1. Through the application dated 3rd June 2024, the applicant is seeking leave to file the substantive motion for the judicial review orders of Certiorari to quash the decision of the Respondent made via Letters dated 14th April 2023 and 13th October 2023 respectively which decision indefinitely suspended the Annual General Meeting of Parklands Baptist Church.
2. The Respondent has not opposed the application. It is the applicant’s case that the Respondent’s office had directed the suspension of the Annual General Meeting of the Church scheduled for 22nd April 2023.
3. He argues that the decision was tainted with illegality and procedural impropriety.
4. The complainant and his 56 purported supporters merely identified themselves as “duly registered members” of the Church.
5. No evidence whatsoever in terms of their membership numbers was adduced to verify their legal capacity to bring such an action and in no way would Respondent have been in a position to verify such legal capacity by merely reading the text of the complaint itself.
6. Reliance is placed in the case of Apex Finance International Limited and Another v Kenya Anti-Corruption Commission NKU HC JR No. 64 of 2011 [2012] e KLR, the court cited a decision of the Supreme Court of Nigeria, Goodwill and Trust Investment Ltd and Another v. Witt and Bush Ltd Nigerian SC 266/2005 which captured the fundamental nature of the issue of capacity. The court observed that:
7. “It is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed, the parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court, the court lacks jurisdiction to hear the suit, and, “where the court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”
8. The Respondent ought to but failed to authenticate the legal capacity of the complainant and his purported supporters prior to entertaining the complaint as a preliminary issue when seized of the matter. This renders the decision to suspend the AGM hasty and therefore unreasonable in the circumstances.
9. Some of the ostensible supporters of the said complaint have disowned having appended their signatures which matter signifies elements of forgery on your complainant’s part which is a criminal offence contrary to Section 349 of the Penal Code Cap 63 of the Laws of Kenya and which is punishable, if found guilty by imprisonment of 3 years.
10. He is aggrieved that The Respondent had a legal obligation at a preliminary stage to call for such authority to sign before delving further into the merits of the complaint, which obligation you ignored and/or failed to perform, calling into question your decision-making process. That said, Respondent’s decision to “suspend” fails the test of reasonableness and is therefore illegal, null and void.
11. The Respondent received the complaint on 12th April 2023 and wrote to the Church communicating the decision to “suspend” on 14th April 2023. The decision to suspend the said Annual General Meeting without having accorded it an opportunity to be heard goes against the basic principles of Article 47 of the Constitution of Kenya 2010, that every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair which matter remains ripe for judicial intervention.
12. The Ex parte Applicant also relies on the holding of the court in Republic v National Transport & Safety Authority & 10 others [2014] eKLR where the Court expressed itself as follows:
“In judicial review, the threshold for obtaining leave to commence is low and obtaining leave is not in itself evidence of a strong case for issuance of stay orders. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case. The standard for the grant of an order of stay is however a high one. In a situation where an Applicant seeks to stop the implementation of a law, he must demonstrate that the implementation of the law will cause irreparable harm. Otherwise, the Court will be reluctant to suspend the operation of a law.”
13. From the above, it is evident that the Ex Parte Applicant has established the grounds to warrant the leave sought, our starting point is a recapitulation of the essence of obtaining such leave as eloquently captured by Waki J. (as he then as) in Republic v County Council of Kwale & another Ex parte Kondo & 57 others, Mombasa HC Misc. Application No. 384 of 1996 as follows:
“… is to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the application is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public offices and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
Analysis and determination
14. Upon considering the materials on record, the issue that crystallizes for determination is whether the Application for leave to institute Judicial proceedings is merited.
15. Order 53 Rule 1 of the 15. Civil Procedure Rules 2010 provides that an Applicant must seek leave to institute judicial review proceedings.
16. In judicial review cases, the Leave procedure is meant and intended to eliminate at an early stage any applications for which are either frivolous, vexatious or hopeless.
17. In the case of 17. Republic v County Council of 17. Kwale17. 17. &17. another Ex Parte Kondo 17. &17. 57 others (supra), further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.
18. The court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave.
19. In the case of 19. Republic v National Transport 19. &19. Safety Authority 19. &19. 10 others [2014] eKLR, the court held that in judicial review, the threshold for obtaining leave to commence is low and obtaining leave is not in itself evidence of a strong case. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case.
20. In the instant matter, the gist of the Application before this court is that the applicant is seeking for leave to commence judicial review proceedings for orders of Mandamus.
21. It is upon the applicant to demonstrate that it has an arguable case that requires ventilation at a substantive hearing.
Disposition:
22. In the instant suit I am satisfied that a prima facie case has been made by the Applicant.
I find that the Application dated 3rd June 2024 has merit.
