RULING
1. The application that comes up for determination is the one dated 19th June 2024 wherein the Applicant seeks the following orders;
1) . …spent
2) That this Honourable Court be pleased to grant an immediate temporary stay against 1st Respondent all persons listed under his letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 addressed to the 1st Applicant, from dealing or executing anything whatsoever and or howsoever insofar as the contents therein and KENASA are concerned pending the hearing and determination of this application.
3) That this Honourable Court be pleased to grant leave to the Applicant to file an application for Judicial Review seeking the following orders:
a. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent addressed to the 1stApplicant.
b. An order of prohibition directed at the 1st Respondent and all persons listed under the said letter dated 6thJune 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent addressed to the 1stApplicant, from dealing or executing anything whatsoever and or howsoever insofar as the furtherance of contents therein and KENASA are concerned.
c. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the Branch Manager, Cooperative Branch, Parliament Road and copied to 6th Interested Party.
d. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 1st Applicant declining to make changes as per the members Resolutions during the Annual General Meeting held on 26th April 2024.
e. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 2nd Applicant.
f. An order of mandamus to compel the 2nd Respondent to admit and give effect to the resolutions made during the KENASA’s Annual General Meeting Held on 26thApril 2024 as well as the Special General Meeting held on 7th June 2024.
g. Such further and other reliefs as this Honourable Court may deem just and expedient to grant.
4) That pending the hearing and determination of these proceedings and the anticipated Judicial Review proceedings, the leave so granted herein does operate as a substantive stay of execution whatsoever and howsoever of the contents of the letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 by any person or the persons named in the said letter, from dealing or executing anything insofar as the furtherance of contents therein and KENASA are concerned.
5) That pending the hearing and determination of these proceedings and the anticipated Judicial Review proceedings, the leave so granted herein does operate as a substantive stay of any execution whatsoever and howsoever of the contents of the letter dated 6th June 2024 under reference no. SOC/53963 as signed by the 2nd Respondent and addressed to the 2nd Applicant by the 2ndApplicant.
6) That this Honourable Court be pleased to grant any other orders that it would deem just.
7) That the costs of and incidental to this application be provided for.
The Applicants Case:
2. The Applicants case is supported by the Verifying Affidavit of MARYLELIA KUCHIO the Chief Executive Officer and Chairperson of the Kenya National Secretaries Association (KENASA) which according to her is an Association that is registered under the Societies Act, Cap 108 Laws of Kenya with members comprising of Professional Secretaries drawn from both the public and Private sectors in Kenya.
3. The Applicants are troubled by a letter dated 6th June 2024 signed by the 1 st Respondent addressed to the 1 st Applicant, the 1 st Respondent disbanded the National executive Council of KENASA and in place thereof, constituted an interim committee.
4. Consequently 1 st interested party who is appointed as the Chairperson of the interim committee issued a notice convening a meeting ion 20th June 2024.
5. The 2nd Respondent wrote to the Branch Manager, Cooperative Branch, Parliament Road directed the bank to immediately freeze the operations of KENASA bank account number 01134008304300 without a court order.
6. By a letter dated 6th June 2024 addressed to the 1 st Applicant, the 2nd Respondent communicated her decision of having declined to make changes to KENASA file being the resolutions made by members during the meeting of 26th April 2024 because of a complaint regarding the conduct of the Annual General Meeting.
7. The said 2nd Respondent wrote another letter dated 06th June 2024 addressed to the 2nd Petitioner where she attached a letter dated 29th April 2024 supposedly being the complaint letter about the conduct of the AGM.
8. Prior to the holding of the KENASA Annual General Meeting of 26th April 2024, there emerged disputes between the National Executive Committee members related to the choice of venue, the choice of the auditor to audit the books of account, the choice of ICT service providers.
9. It is the Applicants case that the Respondents' actions are further meant to settle personal scores and assert the overreaching personalities of the 6th to 10th Interested Parties advance certain parties' vendetta against the Applicants and cause embarrassment and smear campaign to Applicant.
10. During the AGM, the then NEC members being the 6th to 10th interested parties herein were voted out. In the same breath during the same meeting, the KENASA members appointed the 11 th to 13th Interested parties to take up specified positions left by the ones who were voted out.
11. Ms. Abigael Asidaga and Ms. Mathilda Anyango served KENASA between 2014-2017 and thereafter, ceased to be members. It is thus unreasonable for them to be appointed under the Interim committee after they disengaged their membership by not paying subscriptions but now want to prey on subscriptions paid by active members.
12. It is their case that Article 36 of the Constitution of Kenya 2010 provides for Freedom of association upon which the KENASA as a registered association of professional Secretaries vested with the mandate of promoting and facilitating the welfare and fostering professionalism within the Secretaries of Kenya dearly need the protection of their freedom of Association to facilitate their objectives.
13. The Registrar being the 2nd Respondent herein, having served before as a member of the then 'interim committee' that was appointed on 26th July 2022 is undoubtedly biased and conflicted in equal measure as not to see the flaws brought about by the 1 st Respondent's letter dated 6th June 2024. The very least, she is conflicted and handcuffed that she cannot point out to the 1 st Respondent that there is no legal basis for disbanding the NEC or intermeddling.
14. It is their case that the Respondent's action of appointing non-members in the interim committee while freezing bank accounts the name of overseeing the affairs of KENASA for an unspecified period is all robbery consecrated by the Respondents who are custodian offices created under the law.
