IN THE MATTER OF THE CONSTITUTION OF KENYA, ENFORCEMENT AND INTERPRETATION OF THE CONSTITUTION RULES, 2013
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IN THE MATTER OF ARTICLES 1, 2(1), 10, 19, 20, 22, 23, 35, 36, 47, 50, 165, 232, 258 OF THE CONSTITUTION OF KENYA, 2010
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IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTIONS ACT
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IN THE MATTER OF KITALE CLUB
BETWEEN.
JUDGMENT.
Introduction
1. The Petitioner vide a Petition dated the 9 th day of February, 2026 sought for reliefs: -
a) A declaration that the proceedings and verdict by the Respondent’s Disciplinary Committee of suspending the Petitioner for a period of 12 months is null and void.
b) A permanent injunction to restrain the Respondents, their officers, servants, or agents or otherwise, from interfering with the Petitioner’s enjoyment of the facilities offered by the 1 st Respondent to members.
c) A declaration that failure of the Respondents to provide an expeditious hearing and determination of the Petitioners appeal is an infringement of the Petitioner’s right to a fair hearing and fair administrative action.
d) An order of judicial review in the nature of certiorari to quash the letter/verdict dated the 10 th October, 2025 issued by the 3 rd Respondent suspending the petitioner for period of 12 months as a member of the 1 st Respondent.
e) Costs of the Petition.
Petitioner’s case
2. The Petitioner a former Member of Parliament, Gubernatorial Aspirant for the 2027 elections, and Chairman of the Board of the Kenya Bureau of Standards (KEBS) is a member of the 1 st Respondent holding Membership Number 01699. He pleaded that he has consistently paid his membership dues and conducted himself with decorum, enjoying access to the clubhouse, its amenities, and member services.
3. He pleaded that on the 10 th October 2025 he was suspended from membership by the 2 nd Respondent for a period of 12 months barring him from the Club's premises and activities for that duration.
4. He contends that this suspension was not a genuine disciplinary measure but a scheme targeting him because he raises difficult questions about the Respondents' alleged arbitrary exercise of power to the detriment of ordinary members.
5. He pleaded that after being dissatisfied with the decision made on the 10 th October, 2025 the Petitioner lodged an appeal on 10 th November 2025 and to date the 3 rd Respondent has failed, ignored, and/or deliberately avoided hearing the Appeal to the detriment of the Petitioner, the said appeal having been filed 3 months earlier.
6. The Petitioner contends that this inaction amounts to a violation of his constitutional rights under Articles 47(1) and 50(1) of the Constitution and further offends the national values and principles of governance under Article 10 of the Constitution , including the rule of law, good governance, and accountability.
Respondent’s case
7. The Respondent filed a Replying Affidavit dated the 6 th March, 2026 in which it was deponed that that the Petition is fatally defective, incompetent, and without merit on several preliminary grounds:
(a) the 1 st Respondent is an unincorporated association registered under the Societies Act (Cap 108) and therefore lacks legal capacity to sue or be sued in its own name, rendering the Petition a nullity ab initio;
(b) The Court lacks jurisdiction as the dispute arises from a private contractual relationship between a club and its member;
(c) The Petitioner approached the Court prematurely without exhausting internal dispute-resolution and appeal mechanisms; and
(d) The Petition offends the doctrine of avoidance by seeking constitutional relief for what is essentially a private disciplinary matter.
8. The Respondents pleaded that the 1 st Respondent is a private members' club governed by its Constitution and By-laws to which the Petitioner voluntarily subscribes and is bound. They pleaded that the Petitioner's 12 months’ suspension arose from an incident on 10 th October 2025 in which he brandished a firearm within the Club premises, a conduct captured on CCTV and witnessed by members.
9. They further pleaded that the 2 nd Respondent followed due process and accorded the Petitioner a right to be heard before the suspension was imposed to protect the safety of the Club environment, and that the Petitioner effectively acknowledged the process by filing a Memorandum of Appeal dated 21 st October 2025. The Respondents further aver that the appeal remains pending before the Club's governing organs, and that by filing this Petition while the internal appeal is still active the Petitioner is forum-shopping and abusing court process.
10. The Respondents pleaded that it is not that the 1 st Respondent has failed to constitute an Appeals Committee but the selection of its members is ongoing since the committee has no permanent members and this process takes time.
11. The Respondents pleaded that they have not infringed any constitutional or Club provision and that the firearm related conduct was criminal and a fundamental breach of Club rules endangering the general membership and that the suspension was a proportionate and reasonable response.
12. They Pleaded that the Petitioner's status as a public figure does not exempt him from the Club's safety regulations but rather obliges him to uphold higher standards of integrity and good order and that the Respondents pray that the Petition be dismissed with costs.
13. This court notes that the Respondent further filed a notice of preliminary objection dated the 4 th day of March, 2026 and upon the matter coming up for directions on the 12 th day of March, 2026, the Court gave directions that for the interest of judicial time and quick disposal of the Petition the main petition be canvased via written submissions.
Petitioner’s submissions
14. The Petitioner submits that Clause 14 of the Club's Constitution/bylaws required the Committee chairman on receipt of an appeal to appoint a 3-member sub-committee, then have the main committee confirm or vary or reverse that finding, and if the member remained dissatisfied to convene a 6-member appeals committee and the 3 rd Respondent has failed, ignored, or deliberately avoided constituting this sub-committee despite the appeal being filed on 10 th November 2025 and also there being repeated follow-up.
15. He submitted that this falls within recognized exceptions to the exhaustion doctrine and relied upon the case of William Odhiambo Ramogi & 3 others vs Attorney General & 4 others [2020] KEHC 10266 (KLR ) and further that the Respondents' deliberate delay is itself the rights violation complained of.
