Arthur Mukira Gachugi v Kenya Tea Development Holdings Ltd, Chinga Tea Development Agency Holdings Ltd, John Kennedy Omanga & Peter Tiras Kanyango [2017] KEHC 892 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  577   OF 2016

IN THE MATTER OF AN APPLICATION BY ARTHUR MUKIRA

GACHUGIFOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY

WAYOF CERTIORARI PROHIBITION AND MANDAMUS

AND

IN THE MATTER FOR ARTICLES 23(3) (F), 27, 28, 47 AND

50(1) OF THE CONSTITUTION   OF KENYA 2010

AND

IN THE MATTER OF SECTIONS 4, 6,7,10 (1), 11 AND 12 OF

THEFAIR   ADMINISTRATIVE   ACTION ACT NO.  4 OF 2015.

BETWEEN

ARTHUR MUKIRA GACHUGI..............................................APPLICANT

VERSUS

KENYA TEA DEVELOPMENT HOLDINGS LTD....1ST RESPONDENT

CHINGA TEA DEVELOPMENT

AGENCY HOLDINGS LTD..........................................2ND RESPONDENT

JOHN KENNEDY OMANGA......................................3RD RESPONDENT

AND

PETER TIRAS KANYANGO...................................INTERESTED PARTY

JUDGMENT

1. This judgment comes after parties had gone through many motions that took most of the judicial time resolving interlocutory issues raised by the parties’ advocates on record and which then militates against any belief that it is cast in stone that a Judicial  Review matter must be determined within 90  days from the date of institution in court, as stipulated in Section 8 of the Fair Administrative Action  Act, 2015.  I say so because the respondents viciously raised this issue urging the court to strike out these proceedings because the case was not determined within 90 days from the date of its institution. Without  delving  too much  into that matter,  I must  mention that although this matter is brought under the provisions of the Fair Administrative Action Act,  Section 12 of the  Fair Administrative  Action Act on the  application of common law and  rules of natural justice invites the application of sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules on the filing of applications for judicial Review.

2. Under the Law Reform Act and Order 53 of the Civil procedure Rules, there is no time limitation for hearing and determination of the Judicial Review remedies of Certiorari, Mandamus and Prohibition.

3. In addition, the Fair Administrative Action Act, 2015 did not repeal the Law Reform Act.  It is for that reason that I wholly  adopt my own  ruing in JR  502  and  503  of  2016  Republic Versus The Public Procurement Administrative Review Board and Kenya Power &Lighting Company Limited Exparte Kleen HomesSecurity Services Limited  which dealt with the issue of whether or not public procurement matters once filed in  court must be  determined  within  45 days  as stipulated  in Section  175 (1) of the Public Procurement  and   Asset Disposal Act, 2015.

4. In the above twin cases, this court applied the decision in the case of Selex Sistemi  Integrati [2008]eKLR rendered by  Nyamu J and  upon satisfying itself  that it was practically impossible to determine all public procurement  matters within the  45  days  stipulated  by the Act, and held that  the legislature could not  have intended to deprive  parties of access to justice by fixing such limited time, notwithstanding  the fact that  the judges  allocated to hear  and  determine these  matters deal with all sorts of  cases  besides  the  public procurement  matters and therefore the legislature intended that  public procurement matters be heard and determined  expeditiously and  within reasonable  time, not necessarily  within the specified period under the Act.

5. The court did then, as it does now, distinguish cases of public  procurement and any other Judicial Review matter, from Election  Petitions which latter come  once  in 5 years  and go, and  whose  stipulated  time frames  for  conclusion is contemplated by the Constitution at Article 87 (1) and implemented by the Elections Act, 2011.

6. Further, the history and rationale behind the time stipulation in the Elections Act implementing Article 87 (1) of the Constitution on timely resolution of electoral disputes goes back to the pre-2010 situation where election petitions remained in court until the following general election which then defeated the whole purpose of challenging an election.

7. For those  reasons, I find that  it  would not  be in the interest  of justice  to strike  out this  matter which  has not been heard and  determined  in 90  days, considering  the  volumes  and volumes  of documents  and  arguments  that  parties  placed before  the court  to enable  it determine  interlocutory  issues, which exceeded  the period  stipulated  even before  the main motion could be  heard  and determined.

8. A court of law, it has been said and held severally, ought not to do an injustice to the parties.  In the same vein, Parliament represents the will of the people and it could not have purposed to visit an injustice to the very people who vested in it the legislative power.

9. In the end, I do not hesitate to find and hold that the objection to the time within which these proceedings should have been heard and determined is overruled and dismissed and the court therefore proceeds to determine the matter on its merits based on the material placed before it.

10. Now  into the main motion is that the exparte  applicant  hereinArthur Mukira  Gachugi seeks from  this court  Judicial Review orders  stipulated in his substantive notice of motion dated 1st  December, 2016.

11. The prayers sought are:

1. Certiorari to quash  the decision of the 1st  respondent  Kenya  Tea Development Agency Holdings Limited dated 14th November  2016  in respect  to a petition  filed by  the interested Party Peter  Tiras Kanyago and two others on the lack of an ‘O’ level education qualification of the applicant as per the Articles of Association of Chinga Tea Factory, the 2nd respondent and lack of qualification for board  member  election  nomination for  board member  of Kenya Tea Development Agency Holdings Limited the 1st  respondent herein;

2. Certiorari quashing the decision of the 2nd respondent  Chinga Tea Factory  Company Limited pursuant  to a letter  dated  15th November  2016  removing  the applicant from the  position of Director on the ground that the applicant  did not qualify for the position of Director and further  declaring  his office vacant:

3. Certiorari  quashing  the advertisement  of  16th November  2016 of the 2nd respondent issued by the Company Secretary John Kennedy Omanga, the 3rd respondent  notifying candidates to submit their documents for  nomination  for the position  of  director  occupied by the applicant.

4. Prohibition prohibiting the 3rd respondent from further advertising the position of Director occupied by the applicant.

5. A prohibition directed at the 1st respondent from appointing anyone to replace the applicant as a Board member of the company at their general meeting.

6. Mandamus compelling the 3rd respondent to place the applicant’s name before the shareholders for appointment as a Director of Kenya Tea Development Agency Holdings Limited representing zone 4 during the Annual General Meeting.

7. Mandamus  directed at the 1st respondent to compel the  said respondent  to allow the  applicant  to undertake  his duties  as a Board  member of  the 1st respondent.

8. Any further orders and directions as it may deem fit and just to grant.

12. The respondents and the interested party opposed the notice of motion by filing replying affidavits thereto.

13. The notice of motion is supported  by the  statutory  statement  and verifying affidavit and  annextures  together with the further  affidavit and supplementary affidavit sworn by the exparte  applicant  as filed on 9th March  2017.

The exparte applicant’s case

14. The  exparte  applicant’s  case is  that he has been a director  of the 2nd respondent for 12 years since 2004 and that he discharged  his functions without any  hindrance  from members of the  1st respondent and  2nd respondent  companies for all those years.

15. That when the vacancy for the positions of board member of the 1st respondent fell open, the applicant applied to be considered after allegedly complying with all the requirements.  The interested party herein and another member also contested the same position.

16. It is alleged that the applicant  submitted the required  academic  qualifications as stipulated in Article 88(2) of the Articles of  Association  of Chinga Tea  Factory (The  2nd respondent)  and that he was duly cleared by the 3rd respondent Company Secretary  to contest for the said  position of member of the  1st respondent.

