https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11306

World Solidarity Recruitment Ltd v Murigi & another (Constitutional Petition E016 of 2025) [2026] KEHC 11306 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11306 (KLR) Republic of Kenya In the High Court at Mombasa Constitutional Petition E016 of 2025 J Ngaah, J July 24, 2026 Between World Solidarity Recruitment Limited Petitioner and Virginia Njoki Murigi Respondent and The Registrar of Societies Interested Party Ruling The application 1.By a notice of motion dated 5 May 2025 and expressed to be brought under Articles 22, 23 and 165 of the Constitution and rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the petitioner seeks, in substance, the following orders pending the hearing and determination of the petition:a)a conservatory order restraining the respondent, together with any persons purportedly elected at the meeting held on 24 April 2025, from holding themselves out as officials of the Kenya Association of Private Employment Agencies (hereafter “KAPEA” or “the Association”), from undertaking any activities on behalf of the Association, and from interfering with or usurping the authority of what the petitioner describes as the Association’s lawful leadership;b)an order directed at the interested party to refrain from recognising, registering or in any manner acting upon the purported election of the respondent and her associates;c)an order restoring what the petitioner describes as the status quo ante, namely, that Mr. Juma Omar Mwangala serve as the chairperson of the Association, Mr. Mwalimu Mwaguzo as interim secretary and Mr. Gerald Maina as interim treasurer; and,d)a structural interdict declaring the elections held on 24 April 2025 unconstitutional, unlawful, null and void; directing the respondent to surrender all the Association’s property, documentation and records to the interim officials within twenty-four hours; and ordering the respondent and her associates to desist from all governance activities within or on behalf of the Association. 2.The motion also sought costs. It is supported by the grounds on its face and by the affidavit of Al Amin Athman Omar, a director of the petitioner, sworn on 4 May 2025. The petitioner’s case 3.The petitioner is a limited liability company and a member of KAPEA, a society registered under the Societies Act, chapter 108 of the Laws of Kenya. According to the deponent, the respondent was elected secretary general of the Association at its annual general meeting held in the year 2023. 4.The deponent avers that, following her election, the respondent conducted herself in a manner that attracted disciplinary complaints; that a special general meeting of the Association was convened and held at Mombasa on 13 September 2024 at which those complaints were tabled; and that the members resolved to remove the respondent from office. Minutes of the meeting are exhibited as annexure “AAO 2”. The deponent further exhibits, as annexure “AAO 3”, a document styled “Executive Order No. 1 of 2025” dated 6 February 2025 by which the removal of the respondent and one other official is said to have been communicated to various public agencies. 5.It is the petitioner’s case that notwithstanding her removal, the respondent issued a notice dated 29 March 2025 convening elections of the Association, which elections were purportedly conducted at Nairobi on 24 April 2025. The petitioner impugns the meeting and the elections on five grounds: first, that under the Association’s constitution meetings are convened by the secretary, an office the respondent no longer held, and she therefore lacked the capacity to convene the meeting; secondly, that the notice was not accompanied by the minutes of the previous annual general meeting and the audited accounts of the Association as its constitution requires; thirdly, that the meeting did not attain the quorum of one-half of the ordinary members prescribed for a general meeting at which elections are held; fourthly, that the meeting was not presided over by the chairperson of the Association contrary to its constitution; and, fifthly, that the respondent has declined to furnish the petitioner with the minutes of the meeting. A copy of the Association’s constitution is exhibited as annexure “AAO 5”. 6.On the strength of these complaints the petitioner asserts, in the petition, a violation of its rights to freedom of association guaranteed by Article 36 of the Constitution and to fair administrative action guaranteed by Article 47, and expresses the apprehension that unless restrained, the persons said to have been elected at the meeting of 24 April 2025 will hold themselves out and act as officials of the Association, thereby occasioning confusion in its governance and rendering the petition nugatory. The response to the application 7.The motion was presented under a certificate of urgency. By a ruling delivered on 9 May 2025, I declined to certify the application urgent and directed that the motion, together with the petition, be served for directions on the manner of its disposal on 27 May 2025. 