[2017] KEHC 9356 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISC. CIVIL APPLICATION NO. 614 OF 2016

IN THE MATTER OF THE APPLICATION BY MARIA KESUMO, SHADRACK TEMOR,

GILBERT K. MELI, ANTHONY SITIENEI, SHADRACK KEMBOI, JANE JEPKORIR,

PIUS CHERUIYOT, SAM MAJERA, LEAH MENJO AND SAMMY

LETTING FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

AND

IN THE MATTER OF AND/OR THE VIOLATION OF ARTICLES 20, 22,23,

27,28, 33, 35, 47, 50,157 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF AND/OR THE BREACH OF SECTIONS 17, 19,27 (1),

28 AND 29 OF THE SOCIETIES ACT (CAP 108 LAWS OF KENYA)

AND

IN THE MATTER OF AND/OR THE BREACH OF ARTICLES4, 9 (1) (b) 13, 16,

17,20,25 (1) (2) AND27 OF THE CONSTITUTION OF THEKENYA PRIMARY

SCHOOLSHEAD TEACHERS ASSOCIATION (KEPSHA)

AND

THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT (CAP 26 OF THE LAWS OF KENYA)

AND

IN THE MATTER ORDER 53 OF THE CIVIL PROCEDURE RULES 2010

BETWEEN

REPUBLIC.............................................................................APPLICANT

= VERSUS =

THE KENYA PRIMARY SCHOOLS HEAD TEACHERS

ASSOCIATION (KEPSHA)..............................................1STRESPONDENT

THE REGISTRAR OF SOCIETIES...................................2NDRESPONDENT

AND

1. MARIA KESUMO KEMBOI

2. SHADRACK TEMOR

3. GILBERT K. MELI

4. ANTHONY SITIENEI

5. SHADRACK KEMBOI

6. JANE JEPKORIR

7. PIUS CHERUIYOT

8. SAM MAJERA

9. LEAH MENJO

10. SAMMY LETTING..................................EX PARTE APPLICANTS

AND

SHEM NDOLO

JOSPHAT AMUNGA MIDEVA

DAVID KINYUA MAVUTA................................INTERESTED PARTIES

JUDGEMENT

1. By a Motion on Notice dated 13rd December, 2016, the ex parte applicants herein seek the following orders:

1. Thatan Order of Certiorari be issued to quash the 1st Respondent’s decision made by through the interested parties, to the effect that the election of the Uasin Gishu Branch of the Association be held on the 25th October 2016.

2. Thatan Order of Mandamus directed to the Respondents to forthwith rescind the results of the elections held on the 25th October, 2016 and reinstate the Applicants as the true and bona fide officials of the Uasin Gishu Branch of the Association.

3. Thatthe costs of this suit be provided for.

Ex ParteApplicant’s Case

2. According to the applicants herein who are members of the Kenya Primary Schools Head Teachers Association (KEPSHA)(hereinafter referred to as “the Association”), the Association was formed by dint of a Constitution filed with the 2nd Respondent to unite all Primary School Head Teachers in the 47 Counties of the Republic of Kenya to promote good governance and foster co-operation amongst its members among other objectives. The association has a National membership of over ten Thousand (10,000) head teachers countrywide.

3. It was averred that the applicants are also the current duly elected office holders of the Uasin Gishu Chapter of the Association. The Association, it was disclosed has four principal organs as follows:

a. The Annual Delegates Conference; which is the highest decision making/ supreme organ where the National agenda, Budget and resolutions are mandatorily required to be tabled, deliberated and voted upon annually as a basis of legitimate programs for the year next following.

b. The National Governing Council; which principally plays an oversight role to safeguard good governance, transparency and accountability on the part of the executive. It also, by dint of Article 9 of the 1st Respondent's Constitution, mandated to meet, discuss, approve and set the draft Agenda for the annual delegates conference, peruse discuss and approve the draft accounts or financial statements and ratify the previous annual conference's minutes.

c. The National Executive Council; also called "the executive" is among other things responsible for preparation of the National audit, hiring support staff as well as operating the Association's bank accounts/ financial administration.

d. The National Secretariat.

