[2017] KEHC 9211 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

JUDICIAL REVIEW DIVISION

MISC APPLICATION NO. 35 OF 2016

BETWEEN

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

VERSUS

REGISTRAR OF SOCIETIES ................................1STRESPONDENT

DAVID KIMANI .....................................................2NDRESPONDENT

MARY WANGARI .................................................3RDRESPONDENT

SAMWEL WAWERU KARANJA..............................4THRESPONDENT

AND

SAMUEL KAIRUKI KUNGU, DANIEL NJOROGE KAMAU AND LUCY NYAMBURA (SUING AS CHAIRPERSON, SECRETARY AND TREASURER ON THEIR OWN BEHALF AND ON BEHALF OF KINALE FOREST CONSERVATION ASSOCIATION)

JUDGMENT

1. By a Notice of Motion dated 11/10/2016, the Ex Parte Applicants (“Applicants”) seek a singular order that:

This Honourable Court be pleased to issue an order of certiorari directed to the Registrar of Societies quashing his decision as contained and communicated in the letter dated 30th June, 2016 cancelling all the elections held by Kinale Forest Conservation Association since 2006, reinstating officials who were in office in 2007, and calling for elections to be presided by the illegally reinstated officials.

2. The facts are quite straightforward. The 1st Respondent wrote a letter dated 30/06/2016 to the Applicants cancelling all elections held by Kinale Forest Conservation Association (“Association”) since 2007. In the same letter, the 1st Respondent restored the leadership of the Association to those who were office bearers after the elections of the Association held in 2006.

3. The 1st Respondent’s letter was based on what she termed as leadership wrangles within the Association.

4. The Applicants who were in office in 2016 when the 1st Respondent’s letter came felt aggrieved by the decision taken by the 1st Respondent. In particular, the Applicants complain that:

a. In making this decision, the 1st Respondent did not afford the Applicants, as the current officials of the Association, an opportunity to be heard. In other words, the Applicants complain that the 1st Respondent revoked their election to office without being heard and in violation of the rules of Natural Justice.

b. The Applicants also complain that the decision to revoke all elections held and reinstating the office bearers at the end of 2006 was in excess of jurisdiction of the 1st Respondent. The Applicants argue that the 1st Respondent does not have powers to revoke elections of a registered society.

c. Further, the Applicants argue that the decision reached by the 1st Respondent is illegal because it was actuated by bias and extraneous considerations. They argue that the action was instigated by the 2nd and 4th Respondents who, by the time the 1st Respondent was acting, were not even members of the Association.

d. Lastly, the Applicants complain that the directive given by the 1st Respondent is unreasonable and incapable of implementation since one of the official who is supposed to assume leadership pursuant to that direction is deceased while two others voluntarily resigned from the Association and registered another rival association (which was subsequently deregistered). One other official voluntarily resigned his position. In addition, one of the official who was to be reinstated was duly expelled from the Association on 28/04/2015 for misconduct.

5. On its part, the 1st Respondent says that it wrote to the Association on 07/10/2014 raising concerns that the Association had not filed returns since 2007 in contravention of the Societies Act. The letter gave the Association seven (7) days to file returns but the Association never complied.

6. The 1st Respondent says that on 14/10/2014, it received a letter from one Peter Kimani stating that the Association had not held election or filed returns since 2007. The letter, the 1st Respondent says, implored the 1st Respondent to intervene in a bid to resolve disputes plaguing the Association in order to pave way for elections of the Association which were long overdue.

7. The 1st Respondent says that it used its good offices to try and mediate the leadership wrangles including calling for an inclusive meeting of the office bearers and representatives of stakeholders on 10/11/2014. The meeting resolved to form an Independent Committee (Board) whose duty was to be a caretaker body to lead the society in the interim as it brought peace to the warring factions and arrange an election. However, the 1st Respondent says, the Board failed to exercise its mandate for, among other reasons, undermining by the Applicants. This led to a worsening of the leadership crisis culminating in a civil suit in the Magistrates’ Court.

