Introduction
1. The Petition dated 12 th August 2022 is supported by the 2 nd Petitioner’s affidavit in support of similar date and a further affidavit sworn on 20 th May 2025.
2. The core of the Petition is that the Respondents ousted the 2 nd Petitioner from BNI Kenya – Mavuno Chapter , without observing her right to fair administrative action under Articles 47 of the Constitution as read with the Fair Administrative Action Act. The Petitioners averred that the Respondents’ actions violated Articles 19, 20, 27, 36, 47, and 259 of the Constitution.
3. Consequently, the Petitioners seek the following reliefs against the Respondents:
i. A declaration that to the extent that the action by the 1 st and 2 nd Respondents on 3 rd August 2022, expelling and/or removing the Petitioners from their membership in the 1 st Respondent is discriminatory on the Petitioners, and that Articles 19, 20, 27, 36, 47, and 259 of the Constitution have been contravened, and the said action is therefore null and void, ab initio.
ii. A declaration be issued that any arbitrary expulsion and/or removal of the Petitioners from their membership in the 1 st Respondent without considerations of due process and all the tenets of natural justice is a violation of Article 27 and 47 of the Constitution, therefore, null and void ab initio.
iii. A declaration be issued that any arbitrary expulsion of the Petitioners from the BNI Global Connect Application without considerations of due process and all the tenets of natural justice is a violation of Article 27 and 47 of the Constitution, therefore, null and void ab initio.
iv. An order quashing the purported expulsion and/or removal of the Petitioners from the membership of the 1 st Respondent and reinstating them to the membership to the 1 st Respondent.
v. An order of Mandamus be issued directing the Respondents and the 1 st to 7 th Interested Parties to reinstate the Petitioner to the Mavuno Chapter of BNI Kenya.
vi. An order of Prohibition be issued directing the 1 st to 7 th Interested Parties from opening the Petitioner's classification in the Mavuno Chapter of BNI Kenya.
vii. An Order directing the 3 rd Respondent to investigate the actions of the 2 nd Respondent with a view to taking appropriate disciplinary action for violating various Articles of the Constitution.
viii. An Order of compensation based on general and exemplary damages for violation of the Petitioners' fundamental rights and freedoms.
ix. Costs for the suit.
Petitioners’ Case
4. For context, the 2 nd Petitioner avers that BNI is a private members’ organization and the largest business networking organization globally. She states that the 1 st Respondent is the franchise owner or BNI for the Kenyan region. She depones that membership is granted upon vetting by a local BNI Chapter to ascertain eligibility, after which successful applicants are required to pay membership and annual subscription fees. Upon induction, members gain access to various resources aimed at fostering business relationships. She further states that each local chapter is overseen by a National Director, such as the 2 nd Respondent herein.
5. The 2 nd Petitioner avers that the 1 st Petitioner joined BNI Kenya in 2012 following successful vetting by the 2 nd Respondent’s predecessor, BNI East Africa Ltd. Thereafter, she joined the Mavuno Chapter and consistently renewed her membership. She claims that over a period of ten years, she demonstrated exemplary leadership, emerged as a top-performing member, and earned recognition as the ‘queen of networking’ .`
6. She further depones that in 2021, she joined an informal group comprising BNI members, with the aim of mentorship, enhancing networking relationships, and promoting members’ businesses. She notes that the said group, later known as Kenya Synergies , was unregistered and did not require any membership or subscription fees.
7. It is her case that in or about March 2022 , the 2 nd Respondent accused her of founding the said group and on that basis, asserted that she ought to exit BNI. She avers that this issue was discussed at a meeting convened by the 2 nd Respondent on 22 nd March 2022 , involving members of the Kenya Synergies group and other BNI members , but that the meeting concluded without any resolution.
8. The 2 nd Petitioner depones that in July 2022, the Membership Committee of the Mavuno Chapter notified her that her membership renewal was due in August 2022. She stresses that this indicated that she was up for renewal without any disciplinary issues. In compliance, she paid the requisite annual subscription fee with the expectation of continued membership for a further twelve months. However, she avers that on 3 rd August 2022 , and without being afforded a hearing, she was informed that the 1 st Respondent would not accept her renewal and that her membership had been discontinued.
9. She asserts that no reasons were provided for the said decision at the time and that she was, on the same day, removed from the BNI Global Connect application . She further depones that on 8 th August 2022, she received a refund of her membership fees of Kshs. 63,800 together with correspondence signed by the 2 nd Respondent outlining the reasons for the discontinuation, purportedly in accordance with BNI Policies, Guidelines and Administrative Policies .
10. Aggrieved by the said decision, the 2 nd Petitioner avers that on 11 th August 2022, she reached out to one Bijay Shah, the National Director for Qatar, Kenya, and Uganda. She states that in his response dated 12 th August 2022, he declined to intervene in the matter.
11. It is the 2 nd Petitioner’s case that the manner in which her membership was discontinued violated her right to fair administrative action as guaranteed under Article 47 of the Constitution and as read together with Sections 4 and 7 of the Fair Administrative Action Act. She further contends that the decision was unreasonable and in breach of her legitimate expectation, having complied with all renewal requirements.
12. Additionally, she argues that the 2 nd Respondent in addition to acting in bad faith, acted ultra vires by usurping the mandate of the Interested Parties who were the Membership Committee at the time and that his actions were arbitrary and undertaken without due process. She further asserts that the Respondents’ actions infringed on her rights to association, as well as her economic and social rights.
13. The 2 nd Petitioner further decries that, as a result of her discontinuation from BNI, she has suffered loss of valuable networks and contacts previously accessible through the BNI Global Connect platform. She avers that this has resulted in a quantifiable loss of approximately 30% of her gross income, which she states aligns with BNI’s indication of the average income derived from participation in the network. In a nutshell, the 2 nd Petitioner contends that the expulsion was discriminatory, procedurally unfair, ultra vires and in violation of their constitutional rights.
