[1] The Notice of Motion dated 15 th May 2024 was filed by the ex parte applicants (hereinafter, the applicants) pursuant to the provisions of Section 3A of the Civil Procedure Act, CAP 21 Laws of Kenya and Order 53 Rule 3 & 4 of the Civil Procedure Rules, 2010. They prayed for the following orders:
[a] THAT the applicants be granted an Order of Certiorari to bring into this Court and quash forthwith the decision by the 3 rd respondent dated 25 th March, 2024 purporting to dismiss and/or remove from the office, the Executive Committee of Ng’ou/Dhogunda Beach Management Unit (BMU) and instructing and/or directing the 4 th respondent to embark on the process of conducting fresh elections to replace the Executive Committee within Ninety (90) days and the decision to appoint Interim Executive Committee of Ng’ou/Dhogunda by the 4 th respondent vide letter dated 26 th February, 2024.
[b] THAT the applicants be granted an Order of Prohibition directed at the respondents in particular the 3 rd and 4 th respondents prohibiting and restraining them from implementing the decision of the 3 rd respondent dated 25 th March 2024 purporting to;
[i] dismiss and/or remove from the office, the Executive Committee of Ng’ou/Dhogunda BMU and appointing the Interim Executive Committee of Ng’ou/Dhogunda BMU dated 26 th February, 2024.
[ii] embark on the process of conducting fresh elections to replace the Executive Committee within Ninety (90) days.
[c] THAT in the alternative, the Court do grant a Conservatory Order of Injunction restraining the 3 rd and 4 th respondents from implementing the decision made on 25 th March, 2024 by the 3 rd respondent.
[d] THAT the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances.
[2] The application was premised on the grounds set out on its face and in the Supporting Affidavit sworn by the 1 st applicant, George Otieno Oracha . The key grounds relied on by the applicants are that:
[a] THAT the proceedings, findings and decision dated 25 th March, 2024 are a gross travesty of injustice as they have offended all possible principles of law, the Constitution, the Fisheries Management & Development Act Cap 378 and the Fisheries (Beach Management Unit) Regulations 2007.
[b] THAT the 3 rd and 4 th respondents’ conduct in the process leading to the impugned decision is manifestly malicious, unlawful, unconstitutional, unprocedural, inconsistent, contradictory and ultra vires the provisions and procedure of the law in particular the Constitution of Kenya, 2010, the Fisheries Management & Development Act and the Fisheries (Beach Management Unit) Regulations 2007, notably Regulation 23(1) (h) of the Fisheries (Beach Management Unit) Regulations 2007.
[c] THAT the decision of the 3 rd respondent is ultra vires, illegal, unlawful, null and void as the responsibility and power to dismiss an elected Executive Committee member rests with the electoral authority namely the Assembly of Ng’ou/Dhogunda BMU.
[d] THAT the 3 rd respondent’s decision is unfair, discriminatory, arbitrary, inconsistent, contradictory, malicious and capricious and offends the presumption of innocence as enshrined in the Constitution in that one of the Executive Committee member of the dissolved Executive Committee, namely, Charles Ochieng Okoso, has been appointed as one of the Interim BMU Committee of Ng’ou/Dhogunda BMU thereby confirming the prejudice, malice, vendetta and discrimination by the 3 rd and 4 th respondents against the other members of the Executive Committee.
[e] THAT the 3 rd and 4 th respondents’ decision is irrational, an abuse of power, draconian, harsh, discriminative, oppressive, punitive, grossly unlawful, actuated with malice, bias and vendetta and against the legitimate expectations of the registered members of Ng’ou/Dhogunda BMU and the applicants and epitome of procedural impropriety.
[f] THAT the 3 rd and 4 th respondents’ decision was made for an illegal, improper motive and/or for selective extraneous purpose by failing to take into account relevant factors and provisions of the law on due process and the right to a just and fair hearing.
[g] THAT consequently, the illegal, unlawful and unconstitutional acts of the 3 rd and 4 th respondents in commencing the implementation of the decision of the 3 rd respondent has denied the registered members of Ng’ou/Dhogunda BMU who elected the applicants to represent them in the matter pertaining to fishing activities at Ng’ou/ Dhogunda BMU .
[h] THAT as a result of the foregoing, it is imperative, necessary and appropriate that this instant application be heard and disposed of in accordance with the law and in particular, in accordance with Articles 48 and 50 of the Constitution of Kenya, 2010.
[3] The respondents opposed the application. They relied on the Replying Affidavit sworn on their behalf on 13 th June 2024 by the 1 st respondent’s Chief Officer, Blue Economy, Fisheries, Mining and Digital Economy, Joshua Orero. The respondents averred that the applicants violated the provisions of Section 21 (1) and (2) of the Fisheries (BMU) Regulations 2007, when they engaged in acts that condoned unprescribed fishing modes while they were mandated to prohibit the same. They further contended that, on numerous previous occasions the applicants were served with warning letters as well as show cause letters as to why they persistently allowed uncontrolled illegalities at Ng'ou/Dhogunda beach.
