[2022] KEHC 2698 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.E088 OF 2021

IN THE MATTER OF ARTICLES 22 AND 23 OF THE CONSTITUTIONOF KENYA

AND

IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 27, 35, 36, 38, 47 AND 81 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE GOVERNANCE OF THE KENYA SWIMMING FEDERATION

BETWEEN

MARGARET NDUNG’U MWASHA ………………,……………. 1ST PETITIONER

LT COL (RTD) CONRAD DERMOT BILTCLIFFE THORPE…2ND PETITIONER

VERSUS

KENYA SWIMMING FEDERATION …………….....…..………. 1ST RESPONDENT

SPORTS KENYA ………………………………........………….…. 2ND RESPONDENT

SPORTS REGISTRAR …………………….…….…...….….……. 3RD RESPONDENT

THE ATTORNEY GENERAL ……….…………..……….……... 4TH RESPONDENT

BEATRICE OMORO ………………….… 1ST INTERESTED PARTY/APPLICANT

ELIJAH KIMANI ……………………….. 2ND INTERESTED PARTY/APPLICANT

RULING

1. The Notice of Motion dated 18th October, 2021 was filed under certificate of urgency seeking the following orders:

i…………..spent

ii. ……......allowed

iii. ……….spent

iv………...spent

v………….spent

vi. THAT this Honorable court be pleased to review and set aside the order issued by the Hon. Mr. Justice W. Korir on 19th March, 2021 in the application dated 18th March 2021, which granted a temporary injunction against the 1st Respondents, its officials, or agents or employees or anyone purporting to act on its behalf from inviting applications for elections to the Respondent's Executive Board or any way purporting to effect changes in the leadership of the Respondents Executive Board, pending the hearing determination of the application dated 18 March, 2021, and all consequential orders flowing therefrom.

vii. THAT in the alternative, this Honorable court be pleased to reopen the application dated 18th March, 2021, for canvassing interpartes with the participation of the interested parties.

viii. THAT any other consequential and/or incidental relief(s) be made to meet the ends of justice;

ix. THAT the costs of this Application be in the cause.

2. The application is supported by the grounds on its face and the supporting affidavit by Elijah Kimani (2nd Interested party). No affidavit by Beatrice Omoro was annexed. Part of the grounds and averments explain the need to enjoin the applicants as parties in these proceedings, for their in put.

3. The rest of the grounds and averments seek for the setting aside or review of the temporary conservatory orders issued by this court on 19th March, 2021. They explain that the said orders have held the activities of the minors who are members of the Kenya Swimming Federation (1st Respondent) in abeyance. Further that they have been unable to take part in various activities as had been scheduled.

4. It is therefore their prayer that the orders of 1 9th March 2021 be set aside and the application dated 18th March, 2021 be heard afresh with their participation. The deponent Elijah Kimani has set out at paragraph 9 of his supporting affidavit twelve (12) issues which they feel have not been brought to the attention of the court, yet they are paramount. Petitioners filed a replying affidavit through Conrad Bermon Biltcliffe Thorpe (2nd Petitioner) sworn on 16th November, 2021 and a further affidavit by Margaret Ngung’u Mwasha sworn on 8th December, 2021. They were not opposed to the applicants being enjoined as interested parties.

5. It is the petitioners’ averment that the activities of any minors who are athlete members of the 1st respondent are limited to registration for and/or competitions and training, which have not been affected by the order of 19th March, 2021. It is averred that the substance and process of the promulgation of the impugned Constitution is being challenged in the present petition. That the impugned constitution contains a provision on voting in elections which is being contested.

6. It is their averment that the member athlete activities were only interrupted by the Covid-19 pandemic which was later contained and the activities continued. That any other interruption has been caused by the failure to pay registration fees for the last 2 years by members of some counties like Nairobi where both applicants are members. It is further deponed that the grant of prayers 4, 5 and 6 will render the petition and application nugatory and will be a mere academic exercise.

7. In the further affidavit the 1st petitioner depones that their complaint is based on the claim that the 1st respondent has violated section 46 and the second schedule of the Sports Act in terms of election of the members of the Executive Committee. Further that setting aside of the Orders of 19th March, 2021 will not resolve the issue. She further depones that the prayers sought by the applicants are a great miscarriage of justice, an inconvenience and a waste of judicial time. She expected the applicants to respond to the petition and application to save on court’s time. She urges the court not to grant prayers 4, 5 and 6 of the instant application.

8. The applicants filed their submissions dated 10th December , 2021 through Kithi & Co. Advocates. Counsel has submitted that this matter being one involving minors calls on the court to consider the best interest of the children. He has referred to Article 53 (2) of the Constitution and section 4(2) (3) of the Children’s Act. He cited the case of J vs. C (1970) AC 668 which stated as follows as relates to the paramount of the child’s interest:

“A process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare. That is…. the paramount consideration because it rules upon or determines the course to be followed.”

