https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11050

**Republic of Kenya** **In The High Court at Nairobi (Milimani Law Courts)** **Judicial Review Division** **Judicial Review Application No. HCJR/E236/2026** **Micah Wanyama…… …………………………..…… ……………….…..Applicant** **VERSUS** **Registrar of Societies………………………………..………………….. Respondent** **Peter Kathusya ……………………………………………...…… 1st Interested Party** **Jane Thirikali ……………………………………………..…….. 2nd Interested party** **Fred Musindi……………………………………………….……..3rd Interested Party** **Stephen Muli……………………………………………….….….4th Interested party** **Joel Kagiri…………………………………………………..….…5th Interested Party** **Caroline Miriam Wanjiku Munene………………...…..Proposed Interested Party** **RULING** 1. *Vide* an Originating Motion dated 10 July 2026, the Applicant seeks orders of certiorari to quash the decision of the Respondent communicated in the letter dated 6 July 2026 declining to approve and incorporate the change of officers/officials elected in the Nairobi Club Annual General Meeting (AGM) held on 29 May 2026 (the impugned decision). The Applicant also seeks orders of mandamus to compel the Respondent to incorporate the change of officers/officials elected in the said AGM. Pending the hearing and determination of the application, the Applicant seeks an interim order of stay suspending the implementation, execution and enforcement of the impugned decision. He also seeks an interim order directing the Respondent to incorporate the change of officers/officials elected in the AGM. This court issued directions for service of the application and reserved the determination of the prayer for interim orders to today upon the hearing of parties. 2. On 17 July 2026, the proposed interested Party filed an application dated 15 July 2026 under a certificate of urgency dated 17 July 2026 seeking leave to be joined in these proceedings as an interested party. The application is supported by an affidavit sworn on 17 July 2026 and is based on the grounds that the applicant is a member of the Nairobi Club under membership number 04920 and was duly elected as a member of the main committee of the club during the AGM of the club in the year 2025. The Proposed Interested Party avers that the Applicant in the main application has unlawfully appointed another person to occupy her rightful position in the main committee. It is, therefore, the Proposed Interested Party’s case that the decision of the Respondent directly affects her and unless she is joined in these proceedings she will be denied the right to be heard in proceedings that determine her position. 3. Parties orally submitted before me today on the two applications being: the Proposed Interested Party’s application for joinder (the first application) and the Applicant in the main application’s application for conservatory orders (the second application). This ruling shall address both applications. 4. On the first application, Ms. Metto submitted on behalf of the Proposed Interested Party that the she was member of the main committee serving for a term of two years commencing in the year 2025 but she has been unlawfully removed from her position by the Applicant in the main application who proposed someone else to take up her position. She further argued that the decision of the Respondent directly affects her client because the outcome will determine if she becomes a member. 5. The Application was opposed by the Applicant in the main application who was represented by Mr. Yegon and Ms. Kijala. Mr. Yegon submitted that the issue before this court was a challenge on the Respondent’s decision declining to recognize the Applicant and the seven committee members and consequently the failure to incorporate them into the register as per Form H. In his view, the proposed Interested Party’s dispute concerns her position in the main committee which this court would not have jurisdiction over as it is not sitting on appeal. He further submitted that there is no prayer in the main application affecting the Proposed Interested Party, that the applicant had not raised any grievance prior to or after the election, and the Proposed Interested Party had not demonstrated an identifiable stake in the matter. 6. The [***Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules***](http://kenyalaw.org/lex/sublegview.xql?subleg=Const2010), Legal Notice No. 117 of 2013, (***Mutunga Rules***) defines an interested party as, *“A person or an entity that has an identifiable stake or legal interest or duty in the proceedings and may not be directly involved in the litigation.”* A party who is entitled to be included in a suit as an interested party is, therefore, one who has an identifiable interest in the suit. It is one who stands to be affected by the outcome of the suit one way or another and, therefore, their participation is necessary in order to be given an opportunity to make representations before the suit is determined. 7. The Supreme Court in [***Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others***](http://kenyalaw.org/caselaw/cases/view/110554/) SC Petition (Application) No 12 of 2013 laid down the guiding principles applicable in determining an application to be joined in proceedings as an interested party as follows: *18….an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.* 1. A party who seeks to be joined in proceedings as an interested party must, therefore, chiefly demonstrate that they have a personal interest in the case and that they will suffer prejudice if they are not allowed to participate in the proceedings. These are the guiding principles that will guide my analysis on whether the proposed Interested Party should be joined in these proceedings. 2. The Proposed Interested Party avers that she was a duly elected member of the main committee having been elected in the year 2025. It is her case that her term in office has not expired and, therefore, the Applicant in the main application unlawfully replaced her with another member. Consequently, her argument is that the outcome of these proceedings will affect her rights and she should be allowed to take part as an interested party. 3. The proceedings before the court relate to the decision of the Respondent declining to approve the changes to the register in respect of the election of the Applicant as the chairman of Nairobi Club. If the Applicant in the main application succeeds, the decision of the Respondent will be quashed and the Respondent will be compelled to recognize the Applicant as a duly elected chairman of Nairobi Club and to effect changes in the register. If the application does not succeed, the decision of the Respondent will stand with the consequence that the club will hold a Special General Meeting to elect a chairman. 