[2017] KEHC 3588 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 654 OF 2016

BETWEEN

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

VERSUS

NON-GOVERNMENTAL ORGANISATIONS CO-ORDINATIONS BOARD.......RESPONDENT

AND

FAZUL MAHAMED...............................................................................1ST INTERESTED PARTY

INTERNATIONAL FOUNDATION FOR ELECTORAL SYSTEM......2ND INTERESTED PARTY

EX PARTE: OKIYA OMTATAH OKOITI

JUDGEMENT

1. By a Notice of Motion dated 30th December, 2016 the ex parte applicant herein, Okiya Omtatah Okoiti, seeks the following orders:

1) That an order of prohibition do issue, prohibiting the Respondent and/or any person acting under its behest or direction, from acting outside the scope of the Respondent’s constitutional and statutory mandate, including by taking cognisance of, entertaining, acting upon, or howsoever enforcing or in any way complying with the respondent's orders, directions and/or decision as contained in its letter Ref. NGOB/5/30A/8/Vol. XII, dated December 19, 2016.

2) That an order of certiorari doissue,to bring tothisHonourable Court for purposes of being quashed, and to be quashed, the respondent's letter Ref. NGOB/5/30A/8/Vol. XII, dated December 19, 2016, for vesting powers in the respondent outside the scope of the respondent’s constitutional and statutory mandate.

3) That an order of mandamus do issue, to compel the respondent and the 1st interested party to expunge from the respondent’s record the respondent’s letter Ref. NGOB/5/30A/8/Vol. XII, dated December 19, 2016, purporting to vest powers in the respondent contrary to the scope of the respondent’s constitutional and statutory mandate.

4) That consequent to the grant of the prayers above the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.

5) That costs be in the cause.

2. What provoked these proceedings was apparently a letter dated 19th December, 2016 by the Respondent through is Executive Director, the 1st interested party herein, directing the International Foundation for Electoral Systems (hereinafter referred to as “IFES”), the 2nd interested party herein to cease all operations in the country including the implementation of the Kenya Electoral Assistance Program, KEAP 2017 funded by USAID to the tune of Kshs 2 Billion to undertake electoral related programs until such a time that IFES shall acquire a certificate of registration under the Act.

3. According to the applicant the said directive was triggered by the President’s address on 12th December, 2016 during the Jamhuri Day celebrations in which the President cautioned the members of the international community against influencing electoral choices under the guise of supporting good governance or civic education.

4. According to the ex parte applicant, vide the said letter the Central Bank of Kenya was advised to immediately preserve all bank accounts and any other funds held under the name of IFES until further communication from the Respondent. Similarly, the Director of Immigration was “requested to review the immigration status of all foreign employees working for IFES and take appropriate legal action as is encapsulated under the Citizenship and Immigration Act.

5. It was averred that the grounds upon which the said decision was made were that according to the records held by the Respondent, IFES was not a registered NGO in Kenya under the Non-Governmental Organizations C-ordination Act (Cap 134) (hereinafter referred to as “the Act”) and therefore lacked the legal status to operate in the country.

6. It was the ex parte applicant’s contention that the said grounds have absolutely no basis since not all non-profit organisations are NGOs falling under the Act since a non-profit organisation can be registered as a trust, under the Ministry of Lands; as a company limited by guarantee, under the Registrar of Companies; or as an NGO, under Cap 134. In this case it was averred that IFES is not an NGO but, according to the US Ambassador, it is registered in Kenya under the Companies Act and has legal standing to conduct programs in the country. It was contended that the United States of America channels most of its funding via similar US companies.

7. The applicant contended that the 1st interested party acted ultra vires his mandate, since legally and operationally, the respondent is only responsible for organizations under the said Act. It was further contended that the 1st interested party has no competence to issue such directives and was misusing his office to disparage and destroy IFES as he had done with other organisations. In this respect the applicant referred to the decision in Kenya Human Rights Commission vs. Non-Governmental Organisations Co-ordination Board [2016] KLR.

8. The applicant’s case was that prior to the impugned decision, there had never been even a single adverse report against IFES despite having operated in the country for a long time in collaboration with the Government. It was further averred that the principles of natural justice pursuant to Articles 47 and 50(1) of the Constitution were not adhered to and that IFES was condemned unheard.

Determinations

9. The application was not opposed by any of the parties to these proceedings despite service having been effected on the Respondent and the 1st interested party herein. Apart from the appearance on behalf of the said parties on 7th March, 2017 and 22nd Mach, 2017 by their learned counsel, Miss Soy, no further steps were taken in the matter by the said parties.

