nomination process would continue.

83. The rest of depositions by the interested party mirror the depositions by the 3rd respondent on the ensuing events leading to the disqualification of the exparte applicant and which I have substantially reproduced in this judgment above.

84. However, the interested party added that this court in exercise of Judicial Review jurisdiction is not concerned with the merits of the decision but the process of making the decision.

85. Further, that allegations that the applicant undertook a bridging course prior to him obtaining 2 degrees from Strayer College in the USA is unsupported by documentary evidence.

86. That a statement of examination results stating NINE (9) FAIL is not a qualification hence it was the 2nd respondent’s Articles of Association that disqualified the applicant from holding office of Director and he could, if he so held such office, only vacate office, not to be removed by anybody as alleged.

87. The interested party also cited Articles 88(2) on qualifications and Articles 104(a) (a) and 105(a) of the Articles of Association of the 2nd respondent on disqualifications or vacation of office of Director.

88. That Section 139 of the Companies Act deals with “resolutions to remove Directors from office” and Subsection 6 (b) provides that “the Section does not limit any power to remove a director that may exist apart from that Section.”

89. That the 3rd respondent has power to handle complaints arising out of nomination process or to communicate results of any decision arising from that. Further, that all communication by the Board of Directors is usually done formally by the Company Secretary and in this case, the Company Secretary did communicate the ineligibility of the applicant in his capacity as the Company Secretary and Director elections as enlisted in the elections manuals, to set in motion a process for fresh nomination to fill vacancies arising as stipulated in Section 138 of the Companies Act.

90. That calling a lawyer to represent him at the hearing of the petition could not have assisted the applicant deal with the issue of qualifications which he did not possess in the first instance hence the applicant had come to court with unclean hands and to circumvent the issue of ineligibility to hold office as director by employing this court’s process to issue orders to compel the respondent to install him as director notwithstanding that he does not qualify, as stipulated in the 2nd respondent’s Articles of Association which he is bound to adhere to hence the court should decline to grant the orders sought.

91. On 9th March 2017, the exparte applicant filed a supplementary affidavit wherein he lamented that despite this court staying activities that would be prejudicial to the position of the applicant as director, and that despite his name being proposed for nomination by Mr Chege Kirundi on 8th December 2016, it was not adhered to by the respondents.

92. Further, that on 13th December 2016 the 3rd respondent scheduled another meeting where he reinstated the interested party to hold the position initially held by the applicant in zone 4 despite knowing that his term had expired and that he was never elected as a representative of zone 4 and which amounts to contempt of court order and therefore the 3rd Respondent with the Interested Party are liable for committal to civil jail.

93. That if the Interested Party continues to hold position of director for zone 4then the applicant’s interests shall be prejudiced and the final determination of this matter will serve no basis.

94. The applicant urged the court to summon the 3rd Respondent to show cause why he should not be cited for contempt of court and sequestration of property and that the Interested Party too, be committed to prison for contempt of court.

95. In a response filed to the above supplementary affidavit, the Respondents filed a joint supplementary affidavit sworn by John Kennedy Omanga the 3rd respondent herein on 28th March 2017 and filed on 29th March 2017 deposing that the applicant’s supplementary affidavit sworn on 9th March 2017 seeks to introduce the proceedings of the Annual General Meeting held on 8th December 2016 to the proceedings herein yet the events of 8th December 2016 were never part of the pleadings that originated these proceedings.

96. That the issues that led to the meeting of 8th December 2016 were exhaustively canvassed by this court and a Substantive Ruling of dismissal rendered and hence the same cannot be reopened here otherwise parties would engage in endless litigation exercise.

97. That in any event, no contempt proceedings are before this court to warrant the summoning of and citing the 3rd Respondent for contempt of court.

98. That further, the Respondents’ action in relation to the meeting of 8th December, 2016 and any other meeting in the conduct of their business has been proper, legal and justified hence the allegations of reinstatement of the Interested Party are frivolous, Vexations, fable and baseless and should be expunged from the record.

99. The Interested Party also filed a Supplementary affidavit on 29th March 2017 deposing that he was the chairman of Board of Director Kenya Tea Development Agency Holdings Ltd and a Director of Chinga Tea Factory Co. Ltd. He denied the allegations regarding his purported reinstatement as alleged and or the request by Mr. Chege Kirundi since the court did not include the applicant’s name in the agenda for the Annual General Meeting scheduled for 8th December 2016.

100. That the applicant had not placed before this court the Annual General Meeting deliberations that are to be considered prejudicial to the exparte applicant’s interest.

101. That there was no declaration of vacancy of director for zone 4 at the Annual General Meeting because it was not on the agenda and that no Article of Association of the 1st Respondent provides for expiration of the term of its director as erroneously assumed by the Applicant.

102. It was further contended that Article 89 of the of the 1st Respondent’s Articles of Association provides that a director shall remain in office until the next Annual General Meeting when the outgoing Director is removed and a new director is appointed under Article 86 (c) of the Articles of Association of the 1st Respondent.

103. It was further deposed that the court order never ejected the Interested Party from being a director or from continuing to hold office of director of the 1st respondent and neither did his term as a director of zone 4 expire.

104. According to the interested party, the court only stayed the letter of 14th November 2016 which was the decision of the 3rd Respondent and that the applicant is using this court process to seek to halt the continuity of the 1st and 2nd Respondents’ affairs contrary to the Articles of Association, by seeking unusual prayers from this court as there has been no contempt of court order on his part or on the part of the 3rd Respondent and that neither has the procedure for committal for contempt of court as stipulate in the relevant statute been complied with hence this court is not obliged to embed such prayers for contempt of court in these Judicial Review proceedings.

105. The Interested Party urged the court to strike out the offensive paragraphs of the exparte applicant’s Supplementary affidavit and dismiss the substantive Notice of Motion dated 1st December 2016.

SUBMISSIONS

106. All the parties’ advocates agreed and filed written submissions which they orally highlighted on 23rd May 2017.

Exparte applicant’s submissions

107. The exparte applicant’s submissions were filed on 30th January 2017 and oral highlights made by Mr. Kanjama Advocate adopting the said submissions and relying on the grounds set out in the statutory statement, verifying affidavit, and the two supplementary affidavits.

108. Mr. Kanjama submitted maintaining that his client remains the director of zone 4 for the 2nd Respondent because despite the Annual General Meeting which was held on 8th December, 2016, no one was elected to represent zone 4 in the Board of the 1st Responded Company.

109. Counsel for the exparte applicant submitted that although the Interested Party’s term of office in the 1st Respondent expired on the 8th December 2016 during the Annual General Meeting, the 3rd Respondent had purported to interpret the order of this court as providing for status quo to allow the interested party to continue acting as director of the 1st Respondent to date. Mr Kanjama submitted that his client did not file contempt of court proceedings so as not to obscure the matter. Mr. Kanjama framed 5 issues for determination namely;

1. Whether the 3rd Respondent acted ultra vires or whether he abused his powers or usurped jurisdiction of the Board in making those determinations. On this issue, it was submitted that the 3rd Respondent purported to possess powers to entertain an election petition filed by the interested party yet it was not one of his functions as the company secretary.

110. That the 3rd Respondent purported to disqualify a director and further, that the Company Secretary is an appointee of and works under and reports to the Board of Directors of the company hence the Company Secretary cannot monitor and entertain disputes relating to qualifications of a director.

111. It was submitted that the companies (General) Regulations 2015 schedule 3 & section 17 (2) of the said schedule stipulates that “the company secretary shall propose a director’s written resolution if a director requests it” which powers and functions among other does not include removal of a director.

112. It was submitted that a director of a company elected by shareholders can only be removed by shareholders and not otherwise hence the Company Secretary acted in excess of jurisdiction and so his actions ought to be precluded. Reliance was placed on the case of Lyford Kaburu Joseph V. Director of Public Prosecutions &3 Others (2016) eKLRwhere the court held that “Judicial Review orders of Certiorari lies to quash the decision of a body, person or authority exercising judicial or quasi-judicial jurisdiction, which is made without jurisdiction or in excess of jurisdiction or where the body has failed to apply the rules of natural justice or fair administrative action, where the decision is illegal or unreasonable.”

113. It was submitted that the Company Secretary acted unlawfully in disqualifying the Exparte applicant, a director appointed by shareholders and who have the mandate to remove him at the Annual General Meeting or at an extra ordinary general meeting.

114. Further reliance was placed on Republic vs Public Procurement Administrative Review Board & 3 other (2014) eKLR where the court in granting Judicial Review orders held that; “the Respondent had no power in effect to vary a decision made final by the law under the guise of interpreting the same.” Further reliance was placed on section 7 (2) of the Fair Administrative Action Act which stipulates thata court or Tribunal may review an administrative action or decision if- a – the person who made the decision acted in excess of jurisdiction or power conferred under any written law.Further reliance was placed on Olive Mwihaki Mugenda & Another v Okiya Omtatah Okoiti & 4 Others (2016)where the Court of Appeal held that the High Court erred in acting in excess of jurisdiction in making an order for involvement of stakeholders and formulating its own procedure for recruitment of the Vice Chancellor, Kenyatta University.