4. When juxtaposed against the Proposed Interested Party’s grievance, I am unable to find any point of convergence. Whereas the Proposed Interested Party’s grievance relates to whether her term in office had expired at the time of the club elections which were conducted at the AGM, the main application herein stems from the Respondent’s decision not to recognize the election of the Applicant in the main Application. The two grievances are parallel and lack any point of convergence. A resolution of the main application herein will not have a bearing on the Proposed Interested Party’s grievance. She would still need to take up the dispute before the appropriate forum. As admitted by Ms. Metto for the Proposed Interested Party, the club bylaws provide for dispute resolution mechanisms which have not been pursued. 5. Furthermore, I am not convinced by Ms. Metto’s argument that the impugned decision of the Respondent has a bearing on whether the Proposed Interested Party becomes a member of the main committee. While the Respondent’s decision may have the effect of occasioning a new election for the position of chairperson and possibly her election to that position (it is noted that she was a candidate in the recent election against the Applicant) or to a position of member of the main committee which she was serving in prior to the election, this possibility is remote and will not be informed by her participation in these proceedings. This court does not have jurisdiction to determine her alleged removal from the main committee. 6. The court is also not convinced that her participation will assist the court in resolving the issues before it. The Proposed Interested Party has not advanced any arguments that touch on the issues before court. In the circumstances, a case has not been made for the joinder of the Proposed Interested Party. The application is dismissed. 7. The second application relates to the Applicant’s prayer for conservatory orders as stated above. The orders sought by the Applicant seek to suspend the implementation, execution and enforcement of the Respondent’s decision which has been challenged. The second related prayer is to compel the Respondent to incorporate the change of officials elected at the AGM. Both prayers have been sought pending the hearing and determination of this application. 8. In support of the prayer for interim orders, Mr. Yegon submitted that the club’s operations will grind to a halt if the interim relief is not granted. He argued that the management and funds of the club are vested in the committee and without the committee, the club will face difficulties. He further submitted that the club bylaws do not provide for an interim institution to take care of the club’s affairs in the absence of a duly elected committee. He averred that at the moment the club is operating with the officials whose term expired – a matter that raises governance issues. 9. In opposition to the application, Ms. Zahra for the Respondent submitted that the Respondent has no problem allowing the other members of the committee who had been elected to run the affairs of the club pending the hearing and determination of the application. She argued that the functions of a club chairman can be handled by the vice chairman who had been elected. 10. Ms. Muia for the Interested Parties opposed the application as well and argued that the grant of the orders sought will occasion a particular difficulty incase the application will not succeed. She also concurred with the Respondent that the other elected members can run the affairs of the club pending determination of the application. 11. In rejoinder, Mr. Yegon asserted that clause 3(a) of the bylaws expressly provides that management and finances of the club shall lie in the main committee. However, he conceded that the club vice chairman can chair the committee in the absence of a chairman pursuant to rule 15(g) of the bylaws. 12. I have considered the prayer for interim reliefs, the supporting affidavit and annextures in support as well as the rival submissions by the parties. An interlocutory injunction serves the purpose of maintaining judicial order. It is intended to preserve the subject matter of a litigation until the matter is heard and determined on merits. The leading authority on interlocutory reliefs is the case of ***Giella v Cassman Brown & Co. Ltd* [1973] EA 358**. 13. It is apparent that the impugned decision of the Respondent is a negative order. It is trite that a negative order cannot be stayed as there is nothing to stay. The first limb of the orders sought, therefore, collapses on this basis. In regard to the second limb of the interim relief sought, the interim orders sought are to the effect that the Respondent be compelled to effect changes to the register in recognition of the election of the Applicant. This order does not seek to preserve an existing position rather it seeks a mandatory order which has the effect of a substantive remedy before the Court has had the benefit of hearing the parties on the merits. Courts are cautioned not to grant final relief before trial. Further, it cannot be overstated that a court of law should only grant orders of this nature in very exceptional circumstances. In ***Locabail International Finance Limited vs Agro-Export & Another [1986] 1ALL ER 901*, the court** held as follows in regard to the exceptional nature of this remedy: A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high sense of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction. 1. I am also persuaded by Ms. Muia’s argument that the grant of this order would occasion difficulties particularly if the application does not succeed on merit. Furthermore, it is my considered view that the affairs of the club will not be paralysed in the absence of a chairman for a limited period of time. The other members of the committee who have been elected including the vice chairman can discharge the mandate of the committee pending the determination of the dispute herein. 2. This matter shall, in any case, be heard and determined expeditiously in accordance with the directions which have already been given with the final determination set to be made on 9 October 2026. 3. In conclusion, I make the following orders: 1. *The Proposed Interested Party’s application dated 15 July 2026 is hereby dismissed;* 2. *The interim orders sought in the Applicant’s Originating Motion dated 10 July 2026 are hereby declined;* 3. *Parties shall bear their own costs.* **Dated, Signed and Delivered this 20th Day of July 2026** **Nabil M. Orina** **Judge**