1. By way of a Notice of Motion dated 8th July 2025 the Applicants seek
the following orders;-
1) An order of certiorari do issue 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 1st Applicant.
2) An order of prohibition directed at the 1st Respondent and all persons listed under the said letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent and addressed to the 1st Applicant, from dealing or executing anything whatsoever and or howsoever insofar as furtherance of contents therein as it relates to the Kenya National Secretaries Association (hereinafter referred to as KENASA) are concerned.
3) An order of certiorari do issue 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 Bank, Parliament Road Branch and copied to 6th Interested Party.
4) An order of certiorari do issue 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 KENASA members’ Resolutions during the Annual General Meeting held on 26th April 2024.
5) An order of certiorari do issue 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 seeking explanation upon a biased and predetermined verdict.
6) An order of mandamus do issue to compel the 2ndRespondent to admit and give effect to the resolutions made during the KENASA’s Annual General Meeting held on 26th April 2024 as well as the Special General Meeting held on 7th June 2024.
7) Such further and other reliefs as this Honourable Court may deem just to grant.
8) The costs of and incidental to this application be provided for in favour of the Applicants.
2. The Application is supported by the Statement of facts dated 19th June
2024, the supporting affidavit sworn by Ms. Marylelia Kuchio on 8th July 2025.
Ex Pate Applicants’ case
3. The Applicants’ case is that by a letter dated 6th June 2024, the 1st
Respondent disbanded the KENASA National executive Committee and purported to constitute an interim committee. The chairperson of the interim committee then issued a notice convening a meeting for 20th June 2024. Through a second letter on the same date, the 2nd Respondent directed Cooperative Bank to freeze the bank accounts of the association. It is the Applicants’ case that she had no powers to either disband the NEC or freeze the accounts. That the 2ndRespondent, by another letter dated 6th June 2024, communicated her decision not to make changes to the KEMSA file as per the resolutions of members during the AGM of 26th April 2024. Tthe 6th – 10th Interested parties who were officials of the association, deliberately failed to attend the AGM.
4. The Applicants’ case is that the 1st and 3rd Interested Parties, being
former officials who ceased to be MEC members due to being voted out are not available for appointment to the Interim Committee.
5. It is the applicants’ case that the membership of the NEC is provided
for under the KENASA constitution and therefore, the members appointed under the interim committee do not qualify to be office bearers.
6. The Applicants contend that the 2nd Respondent responded to the 1st
Respondents’ letter dated 30th May 2023 by a letter dated 6th June 2024 approving the disbandment of the NEC which was indicative of the collusion to frustrate the applicants.
7. It is further their case that they did not have the capacity to do so.
Additionally, the Applicants contend that the 1st Respondent had a predetermined condition as at 30th April 2024 about the Applicant being guilty of mismanagement and as to the nullity of the AGM resolutions without hearing the Applicants by the time the approval of disbandment was sought.
8. The Applicants maintain that the AGM of 26th April 2024 was held in
accordance with the KENASA constitution and the 2ndRespondent had no basis of failing to give effect to the resolutions.
9. Further, they argue that the respondents’ complaints on failure to
attach a statement of accounts could not invalidate the AGM Resolutions.
10. Additionally, they argue that the Applicants explanations on the
complaints raised were ignored which contravened the Applicants’ rights to a fair hearing and fair administrative action.
11. The Applicants stated that prior to the holding of the AGM there were
disputes as to the venue where it would be held with regards to cost.
12. As a result, the 6th – 10th Interested parties were absent when they were
voted out and the 11th – 13thInterested parties were appointed.
1st And 2nd Applicants’ Submissions
13. It is the applicants’ submission that the impugned decisions by the
Respondents are tainted with illegality inter alia in that the Respondents not have the requisite powers under the law in particular;-
i. The 1st Respondent has no powers to disband KENASA NEC and in place thereof, constitute Interim Committee;
ii. The 2nd Respondent has no power to ‘approve’ the disbandment of KENASA NEC and in place thereof, authorise the constitution of Interim Committee;
iii. The 2nd Respondent has no power to order the KENASA bankers to freeze KENASA bank accounts;
iv. The 2nd Respondent has no power to refuse to admit the KENASA AGM resolutions and give them effect;
v. It is irrational, unreasonable and illegal for the 2ndRespondent’s to write the letter dated 6th June 2024 addressed to the 2nd Applicant seeking explanation the same having been conceived on biasness, ulterior motives, unreasonableness and procedural impropriety as to negate its purpose.
14. In the case of AAA Investments (Pty) Ltd vs Micro Finance
Regulatory Council and another, (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006) the court held as follows:-
“The doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law"
15. The 1st Respondent therefore acted without authority in his decision to
disband the KENASA NEC and in place thereof constitute the interim committee.
16. Such a power is alien to the KENASA’s constitution and amounts to an
outright illegality and constitutes a coup d’état.
17. The 2nd Respondent does not have the power under the law to order
the freezing of KENASA bank account as she did.
18. She does not have the power to ‘approve’ the disbandment of KENASA
NEC and in place thereof, constitute an Interim Committee.
19. The 2nd Respondent has no power to refuse to admit the KENASA AGM
resolutions and give them effect.
20. In Republic v Betting Control and Licensing Board & another
Ex parte Outdoor Advertising Association of Kenya [2019] eKLR, it was held inter alia that
“Safeguarding legality is the most important purpose for the judicial review of administrative actions……In one sense, there must always be the premise of “want of legality.” This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures…..The most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and,…..It follows, therefore, that the legality of an administrative decision or decisions rendered by government Ministers can be judicially challenged on grounds that the administrative decision does not comply with the basic requirements of legality…..”.(Underlining mine)
21. The 6th -10th Interested Parties did not point out any provision of the
law that endowed the Respondents with the powers to act as they did.
