[2022] KEHC 1060 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

JUDICIAL REVIEW NO. E002 OF 2021

IN THE MATTER OF ORDER 53 RULES 1, 2, 3, 4 AND 5

AND SECTION 8 AND 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF AN APPLICATION TO QUASH THE DECISION BY THE 1ST RESPONDENT

TO APPOINT THE INTERESTED PARTY AS A DIRECTOR OF MICHIMIKURU TEA FACTORY LTD

BETWEEN

JAMES WILLY KINGORI........................................................................................................................... APPLICANT

AND

CHAIRMAN EXTRA ORDINARY MEETING OF MICHIMIKURU FACTORY LTD.............1ST RESPONDENT

REGISTRAR OF COMPANIES.......................................................................................................2ND RESPONDENT

ATTORNEY GENERAL....................................................................................................................3RD RESPONDENT

AND

MAURICE KOBIA DICKSON...................................................................................................INTERESTED PARTY

JUDGMENT

APPLICANT’S CASE

1. The Applicant’s case is that on 21st April, 2021, MICHIMIKURU TEA FACTORY LTDheld elections of directors and he was elected director of CHUIRI AREA with 570 votes with the Interested Party garnering 401 votes and he was on the same date issued with a Certificate of Election of Director.

2. CR12 which is the official document that is issued by the Registrar of Companies reveals that Applicant’s name is missing from the list and in its place is the name ofMAURICE KOBIA DICKSON, the Interested Party herein.

3. Applicant seeks an order of CERTIORARI to remove to this Honourable Court for purposes of being quashed the decision of the Registrar of Companies to remove the name of the exparte Applicant as a director of the 1st Respondent arbitrarily and without giving the Applicant audience.

4. JAMES MURUNGI M’KANAKE, the Chairman of the 1st Respondent in his replying affidavit sworn on 21st July, 2021 avers that it was the Applicant and not the Interested Party that was elected director and was surprised to learn that the name of the Applicant was missing from the list of directors.

5. On the basis of the 1st Respondent’s acknowledgement that it was the Applicant and not the Interested Party that was elected director, Mr. Odhaimbo appearing for the 3rd Respondent submitted that the Applicant’s application was not opposed.

6. Whereas there is evidence that the 3rd Respondent and the 1st Interested Party were served, they neither filed any responses nor appeared in court.

Analysis and Determination

7. I have considered in the light of the supporting affidavit, the annexures and the Responses by the 1st and 2nd Respondents.

8. Article 47(1) of the Constitution is in mandatory terms that “every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. “

9. The Constitution binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article `19(1)of the Constitutionwhich states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies. (See Kenya Human Rights Commission & another v Non-Governmental Organizaztions Co-ordination Board & another [2018] eKLR).

10. In Dry Associates Ltd v Capital Markets Authority and Another, [2012] eKLRthe Court observed;

“Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law or judicial review under the Law Reform Act (Cap 26 of the Laws of Kenya) but is to be measured against the standards established by the Constitution.”

(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) Every person has the right to be given written reasons for any administrative action that is taken against him.

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable; or

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(4) The administrator shall accord the person against whom administrative action is taken an opportunity to-

(a) attend proceedings, in person or in the company of an expert of his choice; Administrative action to be taken expeditiously, efficiently, lawfully etc.

(b) be heard;

(c) cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

(5) Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.

(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.

11. The importance of this right to fair administrative action as a constitutional right in our Article 47 cannot be over emphasized. The Court of Appeal stated in the case of Judicial Service Commission v Mbalu Mutava & another [2014] eKLR that;

“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”

12. 2nd Respondent has not explained the basis on which the exparte Applicant’s name being the one that was duly elected was substituted with the name of the Interested Party and without giving him a hearing. The impugned decision fails the test of a fair administrative action and violates the Applicant’s rights to a fair administrative action under Articles 47 of the Constitution.

13. The upshot the foregoing is that the Applicant’s Application is meritorious and I proceed to make the following orders: -

a) A declaration be and is hereby issued that the decision by the Registrar of Companies substituting the name of JAMES WILLY KINGORI with the name of MAURICE KOBIA DICKSON as Director of MICHIMIKURU TEA FACTORY COMPANY LIMITED violated the Applicant’s fundamental right to Fair Administrative Action enshrined in Article 47 of the Constitution.

b) An order of judicial review of certiorari is hereby issued quashing decision by the Registrar of Companies to register the name of MAURICE KOBIA DICKSON as Director of MICHIMIKURU TEA FACTORY COMPANY LIMITED

c)Costs of theApplication to the Application shall be borne by the 2nd Respondent.

DATED AT MERU THIS 17TH DAY OF MARCH 2022

T. W. CHERERE

JUDGE

APPEARANCES

COURT ASSISTANT MORRIS KINOTI

FOR THE APPLICANT - MR. KIMATHI FOR L. KIMATHI KIARA & CO. ADVOCATES

FOR THE 1ST RESPONDENT - N/A

FOR THE 2ND RESPONDENT - MR. ODHIAMBO

FOR THE 3RD RESPONDENT - N/A

FOR INTERESTED PARTY - N/A