16. The Petitioner went further to submit that Respondents' failure to fix his appeal for hearing is a deliberate tactic to make him serve out the 12-month suspension unheard, violating both his administrative-fairness rights and his right to a fair hearing. He relied on the case of Joseph Kamau Magachi & Another vs Nairobi Club & another [2026] KEHC 3915 (KLR ) , where the court held that prior notice, reasons, and an opportunity to be heard are defining standards of lawful administrative action, and that action falling short of these constitutional and statutory benchmarks is both unlawful and unconstitutional.
17. The Petitioner submitted that the violation has been established and Counsel for the Petitioner urged the Honourable Court to grant the orders sought herein.
Respondent’s submissions
18. The Respondents submit that the real question is whether the Petitioner received a procedurally fair process and a lawful decision. They argue the record shows exactly this as the Committee considered CCTV footage, witness accounts, and the Petitioner's own statement, and he participated and made submissions at the hearing.
19. They submit that the Petitioner does not dispute entering the Club armed, and that his claim that the By-laws didn't prohibit firearms is contradicted by the governing By-laws which expressly bar carrying firearms or offensive weapons on Club premises making his real grievance the outcome and the severity of the sanction not the fairness of the process.
20. The Respondents relied on the case of Daniel Mutisya Kivuva v Machakos Golf Club [2019] KEHC 1262 where a petitioner who gave a defence and called witnesses was found to have had a fair opportunity to be heard. Reliance was equally placed in Mwagiru v Muthaiga Country Club Limited & 3 others [2024] KEHC 8675 where a plaintiff failed to prove unfair treatment and the court opined that club membership is voluntary and governed by internal rules. Further in Republic vs Chairman, Secretary and Treasurer of Nyanza Club Ex parte Sultan Ali Khan [2021] KEHC 12668 where the applicant who received written notice and was invited to appear was found to have had an opportunity to be heard and Lastly reliance was placed in the case of Solanki vs Nairobi Gymkhana & Another [2025] KEHC 4387
21. The Respondents further submitted that the Petitioner admittedly invoked the Club's internal appellate mechanism as shown by the Memorandum of Appeal dated the 21 st day of October, 2025 which sought review of the same decision he now asks the Court to quash. Reliance was placed in the case of Muthinja & Another vs Henry & 1756 Others [2015] KECA 304 , Ingram vs Secretary, Malindi Golf and Country Club & 2 Others [2023] KEHC 3437 and also Daniel Mutisya Kivuva case (Supra )
22. The Petitioner also relied on Ramogi & 3 Others vs Attorney General & 4 Others [2020] KEHC 10266 , conceding that exceptions to exhaustion exist but arguing Ramogi itself requires assessing the suitability of the available appeal mechanism to be sure of its suitability. Reliance was also placed in Republic vs Royal Nairobi Golf Club ex parte Ooko Erick Obura & Another [2021] KEHC 5332 where exhaustion was excused because the club couldn't say when a hearing would occur and the suspension was indefinite.
23. Lastly on remedy, the Respondent while relying on Mitu-Bell Welfare Society vs Kenya Airports Authority & 3 Others [2021] KESC 34 stated that constitutional remedies must be "specific, appropriate, clear, effective" that even if the Court finds the appeal delay warranted intervention the proportionate remedy would be to direct the internal appeal to conclude within a specified period
24. The Respondent prayer was for the dismissal of the Petition in its entirety while declining of all reliefs sought with costs to the Respondents.
Analysis and Determination
25. I have very carefully considered the Petition, the Affidavits in support and in opposition and the subsequent submissions filed as well as the authorities relied upon in support thereof. The issues that arise for consideration can be summed up as follows:
1) Whether the 1 st & 2 nd Respondent have the legal capacity to be sued in these proceedings.
2) Which version of the 1 st Respondent's Constitution and By-laws was in force and applicable at the time of the Petitioner's suspension and subsequent appeal, and whether that version was properly adopted and binding on the Petitioner.
3) Whether the circumstances of this case fall within any recognized exception to the doctrine of exhaustion.
4) Whether the Petition as presented raises any constitutional issues against the 3 rd Respondent.
5) Whether the Petitioner is entitled to the reliefs sought .
26. A Constitutional Petition must meet the threshold of specificity and further, the allegations put forth must also be established by evidence. This principle was affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR ) as follows:
“(349)…. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154 : the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
27. To this end, this Court must therefore consider whether the evidence placed before it demonstrates the alleged infringement of each of the constitutional rights relied upon by the Petitioner.
28. On the first issue, the Respondents contend through the Replying Affidavit of Mercy Njuguna that the 1 st Respondent is an unincorporated association registered under the Societies Act (Cap 108) and therefore lacks legal capacity to sue or be sued in its own name and thus it renders the Petition as framed a nullity ab initio .
29. The Court has perused the petitioners’ submissions and I note that the Petitioner has not addressed this objection in his submissions which means he has proceeded on the assumption that the all Respondents are all properly before the Court.
30. It is trite and settled law that an unincorporated association has no legal existence separate from its members, and is therefore incapable of suing or being sued in its own name.
31. I note that that this principle traces to The Fort Hall Bakery Supply Co. vs Fredrick Muigai Wangoe [1959] EA 474 , where Templeton J held that
"a non-existent person cannot sue, and once the court is made aware that the plaintiff is non-existent, and therefore incapable of maintaining the action, it cannot allow the action to proceed."
32. The said principle applies equally to Societies registered under the Societies Act, Cap 108 as registration under that Act does not confer corporate personality but merely regularizes the society's existence for regulatory purposes.