22. The 8th and 6th Interested Parties wrote letters to the Respondents
seeking Respondents’ interventions variously.
23. They have cited no particular provisions of the law under which they
were convinced that the Respondents have the powers to intervene as they contended in their said letters.
24. Further, the 6th – 10th Interested Parties contended that the
1stRespondent has powers to intervene in the planned KENASA AGM.
25. The 6th-10th Interested Parties also contended that the “the
Applicants’ violated directives of the Patron” as per the meeting of 19th April 2024 but they did not point out the legal basis under which the Patron is granted powers “to issue directives or intervene and postpone the KENASA AGM”.
26. They submit that, there is nowhere in the law where the Respondents
are empowered to stop the convening or holding of KENASA AGM.
27. In AAA Investments (Pty) Ltd vs Micro Finance Regulatory
Council and another (supra) it was held that:-
“power should have a source in law, is applicable whenever public power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law”
28. Further, in the case of Republic v Betting Control and Licensing
Board & another Ex parte Outdoor Advertising Association of Kenya [2019] eKLR, it was held that
“…..First, public bodies, no matter how well intentioned, can only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decisions to stand, it must be grounded on the law. (emphasis mine)
29. They submit that the Respondents as well as the 6th-10th Interested
Parties were totally misguided as to the proper position of the 1st Respondent in the hierarchy of KENASA.
30. The Patron is wholly and absolutely powerless insofar as KENASA
affairs are concerned. The KENASA constitution provides as follows:-
Clause 17 of the KENASA Constitution provides as follows:-
“17. Patronage of the Association
Patronage of the Association shall be vested to the Principal Secretary in charge of Public Service”
31. Other than the above noted statement only, there is no any other
reference or provision in the rest of the KENASA constitution about the Patron. M
32. Therefore, the powers that the 1st Respondent purported to exercise ‘as
the patron’ are not provided for.
33. Accordingly, the fate of the much touted ‘patron’s directives’ that were
repeatedly cited by the 1st Respondent’s letters of 30th May 2024, the 1st Respondent’s letter dated 30th April 2024 to the 1st Applicant as well as the 6th-10th Interested Parties’ correspondences are all misconceived.
34. Neither the minutes of the said meeting of 19th April 2024 nor the
‘Patron’s directives’ or Patron’s formal communication to the 1st Applicant about postponing the AGM of 26th April 2024 as alleged, if any, have been annexed to the 6th Interested Party’s affidavit to confirm the allegations and even give a complete picture of what transpired at the said meeting, if at all.
35. For avoidance of doubt, the applicant submits that the much touted
meeting of 19th April 2024 was not a KENASA Meeting in terms of clause 5(a) of the KENASA constitution and no amount of hyping and yapping, can inject legitimacy through the misguided averments of the 6th-10th Interested Parties and nothing binding insofar as KENASA constitution is concerned can turn out from the said meeting.
36. The Court cannot be invited to adjudge a case on imagined and
inconsequential directives that have not been formally filed in court.
37. The Patron’s actions are incompatible with Article 36 of the
Constitution of Kenya 2010.
38. KENASA is a members’ Association where the Applicants are serving
as the National Chairperson and National Secretary respectively and as such, the 1st Respondent cannot introduce parallel office bearers otherwise than is provided in the KENASA Constitution and without any powers or basis in Law.
39. The patron’s office was not set up an independent high level or parallel
organ of KENASA or to superintend the National Executive Committee (NEC) of KENASA.
40. The Patron is neither elected nor conferred with veto powers to
countermand and/or veto Resolutions of members in an Annual General Meeting.
41. As such, the Patron ought to have appreciated the limitations of his
office ‘as a patron’ and contented with it ‘as is’ but not to arrogate himself powers that are not conferred on his office by the KENASA Constitution or any other law for that matter.
42. It is unreasonable and an illegality for the Patron to arrogate himself
veto powers and appoint non-members to manage KENASA, which is a members’ Association.
43. The Patron purports to make the said coup d’état without any reference
to members of KENASA and after boldly and deliberately avoiding to attend a members Annual General Meeting alongside the 6th-10th Interested Parties. It is totally unreasonable and unconstitutional.
44. Whereas it was a proper gesture for the 1st Respondent to have sought
legal advice from the office of the Solicitor General, the hijacking of the letter by the 2nd Responded is what ushered in a misguided trajectory and this marked the consecration of the Respondents’ misguidance and illegality.
45. The Respondents’ impugned actions constitute a clear violation and
abuse of power. They acted without a basis in law.
46. The Respondents’ misguidance can be seen from the
2ndRespondent’s letter dated 6th June 2024 under reference SOC/53963 through which she purported to “approve” the 1st Respondent’s proposal to constitute an interim committee without particularizing the legal basis under which the 1st Respondent is authorized to disband the KENASA NEC and in place thereof, constitute the interim committee or how the 2nd Respondent is herself required to approve such an action.
47. the applicant submits contend that the 2nd Respondent thereby
misadvised the 1stRespondent into a patent illegality.
48. Under the 1st Respondent’s letter annexed as the 1st Respondent having
already made a decision (without involvement of the Applicants at all), but hypocritically sought for a backing to his biased decision to disband the KENASA NEC and in place thereof constitute the alien interim Committee. The last paragraph of that letter is worded as follows:-
“the purpose of this letter, therefore, is to inform you of the current status of Association and seek advice on constituting an interim committee to oversee the Association’s affairs pending election of new office bearers”
49. The applicants consternation, the 2nd Respondent failed to advice the
1st Respondent that he (the 1st Respondent) did not have the powers to disband KENASA NEC and in place thereof constitute an interim committee.
