REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
PETITION NO. E011 OF 2022
IN THE MATTER OF SECTION 30(1) OF THE COMPANIES ACT, ACT NO. 17 OF 2015
AND
IN THE MATTER OF THE CONTRAVENTION OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF KENYA HOSPITAL ASSOCIATION LIMITED
BETWEEN
DR. EDWIN KIPNG’ENO RONO……………..………………...…. PETITIONER
VERSUS
KENYA HOSPITAL ASSOCIATION LIMITED…......………….. RESPONDENT
JUDGMENT
The Petitioner’s case
1. The Petition that forms the subject of this Judgement is dated 27th September, 2022. It is the petitioner’s case that the 1st respondent herein, Kenya Hospital Association Limited, a limited liability company carrying on business in the Republic of Kenya was to hold its Annual General Meeting (AGM) on 29th September, 2022. That agenda No. 7 of the said meeting informed members of the retirement of three directors including the chairperson and invited members interested in the said positions to submit their nominations. That the petitioner who was working as a Doctor, and was an active member of the 1st respondent was among the many candidates who submitted their nomination papers for the position of director. His nomination was confirmed on 16th September, 2022, prompting him to embark on a campaign journey by putting up posters and campaign materials.
2. The petitioner deposed that thereafter, he received an inter-office memorandum from the respondent’s Chief Executive Officer barring him from campaigning for the directorship position based on contravention of good corporate governance.
3. According to the petitioner, the communication was made without any reference to the law or regulations and was discriminatory as it was only directed to him. The petitioner averred that the communication threatened and continues to threaten his fundamental rights protected by the Constitution of Kenya, 2010. The petitioner also averred that the respondent’s actions amounted to a breach of his fundamental right of fair administrative action.
4. In the Petition dated 27th September, 2022 the petitioner seeks the following reliefs from this Court:
i. A declaration that the respondent’s action and conduct amount to denial, violation and or infringement of the petitioner’s fundamental rights and freedoms under Articles 24(1), 27(1), 35(1), 36(1), 38(1)(c) and 47(1) of the Constitution of Kenya;
ii. A declaration that the actions and conduct of the respondents are in breach of the Fair Administrative Action Act, and rules of natural justice;
iii. An order of injunction barring the implementation of the inter–memorandum dated 21st September, 2022;
iv. An order of certiorari quashing the inter-office memorandum, dated 21st September, 2022 or any other notice barring the petitioner or any other candidate from campaigning for the directorship position;
v. An order of injunction barring the discussion and/or passing of any resolution on agenda item No. 7 of the Notice of Annual General Meeting dated 1st September, 2022, scheduling the respondent’s Annual General Meeting on the 29th September, 2022;
vi. An order of injunction directing the respondent to conduct the director's election in a fair manner without the use of derogatory technology and not subject to manipulation;
vii. An order of compensation for breach of the petitioner’s rights; and
viii. An order that the respondent bears the costs of the Petition.
Respondent’s case
5. In response to the Petition, the respondent through its Company Secretary, Gilbert Nyamweya, filed a replying affidavit sworn on 12th October, 2022 in which he defended the actions of the respondent. He contended that the petitioner engaged in campaign strategies that were disruptive of the operations of the Nairobi Hospital and in contravention of the order of business of the AGM by circulating campaign posters and other election material on social media to members of the public contrary to good corporate governance and in contravention with Articles 21, 22, 25, 30 and 47(b), (c) and (d) of the respondent’s Articles of Association. According to Mr. Nyamweya, the law and regulations of the respondent prohibit members from campaigning outside the floor of the house during the AGM. He deposed that on realizing that participants were participating in campaign strategies, the respondent issued two memos, the first one dated 21st September, 2022 was addressed to the petitioner and another one dated 22nd September, 2022 was issued to all 11 candidates.
6. He further deposed that the Notices were to inform all candidates that the election of directors was an agenda to be discussed on the floor of the AGM, and that distributing campaign materials was disruptive of the hospital's activities and in violation of the company’s guidelines of corporate governance. The notices were to warn members to desist from conducting further campaigns in contravention of the respondent’s policies.