[4] According to the respondents, after having failed to discharge their mandate for which they were elected, the applicants were duly served with a warning letter dated 12 th April 2022. The letter was annexed to the respondents’ affidavit and marked as Annexure JO-01. The respondent added that the applicants willfully disregarded the letter and deliberately failed to respond thereto.
[5] The respondents further deposed that the 18 th August 2023 the Sub-County Fisheries officer, Mr. Michael Akoko , having noted repeated acts of illegal fishing in the applicants’ area of jurisdiction once again flagged the applicants and informed them to initiate control measures with immediate effect. They added that the instructions were again ignored by the applicants. The 2 nd warning letter was also annexed to the respondents’ Replying Affidavit and marked as JO-02.
[6] It was therefore the contention of the respondents that, given the aforementioned breaches of the Fisheries Management and Development Act, and lack of respect for the office held by them, the 4 th respondent issued a show cause letter dated 4 th February 2024. A copy thereof was annexed to the Replying Affidavit and marked as Annexure JO-03. They added that, the applicants having failed to sufficiently and convincingly respond to the show cause letter, an open assembly meeting was convened in which a resolution was passed to suspend the them. The decision was effected vide a letter dated 26 th February 2024 (see Annexure JO-04 to the Supporting Affidavit).
[7] The respondents further deposed that they acted in accordance with the law and followed due process in handling the suspension of the applicants. They also averred that the applicants were granted leave to appeal the decision of the 4 th respondent within 14 days to the Director Fisheries as prescribed by Section 20(4) of the Fisheries (Beach Management Unit) Regulations 2007; and that the Director of Fisheries upheld the 1 st respondent’s decision in line with Section 21(4) of the Fisheries (Beach Management Units) Regulations. A copy of the decision was annexed to the Replying Affidavit and marked Annexure JO-05.
[8] The respondents explained that, upon the conclusion of the appeal process, they called for the election of new office bearers for the Beach Management Committee to be conducted within 90 days from the date decision. They added that in the interest of continuity of office, an interim committee was appointed by the 4 th respondent in accordance with the Fisheries (Beach Management Unit) Regulations 2007. This averment is supported by the document marked Annexure JO-06).
[9] The respondents therefore reiterated their stance that they followed due process in handling what they deemed to be the applicants’ gross violation of the law. They urged for the dismissal of the Notice of Motion dated 15 th May 2024 with costs.
[10] The application was urged by way of written submissions, pursuant to the directions given herein on 15 th October 2024. Consequently, the applicants relied on their written submissions dated 29 th October 2024. They replicated the background facts and submitted that they are registered members of Ng’ou/Dhogunda Beach Management Unit (hereinafter referred to as “the BMU”). The applicants explained that the subject BMU is one of the BMU’S operating along the shores of Lake Victoria in Suba North Sub-County; and that it was established in accordance with the Fisheries (Beach management Unit) Regulations 2007 Legal Notice 402, 2007 (the 2007 Regulations) made under the Fisheries Act Cap 378 Laws of Kenya.
[11] The applicants submitted that they were nominated along with others by their respective membership groups; namely, Traders, Crews, and Boat Owners, respectively, to represent members in Ng’ou/Dhogunda BMU. They then vied for the membership of the Executive Committee of Ng’ou/Dhogunda BMU and were elected in December 2020 by the registered members of the BMU amongst other office committee members. They submitted that the Executive Committee constituted the Assembly for a 4-year term in office and commenced that they commence work in January, 2021. Accordingly, their term of office was due to expire in in December, 2024.
[12] The applicants further submitted that, as members of the Executive Committee, they carried out their mandate and duties in accordance with the 2007 Regulations till February, 2024, when the 1 st applicant, as their chairman, received a letter dated 13 th February, 2024 from the 4 th respondent’s office, written by Michael Ogembo Akoko , dissolving Ng’ou/Dhogunda BMU on the allegations of condoning illegal fishing activities within the beach areas of the BMU. They stated that they promptly lodged an appeal in accordance with the Regulations vide Appeal dated 17 th February, 2024, which Appeal was duly determined by the 3 rd Respondent vide his letter dated 21 st February, 2024 containing his decision reinstating the Executive Committee of the BMU .
[13] The applicants were aggrieved that, hardly four days after the said decision to reinstate the Executive Committee, the 4 th respondent through his letter dated 26 th February, 2024 wrote to the 1 st applicant suspending the Executive Committee of the BMU and attached a letter dated 26 th February, 2024 appointing Interim BMU Executive Committee to run fishing activities at the BMU. They urged the Court to note that the list of interim officials included member of the dissolved Executive Committee, namely, Mr. Charles Ochieng Okoso (No. 6 in the List of Interim BMU Executive Committee).
[14] On the basis of the foregoing facts, the applicants submitted that, since their appeal was allowed, the 4 th respondent’s appointment of an Interim Executive Committee of the BMU vide letter dated 26 th February, 2024 is ultra vires. They reiterated the grounds set forth in their application and Supporting Affidavit. In the premises, the applicants proposed the following two issues for determination:
[a] Whether the 3 rd Respondent has the statutory mandate to remove from office the members of the Executive Committee elected by the Assembly of the BMU; and,
[b] Whether the orders prayed for by the applicants are merited.
