[2020] KEHC 1152 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. E215 OF 2010

IN THE MATTER OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLES 10, 19, 20, 22, 23, 27(1), 28, 36, 47, 50(2) 159(2) AND 165(3)(B) OF THE CONSTITUTION OF KENYA 2020

AND

IN THE MATTER OF CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27(1), 28, 36, 47(1) AND 50(2) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA WOMEN PARLIAMENTARY ASSOCIATION (KEWOPA)

BETWEEN

HON. PURITY NGIRICI………….…………….PETITIONER/APPLICANT

VERSUS

HON. GATHONI WAMUCHOMBA……………….…..1ST RESPONDENT

HON. ROZA BUYU…………….……………….……….2ND RESPONDENT

HON. MISHI MBOKO………………………………….3RD RESPONDENT

REGISTRAR OF SOCIETIES………..……..…………..4TH RESPONDENT

RULING

1. The Petitioner filed a Petition and Supporting Affidavit dated 17th July 2020 under Rules 3, 4(1) and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Petition is before this Court on grounds that the Petitioner was removed as chairperson of the Kenya Women Parliamentary Association (KEWOPA) though an allegedly unlawful/illegal meeting which was held on 7th July 2020. The Society members present at the meeting furthermore allegedly passed an unlawful and/or illegal resolution that the 1st Respondent herein takes over as the Chairperson of the society.

2. The Petitioners asserts that her removal as the Chairperson is illegal, un-procedural, malicious, fraudulent and contrary to the association’s constitution and did not meet the threshold for a proper removal. It is asserted that Articles 10, 19 (1), 20 (1) & (4), 23, 27, 28, 36, 47, and 50 of the Constitution of Kenya, as well as Section 4 (1) and (3) (b) of the Fair Administrative Actions Act were infringed by the actions of the Respondents.

PETITIONER/APPLICANT’S APPLICATION

3. The Petitioner/Applicant filed a Notice of Motion under Articles 22, 23, 27, 162 and 165 of the Constitution of Kenya 2010, Rules 3, 13, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural Rules, 2013, dated 17th July 2020 and 6th August 2020.

4. The 1st Application dated 17th July 2020 seeks the following orders:-

i. THATthis Application be certified as extremely urgent and service be dispensed with in the first instance;

ii. THATthis Honourable court be pleased to issue Conservatory interim orders restraining the 4th Respondent from altering, changing or interfering with the records of Kenya Women Parliamentary Association (KEWOPA) as regards its chairperson or in any other way adopting or effecting the resolutions of the meeting held on the 7th day July 2020 pending the inter-parties hearing and determination of this Application;

iii. THATthis Honourable court be pleased to issue Conservatory interim orders restraining the 4th Respondent from altering, changing or interfering with the records of Kenya Women Parliamentary Association (KEWOPA) as regards its chairperson or in any other way adopting or effecting the resolutions of the meeting held on the 7th day July 2020 pending the hearing and determination of this Application;

iv. THATthis Honourable court be pleased to issue Conservatory interim orders restraining the 4th Respondent from altering, changing or interfering with the records of Kenya Women Parliamentary Association (KEWOPA) as regards its chairperson or in any other way adopting or effecting the resolutions of the meeting held on the 7th day July 2020 pending the hearing and determination of the Petition;

v. THATthis Honourable court be pleased to issue conservatory orders restraining the 1st, 2nd, and 3rd Respondents from interfering or preventing the Applicant from discharging her duties as the chairperson of KEWOPA pending the inter-parties hearing and determination of this Application;

vi. THATthis Honourable court be pleased to issue conservatory orders restraining the 1st, 2nd, and 3rd Respondents from interfering or preventing the Applicant from discharging her duties as the chairperson of KEWOPA pending the hearing and determination of this Application;

vii. THATthis Honourable court be pleased to issue conservatory orders restraining the 1st, 2nd, and 3rd Respondents from interfering or preventing the Applicant from discharging her duties as the chairperson of KEWOPA pending the hearing and determination of the Petition;

viii. THATthis Honourable court be pleased to issue any orders it deems just and expedient for the interests of justice;

ix. THATthe costs for this Application be provided for.

