[2020] KEHC 957 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E1146 OF 2020

BETWEEN

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

VERSUS

NELSON ANDAYI HAVI....................................................1ST RESPONDENT

MERCY KALONDU WAMBUA.......................................2ND RESPONDENT

LAW SOCIETY OF KENYA....................................3RD RESPONDENT AND

GAD AGUKO.....................................................EX-PARTE APPLICANT AND

CAROLYNE KAMENDE.......................................1ST INTERESTED PARTY

ROSELINE ODEDE..............................................2ND INTERESTED PARTY

BERNHARD NG’ETICH......................................3RD INTERESTED PARTY

GEROGE OMWANSA..........................................4TH INTERESTED PARTY

ALUSO INGATI.....................................................5TH INTERESTED PARTY

CAROLYNE MUTHEU.........................................6TH INTERESTED PARTY

FAITH ODHIAMBO............................................7TH INTERESTED PARTY

BETH MICHOMA...............................................8TH INTERESTED PARTY

NDINDA KANYILI..............................................9TH INTERESTED PARTY

RIZIKI EMUKULE..........................................10TH INTERESTED PARTY

HERINE KABITA..............................................11THINTERESTED PARTY

ESTHER ANG’AWA.........................................12TH INTERESTED PARTY

RULING

The Application

1. Gad Aguko, the ex parte Applicant herein, is an Advocate of the High Court of Kenya, and he has filed an application by way of a Chamber Summons dated 2nd December 2020, seeking the following orders:

1. THAT the Application be certified as urgent and be heard on priority basis.

2. THAT the Court be and is hereby pleased to grant leave to the ex-parte applicant to apply for an order of certiorari to remove into this court for the purpose of being quashed the letter dated 23rd October 2020 addressed to Collins Odhiambo directing that arrangements be made to enable the holding of the Special General Meeting.

3. THAT the Court be and is hereby pleased to grant leave to the ex-parte applicant to apply for an order of certiorari to remove into this court for the purpose of being quashed the 2nd , 3rd and 4th Agendas/motions of the Special General Meeting that is to be convened on 5th December 2020 or any other day as contained in the various Notices Requisitioning the Special General Meeting.

4. THAT the Court be and is hereby pleased to grant leave to the ex-parte applicant to apply for an order of prohibition to restrain the 1st Respondent from convening, purporting to convene on behalf of the Council of the 3rd Respondent or directing any of his agents to convene a Special General Meeting on behalf of the Council of the 3rd Respondent on 05/12/2020 or any other day without the Council of the 3rd Respondent having agreed as a whole to convene a Special General Meeting.

5. THAT the Court be and is hereby pleased to grant leave to the ex-parte applicant to apply for an order of prohibition to restrain the General Meeting on 05/12/2020 or any other day, including the 1st Respondent from declaring or further purporting that an external auditor has been appointed unless one is recommended by the Council of the 3rd Respondent and approved by the General meeting.

6. THAT the leave granted do operate as stay of the Special General Meeting that is to be convened on 5th December 2020 or any other day as contained in the various Notices Requisitioning the Special General Meeting.

7. THAT AS AN ALTERNATIVE PRAYER 6 ABOVE the leave granted do operate as stay of any discussion, deliberation, voting or making of any decision whatsoever concerning the 2nd , 3rd and 4th Agendas/motions of the Special General Meeting that is to be convened on 5th December 2020 or any other day as contained in the various Notices Requisitioning the Special General Meeting.

8. THAT the costs of this Application be provided for.

2. The grounds for the application are stated in the Applicant’s statutory statement dated 2nd December 2020, and a verifying affidavit sworn on the same date by the ex parte Applicant.

3. In summary, the main grounds are that first, the 1st Respondent has collected signatures of members of each branch of the 3rd Respondent so that a Special General Meeting could be requisitioned, and by a letter dated 23rd November 2020 and addressed to one Collins Odhiambo as the Acting Secretary/Chief Executive Officer of the 3rd Respondent, requested the said Collins Odhiambo to make arrangements to enable the holding of the said SGM on 5th December 2020.

4. However, that according to section 31 (3) of the Act, it is the Council which ought to convene a Special General Meeting, within fourteen days of receiving a requisition, and that the 1st Respondent, though the President of the 3rd Respondent, cannot proceed to convene the Special General Meeting without a decision being made by the Council as a whole. Furthermore, that the names, admission numbers and the signatures of the members requisitioning for the Special General Meeting have not be verified by the Council to confirm that they are indeed members of the 3rd Respondent.