15. One of the complaint raised by the 6th Interested Party to the Respondents is the failure to attach a statement of accounts as required under Clause 8(a)(i) read together with Clause 11(b) of the KENASA constitution which cannot invalidate the Annual General Meeting of 26th April 2024 and its resolutions given that Clause 8(i) provides for other agenda items to be deliberated on in an AGM besides the Treasurer's report.
16. The 1 st Applicant has offered explanations in writing to the Respondents in answer to all the issues that were raised but which the biased Respondents ignored and proceeded to decide irrationally, unreasonably and illegally as they did.
17. It is their case that despite the 1 st Applicant's numerous explanations on what transpired, the Respondents ignored them and chose to violate the KENASA constitution thus contravening the Applicants' right to administrative action that is reasonable, expeditious and procedurally fair under Article 47 of the Constitution as read together with the Societies Act.
18. The decision to disband the NEC and replace NEC with the persons of inter alia, Ms. Mathilda Anyango as the chairperson and her accomplice Ms. Abigael Asidaga and freeze KENASA bank accounts is doublespeak, unreasonable, irrational and calculated to siphon funds out of KENASA owing to the adverse disclosures that were made by Mr. John Ogwel, the Internal Auditor in a letter dated 13th June 2017 addressed to the Principal Secretary, State Department of Public Service against Ms. Matilda Anyango, Ms. Abigael Asidaga, Ms. Jane Maina and Ms. Salome Njuguna who spend a night at Shieywe Guest house in Kakamega whereafter a quotation from ws Wanalo Shoni Enterprises, an affiliate of Shieywe Guest house, surfaced to claim money from KENASA. Roguishly,it did not result into them being disbanded but now purportedly rewarded by a further appointment.
19. It is their case that the aforesaid action has been undertaken with the ulterior motives and or purposes of prejudicing the Applicants' legal rights alongside other KENASA members rights to human dignity and freedom of association, property and protection of the Law secured under Articles 27, 28 and 29 of the Constitution.
20. They believe that the Respondents' decisions through their various letters all dated 6th June 2024 are unreasonable within the Wednesbury's principle of unreasonableness and all amounts to a breach of the Applicant's legitimate expectation and the due process of the law and the same takes away the Applicant’s rights to a fair hearing hence the only recourse open to the Applicants is to invoke the jurisdiction of this Honourable Court as conferred by Articles 23 and 165 of the Constitution of Kenya.
21. They believe that no prejudice will be suffered by the Respondents if the orders sought herein are granted given that he balance of convenience therefore tilts in granting the orders sought.
22. They argue that the 1 st and 2nd Respondents' decisions amount to a breach of the Applicant's legitimate expectations, the right to a fair administrative action and amounts to abuse of power and authority.
23. The Supplementary Affidavit of Marylelia Kuchio,further supports the application.
24. She argues that the Respondents have do not have the legal basis powers to disband KENASA National Executive Committee (NEC) and constitute Interim Committee to freeze KENASA's Bank accounts and to decline to admit and make changes pursuant to the Resolutions of the KENASA AGM held on 26' April 2024.
25. It is the applicants case that the Respondents have not demonstrated that they observed due procedure in arriving at their impugned decisions herein.
26. It is their case that the 2nd Respondent was openly insincere when, on one hand, she advised the 1st Respondent "to constitute an interim committee with immediate effect." whilst on the other hand, on the same date, she asked the 2nd Applicant herein, to respond to an attached complaint "within 21 days".The 2nd Respondent knew that The 2nd Applicant will no longer be in office within 21 days.
27. It is the Applicants case that the 2nd Respondent's already had a predetermined decision on the case, having already "approved" the disbandment of KENASA NEC and constitution of Interim Committee and clearly therefore, she had no any worthwhile and lawful intention in her said letter to the 2nd Applicant.
28. It is their case that the 6th-10th Interested Parties contended that the "the Applicants' violated directives of the Patron" as per the meeting of 19th April 2024 but all the 1St Respondent is defending himself with, as a legal basis for their impugned decisions, is the 'good faith' which is a no basis of the law under the Judicial Review jurisdiction.
29. The 1st Respondent is estopped from approbating and reprobating at the same time. In the meeting with Head of Administrative Services (HOAS) Mrs. Gorreti Gicheha held on 27th March 2024, it was reported that the 1St Respondent had approved Ms. Maungu to represent the 1" Respondent in the AGM. It is not clear why the 1" Respondent changed his mind about attending the AGM.
30. According to the Applicants,there is clear bias on their part and all guilty of consideration of irrelevant factors to the exclusion of the Applicants with absolutely no mention or demonstration of due compliance with due procedure based on the Article 47 of the Constitution, 2010.
The Respondents Case;
31. The respondents oppose the application through the replying affidavit of AMOS NJOROGE GATHECHA a the Principal Secretary, in the State Department for Public Service who argues that it is true that through letter referenced MPS&DM/SEC/3/4/l signed by the Principal Secretary addressed the 1st Applicant, disbanded the National Executive Council of KENASA and in place a caretaker Committee was appointed on Terms of references
32. Upon receiving communication from outgoing KENASA Vice National Chairperson Mrs. Lucy K. Gitonga and Vice National Secretary Ms. Margaret Oruko alleging that the outgoing National Secretary (Mr. Ignatius Namuju) organized a training workshop for Office Administrators deployed at the Kenya Pipeline company on behalf of the Association without the knowledge of other NEC members.
33. Further the letter alleges that the National Chairperson (Mr. Andrew Osundwa) is also noncommittal in taking action in relation to the training which was conducted between 15th to 17th June, 2022 and 22nd to 24th June, 2022 in Naivasha. Further it was not clear which Bank Account the funds accrued from the training workshop were remitted to and how the said funds were utilized.