5. The 2nd Application dated 6th August 2020 seeks the following orders:-

a) That this Application be certified urgent.

b) That this Honourable Court be pleased to issue Conservatory orders restraining the 1st, 2nd and 3rd Respondents from interfering or preventing the Applicant from discharging her duties as the chairperson of KEWOPA pending the hearing and final determination of the Petitioner’s Notice of Motion Application dated 17th July 2020.

c) That this Honourable Court be pleased to issue Conservatory orders restringing the 1st, 2nd and 3rd Respondents from interfering or preventing the Applicant from discharging her duties as the chairperson of KEWOPA pending he hearing and final determination of the Petitioner’s Notice of Motion Application dated 17th July 2020.

d) That this Honourable Court be pleased to stay the decision by the 4th Respondent registering the 1st, 2nd and 3rd Respondents as the officials of KEWOPA pending the hearing and final determination of the Petitioner’s Notice of Motion Application dated 17th July 2020.

e) That this Honourable Court be pleased to stay the decision by the 4th Respondent registering the 1st, 2nd and 3rd Respondents as the officials of KEWOPA pending the hearing and determination of the Petition.

f) That this Honourable Court be pleased to order that the Petitioner’s Notice of Motion Application dated 17th July 2020 be dispensed by way of written submissions and set for ruling date for the same.

g) That this Honourable Court be pleased to issue any orders it deems just and expedient for the interests of justice.

h) That the costs for this Application be provided for.

6. The 1st Application is supported by the Affidavit of Hon. Purity Ngirici sworn on 14th July 2020, and is premised on the grounds that the purported meeting that removed the Applicant as Chairperson of the Association lacked quorum and was illegally and unlawfully constituted. Furthermore, it is asserted that the Applicant was not notified in writing or even verbally of any gross violations/ grounds for her removal to enable her to respond to the same and hence the decision is inconsistent with Article 50 of the Constitution of Kenya and the Fair Administrative Actions Act and the provisions of the Association’s Constitution.

7. Moreover, her removal did not meet the threshold for a proper removal that requires 73 out of the total membership of 97 members for the removal of a chairperson. The grounds for removal of a member are that her conduct has adversely affected the reputation or dignity of the Society. The Applicant’s removal is thusly inconsistent with the Constitution as she is yet to be issued with any notices and/ or complaints against her.

8. The Applicant asserts that unless the Court intervenes and grants the orders prayed for, the 4th Respondent will effect the illegal changes in the records thus sanctioning the illegal actions impugned herein. Furthermore, without the Court’s intervention, the impugned changes will continue to cause tension, animosity and confusion among the Association’s members and thus subject it to ridicule.

9. The Applicant asserts that she will suffer serious harm and irreparable damage, which cannot be adequately compensated in damages if the application is not heard immediately, and she is not granted the prayers sought. It is averred that the Applicant has a prima facie case with a high probability of success, and that Respondents will not incur any inconvenience or expenses which would be proportionate to the Applicant’s and the Association’s.

2ND RESPONDENT’S RESPONSE

10. The 2nd Respondent swore and filed a Replying Affidavit on 23rd July 2020, in which she depones that on various dates in May and June 2020, 65 out of the 97 members of KEWOPA signed a Petition seeking to change the Chairperson and outlining the reasons for the removal of the Applicant. The 3rd Respondent was informed of the Petition vide a letter dated 8th June 2020.

11. It is contended that on 22nd June 2020 the Secretary of KEWOPA empowered by the Executive Committee, issued a Notice of an Intended Special General Meeting and all members of the Association were copied including the Chairperson. The 2nd Respondent asserts that the Petition and Notice of removal of the Chairperson were served on all members of the Association in conformity with its constitution.

