https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7524

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW DIVISION** **HCJR CASE NO. E136 OF 2024** **MARYLELIA KUCHIO……………………………………..1ST APPLICANT RISPAH LUMIDI……………………….……………………2ND APPLICANT** **AND** **THE PRINCIPAL SECRETARY, MINISTRY OF PUBLIC** **SERVICE, STATE DEPARTMENT OF PUBLIC** **SERVICE…………………………………………………….1ST RESPONDENT** **REGISTRAR OF SOCIETIES…………..……………2NDRESPONDENT** **AND** **MS. MATHILDA ANYANGO…………..…….1STINTERESTED PARTY** **MR. JOHN M. KIMANI……………………….2NDINTERESTED PARTY** **MS. ABIGAEL ASIDAGA……………………..3RDINTERESTED PARTY** **MR. KEPHA MOTENDE……………………..4THINTERESTED PARTY** **MS. KELLEN NDUNG’U…………….………..5THINTERESTED PARTY** **MS. HELLEN MUKASA……………….………6THINTERESTED PARTY** **MS. TERESIA NJUGUNA……………….……7THINTERESTED PARTY** **MS. ELIZABETH LUCY KUNG’A…………8TH INTERESTED PARTY** **MS. EILEEN ONYANGO……….………….…9THINTERESTED PARTY** **MS. GRACE KAMENE KIKUYU……….…10THINTERESTED PARTY MS. CATHERINE KUNGU……………..…..11THINTERESTED PARTY** **MS. LYDIA KARIUKI……………….....……12THINTERESTED PARTY MR. DANIEL KAHUNGU…………………..13THINTERESTED PARTY** **JUDGEMENT** 1. By way of a Notice of Motion dated 8th July 2025 the Applicants seek the following orders;- 1. An order of certiorari do issue to bring into the High Court for purposes of being quashed, the letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent addressed to the 1st Applicant. 2. An order of prohibition directed at the 1st Respondent and all persons listed under the said letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent and addressed to the 1st Applicant, from dealing or executing anything whatsoever and or howsoever insofar as furtherance of contents therein as it relates to the Kenya National Secretaries Association (hereinafter referred to as KENASA) are concerned. 3. An order of certiorari do issue to bring into the High Court for purposes of being quashed, the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the Branch Manager, Cooperative Bank, Parliament Road Branch and copied to 6th Interested Party. 4. An order of certiorari do issue to bring into the High Court for purposes of being quashed, the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 1st Applicant declining to make changes as per the KENASA members’ Resolutions during the Annual General Meeting held on 26th April 2024. 5. An order of certiorari do issue to bring into the High Court for purposes of being quashed, the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 2nd Applicant seeking explanation upon a biased and predetermined verdict. 6. An order of mandamus do issue to compel the 2ndRespondent to admit and give effect to the resolutions made during the KENASA’s Annual General Meeting held on 26th April 2024 as well as the Special General Meeting held on 7th June 2024. 7. Such further and other reliefs as this Honourable Court may deem just to grant. 8. The costs of and incidental to this application be provided for in favour of the Applicants. 9. The Application is supported by the Statement of facts dated 19th June 2024, the supporting affidavit sworn by Ms. Marylelia Kuchio on 8th July 2025. **Ex Pate Applicants’ case** 1. The Applicants’ case is that by a letter dated 6th June 2024, the 1st Respondent disbanded the KENASA National executive Committee and purported to constitute an interim committee. The chairperson of the interim committee then issued a notice convening a meeting for 20th June 2024. Through a second letter on the same date, the 2nd Respondent directed Cooperative Bank to freeze the bank accounts of the association. It is the Applicants’ case that she had no powers to either disband the NEC or freeze the accounts. That the 2ndRespondent, by another letter dated 6th June 2024, communicated her decision not to make changes to the KEMSA file as per the resolutions of members during the AGM of 26th April 2024. Tthe 6th – 10th Interested parties who were officials of the association, deliberately failed to attend the AGM. 1. The Applicants’ case is that the 1st and 3rd Interested Parties, being former officials who ceased to be MEC members due to being voted out are not available for appointment to the Interim Committee. 1. It is the applicants’ case that the membership of the NEC is provided for under the KENASA constitution and therefore, the members appointed under the interim committee do not qualify to be office bearers. 1. The Applicants contend that the 2nd Respondent responded to the 1st Respondents’ letter dated 30th May 2023 by a letter dated 6th June 2024 approving the disbandment of the NEC which was indicative of the collusion to frustrate the applicants. 1. It is further their case that they did not have the capacity to do so. Additionally, the Applicants contend that the 1st Respondent had a predetermined condition as at 30th April 2024 about the Applicant being guilty of mismanagement and as to the nullity of the AGM resolutions without hearing the Applicants by the time the approval of disbandment was sought. 1. The Applicants maintain that the AGM of 26th April 2024 was held in accordance with the KENASA constitution and the 2ndRespondent had no basis of failing to give effect to the resolutions. 1. Further, they argue that the respondents’ complaints on failure to attach a statement of accounts could not invalidate the AGM Resolutions. 1. Additionally, they argue that the Applicants explanations on the complaints raised were ignored which contravened the Applicants’ rights to a fair hearing and fair administrative action. 1. The Applicants stated that prior to the holding of the AGM there were disputes as to the venue where it would be held with regards to cost. 1. As a result, the 6th – 10th Interested parties were absent when they were voted out and the 11th – 13thInterested parties were appointed. **1st And 2nd Applicants’ Submissions** 1. It is the applicants’ submission that the impugned decisions by the Respondents are tainted with illegality *inter alia* in that the Respondents not have the requisite powers under the law in particular;- * 1. The 1st Respondent has no powers to disband KENASA NEC and in place thereof, constitute Interim Committee; 2. The 2nd Respondent has no power to ‘approve’ the disbandment of KENASA NEC and in place thereof, authorise the constitution of Interim Committee; 3. The 2nd Respondent has no power to order the KENASA bankers to freeze KENASA bank accounts; 4. The 2nd Respondent has no power to refuse to admit the KENASA AGM resolutions and give them effect; 5. It is irrational, unreasonable and illegal for the 2ndRespondent’s to write the letter dated 6th June 2024 addressed to the 2nd Applicant seeking explanation the same having been conceived on biasness, ulterior motives, unreasonableness and procedural impropriety as to negate its purpose. 1. In the case of **AAA Investments (Pty) Ltd vs Micro Finance** **Regulatory Council and another**, **(CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006)** the court held as follows:- *“The doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law"* 1. The 1st Respondent therefore acted without authority in his decision to disband the KENASA NEC and in place thereof constitute the interim committee. 1. Such a power is alien to the KENASA’s constitution and amounts to an outright illegality and constitutes a *coup d’état*. 1. The 2nd Respondent does not have the power under the law to order the freezing of KENASA bank account as she did. 1. She does not have the power to ‘approve’ the disbandment of KENASA NEC and in place thereof, constitute an Interim Committee. 1. The 2nd Respondent has no power to refuse to admit the KENASA AGM resolutions and give them effect. ​ 1. In **Republic v Betting Control and Licensing Board & another** **Ex parte Outdoor Advertising Association of Kenya [2019] eKLR,** it was held *inter alia* that *“Safeguarding legality is the most important purpose for the judicial review of administrative actions……In one sense, there must always be the premise of “want of legality.” This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures…..The most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and,…..It follows, therefore, that the legality of an administrative decision or decisions rendered by government Ministers can be judicially challenged on grounds that the administrative decision does not comply with the basic requirements of legality…..”.(***Underlining mine)** 1. The 6th -10th Interested Parties did not point out any provision of the law that endowed the Respondents with the powers to act as they did. 1. The 8th and 6th Interested Parties wrote letters to the Respondents seeking Respondents’ interventions variously. 