Brief background:
1.The Applicants' gravamen is that the Respondent herein made a unilateral decision to deregister it without any notification and without according it any opportunity to be heard on what informed the decision to de-register the Society on 19th June 2023.
2.The Applicant did not know of the development until 3rd August 2023 when the Respondent published a Gazette Notice formalizing the de-registration.
3.This precipitated the filing of the application that is before this Court dated 4th October 2023 wherein the Applicant seeks the following orders:
(a) THAT an order of Certiorari do issue to quash the proceedings and decision of the Registrar of Societies made on 19th June 2023 de-registering the ex parte Applicant from registration as a Society.
(b) THAT the Honourable court be pleased to grant Permanent injunctive orders against the Interested Party herein whether by itself, servants, agents, employees or any other person restraining it from forcefully entering the Applicant Estate, levying dues from members of the Applicant, harassing officials of the Applicant, stopping development work within the Applicant estate or in whatever other manner interfering with the Management of the Applicant.
(c) THAT an order do issue directing the Officer Commanding Langata Police Station (O.C.S. Langata) to enforce the orders issued by this Honourable Court.
(d) THAT costs of this application be provided for in the cause.
(e) Such further or other reliefs as the Honourable Court may deem just and expedient to grant.
The application is predicated on the Supporting Affidavit of Ibrahim Abdullahi Khalif that was sworn on 4th October 2023.
5.The Applicant is further aggrieved by the fact that the Respondent sent to it a “Show Cause” and “Cancellation of Registration” letter dated 19th July 2023 while the actual de-registration had been effected on 19th June 2023.
6.It is the Applicant's case that more pertinently to demonstrate the Respondent’s blatant conspiracy with the Interested Parties and sheer administrative recklessness in her decision to de-register the Applicants’ society, the applicant refers the court to paragraph 12 of the Supporting affidavit where a letter dated 24th July 2023, written by Respondent misleadingly informed the lawyers for the Applicants that as the dispute between the two Societies was already in court, she would not take any decision until the dispute was determined by the court.
7.This letter was authored on 24th July 2023 whereas the decision to de-register the Applicants’ society was made on 19th June 2023 which was then followed by eventual gazettement of the de-registration on 3rd August 2023.
8.It is the Applicant's case that the events leading to the de-registration of the Applicants did not at all follow any due process and it was not accorded an opportunity to be heard nor informed of the reasons as to why they were de-registered.
9.Reliance is placed in Article 47 (1) of the constitution of Kenya, 2010, fully applies. Article 47(1) of the Constitution states as follows,“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
10.In addition, Article 47 (2) thereof states,“If a fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
11.It is the Applicant's case that Article 47 has since been given effect by the Fair Administrative Action Act, 2015 under which section 4(3) provides as follows,where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
(a) prior and adequate notice of the nature and reasons for the proposed administrative action;
(b) an opportunity to be heard and to make representations in that regard;
(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;
(d) a statement of reasons pursuant to section 6;
(e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine or where applicable; or
(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.
12.The application of Article 47 was well rendered by Onguto J (as he then was) in the case of Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLRwhere he stated, inter alia,
“I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.
It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”
The Respondent’s case;
13.The application is opposed by the Respondent who argues that the Lang'ata Forest View Estate Association, is a duly registered entity under Registration No.45338,established on 22nd July, 2014.
14.The association comprises residents of Royal Park Estate located within Lang'ata. With a membership count of 450 individuals, the Association serves as a representative body for its constituents.
15.It is the Respondent's case that on 22nd January, 2023, the Association convened its Annual General Meeting in accordance with its constitution.During this meeting, new officials were elected to fulfill the organizational roles as outlined within the said constitution.
16.The Respondent was served with a dated letter on the 30th of January 2023 from Zed Achoki Hussein Advocates LLP, representing the members of the ex parte Applicant.
The letter raised objections concerning the registration of new officials and the regulations governing Lang'ata Forest View Estate.
17.The objection was predicated upon several grounds.Firstly, it was contended that there was a deficiency in providing adequate notice regarding the Annual General Meeting, during which new officials were elected. Secondly, it was asserted that the election of these officials and the formulation of by-laws/rules and regulations of the Association occurred without the participation of the members. Lastly, it was brought to attention that critical issues affecting the members, such as the applicable service charge and construction fees, were not discussed.
18.The correspondence was duly transmitted to Lang'ata Forest View Estate, the party with vested interest, which subsequently provided the Respondent with the minutes of the Annual General Meeting. These minutes encapsulate the concerns that were raised during the meeting, along with the formal notice of the gathering. adhering to the requisite 21-day notice period.
