https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8107

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **IN THE CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E052 OF 2024** **IN THE MATTER OF: ARTICLES 2(1) AND (2), 3(1), 10, 19(1) AND (2), 20(1), 21(1), 22(1), 23(1) AND (3), 24(1), 35(1)(b), 47(1) AND (2), 50(1), 159(1), 165 (3), 232(1), 258 AND 259(1) AND (3) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 35(1)(b), 47(1) AND (2), 50(1), AND 232(1)(c) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013** **BETWEEN** **MALI ADVOCATES LLP………………………..…………...1ST PETITIONER** **EDWIN HAROLD DAYAN DANDE…………………………2ND PETITIONER** **AND** **THE DIRECTOR GENERAL** **BUSINESS REGISTRATION SERVICE…………………...1ST RESPONDENT** **THE REGISTRAR OF LIMITED** **LIABILITY PARTNERSHIPS……………………………...2ND RESPONDENT** **THE OFFICIAL RECEIVER………………..…………...…3RD RESPONDENT** **THE HON. ATTORNEY GENERAL……….……..……..…4TH RESPONDENT** **AND** **THE LAW SOCIETY OF KENYA………………...….…INTERESTED PARTY** **JUDGMENT** 1. This judgment determines the amended petition dated 1st February, 2026. The facts giving rise to the petition as amended are that the 1st Petitioner being a law firm duly incorporated under the provisions of the Limited Liability Partnership Act, No. 42 of 2011 was issued with a Certificate of Registration of a Limited Liability Partnership – LLP-G81Q555 on 9th November, 2022, having satisfied Sections 17 and 20 of the LLP Act. 2. The 2nd Petitioner is a male adult of sound mind and understanding and the former statutory manager of the 1st Petitioner. It is pleaded that on 30th June 2023, Ms. Lilian Maina who was initially registered as a partner in the aforesaid law firm, tendered her resignation and that on the same date, the Partners passed a resolution acknowledging her resignation and that a Statutory Declaration formalizing her resignation was sworn on 1st July 2023. 3. That following her resignation, the 1st Petitioner appointed Mr. Ernest Mugao as a Partner to replace Ms. Lilian Maina and that appointment was effected through a resolution dated 31st August 2023. Subsequently, on 4th September 2023, Mr. Noah Randiek resigned from the said law Firm vide a formal resignation notice, supported by the requisite Statutory Declaration dated 4th September 2023. 4. It is asserted that on 11th September 2023, the Partners of the 1st Petitioner passed a resolution acknowledging the resignation of Mr. Noah Randiek and concurrently appointed Ms. Celestine Koile as a Partner and that on the same date, the 1st Petitioner also resolved to change its registered address. Later, on 30th January 2024, the 1st Petitioner appointed Mr. Adamskey Ojwang Dudi as a Partner through a resolution of the Partners, which change was officially recorded in a Statement of Change of Particulars dated the same day. 5. That Ms. Celestine Koile subsequently tendered her resignation from the firm, which resignation was accepted during the 1st Petitioner’s Partners’ meeting held on 28th January 2025. Her resignation was supported by a Statutory Declaration formalizing her exit from the partnership. 6. Consequently, that the Partners at the 1st Petitioner presently comprise of Adamskey Dudi Advocate and Ernest Muriungi Advocate. 7. The petitioners aver that on 27th March 2025, Mr. Adamskey Dudi was authorized to act on behalf of the 1st Petitioner in the instant Petition. 8. According to the petitioners, prior to incorporation of the law firm, the 1st Petitioner submitted the necessary documents antecedent to its registration to the Interested Party, the principal regulatory authority over the legal profession. That the Interested Party, having satisfied itself that all the requirements mandatory to registration of a law firm had been met, issued the 1st Petitioner with a Letter of No Objection. 9. It is asserted that the 1st Petitioner has and continues to carry on its operations until sometime on or about 11th May, 2023, when the Interested Party notified it that its irregular conduct has been registered because of the practice of an unqualified person by the name Edwin Harold Dayan Dande, the 2nd Petitioner. In its said letter, the Interested Party noted that Section 9 of the Advocates Act qualifies the practice of law for advocates who have been admitted, their names being on the roll and possess a practicing certificate. That the Interested Party further stated that Section 37 of the Advocates Act and Rule 4 of the Advocates Practice Rules prohibits the sharing of profits with unqualified persons. 10. Against this backdrop, the Interested Party wrote to the 1st Respondent on 16th June, 2023 asking them to immediately deregister the 1st Petitioner since it had a statutory manager who is not qualified. The Interested Party relied on the Business Names Act, and Section 37 of the Advocates Act which prohibits the sharing of profits with unqualified persons. That engagements between the 1st Petitioner and the Interested Party led to the resignation of the 2nd Petitioner as a statutory manager~~.