17. That the scheduled elections were conducted on 28th October 2016   wherein the exparte applicant won and was issued with an election certificate on the same day by the Returning Officer of the Zone 4 Mr Willis Odhiambo.

18. It is  claimed that after the elections  were held, the  interested  party herein Peter Tiras  Kanyago together with  2  other persons who  were  the losers filed  a petition  dated  27th October   2016 before the results of the election were announced, challenging the eligibility of the exparte applicant to be appointed as a Director of the 2nd respondent, despite the applicant having served  as a director  of the  2nd respondent  for the last 12 years  and  the 2nd  respondent  having validated the last election for the applicant’s following his nomination and successful  election.

19. According to the exparte applicant, the petition challenging the applicant’s election on account of eligibility was heard and determined by the Company Secretary Mr John Kennedy Omanga, the  3rd respondent  herein on  14th November  2016  who concluded that the applicant did not  have the  required  minimum  academic requirements as per Article 88 (2) of the Chinga Tea Factory Articles of  Association.

20. That the 3rd  respondent  then on  15th November  2016  wrote a letter  to the applicant disqualifying the applicant from the position of Director of Chinga Tea Factory and the 3rd respondent went further  and on 16th November  2016 wrote  a letter  notifying  submission of candidacy for directors, declaring the position of the applicant vacant and invited  members of the  2nd respondent Chinga Tea Factory to apply for  the position of Director  before 5th December  2016.

21. It is at the time that the exparte applicant  herein approached  this court  seeking for redress  and  obtained  leave of court  vide  chamber summons dated 18th  November 2016, to institute these  Judicial Review proceedings.

22. The exparte applicant  in his grounds in support of the remedies  sought claims that  the  3rd respondent  acted ultra vires, abused  his powers and  usurped  jurisdiction of the Board  in making the determinations that he did not have as a Company Secretary, whose role is  filing annual returns  and other  public  filings as well as maintaining the company’s statutory books and  registers and organizing for meetings for Directors and  shareholders, but not hearing and  determining election petitions  for  members.

23. It  was further averred by the exparte applicant  that the  3rd  respondent  in exercising  his administrative  powers of entertaining the petition failed to accord the applicant principles of good  governance stipulated in Article  18 of the Constitution on the  national values that bind  all persons.

24. Further, the applicant alleges that the 3rd respondent failed to embrace the rules of natural justice.  That  he did  not accord the  applicant  a hearing  as stipulated  in Section 4(4) of the Fair Administrative Action Act,2015 to enable the applicant be  present and be represented  by an advocate  or to cross examine  his accusers hence his right under Articles, 48,47,50(1) of the Constitution on fair hearing were violated.

25. The exparte applicant further  claims that the 3rd  respondent did not  follow  due process  in disqualifying   the exparte  applicant from the position of director of the 1st and  2nd respondents  in that the 3rd respondent  was the sole  decision maker, was  biased and  was  not fair in his decision making.

26. That the  procedure of  conducting  election petitions  as per the Election of Tea Factory Company Directors Nominees and  Buying Centre Committees Members Procedures,2016 were violated  in that the committee  was never  constituted  to determine  the petition or complaint by aggrieved members hence the applicant was denied  a fair  hearing  by the  3rd respondent  who determined  the  election petition  without  the powers  to do so.

27. It was further alleged that the 3rd respondent decision was biased and not based on objective criteria.  The applicant  claims that  the  3rd respondent reports directly to the interested party who challenged the applicant’s qualifications hence the 3rd  respondent  could only  have been  acting  under the direction  of the interested  party chairman of the  1st  respondent, contrary to Section 7(2)  of the Fair Administrative  Action  Act, 2012.

28. It was therefore asserted that the 3rd respondent acted illegally in disqualifying the applicant hence the order sought should be granted with costs.

The Respondents’ case

29. The respondents filed a joint replying affidavit on 19th December 2016 sworn by John Kennedy Omanga the third Respondent on 16th December 2016 contending that he is the Company Secretary for the 1st and 2nd respondents.  It was deposed that the applicant  is a member of Chinga  Tea Factory  which is among the 54 Tea Factories in zone 4 who have a Management  Agreement with  the  1st  respondent  wherein the  latter  manages the affairs  of the all the  54  factories  companies, and that on  26th June  2010 the  1st respondent invoked Clause 12. 1 of the Management Agreement and assigned the performance of all its duties and responsibilities  under the respective Management Agreements for the 54 factory companies, the 2nd respondent herein included, to the Kenya Tea Development Agency Management Services Ltd (MS) which is a wholly owned  subsidiary  of the  1st respondent.

30. That the Management Agent  M/S Kenya Tea Development Agency  Management  Services Ltd  organized for provision of Company Secretarial and Legal Services to the 2nd respondent and  to ensure  that all obligations  imposed  on the 2nd  respondent  by the Companies  Act  and the  2nd respondent’s Memorandum  and Articles of Association  are carried out.

31. The 3rd  respondent  deposed  that  he is also  the  duly appointed  Company Secretary of the said 54 Tea Factory Companies, including  the 2nd Respondent, and the Company Secretary for the 1st respondent’s Subsidiary Companies including the  Kenya Tea Development Agency  Management Services Ltd hence he is the Kenya Tea Development Agency Group Company Secretary.

32. The  3rd respondent  set out his  duties  and  responsibilities  as stipulated  in the  1st  and  2nd respondent’s Memorandum  and  Articles of Association; the Management Agreement; the  Kenya Tea Development Agency Factory Director’s Code of Conduct; the Board’s, Governance Manual/Charter; his job  description; the Companies Act  and the certified  Public Secretaries Act.

33. Among his duties and responsibilities as Group Company Secretary are overseeing and Managing Directors’ electoral process to the 1st and 2nd respondents.

34. According to the respondents, Directors of the 1st and 2nd respondents come into office by either appointment or election.  Further, and material  to this case  is that Directors who are  elected are elected by shareholders in a secret ballot in elections held in  electoral zones  to ensure  equitable distribution of directorship, and  that the exparte applicant is a member of the  2nd respondent   and belongs to the Gikigie Electoral Area while the 2nd respondent  is a corporate shareholder of the 1st  respondent  and falls in zone 4 Electoral Zone comprising Iriani,Chinga, Gathuthi, Ragati and Gitugi Tea Factories Companies Ltd.

35. Concerning the impugned elections, it was deposed that the memorandum and Articles of Association of  the 1st and 2nd respondents   provide for qualifications of persons eligible for office of Director  and  Educational level for  sitting  director  of  a shareholder tea factory  of the 1st  respondent.

36. It was deposed that Article 88 (2) of the said Articles of Association  of the  2nd  respondent  provides that  no person shall be qualified to hold office of a director unless he has attained  a minimum ‘O’ level educational qualification and that  the  requirements were  adopted  by  the respective  tea factories pursuant to inter alia the recommendations of a Task Force  Report  on the Tea Industry commissioner by the Ministry of Agriculture.

37. The 3rd  respondent maintained that his role  in election of directors  of the 54 Tea Factory Companies managed by the 1st  respondent was to oversee and supervise the elections of  Directors in his capacity as the Group Company Secretary; Company Secretary for the respective Tea Factories  and the Company Secretary  for the Managing Agency Kenya Tea Development Agency (MS) Ltd. It was contended that his office had over time formulated Rules  and  Regulations  for  elections  and  also drawn  election manuals and  regulations  which stipulates  the requirements that  candidates must  fulfill  to qualify  to vie for  Directorship and in accordance  with  the Companies Act and respective Company’s Articles of Association.

