[2022] KEHC 12982 (KLR)

Washika v Board of Trustees Kenya Railways Staff Retirement Benefits Scheme (Judicial Review Miscellaneous Application E109 of 2022) [2022] KEHC 12982 (KLR) (Judicial Review) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12982 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E109 of 2022

AK Ndung'u, J

September 19, 2022

Between

Rodgers Were Washika

Applicant

and

Board of Trustees Kenya Railways Staff Retirement Benefits Scheme

Respondent

Ruling

1. By way of a chamber summons dated September 14, 2022 Rodgers Were Washika (hereinafter the applicant) moved this court for orders:1. Spent2. Leave be granted to the Applicant to apply for an order of certiorari to remove into this honourable court and quash the decision of the 1st and 2nd respondents denying the applicant from contesting in the forthcoming elections scheduled on September 20, 2022. 3.The leave so granted do operate as a stay of the decisions of 1st and 2nd respondents against proceeding with elections scheduled on the September 20, 2022 pending hearing and determination of the substantive application.4. An order of mandamus do and is hereby issued compelling the 1st and 2nd respondent to include the applicant’s name in the ballot for the upcoming elections slated for September 20, 2022. 5.The costs of this application be in the cause.

2. The application is anchored on a statutory statement and verifying affidavit of even date the gist of which is that the applicant is a member of the respondent. He applied to vie for elections for the position of representative to the respondent of Members of the Scheme following the advertisement of a vacancy in the Daily Nation of July 23, 2022.

3. It is the applicant’s case that the respondents have denied him the opportunity to participate in the elections scheduled for September 20, 2022 on the basis that he was unable to procure a Credit Reference Bureau report on his credit status. The applicant avers that the CRB report is not included in the election manual as a requirement.

4. The election manual is challenged on grounds that the manner in which the said manual is crafted and/or operationalized lacks transparency as it lacks participation of members of the trust and neither is it gazetted to make it a binding document and it goes against the presidential decree vide Legal Notice no 225 of November 5, 2021 suspending the negative listing of individuals.

5. The applicant contends that his listing by the CRB emanates from 1st respondent’s failure to pay to him pension increments of 3% and 5% respectively dating back from 2014 to date and other arrears of 3 months from July, 2022 to date.

6. The application is opposed vide a replying affidavit sworn by Isaac Sila, the chief executive officer of the 1st respondent.

7. Sila depones that the applicant applied to be considered as a candidate in the subject elections but he failed to meet the eligibility requirements. He was informed of the outcome vide a letter dated August 29, 2022. The grounds for disqualification are listed as:1. That the Ethics and Anti-Corruption form submitted was not stamped by the commission.2. That you did not provide a Credit Reference Bureau Certificate as requested.

8. An appeal before the election committee was not successful. The committee subsequently accepted the Ethics and Anti-Corruption form as part of the cleared documents after it was regularised but found the CRB clearance still unmet.

9. It is contended that the election manual was ratified by members in an annual general meeting and it makes the following provisions:i.Part 2 sets out the guiding principles which includes; equality and fairness, transparency and compliance.ii.Part 6 establishes the elections committee with a mandate to verify aspiring candidates' eligibility.iii.Part 7 provides the attributes and characteristics of aspiring candidates which includes; leadership and integrityiv.Part 9 makes provisions in relation to integrity and further provides that an aspiring candidate ought to have made an arrangement with his creditors.v.The election manual requires that an aspiring candidate must be nominated by at least 10 members on the nomination form before they are considered.vi.The nomination form further outlines various documents to be produced during submission.

10. It is urged that by virtue of completing the nomination form, the applicant subjected himself to the requirements which he partly complied with and is therefore estopped from disputing the relevance of the form and that the allegation on dues owed to him by the 1st respondent being the cause of his inability to secure CRBclearance report is beyond the scope of the Election Committee and this court.