1 st and 2 nd Respondents’ Case
14. Opposing the Petition, the Respondents filed grounds of opposition dated 6 th March 2024 on the premise that:
i. Prayer 2 of the same is incapable of taking effect as the Respondents have no capacity to "reinstate" the 2 nd Petitioner as she was not removed from Mavuno Chapter of BNI, but failed to renew her membership.
ii. The Interested Parties term as members of the Membership Committee of Mavuno Chapter lapsed on 30 th September, 2022 and the Application has clearly been overtaken by events.
iii. The 2 nd Petitioner having refused to renew her membership, any restraining order would be an act in futility.
15. Further, the Respondents through the 2 nd Respondent filed a Replying Affidavit sworn on 11 th April 2025.
16. At the outset, he contends that no evidence has been adduced to demonstrate that the 2 nd Petitioner was granted authority by the 1 st Petitioner. He further asserts that no explanation has been provided as to why he has been sued in his personal capacity, to the exclusion of the other two directors of the 1 st Respondent.
17. He points out that the 2 nd Petitioner admits that BNI is a private members organization hence inclusion of the 1 st Petitioner and 1 st Respondent in this suit, is malicious, incompetent and an abuse of the Court process. He argues as well that the 2 nd Petitioner lacks locus standi and her affidavit contains falsehoods.
18. In essence, he depones that the 2 nd Petitioner’s membership was not discontinued as alleged but instead expired on 31 st July 2022 .He denies equally, having any part in the 2 nd Petitioner’s exit from BNI. He notes that the 2 nd Petitioner failed to renew her membership by lodging her application to the Membership Committee. He claims that the 2 nd Petitioner informed the 3 rd Interested Party through a text message that she had outgrown BNI.
19. It is his position that the Petition, in its entirety, is malicious and comprises unsubstantiated allegations. He notes that since 2008, members have exited BNI without acrimony, unlike the circumstances presented in this Petition. He further avers that, at present, only the 2 nd , 5 th , and 6 th Interested Parties remain members of BNI.
Interested Parties’ Case
20. The Interested Parties’ response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Parties’ Submissions
Petitioners’ Submissions
21. In the submissions dated 22 nd May 2025, the Petitioners’ advocate Kamuti Waweru and Company Advocates underscored the issues for discussion as: whether the termination of the 2 nd Petitioner’ membership was unlawful, unprocedural and ultra vires, whether the Petitioners were afforded a fair administrative action, whether the Respondents violated the Petitioners' constitutional rights under Articles 27, 36, and 46 of the Constitution and whether the Petitioners are entitled to the reliefs sought .
22. On the first issue, Counsel answered in the affirmative. Counsel underscored that the Petitioners submitted their renewal application within the specified time as affirmed by the Mavuno Membership Committee communication that the 2 nd Petitioner was up for renewal without any disciplinary issue. Counsel contended that the Respondents communication rejecting her renewal based on its franchisees’ right to discontinue any member under Clause 7 of BNI’s Administrative Policies was done in contravention of the policies. Counsel emphasized that this clause cannot be used arbitrary and without due process to remove a member in an illegal manner as that would violate Articles 2, 19, 20, 24, and 47 of the Constitution. Additionally, it was submitted that the decision was ultra vires as it was a preserve of the Mavuno Membership Committee.
23. Counsel submitted that the claim that the 2 nd Petitioner had not applied for renewal are baseless since after her unlawful removal from the system, it is only the Respondents who have access to the information she submitted therein. Counsel submitted that under Section 107 and 108 of the Evidence Act, the burden of adducing evidence to show that she never filed a renewal application form is on the Respondents as it is done via their system. Counsel reasoned that the 2 nd Petitioner had made payment which logically demonstrates that she was paying for an application that had been tendered. According to Counsel it is obvious that the 2 nd Petitioner’s discontinuation was based on unfounded grounds, ulterior motives and was made in bad faith.
24. To buttress this point reliance was placed in Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014] eKLR where it was held that:
“68.It must be obvious by now that not only do we find that we have jurisdiction to entertain the dispute before us, but that we consider the fact that the 1st respondent is a private members club to be of limited relevance to the issues at hand. The respondents cannot be allowed to wave a private entity card to bar this Court, when properly moved, from assuming jurisdiction where there are allegations of breach of fundamental rights and freedoms by its members or any other person. It cannot be safe, in a progressive democratic society, to arrive at a finding that allows private entities to hide behind the cloak of ‘privacy’ to escape constitutional accountability. We think that it would be to accord a narrow, constricted interpretation to our Supreme Law, contrary to the canons of constitutional interpretation that have for ages infused our judicial system and which now find constitutional sanction under Article 259 to accede to such a proposition.
To accede to the respondents’, proposition that private entities are insulated from the constitutional duty to respect and uphold fundamental rights, to hold that private entities are completely shrouded by their private cloak from this Court’s scrutiny is we believe, to reverse the intention of the framers of the Constitution. It is to strip individual Kenyans of the very constitutional protection that the Constitution of Kenya 2010 meant to jealously guard and leave them exposed and vulnerable in private dealings. This would effectively render the constitutional protections of little or no practical value to the very persons designed to enjoy its protections and would, in our view, amount to abdication of this Court’s primary responsibility conferred upon it by the people of Kenya.”
25. Comparable reliance was placed in Patel and Others vs Dhanji & others [1975] EACA 301 and James Willy Kingori v Chairman Extra Ordinary Meeting of Michimikuru Factory Ltd & 2 others; Maurice Kobia Dickson (Interested party) [2022] eKLR .