38. That although  the applicant  had served as Director for 12 years, the first  time that  educational qualifications of minimum  ‘O’ level qualification were applied were in the  2011/2012 elections as  that is when  the provisions of Article  88(2)  of the Articles of Association of the  2nd respondent  had been adopted.

39. It  was contended that the applicant herein never submitted his Certificate  attesting to his ‘O’ level education  qualification but that instead, he petitioned Kenya National Examination Council  to furnish the Managing Agent, Kenya Tea Development Agency, MS Ltd  with is qualification.

40. That the Kenya National Examinations Council  (KNEC) submitted a statement of examination results dated 17th December  2012  communicating  to Kenya Tea Development Agency, MS Ltd  that the applicant sat for his EACE examinations in 1976 at Chinga Boys  High School  and his result  was a 9 (NINE) fail.

41. That when the Kenya Tea Development Agency(MS) Ltd through the 3rd respondent sought clarification from Kenya National Examination Council  on 7th November  2013,  on whether the qualifications certificates was issued with a “fail” result in  order to determine the eligibility of the applicant  in the election  exercise, Kenya National Examination Council  did not  respond  to that  request.

42. Accordingly, the exparte applicant was prequalified for elections because the election manual regulations stipulates that no complaint or appeal can stop or suspend an election exercise and as a result the verification committee, the Presiding Officer  and the Returning Officer  prequalified the  applicant to  vie and he was successfully elected as Director of the 2nd respondent for the election  year  2011/2012  and that  he served  his entire term until the 2012/2016 election year when he  underwent  the same prequalification exercise and upon his election, he was  confirmed  as Director  of the  2nd  respondent.

43. It was contended that in the 2015/2016 election, no appeal or petition was filed challenging his eligibility on grounds of academic qualifications hence there  was no decision touching  on his qualifications and  that is why he  served his whole  term although that issue  of his qualification remained  pending  since Kenya National Examination Council  had not  responded  to the query as to whether a nine(9) fail at ‘O’ level was a qualification.

44. That  when the  2016 elections  were due, the 3rd  respondent  issued  the  usual notice of election of a board member  to the  1st respondent  from zone four, among other documents, as the  interested  party’s  term was  coming  to an end under the  ?  retirement of Director’s Rule and that just like any other election  for directors  of the  1st respondent  company, candidates were subject  to pre-qualification conditions among  them, that  a candidate must be a sitting director of a member of tea  factory from the electoral  area(zone), and must have attained an “O  Level Qualification.

45. That the  applicant, the interested  party and  a Mr Daniel Kingathia Ndogoto  submitted their applications but  as had been the case  before, the exparte applicant herein did not submit his educational prequalification certificate but instead sought Kenya National Examination Council to furnish the  respondents with  the  same.

46. That on 4th October 2016 Kenya National Examination Council wrote a statement of examination results stating that the  exparte applicant  sat for his KCE  in 1976 at Chinga Boys  Secondary School  and his result  was a 9 which statement  of results  was forwarded to the verification committee in respect  of Zone  4  Director’s elections.

47. That the verification committee considered the applicant’s documents and cleared all the three candidates to participate in the scheduled elections.

48. However, that after the said verification committee had cleared all the three candidates, one of the candidates Mr Daniel Kingathia Ndogoto withdrew his candidature on 24th October 2016.

49. That on  24th October  2016  the  1st respondent  though the  3rd respondent sought clarification from Kenya National Examination Council on the  educational prequalification of the  exparte  applicant  and  vide  letter of  25th October  2016  Kenya National Examination Council wrote back  stating that the  statement  of examination  results dated  4th October  2016   earlier supplied   had typographical  errors and  that the new one  with correct  version of the  exparte  applicant’s  result  had been attached.  That the corrected statement as attached disclosed a result of “9 (NINE) FAIL.”

50. That the applicant  participated  in the scheduled elections for zone   4 and  emerged the  winner on 28th October  2016  and  he  was due to be placed before the shareholders of the 1st respondent  for election and  confirmation as director during  the Annual General Meeting  scheduled  for  8th December  2016  but he could not reach that  stage of election and be confirmed by  the 1st respondent’s  shareholders because: On 27th October 2016, a day  prior to the  nominee  election date  for the  1st  respondent’s  shareholders board member for zone  4  electoral area, the 3rd respondent received an email  communication  from the interested  party herein  alleging  that the  exparte applicant   did not  possess an ‘O’ level qualification   and  that if so, the  applicant  did not  qualify  to represent  zone  4   in the  1st respondent.

51. That the  3rd respondent  also received  the  Returning Officer’s report on the results of zone  4  electoral area  for the 2nd  respondent  wherein the  applicant  had been  elected but  that there  was a petition submitted to the  Returning Officer prior to  commencement  of voting  process  challenging  the prequalification of the applicant which petition was considered by Directors  of the 2nd respondent  upon which  they agreed to forward it to the 1st respondent to deal as  elections  continued  for the prequalified nominees.

52. That the petition which was  filed by  the  interested party together with Ephantus Mukundi and  Eustace  Karanja claiming that the exparte applicant  herein did not qualify to vie for directorship of their factories and of the 1st respondent’s Board because he lacked an ‘O’ level  qualification required to be a Director of Chinga Tea Factory.

53. The  3rd  respondent  contended  that upon receipt of the petition, he wrote to the  petitioners on 28th October  2016 acknowledging  the petition and copied it to the exparte applicant  notifying  him that a petition which had been filed challenging  his elections would be  subjected to due process.

54. That  on 1st November  2016  the  3rd  respondent  wrote to the  applicant informing him of  his right to  a fair hearing  and  gave him  an opportunity  to file a response  to the petition  and the applicant wrote  on 2nd November  2016 stating that he stood by  his letter of  30th October  2016  responding to the petition and  urging  that the petition  be dismissed for lack of merit.

55. That in the said letter of response to the petition  dated  30th October  2016 the  exparte  applicant had  raised a  preliminary  objection to the jurisdiction of the  3rd respondent to handle  the subject  petition and on 3rd November  2016   the  3rd  respondent  overruled the preliminary objection after obtaining legal opinion  from  five(5) Law firms of repute, which  opinions  were shared  with the exparte applicant, and that the exparte applicant responded to the  said legal  opinions on 10th November  2016.

56. That on 14th November  2016, the 3rd respondent  after satisfying  himself on the legal position as regards the applicant’s  candidature  and nomination, rendered  a  decision  to the effect  that the exparte applicant did not meet the minimum  requirements to hold office  of a Director  of Chinga Tea Factory  pursuant  to Article  88(2)  of the Articles  of Association  of the  said  Chinga Tea Factory (CTF).  That having so found, the 3rd  respondent simply invoked  the provisions  of Article 104 (a) as of the Articles  of Association  of Chinga Tea Factory  on disqualificationand or vacation of office of Director which applied to the exparte  applicant, and he declared that the prequalification of the exparte  applicant  as a candidate  for the position  of a director  in the  1st  respondent’s zone  4 directors’  nominations  election  was void; and  informed  the exparte  applicant vide a letter  dated  15th November 2016  of his  disqualification as director.

57. The 3rd respondent  also notified the vice chair  and  Directors  of  Chinga Tea Factory  of the vacation of  office  of the exparte  applicant herein.