50. Instead, the same 2nd Respondent misguided herself, countenanced
and acquiesced in the misguidance of the 1st Respondent by purporting to approve the disbandment of the KENASA NEC and in place thereof, constitution of Interim Committee without any basis in law.
51. In essence, she openly misled the 1st Respondent in that respect. As an
Advocate, she ought to have first, determined whether or not the 1st Respondent had such powers under the KENASA Constitution or any other law and advised the 1st Respondent correctly.
52. Upon further consideration, the 2nd Respondent was openly insincere
when, On one hand, she advised the 1st Respondent “to constitute an interim committee with immediate effect..” on 6th June 2024 whilst on the other hand, on the same date, she hypocritically asked the 2nd Applicant herein, through her letter to respond to an attached complaint “within 21 days”.
53. The 2nd Respondent acted recklessly in this case because she purported
to ‘approve’ an encumbrance upon the 2nd Applicant’s being in office ‘within 21 days’ by ‘approving’ the constitution of interim committee to replace the Applicants but in the same breath, still asks the 2nd Applicant to respond to her letter dated 6thJune 2024.
54. This demonstrates dense insincerity and manifests lack intention to
hear the Applicants at all but only to seek to excuse herself as a formality, through her said letter as she has done at paragraph 21 of her affidavit.
55. The 6th -10th Interested Parties have acted all along with impunity
based on a fallback support of the 1st and 2nd Respondents. While this was so and despite the Respondents hypocritically pretending to convene meetings and ask for explanations, none of their impugned decisions herein made any reference to the explanations advanced by the 1st Applicant.
56. The 2nd Respondent arbitrarily declined to give effect to the
Resolutions of the KENASA AGM held on 26th April 2024.
57. The reason given by the 2nd Respondent for declining to give effect to
the Resolutions of the AGM is because of a complaint lodged with her office.
58. But the 2nd Respondent did not particularize in her said letter to the 2nd
Applicant, the powers that give her a basis to require the 2nd Applicant to respond to the complaint letter as well as, the power to decline to admit returns of an AGM of a registered society because of a complaint.
59. The supposed “complaint” letter dated 29th April 2024 attached to the
2nd Respondent’s letter dated 6th June 2024 addressed to the 2nd Applicant was nothing but a scapegoat.
60. This is what the 2nd Respondent relied on in not admitting the returns
filed by the KENASA following the AGM held on 26th April 2024.
61. The Societies Act does not confer powers on the Registrar of Societies
to undertake dispute resolution affecting registered Societies.
62. If there be an aggrieved person insofar as the holding of an AGM is
concerned, the aggrieved person can only seek redress from courts of law.
63. As such, the Registrar can only decline to admit AGM returns of a
registered society’s AGM only pursuant to a court order from the High Court.
64. Section 18 of the Societies Act has been densely mystified. It provides
as follows:-
“18. Disputes as to officers
(1) If the Registrar is of the opinion that a dispute has occurred among the members or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of the society, the Registrar may, by order in writing, require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute. (emphasis mine)
(2) If an order under subsection (1) of this section is not complied with to the satisfaction of the Registrar within the period of one month or any longer period which the Registrar may allow, the Registrar may cancel the registration of the society.
(3) A society aggrieved by the cancellation of its registration under subsection (2) may appeal to the High Court within thirty days of such cancellation.”
65. With respect to the misleading contentions of the 1st Respondent and
the fallacies of the 6th-10th Interested parties, even with the plainest interpretation, they do not see the consistency between the impugned actions of the Respondents and Section 18 of the Societies Act.
66. The letter by the 2nd Respondent to the 1stApplicant talks of a complaint
about ‘conduct of AGM’. Section 18 provides is precisely about ‘Disputes as to officers ’only. Even the sub-heading of Section 18 is that clear, it is not about any other dispute.
67. Further on this, Section 18 does not give the Registrar (the
2ndRespondent) the power to solve the disputes as to officers but to require the dispute to be solved by the Society itself.
68. The relevant part provides that (the Registrar may) ‘require the
society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute.
69. Accordingly, the said Section 18 does not provide for the Registrar to
introduce conditions such as a ‘complaint letter about how the AGM was conducted’ as a precondition for receiving returns filed by the Society following an AGM.
70. Further, from the interpretation of the said Section 18 of the Societies
Act, the Registrar is supposed to require evidence of settlement of the dispute as to officers or of the institution of proceedings for the settlement of such dispute.
71. The 6thand 8th Interested Parties ought to instituted proceedings in the
High Court and obtained stay orders staying the members’ training and AGM but not seek for the 1stRespondent and/or the Registrar of Societies to solve the complaint.
72. The fallacy in the Respondents’ contentions that the Registrar has
dispute Resolution powers under Section 18 of the Societies Act is untenable.
73. Based on this grounding, the applicants submit that the Registrar of
Societies had no powers to entertain complaints from the 6th-10thInterested Parties.
74. At any rate the wording of Section 18 of the Societies Act is clear that
one of the alternatives is to avail to the Registrar of Societies evidence of proceedings having been instituted.
75. But not for Registrar to decline to receive returns from a registered
society following an AGM solely because of a complaint from a person who deliberately failed to attend the AGM and she is complaining about the conduct of the AGM that she did not attend.
76. One wonders if the Registrar of Societies has no power to solve a
complaint under the law, why will she want an explanation or details of the complaint. It is a total misguidance, confusion and untenable obsessions without a legal basis.
77. Likewise, the 2nd Respondent directed KENASA bankers, being
Cooperative bank of Kenya, Parliament Branch, to freeze the KENASA Bank account maintained there without a court order and or any colour of right.
78. The decision was taken without any reference to members, considering
that KENASA is a members’ association.
79. The said decisions, in circumstances of this case, upset and defeated
KENASA members’ rights to their property (in the money) in the bank, arm twisted them from progressing their programs and thereby stifled their freedom of Association under Article 36 of the Constitution.
