[2015] KEHC 7685 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

J.R. CASE NO 105 OF 2015

REPUBLIC…………………………………..APPLICANT

VERSUS

THE UNIVERSITY OF NAIROBI……………1ST RESPONDENT

THE STUDENT ORGANIZATION OF

NAIROBI UNIVERSITY (SONU)...............2ND RESPONDENT

Exparte

MWANGI NDERITU

RULING

On 7th May, 2015 the Court (Lenaola, J) granted leave to the ex parte Applicant (Mwangi Nderitu) to commence judicial proceedings and apply for orders of certiorari and prohibition as set out in his chamber summons application for leave filed on 2nd April, 2015. The question as to whether the leave granted would operate as stay of the decision of the respondents was slated for inter partes hearing on 17th April, 2015.

The University of Nairobi is the 1st Respondent whereas the Student Organization of the Nairobi University (SONU) is the 2nd Respondent.

When the matter come up for hearing on 17th April, 2015 Ms Chemator for the respondents informed the Court that the respondents had filed a preliminary objection dated 13th April, 2015.

Through the preliminary objection, the respondents oppose the Applicant’s case on two grounds namely that this Court has no jurisdiction to hear and determine the matter in view of Article 35 of the SONU Constitution and that the prayers sought by the Applicant had been overtaken by events since the SONU elections were successfully held on 30th April, 2015 under the 2015 SONU Constitution.

According to the respondents, the ex parte Applicant seeks to challenge the amendments to the SONU Constitution and this challenge falls under Article 35 of the SONU Constitution which provides that:

“1. All disputes regarding the interpretation and implementation of this Constitution shall, as provided by Article 159 of the Constitution of Republic of Kenya 2010, first be solved through the following:

Good offices.

Mediation.

Conciliation.

Negotiation

2. Where such methods as described above fail, parties shall proceed to arbitration.

3. For purposes of Section 2 above, there shall be an Arbitrator who shall be appointed by the Parliament from among members of the University staff on the recommendation of Parliament, subject to the approval of the Vice Chancellor.”

6. The respondents’ case is that this Court has no power to deal with matters concerning the interpretation and implementation of the SONU Constitution.

7. It is the respondents’ position that this Court can only deal with matters in which it has jurisdiction. The case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1is cited in support of this proposition. In that case Nyarangi, JA opined that without jurisdiction a Court had no power to make one more step. The respondents assert that this Court can only come into the picture after an Arbitrator has made an award.

8. On behalf of the ex parte Applicant, counsel submitted that Article 35 of the SONU Constitution is limited to disputes regarding the interpretation and implementation the Constitution and the complaint before this Court in respect to the amendment of the Constitution which is not governed by Article 35.

9. In support of this argument counsel for the ex parte Applicant referred the Court to the definitions of the words interpretation, amendment and implementation. He submitted that the 9th Edition of Black’s Law Dictionary defines interpretation as “[t]he process of determining what something, esp. the law or a legal document, means; the ascertainment of meaning to be given to words or other manifestations of intention.”Amendment is defined by the same dictionary as “[a] formal revision or addition proposed or made to a statute, constitution, pleading, order or other instrument....motion, etc.”As for the term implementation, the 11th Edition of the Concise Oxford English Dictionary defines it as “to put into effect.”

10. Relying on these definitions, the ex parte Applicant posits that Article 35 of the SONU Constitution as drafted does not incorporate issues of amendment as the same is totally different from either interpretation or implementation. The ex parte Applicant submits that amendment cannot be construed to be synonymous with either interpretation or implementation.

11. Further that through Article 39, the SONU Constitution provides for matters of amendment. Article 39 of the SONU Constitution provides:

“1) Any Member of Parliament may propose an amendment of the Constitution by bringing to Parliament for debate a motion to amend the Constitution.

2) Parliament shall pass the motion by a two thirds majority of the Members.

3) Any amendment to this Constitution shall be effected when approved by at least two-thirds of the bona fide members of SONU and the Council.”

12. It is the ex parte Applicant’s case that he seeks to challenge the decision by the University of Nairobi’s Senate to amend the SONU Constitution in that the Senate has no power to amend the Constitution. His position is that by moving the amendments, the Senate cannot be said to have been ascertaining the meaning of any provision of the SONU Constitution or putting any provision into effect as it did not have the locus to do so. The ex parte Applicant submits that the acts and/or omissions of the respondents are excesses that cannot be sufficiently addressed through an internal resolution mechanism.

13. The ex parte Applicant asserts that it would be unrealistic to expect any fruitful alternative resolution of this dispute without the Court’s intervention as the 1st Respondent is the entity which sanctioned the illegal amendments to the 2nd Respondent’s Constitution.