11. The respondents maintain that the applicant has the onus to establish an arguable case on the basis that the decision maker of the impugned decision acted illegally ultra vires, irrationally and that the procedure was improper.

12. The application was canvassed through oral submissions. Counsel for the applicant submitted that the action by the respondents was not done fairly. It was arbitrary. It was irrational. The condition for CRB clearance is not in the manual.

13. It is urged that the applicant exhausted all other available remedies and is thus properly before this court. Reliance was placed on the decision in Lempaa Suyianka vs Nelson Havi & 14 Others, 2021 eKLR where it was held that courts are entitled to interfere where discretion has not been exercised judiciously. The discretion ought to be exercised rationally and fairly and not arbitrarily whimsically or in breach to the rules of natural justice.

14. Counsel cited clause 9. 8 of the election manual which gives the requirements for aspiring candidates. A CRB clearance is not one of the documents. It is urged that the applicant is owed by the 1st respondent, thus unable to clear loans and consequently is unable to obtain CRBclearance.

15. On the question of stay, counsel submitted that a prima facie case must be established. He asserts that the only issue is about the CRB certificate which is not a requirement in the election manual.

16. Reliance was placed on the case of Republic vs County Government of Embu, Ex parte Peterson Kamau, Embu Medical and Dental Clinic & 6 others [2022] eKLR for the proposition that the court considers whether the decision has been fully implemented. The court was also referred to the decision in Taib A Taib vs Minister for Local Government, Misc Appl No 158 of 2006 (Mombasa)

17. Counsel referred to Legal Notice No 225 which runs from October 1, 2021 to September 30, 2022. The notice is said to have suspended the operation of the credit reference in the period.

18. For the respondents, counsel submitted that a CRB report was a requirement for eligibility for the elections. It is urged that there was no requirement for gazettement of the manual. The manual establishes an election committee to vet aspiring candidates. It is a document approved by members at a general meeting. The requirements in the manual are geared towards compliance with chapter 6 of the Constitution. Leadership and integrity is part of the principles applied.

19. The Legal Notice no 225 is challenged on the basis that the applicant was listed by the Credit Reference Bureau way back in 2014. The notice was to cushion persons for the effects of Covid 19. The Legal Notice period does not apply.

20. Reliance was placed on the decision in Republic vs Attorney General & 4 others (2014) eKLR for the proposition that the court is to consider if there is aPrima facie case.

21. It is urged that the issue of funds allegedly owed by the respondent to the applicant is outside the scope of this court. Issues of funds and arrears are contractual issues and are not fit for consideration by a Constitutional court.

22. Counsel submits that the court is being invited to deal with the merits of the committee’s decision on eligibility. The case of Council of Civil Service Union v Minister for Civil Services 1985, Ac374 is cited in that regard.

23. The question to pose, it is urged, is whether the committee acted illegally, irrationally or without procedural propriety. The court is also to consider the doctrine of proportionality. The act by the committee is defended as legal, rational and procedurally proper.

24. It was submitted that the applicant seeks to be exempted from a process subjected to all other candidates. None of the conditions provided under S 7(2) of the Fair Administrative Action Act have been satisfied.

25. The respondent further contend that the applicant is raising issues of accounts which the respondents have no opportunity to respond to and in any event, this is not the forum. The court is invited to take judicial notice of the fact that the 1st respondent is an institution with a large membership and holding funds for members. It is only reasonable that a member who wishes to represent members in the board of trustees be a person of integrity hence the requirement for aCRBClearance Certificate.

26. In rejoinder, counsel for the applicant has submitted that the documents listed as requirements in the nomination form exhibited are not requirements under the election manual. They were introduced to lock out the applicant. A letter from the RBA is challenged on the basis that there is no evidence that the author, Chief Manager Market Conduct, had authority of the CEO.

27. I have applied my mind to the chamber summons application, the statutory statement and verifying affidavit. I have considered the replying affidavit and the annexures thereto. I have had due regard to the learned submissions by counsel.