115. It was submitted that powers of the 3rd Respondent do not comprise the right to determine or entertain an election petition and subsequent removal of a director hence the 3rd Respondent assumed a duty he did not have the mandate to discharge hence it was improper for him to disqualify the exparte applicant.

116. Counsel for the exparte applicant maintained that the decision dated 14th November 2016 is illegal and illegitimate and must be quashed together with the advertisement dated 16th November 2016 by the 2nd Respondent pursuant to the letter dated 15th November 2016.

117. On the 2nd issue of whether the powers of Company Secretary as contemplated in the companies Act, 2015, Memorandum and Articles of Association of the 1st and 2nd Respondents include hearing and determining petitions relating to elections of Directors, it was submitted that nowhere in the Act and Memorandum and Articles of Association mention the power of the 3rd Respondent to include hearing and determining petitions which is the role of a judicial officer hence the 3rd Respondent acted beyond his scope of authority. It was also submitted that the Articles cited by the Respondent regarding removal of Directors – pursuant to Articles 89 & 90 do not give to the Company Secretary power to remove or disqualify a Director but that such removal can only be done by shareholders at the Annual General Meeting.

118. On the 3rd issue of whether the 3rd Respondent accorded the exparte applicant fair Administrative Action as stipulated in Article 47 (1) of the constitution, it was submitted, relying on the provisions of the Fair Administrative Action that the 3rd Respondent while purporting to exercise administrative action powers in entertaining the petition failed to observe the principles of good governance as stipulated in Article 10 of the Constitution which binds all. Reliance was placed on Fursys (K) Ltd V Public Procurement Administration and Review Board & 2 otherswhere the court emphasized observance of the National Values and principles of governance namely the rule of law.

119. Citing section 4 (4) of the Fair Administrative Action Act, it was submitted that the decision maker must accord a person affected by the decision an opportunity to attend the proceedings in person or in the company of an expert of his choice, to be heard to cross-examine persons who give adverse evidence against him and to request adjournment of proceedings where necessary to ensure a fair hearing.

120. In this case it was submitted that the exparte applicant was never accorded a hearing as stipulated in section 4 (4) of the Fair Administrative Action Act. Reliance was placed on Republic vs Inspector General Corporation & Another exparte Titus K. Barmasai (2013) e KLRwhere the court addressed the right to a fair hearing being a rule of natural justice.

121. It was submitted that the right to a fair hearing cannot be waived, with further reliance being placed on Article 50 (1) of the Constitution on the right to a fair and public hearing which right was allegedly violated.

122. It was further submitted that the 3rd Respondent should have referred to the Dispute Resolution Committee of the 1st Respondent which is mandated to determine such matters. That the committee consists of 9 members comprising the Chairman appointed by the Managing Director of the Managing Agent, a Secretary and at least 7 members.

123. That according to the Election of Tea Factory Company Directors Nominees and Buying Centre Committee Members Procedures – 2016, a petition challenging the election of a Director is submitted by the petitioner to the committee and the committed sits to determine the petition. The decision of the committee is communicated through the Factory Unit Manager from the Factory Company and not for the 3rd Respondent to hear and determine the petition. In this case it was submitted that no committee was formed to determine the petition hence the trial was illegal, unfair and unprocedural and in violation of Articles 48 & 47 (1) of the constitution.

124. Further reliance was placed on Sarah Nasel Leterpan v Attorney General & 4 others (2012) eKLR where the court declared null and void proceedings and decisions of the Tribunal which were made in violation of Article 50 (1) of the constitution.

125. The applicant also relied on Republic vs KPA Exparte Alice Wamaitha Mwangi (2016) eKLRon the right to administrative Action and adherence to the rules of natural justice.

126. Mr. Kanjama further added that the protest that the applicant had no academic qualifications is not acceptable since he had served for 10 years as a director and was on several occasions prequalified for election as such director. Further, that the applicant had, after his KCE – O level done a bridging course for University Education and therefore the 3rd Respondent had no power to determine the validity of a University Qualification after the fact, to deny the applicant his dues and subject him to immerse suffering.

127. On the issue of whether the 3rd respondent followed due process and procedure in disqualifying the exparte applicant from the position of director of the 1st and 2nd respondents, it was submitted reiterating that the appropriate committee for determining petitions was never set up and that therefore the procedure employed in determining the applicant’s case was unfair and married by irregularities.Reliance was placed on Republic vs. The National Police Service Commission & Another [2016] e KLR.

128. On the 4th issue of whether the 3rd respondent was impartial in decision making,it was submitted that the manner in which the whole trial was dealt with clearly show that the decision of the 3rd respondent was biased, illegal and contrary to Article 47 of the constitution, was unreasonable, unprocedural and not based on any known law. It was submitted that since the interested party as the chair of Board of Director, of the 1st respondent was the boss of the 3rd respondent, there was apparent bias more so, reflected in the subsequent request by the 3rd respondent to the Kenya National Examination Council to clarify the statement of examination results for the applicant just to ensure the applicant is disqualified and an indication that the 3rd respondent was acting under the direction of the interested party.

129. Reliance was placed on Section 7(2) of the Fair Administrative Action Act. Accordingly, it was submitted that the 3rd respondent acted in breach of legitimate expectation of the applicant that the petition would be heard and determined in an impartial manner. Reliance was further placed onRepublic vs National Police Service Commission Exparte Daniel Chacha Chacha [2016] e KLR.The case of Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others [2013] e KLRon impartiality in decision making being key otherwise the entire process would be void was also relied on. Citing Zacharia Wagunza & another v Office of Registrar, Academic Kenyatta University & 2 others [2013] it was submitted that impartiality is necessary to retain confidence in the administration of justice.

130. The applicant therefore urged the court to grant the orders sought with costs.

The Respondents’ joint submissions

131. The respondents filed their written submissions on 29th March 2017 reiterating their depositions in the replying and supplementary affidavit sworn by the 3rd respondent and represented by Mr Milimo advocate who adopted their affidavits and written submissions. Mr Milimo orally submitted in contention emphasizing that the 3rd respondent has the power to participate in the determination of issues relating to a company and more so, in elections of the 1st and 2nd respondents because he is the one to appoint the presiding officers at elections. That as the Company Secretary for the Kenya Tea Development Agency MS Ltd and the member companies, he is tasked with the duty of ensuring that the companies adhere to the Companies Act and the Memorandum and Articles of Association of the Companies, as per his annexed job description and the Board Manuals.

132. It was submitted that a company and its stakeholders have their contractual relationship anchored in their contractual documents. The case of Abdirahman Afhi Abdallah vs Osupuko Service Station Ltd & another [2012] e KLRwas relied on in submitting that the alleged dispute has no statutory underpinnings whatsoever.

133. It was submitted that Article 2 of the Articles of Association expressly stipulates that the 3rd respondent is to appoint presiding and Returning Officers, whereas Clause 2. 2.9 of the Management Agreement between the 2nd and 1st respondent vests the 1st respondent with power to ensure that all obligations imposed on the 2nd respondent by the Memorandum of Agreement/Association are carried out and that the Management Agent appointed the 3rd respondent as Company Secretary to undertake the mandate of ensuring that there is s compliance with the Companies Act, other statutes and the Memorandum and Articles of Association of the Companies in question hence the Company Secretary qualifies to sit and deliberate on any contravention of the Memorandum of Agreement/Association and prescribe guidelines on how to correct such contravention as per the Memorandum of Agreement/Association.

134. In addition, it was submitted that the 3rd respondent was not determining an election petition but was determining whether the exparte applicant had complied with the provisions of the Memorandum and Articles of Association of the 2nd respondent company.

135. That albeit the 3rd respondent works hand in hand with the Board of Directors, he is required to act independently, giving independent guidance to the Board of Directors and therefore he does not owe any allegiance to any personal director but to the company, as was settled in Panorama Development Caulford Fidelis Furnishing Fabric Ltd cited by Kariuki Muigwa in his paper: “The Company Secretary as a Compliance Leader- Maintenance of Global Standards.”

136. According to the respondents, all respondents are private persons sued in their private capacity, counsel for the respondents then set out 4 issues for determination namely:

137. Whether this court has jurisdiction to entertain this suit. On this issue it was submitted that the applicant’s grounds challenge the internal management of the 1st and 2nd respondent companies and that it is the duty of the Management Agent, Kenya Tea Development Agency (MS) Ltd and the Company Secretary to ensure compliance with statutory and other provisions of the Memorandum of Agreement/Association of the 1st and 2nd respondents.

138. It was submitted that the decision to disqualify the applicant from holding the position of director is a management function guided by the provision of the Articles of Association and the work of the Company Secretary is to ensure compliance with such Articles and Memorandum of Agreement of the companies, being his contractual function/engagement hence courts cannot interfere and micromanage such internal functioning of the company.

139. It was submitted that the Board of Governance Manual 2015 grants power to the Company Secretary to deliberate on the qualifications of the exparte applicant to act as director.

140. Counsel submitted that this court was being called upon to pierce the corporate veil without the exceptions of the rule in Salomon v Salomon having been exuded: Reliance was placed on Sultan Hasham Lalji & 2 Others vs Ahmed Hasham Lalji & 4 Others [2014] e KLR where the court held, inter alia, that the court will not interfere with the internal management of companies acting within their power and in fact, has no jurisdiction to do so.

