1 The Application before this court is the one dated 9th June 2025 wherein the applicant seeks the following Orders: -
1) …spent.
2) THAT this Honorable Court be pleased to vary and/or set aside the orders of the court issued on 4th June 2025.
3) THAT this Honorable Court proceeds and issue any other or further orders in the interest of justice for expeditious hearing and disposal of the Application herein.
4) THAT the costs of this application be provided for.
2 On 4th June 2025, this Court issued an Order granting leave for institution of Judicial Review proceedings and ordered issued that the leave so granted operates as a stay of further implementation of the interim Declaration of results dated 15th May 2025 including presentation of the election results during the 1st Respondent's Annual General Meeting.
3 This has not sat well with The applicant who allege that since the impugned order was issued without disclosure of fundamental and/or material facts by the Ex parte Applicant.
4 It is the applicants case that the issuance of the order was influenced by the allegations framed by the Ex parte Applicant as contained in Paragraphs 6-11 of the Statutory Statement and Paragraphs 15-18 of the Verifying Affidavit to the extent that the Respondents only granted voters merely 14 days for voter register scrutiny instead of 21 days as provided by the law.
5 According to the applicant,The Ex parte Applicant failed to disclose a Notice and/ or Communique by the 3rd Respondent issued on 7th April 2025 to all the members/voters titled 'Voter Register-Verification of Eligibility to Vote' which is the actual notice wherein members were expressly requested to inspect the Register.
6 It is the applicants case that had the said Notice/ Communique been availed to the Court, it would show clearly that by the time of closure of the voter's register on 6th May 2025, voters had been granted a total of 29 days to conduct voter verification, which is way excess of the minimum period prescribed by the law.
7 The applicant further argues that the before moving the court,the applicant did not invoke Regulation M of the Accountants Regulation provides the procedure for making a compliant, period of making it and upon its lodging, the Council of the 1st Respondent is obligated to constitute an ad hoc appeals Committee to hear the complaint.
8 This is in breach Section 9(2) of the Fair Administrative Action Act, and no leave was sought to be exempted from the requirement to exhaust the said internal procedures.
9 Rule 3 of the 1st Schedule to the Accountants Act mandates the Institute to conduct an Annual General Meeting not later than six months after the end of each year, which means that the last date of holding an Annual General Meeting cannot go beyond June 2025 as by law required.
10 Rule 1 Of the 2nd Schedule also provides for election of the Council members at the Annual General Meeting of the Institute
11 According to Rule 5 of the 1st Schedule thereof, the Respondent is required by law to include the agenda of election of chairman and Council members as a key business to be transacted in the Annual General Meeting.
12 It is the applicants case that the order as framed, injuncts elections of all cadres including positions which are not subject of dispute before the court, being the position of Chairmanship.
13 It is its case that the term of the current Chairman of the Institute shall end at the Annual General Meeting upon the election of a new Chairman and the election of the Chairman must be confirmed during the Annual General Meeting of the Institute, which by law, must be held by June 2025.
14 The Respondents EX Parte applicant’s case;
a. Regulation M of the 5th Schedule to the Accountants Regulations,2022 provides as follows-
15 A person who is aggrieved by the results of an election may, within seven days after the Annual General Meeting in which the presentation of the results of the election is made, lodge a written complaint with the Secretary to the Council for determination.
16 It is irrefutable that Regulation M of the 5th Schedule to the Accountants Regulations,2022, applies against a challenge to the validity or otherwise of election results and not to an application that challenge irrational, unreasonable and ulta vires acts of the Respondents as well as violation of constitutional rights under Article 23 of the Constitution of Kenya as in the case of the Ex-parte Applicant.
17 It is its case that the Respondents in their submissions attempts to mislead this Honourable court that Ex- parte Applicant’s substantive Application is challenges the results of the election, however, its challenging the irrational, unreasonable and ulta vires acts by the Respondents in the preparations and conduct of the election entire electoral process.
18 It argues that the doctrine of ripeness does not apply in this matter because the cause of action in this matter arise from wrongful acts, irrational and ultra vires decision in the preparation of the elections, clearing of candidates and the general conduct of the elections by the Respondents and not the validity of the results of the purported elections.
19 It is its case that the violation of clear provisions of statutes and the Regulations coupled with procedural impropriety; the doctrine of ripeness does not apply and the Respondents by alleging this doctrine intends to defeat my application to be a mere academic considering the as per the notice of general meeting the issue of elector process is final and the only remaining issue.
20 Thus, the Ex-parte Applicant invoked the jurisdiction of the court for conservatory stay order to prevent this matter being defeated technically and rendered mere academic exercise.
21 Further, the issue raised and the cause of action in this matter cannot be dealt with internally considering the issue is wrongful acts and irrational conducts of the respondents while conducting the election.
22 Regulation M(1) uses the word “may” suggesting that the Ex- parte Applicant had an option to appeal to the council or take such other legitimate action such as filing this suit. The Ex- parte Applicant is challenging the illegal, irrational, unreasonable and ultra vires acts decisions of the Respondents which can only be handled and resolved by this honourable court and not the council.
23 Article 50 (1) of the Constitution, provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. This provision as read together with the option granted to an aggrieved person under Regulation M(1). by the use of the word “may” is in tandem with this Article.
24 An aggrieved person cannot be estopped from exercising his/ her right to seek resolution of a dispute before a court where any other alternative mechanism is not appropriate. In support of this proposition, we rely on the case of Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR where OdungaJudge at paragraph 51 and 52 expressed himself as follows…In matters of jurisdiction of superior courts, it is however my view that one ought to take in consideration the well-known principle as enunciated in East African Railways Corp. vs. Anthony Sefu [1973] EA 327,where it was held that “It is, a well established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.”
