1. The application before this Court is the Notice of Motion dated 22nd January 2024. It seeks the following orders:
1. AN ORDER OF CERTIORARI to remove into this court and quash the Respondents Election(s) and the results thereof, for the position of the Chairman and Deputy National Chairman of the Agricultural Society of Kenya held on the 17th August, 2023 save for Jane Chepkwony who had not withdrawn her candidature.
2. AN ORDER OF PROHIBITION directed towards the Respondents prohibiting the Respondents from listing as contestants. candidates who had withdrawn their candidature for the position of National Chairperson and Deputy National Chairperson of the Agricultural Society of Kenya. on or prior to 16th December, 2022
3. AN ORDER OF MANDAMUS declaring the Applicant herein as the duly elected candidate for the position of National Chairman of the Agricultural Society of Kenya.
4. IN THE ALTERNATIVE TO (iii) above an AN ORDER OF MANDAMUS directing the Respondents to call for elections. declaring the Applicant herein, Jack Tuwei & Dr. John Kennedy Omanga as the only successful applicant(s) for the position of the national Chairman of the Agricultural Socie1y of Kenya
2. The application is supported by a statutory statement dated 16th January, 2024 and Verifying Affidavit by Charles Apudo Owele sworn on even date.
3. It the Applicants’ case that he is a member of the Agricultural Society of Kenya having served in various capacities including; Life Governor, Chairman of the Nyanza Branch, Deputy National Chairman, Branch Committee and Council Member. Having served in the various capacities, the Exparte Applicant was qualified to contest and vie for the position of the National Chairman of the Agricultural Society of Kenya.
4. It is contended that The Agricultural Society of Kenya Constitution and rules, codified in the Green Book provides an elaborate process of National Election where any member wishing to vie for the position of the National Chairman may refer to when contesting for the said position.
5. According to him the process as is provided for includes:
a. As per Clause 1(D) of the Green Book of the Society after the five-year term all the positions of the National Chairperson and National Chairman fall vacant.
b. As per Clause 1(F) of the Green Book of the Society, the Chief Executive Officer is required to issue a formal notification to Council
Members, informing them that any who is interested in the National Chairperson position to submit their application for candidature. This, Notice is required to be issued not later than thirty (30) days before the deadline of submission being 28th January of the 5th Year.
c. Further, as per Clause 1(F) of the Green Book in the aforesaid notification, the Chief Executive Officer is required to list the conditions precedent for the candidature.
d. Further, as per Clause 1(F) of the Green Book all the interested Council members holding the position of Branch Chairman or Vice Patron, who desire to be candidates for the Position of National Chairman and Deputy National Chairperson are required to resign at the time of submission of candidature.
e. As per Clause 1(G) of the Green Book, an Electoral Committee which is a standing committee, that comes alive comes at the commencement of each electoral cycle (that is after every five years) and becomes sine die after the conclusion of the electoral process, scrutinizes all the applications for candidature, pre-qualifies and communicates to council members all successful candidates within three (3) days of the decision.
f. Upon successful communication ballots are prepared.
g. As per Clause 1 (G) (4) of the Green Book, Ballot Papers are prepared by the Electoral Committee, indicating the name(s) of the candidates who have declared their interests for the respective seats and have complied with the condition precedents.
h. As per Clause 1(I) of the Green Book the Election Committee sets the date and time of the election and issues an Election Notice to that effect. The Notice shall be given to Council Members within twenty one (21) days of the Election.
i. As per Clause 1(J) of the Green Book the Council Members shall vote at the Council meeting that precedes the Annual General Meeting for their preferred candidates for the National Chairman and Deputy National Chairman positions.
j. As per Clause 1 (0) of the Green Book the name of the National Chairman and Deputy National Chairman elect are placed before the subsequent Annual General Meeting of the Society for noting
6. The Applicants’ canvassed their application with written submissions dated 1st November, 2024.
7. It is their submission that one must be granted a hearing before a decision is made by an administrative and or anybody exercising a judicial function.
8. According to the Black's Law Dictionary, Seventh Edition at page 725 a, hearing in relation to Administrative Law has been described as
“Any setting in which an affected person presents arguments to an agency decision-maker."
9. While fair hearing is defined as,
“a judicial or administrative hearing conducted in accordance with the due process.”
10. Reliance is placed in the case of Republic v Board of Governors, Our Lady of Victory Girls School Kapnyeberai & another Ex-parte Korir Kipyego Joseph & another [2015] eKLR the court proceeded to state as follows:
“According to the Halsbury's Laws of England, (Administrative Law) Fourth Edition, 2001 Re-issue at page 218, paragraph 95, natural justice is defined as follows:-
Natural justice comprises two basic rules; first that no man is to be a judge in his own cause (nemojudex in causasua), and second that no man is to be condemned unheard (audialterampartem). These rules are concerned with the manner in which the decision is taken rather than with whether or not the decision is correct. The rules of natural justice must be observed by courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or necessary implication, or by reason of other special circumstances”.