12. On 7th July 2020 a Special General Meeting was held and attended by 35 out of the 97 members this making up the requisite quorum of not less than one third of registered members. Furthermore, the meeting was held within 21 days of the requisition made on 22nd June 2020 in accordance with the KEWOPA constitution. The members deliberated on the errors of omission made by the then Chairperson and this resulted in the removal of the Applicant as the chairperson of the Association. The members were further invited to propose their desired candidates for the vacant position who was Hon. Gathoni Wamuchomba, the 1st Respondent, who was eventually elected.

13. It is asserted that there was no illegality involved in the removal of the Applicant as all laid out procedures were followed. It is contended that the removal was procedurally fair and conformed with KEWOPA’s constitution, the right to fair administrative action and the rules of natural justice including to a fair hearing. The 2nd Respondent avers that the Applicant was aware of the Petition, Notice and the SGM yet she neglected, failed and/or refused to participate in the proceedings.

14. Furthermore, there were valid grounds for the removal of the Applicant as the chairperson namely her failure to advance the women’s agenda which is the main mandate of the Chairperson of KEWOPA. It is contended that the 1st to 3rd Respondent s were not in contravention of Articles 27 (1), 28, 47 and 50 of the Constitution and the Fair Administrative Actions Act 2016.

15. The 2nd Respondent asserts that there will be great prejudice occasioned to the Respondent herein, the membership of KEWOPA, the women’s agenda and the public at large if the conservatory orders sought in the Application and the prayers sought in the Petition are issued.

3RD RESPONDENT’S RESPONSE

16. The 3rd Respondent swore and filed a Replying Affidavit dated 28th July 2020, relying on the contents of the Affidavit of the 2nd Respondent in its entirety.

1ST RESPONDENT’S RESPONSE

17. The 1st Respondent swore and filed a Replying Affidavits dated 22nd July 2020, relying on the contents of the Affidavit of the 2nd Respondent in its entirety.

4TH RESPONDENT’S RESPONSE

18. The 4th Respondent responds to the Application vide a Replying Affidavit sworn by Maria Goretti Nyariki dated 22nd July 2020. It is deponed that on 9th July 2020 and 10th July 2020 the 4th Respondent received complaint letters dated 8th July, 2020 and 9th July 2020 respectively of the purported changes in the office of the chairperson of the Association. The 4th Respondent avers that the complaint letters were forwarded to the secretary of the Association on 15th July 2020 to respond to the complaints raised, and the 4th Respondent received the response dated 14th July 2020. The 4th Respondent was thusly satisfied with the responses of the 3rd Respondent and accepted the documents submitted in regards the change of office bearers of the Association.

19. The 4th Respondent asserts that it operates by the doctrine of good faith and relies on information made to it by the members of the society and does not interfere with the internal operations of the society. As a result, all of the actions of the 4th Respondent have been in good faith and due diligence was applied at all times.

20. It is prayed that the Applicant’s Application be dismissed with costs to the Respondents.

ANALYSIS AND DETERMINATION

21. I have very carefully considered the Petitioner’s Application; the Respondents responses; parties rival submissions and authorities in support and from the above the following issues arise for consideration in determining the Petitioner’s/Applicant’s Application:-

a) Whether the Court has jurisdiction to hear and determine this matter?

b) Whether the Petitioner/Applicant has met the threshold for granting conservatory orders?

c) Whether the Court should stay the decision of the 4th Respondent to name the 1st Respondent as chairperson of KEWOPA?

A. WHETHER THE COURT HAS JURISDICTION TO HEAR AND DETERMINE THIS MATTER?

22. The 1st, 2nd and 3rd Respondents urge that it is trite law that jurisdiction is everything and without it the Court ought to down its tools; submitting that the Petition and the application herein are premature because the Petitioner/Applicant has failed to exhaust the readily available alternative dispute resolution procedures which are encouraged by the constitution at Article 159(2)(c) of the Constitution.