34. Considering the above events, the Registrar of the Committee advised that it is in the interest of the Association that a caretaker Committee be constituted to oversee the affairs of the Association and prepare for the Annual General Meeting to oversee the KENASA Affairs pending the Annual National Election.
35. The Chair lady had rejected the Auditor/Accountant (Mr. Ondako Maina and Associates) as the requirements of the Registrar of the societies procedures and Regulations and section of KENASA constitution that Auditors /Accounts can only be changed in an AGM:
36. The issue of the venue for the training and workshop was not agreed upon by NEC members.
37. The system for the purpose of accountability and efficiency such as the 2/3 requirements threshold of the members population during the Annual General Meeting.
38. The Notice of the Annual General Meeting was sent without the statement of accounts.
39. That a check list was drawn to gauge the preparations of the National Executive Committee, (NEC) as per Section 8 and I I on general meetings and appointment of Auditors respectively and in accordance with KENASA Constitution of 2021.
40. It is his case that the Section on General Meetings provides as follows:-
a. There shall be two classes of General Meetings, the Association shall hold, physical, virtual and hybrid meetings,
i. Annual General Meetings shall be held not later than October in each year. Notice in writing of such Annual meeting accompanied by the Annual Statement of accounts (section I I (b) and to agenda for the meeting shall be sent to the members not less than 21 days before the date of the meeting.
ii. Special General Meeting shall be held when there is an emergency or crucial matter that cannot wait for the usual General Meeting.
b. The Annual General Meeting shall carry out elections of the Office bearers and appointment of trustees where necessary in accordance with section 10(a).
c. The annual General Meeting shall carry out appointment of auditors in accordance with Section 716).
d. The Annual General Meeting shall discuss other matters as the National Executive Committee may record or as to which notice shall have been given in writing by member or members to the Secretary at least (4) weeks before the (late of the meeting.
e. The Annual General Meeting shall discuss such other business with the approval of the chairperson.
f. The Notice of the meeting will include the agenda setting of the matters which shall be discussed at the meeting.
g. A special General meeting may be requested for the specific purpose as provided under section 8 (a) (ii). Notice in writing of such meeting shall be sent to all members not less than seven (7) days before the date thereof.
h. Quorum for General meeting shall he not less than 2/3 or the total number of members of the Association.
i. The Agenda for the Annual General Meeting shall include the following items.
41. The 2nd Respondent wrote a letter dated 6th June, 2024 concerning the conduct of the AGM because it offended Section 8 (a) (I) which requires that the Notice shall be accompanied by the statement of accounts.
42. It is his case that the Registrar is by Law empowered to inquire about the conduct of the Association in accordance with section 18 of the societies Act.
43. There are disputes between National Executive Committee members which is unhealthy for the association and therefore it is that reason that the patron deemed fit to appoint a caretaker committee to safeguard the funds of the association.
44. The members appointed to the caretaker Committee, are people of integrity and -the Association members shall be invited in the AGM to appoint the fresh leadership and the accounts shall be subjected to a credible auditor who shall audit the accounts.
45. It is their case that The membership stands at 41,632 among these members, the chairperson KENASA attested that it included those we have exited through natural attrition, attained retirement age and voluntary' retirement.
46. It is their case that the office had not cleaned the current register to determine the actual membership of KENASA, this means that the figures as provided are not a true reflection of the population of the Association and hence the requirement of 2/3 majority may have not been met.
47. On 10th March, 2023, resolutions were passed to harmonize the members register to include all members who are contributing to the Association, which resolution had not been done as at the date of the meeting.
48. It is their case that this created room for the current office holders to misuse the funds of the Association and which the Patron is asking the caretaker committee to fasttrack and put it in place before new leadership takes over from the committee.
49. The caretaker committee is meant to oversee the peaceful transition from the current leadership to the new leadership.
50. It is their case that the intervention of the Registrar of Societies was meant well for the Association, neither does the registrar have any interest in the affairs of the association and as already submitted, the Registrar can invoke Section 18 of the Societies Act.
51. The Respondent argues that all assets of KENASA including its Bank Accounts shall be audited by a credible auditor before handing over to the new officials who shall be appointed at the Annual General meeting.
52. The AGM for 26th April 2024 was not held in accordance with the law, due to the fact that the register has not been cleaned, there is no harmonization and therefore null and void ab initio.
53. According to the Respondents,the patron will obey any directions by the Court and therefore not entitled to give explanations to the applicant.
54. That KENASA is a registered Association with known membership, and as already submitted, the work of the caretaker committee is to safeguard the interest of the members. The Committee members are not busy bodies and at the time of the hearing the Respondent shall seek for this uncouth statement to be expunged from the record.
55. They argue that the decision made by the first and second Respondent is without malice and for the best interest 0f KENASA members.
The 6th to 10th Interested Interested Parties case:
56. Through the replying Affidavit of Hellen Mukasa, the National Vice Chairperson of KENASA it is the case that the 6th to 10th Interested Parties that they are currently serving as officials of the KENASA alongside the 1st and 2ndApplicants in the following capacities.
57. The duly elected KENASA National Executive Committee consists of seven (7) members who are the 1st and 2nd Applicants and the 6th to 10th Interested Parties.
58. She confirms that the 1st Respondent vide a letter dated 6th June 2024 purported to disband the current KENASA National Executive Committee for the reason that the National Executive Committee did not adhere to the resolutions of the meeting held on the 19th April 2024 and a subsequent directive that had been issued on the said meeting.