8. When things came to a head, the 1st Respondent says it acted through its impugned letter. This action, the 1st Respondent says, was taken in the best interests of the Association and was in line with the mandate of the 1st Respondent under the Societies Act.

9. In response to some of these allegations by the 1st Respondent, the Applicants balk at the idea that the Association has not filed returns since 2007. They have annexed copies of official receipts issued by the 1st Respondent to demonstrate that the Association filed its returns all through 2013.

10. The Applicants further allege that they responded to the 1st Respondent’s letter of 04/10/2014 and attached the returns they had filed. They have equally exhibited a copy of the letter they wrote to the 1st Respondent. The letter clearly shows that it was received by the 1st Respondent on 13/10/2014.

11. Finally, the Applicants allege that they were never invited for nor attended any of the meetings the 1st Respondent is referring to. They deny that they were part of any decision to form an interim Board and insist that all along they have been bona fide office bearers of the Association.

12. To demonstrate further the ostensible mendacity of the 1st Respondent’s claims that the Association had not filed any returns and was therefore operating irregularly, the Applicants exhibited three letters written by the 1stRespondent to the Association which, the Applicants claim, demonstrate that the Association was in good standing. These are:

a. A letter dated 23/09/2010 advising the Association that the amendment to the Constitution had been approved.

b. A letter dated 14/12/2010 approving the change of name of the Association.

c. A letter dated 02/10/2013 approving another amendment to the Constitution of the Association.

13. The Applicants argue that since, according to Section 20(2) of the Societies Act only officials of a society can change name and file for amendment to the society’s constitution, the acceptance of these acts and subsequent correspondence by the 1st Respondent confirms that the Applicants were, indeed, the bona fide officials of the Association.

14. The 1st Respondent has correctly identified the only two issues for determination in the case:

a. First, was the decision by the 1st Respondent communicated vide its letter dated 30/06/2016 revoking all elections of the Association since 2007 was administratively fair?

b. Second, are the orders sought by the Applicants available in the circumstances of this case?

15. The proper province of Judicial Review was stated in Municipal Council of Mombasa vs. Republic & UmojaConsultants Ltd(Civil Appeal No. 185 of 2001). In that case, the Court of Appeal held that:-

"Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision."

16. Hence, where a public authority has acted in exercise of its discretion, the Court is only entitled to interfere with the exercise of discretion in the following situations:- (i) where there is an abuse of discretion; (ii) where the decision-maker exercises discretion for an improper purpose; (iii) where the decision-maker is in breach of the duty to act fairly; (iv) where the decision-maker has failed to exercise statutory discretion reasonably; (v) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (vi) where the decision-maker fetters the discretion given; (vii) where the decision-maker fails to exercise discretion; (viii) where the decision-maker is irrational and unreasonable. See Republic vs. Minister for Home Affairs and Others Ex Parte SitamzeNairobi HCCC No. 1652 of 2004 [2008] 2 EA 323.

17. Regarding the first issue – whether the decision of the 1st Respondent was administratively fair - I see four sub-issues as raised by the Applicants. I will address each of the four in the next few paragraphs.

18. First, was it procedurally unfair for the 1st Respondent to have made the decision without affording the Applicants anopportunity to be heard on the subject? The Applicants argue that the 1st Respondent should have given them an opportunity to be heard on the question. While the 1st Respondent does not directly address this question, it gives a long history of what it constructs as constructive engagement with the Association. Perhaps the 1st Respondent hoped the Court to draw the conclusion that this engagement amounted to affording the Applicants an opportunity to be heard. I do not think so.

19. Even if we accepted that the meetings the 1st Respondent says were held were actually attended by the Applicants, at the point at which the 1st Respondent had decided to take the adverse decision to revoke all the elections since 2007, it behooved the 1st Respondent to inform the Applicants what decision it was about to make and give them an opportunity to address it on the question. Had it done so, for example, the 1st Respondent may have been persuaded by the Applicants that they had, in fact, filed their returns dutifully since 2007.

