[2023] KEHC 26117 (KLR)

Omari v Registered Trustees Muslim Association Mosque Committee Eldoret & 8 others (Constitutional Petition E017 of 2021) [2023] KEHC 26117 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26117 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition E017 of 2021

JRA Wananda, J

December 1, 2023

IN THE MATTER OF THE CONSTITUTION OF KENYA (2010)

ALLEGED CONTRAVENTION OF RIGHT TO ACCESS INFORMATION UNDER ARTICLES 35(1)(B), FREEDOM OF CONSCIENCE, RELIGION, BELIEF AND OPINION UNDER ARTICLES 32(1), (2), (3) AND (4), RIGHT OF FREEDOM OF ASSOCIATION UNDER ARTICLE 36(1), (2), (3) (a), (b), PROTECTION OF RIGHT TO PROPERTY UNDER ARTICLE 40, AND CHAPTER SIX LEADERSHIP AND INTEGRITY OF THE CONSTITION OF KENYA

Between

Jamal Diriwo Omari

Petitioner

and

The Registered Trustees Muslim Association Mosque Committee Eldoret

1st Respondent

Mahmud Jama

2nd Respondent

Mohamed Ali

3rd Respondent

Mohamed Hajj Isaack

4th Respondent

Idris Salim Keitany

5th Respondent

Swaleh Chepkeitany

6th Respondent

Mohamed Ghani

7th Respondent

Abdulai Jama

8th Respondent

Abdi Omar

9th Respondent

Judgment

1. I took over this matter when it was already part-heard before Ogola J, the same having proceeded by way of viva voce trial.

2. The Petition herein is dated 31/05/2021 and was filed on 21/07/2021.

3. The Petitioner, acting in person, described the 1st Respondent (hereinafter referred to as “the Association”) as a public utility under the Registrar of Associates. I presume he meant Registrar of Societies. He stated that the Association draws membership from the Muslims within and without Eldoret, Uasin Gishu County, the 2nd – 9th Respondents are the committee members of the Association and the registered Trustees thereof, the 2nd – 9th Respondents have jointly and severally breached the Constitution and Rules & Regulations of the Association, they betrayed the trust bestowed upon them by the Constitution in regard to managing the properties of the Association, the aims and objectives of the Association are to protect and safeguard the welfare, rights, privileges and interest of Muslim communities of all races in every possible manner, the 2nd – 9th Respondents have failed, ignored, refused and/or declined to re-register the Association with the Registrar of Societies whereas its term has expired has since expired, lapsed and hence the Association is on the verge of extinction/death,

4. The Petitioner stated further that the 2nd - 9th Respondents have misappropriated the properties, finances, funds, wealth and/or failed to account for the same which are property of the Muslim community, as such should be properly accounted for to benefit the poor, orphans, widows, paying salaries of Imams and Madrassa teachers within all the surrounding mosques and the Muslims community at large, the Association properties have been illegally transferred without any accountability and involvement of the members of the Association and the Muslim community at large, the 2nd - 9th Respondents have never carried out any audit of the financial books/records whatsoever and as such the affairs of the Association are managed in blatant breach of its Constitution and Rules & Regulations, the 2nd - 9th Respondents have never conducted any elections whatsoever and members have been denied the right to vote and elect office bearers as provided in the Constitution, Regulations & Rules, they have never carried out any General meeting and/or Annual General Meeting of the Association for purposes of receiving and passing of biannual audited accounts and balance sheet and for election of office bearers and the full committee for the ensuing two years, the 2nd – 9th Respondents in blatant disobedience of the Constitution of the Association have leased out shops and erected structures within the compound of the Eldoret Jamia Mosque, they have jointly and severally breached the fundamental rights of the Petitioner under the Constitution of Kenya and his rights of access to information, public participation, right to religion, property and non-discrimination have therefore been curtailed.

5. The Petitioner then gave particulars of contravention of the various Articles of the Constitution as denial of access to information, denial of right to public/member participation in affairs of the Association, non-communication and/or lack of proper dissemination of information to the Petitioner/members, subjecting the Petitioner to unfair, unjust, unprocedural and/or failed accountability of public funds, subjecting the Petitioner to torture, causing him psychological harm, treating the Petitioner in a cruel, inhumane or degrading manner, unlawfully cutting short the legitimate expectation of the Petitioner to religion, belief and opinion, denying the Petitioner his right to vote and elect office bearers of his own choice and breach of Chapter 6 of the Constitution of Kenya by the 2nd – 9th Respondents.

6. In conclusion, the Petitioner pleaded that as a result of breach of his constitutional rights, the Petitioner has suffered mental distress, anguish and financial loss, curtailment of right to worship, religion, discrimination and non-participation in activities of the Association as legitimately expected.

7. In his prayers, the Petitioner sought orders as follows:a.A declaration that the Petitioner’s rights to the Economic and Social Rights as contemplated in Articles 35(1)(b) freedom of conscience, religion, belief and opinion under Article 32(1), (2), (3), and (4), right of freedom of association under Article 32 (1), (2), (3) (a) (b), protection of right to property under Article 40, and Chapter six leadership and integrity of the Constitution of Kenya, 2010 has been infringed/violated and/or breached/contravened and/or abused by the 2nd – 9th Respondents.b.A declaration that the 2nd – 9th Respondents have infringed/violated and/or breached/contravened and/or abused Chapter six of the Constitution and hence unfit to hold offices of the Trustees of the 1st Respondent.c.A permanent injunction barring the 2nd – 9th Respondents from occupying the offices of the Trustees to the 1st Respondent Association thereof.d.An order directing re-registration and reconstruction/reconstitution of the 1st Respondent and directing elections to be conducted forthwith.e.An order directing demolition of the structures/shops built in the compound and/or within the premises of the Jamia Mosque Eldoret.f.A declaration that the Petitioner is therefore entitled to general and exemplary damages against the Respondents herein jointly and/or severally.g.Costs of the Petition.