1. They have cited **no** particular provisions of the law under which they were convinced that the Respondents have the powers to intervene as they contended in their said letters. 1. Further, the 6th – 10th Interested Parties contended that the 1stRespondent has powers to intervene in the planned KENASA AGM. 1. The 6th-10th Interested Partiesalsocontended that the **“the** **Applicants’ violated directives of the Patron”** as per the meeting of 19th April 2024 but they did not point out the legal basis under which the Patron is granted powers “to issue directives or intervene and postpone the KENASA AGM”. 1. They submit that, there is nowhere in the law where the Respondents are empowered to stop the convening or holding of KENASA AGM. 1. In **AAA Investments (Pty) Ltd vs Micro Finance Regulatory** **Council and another (supra) it was held** that:- **“***power should have a source in law, is applicable whenever public power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law”* 1. Further, in the case of **Republic v Betting Control and Licensing** **Board & another Ex parte Outdoor Advertising Association of Kenya [2019] eKLR,** it was held that *“…..First, public bodies, no matter how well intentioned, can only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decisions to stand, it must be grounded on the law.* **(emphasis mine)** 1. They submit that the Respondents as well as the 6th-10th Interested Parties were totally misguided as to the proper position of the 1st Respondent in the hierarchy of KENASA. 1. The Patron is wholly and absolutely powerless insofar as KENASA affairs are concerned. The KENASA constitution provides as follows:- **Clause 17 of the KENASA Constitution** provides as follows:- ***“17.******Patronage of the Association*** *Patronage of the Association shall be vested to the Principal Secretary in charge of Public Service*” 1. Other than the above noted statement only, there is no any other reference or provision in the rest of the KENASA constitution about the Patron. M 1. Therefore, the powers that the 1st Respondent purported to exercise ‘as the patron’ are not provided for. 1. Accordingly, the fate of the much touted ‘patron’s directives’ that were repeatedly cited by the 1st Respondent’s letters of 30th May 2024, the 1st Respondent’s letter dated 30th April 2024 to the 1st Applicant as well as the6th-10th Interested Parties’ correspondences are all misconceived. 1. Neither the minutes of the said meeting of 19th April 2024 nor the ‘Patron’s directives’ or Patron’s formal communication to the 1st Applicant about postponing the AGM of 26th April 2024 as alleged, if any, have been annexed to the 6th Interested Party’s affidavit to confirm the allegations and even give a complete picture of what transpired at the said meeting, if at all. 1. For avoidance of doubt, the applicant submits that the much touted meeting of 19th April 2024 was not a KENASA Meeting in terms of clause 5(a) of the KENASA constitution and no amount of hyping and yapping, can inject legitimacy through the misguided averments of the 6th-10th Interested Parties and nothing binding insofar as KENASA constitution is concerned can turn out from the said meeting. 1. The Court cannot be invited to adjudge a case on imagined and inconsequential directives that have not been formally filed in court. 1. The Patron’s actions are incompatible with Article 36 of the Constitution of Kenya 2010. 1. KENASA is a members’ Association where the Applicants are serving as the National Chairperson and National Secretary respectively and as such, the 1st Respondent cannot introduce parallel office bearers otherwise than is provided in the KENASA Constitution and without any powers or basis in Law. 1. The patron’s office was not set up an independent high level or parallel organ of KENASA or to superintend the National Executive Committee (NEC) of KENASA. 1. The Patron is neither elected nor conferred with veto powers to countermand and/or veto Resolutions of members in an Annual General Meeting. 1. As such, the Patron ought to have appreciated the limitations of his office ‘as a patron’ and contented with it ‘as is’ but not to arrogate himself powers that are not conferred on his office by the KENASA Constitution or any other law for that matter. 1. It is unreasonable and an illegality for the Patron to arrogate himself veto powers and appoint non-members to manage KENASA, which is a members’ Association. 1. The Patron purports to make the said *coup d’état* without any reference to members of KENASA and after boldly and deliberately avoiding to attend a members Annual General Meeting alongside the 6th-10th Interested Parties. It is totally unreasonable and unconstitutional. 1. Whereas it was a proper gesture for the 1st Respondent to have sought legal advice from the office of the Solicitor General, the hijacking of the letter by the 2nd Responded is what ushered in a misguided trajectory and this marked the consecration of the Respondents’ misguidance and illegality. 1. The Respondents’ impugned actions constitute a clear violation and abuse of power. They acted without a basis in law. 1. The Respondents’ misguidance can be seen from the **2ndRespondent’s letter dated 6th June 2024 under reference SOC/53963** throughwhich she purported to “approve” the 1st Respondent’s proposal to constitute an interim committee without particularizing the legal basis under which the 1st Respondent is authorized to disband the KENASA NEC and in place thereof, constitute the interim committee or how the 2nd Respondent is herself required to approve such an action. 1. The applicant submits contend that the 2nd Respondent thereby misadvised the 1stRespondent into a patent illegality. 1. Under the 1st Respondent’s letter annexed as the 1st Respondent having already made a decision (without involvement of the Applicants at all), but hypocritically sought for a backing to his biased decision to disband the KENASA NEC and in place thereof constitute the alien interim Committee. The last paragraph of that letter is worded as follows:- *“the purpose of this letter, therefore, is to inform you of the current status of Association and seek advice on constituting an interim committee to oversee the Association’s affairs pending election of new office bearers”* 1. The applicants consternation, the 2nd Respondent failed to advice the 1st Respondent that he (the 1st Respondent) did not have the powers to disband KENASA NEC and in place thereof constitute an interim committee. 1. Instead, the same 2nd Respondent misguided herself, countenanced and acquiesced in the misguidance of the 1st Respondent by purporting to approve the disbandment of the KENASA NEC and in place thereof, constitution of Interim Committee without any basis in law. 1. In essence, she openly misled the 1st Respondent in that respect. As an Advocate, she ought to have first, determined whether or not the 1st Respondent had such powers under the KENASA Constitution or any other law and advised the 1st Respondent correctly. 1. Upon further consideration, the 2nd Respondent was openly insincere when, On one hand, she advised the 1st Respondent “to constitute an interim committee with immediate effect..” on 6th June 2024 whilst on the other hand, on the same date, she hypocritically asked the 2nd Applicant herein, through her letter to respond to an attached complaint “within 21 days”. 1. The 2nd Respondent acted recklessly in this case because she purported to ‘approve’ an encumbrance upon the 2nd Applicant’s being in office ‘within 21 days’ by ‘approving’ the constitution of interim committee to replace the Applicants but in the same breath, still asks the 2nd Applicant to respond to her letter dated 6thJune 2024. 1. This demonstrates dense insincerity and manifests lack intention to hear the Applicants at all but only to seek to excuse herself as a formality, through her said letter as she has done at paragraph 21 of her affidavit. 1. The 6th -10th Interested Parties have acted all along with impunity based on a fallback support of the 1st and 2nd Respondents. While this was so and despite the Respondents hypocritically pretending to convene meetings and ask for explanations, none of their impugned decisions herein made any reference to the explanations advanced by the 1st Applicant. 1. The 2nd Respondent arbitrarily declined to give effect to the Resolutions of the KENASA AGM held on 26th April 2024. 1. The reason given by the 2nd Respondent for declining to give effect to the Resolutions of the AGM is because of a complaint lodged with her office. 