[2023] KEHC 18973 (KLR)

Republic v Olodi (Sued as an Official of the Kenya National Federation of Sugarcane Farmers) & 3 others; Oyoo & 16 others (Exparte Applicants); Kenya National Federation of Sugarcane Farmers (Interested Party) (Judicial Review E045 of 2023) [2023] KEHC 18973 (KLR) (Judicial Review) (23 June 2023) (Ruling)

Neutral citation: [2023] KEHC 18973 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E045 of 2023

JM Chigiti, J

June 23, 2023

Between

Republic

Applicant

and

Ezra Okoth Olodi (Sued as an Official of the Kenya National Federation of Sugarcane Farmers)

1st Respondent

Samwel Onyango Ong’ow

2nd Respondent

Agriculture and Food Authority

3rd Respondent

Cabinet Secretary, Agriculture & Livestock Development

4th Respondent

and

Jeckoniah Samuel Oyoo

Exparte Applicant

Meshack Shatimba

Exparte Applicant

Stephen Ole Narupa

Exparte Applicant

Simon Wesechere

Exparte Applicant

Dan Opolo

Exparte Applicant

and

Kenya National Federation of Sugarcane Farmers

Interested Party

and

Cyprian Mulisa

Exparte Applicant

Leah Chepkwony

Exparte Applicant

Paul Owuor

Exparte Applicant

Pamela Masitsa

Exparte Applicant

Michael Arum

Exparte Applicant

Wycliffe Biketi

Exparte Applicant

Daniel Ondenyi

Exparte Applicant

Aggrey Were

Exparte Applicant

James Odhiambo Lwal

Exparte Applicant

Wilson Kilusu

Exparte Applicant

Joseah Lessan

Exparte Applicant

Andrew Bett

Exparte Applicant

Ruling

1. The Application before this Court is the one dated 13th April,2023 seeking the following prayers;1. The Honourable Court be pleased to issue judicial review orders of certiorari to bring to this Court and quash the gazettement and appointment of the 2nd Respondent as a member of the Board of Directors of the Agriculture and Food Authority vide Gazette Notice No.3667. 2.Costs of the application be provided for.”

2. The grounds upon which the Application is based are as follows;Grounds Of Review: Particulars Of Unconstitutionalitya)Illegalityi.Article 47(1) and section 4 of the FAA require lawful administrative action. Further, per section 7 of the FAA, this court can review administrative action where either: the administrator—acted in excess of jurisdiction or power conferred under any written law; or failed to take into account relevant considerations; or the administrative action: did not comply with a mandatory and material procedure or condition prescribed by an empowering provision; or was materially influenced by an error of law.ii.In this case, the nomination of the 2nd Respondent as a board member solely by the 1st Respondent and to the exclusion of the Federation officials as well as its members was illegal in so far as it materially failed to comply with the constitutional tenet of public participation under Article 10 of the Constitution of Kenya 2010. Additionally, the secrecy with which the nomination was conducted by the 1st Respondent equally breached the principle of transparency.iii.Indeed, none of the Federation officials were consulted on the nomination of the 2nd Respondent and they only came to know of his nomination which was unilaterally done by the 1st Respondent after the appointment of the 2nd Respondent to the board through Gazette Notice No. 3667. iv.The nomination was also further illegal for contravening the Federation’s Constitution which requires that all decisions made on behalf of the Federation must be ratified by the Governing Council through an Extra Ordinary Governing Council Meeting.v.In this case, no extra ordinary Governing Council Meeting was ever convened to ratify the nomination of the 2nd Respondent as a representative of the Federation to the board.vi.Instead, the decision was solely arrived at by the 1st Respondent who simply handpicked the 2nd Respondent and forwarded his name for appointment to the board.vii.Further, the gist of Section 5(1) (i) of the Agriculture and Food Authority Act is to have farmers representing farmers’ organization serve in the board to better articulate the issues affecting farmers within the farmers’ organization.viii.In this case however, the 2nd Respondent is not a member of the Kenya National Federation of Sugar Cane Farmers and it is curious how the 1st Respondent ended up handpicking an outsider to the organization to represent farmers’ interests within the Organization. By handpicking an outsider to represent the Federation in the board, the 1st Respondent negated the spirit of Section 5(1) (i) of the Act.ix.Additionally, the 2nd Respondent is an active politician and business partner of a miller (Kibos Sugar Company) contrary to Article 14. 2.1 of the Federation Constitution and is therefore actively conflicted and thus cannot effectively represent the interests of farmers.x.The nomination and appointment of the 2nd Respondent is therefore ultra vires the Constitution and the law and thus deserving to be quashed.