8. Together with the Petition, the Petitioner also filed a Statement and Supporting Affidavit in which he reiterated the said matters. To the Affidavit, he exhibited copies of his National Identity Card, a Certificate dated 8/07/1957 from the Registrar of Societies, exempting the entity known as “Muslim Association Mosque Committee, Eldoret” from registration, Constitution and Rules & Regulations of the entity known as “Muslim Association Eldoret Mosque Committee”, letter dated 20/01/2017 from the Registrar of Societies to Messrs HMS Hassan Madowo Said Advocates supplying a list of the names of office bearers of the entity described as “Muslim Association Mosque Committee, Eldoret”, and letters dated 7/11/2018 and 20/03/2019 from the Ethics and Anti-Corruption Commission to an entity described as ‘Eldoret Youth DAAWA group”.

Response 9. On their part, the Respondents, through Messrs Z. K. Yego Law Offices Advocates, on 25/08/2021, filed what was titled “Respondents’ Response to Petition”. It was stated therein that the Petitioner is not a member of the Association. It was also denied that the Association’s membership consists only of Muslims from the Sunni sect as alleged by the Petitioner. It was then stated that the 2nd, 3rd, 5th, 6th, 7th, 8th and 9th Respondents are not current officials of the Association, some having left the leadership some 30 years ago, if indeed the Petitioner was a member of the Association, he would have known this, the Petitioner is not a member of the Association and is in fact not a member of the Sunni sect which members of the Association subscribe to, the Petitioner belongs to a sect known as Bidhaa/Innovators, it is therefore absurd for the Petitioner to claim that his rights to religion and association have been infringed upon, the procedure for registration as a member of the Association is that one has to be proposed by an existing member and seconded by another existing member of the Association, the innovators have various mosques in Uasin Gishu County and if indeed the Petitioner was genuine on his intention to exercise his right to religion and association he would have done so in such mosques, it is therefore not possible for the Petitioner to be a member of the Association as the Innovators sect he belongs to have completely different beliefs to that of the Sunni sect, and that the Sunni do not accommodate persons who practice witchcraft yet the Petitioner is a known practitioner of witchcraft who hails from Tana River County.

10. It was stated further that Article 13 of the Constitution of the Association dictates that an Annual General Meeting shall be held every 2 years for purposes of, inter alia, election of office bearers, Article 53 stipulates that businesses are not to be run within the compound of the mosque, all businesses are situate outside the mosque compound, on 18/03/2021 the Secretary of the Association, one Mr. Chumo, issued a notice informing members of the Association that elections of new committee officials will be held on 10/04/2021, the Annual General Meeting for the year 2021 was held on 10/04/2021 and new committee members for the period 2021-2023 were elected by members who were present, the officials have not misappropriated any funds, the members of the Association are aware of the status of accounts, there are no business premises within the mosque, the same are facing outward/away from the compound and not inside the mosque, in line with the Constitution of the Association. In conclusion, it was stated that the Petition lacks merit and is misconceived.

11. Together with the Response above, on the same date, the Respondent also filed a Replying Affidavit in response to the Petition, and sworn by one Mohamed Kipkosgei Chumo, who described himself as the Secretary of the Association. He reiterated the matters stated in the “Response to Petition” and also added that insofar as the Petitioner belongs to innovators sect which has completely different beliefs to that of the Sunni sect, the prayer of the Petitioner is akin to a Catholic church admitting a Scientology church practitioner in their midst and that the Sunni sect has different beliefs and interpretation of the Quran.

12. Exhibited to the Replying Affidavit are copies of the Constitution and Rules & Regulations of the entity known as “Muslim Association Eldoret Mosque Committee”, Notice dated 18/03/2021 informing members of elections scheduled for 10/04/2021, minutes of the meeting of 10/04/2021, Annual Reports & Audited Financial Statements for “Muslim Association Eldoret Mosque Committee”, and photographs of the mosque compound.

Hearing of the Petition 13. After some time spent on interlocutory proceedings, the matter, as already stated, was directed to proceed by way of viva voce trial. Each side then called 1 witness. The Petitioner, as PW1, gave his evidence before Ogola J and upon his transfer, I took the evidence of the Respondent’s witness, DW1.

14. In his evidence, PW1 testified that the Association was registered in 1957, in 1990 the Respondents took over through an illegal election, since then, there has been no election, the Respondents mismanaged properties of the Association and distributed the same among themselves and refused to give information, in 2005 they refused to renew the Registration Certificate, in 2011 the Association was deregistered, in 2021 he wrote to the Attorney General asking if the official office bearers still existed in record, he did not receive a response so he wrote to the Ombudsman, after his complaint the Respondents registered a new entity under a new name – Muslim Association Mosque Committee, the original name, as at 1957, was “Muslim Association Mosque Committee, Eldoret”, he has asked for re-registration of the original Association, he has come to claim the properties of the Association from the Respondents, the Association has many properties in terms of billions of shillings, the Respondents have violated the Constitution of the Association and have even put commercial buildings in the mosque, these buildings should be demolished, and that the last audited accounts were of the year 1990.