~~ 11. Upon receiving the 2nd Petitioner’s application for resignation, theInterested Party wrote to the 1st Respondent on 27th June, 2023 indicating that the 1st Petitioner had duly regularized its constitution and that therefore, the interested party had no issues regarding the operations pf the 1st petitioner and that the issue of deregistration should now be rested. 12. The petitioners contend that the above facts notwithstanding, since its inception, the 1st Petitioner has tried to effect various changes to its membership and change of address in vain. That on or about 30th June, 2023, one of the Partners of the 1st Petitioner lodged her resignation as a partner but that despite lodging the application in the prescribed manner and paying the requisite fees, the 1st Respondent has never approved the same, and has always asked the 1st Petitioner to contact the 3rd Respondent on the same, which had taken forever. 13. The petitioners also lament that equally, on 4th September, 2023, another Partner of the 1st Petitioner lodged his resignation in the prescribed manner and paid the requisite fees but that to date, the 1st Respondent has never approved the said application. 14. Again, it is contended that on 11th September, 2023, the 1st Petitioner held a meeting wherein it was resolved that another Partner be onboarded but that despite the said application being lodged in the prescribed form, the same has not been acted upon and/or approved. Further, that the Interested Party has cautioned the 1st Petitioner not to undertake its operations until it is fully constituted and in full compliance with the law. 15. It is asserted that the 1st Petitioner has written to the 1st Respondent to seek clarity on the pending applications to wit: 16. ROM-KOTM9OR: Resignation of Manager submitted on 21st June, 2023 17. ROP-8J8WPZ: Resignation of Partner submitted on 3rd July, 2023 18. CRALLP-2ETLMWZ: Change of address submitted on 3rd July, 2023 19. AOP-YLTORKT: Appointment of Partner submitted on 6th September, 2023 20. ROP-QPTJZVP: Resignation of Partner submitted on 27th October, 2023. 21. AOP-J5TP6A2: Appointment of Partner submitted on 27th October, 2023. 22. CRALLP-AKT69LR: Application for Change of Registered Address submitted on 20th November, 2023. 1. That on 6th November, 2023, the 1st Petitioner sought a response on this issue but to date, no response has been forthcoming from the 1st respondent. Again, on 11th and 15th December, 2023, the 1st Petitioner wrote to the 1st Respondent on the pending applications, but that the notifications on their accounts with the 1st respondent indicated that they seek redress from the 3rd Respondent, which came as a surprise and a shock as it is the 1st Respondent who is duly mandated by law to effect changes of the lodged applications. 2. The petitioners claim that time and again, the 1st Petitioner has sought an explanation on why the change of particulars should be directed to the 3rd Respondent but received no response form the 1st respondent and that as a consequence of the 1st Respondent’s failure to effect changes made by the 1st Petitioner, the Interested Party avers that the 1st Petitioner is not properly constituted to undertake operations as a firm of advocates in the nature of an LLP. 3. That although the 1st Respondent contends that the Petitioners’ representatives should contact the 3rd Respondent regarding the lodged applications, the 1st Petitioner is solvent, hence the 3rd Respondent has no business overseeing the changes to be effected by the 1st Petitioner. 4. The petitioners therefore assert that the failure by the 1st Respondent to approve changes duly lodged by the Petitioners in the prescribed form violates the 1st Petitioner’s right to legitimate expectation, contrary to Article 232(1)(c) that binds public officers and offices to be responsive, prompt, effective, impartial and equitable in provision of services. 5. The petitioners further assert that failure by the 1st Respondent to approve changes duly lodged by the 1st Petitioner in the prescribed form violated the Petitioners’ right to fair administrative action, contrary to Article 47(1) and (2) of the Constitution. 6. Further, that failure by the 1st Respondent to provide the Petitioners with information on the status of their applications violates the Petitioners’ right to access to information contrary to Article 35(1)(b) of the Constitution. 7. Additionally, that failure by the 1st Respondent to accord the Petitioners an opportunity to be heard violates the Petitioners’ right to a fair trial contrary to Article 50(1) of the Constitution. 