3. When the matter came up for directions on 24th May 2023, by consent of parties, the court directed that the matter would proceed with the hearing of the following together:1. The issue of representation of Interested Party as between Professor Ojienda & Associates Advocates and Ochiel Dudley Advocates.2. The Application dated 13th April,20233. The Preliminary of objection dated 18th April 2023.

Issue of representation of the interested party: Applicants' case on the 1st issue: 4. At Paragraph 36 of his Replying Affidavit, Ezra Okoth Olodi the 1st Respondent impugns the appointment of Ochiel J Dudley Advocates on behalf of the Federation claiming that he has the sole mandate to sanction the appointment of Advocates for the Kenya national federation of sugarcane farmers Kenya national federation of sugarcane farmers.

5. According to him, Article 11. 3.5. of the Federation Constitution all functions are subject to the approval of the board. Article 10. 1.3. 2 of the Constitution specifically confers upon the National Executive Board the powers to Institute, conduct and/ or defend, settle or abandon in the name of the Federation any legal proceedings by or against the Federation. Additionally, under Clause 8, Article 10. 1.3. 2, the board is further empowered to, sign or determine who shall be entitled to sign all documents on behalf of the Federation.

6. It is his submission that the National Executive Board, consisting of a majority, passed a resolution on 20th April 2023 appointing the firm of Ochiel J Dudley Advocates to act on behalf of the Federation in this matter. The appointment according to him is proper having been sanctioned by a total of 12 out of the 18 members of the National Executive Board (10 of whom are Applicants in this suit) as seen in the resolutions marked "E0011" and "E0012 in the 1st Respondent's Replying Affidavit purportedly appointing the firm of Ngala Owino and Prof Tom Ojienda respectively are an afterthought. These were only filed after the Federation had raised an objection to the appointment of these firms of Advocates without any board resolutions.

7. The 1st Respondent invites the court to look at the attendance lists attached to the resolutions which according to him proves that the same were manufactured and reproduced in order to defeat the objection raised regarding the appointment of Advocates without resolutions, thus casting doubt as to whether these meetings on the appointment of Advocates ever took place.

8. Indeed, in the annexure marked "E0011", the attendance list at page 112 of the 1st Respondent's Replying Affidavit, in respect to a meeting held on 4th April 2023 purportedly appointing Ngala Owino Advocates is an exact replica of the attendance list in the annexure marked "E0019" at page 147 as regards a meeting held on 20th January 2023 purporting to ratify the decision to nominate the 2nd Respondent to the AFA Board. Further, the attendance list attached in the annexure marked "E0012" at page 116 of the 1st Respondent's Replying Affidavit regarding a meeting held on 12th April 2023 purporting to appoint the firm of Prof Tom Ojienda Advocates is exactly similar to the attendance list at annexure "E0014 at page 126 concerning a meeting held on 2nd May 2023 instructing change of advocates from Ochiel J Dudley Advocates to Prof Tom Ojienda & Associates.

9. He further submits that the reproduction of similar attendance lists, signed in the same exact manner with the same order of names, in respect to different meetings with different agendas only proves that these meetings never took place or that the 1st and 2nd Respondents only manufactured documents to cure for their omissions.

10. In any event, he submits that the Constitution requires that only the National Executive Board can authorize representation of the Federation in legal proceedings. The resolutions marked "E0011" and "EO012" are not resolutions of the board, and further, do not meet the required threshold to be considered resolutions of the board.