11. Reliance is also placed in the case of Kanda -Vs- The Government of Malaya (1962) AC 322 as cited by Korir J. in the case of Republic -Vs- Inspector General Corporations &Another Ex ParteTitus K. Barmazai (2013) eKLR HC at Nairobi J. R. No.1082 of 2004, where rule of natural justice was summarized as:
“ln the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the maxims: Nemojudex in causasua: and Audi alterampartem. They have recently been put in two words, Impartiality and fairness. But they are separate concepts and are governed by separate considerations.”
12. It is contended that he has shown this court that the Respondents proceeded to allow the Interested Parties to be contestants whereas they had withdrawn their candidature, which withdrawal did not allow the Respondents to list the Interested Parties as contestants which action should be deemed as ultra vires and urges the Court to set aside the same.
Respondents’ case;
13. The 1st Respondent in response to the Applicants’ Notice of Motion dated 22nd January, 2024 filed a Replying affidavit by Batrum Muthoka sworn on 5th February 2024 written submissions dated 4th February, 2025.
14. It is their case that entire suit is incompetent and an abuse of the Court process for the following reasons:
a) the Applicant is guilty of material non-disclosure and misrepresentation of facts;
b) the suit is res-judicata;
c) the applicant has not exhausted the internal dispute resolution mechanisms; and
d) the orders sought are beyond the purview of judicial review.
15. It is posited that that execution of their mandate is guided by The Constitution of the Agricultural Society of Kenya Rev. 2017 2017 (hereinafter referred to as “the Society’s Constitution”) and The Rules of the Agricultural Society of Kenya Rev. 2017 otherwise referred to as “The Green Book” also hereinafter referred to as “the Society’s Rules”).
16. According to them, as provided for under rules-Article 20A to Article 22 of the Society's Constitution and Rule 1 of the Green Book that the Society had prepared to conduct elections on 28th February 2020 with the following list of qualified candidates:
National Chairman
1. Ms.Edith Onzere
2. Dr. Ken Omanga
3. Mr. Jackson Tuwei
Deputy National Chairman
1. Mr. John Kibira
2. Ms.MargaretAnami
3. Mr. Joseph jeru
4. Mrs. Jane Chepkwony
17. They proceeded and prepared to conduct elections on 28th February 2020 which were stopped pending the hearing and determination of HCJR 55 OF 2020 Charles Apudo Owelle v Annabella Kiriinya, and Batram Muthoka (Sued respectively as the Chairman and Chief Executive Officer of the Agricultural Society of Kenya & 6 others [2021] eKLR.
18. This coincided with the outbreak of the COVID 19 pandemic which led to the suspension of the Society’s Activities including the elections, shows and trade fairs among others through various Council Resolutions.
19. HCJR 55 OF 2020 was determined and the Election suspension orders were vacated.
20. Thereafter, the Chief Executive Officer issued a formal Notification to Council members informing those interested to submit their candidature for the positions of National Chairman and Deputy National Chairman including personalized notifications and letters dated 16th December 2022 to all earlier prequalified candidates requesting them to express their interest in running for office.
21. According to Respondents, one John Kennedy Omanga a pre-qualified candidate as per the circular of 29th January 2020 challenged the letter dated 16th December 2022 in HCJR E005 OF 2023 – Dr. John Kennedy Omanga vs Batram Muthoka & Others.
22. It was disclosed to the court that some candidates had withdrawn their interest in various positions following the receipt of the impugned letter dated 16th December 2022.
23. Judgement was delivered in his favour and the court barred the Respondents from calling for fresh applications and held that the elections were to be held as per the pre-qualified candidates in the bungled elections of 2020 and as a result of the Court declaring the process of re- application and the letter dated 16th December 2022 illegal, voluntarily rescinded their withdrawal letters and stated that they were entitled to be on the ballot as they had been pre-qualified vide the circular of 29th January 2020 and that they had a right to be on the ballot.
24. The candidates that withdrew their candidacy are:
a. Ms. Edith Onzere vide a letter dated 9th January 2022 (erroneously dated as the same was received in the Society's offices on 10th January 2023) withdrew from the position of National Chairperson.
b. Mr. John Kibira vide a letter dated 16th December 2022 withdrew from the position of Deputy National Chairman and applied for the position of National Chairperson.
c. Ms. Margaret Anami vide a letter dated January 2023 withdrew from the position of Deputy National Chairperson.
25. The Respondents contend that the Court was categorical that these candidates ought not to have been asked to “express their interest” or “re-apply” and that the next step was for the election process to commence from where it had reached prior to suspension by the Court Order in HCJR E055 of 2020.
26. The Society proceeded to hold its elections on 17th August 2023 with the following candidates on the Ballot as listed in the circular of 29th January 2020 and produced at page 16 of the Judgement in HCJR E005 OF 2023.