23. Article 159(2)(c) of the Constitution states that in exercising Judicial authority, the Courts and tribunals shall be guided by the following principles (c) alternative forms of dispute resolution including reconciliation; mediation, arbitration and traditional dispense resolution mechanisms.

24. The 1st, 2nd and 3rd Respondents aver that KEWOPA is an association of all female parliamentarians drawn from across all political parties both elected and nominated in the National Assembly and the Senate. Therefore, rather than seek relief from the Court, the Petitioner/Applicant should have pursued alternative legal dispute resolution mechanisms through Parliamentary processes and procedures involving political parties.

25. The Petitioner/ Applicant contends that this Court has jurisdiction to hear and determine the Petition. It is asserted that while KEWOPA are members of Parliament; KEWOPA is a society registered under Society Act; which the Respondents have not controverted. It is clear that the members of society in leadership position including the vice chair and the Secretary, the 2nd and 3rd Respondents herein were involved in the alleged ousting of the Petitioner from the position of the Chair. Upon perusal of the Constitution of KEWOPA, it is clear that, it does not provide a system for ventilation of grievances of any aggrieved member of KEWOPA, a Society herein. It is further in no dispute that the proper body to ensure the legal running of the offices of all registered societies in Kenya is the 4th Respondent herein, thus the Registrar of Societies. It is not indispute in this matter that the Petitioner wrote to the Registrar of Societies several times, and the Registrar has acknowledged receipt, complaining about her illegal ouster and seeking redress. It is contended that instead, the 4th Respondent proceeded to approve a change of officers despite being aware that the statutory form it did not bear the mandatory three signatory.

26. The Petitioner in her Petition dated 17th July 2020 contend that her rights and fundamental freedoms as enshrined in Bill of Rights has been denied, violated, infringed or threatened and seek appropriate orders. Article 165 (3) (b) of the Constitution of Kenya 2010 provides that the High Court shall have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights have been denied, violated, infringed or threatened. The Petitioner/Applicant’s alleging that her rights and fundamental freedoms were being violated, or denied, infringed or threatened was justified to move this Court, which has jurisdiction to hear and determine this matter. Secondly, the issue herein relates to society and the Respondents have not cited any relevant provision in KEWOPA Constitution barring an aggrieved member from moving to Court, without first exhausting the alleged alternative dispute resolution mechanisms through parliamentary process and procedures involving political parties.

27. In view of the foregoing, I am satisfied the Petition herein deals with violation, denial, infringement and threat of Petitioner’s Bill of Rights as enshrined in the Constitution. The Petitioner is properly before this Court and this Court is clothed with the requisite jurisdiction to hear and determine this matter.

B. WHETHER THE PETITIONER/APPLICANT HAS MET THE THRESHOLD FOR GRANTING CONSERVATORY ORDERS?

28. The guiding principles upon which this court can grant conservatory orders in a constitutional application are now well settled. The Applicant is obligated to establish a prima facie case with a likelihood of success and prejudice to be suffered if orders are not granted. In respect of the second limb, the rule is that any potential prejudice to the Petitioner must be weighed against public interest.

29. In the case of Platinum Distillers Limited v Kenya Revenue Authority [2019] eKLRthis Court (Korir, J) while quoting with approval the Munya and CREAW case held:

“The law, as I understand it, is that in considering an application for conservatory orders, the court is not called upon and is indeed not required to make any definitive finding either of fact or law as that is the province of the court that will ultimately hear the Petition. The jurisdiction of the court at this point is limited to examining and evaluating the material placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of conservatory orders. The court is also required to evaluate the pleadings and determine whether denial of conservatory orders will prejudice the applicant.”