1. But the 2nd Respondent did not particularize in her said letter to the 2nd Applicant, the powers that give her a basis to require the 2nd Applicant to respond to the complaint letter as well as, the power to decline to admit returns of an AGM of a registered society because of a complaint. 1. The supposed “complaint” letter dated 29th April 2024 attached to the 2nd Respondent’s letter dated 6th June 2024 addressed to the 2nd Applicant was nothing but a scapegoat. 1. This is what the 2nd Respondent relied on in not admitting the returns filed by the KENASA following the AGM held on 26th April 2024. 1. The Societies Act does not confer powers on the Registrar of Societies to undertake dispute resolution affecting registered Societies. 1. If there be an aggrieved person insofar as the holding of an AGM is concerned, the aggrieved person can only seek redress from courts of law. 1. As such, the Registrar can only decline to admit AGM returns of a registered society’s AGM only pursuant to a court order from the High Court. 1. Section 18 of the Societies Act has been densely mystified. It provides as follows:- *“18. Disputes as to officers* *(1) If the Registrar is of the opinion that a dispute has occurred among the members or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of the society, the Registrar may, by order in writing, require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute. (emphasis mine)* *(2) If an order under subsection (1) of this section is not complied with to the satisfaction of the Registrar within the period of one month or any longer period which the Registrar may allow, the Registrar may cancel the registration of the society.* *(3) A society aggrieved by the cancellation of its registration under subsection (2) may appeal to the High Court within thirty days of such cancellation.”* 1. With respect to the misleading contentions of the 1st Respondent and the fallacies of the 6th-10th Interested parties, even with the plainest interpretation, they do not see the consistency between the impugned actions of the Respondents and Section 18 of the Societies Act. 1. The letter by the 2nd Respondent to the 1stApplicant talks of a complaint about ‘conduct of AGM’. Section 18 provides is precisely about ‘Disputes as to officers ’only. Even the sub-heading of Section 18 is that clear, it is not about any other dispute. 1. Further on this, Section 18 does not give the Registrar (the 2ndRespondent) the power to solve the disputes as to officers but to require the dispute to be solved by the Society itself. 1. The relevant part provides that (the Registrar may) ‘require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute. 1. Accordingly,the said Section 18 does not provide for the Registrar to introduce conditions such as a ‘complaint letter about how the AGM was conducted’ as a precondition for receiving returns filed by the Society following an AGM. 1. Further, from the interpretation of the said Section 18 of the Societies Act, the Registrar is supposed to require evidence of settlement of the dispute as to officers or of the institution of proceedings for the settlement of such dispute. 1. The 6thand 8th Interested Parties ought to instituted proceedings in the High Court and obtained stay orders staying the members’ training and AGM but not seek for the 1stRespondent and/or the Registrar of Societies to solve the complaint. 1. The fallacy in the Respondents’ contentions that the Registrar has dispute Resolution powers under Section 18 of the Societies Act is untenable. 1. Based on this grounding, the applicants submit that the Registrar of Societies had no powers to entertain complaints from the 6th-10thInterested Parties. 1. At any rate the wording of Section 18 of the Societies Act is clear that one of the alternatives is to avail to the Registrar of Societies evidence of proceedings having been instituted. 1. But not for Registrar to decline to receive returns from a registered society following an AGM solely because of a complaint from a person who deliberately failed to attend the AGM and she is complaining about the conduct of the AGM that she did not attend. 1. One wonders if the Registrar of Societies has no power to solve a complaint under the law, why will she want an explanation or details of the complaint. It is a total misguidance, confusion and untenable obsessions without a legal basis. 1. Likewise, the 2nd Respondent directed KENASA bankers, being Cooperative bank of Kenya, Parliament Branch, to freeze the KENASA Bank account maintained there without a court order and or any colour of right. 1. The decision was taken without any reference to members, considering that KENASA is a members’ association. 1. The said decisions, in circumstances of this case, upset and defeated KENASA members’ rights to their property (in the money) in the bank, arm twisted them from progressing their programs and thereby stifled their freedom of Association under Article 36 of the Constitution. 1. It is shameful for KENASA, a professional Association to convene their members for crucial KENASA activities namely a members’ training and Annual General Meeting then fail to settle their resultant bills because of Respondents’ abuse of office and selfish interests. 1. It is not that members did not pay for the members’ training and AGM, they did but through the misguidance of the 6th-10th Interested Parties, KENASA has been impeded from the settlement of bills. 1. The Respondents are not members of the KENASA but, who have through their impugned actions brought about confusion, ignominy and polarized the smooth operations of the KENASA. 1. There is no known provision in the Societies Act that grants the Registrar powers to freeze a society’s bank account. 1. In the **Non-Governmental Organizations Co-ordination** **Board Ex-Parte Research, Care and Training Programme Family Aids Care & Education Services (RCTP-FACES),** W. Korir J. held inter alia as follows:- *“The power to order the freezing of a bank account is a very powerful tool indeed. It leaves the account holder at the mercy of the authority directing freezing. In my view such power can only be expressly granted by the law. Even where crime is involved, investigative authorities such as the police and the Ethics and Anti-Corruption Commission do not exercise such power of their own motion. In order to access somebody’s account, an investigator has to obtain orders of the court. Under the Proceeds of Crime and Anti-Money Laundering Act, 2009, the freezing a bank account can only be done upon obtaining a court order. 28. The Respondent suggests that the power to freeze accounts should be implied. A power that paralyses the activities of an organization cannot be implied. It must be expressly donated by the lawmakers. 29. Even if the Respondent did indeed have power to order the bank to freeze the Applicant’s bank account, I do not think that such power would have been exercisable in the circumstances of this particular case.* *In light of what I have stated, I find that the Applicant’s case has merit. The same succeeds and an order of certiorari is issued calling into this Court and quashing the Respondent’s letter dated 19th February, 2016 addressed to the Applicant’s bankers, Cooperative Bank of Kenya directing the said bank to freeze the Applicant’s accounts. Any action resulting from that letter is therefore quashed”* 1. The Applicants, who were duly elected by the KENASA members had a legitimate expectation that their rights and KENASA’s would be respected and protected as by law provided and that any action or decision affecting those rights would only be taken in accordance with the law. 1. In **Civil Appeal No 308 of 2012 Law Society of Kenya v The** **Centre For Human Rights And Democracy & 13 others,** it was held that an inferior tribunal, person or authority charged with the responsibility of making a decision in a judicial or quasi-judicial function has the parameters and limits of its jurisdiction set out by its enabling statute. 1. The 2nd Respondent has not pointed out which section of the Societies Act gives her the power to freeze a registered Society’s bank accounts. 1. In **Republic v Kenya Revenue Authority Ex Parte Aberdare** **Freight Services Ltd & 2 others [2004] 2 KLR 530,** it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others, and based on **East African Railways Corp. v Anthony Sefu Dar-esSalaam HCCA No 19 of 1971 [1973] EA 327,** Courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it 1. The applicants submit that the Respondents’ impugned decisions were tainted with illegality, biasness, bad faith, unreasonableness and irrationality and deliberate abuse of office. 