REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. E193 OF 2020
JOSEPH KARUERU
(Suing on his own behalf and as the National Chairperson of Family Health Options Kenya).....................................................................................................1 ST PLAINTIFF
ESTHER CHERUIYOT
(Suing on her own behalf and as the Treasurer of Family Health Options Kenya)................................................................................................................2 nd PLAINTIFF
JOSEPH BINAYO...........................................................................................3 RD PLAINTIFF
PETER YEGON..............................................................................................4 TH PLAINTIFF
DORIS KATHIA..............................................................................................5 TH PLAINTIFF
ELIZABETH MURIITHI..............................................................................6 TH PLAINTIFF
-VERSUS-
JOHN WAWERU..............................……………........................................1 ST DEFENDANT
ROBERT NAMIRANDA...........................................................................2 ND DEFENDANT
LUCY ASEWE.............................................................................................3 RD DEFENDANT
DOMINICAH MWAGANDI......................................................................4 TH DEFENDANT
ELIUD ONYANGO....................................................................................5 TH DEFENDANT
TERESA MWILU........................................................................................6 TH DEFENDANT
MOSES OCHIENG....................................................................................7 TH DEFENDANT
EDWARD MARIENGA
(Sued as the Executive Director and Secretary of Family Health Options Kenya............................................................................................................8 TH DEFENDANT
NON-GOVERNMENTAL ORGANIZATIONS
CO-ORDINATION BOARD.....................................................................9 TH DEFENDANT
JUDGMENT
Background
1. The circumstances giving rise to this dispute emanate from allegations of financial impropriety implicating Edward Marienga (the 8 Defendant) made by International Planned Parenthood Federation (IPPF), a partner of Family Health Options Kenya (FHOK) in May 2020. According to Joseph Karueru (1 st Plaintiff), the National Chairperson of FHOK at the time, and Esther Cheruiyot (2 nd Plaintiff), the Treasurer of FHOK at the time, these allegations required urgent attention. However, this was not possible because of the Covid 19 pandemic, which made it impracticable to convene a physical National Executive Committee (NEC) meeting. The two officials decided to convene a special meeting on 10/06/2020 for the purpose of addressing the allegations. During that meeting, a forensic audit of the FHOK was commissioned and Edward Marienga (the 8 th Defendant), the Executive Director of FHOK at the time, was suspended.
2. That action by the 1 st and 2 nd Plaintiffs, triggered divisions within the FHOK. It became impossible to hold NEC or to engage in any positive reconciliation engagements. The actions of the 1 st and 2 nd Plaintiffs led to the circumstances giving rise to this dispute.
3. The Plaintiffs alleged that John Waweru (1 st Defendant), Lucy Asewe (3 rd Defendant) and the 8 th Defendant colluded and purported to convene a meeting in the absence of the 1 st Plaintiff during which they suspended the 1 st Plaintiff and installed the 1 st Defendant as the Acting Chairperson; that they organized and executed an Annual Delegates Conference (ADC) on 09/10/2020 without consulting the Honorary Officers and without issuing proper notice as required by the FHOK Constitution and denied the Plaintiffs the chance to attend the ADC because of lack of proper notice. The Plaintiffs accused the Defendants of irregularities in convening and conduction the ADC, among them, lack of proper notice of the ADC, change of venue of the ADC, excluding honorary officials, inclusion of unqualified delegates, pre-selection of candidates for elections, proposed amendments of the constitution and adoption of amendments and withholding the agenda of the ADC, hence this suit.
The Plaint
4. The 1 st and 2 nd Plaintiffs, alongside Joseph Binayo, (3 rd Plaintiff), Peter Yegon (4 th Plaintiff), Doris Kathia (5 th Plaintiff) and Elizabeth Muriithi (6 th Plaintiff) filed a plaint dated 20/11/2020 seeking judgment against John Waweru, (1 st Defendant), Robert Namiranda (2 nd Defednat), Lucy Asewe (3 rd Defendant), Dominicah Mwagandi (4 th Defendant), Eliud Onyango (5 th Defendant), Teresa Mwilu (6 th Defednat), Moses Ochieng (7 th Defednat), Edward Marienga (8 th Defendant) and Non-Governmental Organizations Co-Ordination Board (9 th Defendant). The Plaintiffs are seeking the following orders:
(a) A declaration that the purported Annual Delegates Conference held on 9.10.2020 violated the mandatory requirements of Family Health Options Kenya Constitution and is therefore null and void.
(b) A declaration that the elections of Family Health Options Kenya held on 9.10.2020 were contrary to the Constitution and therefore null and void and of no effect.
(c) A declaration that the purported suspension of the 1 st Plaintiff as National Chairperson was unlawful and therefore null and void and of no effect.
(d) A declaration that the 1 st and 2 nd Plaintiffs and the National Executive Committee elected alongside them, being the last duly and lawfully elected officials of Family Health Options Kenya, continue to run, manage and conduct the business of Family Health Options Kenya until such time when proper elections to elect new officials shall be held.
(e) A permanent injunction staying the proceedings, resolutions and decisions of the purported Annual Delegates Conference held on 9.10.2020.
(f) A permanent injunction against the 1 st to 8 th Defendants, either by themselves, their agents, employees, servants or others acting on their behalf from managing, running or in any way conducting the business of Family Health Options Kenya unless validly elected in a subsequent election.
(g) A permanent injunction against the 9 th Defendant from registering any person as a new official, honorary officer or National Executive Member of Family Health Options Kenya unless validly elected in a subsequent election.
(h) Costs of the suit.
(i) Such other or further remedies as this court may deem fit to grant.
5. The Plaintiffs have pleaded that Family Health Options Kenya (hereafter FHOK) is a non-governmental organization registered under the Non-Governmental Organizations Co-Ordination Act No. 19 of 1990; that sometime in May 2020, the 1 st Plaintiff, who has at all material times were the National Chairperson of FHOK, received credible information from one of its key international partners, namely, International Planned Parenthood Federation, of alleged corruption and mismanagement of funds in FHOK; that relying on the said information, the 1 st and 2 nd Plaintiffs, being honorary officials of FHOK, met on 10.06.2020 and resolved to appoint independent forensic investigators to ascertain the veracity of the allegations and that in the process, the 8 th Defendant was suspended to pave the way for the said investigations and to minimize the possibility of interference.