58. The 3rd respondent maintains that in determining the eligibility  and  disqualification and  vacationof office of director of the exparte applicant he accorded the applicant  a fair  hearing, that the  applicant  submitted himself  to the jurisdiction of the  3rd respondent  to handle the  petition   challenging  his  educational  qualifications and that he actively  participated in the said proceedings.  He maintained  that the  decision  of  14th November 2016 was  grounded in law  and fact and contended  that the exparte  applicant  having  failed  his ‘O’ level examinations, he could not rely on his foreign  academic qualifications which does not meet the recognition  criteria  pursuant  to the provisions of the Universities Act, No. 42 of 2012  and  the Regulations/guidelines made  there under.

59. Further, that even though the applicant had served as Director previously with the same qualifications, those qualifications had never been subjected to validation though flagged out in 2011/2012 election year and that the only time that a determination   was reached on those qualifications was on 14th November 2016.

60. The 3rd  respondent  denied that he cleared the  applicant  for  the nomination and or elections and asserted that the applicant  together  with other nominees were cleared  by the Verification  Committees at the  2015/2016 election year  and in respect of  the  election conducted  in 2016.

61. The 3rd respondent  also denied  allegations  that the interested party only filed the petition after losing in elections to the applicant  and  stated that the  petition  was submitted  on  28th November 2016 prior to commencement  of the  voting  exercise  as per the Returning Officer’s report  and that  the  petition  was  preceded  by an inquiry email send by the interested  party to the  3rd respondent on 27th October  2016.

62. The  3rd  respondent  maintained  that the exparte  applicant  was  given  every opportunity  to be  heard  and  to be  represented  by his advocate in defence and that the language  of the response  to the petition  attests  that the author  was a  legal  mind  but submitted in the name  of the  exparte  applicant.

63. That no prejudice has been demonstrated for absence of legal representation of the exparte applicant in the proceedings leading to the exparte applicant’s disqualification.

64. The 3rd applicant contends that  he never removed  the  applicant  from office but that the  applicant was disqualified  from holding  office  of the Director  of CTF Company Ltd  and consequently,  his office as director stood vacated  under Article 88(2) as read with  Article  104(a) (a)  and  105(a)  of the Articles  of  Association of CTF company Ltd.

65. That removal of director procedure is quite different from disqualification or vacation of office of a director.  The 3rd  respondent contended that it  was  his legal  duty to carry out  due  diligence on the eligibility  of directorship and that is why  he wrote  to Kenya National Examinations Council   to clarify what the statement  of examination result meant hence he never  acted  maliciously  or in bad faith  and that neither did he intend  to prejudice the  exparte applicant’s legal rights.  Further, that similar requisitions for clarification had been made to Kenya National Examinations Council in respect of other contenders not just the exparte applicant.

66. According to the 3rd respondent, the decision to seek  clarification  from Kenya National Examinations Council  was made  independent  of external or interested  party interference and that  such decision was guided  only  by his mandate  under the statute  and other  applicable  instruments.

67. That  the  exparte applicant ably presented his defence  against the petition which case was considered and a determination was  reached  hence, Article 10 of the Constitution was never violated and that the 3rd  respondent’s diligence in the management and handling  of elections  had earned  him a  commendation from the Managing Director.

68. The 3rd respondent further contended that following the disqualification of the  exparte  applicant, the election for  zone 4  directorship became  void and were a  no contest  and  inconclusive  hence the zone 4  Directors  were notified  of fresh elections process which were scheduled  for  27th February  2017  and that  is the reason why the December 8th 2016 Annual General Meeting  had no  agenda for  confirmation of nominees  director  in respect of zone  4 electoral  zone.

69. It  was  also contended that following  the nullification  of the zone 4 elections for directors, the 2nd  respondent’s  shareholders  were notified sand candidates were invited to submit their applications in the normal manner  and that the exparte applicant  is free to submit his application afresh for consideration.

70. The respondents further contended that the Judicial Review  orders sought can only issue against a public body and not the  respondents who are not public bodies/officer and that the respondents  have filed an  appeal before  the Court of Appeal   to revisit  this issue  of whether  non- public  bodies/persons can be  subject of Judicial  Review  remedies.

71. That in any event, any wrongs  committed by the 3rd  respondent   are done   for and  on  behalf of the  1st and  2nd respondents  for which  he is employed as a  company  secretary hence he cannot be sued in his personal capacity as he bears no personal  responsibility  and that this issue  is pending  before the Court of Appeal for determination.

72. That there is no cause or justiciable or semblance of a justiciable cause by the exparte applicant against the respondents  to warrant   grant of orders  sought  hence the notice  of  motion is an afterthought, hopelessly defective, misconceived, frivolous, vexatious, devoid  of merit  and  an abuse of the court process craving  to be struck out with costs.

73. It  was also contended that  to grant  the orders sought  will paralyze the operations of the  respondents   and   render  of no effect  and  inconsequential  the Memorandum and  Articles  of Association  of the  1st and   2nd respondents and will open a  Pandora’s  box by setting  a bad and  dangerous  precedent  of a person who is  unqualified  to hold an office of  Director  being allowed to continue  holding the office, his  lack of qualification  notwithstanding.

74. That nothing stops the exparte applicant from sitting for his ‘O’ level certificate exams to qualify to vie for position of director and offer his candidature once such vacancy of director arises.

75. It was contended that it is in the interest of  shareholders of the  1st and  2nd  respondents  and the wider public  interest that  only qualified candidates  hold  fiduciary offices  of director  in their respective  companies.

76. The respondents  also raised a preliminary objection filed on  23rd May 2017 contending that the  proceedings  herein  having been   brought under the  Fair Administrative Action  Act, 2015  in particular, Section 8 of the Act, which stipulates that the proceedings  must be concluded within 90 days from the date of filing and that  90 days  having lapsed  these proceedings are  invalid, null and  void and therefore  the court  no longer has jurisdiction  to preside  over and  determine  the  same.

The Interested Party’s Case.

77. In a replying affidavit filed on  15th December  2016  and  sworn by the interested party Peter Tiras Kanyago, it was deposed that the  issue of  disqualification of the applicant  as director arises  from the mandatory provisions of the Companies’ Articles of Association,  Article 88(2)  of the  2nd  respondent’s Articles of Association that require possession  of an ‘O’ level  qualification  for a candidate vying  for directorship.

78. That the 3rd respondent issued a  notification for candidates  to submit  their application for Kenya Tea Development Agency  Holdings  Director  position for  zones  2,4,7 and  8 which  were due for rotational cycle in October  2016 and he vied  and  qualified  as  a sitting  director  of a member  Tea Factory  from  the electoral/zonal area 4.

79. It was deposed that  the  elections  manual stipulates  that complaints  prior to  issuance  of elections  notices  and  release of prequalified candidates shall be made to the Company Secretary.

80. That on his part, on 27th October  2016 he wrote  an email to the Company Secretary inviting the latter to confirm whether the allegation that the applicant had not attained ‘O’ level qualification which was a requirement to hold director’s  position at the  2nd respondent   was true.

81. That Ephantus Mukundi and Eustace G. Karanja had similar misgivings and so they jointly petitioned seeking for suspension of the scheduled elections for 28th October 2016 until the allegations were investigated. That he had since learnt that the relevant election manual stipulates that no appeal or complaint could stop elections or suspend an election exercise.

82. That when the nomination exercise kicked off on  28th October  2016  the  Returning  Officer  Mr Willis  Odhiambo informed  candidates that  there  was a  petition  and it  was  discussed  with the candidates  that the same  be forwarded to the head office  but nomination process would continue.