4. According to the applicants, prior to the Annual Delegates Conference, the executive is constitutionally obligated to prepare books of accounts, Audited accounts, Financial statements, obtain current bank statements and balances for all the associations' bank accounts and the agenda proposed to be tabled for discussion in the annual delegates conference. However before forwarding the above documents to the members and setting up the date for the annual delegates conference as well as sending invitation to members, the executive is mandatorily required vide Article 9 (1) (b) of the Association’s constitution to table all the above documents including the Books of Account and the Audited Accounts before the National Governing Council for deliberation and approval by the latter. Once the approval is obtained, invitation and agenda for the national convention should be sent to the members at least 21 days before the day proposed for the conference.

5. It was the applicants’ case that failure to adhere to the foregoing procedures and constitutional requirements renders the entire process inherently and fatally flawed and no legitimate deliberations or decisions can be delivered therefrom.

6. The applicants contended that in the course of the month of April 2016, the Interested Parties herein sent notices to the Association members country wide to convene a National delegates conference at Mombasa in breach of the requisite and mandatory procedures highlighted hereinabove. Among the breaches committed, they failed or neglected to adhere to the following:

i. Failure to submit the draft agenda to the National Governing council for deliberation and approval;

ii. Failure to submit the draft accounts or financial statements for approval and ratification;

iii. Proceeding to draft and send to members, unlawful, unauthorized and unapproved agenda by the National Governing Council as required by the constitution.

7. In addition to the foregoing, the defendants failed to give members the requisite notice of convening the annual delegates conference namely a minimum of twenty one (21) days. Notwithstanding the foregoing, the Annual Delegates Conference was convened from the 7th to 12th August 2016 in the course of which the Interested Parties committed further breaches and illegalities which rendered the proceedings and resolutions unconstitutional, ultra vires to the peril and detriment of the members:-

a. They wilfully and deliberately read the books of accounts on the last day of plenary that is on the 11th August, 2016 between 9:00 a.m and 9:30 a.m.

b. This action by the interested parties deliberately and wilfully denied members an opportunity to pursue the same, understand the issues and make any meaningful contributions in plenary or meaningfully vote on the same.

c. The audited accounts and statements submitted were not approved by the National Governing Council, whose members were only appraised of the same a day before they were presented.

8. In addition to the foregoing breaches, the interested parties in the course of conducting annual audit, wilfully and deliberately concealed from the Auditors and the annual delegates conference the fact of existence and status of one major bank account held at Kenya Commercial Bank hence misleading the auditors and by extension the members as to the true financial status and standing of Association. It was further contended that the interested parties on various dates in the year 2015/2016, without lawful authority or approval from the council, or the annual delegates conference, proceeded to withdraw millions of shillings from the association's accounts and procure for themselves three(3) Toyota Prado motor vehicles at cost running into millions of shillings to the financial peril and detriment of the Nationwide members and that these motor vehicles are subject of recovery proceedings by the Bank.

9. It was the applicants’ case that the interested parties’ true motive of concealing the details and standing of the said bank account was to conceal from the auditors as well as the members in the annual delegates conference the unlawful withdrawal of the associations funds and unauthorized procurement of the subject motor vehicles, so as to avoid accountability from members and the motion of censure that was sure to follow. In addition, tthe interested parties have been drawing from the associations accounts and paying themselves authorized monthly allowances running into hundreds of thousands of authority of the National governing council as required by the constitution.

10. It was therefore the applicants’ case that the foregoing illegalities and acts of the interested parties amount to gross misconduct, breach of trust unethical conduct which renders the defendants legally, morally and ethically unfit to hold their current offices or any public office as such. Consequently, the association has suffered and continues to suffer severe financial haemorrhage, being stripped of its already strained financial resources which has in turn compromised and grossly undermined its ability to meet its legitimate financial obligations as well as its legal and constitutional objectives. The foregoing, according to the applicants not only demonstrates the defendants are grossly dishonest, but have also committed serious financial improprieties against the members of association, and are legally, morally and ethically unfit to continue being in office or being in charge of the association's affairs being in breach of fiduciary trust and confidence bestowed upon them by members.