1. The said acts of the Respondents are an affront to well-known tenets of natural justice as the process, they undertook was fraught with malice and bad faith. 1. As of natural justice and fair procedure, the Respondents ought to have formally put the complaint(s) against the 1st Applicant, (as supposedly raised by the 8th Interested Party or whoever as the case maybe,) to the 1st Applicant for her answer. This was not done. The Applicants’ rights to fair hearing were thereby infringed as Article 47 of the Constitution was rendered useless. 1. The subversion of due procedure and arbitrariness can be gleaned from the 1st Respondent’s letter dated 6th June 2024 which was without any notice at all. 1. It was final and directed the 1st Applicant to hand over KENASA to non- KENASA members christened as Interim Committee. The letter notified the 1stApplicant that:- *“Owing to the non-adherence to the resolutions of the meeting held on 19th April 2024 and subsequent directive, this office has reached a decision that urgent measures need to be put in place for smooth* *operations of the Association.* 1. An Interim Committee has therefore, been constituted to oversee the affairs of Kenya National Secretaries Association (KENASA). 1. The arbitrary notice was for 5 days as per that letter. Any notice within the fair administrative action should be for a reasonable time. 1. The Applicants were expected to substantively comply with the directions in the letter in 5 days which is unfair and unreasonable and contrary to the Article 47 of the Constitution and the Fair Administration Act. 1. The explanations that the 1st Applicant had written to the Respondents in the letter dated 2ndMay 2024 to the 2nd Respondent and copied to 1st Respondent counted for nothing. 1. The Applicants were condemned unheard in violation of both the Constitution and the Law for reason of failing to observe the law and procedural fairness. 1. Article 47(1) of the Constitution provides that - every person has the right to administrative action that is expeditious, efficient, lawful, and reasonable and procedurally fair was rendered useless. 1. In particular **Article 47(2)** provides that – 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 written reasons for the action. 1. In **Republic v Non-Governmental Organizations and Co-** **ordination Board ex parte Kalonzo Musyoka Foundation**, it was held that:- *“an administrative action cannot be said to be procedurally fair when the process of arriving at it is shrouded in mystery…...”* 1. In **Richard Bwogo Birir v Narok County Government & 2** **others (2014) eKLR**, the High Court held as follows *inter alia*:- *“The respondent cannot be considered to have maintained the principles of human rights, transparency, accountability, and good governance as envisioned in Article 10 of the Constitution, the court concludes. The court's considered opinion is that mysterious decisions... cannot be in furtherance of the donated sovereign powers that vest in the people because such mysterious decisions are opaque decisions that belong to the murky world and not a civilised democratic Republic like ours.”* 1. In **Narok County Government & another v Richard Bwogo** **Birir & another (2015) eKLR**, the Court of Appeal upheld the High Court's finding stating thus; *“Article 73 says that the power granted to a State officer is a public trust that should be used in a way that is in line with the goals and objectives of the Constitution. The State official is empowered to serve the people, not to govern them. Responsibility to the public for decisions made is one of the tenets of honesty and leadership.”* 1. The manner in which the Respondents arrived at the impugned decisions is unlawful, unprocedural and violates the rules of natural justice. 1. In **Republic v Non-Governmental Organizations** **Coordination Board Ex-Parte Evans Kidero Foundation,** it was held *inter alia* that:- *“…. a decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”* 1. In the case of **Pastoli v.Kabale District Local Government** **Council and Others [2008] 2 EA 300** it was held that:- *“..Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or failure to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”* 1. The 2nd Respondent being the registrar of societies acted in cohort with the 1st Respondent and the 6th -10th Interested Parties and failed to observe the principles of natural justice. 1. She was bound to direct her mind independently and impartially without taking into consideration extraneous matters which was outside her province. 1. She is guilty of consistent disregard for the due process of law and in the end validated an illegality complained of herein. 1. In the case of **Judicial Service Commission v Mbalu Mutava &** **another [2014] eKLR,** the Court of Appeal observed; *“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.”* 1. Article 47(1) emphasizes on the right to administrative actions that are expeditious, efficient, lawful, reasonable and procedurally fair. 1. **In Dry Associates Ltd v Capital Markets Authority and** **Another, [2012] eKLR,** it was held that Article 47 is intended to subject administrative processes to constitutional discipline so that relief for administrative grievances should no longer be left to the realm of common law or judicial review under the Law Reform Act (Cap 26 of the Laws of Kenya) but be measured against the standards established by the Constitution. 1. They submit that the 1st Respondent had already made predetermined conclusions as at 30th April 2024 about the Applicants being “guilty of mismanagement” and as “to the nullity of the 11th KENASA AGM resolutions”. 1. They show that the 1st Respondent had already decided on the disbandment of KENASA NEC without hearing the Applicants at all such that by the time the 1st Respondent hypocritically wrote to the 2ndRespondent seeking approval for the disbandment of the KENASA NEC and constitution of the Interim Committee, no due process insofar as natural justice is concerned had been undertaken by the 1st Respondent to arrive at those decisions. The following words are instructive as sourced from the 1stRespondent’s letter - *“a decision had been reached that urgent measures needed to be put in place to arrest the situation and save the association from being mismanaged….* *Further, the said letter of 30th May 2024 stated that it had been proposed that as interim committee be constituted to oversee the management of the association…….”* 1. To buttress that point, the 1st Respondent’s letter dated 30th April 2024 addressed to the 1st Applicantprovided as follows in the relevant parts:-​​​​ “*The National Chairperson ​ ​30thapril 2024 Training and Annual* *General Meeting Held From 22nd To 26th April 2024 ……..In view of the following, this office finds the above meeting falling short of a properly constituted Annual General Meeting. Please note that any of the resolutions reached in an improperly constituted AGM will be considered null and void as per the KENASA Constitutional provisions.* *You are therefore expected to update thus office on the above issues”* 1. From the above renditions, the 1st Respondent, who neither attended the AGM nor sought to understand what transpired at the training and AGM, had already determined that the AGM held on 26th April 2024 was null and void and unconstitutional as per KENASA constitution whose specific clauses he did not cite. This determination was plainly made without first hearing the Applicants. The conduct of the 1st Respondent in this respect, having taken a position against the 1st Applicant *apriori*, could not then, in the circumstances, be expected to exercise any objectivity over the same subject matter. 1. Paradoxically, despite the already determined decisions in the said letter, the 1st Respondent still purported to seek an update from the 1st Applicant on the issues he had already decided on. This is no doubt hypocritical and of no value. Of significance is that neither of the issues raised in the letter of the 1st Respondent had been put to the Applicants for their side of the story to be considered before the determinations were made by the 1stRespondent. 1. Riding on his (1st Respondent’s) already biased contentions aforesaid (in his letter dated 30th April 2024), the 1stRespondent wrote the letter of 30th May 2024 to the Solicitor General aforesaid seeking a ‘backing’ for his already biased and decided position despite the 1st Respondent having neither met the Applicants nor responded to the letter that the 1st Applicant had written to him. He already had this letter but ignored it. 1. Similarly for the 2nd Respondent, the 1st Applicant’s wrote the letter dated 2nd May 2024 to the 2nd Respondent and copied to the 1st Respondent. 