6. It is pleaded that subsequently, on 17.06.2020, the NEC of FHOK was convened during which the 1 st Plaintiff tabled the report of the meeting previously held on 10.06.2020; that in the course of the meeting, a faction of the NEC consisting of the 1 st and 3 rd Defendants, differed with the actions taken by the 1 st and 2 nd Plaintiffs and disrupted the meeting, forcing an adjournment thereof and that subsequent meetings were not successful.
7. It is pleaded that the 1 st and 3 rd Defendants illegally convened a meeting, where they purported to suspend the 1 st Plaintiff and to appoint the 1 st Defendant as acting Chairperson, and further purported to recall the 8 th Defendant who had previously been suspended, thereby contravening Article 22(iii) of FHOK’s Constitution which mandates that in the absence of the Chairperson, the Treasurer shall assume the duties and responsibilities thereof; that subsequently on 26.08.2020 a forensic audit report was issued, thereby implicating the 8 th Defendant and the Director of Finance and Administration in relation to various offences pertaining to FHOK, including abuse of office; conflict of interest; bribery; and misappropriation of funds and that on 30.08.2020, FHOK through the 1 st Plaintiff, wrote to the 8 th Defendant, informing him of the impending disciplinary actions that would be taken against him for gross misconduct and that the 1 st Plaintiff convened a further meeting of the NEC, which Committee is mandated under the FHOK Constitution with the employment and termination of officials..
8. It was pleaded that the defendants convened the Annual Delegates Conference (ADC) in contravention of the FHOK’s Constitution by failing to give prior notice of 21 days of the intended ADC and failing to specify the venue thereof; sending out notices solely to a few handpicked delegates while locking out the 1 st and 2 nd Plaintiffs who are honorary members of FHOK and changing the venue of the ADC at the last minute, with the aim of frustrating the Plaintiffs.
9. The Plaintiffs have pleaded that the 1 st to 7 th Defendants were elected to take up various positions, notwithstanding the fact that other delegates had previously submitted their names for elections; that the outcome of the ADC was intended to favour the Defendants; that the 1 st to 8 th Defendants proceeded to propose key amendments to the FHOK Constitution contrary to Article 43 thereof, which requires prior written notice of 21 days to be given pertaining to proposed amendments; that among the proposed amendments was the introduction of the position of Vice Chairperson and that despite the objections from the delegates present, the 1 st to 8 th Defendants proceeded with the ADC and purported to pass the agenda in its entirety.
The Defence
10. In their statement of defence, the 1 st to 7 th Defendants, whilst admitting that leadership wrangles have existed in FHOK at all material times, denied that the same were caused by the Defendants. They have pleaded that, contrary what is pleaded in the Plaint, it is the Plaintiffs, particularly the 1 st and 2 nd Plaintiffs, who are responsible for the instabilities in FHOK by failure to follow the FHOK’s Constitution; that the 1 st Plaintiff contravened the FHOK Constitution by suspending the 8 th Defendant without consulting the NEC and without a resolution thereof; that the 1 st Plaintiff conducted a forensic audit on FHOK and borrowed a substantial sum of Kshs. 6.3 million, in the absence of a resolution or approval by either NEC or ADC; that the 1 st Plaintiff ignored requests to deliberate on the looming crisis by way of a meeting, and declined to step aside amidst his suspension from FHOK on a vote of no confidence, on 17.09.2020.
11. The 1 st to 7 th Defendants have pleaded that the decision to suspend the 8 th Defendant lay solely with the NEC and not the 1 st and 2 nd Plaintiffs; that the said Plaintiffs did not follow the laid down procedure in suspending the 8 th Defendant; that contrary to the pleading of the Plaintiffs, the 8 th Defendant was reinstated through a court order and not by way of a resolution; that the forensic audit report is incurably defective, the same having been conducted and prepared in the absence of the requisite resolutions or approvals and that the ADC which was convened by the 1 st to 8 th Defendants, fully complied with the FHOK Constitutional requirements and was thus valid.
12. The 1 st to 7 th Defendants have pleaded that sufficient notice of the ADC was issued to all the necessary parties, including the 1 st and 2 nd Plaintiffs, who confirmed receipt; that in addition, all relevant documents of the ADC including the agenda, were forwarded to all the necessary parties; that the venue of the said meeting was clearly communicated and that there was no change to the venue, contrary to what is averred in the plaint and that in the circumstances, the Plaintiffs are not entitled to the reliefs sought in the plaint, and the suit ought to be dismissed with costs.
13. The 8 th Defendant filed his statement of defence dated 6/01/2021 denying the key averments contained in the plaint and liability against him. He has pleaded that the 1 st Defendant is the bona fide elected Chairperson of FHOK; that the 1 st Plaintiff personally set out to appoint forensic investigators with the aim of removing the 8 th Defendant from office, but without following the procedures laid out in the FHOK Constitution; that the decision to suspend the 1 st Plaintiff was unanimously made, vide a NEC meeting held on 17/09/2020, following allegations of fraud on the part of the said Plaintiff as well as the 2 nd Plaintiff; that the 1 st Plaintiff faced disciplinary action, with the alleged charges being proved and that the NEC convened a meeting whereby the 1 st Defendant was appointed as Interim Chairperson of FHOK pending elections.
14. The 8 th Defendant has pleaded that he was appointed to the position of Executive Director of FHOK on 6/02/2012 and that he reports directly to FHOK.; that on 20/08/2020 he received a letter from NEC requiring him to attend a meeting before it, on the following day; that upon conclusion of the meeting held on 21/08/2020, the 8 th Defendant received a letter lifting his suspension and reinstating him with immediate effect on the basis that his suspension was in violation of Article 26 of the FHOK Constitution which stipulates that only the NEC has the mandate to appoint, discipline, suspend and terminate the contract of an employee of FHOK and that consequently, the 8 th Defendant lodged a claim with the ELRC in a bid to enforce his labour rights with FHOK, which claim was settled by way of a consent.
15. The 8 th Defendant has maintained that the ADC was properly convened in compliance with FHOK’s Constitutional guidelines. He has questioned the jurisdiction of this court to entertain this suit under the doctrine of exhaustion. He pleaded that Regulations 20 and 21 of the FHOK Constitution clearly set out the procedure and internal dispute mechanisms for challenging elections outcomes, which procedure was not followed by the Plaintiffs.