11. It was therefore the applicants’ case that the interested parties ought to render a full account to the members arising from the foregoing financial misappropriation which has occasioned severe case drain to the association.

12. The applicants disclosed that on or about 19th August 2016, they wrote a detailed letter of complaint to the interested parties highlighting the foregoing irregularities and demanded for convening of a special national delegates conference meeting in order for members to deliberate the above issues and resolve the same amicably. Instead of fully addressing the issues raised, the interested parties through their advocates responded by alleging among other things, that the author of the said letter was the branch chairperson of the Uasin Gishu chapter of the Association and further that he should cease to exercise his constitutional duties and mandate pending further advise from them. It was however asserted that the author thereof was first elected as the branch chairperson of the association on or about 8th June 2012, which election was verified and confirmed by the County Director of Education on or about 5th July, 2012. From the foregoing dates up to 25th October 2016, the Applicants have held the office of the executive of the Uasin Gishu Branch of the Association and executed the duties and functions appurtenant to that office with all diligence commitment, integrity and fidelity to both the county members and the national office, unfettered, including attendance to various meetings convened by the national organs of the Association.

13. The author deposed that by virtue of his appointment as the branch chairperson of the Uasin Gishu chapter of the association, he automatically qualified to join and was enlisted as a member of the National Governing council of the National association, where he has been actively engaged in all relevant meetings and functions in exercise of his constitutional duties and mandate as a member of the said National Governing Council.

14. The applicants disclosed that on the 24th October 2016, around noon they were verbally informed that some national officials had arrived in Eldoret at the Uasin Gishu branch office with intentions of holding purported elections for the branch. Upon rushing to the office, they found a letter dated 18th October 2016, but which was delivered the same day namely 24th October 2016, purporting to give notice of elections the following day namely 25thOctober 2016. The said letter was delivered by some five officials from the national secretariat under instructions of the interested parties herein. The applicants thereupon voiced their protests and concerns to the erstwhile officials and implored them to desist from proceeding with their intended elections as the same would be unlawful, unprocedural and a breach of the laid down procedures. In particular, they pointed out the following issues to them:

a. There was in place a bonafide and legitimately elected officials in the respective capacities and who were currently in office;

b. The said officials had been in office for over 2 years and the defendants had never questioned their bona fides or legitimacy;

c. That there had never been a leadership vacuum in the branch and in any case, the national office could not have countenanced such a vacuum for over 2 years, while expressly dealing with the applicants as the bonafide branch officials;

d. That the incumbent officials had been elected lawfully and procedurally, and could only be removed from office in a similarly lawful and procedure manner;

e. That there is in place a domestic and national constitution which lays down clear procedures for election and removal from office of both national and branch officials, and the same was not being followed or was being flouted with impunity by the defendants herein,

f. Such legitimate removal requires among other things, proper grounds to be established and formal complaints lodged against the plaintiffs through the established constitutional organs and structures in the Association. The interested parties had not complied with this requirement and the purported elections were nothing short of a coup against the branch leadership.

g. In particular, both the national and domestic constitutions require adequate notification to the branch officials and members of any intended elections. The interested parties having caused notices of the purported elections to be delivered on 24th October 2016 for elections to be held on the following day namely 25th October 2016 surreptitiously and unilaterally intended to carry out an unlawful and unprocedural election to the peril and detriment of the applicants.

15. It was pointed out by the applicants that there were serious constitutional issues and complaints against the National Executive Council/ the interested parties, in the course of which the applicants demanded for the convening of a Special Annual Delegates Conference with a view to table evidence of financial and constitutional impropriety and misconduct and to move the delegates for removal of the interested paties from office on constitutional grounds; the purported election was being notified and conducted maliciously and vindictively in orders to both retaliate against the applicants as well as to forestall the process of the impeachment of the interested parties and/or ouster from office.