1. Be that as it may, the applicants raised the point that the 2nd Respondent had served in a previous illegal interim committee of KENASA. 1. As such, the applicants expected the 2nd Respondent to candidly declare as much to the 1st Respondent. But of significance, she did not. 1. The 2nd Respondent having served in the previous illegal outfit herself, only had one option which is recusing herself insofar as her advising on the KENASA case is concerned. 1. Otherwise, she was ill-suited, in that respect, to render any worthwhile advice because of her acquiescence in the illegality. Therefore the 2nd Respondent’s purported advice/approval for the 1st Respondent to disband KENASA NEC and in place thereof constitute Interim Committee, demonstrates her conflict of interest in the matter. 1. In essence, the 2nd Respondent abdicated her professional mind and the oath she took before admission to the Bar, and hallowed the lawlessness that is characteristic of the unbridled abuses of power. 1. That explains how she sanctioned the disbandment of KENASA NEC on one hand and on the other hand on same date, wrote a letter to the 2nd Applicant purporting to seek explanation. 1. In advising the 1st Respondent to disband KENASA NEC and in place thereof constitute Interim Committee, the 2nd Respondent thereby violated the law of natural justice. 1. The case of **Kenya National Examination Council** **…Vs…Republic (Exparte Geofrey Gathenji & Another,** Nairobi Civil Appeal No.266 of 1996, *“That now bring us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case. What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules or natural justice. It does not. However, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4th Edition vol.1 at Pg.37 paragraph 128.”* 1. Based on the submissions herein above, the Applicants have demonstrated how the 1st and 2nd Respondents without jurisdiction at all when they made decisions to disband the KENASA NEC, appointment of the Interim Committee, freezing of the KENASA bank account and the declining to give effect to the KENASA AGM resolutions. 1. The Applicants were not accorded a fair administrative action as they were never afforded any hearing before the impugned decisions were made. 1. In the case of **Republic…Vs…The Honourable The Chief Justice** **of Kenya & Others …Vs…exparte Moijo Mataiya Ole Keiuwa**, **Nairobi HCM CA No.1298 of 2004**, the Court held that: *“The rules of Natural justice are minimum standard of fair decision* *making imposed by the common law on persons, or bodies that are under a duty to act judicially”. Having found that the exparte Applicant was condemned unheard and that goes against the doctrine of Natural justice as was outlined in the Halsbury Laws of England Volume 1(1) page 218, which states as follows:* *“Natural justice comprises two basic rules; first that no man is to be* *a judge in his own cause (nemojudex in causa sua), and second that no man is to be condemned unheard (audi alteram partem). These rules are concerned with the manner in which the decision is taken rather than with whether or not the decision is correct”.* 1. They argue that they have established the threshold for granting of judicial review orders. **The 1st & 2nd Respondents’ Case;** 1. The Respondents confirmed that through letter referenced MPS&DM/SEC/3/4/1 signed by the Principal Secretary addressed the 1st Applicant, disbanded the National Executive Council of KENASA and in place a caretaker Committee was appointed. 1. It is the 1st Respondent’s case that it received communication from the outgoing KENASA Vice National Chairperson Mrs. Lucy K. Oitong and Vice National Secretary Ms, Margaret Oruko, alleging that the outgoing National Secretary Mr, Ignatius Namuju organized a training workshop for Office Administrators deployed at the Kenya Pipeline company on behalf of the Association without the knowledge of other NEC members. 1. Further the letter alleged that the National Chairperson (Mr. Andrew Osundwa) is also non-committal in taking action in relation to the training which was conducted between 15th to I7th June, 2022 and 22nd to 24thJune, 2022 in Naivasha. 1. They urged that it is not clear which Bank Account the funds accrued from the training workshop were remitted to and how the said funds were utilized. 1. Considering the above events, the Registrar of Companies advised that it is in the interest of the Association that a caretaker Committee be constituted to oversee the affairs of the Association and prepare for the Annual General Meeting to oversee the KENASA Affairs pending the Annual National Election. 1. The Respondents responded to the Applicants, urging that the Chair lady had rejected the Auditor/Accountant (Mr. Ondako Maina and Associates) as the requirements of the Registrar of the societies procedures and Regulations and section of KENASA constitution that Auditors /Accounts can only be changed in an AGM. 1. The issue of the venue for the training and workshop was not agreed upon by NEC members, the system for the purpose of accountability and efficiency such as the 2/3 requirements threshold of the members population during the Annual General Meeting and that the Notice of the Annual General Meeting was sent without the statement of accounts. 1. The Respondents contend that a check list was drawn to gauge the preparations of the National Executive Committee, (NEC) as per Section 8 and 11 on general meetings and appointment of Auditors respectively and in accordance with KENASA Constitution of 2021. 1. Further, they conceded that the 2ndRespondent wrote a letter dated 6th June, 2024 concerning the conduct of the AGM because it offended Section 8 (a) (I) which requires that the Notice shall be accompanied by the statement of accounts. 1. According to them, the Registrar is by Law empowered to inquire about the conduct of the Association in accordance with section 18 of the societies Act. 1. The Respondents’ case is that the members appointed to the caretaker Committee, are people of integrity and the Association members shall be invited in the AGM to appoint the fresh leadership and the accounts shall be subjected to a credible auditor who shall audit the accounts. Further, it is their case that contrary to the statement that the membership of KENASA is 4,000, the true position is that the membership stands at 41,632 and among these members, the chairperson KENASA attested that it included those we have exited through natural attrition, attained retirement age and voluntary retirement. 1. From the above, it means that the office had not cleansed the current register to determine the actual membership of KENASA and this means that the figures as provided are not a true reflection of the population of the Association and hence the requirement of 2/3 majority may have not been met. 1. The Respondents stated that during the first Annual General Meeting held on 10th March, 2023, resolutions were passed to harmonize the members register to include all members who are contributing to the Association, which resolution had not been done as at the date of the meeting. 1. The above is a loophole enabling the current office holders to misuse the funds of the Association and which the Patron is asking the caretaker committee to FastTrack and put it in place before new leadership takes over from the committee. 1. Further, they argue that the two mentioned membership of the caretaker committee are not going to work in isolation but as part of the larger caretaker committee for the purpose of transition only. 1. The Respondents contend that all assets of KENASA including its Bank Accounts shall be audited by a credible auditor before handing over to the new officials who shall be appointed at the Annual General meeting. 1. Additionally, they argue that the AGM for 26th April 2024 was not held in accordance with the law, due to the fact that the register has not been cleaned, there is no harmonization and therefore null and void ab initio. 1. They argue that it is a clear provision from KENASA constitution that a statement of accounts must accompany the Notice for the General Meeting and therefore the meeting was null and void ab initio. **The Respondents’ Submissions** 1. It is the Attorney-General’s submission that the ex-parte applicants’ application is essentially a review of the merits of the decision of the Respondents and for all intents and purposes are framed as a judicial review application seeking to improperly invoke an appellate jurisdiction of the High Court. 