141. It was submitted that when the complaint was made against the applicant on his academic qualifications, it was addressed to the 3rd respondent and that there being no other competent office to handle the issue regarding qualifications of a sitting director, the 3rd respondent had to ensure compliance with the instruments governing the qualifications by invoking the relevant provisions and notifying the applicant on the provisions of Articles 88(2), 104 (a)(a and 105(a) and so he never acted ultra vires.

142. It was submitted that the applicant was accorded the opportunity to be heard on the challenge to his ‘O’ level qualifications hence there was no breach to the procedure adopted. This court was urged not to be enticed by the applicant to disregard precedent and or interfe with internal management of a company.

143. On the second issue of whether this court can issue the orders sought against private persons such as the defendant herein, it was submitted that the order of prohibition does not issue to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of proceedings. That an order of prohibition is powerless against a decision which has already been made before such an order is made. Reliance was placed on Kabararwa Clan v Kirawi Clan [2016] e KLR.

144. It was also submitted that prayers 8 and 9 of the motion are for mandamus which cannot issue because the Annual General Meeting has already taken place hence the prayers are overtaken by events and that placing the name of the director before an Annual General Meeting is not a public duty imposed by statute hence it cannot issue.

145. On prayer 9 which seeks to compel the 1st respondent to allow the exparte applicant to undertake his duties as a Board Member of the 1st respondent, it was submitted that this is not a public duty imposed by statute. That Board Members must qualify to be directors not to impose themselves as directors of a company to advance their personal interests.

146. On prayers 6 and 7 seeking prohibition to advertise the position of director, it was submitted that the position was already advertised hence prohibition can only issue in a continuing exercise not that which has already taken place.

147. On prayer 7 it was submitted that the Annual General Meeting having taken place, the prayer is overtaken by events hence the order if granted shall be in vain.

148. On whether the action by the respondent private persons can be subject to Judicial Review, it was submitted, relying on JSC vs Mbalu Mutava &Another [2015] e KLRthat administrative justice in public administrative is concerned with control of the exercise of administrative powers of state organs and statutory bodies in execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations.

149. Accordingly, it was submitted that Judicial Review orders sought do not apply to all and sundry but only issues to persons conducting public administration.

150. In this case, further reliance was placed on A. Ramaiya, a guide to the Companies Act, 16th Edition 2004 pages 2607 and 2624where it was stated that such a dispute as this could only be instituted in an ordinary civil court.

151. On the 3rd issue of whether the 3rd respondent acted ultra vires in declaring the exparte applicant unqualified to be a director of the 2nd respondent, it was submitted that the 3rd respondent derives his mandate from the Companies Act, Certified Public Secretaries Act, his job description, the Board of Governance Manual, Kenya Tea Development Agency Factory Director’s Code of Conduct; Management Agreement; Management of Agreement of the 1st and 2nd respondents it was submitted that the only person who could make a decision on whether a NINE(9) FAIL was a qualification was the 3rd respondent and not any other person hence the 3rd respondent did not act ultra vires.

152. On the 4th issue of whether the exparte applicant was granted on opportunity to argue his case in a fair manner as per Articles 47 and 50(1) of the Constitution, it was submitted relying on the case of Judicial service Commission vs Mutava Mbalu & Another, (supra) where the Court of Appeal held, inter alia, that the right to a fair administrative action under Article 47 is a distinct right from the right to a fair hearing under Article 50(1) because Fair Administrative Action refers broadly to administrative justice in public administration, and concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations. The right to a fair administrative action, though a fundamental right, is contextual and flexible in its application and as Article 24(1) provides can be limited by law. Fair hearing in Article 50(1) as the test stipulates applies where any dispute can be resolved by the application of the law and applies to proceedings before a court or, if appropriate, another independent and impartial tribunal or body.

153. The court in the above case stated that fair hearing as employed in Article 50(1) is a term of art which exclusively applies to trial or inquiries in judicial proceedings where a final decision is to be made through the application of law to facts, which right cannot be limited by law or otherwise.

154. It was therefore submitted that the impugned decision is not an administrative action envisioned by Article 47 of the Constitution and neither would Article 50(1) of the Constitution on the right to fair hearing apply. Further reliance was placed on the case of Gladys Boss Shollei vs Judicial Service Commission & Another [2014] e KLRciting with approval Selvarjan v Race Relations Board [1976] ALL ER 12 at 19 where it was held inter alia that fairness depends on the nature of the investigation and that the investigating body is a master of its own procedure. It need not hold a hearing. It can do everything in writing it need not allow lawyers.

155. On the test of bias, reliance was placed on Magil & Porter Magil vs Weeks [2001] UKLI67where it was held inter alia, that the question is whether a fair minded and informed observer, having considered the facts would conclude that there was a real possibility that a tribunal was biased.

156. It was submitted that in this case the applicant was given an opportunity to present his case and he did so in writing elaborately leading to an irresistible conclusion that he was getting concrete legal counsel hence there was no need to allow him to be represented by an advocate as the proceedings were not akin to a criminal proceeding and that in any event the Court of Appeal has clarified in which kind of proceedings Article 50 of the Constitution which gives the right to legal representation would be applicable and which the proceedings conducted by the respondents is not. Further, that no prejudice was shown by failure to be represented by an advocate.

157. Further, that the applicant only alleged bias but never established it since the 3rd respondent acted independently without owing any allegiance to any particular director but to the company.

158. The respondents then submitted responding specifically to the submissions filed by the applicant’s counsel and authorities and supplementary affidavit filed on 9th March 2017 and reiterated what he had raised in his earlier submissions adding that the latter affidavit was misguided as there were no contempt of court proceedings placed before the court for determination.

159. Finally, Mr Milimo submitted that should this court grant the orders sought then the court should invoke Section 11(1) (e) of the Fair Administrative Action Act, 2015 in exercise of its unfettered discretion to remit the matter back to the respondents for re-consideration with or without directions in view of the complaint on academic qualifications of the applicant which must be dealt with or processed since it is not in the public interest to leave a question of academic qualification hanging otherwise the applicant will claim to be untouchable.

160. Counsel also submitted that as these proceedings were not heard and determined within 90 days which is mandatory, the court lacks jurisdiction to hear it hence all these proceedings are null and void since there is no provision for extension and if the provision causes injury to the party, the recourse is to amend the law through Parliament. Reliance was placed on the case of Evans Kidero vs Ferdinand Waititu. Counsel urged the court to dismiss the applicant’s case with costs to the respondents.

The interested party’s submissions

161. The interested party filed written submissions on 23rd May 2017 and the same were highlighted by Mr Kibicho advocate opposing the exparte applicant’s motion.

162. The interested party restated the depositions in his replying and supplementary affidavits while entirely adopting the submissions filed and canvassed by the respondent’s counsel Mr Milimo.

163. Mr Kibicho maintained that what the respondents did were not public duties but duties performed in accordance with the contractual obligations out of the Articles of Association of a private company which has no public duty hence Judicial Review cannot apply to a private company. Reliance was placed on JR 32/2014 Republic vs. Kamp, Prisk Exparte Nakuru Municipality Pubs, Bars Restaurants and Hotel Owners Association JR 32 of 2014 [2015]EKLRwhere the court held that the remedy of prohibition cannot lie against the respondents who were private companies with no public duty as they owed their duty to their contracting parties. A similar holding was reached in JR 483 of 2013 Jocinta Wanjiru Raphael v DCI Makadara &Another [2014] eKLRwhere it was held that mandamus sought could not issue against the 2nd respondent which from its very name seemed to be a limited liability corporation.

164. Accordingly, it was submitted that the prayers of mandamus directed at the 1st and 2nd respondents which are private companies cannot avail to the applicant as there is no identified public duty which the respondents were mandated by statute to perform for the exparte applicant. Further reliance was placed on Kenya National Examinations Council v Republic Exparte Geoffrey Gathenji Njoroge &9 others [1997] eKLR. Where the court stated that mandamus issues to compel a public body to perform its statutory duty where such public body has refused to do so, and that only certiorari can quash the decision already made in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.

165. The interested party maintained that the Election Manual for KTDA Managed Tea Factory Companies Directors nominees and Buying Centre Committee Members 2011/2012 provided that complaints arising prior to the issuance of election notices and release of prequalified candidates would not stop elections but would be considered after election and that they would be made to the company Secretary and that Article 86 (g) of the 1st respondent’s Articles of association empowers the 3rd respondent to oversee the election of directors hence there is no merit in the applicant’s application and allegations that the 3rd respondent acted without jurisdiction.

166. On the allegations that the 3rd respondent acted ultavires in removing the applicant from the position of director, it was submitted that the 3rd respondent never removed the applicant from being director but only determined the petition presented to him by the interested party and 2 others and that therefore the 3rd respondent only stated his fin dings in accordance with Article 88(2) of the Articles of Association of the 2nd respondent with regard to the minimum educational requirements for directorship. Further, that the 3rd respondent only declared the relevant provisions of the Articles of Association on the qualifications of the applicant which cannot be said to be a removal of the applicant from being director.