[15] On whether the 3 rd respondent has the statutory mandate to remove members of the Executive Committee from office, the applicants relied on Sections 37, 136 and 208 of the Fisheries Management and Development Act and Regulations 21(4) and 23(1)(h) of the Fisheries (Beach Management Unit) Regulations to anchor their argument that the Executive Committee of the BMU having been duly elected in accordance with the 2007 Regulations, could only be removed from the office by the Assembly under Regulation 23(1)(h) and not otherwise as purportedly done by the 3 rd Respondent.
[16] The applicants made reference to the decision of the Supreme Court in Dande & 3 Others v Inspector General National Police Service & 5 Others: Petition NO 6 (E007) 4 (E005) & 8 (E010) OF 2022 (CONSOLIDATED) [2023] KESC 40 (KLR) 16 June 2023) Judgment to support their argument that the scope of judicial review has been expanded by dint of Article 47 of the Constitution from a process review to encompass a consideration of the merits of the decision complained of. They reiterated their position that the 3 rd and 4 th respondents’ actions were discriminatory, oppressive, and malicious and were driven by bias, improper Motive and vendetta.
[17] The applicants urged the Court to note that one of the members of the Executive Committee, Charles Ochieng Okoso who was also dismissed alongside them by the 3 rd and 4 th respondents, was appointed by the 4 th Respondent as one of the members of the Interim BMU Committee of Ng’ou/Dhogunda BMU vide a letter dated 26 th February, 2024. In their submission the re-appointment of the said Charles Ochieng Okoso is proof enough of prejudice, malice, vendetta and discrimination by the 3 rd and 4 th respondents as against them as no justification for his re-appointment was given in the Replying Affidavit sworn on 13 th June, 2024.
[18] The applicants also submitted that the decisions of the 3 rd and 4 th respondents went against the legitimate expectations of the registered members of Ng’ou/Dhogunda BMU, who had elected them. They relied on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 Others, Petition No. 14 of 2014 [2014] KESC 53 (KLR) for the proposition that the principle of legitimate expectation imposes a duty to act fairly and to honour reasonable expectation raised by the conduct of a public authority .
[19] Lastly, the applicants submitted that they were unlawfully bounded out of office in February, 2024 before the expiry of their term in December 2024. They urged the Court to exercise its discretion and inherent power in the interest of justice by extending their term of office to last the four years provided for in the Regulations. They accordingly prayed that their Notice of Motion dated 15 th May, 2024 be allowed and orders granted as prayed.
[20] In their written submissions dated 10 th February 2025, the respondents reiterated the background facts in respect of which they were by and large in agreement with the applicants. The point of departure is the suspension and whether it was lawfully done. While the applicant’s contended that the respondents acted ultra vires, the respondents were of the conviction that they followed due process of the law in handling the dissolution of the Executive Committee of the BMU. Accordingly, the respondents proposed the following issues for determination:
[a] Whether the applicants were procedurally dismissed from office.
[b] Whether an Order of Certiorari should issue as prayed for by the applicants.
[21] On the removal from office of the applicants, the respondents insisted that their actions were in accordance with the Fisheries Beach Management Regulations, 2007. They submitted that they duly served the applicants with warning letters as well as a show cause letter as to why they persistently allowed illegalities at Ng’ou/Dhogunda beach in disregard of their mandate. They submitted that the applicants did not adduce any evidence to challenge the accusations of abuse of office and violation of their mandate. They urged the Court to consider the steps they took as set out in their Replying Affidavit dated 13 th June 2024.
[22] In the circumstances, the respondents posited that the prayers sought by the applicants have been overtaken by events and engaging the courts further is an act of in futility and a waste of judicial time. They made reference to Republic v Kenya National Examination Counsel Ex Parte Gathenji & Others , Civil Appeal No. 266 of 1996, in which it was held that Prohibition looks to the future and is therefore ineffectual where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice.
[23] The respondents submitted that for a writ of Certiorari to be issued, the applicant must first of all establish locus standi . On the authority of Law Society of Kenya v Commissioner of Lands & Others , Nakuru High Court Civil Case No 464 of 2000 and Alfred Njau & others v City Council of Nairobi [ 1982] KAR 229, the respondents urged the Court to find that the applicants are not entitled to an order of Certiorari. They therefore prayed for the dismissal with costs of the Notice of Motion dated 15 th May 2024.
[24] The parties are in agreement that the applicants were elected as some of the members of the Executive Committee of Ng’ou/Dhogunda BMU in December 2020 by the registered members of the BMU. From among the membership, the 1 st applicant was elected the Chairman. The team was to serve for a term of four years and were therefore to remain in office until December of 2024. It is also common ground that, by dint of the letter dated 13 th February 2024 (Annexure GOO 1 to the Supporting Affidavit), written by the Sub-County Fisheries Officer, Michael Ogembo Akoko, who is the 4 th respondent herein, the Executive Committee of Ng’ou/Dhogunda BMU was dissolved with immediate effect. The letter was addressed jointly to the 1 st applicant as the Chairman of the BMU together with all the members of the Executive Committee of Ng’ou/Dhogunda BMU.
[25] At paragraphs 2, 3 and 4 of the said letter, the 4 th respondent gave the reasons for the dissolution of the Executive Committee as follows:
[a] Failure to eradicate illegal gears and activities within the breeding areas under the jurisdiction of the BMU;
[b] Failure to maintain proper financial data and/or records since inception; and,
[c] Failure to submit fish catch data to the Fisheries Office.
[26] The averments of the parties further show that indeed, in the letter dated 13 th February 2024, the 4 th respondent informed the applicants of their right of appeal in the following terms with reference to the Fisheries (Beach Management Unit) Regulations, 2007:
“Any person aggrieved by the decision may appeal to the director of fisheries within 14 days pursuant to part IV section 20(4)…”
[27] An appeal was promptly filed by the 1 st , 2 nd and 3 rd applicants in their respective capacities as Chairperson, Secretary and Treasurer of the BMU. The appeal was made to the 3 rd respondent and a copy thereof was annexed to the applicants’ Supporting Affidavit and marked Annexure GOO2. By a letter dated 25 th March 2024, the 3 rd respondent dismissed the appeal and confirmed the decision of the 4 th respondent. He accordingly authorized the 4 th respondent to embark on the process of conducting elections at Ng’ou/Dhogunda BMU. In the circumstances, the contention by the respondents that the applicants lack the requisite locus standi to file the instant application is baseless and requires no further elaboration.
[28] In the light of the foregoing, the issues for consideration are as follows:
[a] Whether, in the circumstances, the applicants are entitled to the reliefs sought; and
[b] What orders ought to issue on costs.
[29] The applicants seek judicial review orders of Prohibition and Certiorari. In Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal held:
“…These remedies are only available against public bodies such as the Council in this case. What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council of prohibition would be ineffectual against the conviction because such an order would not quash the conviction. The conviction could be quashed either on an appeal or by an order of certiorari. The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
[30] To the extent that the impugned decision had been made by the time of the filing of the instant application, the remedy of Prohibition is untenable, and I so find. As for Certiorari, the Court of Appeal held added:
“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”
[31] Ordinarily, judicial review is concerned with the decision-making process as opposed to the merits of the decision itself. Accordingly, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another [2014] KEHC 3713 (KLR) it was held:
91. Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved…”
[32] The position changed fundamentally with the constitutional anchoring of the remedy under Article 47 of the Constitution. In this respect the Supreme Court had occasion to pronounce itself in the Dande case (supra) and held:
“Judicial review was introduced to Kenya from England in 1956 through sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court. Under that system, the High Court could issue orders of mandamus , prohibition, and certiorari . The grounds for the issuance of such orders were borrowed from common law. Prior to the promulgation of the Constitution of Kenya, 2010, there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan courts found in sections 8 and 9 which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.
The entrenchment of judicial review under the Constitution of Kenya, 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review was no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, article 47 of the Constitution provided that every person had a right to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
…
When a party approached a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party filed a suit under the provisions of order 53 of the Civil Procedure Rules and did not claim any violation of rights or even violation of the Constitution, then the court could only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se .”
[33] In its subsequent decision in Saisi & 7 others v Director of Public Prosecutions & 2 Others the Supreme Court cautioned that:
“76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act . The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
[34] It is now trite therefore that some measure of merit review is acceptable to enable the Court properly adjudicate a judicial review matter. The Supreme Court acknowledged as much in the Saisi thus:
“For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence . The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”
[35] Since the applicants approached the Court under various provisions of the Constitution, including Article 47 as well as Section 4 of the Fair Administrative Action Act, a merit analysis based on uncontested facts is permissible. They likewise relied on the applicable provisions of the Fisheries Management and Development Act as well as the Regulations made thereafter for the administration and control of the Beach Management Units.
[36] Section 37 of the Fisheries Management and Development Act provides that
(1) The Cabinet Secretary may for purposes of ensuring structured community participation in fisheries management, make regulations setting out standards for the management of beach management units established by the county governments.
[37] Accordingly, the Cabinet Secretary, Ministry of Mining, Blue Economy passed the 2007 Regulations vide Legal Notice No. 402 of 2007. The said Regulations were replaced by the Fisheries Management and Development (Beach Management Units) Regulations, 2024 which were gazetted vide Legal Notice No. 49 of 2024. The 2007 Regulations were accordingly revoked with effect from 1 st March 2024 by dint of Regulation 75 of the 2024 Regulations. Although counsel for the applicants addressed the Court on the relevant provisions of the 2024 Regulations, the impugned decision having been taken in February 2024, the applicable regime is the Fisheries (Beach Management Unit) Regulations, 2007.