7. Mr. Nyamweya averred that the actions of the petitioner in sending campaign materials to members through WhatsApp messages infringed on members’ privacy rights guaranteed under Article 31 of the Constitution, 2010, and their data protection rights as stipulated in the Data Protection Act, 2019. He denied that the respondent violated the petitioner’s fundamental rights and freedoms. He averred that no evidence had been produced to demonstrate that the petitioner requested for information from the respondent. He stated that the respondent conducted fair general elections on 21st December, 2022.
Petitioner’s submissions
8. In written submissions filed by the petitioner’s Advocate, Ms Muyoka, learned Counsel for the petitioner argued that the respondent through its conduct violated the petitioner’s rights to equality and non-discrimination by issuing a memo dated 21st September, 2022 that required him to stop campaigning, a move that subjected the petitioner to unfair discrimination contrary to Article 27 of the Constitution of Kenya, 2010. Counsel submitted that the Notice of 21st September, 2022 was only issued to the petitioner and not to the other participants.
9. Ms Muyoka made reference to Professor Nicholas Abinya’s unrestricted campaigns in various fora imploring members to vote for him as per the WhatsApp messages marked EKR4 annexed at the petitioner’s affidavit, which was done way before the petitioner started his campaign schedule, but Professor Nicholas Abinya was not issued with a restriction Notice.
10. The petitioner’s Counsel submitted that the restriction by the respondent was aimed at disenfranchising the petitioner by discouraging him from participating in the election of directors of the respondent, and embarrassing and demeaning him. Counsel argued that there is no law barring the petitioner from campaigning for directorship, and there was no legitimate reason justifying the restriction imposed.
11. Counsel argued that failure by the respondent to provide the petitioner with the rules and regulations promulgated to bar potential candidates from campaigning for directorship, amounted to an infringement of the petitioner’s right to access to information under Article 33(1)(a)of the Constitution of Kenya.
12. Ms Muyoka contended that the respondent's activities of restricting the campaigns barred the petitioner from participating in the activities of the respondent without any just cause. She argued that the respondent had failed to demonstrate that the limitation of the petitioner’s rights was reasonable and justifiable in an open and democratic society. She submitted that the freedom to make political choices is not necessarily restricted to the context of political parties alone and can be extended to apply to private entities as well.
13. The petitioner’s Counsel submitted that the petitioner’s right to fair administrative action under Article 47 of the Constitution was infringed in that he was not informed or involved in the change of policy by the respondent in respect of the bar on campaigning for directorship. She stated that the petition is merited and that the petitioner is entitled to the reliefs sought.
Respondent’s submissions
14. Mr. Ochieng, learned Counsel for the respondent argued that the petition fails to meet the threshold required for filing a constitutional petition as cited in the case of Anarita Karimi Njeru vs Republic [1979)]1 KLR 154.
15. Counsel submitted that the petitioner had failed to provide particulars of the alleged violations of his rights and how the alleged rights had been violated. He submitted that the petitioner had failed to demonstrate how Article 38 (1)(c) of the Constitution of Kenya has violated his rights, as the said Article makes provisions for members of a political party, whereas the respondent is not a political party. He contended that the alleged violation under Article 35 (1)(b) of the Constitution of Kenya, 2010 on denial of access to information had not been demonstrated. Counsel submitted that the petitioner had failed to demonstrate with a degree of precision how the respondent barred him from participating in the activities of the respondent.
16. It was submitted that the petitioner failed to show how he was discriminated against by the respondent so as to place him in a disadvantageous position from the other 10 candidates. Counsel contended that there was no discrimination as the internal memorandum dated 22nd September, 2022 was issued to all 11 candidates which reminded them of the policies of the organization in conducting the elections. Counsel indicated that it was not disputed that the memorandum dated 21st September, 2022 was issued to the petitioner as he was the first candidate to publish his campaign materials before the respondent sent out the Notice of 22nd September, 2022 to all candidates.
17. Mr. Ochieng stated that the petitioner was among the 11 elective candidates that had been prequalified for the nominations and therefore he had failed to demonstrate that there was an iota of evidence on violation of his rights under Article 36 of the Constitution of Kenya, 2010.