33. This was affirmed in Kisii County Stakeholders Forum v Kenya Agricultural Research Institute & 2 others [2016] KEHC 2960 (KLR) , where the Court held that
“12. I have considered the preliminary objection raised and I have no doubt in my mind that the petitioner is a non-incorporated body of many members registered under the Societies Act Cap 108 Laws of Kenya. Indeed, this is the description that the Petitioner has given itself in the first paragraph of its petition. The petition does not give the petitioner any other name or capacity.
13. I concur with the decision of Ekirapa Aburili J in Football Kenya Federation vs Premier League Limited and 4 others (supra) where she held that there must be a statutory provision that permits a society to sue in its name for good reason, especially where the society comprises a large number of members, but that even where such happens, it can only be by way of a representative suit where only a few members would sue on behalf of the rest.
14. Order 1 Rule 8 of the Civil Procedure Rules provides as follows:
”(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.”
15. The Petitioner in this suit is a Stakeholders Forum registered under the Societies Act. It is therefore my finding that it has no capacity to sue in the manner in which it has filed the petition. This is a pure point of law that falls directly within the purview of Preliminary Objection as observed in the landmark case of Mukisa Biscuits Manufacturing Co. Ltd vs West end Distribution Ltd (1969) EA 696 in which a preliminary objection was described as consisting of a point of law which has been pleaded, or which arises by implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
34. Applying these principles to the facts before the Court, I find that it is not disputed and indeed it is deponed to on oath by the 1 st Respondent's own Chairperson, the 3 rd Respondent, that Kitale Club is registered under the Societies Act, Cap 108 and is an unincorporated association which is also as evidenced with the annexture attached thereto and as such the 1 st Respondent has no legal personality distinct from its membership and cannot properly be sued in its own name.
35. I further note that the same position applies to the 2 nd Respondent described as an organ of the 1 st Respondent as there is no material evidence before this Court demonstrating that the said Committee is incorporated or otherwise possesses an independent legal personality separate from that of the 1 st Respondent hence it equally lacks capacity to be sued in its own name.
36. However, the position of the 3 rd Respondent is materially different being that the 3rd Respondent is a natural person holding a defined office within the 1 st Respondent’s governance structure and a perusal of the Replying Affidavit demonstrates that she has defended the Petition substantively on the merits.
37. I further note that the Petition discloses a distinct complaint against the 3 rd Respondent, that following the Petitioner's lodging of his appeal against the disciplinary decision, she failed, ignored and/or deliberately avoided constituting or facilitating the body through which the appeal was to be heard and determined therefore the complaint against the 3 rd Respondent is not merely founded upon the legal personality of 1 st Respondent or the 2 nd Respondent but upon an alleged omission on the part of a natural person occupying the office of the Chairperson.
38. The cause of action against the 3rd Respondent is therefore not dependent solely upon the legal personality of the 1 st Respondent or the 2 nd Respondent. It also concerns an alleged omission on the part of the 3 rd Respondent in the discharge of the functions attributed to her as Chairperson of the Club.
39. Whether the 3rd Respondent was under a duty, arising from the Club's Constitution or By-laws, to constitute the appellate body, whether she failed to discharge that duty and whether such failure amounted to a violation of the Petitioner's constitutional rights are substantive questions which cannot properly be determined at this stage of considering the legal capacity of the other respondents.
40. In the circumstances, the objection on the legal capacity of the 1 st and 2 nd Respondents succeeds to that extent. The Petition is accordingly struck out as against the 1 st & 2 nd Respondent.
41. The Petition shall remain as against the 3 rd Respondent and the Court shall proceed to determine the issues arising from the alleged failure by the 3 rd Respondent to constitute or facilitate the hearing and determination of the Petitioner's appeal, together with the other issues that have arose for determination in the Petition
42. On the second issue, two distinct texts purporting to constitute the Constitution and By-laws of the 1 st Respondent have been placed before the Court. The first is the version containing what has been referred to as " Clause 14 ", which the Petitioner pleaded verbatim in Paragraph 18 of the Petition and reproduced in paragraph 19 of his Written Submissions.
43. That provision sets out a relatively simple appellate structure in the sense that upon receipt of an appeal, " the chairman of the committee " is required to appoint a three-member sub-committee, whose findings are thereafter placed before the main Committee for confirmation, variation or reversal and where the member remains dissatisfied, then the chairman is required to constitute an Appeals Committee comprising members of the Committee and senior members of the Club, whose decision is stated to be final.
44. I further note that the second document is the " Revised Constitution and By-laws (November 2024) " exhibited by the Respondents as "MN-2" to the Replying Affidavit. That document contains a materially different and more elaborate appellate framework under its Article 8.
45. It provides for a standing eleven-member Appeals Committee constituted through AGM elections and appointments by the Board of Trustees and by the Management Committee. However, it limited nomination by the Chairperson and that Chairperson's role being confined to two of the eleven positions subject to AGM approval without forgetting that it further provides for specified timelines relating to the lodging, hearing and determination of an appeal.
46. The difference between the two texts is material. It is not merely a question of drafting or numbering. The two provisions prescribe materially different mechanisms for the constitution of the appellate body, identify different actors involved in its constitution, and provide different procedural timelines.
47. I am of the considered view that where a voluntary association's constitution or rules are placed in issue, the party relying upon a particular provision bears the evidential burden of establishing the terms of the governing instrument upon which reliance is placed.
48. In the present case, the Respondents rely upon the document marked "MN-2" and, in particular, upon its more elaborate provisions relating to the Appeals Committee. However, the document exhibited as "Revised November 2024" bears visible internal review annotations, including comments marked "Commented [KA17]," "Commented [KA18]," "Commented [KA19]," "Commented [KA20]" and "Commented [KA21]," appearing at various provisions, including those relating to misbehavior, appeals, expulsion and the composition of the Appeals Committee.