83. The  rest of depositions  by the interested party mirror the depositions by the 3rd respondent on the ensuing events  leading  to the disqualification of the exparte applicant and which I have substantially  reproduced  in this judgment  above.

84. However, the interested party added that this court in exercise of Judicial Review jurisdiction is not concerned with the merits of the decision but the process of making the decision.

85. Further, that  allegations that  the  applicant undertook a bridging  course  prior  to him obtaining  2 degrees from  Strayer  College  in the USA is unsupported by documentary evidence.

86. That a statement   of examination results  stating NINE (9) FAIL is not a qualification hence it was  the 2nd respondent’s  Articles of Association that disqualified  the applicant from holding  office of Director  and he could, if he so held   such office, only vacate  office, not  to be removed by anybody as alleged.

87. The interested party also cited Articles 88(2) on qualifications and Articles 104(a) (a) and 105(a) of the Articles of Association of the 2nd respondent on disqualifications or vacation of office of Director.

88. That Section 139 of the Companies Act deals with “resolutions to remove Directors from office” and Subsection 6 (b) provides that “the Section does not limit any power to remove a director that may exist apart from that Section.”

89. That the 3rd respondent has power to handle complaints arising out of nomination process or to communicate results of any decision arising from that. Further, that all communication by the Board of Directors is usually  done formally  by the Company Secretary  and in this case, the Company Secretary  did communicate  the  ineligibility  of the applicant  in his capacity  as the Company Secretary and Director  elections  as enlisted in  the elections manuals, to set in motion a process for  fresh nomination to fill vacancies  arising  as stipulated  in Section  138 of the  Companies  Act.

90. That  calling  a lawyer to represent  him at the hearing  of the  petition could  not have  assisted  the applicant  deal with the  issue of qualifications which he did not possess in the first instance  hence the applicant  had come to court with unclean  hands  and to circumvent  the issue of ineligibility to hold  office  as director  by  employing  this court’s process  to issue  orders to compel the respondent to install him as director  notwithstanding  that  he does not qualify,  as  stipulated  in the 2nd respondent’s  Articles  of Association  which he is  bound to adhere to  hence the court  should decline  to grant  the orders  sought.

91. On 9th March 2017, the exparte  applicant filed  a supplementary affidavit wherein  he lamented that despite  this court staying  activities that would be prejudicial to the position of the applicant as director, and that despite  his name  being  proposed  for  nomination  by Mr Chege  Kirundi on 8th December  2016, it was  not adhered to by the respondents.

92. Further, that on 13th December 2016 the 3rd respondent  scheduled another  meeting  where he  reinstated the  interested party  to hold the   position  initially  held by the  applicant   in zone  4 despite  knowing that his term had  expired  and that he  was never  elected  as a representative  of zone  4  and  which amounts to contempt of court order and therefore the 3rd Respondent with the Interested Party are liable for committal to civil jail.

93. That if the Interested Party continues to hold position of director for zone 4then the applicant’s interests shall be prejudiced and the final determination of this matter will serve no basis.

94. The applicant urged the court to summon the 3rd Respondent to show cause why he should not be cited for contempt of court and sequestration of property and that the Interested Party too, be committed to prison for contempt of court.

95. In a response filed to the above supplementary affidavit, the Respondents filed a joint supplementary affidavit sworn by John Kennedy Omanga the 3rd respondent herein on 28th March 2017 and filed on 29th March 2017 deposing that the applicant’s supplementary affidavit sworn on 9th March 2017 seeks to introduce the proceedings of the Annual General Meeting held on 8th December 2016 to the proceedings herein yet the events of 8th December 2016 were never part of the pleadings that originated these proceedings.

96. That the issues that led to the meeting of 8th December 2016 were exhaustively canvassed by this court and a Substantive Ruling of dismissal rendered and hence the same cannot be reopened here otherwise parties would engage in endless litigation exercise.

97. That in any event, no contempt proceedings are before this court to warrant the summoning of and citing the 3rd Respondent for contempt of court.

98. That further, the Respondents’ action in relation to the meeting of 8th December, 2016 and any other meeting in the conduct of their business has been proper, legal and justified hence the allegations of reinstatement of the Interested Party are frivolous, Vexations, fable and baseless and should be expunged from the record.

99. The Interested Party also filed a Supplementary affidavit on 29th March 2017 deposing that he was the chairman of Board of Director Kenya Tea Development Agency Holdings Ltd and a Director of Chinga Tea Factory Co. Ltd. He denied the allegations regarding his purported reinstatement as alleged and or the request by Mr. Chege Kirundi since the court did not include the applicant’s name in the agenda for the Annual General Meeting scheduled for 8th December 2016.

100. That the applicant had not placed before this court the Annual General Meeting deliberations that are to be considered prejudicial to the exparte applicant’s interest.

101. That there was no declaration of vacancy of director for zone 4 at the Annual General Meeting because it was not on the agenda and that no Article of Association of the 1st Respondent provides for expiration of the term of its director as erroneously assumed by the Applicant.

102. It was further contended that Article 89 of the of the 1st Respondent’s Articles of Association provides that a director shall remain in office until the next Annual General Meeting when the outgoing Director is removed and a new director is appointed under Article 86 (c) of the Articles of Association of the 1st Respondent.

103. It was further deposed that the court order never ejected the Interested Party from being a director or from continuing to hold  office of director of the 1st respondent and neither did his term as a director of zone 4 expire.

104. According to the interested party, the court only stayed the letter of 14th November 2016 which was the decision of the 3rd Respondent and that the applicant is using this court process to seek to halt the continuity of the 1st and 2nd Respondents’ affairs contrary to the Articles of Association, by seeking unusual prayers from this court as there has been no contempt of court order on his part or on the part of the 3rd Respondent and that neither has the procedure for committal for contempt of court as stipulate in the relevant statute been complied with hence this court is not obliged to embed such prayers for contempt of court in these Judicial Review proceedings.

105. The Interested Party urged the court to strike out the offensive paragraphs of the exparte applicant’s Supplementary affidavit and dismiss the substantive Notice of Motion dated 1st December 2016.

SUBMISSIONS

106. All the parties’ advocates agreed and filed written submissions which they orally highlighted on 23rd May 2017.

Exparte applicant’s submissions

107. The exparte applicant’s submissions were filed on 30th January 2017 and oral highlights made by Mr. Kanjama Advocate adopting the said submissions and relying on the grounds set out in the statutory statement, verifying affidavit, and the two supplementary affidavits.

108. Mr. Kanjama submitted maintaining that his client remains the director of zone 4 for the 2nd Respondent because despite the Annual General Meeting which was held on 8th December, 2016, no one was elected to represent zone 4 in the Board of the 1st Responded Company.

109. Counsel for the exparte applicant submitted that although the Interested Party’s term of office in the 1st Respondent expired on the 8th December 2016 during the Annual General Meeting, the 3rd Respondent had purported to interpret the order of this court as providing for status quo to allow the interested party to continue acting as director of the 1st Respondent to date.  Mr Kanjama submitted that his client did not file contempt of court proceedings so as not to obscure the matter.  Mr. Kanjama framed 5 issues for determination namely;

1. Whether the 3rd Respondent acted ultra vires or whether he abused his powers or usurped jurisdiction of the Board in making those determinations.  On this issue, it was submitted that the 3rd Respondent purported to possess powers to entertain an election petition filed by the interested party yet it was not one of his functions as the company secretary.