1. That if this Honourable Court is minded to review the merits of the Respondents’ decision, it is the Respondents’ submission that a consideration of the merits of its decision will only serve to sustain its findings. 1. Counsel cited Korir J in the case of **Republic V Public** **Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] Eklr** in this regard. Counsel urged that it is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits. The court cannot be invited in a judicial review proceeding to act as an appellate court to reverse the decision of the 1st Respondent. 1. Reliance was placed on Associated Provincial Picture Houses, Ltd. Vs Wednesbury Corporation [1947] 2 All E.R 680. That as a result, it is only in exceptional circumstances that the court can consider merits of a decision which exceptional circumstances were enumerated by the learned **Mumbi Ngugi J in Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited [2013] eKLR.** 1. The Respondents contend that it is incumbent upon the Applicant to demonstrate that the decision-making organ, in this case, the 1st and 2nd Respondents acted ultra vires in making the impugned decision. 1. The Ex parte Applicant seeks orders to quash the Registrar of Societies decisions yet they have not demonstrated how the said decisions were ultra vires. 1. Reliance was placed on the case of **Seventh Day Adventist Church** **(East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR and Commissioner of Lands v Kunste Hotel Limited [1997] eKLR (E & L) 1 at page 249.** 1. The Respondents’ case is that Section 18 of the Societies Act Cap 108 mandates the registrar of Societies to take measures to resolve disputes relating to the officials of the society or members. 1. It is submitted that the Registrar of Societies received a letter dated 29th April, 2024 from the Vice National Chairperson informing her of non-compliance with the Annual General Meeting, KENASA Constitution and violation of Patron’s directive by KENASA national chairperson and the National Secretary. 1. It can clearly be seen that the Registrar did not clothe himself with the responsibility but it was the infuriated members who alarmed her of an irregularity and thus the Registrar had to conduct an inquiry into the matter as provided by the law. 1. **Reliance was placed on Ngare & Others –Vs- Registrar Of Co-** **Operative Societies [2002] 1 KLR 877 (HCK).** 1. The Respondents submitted that the dispute that the meeting held as instructed by the 2nd Respondent on 19th April 2024 was not a KENASA meeting in terms of Section 5(1) of the KENASA Constitution and thus says this was misguided. 1. From these allegations the Applicant has not demonstrated how the process was a sham. That there is nothing before the court that shows that the Respondent took into account irrelevant factors in reaching its decision. 1. Reliance was placed on Republic V Chief Magistrate Milimani Commercial Court & 2 Others Ex-Parte Violent Ndanu Mutinda & 5 Others [2014] eKLR where the court considered the grounds upon which the court will exercise its judicial review jurisdiction. 1. On considerations to be taken into account when granting an order of certiorari, reliance was placed on the case of **Paul Kiplagat Birgen & 25 Others V Interim Independent Electoral Commission & 2 others [2011] eKLR and Kenya National Examination Council versus Republic ex part Geoffrey Gathenji Njoroge & 9 other [1997] eKLR.** 1. The Respondent surged that the ex-parte applicants therefore fall short of raising any substantial grounds that should merit the audience of a judicial review court and urged the court to dismiss the Application with costs. **The 6th – 10th Interested Parties’ case;** 1. The 6th – 10th Interested Parties’ case is that they are currently serving as officials of KENASA alongside the 1st and 2ndApplicants in the following capacities: Ms. Hellen Mukasa ​ ​- National Vice Chairperson; Ms. Elizabeth Lucy Kung’a ​- National Treasurer; Ms. Teresiah Njuguna ​- Vice Secretary; Ms. Eileen Anyango - Vice Treasurer; and Ms. Grace Kamene Kikuyu ​- Co-opted member. 1. That the duly elected KENASA National Executive Committee (hereinafter referred to as NEC) consists of seven (7) members who are the 1st and 2nd Applicants and the 6th to 10th Interested Parties. 1. They confirmed the correspondences of 6th June 2024 and that a meeting was held between a representative from the office of the 1st Respondent and KENASA’s National Executive Committee on 19th April 2024 with the same coming about as a result of a call for intervention that was made by KENASA’s national treasurer to the 1st Respondent on what she termed as “abuse of chair’s presiding role.” 1. They argue that the intervention was necessary on grounds that majority of the Committees’ members were against the Chairperson’s continuous habit of abusing her position through acts such as dictating the motions of discussions and their outcomes, undermining the decision-making capacity of other NEC members provided for in section 7(d) of the Association’s Constitution. 1. They contend that the said call for intervention by the 8thInterested Party came about following previous meetings held by the National Officials in preparation for the Annual General Meeting scheduled to take place in Mombasa from 22nd to 26th April 2024. 1. The 1st Respondent being KENASA’s Patron convened a meeting with the National Executive Committee (NEC) officials on 19th April, 2024 to gauge their preparedness for the annual General Meeting. 1. From the said meeting it came out clearly that the NEC members were not adequately prepared for the annual general meeting. 1. As required from the previous AGM resolutions and Section 8 of KENASA Constitution the three pillars and important components of the AGM had not been met to wit; (i). “Harmonizing members subscription (ii). There was no Auditor’s report and Annual statement of Accounts. and (iii) A delegate system had not been developed to reach the two-third threshold of the registered members. 1. The interested parties contend that the delay was caused by the Applicants as the 2nd Applicant sought more time to harmonize members’ subscriptions while the 1st Applicant rejected the bonafide auditor and came up with a list of auditors for members at the last minute. 1. The outcome of the meeting directed that the AGM be postponed to enable NEC to meet the requirements. 1. It was also noted, and confirmed by the 1st Applicant during the meeting, that no contracts had been signed between NEC members and service providers including that of the venue of the meeting. 1. As a result of the findings, the National Secretary was tasked with the duty to officially issue an urgent notice of postponement to all members in order to prevent them from proceeding with their travel arrangements to Mombasa. That this agreement between the 1st Respondent and the members of the National Executive Committee is what informed the decision by the 1stRespondent’s representative and the 6th to 10th interested parties to cancel their travel and accommodation arrangements. 1. Despite the decision reached, the postponement of the Annual General Meeting was never communicated to members by the 2nd Applicant who is the Associations duly elected secretary and who was charged with the responsibility of ensuring that all members were informed of the aforementioned postponement of the AGM. 1. The 6th and 7th Interested Parties took it upon themselves to inform members through the official WhatsApp platforms of the postponement of the event but the same was bashed and shunned by the 1st and 2ndApplicants and subsequently ignored by the rest of the KENASA members under their instructions. 1. The Interested parties’ case is that the Applicants’ actions were in contravention of the provision of Article 8 of the KENASA Constitution and additionally, that section 11 of the KENASA Constitution equally makes provision for the place of auditors in the association through requiring the National Executive Council members to recruit an auditor who would be appointed by members during the AGM. Further, it is their case that the said actions are what resulted in the 2nd Respondent’s conclusion that the NEC executives were not prepared for the annual general meeting which was scheduled to be held in Mombasa. 