26. Turning to the second issue, Counsel underscored that the 2 nd Petitioner was summarily expelled from BNI without being given any reasoned explanation, a hearing or an opportunity to make representations, in contravention of her rights under Article 47 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act. Counsel submitted that the 2 nd Petitioner was not informed of any allegations against her, nor was she given a chance to respond prior to the rejection of her renewal. Moreover, Counsel noted that the decision was communicated directly by the 2 nd Respondent, without any reference to or decision from the Mavuno Membership Committee.
27. Reliance was placed in Kenya Human Rights Commission v. Non-Governmental Organizations Co-ordination Board [2018] eKLR where it was held that:
“ Administrative Actions that flow from statutes, must now meet the constitutional of legality, reasonableness, and procedural fairness. According a party a hearing before taking action against him is no longer discretionary. It is firmly entrenched in our Constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. These no longer have place in our constitutional dispensation.
This Court can only emphasize that it is no longer even a mere legal requirement but a constitutional one that a person is entitled to be heard and that the action to be taken should meet the constitutional test. Those taking administrative actions are bound by this constitutional decree failure of which renders their actions unconstitutional, null and void.”
28. Equal reliance was placed in Judicial Service Commission v. Mbalu Mutava & Another [2015] eKLR .
29. In addition to this, Counsel submitted that the Respondents actions violated the Petitioners’ rights under 27, 36, and 46 of the Constitution. According to Counsel, the 2 nd Petitioner was discriminated against since other members who had not adhered to the requirements, did not have their membership revoked. Equally no member of the unregistered group, Kenya Synergies was singled out for any disciplinary issue.
30. Counsel submitted that the 2 nd Petitioner was being punished for associating and participating in Kenya Synergies which amounts to an unjustified infringement of her right under Article 36(2) of the Constitution, which bars compulsion to join any association or penalization for association choices. On the other hand, discontinuing her membership equally denied her a right to associate with the members.
31. Furthermore, Counsel submitted that the Petitioners, having paid membership renewal fees, were entitled to full enjoyment of the associated benefits or at minimum, a justifiable and fair process in termination. As such, the Respondents’ failure to provide notice or reasons for expulsion was argued to amount to a violation of their consumer protection rights under Article 46 and Section 3 of the Consumer Protection Act.
32. In view of the foregoing, Counsel submitted that undeniably the Petitioner is entitled to the relief sought owing to the arbitrary removal without due process, hearing, or legitimate justification in breach of her constitutional rights. Reliance was placed in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR , where the Court of Appeal acknowledged that declaratory reliefs act as a formal recognition of rights violations and are key to constitutional enforcement.
33. Additional reliance was placed in Kenya National Examinations Council v. Republic Ex Parte Geoffrey Gathenji Njoroge & Others [1997] eKLR, Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR and Koigi Wamwere v. Attorney General [2015] eKLR .
Respondents’ Submissions
34. The Respondents through Njeru, Nyaga and Company Advocates filed submissions dated 17 th September 2025. The issues for discussion were set out as: whether the 2 nd Petitioner failed to apply for the renewal of her membership, whether the Petition is justiciable as it violates the doctrine of exhaustion, whether the 2 nd Petitioner's supporting affidavit ought to be admitted and whether the Petition is malicious .
35. On the first issue, Counsel submitted that Clause 2 of the BNI Membership Committee Manual outlines the procedures and guidelines governing the renewal of membership. Essentially it entails submission of an application for renewal and payment of the requisite renewal fee. Counsel recapped that the 2 nd Petitioner’s membership expired on 31 st July 2022 yet she failed to comply with the established renewal process by submitting her application within the prescribed time. Counsel pointed out that the 2 nd Petitioner only averred to having made the payment on 2 nd August 2022 but no application was stated to have been made. Moreover, Counsel noted that the payment was made after the expiration of her membership hence violating the 30 day renewal window as prescribed in the policy. As such, Counsel argued that the equitable maxim he who comes to equity must come with clean hands applies in this case.
36. Counsel argued that the 2 nd Petitioner’s conduct demonstrates non-compliance with the mandatory guidelines which therefore bars her from seeking a declaration of rights. Furthermore, Counsel argued that the doctrine of estoppel bars the 2 nd Petitioner from claiming that her membership was unlawfully terminated being that she had communicated to the 3 rd Interested Party that she had outgrown BNI.
37. Reliance was placed in Ali v Nyang’ao [2024] KEHC 8319 (KLR) where it was held that:
“I must reiterate that this Court is is a court of equity and that he who comes to equity must come with clean hands. In Caliph Properties Limited v Barbel Sharma & another[2015]eKLR , the Court stated that he that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies.... He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity."
38. Like dependence was placed in Seascapes Limited v Development Finance Company of Kenya Limited [2009] eKLR .
39. On the second issue, Counsel submitted that the Petitioners had prematurely invoked this Court’s jurisdiction before exhausting the internal dispute resolution mechanisms provided in the BNI organization. Counsel pointed out that according to its policies a member who is dissatisfied with the decision of the Membership Committee is to refer the dispute to arbitration, which was not done by the 2 nd Petitioner.
40. To buttress this point reliance was placed in Mwasighwa & 55 others v Mbulia Community Land & 3 others [2024] KEELC 5866 (KLR) where the Court held that:
“The court’s jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute before approaching the court. Parties cannot veer off, waive or forfeit these dispute resolution mechanisms as they do not exist in vain. The Court cannot close its eye and overlook the undisputed fact that the dispute should be considered through the provided mechanisms in the first instance. The mere fact· that a party pleads constitutional violation doesn't automatically imply that the Court should proceed and determine the Petition as· it is in the first instance since the doctrine of exhaustion spells otherwise. The Petitioners cannot take advantage of the court's constitutional jurisdiction over the matter herein without applying the doctrine of exhaustion and adhered to the guiding principles therein."