30. On the issue of prima facie case the Respondents urge in their Replying Affidavit that they have given account of process that was followed by KEWOPA members allegedly as per their constitution urging further the Petitioner herein was aware of the events leading up to her removal as chairperson and failed to attend the SGM of her own volition and should thus be stopped from denying the service. In the circumstances it is contended by the Respondents that they have collectively shown that there was no violation of Constitutional rights as alleged by the Petitioner/Applicant. They therefore contend the Petitioner has failed to establish a prima facie case with likelihood of success.

31. The Petitioner/Applicant in seeking conservatory orders herein has alluded to what circumstances the Court can grant conservatory orders and sought support from the case of Wilson Kaberia Nkunja v. The Magistrates and Judges Vetting Board and others Petition No. 154 of 2016 [2018] eKLR where a five judge bench set out three tests which an applicant is required to meet before granting of the conservatory orders in a Constitutional petition, being: -

“a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.

b) Whether , if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory, and

c) the public interest must be considered before grant of a conservatory order.”

32. Further in the case of Board of Management of Uhuru Secondary School v. City County Director of Education and 7 others (2015) eKLR the Court summarizing the principles of grant of conservatory orders stated that they included the following:

“a) First, the need for the applicant to demonstrate an arguable absence of the conservatory orders, he is likely to suffer prejudice;

b) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.

c) Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory, and

d) The final principle for consideration is whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.”

33. The Petitioner’s Petition primarily challenges the Constitutionality of the actions and decisions of the Respondents purportedly ousting her as champion of KEWOPA. The Petitioner is seeking the protection of this Honourable Court for the alleged breach of her rights to fundamental freedom by the Respondent under Article 47(1), 50, 35, 27,and provisions ofKEWOPA Constitution. The Respondents urge that they have shown that there was no violation of Constitutional rights alleged by the Petitioner/Applicant.

34. It is noted in this Petition that Petitioner challenges a purported unconstitutional order from KEWOPA. It is contended that she did not receive notice of the General Meeting called to remove her, whereas the Respondents claim the notice was placed in her pigeon hole but did not bother to call her, email her, or as the KEWOPA constitution provides, advertise the Meeting in a national newspaper.

35. The Respondents it is contended that they did not abide by the procedures provided under Rule 5(f) of the KEWOPA Constitution which requires a recommendation supported by signatures of two thirds members (67) and further, a resolution by three quarters of the members. Further, it is contend that it turns out that while the Respondents claim a Petition was signed by 65 members, a simple count of the signatures in the annexture shows there are only 62 signatures, below the required 67. In any case, the Petitioner argue that the signatures are a conglomeration of different documents, not the purported petition claimed. Further it is averred that the Respondents by their own admission state that only 35 members attended the Special General Meeting, below the three quarters (73) members required for a resolution.

36. In view of the above the Petitioner /Applicant urge that she has demonstrated an arguable prima facie case raising various issues.

37. On prejudice to the Petitioner (if any) versus public interest the Respondents contend that the Petitioner/Applicant has submitted that the Petition would be rendered nugatory if the conservatory orders sought are not granted. It is Respondents contention that the nugatory aspect is not once of guidelines for the Court to consider when determining an application for conservatory orders. (See the binding Munya and CREAW cases supra). The Respondents therefore urge they wish to stand by the binding nature of the decision of the Supreme Court in the Munya case, which expressly states that in an application for conservatory orders, an applicant is required to establish a prima facie case with a likelihood of success and show prejudice to be suffered in the event the orders are not granted. The respondents therefore pray that the Court does disregard this limb in the Petitioner/Applicant’s submissions.