19.Moreover, it is imperative to note that the participation of members during the meeting was facilitated through a transparent show of hands.
20.The ex parte applicant went ahead to lodge the registration of a parallel Association Royal Park Home Owners Association on 29th March 2023 which was then registered on 6th April 2023. The Association has 16 members.
21.Subsequent to the issuance of a Notice to Show Cause on May 18, 2023, to which the ex parte applicant failed to respond, the Respondent proceeded to deregister the Association on June 19, 2023 and it is the Respondent's case that it has the authority to cancel the registration of a society by dint of Section 12 of the Societies Act.
23.The Royal Park Home Owners Estate Association neglected to furnish justifications for the preservation of its societal status, resulting in the revocation of its registration as of June 19, 2023, in alignment with Section 12 of the Societies Act.
The interested party's case:
24.The interested party opposed the application through the Affidavit off Michael Wachira Mutahi the Collections Manager of the Interested Party.
25.It is his case that Royal Park Home Owners Association was
registered as a sham society merely for lending credence to otherwise cause breach of peace leading to its cancellation vide notification of cancellation of registration dated 19th
June 2023 and published in gazette notice dated 3rd August 2023.
26.It is his case that the dispute in question is not a management dispute between the
Exparte Applicant and the Interested Party as alleged and that the Honourable Court lacks jurisdiction to entertain the instant matter.
27.It argues that the Exparte Applicant ought to exhaust the
statutory mechanisms as provided in law. The laid down procedure to be adhered in resolving this impasse would have been as set out in Section 18 of the Societies Act.
28.The Exparte Applicant, herein was registered on 6th April 2023 under the laws of Kenya. Interestingly, the members of the Exparte Applicant are also members of the interested party.
29.On 30th December 2022 the Interested Party issued a 21 days notice notify it's members that elections of its officials would be conducted on 22nd January 2023 when the Interested Party conducted its elections to elect new officials.
30.Isaac Okwara, Yunis Mohammed, Muhammud Abduahi, Robin Okemwa, Ben Mburu Njau, Mohammed Abdi Chuma, Hassan Mohammed, Ali Bile Rafie, Yassir Khalif, Osman Abdi Ali, Ibrahim A. Khalif, Kullow Ibrahim, Noor Maalim Husein and Faysal Abdule being dissatisfied with the elections for reasons best known to them wrote to the Registrar of Societies vide letter dated 30th January 2023 objecting to registration of new officials.
31.The Respondent considered the complaint, found lacking merit and dismissed the same on 5th April 2023.
32.On 6th April 2023 the Complainants went ahead and registered the cancelled Royal Park Home Owners
Estate Association Langata, Exparte Applicant herein which has less than 16 members meant to illegally take over the management of Langata Forest View Park Association (
also of Royal Park Estate).
33.It is its case that the officials of the Exparte Applicant and its agents attempted to illegally and forcefully take over management the Interested Party, Langata Forest View Park
Association ( also of Royal Park Estate) from the Interested Party which resulted in malicious destruction of property, assault and grievous bodily harm of the guards on
duty on the fateful night.
34.The matter was reported to Langata Police Station via OB Nos.21/26/04/2023 and 37/1/5/2023.
In order to stop the officials of the canceled association from causing breach of Peace in the Estate, the Interested Party through its officials filed Nairobi High Court Civil Case
No. E. 102 of 2023; Abdullahi Dahir & 2 Others suing as officials of Langata Forest View Estate Association versus Ibrahim Abdullahi Khalif & 2 Others being sued in their own names and as officials of Royal Park Home Owners Association of Langata.
35.The interested Party believes and argues that the Advocates for the Exparte Applicant tried misleading the Respondent. It further appears that the Respondent discovered the attempt and failed to fall into such traps.
36.There was no order from the Court directing the Respondent to stop the Respondent from exercising its statutory powers. There was no order stopping the Respondent whatsoever from canceling the registration of the Exparte Applicant if it was there then the Exparte Applicant should produce.
37.It argues that The Exparte Applicant is playing lottery and testing waters with the law and the laid down procedures. The Exparte Applicant appears not to known which steps are taken at which point particularly having failed to prefer an appeal to the Cabinet Secretary within 30 days beginning 19th June 2023 and after realizing that they are time barred then the only option is to fake service and play lottery with the Honourable Court in an attempt to hide material facts.
38.The Exparte applicant was accorded an opportunity to heard but failed to utilize. In the notification of intended cancellation of registration dated 18th May 2023 the Respondent gave the Exparte Applicant 21 days to show cause why registration of Royal Park Home Owners Estate Association should not be cancelled for prejudicing the interests of peace and good order.