[38] In the submission of the applicants, the 4 th respondent had no statutory mandate or power under the 2007 Regulations to dismiss a member or Executive Committee of “BMU”. In they contended that, under the 2
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[a] THAT the applicants be granted an Order of Certiorari to bring into this Court and quash forthwith the decision by the 3 rd respondent dated 25 th March, 2024 purporting to dismiss and/or remove from the office, the Executive Committee of Ng’ou/Dhogunda Beach Management Unit (BMU) and instructing and/or directing the 4 th respondent to embark on the process of conducting fresh elections to replace the Executive Committee within Ninety (90) days and the decision to appoint Interim Executive Committee of Ng’ou/Dhogunda by the 4 th respondent vide letter dated 26 th February, 2024.
[b] THAT the applicants be granted an Order of Prohibition directed at the respondents in particular the 3 rd and 4 th respondents prohibiting and restraining them from implementing the decision of the 3 rd respondent dated 25 th March 2024 purporting to;
[i] dismiss and/or remove from the office, the Executive Committee of Ng’ou/Dhogunda BMU and appointing the Interim Executive Committee of Ng’ou/Dhogunda BMU dated 26 th February, 2024.
[ii] embark on the process of conducting fresh elections to replace the Executive Committee within Ninety (90) days.
[c] THAT in the alternative, the Court do grant a Conservatory Order of Injunction restraining the 3 rd and 4 th respondents from implementing the decision made on 25 th March, 2024 by the 3 rd respondent.
[d] THAT the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances.
[2] The application was premised on the grounds set out on its face and in the Supporting Affidavit sworn by the 1 st applicant, George Otieno Oracha . The key grounds relied on by the applicants are that:
[a] THAT the proceedings, findings and decision dated 25 th March, 2024 are a gross travesty of injustice as they have offended all possible principles of law, the Constitution, the Fisheries Management & Development Act Cap 378 and the Fisheries (Beach Management Unit) Regulations 2007.
[b] THAT the 3 rd and 4 th respondents’ conduct in the process leading to the impugned decision is manifestly malicious, unlawful, unconstitutional, unprocedural, inconsistent, contradictory and ultra vires the provisions and procedure of the law in particular the Constitution of Kenya, 2010, the Fisheries Management & Development Act and the Fisheries (Beach Management Unit) Regulations 2007, notably Regulation 23(1) (h) of the Fisheries (Beach Management Unit) Regulations 2007.
[c] THAT the decision of the 3 rd respondent is ultra vires, illegal, unlawful, null and void as the responsibility and power to dismiss an elected Executive Committee member rests with the electoral authority namely the Assembly of Ng’ou/Dhogunda BMU.
[d] THAT the 3 rd respondent’s decision is unfair, discriminatory, arbitrary, inconsistent, contradictory, malicious and capricious and offends the presumption of innocence as enshrined in the Constitution in that one of the Executive Committee member of the dissolved Executive Committee, namely, Charles Ochieng Okoso, has been appointed as one of the Interim BMU Committee of Ng’ou/Dhogunda BMU thereby confirming the prejudice, malice, vendetta and discrimination by the 3 rd and 4 th respondents against the other members of the Executive Committee.
[e] THAT the 3 rd and 4 th respondents’ decision is irrational, an abuse of power, draconian, harsh, discriminative, oppressive, punitive, grossly unlawful, actuated with malice, bias and vendetta and against the legitimate expectations of the registered members of Ng’ou/Dhogunda BMU and the applicants and epitome of procedural impropriety.
[f] THAT the 3 rd and 4 th respondents’ decision was made for an illegal, improper motive and/or for selective extraneous purpose by failing to take into account relevant factors and provisions of the law on due process and the right to a just and fair hearing.
[g] THAT consequently, the illegal, unlawful and unconstitutional acts of the 3 rd and 4 th respondents in commencing the implementation of the decision of the 3 rd respondent has denied the registered members of Ng’ou/Dhogunda BMU who elected the applicants to represent them in the matter pertaining to fishing activities at Ng’ou/ Dhogunda BMU .
[h] THAT as a result of the foregoing, it is imperative, necessary and appropriate that this instant application be heard and disposed of in accordance with the law and in particular, in accordance with Articles 48 and 50 of the Constitution of Kenya, 2010.
[3] The respondents opposed the application. They relied on the Replying Affidavit sworn on their behalf on 13 th June 2024 by the 1 st respondent’s Chief Officer, Blue Economy, Fisheries, Mining and Digital Economy, Joshua Orero. The respondents averred that the applicants violated the provisions of Section 21 (1) and (2) of the Fisheries (BMU) Regulations 2007, when they engaged in acts that condoned unprescribed fishing modes while they were mandated to prohibit the same. They further contended that, on numerous previous occasions the applicants were served with warning letters as well as show cause letters as to why they persistently allowed uncontrolled illegalities at Ng'ou/Dhogunda beach.