15. In cross-examination, the Petitioner stated that he has lived in Eldoret for more than 20 years, it is therefore not true that he has been in Eldoret for only 2 years, he comes from Tana River County, he is a Muslim, he does not know about other Muslim sects, majority of worshippers of the mosque are Sunnis, there is nothing about Innovators sect, he does not belong to it, all Muslims are Suni, there are no sects within the Muslim fraternity, it is not true that he is not a member of the Eldoret mosque, elections should be carried out once every two years, no elections have been done since 1990, he is aware of Case No. 252 of 2016 before the Eldoret Magistrates Court challenging elections conducted in 2016, he applied to join the case but was threatened with death so he filed this Petition, he also wanted to challenge the 2016 Annual General Meeting, there has been no Annual General Meeting since 2016, and that after he filed this Petition, he was chased away from the mosque.

16. He stated further that he knows all the office bearers physically, he is not aware that the 3rd Respondent, Mohamed Ali left leadership 40 years ago, the 2nd Respondent is the mastermind of all bad things, the 7th Respondent did not leave leadership 40 years ago, to be a member one must pay fees, he has never paid such fees, he did not attend the Annual General Meeting of held on 1/04/2021, it was an illegal meeting, the officials elected at the meeting are strangers, he does not recognize them, that is why he has not sued them, his rights have been infringed, when he was chased from the mosque he was denied his right of worship, under Article 35 of the Constitution of Kenya, he has been denied access to information, he did not file this Petition simply because he was denied joinder into the Magistrate’s Court case, there are shops inside the mosque compound, he has sued the Respondents because they were the registered officials as at 1990, they have mismanaged and misappropriated the Association’s assets, all other elections from 2011 to date are null and void, the alleged elected officials are strangers, he has seen the audited reports for 7/12/2020 and 1/01/2018 but he does not agree with them.

17. On his part, DW1, Mohamed Kipkosgei Chumo testified that he is the Secretary of the Association. In addition to the documents exhibited to his Replying Affidavit, he also produced a copy of the letter dated 29/07/2021 from the Registrar of Societies which indicates that the office bearers as at that date were the 4th Respondent (Chairman), himself (Secretary) and one Yussuf Jama Abdi (Treasurer). He termed the case as baseless.

18. In cross-examination, DW1 testified that the Association was first registered in 1957 under the name “Muslim Association Mosque Committee Eldoret”, he does not have any handing over Report for the 1990 elections, he was elected in 2018, the elections were overseen and conducted by Muslims Association Eldoret Mosque Committee members, the current officials are not impersonators, he agreed that Section 46 and 47 refers to “Trustees”, that there are 3 Trustees and there is a committee in which he is a member, he is not a Trustee, the letter dated 29/07/2021 which he produced refers to office bearers, not Trustees, he agreed that in the Association’s Constitution, it is the Trustees to hold the Association’s properties, the letter dated 29/07/2021 does not have the name “Eldoret”, according to the Constitution, elections are to be held every 2 years with Annual General Meetings, Section 13 states so, and that they have made all the Returns and procured Audits and also handing over Reports.

19. He testified further that they did not conduct elections in the year 2020 because of the COVID-pandemic, they postponed it to 10/04/2021, he agreed that Section 53 of the Association’s Constitution prohibits leasing of buildings inside the compound of the mosque, it is true they have leased out buildings that are inside the compound, the Association has properties, if requested he can give a list, Section 2 sets out the aims and objectives of the Association, they have protected the Association’s assets, it has 9 plots and funds in a Bank account, he only knows of this one bank account, the amount held there is in millions of Kenya shillings, he does not know whether there used to be other bank accounts, it is not true that the Association was deregistered in 2011, they have not in any violated the rights of the Petitioner, they have not impersonated anyone, they do not accommodate any person who practices witchcraft, in his Affidavit he has referred to the Petitioner as a known witchdoctor, and that is the Petitioner’s profession but he has not brought any evidence.

20. In Re-examination, DW1 stated that the buildings in the mosque are inside the compound but outside the mosque, to access the buildings one does not have go through the mosque, the shops are constructed on the perimeter wall, he is not aware that the Association was deregistered in 2011, the letter referred to by the Petitioner does not show any deregistration, it only shows the office bearers, and that the entity sued herein is the same one referred to in the letter.

21. Upon close of the trial, with concurrence of the parties, I directed that they file written Submissions. Pursuant thereto, the Petitioner filed his Submissions on 26/06/2023 while the Respondents filed on 21/06/2023.

Petitioner’s Submissions 22. The Petitioner submitted that the aims and objectives of the Association is to protect and safeguard the welfare, rights, privileges and interest of Muslim communities, the Respondents have failed, ignored, refused and/or declined to re-register the Association with the Registrar of Societies whereas their term has expired, by the letter from the Registrar of Societies dated 8/07/1957 which he has exhibited, it is not in doubt that the Association was and should be known as “Muslim Association Mosque Committee, Eldoret”, barely two months after the filing and service of this Petition, the Petitioner in an attempt to defeat the same, registered a different association which is “Muslim Association Mosque Committee” as appears from the letter dated 29/07/2021 from the Registrar of Societies which the Respondents have exhibited, the name “Eldoret” does not appear in the latter description. He cited the case of Kenya National Union of Nurses v County Public Board Uasin Gishu County Government & Another [2018] eKLR.