80. It is shameful for KENASA, a professional Association to convene their
members for crucial KENASA activities namely a members’ training and Annual General Meeting then fail to settle their resultant bills because of Respondents’ abuse of office and selfish interests.
81. It is not that members did not pay for the members’ training and AGM,
they did but through the misguidance of the 6th-10th Interested Parties, KENASA has been impeded from the settlement of bills.
82. The Respondents are not members of the KENASA but, who have
through their impugned actions brought about confusion, ignominy and polarized the smooth operations of the KENASA.
83. There is no known provision in the Societies Act that grants the
Registrar powers to freeze a society’s bank account.
84. In the Non-Governmental Organizations Co-ordination
Board Ex-Parte Research, Care and Training Programme Family Aids Care & Education Services (RCTP-FACES), W. Korir J. held inter alia as follows:-
“The power to order the freezing of a bank account is a very powerful tool indeed. It leaves the account holder at the mercy of the authority directing freezing. In my view such power can only be expressly granted by the law. Even where crime is involved, investigative authorities such as the police and the Ethics and Anti-Corruption Commission do not exercise such power of their own motion. In order to access somebody’s account, an investigator has to obtain orders of the court. Under the Proceeds of Crime and Anti-Money Laundering Act, 2009, the freezing a bank account can only be done upon obtaining a court order. 28. The Respondent suggests that the power to freeze accounts should be implied. A power that paralyses the activities of an organization cannot be implied. It must be expressly donated by the lawmakers. 29. Even if the Respondent did indeed have power to order the bank to freeze the Applicant’s bank account, I do not think that such power would have been exercisable in the circumstances of this particular case.
In light of what I have stated, I find that the Applicant’s case has merit. The same succeeds and an order of certiorari is issued calling into this Court and quashing the Respondent’s letter dated 19th February, 2016 addressed to the Applicant’s bankers, Cooperative Bank of Kenya directing the said bank to freeze the Applicant’s accounts. Any action resulting from that letter is therefore quashed”
85. The Applicants, who were duly elected by the KENASA members had a
legitimate expectation that their rights and KENASA’s would be respected and protected as by law provided and that any action or decision affecting those rights would only be taken in accordance with the law.
86. In Civil Appeal No 308 of 2012 Law Society of Kenya v The
Centre For Human Rights And Democracy & 13 others, it was held that an inferior tribunal, person or authority charged with the responsibility of making a decision in a judicial or quasi-judicial function has the parameters and limits of its jurisdiction set out by its enabling statute.
87. The 2nd Respondent has not pointed out which section of the Societies
Act gives her the power to freeze a registered Society’s bank accounts.
88. In Republic v Kenya Revenue Authority Ex Parte Aberdare
Freight Services Ltd & 2 others [2004] 2 KLR 530, it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others, and based on East African Railways Corp. v Anthony Sefu Dar-esSalaam HCCA No 19 of 1971 [1973] EA 327, Courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it
89. The applicants submit that the Respondents’ impugned decisions were
tainted with illegality, biasness, bad faith, unreasonableness and irrationality and deliberate abuse of office.
90. The said acts of the Respondents are an affront to well-known tenets
of natural justice as the process, they undertook was fraught with malice and bad faith.
91. As of natural justice and fair procedure, the Respondents ought to have
formally put the complaint(s) against the 1st Applicant, (as supposedly raised by the 8th Interested Party or whoever as the case maybe,) to the 1st Applicant for her answer. This was not done. The Applicants’ rights to fair hearing were thereby infringed as Article 47 of the Constitution was rendered useless.
92. The subversion of due procedure and arbitrariness can be gleaned from
the 1st Respondent’s letter dated 6th June 2024 which was without any notice at all.
93. It was final and directed the 1st Applicant to hand over KENASA to non-
KENASA members christened as Interim Committee. The letter notified the 1stApplicant that:-
“Owing to the non-adherence to the resolutions of the meeting held on 19th April 2024 and subsequent directive, this office has reached a decision that urgent measures need to be put in place for smooth
operations of the Association.
94. An Interim Committee has therefore, been constituted to
oversee the affairs of Kenya National Secretaries Association (KENASA).
95. The arbitrary notice was for 5 days as per that letter. Any notice within
the fair administrative action should be for a reasonable time.
96. The Applicants were expected to substantively comply with the
directions in the letter in 5 days which is unfair and unreasonable and contrary to the Article 47 of the Constitution and the Fair Administration Act.
97. The explanations that the 1st Applicant had written to the Respondents
in the letter dated 2ndMay 2024 to the 2nd Respondent and copied to 1st Respondent counted for nothing.
98. The Applicants were condemned unheard in violation of both the
Constitution and the Law for reason of failing to observe the law and procedural fairness.
99. Article 47(1) of the Constitution provides that - every person has the
right to administrative action that is expeditious, efficient, lawful, and reasonable and procedurally fair was rendered useless.
100. In particular Article 47(2) provides that – if a right or 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.
101. In Republic v Non-Governmental Organizations and Co-
ordination Board ex parte Kalonzo Musyoka Foundation, it was held that:-
“an administrative action cannot be said to be procedurally fair when the process of arriving at it is shrouded in mystery…...”
102. In Richard Bwogo Birir v Narok County Government & 2
others (2014) eKLR, the High Court held as follows inter alia:-
“The respondent cannot be considered to have maintained the principles of human rights, transparency, accountability, and good governance as envisioned in Article 10 of the Constitution, the court concludes. The court's considered opinion is that mysterious decisions... cannot be in furtherance of the donated sovereign powers that vest in the people because such mysterious decisions are opaque decisions that belong to the murky world and not a civilised democratic Republic like ours.”
103. In N
[...truncated]
the following orders;-
1) An order of certiorari do issue 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 1st Applicant.
2) An order of prohibition directed at the 1st Respondent and all persons listed under the said letter dated 6th June 2024 under reference no. MPSP&DM/SEC/3/4/1 signed by the 1st Respondent and addressed to the 1st Applicant, from dealing or executing anything whatsoever and or howsoever insofar as furtherance of contents therein as it relates to the Kenya National Secretaries Association (hereinafter referred to as KENASA) are concerned.
3) An order of certiorari do issue 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 Bank, Parliament Road Branch and copied to 6th Interested Party.
4) An order of certiorari do issue 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 KENASA members’ Resolutions during the Annual General Meeting held on 26th April 2024.
5) An order of certiorari do issue 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 seeking explanation upon a biased and predetermined verdict.
6) An order of mandamus do issue to compel the 2ndRespondent to admit and give effect to the resolutions made during the KENASA’s Annual General Meeting held on 26th April 2024 as well as the Special General Meeting held on 7th June 2024.
7) Such further and other reliefs as this Honourable Court may deem just to grant.
8) The costs of and incidental to this application be provided for in favour of the Applicants.
2. The Application is supported by the Statement of facts dated 19th June
2024, the supporting affidavit sworn by Ms. Marylelia Kuchio on 8th July 2025.
Ex Pate Applicants’ case
3. The Applicants’ case is that by a letter dated 6th June 2024, the 1st
Respondent disbanded the KENASA National executive Committee and purported to constitute an interim committee. The chairperson of the interim committee then issued a notice convening a meeting for 20th June 2024. Through a second letter on the same date, the 2nd Respondent directed Cooperative Bank to freeze the bank accounts of the association. It is the Applicants’ case that she had no powers to either disband the NEC or freeze the accounts. That the 2ndRespondent, by another letter dated 6th June 2024, communicated her decision not to make changes to the KEMSA file as per the resolutions of members during the AGM of 26th April 2024. Tthe 6th – 10th Interested parties who were officials of the association, deliberately failed to attend the AGM.
4. The Applicants’ case is that the 1st and 3rd Interested Parties, being
former officials who ceased to be MEC members due to being voted out are not available for appointment to the Interim Committee.
5. It is the applicants’ case that the membership of the NEC is provided
for under the KENASA constitution and therefore, the members appointed under the interim committee do not qualify to be office bearers.
6. The Applicants contend that the 2nd Respondent responded to the 1st
Respondents’ letter dated 30th May 2023 by a letter dated 6th June 2024 approving the disbandment of the NEC which was indicative of the collusion to frustrate the applicants.
7. It is further their case that they did not have the capacity to do so.
Additionally, the Applicants contend that the 1st Respondent had a predetermined condition as at 30th April 2024 about the Applicant being guilty of mismanagement and as to the nullity of the AGM resolutions without hearing the Applicants by the time the approval of disbandment was sought.
8. The Applicants maintain that the AGM of 26th April 2024 was held in
accordance with the KENASA constitution and the 2ndRespondent had no basis of failing to give effect to the resolutions.
9. Further, they argue that the respondents’ complaints on failure to
attach a statement of accounts could not invalidate the AGM Resolutions.
10. Additionally, they argue that the Applicants explanations on the
complaints raised were ignored which contravened the Applicants’ rights to a fair hearing and fair administrative action.
11. The Applicants stated that prior to the holding of the AGM there were
disputes as to the venue where it would be held with regards to cost.
12. As a result, the 6th – 10th Interested parties were absent when they were
voted out and the 11th – 13thInterested parties were appointed.
1st And 2nd Applicants’ Submissions
13. It is the applicants’ submission that the impugned decisions by the
Respondents are tainted with illegality inter alia in that the Respondents not have the requisite powers under the law in particular;-
i. The 1st Respondent has no powers to disband KENASA NEC and in place thereof, constitute Interim Committee;
ii. The 2nd Respondent has no power to ‘approve’ the disbandment of KENASA NEC and in place thereof, authorise the constitution of Interim Committee;
iii. The 2nd Respondent has no power to order the KENASA bankers to freeze KENASA bank accounts;
iv. The 2nd Respondent has no power to refuse to admit the KENASA AGM resolutions and give them effect;
v. It is irrational, unreasonable and illegal for the 2ndRespondent’s to write the letter dated 6th June 2024 addressed to the 2nd Applicant seeking explanation the same having been conceived on biasness, ulterior motives, unreasonableness and procedural impropriety as to negate its purpose.
14. In the case of AAA Investments (Pty) Ltd vs Micro Finance
Regulatory Council and another, (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006) the court held as follows:-
“The doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law"
15. The 1st Respondent therefore acted without authority in his decision to
disband the KENASA NEC and in place thereof constitute the interim committee.
16. Such a power is alien to the KENASA’s constitution and amounts to an
outright illegality and constitutes a coup d’état.
17. The 2nd Respondent does not have the power under the law to order
the freezing of KENASA bank account as she did.
18. She does not have the power to ‘approve’ the disbandment of KENASA
NEC and in place thereof, constitute an Interim Committee.
19. The 2nd Respondent has no power to refuse to admit the KENASA AGM
resolutions and give them effect.
20. In Republic v Betting Control and Licensing Board & another
Ex parte Outdoor Advertising Association of Kenya [2019] eKLR, it was held inter alia that
“Safeguarding legality is the most important purpose for the judicial review of administrative actions……In one sense, there must always be the premise of “want of legality.” This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures…..The most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and,…..It follows, therefore, that the legality of an administrative decision or decisions rendered by government Ministers can be judicially challenged on grounds that the administrative decision does not comply with the basic requirements of legality…..”.(Underlining mine)
21. The 6th -10th Interested Parties did not point out any provision of the
law that endowed the Respondents with the powers to act as they did.