16. The 9 th Defendant, as the record shows, never entered appearance in the matter and therefore did not participated in the instant suit.
The Evidence
17. At the hearing of the suit, the 1 st , 2 nd and 3 rd Plaintiffs testified and called one (1) additional witness. The 1 st and 5 th Defendants testified on behalf of the 1 st to 7 th Defendants, and the 8 th Defendant testified in support of his case.
18. The 1 st Plaintiff testified as PW1 . He adopted his witness statement dated 20/11/2020 ( P.Ex.1 ) as his evidence in chief. In cross-examination, he stated that while the NEC has the mandate to appoint as well as to determine terms and conditions of service of the position of Executive Director, he decided to take the action of terminating the services of the Executive Director at the time since the Covid-19 pandemic restrictions made it impossible for the NEC to physically meet.
19. He testified that he commissioned a forensic audit following the report received on 26/8/2020 and that his attempts at calling for a NEC meeting to address the contents of the report, bore no fruit; that while the entire board of the NEC was invited to deliberate on the aforementioned forensic audit report vide a meeting held on 17/09/2020, a section of the board disrupted the agenda of the meeting, causing it to abort. He testified that sometimes, thereafter, the NEC purported to suspend him before the ADC which was held in September, 2020 and hence he did not attend or participate in the ADC.
20. The 1 st Plaintiff maintained that he is the current Executive Director of FHOK and that though he had previously been suspended for a period, he was not terminated from office, stating that he has held the position of Chairman of FHOK since August, 2017 and that his suspension was unprocedural and unconstitutional.
21. He similarly testified that in relation to his purported suspension, he received a letter dated 22/09/2020 from the Disciplinary Committee of FHOK, which letter he responded to but did not honour the invite to attend the said Committee; that subsequently, the Committee sat on 7/10/2020 to address the various allegations that had been raised against the 1 st Plaintiff and that at the material time no disciplinary committee existed and hence the resulting decision was arrived at by strangers. He stated that, nevertheless, he did not lodge an appeal against the said decision.
22. The 1 st Plaintiff testified, further, that he was an honourary member of the NEC, and that under Regulation 9(i) of the FHOK Constitution, the tenure for NEC members is a maximum 6 years and that as at April, 2020 the he had secured 6 successive years as member of the NEC and was entitled to serve a third term as an honourary officer.
23. In re-examination, the 1 st Plaintiff testified that his suspension was based on various allegations including violation of the FHOK Constitution; taking a loan and appointing auditors to conduct the forensic audit and acquiring properties on behalf of FHOK; that no evidence of the said allegations was ever disclosed to him and that his refusal to appear before the Disciplinary Committee was guided by the fact that the said Committee was not properly constituted at the material time.
24. The 2 nd Plaintiff testified as PW2. She similarly adopted her witness statement dated 20/11/2020 as her evidence-in-chief. She testified that she has been a National Treasurer at FHOK at all material times since the year 2014.
25. During cross-examination, the 2 nd Plaintiff testified that she was equally a member of the NEC at all material times; that she remained in office until 2020, and that in the intervening period, she was unable to exercise her office functions fully due to interferences from the 8 th Defendan.t. Her evidence is similar to that of the 1 st Plaintiff in regard to this dispute. She testified that she did not receive an invitation to attend the ADC which was held on 8/10/2020 and that she learned of the said Conference through another member the night before the event and that she is aware that a new NEC was elected at the said ADC.
26. The 2 nd Plaintiff admitted that an internal dispute resolution mechanism existed in FHOK but it could not be reasonably invoked in this instance, owing to the tension that ensued amongst members of the NEC.
27. The 3 rd Plaintiff testified as PW3. His evidence is that he was a branch Chairman of FHOK based in Uasin Gishu. He adopted witness statement dated 20/11/2020 as his evidence-in-chief.
28. In cross-examination, he stated that he received invitation to attend an AGM scheduled to take place at Milele Plaza on 9/10/2020 and noted that the notice was too short as it did not meet the requisite 21 days; that upon his arrival at Milele Plaza on the scheduled date, he learned that the venue of the meeting had changed to a larger facility; namely, Tumaini, due to the Covid-19 restrictions; that despite the short notice which came via email communication, he chose to attend the ADC; that the meeting was held in Nakuru, with a majority of branches being represented; that some of the Plaintiffs attended the ADC; that during the said meeting, the 1 st Defendant disclosed to the delegates that he was the interim Chairman; that the 3 rd Plaintiff had no knowledge that the 1 st Plaintiff had been suspended or that the 2 nd Plaintiff was not in attendance.
29. He testified that while the FHOK Constitution provides that in the absence of a Chair and Vice Chair, a chair can be appointed to head the meeting, in that instance, the 1 st Defendant had not been elected to chair the meeting in question and that, nonetheless, the 1 st Plaintiff having served two (2) terms in the NEC, was not eligible to contest for any position as from 2020.
30. The 3 rd Plaintiff testified that during the aforesaid meeting, majority of the members in attendance were not given audience and hence there was a sense of dissatisfaction with the resolutions that were passed therein. He denied, in re-examination that he voted for any resolutions and that any elections were held.
31. Betsy Kaari Mburugu testified as PW4 . She adopted witness statement dated 17.09.2021 as her evidence-in-chief. In cross-examination, she stated that she had contested for the position of Women Representative for Isiolo Branch of the FHOK, during the material elections; that she received the invitation to attend the ADC as a delegate, and that no voting took place prior to the agenda of the said meeting being approved; that some of the delegates in attendance objected to the approval of the agenda, but their objections were entirely dismissed by the interim Chairperson; that the agenda for approval of the proposed amendments to the FHOK Constitution was passed after the proposal seconded, despite various objections being raised and that her personal attempts at raising an objection in the ADC were shut down.
32. PW4 testified, further, that as per her knowledge, both the 1 st and 2 nd Plaintiffs exercised their first terms in 2017 and that a Chairman can be in office for two (2) consecutive terms of 3 years upon re-election of the first term and thereafter, elections must be held and that at the time the ADC was held, the 1 st Plaintiff was still the lawful Chairman and ought to have chaired the ADC until such time as a new chairperson was re-elected. She testified that the venue of ADC was changed from Tumaini to Milele Plaza in Nakuru, with the 8 th Defendant explaining that the change was intended to ensure compliance with the Covi-19 regulations on social distancing.