10. Accordingly, the application was not opposed and the averments made by the ex parte applicant were wholly uncontroverted. In Mohammed & Another vs. Haidara [1972] E.A 166 at page 167 paragraph F-H, Spry V.Pconsidered the failure by a party to file any reply to allegations set out in evidence and expressed himself as follows:

“The respondent made no attempt to reply to these allegations and they therefore remain unrebutted… Here, the respondent’s affidavit gives no material facts and the only real evidence of facts is that contained in the appellant’s affidavit. In these circumstances, it seems to me that a replying affidavit was essential. There was no need for it to be prolix but it should have made clear which of the facts alleged by the appellants were denied…”

11. Similarly in Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLRthe court stated as follows:

“In my view, a statement made on oath should as a matter of fact be expressly denied on oath. If not challenged, it remains a fact and the truth for that matter.”

12. I have considered the issues raised in this application. In my view the determination of this application rests on two issues: Firstly, whether the Respondent through the 1st interested party had the power to issue the impugned direction and, secondly, whether the rules of natural justice were breached in the issuance of the same directions.

13. What is the status of fair administrative action in Kenya’s constitutional and jurisprudential framework? Onguto, J in Kenya Human Rights Commission vs. Non-Governmental Organizations Co-Ordination Board [2016] eKLR a case in which the powers of the same Respondent were in question, expressed himself inter alia as follows:

“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:

“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]

Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.

The Petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

The right to fair hearing is evidently closely intertwined with fair administrative action .The oft cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.

Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:

“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”

I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50(1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.

It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”

14. The Article that specifically deals with judicial review of administrative action Article 47 of the Constitution. Pursuant to the said Article, Parliament enacted the Fair Administrative Action Act, 2015. Section 2 thereof defines “administrative action” to include:

(i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or

(ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;

15. The same section defines ‘administrator” as “a person who takes administrative action or who makes an administrative decision.” Section 3 on the other hand provides:

(1) This Act applies to all state and non-state agencies, including any person

(a) exercising administrative authority;

(b) performing a judicial or quasi-judicial function under the Constitution or any written law; or

(c) whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates

16. It is therefore clear that the 1st Interested Party was performing an administrative action and was in terms of the foregoing an administrator. It is therefore my view and I so hold that pursuant to the provisions of Article 47 as read with the provisions of the Fair Administrative Action Act, 2015, judicial review orders may where appropriate issue against the decisions of the Respondent .

17. It is trite that a judicial or quasi-judicial tribunal, such as the Respondent herein has no inherent powers. In Choitram vs. Mystery Model Hair Salon [1972] EA 525, Madan, J (as he then was) was of the view that since powers must be expressly conferred, they cannot be a matter of implication. Similarly, in Gullamhussein Sunderji Virji vs. Punja Lila and Another HCMCA No. 9 of 1959 [1959] EA 734, it was held that Rent Restriction Board being a creation of statute neither the Board nor its chairman has any inherent powers but only those expressly conferred on them. Therefore neither the Respondent nor the 1st interested party has inherent powers and must operate within the strictures of the law.

18. It was in appreciation of the foregoing position that the Court in Ex Parte Mayfair Bakeries Limited vs. Rent Restriction Tribunal and Kirit R (Kirti) Raval Nairobi HCMCC No. 246 of 1981held that in testing whether a statute has conferred jurisdiction on an inferior court or a tribunal the wording must be strictly construed: it must in fact be an express conferment and not a matter of implication since a Tribunal being a creature of statute has only such jurisdiction as has been specifically conferred upon it by the statute. Therefore where the language of an Act is clear and explicit the court must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature. Further, each statute has to be interpreted on the basis of its own language for words derive their colour and content from their context and secondly, the object of the legislation is a paramount consideration. See Chogley vs. The East African Bakery [1953] 26 KLR 31 at 33 and 34; Re: Hebtulla Properties Ltd. [1979] KLR 96;[1976-80] 1 KLR 1195; Choitram vs. Mystery Model Hair Salon (supra); Warburton vs. Loveland [1831] 2 DOW & CL. (HL) at 489; Lall vs. Jeypee Investments Ltd [1972] EA 512 at 516; Attorney General vs. Prince Augustus of Hanover [1957] AC 436 AT 461.

19. It is therefore clear that a Tribunal’s power must be conferred by the Statute establishing it which statute must necessarily set out its powers expressly since such Tribunals have no inherent powers. Unless its powers are expressly donated by the parent statute, it cannot purport to exercise any powers not conferred on it expressly. As has been held time without a number, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority. In Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others.

20. Therefore where the law exhaustively provides for the jurisdiction of an executive body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. Whereas, if Parliament gives great powers to them, the courts must allow them to it, the Courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals or boards must act in good faith; extraneous considerations ought not to influence their actions; and they must not misdirect themselves in fact or law. Most importantly they must operate within the law and exercise only those powers which are donated to them by the law or the legal instrument creating them. See Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090.