National Chairman
1. Ms.Edith Onzere
2. Dr. Ken Omanga
3. Mr. Jackson Tuwei
4. Mr. Charles Owelle
Deputy National Chairman
1. Mr. John Kibira
2. Ms. Margaret Anami
3. Mr. Joseph Njeru
4. Mrs. Jane Chepkwony
27. It is argued that the election process was conducted in a transparent manner. The votes were tallied in the physical presence of all the candidates and/or their agents, the election results were announced on the same day and an official communication sent to council dated 18th August 2023.
28. It is the Respondents case that The Applicant in HCJR E005 OF 2023 – Dr. John Kennedy Omanga vs Batram Muthoka & Others being dissatisfied with the inclusion of the Interested Parties on the ballot filed two separate applications:
a) Application dated 31st July 2023 seeking to cite the Respondents for contempt for including the Interested Parties on the ballot.
b) Application dated 18th August 2023 seeking to nullify the elections for inclusion of the Interested Parties.
29. The said applications were dismissed.
30. The Society’s Rules under Rule 1 M provide for the Society’s Election Dispute Resolution mechanism.
31. It is the Respondents’ case that the Applicant in the instant suit lodged an election appeal/complaint in respect to the elections held on 17th August 2023 the Returning Officer, Mr. Joseph Muhungu, delivered his decision on 19th December 2023 advising the Applicant to Appeal to the Electoral Committee which he did not.
32. It is submitted that the Applicant’s to follow the mandatory provisions of Order 53 of the Civil Procedure Rules renders the instant suit defective and thus it ought to be struck out with costs.
33. It is also submitted that the Application before this honorable court is res-judicata having been raised and dealt with in HCJR E005 OF 2023 – Dr. John Kennedy Omanga vs Batram Muthoka & Others with the commonality between the Applicant herein and the Applicant in HCJR E005 of being both of them were candidates in the impugned elections.
34. The Respondent argues that the issue of inclusion of the interested parties was before the Court and substantially determined in both the Judgement delivered on 27th June 2023 and the Ruling delivered on 1st December 2023. This then limits this Court’s jurisdiction to re-hear and expand the said Judgment and Ruling.
35. It is further submitted that the Applicant offends Section 9 of the Fair Administrative Actions Act 2015.
36. The Court of Appeal in Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR had the following to state in regards to exhaustion of remedies:
On the basis of the foregoing, the constitutional petition could not have seen the light of the day as well.
There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it.
It does not also matter that an applicant in judicial review proceedings need not exhaust all other available remedies. The invocation of judicial review jurisdiction of the court was in the circumstances premature and uncalled for. The first ground of appeal therefore succeeds.
37. It is the Respondents’ case that they did not breach any rule(s) and that the Applicant has failed to specifically plead and prove illegality, irrationality and procedural impropriety to warrant the judicial review orders sought.
38. Reliance is placed in the cases of Peninah Nandako Kiliswa v Independent Elections & Boundaries Commission & 2 others [2014] eKLR and MUNICIPAL COUNCIL OF MOMBASA VS REPUBLIC & ANOTHER, CA No 185 of 2001.
39. In Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (Civil Appeal 46 of 2012) [2016] KECA 729 (KLR) (Civ) (4 March 2016) (Judgment) held thus:
“Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7 (2) (j) identifies abuse of discretion as a ground for review while Section 7 (2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7 (2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review. Section 7 (2) (i)
(i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in Section 7 (2) (i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in Section 7 (2) of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in Section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.”
40. The Respondents contend that the prayers sought are beyond the ambit of the Court’s Jurisdiction as they are meant to invite the Court into an arena of being either the Society’s Council or the Society’s electoral committee which this court cannot Court cannot substitute its decision with that of the Society, as it has no such mandate.
41. On the issue of costs, the Respondent relies on Universal Engineering Works v Mohamedali Suleiman Essaji [1951] 2 LRK 99 as quoted in Odunga’s Digest on Civil Case Law and Procedure 3rd Edition Volume 4 at page 2228, where it reads. “Universal Engineering Works v Mohamedali Suleiman Essaji [1951] 2 LRK 99
[a] A successful litigant is entitled to costs unless there are good reasons for depriving him of costs.”
42. The Respondents pray that this suit be dismissed with costs to them.
Interested Parties’ case;
43. The Interested Parties in response to the Applicants’ Notice of Motion dated 22nd January, 2024 filed a Replying affidavit by Edith Onzere sworn on 6th February 2024 and written submissions dated 4th February, 2025.
44. The Interested Parties posit that the jurisdiction of a judicial review court is limited to administrative actions processes and/or decisions taken by an administrative body/person.
45. They argue that elections, do not constitute an administrative decision/action but rather a democratic right exercised by masses to choose officials.