1. They further argue that it is equally for this reason that the 2nd Respondent advised that the said AGM be postponed to a later date after all the unresolved issues by the National Executive Council, which advisory, the 6th to 10th Interested Parties adhered to while the 1st and 2nd Applicants failed to adhere to. Non-attendance of the AGM by the 6th to 10th interested parties resulted in them receiving extreme backlash from KENASA members being that the 1st and 2nd Applicants misinformed members that the five blatantly disregarded the said AGM. 1. The said backlash resulted in the 1st and 2nd Applicant’s inciting members into forming an Ad Hoc Committee to oust and replace the 6th to 10th Interested Parties with members of the said Ad Hoc committee being the 11th, 12th and 13thInterested Parties. These actions were contrary to the provisions of the KENASA Constitution which provides for the procedure for withdrawal of membership of any member of the National Executive Committee. 1. The interested parties contend that section 4(b) of the KENASA Constitution provides for election of office bearers by making provision for the establishment of an independent committee for purposes of overseeing the election of office bearers where an election policy should also be developed. 1. No such committee was established by the National Executive Council prior to the removal of the 6th to 10th Interested parties and the subsequent election of the Ad hoc committee members. 1. The Applicants have made no efforts to amicably resolve this dispute, but instead made the rift in NEC wider by trying to impose the outcome of the illegal AGM upon the 6th to 10th interested parties. 1. Upon receipt of letter referenced MPSP&DM/SEC/3/4/1 dated 6th June, 2024, the Vice National Chairperson, who is the 6th interested party herein, wrote back to the Respondents vide a letter referenced KENASA NEC/14/06/2024 dated 14th June, 2024 requesting for a fair hearing as well as arbitration, terming the 1stRespondent’s decision as unfair punishment. 1. The 6th to 10thInterested Parties equally raised concerns regarding the service providers’ invoices brought forth by the 1st Applicant on the allegations that they were the alleged expenditure for the AGM. 1. If at all any punitive measures ought to be taken, then the same should be made against the 1st and 2ndApplicants and not the entire National Executive Committee being that it is only the 1st and 2nd Applicants who acted contrary to the directives of the 1st Respondent. **The 6th – 10th Interested Parties’ Submissions;** 1. The interested parties submit that the Respondents exceeded their authority in dismissing the entire Executive Council without properly considering the conduct of individual members. 1. They submit that the evidence before this Court demonstrates that the 6th to 10th Interested Parties complied with the Patron’s directions and adhered to all applicable guidelines governing the conduct of the Executive Council. 1. The disciplinary concerns that triggered the Respondents’ actions were specifically attributable to the conduct of the 1stand 2nd Applicants, who disregarded and openly dismissed the directions issued by the Patron. 1. The Interested Parties cannot therefore be punished for actions that they neither participated in nor endorsed. 1. They submitted that it is a cardinal principle of justice that liability must be personal and not collective and therefore, a disciplinary sanction must be directed at those responsible for the impugned conduct. 1. They submit that by dismissing the entire National Executive Council, the Respondents unfairly prejudiced members who had faithfully complied with the Patron’s directions and discharged their duties diligently. 1. Such an action amounts to an arbitrary exercise of authority which this Honourable Court ought not to endorse. 1. Further, that the decision by the 1st Respondent to disband the KENASA Executive committee was in contravention of Article 47 of its Constitution which requires him to give notice of hearing and a fair hearing be conducted before making such a drastic decision. 1. They cited section 3 and 4(6) of the Fair Administrations Actions Act and urged that the 1st Respondent’s actions failed to adhere to section 4(6) of the Fair Administrative Actions Act hence are subsequently unprocedural and illegal. 1. Reliance was placed on the case of **Association v Mbiyu & 2 Others** **(Tribunal Case 1 of 2022) [2022] KEMSET 236 (KLR).** 1. They reiterated the contents of their replying affidavit and maintained that they complied with all directions issued by the Patron. 1. Further, that the doctrine of natural justice is intended to promote fairness and accountability, not to protect individuals who deliberately disregard lawful authority. 1. They submit that the Applicants have failed to demonstrate how the alleged procedural breach materially prejudiced them in light of the undisputed fact that they had ignored the 1st Respondent’s directives. 1. They urged the court to dismiss the Applicants’ case with costs. **Analysis and determination:** Following are the issue for determination; 1) Whether the Application has merit. 2) Who shall bear costs. Whether the Application has merit. 1. It is not in dispute thatthe KENASA is an Association that is registered under the Societies Act, Cap 108 Laws of Kenya. 1. It is also not in dispute that its members are Professional Secretaries drawn from both the public and Private sectors in Kenya. 1. By a letter dated 6th June 2024 under reference no. MPSP&DWSEC/3/4/1 signed by the 1st Respondent addressed to the 1st Applicant, the 1st Respondent disbanded the National executive Council of KENASA and in place thereof, purported to constitute an interim committee and superimposed it on KENASA in place of the duly elected KENASA NEC. 1. Arising from the said letter, the 1st interested party who is appointed as the Chairperson of the interim committee issued a notice convening a meeting ion 20th June 2024 perpetuating the illegalities. 1. On 6th June 2024 through a letter addressed to the 1st Applicant, the 2nd Respondent communicated her decision of having declined to make changes to KENASA file being the resolutions made by members during the meeting of 26th April 2024 because of a complaint regarding the conduct of the Annual General Meeting. 1. Section 18of the Societies Act which deals with disputes as to officers of a society. The section provides as follows: *“(1) If the Registrar is of the opinion that a dispute has occurred among the members or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of the society, the Registrar may, by order in writing, require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute.* *2. If an order under subsection (1) of this section is not complied with to the satisfaction of the Registrar within the period of one month or any longer period which the Registrar may allow, the Registrar may cancel the registration of the society.* *3. A society aggrieved by the cancellation of its registration under subsection (2) may appeal to the High Court within thirty days of such cancellation.”* 1. Section 18 gives guideline of what should happen if a dispute as to officers of a registered society arises. The Registrar should order the offending society in writing to resolve the dispute or institute proceedings for the settlement of the dispute within one month or such period as the Registrar may certify, failure to which the Registrar may deregister the society. 1. The Kenya National Secretaries Association (KENASA) was registered on 14th August, 2008 under the Societies Act Chapter 108 Laws of Kenya under registration number 29235 and file no. SOC/53963.m as a result of which it falls under the regulatory power of the 2nd Respondent. 1. The office of 2nd Respondent received a letter dated 29th April, 2024 from the Vice National Chairperson referenced No. KENASA NEC/02/2024 informing her of non-compliance with the Annual General Meeting. 1. Upon receipt of the said letter, the Registrar of Societies wrote to National Secretary giving 21 days from 6th June 2024 to respond to the matters in the said letter to enable the office chart a way forward. 1. The 2nd Respondent should have followed this up with the statutory steps under Section 18 (2) of the Societies Act which it failed to do. 1. The 2nd Respondent through her letter dated 6 th June 2024 wrote to the National Chairperson informing her that she has been notified that there is a complaint regarding the conduct of the Annual General Meeting held on 26th, April, 2024 and hence no changes could be effected while there was an existing complaint. 1. Further the 2nd Respondent through her letter dated 6 June 2024 wrote to the Branch Manager Co-operative Bank Parliament Road Branch, notifying of the dispute regarding the bank signatories of the association and seeking immediate freezing of the activities of the association’s accounts until resolution of the disputed changes. 