8. As against the Official Receiver, the petitioners aver that by directing the 1st Respondent to place restrictions on changes effected by the 1st Petitioner, the 3rd Respondent has not only acted *ultra vires*, but that it has done so in brazen breach of the Petitioners’ right to legitimate expectation under Articles 35(1)(b), 47(1) and (2), 50(1), and 232(1)(c) of the Constitution. 9. The petitioners therefore pray for the following reliefs and orders: 10. ***A declaration that the 1st Respondent has violated the Petitioners’ right of access to information under Article 35(1)(b) of the Constitution.*** 11. ***A declaration that the Petitioners’ constitutional rights under Article 47(1) and (2) of the Constitution have been violated by the 1st and 3rd Respondents.*** 12. ***A declaration that to the extent that the 1st Respondent has refused to approve the Petitioners’ applications for change in its membership and change of address, that such refusal is unreasonable, irrational, unprocedural ~~and~~ outright unconstitutional.*** 13. ***An order of mandamus compelling the 1st Respondent to forthwith approve the 1st Petitioner’s applications on its membership and change of address.*** 14. ***An order of mandamus compelling the 1st Respondent to forthwith approve the 2nd Petitioner’s application for resignation as Statutory Manager submitted on 21st June, 2023.*** 15. ***Costs of this Petition*** 16. The petition as amended is supported by the affidavit sworn by Adamskey Dudi, the managing partner of the 1st petitioner LLP. He annexes to his affidavit, documents which the petition is anchored on as evidence in support and reiterates the averments in the amended petition as reproduced hereinabove. He maintains that the failure by the 1st respondent to approve the changes lodged by the 1st petitioner is a violation of the petitioners’ legitimate expectation and Article 23 (1( ( c) of the Constitution on the principles and values of public service; Article 47 on the right to fair administrative action; Article 50(1)on the right to a fair hearing; Article 35(1) (b) on the right to access information held by the State; and that the said failure greatly prejudiced the petitioners, subjecting them to hardship. 17. Despite being served, the respondents did not file any response to the amended petition. Only the interested party, Law Society of Kenya filed a replying affidavit sworn on 13th October, 2025 by Florence Muturi, the CEO. 18. In the said replying affidavit, the interested party sets out its statutory mandate and role in regulating the practice of advocates. She literally restates what the petitioners have pleaded on how it came to be known that the 1st petitioner was operating with non-advocates as managers and partners upon which the interested party wrote to them directing them to cease operations and regularise its constitution. 19. It is also deposed that the interested party acted within its mandate in writing to the 1st respondent and asking it to deregister the 1st petitioner on account of the provisions of the law under the Business Names Act, section 37 of the Advocates Act and the Advocates (Practice) Rules which prohibits law firms from sharing of profits with unqualified persons noting that the 2nd petitioner was not an advocate yet he was registered as a statutory manager of the 1st petitioner law firm. That therefore the interested party did not act ultra vires hence the amended petition should be dismissed as it is not merited or filed in the interest of justice. 20. The petitioners filed a further affidavit sworn by Adamskey Dudi in which he deposes that at paragraph 12 of its replying Affidavit, the Interested Party seeks to justify its earlier recommendation for deregistration by reliance on the Advocates Act and the Advocates (Practice) Rules, on the basis that unqualified persons are prohibited from sharing in a law firm’s profits, which concerns the petitioners do not dispute save that these were the initial concerns raised by the interested party but that the Affidavit sworn on behalf of the Interested Party is materially incomplete, as it fails to disclose what transpired after those concerns were raised and engagements held between the Petitioners and the Interested Party. 21. The petitioners reiterate that the 2nd Petitioner resigned as a statutory manager and upon receiving the 2nd Petitioner’s resignation, the Interested Party wrote to the 1st Respondent on 27th June 2023 indicating that the 1st Petitioner had duly regularized its constitution and that it has therefore no issues regarding its operations and that the issue of deregistration should now be rested. 22. That despite the foregoing, the Interested Party does not respond at all to the specific and material factual averment at paragraph 52 of the Petition, to the effect that after the resignation of the Statutory Manager, the Interested Party issued a letter of no objection confirming regularization of the 1st Petitioner. 