46. Edith Onzere avers that she had applied for the position of National Chairperson for the society’s National Elections that were to be held in sometime in February 2020 and on 29th January 2020, she received formal communication from the society that she had been prequalified to vie for the position of National Chairperson in the upcoming elections which were suspended after the Exparte applicant herein sought such suspension in Nairobi HCJR No. E055 of 2020 Charles Owelle vs ASK.
47. She further avers that on 9th January 2023, she wrote to the 1st Respondent and stated that I wished to withdraw her candidature and 30th June 2023, rescinded her letter since the decision to asking her to reapply for a position she had been prequalified for was declared illegal. On 17th August 2023, the elections took place and she was declared the National Chairperson-elect after garnering 46 votes.
48. It is their case the conduct of the Respondents was strictly within the confines of the judgment of this Honourable Court in JR E055 of 2023 thus they did not act ultra vires.
49. They argue that the Application before this Honourable court is a thinly-veiled election petition seeking to nullify lawful and properly conducted elections of the society disguised as an application for judicial review.
50. It is their case that Rule 1M (a) of the Green Book provides a channel through which the complaints or disputes arising from the electoral process are to be addressed.
51. Further, any complaints with regard to an election must first be brought to the Returning Officer within 14 days from the occurrence of the event complained of.
52. The Ex Parte Applicant did file his complaint before the Returning Officer, was duly heard and determined time-barred having been lodged outside the prescribed timelines.
53. The Interested Parties contend that the Ex Parte applicant in JR No. E005 of 2023 advised the Applicant therein to utilize the society’s dispute resolution mechanisms to resolve any complaints they had regarding the elections thus the instant application offends the doctrine of exhaustion
54. It is their submission that Ab initio, the substantive motion should fail on account of being res judicata as the court conclusively dealt with the issues raised herein in JR No. E005 of 2023.
55. They place reliance in the case of court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] KECA 477 (KLR) where the court stated thus
The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common- sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.
56. The Interested Parties submit that the Applicant has brought this issue prematurely before exhausting all remedies available under the constitution of the Agricultural Society of Kenya.
57. They further submit that the Applicant has not presented before this court a prima facie case and that the substratum of the application has since been overtaken by events.
58. It is their case that Applicant has also failed to meet the threshold for the grant of Judicial Review orders in failing to prove that the decision was ultra vires.
Analysis and determination;
59. The issue for determination are;
1.Whether this court has jurisdiction.
2.Whether the orders sought can be granted.
3.Who will bear the costs.
Whether this court has jurisdiction.
60. Section (9) (2) of The Fair Administrative Action Act, 2015 provides in mandatory terms that;
“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”
61. Clifford Keya v Jackline Inguitiah & 5 others; Atieno Aoko & 3 others (Interested Party) [2022] eKLR,
62. The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable.
63. The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution.
64. The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act, 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.
65. In Jamlick Muriithi Mwenda v Law Society of Kenya & 10 others [2022] eKLR it was stated that;
‘the doctrine of exhaustion appears to be closely intertwined with the doctrine of constitutional avoidance which doctrine is also referred to as the constitutional avoidance rule. The doctrine is part of the wider doctrine of non-justiciability. Speaking to the doctrine of constitutional avoidance, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR observed thus: -
The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as: “The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held: The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
On the applicability of the doctrine of exhaustion in Kenya, suffice to say that the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: - In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.
66. Council of County Governors v Attorney General & 12 others [2018] eKLR
“Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”
67. In the instant suit The Society’s Rules under Rule 1 M provide for the Society’s Election Dispute Resolution mechanism.
68. It is not denied that the Applicant in the instant suit lodged an election appeal/complaint in respect to the elections held on 17th August 2023 the Returning Officer, Mr. Joseph Muhungu, delivered his decision on 19th December 2023 advising the Applicant to Appeal to the Electoral Committee which he did not.
69. The court is in agreement with the interested party that the Applicant has filed this suit prematurely and before exhausting all remedies available under the constitution of the Agricultural Society of Kenya.
70. Section 9 (1) of the Act provides an avenue for a party aggrieved by an administrative action to without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. This, is subject to exhausting all other available remedies.
71. Under Section 9 (3) “The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).”
72. In his verifying affidavit at paragraph three, the applicant confirms that the society is guided by the societies constitution 2017.
73. He further confirms that the green book and the constitution have made the provision for the conduct of the societies elections.
74. Before the elections, there were two suits that were filed, which has since been determined in line with the judgments that I have had occasion to look at being JR a number 55 of 2020 and JR number 005 of 2023.
75. This court is further aware that elections were there after conducted as rightly confirmed in paragraph 19 of the verifying affidavit where in the applicant confirm that he received the election results.
76. This fact is further but eased in the letter of the chairman of the electoral committee dated 18th August 2023.
77. This court cannot decide who the winner was.
78. The applicant then filed this suit on 16th January 2024.What this means is that a new opportunity to refer the dispute to the internal dispute resolution mechanisms arose on 18th August 2023.