25 The Respondents Application as prayed is an invitation to this honourable court to close its eyes to constitutional violations which would amount ousting, adjourning, restricting and or extinguishing the jurisdiction of this honourable court and dereliction of its duty.
26 Article 162 of the Constitution provides for superior courts. It is trite that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.
27 Reliance is placed on the case of Republic v Benjamin JomoWashiali, Majority Chief Whip, National Assembly & 4 others Exparte Alfred Kiptoo Keter & 3 others [2018] eKLR Odunga Judge at paragraph 49,51 and 97 expressed himself as that ...Therefore any provision purporting to limit the jurisdiction of the High Court must itself derive its validity from the Constitution itself and must do so expressly and not by implication unless the implication is necessary for the carrying into effect the provisions of the Act.
28 Reliance is also placed in the case of Apollo Mboya v Attorney General & 2 others [2018] eKLR had the following to say under paragraph 76,81 and 87 –…Traditionally, the courts have interpreted provisions ousting the jurisdiction of Courts narrowly that is to mean that, the decision is still subject to judicial review.In other words, the decision under attack may be final on the facts but it is not to be regarded as final on the law. Denning L.J. put is better when he stated that: -"I find itvery well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.
29 The Council does not have power to interrogate procedural and legality matters relating ultra to employment and labour related disputes which is the dominion this honourable court.
30 This was the position held in the case of Abdikadir Suleiman v County Government of Isiolo & another [2015] eKLR at page 4…. In the present case the claimant has alleged that the oral dismissal was illegal, unlawful and unconstitutional. It is the holding of the court that the jurisdiction to entertain that allegation and to make a primary conclusive finding thereon is vested in the court and the Commission does not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy as is prayed for by the claimant in this case.
31 It is the exparte applicants position that this court should not vary or set aside its orders are prayed because the Ex- parte Applicant is not challenging the election results but the flawed entire electoral processes by arising from the Ultra vires, irrational and procedurally wrong actions by the Respondents.
32 The Respondents prepared and conducted the elections in blatant violations of express violations of the as illustrated in the subsequent paragraphs of these submissions. The statutory guidelines are to be strictly observed and failure to do so would lead to an illegality.
33 In the case ofGithu Muigai & Another v Law Society of Kenya &Another (2015) eKLR it was held :-“In our view, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority …”
34 In MTN v Kie Limited & Another (2020) Eklr where at paragraph 71, the court stated that... “Courts have held that Courts will interfere with the internal disciplinary action only when the process is flawed. The interference will thus be to put back on truck the disciplinary process but not to do away with it all together”.
35 In the same case the at paragraph 72 the court reiterated that. where grave injustice might result or where justice might not by other means be attained. The hearing of the claimants has not run its course, but the procedure adopted with sanction before according him a fair chance to be heard in the presence of his Union or a fellow employee of his choice not accorded to him. This far the court will interference with the proceedings as by not so doing grave injustice will be occasioned to the Claimant. This is one such exceptional case and thus the Court directs as follows;
36 Accordingly, in as much it is our contention that the current substantive application’s subject matter is not subject to Regulation M(1), noting that two members of the council were contestants in the purported elections and that they still sit in the council that the Respondents want the Ex-parte Applicant to lodge his complaint, it is therefore apparent beyond any doubt that he will not get any justice from the council.
37 The purported elections were held in clear contravention of the law especially as per Paragraph 1 of the First Schedule to the Accountants Act which provides that the Chairperson shall be elected during the annual general meeting of the Institute.
38 It is its case that on the contrary, the elections were purportedly held between 12th and 15th May 2025 in total contravention of the said provision.
39 The Respondents acted irrationally, ultra vires and in total violation of the clear violation of the law by allowing Council members to contest for the position of chairperson and member without first resigning as per Paragraph 13 of Regulation E of the Accountants Regulations which provides that “A member serving on the Council and wishing to contest for the position of the chairman shall resign and communicate to the Council before the vacancies are declared and such resignation shall take effect at the next Annual General Meeting.”
40 The Respondents, by clearing and allowing a council member to vie for the position of the chairperson without first resigning, acted irrationally, ultra vires and in total violation of the clear violation of the law. Hence the whole electoral process was tainted with procedural impropriety.
41 The Respondents arbitrarily set the elections to be held between 12th and 15th days of May, 2025 whereas the purported elected Chairman and members of the council are only planned to be presented and ‘confirmed’ during the 1st Respondent’s Annual General Meeting in clear contravention of the law.
42 Contrary to the Respondents claims that the Ex-parte Applicant deliberately failed to disclose of suppressed material facts, the said Communique is material to the Ex-parte Applicant’s Application as it clearly indicates the election dates in which are in contravention of express provisions of Paragraph 1 of the First Schedule to the Accountants Act which provides that the Chairperson shall be elected during the annual general meeting of the Institute.
43 It is irrefutable that the notice that the Ex-parte Applicant is wrongly acused of concealing actually aids his argument because going by the dates the Respondents set for the election, that is, 12th May, 2025, being the first election day, the latest day the voters’ register should have been locked would have been 12/04/2025 being at least thirty (30) days before the actual election date. Thus, the members of the 1st Respondent should have been granted access to the voters’ register at least on 20/03/2025 up until 12/04/2025 and not on 07/04/2025 as claimed by the Respondents.
44 According to them the Respondents admits that they actually locked the voters’ register on 06/05/2025 whereas the elections were conducted only six (6) days later, between 12th and 15th May, 2025, and not at least thirty days before the election as required by the law fact affirmed by the Respondents Communique.