23. The Petitioner submitted further that Section 13 of the Association requires that Annual General Meeting be held every 2 years, the omissions of the Respondents contravenes the rights of the Petitioner in particular Articles 35 and 36 of the Constitution of Kenya, which provides for right to information and freedom of association, the members of the Association have never been granted their constitutional right to elect new committee members and to receive books of accounts, the Court should order for elections and appoint a caretaker committee to take over the management of the Association. Regarding the right of access to information, he cited the case of Brummer v Minister for Social Development & Others, CCT 25/09 2009 ZACC 21.

24. The Petitioner further contended that the 2nd - 9th Respondents have misappropriated the properties of the Association since there is no audit and the members are in darkness, there are no financial statements insofar as the Association’s properties are concerned, the Association’s properties, finances and/or funds are public property for the Muslim community and as such, should be properly accounted for to benefit the poor, orphans, widows, paying salaries for Imams and Madrassa teachers in all the surrounding mosques and Muslim community at large.

25. In conclusion, he submitted that the 2nd - 9th Respondents have in blatant disobedience of the Constitution of the Association and the Regulations thereof, leased out shops and erected structures within the compound of the Eldoret Jamia Mosque.

Respondents’ Submissions 26. On whether the Petitioner’s rights have been violated by the officials of the Association, Counsel cited the case of Anarita Karimi Njeru v Republic [1979] eKLR and submitted that the basic and foundational aspect that constitutional Petitions have to meet is the element of precision, the Courts have made it clear that vague and imprecise allegations and claims do not meet the threshold, the particular rights and details of the alleged infringement and/or violations must be made clear. He also cited the case of Mumo Matemu v Trusted Society of Human Rights Alliance and 5 Others, CACA No. 290 of 2012 [2012] eKLR and added that it is a basic rule of evidence that “he who alleges must prove”. He further cited the Supreme Court of Kenya case of Wamwere & 5 Others v Attorney General (Petition 26, 34 and 35 of 2019 consolidated, [2023] KESC 3 KLR and submitted that a keen look at the Petition and the supporting pleadings reveals that the allegations are misconceived, unfounded, baseless, the Petitioner has not brought forth any iota of evidence or stated any facts showing that indeed his rights have been infringed/violated or interfered with. Counsel further cited Section 107, 108 and 109 of the Evidence Act on the issue of burden of proof.

27. He further reiterated the contention that there are two sects within the Islam religion, namely, Sunna and Bidhaa, these two sects are incompatible due to the variations/conflicts in beliefs and interpretations of the Quran, as such all Muslims are registered in the membership of a given mosque, the Petitioner is a known member of the Bidhaa sect which is incompatible with the Sunni sect, as custodians of mosque records, the officials have never received any official application from the Petitioner seeking to join the Association. He cited the case of Kiambu County Tenants Welfare Association v Attorney General & Another [2017] eKLR and added that no evidence was ever produced to show that the Petitioner was precluded by the officials from freely participating in the affairs of the Association, the right to freedom of association is not absolute and is only exercisable within associations or communities to which one has subscribed or is a member, this right does not guarantee freedom to non-members or strangers to interfere in the ongoings of an association, being a member of the Bidhaa sect, the Petitioner cannot claim to have a right to participate in the affairs of the Sunni sect, Article 10 of the Constitution of the Association empowers office bearers to dismiss any member who is found to be performing or causing an act harmful to the interest and ideals of the Association, and that the Petitioner’s allegations are premised on falsehoods and unsubstantiated facts.

28. On whether the current officials are lawfully in office, Counsel submitted that they 2were elected to office, the Annual General Meeting scheduled for 2020 was not held due to the COVID-19 pandemic, the Secretary of the Association issued a notice communicating that the same would be held on 18/03/2021, the meeting was further postponed to 10/04/2021 when the new committee members for the year 2021-2023 were elected, Article 46 of the Association’s Constitution stipulates that elections are to be conducted by the “general body of Muslims in general meetings assembled as and when required”, this is how the current officials were elected, their legitimacy in office is therefore guaranteed. He cited the cases of Christian Juma Wabwire v Attorney General [2019] eKLR and Vivo Energy Limited (initial party Kenya Shell Limited) v George Karunji [2014] eKLR.

29. On whether the officials have misappropriated the properties and funds of the Association, Counsel submitted that the Petitioner has not particularized or proved his allegations, the officials have always notified the members on the status of the Association’s properties as well as submitting audited accounts for scrutiny by both the government and the concerned state agencies. He cited the cases of Harrison Njuguna v Inspector General of Police Service & 2 Others [2021] eKLR and Wamwere & 5 Others v Attorney General (supra) and added that the officials have not subdivided or sold off portions of the Association’s property as claimed by the Petitioner and that not having produced any evidence, the allegations are misconceived and malicious.

30. On whether the officials are in violation of the Association’s property insofar as the Petitioner has alleged that they have illegally constructed shops and other establishments within the premises of the mosque, Counsel submitted that through photographic evidence produced, it was demonstrated that the establishments are not within the premises of the mosque as alleged, the evidence clearly shows that the establishments bordered the outer perimeter wall of the mosque, the officials being faithful and practicing Muslims honour and respect the sanctity of the mosque as a place of worship and would not introduce commercial ventures inside the mosque, they have not interfered with prayer activities in the mosque as the commercial activities are conducted from outside the perimeter walls of the mosque.

31. In conclusion, Counsel submitted that the Petitioner has not produced an iota of evidence in proof, thus rendering the Petition vexatious and an abuse of the Court process and that having therefore come to Court “empty handed”, the same ought to be dismissed with costs.