18. Counsel stated that the right to seek the office of director is reserved under Articles 9 and 10(2)(c) of the Company’s Articles and exercised as provided for under Articles 21, 22, 25, 30 and 47(b), (c) and (d) of the Constitution of Kenya, 2010 as read with the provisions of Companies Act, 2015. He contended that the petitioner had failed to tender sufficient proof to demonstrate a breach of the Fair Administrative Action Act. He urged this Court to dismiss the petition.
ANALYSIS AND DETERMINATION.
19. I have considered the petition, the response filed, the written submissions and the oral submissions made, and the authorities relied upon. The issues for determination are:
(i) Whether the Petition meets the requisite constitutional threshold;
(ii) Whether the petitioner has proved violation of his rights;
(iii) Whether the inter–memorandum dated 21st September, 2022 should be quashed
(iv) whether the petitioner is entitled to the reliefs sought.
Whether the Petition meets the requisite constitutional threshold.
20. The respondent’s Counsel submitted that the petition as filed fails to meet the threshold as outlined in the case of Anarita Karimi vs Republic (supra) and Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, for failure to specify the provisions of the law which have been infringed, the extent of the infringement and how the infringement affects the petitioner.
21. The petitioner averred that the specific provisions of the law violated and the extent of the violation have been well articulated and explained, thus he is entitled to the orders sought.
22. In the cited case of Anarita Karimi Njeru v Republic (supra), the Court stated as follows-
“if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
23. I have carefully perused the Petition and I note that the provisions of the Constitution alleged to have been infringed have been clearly laid down and the violations set out in Part B of the Petition. The said provisions are Articles 24(1), 27(1), 35(1), 36(1), 38(1)(c) and 47(1) of the Constitution of Kenya, 2010.
24. Part D of the Petition gives the particulars of the violation of the petitioner's fundamental rights. The petitioner averred that his right to access to information as enshrined in Article 35(1) of the Constitution of Kenya was infringed in that he was denied access to the amended Articles of Association of the respondent.
25. He claimed to have been discriminated against under Article 27(1) as he was denied the right to campaign for the position of directorship of the respondent and was issued with a Notice dated 21st September, 2022 to the exclusion of all other candidates who were conducting the campaigns.
26. The petitioner also alleged that his right to freedom of association under Article 36(1) of the Constitution was violated as he was not allowed to participate in the activities of the respondent despite being an active member of the respondent.
27. The petitioner contended that there was a violation of Article 47(1) of the Constitution as he was denied the right to be heard on the reasons why he was barred from campaigning.
28. The petitioner seeks redress from this Court on the violation of the aforesaid Articles of the Constitution of Kenya, 2010.
29. It is apparent to me that the petition filed herein outlines the provisions of the Constitution allegedly infringed, the extent of the alleged infringement and how the said alleged infringement affected the petitioner. In the circumstances, I find that the petition meets the threshold set out in the Anarita Karimi Njeru v Republic (supra).
Whether the petitioner has proved violation of his rights.
30. The next issue for consideration is whether the petitioner has proved a violation of his rights. To establish if the petitioner's rights were violated, I will analyze each violation complained of and if the same amounts to an infringement. I will also determine if the petitioner has proved on a balance of probabilities the aforesaid infringement as required under Section 107 of the Evidence Act which stipulates that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
31. The Court of Appeal in the case Mbuthia Macharia v Annah Mutua & another [2017] eKLR discussed the burden of proof and stated thus:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”
32. The petitioner alleged discrimination by violation of Article 27(1) of the Constitution of Kenya, 2010. He averred that he was the only nominated candidate issued with the Notice dated 21st September, 2022 barring him from conducting campaigns for the position of a director to the exclusion of all other candidates who also embarked on similar campaign strategies by printing election materials and posting on WhatsApp and other social media platform.
33. The allegation of discrimination is denied as the respondent exhibited the Notice dated 22nd September, 2022 which was sent to all candidates vying for the office of director.
34. The subject of the Notice was “Campaigning for the election into the office of the director and member’s personal data”. The Notice reminded all candidates of the guidelines of good corporate governance and urged them to retract and pull down any campaign materials published and circulated. Candidates were also reminded to protect members’ data and refrain from soliciting and obtaining members’ telephone contacts and email addresses.