45 The voters’ register having not been locked within the required timelines, whatever date the members of the 1st Respondent were granted access to the voters’ register was definitely irregular and contrary to the express provisions of the law.
46 The Ex-parte Applicant is merely requesting the court to preserve the preserve the subject matter. On this they are guided by the case of Zena Achieng Mohamed v County Public Service Board of Kilifi & 6 others [2021] eKLR in which the court stated as follows at Paragraph 15….In my understanding, the Petitioner is asking the Court to preserve the status quo, pending the hearing and determination of her appeal before the Public Service Commission.
47 In the case of James Orre v Office of the Governor, County Government of Marsabit & another [2021] eKLR where the court held as follows at page 5- ……These are weighty issues touching on the validity of the actions of the Respondents in a manner advanced so as to oust the jurisdiction of the Public Service Commission as an arbiter of the issues in dispute in the circumstances. Here, as duly submitted and amplified by the Petitioner/Respondent, the doctrine of exhaustion issurpassed by the circumstances and subject matter of this individual case.
48 Similarly, in the case of Republic V Royal Nairobi Golf Club at paragraphs 37,38,40,41,42 the court said that…t it must be pointed out that illegal and unfair preliminary procedural decisions can also undermine the fairness of the entire decision making process and the lawfulness of the eventual substantive decision, and merit intervention of this Court at an early stage of the decision making.
49 They are further guided by the case of Anne WambuiKamuiru vs Kenya Airways:- Cause No. 1684/2015), where Court held as follows:- There is a convergence in agreement that an employer who commences disciplinary proceedings must ensure due process, fair hearing and due regard to natural justice. The Courts on their part will not interfere with proper internal disciplinary processes unless the Court is satisfied that the process is marred with irregularities or it is stage managed towards dismissal
50 The Respondents and its operations will not suffer any prejudice or be affected in any way whatsoever because previously when the Respondents were faced with a similar scenario, they adjourned the agenda for the elections for theChairman and Council Members.
51 The allegation the 1st Respondents Annual General Meeting must be held on or before 30th June 2025, is a well calculated move to deceive this court to set aside its orders issued on 4th June 2025 whereas the outing going chairperson was elected into office during Annual General meeting held on 29th September 2023 to serve for one term of two years ending 28th September 2025”.
52 The Respondents own notice for the 45th Annual General Meeting, when there was a pending case being HCJR MiscE032/2023 Andrew Bulemi Vs ICPAK Council, deferred the consideration of the agenda for titled “To present the elected Chairman and Council Member as per First Schedule, paragraph 5(1)(b)(iii) of the Accountants Act, No. 15 of 20028”.This clearly demonstrates that the agenda item stayed by virtue of the court order the Respondents’ are seeking to set aside cannot prevent or in any way impede the Annual General Meeting from proceeding as scheduled.
53 Thus, the 1st Respondent’s 47th Annual General Meeting to be held on 13/06/2025 as per the notice of the 47th Annual General Meeting dated 13/05/2025 will proceed as scheduled and all the business intended to conducted therein will be transacted save for agenda number eight (8) therein having being stayed by the court order dated 04/06/2025.
54 Section 44 of the Accountants Act provides that the Council may exercise and perform its functions notwithstanding any vacancy among the members and the validity of any proceedings of the Council shall not be affected by any such vacancy or any defect in the appointment of a member. Additionally, there is no fixed quorum for the meetings of the Council and the arrangements relating to meetings of the Council as the Council is empowered to determine its own quorum pursuant to paragraph 6 of the Second Schedule to the Accountants Act.
55 There will be no vacancy because Paragraph 1(1) of the First Schedule to the Accountants Act provides that unless the chairperson of the council earlier vacates the office, a person elected to the office of Chairperson shall hold the office until another Chairperson is elected and in case of any vacancy Paragraph 2(1) of the First Schedule to the Accountants Act provides that in case a vacancy in the position of the chairperson the, the Cabinet Secretary for Finance can appoint a person to act as Chairperson on the advice of the Council.
56 In contrast if the stay orders are varied and/or set aside, the Respondents will get an opportunity to enjoy the proceeds of their irregular, illegal, unreasonable, and ultra vires actions whereas the Ex- parte Applicants rights will be violated.
57 Section 27 of the Civil Procedure Act states that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct. In this case, we humbly seek the cost of the suit be awarded to the Ex Parte applicant herein.
58 They submit that the Respondent/applicants case is predicated on the doctrine of ripeness and/or failure to disclose of material facts and prejudice suffered by the 1st Respondent.
59 Regulation M of the 5th Schedule to the Accountants Regulations,2022 provides as follows-
a. A person who is aggrieved by the results of an election may, within seven days after the Annual General Meeting in which the presentation of the results of the election is made, lodge a written complaint with the Secretary to the Council for determination.
60 It is submitted that Regulation M of the 5th Schedule to the Accountants Regulations,2022, applies against a challenge to the validity or otherwise of election results and not to an application that challenge irrational, unreasonable and ulta vires acts of the Respondents as well as violation of constitutional rights under Article 23 of the Constitution of Kenya as in the case of the Ex-parte Applicant.
61 The Ex- parte Applicant’s substantive Application challenges the irrational, unreasonable and ulta vires acts by the Respondents in the preparations and conduct of the election entire electoral process and The doctrine of ripeness does not apply andthe issue raised and the cause of action in this matter cannot be dealt with internally.
62 It is submitted that the Ex- parte Applicant had an option to appeal to the council or take such other legitimate action such as filing this suit since the Regulation uses the word “may”.
63 Article 50 (1) of the Constitution, provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
64 In the case of Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR where OdungaJudge at paragraph 51 and 52 expressed himself as follows…In matters of jurisdiction of superior courts, it is however my view that one ought to take in consideration the well-known principle as enunciated in East African Railways Corp. vs. Anthony Sefu [1973] EA 327,where it was held that “It is, a well established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.”
65 Reliance is placed in Article 162 of the Constitution provides for superior courts. It is trite that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect. We rely
66 Reliance is placed on the case of Republic v Benjamin JomoWashiali, Majority Chief Whip, National Assembly & 4 others Exparte Alfred Kiptoo Keter & 3 others [2018] eKLR Odunga Judge at paragraph 49,51 and 97 expressed himself as that ...Therefore any provision purporting to limit the jurisdiction of the High Court must itself derive its validity from the Constitution itself and must do so expressly and not by implication unless the implication is necessary for the carrying into effect the provisions of the Act.
67 In the case of Apollo Mboya v Attorney General & 2 others [2018] eKLR had the following to say under paragraph 76,81 and 87 –…Traditionally, the courts have interpreted provisions ousting the jurisdiction of Courts narrowly that is to mean that, the decision is still subject to judicial review.In other words, the decision under attack may be final on the facts but it is not to be regarded as final on the law. Denning L.J. put is better when he stated that: -"I find itvery well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.
68 In the case of Abdikadir Suleiman v County Government of Isiolo & another [2015] eKLR at page 4…. In the present case the claimant has alleged that the oral dismissal was illegal, unlawful and unconstitutional. It is the holding of the court that the jurisdiction to entertain that allegation and to make a primary conclusive finding thereon is vested in the court and the Commission does not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy as is prayed for by the claimant in this case.
69 In the case of Republic V Public Procurement Administrative Review Board & 2 Others Ex-Parte Selex Sistemi Integrati [2008] Eklr where it was held as follows- It is a well established principle that statutory provisions purporting to oust jurisdiction of the court should be construed strictly and narrowly.
70 The exparte in urging the court not to set aside the order relies in the case of MTN v Kie Limited & Another (2020) Eklr where at paragraph 71, the court stated that... “Courts have held that Courts will interfere with the internal disciplinary action only when the process is flawed. The interference will thus be to put back on truck the disciplinary process but not to do away with it all together”.
71 In the same case the at paragraph 72 the court reiterated that. where grave injustice might result or where justice might not by other means be attained. The hearing of the claimants has not run its course, but the procedure adopted with sanction before according him a fair chance to be heard in the presence of his Union or a fellow employee of his choice not accorded to him. This far the court will interference with the proceedings as by not so doing grave injustice will be occasioned to the Claimant. This is one such exceptional case and thus the Court directs as follows;
72 It is submitted that two members of the council and they will not get any justice from the council.
73 It is submitted that the elections were held in clear contravention of the law especially as per Paragraph 1 of the First Schedule to the Accountants Act which provides that the Chairperson shall be elected during the annual general meeting of the Institute. On the contrary, the elections were purportedly held between 12th and 15th May 2025 in total contravention of the said provision.
74 They submit that The Respondents acted irrationally, ultra vires and in total violation of the clear violation of the law by allowing Council members to contest for the position of chairperson and member without first resigning as per Paragraph 13 of Regulation E of the Accountants Regulations which provides that “A member serving on the Council and wishing to contest for the position of the chairman shall resign and communicate to the Council before the vacancies are declared and such resignation shall take effect at the next Annual General Meeting.”
75 The purported elections were tainted with procedural impropriety as well elaborated in verifying Affidavit and Statutory Statement which informed the court to issue the Order sought to be set aside which we invite this court to peruse and consider as part of our reply to the application by the Respondents dated 9th June 2025.
76 It is submitted that the notice that the Ex-parte Applicant is wrongly accused of concealing actually aids his argument.
77 Indeed the Respondents admits that they actually locked the voters’ register on 06/05/2025 whereas the elections were conducted only six (6) days later, between 12th and 15th May, 2025, and not at least thirty days before the election as required by the law fact affirmed by the Respondents Communique. The voters’ register having not been locked within the required timelines, whatever date the members of the 1st Respondent were granted access to the voters’ register was definitely irregular and contrary to the express provisions of the law.
78 They rely on the case of Zena Achieng Mohamed v County Public Service Board of Kilifi & 6 others [2021] eKLR in which the court stated as follows at Paragraph 15….In my understanding, the Petitioner is asking the Court to preserve the status quo, pending the hearing and determination of her appeal before the Public Service Commission.
79 They also guided by the case of James Orre v Office of the Governor, County Government of Marsabit & another [2021] eKLR where the court held as follows at page
80 5- ……These are weighty issues touching on the validity of the actions of the Respondents in a manner advanced so as to oust the jurisdiction of the Public Service Commission as an arbiter of the issues in dispute in the circumstances. Here, as duly submitted and amplified by the Petitioner/Respondent, the doctrine of exhaustion issurpassed by the circumstances and subject matter of this individual case.
81 Similarly, in the case of Republic V Royal Nairobi Golf Club at paragraphs 37,38,40,41,42 the court said that…t it must be pointed out that illegal and unfair preliminary procedural decisions can also undermine the fairness of the entire decision making process and the lawfulness of the eventual substantive decision, and merit intervention of this Court at an early stage of the decision making.
82 Reliance is further placed in the case of Anne WambuiKamuiru vs Kenya Airways:- Cause No. 1684/2015), where Court held as follows:- There is a convergence in agreement that an employer who commences disci
[...truncated]
1) …spent.
2) THAT this Honorable Court be pleased to vary and/or set aside the orders of the court issued on 4th June 2025.
3) THAT this Honorable Court proceeds and issue any other or further orders in the interest of justice for expeditious hearing and disposal of the Application herein.
4) THAT the costs of this application be provided for.
2 On 4th June 2025, this Court issued an Order granting leave for institution of Judicial Review proceedings and ordered issued that the leave so granted operates as a stay of further implementation of the interim Declaration of results dated 15th May 2025 including presentation of the election results during the 1st Respondent's Annual General Meeting.
3 This has not sat well with The applicant who allege that since the impugned order was issued without disclosure of fundamental and/or material facts by the Ex parte Applicant.
4 It is the applicants case that the issuance of the order was influenced by the allegations framed by the Ex parte Applicant as contained in Paragraphs 6-11 of the Statutory Statement and Paragraphs 15-18 of the Verifying Affidavit to the extent that the Respondents only granted voters merely 14 days for voter register scrutiny instead of 21 days as provided by the law.
5 According to the applicant,The Ex parte Applicant failed to disclose a Notice and/ or Communique by the 3rd Respondent issued on 7th April 2025 to all the members/voters titled 'Voter Register-Verification of Eligibility to Vote' which is the actual notice wherein members were expressly requested to inspect the Register.
6 It is the applicants case that had the said Notice/ Communique been availed to the Court, it would show clearly that by the time of closure of the voter's register on 6th May 2025, voters had been granted a total of 29 days to conduct voter verification, which is way excess of the minimum period prescribed by the law.
7 The applicant further argues that the before moving the court,the applicant did not invoke Regulation M of the Accountants Regulation provides the procedure for making a compliant, period of making it and upon its lodging, the Council of the 1st Respondent is obligated to constitute an ad hoc appeals Committee to hear the complaint.
8 This is in breach Section 9(2) of the Fair Administrative Action Act, and no leave was sought to be exempted from the requirement to exhaust the said internal procedures.
9 Rule 3 of the 1st Schedule to the Accountants Act mandates the Institute to conduct an Annual General Meeting not later than six months after the end of each year, which means that the last date of holding an Annual General Meeting cannot go beyond June 2025 as by law required.
10 Rule 1 Of the 2nd Schedule also provides for election of the Council members at the Annual General Meeting of the Institute
11 According to Rule 5 of the 1st Schedule thereof, the Respondent is required by law to include the agenda of election of chairman and Council members as a key business to be transacted in the Annual General Meeting.
12 It is the applicants case that the order as framed, injuncts elections of all cadres including positions which are not subject of dispute before the court, being the position of Chairmanship.
13 It is its case that the term of the current Chairman of the Institute shall end at the Annual General Meeting upon the election of a new Chairman and the election of the Chairman must be confirmed during the Annual General Meeting of the Institute, which by law, must be held by June 2025.
14 The Respondents EX Parte applicant’s case;
a. Regulation M of the 5th Schedule to the Accountants Regulations,2022 provides as follows-
15 A person who is aggrieved by the results of an election may, within seven days after the Annual General Meeting in which the presentation of the results of the election is made, lodge a written complaint with the Secretary to the Council for determination.
16 It is irrefutable that Regulation M of the 5th Schedule to the Accountants Regulations,2022, applies against a challenge to the validity or otherwise of election results and not to an application that challenge irrational, unreasonable and ulta vires acts of the Respondents as well as violation of constitutional rights under Article 23 of the Constitution of Kenya as in the case of the Ex-parte Applicant.
17 It is its case that the Respondents in their submissions attempts to mislead this Honourable court that Ex- parte Applicant’s substantive Application is challenges the results of the election, however, its challenging the irrational, unreasonable and ulta vires acts by the Respondents in the preparations and conduct of the election entire electoral process.
18 It argues that the doctrine of ripeness does not apply in this matter because the cause of action in this matter arise from wrongful acts, irrational and ultra vires decision in the preparation of the elections, clearing of candidates and the general conduct of the elections by the Respondents and not the validity of the results of the purported elections.
19 It is its case that the violation of clear provisions of statutes and the Regulations coupled with procedural impropriety; the doctrine of ripeness does not apply and the Respondents by alleging this doctrine intends to defeat my application to be a mere academic considering the as per the notice of general meeting the issue of elector process is final and the only remaining issue.
20 Thus, the Ex-parte Applicant invoked the jurisdiction of the court for conservatory stay order to prevent this matter being defeated technically and rendered mere academic exercise.
21 Further, the issue raised and the cause of action in this matter cannot be dealt with internally considering the issue is wrongful acts and irrational conducts of the respondents while conducting the election.
22 Regulation M(1) uses the word “may” suggesting that the Ex- parte Applicant had an option to appeal to the council or take such other legitimate action such as filing this suit. The Ex- parte Applicant is challenging the illegal, irrational, unreasonable and ultra vires acts decisions of the Respondents which can only be handled and resolved by this honourable court and not the council.
23 Article 50 (1) of the Constitution, provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. This provision as read together with the option granted to an aggrieved person under Regulation M(1). by the use of the word “may” is in tandem with this Article.
24 An aggrieved person cannot be estopped from exercising his/ her right to seek resolution of a dispute before a court where any other alternative mechanism is not appropriate. In support of this proposition, we rely on the case of Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR where OdungaJudge at paragraph 51 and 52 expressed himself as follows…In matters of jurisdiction of superior courts, it is however my view that one ought to take in consideration the well-known principle as enunciated in East African Railways Corp. vs. Anthony Sefu [1973] EA 327,where it was held that “It is, a well established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.”