Analysis & Determination 32. Upon careful consideration of this matter, including scrutiny of the Affidavits, Submissions and other pleadings filed and also the viva voce evidence of the witnesses and authorities cited, I find that the issues raised herein can all be summarized into two broad issues, as follows:i.Whether the Petitioner has proved the allegation that the 2nd-9th Respondents have violated and/or infringed upon the Petitioner’s rights to Economic and Social Rights as contemplated in Articles 35(1)(b), freedom of conscience, religion, belief and opinion under Article 32(1), (2), (3), and (4), right of freedom of association under Article 32 (1), (2), (3) (a) (b), protection of right to property under Article 40, and Chapter 6 on leadership and integrity of the Constitution of Kenya.ii.If the above issue is in the affirmative, what orders should be granted?

33. Before I delve into the merits of the Petition, I wish to touch on the issue of locus. It is acknowledged that the Constitution of Kenya, 2010 being a progressive and living document extensively relaxed the rule on locus standi in respect to matters relating to violations of Constitutional rights to the extent of almost completely doing away with the requirement. As a result, the country has witnessed tremendous unfettered and robust litigation in the area of constitutional jurisprudence. Litigants whose cases would have been clear non-starters pre-2010 and certain candidates for striking out on the ground of failure to demonstrate locus are now routinely and regularly admitted, entertained and accommodated by Kenyan Courts. The Judiciary has not disappointed and has, where necessary, risen to the occasion by reprimanding and admonishing any and all kinds of violations of constitutional violations. In asserting its independence, all, including state organs and the high and mighty have not been spared. This relaxation of the locus standi rule has indeed been celebrated as one of the greatest achievements of the 2010 Constitution and has been credited with the huge strides and advances made in the area of protection of constitutional rights.

34. As a result of relaxation of the said rule, the country has also witnessed a whole new category of well-known regular career litigants in our Courts referring to themselves as public spirited individuals advancing public interest litigation for and on behalf of other people or the public at large. This, no doubt, has contributed immensely to the rule of law in Kenya.

35. Nevertheless, I do not believe that the relaxation of the locus standi rule was meant to act as a carte blanche for any stranger “walking along the streets” and who is not even a member of a given group or entity to continuously and constantly shop around by “peeping through fences” or “over perimeter walls” with a view to eavesdropping on the internal affairs of such group and, where he deems that violations against members have been committed, rush to Court with constitutional Petitions allegedly for and on behalf of such members, particularly where such members have themselves not complained. That can only be allowed in cases of criminal law and which, in any event, are to be reported to and handled by the police. My view is that a person who seeks to litigate against a given group of persons on the basis of violations of constitutional rights ought to demonstrate some level of nexus linking him to the such group, particularly where there is no evidence that the members have requested the purported public-spirited litigant to approach the Court with a constitutional petition on their behalf.

36. It is evident that the Constitution of Kenya 2010 itself limits the persons who may enforce the Bill of Rights under Article 22 in the following terms:“22. Enforcement of Bill of Rights1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—a.a person acting on behalf of another person who cannot act in their own name;b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.”

37. Further, Article 258 provides for enforcement of the Constitution by the following persons;258. Enforcement of this Constitution1. Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—a.a person acting on behalf of another person who cannot act in their own name;b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.

38. It is therefore clear that a person who approaches the Court for enforcement of the Constitution must demonstrate that he falls within the categories set out in the two Articles.

39. It is in this respect that I wish to analyze the locus advanced by the Petitioner in filing the present Petitioner. A challenge on this point has been raised in the “Respondents’ Response to Petition”. In determining this issue, I have carefully perused the Pleadings filed by the Petitioner and note that not he has not disclosed whether or not he is a member of the Association.

40. In respect to membership, Article 3 of the copy of the Constitution exhibited by both parties provides that “any Muslim of either sex shall be eligible to become a member of the Association ……”.

41. Article 4 provides that “every member shall pay a subscription of ten shillings (100/=) (sic) per month ….”.

42. Article 5 then provides that “no member shall be entitled and allowed to vote at any meeting of the Association, or its committee if he shall be in arrears of his monthly subscription for over three months ……”.

43. On its part, Article 6 stipulates that “a member whose subscription is found to be unpaid for a period of six consecutive months shall be requested in witing by the Honorary Secretary to pay the same within seven days of the receipt of such request and if he fails or ignores to pay same as aforesaid and within the abovementioned time, he shall automatically cease to be a member of the Association”.

44. It is therefore apparent from the foregoing that inasmuch as membership of the Association is open to any person prophesizing the Muslim faith, such membership is still subject to one paying monthly subscription fees. Accumulation of arrears in subscription denies a member the enjoyment or exercise of privileges available from the Association and accumulation of 6 months arrears renders one liable for outright disqualification from membership.

45. In his Petition, as aforesaid, the Petitioner did not disclose or state whether he is a member of the Association. However, when he was being cross-examined during his viva voce testimony, he insisted that he was a member. He conceded that to be a member, one was required to pay fees. He however readily admitted that he “has never paid a shilling” in subscription to the Association. On his part, the Secretary to the Association contended that they have never received any application from the Petitioner seeking to join the Association.

46. Under these circumstances, I can safely conclude, as I hereby do, that the Petitioner is not a bona fide member of the Association.

47. Not being a member of the Association, can the Petitioner validly maintain the present Petition considering the nature of violations alleged? I do not think so. My finding is that as long as the Petition raises questions regarding internal matters of the Association such as conduct of elections, audit of books of account, conduct of general meetings, release of information to members, custody and management of properties and such like matters, in my view, the Petitioner cannot validly advance the Petition. By their very nature, the said matters raised are privileges available only to members of the Association, they cannot be available to any stranger outside the Association. Not being a member therefore, the Petitioner is one such stranger. He cannot therefore competently maintain the Petition.