8.According to the affidavit of service of Atieno Ogolla, advocate, sworn on 26 May 2025, the interested party was served physically at its offices on 21 May 2025 while the respondent was served on 26 May 2025 through her mobile telephone number by way of the WhatsApp messaging platform; the advocate has exhibited the exchange evidencing receipt. I am satisfied, on the material before me, that both the respondent and the interested party were duly notified of these proceedings and of the motion. Notwithstanding service, neither the respondent nor the interested party entered appearance or filed any response; only the petitioner filed written submissions. The motion is, to that extent, unopposed. The absence of opposition does not, however, entitle the applicant to the orders sought as a matter of course; the court must nonetheless satisfy itself that the orders are merited in law and on the material placed before it. Principles applicable to conservatory orders 9.The jurisdiction invoked is that donated by Article 23(3)(c) of the Constitution, which empowers the court, in proceedings brought for the enforcement of the Bill of Rights, to grant appropriate relief including a conservatory order. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR the Supreme Court explained the nature of that remedy in these terms:“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels of the claims before the Court. 10.The considerations that guide the exercise of this jurisdiction, distilled in decisions such as Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR and Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR, are whether the applicant has demonstrated an arguable prima facie case with a likelihood of success, and whether, absent the conservatory order, the applicant stands to suffer prejudice or the substratum of the petition risks being dissipated such that the petition would be rendered nugatory. 11.Implicit in the first of these considerations is an assumption that must be interrogated before anything else: that the petition in aid of which the conservatory order is sought properly invokes this court’s jurisdiction under Articles 22 and 23 of the Constitution. A conservatory order is a remedy in aid of the enforcement of the Bill of Rights; it is not available in aid of a cause which, properly characterised, presents no constitutional question at all. An applicant cannot, in other words, demonstrate an arguable case with a likelihood of success in a constitutional petition if the dispute it presents is not, in truth, a constitutional dispute. That threshold question arises squarely on the face of this petition, and it is to it that I now turn. Nature of the dispute 12.Stripped of the constitutional language in which it is dressed, the petitioner’s complaint is that a meeting of the members of a registered society was convened by a person without authority to convene it; that the notice convening it did not comply with the society’s constitution; that the meeting was inquorate and improperly presided over; and that the elections conducted at it are, for those reasons, invalid. Every one of these complaints is measured, not against the Constitution of Kenya, but against the registered constitution of the Association. The dispute, in short, is a dispute among the members and rival officials of a registered society as to the identity of the persons properly constituted as its officers. For the avoidance of doubt, the petitioner has pleaded; inter alia, as follows:“The Petition is also founded on the Societies Act (Cap. 108), and the internal Constitution of KAPEA as registered and regulated by the Registrar of Societies.” 13.The starting point in characterising such a dispute is that the constitution and rules of a society constitute a contract between the members inter se and between the members and the society: Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329. A complaint that a meeting was convened, or elections conducted, in breach of those rules is, in essence, a complaint of breach of contract. For such a complaint the ordinary civil courts afford complete relief: declarations as to the validity or invalidity of the impugned meeting and elections, injunctions restraining those who claim office under them, and, where proved, damages. 14.The matter does not, however, rest on the common law alone. Parliament anticipated disputes of precisely this kind and made provision for them in section 18 of the Societies Act, which provides as follows:18.Disputes as to officers(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 the society, the Registrar may, by order in writing, require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such 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. 15.Three things emerge from this provision. First, the legislature contemplated that disputes would arise among the members or officers of registered societies as to who has been properly constituted an officer; the present dispute falls within the very words of the section. Secondly, the statutory scheme is that such disputes are resolved either by settlement among the members themselves or through “the institution of proceedings for the settlement of such dispute” — that is to say, ordinary proceedings for the settlement of what the Act treats as a private dispute — with the Registrar superintending the process through the sanction of cancellation of registration. Thirdly, nothing in the Act elevates a dispute of this character into a violation of the Bill of Rights; on the contrary, the Act assumes that the dispute is justiciable, and will be settled, in the ordinary way. 16.Where the law has prescribed an avenue for the resolution of a particular species of dispute, the principle in Speaker of the National Assembly v James Njenga Karume [1992] KLR 21 applies: where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. To the same effect is the doctrine of constitutional avoidance, which the Supreme Court stated in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR in the following terms:The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. 