33. During further cross-examination, the witness stated that she was invited to attend the ADC as an observer, while her counterpart Mr. Kiogora, was invited as a delegate representing Isiolo Branch; that she did not have any evidence to demonstrate that there are persons who presented themselves for election in the ADC but were denied an opportunity for consideration during the election process.
34. Giving evidence in support of the case for the 1 st to 7 th Defendants, John Waweru, DW1, the 1 st Defendant adopted his witness statement dated 5/01/2021 and produced a bundle of documents dated 5/01/2021, as Defendants’ Exhibits .
35. He testified that he has been a member of FHOK as well as a volunteer, for over 20 years; that the 1 st Plaintiff was a Chairman of FHOK for a period of two (2) terms each running three (3) years; that the ADC which was held in Nakuru on 09/10/2020 was properly constituted with prior invitations having been sent to all the necessary parties and that the said Conference resulted in the appointments of new members.
36. In cross-examination, the 1 st Defendant stated that he served as Chairman for the Audit Committee of FHOK between the years 2017 and 2020 and later held an elective position of Chairman following elections held during the ADC, in addition to being a member of the Disciplinary Committee. He testified that the 1 st Plaintiff was ultimately suspended from his Chairmanship position and a vote of no confidence passed against him; that contrary to the averments by the Plaintiffs, there was no change of venue for the ADC; that the ADC was held in Tumaini cottages which is not situated at the same location as Milele Plaza and that during that ADC, the chairperson, vice-chairperson and treasurer were elected.
37. In re-examination, the 1 st Defendant testified that Regulation 2 of the FHOK Constitution makes allowance for the appointment of an interim Chairperson; that the annulment of the ADC held on 09/10/2020 would have no impact, as two (2) other ADCs have been held since then and that all persons who held office at the time; including the Defendants herein are no longer members of the Executive Committee.
38. On the subject of the forensic audit report, the 1 st Defendant’s testified that it is the 1 st Plaintiff, who was the then Chairperson, whole solely authorized for the forensic audit to be conducted.
39. Eliud Onyango, the 5 th Defendant, testified as DW2. He adopted his witness statement dated 20/01/2021 as his evidence in chief. During cross-examination, he testified that he has been a volunteer member and Chairperson of FHOK since April, 2023 to date; that he attended the ADC on 09/10/2020 as a delegate member, upon receiving an invitation via SMS and a written letter and that the ADC was peacefully conducted. He, however, pointed out that his name does not appear on the minutes of the said meeting and that while the venue of the ADC changed, the owners of both premises are one and the same.
40. He testified that he has no knowledge as to why he was sued in the present matter since he was not a member of the NEC during the period between 2021 and 2022 and cannot, therefore, speak about the circumstances leading to the alleged removal from office of the 1 st Plaintiff.
41. Edward Marienga , the 8 th Defendant, testified as the DW3 . He adopted his witness statement dated 7/01/2024 as his evidence-in-chief and produced bundle of documents as D8. Exhibits 1 to 18 . He testified that the ADC is held every year and that elections are normally conducted during ADCs, with elections being carried out every three (3) years and that the last elections were held in the year 2023.
42. The 8 th Defendant testified, further, that while the dispute herein arose from the ADC held on 09/10/2020, subsequent ADCs have been held, resulting in the elections and appointments of separate persons in office, whose terms have not been challenged and that while a party can challenge the outcome of elections by way of an appeal, the Plaintiffs herein did not invoke the necessary internal dispute resolution mechanisms stipulated in the FHOK Constitution, before moving the court.
43. In cross-examination, the 8 th Defendant testified that he has worked at FHOK since the year 2012 and that the parties herein are known to him; that the 1 st Defendant in particular, first held the position of Chairperson of the Audit Sub-Committee and later became the interim Chair prior to being elected as Chairman of FHOK. that the 1 st Plaintiff was suspended from his position as Chairman, during a meeting held on 20/08/2020, owing to disciplinary issues; that previously, the 1 st Plaintiff had overstepped his mandate by suspending the 8 th Defendant and that the 2 nd Plaintiff, who was at all material times the Treasurer of FHOK, was neither suspended nor subjected to any disciplinary action.
44. In relation to his suspension, the 8 th Defendant testified that he did not have an opportunity to read the forensic audit report which is said to have implicated him; that requisite notices were sent out within the constitutional timelines in respect of the ADV+C of 09/10/2020; that the written invitation contained the agenda of the said meeting and that the 1 st Plaintiff, having been suspended, was not invited and did not therefore attend the ADC.
45. Upon further cross-examination, the 8 th Defendant testified that the 1 st Plaintiff did not offer a response to the letter of complaint served upon him and equally did not attend the disciplinary proceedings against him and that by virtue of his employment status with the Board, it is the Board that had the mandate to suspend the 8 th Defendant, and not the 1 st Plaintiff.
46. As relates to the ADC of 09/10/2020, the 8 th Defendant testified that while there was a change of the venue, no one was inconvenienced; that the change of venue was necessitated by the Covid-19 regulations which required social distancing and that prior to the amendments to the FHOK Constitution, the position of Vice Chairperson did not exist.
Submissions
47. The Plaintiffs filed their collective submissions dated 21/10/2025. They submitted on three issues as follows:
(a) Whether the ADC held on 09/10/2020 together with the resolutions passed and the elections held was convened and conducted in compliance with the mandatory provisions of FHOK’s constitution and regulations ?
48. The Plaintiffs submitted that the ADC held on 09/10/2020 was both convened and conducted in breach of the procedure set out in the FHOK Constitution; that Article 15 and Regulation 3 (a) of the FHOK Constitution was breached by failing to consult the 1 st and/or 2 nd Plaintiffs and by neglecting and/or refusing to give 21 days’ notice of the intended ADC; that the ADC contravened Article 13 of the FHOK Constitution which provides for only one delegate per branch at the ADC, given that some regional branches of FHOK, including Bungoma, Siaya and Homabay, were represented by more than one delegate and that some branches remained unrepresented due to the lack of proper notice and invitation by the 8 th Defendant.
49. The Plaintiffs have further faulted the failure to provide an advance circulation of the proposed amendments to the FHOK Constitution, in contravention of Article 43 which expresses that any proposed amendment to the Constitution must be circulated to all delegates at least 21 days prior to the ADC and must be subjected to deliberation and formal voting. They submitted that, consequentl
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IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. E193 OF 2020
JOSEPH KARUERU
(Suing on his own behalf and as the National Chairperson of Family Health Options Kenya).....................................................................................................1 ST PLAINTIFF
ESTHER CHERUIYOT
(Suing on her own behalf and as the Treasurer of Family Health Options Kenya)................................................................................................................2 nd PLAINTIFF
JOSEPH BINAYO...........................................................................................3 RD PLAINTIFF
PETER YEGON..............................................................................................4 TH PLAINTIFF
DORIS KATHIA..............................................................................................5 TH PLAINTIFF
ELIZABETH MURIITHI..............................................................................6 TH PLAINTIFF
-VERSUS-
JOHN WAWERU..............................……………........................................1 ST DEFENDANT
ROBERT NAMIRANDA...........................................................................2 ND DEFENDANT
LUCY ASEWE.............................................................................................3 RD DEFENDANT
DOMINICAH MWAGANDI......................................................................4 TH DEFENDANT
ELIUD ONYANGO....................................................................................5 TH DEFENDANT
TERESA MWILU........................................................................................6 TH DEFENDANT
MOSES OCHIENG....................................................................................7 TH DEFENDANT
EDWARD MARIENGA
(Sued as the Executive Director and Secretary of Family Health Options Kenya............................................................................................................8 TH DEFENDANT
NON-GOVERNMENTAL ORGANIZATIONS
CO-ORDINATION BOARD.....................................................................9 TH DEFENDANT
JUDGMENT
Background
1. The circumstances giving rise to this dispute emanate from allegations of financial impropriety implicating Edward Marienga (the 8 Defendant) made by International Planned Parenthood Federation (IPPF), a partner of Family Health Options Kenya (FHOK) in May 2020. According to Joseph Karueru (1 st Plaintiff), the National Chairperson of FHOK at the time, and Esther Cheruiyot (2 nd Plaintiff), the Treasurer of FHOK at the time, these allegations required urgent attention. However, this was not possible because of the Covid 19 pandemic, which made it impracticable to convene a physical National Executive Committee (NEC) meeting. The two officials decided to convene a special meeting on 10/06/2020 for the purpose of addressing the allegations. During that meeting, a forensic audit of the FHOK was commissioned and Edward Marienga (the 8 th Defendant), the Executive Director of FHOK at the time, was suspended.
2. That action by the 1 st and 2 nd Plaintiffs, triggered divisions within the FHOK. It became impossible to hold NEC or to engage in any positive reconciliation engagements. The actions of the 1 st and 2 nd Plaintiffs led to the circumstances giving rise to this dispute.
3. The Plaintiffs alleged that John Waweru (1 st Defendant), Lucy Asewe (3 rd Defendant) and the 8 th Defendant colluded and purported to convene a meeting in the absence of the 1 st Plaintiff during which they suspended the 1 st Plaintiff and installed the 1 st Defendant as the Acting Chairperson; that they organized and executed an Annual Delegates Conference (ADC) on 09/10/2020 without consulting the Honorary Officers and without issuing proper notice as required by the FHOK Constitution and denied the Plaintiffs the chance to attend the ADC because of lack of proper notice. The Plaintiffs accused the Defendants of irregularities in convening and conduction the ADC, among them, lack of proper notice of the ADC, change of venue of the ADC, excluding honorary officials, inclusion of unqualified delegates, pre-selection of candidates for elections, proposed amendments of the constitution and adoption of amendments and withholding the agenda of the ADC, hence this suit.
The Plaint
4. The 1 st and 2 nd Plaintiffs, alongside Joseph Binayo, (3 rd Plaintiff), Peter Yegon (4 th Plaintiff), Doris Kathia (5 th Plaintiff) and Elizabeth Muriithi (6 th Plaintiff) filed a plaint dated 20/11/2020 seeking judgment against John Waweru, (1 st Defendant), Robert Namiranda (2 nd Defednat), Lucy Asewe (3 rd Defendant), Dominicah Mwagandi (4 th Defendant), Eliud Onyango (5 th Defendant), Teresa Mwilu (6 th Defednat), Moses Ochieng (7 th Defednat), Edward Marienga (8 th Defendant) and Non-Governmental Organizations Co-Ordination Board (9 th Defendant). The Plaintiffs are seeking the following orders:
(a) A declaration that the purported Annual Delegates Conference held on 9.10.2020 violated the mandatory requirements of Family Health Options Kenya Constitution and is therefore null and void.
(b) A declaration that the elections of Family Health Options Kenya held on 9.10.2020 were contrary to the Constitution and therefore null and void and of no effect.
(c) A declaration that the purported suspension of the 1 st Plaintiff as National Chairperson was unlawful and therefore null and void and of no effect.
(d) A declaration that the 1 st and 2 nd Plaintiffs and the National Executive Committee elected alongside them, being the last duly and lawfully elected officials of Family Health Options Kenya, continue to run, manage and conduct the business of Family Health Options Kenya until such time when proper elections to elect new officials shall be held.
(e) A permanent injunction staying the proceedings, resolutions and decisions of the purported Annual Delegates Conference held on 9.10.2020.
(f) A permanent injunction against the 1 st to 8 th Defendants, either by themselves, their agents, employees, servants or others acting on their behalf from managing, running or in any way conducting the business of Family Health Options Kenya unless validly elected in a subsequent election.
(g) A permanent injunction against the 9 th Defendant from registering any person as a new official, honorary officer or National Executive Member of Family Health Options Kenya unless validly elected in a subsequent election.
(h) Costs of the suit.
(i) Such other or further remedies as this court may deem fit to grant.
5. The Plaintiffs have pleaded that Family Health Options Kenya (hereafter FHOK) is a non-governmental organization registered under the Non-Governmental Organizations Co-Ordination Act No. 19 of 1990; that sometime in May 2020, the 1 st Plaintiff, who has at all material times were the National Chairperson of FHOK, received credible information from one of its key international partners, namely, International Planned Parenthood Federation, of alleged corruption and mismanagement of funds in FHOK; that relying on the said information, the 1 st and 2 nd Plaintiffs, being honorary officials of FHOK, met on 10.06.2020 and resolved to appoint independent forensic investigators to ascertain the veracity of the allegations and that in the process, the 8 th Defendant was suspended to pave the way for the said investigations and to minimize the possibility of interference.