11. He invites the Court to disregard any purported representation of the Federation by the firm of Prof Tom Ojienda & Associates and find that Ochiel J Dudley Advocates is properly on record for the Federation. He also asks the Court to disregard any arguments made for the Federation by Prof Tom Ojienda & Associates.

The 4th Ex parte applicant’s case in relation to the 1st issue: 12. On his part, Simon Wesechere 4th Ex parte applicant in his Replying Affidavit dated 27th April 2023, swore that he is the National Deputy Secretary General of the Kenya National Federation of Sugarcane Farmers, and he is familiar with the facts of this case, and he is duly authorized to swear this Affidavit on behalf of the Federation, and thus competent to swear this Affidavit in line with the resolution marked "SW-1" appointing him to act on behalf of the interested Party -the Federation.

13. He depones that the Federation objects to the appointment of the firms of Prof Tom Ojienda & Associates as its Advocate and that at no point did the Federation instruct the said firm of Advocates or the firm of Ngala Awino & Advocates to represent it in this matter. It is his case that no resolution was passed by the Federation appointing either of the said firms of advocates to act on its behalf and therefore the position advanced by the firms in respect to the present suit is not the position of the federation and should be disregarded.

14. It is his case that under the Federation's Constitution, decisions can only be ratified by the Governing Council at an extra governing Council Meeting. In this case, no Extra Governing Council Meeting was ever convened in relation to the 2nd Respondent's nomination to the AFA Board.

15. According to him, the resolution passed on 13th January 2023 nominating the 1st Respondent to serve as an AFA Board member flouts the Federation Constitution because decisions of the Federation can only be passed by a two-thirds majority. In this case, only 6 out of 20 officials of the Federation were present at the meeting and as such there was no quorum to bind the Federation to the decision of the six individuals.The interested party’s submissions on the issue of representation through the firm of Ochiel J Dudley Advocates

16. According to the interested party the representation of the Federation is disputed. At Paragraph 36 of his Replying Affidavit, Olodi impugns the appointment of Ochiel J Dudley Advocates on behalf of the Federation claiming that he has the "sole mandate to sanction the appointment of Advocates for the Federation". He also contests the authority of Simon Wesechere to sign documents on behalf of the Federation claiming he did not authorize him to do so.

17. Olodi misreads Article 11. 3.5. of the Constitution which specifies his functions as a Secretary General of the Federation. Under that Article, the Secretary General's decisions are subject to the approval of the board. Thus, he has no sole mandate to do anything for the Federation unless the Board approves. Also, Article 10. 1.3. 2 (7) of the Constitution specifically confers upon the National Executive Board the powers to: "Institute, conduct and/or defend, settle or abandon in the name of the Federation any legal proceedings by or against the Federation". Under Clause 8, the board is further empowered to, "determine who shall be entitled to sign all documents on behalf of the Federation"

18. In this case, the National Executive Board, consisting of a majority of 12 out of 18, passed the resolution on 20th April 2023 appointing the firm of Ochiel J Dudley Advocates to represent the Federation. At the same time, Simon Wesechere, the 1st Deputy Secretary General, was allowed to sign all documents on behalf of the Federation. Therefore, their appointments are proper having been sanctioned by a total of 12 out of the 18 members of the National Executive Board (10 of whom are Applicants in this suit).

19. The annexed resolutions marked "0011" and "0012" in the 1st Respondent's Replying Affidavit purportedly appointing the firm of Ngala Owino and Prof Tom Ojienda are not resolutions of the National Executive Board. At any rate, the attendance lists are remarkably similar, raising doubts to their truthfulness on a balance of probabilities. The attendance list marked "E0011" at page 112 of the 1st Respondent's Replying Affidavit, purporting to be a meeting held on 4th April 2023 to appoint Ngala Owino Advocates is an exact replica of the attendance list marked "E0019" at page 147 said to be a meeting held on 20th January 2023 to ratify the decision to nominate Ong'ow to the AFA Board.