41. Comparable reliance was placed in Geoffrey Muthinja & another vs Samuel Muguna Henry & 1756 Others [2015]eKLR .
42. Moving on, Counsel submitted that where a Petitioner is a corporate body, Order 4, Rule 1(4) of the Civil Procedure (Amendment) Rules, 2020, provides that the affidavit must be sworn by an officer of the company who has been duly authorized under the seal of the company. Counsel submitted that the 2 nd Petitioner in submitting her affidavit had failed to attach a written authority with the company seal to support this assertion. Equally, it is observed that she did not provide written consent from the other 1 st Petitioner’s directors. Counsel stressed that this omission is not merely procedural but goes to the validity of the Petition.
43. Dependence was placed in Spire Bank Limited v Land Registrar & 2 others [2019] KECA 530 (KLR) where it was held that:
“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.”
44. Finally, Counsel submitted that the Petition is malicious, since the Petitioners have not set out any specific allegations or cause of action against the 2 nd Respondent. Counsel postulated that the entirety of the Petition focuses on the 1 st Respondent as the Director of BNI. On this basis, Counsel argued that the 2 nd Respondent was improperly and unnecessarily joined to these proceedings, without any factual or legal basis hence rendering his inclusion malicious, vexatious and an abuse of court process.
Analysis and Determination
45. That said, it is my considered view that the issues that arise for determination in this matter are:
i. Whether the Petition offends the doctrine of exhaustion of remedies
ii. Whether the Petitioner’s termination of the membership with the 1 st Respondent was as a result of arbitrary and unprocedural removal or whether it was occasioned by refusal or neglect to renew the membership and pay subscription fees with the fixed deadline.
iii. Whether the Petitioner’s removal violated her constitutional rights particularly, the right to fair administrative action under Article 47 as read with the Fair Administrative Action Act and, the rights under Articles 27, 36, 46 of the Constitution.
iv. Whether the Petitioners are entitled to the relief sought.
Whether the Petition offends the doctrine of exhaustion of remedies
46. The Respondents objected to this Petition by stating this Court lacks the jurisdiction to entertain this dispute as constitutional matter. They argued that this is purely a commercial dispute which ought to have been settled under the policy pertaining to resolution of disputes involving members of the 1 st Respondent which was by referring the dispute to arbitration.
47. This issue was however addressed in the Ruling by Lady Justice Thande in a ruling delivered on 7/10/2022 hence this issue is no longer available for further consideration by this Court. I now proceed to the next issue.
Whether the Petitioner’s termination of the membership with the 1 st Respondent was as a result of arbitrary and unprocedural removal or whether it was occasioned by refusal or neglect to renew the membership and pay subscription fees with the fixed deadline.
48. This is essentially a question of evidence. The Petitioner stated that she was informed by the Mavuno Chapter Membership Committee that that the renewal of her membership was due in July, 2022 and on 2 nd August, she paid the requisite subscription fees. On 3/8/22 she was informed that the Respondent could not accept theher renewal and her membership was deactivated with no reasons or explanation provided. In the submissions by the Petitioner’s Advocate, Counsel submitted that the allegation that the Petitioner had not renewed her membership is baseless because it is only the Respondent who had access to the system and information submitted hence the bore the burden of proof show the renewal application was not submitted by the Petitioner fell on the Respondent.
49. The 1 st and 2 nd Respondent denied that the Petitioner was expelled from the 1 st Respondent and insisted that she was only removed after she failed to submit her renewal application and payment before the Membership Committee by 31/7/2022, hence surpassing the mandatory renewal period window. That further, she wrote to the 3 rd Interested Party a text message indicating that she had outgrown BNI-Kenya. Counsel for the Respondent submitted that the Petitioner made payment on 2/8/22 (past the required 30-day window) which was also unaccompanied with the renewal application hence her membership had terminated for not complying with the laid down policy.
50. The Petitioner did not controvert the fact as deponed by the Respondent that the mandatory renewal 30 day window was up to 31/7/2022. In fact, she confirms that the membership committee of Mavuno Chapter had reminded her about renewing her membership in the month of July, 2022. That notwithstanding, she made payment on 2/8/22, well past the deadline.
51. Further, I find it untenable for the Petitioner’s Counsel to argue that it is the Respondent to demonstrate that the Petitioner did not submit the renewal application. That is reversing the burden of proof. It is the Petitioner who asserted as a fact that she submitted the Application. It was therefore her duty to proof this fact. Section 107 (1) of the Evidence Act provides:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”
52. The Petitioner cannot plead an affirmative fact, which, after it is denied by the Respondent, she shifts and demands that the Respondent should proves the negative. It is thus the finding of this Court that despite the assertion by the Petitioner she submitted her renewal application, no form of record in terms of evidence was tendered to substantiate that fact.
53. The Petitioner has thus failed to prove that the termination of the membership with BNI -Kenya was arbitrary. Instead, the termination was as a result of her failure to comply with the rules of set by BNI-Kenya where she was a member. A member of an association has to comply with its rules or face the sanctions. It is not unconstitutional for the organization to strictly enforce the rules of membership by demanding renewal by a particular date or face the sanction. In this case, the petitioner had even stated that she had been notified by the Mavuno Chapter Committee that her membership renewal was due in July, 2022. She failed to comply within the renewal period deadline and made payment past the required date. Such a termination cannot be termed arbitrary.
54. Consequently, I find that the Petition lacks merit and is hereby dismissed with costs to the Respondents.
Dated, signed and delivered virtually at Nairobi this 14th day of May, 2026.
………………………………………………
L N MUGAMBI
JUDGE
Judgment
Before Hon.L.N., Mugambi J.
Court Assistant – Daisy
Mr. Mwiti for petitioner.
M/s Kimathi for 1 st and 2 nd Respondent and 1 st and 3 rd Interested Party and 5 th to 7 th Interested parties.
COURT: Judgment read virtually in presence of above counsel.