7
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1. AN ORDER OF CERTIORARI to remove into this court and quash the Respondents Election(s) and the results thereof, for the position of the Chairman and Deputy National Chairman of the Agricultural Society of Kenya held on the 17th August, 2023 save for Jane Chepkwony who had not withdrawn her candidature.
2. AN ORDER OF PROHIBITION directed towards the Respondents prohibiting the Respondents from listing as contestants. candidates who had withdrawn their candidature for the position of National Chairperson and Deputy National Chairperson of the Agricultural Society of Kenya. on or prior to 16th December, 2022
3. AN ORDER OF MANDAMUS declaring the Applicant herein as the duly elected candidate for the position of National Chairman of the Agricultural Society of Kenya.
4. IN THE ALTERNATIVE TO (iii) above an AN ORDER OF MANDAMUS directing the Respondents to call for elections. declaring the Applicant herein, Jack Tuwei & Dr. John Kennedy Omanga as the only successful applicant(s) for the position of the national Chairman of the Agricultural Socie1y of Kenya
2. The application is supported by a statutory statement dated 16th January, 2024 and Verifying Affidavit by Charles Apudo Owele sworn on even date.
3. It the Applicants’ case that he is a member of the Agricultural Society of Kenya having served in various capacities including; Life Governor, Chairman of the Nyanza Branch, Deputy National Chairman, Branch Committee and Council Member. Having served in the various capacities, the Exparte Applicant was qualified to contest and vie for the position of the National Chairman of the Agricultural Society of Kenya.
4. It is contended that The Agricultural Society of Kenya Constitution and rules, codified in the Green Book provides an elaborate process of National Election where any member wishing to vie for the position of the National Chairman may refer to when contesting for the said position.
5. According to him the process as is provided for includes:
a. As per Clause 1(D) of the Green Book of the Society after the five-year term all the positions of the National Chairperson and National Chairman fall vacant.
b. As per Clause 1(F) of the Green Book of the Society, the Chief Executive Officer is required to issue a formal notification to Council
Members, informing them that any who is interested in the National Chairperson position to submit their application for candidature. This, Notice is required to be issued not later than thirty (30) days before the deadline of submission being 28th January of the 5th Year.
c. Further, as per Clause 1(F) of the Green Book in the aforesaid notification, the Chief Executive Officer is required to list the conditions precedent for the candidature.
d. Further, as per Clause 1(F) of the Green Book all the interested Council members holding the position of Branch Chairman or Vice Patron, who desire to be candidates for the Position of National Chairman and Deputy National Chairperson are required to resign at the time of submission of candidature.
e. As per Clause 1(G) of the Green Book, an Electoral Committee which is a standing committee, that comes alive comes at the commencement of each electoral cycle (that is after every five years) and becomes sine die after the conclusion of the electoral process, scrutinizes all the applications for candidature, pre-qualifies and communicates to council members all successful candidates within three (3) days of the decision.
f. Upon successful communication ballots are prepared.
g. As per Clause 1 (G) (4) of the Green Book, Ballot Papers are prepared by the Electoral Committee, indicating the name(s) of the candidates who have declared their interests for the respective seats and have complied with the condition precedents.
h. As per Clause 1(I) of the Green Book the Election Committee sets the date and time of the election and issues an Election Notice to that effect. The Notice shall be given to Council Members within twenty one (21) days of the Election.
i. As per Clause 1(J) of the Green Book the Council Members shall vote at the Council meeting that precedes the Annual General Meeting for their preferred candidates for the National Chairman and Deputy National Chairman positions.
j. As per Clause 1 (0) of the Green Book the name of the National Chairman and Deputy National Chairman elect are placed before the subsequent Annual General Meeting of the Society for noting
6. The Applicants’ canvassed their application with written submissions dated 1st November, 2024.
7. It is their submission that one must be granted a hearing before a decision is made by an administrative and or anybody exercising a judicial function.
8. According to the Black's Law Dictionary, Seventh Edition at page 725 a, hearing in relation to Administrative Law has been described as
“Any setting in which an affected person presents arguments to an agency decision-maker."
9. While fair hearing is defined as,
“a judicial or administrative hearing conducted in accordance with the due process.”
10. Reliance is placed in the case of Republic v Board of Governors, Our Lady of Victory Girls School Kapnyeberai & another Ex-parte Korir Kipyego Joseph & another [2015] eKLR the court proceeded to state as follows:
“According to the Halsbury's Laws of England, (Administrative Law) Fourth Edition, 2001 Re-issue at page 218, paragraph 95, natural justice is defined as follows:-
Natural justice comprises two basic rules; first that no man is to be a judge in his own cause (nemojudex in causasua), and second that no man is to be condemned unheard (audialterampartem). These rules are concerned with the manner in which the decision is taken rather than with whether or not the decision is correct. The rules of natural justice must be observed by courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or necessary implication, or by reason of other special circumstances”.