25 The Respondents Application as prayed is an invitation to this honourable court to close its eyes to constitutional violations which would amount ousting, adjourning, restricting and or extinguishing the jurisdiction of this honourable court and dereliction of its duty.
26 Article 162 of the Constitution provides for superior courts. It is trite that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.
27 Reliance is placed on the case of Republic v Benjamin JomoWashiali, Majority Chief Whip, National Assembly & 4 others Exparte Alfred Kiptoo Keter & 3 others [2018] eKLR Odunga Judge at paragraph 49,51 and 97 expressed himself as that ...Therefore any provision purporting to limit the jurisdiction of the High Court must itself derive its validity from the Constitution itself and must do so expressly and not by implication unless the implication is necessary for the carrying into effect the provisions of the Act.
28 Reliance is also placed in the case of Apollo Mboya v Attorney General & 2 others [2018] eKLR had the following to say under paragraph 76,81 and 87 –…Traditionally, the courts have interpreted provisions ousting the jurisdiction of Courts narrowly that is to mean that, the decision is still subject to judicial review.In other words, the decision under attack may be final on the facts but it is not to be regarded as final on the law. Denning L.J. put is better when he stated that: -"I find itvery well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.
29 The Council does not have power to interrogate procedural and legality matters relating ultra to employment and labour related disputes which is the dominion this honourable court.
30 This was the position held in the case of Abdikadir Suleiman v County Government of Isiolo & another [2015] eKLR at page 4…. In the present case the claimant has alleged that the oral dismissal was illegal, unlawful and unconstitutional. It is the holding of the court that the jurisdiction to entertain that allegation and to make a primary conclusive finding thereon is vested in the court and the Commission does not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy as is prayed for by the claimant in this case.
31 It is the exparte applicants position that this court should not vary or set aside its orders are prayed because the Ex- parte Applicant is not challenging the election results but the flawed entire electoral processes by arising from the Ultra vires, irrational and procedurally wrong actions by the Respondents.
32 The Respondents prepared and conducted the elections in blatant violations of express violations of the as illustrated in the subsequent paragraphs of these submissions. The statutory guidelines are to be strictly observed and failure to do so would lead to an illegality.
33 In the case ofGithu Muigai & Another v Law Society of Kenya &Another (2015) eKLR it was held :-“In our view, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority …”
34 In MTN v Kie Limited & Another (2020) Eklr where at paragraph 71, the court stated that... “Courts have held that Courts will interfere with the internal disciplinary action only when the process is flawed. The interference will thus be to put back on truck the disciplinary process but not to do away with it all together”.
35 In the same case the at paragraph 72 the court reiterated that. where grave injustice might result or where justice might not by other means be attained. The hearing of the claimants has not run its course, but the procedure adopted with sanction before according him a fair chance to be heard in the presence of his Union or a fellow employee of his choice not accorded to him. This far the court will interference with the proceedings as by not so doing grave injustice will be occasioned to the Claimant. This is one such exceptional case and thus the Court directs as follows;
36 Accordingly, in as much it is our contention that the current substantive application’s subject matter is not subject to Regulation M(1), noting that two members of the council were contestants in the purported elections and that they still sit in the council that the Respondents want the Ex-parte Applicant to lodge his complaint, it is therefore apparent beyond any doubt that he will not get any justice from the council.
37 The purported elections were held in clear contravention of the law especially as per Paragraph 1 of the First Schedule to the Accountants Act which provides that the Chairperson shall be elected during the annual general meeting of the Institute.
38 It is its case that on the contrary, the elections were purportedly held between 12th and 15th May 2025 in total contravention of the said provision.
39 The Respondents acted irrationally, ultra vires and in total violation of the clear violation of the law by allowing Council members to contest for the position of chairperson and member without first resigning as per Paragraph 13 of Regulation E of the Accountants Regulations which provides that “A member serving on the Council and wishing to contest for the position of the chairman shall resign and communicate to the Council before the vacancies are declared and such resignation shall take effect at the next Annual General Meeting.”
40 The Respondents, by clearing and allowing a council member to vie for the position of the chairperson without first resigning, acted irrationally, ultra vires and in total violation of the clear violation of the law. Hence the whole electoral process was tainted with procedural impropriety.
41 The Respondents arbitrarily set the elections to be held between 12th and 15th days of May, 2025 whereas the purported elected Chairman and members of the council are only planned to be presented and ‘confirmed’ during the 1st Respondent’s Annual General Meeting in clear contravention of the law.
42 Contrary to the Respondents claims that the Ex-parte Applicant deliberately failed to disclose of suppressed material facts, the said Communique is material to the Ex-parte Applicant’s Application as it clearly indicates the election dates in which are in contravention of express provisions of Paragraph 1 of the First Schedule to the Accountants Act which provides that the Chairperson shall be elected during the annual general meeting of the Institute.
43 It is irrefutable that the notice that the Ex-parte Applicant is wrongly acused of concealing actually aids his argument because going by the dates the Respondents set for the election, that is, 12th May, 2025, being the first election day, the latest day the voters’ register should have been locked would have been 12/04/2025 being at least thirty (30) days before the actual election date. Thus, the members of the 1st Respondent should have been granted access to the voters’ register at least on 20/03/2025 up until 12/04/2025 and not on 07/04/2025 as claimed by the Respondents.
44 According to them the Respondents admits that they actually locked the voters’ register on 06/05/2025 whereas the elections were conducted only six (6) days later, between 12th and 15th May, 2025, and not at least thirty days before the election as required by the law fact affirmed by the Respondents Communique.
