[2006] KEHC 3177 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISCELLANEOUS CIVIL APPL 102 OF 2006

REPUBLIC …………….……………..………………………APPLICANT

VERSUS

THE REGISTRAR GENERALMRS. B.W. GACHEGU ……...……..RESPONDENT

AND

1. JOSEPH NGETICH

2. CHRIS BICHAGE

3. E.M. SABWA

4. BEN MUREITHI

5. JOHN GARDNER

6. JACINTA MAGANDA

7. JUSTIN NJIRU

8. P.J. SHAH …………........................…………….…. INTERESTED PARTIES

EX-PARTE APPLICANTS:-

1. PETER MAMBEMBE

2. VALENTINE MWAKAMBA

3. VINCENT MWACHIRO

R U L I N G

The exparte applicants herein, Peter Mambembe, Valentine Mwakamba and Vincent Mwachiro took out a Motion dated 3rd February 2006, the subject matter of this ruling. The Motion was filed pursuant to the leave granted by this court on the 1st day of February 2006 and is premised on the Provisions of order LIII rule 3(1), 3(2) and 4(1) of the Civil Procedure Rules.

In that motion, the exparte applicants sought for the following orders:

(i)An order of Mandamus to compel the Registrar of Societies, Mrs. B.W. Gachegu, to register the officials of KIFWA as per the decision made by F.S.M. Ng’ang’a, Deputy Registrar General of Societies, on the 11th day of January, 2006 i.e.

(a) Joseph Ngetich - Chairman

(b) Peter Mambembe - Nat. V/Chairman

(c) E.M. Sabwa - Nat. Secretary

(d) John Gardner - Treasurer

(e Valentine Mkamba - Exec. Member

(f) Vincent Mwachiro - Exec. Member

(ii)An order of Certiorari to bring into this court the decision of the Respondent dated 19th January 2006 and to have them quashed.

The background of this matter can easily be found in the supporting

Affidavit sworn by Peter Mambembe and the statement of facts. The whole saga started when the Commissioner of Customs and Excise wrote to the executive Chairman, Association of Clearing, Warehousing and Freight Forwarders of Kenya (A.C.W.F.F.K) in a letter dated 25th June 2004 in which he expressed the view that A.C.W.F.F.K and other clearing and forwarding Associations should merge to make it easy for Kenya Revenue Authority to deal with one body in clearing and Forwarding Industry in the anticipated computerization programme.

Pursuant to the Kenya Revenue authority’s suggestion, ACWFFK and Kenya International Freight Warehousing Association (KIFWA) entered into a memorandum of agreement dated 15th July 2004 to merge on the following terms inter alia:

“ (i) KIFWA shall be the umbrella body which will be constituted of officials from both KIFWA and ACWFFK drawn from both associations.

(ii) That at the National level National Vice-Chairman and two National Committee members shall come from ACWFFK.

(iii) That at the branch level, membership in the

management committee will be decided by the

respective committees of the branch.

(iv) For all meetings with KRA, K.P.A and anybody,

KIFWA shall hold a briefing meeting prior, to report

representation to chart the way forward.

(v)…………………………

(vi)……………………….…

(vii)………………………………

(viii)……………………………..

(ix)…………………………….

(x) That after its members have joined KIFWA, the ACWFFK may dispose of its assets and liabilities as provided in ACWFFK’s constitution.”

Before the terms of the agreement were actualized the original KIFWA secretly and without informing ACWFFK proceeded to hold elections amongst themselves and purported to present names to the Respondent as elected officials of the new KIFWA. The exparte applicants together with the members of ACWFFK felt cheated and filed an action in this court i.e. Mombasa H.C.C.C. NO. 117 of 2005 and successfully obtained an order of injunction barring the respondent from registering the pretended list as the officials of KIFWA pending the hearing and determination of the suit. The order however did not bar the respondent from considering an interim list presented.

On the 11th day of January 2006, the Deputy Registrar General of Societies, F.S.M.. Ng’ang’a summoned the combatants and after hearing the representation from both sides i.e. from KIFWA and ACWFFK came to the conclusion that the interim officials agreed on 23rd February 2005 namely:

Joseph Ngetich - Ag. Chairman

Peter Mambembe - Ag. V/chairman

E.M. Sabwa - Ag. National Secretary

John Gardner - Ag. Treasurer

Valentine Mwakamba - Executive Member

Vincent Mwachiro - Executive Member

be registered as interim officials of the new KIFWA with effect from 20th January 2006 at 2. 30 p.m. unless the Registrar was served with other orders.