11. Reliance is also placed in the case of Kanda -Vs- The Government of Malaya (1962) AC 322 as cited by Korir J. in the case of Republic -Vs- Inspector General Corporations &Another Ex ParteTitus K. Barmazai (2013) eKLR HC at Nairobi J. R. No.1082 of 2004, where rule of natural justice was summarized as:
“ln the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the maxims: Nemojudex in causasua: and Audi alterampartem. They have recently been put in two words, Impartiality and fairness. But they are separate concepts and are governed by separate considerations.”
12. It is contended that he has shown this court that the Respondents proceeded to allow the Interested Parties to be contestants whereas they had withdrawn their candidature, which withdrawal did not allow the Respondents to list the Interested Parties as contestants which action should be deemed as ultra vires and urges the Court to set aside the same.
Respondents’ case;
13. The 1st Respondent in response to the Applicants’ Notice of Motion dated 22nd January, 2024 filed a Replying affidavit by Batrum Muthoka sworn on 5th February 2024 written submissions dated 4th February, 2025.
14. It is their case that entire suit is incompetent and an abuse of the Court process for the following reasons:
a) the Applicant is guilty of material non-disclosure and misrepresentation of facts;
b) the suit is res-judicata;
c) the applicant has not exhausted the internal dispute resolution mechanisms; and
d) the orders sought are beyond the purview of judicial review.
15. It is posited that that execution of their mandate is guided by The Constitution of the Agricultural Society of Kenya Rev. 2017 2017 (hereinafter referred to as “the Society’s Constitution”) and The Rules of the Agricultural Society of Kenya Rev. 2017 otherwise referred to as “The Green Book” also hereinafter referred to as “the Society’s Rules”).
16. According to them, as provided for under rules-Article 20A to Article 22 of the Society's Constitution and Rule 1 of the Green Book that the Society had prepared to conduct elections on 28th February 2020 with the following list of qualified candidates:
National Chairman
1. Ms.Edith Onzere
2. Dr. Ken Omanga
3. Mr. Jackson Tuwei
Deputy National Chairman
1. Mr. John Kibira
2. Ms.MargaretAnami
3. Mr. Joseph jeru
4. Mrs. Jane Chepkwony
17. They proceeded and prepared to conduct elections on 28th February 2020 which were stopped pending the hearing and determination of HCJR 55 OF 2020 Charles Apudo Owelle v Annabella Kiriinya, and Batram Muthoka (Sued respectively as the Chairman and Chief Executive Officer of the Agricultural Society of Kenya & 6 others [2021] eKLR.
18. This coincided with the outbreak of the COVID 19 pandemic which led to the suspension of the Society’s Activities including the elections, shows and trade fairs among others through various Council Resolutions.
19. HCJR 55 OF 2020 was determined and the Election suspension orders were vacated.
20. Thereafter, the Chief Executive Officer issued a formal Notification to Council members informing those interested to submit their candidature for the positions of National Chairman and Deputy National Chairman including personalized notifications and letters dated 16th December 2022 to all earlier prequalified candidates requesting them to express their interest in running for office.
21. According to Respondents, one John Kennedy Omanga a pre-qualified candidate as per the circular of 29th January 2020 challenged the letter dated 16th December 2022 in HCJR E005 OF 2023 – Dr. John Kennedy Omanga vs Batram Muthoka & Others.
22. It was disclosed to the court that some candidates had withdrawn their interest in various positions following the receipt of the impugned letter dated 16th December 2022.
23. Judgement was delivered in his favour and the court barred the Respondents from calling for fresh applications and held that the elections were to be held as per the pre-qualified candidates in the bungled elections of 2020 and as a result of the Court declaring the process of re- application and the letter dated 16th December 2022 illegal, voluntarily rescinded their withdrawal letters and stated that they were entitled to be on the ballot as they had been pre-qualified vide the circular of 29th January 2020 and that they had a right to be on the ballot.
24. The candidates that withdrew their candidacy are:
a. Ms. Edith Onzere vide a letter dated 9th January 2022 (erroneously dated as the same was received in the Society's offices on 10th January 2023) withdrew from the position of National Chairperson.
b. Mr. John Kibira vide a letter dated 16th December 2022 withdrew from the position of Deputy National Chairman and applied for the position of National Chairperson.
c. Ms. Margaret Anami vide a letter dated January 2023 withdrew from the position of Deputy National Chairperson.
25. The Respondents contend that the Court was categorical that these candidates ought not to have been asked to “express their interest” or “re-apply” and that the next step was for the election process to commence from where it had reached prior to suspension by the Court Order in HCJR E055 of 2020.
26. The Society proceeded to hold its elections on 17th August 2023 with the following candidates on the Ballot as listed in the circular of 29th January 2020 and produced at page 16 of the Judgement in HCJR E005 OF 2023.
