[2020] KEHC 1124 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. 58 OF 2020

BETWEEN

JUDDY WAIRIMU MIRANGO........................................................................................APPLICANT

VERSUS

NON-GOVERNMENTAL ORGANIZATIONS CO-ORDINATION BOARD...1ST RESPONDENT

ASSOCIATION FOR THE PHYSICALLY DISABLED IN KENYA.................2ND RESPONDENT

RULING NO 2

1. The ex parte Applicant herein filed a Notice of Motion application dated 26th November 2020, on which directions were given as to filing of responses and submissions, for inter partes hearing today. The ex parte Applicant is seeking orders in the said application that the 2nd Respondent be restrained by way of injunction from holding the meeting convened for 10th December 2020 as per the Notice of Annual General Meeting as issued and advertised on page 25 of the Daily Nation Newspaper of 24th November 2020, and that the costs of the application be borne by the Respondents .

2. The application is supported by an affidavit and supplementary affidavit both sworn by the ex parte Applicant on 26th November 2020 and 3rd December 2020 respectively. The ex parte Applicant’s advocates on record, Onsando Ogonji & Tiego Advocates also filed submissions dated 2nd December 2020 on the application.

3. The grounds for the application are that despite this matter being sub judice,the Patron of the 2nd Respondent, h as in concert with the 1st Respondent, issued and advertised in the Daily Nation Newspaper of 24th November 202 0 a Notice of Annual General Meeting of the 2nd Respondent to be held on 10th December 2020. Further, that the Patron of the 2nd Respondent has no authority to issue such a notice or to convene an Annual General Meeting of the 2nd Respondent. The ex parte Applicant also states that the agenda of the aforesaid meeting is inter alia,to adopt a report by the chair of the caretaker committee, election of office bearers; the 2nd Respondent's Constitution, which issues are directly in issue in the present suit.

4. The ex parte Applicant therefore contends that the unless restrained by way of injunction the Respondents will unlawfully hold the aforesaid meeting, which will render this Court's Proceedings futile and render nugatory any orders issued herein. The ex parte Applicant in this respect submitted that Article 9 (c) of the Constitution of the 2nd Respondent provides that the Annual General Meeting shall be held each calendar year on a date determined by the Board, and the Patron has no powers or mandate to convene an Annual General Meeting on 10th December 20 20 or any other meeting of the of the 2nd Respondent. Further, that there is no provision in the Constitution of the 2nd Respondent for a Caretaker committee , as such the agenda item to adopt the report by the Chair of the Caretaker committee is unconstitutional.

The Responses

5. The 1st Respondent filed a replying affidavit sworn on 8th December 2020 by Mercy Cherutoh Soy, its legal officer. The 1st Respondent explained that the events leadings to the present dispute, which were triggered by an application made by the 2nd Respondent for change of officials which was received in its office on 5th October 2018, and a subsequent complaint by Mr. Fredrick Owako dated 6th September 2019 on an illegal meeting held on 16th July 2019, illegal elections of officials and an attempt to alter names of officials unprocedurally.

6. The 1st Respondent stated that it then summoned the outgoing and incoming officials for a discussion on the governance and compliance issues facing the 2nd Respondent’s Board, which meeting resolved that the opposing factions meet with the Patron of the 2nd Respondent. That at the meeting held with the Patron, a number of resolutions were made including the formation of the impugned caretaker committee. The 1st Respondent annexed copies of the notices, summons and minutes of the said meetings.

7. The provisions of Article 7(a) of the 2nd Respondent's Constitution were cited by the 1st Respondent, for the averment that the Patron of the 2nd Respondent is the overall advisor of the organization in furtherance of its operations and objectives, while the 1st Respondent’s mandate includes regulation, facilitation and coordination of the activities of non-governmental organizations, and that all it did was facilitate discussions between the warring factions.

8. According to the 1st Respondent, it is misleading and wrong to claim that the appointment of the caretaker committee was done insecret and without the knowledge of the 2nd Respondents members, and that under the Fair Administrative Actions Act, the 1st respondent cannot fail/neglect and/or refuse to accommodate valid grievances and concerns from members and proceed to engage in actions that are deemed as flawed.