35. Article 27(1) of the Constitution, 2010 provides that every person is equal before the law and has right to equal protection and equal benefit of the law.
36. The petitioner ought to have demonstrated before this Court how he was treated differently at the exclusion of all other candidates, despite him being served with the Notice dated 21st September, 2022, as a similar Notice was also sent out to all other candidates.
37. I have analyzed the Notice dated 22nd September, 2022 and I note that the same was sent out to all candidates. The subject matter was similar to all candidates. I am therefore not persuaded that the respondent discriminated against the petitioner
38. I will proceed to discuss the allegation of Article 35(1)(b) of the Constitution. The petitioner's case against the respondent is that he was denied a copy of the rules and regulations promulgated to bar the campaigning for directorship that amended the procedure of campaigns. In turn, the respondent averred that the petitioner did not at any time call for a copy of the rules and regulations as no proof had been adduced before this Court.
39. Article 35 of the Constitution provides that-
“(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.”
40. This Court is not convinced that the petitioner requested for the rules and regulations that he contends to have been denied. I therefore find that the alleged infringement has not been adequately proved.
41. The petitioner alleged infringement of Article 36(1) of the Constitution which provides that-
“(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.”
42. According to the petitioner, the action of the respondent in issuing a Notice barring him from campaigning violated his right to freedom of association, including the right to participate in the activities of an association of the respondent, without any just cause.
43. Although the respondent at first issued a Notice dated 21st September, 2022 to the petitioner barring him from engaging in campaigns in the manner and style he had adopted, a subsequent memo dated 22nd September, 2022 was sent to all the other candidates vying for the office of director. Having established that an internal memorandum was subsequently issued to all candidates barring them from conducting campaigns, I am not persuaded that the petitioner has established the extent of the infringement by the Notice issued to him on 21st September, 2022.
44. Article 38(1) of the Constitution, 2010 provides the following-
“Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause.”
45. The petitioner alleged denial to participate in the election of directorship of the respondent by the Notice issued on 21st September, 2022 which was sent to him alone. It is however worth noting that a subsequent Notice issued on 22nd September, 2022 barred all candidates from conducting campaigns akin to political parties’ campaigns as it was in contravention of its rules of corporate governance. The issuance of the 2nd Notice put right the earlier Notice that had been issued only to the petitioner.
46. That move did not bar the petitioner from proceeding with his candidature. It therefore follows that the alleged violation of Article 38(1) of the Constitution, 2010 has not been adequately proved.
47. On the alleged infringement of the petitioner’s rights to fair administrative action, Article 47 of the Constitution, 2010 provides as follows-
“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
48. The petitioner alleged that the respondent failed to accord him a fair administrative action before reaching the arbitrary decision of barring him from campaigning as per the Notice issued on 21 September, 2022. The petitioner averred that he was not allowed to defend himself before the Notice was issued. He urged this Court to issue an order of certiorari quashing the inter-office memorandum dated 21st September, 2022 or any other Notice barring the petitioner or any other candidate from campaigning for the directorship position.
49. In response, the respondent averred that the Notice was to protect the respondent’s members' data and also in compliance with the rules of good corporate governance of the respondent. It argued that the petitioner was still a candidate eligible for the position of the directorship as the Notice dated 21st September, 2022 did not bar the petitioner from being elected.
50. Given the circumstances of this Petition, I find that the Notices issued on 21st September, 2022 and 22nd September 2022 did not in any way amount to an infringement of the petitioner’s rights to fair administrative action.
51. On the issue of whether the Notice dated 21st September, 2023 ought to be quashed, I have already stated that a similar Notice dated 22nd September 2022 was sent out to all other candidates. Its purpose was to remind all candidates of the rules and regulations for campaigns. The Notices did not in any way bar any candidate from participating in the directorship positions. I am therefore not convinced that the same ought to be quashed.
52. As a result, I find the petitioner has failed to demonstrate the alleged violation of his constitutional rights. I find that the petition herein lacks in merit. It is hereby dismissed. Each party shall bear its own costs, due to the nature of the petition.