5. A second ground is that the 1st Respondent’s actions of instructing the said Collins Odhiambo were illegal, and is stained with procedural impropriety as he had no jurisdiction to issue such instructions unless authorized by the Council, and has no such power/jurisdiction to appoint an “Acting Secretary/Chief Executive Officer” yet the said office has an occupant. Third, that among the items of the agenda to be discussed at the impugned Special General Meeting is the recruitment of a Secretary/Chief Executive Officer of the 3rd Respondent, which office is not vacant and so another holder of the office cannot be recruited.

6. Furthermore, that the agenda item will contravene the provisions of section 26 of the Law Society Act which gives the Council the power to appoint and dismiss the Secretary/Chief Executive Officer of the 3rd Respondent, and there is a conservatory order in place granted on 1st December 2020 in ELRC Petition No. 9 of 2020 staying any discussion or decision making on the said agenda item.

7. The fourth ground is that on 23rd July 2020, during an Ordinary General Meeting, the members of the 3rd Respondent resolved that the Council should recommend to the Society an external auditor for approval by members for the purpose of auditing the accounts of the 3rd Respondent, in line with Regulation 52 (1) of the Kenya Law Society (General) Regulations, 2020. Further, that no external auditor is yet to be approved the members of the 3rd Respondent, yet one of the agenda items in the Special General Meeting proposes a motion that a forensic audit should be conducted in terms of an agreement made with one Parker Randall Eastern Africa. Therefore, that the 1st Respondent has illegally, unprocedurally and without jurisdiction engaged the said firm of auditors.

8. The last ground is that an agenda of the impugned Special General Meeting proposes a motion on whether any communication by the 3rd Respondent should first be allowed by the President of the 3rd Respondent before being dispatched. According to the ex parte Applicant, the said motion seeks to elevate the office of the President of the 3rd Respondent above the Council which is the governing body and is the one that approves the such communication. Consequently, that by considering the said motion, the General Meeting will be acting beyond its jurisdiction and in contravention of the provisions of the Act.

9. The ex parte Applicant annexed copies of various documents in support of his application.

The Determination

10. I have considered the application dated 2nd December 2020 and the reasons offered in support of the urgency, and I am satisfied that the ex parte Applicant has demonstrated that this matter is urgent. This is for reason that the impugned Special General Meeting is two days away.

11. On the orders sought by the ex parte Applicant for leave to commence judicial review proceedings, the applicable law is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The main reason for the leave as explained by Waki J. (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others,Mombasa HCMCA No. 384 of 1996,is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.

12. It is also trite that 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 court and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave. It was explained by Lord Bingham in Sharma vs Brown Antoine(2007) I WLR 780, that a ground of challenge is arguable if its capable of being the subject of sensible argument in court, in the sense of having a realistic prospect of success.

13. In the present application, the ex parte Applicant has annexed copies of various documents detailing prior events to the requisitioning of the Special General Meeting, particularly by the 1st Respondent and 3rd Respondent’s Council on the removal of the Secretary/Chief Executive Officer of the 3rd Respondent.

14. In addition, the ex parte Applicant annexed copies of the notices requisitioning for the impugned Special General Meeting, and of the letter dated 23rd November 2020 by the 1st Respondent to Collins Odhiambo, Acting Secretary, to arrange for the Special General Meeting on 5th December 2020. Lastly, the ex parte Applicant annexed a copy off the order granted on 1st December 2020 in ELRC Petition No. 9 of 2020, and he has also cited various provisions of the Law Society of Kenya Act and Regulations, which he alleges will be contravened by holding the intended Special General Meeting.

15. To this extent, I find that the ex parte Applicant has met the threshold of an arguable case, and is therefore entitled to the leave sought to commence judicial review proceedings against the Respondents.

16. On the question of whether the said leave can operate as a stay of the impugned decision, the applicable principle is that the grant of such leave is discretionary, but the Court should exercise such discretion judiciously. Order 53 Rule 1(4) of the Civil Procedure Rules provides as follows in this respect:

“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.”

17. In R (H). vs Ashworth Special Hospital Authority (2003) 1 WLR 127, it was held that such a stay halts or suspends proceedings that are challenged by a claim for judicial review, and the purpose of a stay is to preserve the status quo pending the final determination of the claim for judicial review. The circumstances under which a Court may grant a direction that the grant of leave do operate as a stay of proceedings or of a decision, and the factors to be taken into account by the Courts in this regard were laid down in the said decision, and in various decisions by Kenyan Courts.

18. The main factor is whether or not the decision or action sought to be stayed has been fully implemented. It was thus held in Jared Benson Kangwana vs. Attorney General,Nairobi HCCC No. 446 of 1995 that stay of proceedings should be granted where the situation may result in a decision which ought not to have been made being concluded. A similar decision was made by Maraga J. (as he then was) in Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 .