20. It is obvious that that failing to give an opportunity to Applicants to present their case or confront any adverse information the 1st Respondent had or relied on to make the decision was and/or is a violation of their fair administrative rights.

21. Perhaps the best statement of this rule of administrative fairness is stated by the author in Halsbury’s Laws of England, 5th Edn. Vol. 61 page 539 at para 639 states:

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 common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court. Moreover, even in the absence of any charge, the severity of the impact of an administrative decision on the interests of an individual may suffice itself to attract a duty to comply with this rule. Common law and statutory obligations of procedural fairness now also have to be read in the light of the right under the Convention for the Protection of Human Rights and Fundamental Freedoms to a fair trial which will be engaged in cases involving the determination of civil rights or obligations or any criminal charge.

22. Hence, Article 47 of the Constitution provides:

(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.

23. Section 4(3) of the Fair Administrative Action Act,2015provides 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.

24. What both Article 47 and the Fair Administrative Action Act make clear is that any person who will be adversely affected by an administrative action must have meaningful opportunity to be heard and to make representations on the issue. In particular, the person must be informed of the nature of the case against him so that he can adequately respond to it. That did not happen here even though the 1st Respondent understood that its decisions would adversely affect the Applicants.

25. The second sub-issue is whether the 1st Respondent was within its powers to make the decision which was communicated vide its letter dated 30/06/2016. The Applicants argue that the 1st Respondent acted ultra vires. The 1st Respondent insists that it was within its powers to take that decision.

26. Both parties agree that the governing section of the law regarding this question is Section 18 of the Societies Act. That section reads as follows:

(1) If the Registrar is of the opinion that a dispute has occurred among the members or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of thesociety, the Registrar may, by order in writing,require the society to produce to him, within onemonth of the service of the order, evidence of thesettlement of the dispute and of the properappointment of the lawful officers of the society or ofthe institution of proceedings for the settlement ofsuch dispute.

(2) If an order under subsection (1) of this section is not complied with to the satisfaction of the Registrar within the period of one month or any longer period which the Registrar may allow, the Registrar may cancel the registration of the society.

(3) A society aggrieved by the cancellation of its registration under subsection (2) may appeal to the High Court within thirty days of such cancellation.

27. By its express words, this section does not give the 1st Respondent the right to revoke elections as he did in this case. It permits the 1st Respondent to cancel registration where the members of an organization persist in wrangles within the organization and fail to satisfy the 1st Respondent that they have resolved the wrangles. Here, while the 1st Respondent was within his rights to conclude that there were wrangles – there is no evidence that he took the step required under Section 18(1): to order the parties to submit evidence that the dispute had been resolved. Further, the 1st Respondent took a step not anticipated and not permitted under the Act: ordering for revocation of all elections held since 2007.

28. Justice Odunga explained the need for public authorities to stick to the mandate granted to them by law and not to exceed those powers otherwise the Court will quash decisions taken in excess of the powers granted in Republic v Registrar of Societies Ex-Parte Applicants: Francis KirimaM’ikinyua, John Wainaina Ndungu and Peter Kibe Mutiga(suing as the officials of Zimman Settlement Scheme Society) & 12 others [2014] eKLR. Justice Odunga stated thus:

In my view 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 Ltd2 Others [2004] 2 KLR 530 it 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. Similarly, in East AfricanRailways Corp. vs. Anthony Sefu Dar-Es-SalaamHCCA No. 19 of 1971 [1973] EA 327, it was held that it has been recognised for a long time past, that courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it. An administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law. See R vs. Barnet London Borough Council Ex Parte Nilish Shah [1983] 1 ALL ER 226at240.