6. It is pleaded that subsequently, on 17.06.2020, the NEC of FHOK was convened during which the 1 st Plaintiff tabled the report of the meeting previously held on 10.06.2020; that in the course of the meeting, a faction of the NEC consisting of the 1 st and 3 rd Defendants, differed with the actions taken by the 1 st and 2 nd Plaintiffs and disrupted the meeting, forcing an adjournment thereof and that subsequent meetings were not successful.
7. It is pleaded that the 1 st and 3 rd Defendants illegally convened a meeting, where they purported to suspend the 1 st Plaintiff and to appoint the 1 st Defendant as acting Chairperson, and further purported to recall the 8 th Defendant who had previously been suspended, thereby contravening Article 22(iii) of FHOK’s Constitution which mandates that in the absence of the Chairperson, the Treasurer shall assume the duties and responsibilities thereof; that subsequently on 26.08.2020 a forensic audit report was issued, thereby implicating the 8 th Defendant and the Director of Finance and Administration in relation to various offences pertaining to FHOK, including abuse of office; conflict of interest; bribery; and misappropriation of funds and that on 30.08.2020, FHOK through the 1 st Plaintiff, wrote to the 8 th Defendant, informing him of the impending disciplinary actions that would be taken against him for gross misconduct and that the 1 st Plaintiff convened a further meeting of the NEC, which Committee is mandated under the FHOK Constitution with the employment and termination of officials..
8. It was pleaded that the defendants convened the Annual Delegates Conference (ADC) in contravention of the FHOK’s Constitution by failing to give prior notice of 21 days of the intended ADC and failing to specify the venue thereof; sending out notices solely to a few handpicked delegates while locking out the 1 st and 2 nd Plaintiffs who are honorary members of FHOK and changing the venue of the ADC at the last minute, with the aim of frustrating the Plaintiffs.
9. The Plaintiffs have pleaded that the 1 st to 7 th Defendants were elected to take up various positions, notwithstanding the fact that other delegates had previously submitted their names for elections; that the outcome of the ADC was intended to favour the Defendants; that the 1 st to 8 th Defendants proceeded to propose key amendments to the FHOK Constitution contrary to Article 43 thereof, which requires prior written notice of 21 days to be given pertaining to proposed amendments; that among the proposed amendments was the introduction of the position of Vice Chairperson and that despite the objections from the delegates present, the 1 st to 8 th Defendants proceeded with the ADC and purported to pass the agenda in its entirety.
The Defence
10. In their statement of defence, the 1 st to 7 th Defendants, whilst admitting that leadership wrangles have existed in FHOK at all material times, denied that the same were caused by the Defendants. They have pleaded that, contrary what is pleaded in the Plaint, it is the Plaintiffs, particularly the 1 st and 2 nd Plaintiffs, who are responsible for the instabilities in FHOK by failure to follow the FHOK’s Constitution; that the 1 st Plaintiff contravened the FHOK Constitution by suspending the 8 th Defendant without consulting the NEC and without a resolution thereof; that the 1 st Plaintiff conducted a forensic audit on FHOK and borrowed a substantial sum of Kshs. 6.3 million, in the absence of a resolution or approval by either NEC or ADC; that the 1 st Plaintiff ignored requests to deliberate on the looming crisis by way of a meeting, and declined to step aside amidst his suspension from FHOK on a vote of no confidence, on 17.09.2020.
11. The 1 st to 7 th Defendants have pleaded that the decision to suspend the 8 th Defendant lay solely with the NEC and not the 1 st and 2 nd Plaintiffs; that the said Plaintiffs did not follow the laid down procedure in suspending the 8 th Defendant; that contrary to the pleading of the Plaintiffs, the 8 th Defendant was reinstated through a court order and not by way of a resolution; that the forensic audit report is incurably defective, the same having been conducted and prepared in the absence of the requisite resolutions or approvals and that the ADC which was convened by the 1 st to 8 th Defendants, fully complied with the FHOK Constitutional requirements and was thus valid.
12. The 1 st to 7 th Defendants have pleaded that sufficient notice of the ADC was issued to all the necessary parties, including the 1 st and 2 nd Plaintiffs, who confirmed receipt; that in addition, all relevant documents of the ADC including the agenda, were forwarded to all the necessary parties; that the venue of the said meeting was clearly communicated and that there was no change to the venue, contrary to what is averred in the plaint and that in the circumstances, the Plaintiffs are not entitled to the reliefs sought in the plaint, and the suit ought to be dismissed with costs.
13. The 8 th Defendant filed his statement of defence dated 6/01/2021 denying the key averments contained in the plaint and liability against him. He has pleaded that the 1 st Defendant is the bona fide elected Chairperson of FHOK; that the 1 st Plaintiff personally set out to appoint forensic investigators with the aim of removing the 8 th Defendant from office, but without following the procedures laid out in the FHOK Constitution; that the decision to suspend the 1 st Plaintiff was unanimously made, vide a NEC meeting held on 17/09/2020, following allegations of fraud on the part of the said Plaintiff as well as the 2 nd Plaintiff; that the 1 st Plaintiff faced disciplinary action, with the alleged charges being proved and that the NEC convened a meeting whereby the 1 st Defendant was appointed as Interim Chairperson of FHOK pending elections.
14. The 8 th Defendant has pleaded that he was appointed to the position of Executive Director of FHOK on 6/02/2012 and that he reports directly to FHOK.; that on 20/08/2020 he received a letter from NEC requiring him to attend a meeting before it, on the following day; that upon conclusion of the meeting held on 21/08/2020, the 8 th Defendant received a letter lifting his suspension and reinstating him with immediate effect on the basis that his suspension was in violation of Article 26 of the FHOK Constitution which stipulates that only the NEC has the mandate to appoint, discipline, suspend and terminate the contract of an employee of FHOK and that consequently, the 8 th Defendant lodged a claim with the ELRC in a bid to enforce his labour rights with FHOK, which claim was settled by way of a consent.
15. The 8 th Defendant has maintained that the ADC was properly convened in compliance with FHOK’s Constitutional guidelines. He has questioned the jurisdiction of this court to entertain this suit under the doctrine of exhaustion. He pleaded that Regulations 20 and 21 of the FHOK Constitution clearly set out the procedure and internal dispute mechanisms for challenging elections outcomes, which procedure was not followed by the Plaintiffs.
16. The 9 th Defendant, as the record shows, never entered appearance in the matter and therefore did not participated in the instant suit.
The Evidence
17. At the hearing of the suit, the 1 st , 2 nd and 3 rd Plaintiffs testified and called one (1) additional witness. The 1 st and 5 th Defendants testified on behalf of the 1 st to 7 th Defendants, and the 8 th Defendant testified in support of his case.
18. The 1 st Plaintiff testified as PW1 . He adopted his witness statement dated 20/11/2020 ( P.Ex.1 ) as his evidence in chief. In cross-examination, he stated that while the NEC has the mandate to appoint as well as to determine terms and conditions of service of the position of Executive Director, he decided to take the action of terminating the services of the Executive Director at the time since the Covid-19 pandemic restrictions made it impossible for the NEC to physically meet.
19. He testified that he commissioned a forensic audit following the report received on 26/8/2020 and that his attempts at calling for a NEC meeting to address the contents of the report, bore no fruit; that while the entire board of the NEC was invited to deliberate on the aforementioned forensic audit report vide a meeting held on 17/09/2020, a section of the board disrupted the agenda of the meeting, causing it to abort. He testified that sometimes, thereafter, the NEC purported to suspend him before the ADC which was held in September, 2020 and hence he did not attend or participate in the ADC.
20. The 1 st Plaintiff maintained that he is the current Executive Director of FHOK and that though he had previously been suspended for a period, he was not terminated from office, stating that he has held the position of Chairman of FHOK since August, 2017 and that his suspension was unprocedural and unconstitutional.
21. He similarly testified that in relation to his purported suspension, he received a letter dated 22/09/2020 from the Disciplinary Committee of FHOK, which letter he responded to but did not honour the invite to attend the said Committee; that subsequently, the Committee sat on 7/10/2020 to address the various allegations that had been raised against the 1 st Plaintiff and that at the material time no disciplinary committee existed and hence the resulting decision was arrived at by strangers. He stated that, nevertheless, he did not lodge an appeal against the said decision.
22. The 1 st Plaintiff testified, further, that he was an honourary member of the NEC, and that under Regulation 9(i) of the FHOK Constitution, the tenure for NEC members is a maximum 6 years and that as at April, 2020 the he had secured 6 successive years as member of the NEC and was entitled to serve a third term as an honourary officer.
23. In re-examination, the 1 st Plaintiff testified that his suspension was based on various allegations including violation of the FHOK Constitution; taking a loan and appointing auditors to conduct the forensic audit and acquiring properties on behalf of FHOK; that no evidence of the said allegations was ever disclosed to him and that his refusal to appear before the Disciplinary Committee was guided by the fact that the said Committee was not properly constituted at the material time.
24. The 2 nd Plaintiff testified as PW2. She similarly adopted her witness statement dated 20/11/2020 as her evidence-in-chief. She testified that she has been a National Treasurer at FHOK at all material times since the year 2014.
25. During cross-examination, the 2 nd Plaintiff testified that she was equally a member of the NEC at all material times; that she remained in office until 2020, and that in the intervening period, she was unable to exercise her office functions fully due to interferences from the 8 th Defendan.t. Her evidence is similar to that of the 1 st Plaintiff in regard to this dispute. She testified that she did not receive an invitation to attend the ADC which was held on 8/10/2020 and that she learned of the said Conference through another member the night before the event and that she is aware that a new NEC was elected at the said ADC.
26. The 2 nd Plaintiff admitted that an internal dispute resolution mechanism existed in FHOK but it could not be reasonably invoked in this instance, owing to the tension that ensued amongst members of the NEC.
27. The 3 rd Plaintiff testified as PW3. His evidence is that he was a branch Chairman of FHOK based in Uasin Gishu. He adopted witness statement dated 20/11/2020 as his evidence-in-chief.
28. In cross-examination, he stated that he received invitation to attend an AGM scheduled to take place at Milele Plaza on 9/10/2020 and noted that the notice was too short as it did not meet the requisite 21 days; that upon his arrival at Milele Plaza on the scheduled date, he learned that the venue of the meeting had changed to a larger facility; namely, Tumaini, due to the Covid-19 restrictions; that despite the short notice which came via email communication, he chose to attend the ADC; that the meeting was held in Nakuru, with a majority of branches being represented; that some of the Plaintiffs attended the ADC; that during the said meeting, the 1 st Defendant disclosed to the delegates that he was the interim Chairman; that the 3 rd Plaintiff had no knowledge that the 1 st Plaintiff had been suspended or that the 2 nd Plaintiff was not in attendance.
29. He testified that while the FHOK Constitution provides that in the absence of a Chair and Vice Chair, a chair can be appointed to head the meeting, in that instance, the 1 st Defendant had not been elected to chair the meeting in question and that, nonetheless, the 1 st Plaintiff having served two (2) terms in the NEC, was not eligible to contest for any position as from 2020.
30. The 3 rd Plaintiff testified that during the aforesaid meeting, majority of the members in attendance were not given audience and hence there was a sense of dissatisfaction with the resolutions that were passed therein. He denied, in re-examination that he voted for any resolutions and that any elections were held.
31. Betsy Kaari Mburugu testified as PW4 . She adopted witness statement dated 17.09.2021 as her evidence-in-chief. In cross-examination, she stated that she had contested for the position of Women Representative for Isiolo Branch of the FHOK, during the material elections; that she received the invitation to attend the ADC as a delegate, and that no voting took place prior to the agenda of the said meeting being approved; that some of the delegates in attendance objected to the approval of the agenda, but their objections were entirely dismissed by the interim Chairperson; that the agenda for approval of the proposed amendments to the FHOK Constitution was passed after the proposal seconded, despite various objections being raised and that her personal attempts at raising an objection in the ADC were shut down.
32. PW4 testified, further, that as per her knowledge, both the 1 st and 2 nd Plaintiffs exercised their first terms in 2017 and that a Chairman can be in office for two (2) consecutive terms of 3 years upon re-election of the first term and thereafter, elections must be held and that at the time the ADC was held, the 1 st Plaintiff was still the lawful Chairman and ought to have chaired the ADC until such time as a new chairperson was re-elected. She testified that the venue of ADC was changed from Tumaini to Milele Plaza in Nakuru, with the 8 th Defendant explaining that the change was intended to ensure compliance with the Covi-19 regulations on social distancing.