49. These features raise a legitimate evidentiary question as to whether the document was a final and operative constitutional instrument or remained a working draft under review.
50. More importantly, the Respondents have not placed before the Court the primary evidence demonstrating the formal adoption of that revised text. No minutes of an Annual General Meeting or Special General Meeting approving the revised Constitution and By-laws have been exhibited. There is likewise no resolution, attendance register, notice of the relevant meeting, or other evidence demonstrating that the membership formally adopted the November 2024 revision in accordance with the procedure prescribed for amendment of the Club's governing instrument.
51. The designation "Revised November 2024", standing alone, is not proof that the document was validly adopted or that it came into force in November 2024. A document may be prepared or revised on a particular date without necessarily having been approved or brought into force on that date. The Court must therefore distinguish between the date appearing on a document and proof of its legal adoption and commencement.
52. The Petitioner relies upon the version containing Clause 14 and has reproduced its provisions in his Petition and submissions. He has however, exhibited a signed, dated and authenticated copy of that version. The copy before the Court has minutes showing the same was adopted on the 14 th December 2012 at a Special General Meeting of the Association. In essence therefore, the court will be inclined to adopt the same as the operative document binding the parties herein, contrary to the averments in the Replying Affidavit at paragraph 4 that seems to place reliance and weight on the draft bylaws, for which the adoption has not been demonstrated.
53. I therefore find that the Petitioners averments does establish to the requisite degree of certainty which version of the Constitution and By-laws was validly in force at the time of the Petitioner's suspension and appeal.
54. For purposes of the issues that follows, I shall consider the Petitioner's case on the basis of the Clause 14 framework which he consistently pleaded and relied upon as a finding that the said version has been conclusively proved to be the operative Constitution and as the framework upon which his pleaded grievance in breach of the Constitution is founded in the sense that whether the 3 rd Respondent failed to discharge her constitutional or legal obligation.
55. On the 3 rd issue for determination in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) , the Court of Appeal emphasized that where a dispute resolution mechanism exists outside the courts, the same ought to be exhausted before the jurisdiction of the courts is invoked and that courts should ordinarily be the fora of last resort.
56. I note that the principle however is not absolute as the Court retains the power to intervene in appropriate circumstances where the available mechanism is inadequate, ineffective, unavailable, incapable of granting the relief sought, or where insisting upon its exhaustion would result in injustice.
57. In the present case, there is no dispute that the Petitioner invoked the Club's internal appellate process. The Petitioner states that he lodged his appeal on 10 th November 2025 and thereafter made follow-ups but that the appeal was not fixed for hearing.
58. The 3 rd Respondent on the other hand is of the contention that the appeal remains pending before the Club's governing organs and that the delay arose because the Appeals Committee was in the process of being constituted its members not being permanent.
59. I note that the chronology of events is material herein. The Petitioner's case is that the impugned suspension was imposed on 10 th October 2025 and he lodged the appeal 10 th November 2025 and by the time he approached this Court in February 2026 the appeal had not been heard or determined to which the Respondents acknowledge that the appeal remained pending and explained the position on the basis that the Appeals Committee was still being constituted.
60. The Court is mindful that internal bodies of voluntary associations may require some time to convene, constitute committees or process appeals. The doctrine of exhaustion cannot be applied in a manner that requires an internal body to determine an appeal instantaneously. However, what is required is that the process be reasonably capable of being completed within a reasonable period and in accordance with the association's governing framework. In this case the evidentiary difficulty identified in the preceding issue assumes significance.
61. Nevertheless, the absence of proof of a specific contractual timeline does not mean that an internal appeal may remain pending indefinitely as an appeal which has been properly lodged must be dealt with within a reasonable period. For an issue to be handled expeditiously especially since the petitioner is facing a suspension for a fixed period of twelve months and an appeal which is not heard until the suspension has substantially or completely run its course may provide little or no practical remedy to the affected member.
62. I have considered the Petitioner's reliance on William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others [2020] KEHC 10266 (KLR) , in which the Court recognized that the exhaustion doctrine admits of exceptions and that the availability of an alternative remedy must be considered in the context of the circumstances of each case.
63. I have also considered the Respondents' reliance on Muthinja & another vs Henry & 1756 others [2015] KECA 304 (KLR) which underscores the general rule that parties ought not to circumvent an available internal dispute resolution mechanism.
64. The two principles are not contradictory as Muthinja (Supra) establishes the general rule whereas Ramogi (Supra) recognizes that the rule cannot be applied mechanically where the alternative mechanism is at the time inadequate or ineffective.
65. To this end, it is my considered view that the circumstances do not justify a finding that the entire internal dispute resolution mechanism was unavailable or incapable of determining the dispute. However, the Court is equally unable to accept that the mere existence of a pending appeal immunizes the Respondents from judicial scrutiny irrespective of the duration or circumstances of the delay.
66. The Respondents' own case is that the delay resulted from the process of selecting members of the Appeals Committee. The explanation therefore confirms that the obstacle to the determination of the appeal was internal to the Club's own administrative arrangements.
67. The Court has also taken into account the nature of the impugned sanction and in such circumstances insisting upon exhaustion without examining the reasonableness of the delay may effectively permit the internal process to defeat the very right of appeal which it was intended to protect.
68. The Court is therefore satisfied that there exist exceptional circumstances limited to the complaint concerning the failure to progress the appeal within a reasonable time which justify the Court's intervention to that extent. This finding does not mean that the Court should itself determine the merits of the Petitioner's disciplinary appeal or substitute its decision for that of the Club's appellate organs.