29. In this case, the 1st Respondent’s powers, authority and mandate are expressly donated by Statute. The 1st Respondent is bound to stick to the express mandate in the statute in the performance of his work. Here, the 1st Respondent clearly exceeded that authority and mandate. Hence, the 1st Respondent exceeded the power bestowed upon him by the statute. Having acted ultra vires, the decision made cannot stand.

30. One of the grounds relied on by the Applicants was that the decision by the 1st Respondent is illegal because it was actuated by bias and extraneous considerations. They argue that the action was instigated by the 2nd and 4th Respondents who, by the time the 1st Respondent was acting, were not even members of the Association. The evidence they adduced in support of this claim is that the 1st Respondent met with the 2nd and 4th Respondent and appeared to be acting from information gathered from them. I have found little evidence to sustain the charge of bias by the 1st Respondent. The 1st Respondent could not have been aware that the 2nd and 4th Respondents had voluntarily resigned from membership in the Association as claimed by the Applicants and so it would be unfair to assign bias on account of this.

31. Lastly, the Applicants complained that the directive given by the 1st Respondent is unreasonable and incapable of implementation since one of the official who was supposed to assume leadership pursuant to that direction is deceased while two others voluntarily resigned from the Association and registered another rival association (which was subsequently deregistered). One other official voluntarily resigned his position.

32. In addition, one of the official who was to be reinstated was duly expelled from the Association on 28/04/2015 for misconduct. This complain seems to have substance and accentuates the finding made by the Court above that the Statute permits the 1st Respondent to order the members to solve the dispute on their own and table evidence of resolution. This is because the 1st Respondent is not expected to have all the details of the organization and neither is the 1st Respondent expected to serve as a Tribunal to hear competing factual accounts before coming up with a verdict.

33. The factual allegations by the Applicants about the death of one of those directed to return as an official as well as the resignation of four others are not contested and are thereforetaken to be true. This would mean that the directive is patently unreasonable on the face of it.

34. Having come to these findings, it follows that the impugned decision by the 1st Respondent was illegal, ultra vires and irrational.

35. The 1st Respondent suggested that the Applicants are unworthy of the orders of Judicial Review by virture of their conduct. The 1st Respondent was referring to the refusal by the Applicants to settle the matter both when such efforts were initiated by the 1st Respondent long before the impugned decision was taken as well as when the Court attempted a court-directed mediation in which some tentative solution was reached but allegedly the Applicants reneged on the solutions arrived at during the court-directed mediation meeting.

36. According to Halsbury’s Laws of England4th Edn. Vol.1(1) para 12 page 270:

“The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus)…are all discretionary. The Court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court will take into account the conduct of the party applying, and consider whether it has not been such as to disentitle him to relief. Undue delay,unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question, would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfilment. The Court has an ultimate discretion whether to set aside decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief.” [Emphasis added].

37. It is true that there are certain situations where a Court will refuse to grant orders of Judicial Review even where it finds a public body had acted illegally. The conduct of the Applicant is one of the considerations that the Court looks at in arriving at that decision. Here, I am not satisfied that the conduct of the Applicants has been so unreasonable as to warrant the denial of the orders sought. I note that refusal to make the orders sought will actually lead to more uncertainty and chaos in the Association since, as pointed out above, some of the officials reinstated by the 1st Respondent are either dead or have resigned from the Association.

38. Consequently, I find merit in the Notice of Motion dated 11/10/2016 and I grant the following orders:

a. An order of certiorari is issued removing into this Court for purposes of being quashed the decision of the Registrar of Societies contained and communicated in a letter dated 30/06/2016 cancelling all the elections held by Kinale Forest Conservation Association since 2006, reinstating officials who were in office in 2007, and calling for elections to be presided over by the reinstated officials which decision is hereby quashed.

b. There shall be no order as to costs given the conduct of the Applicants to submit to mediation and out-of-court settlement in a matter that was eminently solvable through that forum.

Delivered at Kiambu this 17thday of July, 2017.

.........................................

JOEL NGUGI

JUDGE