In a letter dated 19th January 2006, Mrs. B. W. Gachegu, the Registrar General of Societies, the Respondent herein, purported to overrule the decision of F.S.M. Ng’ang’a on the basis of an objection filed by Mr. Gakuo advocate acting for KIFWA on the instructions of Gakuo & Co. Advocates. In that letter the Respondent expressed her decision in the last two paragraphs as follows:-

“I would wish to suggest that all the officials

from both Associations recognized by this

office, i.e. those officials on records before the

merger process began, work together towards

commencing the general meeting wherein

fresh elections will be held.

In the meantime, the status quo shall remainand I shall pend the registration of the interimofficials.”

Being aggrieved by the respondent’s decision the exparte applicants have urged this court to review the Respondent’s decision on the ground that the Respondent had no jurisdiction to overturn the decision of her deputy and or that even if she had the jurisdiction to do so she did not hear the exparte applicants hence she breached the rules of natural justice. It was also argued that the decision was irrational and unreasonable. This court was further urged to make an order to compel the Respondent by an order of Mandamus in line with the ruling of the Honourable Mr. Justice Mwera.

Mr. Onyango Learned State Counsel for the Respondent opted to stand on the mid-ground in this dispute. He was of the view that the letter dated 19. 1.2006 written by the Respondent gave the way forward in the dispute and that the feuding parties should discuss the matter and settle it out of court. Mr. Onyango was of the view that the Respondent should be given time to have the matter amicably sorted out administratively.

At the end of the arguments the following issues arose for determination.

(i) Whether or not the Respondent had jurisdiction to overturn the decision of her deputy.

(ii) Whether or not the Respondent acted reasonably in the circumstances of this matter

(iii) Whether or not the Respondent breached the rules of natural justice

(iv) Whether or not the exparte applicants are entitled to an order of Mandamus in the matter.

Let me now address the above issues in their order.

On the first issue i.e. as to whether or not the Respondent had jurisdiction to overturn the decision of her deputy. Let me sound repetitive over the facts in this regard. On the 11th day of January 2006, F.S.M Ng’ang’a a deputy Registrar General of Societies decided upon hearing both representatives of KIFWA and ACWFFK that the following person namely:

Joseph Ng’etich, Peter Mambembe, E.W. Sabwa, John Gardner, Valentine Mwakamba and Vincent Mwachiro be registered as interim officials of the new KIFWA with effect from 20th January 2006 unless the Registrar was served with an order before then. It is not denied that Mrs. B.W. Gachegu, the Registrar General made another decision in which she urged all the officials who were serving in KIFWA and ACWFFK before the merger to work together until that time elections were held. She further halted the registration of the interim officials proposed by the Deputy Registrar General. It is the submission of Mr. Gikandi advocate for the exparte applicants that the Registrar General (Respondent) acted without jurisdiction in the matter. The definition of the ‘registrar’ is given under S.2(1) of the Societies Act as follows:

“The ‘registrar’ means the registrar of

societies appointed under section 8 of this

Act, and includes a person appointed under that Section to be a Deputy

or Assistant Registrar.”

The import of the definition is that the registrar general, the deputy

Registrar general and or the assistant registrar general of societies are officers of concurrent jurisdiction. In other words no one of the holders of any of the three offices can overturn the decision of the other. In this case the registrar general (Respondent) purported to overrule the decision of a deputy registrar. The dispute, which was before the registrar, clearly falls within the provisions of Section 18(1) of the Societies Act and therefore the Registrar had the statutory duty to hear and determine the dispute. It is trite law that only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with. In this matter I hold the view that the Respondent acted without jurisdiction when she purported to overturn the decision of the deputy registrar.

The second issue is whether or not the Respondent acted reasonably in

the circumstances of this case. A decision of a person or body exercising a statutory discretion will be quashed for irrationality or for being unreasonable. The exercise of discretionary powers like that exercised by the Registrar of Societies under Section 18(1) of the Societies Act Chapter 108 Laws of Kenya involving a large element of policy will only be quashed on the basis of manifest unreasonableness in exceptional cases. It is incumbent upon such bodies exercising administrative authority to give reasons for administrative actions and it is mandatory that such reasons be reasonable in the circumstances of the case. The standard of unreasonableness is described by Lord Greene M.R. in Associated Picture Houses Ltd. –vs- Wednesbury Corporation [1947] 2 ALL E.R. P 680 – 683 as:

“It is that which is so absurd that no sensible

person could ever dream that it lay within

the powers of the authority”.