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of March, 2024. Judgment delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Eric Ngunjiri for the petitioner
Ms Muyoka h/b for Dr. Mutubwa for the respondent
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
PETITION NO. E011 OF 2022
IN THE MATTER OF SECTION 30(1) OF THE COMPANIES ACT, ACT NO. 17 OF 2015
AND
IN THE MATTER OF THE CONTRAVENTION OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF KENYA HOSPITAL ASSOCIATION LIMITED
BETWEEN
DR. EDWIN KIPNG’ENO RONO……………..………………...…. PETITIONER
VERSUS
KENYA HOSPITAL ASSOCIATION LIMITED…......………….. RESPONDENT
JUDGMENT
The Petitioner’s case
1. The Petition that forms the subject of this Judgement is dated 27th September, 2022. It is the petitioner’s case that the 1st respondent herein, Kenya Hospital Association Limited, a limited liability company carrying on business in the Republic of Kenya was to hold its Annual General Meeting (AGM) on 29th September, 2022. That agenda No. 7 of the said meeting informed members of the retirement of three directors including the chairperson and invited members interested in the said positions to submit their nominations. That the petitioner who was working as a Doctor, and was an active member of the 1st respondent was among the many candidates who submitted their nomination papers for the position of director. His nomination was confirmed on 16th September, 2022, prompting him to embark on a campaign journey by putting up posters and campaign materials.
2. The petitioner deposed that thereafter, he received an inter-office memorandum from the respondent’s Chief Executive Officer barring him from campaigning for the directorship position based on contravention of good corporate governance.
3. According to the petitioner, the communication was made without any reference to the law or regulations and was discriminatory as it was only directed to him. The petitioner averred that the communication threatened and continues to threaten his fundamental rights protected by the Constitution of Kenya, 2010. The petitioner also averred that the respondent’s actions amounted to a breach of his fundamental right of fair administrative action.
4. In the Petition dated 27th September, 2022 the petitioner seeks the following reliefs from this Court:
i. A declaration that the respondent’s action and conduct amount to denial, violation and or infringement of the petitioner’s fundamental rights and freedoms under Articles 24(1), 27(1), 35(1), 36(1), 38(1)(c) and 47(1) of the Constitution of Kenya;
ii. A declaration that the actions and conduct of the respondents are in breach of the Fair Administrative Action Act, and rules of natural justice;
iii. An order of injunction barring the implementation of the inter–memorandum dated 21st September, 2022;
iv. An order of certiorari quashing the inter-office memorandum, dated 21st September, 2022 or any other notice barring the petitioner or any other candidate from campaigning for the directorship position;
v. An order of injunction barring the discussion and/or passing of any resolution on agenda item No. 7 of the Notice of Annual General Meeting dated 1st September, 2022, scheduling the respondent’s Annual General Meeting on the 29th September, 2022;
vi. An order of injunction directing the respondent to conduct the director's election in a fair manner without the use of derogatory technology and not subject to manipulation;
vii. An order of compensation for breach of the petitioner’s rights; and
viii. An order that the respondent bears the costs of the Petition.
Respondent’s case
5. In response to the Petition, the respondent through its Company Secretary, Gilbert Nyamweya, filed a replying affidavit sworn on 12th October, 2022 in which he defended the actions of the respondent. He contended that the petitioner engaged in campaign strategies that were disruptive of the operations of the Nairobi Hospital and in contravention of the order of business of the AGM by circulating campaign posters and other election material on social media to members of the public contrary to good corporate governance and in contravention with Articles 21, 22, 25, 30 and 47(b), (c) and (d) of the respondent’s Articles of Association. According to Mr. Nyamweya, the law and regulations of the respondent prohibit members from campaigning outside the floor of the house during the AGM. He deposed that on realizing that participants were participating in campaign strategies, the respondent issued two memos, the first one dated 21st September, 2022 was addressed to the petitioner and another one dated 22nd September, 2022 was issued to all 11 candidates.
6. He further deposed that the Notices were to inform all candidates that the election of directors was an agenda to be discussed on the floor of the AGM, and that distributing campaign materials was disruptive of the hospital's activities and in violation of the company’s guidelines of corporate governance. The notices were to warn members to desist from conducting further campaigns in contravention of the respondent’s policies.