[4] According to the respondents, after having failed to discharge their mandate for which they were elected, the applicants were duly served with a warning letter dated 12 th April 2022. The letter was annexed to the respondents’ affidavit and marked as Annexure JO-01. The respondent added that the applicants willfully disregarded the letter and deliberately failed to respond thereto.
[5] The respondents further deposed that the 18 th August 2023 the Sub-County Fisheries officer, Mr. Michael Akoko , having noted repeated acts of illegal fishing in the applicants’ area of jurisdiction once again flagged the applicants and informed them to initiate control measures with immediate effect. They added that the instructions were again ignored by the applicants. The 2 nd warning letter was also annexed to the respondents’ Replying Affidavit and marked as JO-02.
[6] It was therefore the contention of the respondents that, given the aforementioned breaches of the Fisheries Management and Development Act, and lack of respect for the office held by them, the 4 th respondent issued a show cause letter dated 4 th February 2024. A copy thereof was annexed to the Replying Affidavit and marked as Annexure JO-03. They added that, the applicants having failed to sufficiently and convincingly respond to the show cause letter, an open assembly meeting was convened in which a resolution was passed to suspend the them. The decision was effected vide a letter dated 26 th February 2024 (see Annexure JO-04 to the Supporting Affidavit).
[7] The respondents further deposed that they acted in accordance with the law and followed due process in handling the suspension of the applicants. They also averred that the applicants were granted leave to appeal the decision of the 4 th respondent within 14 days to the Director Fisheries as prescribed by Section 20(4) of the Fisheries (Beach Management Unit) Regulations 2007; and that the Director of Fisheries upheld the 1 st respondent’s decision in line with Section 21(4) of the Fisheries (Beach Management Units) Regulations. A copy of the decision was annexed to the Replying Affidavit and marked Annexure JO-05.
[8] The respondents explained that, upon the conclusion of the appeal process, they called for the election of new office bearers for the Beach Management Committee to be conducted within 90 days from the date decision. They added that in the interest of continuity of office, an interim committee was appointed by the 4 th respondent in accordance with the Fisheries (Beach Management Unit) Regulations 2007. This averment is supported by the document marked Annexure JO-06).
[9] The respondents therefore reiterated their stance that they followed due process in handling what they deemed to be the applicants’ gross violation of the law. They urged for the dismissal of the Notice of Motion dated 15 th May 2024 with costs.
[10] The application was urged by way of written submissions, pursuant to the directions given herein on 15 th October 2024. Consequently, the applicants relied on their written submissions dated 29 th October 2024. They replicated the background facts and submitted that they are registered members of Ng’ou/Dhogunda Beach Management Unit (hereinafter referred to as “the BMU”). The applicants explained that the subject BMU is one of the BMU’S operating along the shores of Lake Victoria in Suba North Sub-County; and that it was established in accordance with the Fisheries (Beach management Unit) Regulations 2007 Legal Notice 402, 2007 (the 2007 Regulations) made under the Fisheries Act Cap 378 Laws of Kenya.
[11] The applicants submitted that they were nominated along with others by their respective membership groups; namely, Traders, Crews, and Boat Owners, respectively, to represent members in Ng’ou/Dhogunda BMU. They then vied for the membership of the Executive Committee of Ng’ou/Dhogunda BMU and were elected in December 2020 by the registered members of the BMU amongst other office committee members. They submitted that the Executive Committee constituted the Assembly for a 4-year term in office and commenced that they commence work in January, 2021. Accordingly, their term of office was due to expire in in December, 2024.
[12] The applicants further submitted that, as members of the Executive Committee, they carried out their mandate and duties in accordance with the 2007 Regulations till February, 2024, when the 1 st applicant, as their chairman, received a letter dated 13 th February, 2024 from the 4 th respondent’s office, written by Michael Ogembo Akoko , dissolving Ng’ou/Dhogunda BMU on the allegations of condoning illegal fishing activities within the beach areas of the BMU. They stated that they promptly lodged an appeal in accordance with the Regulations vide Appeal dated 17 th February, 2024, which Appeal was duly determined by the 3 rd Respondent vide his letter dated 21 st February, 2024 containing his decision reinstating the Executive Committee of the BMU .
[13] The applicants were aggrieved that, hardly four days after the said decision to reinstate the Executive Committee, the 4 th respondent through his letter dated 26 th February, 2024 wrote to the 1 st applicant suspending the Executive Committee of the BMU and attached a letter dated 26 th February, 2024 appointing Interim BMU Executive Committee to run fishing activities at the BMU. They urged the Court to note that the list of interim officials included member of the dissolved Executive Committee, namely, Mr. Charles Ochieng Okoso (No. 6 in the List of Interim BMU Executive Committee).
[14] On the basis of the foregoing facts, the applicants submitted that, since their appeal was allowed, the 4 th respondent’s appointment of an Interim Executive Committee of the BMU vide letter dated 26 th February, 2024 is ultra vires. They reiterated the grounds set forth in their application and Supporting Affidavit. In the premises, the applicants proposed the following two issues for determination:
[a] Whether the 3 rd Respondent has the statutory mandate to remove from office the members of the Executive Committee elected by the Assembly of the BMU; and,
[b] Whether the orders prayed for by the applicants are merited.