………………………………………………
L N MUGAMBI
JUDGE
Constitutional Petition No. E412 of 2022Judgment P
[...truncated]
1. The Petition dated 12 th August 2022 is supported by the 2 nd Petitioner’s affidavit in support of similar date and a further affidavit sworn on 20 th May 2025.
2. The core of the Petition is that the Respondents ousted the 2 nd Petitioner from BNI Kenya – Mavuno Chapter , without observing her right to fair administrative action under Articles 47 of the Constitution as read with the Fair Administrative Action Act. The Petitioners averred that the Respondents’ actions violated Articles 19, 20, 27, 36, 47, and 259 of the Constitution.
3. Consequently, the Petitioners seek the following reliefs against the Respondents:
i. A declaration that to the extent that the action by the 1 st and 2 nd Respondents on 3 rd August 2022, expelling and/or removing the Petitioners from their membership in the 1 st Respondent is discriminatory on the Petitioners, and that Articles 19, 20, 27, 36, 47, and 259 of the Constitution have been contravened, and the said action is therefore null and void, ab initio.
ii. A declaration be issued that any arbitrary expulsion and/or removal of the Petitioners from their membership in the 1 st Respondent without considerations of due process and all the tenets of natural justice is a violation of Article 27 and 47 of the Constitution, therefore, null and void ab initio.
iii. A declaration be issued that any arbitrary expulsion of the Petitioners from the BNI Global Connect Application without considerations of due process and all the tenets of natural justice is a violation of Article 27 and 47 of the Constitution, therefore, null and void ab initio.
iv. An order quashing the purported expulsion and/or removal of the Petitioners from the membership of the 1 st Respondent and reinstating them to the membership to the 1 st Respondent.
v. An order of Mandamus be issued directing the Respondents and the 1 st to 7 th Interested Parties to reinstate the Petitioner to the Mavuno Chapter of BNI Kenya.
vi. An order of Prohibition be issued directing the 1 st to 7 th Interested Parties from opening the Petitioner's classification in the Mavuno Chapter of BNI Kenya.
vii. An Order directing the 3 rd Respondent to investigate the actions of the 2 nd Respondent with a view to taking appropriate disciplinary action for violating various Articles of the Constitution.
viii. An Order of compensation based on general and exemplary damages for violation of the Petitioners' fundamental rights and freedoms.
ix. Costs for the suit.
Petitioners’ Case
4. For context, the 2 nd Petitioner avers that BNI is a private members’ organization and the largest business networking organization globally. She states that the 1 st Respondent is the franchise owner or BNI for the Kenyan region. She depones that membership is granted upon vetting by a local BNI Chapter to ascertain eligibility, after which successful applicants are required to pay membership and annual subscription fees. Upon induction, members gain access to various resources aimed at fostering business relationships. She further states that each local chapter is overseen by a National Director, such as the 2 nd Respondent herein.
5. The 2 nd Petitioner avers that the 1 st Petitioner joined BNI Kenya in 2012 following successful vetting by the 2 nd Respondent’s predecessor, BNI East Africa Ltd. Thereafter, she joined the Mavuno Chapter and consistently renewed her membership. She claims that over a period of ten years, she demonstrated exemplary leadership, emerged as a top-performing member, and earned recognition as the ‘queen of networking’ .`
6. She further depones that in 2021, she joined an informal group comprising BNI members, with the aim of mentorship, enhancing networking relationships, and promoting members’ businesses. She notes that the said group, later known as Kenya Synergies , was unregistered and did not require any membership or subscription fees.
7. It is her case that in or about March 2022 , the 2 nd Respondent accused her of founding the said group and on that basis, asserted that she ought to exit BNI. She avers that this issue was discussed at a meeting convened by the 2 nd Respondent on 22 nd March 2022 , involving members of the Kenya Synergies group and other BNI members , but that the meeting concluded without any resolution.
8. The 2 nd Petitioner depones that in July 2022, the Membership Committee of the Mavuno Chapter notified her that her membership renewal was due in August 2022. She stresses that this indicated that she was up for renewal without any disciplinary issues. In compliance, she paid the requisite annual subscription fee with the expectation of continued membership for a further twelve months. However, she avers that on 3 rd August 2022 , and without being afforded a hearing, she was informed that the 1 st Respondent would not accept her renewal and that her membership had been discontinued.
9. She asserts that no reasons were provided for the said decision at the time and that she was, on the same day, removed from the BNI Global Connect application . She further depones that on 8 th August 2022, she received a refund of her membership fees of Kshs. 63,800 together with correspondence signed by the 2 nd Respondent outlining the reasons for the discontinuation, purportedly in accordance with BNI Policies, Guidelines and Administrative Policies .
10. Aggrieved by the said decision, the 2 nd Petitioner avers that on 11 th August 2022, she reached out to one Bijay Shah, the National Director for Qatar, Kenya, and Uganda. She states that in his response dated 12 th August 2022, he declined to intervene in the matter.
11. It is the 2 nd Petitioner’s case that the manner in which her membership was discontinued violated her right to fair administrative action as guaranteed under Article 47 of the Constitution and as read together with Sections 4 and 7 of the Fair Administrative Action Act. She further contends that the decision was unreasonable and in breach of her legitimate expectation, having complied with all renewal requirements.
12. Additionally, she argues that the 2 nd Respondent in addition to acting in bad faith, acted ultra vires by usurping the mandate of the Interested Parties who were the Membership Committee at the time and that his actions were arbitrary and undertaken without due process. She further asserts that the Respondents’ actions infringed on her rights to association, as well as her economic and social rights.
13. The 2 nd Petitioner further decries that, as a result of her discontinuation from BNI, she has suffered loss of valuable networks and contacts previously accessible through the BNI Global Connect platform. She avers that this has resulted in a quantifiable loss of approximately 30% of her gross income, which she states aligns with BNI’s indication of the average income derived from participation in the network. In a nutshell, the 2 nd Petitioner contends that the expulsion was discriminatory, procedurally unfair, ultra vires and in violation of their constitutional rights.