16. In spite of the foregoing protests, on or about 25th October 2016, the interested parties through their representatives aforesaid made good their threats and proceeded to conduct an unlawful election which was held outside the Uasin Gishu district officer’s office in which the interested parties purported to install the following leaders on the branch;

a. Mathew Chelilim from Wareng Zone as the purported chairman;

b. Antony Sitienei from Eldoret West Zone a the purported Deputy Chairman;

c. Barnabas Chichir from Eldoret West as the purported secretary;

d. Mr. Kemei of Wareng zone as the purported Deputy Secretary;

e. Joseph Mitei from Eldoret East as the purported treasurer;

f. Rebecca Minning from Eldoret West zone as the purported organizing Secretary;

g. Sammy Edagisa from Eldoret east as the organizing secretary;

h. Susan Rono from Wareng zone as the purported deputy treasurer;

i. Flora Chepkener from Eldoret East zone as the purported women representative.

17. It was averred that in the course of the purported elections, the interested parties representatives contacted and convened divisional representatives as opposed to county representatives as requires under the constitution, and regulations of the association, thus circumventing the due process, mandatory and constitutional requirements and procedures relating to legitimate representatives as well as mandatory zonal and Geographical representation requires for a valid electoral process and legitimate outcome to be attained. On the face of the foregoing irregularities and fundamental breaches of the law, the interested parties have now appointed and imposed illegitimate leaders on the Uasin Gishu Chapter of the Association while there is currently in place legitimate and duly elected officials and office bearers who have not been removed from office through any valid, legitimate or constitutionally cognizable process. To the applicants, the foregoing state of affairs have thrown the normal operations of the Uasin Gishu branch chapter of the association in Limbo, the branch members into disarray and precipitated a leadership and constitutional crisis of unprecedented magnitude at the branch level. They contended that the starkly unlawful and shambolic actions of the interested parties have been carried out maliciously, vindictively and with clearly pre- meditated intention of forestalling the Applicants from forgoing ahead with their demands for convening of a Special National Delegates Conference to discuss constitutional breaches and financial improprieties which have been committed by the interested parties in the National office; The interested parties are clearly hell bent at using all means including illegalities to redeem their positions including bringing confusion to bear upon our branch by imposing mala fides and illegitimate leaders through an equally illegal and circumvented process.

18. The applicants’ case was that the interested parties’ actions undermine the fundamental tenets of both the National and a domestic Constitution, national values and principals of leadership and norms and behaviour expected of accountable leadership in a free and democratic society such as ours which should not be tolerated or countenanced by this Honourable court.

19. It was the applicants’ case that the 1st and 2nd Respondents are and intend to continue violating our fundamental rights as spelt out in the Constitution of Kenya 2010.

1st Respondent’s Case

20. According to the 1st Respondent, the Applicants are guilty of material non-disclosure of facts or disclosure in such a suppressed manner so as to mislead this honourable court, the application has no merit and the entire suit is an abuse of the process of this honourable court and yet another misguided attempt by the applicants to portray the image of the interested parties in bad faith.

21. It was the Association’s case that the 1st applicant is not the branch chairperson of the Uasin Gishu Chapter of KEPSGA and a member of the National Governing council. To the Association, there were no elections carried out in the Uasin Gishu Chapter on 2015 during the countrywide elections carried out in in accordance with KEPSHA’s constitution and hence the 1st applicant has been in office illegally. The Association therefore denied that the applicants are valid office bearers out of elections carried out in June 2012. In further response, the 1st respondent and the interested parties averred that the applicants are well aware of the nationwide elections carried out in 2015 except for Uasin Gishu Chapter ushering in new office bearers across the country.

22. To the Association, it is curious that the applicants have chosen to seek for reinstatement of the 1st applicant as the branch chairperson and have ignored other remedies including removal of the interested parties from their current positions if the applicants believe in their allegations.

23. The Association a valid notice was issued for the impending elections for the Uasin Gishu Chapter which notice was legal and in accordance with KEPSHA’s constitution and election regulations and further, the notice was fair as it gave everyone interested in participating in the elections ample time to prepare and take part in the election and no objections were raised by the applicants or anyone else for that matter in relation to the notice. It was averred that the elections were carried out in a free and fair manner and supervised by officers from the Head office who acted impartially and transparently and there were no protests against the elections or that the elections contravened any laws.