69. I note that the exception to exhaustion is therefore confined to the alleged failure to facilitate and determine the Petitioner's appeal within a reasonab
[...truncated]
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IN THE MATTER OF ARTICLES 1, 2(1), 10, 19, 20, 22, 23, 35, 36, 47, 50, 165, 232, 258 OF THE CONSTITUTION OF KENYA, 2010
-AND-
IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTIONS ACT
-AND-
IN THE MATTER OF KITALE CLUB
BETWEEN.
JUDGMENT.
Introduction
1. The Petitioner vide a Petition dated the 9 th day of February, 2026 sought for reliefs: -
a) A declaration that the proceedings and verdict by the Respondent’s Disciplinary Committee of suspending the Petitioner for a period of 12 months is null and void.
b) A permanent injunction to restrain the Respondents, their officers, servants, or agents or otherwise, from interfering with the Petitioner’s enjoyment of the facilities offered by the 1 st Respondent to members.
c) A declaration that failure of the Respondents to provide an expeditious hearing and determination of the Petitioners appeal is an infringement of the Petitioner’s right to a fair hearing and fair administrative action.
d) An order of judicial review in the nature of certiorari to quash the letter/verdict dated the 10 th October, 2025 issued by the 3 rd Respondent suspending the petitioner for period of 12 months as a member of the 1 st Respondent.
e) Costs of the Petition.
Petitioner’s case
2. The Petitioner a former Member of Parliament, Gubernatorial Aspirant for the 2027 elections, and Chairman of the Board of the Kenya Bureau of Standards (KEBS) is a member of the 1 st Respondent holding Membership Number 01699. He pleaded that he has consistently paid his membership dues and conducted himself with decorum, enjoying access to the clubhouse, its amenities, and member services.
3. He pleaded that on the 10 th October 2025 he was suspended from membership by the 2 nd Respondent for a period of 12 months barring him from the Club's premises and activities for that duration.
4. He contends that this suspension was not a genuine disciplinary measure but a scheme targeting him because he raises difficult questions about the Respondents' alleged arbitrary exercise of power to the detriment of ordinary members.
5. He pleaded that after being dissatisfied with the decision made on the 10 th October, 2025 the Petitioner lodged an appeal on 10 th November 2025 and to date the 3 rd Respondent has failed, ignored, and/or deliberately avoided hearing the Appeal to the detriment of the Petitioner, the said appeal having been filed 3 months earlier.
6. The Petitioner contends that this inaction amounts to a violation of his constitutional rights under Articles 47(1) and 50(1) of the Constitution and further offends the national values and principles of governance under Article 10 of the Constitution , including the rule of law, good governance, and accountability.
Respondent’s case
7. The Respondent filed a Replying Affidavit dated the 6 th March, 2026 in which it was deponed that that the Petition is fatally defective, incompetent, and without merit on several preliminary grounds:
(a) the 1 st Respondent is an unincorporated association registered under the Societies Act (Cap 108) and therefore lacks legal capacity to sue or be sued in its own name, rendering the Petition a nullity ab initio;
(b) The Court lacks jurisdiction as the dispute arises from a private contractual relationship between a club and its member;
(c) The Petitioner approached the Court prematurely without exhausting internal dispute-resolution and appeal mechanisms; and
(d) The Petition offends the doctrine of avoidance by seeking constitutional relief for what is essentially a private disciplinary matter.
8. The Respondents pleaded that the 1 st Respondent is a private members' club governed by its Constitution and By-laws to which the Petitioner voluntarily subscribes and is bound. They pleaded that the Petitioner's 12 months’ suspension arose from an incident on 10 th October 2025 in which he brandished a firearm within the Club premises, a conduct captured on CCTV and witnessed by members.
9. They further pleaded that the 2 nd Respondent followed due process and accorded the Petitioner a right to be heard before the suspension was imposed to protect the safety of the Club environment, and that the Petitioner effectively acknowledged the process by filing a Memorandum of Appeal dated 21 st October 2025. The Respondents further aver that the appeal remains pending before the Club's governing organs, and that by filing this Petition while the internal appeal is still active the Petitioner is forum-shopping and abusing court process.
10. The Respondents pleaded that it is not that the 1 st Respondent has failed to constitute an Appeals Committee but the selection of its members is ongoing since the committee has no permanent members and this process takes time.
11. The Respondents pleaded that they have not infringed any constitutional or Club provision and that the firearm related conduct was criminal and a fundamental breach of Club rules endangering the general membership and that the suspension was a proportionate and reasonable response.
12. They Pleaded that the Petitioner's status as a public figure does not exempt him from the Club's safety regulations but rather obliges him to uphold higher standards of integrity and good order and that the Respondents pray that the Petition be dismissed with costs.
13. This court notes that the Respondent further filed a notice of preliminary objection dated the 4 th day of March, 2026 and upon the matter coming up for directions on the 12 th day of March, 2026, the Court gave directions that for the interest of judicial time and quick disposal of the Petition the main petition be canvased via written submissions.
Petitioner’s submissions
14. The Petitioner submits that Clause 14 of the Club's Constitution/bylaws required the Committee chairman on receipt of an appeal to appoint a 3-member sub-committee, then have the main committee confirm or vary or reverse that finding, and if the member remained dissatisfied to convene a 6-member appeals committee and the 3 rd Respondent has failed, ignored, or deliberately avoided constituting this sub-committee despite the appeal being filed on 10 th November 2025 and also there being repeated follow-up.
15. He submitted that this falls within recognized exceptions to the exhaustion doctrine and relied upon the case of William Odhiambo Ramogi & 3 others vs Attorney General & 4 others [2020] KEHC 10266 (KLR ) and further that the Respondents' deliberate delay is itself the rights violation complained of.