1 st and 2 nd Respondents’ Case
14. Opposing the Petition, the Respondents filed grounds of opposition dated 6 th March 2024 on the premise that:
i. Prayer 2 of the same is incapable of taking effect as the Respondents have no capacity to "reinstate" the 2 nd Petitioner as she was not removed from Mavuno Chapter of BNI, but failed to renew her membership.
ii. The Interested Parties term as members of the Membership Committee of Mavuno Chapter lapsed on 30 th September, 2022 and the Application has clearly been overtaken by events.
iii. The 2 nd Petitioner having refused to renew her membership, any restraining order would be an act in futility.
15. Further, the Respondents through the 2 nd Respondent filed a Replying Affidavit sworn on 11 th April 2025.
16. At the outset, he contends that no evidence has been adduced to demonstrate that the 2 nd Petitioner was granted authority by the 1 st Petitioner. He further asserts that no explanation has been provided as to why he has been sued in his personal capacity, to the exclusion of the other two directors of the 1 st Respondent.
17. He points out that the 2 nd Petitioner admits that BNI is a private members organization hence inclusion of the 1 st Petitioner and 1 st Respondent in this suit, is malicious, incompetent and an abuse of the Court process. He argues as well that the 2 nd Petitioner lacks locus standi and her affidavit contains falsehoods.
18. In essence, he depones that the 2 nd Petitioner’s membership was not discontinued as alleged but instead expired on 31 st July 2022 .He denies equally, having any part in the 2 nd Petitioner’s exit from BNI. He notes that the 2 nd Petitioner failed to renew her membership by lodging her application to the Membership Committee. He claims that the 2 nd Petitioner informed the 3 rd Interested Party through a text message that she had outgrown BNI.
19. It is his position that the Petition, in its entirety, is malicious and comprises unsubstantiated allegations. He notes that since 2008, members have exited BNI without acrimony, unlike the circumstances presented in this Petition. He further avers that, at present, only the 2 nd , 5 th , and 6 th Interested Parties remain members of BNI.
Interested Parties’ Case
20. The Interested Parties’ response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Parties’ Submissions
Petitioners’ Submissions
21. In the submissions dated 22 nd May 2025, the Petitioners’ advocate Kamuti Waweru and Company Advocates underscored the issues for discussion as: whether the termination of the 2 nd Petitioner’ membership was unlawful, unprocedural and ultra vires, whether the Petitioners were afforded a fair administrative action, whether the Respondents violated the Petitioners' constitutional rights under Articles 27, 36, and 46 of the Constitution and whether the Petitioners are entitled to the reliefs sought .
22. On the first issue, Counsel answered in the affirmative. Counsel underscored that the Petitioners submitted their renewal application within the specified time as affirmed by the Mavuno Membership Committee communication that the 2 nd Petitioner was up for renewal without any disciplinary issue. Counsel contended that the Respondents communication rejecting her renewal based on its franchisees’ right to discontinue any member under Clause 7 of BNI’s Administrative Policies was done in contravention of the policies. Counsel emphasized that this clause cannot be used arbitrary and without due process to remove a member in an illegal manner as that would violate Articles 2, 19, 20, 24, and 47 of the Constitution. Additionally, it was submitted that the decision was ultra vires as it was a preserve of the Mavuno Membership Committee.
23. Counsel submitted that the claim that the 2 nd Petitioner had not applied for renewal are baseless since after her unlawful removal from the system, it is only the Respondents who have access to the information she submitted therein. Counsel submitted that under Section 107 and 108 of the Evidence Act, the burden of adducing evidence to show that she never filed a renewal application form is on the Respondents as it is done via their system. Counsel reasoned that the 2 nd Petitioner had made payment which logically demonstrates that she was paying for an application that had been tendered. According to Counsel it is obvious that the 2 nd Petitioner’s discontinuation was based on unfounded grounds, ulterior motives and was made in bad faith.
24. To buttress this point reliance was placed in Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014] eKLR where it was held that:
“68.It must be obvious by now that not only do we find that we have jurisdiction to entertain the dispute before us, but that we consider the fact that the 1st respondent is a private members club to be of limited relevance to the issues at hand. The respondents cannot be allowed to wave a private entity card to bar this Court, when properly moved, from assuming jurisdiction where there are allegations of breach of fundamental rights and freedoms by its members or any other person. It cannot be safe, in a progressive democratic society, to arrive at a finding that allows private entities to hide behind the cloak of ‘privacy’ to escape constitutional accountability. We think that it would be to accord a narrow, constricted interpretation to our Supreme Law, contrary to the canons of constitutional interpretation that have for ages infused our judicial system and which now find constitutional sanction under Article 259 to accede to such a proposition.
To accede to the respondents’, proposition that private entities are insulated from the constitutional duty to respect and uphold fundamental rights, to hold that private entities are completely shrouded by their private cloak from this Court’s scrutiny is we believe, to reverse the intention of the framers of the Constitution. It is to strip individual Kenyans of the very constitutional protection that the Constitution of Kenya 2010 meant to jealously guard and leave them exposed and vulnerable in private dealings. This would effectively render the constitutional protections of little or no practical value to the very persons designed to enjoy its protections and would, in our view, amount to abdication of this Court’s primary responsibility conferred upon it by the people of Kenya.”
25. Comparable reliance was placed in Patel and Others vs Dhanji & others [1975] EACA 301 and James Willy Kingori v Chairman Extra Ordinary Meeting of Michimikuru Factory Ltd & 2 others; Maurice Kobia Dickson (Interested party) [2022] eKLR .