38. On the issue of prejudice, at paragraph 38 – 46 of her written submission, the Petitioner/Applicant has submitted on the issue of prejudice versus public interest and concluded that there would be no harm occasioned to the public interest if the conservatory orders are granted. The Respondents urge othewise for the reasons that:-

a) KEWOPA is a membership association of all female parliamentarians in the National Assembly and the Senate whose overall goal is to push the women’s agenda. To this end and on the one hand, since assuming office in July 2020, the 1st Respondent has been (and so continues to be) actively involved in the implementation of several important and urgent directives including the two-thirds gender rule in Parliament, the President’s directive on teenage pregnancies and rising cases of Gender-Based Violence and the Constitutional Amendments of the Common Women Agenda. (See paragraphs 8 & 9 of the 1st Respondent’s Affidavit).

b) On the other hand, despite being at the helm of KEWOPA for 3 years since assuming office in January 2018, the Petitioner/Applicant failed to perform her prescribed duty and this (inter alia) led to her lawful and procedurally fair ouster at the SGM held on 7th July 2020.

c) Consequently, the public interest would be gravely harmed if the conservatory orders sought are granted.

39. The Petitioner contend that it is patently unjust that the Petitioner, elected by 97 members of KEWOPA, would be run out of office by a rabble of 35 members in a coup that would, even for a second, be sanctioned by this Honourable Court. The Petitioner’s rights and fundamental freedoms have been violated and continue to be violated. This Honourable court is obligated to protect the rights of the Petitioner and enhance the rule of law. Failure to grant conservatory orders would sanction the illegal and unconstitutional actions and decisions of the Respondent even if just for a spell should the Petition thereafter succeed.

40. It is urged by the Petitioner that her removal has created and brought to force “heated divisive politics” that the Respondents alleged were grounds for removal of the Petitioner which now threaten to divide KEWOPA and portend grave implications to the stability and continued function of KEWOPA. A large number of Kenyans women that pend on KEWOPA stand to lose, while any actions taken by the 1st Respondent as the chairperson risks placing the association and persons dealing with it in legal jeopardy should the Petition succeed with the result that all actions undertaken by her in such capacity would be void This Court is true to the fact that the hour that may be accessed by actor, taken by 1st Respondent without any legal authority (if any) will be reversible if the Petition succeeds; this rendering the Petition nugatory.

41. This Court notes that the 1st Respondent in her Replying Affidavit dated 22nd July 2020 at paragraph 9 lists actions and decisions she has taken on behalf of KEWOPA as the chairperson. In her annexure marked “GW” at page 1, in a letter to the Ministry of Education Science and Technology, the 1st Respondent nominated five persons to a committee on teenage pregnancy. She further annexes numerous other documents touting the actions and decisions she is taking as the chairperson of KEWOPA which would all turn out to be unauthorized should the Petition succeed thus placing the Government, Kenyan Citizens and KEWOPA in untenable situations.

42. The Respondents contention is that the nugatory aspect is not one of the guidelines for consideration for the Court in granting conservatory orders, however this does not in anyway diminish the other aspects which the court is obligated to consider for granting of conservatory orders which such aspects include a prima facie case; prejudice to be suffered if orders sought are not granted; public interest aspect and further the constitutional values and objects of specific rights and freedoms in the Bill of Rights.

43. In this matter the 1st, 2nd and 3rd Respondents aver that public interest would be harmed if the conservatory orders are granted as prayed, on the grounds that the 1st Respondent herein; has been actively involved in “implementing several important and urgent directives."This indeed is not denied, but it should be noted that this does not matter nor should its importance be elevated above the violation or denial or breach ones constitutional rights. Further if a party engages in activities without authority, the importance of the activities should not be used a basis to justify continual illegal acts.

44. I find such activities of participating in a corp d’etat from places pubic interest at risk upon which a party purports to proclaim authority but for Court to find that there existed a coup d’etat the party alleging is bound to call evidence to demonstrate that indeed coup d’etat existed. It is alleged that Registrar of Societies entered the 1st Respondent’s name as an officer of the society herein illegally and contrary to the provisions of Section 17 of the Societies Act. It is further asserted that the 1st Respondent lacks legal authority to transact any business on behalf of KEWOPA. I find that if this is established the 1st Respondent would be acting contrary to the law and, constitutional dispensation which is detrimental to public interest and court is enjoined in such circumstances to issue appropriate orders in public interest.