167. It was submitted that the moment the applicant ceased being qualified to vie for directorship, then he automatically vacated office as stipulate in Articles 104(a)a 105 (a) of the Articles of Association which deals with disqualification of directors of the 2nd respondent company and which was invoked by the 3rd respondent.

168. The interested party maintained that the applicant was not removed but disqualified by his failure to possess the requisite minimum educational qualifications and therefore he could no longer hold office of director for want of qualifications hence he could not be placed as a candidate for election into the directorship of the 1st respondent Company.

169. It was further submitted that the applicant as a shareholder of the 2nd respondent is bound by the mandatory provisions of the Articles of Association thereof and the procedures laid therein. Further, that the 3rd respondent derived his power to direct and oversee the elections of directors from Article 88(g) of the Articles of Association of the 1st Respondent and the power to handle election petitions is derived from the Election Manual of KTDA.

170. Counsel reiterated that section 139 of the Companies Act deals with resolutions to remove directors from office and that subsection 6(b) thereof stipulates that the section does not limit any power to remove a director that may exist apart from that section. It was also submitted that the provision cited by the applicant does not take away the power of the 3rd respondent to handle complaints arising from nomination process or to communicate the result of any decision making from that.

171. It was submitted that all communication by the board of Directors is done by the Company Secretary and that in this case the Company Secretary acting in the capacity of director of Elections communicated to the applicant on the latters’ ineligibility to continue holding office of director, so that a fresh exercise of nominating and or electing director could commence, so that he can notify the Registrar of change of directors in accordance with section 138 of the Companies Act, to avoid penal consequences.

172. On the applicant’s submission that the Companies Act does not provide for the 3rd respondent to determine such disputes, it was submitted that the Companies are entitled to carry out such functions through internal mechanisms in accordance with the Articles of Association and Elections Manuals.

173. On whether the applicant was accorded a fair administrative action, it was submitted that he was accorded an opportunity to ventilate his response to the allegations levelled against him that he had no minimum academic qualifications to hold office of director and reasons given. Reliance was placed on the case of CA 50 of 2014 Judicial Service Commission v Gladys Boss Shollei &Another [2014] eKLR.It was submitted that there was no trial or taking of oral evidence so the issue of cross examination and legal representation did not arise in this case especially where he did not ask for such.

174. The interested party also submitted that the 3rd respondent is not a public officer but a Company Secretary of the two private companies and that the decision made was not for public consumption but for the benefit of the 1st respondent company.

175. On the allegations that the 3rd respondent was biased, it was submitted that the question of educational qualification could not have been decided otherwise than in accordance with the Articles of Association hence the issue of impartiality on the part of the 3rd respondent does not arise. Further, that a NINE FAIL does not constitute an ‘O’ level qualification. Further, that to date the applicant has never supplied his ‘O’ level certificate to demonstrate that he qualified in accordance with the Articles of Association. In addition, it was submitted in contention that a different umpire in similar circumstances would have arrived at the same decision as the 3rd respondent did in this case.

176. It was further submitted that the application seeks to attack the merits of the decision and not the decision making process and that no grounds for grant of judicial review remedies have been proved.

177. That the applicant had come to court with unclean hands hence he does not qualify to be issued with the orders sought and that what he seeks from this court is to be installed as director of the 2nd respondent despite his lack of qualification as stipulated in the Articles of Association of the Company, which this court should resist. The court was therefore urged to dismiss the application by the applicant.

178. In rejoinder oral submissions by Mr Kanjama, he maintained that the Companies Act stipulates who has the authority to appoint and remove directors and that under Memorandum and Articles of Association of the 1st respondent, Articles 86-89 thereof, it is the shareholders at the Annual General Meeting.

179. It was submitted that the applicant having served as director for 12 years, he could not be held to be unqualified to hold office of director in the subsequent elections and that any degree qualification as possessed by the applicant was above the O level qualification hence he qualified in all aspects.

180. It was submitted that Article 86 (b) of the Articles of Association is clear on the role of the 3rd respondent which is to appoint and direct returning or presiding officers not to hear election petitions.

181. That the issue of qualifications were to be dealt with in accordance with nomination rules of the parent company by a dispute resolution committee comprising 7 members which should have been set up.

182. Mr Kanjama maintained that the rules provide for personal appearance and that section 4(4) of the Fair Administrative Action Act is clear that the administrator shall accord the person an opportunity to be heard in person.

183. On jurisdiction, it was submitted that the applicant never conceded the jurisdiction of the 3rd respondent, and that he contested it.

184. It was also submitted that the Shollei case was not relevant as the facts and issues were different

185. On necessity for legal representation, it was submitted that election rules and the Fair Administrative Action Act are clear and that in this case lawyer was necessary to persuade the 3rd respondent

186. On the timelines for hearing and determining this case, it was submitted that the Evans Kidero vs. Ferdinand Waititu case relates to timelines for filing of the petition and not for hearing and determining of the case once filed and that the court is seized of the power to extend time to determine a matter

187. On the alleged attack on the merits of the case and not procedure, the applicant’s counsel relied on sections 8 and 4 of the Fair Administrative Action Act and the Ridge and Baldwin Case and submitted that procedure includes abuse of discretion and that merits unsupported by evidence is a sign of bias.

188. It was submitted that where the decision is illegal or unreasonable the court can quash the decision. It was also submitted that this case is government by both contract in terms of Articles of Association and law which is the companies Act, the Fair Administrative Action Act and the Constitution.

189. On the powers of the court, it was submitted that the last prayer in the notice of motion is clear that the court can grant any other orders to implement its orders as per Articles 47, 50, 159 of the Constitution and section 11 of the FAIR Administrative Action Act in order to stop violation of the law. Counsel urged the court to allow the motion and make clear directions on the election of the applicant.

DETERMINATION

190. I have considered all the foregoing and in my humble view, the following issues flow for determination, as discussed one by one:

a. Whether Judicial Review Remedies sought in this case by the exparte applicant lies against private entities or persons who are not exercising or performing public duties.

191. The respondents and interested party maintained that case law cited is clear that judicial review remedies only lie against public entities that have a statutory public duty towards the applicant. Article 47 of the Constitution provides that (1) every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given reasons for the decision.

192. Section 2 of the Fair Administrative Action Act, 2015 defines administrative action to include (1) powers, functions and duties exercised by authorities or quasi -judicial tribunals; or (11) any act or omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

193. In addition, Section 3 of the Act states that the Act applies to all state organs and non-state agencies including any person exercising administrative authority; performing a judicial or quasi-judicial function under the Constitution or any written law; or whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.[emphasis added].

194. The respondents and interested parties contend that they are private entities hence Judicial Review remedies cannot lie against them. I disagree. Judicial Review remedies have now been elevated from the traditional prerogative orders to constitutional remedies for violation of fundamental human rights and freedom under the Bill of Rights.

195. The right to administrative action is now a fundamental human right guaranteed by Article 47 of the Constitution and as implemented by the Fair Administrative Action Act, 2015, which clearly stipulates that the Act applies to both state and non-state agencies.

196. Under Article 20 of the Constitution, the Bill of Rights and therefore the right to fair administrative action, like all other human rights stipulated in the in the Constitution applies to all law and binds all state organs and all persons without exception. It follows that the respondents herein, in so far as they were exercising administrative authority and make decisions that affects legal rights or interests of other persons including the applicant who claims that his right to fair administrative action was violated, are bound by the provisions of the Act and the stipulations in the Bill of Rights under the Constitution.

197. That right, however, to administrative action as guaranteed under Article 47 of the Constitution , is distinguishable from the right to a fair hearing stipulated under Article 50(1) of the Constitution as settled in the JSC vs. Gladys Shollei case. Whereas the right to fair administrative action may be limited by statute, the right to a fair hearing cannot be limited as stipulated in Articles 24 and 25 of the Constitution and illuminated in the JSC vs. Gladys Shollei case.

198. The cases referred to by the respondents and interested party, including JR 483/2013 Jacinta Wanjiru Raphael vs DCIO Makadara & 2 Others (supra); JR 32/2014 Republic vs Kamp, Prisk Exparte Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association (supra); Kenya National Examination Council vs Republic exparte Geoffrey Gathenji Njoroge & 9 Others [1997] e KLR where it was held, inter alia, that the remedies of Judicial Review lie only against public bodies not private entities and that therefore the complaint by the applicant herein should have been lodged before the ordinary civil court for determination of the issues raised, though useful but were decided before the Fair Administrative Action Act, 2015 which became operational on 17th June, 2015 was enacted and or operationalized. The provisions of Article 47 of the Constitution which are broad and the past judicial pronouncements on this issue of whether judicial review orders can issue against private entities must therefore be read in line with the implementing Act.

199. Article 165(6) of the Constitution vests the High Court with jurisdiction to Supervise Subordinate courts, any person, body or authority exercising a judicial or quasi –judicial function and the court may, under Article 165(7) call for the record of any proceedings before any subordinate court or person, body or authority referred to in Clause (6) and may make any order or give any direction it considered appropriate to ensure fair administration of justice.

200. The only question would be whether the Judicial Review orders sought herein are available to the applicant, and that is an issue that this court will endeavor to resolve.

