Stephen Njoroge Ng'ang'a AND Collins Otieno Ajwang AND 1 Others VS Alfred Obuya Obengo AND Jacinta Moki

Collins Atieno Ajwang -Chairman   Suing on behalf of NNAK       in their respective capacities as officials of NNAK
Stephen Njoroge Nganga-Secretary
Marcellina Ndegwa- Treasurer
NATIONAL NURSES ASSOCIATION OF KENYA (NNAK)….The Petitioner

ALFRED OBUYA OBENGO………………….…. THE 1st RESPONDENT

JACINTA MOKI………………………………...…THE 2nd RESPONDENT

BACKGROUND

1. The Petition dated 21st February 2022 is presented on behalf of the Petitioner, the National Nurses Association of Kenya (NNAK) by 3 office bearers namely the Chairman, Secretary and the Treasurer. It is presented against Alfred Obuya Obengo ( Past Chairman of  NNAK) and Jacinta Moki ( Past Treasurer of NNAK) as 1st and 2nd Respondents respectively.
2. The bone of contention is that during the tenure of the 1st and 2nd Respondents as Officials of NNAK, being signatories to the account they were responsible for the loss of Kshs 400000 from the bank account of the Association. Efforts to recover the money or an account of how it was utilised have not borne fruit.
3. The Petitioner avers that the actions of the Respondents constitute a violation of constitutional provisions and a violation of their rights. The Petition alleges violation of Article 10, Article 40(1), Article 73(2) of the Constitution and Sections 45, 46 and 47 of the Anti-Corruption and Economic Crimes Act.
4. The Petition is supported by Affidavit sworn jointly by the 3 officials that annexes among other documents the Constitution of the Association and its Code of Conduct and Ethics.
5. The Petitioner seeks the following
a. A Declaration that the Respondents actions: particularly the 1st respondent’s unlawful, unauthorised and un-procedural withdrawal of the Petitioner’s assets in his control held  in Account Number 010201500220 with Sidian Bank (K) Limited  AND the 2nd Respondent’s failure to report the 1st Respondent’s unlawful actions; were in breach of trust placed upon them by the members of the Petitioner.
b. That as a result of such breach of trust; a declaration do issue that the Respondents are unfit to hold and /or vie for any elective post with the petitioner
c. An order directing the 1st Respondent to refund the entire sum of Kenya Shillings four hundred thousand shillings ( 400,000.00) he unlawfully siphoned from the petitioner for his personal benefit.
d. Costs of this suit, interest on ( c) from the date of filing of this suit until the day the sum is paid in full and any other award and punitive action the court may find deserving
6. The Petition is not contested by the Respondents.
7. The Petitioners elected to canvass the Petition through written submissions.
PRELIMINARY ISSUES FOR DETERMINATION
8. Upon perusing the Petition, the supporting affidavit and the submissions, I consider it necessary to first determine whether or not this court has jurisdiction to determine this Petition.
9. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:
‘the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.’
10. The locus classicus on the centrality of jurisdiction is Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1  in which Nyarangi J expressed himself as follows on the issue: -
‘Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…’
11. The Supreme Court of Kenya has pronounced as follows in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR
‘A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.  Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute.’

12. As Onguto J. held in Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others Nairobi HC Petition No. 453 of 2015 [2016] eKLR
25.The citadel of the power to determine disputes through the exercise of judicial authority and the capacity to commence action for such determination is based however on the rather universal concept or principle of justiciability. This concept has found much favour in most jurisdictions. It also gathers much support from the engraved supplementary doctrines of ripeness, avoidance and mootness.
26.By justiciability it is meant a matter “proper to be examined in courts of justice” or “a question as may properly come before a tribunal for decision”: see Black’s Law Dictionary 9th Ed,pp 943-944.In other words, courts should only decide matters that require to be decided. Thus, in Ashwander –v- Tennessee Valley Authority [1936] 297 U.S 288, the US Supreme Court stated that courts should only decide cases which invite “a real earnest and vital controversy”.
13. In this petition it is evident that this is essentially a dispute between members of an Association on the one hand and its former officials on the other. The Petitioners are seeking to recover funds that they argue were misappropriated by the Respondents.
14. The jurisdictional points that arise, are the doctrine of exhaustion and the doctrine of constitutional avoidance. Both may be a complete bar to the jurisdiction of a court.
15.  On the doctrine of exhaustion, in Geoffrey Muthiga Kabiru & 2 Others Vs Samuel Muga Henry & 1756 Others [2015]eKLR, the Court of Appeal stated;
‘It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.’
16. In William Odhiambo Ramogi & 3others v Attorney general & 4 Others; Muslims for Human Rights & 2 Others ( Interested Parties) [2020] eKLR the court clarified as follows
52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR.

17. The Constitution of the NNAK provides dispute resolution mechanisms that would apply in scenarios such as the current one. Article 22 of its Constitution provides
ARTICLE 22: PROFESSIONAL CONDUCT & DISCIPLINARY STANDING COMMITTEE
Pursuant to Article 7 (Suspension of membership) and 17 (Professional Conduct and Discipline) of the Constitution
Professional conduct and disciplinary Standing Committee shall comprise 5 members of high integrity, arbitration skills who shall serve for 2 years appointed by NEC (National Executive Council) from NEC Membership.
Can co-opt desirable expertise as per issue before hand in the event there are competency gaps
Receive and handle members’ ethical and disciplinary issues as well as dispute resolution mechanism channelled from the branches through existing association leadership.
18. From the Petition it is evident that the members of the Association have taken the step of voting the 2 Respondents out of office. It has not been demonstrated that efforts have been made to utilise the internal mechanisms of the Association to recover the money.
19. The other lens through which I will explore whether this court has the jurisdiction to entertain the Petition is the doctrine of constitutional avoidance which holds that where it is possible to decide a case without reaching a constitutional issue that should be done. This principle restricts a court from determining a constitutional issue when a matter may be properly decided on another basis.
20. This is illustrated in the judgement of Mativo J ( as he then was) in KKB V SCM Constitutional Petition 014 of 2020 [2022] eKLR
32. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved…
36. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause.

21. In that matter the court dismissed the Petition on finding that the key grievance was whether there was a valid marriage. It deplored the practice of constitutionalising every dispute.
22. Similarly in the current Petition the parties seek to recover money that was misappropriated by its officials. The Court must squint to decipher the Constitutional issue and its view is obstructed for the reason that this is a matter that there exists another legal course that can give the litigant the relief he seeks.
Conclusion
23. The upshot of the foregoing is that the Petition is dismissed with no order as to costs.
24. It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY THIS……10th……  DAY OF ……February…………… 2023.

P M NYAUNDI
JUDGE

IN THE PRESENCE OF:-
Muiruri for Petitioner
Lucy Mwangi Court Assistant