23. That the Interested Party having failed to respond to or deny the specific averment at paragraph 52 of the Petition and having not revoked or reviewed its letter of no objection, the said letter remains valid and not disputed by the Interested Party. 24. Only the petitioners filed their written submissions despite the court according all the parties time to file their written submissions. The petitioners’ submissions dated 26th January, 2026 framing the following three issues for determination: 1. ***Whether the 1st Respondent violated the Petitioners right to access information under Article 35(1)(b) of the Constitution?*** 2. ***Whether the 1st Respondent violated the Petitioners right to fair administrative action under Article 47(1) and (2) of the Constitution?*** 3. ***What are the appropriate reliefs*?** 25. On the 1st issue, it is submitted that the 1st Respondent’s failure to respond to written correspondence dated 6th November 2023 and the subsequent letters of 11th and 15th December 2023, constitutes a clear violation of the right of access to information guaranteed under Article 35 of the Constitution. 26. Reliance is placed on the case of **Katiba Institute Vs Presidents Delivery Unit & 3 others [2017] eKLR** where the court is said to have held that: ***"... It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information..."*** 1. The petitioners also relied on the cases of **Nairobi Law Monthly v Kenya electricity Generating Company & 2 Others** (no citation), **Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR, President of Republic of South Africa v M & G Media**-no citation, **Brummer v Minister for Social Development & Others-**no citation **and Attorney General v Kituo cha Sheria & 7 others [2017] eKLR** to urge that the petitioners were entitled to the information sought from the 1st respondent following the communication by the interested party and the resignation of the unqualified persons and joining of new partners into the LLP Law firm, the 1st petitioner herein. 2. On the 2nd issue of whether the 1st Respondent violated the Petitioners right to fair administrative action under Article 47(1) and (2) of the constitution, the petitioners submitted that the Respondent’s failure to approve changes duly lodged by the Petitioners constitutes an act of administrative inaction that violates Article 47(1) of the Constitution. They urged that once an application is properly lodged, the 1st Respondent is under a constitutional duty to process and determine it within a reasonable time. That the unexplained failure to do so amounts to unfair administrative action by omission. The petitioners rely on various decisions to argue this point namely: **Katiba Institute v Attorney General & 3 others; Independent Medico-Legal Unit & 3 others (Interested Parties) (Constitutional Petition 26 of 2019) [2023]; Katiba Institute v President of Republic of Kenya & 2 others; Judicial Service Commission & 3 others (Interested Parties) (Petition 206 of 2020) [2021];** of **Republic v Nairobi City County Assembly & another; Musumba & 4 others (Exparte) [2024]; and S N v Cabinet Secretary for the Ministry of Interior and Co-ordination of National Management Services, Director General, Kenya Citizens & Foreign Nationals Management Services & Attorney General [2016].** 3. On the 3rd issue, of what are the appropriate remedies in the circumstances. It is submitted that in light of the facts, evidence and applicable law, the Respondents violated the Petitioner’s right of access to information, right to fair administrative action and have offered no justification for that violation. 4. For that reason, the Petitioners submit that they have proved their case to the required standard and must succeed. They rely on the case of **Tinyefuze v Attorney General of Uganda [1997] UGCC3** where the court is said to have stated that; ***"if a petitioner succeeds in establishing breach of a fundamental right, he is entitled to the relief in exercise of Constitutional jurisdiction as a matter of course."*** **Analysis and determination** 1. I have considered the amended petition and the supporting affidavit together with the replying affidavit filed by the interested party, the further affidavit and the submissions filed by the petitioner and the main issue for determination is whether the petitioners’ rights to access information and fair administrative action were violated as alleged by the petitioners. 2. The petition in my view, raises very simple matters which could have been effectively and expeditiously been handled by a court exercising judicial review jurisdiction and not necessarily as a constitutional petition. However, in view of the fact that judicial review is now a constitutional remedy under Article 23, I would not send the file to the Judicial Review Division. 