201. The right to fair administration action that is expeditious, efficient, lawful and reasonable and procedurally fair is no doubt guaranteed in Article 47 of the Constitution as implemented by the Fair Administrative Action Act, 2015.

202. The Fair Administrative Action Act, 2015 defines an administrative action to include:

i. “The powers, functions and duties exercised by authorities or quasi judicial tribunals or

ii. Any person, body or authority that affects the legal rights or interests of any person to whom such action relates.”

203. The term “administrative” on the other hand is defined as:

a. A person who takes an administrative action or who makes an administrative decision.

204. The Fair Administrative Action Act contemplates redress by way of Judicial Review as a way of enforcing the right to fair administrative action under Article 47, and not enforcement of contractual obligations between private entities. This is so, considering the remedies available under Section 11 of the Act which include:

1. Any order that is just and equitable including

a. Declaring rights of the parties in respect of any matter to which the administrative action relates;

b. Restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;

c. Directing an administrator to give reasons for the administrative action or decision taken by the administrator;

d. Prohibiting the administrator from acting in a particular manner.

e. Setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;

f. Compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right.

205. From the above provisions of the applicable law, it is clear that first and foremost, mandamus as a Judicial Review remedy cannot issue against a person, body or authority not exercising a public duty owed in law.

206. Accordingly, I find and hold that the Fair Administrative Action Act has enlarged the parameters for grant of judicial review remedies such that private individuals or entities can be called upon to account for their administrative actions and or failures.

b. The second issue for determination is whether this court is devoid of jurisdiction to hear and determine this matter for reasons that the provisions of the Fair Administrative Action Act, 2015 at section 8 stipulate that proceedings commenced under the Act shall be heard and determined within 90 days from the date of filing, and that as this matter has not been determined within the said period of 90 days, it is void.

207. In answering this question, I am alive to the provisions of Section 8 of the Fair Administrative Action Act, 2015 which stipulates that an application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application. The respondents and interested party urged this court to find that its jurisdiction had lapsed in view of the above provisions.

208. This issue of jurisdiction of the court on matters which are beyond the stipulated period for determination, other than election petitions was the subject of JR 502 AND 503 OF 2016, REPUBLIC VS THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD, KENYA POWER &LIGHTING COMPANY LIMITED EXPARTE KLEEN HOMES SECURITY SERVICES LIMITEDwhere this court pronounced itself that Parliament which represents the will of the people could not have intended to legislate to take away discretion of the courts and to cause an injustice to the people who have delegated their sovereign power to it to legislate, by taking away the role of the court in case management.

209. The cases cited in extensor by the respondents concern election petitions whose timelines are not only stipulated by the Elections Act but by the Constitution at Article 87 (1) of the Constitution and with a historical background to it that in the past constitutional dispensation and before the 27th August 2010 effective date of the 2010 Constitution, election petitions used to drag in court until the next election thereby defeating the very purpose for which the petitions challenging elections were lodged. The same cannot be for the persons seeking judicial review of administrative actions.

210. Article 87 (1) of the constitution empowers Parliament to enact legislation providing for timely determination of electoral disputes. The elections Act stipulates that election petitions must be heard and determined within 6 months from the date of filing. And with regard to presidential petitions, they are to be heard and determined in 14 days from date of filing. I therefore in adopting my own decision and applying the decision in the case of Republic Vs. Public Procurement Administrative Review Board &Another Exparte Selex Sistemi Integrati [2008]eKLR by Nyamu J and find and hold that this matter is not void by virtue of the determination coming after the 90 days stipulated in section 8 of the Fair Administrative Action Act. 2015. A matter which is filed within the stipulated statutory timelines unless it is an election petition cannot be void for reasons that the determination by the court has not been rendered within 45 of 60 or 90 days. This court appreciates that the Fair Administrative Action Act is an Act of Parliament implementing Article 47 of the Constitution which guarantees the right to fair administrative action. And whereas the court appreciates that the Act was enacted with the objectives of hastening or expediting the fair administrative action; And whereas the intention of expedition, efficiency, lawfulness, reasonableness and procedural fairness must be appreciated if fair administrative action is to be achieved, I doubt that the legislature could have intended to give the remedy with one hand and remove it with another by the stifling the court with strict timelines for determination of such disputes.

c. The third issue for determination is Whether the 3rd respondent had jurisdiction to hear and determine an election Petition relating to election of directors, and therefore whether the 3rd respondent acted ultra vires or whether he abused his powers or usurped jurisdiction of the Board in making determination

211. The applicant asserted that the 3rd respondent had no power to disqualify the applicant from office of director and or to ask him to vacate office of the director because the applicant was an elected director by shareholders and that only shareholders had the power to remove him from office in accordance with Articles of Association of the 2nd respondent Company. The respondents and the interested party contended that there was no disqualification or removal of the applicant from office by the 3rd respondent, but that the 3rd respondent being charged with overseeing of election of directors and implementer of the Companies Act and the Articles of Association of the 1st and 2nd respondents was under a duty to seek clarification from Kenya National Examinations Council (KNEC) and communicate the position to the applicant.

212. In my humble view, the letter written by the 3rd respondent communicated the status of the applicant as director following verification of his academic qualifications by the KNEC and therefore the communication was not a removal of the applicant but a pronouncement on the requirements under Articles 88(2), 104 (a) (a) as read with Article 105 (a) of the Articles of Association of the 2nd Respondent Factory Company which binds the applicant.

213. Therefore, on whether the 3rd respondent had jurisdiction to hear and determine the petition filed by the interested party and two others, the nature of the dispute raised by the interested party and 2 others during the nomination period for Zone 4 directors, it required the 3rd respondent as the Company Secretary responsible for implementation of the Tea Act and the Companies Act as well as the Articles of Association of the 1st and 2nd Respondent Companies and overseeing elections, as per his job description, to write to the Kenya National Examinations Council (KNEC) seeking clarification of the applicant’s “O” level qualifications if any. It was not for the 3rd respondent to determine the qualifications of the applicant, as the qualification was determined by KNEC which declared that the applicant had a fail 9(NINE) in his ‘O’ level education.

214. This court is unable to find that the process conducted by the 3rd respondent on behalf of the 2nd and 1st respondents involved a process leading to the removal of the applicant as a director as stipulated in Article 89 and 90 of the Articles of Association of the Company but that the 3rd respondent having received communication from KNEC to the effect that the applicant had failed in his O level examinations, it was necessary to seek a response from the applicant on the revelations by KNEC. Therefore, a communication after satisfying himself that Articles 104 (a)(a) and 105 of the Articles of Association had taken effect in view of the confirmation by KNEC that the applicant had failed in his ‘O’ level examinations cannot be equated to a process requiring a full trial, legal representation and cross examination of those who had written to the 3rd respondent complaining that the applicant did not meet the minimum ‘O’ level academic qualifications required for one to vie for directorship in the Factory Company.

215. Although the applicant claims that he had a degree and pre degree qualifications, a degree and pre degree qualification was subject to the ‘O’ level qualification and therefore where it is clear that the applicant had failed in his O level as opposed to getting a low grade, and as the applicant had no academic qualifications by virtue of his FAIL in his O level examinations, he could not have simply done a pre-university examinations and gained entry into a degree Programme. That would be a mockery to academic qualifications and amounts to an overt academic dishonesty.

216. The applicant did not produce his O level certificate or other relevant or equivalent qualification, for purposes of evaluation by the Evaluation Committee to exercise their discretion whether to accept the O level or the degree or other qualification besides the O level qualification.

217. In this case, Section 4 of the Tea (elections) Regulations 2005 contemplates academic qualifications for one to be a director of a Tea Factory Company. However, the Articles of Associations of the 1st and 2nd respondents at Article 88(2) stipulates that for one to qualify to vie for directorship in the company, one must have, among others, a minimum of ‘O’ level qualification.

218. Albeit the exparte applicant claimed that he had served for over 12 years as director with his ‘O’ level qualifications which had never been questioned after he requested the Kenya National Examination Council to write to the Company, and that in this case the respondents and interested party were malicious for seeking clarification from KNEC, I find that the applicant has not demonstrated that during the previous tenure, his ‘O’ level minimum qualification was subjected to any form of vetting to establish whether it was a qualification. In my view, the applicant served as a director in default.

219. In addition, this court wonders why the applicant never submitted his ‘O’ level certificate for verification with Kenya National Examination Council to determine whether it was genuine or whether it was a qualification. This is because the applicant only wrote to KNEC asking them to write to the Company to verify his results. In my view, a result is not necessarily a qualification. A result could be a report but a qualification must be accompanied by a certificate of such qualification which the applicant herein lacks.

22. In my humble view, the clarification sought by the 3rd respondent following the petition by the interested party and others was in order and cannot under any imagination be attributed to malice, bias or acting at the behest of the interested party who was his boss.