C. WHETHER THE COURT SHOULD STAY THE DECISION OF THE 4TH RESPONDENT TO NAME THE 1ST RESPONDENT AS CHAIRPERSON OF KEWOPA?

45. The Petitioner / Applicant seek that the decision of the 4th Respondent to name the 1st Respondent as Chair of KEWOPA be stayed pending hearing and determination of this Petition. It is contended that the 4th Respondent illegally and contrary to Provisions of Section 17 of the Societies Act entered the name of the 1st Respondent as the Chairperson of KEWOPA based on a FORM H that locked the three signatures mandatorily required by the statute. The Petitioner/Applicant assert that the action taken by the 4th Respondent cannot stand as it is ultra vires the Act and contrary to Article 47 of the Constitution.

46. The 1st, 2nd and 3rd Respondents oppose the granting prayer for stay urging the same is improper for the following reasons:-

(i) That on 22nd July 2020, the 4th Respondent recognized (by updating its register) that the 1st Respondent is the chairperson of KEWOPA.

(ii) That it has not been demonstrated that there exists special circumstances as to warrant the grant of a mandatory injunction in the present case.

(iii) That the Petitioner seeking an equitable remedy of mandatory injunction at this stage, is guilty of laches for delaying to file the second application dated 6th August 2020. It is contended that delay defeats equity.

47. The 1st, 2nd and 3rd Respondents further argue that the public interest in the present case outweigh the Petitioner’s/Applicant’s individual interest in KEWOPA. It is further urged that on considering the milestone achieved by the 1st Respondent in her two short months in officer, more harm than good will be done to the public if this court were to indulge Petitioner/Applicant’s request to issue stay of the 4th Respondent’s decision communicated through a letter dated 22nd July 2020.

48. The 4th Respondent in response submits that the office of the 4th Respondent does not interfere with internal affairs of any Association as it is only mandated to receive the following documents once a General Meeting under Section 29 of Societies (Cap 108) Laws of Kenya is convened electing new office bearers:-

i. General Meetings minutes of a Society.

ii. Notification of Change of Officials (FORM H),

iii. Notice by the Secretary convening the General Meeting,

iv. Attendance list.

49. The 4th Respondent upon receipt of the aforesaid documents is obligated then to inspect the documents to confer that the Society has complied with its Constitutive Constitution and the Societies Act (Cap 108) Laws of Kenya before confirming the new officials.

50. The 4th Respondent confirm that 1st, 2nd and 3rd Respondents submitted documents for change of office bearers, however she did receive the documents as the Respondents had not filed Annual Returns for the year 2018 and 2019 which is a mandatory requirement as per Section 30 of the Societies Act (Cap 108) Laws of Kenya before the office can receive any changes . The Respondents were advised to file the returns and before they could do so, the 4th Respondent received a complaint letter from the applicant indicating that the Respondents removed her from the office unprocedurally. The 4th Respondent then requested the respondents to reply to Petitioners/Applicant’s complaint letter before the office could act further.

51. It is 4th Respondents contention that upon receipt of the response and upon being satisfied that the Association complied with the Constitutive Constitution on requirements as holding General Meetings it confirmed the new office bearers as submitted.

52. The Applicant in her further affidavit paragraph 4 (f & g) submit that the amended constitution within the 4th Respondent attached in the Replying Affidavit by the 4th Respondent is not in existence. This averment raises a serious issue regarding integrity as regards the proper constitution of KEWOPA and is not taken lightly by this Court. The 4th Respondent urge the further affidavit has been filed without leave of the Court, however that notwithstanding the same forms part of this court record until the same is expunged by orders of this Court or is struck out. This Court has heard this application without being moved to either expunge or strike out the further affidavit. I therefore decline to ignore contents of the further affidavit as it now forms part of the Court record.