National Chairman
1. Ms.Edith Onzere
2. Dr. Ken Omanga
3. Mr. Jackson Tuwei
4. Mr. Charles Owelle
Deputy National Chairman
1. Mr. John Kibira
2. Ms. Margaret Anami
3. Mr. Joseph Njeru
4. Mrs. Jane Chepkwony
27. It is argued that the election process was conducted in a transparent manner. The votes were tallied in the physical presence of all the candidates and/or their agents, the election results were announced on the same day and an official communication sent to council dated 18th August 2023.
28. It is the Respondents case that The Applicant in HCJR E005 OF 2023 – Dr. John Kennedy Omanga vs Batram Muthoka & Others being dissatisfied with the inclusion of the Interested Parties on the ballot filed two separate applications:
a) Application dated 31st July 2023 seeking to cite the Respondents for contempt for including the Interested Parties on the ballot.
b) Application dated 18th August 2023 seeking to nullify the elections for inclusion of the Interested Parties.
29. The said applications were dismissed.
30. The Society’s Rules under Rule 1 M provide for the Society’s Election Dispute Resolution mechanism.
31. It is the Respondents’ case that the Applicant in the instant suit lodged an election appeal/complaint in respect to the elections held on 17th August 2023 the Returning Officer, Mr. Joseph Muhungu, delivered his decision on 19th December 2023 advising the Applicant to Appeal to the Electoral Committee which he did not.
32. It is submitted that the Applicant’s to follow the mandatory provisions of Order 53 of the Civil Procedure Rules renders the instant suit defective and thus it ought to be struck out with costs.
33. It is also submitted that the Application before this honorable court is res-judicata having been raised and dealt with in HCJR E005 OF 2023 – Dr. John Kennedy Omanga vs Batram Muthoka & Others with the commonality between the Applicant herein and the Applicant in HCJR E005 of being both of them were candidates in the impugned elections.
34. The Respondent argues that the issue of inclusion of the interested parties was before the Court and substantially determined in both the Judgement delivered on 27th June 2023 and the Ruling delivered on 1st December 2023. This then limits this Court’s jurisdiction to re-hear and expand the said Judgment and Ruling.
35. It is further submitted that the Applicant offends Section 9 of the Fair Administrative Actions Act 2015.
36. The Court of Appeal in Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR had the following to state in regards to exhaustion of remedies:
On the basis of the foregoing, the constitutional petition could not have seen the light of the day as well.
There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it.
It does not also matter that an applicant in judicial review proceedings need not exhaust all other available remedies. The invocation of judicial review jurisdiction of the court was in the circumstances premature and uncalled for. The first ground of appeal therefore succeeds.
37. It is the Respondents’ case that they did not breach any rule(s) and that the Applicant has failed to specifically plead and prove illegality, irrationality and procedural impropriety to warrant the judicial review orders sought.
38. Reliance is placed in the cases of Peninah Nandako Kiliswa v Independent Elections & Boundaries Commission & 2 others [2014] eKLR and MUNICIPAL COUNCIL OF MOMBASA VS REPUBLIC & ANOTHER, CA No 185 of 2001.
39. In Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (Civil Appeal 46 of 2012) [2016] KECA 729 (KLR) (Civ) (4 March 2016) (Judgment) held thus:
“Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7 (2) (j) identifies abuse of discretion as a ground for review while Section 7 (2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7 (2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review. Section 7 (2) (i)
(i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in Section 7 (2) (i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in Section 7 (2) of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in Section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.”
40. The Respondents contend that the prayers sought are beyond the ambit of the Court’s Jurisdiction as they are meant to invite the Court into an arena of being either the Society’s Council or the Society’s electoral committee which this court cannot Court cannot substitute its decision with that of the Society, as it has no such mandate.
41. On the issue of costs, the Respondent relies on Universal Engineering Works v Mohamedali Suleiman Essaji [1951] 2 LRK 99 as quoted in Odunga’s Digest on Civil Case Law and Procedure 3rd Edition Volume 4 at page 2228, where it reads. “Universal Engineering Works v Mohamedali Suleiman Essaji [1951] 2 LRK 99
[a] A successful litigant is entitled to costs unless there are good reasons for depriving him of costs.”
42. The Respondents pray that this suit be dismissed with costs to them.
Interested Parties’ case;
43. The Interested Parties in response to the Applicants’ Notice of Motion dated 22nd January, 2024 filed a Replying affidavit by Edith Onzere sworn on 6th February 2024 and written submissions dated 4th February, 2025.
44. The Interested Parties posit that the jurisdiction of a judicial review court is limited to administrative actions processes and/or decisions taken by an administrative body/person.
45. They argue that elections, do not constitute an administrative decision/action but rather a democratic right exercised by masses to choose officials.