59. In the said letter, the 1st Respondent further requested that the National Executive Committee hand over all assets including cheque books and pay bills within their custody to the interim committee on or before 11th June 2024 and further prepare a handing over to the chairperson of the Interim Committee.
60. A meeting was held between a representative from the office of the 1st Respondent and KENASA’s National Executive Committee on 19th April 2024 with the same coming about as a result of a call for intervention that was made by the National Treasurer of KENASA to the 1st Respondent on what she termed as “abuse of chair’s presiding role.”
61. That the intervention was necessary on grounds that majority of the Committees’ members were against the Chairperson’s continuous habit of abusing her position through acts such as dictating the motions of discussions and their outcomes, undermining the decision-making capacity of other members of NEC provided for in section 7(d) of the Association’s Constitution.”
62. That, the said call for intervention by the 8th Interested Party came about following previous meetings held by the National Officials in preparation of the AGM event that was scheduled to take place in Mombasa from 22nd to 26thapril 2024.
63. The 1st Respondent being KENASA’s Patron convened a meeting with the National Executive Committee (NEC) officials on the said 19th of April, 2024 to gauge their preparedness for the annual General Meeting From where it came out clearly that the NEC members were not adequately prepared for the annual general meeting.
64. As required from the previous AGM resolutions and Section 8 of KENASA Constitution the three pillars and important components of the AGM had not been met. The same are as follows:
Harmonizing members’ subscription,there was no Auditor’s report and Annual statement of Accounts,a delegate system had not been developed to reach the two-third threshold of the registered members.
65. The meeting directed that the Training and Annual General Meeting be postponed to enable NEC to meet the requirements. It was also noted, and confirmed by the 1stApplicant during the meeting, that no contracts had been signed between the NEC and service providers including that for the venue of the meeting.
66. That, as a result of the aforementioned findings, the National Secretary, the 2nd Applicant herein, was tasked with the duty to officially issue an urgent notice of postponement to all members in order to prevent them from proceeding with their travel arrangements to Mombasa.
67. The postponement of the Annual General Meeting was never communicated to members by the 2nd Applicant who is the Associations duly elected secretary.
68. The 1st and 2nd Applicants herein however blatantly failed to follow the resolution to postpone as advised during the meeting and encouraged members to attend the said meeting in Mombasa thereby proceeding with the event as had initially been scheduled.
69. Non-attendance of the AGM by the 6th to 10th interested parties resulted in them receiving extreme backlash from KENASA members being that the 1st and 2nd Applicants misinformed members that the five blatantly disregarded the said AGM.
70. The said backlash resulted in the 1st and 2ndapplicant’s inciting members into forming an Ad Hoc Committee to oust and replace the 6th, 7th and 8th Interested Parties with members of the said Ad Hoc committee being the 11th, 12th and 13th Interested Parties.
71. This offended and went contra the provisions of the KENASA Constitution which provides the due procedure for withdrawal of membership of any member of the National Executive Committee.
72. On 30th April, 2024 the 1st Respondent wrote to the 1stapplicant informing her that the purported AGM together with the resolutions were null and void, a fact that the 1stapplicant is attempting to “throw under the carpet”.
73. That upon receipt of letter referenced MPSP&DM/SEC/3/4/1 dated 6th June, 2024 addressed to the 1st Applicant by the 1st Respondent, the Vice National Chairperson, who is the 6th interested party herein, wrote back to the 1st and 2nd Respondents vide a letter referenced KENASA NEC/14/06/2024 dated 14th June, 2024 requesting for a fair hearing as well as arbitration, terming the 1st Respondent’s decision as unfair punishment, considering that 6th to 10th interested parties adhered to the earlier given directive.
74. Punitive measures ought to be taken, against the 1st and 2nd Applicant and not the entire National Executive Committee being that it is only the 1st and 2ndapplicants who acted contrary to the directives of the 1strespondent who is the Patron of the Association.
75. The 6th to 10th Interested Parties have always been deeply invested in realizing the goals of the Association through serving members in the most diligent, transparent and reliable manner possible and as such it would be unfair and unjust to punish them for the blatant disobedience and acts of abuse of office by the 1st and 2nd Applicants.
76. The applicants’ purported argument that the 6th to 10th interested parties deliberately failed to attend the AGM, the same is completely false and misinforming.
Analysis and determination;
77. In the case of Republic v Chief Magistrate Milimani Commercial Courts & 2 others Ex Parte Fredrick Bett [2022] eKLR; The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The reason for the leave was explained by Waki J. (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
i. “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
78. In the instant suit this court is satisfied that the Applicant has made out a case for the grant of leave as sought in prayers.
79. The applicant also seeks an order for the leave so granted herein to operate as an interim and a substantive stay of any execution whatsoever and howsoever of the contents of the letter dated 6th June 2024 under reference no. SOC/53963 as signed by the 2nd Respondent and addressed to the 2nd Applicant by the 2ndApplicant.
80. In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR
ii. Should Orders of Stay of Execution be granted?
The question as to whether this Court has jurisdiction to grant inter-locutory orders in the nature of a stay of execution was long settled in Board of Governors, Moi High School, Kabarak& Another v. Malcolm Bell, SC Applications Nos. 12 and 13 of 2012, wherein the Court stated as follows (paragraph 33):
i. “It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of an appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”
That leaves pending the main interlocutory matters: whether we should stay the hand of the Independent Electoral and Boundaries Commission, and the Speaker of Meru County Assembly, so they do not move to alter the state of affairs at the Meru County gubernatorial office, pending the hearing and determination of the applicant’s appeal.