17.The doctrine was restated by the Court of Appeal in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR, and its practical corollary was expressed thus in Bernard Murage v Fineserve Africa Limited & 3 others [2015] eKLR:Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy be pursued first. 18.The invocation of Articles 36 and 47 of the Constitution does not alter the character of the dispute. As to Article 36, the petitioner’s freedom to form, join and participate in the activities of an association is not in jeopardy; no one has excluded the petitioner from the Association or restrained it from associating. What the petitioner complains of is that an internal election was conducted in breach of the Association’s own rules. Members who fall out over the outcome or conduct of an internal election do not, by that fact alone, suffer an infringement of the constitutional freedom of association; they have a dispute under the contract that binds them. As to Article 47, even on the most generous view of what constitutes administrative action, the gravamen of the complaint remains non-compliance with the Association’s constitution — a question of private law which the ordinary courts are perfectly equipped to decide without recourse to constitutional interpretation. The constitutional garb in which the claim is dressed adds nothing to it; and a cause of action complete under the ordinary law does not become a constitutional cause merely by being pleaded in the language of the Bill of Rights: see, by way of analogy, Uhuru Muigai Kenyatta v Nairobi Star Publications Ltd & another [2013] eKLR. 19.If confirmation were needed that the ordinary avenue is not merely available but efficacious, it is supplied by the petitioner’s own evidence. Annexed to the affidavit of service is a letter dated 19 May 2025 by the petitioner’s advocates to the interested party in which the advocates disclose the pendency of MCCC No. 1489 of 2024 — Juma Omar Mwangala v Registrar of Societies & Virginia Njoki Murigi, an ordinary civil suit before the magistrates court which, in the advocates’ own words, challenges the lawfulness of the meetings and elections convened by the respondent and will determine the legitimacy of any resulting leadership structures, and in which a ruling was expected on 28 May 2025. The very dispute this petition presents was, at the time the petition was filed, already the subject of ordinary civil proceedings instituted by the gentleman whom the petitioner asks this court to restore to office. Entertaining the petition would thus not only offend the doctrine of avoidance; it would set this court on a course parallel to that of another court seized of the same substratum, with the attendant risk of conflicting decisions. 20.The conclusion is inescapable. The dispute before the court is an internal dispute among the members of a registered society as to the election of its officers. It is justiciable, and adequately remediable, in an ordinary civil suit — the very mode of settlement the Societies Act contemplates in section 18 — and it raises no question requiring the interpretation or application of the Constitution. It follows that the petitioner has not demonstrated an arguable prima facie case with a likelihood of success in the petition as framed, and the first condition for the grant of a conservatory order is not met. A conservatory order under Article 23(3)(c) is a remedy in aid of the Bill of Rights; it is not available to police compliance with the contract constituted by a society’s registered constitution, for which the ordinary law provides. 21.Even if I were wrong in that conclusion, and the petition were properly before the court as a constitutional petition, prayers 3 and 4 of the motion would still be incapable of grant. Prayer 4 asks the court to declare, at the interlocutory stage, that the elections of 24 April 2025 were null and void — in substantially identical terms, the second of the final reliefs sought in the petition — and to compel the surrender of the Association’s property within twenty-four hours in consequence. Prayer 3 would have the court install named individuals in office when the validity of the special general meeting of 13 September 2024, upon which their claim to office entirely depends, is itself framed as an issue for determination in the petition, and when the persons whose purported election the order would sweep aside are not parties to these proceedings and have not been heard. A conservatory order preserves the substratum of a dispute; it does not grant, on untested affidavit evidence, the final relief the suit seeks. 22.For the reasons I have given, I come to the conclusion that the petition and not just the application for conservatory orders is misconceived and an abuse of the due process of this Honourable Court. It is hereby struck out. As the respondents did not respond to the petition or the application, I make no order as to costs. SIGNED, DATED AND DELIVERED ON 24 JULY 2026NGAAH JAIRUSJUDGE