46. Edith Onzere avers that she had applied for the position of National Chairperson for the society’s National Elections that were to be held in sometime in February 2020 and on 29th January 2020, she received formal communication from the society that she had been prequalified to vie for the position of National Chairperson in the upcoming elections which were suspended after the Exparte applicant herein sought such suspension in Nairobi HCJR No. E055 of 2020 Charles Owelle vs ASK.
47. She further avers that on 9th January 2023, she wrote to the 1st Respondent and stated that I wished to withdraw her candidature and 30th June 2023, rescinded her letter since the decision to asking her to reapply for a position she had been prequalified for was declared illegal. On 17th August 2023, the elections took place and she was declared the National Chairperson-elect after garnering 46 votes.
48. It is their case the conduct of the Respondents was strictly within the confines of the judgment of this Honourable Court in JR E055 of 2023 thus they did not act ultra vires.
49. They argue that the Application before this Honourable court is a thinly-veiled election petition seeking to nullify lawful and properly conducted elections of the society disguised as an application for judicial review.
50. It is their case that Rule 1M (a) of the Green Book provides a channel through which the complaints or disputes arising from the electoral process are to be addressed.
51. Further, any complaints with regard to an election must first be brought to the Returning Officer within 14 days from the occurrence of the event complained of.
52. The Ex Parte Applicant did file his complaint before the Returning Officer, was duly heard and determined time-barred having been lodged outside the prescribed timelines.
53. The Interested Parties contend that the Ex Parte applicant in JR No. E005 of 2023 advised the Applicant therein to utilize the society’s dispute resolution mechanisms to resolve any complaints they had regarding the elections thus the instant application offends the doctrine of exhaustion
54. It is their submission that Ab initio, the substantive motion should fail on account of being res judicata as the court conclusively dealt with the issues raised herein in JR No. E005 of 2023.
55. They place reliance in the case of court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] KECA 477 (KLR) where the court stated thus
The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common- sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.
56. The Interested Parties submit that the Applicant has brought this issue prematurely before exhausting all remedies available under the constitution of the Agricultural Society of Kenya.
57. They further submit that the Applicant has not presented before this court a prima facie case and that the substratum of the application has since been overtaken by events.
58. It is their case that Applicant has also failed to meet the threshold for the grant of Judicial Review orders in failing to prove that the decision was ultra vires.
Analysis and determination;
59. The issue for determination are;
1.Whether this court has jurisdiction.
2.Whether the orders sought can be granted.
3.Who will bear the costs.
Whether this court has jurisdiction.
60. Section (9) (2) of The Fair Administrative Action Act, 2015 provides in mandatory terms that;
“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”
61. Clifford Keya v Jackline Inguitiah & 5 others; Atieno Aoko & 3 others (Interested Party) [2022] eKLR,
62. The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable.
63. The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution.
64. The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act, 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.
65. In Jamlick Muriithi Mwenda v Law Society of Kenya & 10 others [2022] eKLR it was stated that;
‘the doctrine of exhaustion appears to be closely intertwined with the doctrine of constitutional avoidance which doctrine is also referred to as the constitutional avoidance rule. The doctrine is part of the wider doctrine of non-justiciability. Speaking to the doctrine of constitutional avoidance, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR observed thus: -
The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as: “The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held: The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
On the applicability of the doctrine of exhaustion in Kenya, suffice to say that the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: - In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.
66. Council of County Governors v Attorney General & 12 others [2018] eKLR
“Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”
67. In the instant suit The Society’s Rules under Rule 1 M provide for the Society’s Election Dispute Resolution mechanism.
68. It is not denied that the Applicant in the instant suit lodged an election appeal/complaint in respect to the elections held on 17th August 2023 the Returning Officer, Mr. Joseph Muhungu, delivered his decision on 19th December 2023 advising the Applicant to Appeal to the Electoral Committee which he did not.
69. The court is in agreement with the interested party that the Applicant has filed this suit prematurely and before exhausting all remedies available under the constitution of the Agricultural Society of Kenya.
70. Section 9 (1) of the Act provides an avenue for a party aggrieved by an administrative action to without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. This, is subject to exhausting all other available remedies.
71. Under Section 9 (3) “The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).”
72. In his verifying affidavit at paragraph three, the applicant confirms that the society is guided by the societies constitution 2017.
73. He further confirms that the green book and the constitution have made the provision for the conduct of the societies elections.
74. Before the elections, there were two suits that were filed, which has since been determined in line with the judgments that I have had occasion to look at being JR a number 55 of 2020 and JR number 005 of 2023.
75. This court is further aware that elections were there after conducted as rightly confirmed in paragraph 19 of the verifying affidavit where in the applicant confirm that he received the election results.
76. This fact is further but eased in the letter of the chairman of the electoral committee dated 18th August 2023.
77. This court cannot decide who the winner was.
78. The applicant then filed this suit on 16th January 2024.What this means is that a new opportunity to refer the dispute to the internal dispute resolution mechanisms arose on 18th August 2023.
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