3. I will nonetheless determine whether the petitioners’ rights as pleaded were violated by the 1st respondent. I will commence with the right to access information. **Article 35 of the Constitution** provides that: 4. ***Every citizen has the right of access to—*** 1. ***information held by the State; and*** 2. ***information held by another person and required for the exercise or protection of any right or fundamental freedom.*** 5. In the instant case, the question is whether the petitioners sought any information from the 1st respondent or they were simply seeking for an administrative action to be taken, to accept the changes in terms of the partners in the 1st petitioner law firm and to effect those changes, which changes include recognition of resignation of the unqualified persons as partners and statutory manager, the resignation of one advocate and the joining of other advocates as partners in the LLP, 1st petitioner herein having filed a form for such changes as required by law and the interested party regulator having accepted those changes to allow proper constitution of the 1st petitioner as a LLP. 6. To determine whether there was violation of the right to access information, this court must identify what information the petitioners were allegedly entitled to. The petitioners at paragraph 26 of their written submissions claim that they were entitled to receive information held by the 1st Respondent explaining the status of the lodged applications and the reasons for non-processing thereof. That the continued silence by the 1st Respondent amounts to a constructive denial of information, which the courts have held to be impermissible in a constitutional democracy. The petitioners proceed to explain why the right to access information is important namely, that the right to access information is a basis for accountability, responsiveness and openness. 7. I have assessed the petitioner’s claim that this court should deem the conduct of the 1st respondent in refusing to effect changes to the register on the status of the partnership and not giving reasons for the failure to effect such changes as requested by the 1st petitioner to be constructive denial of access to information. I disagree. The right to access information is an express right which cannot be construed through interpretation. A person seeking information held by the state or by a private citizen must be clear on what information they seek and seek such information in writing. Where such information is denied or there is no responsiveness to the request, the procedure for enforcement of that right to access information is clearly spelt out in the Access to Information Act. 8. There was no such request for any specific information by the petitioners. In my view, the petitioners are confusing the right of access to information and the right to a fair administrative action which is guaranteed under Article 47 of the Constitution. This is because, although the two rights are related, they are nonetheless distinct. 9. The main distinction between the two rights in the present scenario is that the Director General of Business Registration Services having allegedly refused, delayed, ignored, failed to process and or declining to effect the requested changes in the LLP Register, he or she in essence was unreasonable, acted unlawfully, procedurally unfair and had not acted with expedition and or giving reasons for such refusal or failure to effect the changes requested. 10. Where the Director General refuses to register the resignation of a partner or manager or an incoming partner and gives no reasons for such refusal, despite an appropriate application having been made before him or her, or simply remains silent thereby ignoring the application, then, to the extent that the Director General has refused to act and without giving any reasons for such refusal, fundamentally, that is an administrative action issue and not an access to information problem. 11. There is no evidence that what the petitioners sought was to exercise the right guaranteed under Article 35 of the Constitution, which right concerns access to information held by the State or another person where required for protection of a right. For example, there is nothing to demonstrate that the petitioners asked for any records and those records were denied in which event, as earlier stated, the petitioners would be expected to enforce the right to access information as provided for under the Access to Information Act. 12. The above position is supported by the holding by the Supreme Court in **Kenya Railways Corporation & 2 others v Okoiti & 3 others [2023] KESC 38 (KLR)** where the apex Court stated as follows: ***“Article 35 of the Constitution of Kenya 2010 provides for the right to access information held by the State, including that held by public bodies. The Access to Information Act No 31 of 2016 was enacted to give effect to article 35 and sets out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to this provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency. In Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others Nrb Petition No 25 of 2013 [2013] eKLR, the High Court stated as follows:*** ***“However, in order for this right to be justiciable, it must be established that the person seeking the information has sought the information, and access to such information has been denied. ... In the instant case, no request for information has been made to the respondents. The enforcement of the right cannot therefore be said to have crystallized.”