[15] On whether the 3 rd respondent has the statutory mandate to remove members of the Executive Committee from office, the applicants relied on Sections 37, 136 and 208 of the Fisheries Management and Development Act and Regulations 21(4) and 23(1)(h) of the Fisheries (Beach Management Unit) Regulations to anchor their argument that the Executive Committee of the BMU having been duly elected in accordance with the 2007 Regulations, could only be removed from the office by the Assembly under Regulation 23(1)(h) and not otherwise as purportedly done by the 3 rd Respondent.
[16] The applicants made reference to the decision of the Supreme Court in Dande & 3 Others v Inspector General National Police Service & 5 Others: Petition NO 6 (E007) 4 (E005) & 8 (E010) OF 2022 (CONSOLIDATED) [2023] KESC 40 (KLR) 16 June 2023) Judgment to support their argument that the scope of judicial review has been expanded by dint of Article 47 of the Constitution from a process review to encompass a consideration of the merits of the decision complained of. They reiterated their position that the 3 rd and 4 th respondents’ actions were discriminatory, oppressive, and malicious and were driven by bias, improper Motive and vendetta.
[17] The applicants urged the Court to note that one of the members of the Executive Committee, Charles Ochieng Okoso who was also dismissed alongside them by the 3 rd and 4 th respondents, was appointed by the 4 th Respondent as one of the members of the Interim BMU Committee of Ng’ou/Dhogunda BMU vide a letter dated 26 th February, 2024. In their submission the re-appointment of the said Charles Ochieng Okoso is proof enough of prejudice, malice, vendetta and discrimination by the 3 rd and 4 th respondents as against them as no justification for his re-appointment was given in the Replying Affidavit sworn on 13 th June, 2024.
[18] The applicants also submitted that the decisions of the 3 rd and 4 th respondents went against the legitimate expectations of the registered members of Ng’ou/Dhogunda BMU, who had elected them. They relied on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 Others, Petition No. 14 of 2014 [2014] KESC 53 (KLR) for the proposition that the principle of legitimate expectation imposes a duty to act fairly and to honour reasonable expectation raised by the conduct of a public authority .
[19] Lastly, the applicants submitted that they were unlawfully bounded out of office in February, 2024 before the expiry of their term in December 2024. They urged the Court to exercise its discretion and inherent power in the interest of justice by extending their term of office to last the four years provided for in the Regulations. They accordingly prayed that their Notice of Motion dated 15 th May, 2024 be allowed and orders granted as prayed.
[20] In their written submissions dated 10 th February 2025, the respondents reiterated the background facts in respect of which they were by and large in agreement with the applicants. The point of departure is the suspension and whether it was lawfully done. While the applicant’s contended that the respondents acted ultra vires, the respondents were of the conviction that they followed due process of the law in handling the dissolution of the Executive Committee of the BMU. Accordingly, the respondents proposed the following issues for determination:
[a] Whether the applicants were procedurally dismissed from office.
[b] Whether an Order of Certiorari should issue as prayed for by the applicants.
[21] On the removal from office of the applicants, the respondents insisted that their actions were in accordance with the Fisheries Beach Management Regulations, 2007. They submitted that they duly served the applicants with warning letters as well as a show cause letter as to why they persistently allowed illegalities at Ng’ou/Dhogunda beach in disregard of their mandate. They submitted that the applicants did not adduce any evidence to challenge the accusations of abuse of office and violation of their mandate. They urged the Court to consider the steps they took as set out in their Replying Affidavit dated 13 th June 2024.
[22] In the circumstances, the respondents posited that the prayers sought by the applicants have been overtaken by events and engaging the courts further is an act of in futility and a waste of judicial time. They made reference to Republic v Kenya National Examination Counsel Ex Parte Gathenji & Others , Civil Appeal No. 266 of 1996, in which it was held that Prohibition looks to the future and is therefore ineffectual where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice.
[23] The respondents submitted that for a writ of Certiorari to be issued, the applicant must first of all establish locus standi . On the authority of Law Society of Kenya v Commissioner of Lands & Others , Nakuru High Court Civil Case No 464 of 2000 and Alfred Njau & others v City Council of Nairobi [ 1982] KAR 229, the respondents urged the Court to find that the applicants are not entitled to an order of Certiorari. They therefore prayed for the dismissal with costs of the Notice of Motion dated 15 th May 2024.
[24] The parties are in agreement that the applicants were elected as some of the members of the Executive Committee of Ng’ou/Dhogunda BMU in December 2020 by the registered members of the BMU. From among the membership, the 1 st applicant was elected the Chairman. The team was to serve for a term of four years and were therefore to remain in office until December of 2024. It is also common ground that, by dint of the letter dated 13 th February 2024 (Annexure GOO 1 to the Supporting Affidavit), written by the Sub-County Fisheries Officer, Michael Ogembo Akoko, who is the 4 th respondent herein, the Executive Committee of Ng’ou/Dhogunda BMU was dissolved with immediate effect. The letter was addressed jointly to the 1 st applicant as the Chairman of the BMU together with all the members of the Executive Committee of Ng’ou/Dhogunda BMU.