221. Further, albeit the applicant claims that he has a post graduate degree and therefore the ‘O’ level minimum qualification would not matter, I disagree. The company is governed by the Companies Act and its Constitution is the Memorandum and Articles of Association. If the Articles of Association clearly stipulates at Article 88(2) that the candidates required a minimum qualification of ‘ O’ academic qualification level then the applicant cannot demand that irrespective of whether or not he had any ‘O’ level qualification, he was qualified to vie as a director because he had higher qualification beyond ‘O’ level or that because he had served as a director for over 12 years without his O level qualifications being questioned. The fact that one’s qualifications had never been questioned is not a license to that person to plead estoppel where it is discovered subsequently that in fact, the company was under mistaken belief that the applicant had such qualifications. An oversight on the part of the respondents cannot be used to create a legitimate expectation. There is no right to an entitlement where there is breach of the Articles of the Company.

222. In this case, I must clarify that there was no removal of the applicant as director by the respondents. After his election in accordance with the election manual which prohibited stoppage of elections on account of an objection or petition pending, the applicant would then proceed to submit his candidature for election at the Annual General Meeting as the director for the 1st respondent. It is at that stage that he faced an obstacle upon clarification from Kenya National Examination Council that he had attained a 9 (NINE) FAIL which the 3rd respondent found not to be a qualification, and communicated to him.

223. What the 3rd respondent did, in my humble view, as the Group Company Secretary, was to communicate to the applicant the stipulations in Article 88(2) of the Articles of Association, and the fact that under Article 104 (a)(a) as read with Articles 105(a) of the said Articles of Association, the applicant automatically stood disqualified from being a director of the 2nd respondent and therefore he had to vacate the office of director.

224. It should be noted that the statement of Examination Results submitted by the Kenya National Examination Council on the request by the applicant did not stipulate that A NINE (9) was a fail until the 3rd respondent sought the clarification.

225. It is the Kenya National Examination Council that declared that the applicant had failed in his ‘O’ level examinations and in my view, that is why no certificate was issued to him.

226. The applicant referred to the Election of Tea Factory Company Directors Nominees Members procedure -2015/2016 annexed to his further supplementary affidavit filed in court on 1st December 2016 and claimed that the procedure established for resolving election petitions was not followed by the respondents who had no mandate to hear and determine an Election Petition against him. A closer look at the annexed procedures show that they specifically refer to elections which were to be held in January 2016.

227. In this case, no procedures for the October 2016 elections were provided. On the other hand, the notification for candidates to submit their applications for the Kenya Tea Development Agency Holdings Director Position for Zones 2,4,7 and 8 which were coming up for rotational cycle was for October 2016. The notice was issued by the 3rd respondent company Secretary in September 2016(Annexture PTK 3’ is the notification for zone 4.

228. Even assuming that the procedures referred to above applied to elections which were scheduled for October 2016 which is not the case here, at page 3 paragraph 7 states that “where the condition in the notification for candidature, refers to ‘O’ level or other professional qualification as a requirement, the original certificates(s) must be been and a copy of the same retained. The applicant has not demonstrate that he presented his original certificate or other professional qualifications, a requirement which was mandatory. Paragraph 8 states: “ in the unlikely event that one has lost his certificate(s) he must apply for the replacement certificate/confirmation from the relevant examining body and the original receipt supporting such application submitted to the FUM/Company Secretary.”Paragraph 10 states: A candidate will not be acceptable in the absence of such proof.”At page 12 thereof is Complaints/Dispute Appeals Resolution Rules which provide that a committee shall be appointed by the Managing Director of the Managing Agent, comprising of a Chairman, Secretary and at least seven(7) members and the quorum shall be 4, to receive complaints Disputes/petition/appeals out of the pre-qualification verification exercise carried out.

229. At paragraph 8, just to demonstrate that those Rules or procedures are not for general application but were specific to the 2015/2016 elections, it is provided as follows: “8: The committee shall sit between 13th and 15th December 2015and conclude its business within the two days to enable the preparation and printing of the ballots for the nomination elections.”

230. At paragraph 12, it is provided that, “The decision of the committee shall be in writing and shall be communicated through the Factory Unit Manager from the Factory Company that the complainant/disputant /appellant has applied from such decisions shall be prepared and sent not later than 15th December 2015. ”

231. On Dispute/Complaint/Petition/Appeal – Requirements, at paragraph 4 page 13 of the procedures, it is stated:

“In the event that the issue is in respect of lack of submission of required documents, Original “O” level qualification certificate. The petitioner/disputant/appellant must attach the original certificate (Regional Manager will attest that the original certificate has been seen by him and attach a copy duly stamped with the stamp of the Regional Manager .A Petition/dispute/appeal in respect to (4) above without the documents mentioned therein attached shall not be entertained.”

232. I reiterate that the above procedures are not applicable to the elections which took place in October 2016 and which gave rise to these proceedings as they are specific as to the period that they related. The applicant did not produce any rules or procedures for the 2016 October elections which he claims were flouted by the respondents.

233. At pages 14 and 15 of the exparte applicant’s notice of motion is a document titled “Directors. It is annexed to the further supplementary affidavit and comes just after the Kenya Tea Development Agency Election of Tea Factory company Directors, Nominees and Buying Centre Committee Members –procedures -2015/2016. The document is an annexture AM1 referred to at paragraph11 of the further supplementary affidavit and thereat, the applicant deposes that:

“ According to the Articles of Association of Kenya Tea Development Agency Holdings Ltd, the 1st respondent herein, and qualified nominees are eligible for election as Directors of the Company at the Annual General Meeting and the Directors so elected shall be confirmed at the Annual General Meeting (annexed as page 15-16 of ‘AMI’ is a true copy of the relevant pages of the Articles of Association for Kenya Tea Development Agency Holdings Ltd, and also referred by the interested party replying affidavit sworn by Peter Tiras Kanyago, interested party herein and dated 27th November 2016”

234. The same document is mentioned at paragraph 16(c) of the same supplementary affidavit sworn by the applicant on 1st December 2016. In the said documents reproducing Article 86(b) of the Kenya Tea Development Agency Holdings Company, it is provided that:

“No person nominated in an electoral area specified by the company under Article 86 (c ) shall be qualified to hold the office of a Director unless-

i. ..

ii. He has attained a minimum educational or qualification equivalent to ‘O’ level

235. The applicant has annexed qualification of a bridging pre university degree and not his ‘O’ level certificate or equivalent qualification. From the clarification by Kenya National Examination Council that the applicant’s results are a NINE (9) FAIL,this court is unable to interpret that a Nine Fail result is an academic qualification of any kind and therefore it cannot be said that it is the 3rd respondent who determined that the applicant was not qualified, but the Kenya National Examination Council. It is therefore upon the applicant to challenge the determination by Kenya National Examination Council’s result of a NINE(9) FAIL, and not to claim that the respondents disqualified him from vying for directorship on account of absence of an O level qualification.

236. The wordings in Article 86(b) as annexed to the exparte applicant’s further supplementary affidavit are clear that the nominee must meet all the qualifications in (i)- (v) since the conjunctive words used are and throughout, and not or.

237. Accordingly, I find that the 3rd respondent did not act ultra vires his powers and neither did he usurp powers of the Board of Directors as the determination of the applicant’s FAIL and therefore no-disqualification was not made by the 3rd respondent but by the KNEC. I also find that the 3rd respondent as an implementer of the companies’ Articles of Association and the Companies Act had jurisdiction to receive the petition and consider it THE WAY HE DID BY seeking clarification from KNEC on the applicant’s academic qualifications, according him an opportunity to know the position held by KNEC and giving him an opportunity to respond thereto.

d. On the fourth issue of whether the 3rd respondent accorded the applicant fair Administrative Action as stipulated under Article 47(1) of the Constitution and the Fair Administrative Action Act, 2015,it is worth noting that upon the 3rd respondent receiving an email concerning the alleged or suspected lack of qualification by the exparte applicant to vie for the director’s position, he wrote to KNEC seeking clarification and wrote to the applicant notifying him of the developments and asked the applicant to respond thereto and upon receipt of the detailed response by the applicant, the 3rd respondent, after consulting several legal minds for an advisory, communicated to the applicant the official position as per the clarification by KNEC. The applicant never requested for an oral hearing on the subject, before the 3rd respondent to cross examine his accusers and or to be represented by an advocate of his choice. Furthermore, the applicant’s so called accusers never made any oral representations before the 3rd respondent. They simply raised an issue which they considered critical as it would affect the outcome of the elections on the academic qualifications of the applicant to vie for directorship of the Company.

238. In this case the court finds that albeit the 3rd respondent purported to conduct a hearing of the petition, the question of O LEVEL qualification was already determined by KNEC and therefore it was not the 3rd respondent or the interested party and others who were to determine the qualification of the applicant but KNEC which had already determined that the applicant had failed in his O LEVEL examinations. The applicant’s role was to simply communicate the statement of results to the applicant and the implications thereof, which he did.

239. The court also finds that the person responsible for the result of fail is not the interested party but KNEC whose records concerning the applicant show that he did not have any academic qualification. It follows that the person to be cross-examined as to the qualification is KNEC, and not the 3rd respondent or the interested party and two other persons who raised concerns over the applicant’s O level qualifications..

240. The court further finds that the applicant is at liberty to sue KNEC to explain how they arrived at NINE (9) FAIL which is not a qualification.