These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterize
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1. The application that comes up for determination is the one dated 19th June 2024 wherein the Applicant seeks the following orders;
1) . …spent
2) That this Honourable Court be pleased to grant an immediate temporary stay against 1st Respondent all persons listed under his letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 addressed to the 1st Applicant, from dealing or executing anything whatsoever and or howsoever insofar as the contents therein and KENASA are concerned pending the hearing and determination of this application.
3) That this Honourable Court be pleased to grant leave to the Applicant to file an application for Judicial Review seeking the following orders:
a. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent addressed to the 1stApplicant.
b. An order of prohibition directed at the 1st Respondent and all persons listed under the said letter dated 6thJune 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent addressed to the 1stApplicant, from dealing or executing anything whatsoever and or howsoever insofar as the furtherance of contents therein and KENASA are concerned.
c. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the Branch Manager, Cooperative Branch, Parliament Road and copied to 6th Interested Party.
d. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 1st Applicant declining to make changes as per the members Resolutions during the Annual General Meeting held on 26th April 2024.
e. An order of certiorari to bring into the High Court for purposes of being quashed the letter dated 6th June 2024 under reference no. SOC/53963 signed by the 2nd Respondent addressed to the 2nd Applicant.
f. An order of mandamus to compel the 2nd Respondent to admit and give effect to the resolutions made during the KENASA’s Annual General Meeting Held on 26thApril 2024 as well as the Special General Meeting held on 7th June 2024.
g. Such further and other reliefs as this Honourable Court may deem just and expedient to grant.
4) That pending the hearing and determination of these proceedings and the anticipated Judicial Review proceedings, the leave so granted herein does operate as a substantive stay of execution whatsoever and howsoever of the contents of the letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 by any person or the persons named in the said letter, from dealing or executing anything insofar as the furtherance of contents therein and KENASA are concerned.
5) That pending the hearing and determination of these proceedings and the anticipated Judicial Review proceedings, the leave so granted herein does operate as a substantive stay of any execution whatsoever and howsoever of the contents of the letter dated 6th June 2024 under reference no. SOC/53963 as signed by the 2nd Respondent and addressed to the 2nd Applicant by the 2ndApplicant.
6) That this Honourable Court be pleased to grant any other orders that it would deem just.
7) That the costs of and incidental to this application be provided for.
The Applicants Case:
2. The Applicants case is supported by the Verifying Affidavit of MARYLELIA KUCHIO the Chief Executive Officer and Chairperson of the Kenya National Secretaries Association (KENASA) which according to her is an Association that is registered under the Societies Act, Cap 108 Laws of Kenya with members comprising of Professional Secretaries drawn from both the public and Private sectors in Kenya.
3. The Applicants are troubled by a letter dated 6th June 2024 signed by the 1 st Respondent addressed to the 1 st Applicant, the 1 st Respondent disbanded the National executive Council of KENASA and in place thereof, constituted an interim committee.
4. Consequently 1 st interested party who is appointed as the Chairperson of the interim committee issued a notice convening a meeting ion 20th June 2024.
5. The 2nd Respondent wrote to the Branch Manager, Cooperative Branch, Parliament Road directed the bank to immediately freeze the operations of KENASA bank account number 01134008304300 without a court order.
6. By a letter dated 6th June 2024 addressed to the 1 st Applicant, the 2nd Respondent communicated her decision of having declined to make changes to KENASA file being the resolutions made by members during the meeting of 26th April 2024 because of a complaint regarding the conduct of the Annual General Meeting.
7. The said 2nd Respondent wrote another letter dated 06th June 2024 addressed to the 2nd Petitioner where she attached a letter dated 29th April 2024 supposedly being the complaint letter about the conduct of the AGM.
8. Prior to the holding of the KENASA Annual General Meeting of 26th April 2024, there emerged disputes between the National Executive Committee members related to the choice of venue, the choice of the auditor to audit the books of account, the choice of ICT service providers.
9. It is the Applicants case that the Respondents' actions are further meant to settle personal scores and assert the overreaching personalities of the 6th to 10th Interested Parties advance certain parties' vendetta against the Applicants and cause embarrassment and smear campaign to Applicant.
10. During the AGM, the then NEC members being the 6th to 10th interested parties herein were voted out. In the same breath during the same meeting, the KENASA members appointed the 11 th to 13th Interested parties to take up specified positions left by the ones who were voted out.
11. Ms. Abigael Asidaga and Ms. Mathilda Anyango served KENASA between 2014-2017 and thereafter, ceased to be members. It is thus unreasonable for them to be appointed under the Interim committee after they disengaged their membership by not paying subscriptions but now want to prey on subscriptions paid by active members.
12. It is their case that Article 36 of the Constitution of Kenya 2010 provides for Freedom of association upon which the KENASA as a registered association of professional Secretaries vested with the mandate of promoting and facilitating the welfare and fostering professionalism within the Secretaries of Kenya dearly need the protection of their freedom of Association to facilitate their objectives.
13. The Registrar being the 2nd Respondent herein, having served before as a member of the then 'interim committee' that was appointed on 26th July 2022 is undoubtedly biased and conflicted in equal measure as not to see the flaws brought about by the 1 st Respondent's letter dated 6th June 2024. The very least, she is conflicted and handcuffed that she cannot point out to the 1 st Respondent that there is no legal basis for disbanding the NEC or intermeddling.
14. It is their case that the Respondent's action of appointing non-members in the interim committee while freezing bank accounts the name of overseeing the affairs of KENASA for an unspecified period is all robbery consecrated by the Respondents who are custodian offices created under the law.