9. Counsel therefore submits that in issuing the orders dated 19th March, 2021 the honourable court did not consider the rights of the children involved. It therefore limited the minors’ rights without any justification. He referred to the case ofObbo & anor V. Attorney General [2004], E. A. 265 where the issue of limitation was considered. In the said case the Supreme Court of Uganda expressed itself as follows:

"It is not correct that the test of what is acceptable and demonstrably justifiable for the purposes of limitation imposed on the freedoms of expression and freedom of the press in a free and democratic society must be a subjective one. The test must conform with what is universally accepted to be a democratic society since there can he no varying classes of democratic societies for the following reasons: (i) First Uganda is a party to several international treaties on fundamental and human rights and freedoms all of which provide for universal application of those rights and freedoms and the principles of democracy. The African Charter for Human and Peoples’ Rights and the International Covenant on Civil and Political Rights are only two examples, (ii) Secondly, the preamble to the Constitution recalls the history of Uganda as characterized by political and constitutional instability: recognizes the people's struggle against tyranny, oppression and exploitation and says that the people of Uganda are committed to building a better future by establishing through a popular and durable constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. When the framers of the Constitution committed the people of Uganda to building a democratic society, they did not mean democracy according to the standard of Uganda with all that it entails but they meant democracy as universally known...It is a universally acceptable practice that cases decided by the highest courts in the jurisdictions with similar legal systems which bear on a particular case under consideration may not be binding but are of persuasive value and are usually followed unless there are special reasons for not doing so.”

10. It is his contention that this court did not consider the issue of limitation of the rights of the minors and whether the limitation is justified. The issue he says was not considered as it was not brought to light by any of the parties. Counsel also referred to the case of Bhutt v. Bhutt Mombasa HCCC No.8 of 2014 (O/S) to buttress his submissions.

11. On whether the orders granted herein should be set aside counsel submitted that under Article 23(1) of the Constitution this court has the power to address issues related to denial, violation and infringement of, or threat to a right or fundamental freedom in the Bill of rights. He also relied on section 3A Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules. He further cited the cases of Richard Ncharpi Leiyagu vs IEBC & 2 other [2013] eKLR; Gidion Mose Onchwati vs Kenya Oil Company Limited and another [2017] eKLR; Auto selection (k) Ltd and 2 others vs. John Namawaka Famba [2016] eKLR among others. He therefore prayed for the vacation of orders granted on 19th March, 2021.

12. The petitioners/respondents in response filed submissions dated 17th December, 2021 by Muma & Kanjama advocates. Counsel gave a summary of the background and facts of the case. He set out two issues as falling for determination namely:

(a) Whether this court should issue orders to review and set aside the impugned ex-parte orders of Hon. Mr. Justice W. Korir given and issued on 19th March, 2021 in the application dated 18th March, 2021; and

(b) Who should bear the costs of the instant application?

13. On the first issue counsel submits that Article 23 (3) of the Constitution affords a party to proceedings brought pursuant to Article 22 an avenue of moving the court for any relief. This he contends was followed and the court was satisfied that the petitioners had satisfied the conditions set for granting a conservatory order to preserve the subject matter of the petition. He referred to the case of Centre for Rights to Education and Awareness & 7 others v. The Attorney General HCCP 16 of 2011.

14. It is Counsel’s submission that a vacation of the impugned order will render the petition and application dated 18th March, 2021 nugatory and a mere academic exercise. Cited is the case of Okiya Omtatah Okoiti v Commissioner General and 2 others [2017] eKLR where Justice Mativo stated:

“The purpose of conservatory orders is to preserve the subject matter so that in the event of the petition succeeding, the same is not rendered nugatory”.

15. Counsel has at paragraph 18 of the submissions set out allegations by the applicants and the responses thereto found in the replying affidavits by the petitioners. The said allegations are based on the issue of the best interest of minors, which he has refuted.

16. He further submits that review orders are intended to correct mistakes and human error and should only be issued in exceptional circumstances. See Benjoh Amalgamated Ltd. Vs Kenya Commercial Bank Ltd [2014] eKLR. He referred to section 80 of the Civil Procedure Act 2010 and Order 45 Rule 1 of the Civil Procedure Rules 2010 which provide grounds for an application for review of orders issued. He submits that the applicants have not shown discovery of any new and important matter, mistake of human error which needs to be corrected. Thus, the said order should not be interfered with.

17. In support of this argument counsel cited the case of Bloggers Association of Kenya (Bake) vs. Attorney General & 5 others [2018] where Justice Okwany W. A. held that :

“Even though Rule 25 of the Mutunga Rules provides that courts may vary, set aside or discharge orders issued under Rule 23 of the said Rules, courts have held that this power must be exercised with great caution and is ordinarily only exercised to correct an error or oversight or to effect a review of the proposed order so that the orders may be able to deal more appropriately with the issues as litigated by the parties.”

18. Counsel urged the court not to set aside the impugned order and instead direct the applicants to file and serve their response to the petition and application dated 18th March, 2021 for the matter to be expeditiously heard and determined. He contends that the applicants have greatly contributed to the delay in hearing this matter especially after being enjoined as parties herein. He asks the court to condemn them to pay costs for the application upon its dismissal.