110. That the 3rd Respondent purported to disqualify a director and further, that the Company Secretary is an appointee of and works under and reports to the Board of Directors of the company hence the Company Secretary cannot monitor and entertain disputes relating to qualifications of a director.

111. It was submitted that the companies (General) Regulations 2015 schedule 3 & section 17 (2) of the said schedule stipulates that “the company secretary shall propose a director’s written resolution if a director requests it” which powers and functions among other does not include removal of a director.

112. It was submitted that a director of a company elected by shareholders can only be removed by shareholders and not otherwise hence the Company Secretary acted in excess of jurisdiction and so his actions ought to be precluded. Reliance was placed on the case of Lyford Kaburu Joseph V. Director of Public Prosecutions &3 Others (2016) eKLRwhere the court held that “Judicial Review orders of Certiorari lies to quash the decision of a body, person or authority exercising judicial or quasi-judicial jurisdiction, which is made without jurisdiction or in excess of jurisdiction or where the body has failed to apply the rules of natural justice or fair administrative action, where the decision is illegal or unreasonable.”

113. It was submitted that the Company Secretary acted unlawfully in disqualifying the Exparte applicant, a director appointed by shareholders and who have the mandate to remove him at the Annual General Meeting  or at an extra ordinary general meeting.

114. Further reliance was placed on Republic vs Public Procurement Administrative Review Board & 3 other (2014) eKLR where the court in granting Judicial Review orders held that; “the Respondent had no power in effect to vary a decision made final by the law under the guise of interpreting the same.”  Further reliance was placed on section 7 (2) of the Fair Administrative Action Act which stipulates thata court or Tribunal may review an administrative action or decision if- a – the person who made the decision acted in excess of jurisdiction or power conferred under any written law.Further reliance was placed on Olive Mwihaki Mugenda & Another v Okiya Omtatah Okoiti & 4 Others (2016)where the Court of Appeal held that the High Court erred in acting in excess of jurisdiction in making an order for involvement of stakeholders and formulating its own procedure for recruitment of the Vice Chancellor, Kenyatta University.

115. It was submitted that powers of the 3rd Respondent do not comprise the right to determine or entertain an election petition and subsequent removal of a director hence the 3rd Respondent assumed a duty he did not have the mandate to discharge hence it was improper for him to disqualify the exparte applicant.

116. Counsel for the exparte applicant maintained that the decision dated 14th November 2016 is illegal and illegitimate and must be quashed together with the advertisement dated 16th November 2016 by the 2nd Respondent pursuant to the letter dated 15th November 2016.

117. On the 2nd issue of whether the powers of Company Secretary as contemplated in the companies Act, 2015, Memorandum and Articles of Association of the 1st and 2nd Respondents include hearing and determining petitions relating to elections of Directors, it was submitted that nowhere in the Act and Memorandum and Articles of Association mention the power of the 3rd Respondent to include hearing and determining petitions which is the role of a judicial officer hence the 3rd Respondent acted beyond his scope of authority.  It was also submitted that the Articles cited by the Respondent regarding removal of Directors – pursuant to Articles 89 & 90 do not give to the Company Secretary  power to remove or disqualify a Director but that such removal can only be done by shareholders at the Annual General Meeting.

118. On the 3rd issue of whether the 3rd Respondent accorded the exparte applicant fair Administrative Action as stipulated in Article 47 (1) of the constitution, it was submitted, relying on the provisions of the Fair Administrative Action that the 3rd Respondent while purporting to exercise administrative action powers in entertaining the petition failed to observe the principles of good governance as stipulated in Article 10 of the Constitution which binds all.  Reliance was placed on Fursys (K) Ltd V Public Procurement Administration and Review Board & 2 otherswhere the court emphasized observance of the National Values and principles of governance namely the rule of law.

119. Citing section 4 (4) of the Fair Administrative Action Act, it was submitted that the decision maker must accord a person affected by the decision an opportunity to attend the proceedings in person or in the company of an expert of his choice, to be heard to cross-examine persons who give adverse evidence against him and to request adjournment of proceedings where necessary to ensure a fair hearing.

120. In this case it was submitted that the exparte applicant was never accorded a hearing as stipulated in section 4 (4) of the Fair Administrative Action Act.  Reliance was placed on Republic vs Inspector General Corporation & Another exparte Titus K. Barmasai (2013) e KLRwhere the court addressed the right to a fair hearing being a rule of natural justice.

121. It was submitted that the right to a fair hearing cannot be waived, with further reliance being placed on Article 50 (1) of the Constitution on the right to a fair and public hearing which right was allegedly violated.

122. It was further submitted that the 3rd Respondent should have referred to the Dispute Resolution Committee of the 1st Respondent which is mandated to determine such matters.  That the committee consists of 9 members comprising the Chairman appointed by the Managing Director of the Managing Agent, a Secretary and at least 7 members.

123. That according to the Election of Tea Factory Company Directors Nominees and Buying Centre Committee Members Procedures – 2016, a petition challenging the election of a Director is submitted by the petitioner to the committee and the committed sits to determine the petition.  The decision of the committee is communicated through the Factory Unit Manager from the Factory Company and not for the 3rd Respondent to hear and determine the petition.  In this case it was submitted that no committee was formed to determine the petition hence the trial was illegal, unfair and unprocedural and in violation of Articles 48 & 47 (1) of the constitution.

124. Further reliance was placed on Sarah Nasel Leterpan v Attorney General & 4 others (2012) eKLR where the court declared null and void proceedings and decisions of the Tribunal which were made in violation of Article 50 (1) of the constitution.

125. The applicant also relied on Republic vs KPA Exparte Alice Wamaitha Mwangi (2016) eKLRon the right to administrative Action and adherence to the rules of natural justice.

126. Mr. Kanjama further added that the protest that the applicant had no academic qualifications is not acceptable since he had served for 10 years as a director and was on several occasions prequalified for election as such director.  Further, that the applicant had, after his KCE – O level done a bridging course for University Education and therefore the 3rd Respondent had no power to determine the validity of a University Qualification after the fact, to deny the applicant his dues and subject him to immerse suffering.

127. On the issue  of  whether the  3rd respondent  followed due process and procedure  in disqualifying the exparte applicant from the  position  of director  of the  1st and  2nd respondents, it  was submitted reiterating that the appropriate committee for determining  petitions  was  never  set up and that therefore the procedure  employed  in determining the applicant’s  case  was unfair  and married  by irregularities.Reliance was placed on Republic vs. The National Police Service Commission & Another [2016] e KLR.

128. On the  4th issue  of whether the 3rd respondent  was  impartial  in decision  making,it  was  submitted that the manner  in which the  whole trial  was dealt with  clearly  show that  the decision  of the 3rd respondent was biased, illegal  and  contrary  to Article  47  of the constitution, was unreasonable, unprocedural and  not based  on  any known  law. It  was  submitted that since the  interested party as the chair of  Board of Director, of the 1st  respondent  was the boss of the  3rd respondent, there was   apparent  bias  more so, reflected in the subsequent  request  by the 3rd  respondent to the Kenya National Examination Council  to clarify the statement of examination results  for the applicant  just to ensure the  applicant is  disqualified  and  an indication that the  3rd respondent   was acting  under the direction  of the interested party.

