[2022] KEHC 10822 (KLR)

Republic v Non-Governmental Organisations Co-ordination Board & another; Mirango (Exparte) (Application 58 of 2020) [2022] KEHC 10822 (KLR) (Judicial Review) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10822 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 58 of 2020

J Ngaah, J

June 10, 2022

Between

Republic

Applicant

and

Non-Governmental Organisations Co-ordination Board

1st Respondent

Association for the Physically Disabled of Kenya

2nd Respondent

and

Judy Wairimu Mirango

Exparte

Judgment

1. The application before court is the applicant’s motion dated 28 October 2020 brought under Order 53 Rules 3 and 4 of theCivil Procedure Rules, sections 8 and 9 of the Law Reform Act, cap. 26. It seeks prerogative orders of certiorari and prohibition and the prayers have been framed as follows:"(a) An order of certiorari to move into this honourable court and quash the decision of the first respondent to appoint a caretaker committee to govern and oversee the affairs of the second respondent.(b) An order of prohibition to issue against the respondents prohibiting the respondents jointly and severally either by themselves and or their agents from interfering with the Constitution of the second respondent by irregularly handing over governance of the second respondent to a caretaker committee”.

2. The applicant has also sought an order for costs.

3. The application is supported by a statutory statement dated 28th of October 2020 and verifying affidavit sworn by the applicant on even date.

4. According to the statement, the applicant is a life member of the 2nd respondent. The 2nd respondent is itself registered as a non-governmental organisation under the Non-Governmental Organisations Coordination Act No. 19 of 1990. Its purpose is to enable persons with disability overcome their physical limitations and empower them economically and socially so as to become self-reliant and fully integrated members of the community.

5. The 1st respondent is a State Corporation established by the Non-Governmental Organisations Coordination Act aforesaid and it is established to, among other things, facilitate and co-ordinate the work of all national and international Non-Governmental Organizations operating in Kenya.

6. The applicant’s case against the 1st respondent arises from the decision of the 1st respondent to appoint a caretaker committee to run the affairs of the 2nd respondent. The applicant only learnt of this appointment through a memo by the chairman of the purported caretaker committee. The memo is apparently undated but it is referenced as “memo/Nat/001/12/2019”.

7. It reads as follows in part:

Subject: APDK CARETAKER COMMITTEEThis is to notify all members of staff of APDK and the entire branch committees that from 20 November 2019, a caretaker committee was appointed by the NGO Board to oversee the affairs of APDK countrywide. The caretaker committee consists of the following membership:1. Simon Gitonga- Chairperson of the Committee2. Truphena Akoth Mbele-Vice Chair of the Committee3. Dr. Edward Odundo-Member4. Bright Oywaya-Member5. John Ondiege-MemberThe committee has been mandated to oversee special audit, restructuring and developing governance and the preparation of election in the next three months. During the period the governance and oversight role will be carried out by the caretaker committee.SignedSimon GitongaChair Caretaker Committee.” 8. The applicant contends that the appointment of a caretaker committee is irregular since the Constitution of the 2nd respondent does not provide for appointment of such a committee and, in any case, the appointment was done without consultation of the members of the 2nd respondent.

9. The 2nd respondent has an elaborate procedure for election and appointment of office bearers and in particular section 6 (a) of its constitution states that the Board of Directors is to be elected from among members of the 2nd respondent who shall serve for a period of three years except that they are eligible for re-election for another final term of three years.

10. It is urged that the 1st respondent acted ultra vires its powers and violated the rights of the applicant and the rest of the members of the 2nd respondent.

11. Mercy Cheruto Soy, the 1st respondent’s legal officer swore a replying affidavit on behalf of the 1st respondent opposing the application. According to Soy, the 2nd respondent made an application for change of officials; the application was received by the 1st respondent on 5 October 2018. She contends that the application was not processed because the 2nd respondent had not complied with a notice, dated 6 September 2017 issued by the 1st respondent.

12. Although the 2nd respondent did not comply with the said notice, it continued functioning with the new board members. This gave rise to disputes in the governance and management of the 2nd respondent that called for the intervention of the 1st respondent. Indeed, it called for a meeting of the factions and recommendations were made for the appointment of the impugned caretaker committee.

13. It is urged that the 1st respondent’s mandate includes regulation, facilitation and coordination of the activities of non-governmental organisations and in appointing the caretaker committee, the 1st respondent was only facilitating discussions between the warring factions.

14. In any event, as at the time of swearing the affidavit on 8 December 2020, the term of the caretaker committee had lapsed.

15. The 2nd respondent also opposed the application and filed a replying affidavit sworn by Benson Kiptum, who described himself in that affidavit as the acting Chief Executive Officer of the 2nd respondent. He deposed that the caretaker committee was appointed through agreement of the outgoing board and the board elected by the members of the 2nd respondent on 2 August 2019. Like the 1st respondent, he also swore that the caretaker committee was appointed since there were serious disputes between the outgoing board members of the 2nd respondent and its employees with regard to the management of the 2nd respondent. This had paralysed the operations of the 2nd respondent.