48. I agree with the Respondent’s Counsel that the right to freedom of association is not absolute and is only exercisable within associations or communities to which one has subscribed or is a member and that this right does not guarantee freedom to non-members or strangers to interfere in the ongoings of an association.

49. The Respondents have also separately argued that members of the Association are only those who prophecy the Sunni faith which the Petitioner does not. They have claimed that the Petitioner is affiliated to a sect within the Muslim community referred to as Bidhaa/Innovators whose teachings, beliefs and interpretations of the Holy Quran conflicts with those of the Sunni. According to the Respondents therefore, the Petitioner is not eligible for membership of the Association. The Respondents also contended that the Sunni do not accommodate persons who practice witchcraft and that the Petitioner is a known practitioner of witchcraft. I decline to accept these arguments for the simple reason that nowhere in the Constitution of the Association supplied to the Court do these narratives appear. In any event, the Respondents have offered no evidence to support these arguments.

50. Be that as it may, I have already found that the Petitioner, not being a member of the Association, cannot maintain the nature of Petition that he has advanced herein. This ground alone is sufficient to dispose of this matter. Nevertheless, I will still proceed to determine the rest of the other matters arising.

51. There is also the issue of whether the 2nd - 9th Respondents are even the right persons to have been sued herein to answer for the alleged violations by officials of the Association. In the Petition, the Petitioner has described the 2nd – 9th Respondents as committee members and also Trustees of the Association.

52. It is trite law that a Society is not a legal person capable of suing or be sued. For this reason, ordinarily, a Society is sued through its registered officials. In the case of Trustees Kenya Redeemed Church & Anor vs Samuel M’Obiya & 5 others [2011] eKLR it was held as follows:“It is trite law that a society under the Societies Act is not a legal person with capacity to sue or be sued. A society can only sue or be sued through its due officers orders. It has not been pleaded that the 2nd defendant has been sued in the capacity of an official of Kenya Redeemed Church nor has it been pleaded that he has been sued in his personal capacity.”

53. In respect thereto, the Petitioner exhibited a copy of the letter dated 20/01/2017 from the Registrar of Societies whereof the office bearers listed are 5, namely, Mohamed Hajj Isaack (Trustee), Mohamed Ahmed Mohamed (Trustee), Idris Salim Keitany (Trustee/Secretary), Swaleh Chepkeitany (Trustee) and Mohamed Ghani (Trustee). It is also evident from the letter that inasmuch as the said 5 persons have been described in the letter as office bearers, they are in fact “Trustees”, who may therefore necessarily not also be the officials of the Association for purposes of identifying the correct persons to be sued as Respondents herein.

54. It is also not lost on me that, in any event, out of the 2nd – 9th Respondents (8 Respondents), only 4 appear in the list furnished in the said letter from the Registrar of Societies. The 4 are Mohamed Hajj Isaack (4th Respondent), Idris Salim Keitany (5th Respondent), Swaleh Chepkeitany (6th Respondent) and Mohamed Ghani (7th Respondent). There is therefore no submission whatsoever from the Petitioner explaining the basis upon which the 1st, 2nd, 3rd and 8th Respondents have been joined in this Petition.

55. Regarding the structure of the Association, I note that Article 18 of the Association’s Constitution provides that there shall be a Management Committee, “which shall be elected from amongst members of the Association every year at the Annual General Meeting and shall be composed of 10 members, excluding the office bearers”.

56. It may be that it is this Management Committee whose members the Petitioner has joined as the 2nd – 9th Respondents. However, in the absence of any explanation forthcoming from the Petitioner, this Court is only left to speculate. However, a Court of law cannot make determinations on the basis of mere speculations and conjecture.

57. Further, in a claim against a registered Society, the correct Respondents to be sued on behalf thereof are the 3 primary principal office bears recognized under the Societies Act, namely, the Chairperson, Secretary and Treasurer and perhaps, their deputies. This is in fact captured in Article 52 of the Association’s Constitution which, though not very clearly drafted, provides that:“powers are hereby vested in the Chairman and/or Honorary Secretary or jointly Honorary Secretary to sue or defend in any Court of law in the name and on behalf of the Association with the permission of the Management Committee”.

58. It is therefore not right for a Petitioner to omit the principal registered office bearers and instead go after mere Committee members or even Trustees.

59. It is also clear from the Association’s Constitution that the Management Committee comprises of different persons from the Trustees and that the two have different functions. This is apparent from Article 47 which provides that:“there shall be three (3) Trustees of the Association who shall be appointed by the general body of the Muslim in general meeting ……”.

60. Again, the Petitioner cannot be right in describing the 2nd - 9th Respondents as both committee members and also as Trustees. The two are different organs within the Association.

61. Still in connection to this issue, I note that on his part, the Secretary has exhibited a copy of the letter dated 29/07/2021 from the Registrar of Societies which gives the names of the office bearers as Mohammed Haji Isaack (Chairperson), Mohamed Chumo (Secretary) and Yussuf Jama Abdi (Treasurer). Again, from this list, only the said Mohammed Haji Isaack has been sued as the 4th Respondent.