33. During further cross-examination, the witness stated that she was invited to attend the ADC as an observer, while her counterpart Mr. Kiogora, was invited as a delegate representing Isiolo Branch; that she did not have any evidence to demonstrate that there are persons who presented themselves for election in the ADC but were denied an opportunity for consideration during the election process.
34. Giving evidence in support of the case for the 1 st to 7 th Defendants, John Waweru, DW1, the 1 st Defendant adopted his witness statement dated 5/01/2021 and produced a bundle of documents dated 5/01/2021, as Defendants’ Exhibits .
35. He testified that he has been a member of FHOK as well as a volunteer, for over 20 years; that the 1 st Plaintiff was a Chairman of FHOK for a period of two (2) terms each running three (3) years; that the ADC which was held in Nakuru on 09/10/2020 was properly constituted with prior invitations having been sent to all the necessary parties and that the said Conference resulted in the appointments of new members.
36. In cross-examination, the 1 st Defendant stated that he served as Chairman for the Audit Committee of FHOK between the years 2017 and 2020 and later held an elective position of Chairman following elections held during the ADC, in addition to being a member of the Disciplinary Committee. He testified that the 1 st Plaintiff was ultimately suspended from his Chairmanship position and a vote of no confidence passed against him; that contrary to the averments by the Plaintiffs, there was no change of venue for the ADC; that the ADC was held in Tumaini cottages which is not situated at the same location as Milele Plaza and that during that ADC, the chairperson, vice-chairperson and treasurer were elected.
37. In re-examination, the 1 st Defendant testified that Regulation 2 of the FHOK Constitution makes allowance for the appointment of an interim Chairperson; that the annulment of the ADC held on 09/10/2020 would have no impact, as two (2) other ADCs have been held since then and that all persons who held office at the time; including the Defendants herein are no longer members of the Executive Committee.
38. On the subject of the forensic audit report, the 1 st Defendant’s testified that it is the 1 st Plaintiff, who was the then Chairperson, whole solely authorized for the forensic audit to be conducted.
39. Eliud Onyango, the 5 th Defendant, testified as DW2. He adopted his witness statement dated 20/01/2021 as his evidence in chief. During cross-examination, he testified that he has been a volunteer member and Chairperson of FHOK since April, 2023 to date; that he attended the ADC on 09/10/2020 as a delegate member, upon receiving an invitation via SMS and a written letter and that the ADC was peacefully conducted. He, however, pointed out that his name does not appear on the minutes of the said meeting and that while the venue of the ADC changed, the owners of both premises are one and the same.
40. He testified that he has no knowledge as to why he was sued in the present matter since he was not a member of the NEC during the period between 2021 and 2022 and cannot, therefore, speak about the circumstances leading to the alleged removal from office of the 1 st Plaintiff.
41. Edward Marienga , the 8 th Defendant, testified as the DW3 . He adopted his witness statement dated 7/01/2024 as his evidence-in-chief and produced bundle of documents as D8. Exhibits 1 to 18 . He testified that the ADC is held every year and that elections are normally conducted during ADCs, with elections being carried out every three (3) years and that the last elections were held in the year 2023.
42. The 8 th Defendant testified, further, that while the dispute herein arose from the ADC held on 09/10/2020, subsequent ADCs have been held, resulting in the elections and appointments of separate persons in office, whose terms have not been challenged and that while a party can challenge the outcome of elections by way of an appeal, the Plaintiffs herein did not invoke the necessary internal dispute resolution mechanisms stipulated in the FHOK Constitution, before moving the court.
43. In cross-examination, the 8 th Defendant testified that he has worked at FHOK since the year 2012 and that the parties herein are known to him; that the 1 st Defendant in particular, first held the position of Chairperson of the Audit Sub-Committee and later became the interim Chair prior to being elected as Chairman of FHOK. that the 1 st Plaintiff was suspended from his position as Chairman, during a meeting held on 20/08/2020, owing to disciplinary issues; that previously, the 1 st Plaintiff had overstepped his mandate by suspending the 8 th Defendant and that the 2 nd Plaintiff, who was at all material times the Treasurer of FHOK, was neither suspended nor subjected to any disciplinary action.
44. In relation to his suspension, the 8 th Defendant testified that he did not have an opportunity to read the forensic audit report which is said to have implicated him; that requisite notices were sent out within the constitutional timelines in respect of the ADV+C of 09/10/2020; that the written invitation contained the agenda of the said meeting and that the 1 st Plaintiff, having been suspended, was not invited and did not therefore attend the ADC.
45. Upon further cross-examination, the 8 th Defendant testified that the 1 st Plaintiff did not offer a response to the letter of complaint served upon him and equally did not attend the disciplinary proceedings against him and that by virtue of his employment status with the Board, it is the Board that had the mandate to suspend the 8 th Defendant, and not the 1 st Plaintiff.
46. As relates to the ADC of 09/10/2020, the 8 th Defendant testified that while there was a change of the venue, no one was inconvenienced; that the change of venue was necessitated by the Covid-19 regulations which required social distancing and that prior to the amendments to the FHOK Constitution, the position of Vice Chairperson did not exist.
Submissions
47. The Plaintiffs filed their collective submissions dated 21/10/2025. They submitted on three issues as follows:
(a) Whether the ADC held on 09/10/2020 together with the resolutions passed and the elections held was convened and conducted in compliance with the mandatory provisions of FHOK’s constitution and regulations ?
48. The Plaintiffs submitted that the ADC held on 09/10/2020 was both convened and conducted in breach of the procedure set out in the FHOK Constitution; that Article 15 and Regulation 3 (a) of the FHOK Constitution was breached by failing to consult the 1 st and/or 2 nd Plaintiffs and by neglecting and/or refusing to give 21 days’ notice of the intended ADC; that the ADC contravened Article 13 of the FHOK Constitution which provides for only one delegate per branch at the ADC, given that some regional branches of FHOK, including Bungoma, Siaya and Homabay, were represented by more than one delegate and that some branches remained unrepresented due to the lack of proper notice and invitation by the 8 th Defendant.
49. The Plaintiffs have further faulted the failure to provide an advance circulation of the proposed amendments to the FHOK Constitution, in contravention of Article 43 which expresses that any proposed amendment to the Constitution must be circulated to all delegates at least 21 days prior to the ADC and must be subjected to deliberation and formal voting. They submitted that, consequentl
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