22. The 8th and 6th Interested Parties wrote letters to the Respondents
seeking Respondents’ interventions variously.
23. They have cited no particular provisions of the law under which they
were convinced that the Respondents have the powers to intervene as they contended in their said letters.
24. Further, the 6th – 10th Interested Parties contended that the
1stRespondent has powers to intervene in the planned KENASA AGM.
25. The 6th-10th Interested Parties also contended that the “the
Applicants’ violated directives of the Patron” as per the meeting of 19th April 2024 but they did not point out the legal basis under which the Patron is granted powers “to issue directives or intervene and postpone the KENASA AGM”.
26. They submit that, there is nowhere in the law where the Respondents
are empowered to stop the convening or holding of KENASA AGM.
27. In AAA Investments (Pty) Ltd vs Micro Finance Regulatory
Council and another (supra) it was held that:-
“power should have a source in law, is applicable whenever public power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law”
28. Further, in the case of Republic v Betting Control and Licensing
Board & another Ex parte Outdoor Advertising Association of Kenya [2019] eKLR, it was held that
“…..First, public bodies, no matter how well intentioned, can only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decisions to stand, it must be grounded on the law. (emphasis mine)
29. They submit that the Respondents as well as the 6th-10th Interested
Parties were totally misguided as to the proper position of the 1st Respondent in the hierarchy of KENASA.
30. The Patron is wholly and absolutely powerless insofar as KENASA
affairs are concerned. The KENASA constitution provides as follows:-
Clause 17 of the KENASA Constitution provides as follows:-
“17. Patronage of the Association
Patronage of the Association shall be vested to the Principal Secretary in charge of Public Service”
31. Other than the above noted statement only, there is no any other
reference or provision in the rest of the KENASA constitution about the Patron. M
32. Therefore, the powers that the 1st Respondent purported to exercise ‘as
the patron’ are not provided for.
33. Accordingly, the fate of the much touted ‘patron’s directives’ that were
repeatedly cited by the 1st Respondent’s letters of 30th May 2024, the 1st Respondent’s letter dated 30th April 2024 to the 1st Applicant as well as the 6th-10th Interested Parties’ correspondences are all misconceived.
34. Neither the minutes of the said meeting of 19th April 2024 nor the
‘Patron’s directives’ or Patron’s formal communication to the 1st Applicant about postponing the AGM of 26th April 2024 as alleged, if any, have been annexed to the 6th Interested Party’s affidavit to confirm the allegations and even give a complete picture of what transpired at the said meeting, if at all.
35. For avoidance of doubt, the applicant submits that the much touted
meeting of 19th April 2024 was not a KENASA Meeting in terms of clause 5(a) of the KENASA constitution and no amount of hyping and yapping, can inject legitimacy through the misguided averments of the 6th-10th Interested Parties and nothing binding insofar as KENASA constitution is concerned can turn out from the said meeting.
36. The Court cannot be invited to adjudge a case on imagined and
inconsequential directives that have not been formally filed in court.
37. The Patron’s actions are incompatible with Article 36 of the
Constitution of Kenya 2010.
38. KENASA is a members’ Association where the Applicants are serving
as the National Chairperson and National Secretary respectively and as such, the 1st Respondent cannot introduce parallel office bearers otherwise than is provided in the KENASA Constitution and without any powers or basis in Law.
39. The patron’s office was not set up an independent high level or parallel
organ of KENASA or to superintend the National Executive Committee (NEC) of KENASA.
40. The Patron is neither elected nor conferred with veto powers to
countermand and/or veto Resolutions of members in an Annual General Meeting.
41. As such, the Patron ought to have appreciated the limitations of his
office ‘as a patron’ and contented with it ‘as is’ but not to arrogate himself powers that are not conferred on his office by the KENASA Constitution or any other law for that matter.
42. It is unreasonable and an illegality for the Patron to arrogate himself
veto powers and appoint non-members to manage KENASA, which is a members’ Association.
43. The Patron purports to make the said coup d’état without any reference
to members of KENASA and after boldly and deliberately avoiding to attend a members Annual General Meeting alongside the 6th-10th Interested Parties. It is totally unreasonable and unconstitutional.
44. Whereas it was a proper gesture for the 1st Respondent to have sought
legal advice from the office of the Solicitor General, the hijacking of the letter by the 2nd Responded is what ushered in a misguided trajectory and this marked the consecration of the Respondents’ misguidance and illegality.
45. The Respondents’ impugned actions constitute a clear violation and
abuse of power. They acted without a basis in law.
46. The Respondents’ misguidance can be seen from the
2ndRespondent’s letter dated 6th June 2024 under reference SOC/53963 through which she purported to “approve” the 1st Respondent’s proposal to constitute an interim committee without particularizing the legal basis under which the 1st Respondent is authorized to disband the KENASA NEC and in place thereof, constitute the interim committee or how the 2nd Respondent is herself required to approve such an action.
47. the applicant submits contend that the 2nd Respondent thereby
misadvised the 1stRespondent into a patent illegality.
48. Under the 1st Respondent’s letter annexed as the 1st Respondent having
already made a decision (without involvement of the Applicants at all), but hypocritically sought for a backing to his biased decision to disband the KENASA NEC and in place thereof constitute the alien interim Committee. The last paragraph of that letter is worded as follows:-
“the purpose of this letter, therefore, is to inform you of the current status of Association and seek advice on constituting an interim committee to oversee the Association’s affairs pending election of new office bearers”
49. The applicants consternation, the 2nd Respondent failed to advice the
1st Respondent that he (the 1st Respondent) did not have the powers to disband KENASA NEC and in place thereof constitute an interim committee.
50. Instead, the same 2nd Respondent misguided herself, countenanced
and acquiesced in the misguidance of the 1st Respondent by purporting to approve the disbandment of the KENASA NEC and in place thereof, constitution of Interim Committee without any basis in law.
51. In essence, she openly misled the 1st Respondent in that respect. As an
Advocate, she ought to have first, determined whether or not the 1st Respondent had such powers under the KENASA Constitution or any other law and advised the 1st Respondent correctly.
52. Upon further consideration, the 2nd Respondent was openly insincere
when, On one hand, she advised the 1st Respondent “to constitute an interim committee with immediate effect..” on 6th June 2024 whilst on the other hand, on the same date, she hypocritically asked the 2nd Applicant herein, through her letter to respond to an attached complaint “within 21 days”.
53. The 2nd Respondent acted recklessly in this case because she purported
to ‘approve’ an encumbrance upon the 2nd Applicant’s being in office ‘within 21 days’ by ‘approving’ the constitution of interim committee to replace the Applicants but in the same breath, still asks the 2nd Applicant to respond to her letter dated 6thJune 2024.
54. This demonstrates dense insincerity and manifests lack intention to
hear the Applicants at all but only to seek to excuse herself as a formality, through her said letter as she has done at paragraph 21 of her affidavit.
55. The 6th -10th Interested Parties have acted all along with impunity
based on a fallback support of the 1st and 2nd Respondents. While this was so and despite the Respondents hypocritically pretending to convene meetings and ask for explanations, none of their impugned decisions herein made any reference to the explanations advanced by the 1st Applicant.
56. The 2nd Respondent arbitrarily declined to give effect to the
Resolutions of the KENASA AGM held on 26th April 2024.
57. The reason given by the 2nd Respondent for declining to give effect to
the Resolutions of the AGM is because of a complaint lodged with her office.
58. But the 2nd Respondent did not particularize in her said letter to the 2nd
Applicant, the powers that give her a basis to require the 2nd Applicant to respond to the complaint letter as well as, the power to decline to admit returns of an AGM of a registered society because of a complaint.
59. The supposed “complaint” letter dated 29th April 2024 attached to the
2nd Respondent’s letter dated 6th June 2024 addressed to the 2nd Applicant was nothing but a scapegoat.
60. This is what the 2nd Respondent relied on in not admitting the returns
filed by the KENASA following the AGM held on 26th April 2024.
61. The Societies Act does not confer powers on the Registrar of Societies
to undertake dispute resolution affecting registered Societies.
62. If there be an aggrieved person insofar as the holding of an AGM is
concerned, the aggrieved person can only seek redress from courts of law.
63. As such, the Registrar can only decline to admit AGM returns of a
registered society’s AGM only pursuant to a court order from the High Court.
64. Section 18 of the Societies Act has been densely mystified. It provides
as follows:-
“18. Disputes as to officers
(1) If the Registrar is of the opinion that a dispute has occurred among the members or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of the society, the Registrar may, by order in writing, require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute. (emphasis mine)
(2) If an order under subsection (1) of this section is not complied with to the satisfaction of the Registrar within the period of one month or any longer period which the Registrar may allow, the Registrar may cancel the registration of the society.
(3) A society aggrieved by the cancellation of its registration under subsection (2) may appeal to the High Court within thirty days of such cancellation.”
65. With respect to the misleading contentions of the 1st Respondent and
the fallacies of the 6th-10th Interested parties, even with the plainest interpretation, they do not see the consistency between the impugned actions of the Respondents and Section 18 of the Societies Act.
66. The letter by the 2nd Respondent to the 1stApplicant talks of a complaint
about ‘conduct of AGM’. Section 18 provides is precisely about ‘Disputes as to officers ’only. Even the sub-heading of Section 18 is that clear, it is not about any other dispute.
67. Further on this, Section 18 does not give the Registrar (the
2ndRespondent) the power to solve the disputes as to officers but to require the dispute to be solved by the Society itself.
68. The relevant part provides that (the Registrar may) ‘require the
society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the institution of proceedings for the settlement of such dispute.
69. Accordingly, the said Section 18 does not provide for the Registrar to
introduce conditions such as a ‘complaint letter about how the AGM was conducted’ as a precondition for receiving returns filed by the Society following an AGM.
70. Further, from the interpretation of the said Section 18 of the Societies
Act, the Registrar is supposed to require evidence of settlement of the dispute as to officers or of the institution of proceedings for the settlement of such dispute.
71. The 6thand 8th Interested Parties ought to instituted proceedings in the
High Court and obtained stay orders staying the members’ training and AGM but not seek for the 1stRespondent and/or the Registrar of Societies to solve the complaint.
72. The fallacy in the Respondents’ contentions that the Registrar has
dispute Resolution powers under Section 18 of the Societies Act is untenable.
73. Based on this grounding, the applicants submit that the Registrar of
Societies had no powers to entertain complaints from the 6th-10thInterested Parties.
74. At any rate the wording of Section 18 of the Societies Act is clear that
one of the alternatives is to avail to the Registrar of Societies evidence of proceedings having been instituted.
75. But not for Registrar to decline to receive returns from a registered
society following an AGM solely because of a complaint from a person who deliberately failed to attend the AGM and she is complaining about the conduct of the AGM that she did not attend.
76. One wonders if the Registrar of Societies has no power to solve a
complaint under the law, why will she want an explanation or details of the complaint. It is a total misguidance, confusion and untenable obsessions without a legal basis.
77. Likewise, the 2nd Respondent directed KENASA bankers, being
Cooperative bank of Kenya, Parliament Branch, to freeze the KENASA Bank account maintained there without a court order and or any colour of right.
78. The decision was taken without any reference to members, considering
that KENASA is a members’ association.
79. The said decisions, in circumstances of this case, upset and defeated
KENASA members’ rights to their property (in the money) in the bank, arm twisted them from progressing their programs and thereby stifled their freedom of Association under Article 36 of the Constitution.