19. This factor was also discussed in R (H). vs Ashworth Special Hospital Authority(supra)where Dyson L.J. held as follows:

“As I have said, the essential e­ffect of a stay of proceedings is to suspend them. What this means in practice will depend on the context and the stage that has been reached in the proceedings. If the inferior court or administrative body has not yet made a final decision, then the e­ffect of the stay will be to prevent the taking of the steps that are required for the decision to be made. If a final decision has been made, but it has not been implemented, then the e­ffect of the stay will be to prevent its implementation. In each of these situations, so long as the stay remains in force, no further steps can be taken in the proceedings, and any decision taken will cease to have e­ffect: it is suspended for the time being.”

20. It therefore follows that were the action or decision is yet to be implemented, a stay order can normally be granted in such circumstances. Where the action or decision is implemented, then the Court needs to consider the completeness or continuing nature of such implementation. If it is a continuing nature, then it is still possible to suspend the implementation.

21. In this regard, the Special General Meeting scheduled for 5th December 2020 is yet to be held, and is therefore amenable to be stayed. In addition, in light of the procedural improprieties and illegalities alleged by the ex parte Applicant as regards the requisitioning and holding of the impugned Special General Meeting on 5th December 2020, this Court has no option but to stay the holding of the entire Special General Meeting, otherwise the ex parte Applicant’s application will be rendered nugatory. The Court is also of the view that the best course of action in this matter is to maintain the current status quo and suspend the holding of the impugned Special General Meeting, and in the meantime resolve the legal issues raised in this application expeditiously.

The Orders

22. In light of the foregoing observations and findings, the ex parte Applicant’s Chamber Summons dated 2nd December 2020 is found to be merited to the extent of the following orders:

I. Theex parte Applicants’ Chamber Summons application dated 2nd December 2020 be and is hereby certified as urgent, and is hereby admitted for hearing ex parteon a priority basis.

II.The ex parteApplicant isgranted leaveto apply for an order of certiorari to remove into this court for the purpose of being quashed the 1st Respondent’s letter dated 23rd November 2020 addressed to Collins Odhiambo, directing that arrangements be made to enable the holding of the Special General Meeting.

III.The ex parteApplicant isgranted leaveto apply for an order of certiorari to remove into this court for the purpose of being quashed the 2nd, 3rd and 4th Agendas/motions of the Special General Meeting that is to be convened on 5th December 2020 or any other day as contained in the various Notices Requisitioning the Special General Meeting.

IV.The ex parteApplicant isgranted leaveto apply for an order of prohibition to restrain the 1st Respondent from convening, purporting to convene on behalf of the Council of the 3rd Respondent or directing any of his agents to convene a Special General Meeting on behalf of the Council of the 3rd Respondent on 05/12/2020 or any other day without the Council of the 3rd Respondent having agreed as a whole to convene a Special General Meeting.

V.The ex parteApplicant isgranted leaveto apply for an order of prohibition to restrain the General Meeting on 05/12/2020 or any other day, including the 1st Respondent from declaring or further purporting that an external auditor has been appointed unless one is recommended by the Council of the 3rd Respondent and approved by the General meeting.

VI. The leave granted herein shall operate as a stay and suspension of the Special General Meeting that is scheduled to be convened on 5th December 2020 or any other day as contained in any Notices Requisitioning the intended Special General Meeting, pending the hearing and determination of the ex parte Applicant’s substantive Notice of Motion or further orders of this Court.

VII. Theex parte Applicant shall file and serve the Respondents and Interested Parties with (i) the substantive Notice of Motion, (ii) the Chamber Summons dated 2nd December2020(iii) a copy of this ruling, and (v) a hearing notice, within seven (7) days from today’s date.

VIII. Upon being served with the said pleadings and documents, the Respondents and Interested Parties shall be required to file their responses to the substantive Notice of Motion within seven (7) days from the date of service.

IX. The timelines hereinabove shall be strictly observed by all the parties herein.

X. A virtual hearingby video linkof theex parte Applicant’s substantive Notice of Motion shall be heard on 17th December 2020 at 12pm.

XI.In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine theex parte Applicant’s substantive Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

XII.All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com and asunachristine51@gmail.com.

XIII.The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies toasunachristine51@gmail.com.

XIV.The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

XV.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for a virtual hearing by video link on17th December 2020 at 12pm,and shall send an electronic link for the hearing to all the parties herein by close of business on 16th December 2020.

XVI.The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the ex parte Applicant by electronic mail by close of business on Thursday, 3rd December 2020.

XVII.Parties shall be at liberty to apply.

23. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE