[2022] KEHC 26903 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

(CORAM: A.K. NDUNG’U J.)

JUDICIAL REVIEW MISC. APPL. NUMBER E062 OF 2021

JASVINDER SINGH BILKHU ...........................................APPLICANT

VERSUS

MANMINDER SIGH BILKHU & ANOTHER...... 1ST RESPONDENT

EAST AFRICAN RAMGARHIA

BOARD (EARB) ..................................................... 2ND RESPONDENT

RULING

1. This ruling is in respect of the Chamber Summons Application dated 13th April 2021 in which Jasvinder Singh Bilkhu (hereinafter the Applicant) seeks orders;

i) Spent

ii) a) An order of prohibition be directed against the 1st Respondent to restrain the 1st Respondent from proceeding with any duties and/or obligations of the Honorary Secretary General of the 2nd Respondent.

b) An order of Mandamus be granted and directed to the 2nd Respondent to remove the 1st Respondent from the position of Honorary Secretary General of the 2nd Respondent.

iii) That the leave so granted do operate as stay of the duties and/or roles assigned to the 1st Respondent as Honorary Secretary General of the 2nd Respondent pending determination of this application.

iv) That costs of and incidental to the application be provided for.

2. The Application is premised on a statutory statement by the applicant wherein (the applicant lists 11 grounds upon which the reliefs are sought viz;

a) That the 1st Respondent has been bestowed with the responsibility of running the 2nd Respondent in a prudent and transparent manner in line with the constitution of the society and the Society Act Cap 108.

b) That the 1st Respondent is and has been exposing the 2nd Respondent to financial impropriety and disrepute.

c) That the 1st Respondent is abusing his position of Honorary General Secretary as he lacks transparency in running the 2nd Respondent.

d) That the 1st Respondent is totally and completely violating the 2nd Respondent’s Constitution and conducts his business as the Honorary Secretary General arbitrarily.

e) That the 1st Respondent has abdicated his duties as Honorary General Secretary by failing to call up elections and to hold Annual General Meeting for the year’s 2019 and 2020 in line with the 2nd Respondent’s constitution and Society’s Act cap 108 Laws of Kenya.

f) That the 1st Respondent has acted negligently and has exposed the 2nd Respondent to huge financial losses at the 2nd Respondent’s prestigious Guru Nanak Ramgarhia Hospital amounting to Kenya Shillings Three Hundred Million (300,000,000)

g) That the 1st Respondent by his negligent actions has caused the 2nd Respondent’s prestigious institution Guru Nanak Ramgarhia Hospital to be proclaimed for Kenya shillings Nineteen Million (Ksh. 19,000,000) notwithstanding, having been served with the Court summons and failing to appoint an advocate to defend the institution in the suit.

h) That the 1st Respondent in total breach of the 2nd Respondent’s constitution has procured a loan of Kenya Shillings Fifty Million (Kshs. 50,000,000) without the same having been consented to by an Annual General meeting as provided in the 2nd Respondent’s Constitution.

i) That unless the application is expeditiously heard and the orders sought granted there is every likelihood that the 1st Respondent will continue to abuse his office as the Honorary General Secretary and expose the 2nd Respondent to financial losses.

j) That the abuse of office by the 1st Respondent is in total disregard of his constitutional duties to the 2nd Respondent.

k) Such other and further reasons to be adduced at the hearing hereof.

3. The applicant has further sworn a verifying affidavit sworn on 13th April, 2021. Annexed thereto is the Constitution of the East African Ramgarhia Board (EARB), the 2nd Respondent herein, a letter dated 1st March, 2021 by one Jaspal S. Birdi to EARB, Minutes of a meeting with the management of EARB, a copy of Warrant of Sale of property in execution of decree against Guru Nanak Hospital and Guru Nanak Sikh Hospital Statistics, 2019.

4. Despite evidence of proper service, the Chamber Summons application elicited no response from the Respondents.

5. Directions were given that the summons be prosecuted by way of written submissions and I note the applicant duly complied and filed submissions dated 27th May, 2021.

6. I have had due regard to the Chamber Summons application, the Statutory Statement and the Verifying Affidavit. At this stage, the duty of the court is to satisfy itself that the applicant has met the legal threshold for grant of leave to institute the application for the prerogative writs sought. That threshold requires of the applicant to establish an arguable case. The court ought not to delve deeply into arguments of the parties but should take into account the evidence tendered and make a finding whether the applicant has established a case that requires interrogation at the substantive hearing.