26. Turning to the second issue, Counsel underscored that the 2 nd Petitioner was summarily expelled from BNI without being given any reasoned explanation, a hearing or an opportunity to make representations, in contravention of her rights under Article 47 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act. Counsel submitted that the 2 nd Petitioner was not informed of any allegations against her, nor was she given a chance to respond prior to the rejection of her renewal. Moreover, Counsel noted that the decision was communicated directly by the 2 nd Respondent, without any reference to or decision from the Mavuno Membership Committee.
27. Reliance was placed in Kenya Human Rights Commission v. Non-Governmental Organizations Co-ordination Board [2018] eKLR where it was held that:
“ Administrative Actions that flow from statutes, must now meet the constitutional of legality, reasonableness, and procedural fairness. According a party a hearing before taking action against him is no longer discretionary. It is firmly entrenched in our Constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. These no longer have place in our constitutional dispensation.
This Court can only emphasize that it is no longer even a mere legal requirement but a constitutional one that a person is entitled to be heard and that the action to be taken should meet the constitutional test. Those taking administrative actions are bound by this constitutional decree failure of which renders their actions unconstitutional, null and void.”
28. Equal reliance was placed in Judicial Service Commission v. Mbalu Mutava & Another [2015] eKLR .
29. In addition to this, Counsel submitted that the Respondents actions violated the Petitioners’ rights under 27, 36, and 46 of the Constitution. According to Counsel, the 2 nd Petitioner was discriminated against since other members who had not adhered to the requirements, did not have their membership revoked. Equally no member of the unregistered group, Kenya Synergies was singled out for any disciplinary issue.
30. Counsel submitted that the 2 nd Petitioner was being punished for associating and participating in Kenya Synergies which amounts to an unjustified infringement of her right under Article 36(2) of the Constitution, which bars compulsion to join any association or penalization for association choices. On the other hand, discontinuing her membership equally denied her a right to associate with the members.
31. Furthermore, Counsel submitted that the Petitioners, having paid membership renewal fees, were entitled to full enjoyment of the associated benefits or at minimum, a justifiable and fair process in termination. As such, the Respondents’ failure to provide notice or reasons for expulsion was argued to amount to a violation of their consumer protection rights under Article 46 and Section 3 of the Consumer Protection Act.
32. In view of the foregoing, Counsel submitted that undeniably the Petitioner is entitled to the relief sought owing to the arbitrary removal without due process, hearing, or legitimate justification in breach of her constitutional rights. Reliance was placed in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR , where the Court of Appeal acknowledged that declaratory reliefs act as a formal recognition of rights violations and are key to constitutional enforcement.
33. Additional reliance was placed in Kenya National Examinations Council v. Republic Ex Parte Geoffrey Gathenji Njoroge & Others [1997] eKLR, Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR and Koigi Wamwere v. Attorney General [2015] eKLR .
Respondents’ Submissions
34. The Respondents through Njeru, Nyaga and Company Advocates filed submissions dated 17 th September 2025. The issues for discussion were set out as: whether the 2 nd Petitioner failed to apply for the renewal of her membership, whether the Petition is justiciable as it violates the doctrine of exhaustion, whether the 2 nd Petitioner's supporting affidavit ought to be admitted and whether the Petition is malicious .
35. On the first issue, Counsel submitted that Clause 2 of the BNI Membership Committee Manual outlines the procedures and guidelines governing the renewal of membership. Essentially it entails submission of an application for renewal and payment of the requisite renewal fee. Counsel recapped that the 2 nd Petitioner’s membership expired on 31 st July 2022 yet she failed to comply with the established renewal process by submitting her application within the prescribed time. Counsel pointed out that the 2 nd Petitioner only averred to having made the payment on 2 nd August 2022 but no application was stated to have been made. Moreover, Counsel noted that the payment was made after the expiration of her membership hence violating the 30 day renewal window as prescribed in the policy. As such, Counsel argued that the equitable maxim he who comes to equity must come with clean hands applies in this case.
36. Counsel argued that the 2 nd Petitioner’s conduct demonstrates non-compliance with the mandatory guidelines which therefore bars her from seeking a declaration of rights. Furthermore, Counsel argued that the doctrine of estoppel bars the 2 nd Petitioner from claiming that her membership was unlawfully terminated being that she had communicated to the 3 rd Interested Party that she had outgrown BNI.
37. Reliance was placed in Ali v Nyang’ao [2024] KEHC 8319 (KLR) where it was held that:
“I must reiterate that this Court is is a court of equity and that he who comes to equity must come with clean hands. In Caliph Properties Limited v Barbel Sharma & another[2015]eKLR , the Court stated that he that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies.... He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity."
38. Like dependence was placed in Seascapes Limited v Development Finance Company of Kenya Limited [2009] eKLR .
39. On the second issue, Counsel submitted that the Petitioners had prematurely invoked this Court’s jurisdiction before exhausting the internal dispute resolution mechanisms provided in the BNI organization. Counsel pointed out that according to its policies a member who is dissatisfied with the decision of the Membership Committee is to refer the dispute to arbitration, which was not done by the 2 nd Petitioner.
40. To buttress this point reliance was placed in Mwasighwa & 55 others v Mbulia Community Land & 3 others [2024] KEELC 5866 (KLR) where the Court held that:
“The court’s jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute before approaching the court. Parties cannot veer off, waive or forfeit these dispute resolution mechanisms as they do not exist in vain. The Court cannot close its eye and overlook the undisputed fact that the dispute should be considered through the provided mechanisms in the first instance. The mere fact· that a party pleads constitutional violation doesn't automatically imply that the Court should proceed and determine the Petition as· it is in the first instance since the doctrine of exhaustion spells otherwise. The Petitioners cannot take advantage of the court's constitutional jurisdiction over the matter herein without applying the doctrine of exhaustion and adhered to the guiding principles therein."