20. Equally the list attached as annexure "E0012" at page 116 of the 1st Respondent’s Replying Affidavit regarding a meeting held on 12th April 2023 to appoint the firm of Prof Tom Ojienda Advocates is exactly similar to the attendance list "E0014" at page 126 said to be a meeting held on 2nd May 2023 instructing change of advocates from Ochiel J Dudley Advocates to Prof Tom Ojienda & Associates.

21. The reproduction of attendance lists, signed in exactly the same way, with the same order of names, at different meetings, held on different days, with different agendas, makes it more likely that these meetings never occurred.

Analysis & Determination: Issue 1: Which advocates between law firm of Prof Tom Ojienda & Associates Advocates and Ochiel J. Dudley Advocates should represent the Interested Party herein. 22. Order 9 Rule 1 of the Civil Procedure Rules provides that any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf.

The rule speaks of representation by an advocate and not advocates. 23. The right to access to justice is guaranteed under Article 48 of the Constitution for the litigants including the interested Party herein and is realized through litigation tools like pleadings, applications, submissions, authorities, arguments, highlighting of submissions and the examination of witnesses inter alia that the advocates prepare, lodge and use to front their innocent clients in the court room.

24. No doubt a litigant will not be expected to issue two or more sets of instructions to different law firms or advocates at different times in the same suit to represent them in court. This would generate confusion and anarchy in the courtroom at the expense of the client.

25. The judge who presides over a matter where there are two or more advocates appearing for one client in the same suit will find it difficult to determine the dispute that is before him. It becomes awkward for the court where the two law firms are at cross purposes seeking to represent the same client to the extent that they are fronting conflicting arguments in court. The court will not be able to address the counsel appropriately in court or in the judgment that would flow from such a circus. This would culminate in the breach of the rule of law. It is not acceptable. Right from the outset, when the 1st Respondent and the interested Party filed their responses to the substantive application in this suit, the issue of representation came to fore exposing the underbelly of interested party herein.

26. This court has addressed its mind to the following: On 4th April 2023, a resolution was passed that the law firm of Ngala Awino & Co Advocates do appear for the interested Party and for Ezra Okoth in this matter as set out in the said Minutes marked as annexure E0011. Upon the realization of the gravity of the matter and the kind of allegations that had been levelled against the interested Party and its officials, the 1st Respondent and interested party sought to have the services of a Senior Counsel.

27. Subsequently on 12th April 2023, a resolution was passed that the law firm of Prof Tom Ojienda & Associates Advocates should appear for the interested Party and Ezra Okoth. This can be gleaned from the minutes and the letter of instruction annexure E0012.

28. On 14th April 2023, the law firm of Prof Tom Ojienda & Associates Advocates filed a Notice of change of Advocates for the 1st Respondent and the interested party herein from the firm of Ngala Awino and co advocates.

29. On 20th April 2023, the firm of Ochiel J. Dudley Advocates filed a Notice of change of Advocates to act for the Interested Party replacing the firm of Prof Tom Ojienda & Associates Advocates. On 27th April 2023, Prof Tom Ojienda & Associates Advocates filed a replying Affidavit of Simon Wesechere on behalf of the Interested Party.

30. On 5th May 2023, Prof Tom Ojienda & Associates Advocates filed a notice of change of Advocates in place of the firm of Ochiel J. Dudley Advocates for the interested Party. On 6th May 2023, the firm of Ochiel J. Dudley Advocates filed a Notice of change of Advocates to act for the interested Party replacing the firm of Prof Tom Ojienda & Associates Advocates.

31. The appointment was pursuant to the resolution signed by the Applicants and dated 20th April 2023. On 18th May 2023, the Respondent and the interested Party filed a joint replying Affidavit in opposition to the Notice of Motion dated 13th April 2023 through the firm of, Prof Tom Ojienda & Associates Advocates.

32. On 23rd May 2023, the firm of Ochiel J. Dudley Advocates filed skeleton arguments supporting the applicants Preliminary Objection dated 18th April 2023 for and on behalf of the interested party. On the same day 23rd May 2023, Prof Tom Ojienda & Associates Advocates filed submissions in opposition of the applicant’s Preliminary Objection dated 18th April 2023 for and on behalf of the 1st and 2nd Respondent and the interested Party.