16. The Petitioner went further to submit that Respondents' failure to fix his appeal for hearing is a deliberate tactic to make him serve out the 12-month suspension unheard, violating both his administrative-fairness rights and his right to a fair hearing. He relied on the case of Joseph Kamau Magachi & Another vs Nairobi Club & another [2026] KEHC 3915 (KLR ) , where the court held that prior notice, reasons, and an opportunity to be heard are defining standards of lawful administrative action, and that action falling short of these constitutional and statutory benchmarks is both unlawful and unconstitutional.
17. The Petitioner submitted that the violation has been established and Counsel for the Petitioner urged the Honourable Court to grant the orders sought herein.
Respondent’s submissions
18. The Respondents submit that the real question is whether the Petitioner received a procedurally fair process and a lawful decision. They argue the record shows exactly this as the Committee considered CCTV footage, witness accounts, and the Petitioner's own statement, and he participated and made submissions at the hearing.
19. They submit that the Petitioner does not dispute entering the Club armed, and that his claim that the By-laws didn't prohibit firearms is contradicted by the governing By-laws which expressly bar carrying firearms or offensive weapons on Club premises making his real grievance the outcome and the severity of the sanction not the fairness of the process.
20. The Respondents relied on the case of Daniel Mutisya Kivuva v Machakos Golf Club [2019] KEHC 1262 where a petitioner who gave a defence and called witnesses was found to have had a fair opportunity to be heard. Reliance was equally placed in Mwagiru v Muthaiga Country Club Limited & 3 others [2024] KEHC 8675 where a plaintiff failed to prove unfair treatment and the court opined that club membership is voluntary and governed by internal rules. Further in Republic vs Chairman, Secretary and Treasurer of Nyanza Club Ex parte Sultan Ali Khan [2021] KEHC 12668 where the applicant who received written notice and was invited to appear was found to have had an opportunity to be heard and Lastly reliance was placed in the case of Solanki vs Nairobi Gymkhana & Another [2025] KEHC 4387
21. The Respondents further submitted that the Petitioner admittedly invoked the Club's internal appellate mechanism as shown by the Memorandum of Appeal dated the 21 st day of October, 2025 which sought review of the same decision he now asks the Court to quash. Reliance was placed in the case of Muthinja & Another vs Henry & 1756 Others [2015] KECA 304 , Ingram vs Secretary, Malindi Golf and Country Club & 2 Others [2023] KEHC 3437 and also Daniel Mutisya Kivuva case (Supra )
22. The Petitioner also relied on Ramogi & 3 Others vs Attorney General & 4 Others [2020] KEHC 10266 , conceding that exceptions to exhaustion exist but arguing Ramogi itself requires assessing the suitability of the available appeal mechanism to be sure of its suitability. Reliance was also placed in Republic vs Royal Nairobi Golf Club ex parte Ooko Erick Obura & Another [2021] KEHC 5332 where exhaustion was excused because the club couldn't say when a hearing would occur and the suspension was indefinite.
23. Lastly on remedy, the Respondent while relying on Mitu-Bell Welfare Society vs Kenya Airports Authority & 3 Others [2021] KESC 34 stated that constitutional remedies must be "specific, appropriate, clear, effective" that even if the Court finds the appeal delay warranted intervention the proportionate remedy would be to direct the internal appeal to conclude within a specified period
24. The Respondent prayer was for the dismissal of the Petition in its entirety while declining of all reliefs sought with costs to the Respondents.
Analysis and Determination
25. I have very carefully considered the Petition, the Affidavits in support and in opposition and the subsequent submissions filed as well as the authorities relied upon in support thereof. The issues that arise for consideration can be summed up as follows:
1) Whether the 1 st & 2 nd Respondent have the legal capacity to be sued in these proceedings.
2) Which version of the 1 st Respondent's Constitution and By-laws was in force and applicable at the time of the Petitioner's suspension and subsequent appeal, and whether that version was properly adopted and binding on the Petitioner.
3) Whether the circumstances of this case fall within any recognized exception to the doctrine of exhaustion.
4) Whether the Petition as presented raises any constitutional issues against the 3 rd Respondent.
5) Whether the Petitioner is entitled to the reliefs sought .
26. A Constitutional Petition must meet the threshold of specificity and further, the allegations put forth must also be established by evidence. This principle was affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR ) as follows:
“(349)…. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154 : the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
27. To this end, this Court must therefore consider whether the evidence placed before it demonstrates the alleged infringement of each of the constitutional rights relied upon by the Petitioner.
28. On the first issue, the Respondents contend through the Replying Affidavit of Mercy Njuguna that the 1 st Respondent is an unincorporated association registered under the Societies Act (Cap 108) and therefore lacks legal capacity to sue or be sued in its own name and thus it renders the Petition as framed a nullity ab initio .
29. The Court has perused the petitioners’ submissions and I note that the Petitioner has not addressed this objection in his submissions which means he has proceeded on the assumption that the all Respondents are all properly before the Court.
30. It is trite and settled law that an unincorporated association has no legal existence separate from its members, and is therefore incapable of suing or being sued in its own name.
31. I note that that this principle traces to The Fort Hall Bakery Supply Co. vs Fredrick Muigai Wangoe [1959] EA 474 , where Templeton J held that
"a non-existent person cannot sue, and once the court is made aware that the plaintiff is non-existent, and therefore incapable of maintaining the action, it cannot allow the action to proceed."
32. The said principle applies equally to Societies registered under the Societies Act, Cap 108 as registration under that Act does not confer corporate personality but merely regularizes the society's existence for regulatory purposes.
33. This was affirmed in Kisii County Stakeholders Forum v Kenya Agricultural Research Institute & 2 others [2016] KEHC 2960 (KLR) , where the Court held that
“12. I have considered the preliminary objection raised and I have no doubt in my mind that the petitioner is a non-incorporated body of many members registered under the Societies Act Cap 108 Laws of Kenya. Indeed, this is the description that the Petitioner has given itself in the first paragraph of its petition. The petition does not give the petitioner any other name or capacity.
13. I concur with the decision of Ekirapa Aburili J in Football Kenya Federation vs Premier League Limited and 4 others (supra) where she held that there must be a statutory provision that permits a society to sue in its name for good reason, especially where the society comprises a large number of members, but that even where such happens, it can only be by way of a representative suit where only a few members would sue on behalf of the rest.
14. Order 1 Rule 8 of the Civil Procedure Rules provides as follows:
”(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.”
15. The Petitioner in this suit is a Stakeholders Forum registered under the Societies Act. It is therefore my finding that it has no capacity to sue in the manner in which it has filed the petition. This is a pure point of law that falls directly within the purview of Preliminary Objection as observed in the landmark case of Mukisa Biscuits Manufacturing Co. Ltd vs West end Distribution Ltd (1969) EA 696 in which a preliminary objection was described as consisting of a point of law which has been pleaded, or which arises by implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
34. Applying these principles to the facts before the Court, I find that it is not disputed and indeed it is deponed to on oath by the 1 st Respondent's own Chairperson, the 3 rd Respondent, that Kitale Club is registered under the Societies Act, Cap 108 and is an unincorporated association which is also as evidenced with the annexture attached thereto and as such the 1 st Respondent has no legal personality distinct from its membership and cannot properly be sued in its own name.
35. I further note that the same position applies to the 2 nd Respondent described as an organ of the 1 st Respondent as there is no material evidence before this Court demonstrating that the said Committee is incorporated or otherwise possesses an independent legal personality separate from that of the 1 st Respondent hence it equally lacks capacity to be sued in its own name.
36. However, the position of the 3 rd Respondent is materially different being that the 3rd Respondent is a natural person holding a defined office within the 1 st Respondent’s governance structure and a perusal of the Replying Affidavit demonstrates that she has defended the Petition substantively on the merits.
37. I further note that the Petition discloses a distinct complaint against the 3 rd Respondent, that following the Petitioner's lodging of his appeal against the disciplinary decision, she failed, ignored and/or deliberately avoided constituting or facilitating the body through which the appeal was to be heard and determined therefore the complaint against the 3 rd Respondent is not merely founded upon the legal personality of 1 st Respondent or the 2 nd Respondent but upon an alleged omission on the part of a natural person occupying the office of the Chairperson.
38. The cause of action against the 3rd Respondent is therefore not dependent solely upon the legal personality of the 1 st Respondent or the 2 nd Respondent. It also concerns an alleged omission on the part of the 3 rd Respondent in the discharge of the functions attributed to her as Chairperson of the Club.
39. Whether the 3rd Respondent was under a duty, arising from the Club's Constitution or By-laws, to constitute the appellate body, whether she failed to discharge that duty and whether such failure amounted to a violation of the Petitioner's constitutional rights are substantive questions which cannot properly be determined at this stage of considering the legal capacity of the other respondents.
40. In the circumstances, the objection on the legal capacity of the 1 st and 2 nd Respondents succeeds to that extent. The Petition is accordingly struck out as against the 1 st & 2 nd Respondent.
41. The Petition shall remain as against the 3 rd Respondent and the Court shall proceed to determine the issues arising from the alleged failure by the 3 rd Respondent to constitute or facilitate the hearing and determination of the Petitioner's appeal, together with the other issues that have arose for determination in the Petition
42. On the second issue, two distinct texts purporting to constitute the Constitution and By-laws of the 1 st Respondent have been placed before the Court. The first is the version containing what has been referred to as " Clause 14 ", which the Petitioner pleaded verbatim in Paragraph 18 of the Petition and reproduced in paragraph 19 of his Written Submissions.
43. That provision sets out a relatively simple appellate structure in the sense that upon receipt of an appeal, " the chairman of the committee " is required to appoint a three-member sub-committee, whose findings are thereafter placed before the main Committee for confirmation, variation or reversal and where the member remains dissatisfied, then the chairman is required to constitute an Appeals Committee comprising members of the Committee and senior members of the Club, whose decision is stated to be final.
44. I further note that the second document is the " Revised Constitution and By-laws (November 2024) " exhibited by the Respondents as "MN-2" to the Replying Affidavit. That document contains a materially different and more elaborate appellate framework under its Article 8.
45. It provides for a standing eleven-member Appeals Committee constituted through AGM elections and appointments by the Board of Trustees and by the Management Committee. However, it limited nomination by the Chairperson and that Chairperson's role being confined to two of the eleven positions subject to AGM approval without forgetting that it further provides for specified timelines relating to the lodging, hearing and determination of an appeal.
46. The difference between the two texts is material. It is not merely a question of drafting or numbering. The two provisions prescribe materially different mechanisms for the constitution of the appellate body, identify different actors involved in its constitution, and provide different procedural timelines.
47. I am of the considered view that where a voluntary association's constitution or rules are placed in issue, the party relying upon a particular provision bears the evidential burden of establishing the terms of the governing instrument upon which reliance is placed.
48. In the present case, the Respondents rely upon the document marked "MN-2" and, in particular, upon its more elaborate provisions relating to the Appeals Committee. However, the document exhibited as "Revised November 2024" bears visible internal review annotations, including comments marked "Commented [KA17]," "Commented [KA18]," "Commented [KA19]," "Commented [KA20]" and "Commented [KA21]," appearing at various provisions, including those relating to misbehavior, appeals, expulsion and the composition of the Appeals Committee.