45 The voters’ register having not been locked within the required timelines, whatever date the members of the 1st Respondent were granted access to the voters’ register was definitely irregular and contrary to the express provisions of the law.
46 The Ex-parte Applicant is merely requesting the court to preserve the preserve the subject matter. On this they are guided by the case of Zena Achieng Mohamed v County Public Service Board of Kilifi & 6 others [2021] eKLR in which the court stated as follows at Paragraph 15….In my understanding, the Petitioner is asking the Court to preserve the status quo, pending the hearing and determination of her appeal before the Public Service Commission.
47 In the case of James Orre v Office of the Governor, County Government of Marsabit & another [2021] eKLR where the court held as follows at page 5- ……These are weighty issues touching on the validity of the actions of the Respondents in a manner advanced so as to oust the jurisdiction of the Public Service Commission as an arbiter of the issues in dispute in the circumstances. Here, as duly submitted and amplified by the Petitioner/Respondent, the doctrine of exhaustion issurpassed by the circumstances and subject matter of this individual case.
48 Similarly, in the case of Republic V Royal Nairobi Golf Club at paragraphs 37,38,40,41,42 the court said that…t it must be pointed out that illegal and unfair preliminary procedural decisions can also undermine the fairness of the entire decision making process and the lawfulness of the eventual substantive decision, and merit intervention of this Court at an early stage of the decision making.
49 They are further guided by the case of Anne WambuiKamuiru vs Kenya Airways:- Cause No. 1684/2015), where Court held as follows:- There is a convergence in agreement that an employer who commences disciplinary proceedings must ensure due process, fair hearing and due regard to natural justice. The Courts on their part will not interfere with proper internal disciplinary processes unless the Court is satisfied that the process is marred with irregularities or it is stage managed towards dismissal
50 The Respondents and its operations will not suffer any prejudice or be affected in any way whatsoever because previously when the Respondents were faced with a similar scenario, they adjourned the agenda for the elections for theChairman and Council Members.
51 The allegation the 1st Respondents Annual General Meeting must be held on or before 30th June 2025, is a well calculated move to deceive this court to set aside its orders issued on 4th June 2025 whereas the outing going chairperson was elected into office during Annual General meeting held on 29th September 2023 to serve for one term of two years ending 28th September 2025”.
52 The Respondents own notice for the 45th Annual General Meeting, when there was a pending case being HCJR MiscE032/2023 Andrew Bulemi Vs ICPAK Council, deferred the consideration of the agenda for titled “To present the elected Chairman and Council Member as per First Schedule, paragraph 5(1)(b)(iii) of the Accountants Act, No. 15 of 20028”.This clearly demonstrates that the agenda item stayed by virtue of the court order the Respondents’ are seeking to set aside cannot prevent or in any way impede the Annual General Meeting from proceeding as scheduled.
53 Thus, the 1st Respondent’s 47th Annual General Meeting to be held on 13/06/2025 as per the notice of the 47th Annual General Meeting dated 13/05/2025 will proceed as scheduled and all the business intended to conducted therein will be transacted save for agenda number eight (8) therein having being stayed by the court order dated 04/06/2025.
54 Section 44 of the Accountants Act provides that the Council may exercise and perform its functions notwithstanding any vacancy among the members and the validity of any proceedings of the Council shall not be affected by any such vacancy or any defect in the appointment of a member. Additionally, there is no fixed quorum for the meetings of the Council and the arrangements relating to meetings of the Council as the Council is empowered to determine its own quorum pursuant to paragraph 6 of the Second Schedule to the Accountants Act.
55 There will be no vacancy because Paragraph 1(1) of the First Schedule to the Accountants Act provides that unless the chairperson of the council earlier vacates the office, a person elected to the office of Chairperson shall hold the office until another Chairperson is elected and in case of any vacancy Paragraph 2(1) of the First Schedule to the Accountants Act provides that in case a vacancy in the position of the chairperson the, the Cabinet Secretary for Finance can appoint a person to act as Chairperson on the advice of the Council.
56 In contrast if the stay orders are varied and/or set aside, the Respondents will get an opportunity to enjoy the proceeds of their irregular, illegal, unreasonable, and ultra vires actions whereas the Ex- parte Applicants rights will be violated.
57 Section 27 of the Civil Procedure Act states that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct. In this case, we humbly seek the cost of the suit be awarded to the Ex Parte applicant herein.
58 They submit that the Respondent/applicants case is predicated on the doctrine of ripeness and/or failure to disclose of material facts and prejudice suffered by the 1st Respondent.
59 Regulation M of the 5th Schedule to the Accountants Regulations,2022 provides as follows-
a. A person who is aggrieved by the results of an election may, within seven days after the Annual General Meeting in which the presentation of the results of the election is made, lodge a written complaint with the Secretary to the Council for determination.
60 It is submitted that Regulation M of the 5th Schedule to the Accountants Regulations,2022, applies against a challenge to the validity or otherwise of election results and not to an application that challenge irrational, unreasonable and ulta vires acts of the Respondents as well as violation of constitutional rights under Article 23 of the Constitution of Kenya as in the case of the Ex-parte Applicant.
61 The Ex- parte Applicant’s substantive Application challenges the irrational, unreasonable and ulta vires acts by the Respondents in the preparations and conduct of the election entire electoral process and The doctrine of ripeness does not apply andthe issue raised and the cause of action in this matter cannot be dealt with internally.
62 It is submitted that the Ex- parte Applicant had an option to appeal to the council or take such other legitimate action such as filing this suit since the Regulation uses the word “may”.
63 Article 50 (1) of the Constitution, provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
64 In the case of Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR where OdungaJudge at paragraph 51 and 52 expressed himself as follows…In matters of jurisdiction of superior courts, it is however my view that one ought to take in consideration the well-known principle as enunciated in East African Railways Corp. vs. Anthony Sefu [1973] EA 327,where it was held that “It is, a well established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.”
65 Reliance is placed in Article 162 of the Constitution provides for superior courts. It is trite that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect. We rely
66 Reliance is placed on the case of Republic v Benjamin JomoWashiali, Majority Chief Whip, National Assembly & 4 others Exparte Alfred Kiptoo Keter & 3 others [2018] eKLR Odunga Judge at paragraph 49,51 and 97 expressed himself as that ...Therefore any provision purporting to limit the jurisdiction of the High Court must itself derive its validity from the Constitution itself and must do so expressly and not by implication unless the implication is necessary for the carrying into effect the provisions of the Act.
67 In the case of Apollo Mboya v Attorney General & 2 others [2018] eKLR had the following to say under paragraph 76,81 and 87 –…Traditionally, the courts have interpreted provisions ousting the jurisdiction of Courts narrowly that is to mean that, the decision is still subject to judicial review.In other words, the decision under attack may be final on the facts but it is not to be regarded as final on the law. Denning L.J. put is better when he stated that: -"I find itvery well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.
68 In the case of Abdikadir Suleiman v County Government of Isiolo & another [2015] eKLR at page 4…. In the present case the claimant has alleged that the oral dismissal was illegal, unlawful and unconstitutional. It is the holding of the court that the jurisdiction to entertain that allegation and to make a primary conclusive finding thereon is vested in the court and the Commission does not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy as is prayed for by the claimant in this case.
69 In the case of Republic V Public Procurement Administrative Review Board & 2 Others Ex-Parte Selex Sistemi Integrati [2008] Eklr where it was held as follows- It is a well established principle that statutory provisions purporting to oust jurisdiction of the court should be construed strictly and narrowly.
70 The exparte in urging the court not to set aside the order relies in the case of MTN v Kie Limited & Another (2020) Eklr where at paragraph 71, the court stated that... “Courts have held that Courts will interfere with the internal disciplinary action only when the process is flawed. The interference will thus be to put back on truck the disciplinary process but not to do away with it all together”.
71 In the same case the at paragraph 72 the court reiterated that. where grave injustice might result or where justice might not by other means be attained. The hearing of the claimants has not run its course, but the procedure adopted with sanction before according him a fair chance to be heard in the presence of his Union or a fellow employee of his choice not accorded to him. This far the court will interference with the proceedings as by not so doing grave injustice will be occasioned to the Claimant. This is one such exceptional case and thus the Court directs as follows;
72 It is submitted that two members of the council and they will not get any justice from the council.
73 It is submitted that the elections were held in clear contravention of the law especially as per Paragraph 1 of the First Schedule to the Accountants Act which provides that the Chairperson shall be elected during the annual general meeting of the Institute. On the contrary, the elections were purportedly held between 12th and 15th May 2025 in total contravention of the said provision.
74 They submit that The Respondents acted irrationally, ultra vires and in total violation of the clear violation of the law by allowing Council members to contest for the position of chairperson and member without first resigning as per Paragraph 13 of Regulation E of the Accountants Regulations which provides that “A member serving on the Council and wishing to contest for the position of the chairman shall resign and communicate to the Council before the vacancies are declared and such resignation shall take effect at the next Annual General Meeting.”
75 The purported elections were tainted with procedural impropriety as well elaborated in verifying Affidavit and Statutory Statement which informed the court to issue the Order sought to be set aside which we invite this court to peruse and consider as part of our reply to the application by the Respondents dated 9th June 2025.
76 It is submitted that the notice that the Ex-parte Applicant is wrongly accused of concealing actually aids his argument.
77 Indeed the Respondents admits that they actually locked the voters’ register on 06/05/2025 whereas the elections were conducted only six (6) days later, between 12th and 15th May, 2025, and not at least thirty days before the election as required by the law fact affirmed by the Respondents Communique. The voters’ register having not been locked within the required timelines, whatever date the members of the 1st Respondent were granted access to the voters’ register was definitely irregular and contrary to the express provisions of the law.
78 They rely on the case of Zena Achieng Mohamed v County Public Service Board of Kilifi & 6 others [2021] eKLR in which the court stated as follows at Paragraph 15….In my understanding, the Petitioner is asking the Court to preserve the status quo, pending the hearing and determination of her appeal before the Public Service Commission.
79 They also guided by the case of James Orre v Office of the Governor, County Government of Marsabit & another [2021] eKLR where the court held as follows at page
80 5- ……These are weighty issues touching on the validity of the actions of the Respondents in a manner advanced so as to oust the jurisdiction of the Public Service Commission as an arbiter of the issues in dispute in the circumstances. Here, as duly submitted and amplified by the Petitioner/Respondent, the doctrine of exhaustion issurpassed by the circumstances and subject matter of this individual case.
81 Similarly, in the case of Republic V Royal Nairobi Golf Club at paragraphs 37,38,40,41,42 the court said that…t it must be pointed out that illegal and unfair preliminary procedural decisions can also undermine the fairness of the entire decision making process and the lawfulness of the eventual substantive decision, and merit intervention of this Court at an early stage of the decision making.
82 Reliance is further placed in the case of Anne WambuiKamuiru vs Kenya Airways:- Cause No. 1684/2015), where Court held as follows:- There is a convergence in agreement that an employer who commences disci
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