21. The preamble to the Non-Governmental Organisations Co-ordination Act (repealed by section 70 of the Public Benefits Organizations Act, No. 18 of 2013 which commenced on 9th September, 2016) provides as follows:

An Act of Parliament to make provision for the registration and co-ordination of Non-Governmental Organizations in Kenya and for connected purposes.

22. Sections 7 and 8 thereof provide as hereunder:

The 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 NonGovernmental 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-GovernmentalOrganisations 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 NonGovernmental Organizations and their activities in Kenya.

23. It is therefore clear from the foregoing provisions that the said Act is only applicable to the registration and co-ordination of Non-Governmental Organizations in Kenya and for connected purposes. It clearly does not apply to any other entity which does not fall within the definition of a Non-governmental organisation.

24. In this case, it is contended which contention is not controverted that IFES is registered as a company. If that is the position and there is no evidence to the contrary, then the Respondent and the 1st interested party have no jurisdiction over IFES and the directives purportedly given were ultra vires. In my view by taking the decision it took and giving the directives they purported to have issued the Respondent and the 1st interested party overreached themselves and abuse their powers.

25. It is therefore clear that power ought to be properly exercised and ought not to be misused or abused. According to Prof Sir William Wade in his Book Administrative Law:

“The powers of public authorities are…essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land…regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them…”

26. As was held in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] 2 KLR 240 while citing Reg vs. Secretary of State for the Environment Ex Parte NottinghamShire Country Council [1986] AC:

“A power which is abused should be treated as a power which has not been lawfully exercised…A public authority must not be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as has happened in this matter, and in so acting abuse its powers. In this connection Lord Scarman put the need for the courts intervention beyond doubt in the ex-parte Prestonwhere he stated the principle of intervention in these terms: “I must make clear my view that the principle of fairness has an important place in the law of judicial review: and that in an appropriate case, it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.” The same principle was affirmed by the same Judge in the House of Lords in Reg vs. Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Ltd[1982] AC 617 that a claim for judicial review may arise where the Commissioners have failed to discharge their statutory duty to an individual or have abused their powers or acted outside them and also that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. In other words it is unimportant whether the unfairness is analytically within or beyond the power conferred by law: on either view, judicial review must reach it. Lord Templeman reached the same decision in the same case in those helpful words: “Judicial review is available where a decision making authority exceeds its powers, commits an error of law commits a breach of natural justice reaches a decision which no reasonable tribunal could have reached or abuses its powers.” Abuse of power includes the use of power for a collateral purpose, as set out in ex-parte Preston,reneging without adequate justification on an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals. I further find as in the case of R (Bibi) vs. Newham London Borough Council[2001] EWCA 607, [2002] WLR 237, that failure to consider a legitimate expectation is a failure to consider a relevant consideration and this would in turn call for the courts intervention in assuming jurisdiction and giving the necessary relief.”

27. In this case no legal provision has been cited empowering the Respondent and the 1st interested part to take the action they did. As was held by Nyamu, J (as he then was) in Midland Finance & Securities Globetel Inc vs. Attorney General and Another [2008] KLR 650:

“Whether the Ministry in entering in the PWC, is exercising executive power or assumed power or statutory power, judicial orders would lie if the power is non existent or being improperly exercised… [It] is clear from past decisions of this Court, that public officers have only the power granted to them by law or statute. They cannot act outside the granted power…[T]he judiciary accepts a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behavour that threatens either basic human rights or the rule of law. ..[F]or public bodies the rule is … that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake at every turn, all of its dealings constitute the fulfillment of duties which it owes to others indeed it exists for no other purpose…The rule is necessary in order to protect the people from arbitrary interference by those set in power over them.”

28. It was contended that the decision by the Respondent and the 1st interested party was arrived at without affording IFES a hearing. Again this contention was not challenged. Article 47 of the Constitution provides that:

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

29. The said Article was the subject of the Court of Appeal pronouncement in Judicial Service Commission vs. Mbalu Mutava & Another [2015] eKLR,Civil Appeal 52 of 2014 it held that:

“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”

30. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015under which section 4(3) provides as follows:

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable; or

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

31. In interpreting the said provisions I associate myself with the position adopted by Kasanga Mulwa, J in Republic vs. Registrar of Companies ex parte Githungo [2001] KLR 299, where he held that natural justice requires that persons who might be affected by administrative acts, decisions or proceedings be given adequate notice of what is proposed. In Egal Mohamed Osman vs. Inspector General of Police & 3 Others [2015] eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, in which the Ugandan Supreme Court stated as follows regarding the rules of natural justice:

“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”

32. In my view the restriction on the right to be heard is an exception rather than the rule. Since the principles of the right to be heard are geared towards the realisation of fair administrative action, which is a fundamental right captured in Article 47 of the Constitution, I associate myself with the position inRepublic vs. the Honourable the Chief Justice of Kenya & Others Ex Parte Justice Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004 in which the Court held that:

“The right to be heard has two facts, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to the individuals or groups, against whom decisions taken by public authorities operate, to participate in the proceedings by which those decisions are made, an opportunity to express their dignity as persons. The ordinary rule which regulates all procedures is that persons who are likely to be affected by the proposed/likely action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it and such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.”