16. Kiptum also deposed that the caretaker committee had worked in the interest of the 2nd respondent and fresh elections had been scheduled for 10 December 2020 to elect new Board of Directors of the Association as agreed between the outgoing board and the board that was elected on 2 August 2019.

17. Apart from a replying affidavit, the 2nd respondent also filed a preliminary objection dated 20 May 2020. The objection is on the grounds that the 2nd respondent is governed by the Non-Governmental Organisations Co-ordination Act, Rules and Regulations made thereunder and the Non-Governmental Organisations Council Code of Conduct. The latter provides that regulatory committee handles all complaints pertaining to registered organisations under the Act in the first instance. It is only after the aggrieved party has exhausted all the other avenues set out by the Regulatory Committee that he can proceed to court.

18. The short answer to the preliminary objection is that rules and regulations made under any Act of parliament are secondary or subsidiary legislation and cannot supersede the provisions of the parent Act. As it will be demonstrated in the due course, there is no provision in the parent Act that gives the 1st respondent the power to intervene in the affairs of a non-governmental organisation and do such things as appointment of caretaker committees. In any event, no particular regulation or rule has been specifically singled out as the regulation or rule which gives the 1st respondent the power that it purported to exercise. And even if it was to exist, it would be of no consequence for the reason that it cannot override the primary legislation.

19. Talking of appointment of a caretaker committee, it is the primary issue upon which this application revolves. The respondents do not dispute that the committee was appointed as alleged by the applicant. As I have considered the application and affidavits filed by the applicant and the respondents together with the submissions of the respective parties, one question that arises and whose answer should determine this application is whether the 1st respondent’s action to appoint the committee was legitimate. To answer this question, you need look no further than the Non-Governmental Organisations Act under which the 1st respondent is established and, in particular, the provisions in the Act relating to its functions and powers. These provisions are sections 7 and 8 of the Act and they provide as follows:7. Functions of the BoardThe functions of the Board shall be—(a)to facilitate and co-ordinate the work of all national and international Non-Governmental Organizations operating in Kenya;(b)to maintain the register of national and international Non-Governmental Organizations operating in Kenya, with the precise sectors, affiliations and locations of their activities;(c)to receive and discuss the annual reports of the Non-Governmental Organizations;(d)to advise the Government on the activities of the Non-Governmental Organizations and their role in development within Kenya.(e)to conduct a regular review of the register to determine the consistency with the reports submitted by the Non-Governmental Organizations and the Council;(f)to provide policy guidelines to the Non-Governmental Organisations for harmonizing their activities to the national development plan for Kenya;(g)to receive, discuss and approve the regular reports of the Council and to advise on strategies for efficient planning and co-ordination of the activities of the Non-Governmental Organizations in Kenya; and(h)to develop and publish a code of conduct for the regulation of the Non-Governmental Organizations and their activities in Kenya8. Powers of the BoardThe Board shall have power—(a)to establish such subsidiary organs as may be necessary for the performance of its functions under this Act; and(b)subject to this Act, to appoint such officers as may be necessary for the performance of its functions

20. Nothing in these provisions suggests that the 1st respondent has any powers to appoint a caretaker committee for an non-governmental organisation such as the 2nd respondent. As a matter of fact, none of the respondents have pointed out or suggested any provision in the Act where the 1st respondent could have derived its powers to appoint a caretaker committee.

21. It could be true that indeed there were wrangles relating to governance of the 2nd respondent and some action was required to resolve them. However well-intentioned the 1st respondent’s action was in appointment of a caretaker committee to resolve these wrangles, its efforts would be of no consequence if they were not backed by law.

22. I would agree with the applicant that the appointment of the purported caretaker committee was illegal and therefore the application succeeds on the judicial review ground of illegality. This ground, amongst other grounds for judicial review was explained in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374,410 where Lord Diplock noted as follows:By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.”

23. In the absence of any hint from sections 7 and 8 of the Non-Governmental Organisations Co-ordination Acton the 1st respondent’s powers and functions that the 1st respondent could establish a caretaker committee to run the affairs of the 2nd respondent or any other non-governmental organisation, for that matter, whatever the circumstances, it is reasonable to conclude that the 1st respondent neither understood correctly the law that regulates its decision making power nor gave effect to it.

24. Further, section 2 of the Non-Governmental Organisations Co-ordination Act defines a non-governmental organisation as follows:Non-Governmental Organization” means a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry and the supply of amenities and services

25. Thus, a non-governmental organisation is a private entity though not a profit-making one and, being of that character, the 1st respondent which is, by and large, a government entity, cannot interfere with its affairs and impose, as it has done in the instant case, any particular person or group of persons to such an organisation as a “caretaker committee” on the pretext of resolving the organisation’s internal wrangles or for any other reason, for that matter.

26. It is inevitable that I have to reach the conclusion that the applicant’s application has merit and it is allowed in terms of prayers (a) and (b). The applicant will also have the costs of the application. It is so ordered.

SIGNED, DATED AND DELIVERED ON 10 JUNE 2022****Ngaah Jairus****JUDGE