41. Comparable reliance was placed in Geoffrey Muthinja & another vs Samuel Muguna Henry & 1756 Others [2015]eKLR .
42. Moving on, Counsel submitted that where a Petitioner is a corporate body, Order 4, Rule 1(4) of the Civil Procedure (Amendment) Rules, 2020, provides that the affidavit must be sworn by an officer of the company who has been duly authorized under the seal of the company. Counsel submitted that the 2 nd Petitioner in submitting her affidavit had failed to attach a written authority with the company seal to support this assertion. Equally, it is observed that she did not provide written consent from the other 1 st Petitioner’s directors. Counsel stressed that this omission is not merely procedural but goes to the validity of the Petition.
43. Dependence was placed in Spire Bank Limited v Land Registrar & 2 others [2019] KECA 530 (KLR) where it was held that:
“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.”
44. Finally, Counsel submitted that the Petition is malicious, since the Petitioners have not set out any specific allegations or cause of action against the 2 nd Respondent. Counsel postulated that the entirety of the Petition focuses on the 1 st Respondent as the Director of BNI. On this basis, Counsel argued that the 2 nd Respondent was improperly and unnecessarily joined to these proceedings, without any factual or legal basis hence rendering his inclusion malicious, vexatious and an abuse of court process.
Analysis and Determination
45. That said, it is my considered view that the issues that arise for determination in this matter are:
i. Whether the Petition offends the doctrine of exhaustion of remedies
ii. Whether the Petitioner’s termination of the membership with the 1 st Respondent was as a result of arbitrary and unprocedural removal or whether it was occasioned by refusal or neglect to renew the membership and pay subscription fees with the fixed deadline.
iii. Whether the Petitioner’s removal violated her constitutional rights particularly, the right to fair administrative action under Article 47 as read with the Fair Administrative Action Act and, the rights under Articles 27, 36, 46 of the Constitution.
iv. Whether the Petitioners are entitled to the relief sought.
Whether the Petition offends the doctrine of exhaustion of remedies
46. The Respondents objected to this Petition by stating this Court lacks the jurisdiction to entertain this dispute as constitutional matter. They argued that this is purely a commercial dispute which ought to have been settled under the policy pertaining to resolution of disputes involving members of the 1 st Respondent which was by referring the dispute to arbitration.
47. This issue was however addressed in the Ruling by Lady Justice Thande in a ruling delivered on 7/10/2022 hence this issue is no longer available for further consideration by this Court. I now proceed to the next issue.
Whether the Petitioner’s termination of the membership with the 1 st Respondent was as a result of arbitrary and unprocedural removal or whether it was occasioned by refusal or neglect to renew the membership and pay subscription fees with the fixed deadline.
48. This is essentially a question of evidence. The Petitioner stated that she was informed by the Mavuno Chapter Membership Committee that that the renewal of her membership was due in July, 2022 and on 2 nd August, she paid the requisite subscription fees. On 3/8/22 she was informed that the Respondent could not accept theher renewal and her membership was deactivated with no reasons or explanation provided. In the submissions by the Petitioner’s Advocate, Counsel submitted that the allegation that the Petitioner had not renewed her membership is baseless because it is only the Respondent who had access to the system and information submitted hence the bore the burden of proof show the renewal application was not submitted by the Petitioner fell on the Respondent.
49. The 1 st and 2 nd Respondent denied that the Petitioner was expelled from the 1 st Respondent and insisted that she was only removed after she failed to submit her renewal application and payment before the Membership Committee by 31/7/2022, hence surpassing the mandatory renewal period window. That further, she wrote to the 3 rd Interested Party a text message indicating that she had outgrown BNI-Kenya. Counsel for the Respondent submitted that the Petitioner made payment on 2/8/22 (past the required 30-day window) which was also unaccompanied with the renewal application hence her membership had terminated for not complying with the laid down policy.
50. The Petitioner did not controvert the fact as deponed by the Respondent that the mandatory renewal 30 day window was up to 31/7/2022. In fact, she confirms that the membership committee of Mavuno Chapter had reminded her about renewing her membership in the month of July, 2022. That notwithstanding, she made payment on 2/8/22, well past the deadline.
51. Further, I find it untenable for the Petitioner’s Counsel to argue that it is the Respondent to demonstrate that the Petitioner did not submit the renewal application. That is reversing the burden of proof. It is the Petitioner who asserted as a fact that she submitted the Application. It was therefore her duty to proof this fact. Section 107 (1) of the Evidence Act provides:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”
52. The Petitioner cannot plead an affirmative fact, which, after it is denied by the Respondent, she shifts and demands that the Respondent should proves the negative. It is thus the finding of this Court that despite the assertion by the Petitioner she submitted her renewal application, no form of record in terms of evidence was tendered to substantiate that fact.
53. The Petitioner has thus failed to prove that the termination of the membership with BNI -Kenya was arbitrary. Instead, the termination was as a result of her failure to comply with the rules of set by BNI-Kenya where she was a member. A member of an association has to comply with its rules or face the sanctions. It is not unconstitutional for the organization to strictly enforce the rules of membership by demanding renewal by a particular date or face the sanction. In this case, the petitioner had even stated that she had been notified by the Mavuno Chapter Committee that her membership renewal was due in July, 2022. She failed to comply within the renewal period deadline and made payment past the required date. Such a termination cannot be termed arbitrary.
54. Consequently, I find that the Petition lacks merit and is hereby dismissed with costs to the Respondents.
Dated, signed and delivered virtually at Nairobi this 14th day of May, 2026.
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L N MUGAMBI
JUDGE
Judgment
Before Hon.L.N., Mugambi J.
Court Assistant – Daisy
Mr. Mwiti for petitioner.
M/s Kimathi for 1 st and 2 nd Respondent and 1 st and 3 rd Interested Party and 5 th to 7 th Interested parties.
COURT: Judgment read virtually in presence of above counsel.
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L N MUGAMBI
JUDGE
Constitutional Petition No. E412 of 2022Judgment P
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