33. That was the position in the case of Chief Constable Pietermaritzburg vs. shim 1908 29 NLR 338 341 where the court held that "it is a principle of common law that no man shall be condemned unheard, and it would require very clear words in the statute to deprive a man of that right.”

34. Therefore by taking an action which clearly adversely affected IFES without following the due process of the law, the decision of the Respondent and the 1st interested party was tainted with illegality and procedural impropriety.

35. Whereas, the decision may well be justified on merits, once it is found to violate the rules of natural justice it cannot be permitted to stand. This was the position in Onyango Oloo vs. Attorney General [1986-1989] EA 456 where the Court of Appeal expressed itself as follows:

“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...It is improper and not fair that an executive authority who is by law required to consider, to think of all the events before making a decision which immediately results in substantial loss of liberty leaves the appellant and others guessing about what matters could have persuaded him to decide in the manner he decided...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decision-making body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.”[Emphasis mine].

36. This was a restatement of Lord Wright’s decision in General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs. Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 that:

“If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.”

37. In Ridge vs. Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows:

“Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void.”

38. As the Respondent and the 1st interested party clearly had no power to act in the manner they did, their action amount to nought. In Liverside vs. Anderson [1942] AC 206 at 244, Lord Atkin had this to say:

“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified in law.”

39. In this case the 1st interested party seems to be running amok without caring whether its actions are backed by law or not. I fully associate myself with the position adopted by the Court of Appeal in Law Society of Kenya vs. Centre for Human Rights and Democracy & 13 Others [2013] eKLR that:

“If it is proved that the tribunal, person or authority has deviated from the established and set beacons or pathway or legal criteria as delineated and demarcated for it and has run wild and amok, and at worst has gone on a frolic of its own, become an unruly horse and engaged in caprice, malice, witch-hunting and a wild goose chase running helter- skelter, it is the duty of the High Court through its supervisory jurisdiction to pull the leash and firmly point the delineated legal path that the tribunal, person or authority is enjoined by law to tread and to follow.

The supervisory jurisdiction of the High Court is the leash and bridle that affirm and ensures that all tribunals, persons or authority are subject to the Constitution, rule of law, natural justice and good governance. It ensures that there is no trampling and aberration of the fundamental rights of the citizen. The supervisory jurisdiction is an in-built internal check and balance within the judicial system. It is the king pin upon which the cog and wheels of justice revolve and without it, untrammelled exercise of discretion reigns supreme – this is not what the people of Kenya intended when they promulgated the 2010 Constitution. The people of Kenya intended to have a country governed by the Constitution and the rule of law, not an unchecked exercise of judicial and quasi-judicial power by any person or authority.”

40. Accordingly, if it is proved that in purporting to exercise the powers donated to him by law a public officer has gone out of control or has exceeded the legal parameters and criteria set out for the exercise of his jurisdiction, the leash of the supervisory jurisdiction of the High Court must be activated and invoked.

41. The expressions of this Court in International Centre for Policy and Conflict vs. Attorney General & Others Nbi Misc. Civil Cause No. 226 of 2013, bears repetition. There, the Court pronounced itself as follows:

“Courts are the temples of justice and the last frontier of the rule of law and must therefore remain steadfast in defending the letter and the spirit of the Constitution no matter what other people may feel. To do otherwise would be to nurture the tumour of impunity and lawlessness. That tumour like an Octopus unless checked is likely to continue stretching its eight tentacles here and there grasping powers not constitutionally spared for it to the detriment of the people of this nation hence must be nipped in the bud.”

42. I have said enough to show that the Notice of Motion dated 30th December, 2016 is merited.

Orders

43. In the result the orders which commend themselves to me and which I hereby grant are as follows:

1. An order of certiorari removing into this Court for the purpose of being quashed the decision of the Respondent and the 1st interested party contained in the letter Ref. NGOB/5/30A/8/Vol. XII dated 19th December, 2016 which decision is hereby quashed.

2. An order of prohibition restraining the Respondent and the 1st interested party or any other person from acting on or enforcing the said letter.

3. The costs of this application are awarded to the applicant and the same shall be borne by the Respondent.

44. Orders accordingly.

Dated at Nairobi this 18th day of September, 2017

G V ODUNGA

JUDGE

Delivered in the absence of the parties duly notified.

CA Ooko