28. The issues that crystalize for determination are:1. Whether the applicant has achieved the legal threshold for the grant of leave sought.2. If 1 is in the affirmative, whether the leave should operate as a stay.3. Who bears the costs of this application?

29. A challenge mounted against an administrative body under the judicial review jurisdiction of this court must encompass the potential to show that the body acted illegally, irrationally or without procedural propriety. The court cannot go into the merits of the decision so long as a scrutiny of the process demonstrates no illegality, irrationality or procedural impropriety.

30. At this stage it is important to revisit the parameters of judicial review jurisdiction. The said parameters were set out by the Court of Appeal inMunicipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No 185 of 2001 in which it was 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."

31. In Republic vs Kenya Revenue Authority Ex parte Yaya Towers Limited [20081 eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under theRepublic v Secretary County Public Board & another Ex parte Hulbai Gedi Abdille [2015] eKLR guise of preventing abuse of power, be itself, guilty of usurpation of power. See Halsbury’s Laws of England 4th Edition Vol (1)(1) Para 60.

32. The committee had the mandate to vet aspiring candidates and to ensure they met all criteria. As correctly stated by the applicant, clause 9. 8 on nominations in the election manual provides that an applicant is required to present an application letter, a passport size photograph (coloured) and a certificate of good conduct.

33. I have perused the lection manual. Under clause 8. 4 thereof, all nominated members will undergo a fit and proper assessment as prescribed in the Trust deed and the Rules. Under the selection rules under clause 7 of the Rules, a candidate shall, at a minimum, possess the following attributes and characteristics:7:1 Leadership and Integrity7:2 Commitment and devotion to duty7:3 Providence

34. To achieve the requirements in clause 7 above, I have noted that the nomination forms contains requirements to be met by candidates which include clearance certificates from Criminal Investigation Department, Tax Compliance Certificate, Ethics and Anti-Corruption Commission, Credit Reference bureau and Higher Education Loans Board.

35. A plain reading of these requirement would show that the same are geared towards achieving the threshold of leadership and integrity among the candidates. The Committee cannot therefore be faulted for demanding from applicant’s documents that would enable it achieve compliance with clause 7 of the elections manual.

36. I have noted the allegation that the applicant was unable to clear with the CRB arising from monies in arrears owed to him by the 1st respondent stretching way back from 2014. I hasten to add, and I agree with counsel for the respondents in that regard, that such a dispute is a contractual one requiring verification in a proper forum and cannot be accommodated within the narrow strictures of judicial review.

37. The question whether the applicant is owed by the respondent thus making him unable to meet his financial obligations falls outside the purview of judicial review. The court lacks the necessary wherewithal in law and procedure to ventilate the dispute on contractual issues of pension and accounts. Such jurisdiction is well provided for in our laws and the applicant’s issues arising in that dispute ought to be directed to the proper forum. This court as constituted is concerned with whether the committee’s decision is legal, rational and in compliance with procedural propriety. I find nothing illegal, irrational, or any procedural impropriety in the committee vetting out the applicant for failure to meet established criterial of leadership and integrity.

38. The respondent is a sensitive body carrying on its shoulders a heavy responsibility of taking care of the welfare of a big membership. Anyone sitting in leadership in it must be of impeccable credentials and beyond reproach.

39. In the end, I must reach the inevitable conclusion that the applicant has not established an arguable case that would require ventilation at a substantive hearing. There is no demonstration that prima facie, the respondents acted illegally, irrationally or without procedural propriety.

40. Having so found issue no 2 set out above becomes moot.

41. With the result that the chamber summons application dated September 14, 2022 is dismissed. In view of the early stage at which the summons is dismissed, I direct that each party bears its own costs.

Dated signed and delivered at Nairobi this 19th Day of September, 2022………………………………………A.K. NDUNGUJUDGE