1. The Ex Parte Applicants’ moved this court through the Notice of Motion dated 16th November 2023 seeking the following Orders THAT:
(1) an order of PROHIBITION do issue directed at the Respondents prohibiting the Respondents from issuing any orders, notices and directions, or making any decisions adverse to the Ex Parte Applicants’ rights, before due and full compliance with all of the legal requirements relating to decision making in the Kenya Auto Bazaar Association in accordance with its constitution;
(2) an order of CERTIORARI do issue to remove into the High Court and quash the Respondents’ Decisions communicated on 1st October 2023 and 6th October 2023;
(3) an order of MANDAMUS do issue directed at the Respondents compelling them to call for an Annual General Meeting of the Kenya Auto Bazaar Association;
(4) a DECLARATION do issue that the Respondents, on account of the various matters complained of in this Application have breached the Ex Parte Applicants’ rights to a fair administrative action, as articulated by Sections 3, 4, 5, 6, 7 and 11 of the Fair Administrative Action Act, and further guaranteed under Articles 10, 47 and 232 of the Constitution; and
(5) the costs of this Application be provided for.
2. In response, the Respondent filed a Preliminary Objection on the Ground that the Ex facie, the Honourable Court does not have the jurisdiction to issue orders of Prohibition, Certiorari and Mandamus as sought in this suit, the Respondent Association not being a public body.
3. It is the Applicants case that any assertions which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. The Preliminary Objection herein raises issues that would require production of evidence. Accordingly, the Preliminary Objection does not raise pure points of law and lacks merit.
4. According to the Respondents, the Kenya Auto Bazaar Association is not a public office, but a club of members who have agreed to associate for their own private benefit and not for the entire public who are governed by the Rules and Regulations contained in their society's constitution.
5. It is their case that the right sought to be enforced by the Applicants are purely of private character as the duty which is in question on the persons or authority are not imposed by the statute and the orders of Judicial Review would not be against private individual or entity.
Analysis and determination:
6. The issue for determination is whether the preliminary objection should be allowed or not.
7. In the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA, as he then was, had this to say on what a preliminary objection entails:
“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
At page 701 paragraph B-C Sir Charles Newbold, P. stated:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...” (Emphasis added).
8. Section 2 (b) of the Fair Administrative Action Act stipulates that in this Act, unless the context otherwise requires– "administrative action" includes any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.
9. In Republic v Royal Nairobi Golf Club Ex parte Ooko Erick Obura & another [2021] eKLR the Court held that while the ex parte Applicant’s membership of the Respondent club may be of a voluntary nature, under the Fair Administrative Action Act, any decision of the Respondent that affects the rights or interests of its members will be amenable to judicial review.
10. Article 20 (1) of the Constitution stipulates that the Bill of Rights applies to all law and binds all State organs and all persons.
11. Article 47 (1) of The Constitution which is part of the bill of rights provides that that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
12. Article 23 (3) of The Constitution provides that any proceedings brought under Article 22(f) a court may grant appropriate relief, including an order of judicial review.
13. Judicial review proceedings are no longer limited to the provisions of Order 50 of the Civil Procedure Rules no doubt the Constitution 2010 has made room for fair administrative action under Article 47 of the Constitution.
Disposition
14. I am satisfied that what the Applicant is challenging amounts to a decision that is within the Fair Administrative Action Act ambit since the concerned decision affects him and this court has the jurisdiction to hear and determine the suit from a Judicial Review lens and I so hold.
Order:
The Notice of Preliminary objection 11th December 2023 is dismissed with costs.