[25] At paragraphs 2, 3 and 4 of the said letter, the 4 th respondent gave the reasons for the dissolution of the Executive Committee as follows:
[a] Failure to eradicate illegal gears and activities within the breeding areas under the jurisdiction of the BMU;
[b] Failure to maintain proper financial data and/or records since inception; and,
[c] Failure to submit fish catch data to the Fisheries Office.
[26] The averments of the parties further show that indeed, in the letter dated 13 th February 2024, the 4 th respondent informed the applicants of their right of appeal in the following terms with reference to the Fisheries (Beach Management Unit) Regulations, 2007:
“Any person aggrieved by the decision may appeal to the director of fisheries within 14 days pursuant to part IV section 20(4)…”
[27] An appeal was promptly filed by the 1 st , 2 nd and 3 rd applicants in their respective capacities as Chairperson, Secretary and Treasurer of the BMU. The appeal was made to the 3 rd respondent and a copy thereof was annexed to the applicants’ Supporting Affidavit and marked Annexure GOO2. By a letter dated 25 th March 2024, the 3 rd respondent dismissed the appeal and confirmed the decision of the 4 th respondent. He accordingly authorized the 4 th respondent to embark on the process of conducting elections at Ng’ou/Dhogunda BMU. In the circumstances, the contention by the respondents that the applicants lack the requisite locus standi to file the instant application is baseless and requires no further elaboration.
[28] In the light of the foregoing, the issues for consideration are as follows:
[a] Whether, in the circumstances, the applicants are entitled to the reliefs sought; and
[b] What orders ought to issue on costs.
[29] The applicants seek judicial review orders of Prohibition and Certiorari. In Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal held:
“…These remedies are only available against public bodies such as the Council in this case. What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council of prohibition would be ineffectual against the conviction because such an order would not quash the conviction. The conviction could be quashed either on an appeal or by an order of certiorari. The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
[30] To the extent that the impugned decision had been made by the time of the filing of the instant application, the remedy of Prohibition is untenable, and I so find. As for Certiorari, the Court of Appeal held added:
“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”
[31] Ordinarily, judicial review is concerned with the decision-making process as opposed to the merits of the decision itself. Accordingly, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another [2014] KEHC 3713 (KLR) it was held:
91. Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved…”
[32] The position changed fundamentally with the constitutional anchoring of the remedy under Article 47 of the Constitution. In this respect the Supreme Court had occasion to pronounce itself in the Dande case (supra) and held:
“Judicial review was introduced to Kenya from England in 1956 through sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court. Under that system, the High Court could issue orders of mandamus , prohibition, and certiorari . The grounds for the issuance of such orders were borrowed from common law. Prior to the promulgation of the Constitution of Kenya, 2010, there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan courts found in sections 8 and 9 which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.
The entrenchment of judicial review under the Constitution of Kenya, 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review was no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, article 47 of the Constitution provided that every person had a right to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
…
When a party approached a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party filed a suit under the provisions of order 53 of the Civil Procedure Rules and did not claim any violation of rights or even violation of the Constitution, then the court could only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se .”
[33] In its subsequent decision in Saisi & 7 others v Director of Public Prosecutions & 2 Others the Supreme Court cautioned that:
“76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act . The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
[34] It is now trite therefore that some measure of merit review is acceptable to enable the Court properly adjudicate a judicial review matter. The Supreme Court acknowledged as much in the Saisi thus:
“For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence . The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”
[35] Since the applicants approached the Court under various provisions of the Constitution, including Article 47 as well as Section 4 of the Fair Administrative Action Act, a merit analysis based on uncontested facts is permissible. They likewise relied on the applicable provisions of the Fisheries Management and Development Act as well as the Regulations made thereafter for the administration and control of the Beach Management Units.
[36] Section 37 of the Fisheries Management and Development Act provides that
(1) The Cabinet Secretary may for purposes of ensuring structured community participation in fisheries management, make regulations setting out standards for the management of beach management units established by the county governments.
[37] Accordingly, the Cabinet Secretary, Ministry of Mining, Blue Economy passed the 2007 Regulations vide Legal Notice No. 402 of 2007. The said Regulations were replaced by the Fisheries Management and Development (Beach Management Units) Regulations, 2024 which were gazetted vide Legal Notice No. 49 of 2024. The 2007 Regulations were accordingly revoked with effect from 1 st March 2024 by dint of Regulation 75 of the 2024 Regulations. Although counsel for the applicants addressed the Court on the relevant provisions of the 2024 Regulations, the impugned decision having been taken in February 2024, the applicable regime is the Fisheries (Beach Management Unit) Regulations, 2007.
[38] In the submission of the applicants, the 4 th respondent had no statutory mandate or power under the 2007 Regulations to dismiss a member or Executive Committee of “BMU”. In they contended that, under the 2
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