7. The applicant in this case has predicated his case on the 11 grounds set out in his statutory statement. The gist of the said grounds is the alleged impropriety on the part of the 1st Respondent in the management of the affairs of the 2nd respondent. The 1st Respondent is accused of inter alia, breach of the 2nd respondent’s constitution, failure to call elections and to hold annual General Meeting for the years 2019 and 2020, exposing the 2nd respondent to financial loss at the 2nd respondent’s Nanak Hospital amounting to Ksh. 300,000,000, exposing the hospital to auctioneer action for recovery of Ksh. 19,000,000 and procuring a loan of Ksh. 50,000,000 without the same having been consented to by an annual general meeting.

8. The scope of Judicial Review was aptly elucidated in the case of Pastoli vs. Kabale District Local Government Council and others (2008) 2 EA 300 where at pages 303 and 304 the court stated;

“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety:SeeCouncil of Civil Service Union v Minister for the Civil Service[1985] AC 2; and alsoFrancis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).

“Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction orultra vires, or contrary to the provisions of a law or its principles are instances of illegality.

“Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards:Re an Application by Bukoba Gymkhana Club[1963] EA 478 at page 479 paragraph “E”.

“Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department[1990] AC 876).”

9. In our instant suit, the reliefs envisaged are an order of prohibition directed against the 1st Respondent to restrain the 1st Respondent from proceeding with any duties and/or obligations of the Honorary Secretary General of the 2nd Respondent and an order of Mandamus, directed to the 2nd Respondent to remove the 1st Respondent from the position of the 2nd Respondent.

10. At a glance the issues raised are clearly internal matters relating to the running of the affairs of the 2nd Respondent. The sum total of the grounds relied on revolve around the unsuitability of the 1st Respondent to continue holding the Office of the Honorary Secretary General of the 2nd Respondent.

11. Under Article 6 (v) of the 2nd Respondent’s constitution, it is provided as follows:

“if two-thirds (2/3rds) of the Members of the Governing Council sign a petition that an Officer of the Governing Council or its Affiliated Body or a Trustee of the Board is in misconduct of or contravening any provisions of the Leadership and Integrity Code in this Article, the Governing Council shall then constitute a Disciplinary sub-committee of five (5) prominent Board members who are not the members of the Governing council to investigate the particular matter and which Disciplinary sub-committee shall appoint a Chairman and a Secretary from amongst themselves.”

12. My reading of the above Article irresistibly leads me to the conclusion that all the grounds raised in the Chamber Summons application before me can adequately be resolved through the established internal mechanism of the 2nd Respondent. There has not been a demonstration at all by the applicant that the said mechanism has been applied.

13. It is worthwhile to emphasize that the complaints against the 1st Respondent are essentially on his alleged misconduct in his management role at the 2nd Respondent. There is strictly speaking no administrative action by the 1st Respondent that is under challenge that would invite the invocation of Judicial review remedies.

14. Even assuming that the alleged acts would be amenable to Judicial Review, the applicant is bound by dint of Section 9 (2) of the Fair Administrative Action Act to exhaust the internal mechanisms and all remedies available before approaching this court for review. The section 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.

15. The Applicant has not exhausted the internal mechanisms of the 2nd Respondent for redress neither has he applied to be exempted from the obligation to exhaust any remedy as provided for under S 9(4) of the FAAA where the court has powers to exempt an applicant from exhausting internal mechanisms and other remedies where exceptional circumstances exist.

16. The court in Krystalline Slat Ltd v KRA (2019) eKLR defined what would constitute exceptional circumstances. It was stated;

“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.

“The Fair Administrative Action Act does not define ‘exceptional circumstances.’ However, this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.

17. From the foregoing, I come to the conclusion that the application for leave to apply for orders of prohibit and mandamus falls short of the required threshold. There is no administrative act either by the 1st or 2nd Respondent under challenge and even if there be one, the applicant has not exhausted the internal mechanism available to remedy the complaint.

18. With the result that the Chamber Summons application dated 13th April, 2021 is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF FEBRUARY, 2022

_______________________________

A. K. NDUNG'U

JUDGE