49. These features raise a legitimate evidentiary question as to whether the document was a final and operative constitutional instrument or remained a working draft under review.
50. More importantly, the Respondents have not placed before the Court the primary evidence demonstrating the formal adoption of that revised text. No minutes of an Annual General Meeting or Special General Meeting approving the revised Constitution and By-laws have been exhibited. There is likewise no resolution, attendance register, notice of the relevant meeting, or other evidence demonstrating that the membership formally adopted the November 2024 revision in accordance with the procedure prescribed for amendment of the Club's governing instrument.
51. The designation "Revised November 2024", standing alone, is not proof that the document was validly adopted or that it came into force in November 2024. A document may be prepared or revised on a particular date without necessarily having been approved or brought into force on that date. The Court must therefore distinguish between the date appearing on a document and proof of its legal adoption and commencement.
52. The Petitioner relies upon the version containing Clause 14 and has reproduced its provisions in his Petition and submissions. He has however, exhibited a signed, dated and authenticated copy of that version. The copy before the Court has minutes showing the same was adopted on the 14 th December 2012 at a Special General Meeting of the Association. In essence therefore, the court will be inclined to adopt the same as the operative document binding the parties herein, contrary to the averments in the Replying Affidavit at paragraph 4 that seems to place reliance and weight on the draft bylaws, for which the adoption has not been demonstrated.
53. I therefore find that the Petitioners averments does establish to the requisite degree of certainty which version of the Constitution and By-laws was validly in force at the time of the Petitioner's suspension and appeal.
54. For purposes of the issues that follows, I shall consider the Petitioner's case on the basis of the Clause 14 framework which he consistently pleaded and relied upon as a finding that the said version has been conclusively proved to be the operative Constitution and as the framework upon which his pleaded grievance in breach of the Constitution is founded in the sense that whether the 3 rd Respondent failed to discharge her constitutional or legal obligation.
55. On the 3 rd issue for determination in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) , the Court of Appeal emphasized that where a dispute resolution mechanism exists outside the courts, the same ought to be exhausted before the jurisdiction of the courts is invoked and that courts should ordinarily be the fora of last resort.
56. I note that the principle however is not absolute as the Court retains the power to intervene in appropriate circumstances where the available mechanism is inadequate, ineffective, unavailable, incapable of granting the relief sought, or where insisting upon its exhaustion would result in injustice.
57. In the present case, there is no dispute that the Petitioner invoked the Club's internal appellate process. The Petitioner states that he lodged his appeal on 10 th November 2025 and thereafter made follow-ups but that the appeal was not fixed for hearing.
58. The 3 rd Respondent on the other hand is of the contention that the appeal remains pending before the Club's governing organs and that the delay arose because the Appeals Committee was in the process of being constituted its members not being permanent.
59. I note that the chronology of events is material herein. The Petitioner's case is that the impugned suspension was imposed on 10 th October 2025 and he lodged the appeal 10 th November 2025 and by the time he approached this Court in February 2026 the appeal had not been heard or determined to which the Respondents acknowledge that the appeal remained pending and explained the position on the basis that the Appeals Committee was still being constituted.
60. The Court is mindful that internal bodies of voluntary associations may require some time to convene, constitute committees or process appeals. The doctrine of exhaustion cannot be applied in a manner that requires an internal body to determine an appeal instantaneously. However, what is required is that the process be reasonably capable of being completed within a reasonable period and in accordance with the association's governing framework. In this case the evidentiary difficulty identified in the preceding issue assumes significance.
61. Nevertheless, the absence of proof of a specific contractual timeline does not mean that an internal appeal may remain pending indefinitely as an appeal which has been properly lodged must be dealt with within a reasonable period. For an issue to be handled expeditiously especially since the petitioner is facing a suspension for a fixed period of twelve months and an appeal which is not heard until the suspension has substantially or completely run its course may provide little or no practical remedy to the affected member.
62. I have considered the Petitioner's reliance on William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others [2020] KEHC 10266 (KLR) , in which the Court recognized that the exhaustion doctrine admits of exceptions and that the availability of an alternative remedy must be considered in the context of the circumstances of each case.
63. I have also considered the Respondents' reliance on Muthinja & another vs Henry & 1756 others [2015] KECA 304 (KLR) which underscores the general rule that parties ought not to circumvent an available internal dispute resolution mechanism.
64. The two principles are not contradictory as Muthinja (Supra) establishes the general rule whereas Ramogi (Supra) recognizes that the rule cannot be applied mechanically where the alternative mechanism is at the time inadequate or ineffective.
65. To this end, it is my considered view that the circumstances do not justify a finding that the entire internal dispute resolution mechanism was unavailable or incapable of determining the dispute. However, the Court is equally unable to accept that the mere existence of a pending appeal immunizes the Respondents from judicial scrutiny irrespective of the duration or circumstances of the delay.
66. The Respondents' own case is that the delay resulted from the process of selecting members of the Appeals Committee. The explanation therefore confirms that the obstacle to the determination of the appeal was internal to the Club's own administrative arrangements.
67. The Court has also taken into account the nature of the impugned sanction and in such circumstances insisting upon exhaustion without examining the reasonableness of the delay may effectively permit the internal process to defeat the very right of appeal which it was intended to protect.
68. The Court is therefore satisfied that there exist exceptional circumstances limited to the complaint concerning the failure to progress the appeal within a reasonable time which justify the Court's intervention to that extent. This finding does not mean that the Court should itself determine the merits of the Petitioner's disciplinary appeal or substitute its decision for that of the Club's appellate organs.
69. I note that the exception to exhaustion is therefore confined to the alleged failure to facilitate and determine the Petitioner's appeal within a reasonab
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