33. On 29th May 2023, the firm of Ochiel J. Dudley Advocates filed submissions on the representation of the interested Party. On the same day 23rd May 2023, Prof Tom Ojienda & Associates Advocates filed submissions in opposition to the Application dated 13th April 2023 for and on behalf of the 1st and 2nd Respondent and the interested Party.

34. The 1st Respondent contends that it was shocked to receive a call from their Advocate, Prof Tom Ojienda SC, that the Federation had allegedly filed a notice of change replacing his law firm with another law firm called Ochiel J. Dudley Advocates. On further inquiry, the 1st Respondent was informed that a resolution was passed by the Federation on 20th April 2023 to replace the Law Firm for Prof Tom Ojienda & Associates as set out in the resolutions marked as annexure E0013.

35. According to the 1st Respondent, being the Secretary General, he retains the sole mandate to convene any meeting of the interested Party and this can only be done by the deputy upon express authorization. The 1st Respondent further avers that he has never authorized the said Simon Wesechere to convene any meeting of the interested Party let alone make any communication to the law firm of Ochiel J Dudley Advocates and the resolution cannot hold any water being illegal for being convened in outright contravention of the interested Party 's Constitution.

36. As a result of the above the 1st Respondent immediately convened an urgent meeting to settle the question of representation. A resolution was passed to regularize this purported change of Advocates on the 2nd of May 2023 as set out in the Minutes for 2nd May 2023 annexed as E0014.

37. In the case of Uhuru Highway Development Ltd & Others vs Central Bank of Kenya Ltd & Others (2) [2002] 2 EA 654, that it is not the business of the Courts to tell litigants which advocate should or should not act in a particular matter as each party to a litigation has the right to choose his or her own advocate, unless it is shown to a Court of law that the interests of justice would not be served if a particular advocate were allowed to act in the matter. In addition, the reasons why it is prudent to resolve any conflict as regards representation of a party and to have one firm of advocates on record two firms on record for a party in a suit were stated Kenya Commercial Bank Ltd. v. John Benjamin Wanyama, Civil Appeal No. 97 of 1999; [2007] eKLR as follows:“There is no provision in the Rules for two firms of Advocates to be on record contemporaneously or concurrently. And this is for good reason. It would be chaotic if there was on record more than one firm. From which firm would pleadings be expected; who would be served; who would take responsibility, or be held responsible for actions or omissions of the party represented by such firms? …The rationale for requiring an Advocate, or one firm of Advocates to act for a party and sign pleadings and receive service on behalf of such party is designed to ensure that such Advocate or firm, does take responsibility for the matter and is accountable to Court and the client he or it represents. The law does not bar a party utilizing the services of more than one Advocate or more than one firm of Advocates in a matter but where this is done, it is the Advocate or firm of Advocates on record who engage a senior counsel to lead. The rules of practice recognize that in complex matters a senior counsel may be hired to lead, and it is for this reason that costs are sometimes enhanced, and a certificate for two counsel given by Court.”