15. One of the complaint raised by the 6th Interested Party to the Respondents is the failure to attach a statement of accounts as required under Clause 8(a)(i) read together with Clause 11(b) of the KENASA constitution which cannot invalidate the Annual General Meeting of 26th April 2024 and its resolutions given that Clause 8(i) provides for other agenda items to be deliberated on in an AGM besides the Treasurer's report.
16. The 1 st Applicant has offered explanations in writing to the Respondents in answer to all the issues that were raised but which the biased Respondents ignored and proceeded to decide irrationally, unreasonably and illegally as they did.
17. It is their case that despite the 1 st Applicant's numerous explanations on what transpired, the Respondents ignored them and chose to violate the KENASA constitution thus contravening the Applicants' right to administrative action that is reasonable, expeditious and procedurally fair under Article 47 of the Constitution as read together with the Societies Act.
18. The decision to disband the NEC and replace NEC with the persons of inter alia, Ms. Mathilda Anyango as the chairperson and her accomplice Ms. Abigael Asidaga and freeze KENASA bank accounts is doublespeak, unreasonable, irrational and calculated to siphon funds out of KENASA owing to the adverse disclosures that were made by Mr. John Ogwel, the Internal Auditor in a letter dated 13th June 2017 addressed to the Principal Secretary, State Department of Public Service against Ms. Matilda Anyango, Ms. Abigael Asidaga, Ms. Jane Maina and Ms. Salome Njuguna who spend a night at Shieywe Guest house in Kakamega whereafter a quotation from ws Wanalo Shoni Enterprises, an affiliate of Shieywe Guest house, surfaced to claim money from KENASA. Roguishly,it did not result into them being disbanded but now purportedly rewarded by a further appointment.
19. It is their case that the aforesaid action has been undertaken with the ulterior motives and or purposes of prejudicing the Applicants' legal rights alongside other KENASA members rights to human dignity and freedom of association, property and protection of the Law secured under Articles 27, 28 and 29 of the Constitution.
20. They believe that the Respondents' decisions through their various letters all dated 6th June 2024 are unreasonable within the Wednesbury's principle of unreasonableness and all amounts to a breach of the Applicant's legitimate expectation and the due process of the law and the same takes away the Applicant’s rights to a fair hearing hence the only recourse open to the Applicants is to invoke the jurisdiction of this Honourable Court as conferred by Articles 23 and 165 of the Constitution of Kenya.
21. They believe that no prejudice will be suffered by the Respondents if the orders sought herein are granted given that he balance of convenience therefore tilts in granting the orders sought.
22. They argue that the 1 st and 2nd Respondents' decisions amount to a breach of the Applicant's legitimate expectations, the right to a fair administrative action and amounts to abuse of power and authority.
23. The Supplementary Affidavit of Marylelia Kuchio,further supports the application.
24. She argues that the Respondents have do not have the legal basis powers to disband KENASA National Executive Committee (NEC) and constitute Interim Committee to freeze KENASA's Bank accounts and to decline to admit and make changes pursuant to the Resolutions of the KENASA AGM held on 26' April 2024.
25. It is the applicants case that the Respondents have not demonstrated that they observed due procedure in arriving at their impugned decisions herein.
26. It is their case that the 2nd Respondent was openly insincere when, on one hand, she advised the 1st Respondent "to constitute an interim committee with immediate effect." whilst on the other hand, on the same date, she asked the 2nd Applicant herein, to respond to an attached complaint "within 21 days".The 2nd Respondent knew that The 2nd Applicant will no longer be in office within 21 days.
27. It is the Applicants case that the 2nd Respondent's already had a predetermined decision on the case, having already "approved" the disbandment of KENASA NEC and constitution of Interim Committee and clearly therefore, she had no any worthwhile and lawful intention in her said letter to the 2nd Applicant.
28. It is their case that the 6th-10th Interested Parties contended that the "the Applicants' violated directives of the Patron" as per the meeting of 19th April 2024 but all the 1St Respondent is defending himself with, as a legal basis for their impugned decisions, is the 'good faith' which is a no basis of the law under the Judicial Review jurisdiction.
29. The 1st Respondent is estopped from approbating and reprobating at the same time. In the meeting with Head of Administrative Services (HOAS) Mrs. Gorreti Gicheha held on 27th March 2024, it was reported that the 1St Respondent had approved Ms. Maungu to represent the 1" Respondent in the AGM. It is not clear why the 1" Respondent changed his mind about attending the AGM.
30. According to the Applicants,there is clear bias on their part and all guilty of consideration of irrelevant factors to the exclusion of the Applicants with absolutely no mention or demonstration of due compliance with due procedure based on the Article 47 of the Constitution, 2010.
The Respondents Case;
31. The respondents oppose the application through the replying affidavit of AMOS NJOROGE GATHECHA a the Principal Secretary, in the State Department for Public Service who argues that it is true that through letter referenced MPS&DM/SEC/3/4/l signed by the Principal Secretary addressed the 1st Applicant, disbanded the National Executive Council of KENASA and in place a caretaker Committee was appointed on Terms of references
32. Upon receiving communication from outgoing KENASA Vice National Chairperson Mrs. Lucy K. Gitonga and Vice National Secretary Ms. Margaret Oruko alleging that the outgoing National Secretary (Mr. Ignatius Namuju) organized a training workshop for Office Administrators deployed at the Kenya Pipeline company on behalf of the Association without the knowledge of other NEC members.
33. Further the letter alleges that the National Chairperson (Mr. Andrew Osundwa) is also noncommittal in taking action in relation to the training which was conducted between 15th to 17th June, 2022 and 22nd to 24th June, 2022 in Naivasha. Further it was not clear which Bank Account the funds accrued from the training workshop were remitted to and how the said funds were utilized.