241. Further, the court finds that the interested party was not the party in possession of the evidence of disqualification of the applicant. He only raised the issue for the 3rd respondent to seek confirmation from KNEC and to communicate to the applicant which the 3rd respondent did. Therefore, Cross examination of the interested party could not have assisted the applicant get any favorable outcome as it is not the applicant or the 3rd respondent who arrived at the decision that the applicant had failed in his O level examinations.

242. In addition, there was no violation of the applicant’s right to a fair hearing stipulated in Article 50(1) of the Constitution as the 3rd respondent did not make a decision to disqualify the applicant but communicated to him the status of the alleged qualifications in line with Articles 88(2) , 104 (a)(a) and 105 of the 2nd Respondent’s Articles of Association.

243. In my humble view, this is not a case where the applicant can be heard to complain that he was not given a fair hearing or a fair administrative action as stipulated in Articles 50(1) and 47 of the Constitution respectively. The reasons are that upon the 3rd respondent receiving the clarification from Kenya National Examination Council that the applicant had a nine (9) fail at ‘O’ level and before invoking Articles 88(2), 104 (a)(a) and 105 (a) of the 2nd Respondent’s Articles of Association, since the interested party had simply raised the issue based on allegations that the applicant may not have had an ‘O’ level qualification, it was upon the respondents to establish the position and communicate to the applicant to elicit his response.

244. The 3rd respondent’s communication was based on the statement of examination results provided by Kenya National Examination Council that the applicant had a fail in his ‘O’ level examination.

245. With that result, the 3rd respondent struggled to understand whether a fail is a qualifications and hence the legal opinions that he sought and received, prior to invoking Articles 88(2), 104(a)(a) and 105(a) of the Articles of Association of the 2nd respondent company, to notify the applicant and the Chinga Tea Factory Company Ltd and zone 4 of the development ensuring following elections.

246. It is worth noting that the communication by the 3rd respondent based on the determination by KNEC that the applicant had failed is not a matter that required a hearing by the 3rd respondent but a communication to him of the statement of results by KNEC and invocation of Articles 104(a)(a) and 105(a) of the 2nd respondent’s Articles of Association, which Articles of Association clearly stipulate circumstances under which one would be unqualified as a director, and therefore vacation of office of director. The 3rd respondent nonetheless gave the applicant an opportunity to state his position on the matter upon which the 3rd respondent communicated to the applicant the official legal position as regards failure to have minimum O level academic qualifications.

247. More importantly, an examination of the documents submitted to the Company Secretary on 5th October 2016 by the applicant accompanying his application for consideration as a zone 4 representative being a Director of Chinga Tea Factory, he stated :…… The confirmation has been sent to the Company Secretary’s office from Kenya National Examination Council on Wednesday 5th October 2016 by EACL waybill No. 203348…”

248. There was no other advanced certificate or degree submitted to the Company Secretary to show that notwithstanding his NINE (9) FAIL result, he had other equivalent qualifications to vie for directorship.

249. My humble view is that the applicant is not being honest when he challenges the clarification sought by the 3rd respondent from Kenya National Examination Council as to whether NINE (9) was a qualification. This lives an irresistible impression that the applicant had something to hide all through concerning his O level Kenya National Examination Council results, and that is why he resisted the inquiry made by the 3rd respondent on 24th October 2016 to the Kenya National Examination Council to clarify whether the statement of examination results communicated is equivalent to the qualification.

250. The 3rd respondent’s letter of 24th October 2016 at paragraph 3 states that his letter of 7th January 2013 did not elicit any response and noted that two statements, one was specific that the result was a FAIL and one was silent on the same.

251. By a letter dated 25thOctober 2016, the Kenya National Examination Council wrote to the 3rd respondent stating that the statement issued on 4thOctober 2016 had typographical errors and annexed a complete statement and gave the result of 9(NINE) FAIL.

252. In my humble view, albeit the applicant received his elections certificate for zone 4 for the elections held on 28th October 2016 while the issue of his ‘O’ level qualifications was still pending, the respondents were not precluded from invoking the provisions of the Articles of Association that rendered his election null and void for want of the requisite minimum ‘O’ level qualification.

253. In my humble view, the minimum qualifications were mandatory and in the absence of any evidence to the contrary, the applicant remained disqualified to hold the position of director from the moment of discovery of the results hence the question of the respondents removing him from directorship of the company did not and does not arise.

e. Therefore, on whether the applicant was accorded a fair hearing and fair administrative action, although the applicant claims that he was not accorded a fair administrative action and a fair hearing, in his letter of 31st October 2016 of more than two pages, while claiming that the petition was not merited, he stated that he was qualified under Article 88(2) of the Chinga Tea Factory Company Ltd and gave his defence to the effect that having been cleared to contest the vacant seat together with others and having served since 2004 as director for 12 years, the petition served no validity. He claims that he had served with the interested party who all along knew that the applicant had completed his 4 years Secondary Education and that the 3rd respondent had no power or authority to nullify the declaration issued by the Returning Officer appointed by the 3rd respondent.

254. The applicant also attached certificates from: Strayer College Certificate, District Columba for Bachelor of Science, Business Administration and Degree in Arts, Marketing and Retailing; Institute of Certified Public Secretaries of Kenya; Certificate of Participation from Strathmore Business School Executive Education in Corporate Governance Executive Programme. The Degree of Associate in Arts Marketing and Retailing was obtained in 1982 whereas the Degree of Bachelor of Science Business Administration was obtained in 1983.

255. However, the applicant has not demonstrated that when he applied for the position of director, besides his ‘O’ level qualification, he also annexed his degree certificates to show that in fact, besides his O level academic “qualification”, he was more than qualified to vie for position of director.

256. That being the case, I find that the applicant did not even give the respondents an opportunity to have his degree certificates obtained outside of Kenya, after a fail in his ‘O’ level, to be vetted to determine whether they were genuine qualifications. I reiterate that the degree and associate degree were not part of the documents that he submitted to the verification committee.

257. Section 2 of the Kenya National Qualification Framework Act defines “qualification to mean “qualification in education and training as recognized by the Authority in accordance with this Act.”

258. The guiding principles for the framework under Section 3 shall be, among others, to promote access to and equity in education, quality and relevance of qualifications.

259. The applicant needed to demonstrate that the NINE (9) FAIL result is a qualification which enabled him to proceed to acquire a pre university qualification and a University Degree qualification in education and training as stipulated in section 3 of theKenya National Qualification Framework Act. This provision on the definition of “qualification” overrides the Tea Regulations Elections 2005. I am in agreement with the respondents that the Company’s Articles of Association is the constitution of the company which binds its members, the applicant included.

260. The applicant was all along aware of the minimum requirements for one to be elected as a director. He however got away with it for close to12 years and is now resisting any attempt to establish whether his ‘O’ level examination results showing a NINE(FAIL) is not a qualification for all purposes as stipulated in Article 88(2) of the Chinga Tea Factory Articles of Association. In plain words, the applicant was not a successful candidate at his ‘O’ levels. He failed his examination after attending 4 years of secondary education “ordinary level” and has got no academic qualification and was therefore not suitable, in the first instance to hold the office of a director or to pursue any other advanced professional training unless he re-sat that “o” level examinations or its equivalent and passed.

261. In Romauld James vs Attorney General of Trinidad and Tobago [2010] UK PC Privy Council Appeal No. 0112/2009, cited in Republic vs Council of Legal Education Exparte James Njuguna & 14 Others[2007] e KLR it was held, and I concur that:

“ The failure of the candidates who had gone through the Diploma course offered by the Kenya School of Law in those circumstances did not constitute a qualification for entry into the Bar”.

262. The applicant wants this court to believe and find that it was erroneous for the 3rd respondent to pronounce that the applicant was not qualified as stipulated in Article 88(2) of the Articles of Association of the Company because the applicant had other higher qualifications than the ‘O’ level.

263. As earlier stated, there was no ‘O’ level certificate annexed to show that the applicant had such minimum qualifications.

264. Therefore, as to whether the procedure was followed in disqualifying the applicant from the position of director of the 1st and 2nd respondents, I find and hold that even the procedures for 2015/2016 elections which the applicant relied on required that an original certificate must be availed. Instead, from his own evidence the applicant had all along asked Kenya National Examination Council to avail the Company Secretary his results to confirm that he had an ‘O’ level qualification. I however find that those procedures were inapplicable and the applicant did not demonstrate to court which applicable procedures were not followed in the pronouncement that he stood disqualified from holding the position of director hence he should vacate office as required by the Articles of Association.

265. Before the applicant can be heard to complain that the respondents had no power to hear and determine the petition on his “O” level qualification; that they were biased, or that they never followed procedures which are non-existent, he must come to court with clean hands. He must demonstrate that he was qualified to vie for directorship and that he was treated unfairly. He did not demonstrate as such.

266. In Robert K. Bett and David Kimutai Bett HCC102/2009 Maraga J (as he then was) held, and I concur, inter alia:

“ where the conditions in the Articles refer to ‘O’ level or other professional qualifications , he original certificate must be seen and a copy retained”. That clearly implies that the candidates had to annex to their application copies of their academic certificates ….In the circumstances, I find that the Unit Manager of the 3rd defendant was right in rejecting the plaintiff’s applications as not meeting the set requirements. Consequently I dismiss this application with costs.”