62. The Secretary has also exhibited minutes of the Annual General Meeting of 10/04/2021, 3 months before this Petition was filed on 21/07/2021, which contains a list of the officials elected on that date. Save for the said Mohammed Haji Isaack, the persons said to have been elected at the meeting as committee and those elected as Trustees are totally different from those sued herein. When asked, during cross-examination, why did not sue the registered officials listed in the letter from the Register of Societies or those elected in the Annual General Meeting, the Petitioner responded that he does not recognize them as they are strangers and that he only recognizes those that he has sued because they were the registered officials as at 1990. With due respect to the Petitioner, I find this to be absurd logic. The Petitioner cannot abrogate to himself the power to determine, at his whims, as to who are the valid officials of the Society. Unless he furnishes acceptable controverting evidence, the correct officials are prima facie, presumed to be those elected at the Annual General Meeting and if in doubt, resort will be had to the records of the Registrar of Societies.

63. From the foregoing, I find that apart from only the 4th Respondent, the Petitioner has not demonstrated that the rest of the Respondents are the registered office bearers of the Association capable of being sued on behalf of the Association. This further ground is equally sufficient to dispose of the Petition in favour of the Respondents.

64. On the merits of the Petition, the Petitioner has prayed for an order directing the re-registration of the Association. He claims that the Association was deregistered in the year 2011 and that the 2nd – 9th Respondents have failed, ignored or declined to re-registrar the Association with the Registrar of Societies. He claims further that in the letter dated 8/07/1957 issued by the Registrar of Societies, the name of the Association was “Muslim Association Mosque Committee Eldoret” but that in the subsequent letter dated 29/07/2021 from the same office, the description stated is “Muslim Association Mosque Committee. According to the Petitioner the fact that the word “Eldoret” is missing in the latter description is proof that the Respondents registered a different Association. The Petitioner alleges that since the latter description connotes a new entity registered recently, it is a stranger to the present proceedings.

65. First, registration, or re-registration, of Societies is a function of the Registrar of Societies, not private individuals. A private individual only lodges his Application for registration but the final word on whether to register it lies with the Registrar. In the circumstances, even assuming that the 2nd - 9th Respondents are the valid office bearers, an order compelling them to register or “re-register” the Association would be a futility as they have no way to execute it. If the Petitioner wanted the Registrar of Companies to be compelled to “re-register” the Association then he ought to have joined that office into this suit and directed that prayer to the Registrar. Ordinarily, a Court cannot issue orders against a non-party to a suit.

66. In light of the foregoing, it is clear that the Petitioner is litigating on the basis of assumptions and guesswork. A person who approaches the Court to issue orders against a Respondent bears the burden of proving all the matters he alleges against such Respondent. If the Petitioner wanted this Court to make a finding that the Association was deregistered or that the 2nd – 9th Respondents registered a different Association, nothing would have been easier than for him to seek and obtain supporting evidence from the Registrar of Societies and then present the same to the Court as part of his case.

67. Indeed, under Section 48 of the Societies Act, any person can apply to inspect the records held by the Registrar of Societies and make copies. It provides as follows:“Inspection of documents by publicOn payment of the prescribed fees, any person may inspect at the office of the Registrar the register and any documents relating to any society lodged with the Registrar under this Act, and may obtain from the Registrar a copy of or extract from such register or document.”

68. The Petitioner cannot therefore merely allege that the Association was deregistered in the year 2011 but then present no evidence whatsoever in support of the allegation.

69. Regarding the uncertainty on whether the two descriptions, “Muslim Association Mosque Committee, Eldoret”, and “Muslim Association Mosque Committee” refer to one and the same entity or two different societies, again, it was the Petitioner’s obligation to clear that uncertainty. The Petitioner could have at the least furnished the Court with some communication from the Registrar of Societies, who is the statutory custodian of records relating to Societies, clarifying or confirming this issue. The Petitioner did not offer any explanation for failing to do so.

70. I however cannot fail to notice that the two letters from the Registrar of Societies, dated 20/01/2017 and 29/07/2021, respectively, both bear the same Reference number SOC/1305 thus strongly pointing to the fact that the two descriptions relate, refer to and mean one and the same entity. Nevertheless, the Court cannot speculate and as aforesaid, the burden of proof on all these matters lay with the Petitioner. Regrettably, he failed to discharge such burden leaving the Court with insufficient material to make an informed or conclusive determination.

71. The Petitioner has also alleged that the 2nd - 9th Respondents have misappropriated and illegally transferred the properties and funds of the Association and failed to account for the same. According to the Petitioner, the Respondents have never carried out any audit of the financial books/records whatsoever. However, apart from such matters not being matters for determination in a Constitutional Petition, it is also clear that accounting for properties and funds of a Society are matters to be addressed in the Annual Returns which under Section 30 of the Societies Act, every Society is required to file with the Registrar of Societies. Further, under Section 31, the Registrar is also empowered to call for any information and accounts of any Society. There is no therefore explanation why the Petitioner did not invoke these provisions and move the Registrar to act before resorting to the Courts.

72. In any event, under Section 18 of the Societies Act, the Registrar has powers to step in and resolve disputes between or among members 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.

73. I appreciate that the Certificate exhibited by the Petitioner and issued in 1957 indicates that the Association was exempted from registration under the Act. My understanding of “exempted societies” is that, unlike other societies, they may not necessarily be subjected to strict supervision by the Registrar of Societies. For instance, they may not be strictly required to regularly file Annual Returns. Exemption is therefore normally extended to charitable and religious organizations. Exemption does not however mean that the Registrar has ceded his supervisory mandate to supervise such Society. When properly moved, the Registrar still retains his powers to do so.

74. The Petitioner has not alleged that the Association has not been filing Returns. In any event, the Secretary to the Association has, in response, exhibited Annual Audit Report for the year 2018-2019 dated 20/12/2020. However, as aforesaid, matters of auditing of Reports and filing of Returns are not matters for determination in a Constitutional Petition. The right office for the Petitioner to first lodge any questions on the same is the office of the Registrar of Societies. Only should he be aggrieved by the decision or manner of handling of his complaints by that office can the Petitioner then approach this Court for a remedy.