Order:
A. The Application dated 3rd June 2024 is allowed.
B. The Applicant shall file and serve the substantive motion within 14 days of today’s date.
C. The Respondent shall file and serve its responses to the application within 14 days of service.
D. The Applicant shall thereafter file and serve its submissions within 10 days.
E. The Respondents shall file and serve their submissions within 10 days of service.
F. The matter will be mentioned on 29th October, 2024 to report compliance.
2. The Respondent has not opposed the application. It is the applicant’s case that the Respondent’s office had directed the suspension of the Annual General Meeting of the Church scheduled for 22nd April 2023.
3. He argues that the decision was tainted with illegality and procedural impropriety.
4. The complainant and his 56 purported supporters merely identified themselves as “duly registered members” of the Church.
5. No evidence whatsoever in terms of their membership numbers was adduced to verify their legal capacity to bring such an action and in no way would Respondent have been in a position to verify such legal capacity by merely reading the text of the complaint itself.
6. Reliance is placed in the case of Apex Finance International Limited and Another v Kenya Anti-Corruption Commission NKU HC JR No. 64 of 2011 [2012] e KLR, the court cited a decision of the Supreme Court of Nigeria, Goodwill and Trust Investment Ltd and Another v. Witt and Bush Ltd Nigerian SC 266/2005 which captured the fundamental nature of the issue of capacity. The court observed that:
7. “It is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed, the parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court, the court lacks jurisdiction to hear the suit, and, “where the court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”
8. The Respondent ought to but failed to authenticate the legal capacity of the complainant and his purported supporters prior to entertaining the complaint as a preliminary issue when seized of the matter. This renders the decision to suspend the AGM hasty and therefore unreasonable in the circumstances.
9. Some of the ostensible supporters of the said complaint have disowned having appended their signatures which matter signifies elements of forgery on your complainant’s part which is a criminal offence contrary to Section 349 of the Penal Code Cap 63 of the Laws of Kenya and which is punishable, if found guilty by imprisonment of 3 years.
10. He is aggrieved that The Respondent had a legal obligation at a preliminary stage to call for such authority to sign before delving further into the merits of the complaint, which obligation you ignored and/or failed to perform, calling into question your decision-making process. That said, Respondent’s decision to “suspend” fails the test of reasonableness and is therefore illegal, null and void.
11. The Respondent received the complaint on 12th April 2023 and wrote to the Church communicating the decision to “suspend” on 14th April 2023. The decision to suspend the said Annual General Meeting without having accorded it an opportunity to be heard goes against the basic principles of Article 47 of the Constitution of Kenya 2010, that every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair which matter remains ripe for judicial intervention.
12. The Ex parte Applicant also relies on the holding of the court in Republic v National Transport & Safety Authority & 10 others [2014] eKLR where the Court expressed itself as follows:
“In judicial review, the threshold for obtaining leave to commence is low and obtaining leave is not in itself evidence of a strong case for issuance of stay orders. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case. The standard for the grant of an order of stay is however a high one. In a situation where an Applicant seeks to stop the implementation of a law, he must demonstrate that the implementation of the law will cause irreparable harm. Otherwise, the Court will be reluctant to suspend the operation of a law.”
13. From the above, it is evident that the Ex Parte Applicant has established the grounds to warrant the leave sought, our starting point is a recapitulation of the essence of obtaining such leave as eloquently captured by Waki J. (as he then as) in Republic v County Council of Kwale & another Ex parte Kondo & 57 others, Mombasa HC Misc. Application No. 384 of 1996 as follows:
“… is to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the application is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public offices and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
Analysis and determination
14. Upon considering the materials on record, the issue that crystallizes for determination is whether the Application for leave to institute Judicial proceedings is merited.
15. Order 53 Rule 1 of the 15. Civil Procedure Rules 2010 provides that an Applicant must seek leave to institute judicial review proceedings.
16. In judicial review cases, the Leave procedure is meant and intended to eliminate at an early stage any applications for which are either frivolous, vexatious or hopeless.
17. In the case of 17. Republic v County Council of 17. Kwale17. 17. &17. another Ex Parte Kondo 17. &17. 57 others (supra), further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.
18. The court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave.
19. In the case of 19. Republic v National Transport 19. &19. Safety Authority 19. &19. 10 others [2014] eKLR, the court held that in judicial review, the threshold for obtaining leave to commence is low and obtaining leave is not in itself evidence of a strong case. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case.
20. In the instant matter, the gist of the Application before this court is that the applicant is seeking for leave to commence judicial review proceedings for orders of Mandamus.
21. It is upon the applicant to demonstrate that it has an arguable case that requires ventilation at a substantive hearing.
Disposition:
22. In the instant suit I am satisfied that a prima facie case has been made by the Applicant.
I find that the Application dated 3rd June 2024 has merit.
Order:
A. The Application dated 3rd June 2024 is allowed.
B. The Applicant shall file and serve the substantive motion within 14 days of today’s date.
C. The Respondent shall file and serve its responses to the application within 14 days of service.
D. The Applicant shall thereafter file and serve its submissions within 10 days.
E. The Respondents shall file and serve their submissions within 10 days of service.
F. The matter will be mentioned on 29th October, 2024 to report compliance.