14. In support of the contention that the courts can intervene in the affairs of domestic bodies, reliance is placed on the decision in Daniel Nyongesa & others v Egerton University College, C.A. No. 90 of 1989 where it was stated that:

“Courts are very loth to interfere with decisions of domestic bodies and tribunals including College bodies. Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when the Courts are moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side. It is the duty of Courts to curb excesses of officials and bodies who exercise administrative or disciplinary measures. Courts are the ultimate custodians of the rights and liberties of people whatever the status and there is no rule of law that Courts will abdicate jurisdiction merely because the proceedings or inquiry are of an internal disciplinary character.”

15. According to the ex parte Applicant, under Article 165 of the Constitution of Kenya this Court has unfettered jurisdiction to entertain the dispute herein and there is no provision in the laws of this country to curtail the jurisdiction of the Court in the present case. The ex parte Applicant therefore urged the Court to dismiss the respondents’ preliminary objection.

16. As was stated in Mukisa Biscuit Manufactures Co. Ltd v West End Distributors Ltd [1969] E.A. 969a preliminary objection raises a pure point of law and is argued on the assumption that all facts pleaded by the other side are correct. It may dispose of the suit. However, it cannot be raised where the facts are disputed or where the exercise of judicial discretion is sought. The respondents’ preliminary objection falls into the said definition and I will therefore proceed to consider it on merit.

17. Article 35 of the SONU Constitution is titled “Dispute Resolution”. It is the provision which gives guidance on how any disputes regarding the interpretation and implementation of the SONU Constitution are to be handled. Article 39 on the other hand is titled “Amendment of the Constitution”. This Article provides for the procedure to be used in amending the Constitution.

18. The ex parte Applicant’s contention in his judicial review application is that the SONU Constitution was amended outside the provisions of Article 39. He believes that this is an illegality that can only be addressed by engaging the supervisory mechanism of this Court.

19. It is indeed true that Article 165(6) of the Constitution empowers this Court to exercise supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. That power should, however, be exercised within the parameters of the Constitution and the laws of the country.

20. Article 159 of the Kenyan Constitution instructs the courts and tribunals on how to exercise judicial authority. Under clause (2) the principles to guide the courts and tribunals in exercise of judicial authority are enumerated. Among those principles include the need for the courts and tribunals to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

21. The members of SONU have in their wisdom found it necessary to adopt alternative dispute resolution mechanisms in dealing with any matter concerning the interpretation and implementation of their Constitution. Whether or not the alleged amendment of the SONU Constitution contravened Article 39 of the Constitution of that organization is a matter for interpretation. The procedure for resolving that question is clearly provided by Article 35 of the SONU Constitution. Article 35 is the provision that establishes the ground rules for the interpretation and implementation of all the other provisions, including Article 39, of the SONU Constitution.

22. It would be tragic and illegal for this Court to barge into the affairs of SONU in the pretext of exercising supervisory jurisdiction under Article 165 (6) of the Constitution. In my view the Daniel Nyogesa & others (supra)case cited by the ex parte Applicant cannot aid him as that matter involved disciplinary proceedings and had nothing to do with the relationship of members of an organization as is the current case.

23. Where, the Constitution of an organization has provided the procedure for doing something, the procedure should be followed. It is only after the procedure is exhausted that the facilities of courts should be resorted to. Litigation is expensive and time consuming and I do not think that members of SONU who are busy building their professional careers through studies have time for court battles. That is not to say that the SONU Constitution can be ignored. Anything touching on its interpretation and implementation should be addressed through Article 35 of that Constitution.

24. The ex parte Applicant appears to hold the view that the illegality he wishes to have quashed is so grave that it is only this Court that can provide a solution. That is a wrong attitude. Kenyans must learn to use alternative dispute resolution mechanisms more so when the same have been provided for by the constitution of the organization. It is only if the alternative process gives absurd outcomes that the courts should be resorted to.

25. I agree with the respondents that these judicial review proceedings are premature as the ex parte Applicant has not exhausted or even attempted to engage the dispute resolution mechanism provided by Article 35 of the SONU Constitution. The respondents’ preliminary objection has merit and the same is upheld. The leave granted to the ex parte Applicant on 7th April, 2015 is set aside and these judicial proceedings are struck out with no orders as to costs.

26. Although the ex parte Applicant had in his submissions dated 25th June, 2015 urged this Court to facilitate structured alternative dispute resolution, I find that the request cannot be allowed as the stage for harnessing this Court’s input has not been reached.

Dated, signed and delivered at Nairobi this 30th day of Sept., 2015

W. KORIR,

JUDGE OF THE HIGH COURT