Lord Denning said in the case of the Secretary of State for Education and Science -vs- Tameside Metropolitan Borough Council [1977] A.C 1014

”It is that which is so wrong that no reasonableperson could take that view”.

Applying the definition and scope of reasonableness vis a vis the decision by the respondent, it is clear that the Respondent acted reasonably though without jurisdiction. The respondent gave very sound reasons to support her decision but she unfortunately failed to appreciated that the matter had been decided by her deputy hence she was sort of rendered functus officio.

The third issue is in respect of whether or not the Respondent breached the rules of natural justice while making her decision of 19th January 2006. Again, Section 18(1) of the Societies Act requires the registrar to hear the warring parties before making a decision. It is evident from the letter of the Respondent dated 19th January 2006 that the Respondent acted on the basis of an objection dated 13th January 2006 by the firm of Muturi Gakuo & Co. Advocates.

The letter of the respondent of 19th January 2006 indicates that the respondent acted on the basis of an objection dated 13th January 2006 lodged by the firm of Muturi Gakuo & Co. Advocates on behalf of KIFWA. The objection is expressed in paragraphs 1 and 2 of the aforesaid letter as follows:

”I have received an objection letter dated 13th January 2006 from Muturi Gakuo & Co. Advocates, acting for K.I.F.W.A.

Mr. Gakuo has raised an objection against the

decision made by Deputy Registrar General,

Mr. F.S.M. Ng’ang’a on 11th January 2006,

wherein he stated that registration of the interim

officials agreed on 23rd February 2005 will be done

on 20th January 2006 at 2 .30 p.m. unless the

Registrar is served with orders.”

The Respondent therefore acted on an objection filed by representatives of K.I.F.W.A without according a similar treatment to the representatives of A.C.W.F.F.K. I am satisfied that the representatives of ACWFFK were not heard by the Respondent before the decision of 19th January 2006 was made. She therefore failed to meet the simplest tenets of natural justice. It is important to note that what is required of the decision-maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case. The result of a failure to comply with the rules of natural justice is that such a decision is subject to review and will obviously be quashed by an order of certiorari.

The final issue brought to the attention of this court is whether or not an order of mandamus should issue. This court has been urged to issue an order of mandamus to compel the Respondent to register the officials of new K.I.F.W.A as per the decision of Mr. F.S.M. Ng’ang’a dated 11th January 2006. The scope and efficacy of an order of mandamus was extensively dealt with by the Court of Appeal in the case of KenyaNational Examination Council =vs= Republic exparte Geoffrey Gathenji Njoroge and 8 others (Unreported) C.A. No. 266 of 1996. The Court of Appeal said:

“What do these principles mean? They mean that an order of Mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.

…………………………………………………………..

To conclude this aspect of the matter, an order of Mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same. If the complaint is that the duty has been wrongly performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done. Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.”

Applying these principles to the current proceeding can mandamus issue in the circumstances of this matter? The relevant part of the decision of F.S.M. Ng’ang’a, Deputy Registrar General is reproduced as follows:

“I therefore feel inclined to give effect to the spirit of the ruling as issued by Justice Mwera on 12th October 2005 and come to the conclusion that the interim officials agreed on 23rd February 2005 be registered as interim officials. These officials are:-

1. Joseph Ngetich …………………....Ag. Chairman

2. Peter Mambembe ……………… ...Ag. V/Chairman

3. E.M. Sabwa ………………………..Ag. National Sec.

4. John Gardener ………………….…Ag. Treasurer

5. Valentine Mwakamba …………….Executive Member

6. Vincent Mwachiro……………….…Executive Member

This registration should be done on the 20th January

2006 unless the Registrar is served with other orders.”

The record is very clear that the decision of the deputy Registrar would be given effect unless there was an order served upon the registrar to the contrary. There is no evidence that such an order was served. Instead of the Respondent giving effect to the decision of 11th January 2006 she engaged herself in reconsidering the dispute afresh. I have already stated that she had no jurisdiction to do so. Having reached at a decision, it was the duty of the Respondent to perform her duty by registering the interim officials as required by Sections 17,18 and 25 of the Societies Act. The respondent has plainly and intentionally refused to perform her duty to give effect to her decision hence mandamus will issue.

The upshot of the whole matter is that the motion dated 3rd February 2006 is allowed in terms of prayers 2 and 3. The exparte applicants shall have costs of the motion paid by the Respondent.

Dated and delivered this 17th day of February 2006.

J.K. SERGON

J U D G E

Read in the presence of :

Mr. Gikandi for the exparte applicants and

No Appearance for Onyango for the Respondent.