*** 1. Accordingly, I find that the petitioners have not demonstrated that their right to access information as guaranteed under Article 35 of the Constitution was violated. accordingly, prayer a of the amended petition is dismissed. 2. On whether the petitioner’s right to fair administrative action as guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act was breached by refusal to approve the petitioner’s application for change in its membership and change address, the uncontroverted evidence of record is that the Law Society of Kenya, which regulates the practice of advocates did raise the issue with the 1st petitioner that the 1st petitioner had associates which were not qualified advocates. upon the issue being raised, and a demand made that the petitioners regularize the irregularity, the petitioners did make amends and the Law Society of Kenya did confirm the regularization. what now remained was for the 1st respondent to approve the application for the changes to be effected, as submitted in the appropriate form since the unqualified persons had resigned and now, qualified persons had joined the firm for it to be a going concern. 3. Section 2 of the Fair Administrative Action Act defines failure to include refusal to take an administrative action. Under section 4, an administrator is under a duty to give reasons for failure to take an administrative action. The 1st respondent is responsible for registration of business names and to effect changes to such business names and firms as and when requested to do so, and on application in the prescribed manner. Where it is called upon to effect registration or changes, it is under a duty to act or refuse to act but with reasons in writing. 4. In the present case, the petitioners have adduced evidence to show that the Law Society of Kenya did write to the BRS to indicate that the petitioners had since rectified the anomaly of having unqualified persons as associates and or managers of the LLP contrary to sections 9 and 37 of the Advocates Act and Rule 4 of the Advocates Practice Rules. There is evidence that the 2nd petitioner resigned as manager vide his letter dated 21st June, 2023 and Mr. Noah Odhiambo Randiek was nominated as the new manager and the LSK notified of those changes and on 27th June, 2023, the LSK wrote to the 1st respondent lifting the deregistration request. 5. Ms Lilian Maina on the other hand resigned on 30th June, 2023 as a partner of the firm followed by Mr. Randiek on 4th September, 2023 and on 11th September, 2023, Ms Celestine Koile filled form LLP-9 as an incoming partner. Mr. Ernest Mugao joined vide LLP-9 filled on 30th January, 2024 together with Mr. Adamskey Ojwang Dudi. the 1st respondent did not effect the changes and on 28th November, 2023, the 1st respondent wrote to LSK indicating that the partners were still Mr. Noah Odhiambo Randiek and MS Lilian Maina while Mr. Dande remained as a manager. This information was in the view of this Court, inaccurate as the 1st respondent ought to have effected changes as per the various LLP-9 forms filled and submitted by the 1st petitioner, now that the regulator of legal practice, LSK, had given the greenlight that the 1st petitioner was now compliant following the resignations of Mr. Dande and Ms Maina. furthermore, this issue was litigated upon in Civil Application Nos. Nai. E590- E593, E597, E601, E607 and E615 of 2023 vide ruling delivered on 24th January, 2025 by the Court of Appeal. 6. This Court has not been shown any other pending issue with the 1st petitioner, whether with LSK or with the respondents. The 1st respondent has not given any reasons in writing as to why it cannot approve the changes made by the 1st petitioner which changes involve resignation of unqualified partners and the manager as well as the joining into the firm of other associates who have not been shown to be unqualified persons, to run the LLP. For that reason, I find that the 1st petitioner has demonstrated that its right to a fair administrative action has been violated as no reasons have been provided, not even in these proceedings, for failure to approve the application for the changes and to effect the changes sought by the 1st petitioner. Furthermore, it is the statutory duty of the 1st respondent to receive and either approve or reject the application and in rejecting, it must give reasons, which reasons, I reiterate, have not been given, prompting the petitioners to institute these proceedings. 