1. It is this court's finding and I so hold that in issuing the letter dated 6th June 2024 to the Branch Manager Co-operative Bank Parliament Road Branch, the 2nd Respondent acted ultra vires and contrary to Section 18 (1) and (2)of the Societies Act. 1. In the case of **Republic Vs. Registrar Of Societies Ex-Parte** **Applicants: Francis Kirima M’ikinyua, John Wainaina Ndungu And Peter Kibe Mutiga (Suing As The Officials Of Zimman Settlement Scheme Society) & 12 Others [2014] Eklr,** the Registrar of Societies had appointed a committee to manage the affairs of a registered society due to leadership wrangles. Odunga, J. held that the Registrar exceeded his mandate under the Societies Act. The learned Judge stated that:- *“In my view where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority. In Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530 it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Similarly, in East African Railways Corp. vs. Anthony Sefu Dar-Es-Salaam HCCA No. 19 of 1971 [1973] EA 327, it was held that it has been recognised for a long time past, that courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it. An administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law. See R vs. Barnet London Borough Council Ex Parte Nilish Shah [1983] 1 ALL ER 226 at 240.* 1. In this case, it is the Respondent’s contention that *there is* *confusion and leadership wrangles within the society and that it was this state of affairs which led to the impugned decision. If that was the position one would have expected the Respondent to act pursuant to the provisions of section 18 of the Societies Act, Cap 108 Laws of Kenya (hereinafter referred to as the Act)...* 1. It is clear that there is no express power conferred on the Respondent under the said provision that empowers him to appoint a committee to manage the affairs of a society and the Respondent has not pinpointed any other provision which empowers him to do so. Without any such powers, it is clear that the Respondent purported to exercise a power not expressly bestowed upon him by the law and hence exceeded his mandate under the said Act. In other words the Respondent acted *ultra vires* his powers and that rendered his action an illegality.” (emphasis added) 1. The 2nd Respondents acted *ultra vires* her power and that rendered her action illegality by acting outside the provisions of Section 18 of The Societies Act. 1. The court also to look at the 1st Respondent’s conduct in order to satisfy myself whether the 1st Respondent acted within the law which I hereby do. 1. On 7th May, 2024 the 2nd Respondent received a letter dated 2nd May 2. the National Chairperson forwarding minutes of the Annual2024 General Meeting held on 26th April 2024 requesting for an approval of the resolutions therein to enable the association to change bank signatories and to pay training and AGM expenses. The 2rd Respondent received a letter addressed to the Solicitor General dated 30th May 2024 reference No. MPSP&DM/SEC/3/4/1 VOL.II (2) from the Principal Secretary Ministry of Public Service. Performance and Delivery Management informing her that the chairperson of the association had proceeded to hold a training and an Annual General Meeting from 22nd to 26th April 2024 despite the directive of the patron to postpone the meeting for proper planning. 3. The said letter of 30th May 2024, informed the 2nd Respondent that a decision had been reached that urgent measures needed to be put in place to arrest the situation and save the association from being mismanaged. 1. The said letter stated that it had been proposed that an interim committee be constituted to oversee the management of the association for a period of two (2) years and it outlined their terms of reference. 1. Through this letter the 1st Respondent sought the advice of the 2d Respondent on the constitution of the interim committee to oversee the association's affairs pending election of new office bearers. 1. The 2d Respondent responded to the Principal Secretary through a letter dated 6th June 2024 approving the request to constitute an interim committee to oversee the affairs of the association until the dispute is resolved. 1. It is this court's finding that in setting up the interim committee, the 1st Respondent acted *ultra vires* his powers and that rendered his action an illegality given that it acted on the basis of the 2nd Respondents approval which was given without any statutory underpinning and in violation of Section 18 of the Societies Act. 1. For the foregoing reasons, it is my considered view that the application for the orders of certiorari are merited and should be allowed. 1. The applicants also sought an order of mandamus. 2. Guided by the holding of the Court of Appeal on the nature of the remedy of mandamus in its decision in Republic vs Kenya National Examinations Council ex parte Gathenji and 9 Others, [1997] e KLR. The said Court held as follows in this regard:- *“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS" Once Again We Turn To HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 At Page 111 FROM PARAGRAPH 89. That Learned Treatise Says:-* *“The order of mandamus is of a most extensive remedial nature, and* *is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”* 1. At paragraph 90 headed “the mandate” it is stated: *“The order must command no more than the party against whom the application is made is legally bound to perform.”* 1. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.” 1. The court is satisfied that the applicants have made out a case for the grant of the order of Mandamus as sought. 1. The Applicants had also prayed for a prohibition order. 2. In order to determine this issue, I am guided by the case of **Republic** **v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR,** where the Court rendered itself thus: *"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.* *"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."* 1. In the case of **Kenya National Examination Council versus** **Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR**, the Court stated the grounds upon which such an order of prohibition may issue as follows; *“What does an order of prohibition do and when will it issue" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”* 1. The applicants have made out a case for the grant of the order of prohibition and I so hold. **Costs;** 1. In Halsbury’s Laws of England***,*** 4th ed Re-Issue (2010), Vol. 10, para. 16:- *“The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not award them. This discretion must be exercised judicially;* *it must not be exercised arbitrarily but in accordance with reason and justice”* [emphasis supplied]. 1. The applicants are entitled to costs. **Determination;** 1. The Application has Merit. **Order;** 1. An order of certiorari is hereby issued bringing into the High Court quashing the letter dated 6thJune 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent and addressed to the 1stApplicant. 2. An order of prohibition is hereby issued directed at the 1st Respondent and all persons listed under the said letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent and addressed to the 1st Applicant, from dealing or executing anything whatsoever and or howsoever insofar as furtherance of contents therein as it relates to the Kenya National Secretaries Association *(hereinafter referred to as KENASA)* are concerned. 3. An order of certiorari is hereby issued quashing, the letter dated 6thJune 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the Branch Manager, Cooperative Bank, Parliament Road Branch and copied to 6th Interested Party. 4. An order of certiorari is hereby issued bringing into the High Court for purposes of being quashed, the letter dated 6thJune 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 1st Applicant declining to make changes as per the KENASA members’ Resolutions during the Annual General Meeting held on 26th April 2024. 5. An order of certiorari is hereby issued bringing into the High Court for purposes of being quashed, the letter dated 6thJune 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 2nd Applicant seeking explanation upon a biased and predetermined verdict. 6. An order of mandamus is hereby issued compelling the 2ndRespondent to admit and give effect to the resolutions made during the KENASA’s Annual General Meeting held on 26th April 2024 as well as the Special General Meeting held on 7th June 2024. 7. Costs to the applicants. **Dated, signed and delivered at Eldoret Virtually this 14th day of May 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**