7. Mr. Nyamweya averred that the actions of the petitioner in sending campaign materials to members through WhatsApp messages infringed on members’ privacy rights guaranteed under Article 31 of the Constitution, 2010, and their data protection rights as stipulated in the Data Protection Act, 2019. He denied that the respondent violated the petitioner’s fundamental rights and freedoms. He averred that no evidence had been produced to demonstrate that the petitioner requested for information from the respondent. He stated that the respondent conducted fair general elections on 21st December, 2022.
Petitioner’s submissions
8. In written submissions filed by the petitioner’s Advocate, Ms Muyoka, learned Counsel for the petitioner argued that the respondent through its conduct violated the petitioner’s rights to equality and non-discrimination by issuing a memo dated 21st September, 2022 that required him to stop campaigning, a move that subjected the petitioner to unfair discrimination contrary to Article 27 of the Constitution of Kenya, 2010. Counsel submitted that the Notice of 21st September, 2022 was only issued to the petitioner and not to the other participants.
9. Ms Muyoka made reference to Professor Nicholas Abinya’s unrestricted campaigns in various fora imploring members to vote for him as per the WhatsApp messages marked EKR4 annexed at the petitioner’s affidavit, which was done way before the petitioner started his campaign schedule, but Professor Nicholas Abinya was not issued with a restriction Notice.
10. The petitioner’s Counsel submitted that the restriction by the respondent was aimed at disenfranchising the petitioner by discouraging him from participating in the election of directors of the respondent, and embarrassing and demeaning him. Counsel argued that there is no law barring the petitioner from campaigning for directorship, and there was no legitimate reason justifying the restriction imposed.
11. Counsel argued that failure by the respondent to provide the petitioner with the rules and regulations promulgated to bar potential candidates from campaigning for directorship, amounted to an infringement of the petitioner’s right to access to information under Article 33(1)(a)of the Constitution of Kenya.
12. Ms Muyoka contended that the respondent's activities of restricting the campaigns barred the petitioner from participating in the activities of the respondent without any just cause. She argued that the respondent had failed to demonstrate that the limitation of the petitioner’s rights was reasonable and justifiable in an open and democratic society. She submitted that the freedom to make political choices is not necessarily restricted to the context of political parties alone and can be extended to apply to private entities as well.
13. The petitioner’s Counsel submitted that the petitioner’s right to fair administrative action under Article 47 of the Constitution was infringed in that he was not informed or involved in the change of policy by the respondent in respect of the bar on campaigning for directorship. She stated that the petition is merited and that the petitioner is entitled to the reliefs sought.
Respondent’s submissions
14. Mr. Ochieng, learned Counsel for the respondent argued that the petition fails to meet the threshold required for filing a constitutional petition as cited in the case of Anarita Karimi Njeru vs Republic [1979)]1 KLR 154.
15. Counsel submitted that the petitioner had failed to provide particulars of the alleged violations of his rights and how the alleged rights had been violated. He submitted that the petitioner had failed to demonstrate how Article 38 (1)(c) of the Constitution of Kenya has violated his rights, as the said Article makes provisions for members of a political party, whereas the respondent is not a political party. He contended that the alleged violation under Article 35 (1)(b) of the Constitution of Kenya, 2010 on denial of access to information had not been demonstrated. Counsel submitted that the petitioner had failed to demonstrate with a degree of precision how the respondent barred him from participating in the activities of the respondent.
16. It was submitted that the petitioner failed to show how he was discriminated against by the respondent so as to place him in a disadvantageous position from the other 10 candidates. Counsel contended that there was no discrimination as the internal memorandum dated 22nd September, 2022 was issued to all 11 candidates which reminded them of the policies of the organization in conducting the elections. Counsel indicated that it was not disputed that the memorandum dated 21st September, 2022 was issued to the petitioner as he was the first candidate to publish his campaign materials before the respondent sent out the Notice of 22nd September, 2022 to all candidates.
17. Mr. Ochieng stated that the petitioner was among the 11 elective candidates that had been prequalified for the nominations and therefore he had failed to demonstrate that there was an iota of evidence on violation of his rights under Article 36 of the Constitution of Kenya, 2010.