34. Considering the above events, the Registrar of the Committee advised that it is in the interest of the Association that a caretaker Committee be constituted to oversee the affairs of the Association and prepare for the Annual General Meeting to oversee the KENASA Affairs pending the Annual National Election.
35. The Chair lady had rejected the Auditor/Accountant (Mr. Ondako Maina and Associates) as the requirements of the Registrar of the societies procedures and Regulations and section of KENASA constitution that Auditors /Accounts can only be changed in an AGM:
36. The issue of the venue for the training and workshop was not agreed upon by NEC members.
37. The system for the purpose of accountability and efficiency such as the 2/3 requirements threshold of the members population during the Annual General Meeting.
38. The Notice of the Annual General Meeting was sent without the statement of accounts.
39. That a check list was drawn to gauge the preparations of the National Executive Committee, (NEC) as per Section 8 and I I on general meetings and appointment of Auditors respectively and in accordance with KENASA Constitution of 2021.
40. It is his case that the Section on General Meetings provides as follows:-
a. There shall be two classes of General Meetings, the Association shall hold, physical, virtual and hybrid meetings,
i. Annual General Meetings shall be held not later than October in each year. Notice in writing of such Annual meeting accompanied by the Annual Statement of accounts (section I I (b) and to agenda for the meeting shall be sent to the members not less than 21 days before the date of the meeting.
ii. Special General Meeting shall be held when there is an emergency or crucial matter that cannot wait for the usual General Meeting.
b. The Annual General Meeting shall carry out elections of the Office bearers and appointment of trustees where necessary in accordance with section 10(a).
c. The annual General Meeting shall carry out appointment of auditors in accordance with Section 716).
d. The Annual General Meeting shall discuss other matters as the National Executive Committee may record or as to which notice shall have been given in writing by member or members to the Secretary at least (4) weeks before the (late of the meeting.
e. The Annual General Meeting shall discuss such other business with the approval of the chairperson.
f. The Notice of the meeting will include the agenda setting of the matters which shall be discussed at the meeting.
g. A special General meeting may be requested for the specific purpose as provided under section 8 (a) (ii). Notice in writing of such meeting shall be sent to all members not less than seven (7) days before the date thereof.
h. Quorum for General meeting shall he not less than 2/3 or the total number of members of the Association.
i. The Agenda for the Annual General Meeting shall include the following items.
41. The 2nd Respondent wrote a letter dated 6th June, 2024 concerning the conduct of the AGM because it offended Section 8 (a) (I) which requires that the Notice shall be accompanied by the statement of accounts.
42. It is his case that the Registrar is by Law empowered to inquire about the conduct of the Association in accordance with section 18 of the societies Act.
43. There are disputes between National Executive Committee members which is unhealthy for the association and therefore it is that reason that the patron deemed fit to appoint a caretaker committee to safeguard the funds of the association.
44. The members appointed to the caretaker Committee, are people of integrity and -the Association members shall be invited in the AGM to appoint the fresh leadership and the accounts shall be subjected to a credible auditor who shall audit the accounts.
45. It is their case that The membership stands at 41,632 among these members, the chairperson KENASA attested that it included those we have exited through natural attrition, attained retirement age and voluntary' retirement.
46. It is their case that the office had not cleaned the current register to determine the actual membership of KENASA, this means that the figures as provided are not a true reflection of the population of the Association and hence the requirement of 2/3 majority may have not been met.
47. On 10th March, 2023, resolutions were passed to harmonize the members register to include all members who are contributing to the Association, which resolution had not been done as at the date of the meeting.
48. It is their case that this created room for the current office holders to misuse the funds of the Association and which the Patron is asking the caretaker committee to fasttrack and put it in place before new leadership takes over from the committee.
49. The caretaker committee is meant to oversee the peaceful transition from the current leadership to the new leadership.
50. It is their case that the intervention of the Registrar of Societies was meant well for the Association, neither does the registrar have any interest in the affairs of the association and as already submitted, the Registrar can invoke Section 18 of the Societies Act.
51. The Respondent argues that all assets of KENASA including its Bank Accounts shall be audited by a credible auditor before handing over to the new officials who shall be appointed at the Annual General meeting.
52. The AGM for 26th April 2024 was not held in accordance with the law, due to the fact that the register has not been cleaned, there is no harmonization and therefore null and void ab initio.
53. According to the Respondents,the patron will obey any directions by the Court and therefore not entitled to give explanations to the applicant.
54. That KENASA is a registered Association with known membership, and as already submitted, the work of the caretaker committee is to safeguard the interest of the members. The Committee members are not busy bodies and at the time of the hearing the Respondent shall seek for this uncouth statement to be expunged from the record.
55. They argue that the decision made by the first and second Respondent is without malice and for the best interest 0f KENASA members.
The 6th to 10th Interested Interested Parties case:
56. Through the replying Affidavit of Hellen Mukasa, the National Vice Chairperson of KENASA it is the case that the 6th to 10th Interested Parties that they are currently serving as officials of the KENASA alongside the 1st and 2ndApplicants in the following capacities.
57. The duly elected KENASA National Executive Committee consists of seven (7) members who are the 1st and 2nd Applicants and the 6th to 10th Interested Parties.
58. She confirms that the 1st Respondent vide a letter dated 6th June 2024 purported to disband the current KENASA National Executive Committee for the reason that the National Executive Committee did not adhere to the resolutions of the meeting held on the 19th April 2024 and a subsequent directive that had been issued on the said meeting.