9. Lastly, the 1st Respondent averred that the term of the caretaker committee has since lapsed rendering it functus officio, and therefore the Notice of Motion dated 26th November 2020 lacks merit since the same has been overtaken by events. Further, that failure to hold a proper Annual General Meeting would occasion lacunae in the governance of the 2nd Respondent and aggravate mismanagement of assets and funds, lack of sustainability, lack of donor confidence leadings to its dissolution/winding up.

10. The 2nd Respondent’s response was in a replying affidavit sworn on 7th December 2020 by Benson Kiptum, its Ag. Chief Executive Officer and Head of Programs. The deponent termed the averments by the ex parte Applicant as untrue and misleading, and stated that the meeting was convened at the instance of the 2nd Respondent’s members to solve challenges of the 2nd Respondent, though the Board whose challenges the members wanted addressed, purported to call off . Further, that the Board elected by the members of the 2nd Respondent on 10th July, 2018 was voted out by the same members on 2nd August 20 19.

The Determination

11. It is evident from the pleadings filed that the Notice of Motion dated 26th November 2020 arises from a dispute between the parties herein as regards the existence and membership of the 2nd Respondent’s Board, and which official of the 2nd Respondent is entitled to call an Annual General Meeting. These issues that are not before this Court for determination, as the ex parte Applicant’s substantive Notice of Motion dated 26th October 2020 filed herein is seeking judicial review orders with respect to the powers of the 2nd Respondent to appoint a caretaker committee. In any event the resolution of the said disputes is beyond the remit of this Court as a judicial review Court, as it involves resolving contested issues on their merit.

12. This Court will therefore have to decline the attempt to engage it in the arena of the said disputes through the orders sought in the Notice of Motion dated 26th November 2020. For the avoidance of doubt, the reasons for this Court’s decision is that the issues raised by the Notice of Motion dated 26th November 2020 are not substantive issues before this Court for determination and on which interlocutory orders can therefore issue, and secondly the Court will not only be acting in vain, but also beyond its jurisdiction in addressing the issues raised by the said Notice of Motion.

13. It is necessary at this point to mention that injunctions are normally in principle granted where there has been a breach of private law rights, and not with respect to public rights or duties, and are therefore not an appropriate remedy in judicial review proceedings. The Court of Appeal in Cortec Mining Kenya Limited vs Cabinet Secretary, Attorney General & 8 others, (2015) e KLR held as follows as regards the grant of injunction in judicial review proceedings: -

“34. Can this court grant an order of injunction in a judicial review matter such as this one? For starters, to grant an injunction would amount to giving a relief or remedy that was not even sought in the High Court in the first place.

The High Court could only grant these three prerogative orders. It could not in the judicial review under Section 8 of the Law Reform Act grant an order of injunction such as is sought in the motion before us for the simple reason that injunction is not authorized by and falls outside the amplitude of the reliefs available under Section 8 of the Law Reform Act. An injunction is also not exclusively within the amplitude of public law remedies.”

14. Likewise, the Supreme Court of Kenya, when explaining the distinction between injunctions, and order of stay and conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, (2014) e KLR held as follows:-

“(85)These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light.

(86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest...”

The Disposition

15. I accordingly order as follows arising from the foregoing findings and reasons:

I. The the prayer of injunction sought in the ex parte Applicant’s Notice of Motiondated 26th November 2020is declined, and the said Notice of Motion is hereby dismissed with no order as to costs.

II. The ex parte Applicant’s substantive Notice of Motion dated 28th October 2020 shall accordingly proceed to full hearing and the Respondents shall file and serve their responses thereto within fourteen (14) days of today’s date.

III. The ex parte Applicant is granted leave to file and serve its submissions on the within fourteen (14) days of service of the responses to the Notice of Motion or upon default thereof.

IV. The Respondents are granted corresponding leave to file and serve their reply submissions within fourteen (14) days of service by the ex parte Applicant.

V. TheNotice of Motion dated28th October 2020 shall be heard by email on 3rd February 2021.

VI. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic,Notice of Motion dated28th October 2020 shall be heard on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

VII. All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com and asunachristine51@gmail.com.

VIII. The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com with copies to asunachristine51@gmail.com.

IX. The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.com with copies to asunachristine51@gmail.com.

X. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention on 3rd February 2021.

XI. The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the ex parte Applicant and Respondents by electronic mail by close of business on Thursday, 10th December 2020.

XII. Parties shall be at liberty to apply.

16. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF NOVEMBER 2020

P. NYAMWEYA

JUDGE