53. The 4th Respondent urge that the Applicant contend in her submissions that the 4th Respondent disregarded the statutory provisions of Section 17 of the Societies Act in approving the changes submitted to the office. In response it is contended that Applicants Association via a letter dated 13th June 2018 requested for approval of new constitution, which is a requirement under Section 20(1)(a) of Societies Act which provides that:-

“No registered Society shall amend its name, or its constitution or rules….except within the prior consent in writing of the Registrar, obtained upon written application to him signed by three of the officers of the society.”

54. It is admitted by the 4th Respondent that the said request letter was received but no consent letter was written by the Registrar of Societies approving the new constitution. This therefore turns out that the 4th Respondent relied on the Constitution submitted during the Registration stage as no amendment to it was successfully lodged. The Petitioner is therefore seeking reliance on unrecognised constitution of KEWOPA. In line with KEWOPA Constitution Clause 9 (d) a special general meeting may be requisitioned for a specific purpose by writing to the secretary of not less than ONE THIRD members and such meeting shall be held within 21 days of the date of requisition and notice of that meeting in writing be sent to all members not less than 7 days before the date of the meeting. Clause 9 (e) of KEWOPA Constitution also states that quorum for General Meetings shall not be less than ONE THIRD (1/3rd) of the registered members of the society.

55. This Court note that the Association herein KEWOPA, is a members Association and that it is only its members through the provisions of their constitution that have the power and mandate to elect their leaders in accordance of the constitution of their own choice and none should take leadership contrary to the KEWOPA Constitution or in breach of others rights but with the will of the majority which should be given room to prevail.

56. The 4th Respondent contend that the Respondents submitted the documents proving that they complied with their constitution in particular Clause 9 (d) and (e) of KEWOPA Constitution regarding special General meeting. The 4th Respondent aver that after inspecting the documents, it went ahead and confirmed the new office bearers.

57. The 4th Respondent pray that the orders sought against her be declined as the Petitioner has failed to demonstrate with precision how the fundamental rights and freedoms under the constitution have been violated or threatened. It is further stated that no harm will be occasioned to the applicant if the conservatory orders sought are not granted as the society through its members can hold meetings and take appropriate actions to re-elect the Petitioner back to office if they so wish and the office of 4th Respondent will affect the changes appropriately. It is urged that the action of the 4th Respondent were not ultra vires as she exercised the powers within her mandate under the Societies Act (Cap 108) Laws of Kenya.

58. The Applicant/Petitioner contend the 4th Respondent decision to name the 1st Respondent as a Chair of KEWOPA should on the other hand be stayed pending determination of the Petition, and for flagrant and in-depth violation of Section 17 of the Societies Act and Article 47 of the Constitution. It is further urged that the 4th Respondent updated its register on 22nd July 2020, the day before the matter was set for hearing inter parties.

59. Having considered the Applicant’s application, grounds in support and submission as well as the Respondents grounds of opposition, the KEWOPA Constitution, and the circumstances under which the Court can grant prayers sought in this application, I find that the Petitioner / Applicant is seeking an equitable remedy of injunction after the 1st Respondent had been registered as a Chairperson of KEWOPA by the 4th Respondent and has taken out the official duties. The Petitioner is guilty of laches for delaying to file the 2nd application. The delay herein defeats equity, and in the interest of justice at the preliminary stage, I find that justice demand status quo prior to the filing of the second application of 6th August 2020 be maintained pending hearing and determination of the Petition. I find if Petitioner’s/Applicant’s Petition succeeds, there will be no prejudice as the Court can grant appropriate reliefs including quashing the proceedings, minutes and consequential resolutions made on 7th July 2020 amongst other reliefs sought in the Petition.

60. The upshot is that the Petitioner’s / Applicant’s applications dated 17th July 2020 and 6th August 2020 are in view of my findings not merited. I direct that:-

a) Status quo be maintained pending hearing and determination of the Petition herein on merits.

b) Costs of the applications be in the cause.

Dated, Signed and Delivered at Nairobi on this 10th day of December, 2020.

………………………

J. A. MAKAU

JUDGE