38. I am guided by the case of Murigi Kamande v Nelson Andayi Havi & another; Mercy Kalondu Wambua (Interested Party) [2020] eKLR where in justice Rika made the following findings:10. The dispute regarding who should appear for the LSK, is an offshoot of the main dispute. The main dispute revolves around the LSK President Mr. Nelson Havi, and the LSK CEO Ms. Mercy Wambua. In their respective camps are some Council Members.11. The President’s position is that the CEO is no longer validly in office. The President does not recognize her, and is not ready to work with her. The CEO insists she was absolved by the Council of certain allegations made against her with regard to discharge of her role, and was returned to office through the resolution of the Council. A majority of the Council Members agreed that she resumes office.12. This internal conflict has affected decision-making in the LSK. The appointment of the Law Firm, or Law Firms to appear for the LSK, in various matters before the Courts, is just one among other decisions, affected by the conflict. For instance, on 9th November 2020, the President wrote to Audit Firm, Parker Randall, calling for forensic audit of the accounts and balance sheet of the LSK, for a specified period. The President directed that the exercise is completed within 30 days of 9th November 2020. The following day, 10th November 2020, the CEO wrote to Parker and Randall, advising that the Council had initiated the process of appointing an Auditor. The Auditor was told to cease the proposed audit, until the process of appointing an Auditor was complete.13. It is clear therefore, that there is a fundamental conflict within the Council of the LSK. This conflict is not just about the appointment of a Law Firm, or Law Firms, to represent the LSK in this Petition, and related Petitions. It is about the governance of the LSK.14. The Court will not be assisting the Parties, by endorsing Mr. Kurgat, or Mr. Muhoro, or other Learned Counsel, over the other, in representation of the LSK. By making a ruling for one against the other, the Court will have shown where its mind lies, with regard to the larger dispute. The Court will be fanning the flames engulfing the LSK. It will be prejudicial to the Parties, to say at this stage, that the decision made by the President and his faction in the Council, or that made by the CEO and Council Members in her faction, is the right decision. It should not be the role of the Court to fan the fires of factionalism. The Law Society of Kenya Act, has provisions, which in the view of the Court, empower the President and /or the Council, in appointment of Lawyers, and other professionals, to act for the LSK. Both the President and the Council can appoint a Lawyer to act for the LSK. The law however, presumes that the President and the Council stand on the same platform. Their voice is meant to be a collective voice. Their decisions are meant to be collective. They are all elected by the LSK Members.15. The most suitable forum to resolve the preliminary and the main issues in dispute, is the General Meeting. Part 3, Section 15, of the LSK Act, deals with effective governance of the LSK. It creates 4 organs of governance: The General Meeting; the Council; the Secretariat; and the Branches. Section 16 of the Act, states that the General Meeting shall be the supreme authority of the Society.16. The LSK Act presupposes that there is a single Council of the LSK. Throughout, the LSK Act refers to ‘the Council.’ There is one Council. Its decisions are made through majority vote. There is one President, who is a Member of the Council. There is one LSK. Section 3 of the Act establishes one LSK. What the disputants herein are doing, is to pluralize the LSK. The law does not contemplate a situation where the President and the Council act at cross-purposes. As it is, it is not possible to grant orders which can practicably be executed, for or against the LSK. It is not known who the LSK in the dispute is. How will the orders be enforced? One faction could compromise the Petition against the other, risking the resources of the membership at large. The LSK cannot enjoy client-advocate confidentiality with multiple, differently instructed Lawyers. It cannot have control over the litigation. No Court ought to approve this anomaly. The LSK needs to be placed in a position where it has a conventional advocate-client relationship. There is need for some coherence, which the Court is not able to hand to the Parties.17. Should it happen that the President and the Council are involved in a dead heat, as they seem to be, the Society ought to ask for intervention of the supreme authority of the Society. The President, the Council and the Secretariat are subordinate to the General Meeting. The intervention of the Court as sought, does not result in, or promote, effective governance of the LSK. It would only fan, the fires of factionalism.

Disposition: 39. It is this court’s finding that the interested party is at the heart of the dispute before this court and the issue of who will represent it cannot be wished away. It is a hotly contested issue that has an impact on how interested party will prosecute their case. The foregoing is a case of double representation for the interested party.

40. The hearing of the Application dated 13th April,2023 and the Preliminary Objection dated 18th April 2023 cannot advance in any logical form in light of the finding that there is double representation for the interested party. Once the issue of the double representation for the interested party is resolved then the two issues will be heard and determined.Order:1. The National Executive Board of the Interested Party is hereby directed to convene and resolve the issue of legal representation within its Constitution within seven 7 days of today’s date.2. The Registrar of Societies shall supervise the said meeting.3. The Registrar of Societies shall file a report and the resolution within seven days of today’s date.4. The hearing of the Application dated 13th April,2023 and The Preliminary of objection dated 18th April 2023 shall remain in abeyance pending the report that will be filed in 3 above.5. This matter shall be mentioned on 30th June 2023 for further directions.6. There shall be no orders as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JUNE 2023J. CHIGITI (SC)JUDGE