19. On the 14th December, 2021 Mr. Wangila for the 1st respondent and M/s Chibole for the 2nd, 3rd and 4th respondents informed the court that their clients would not be participating in the application, and so did not file anything in respect of the application dated 18th October, 2021.

Analysis and determination

20. I have considered the application, supporting grounds, affidavit, replying affidavit plus submissions. The main issue falling for determination is whether the applicants have made out a case for setting aside and/or review of the orders issued by Justice Korir on the 19th March, 2021.

21. First of all, I wish to point out that as at the time of issuance of these impugned orders the only parties in this petition were the petitioners and respondents. On 24th May, 2021 the court gave directions on filing of responses and even submissions. The 1st respondent’s replying affidavit to the petition is dated 22nd October, 2021. There is no response to the Notice of Motion dated 18th March, 2021. Further the 2nd, 3rd and 4th respondents have not filed their responses to the petition and the application both dated 18th March, 2021.

22. The applicants only came to court under a certificate of urgency vide a Notice of Motion dated 18th October, 2021 seeking to be enjoined as interested parties – seven (7) months after the filing of the petition. The petitioners and the respondents were not opposed to the issue of joinder by the applicants. The court on 6th December, 2021 granted the order for enjoinment, of the applicant as interested parties.

23. The remaining issue is that of setting aside/reviewing the impugned order. The applicants state that they wanted the impugned order set aside and/or reviewed so that they can participate in the proceedings.

24. When this matter was first placed before justice Korir on 19th March, 2021 this is what he states at page No.1 – 2.

“Upon perusal of the petitioners’ pleadings dated 18. 3.2021 I find that they have established a prima facie case with high chances of success. They have also demonstrated the prejudice to be suffered unless conservatory orders are issued. In the circumstances the notice of motion dated 18. 3.2021 is certified urgent and a temporary order is issued in terms of prayer No.2 of the Notice of Motion.”

25. The applicants are faulting the court for issuing the impugned order on the ground that the rights of minors were violated. The 1st respondent which is the body handling the swimmers never brought this to the attention of the court. Secondly the order issued by the court stopped elections and not swimming activities. If the order is not set aside is it the elections or the swimming (which was not stopped) going to resume?

26. If indeed the impugned order stopped all activities related to swimming why did it take the applicants seven (7) months (March 2021 to October, 2021) to come to court and protest to have the order set aside or stayed?

27. The response by the petitioners to the present application raises serious issues, namely:

(i) Is it true that the impugned order has led to suffering by the swimmers who are minors?

(ii) Has the impugned order resulted in the halting of all activities at the Kenya Swimming Federation?

(iii) Has the impugned order resulted in denial of grants to the 1st respondent as claimed?

The petitioners/applicants have not responded to all these issues by way of affidavit.

28. Counsel have cited very good authorities on considerations to be taken into account by the courts when exercising the discretion to set aside an exparte order. See Richard Ncharpi Leiyagu (supra); Gidion Mose Onchwani (supra); Centre for Rights Education & Awareness(Creao) & 7 others (supra); Benjoh Almagated Limited & another (supra).

29. No error has been pointed out and neither have I seen any error on the record that can be attributed to the court which issued the said orders. The applicants claim of violation of the children’s rights is nowhere on the record save for what the applicants are claiming. The court could not start imagining such without any evidence laid before it.

30. The only open avenue that was available for the applicants was for them upon being enjoined as interested parties to file responses to the application and the petition both dated 18th March, 2021. They too have not done so.

31. Finally the impugned order is not a final one. From the record the court gave directions and was ready to give a date for judgment when the matter was initially fixed for mention on 19th May, 2021. The record shows that the respondents took their sweet time. The 1st respondent filed its reply vide the replying affidavit sworn on 22nd October, 2021 whereas the 2nd – 4th respondents have filed no response to the petition and the application.

32. The Hon. Justice Korir appreciated the urgency of the matter and gave directions with strict timelines more than once. The same are yet to be complied with.

33. All in all I find that the applicants have failed to convince this court of any good reason that would make it interfere with the exparte temporary order granted by the judge on 19th March, 2021. There is no evidence of any suffering by the swimmers as a result of the impugned order.

34. For purposes of the fast disposal of this matter, I issue the following directions:

(i) The petitioners to serve the petition and the application on the interested parties immediately.

(ii) The 2nd, 3rd, 4th respondents and the interested parties to file and serve their responses to the petition and application within 14 days.

(iii) Parties to file and exchange written submission to both the petition and application within 20 days from 15th February, 2022. The petitioner to have the first 10 days.

(iv) Mention on 10th March, 2022.

35. The upshot is that the application dated 18th October, 2021 is hereby dismissed. Costs to be in the cause.

Orders accordingly.

Delivered, signed and dated this 1st Day of February, 2022 in open court at Milimani, Nairobi.

HEDWIG ONG’UDI

Judge of the High Court