[2022] KEHC 15569 (KLR)

Republic v Bonea (Sued in his Capacity as Chairman of Hanshak Nyongoro Conservancy); Bonea & another (Exparte Applicants); Registered Trustees of Northern Rangelands Trust & another (Interested Parties) (Judicial Review Application E002 of 2022) [2022] KEHC 15569 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15569 (KLR)

Republic of Kenya

In the High Court at Garsen

Judicial Review Application E002 of 2022

SM Githinji, J

November 15, 2022

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTIONS 4,5,6 AND 7 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF THE ELECTION OF BOARD MEMBERS OF HANSHAK NYONGORO COMMUNITY CONSERVANCY

Between

Republic

Applicant

and

Athman Ali Bonea (Sued in his Capacity as Chairman of Hanshak Nyongoro Conservancy)

Respondent

and

Bonea Ali Bonea

Exparte Applicant

Mohamed Godhana Ido

Exparte Applicant

and

Registered Trustees of Northern Rangelands Trust

Interested Party

Bonea Abadima Bonea

Interested Party

Ruling

1. Vide an amended chamber summons dated June 15, 2022, the exparte applicants sought the following orders;1. Spent2. The ex-partes applicants be and are hereby granted leave to apply for;a.An order of certiorari to remove into this honourable court and quash the respondent’s sham, irregular and unlawful elections held in Chalaluma Village.b.An order of mandamus compelling the respondent to forthwith keep and maintain a continuously updated and audited register of members as well as issue membership cards to all legitimate members.c.An order of mandamus compelling the respondent to conduct consultations with the membership on its draft constitution and convene a meeting for purposes of adopting a negotiated and consolidated constitution to govern the operations of the respondent including but not limited to its elections.d.An order of mandamuscompelling the respondent to surrender to this honourable court the election documents, reports and results for Chalaluma Village in respect of the irregular elections conducted on March 5, 2022. e.An order of mandamuscompelling the respondent to conduct fresh elections in Chalaluma Village upon implementation by the respondent of order (b), (c) and (d) above.3. The grant of such leave in prayers above do operate as a stay, maintaining status quo before the disputed elections of the respondent in Chalaluma Village.4. The honourable court be pleased to give further orders and directions as it may deem fit and just to grant.5. The costs of this application be provided for.

2. The application was supported by the affidavit of Bonea Ali Bonea sworn on the 15th day of June, 2022. He deponed that the Hanshak Nyongoro Community Conservancy is registered under the Community Based Organization that consists of 12 elected members drawn from its constituent villages of Chalaluma, Moa, Witu, Dide Waride, Nagelle and Kasakakairu.

3. He asserted that the board in bid to elect new members drawn from all its constituent community villages called members to pre-election awareness meetings that were scheduled to be held between January 31, 2022 to February 3, 2022. That both the ex-parte applicants expressed interest for board membership but the management arbitrarily purported to conduct board elections on the day of the pre-election meeting which resulted in the election of both applicants as the board members representing Chalaluma Village.

4. Further, that the management later went ahead to conduct fresh elections in Chalaluma village on March 5, 2022 ousting them as elected members of the board. He contended that the said elections leading to the election of the respondent and 2nd interested party in Chalaluma village were conducted under the auspices of the 1st interested party and there was no voter register of members provided and that voting was open to persons who were not members of the conservancy. That the conservancy management has since ousted him and the 2nd ex-parte applicant without according them an opportunity to address their grievances.

Response 5. In opposition the 2nd interested party filed a replying affidavit sworn on the 30th day of May, 2022 as well as a further replying affidavit sworn on the 11th day of July, 2022.

6. He deponed that the elections which resulted in the ex-parte applicants’ election as board members were subsequently vitiated for reason that the community members complained to the area chief that the initial elections were plagued by low turnout and that the initial elections did not involve the women as not a single woman participated. That upon receiving the complaint, the chief organized a meeting where the community unanimously agreed to undertake fresh elections. He asserted that the elections were free, fair and transparent. He averred that the public meeting held in Chalaluma on March 2, 2022 unanimously resolved to hold repeat elections and that the applicants participated and they only challenge the outcome because they lost.

7. The interested parties and the respondents also filed grounds of opposition on the following grounds;1. The gravamen of the application is to challenge the allegedly ‘sham and irregular elections’ held on March 5, 2022 whose validity is beyond the scope of judicial review proceedings.2. The ex-parte applicants impermissibly require the honourable court to delve into the merits of, and determine, contested factual issues properly the subject of an ordinary civil suit.3. The ex-parte applicants have failed to plead or demonstrate any exceptional circumstances justifying their hasty resort to court before exhausting available alternative remedies.4. At all events, the application lacks merit and ought to be dismissed.

Submissions 8. This court had only the benefit of analyzing the respondents and interested parties’ submissions filed on the 1st day of September, 2022.