59. In the said letter, the 1st Respondent further requested that the National Executive Committee hand over all assets including cheque books and pay bills within their custody to the interim committee on or before 11th June 2024 and further prepare a handing over to the chairperson of the Interim Committee.
60. A meeting was held between a representative from the office of the 1st Respondent and KENASA’s National Executive Committee on 19th April 2024 with the same coming about as a result of a call for intervention that was made by the National Treasurer of KENASA to the 1st Respondent on what she termed as “abuse of chair’s presiding role.”
61. That the intervention was necessary on grounds that majority of the Committees’ members were against the Chairperson’s continuous habit of abusing her position through acts such as dictating the motions of discussions and their outcomes, undermining the decision-making capacity of other members of NEC provided for in section 7(d) of the Association’s Constitution.”
62. That, the said call for intervention by the 8th Interested Party came about following previous meetings held by the National Officials in preparation of the AGM event that was scheduled to take place in Mombasa from 22nd to 26thapril 2024.
63. The 1st Respondent being KENASA’s Patron convened a meeting with the National Executive Committee (NEC) officials on the said 19th of April, 2024 to gauge their preparedness for the annual General Meeting From where it came out clearly that the NEC members were not adequately prepared for the annual general meeting.
64. As required from the previous AGM resolutions and Section 8 of KENASA Constitution the three pillars and important components of the AGM had not been met. The same are as follows:
Harmonizing members’ subscription,there was no Auditor’s report and Annual statement of Accounts,a delegate system had not been developed to reach the two-third threshold of the registered members.
65. The meeting directed that the Training and Annual General Meeting be postponed to enable NEC to meet the requirements. It was also noted, and confirmed by the 1stApplicant during the meeting, that no contracts had been signed between the NEC and service providers including that for the venue of the meeting.
66. That, as a result of the aforementioned findings, the National Secretary, the 2nd Applicant herein, was tasked with the duty to officially issue an urgent notice of postponement to all members in order to prevent them from proceeding with their travel arrangements to Mombasa.
67. The postponement of the Annual General Meeting was never communicated to members by the 2nd Applicant who is the Associations duly elected secretary.
68. The 1st and 2nd Applicants herein however blatantly failed to follow the resolution to postpone as advised during the meeting and encouraged members to attend the said meeting in Mombasa thereby proceeding with the event as had initially been scheduled.
69. Non-attendance of the AGM by the 6th to 10th interested parties resulted in them receiving extreme backlash from KENASA members being that the 1st and 2nd Applicants misinformed members that the five blatantly disregarded the said AGM.
70. The said backlash resulted in the 1st and 2ndapplicant’s inciting members into forming an Ad Hoc Committee to oust and replace the 6th, 7th and 8th Interested Parties with members of the said Ad Hoc committee being the 11th, 12th and 13th Interested Parties.
71. This offended and went contra the provisions of the KENASA Constitution which provides the due procedure for withdrawal of membership of any member of the National Executive Committee.
72. On 30th April, 2024 the 1st Respondent wrote to the 1stapplicant informing her that the purported AGM together with the resolutions were null and void, a fact that the 1stapplicant is attempting to “throw under the carpet”.
73. That upon receipt of letter referenced MPSP&DM/SEC/3/4/1 dated 6th June, 2024 addressed to the 1st Applicant by the 1st Respondent, the Vice National Chairperson, who is the 6th interested party herein, wrote back to the 1st and 2nd Respondents vide a letter referenced KENASA NEC/14/06/2024 dated 14th June, 2024 requesting for a fair hearing as well as arbitration, terming the 1st Respondent’s decision as unfair punishment, considering that 6th to 10th interested parties adhered to the earlier given directive.
74. Punitive measures ought to be taken, against the 1st and 2nd Applicant and not the entire National Executive Committee being that it is only the 1st and 2ndapplicants who acted contrary to the directives of the 1strespondent who is the Patron of the Association.
75. The 6th to 10th Interested Parties have always been deeply invested in realizing the goals of the Association through serving members in the most diligent, transparent and reliable manner possible and as such it would be unfair and unjust to punish them for the blatant disobedience and acts of abuse of office by the 1st and 2nd Applicants.
76. The applicants’ purported argument that the 6th to 10th interested parties deliberately failed to attend the AGM, the same is completely false and misinforming.
Analysis and determination;
77. In the case of Republic v Chief Magistrate Milimani Commercial Courts & 2 others Ex Parte Fredrick Bett [2022] eKLR; The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The reason for the leave was explained by Waki J. (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
i. “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
78. In the instant suit this court is satisfied that the Applicant has made out a case for the grant of leave as sought in prayers.
79. The applicant also seeks an order for the leave so granted herein to operate as an interim and a substantive stay of any execution whatsoever and howsoever of the contents of the letter dated 6th June 2024 under reference no. SOC/53963 as signed by the 2nd Respondent and addressed to the 2nd Applicant by the 2ndApplicant.
80. In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR
ii. Should Orders of Stay of Execution be granted?
The question as to whether this Court has jurisdiction to grant inter-locutory orders in the nature of a stay of execution was long settled in Board of Governors, Moi High School, Kabarak& Another v. Malcolm Bell, SC Applications Nos. 12 and 13 of 2012, wherein the Court stated as follows (paragraph 33):
i. “It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of an appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”
That leaves pending the main interlocutory matters: whether we should stay the hand of the Independent Electoral and Boundaries Commission, and the Speaker of Meru County Assembly, so they do not move to alter the state of affairs at the Meru County gubernatorial office, pending the hearing and determination of the applicant’s appeal.
These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterize
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