18. Counsel stated that the right to seek the office of director is reserved under Articles 9 and 10(2)(c) of the Company’s Articles and exercised as provided for under Articles 21, 22, 25, 30 and 47(b), (c) and (d) of the Constitution of Kenya, 2010 as read with the provisions of Companies Act, 2015. He contended that the petitioner had failed to tender sufficient proof to demonstrate a breach of the Fair Administrative Action Act. He urged this Court to dismiss the petition.
ANALYSIS AND DETERMINATION.
19. I have considered the petition, the response filed, the written submissions and the oral submissions made, and the authorities relied upon. The issues for determination are:
(i) Whether the Petition meets the requisite constitutional threshold;
(ii) Whether the petitioner has proved violation of his rights;
(iii) Whether the inter–memorandum dated 21st September, 2022 should be quashed
(iv) whether the petitioner is entitled to the reliefs sought.
Whether the Petition meets the requisite constitutional threshold.
20. The respondent’s Counsel submitted that the petition as filed fails to meet the threshold as outlined in the case of Anarita Karimi vs Republic (supra) and Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, for failure to specify the provisions of the law which have been infringed, the extent of the infringement and how the infringement affects the petitioner.
21. The petitioner averred that the specific provisions of the law violated and the extent of the violation have been well articulated and explained, thus he is entitled to the orders sought.
22. In the cited case of Anarita Karimi Njeru v Republic (supra), the Court stated as follows-
“if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
23. I have carefully perused the Petition and I note that the provisions of the Constitution alleged to have been infringed have been clearly laid down and the violations set out in Part B of the Petition. The said provisions are Articles 24(1), 27(1), 35(1), 36(1), 38(1)(c) and 47(1) of the Constitution of Kenya, 2010.
24. Part D of the Petition gives the particulars of the violation of the petitioner's fundamental rights. The petitioner averred that his right to access to information as enshrined in Article 35(1) of the Constitution of Kenya was infringed in that he was denied access to the amended Articles of Association of the respondent.
25. He claimed to have been discriminated against under Article 27(1) as he was denied the right to campaign for the position of directorship of the respondent and was issued with a Notice dated 21st September, 2022 to the exclusion of all other candidates who were conducting the campaigns.
26. The petitioner also alleged that his right to freedom of association under Article 36(1) of the Constitution was violated as he was not allowed to participate in the activities of the respondent despite being an active member of the respondent.
27. The petitioner contended that there was a violation of Article 47(1) of the Constitution as he was denied the right to be heard on the reasons why he was barred from campaigning.
28. The petitioner seeks redress from this Court on the violation of the aforesaid Articles of the Constitution of Kenya, 2010.
29. It is apparent to me that the petition filed herein outlines the provisions of the Constitution allegedly infringed, the extent of the alleged infringement and how the said alleged infringement affected the petitioner. In the circumstances, I find that the petition meets the threshold set out in the Anarita Karimi Njeru v Republic (supra).
Whether the petitioner has proved violation of his rights.
30. The next issue for consideration is whether the petitioner has proved a violation of his rights. To establish if the petitioner's rights were violated, I will analyze each violation complained of and if the same amounts to an infringement. I will also determine if the petitioner has proved on a balance of probabilities the aforesaid infringement as required under Section 107 of the Evidence Act which stipulates that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
31. The Court of Appeal in the case Mbuthia Macharia v Annah Mutua & another [2017] eKLR discussed the burden of proof and stated thus:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”
32. The petitioner alleged discrimination by violation of Article 27(1) of the Constitution of Kenya, 2010. He averred that he was the only nominated candidate issued with the Notice dated 21st September, 2022 barring him from conducting campaigns for the position of a director to the exclusion of all other candidates who also embarked on similar campaign strategies by printing election materials and posting on WhatsApp and other social media platform.
33. The allegation of discrimination is denied as the respondent exhibited the Notice dated 22nd September, 2022 which was sent to all candidates vying for the office of director.
34. The subject of the Notice was “Campaigning for the election into the office of the director and member’s personal data”. The Notice reminded all candidates of the guidelines of good corporate governance and urged them to retract and pull down any campaign materials published and circulated. Candidates were also reminded to protect members’ data and refrain from soliciting and obtaining members’ telephone contacts and email addresses.