267. The above holding is self-explanatory and applies to this case.

268. On the issue of whether the 3rd respondent was impartial in his decision making, in this case, the applicant has raised a very important matter touching on the qualifications but he has not stopped there. In his detailed letter to the 3rd respondent dated 10th November 2016 he at paragraph 24 claims that the qualifications under the Articles of Association are overridden by the Tea (Elections) Regulations under the Tea Act which stipulates the eligibility issue as “O” level Education or relevant professional qualifications or management experience in a public organization and accuses the 3rd respondent of partial interpretation on just one aspect of ‘O’ level qualification which in his view, shows possibility of partisanship and against the principles of impartiality, objectivity fairness and justice and gives the impression of bias.

269. Further, that the Tea Act and Regulations thereunder are superior and override any conflicting Company Articles. In other words, the applicant was disowning the provisions of Article 88(2) of the Company’s Articles of Association but nonetheless insisted that he possessed the recognized alternative to ‘O’ level qualifications stipulated in Article 88(2) of the said Articles of Association. He also claims at paragraph 26, that he had experience as well as other professional qualifications. He however did not state Regulations for which year he was referring to.

270. I have perused the Tea (Elections) Regulations, 2005 Gazetted vide LN No. 114, made under Cap 343(The Tea Act). The Regulations at Regulation 4 on eligibility of the Board stipulates 4(1) every director of a Tea Factory Company; shall be eligible for election to the Board in accordance with the provisions of these Regulations.

No person shall be eligible to be a member of the Board if that person-

a. Is not a director of a tea factory company;

b. Is an undischarged bankrupt;

c. Is of unsound mind;

d. Has been convicted for mismanagement or corrupt practices;

e. Has been convicted of an offence under the Act;

f. Has not attained the ‘O’ level certificate of education or

g. Does not have the professional qualifications or management experience relevant to the tea sector.

271. The applicant maintains that he has the professional qualifications or management experience relevant to the tea sector. Whereas I agree that his 12 years management as director of the Tea Factory Company may have given him experience in the Tea Sector, I find that during that period, his academic qualifications had not been put into question and once his academic qualifications were put into question, therefore it was upon the applicant to demonstrate that he had the required minimum academic qualifications of ‘O’ level certificate which facilitated his acquisition of professional qualifications or management experience relevant to the tea sector.

272. In my humble view, a FAIL result in the Kenya ‘O’ level could not have facilitated the applicant to acquire professional qualifications or management experience relevant to the relevant to the tea sector.

273. As earlier stated, the applicant did not indicate which Tea(Election) Regulations he was referring to and I have just referred to the 2005 regulations above. But there is more to that.

274. In 2012, Tea ( Elections ) Regulations were promulgated and with regard to election of directors to the Tea Factory eligibility, Part IV on Election to the small holder Tea Factory Companies Regulations…….14 (1) stipulates that Board of Director shall be elected in accordance with the Articles of Association of the company and refers to Regulation 11 Mutatis Mutandis eligibility for election to the leaf Base Committee and stipulates:

a. He is ineligible under any of the provisions of regulations 5 and 6 of mutatis Mutandis.

b. He has not attained the ‘O’ level certificate of education or has no relevant professional qualification or management experience in a public organization.

275. In my humble view, the above regulations of 2012 which are the latest override the 2005 regulations referred to above. The 2012 Regulations stipulate that the minimum academic qualification is O level Certificate hence the professional qualification or management experience in a public organization can only be attained after the O level qualification as the minimum. In the end, I find and hold that there was no evidence to suggest that the 3rd respondent was biased in concluding that the applicant was not qualified to be director as per the KNEC statement of Examination results. He only communicated the crystallization of Articles 104 (a) (a) and 105(a) of the Articles of Association of the 2nd respondent which provided for disqualification and vacation of office by director who is found to be unqualified to be director.

f. On the issue of whether due process was followed or whether the applicant was denied legal representation by an advocate, the court notes that the applicant never sought audience for an oral hearing before the 3rd respondent after he had submitted his detailed write up dated 31st October 2016 and 10th November 2016 indicating that he was qualified to vie as a director of the 2nd respondent company.

276. There is nothing on record to suggest that the applicant sought for an oral hearing and was denied. In addition, this is a matter where the petitioners simply wrote to the Company Secretary to inquire into the allegation that the applicant had no O level qualification. The petitioners were not the ones in possession of the evidence that was to disqualify the applicant from being a director. They had no evidence to adduce and that is the reason why the 3rd respondent had to seek clarification from KNEC and not from the interested party and his co petitioners. The applicant’s qualification or otherwise would be determined by Kenya National Examination Council examination results and not by the 3rd respondent whose duty was to communicate that result to the applicant by invoking the relevant provisions of the Articles of Association.

277. The record is clear that previously, the Kenya National Examination Council only supplied the information on the status of the applicant’s ‘O’ level which status was later clarified to be a FAIL.

278. In my humble view, the information submitted by the Kenya National Examination Council did not require cross examination of the petitioner because the applicant has not denied that the statement of examination results submitted by Kenya National Examination Council was correct as regards his O level examination results.

279. Therefore, by the 3rd respondent writing to the applicant on 15th November 2016 notifying him of his disqualification and vacation of office, I find no malice or impartiality. The Company Secretary did so in accordance with Article 104 (a)(a)and 105(a) of the Articles of Association which stipulate that:

“The office of the Director shall be vacated if the Director. Ceases to be qualified in accordance with Article 88 herein.

In accordance with Article 87 no person shall be qualified to hold the office of a director unless-

He has attained a minimum ‘O’ level education qualification and can read and communicate in English and Kiswahili languages.

280. In the absence of evidence of the applicant’s qualifications, I find and hold that the invocation of Articles 104 (a) (a)and 105(a) of the Articles of Association of the 2nd respondent by the 3rd respondent was not ultra vires the Articles of Association of the company, which Articles the applicant is bound by.

g. On whether the orders sought are available to be applicant, I find and hold as follows:

281. The first prayer on Certiorari would not lie as the letter dated 14th November 2016 was a communication by the 3rd respondent Company Secretary on the disqualification and vacation of office by the applicant as per the KNEC statement of examination clarification report and in accordance with Articles 88(2), 104 and 105 of the Articles of Association of the 2nd Respondent Company;

282. The second Prayer on certiorari would not lie as there is no decision made by the 3rd respondent removing the applicant from position of director. The disqualification as stipulated in Article 104 (a)(a)automatically meant that the applicant had to vacate office as stipulated in Article105 (a) of the Articles of Association which Articles the applicant has not sought to be declared unconstitutional or offensive to the law and which bind him as member of the company;

283. I find that the applicant having been found to be deficient of minimum academic qualifications to vie for position of director, the advertisement of 16th November 2016 was appropriate to allow for qualified candidates to vie in fresh elections in Zone 4. therefore the prayer for certiorari to quash that communication would lot lie;

284. As the position occupied by the applicant automatically fell vacant following his disqualification under Article 104(a) of the Articles of Association, and therefore the 2nd respondent is entitled to have fresh elections to elect a director to represent it in the Holding Company, unless the applicant is appointed. Prohibition would therefore not be in the interests of the 2nd respondent’s shareholders who are entitled to elect a qualified person as director to represent them in the 1st respondent Company;

285. In view of the advertisement in (iii) and (iv) above, the 1st respondent would have no reason to appoint a director to replace the applicant, without giving the 2nd respondent’s shareholders an opportunity to elect a person of their own choice as a director in the 1st respondent holding company;

286. The court finds that there was no violation of the applicant’s right to Fair Administrative Action and or Articles 47 and 50(1) of the Constitution;

287. The court declines to compel the respondents to allow the applicant to assume office as director of 1strespondent representing zone 4 as the disqualification of the applicant is by operation of the Articles of Association of the 2nd respondents on qualifications and vacation of office of director. There is no public duty imposed on the respondents to readmit back into office a director who has been rendered unqualified and liable to vacate office by operation of the company’s Articles of Association;

288. To get back into that office, the applicant has to either be appointed under Articles 89 or 90 or to apply afresh and his documents/application be verified to determine whether he is qualified to vie for the directorship position;

289. Any other order that the court deems fair and just to grant is that the court having learnt that the applicant on leaving court after the hearing of this matter was involved in a near fatal accident, and had to be hospitalized for long, I order that each party do bear their own costs of these proceedings.

290. As most of this judgment which is fairly long owing to the detailed submissions placed before court by all the parties’ advocates, is handwritten owing to technological hitches, a typed copy thereof shall be availed to the parties as soon as the typing and proof reading thereof is completed

291. In the end, the Notice of Motion dated 1st December, 2016 be and is hereby dismissed with an order that each party do bear their own costs of these proceedings.

Dated, signed ad delivered in open court at Nairobi this 4th day of December, 2017.

R.E ABURILI

JUDGE

In the presence of:

Miss Malowa Advocate h/b for Mr Kanjama for the exparte applicant

Mr Milimo Advocate for the Respondents

Mr J.K. Kibicho Advocate for the Interested Party

CA: George