80. It is shameful for KENASA, a professional Association to convene their
members for crucial KENASA activities namely a members’ training and Annual General Meeting then fail to settle their resultant bills because of Respondents’ abuse of office and selfish interests.
81. It is not that members did not pay for the members’ training and AGM,
they did but through the misguidance of the 6th-10th Interested Parties, KENASA has been impeded from the settlement of bills.
82. The Respondents are not members of the KENASA but, who have
through their impugned actions brought about confusion, ignominy and polarized the smooth operations of the KENASA.
83. There is no known provision in the Societies Act that grants the
Registrar powers to freeze a society’s bank account.
84. In the Non-Governmental Organizations Co-ordination
Board Ex-Parte Research, Care and Training Programme Family Aids Care & Education Services (RCTP-FACES), W. Korir J. held inter alia as follows:-
“The power to order the freezing of a bank account is a very powerful tool indeed. It leaves the account holder at the mercy of the authority directing freezing. In my view such power can only be expressly granted by the law. Even where crime is involved, investigative authorities such as the police and the Ethics and Anti-Corruption Commission do not exercise such power of their own motion. In order to access somebody’s account, an investigator has to obtain orders of the court. Under the Proceeds of Crime and Anti-Money Laundering Act, 2009, the freezing a bank account can only be done upon obtaining a court order. 28. The Respondent suggests that the power to freeze accounts should be implied. A power that paralyses the activities of an organization cannot be implied. It must be expressly donated by the lawmakers. 29. Even if the Respondent did indeed have power to order the bank to freeze the Applicant’s bank account, I do not think that such power would have been exercisable in the circumstances of this particular case.
In light of what I have stated, I find that the Applicant’s case has merit. The same succeeds and an order of certiorari is issued calling into this Court and quashing the Respondent’s letter dated 19th February, 2016 addressed to the Applicant’s bankers, Cooperative Bank of Kenya directing the said bank to freeze the Applicant’s accounts. Any action resulting from that letter is therefore quashed”
85. The Applicants, who were duly elected by the KENASA members had a
legitimate expectation that their rights and KENASA’s would be respected and protected as by law provided and that any action or decision affecting those rights would only be taken in accordance with the law.
86. In Civil Appeal No 308 of 2012 Law Society of Kenya v The
Centre For Human Rights And Democracy & 13 others, it was held that an inferior tribunal, person or authority charged with the responsibility of making a decision in a judicial or quasi-judicial function has the parameters and limits of its jurisdiction set out by its enabling statute.
87. The 2nd Respondent has not pointed out which section of the Societies
Act gives her the power to freeze a registered Society’s bank accounts.
88. In Republic v Kenya Revenue Authority Ex Parte Aberdare
Freight Services Ltd & 2 others [2004] 2 KLR 530, it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others, and based on East African Railways Corp. v Anthony Sefu Dar-esSalaam HCCA No 19 of 1971 [1973] EA 327, Courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it
89. The applicants submit that the Respondents’ impugned decisions were
tainted with illegality, biasness, bad faith, unreasonableness and irrationality and deliberate abuse of office.
90. The said acts of the Respondents are an affront to well-known tenets
of natural justice as the process, they undertook was fraught with malice and bad faith.
91. As of natural justice and fair procedure, the Respondents ought to have
formally put the complaint(s) against the 1st Applicant, (as supposedly raised by the 8th Interested Party or whoever as the case maybe,) to the 1st Applicant for her answer. This was not done. The Applicants’ rights to fair hearing were thereby infringed as Article 47 of the Constitution was rendered useless.
92. The subversion of due procedure and arbitrariness can be gleaned from
the 1st Respondent’s letter dated 6th June 2024 which was without any notice at all.
93. It was final and directed the 1st Applicant to hand over KENASA to non-
KENASA members christened as Interim Committee. The letter notified the 1stApplicant that:-
“Owing to the non-adherence to the resolutions of the meeting held on 19th April 2024 and subsequent directive, this office has reached a decision that urgent measures need to be put in place for smooth
operations of the Association.
94. An Interim Committee has therefore, been constituted to
oversee the affairs of Kenya National Secretaries Association (KENASA).
95. The arbitrary notice was for 5 days as per that letter. Any notice within
the fair administrative action should be for a reasonable time.
96. The Applicants were expected to substantively comply with the
directions in the letter in 5 days which is unfair and unreasonable and contrary to the Article 47 of the Constitution and the Fair Administration Act.
97. The explanations that the 1st Applicant had written to the Respondents
in the letter dated 2ndMay 2024 to the 2nd Respondent and copied to 1st Respondent counted for nothing.
98. The Applicants were condemned unheard in violation of both the
Constitution and the Law for reason of failing to observe the law and procedural fairness.
99. Article 47(1) of the Constitution provides that - every person has the
right to administrative action that is expeditious, efficient, lawful, and reasonable and procedurally fair was rendered useless.
100. In particular Article 47(2) provides that – if a right or 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.
101. In Republic v Non-Governmental Organizations and Co-
ordination Board ex parte Kalonzo Musyoka Foundation, it was held that:-
“an administrative action cannot be said to be procedurally fair when the process of arriving at it is shrouded in mystery…...”
102. In Richard Bwogo Birir v Narok County Government & 2
others (2014) eKLR, the High Court held as follows inter alia:-
“The respondent cannot be considered to have maintained the principles of human rights, transparency, accountability, and good governance as envisioned in Article 10 of the Constitution, the court concludes. The court's considered opinion is that mysterious decisions... cannot be in furtherance of the donated sovereign powers that vest in the people because such mysterious decisions are opaque decisions that belong to the murky world and not a civilised democratic Republic like ours.”
103. In N
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