129. Reliance was placed on Section 7(2) of the Fair Administrative Action Act.  Accordingly, it was submitted that the 3rd  respondent  acted in  breach of legitimate expectation of the applicant  that the petition  would be  heard  and  determined  in an impartial  manner.  Reliance was further placed onRepublic vs National Police Service Commission Exparte Daniel Chacha Chacha [2016] e KLR.The case of Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others [2013] e KLRon impartiality in decision making being key otherwise the entire process would be void was also relied on.  Citing Zacharia  Wagunza  & another v Office  of Registrar, Academic Kenyatta  University & 2 others [2013] it  was  submitted that impartiality  is necessary  to retain  confidence  in the administration  of justice.

130. The applicant therefore urged the court to grant the orders sought with costs.

The Respondents’ joint submissions

131. The respondents filed their  written submissions  on 29th  March 2017 reiterating their depositions in the replying and  supplementary affidavit sworn by the 3rd respondent and represented  by Mr Milimo advocate  who adopted their affidavits and written submissions. Mr Milimo orally submitted in contention emphasizing that the 3rd  respondent  has the power to participate  in the determination  of issues  relating  to a company  and  more so, in elections  of the  1st and  2nd respondents  because  he is the one to  appoint the  presiding  officers  at elections.  That as the  Company Secretary for the Kenya Tea Development Agency MS Ltd and the member  companies, he is tasked  with  the duty of  ensuring  that the companies adhere to the Companies Act and the Memorandum and  Articles of  Association  of the Companies, as  per his  annexed job description and  the Board Manuals.

132. It was submitted that a company and its stakeholders have their contractual relationship anchored in their contractual documents.  The case of Abdirahman Afhi Abdallah vs Osupuko Service Station Ltd & another [2012] e KLRwas relied on       in submitting that the alleged dispute has no statutory underpinnings whatsoever.

133. It was  submitted that Article  2  of the Articles  of Association expressly stipulates that the 3rd respondent is to appoint  presiding  and  Returning  Officers, whereas Clause 2. 2.9 of  the Management  Agreement   between  the  2nd  and  1st respondent vests the 1st respondent with power to ensure  that all obligations imposed on the 2nd respondent by the Memorandum of Agreement/Association are carried  out and that the Management Agent  appointed  the  3rd respondent  as Company Secretary to undertake the mandate  of ensuring  that there is s compliance with the Companies Act, other statutes and the Memorandum and Articles of Association of the Companies in question hence the Company Secretary  qualifies  to sit  and  deliberate  on any contravention of the Memorandum of Agreement/Association and prescribe guidelines on how to correct such contravention as per the Memorandum of Agreement/Association.

134. In addition, it  was  submitted that the 3rd respondent  was not  determining  an election petition but was determining  whether the   exparte applicant  had complied  with the provisions of  the  Memorandum and  Articles of Association  of the 2nd respondent company.

135. That albeit the  3rd respondent  works  hand  in hand with the  Board of Directors,  he is required  to act  independently, giving independent  guidance  to the Board of Directors  and therefore  he does not  owe any  allegiance  to any  personal  director  but to the  company, as was  settled  in Panorama  Development Caulford   Fidelis  Furnishing  Fabric  Ltd cited by  Kariuki Muigwa  in his paper: “The Company Secretary as a Compliance Leader- Maintenance of Global Standards.”

136. According to the respondents, all respondents are private  persons sued in their private capacity, counsel for the respondents  then  set  out  4  issues  for  determination namely:

137. Whether this court has jurisdiction to entertain this suit. On this issue it  was submitted  that the  applicant’s grounds  challenge  the internal management of the 1st and 2nd respondent companies  and that it is  the  duty of the  Management Agent, Kenya Tea Development Agency (MS) Ltd and the Company Secretary to ensure compliance with statutory and other provisions of the Memorandum of Agreement/Association of the 1st  and  2nd  respondents.

138. It  was submitted that the decision to disqualify the applicant  from holding the position  of director  is a management  function guided by  the  provision of the Articles  of Association  and the  work  of the Company Secretary is to ensure compliance  with such Articles and Memorandum of Agreement of the  companies,  being his contractual function/engagement hence courts cannot interfere and micromanage such internal functioning of the company.

139. It was submitted that the Board of Governance Manual 2015 grants power to the Company Secretary to deliberate on the qualifications of the exparte applicant to act as director.

140. Counsel submitted that this  court was  being called  upon  to pierce  the  corporate  veil  without   the  exceptions of the rule in  Salomon v Salomon  having  been  exuded: Reliance was placed on Sultan Hasham  Lalji & 2 Others  vs Ahmed  Hasham  Lalji & 4  Others [2014] e KLR  where the court  held, inter alia, that the court will not interfere with the internal management of companies acting within their power  and in fact, has no  jurisdiction to do so.

141. It  was  submitted that when the complaint  was made  against the  applicant  on his academic  qualifications, it  was  addressed  to the  3rd  respondent  and that  there being no other competent office to handle the issue  regarding  qualifications of a sitting  director, the  3rd respondent had to ensure compliance with the  instruments governing the qualifications  by invoking  the  relevant  provisions  and  notifying  the applicant  on the provisions  of Articles  88(2), 104 (a)(a and 105(a) and so he   never acted ultra vires.

142. It was submitted that the applicant was accorded the opportunity to be heard on the challenge to his ‘O’ level qualifications hence there was no breach to the procedure adopted.  This court was urged not to be enticed by the applicant to disregard precedent and or interfe with internal management of a company.

143. On the second  issue of whether this  court can  issue the orders  sought against  private persons such  as the  defendant  herein, it   was submitted that the  order of prohibition  does not  issue to  correct the  course, practice or procedure of an inferior  tribunal or a wrong  decision  on the merits  of  proceedings.  That an order of prohibition is powerless against a decision which has already been made before such an order is made.  Reliance was placed on Kabararwa Clan v Kirawi Clan [2016] e KLR.

144. It  was  also submitted that prayers  8 and  9 of the motion are for mandamus which cannot  issue because the Annual General  Meeting  has already  taken place  hence the prayers are  overtaken  by events  and that  placing  the  name of the  director before  an Annual General Meeting is not a public duty imposed by statute  hence it cannot  issue.

145. On prayer  9 which  seeks to compel the  1st respondent to  allow the exparte applicant to undertake his duties as a Board  Member  of the  1st respondent,  it  was submitted that this  is not a public duty imposed by  statute.  That Board Members must qualify   to be directors not to impose themselves as directors of a company to advance their personal interests.

146. On prayers 6 and 7 seeking prohibition to advertise the position of director, it was submitted that the position was already advertised hence prohibition can only issue in a continuing exercise not that which has already taken place.

147. On prayer  7 it  was submitted that the Annual General Meeting having  taken place, the  prayer is  overtaken by events  hence  the  order if granted  shall be in  vain.

148. On whether the action by the respondent  private  persons  can be subject to Judicial Review, it  was submitted, relying  on JSC vs Mbalu Mutava &Another [2015] e KLRthat  administrative  justice  in public  administrative  is concerned with control of the  exercise  of administrative  powers of  state organs and statutory bodies in execution of  constitutional duties and statutory duties guided by constitutional principles and  policy  considerations.

149. Accordingly, it was submitted that Judicial Review orders sought do not apply to all and sundry but only issues to persons conducting public administration.

150. In this case, further reliance  was placed  on A. Ramaiya, a guide  to  the  Companies Act, 16th Edition 2004  pages  2607  and  2624where it  was  stated that  such a dispute  as  this could  only be  instituted  in an  ordinary  civil court.