9. Counsel on behalf of the respondent and the interested parties submitted that the applicant’s application concerns the elections conducted by the conservancy management which contest facts and the attendant circumstances are outside the known province of judicial review. According to counsel, the dispute before court relates to validity of the conservancy elections which calls upon this court to make determinations in respect of disputed issues of fact which should ordinarily be determined in a civil suit in the course of which evidence can be adduced and tested. He relied on the case of Republic v Zacharia Kahuthu &another (Sued as Trustees and on behalf of and as officials of the Kenya Evangelical Lutheran Church); Johaness Kutuk Ole Meliyio & 2 others (interested parties) ex parte Benjamin Kamala &another (2020) eKLR where the court held that the allegations of sham elections require evidence to be proved on a balance of probabilities.

10. Counsel also relied on section 9 (2) and (3) of the Fair Administrative Action Act and the case of Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others (2015) eKLR submitting that the application offends the provisions of section 9(2) and (3) of the Fair Administrative Action Act 2015 and ought to be struck out.

Analysis and Determination 11. I have considered the application herein and further perused through the annexures thereto. I have further considered the respondent’s & interested parties written submissions and it is my considered view that the main issue for determination is whether the applicants’ application for leave to operate as stay is merited.

12. At the leave stage an applicant must show:- (i) 'sufficient interest' in the matter otherwise known as locus standi; (ii) that he/she is affected in some way by the decision being challenged; (iii) that he/she has an arguable case and that the case has a reasonable chance of success; (iv) the application must be concerned with a public law matter, i.e. the action must be based on some rule of public law; (iv) the decision complained of must have been taken by a public body, that is a body established by statute or otherwise exercising a public function. All these tests are important and ought to be demonstrated before an application for leave is allowed in judicial review proceedings.

13. The gist of the application is leave by the applicant to commence judicial review proceedings as sought in the amended application dated June 15, 2022. Under order 53 rule 1 of the Civil Procedure Rules2010, it is mandatory that the applicant in such applications must seek leave before he can file the substantive application. The reasons for leave were explained by Waki J (as he then was) in Republic v County Council of Kwale & another ex parte Kondo & 57 others, Mombasa HCMCA No 384 of 1996 and the dictum in that decision is that, leave is meant to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless; to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration; to prevent the time of the court from being wasted by busy bodies with misguided or trivial complaints or administrative error; and to remove the uncertainty in which public officers and authorities might be left wondering as to whether they could safely proceed with administrative action where proceedings for judicial review were actually pending even though misconceived.

14. On the other hand, the granting of leave to operate as an order for stay is discretionary and should be exercised judiciously. The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken as was held in the case of Taib A Taib vs The Minister for Local GovernmentHC Misc Application No 158 of 2006.

15. In my view, in an application for leave such as the present one, the court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before it and make the decision as to whether the applicant’s case is sufficiently meritorious to justify leave.

16. The applicants herein contend that the conservancy management conducted sham elections in Chalaluma Village ousting them contrary to their legitimate expectations that they had been duly elected as board members. That the sham elections leading to the election of the respondent and 2nd interested party were conducted under the auspices of the 1st interested party and there was no voter register of members provided, voting was open to persons who were not members of the conservancy and that the 1st interested party and its official deployed the infamous ‘mlolongo system’ contrary to secret ballot way.

17. The respondent on the other hand contend the process was fair, transparent and inclusive and that the board actively sought the views of community members in all the villages of Nairobi Area, Chalaluma, Moa, Didewaride and Chira at pre-election and other grassroots meetings. According to them, the applicants impermissibly require the honourable court to delve into the merits of and determine contested factual issues properly the subject of an ordinary civil suit. In my view, judicial review is more concerned with the manner in which a decision is made rather than the merits of the decision. I have considered the positions of both parties and I am of the finding that the exparte applicants have failed to demonstrate how this application is rightly before this court noting that this was an election and not a decision of the board of management. Be that as it may, leave in a judicial review application ought not be granted where there is no failure to act fairly on the part of a decision-making authority in the process of making a decision. Ideally the grounds upon which such an order can be granted include where the decision complained of is tainted with illegality, irrationality and procedural impropriety or where the rules of natural justice are not complied with.

18. Having considered the application in its entirety, I find that the applicants have failed to prove any ground or establish any reason which falls within the jurisdiction of this court to entertain the application and the leave being sought is declined. The application is hereby dismissed for want of merit.

RULING FOR GARSEN READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI IN THE ABSENCE OF THE PARTIES THIS 15TH DAY OF NOVEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the presence of; -TLO Advocates LLP for the Ex- Parte ApplicantsOchieng’ Ogola & Co. Advocates for the Respondents & Interested Parties.Mr Maina holding brief for Mr Oduor for Exparte Applicant