[2022] KEHC 11886 (KLR)

Samuel & 2 others v The Registrar Of Societies & another; Matolo & 2 others (Interested Parties) (Judicial Review E140 of 2021) [2022] KEHC 11886 (KLR) (Judicial Review) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11886 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E140 of 2021

AK Ndung'u, J

July 21, 2022

Between

Peter Nioroge Samuel

1st Applicant

John Mwaura Mutuma

2nd Applicant

Musa Omari

3rd Applicant

and

The Registrar Of Societies

1st Respondent

The Honourable Attorney General

2nd Respondent

and

Bob Matolo

Interested Party

Samuel Mutunga

Interested Party

Ziwani Welfare Society

Interested Party

Ruling

1. The ex parte applicants (hereinafter “the applicants”) moved this court vide a notice of motion application dated October 11, 2021 seeking the following orders:1. Spent.

2. Spent.

3. That this honourable court be pleased to grant leave to the applicants for an order of prohibition directed to the 1st respondent herein prohibiting him from receiving returns, acknowledging, ratifying any action and inaction carried by the interested parties herein or their agents, servants or anyone claiming under them respectively as officials, office bearers that is Chairperson, Treasurer, Secretary of Ziwani Welfare Association.

4. That this honourable court be pleased to grant leave to the applicants herein for an order of mandamus compelling the 1st respondent to suspend, deregister, revoke Ziwani welfare Association for failure to carry out election when due and failure to file annual return.

5. That the leave to operate as a stay as against any actions or inactions of the respondents and interested parties herein pending the final hearing and determination of the suit.

6. That the costs of this application be provided for

2. The application is founded on the grounds set out on the face therein and the supporting affidavit sworn by Peter Njoroge on even date.

3. In response to the said application, the 1st to 3rd interested parties (hereinafter “the interested parties”) raised a preliminary objection dated November 15, 2021 on grounds that the applicants lack locus standi to institute judicial review proceedings since they are not registered and paid up members of the 3rd interested party. The court therefore directed on November 16, 2021 that the preliminary objection be addressed first by the parties and be canvassed by way of written submissions.

4. The interested parties filed written submissions dated December 9, 2021 in support of the objection. Counsel submitted that the application dated October 11, 2021 herein is in relation to an election which ought to have been carried out by the 3rd interested party and the said election is not a matter of public interest therefore meaning the locus standi should fall within the ambits of article 258(2)(b) of theConstitution. Be that as it may, counsel argued that the applicants are not members of the 3rd interested party and thus lack the locus to institute the instant proceedings as exhibited in the 3rd interested party’s members’ register and marked as “BM1”.

5. Counsel further urged that anyone who moves the court for judicial redress in cases of this nature must be acting bona fides with a view to vindicate the cause of justice and not for their personal gain or private profit or out of political/ selfish motivation. Accordingly, the application is aimed at circumventing the law, is fatally defective and gross abuse of the court process. Counsel therefore urged that the preliminary objection is merited as it is purely on a point of law and should be upheld in the interest of justice.

The Applicants’ Case 6. In response to the objection, the applicants filed a replying affidavit sworn by the 1st applicant on December 7, 2021. He deponed that the preliminary objection is an abuse of the court process, malicious and scandalous as it raises issues that have been rebutted by evidence. Secondly, the issue of locus can be confirmed by the 1st respondent producing authentic returns filed as at 2021 which shall show a list of members including the applicants herein. The applicants did not file written submissions on the same.

Analysis and Determination 7. The law on what constitutes a valid preliminary objection is now well settled. The Court in Charles Onchari OgotivSafaricomLtd&anor [2020] eKLR stated;“(9)This court is aware of the leading decision on preliminary objections where the Court of Appeal for East Africa, then the highest court for purposes of this jurisdiction and the others in East Africa in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, where Law, JA and Newbold, P (both with whom Duffus, VP agreed), respectively at 700 and 701, held as follows:Law, JA.:“So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection on the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”Newbold, P.:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.”

8. In David Nyekorach Matsanga & another v Philip Waki & 3 others [2017] eKLR, the three-judge bench of the High Court (Lenaola, J (as he then was), Odunga and Onguto, JJ) after considering various holdings of the Supreme Court of Kenya on question of preliminary objection held as follows:“We quickly turn to the question whether we have before us a preliminary objection proper. Traditionally, the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 has been the watershed as to what constitutes preliminary objections. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR also captured the legal principle when it stated as follows:“A preliminary objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

9. In Hassan Ali Joho & another v Suleiman Said Shabal & 2 others SCK Petition No 10 of 2013 [2014] eKLR the Supreme Court stated that:“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”

10. In the instant suit, the preliminary objection raised challenges the notice of motion dated October 11, 2021 on grounds that the applicants have no locus standi to institute judicial review proceedings since they are not registered and paid up members of the 3rd interested party. In response, the applicants contend that the preliminary objection is an abuse of the court process as the issue raised therein can be rebutted by evidence.

11. Applying the above principles to this application, it is clear to me that the issue of membership of the applicants is one which has to be ascertained through evidence and the preliminary point raised is incapable of disposing the suit. In my view therefore, it is not a pure point of law. In the premises, I find that the preliminary objection is not merited and is hereby dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21STDAY OF JULY 2022. AK NDUNG'UJUDGE