35. Article 27(1) of the Constitution, 2010 provides that every person is equal before the law and has right to equal protection and equal benefit of the law.
36. The petitioner ought to have demonstrated before this Court how he was treated differently at the exclusion of all other candidates, despite him being served with the Notice dated 21st September, 2022, as a similar Notice was also sent out to all other candidates.
37. I have analyzed the Notice dated 22nd September, 2022 and I note that the same was sent out to all candidates. The subject matter was similar to all candidates. I am therefore not persuaded that the respondent discriminated against the petitioner
38. I will proceed to discuss the allegation of Article 35(1)(b) of the Constitution. The petitioner's case against the respondent is that he was denied a copy of the rules and regulations promulgated to bar the campaigning for directorship that amended the procedure of campaigns. In turn, the respondent averred that the petitioner did not at any time call for a copy of the rules and regulations as no proof had been adduced before this Court.
39. Article 35 of the Constitution provides that-
“(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.”
40. This Court is not convinced that the petitioner requested for the rules and regulations that he contends to have been denied. I therefore find that the alleged infringement has not been adequately proved.
41. The petitioner alleged infringement of Article 36(1) of the Constitution which provides that-
“(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.”
42. According to the petitioner, the action of the respondent in issuing a Notice barring him from campaigning violated his right to freedom of association, including the right to participate in the activities of an association of the respondent, without any just cause.
43. Although the respondent at first issued a Notice dated 21st September, 2022 to the petitioner barring him from engaging in campaigns in the manner and style he had adopted, a subsequent memo dated 22nd September, 2022 was sent to all the other candidates vying for the office of director. Having established that an internal memorandum was subsequently issued to all candidates barring them from conducting campaigns, I am not persuaded that the petitioner has established the extent of the infringement by the Notice issued to him on 21st September, 2022.
44. Article 38(1) of the Constitution, 2010 provides the following-
“Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause.”
45. The petitioner alleged denial to participate in the election of directorship of the respondent by the Notice issued on 21st September, 2022 which was sent to him alone. It is however worth noting that a subsequent Notice issued on 22nd September, 2022 barred all candidates from conducting campaigns akin to political parties’ campaigns as it was in contravention of its rules of corporate governance. The issuance of the 2nd Notice put right the earlier Notice that had been issued only to the petitioner.
46. That move did not bar the petitioner from proceeding with his candidature. It therefore follows that the alleged violation of Article 38(1) of the Constitution, 2010 has not been adequately proved.
47. On the alleged infringement of the petitioner’s rights to fair administrative action, Article 47 of the Constitution, 2010 provides as follows-
“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
48. The petitioner alleged that the respondent failed to accord him a fair administrative action before reaching the arbitrary decision of barring him from campaigning as per the Notice issued on 21 September, 2022. The petitioner averred that he was not allowed to defend himself before the Notice was issued. He urged this Court to issue an order of certiorari quashing the inter-office memorandum dated 21st September, 2022 or any other Notice barring the petitioner or any other candidate from campaigning for the directorship position.
49. In response, the respondent averred that the Notice was to protect the respondent’s members' data and also in compliance with the rules of good corporate governance of the respondent. It argued that the petitioner was still a candidate eligible for the position of the directorship as the Notice dated 21st September, 2022 did not bar the petitioner from being elected.
50. Given the circumstances of this Petition, I find that the Notices issued on 21st September, 2022 and 22nd September 2022 did not in any way amount to an infringement of the petitioner’s rights to fair administrative action.
51. On the issue of whether the Notice dated 21st September, 2023 ought to be quashed, I have already stated that a similar Notice dated 22nd September 2022 was sent out to all other candidates. Its purpose was to remind all candidates of the rules and regulations for campaigns. The Notices did not in any way bar any candidate from participating in the directorship positions. I am therefore not convinced that the same ought to be quashed.
52. As a result, I find the petitioner has failed to demonstrate the alleged violation of his constitutional rights. I find that the petition herein lacks in merit. It is hereby dismissed. Each party shall bear its own costs, due to the nature of the petition.
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of March, 2024. Judgment delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Eric Ngunjiri for the petitioner
Ms Muyoka h/b for Dr. Mutubwa for the respondent
Ms B. Wokabi – Court Assistant.