7. In this Court’s view, the 1st respondent has failed to perform its statutory duty, is guilty of unreasonable administrative delay, procedural unfairness, irrationality, abuse of discretion and failure to give reasons in writing for refusal to approve the applications lodged by the 1st petitioner and effecting the changes sought. The petitioners had a legitimate expectation that their application to effect the changes sought would be considered and either approved or rejected and in the latter case, the reasons for rejection would be provided to them and in writing. the petitioners do not operate the 1st respondent’s systems and therefore the failure to make changes applied whether through negligence or lethargy on the part of the 1st respondent should not make the 1st petitioner suffer prejudice. 8. Mandamus is the appropriate remedy for compelling performance of a statutory duty, but not on how to perform that duty. This is a settled principle as espoused in various judicial pronouncements. In ***Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996.*** the Court of Appeal cited, with approval**, *Halsbury’s Law of England, 4thEdn. Vol. 7 p. 111 para 89***thus: ***"The order of mandamus is of 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. Earlier on, in ***Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543*** where **Goudie, J** eloquently expressed himself, as follows concerning the mandamus remedy and when it will issue: ***“Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has been rendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfilment of that duty…Since mandamus originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the court considers the English decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile… It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government….Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a mandamus is to go, then mandamus will go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the applicant’s decree. It is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament… In the court’s view the granting of mandamus against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do. Likewise there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Treasury Officer of Accounts is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore confined to his Government employer. In mandamus cases it is recognised that when statutory duty is cast upon a Crown servant in his official capacity and the duty is owed not to the Crown but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Where a duty has been directly imposed by Statute for the benefit of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which mandamus will not lie for this reason alone are comparatively few…Mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…On any reasonable interpretation of the duty of the Treasury Officer of Accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benefit of the subject rather than a mere agent of Government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgement giving rise to the applicant’s decree. Therefore an order of mandamus will issue as prayed with costs.”*** 1. In this case, the petitioners have no other remedy for compelling performance of the public duty by the 1st respondent, who is under a public duty to consider for approval of the changes sought by the petitioners and where there is reason to reject the changes, reasons be given in writing and expeditiously. 2. For the above reasons, this Court is satisfied that the petitioner is entitled to reliefs sought in the following terms: 1. ***a declaration is hereby issued that the petitioners’ rights to fair administrative action as guaranteed under Article 47 of the Constitution have been violated by the 1st respondent*** 2. ***an order of mandamus is hereby issued compelling the 1st respondent to approve the 1st petitioner’s applications on its constitution and or membership, resignations and joinders as already submitted in the prescribed forms and effect change of address as submitted by the 1st petitioner*** 3. ***an order of mandamus is hereby issued compelling the 1st respondent to forthwith approve the 2nd petitioner’s application for resignation as a statutory manager submitted on 21st June, 2023.*** 4. ***each party shall bear their own costs of the petition.*** 5. ***decree to issue and be served upon the respondents and the interested party, for compliance within 14 days of service.*** 3. This file is now closed. **Dated, Signed and Delivered virtually at Nairobi this 9th Day of June, 2026** **R.E. ABURILI** **JUDGE**