75. I therefore also find that the Petitioner has failed to demonstrate that he has exhausted the dispute resolution mechanism available to him before filing this Constitutional Petition. It is apparent that the Petitioner rushed to Court prematurely.

76. The Petitioner has also alleged that the 2nd – 9th Respondents are “clinging to power” despite their 2 years mandate having expired, that they have refused to call fresh elections and that they have never conducted any Annual General Meetings. According to the Petitioner therefore, members have been denied the right to vote and elect office bearers as required under the Association’s Constitution. In response, the Secretary stated that they did not conduct an Annual General Meeting in the year 2020 because of the COVID-19 pandemic but conducted one in 2021. He then exhibited a copy of his Notice dated 18/03/2021 informing the members that elections would be held on 10/04/2021. The Secretary then exhibited the minutes of the meeting of 10/04/2021 which indicates that elections and Annual General Meeting were duly conducted on that date and new officials elected. The Secretary also exhibited a register bearing the names and signatures of 39 members who reportedly attended the meeting. There being no controverting evidence presented by the Petitioner, I find that on this issue, the Respondents have sufficiently answered the Petitioner and have sufficiently controverted the Petitioner’s allegation that the or officials have never conducted any Annual General Meeting since they took over leadership.

77. There is also an allegation by the Petitioner that the 2nd – 9th Respondents have violated the Petitioner’s constitutional right of access to information. Lon this point, it is indeed true that Article 35(1) of the Constitution provides for the right of access to information in the following terms:1)“Every citizen has the right of access to—a)information held by the State; andb)information held by another person and required for the exercise or protection of any right or fundamental freedom.

78. For purposes of actualizing Article 35, Parliament enacted the Access to Information Act 2016. Section 8(1) thereof stipulates as follows:“An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested.”

79. The said Act therefore presupposes that an Applicant seeking the Court’s intervention to access information ought to first, request for such information from the Respondent, in writing, with details and sufficient particulars. In this instant matter, the Petitioner has not specified what exact information he seeks or that he has been denied or blocked from accessing. He has also not produced any evidence to demonstrate that he first requested for such information from the Respondents and that the same was denied or declined. For this reason, this prayer also fails.

80. Finally, the Petitioner has stated that in blatant disobedience of the Association’s Constitution, the 2nd – 9th Respondents have leased out shops and erected structures within the compound of the Eldoret Jamia Mosque. He therefore prays for an order for demolition of the structures/shops built in the compound and/or within the premises of the mosque. The said Article 53 of the Constitution of the Association provides as follows:“No building inside the compound of the Mosque may be leased out to any individual or group for the purpose of carrying out business of whatever nature”

81. In response, the Secretary of the Association, both in his Replying Affidavit and in his viva voce testimony conceded that indeed Article 53 stipulates that businesses are not to be run within the compound of the mosque. He however contends that all the businesses referred to are situate outside the mosque compound, that there are therefore no business premises within the mosque, and that the same are facing outward/away from the compound and not inside.

82. I decline to determine this issue for the simple reason that the Petitioner has not demonstrated how and in what manner a breach by officials of the Association of the internal Rules thereof prohibiting the construction of buildings within the compound of the mosque becomes a matter for a Constitutional Petition. The Petitioner has not even explained or pointed out what Article of the Constitution has been violated by the alleged construction of the buildings. On this point, I draw the Petitioner’s attention to the case of Anarita Karimi Njeru v Republic 1979 eKLR where the following was stated:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.

83. Further, in Ngoge vs.Kaparo & 4 Others Nairobi HCMA No. 22 of 2004 [2007] 2 KLR 193, a three judge bench of this Court expressed itself as hereunder:“… The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious ... the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for the unlawful administrative action which involves no contravention of any human right or fundamental freedom.”

84. I similarly cite the holding J. M. Mutungi, J, in the case of Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR, where he stated as follows:“14. Although I have in my foregoing discussion adverted to grounds (c) and (d) of the preliminary objection that there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well Constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought not to invoke the jurisdiction of the Constitutional Court. See the case of Abraham Kaisha Kanziku -vs- Governor of Central Bank & others (2006) eKLR.”

85. In the circumstances, I find that the Petitioner has not demonstrated that the issue of demolition of buildings within the compound of the mosque is a proper matter for a Constitutional Petition. In my view, that is a matter to be litigated in ordinary civil suits, whether civil or land Court, and not as a Constitutional matter.

86. In the end, I find that the Petitioner has failed to prove to the required standards, his allegations that the 2nd - 9th Respondents have violated or infringed upon his rights to economic or social rights or his right of access to information as contemplated in Article 35(1)(b), or freedom of conscience, religion, belief or opinion under Article 32(1), (2), (3), and (4), or right of freedom of association under Article 32 (1), (2), (3) (a) (b), or protection of right to property under Article 40. Similarly, the Petitioner has not in any way demonstrated how the Respondents have breached Chapter 6 of the Constitution of Kenya on leadership and integrity.

Final Orders 87. In the premises, I rule as follows:i.The Petition dated 31/05/2021 is hereby dismissed.ii.Considering that the dispute was in regard to the internal affairs and management of a religious institution (mosque community), to create a conducive environment for reconciliation and harmony, I give no order on costs.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 1ST DAY OF DECEMBER 2023WANANDA J.R. ANUROJUDGE