24. It was the Association’s case that there is a well documented procedure for handling any election dispute through the National Elections Board which was available to the applicants and which was never used. That further, upto date, no complaints have ever been formally reported regarding the manner in which the elections were conducted. The applicants cannot therefore allege that they have not been accorded a fair hearing if they have not requested for the same by reporting and being given an opportunity to be heard.

25. According to the Association and the interested parties, they have always acted within the law and in a transparent manner in the execution of their mandate including handling elections. Further, the interested parties do not believe that the applicants have exercised good faith since they have not sought any audience with the National Election Board or other organs within KEPSHA for a resolution of their grievances (if an) and therefore cannot allege that they have been treated unfairly.

26. It was therefore their case that the entirely of the application and the supporting pleadings are diversionary, full of lies and irrelevancies and calculated at misleading this honourable court and as such all the prayers sought must fail.

Determinations

27. I have considered the issues raised in this application.

28. Section 18 of the Societies Act 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.

29. It cannot be doubted that from a holistic reading of the powers of the Registrar under the Societies Act, the Registrar is tasked with the mandate of regulating societies to ensure that they comply with the provisions of the Societies Act, Cap (108) and its constitutive constitution requirements which govern its operations.

30. Apart from the Act, the constitution of the Association establishes various organs meant to streamline its operations. One such organ is the Special Delegates Conference which may be requisitioned by Notice of 25% of the membership of the Association from at least 24 counties or by an order of the National Governing Council. In matters affecting societies and other such like associations, Courts are usually reluctant to intervene unless the Association is contravening its constitution and all the available avenues for resolving the dispute have been exhausted. See Patel and Others vs. Dhanji And Others [1975] EA 301.

31. It ought to be appreciated that judicial review is a remedy of last resort. As was held by this Court in Republic vs. Ministry of Interior and Coordination of National Government and Another ex parte ZTE Judicial Review Case No. 441 of 2013:

“…one must not lose sight of the fact that the decision whether or not to grant judicial review orders is an exercise of judicial discretion and as was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003,for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort though the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate. Therefore, unless due to the inherent nature of the remedy provided under the statute to resort thereto would be less convenient or otherwise less appropriate, parties ought to follow the procedure provided for under the statute.”

32. It was similarly held in Republic vs. National Environment Management Authority [2011] eKLR, that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted. It was however appreciated that it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it.

33. There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. This principle was well articulated by the Court of Appeal inSpeaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425, where it held that;

“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

34. Therefore confronted with a question as to which remedy a litigant ought to seek, a Court should examine whether the alternative remedy provides an efficacious and satisfactory answer to the litigant’s grievance. In other words the Court ought to consider whether the alternative remedy is less convenient, beneficial and effectual. That was also the position in the English case of Ex parteWaldron [1986] 1QB 824 at 825G-825H,where Glidewell LJ observed that the court should always interrogate relevant factors to be considered when deciding whether the alternative remedy would resolve the question at issue fully and directly.

35. It is now therefore a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction would not be exercised and the court must not exercise it where there exist alternative remedy. In Re Preston [1985] AC 835 at 825D Lord Scarmanwas of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort.

36. Section 9(2) of the Fair Administrative Action Act, No. 4 of 2015 provides:

The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

37. Subsection (3) thereof provides:

The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

38. In my view the applicants ought to have resorted to internal mechanisms provided by the Association’s Constitution before invoking this Court’s judicial review jurisdiction.

39. In the premises I find that the instant application is incompetent.

Order

40. Consequently the Notice of Motion dated 13rd December, 2016 is hereby struck out but as the matter has not been decided on its merits and considering the relationship between the parties herein there will be no order as to costs

41. Orders accordingly.

Dated at Nairobi this 4th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Gichuhi for the applicant

Mrs Githu for Miss Ndegwa for the 2nd Respondent

CA Ooko