39.The Exparte Applicant failed to respond and the Respondent, the Registrar of Societies vide notification of cancellation of registration dated 19th June 2023 canceled the association and duly notified its official.Subsequently, the Respondent published cancellation of the Exparte Applicant in the gazette notice dated 3rd August 2023.
40.It is their case that the instant Application is dead, marred with false hood, misrepresentation and
it can suffer only one fate; be dismissed with costs.
ANALYSIS AND DETERMINATION:
41.From the pleadings and the rival submissions,the following issues crystalize for determination;
i. Whether this court has jursidiction.
ii. The second issue is whether the applicant is entitled to the orders sought.
42.Whether this court has jursidiction.
In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989] KLR 1, Nyarangi, Masime and Kwach, JJ.A who had this to say of jurisdiction:-
“… Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downtools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passagewhich will show that what I have already said is consistent with authority:
“… … Where a court takes it upon itself to exercise ajurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.’ See Words and Phrases Legally defined – Volume 3: I– N Page 113.” (Emphasis Ours).
Section 15 (1) (b) of The Societies Act provides that,any society aggrieved by the Registrar's refusal to register it, or by the cancellation or suspension of its registration under section 12 may within thirty days of such refusal, cancellation or suspension and the Cabinet Secretary shall consider, determine and communicate his decision on the appeal within ninety days of the appeal.
Subsection (2) then stipulates that a society aggrieved by the decision of the Cabinet Secretary under subsection (1)(b) may appeal to the High Court within thirty days of the decision.
The doctrine of exhaustion bars the applicant from accessing this court directly.The applicant ought to have but did not make any attempt to seek redress within the statutory of Section 15 (1) (b) of the Act.
43.In the case of Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR elaborately dealt with the doctrine of exhaustion. The Court stated as follows: -
The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume[1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
44.In the case of Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal stated that:
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus: What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)
As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
45.In the case of Peter Muiruri & 2 Other–VS- Paul Wandati Kbue HCCC NO. 319 of 2009.
This brings us to the final and related issue whether Article 21` of the Church’s Constitution ousted the jurisdiction of the courts in disputes involving members of the church. The said provision states;
“1. No dispute concerning the affairs of the Society (the church) shall be referred to or instituted in a court of law by a member or members of the society but shall be dealt with by the following church organs, namely the board of elders, the parish council, the District Executive Committee and the National Committee.”
The article goes on to provide that the disputes are to be originated at the lowest church organ competent to deal with it with a hierarchical appeal system in place. Further at sub-article 4;
“Every church organ to which a dispute is referred shall keep a proper record of the proceedings, and decisions and the person who had made the complaint and any person affected by the reference shall be entitled to a copy of such proceedings and decision.”
It is plain to see then, that the Church did have a place a rather elaborate system for dispute resolution which the plaintiffs in the various suits ought to have had recourse to, and exhausted, before litigating in court. We concur with the learned Judge’s categorical finding at paragraph 75 of his judgment thus;
“That though the court has jurisdiction to deal with the plaintiffs complaints it is premature as they did not strictly follow the Church Constitution, providing for dispute resolution mechanism.”
We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short-circuited the process by filing suits prematurely.
The learned Judge correctly found, as we do, that article 21 of the Church’s Constitution did not oust the jurisdiction of the courts. Indeed it could not. All it did in practical and pragmatic terms is postpone, permissibly in our view, the entry point by the courts and thus allow the Church, a voluntary organization, to have the first expansive go at resolving disputes within its ranks. That did not in any way deny the appellants and the plaintiffs in the various suits the right to a fair trial.
46.In the instant case,the Applicant failed to seek redress through the Cabinet Secretary under Section 15 (1) (b) of The Societies Act who had the power to attend to the issues in dispute before moving this court.This is a fatal omission.
47.This court has considered the suitability of the appeal mechanism available in this case and it is my finding that the applicant did not tender any evidence to show that the dispute redress mechanism under Section 15 (1) (b) of The Societies Act was unsuitable to determine the issues raised in the suit so as to qualify for exemption.
This court lacks the jurisdiction to determine this suit.
The second issue is whether the applicant is entitled to the orders sought.
48.In the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] The Supreme Court made binding finding that Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything.
49.In determining the 2nd issue, it is my finding and I so hold that having found that I have no jurisdiction, a judgment rendered herein under the second issue will not adjudicate the dispute.
The disposition:
50.This court lacks jurisdiction since The applicant fell into an incurable fundamental lapse when it failed to exhaust the available redress mechanisms under Section 15 of the Societies Act.
Order:
The suit is hereby struck out with costs.