151. On the 3rd issue  of whether the  3rd  respondent  acted ultra vires  in declaring  the  exparte applicant unqualified  to be a director  of the  2nd respondent, it  was  submitted that the  3rd  respondent  derives his mandate from the Companies Act, Certified Public  Secretaries Act, his job  description, the Board  of Governance   Manual, Kenya Tea Development Agency  Factory  Director’s Code  of Conduct; Management   Agreement; Management of Agreement  of the  1st and  2nd respondents it  was submitted that the only  person who could make a decision  on whether  a NINE(9) FAIL was  a qualification was the 3rd respondent  and not any  other person hence  the  3rd  respondent  did not  act ultra vires.

152. On the  4th issue  of whether the exparte  applicant  was  granted on opportunity to argue his case  in a fair manner  as per Articles 47 and 50(1) of the Constitution, it  was  submitted relying  on the case  of Judicial service Commission vs Mutava  Mbalu & Another, (supra)  where  the  Court of Appeal held, inter alia, that the right to a fair administrative  action under Article  47 is a distinct  right  from the right to a fair  hearing under Article 50(1) because Fair Administrative  Action refers  broadly to administrative  justice in public  administration, and concerned  mainly  with control of the exercise of administrative powers by state organs and  statutory  bodies in the execution of constitutional duties and  statutory  duties  guided  by constitutional principles  and  policy  considerations.  The right to a fair administrative action, though a fundamental right, is contextual and flexible in its application and as Article 24(1) provides can be limited by law.  Fair hearing  in Article 50(1) as the test stipulates  applies  where any  dispute  can be resolved  by the application  of the law  and  applies  to proceedings before a court or, if appropriate, another  independent  and  impartial  tribunal  or body.

153. The court  in the above case stated  that fair hearing as employed  in Article 50(1) is a term of art which exclusively applies to trial or inquiries  in judicial  proceedings where a final decision is to be made through the application of law to facts, which right  cannot be limited by law or otherwise.

154. It was therefore submitted that the impugned decision is not an administrative action envisioned by Article 47 of the Constitution and neither would Article 50(1) of the Constitution on the right to fair hearing apply. Further reliance  was placed on the case  of Gladys  Boss Shollei  vs Judicial Service Commission & Another [2014] e KLRciting with approval  Selvarjan  v Race Relations Board [1976] ALL ER 12 at  19  where it  was  held inter alia that fairness depends on the nature  of the investigation and that the  investigating  body is a master  of its own procedure.  It need not hold a hearing.  It can do everything in writing it need not allow lawyers.

155. On the test of bias, reliance  was placed on Magil & Porter Magil vs Weeks [2001] UKLI67where it was held  inter alia, that the question is whether a fair minded and informed observer, having considered the facts would conclude  that there  was  a real possibility  that a tribunal  was biased.

156. It  was  submitted  that in this case  the applicant was given  an opportunity to present his case and he did so in writing  elaborately leading  to an  irresistible  conclusion that he was   getting concrete legal counsel  hence there was no need  to allow  him to be represented  by an advocate  as the  proceedings  were not akin to a criminal proceeding and that in any event  the  Court of Appeal has clarified in which kind of proceedings Article 50 of the Constitution which gives the right  to legal  representation would be  applicable  and  which the proceedings  conducted  by the respondents is not. Further, that no prejudice was shown by failure to be represented by an advocate.

157. Further, that the applicant only alleged bias but never established it since the 3rd respondent acted independently without owing any allegiance to any particular director but to the company.

158. The respondents then submitted responding specifically  to the submissions  filed by the applicant’s counsel and authorities and supplementary affidavit  filed on 9th March  2017 and reiterated what he had raised  in his earlier submissions  adding  that the latter affidavit was misguided  as there were no contempt  of court  proceedings placed before the court  for determination.

159. Finally, Mr Milimo  submitted that  should this court grant  the orders  sought then  the court should invoke Section 11(1) (e) of the Fair Administrative Action Act, 2015 in exercise of its unfettered discretion to remit the matter  back to the respondents  for re-consideration with or without directions in view of the complaint on academic qualifications of the applicant which must  be  dealt with or  processed  since it is  not in the  public  interest  to leave a question of academic  qualification hanging   otherwise  the  applicant will claim to be untouchable.

160. Counsel also submitted that as these proceedings were not  heard  and determined  within 90 days  which is  mandatory, the court  lacks  jurisdiction to hear it  hence  all these proceedings  are null and void since there is no provision for extension  and if the  provision  causes  injury to the party, the  recourse is to amend  the  law  through  Parliament.  Reliance was placed on the case of Evans Kidero vs Ferdinand Waititu.  Counsel urged the court to dismiss the applicant’s case with costs to the respondents.

The interested party’s submissions

161. The  interested party filed written  submissions  on 23rd May  2017  and the  same  were  highlighted  by Mr  Kibicho advocate opposing  the exparte applicant’s  motion.

162. The interested party restated the depositions in his replying and supplementary affidavits while entirely adopting the submissions filed and canvassed by the respondent’s counsel Mr Milimo.

163. Mr Kibicho maintained that what the respondents did were not public   duties but  duties  performed  in accordance  with the  contractual  obligations out  of the Articles of  Association  of a private  company  which has  no public  duty  hence Judicial Review  cannot  apply  to a private company.  Reliance  was placed on JR 32/2014 Republic vs. Kamp, Prisk Exparte Nakuru Municipality Pubs, Bars Restaurants and Hotel Owners  Association  JR 32 of 2014 [2015]EKLRwhere the court  held that  the remedy of prohibition cannot  lie against the respondents who were private  companies with no public duty as they owed their duty to their  contracting  parties. A similar holding was reached in JR 483 of 2013 Jocinta Wanjiru Raphael v DCI Makadara &Another [2014] eKLRwhere it was held that mandamus sought could not issue against the 2nd respondent which from its very name seemed to be a limited liability corporation.

164. Accordingly, it was submitted that the prayers of mandamus directed at the 1st and 2nd respondents which are private companies cannot avail to the applicant as there is no identified public duty which the respondents were mandated by statute to perform for the exparte applicant. Further reliance was placed on Kenya National Examinations Council v Republic Exparte Geoffrey Gathenji Njoroge &9 others [1997] eKLR. Where the court stated that mandamus issues to compel a public body to perform its statutory duty where such public body has refused to do so, and that only certiorari can quash the decision already made in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.

165. The interested party maintained that the Election Manual for KTDA Managed Tea Factory Companies Directors nominees and Buying Centre Committee Members 2011/2012 provided that complaints arising prior to the issuance of election notices and release of prequalified candidates  would not stop elections but would be considered after election and that they would be made to the company Secretary and that Article 86 (g) of the 1st respondent’s Articles of association empowers the 3rd respondent to oversee the election of directors hence there is no merit in the applicant’s application and allegations that the 3rd respondent acted without jurisdiction.

166. On the allegations that the 3rd respondent acted ultavires in removing the applicant from the position of director, it was submitted that the 3rd respondent never removed the applicant from being director but only determined the petition presented to him by the interested party and 2 others  and that therefore the 3rd respondent only stated his fin dings in accordance with Article 88(2) of the Articles of Association of the 2nd respondent with regard to the minimum educational requirements for directorship. Further, that the 3rd respondent only declared the relevant provisions of the Articles of Association on the qualifications of the applicant which cannot be said to be a removal of the applicant from being director.

167. It was submitted that the moment the applicant ceased being qualified to vie for directorship, then he automatically vacated office as stipulate in Articles 104(a)a 105 (a) of the Articles of Association which deals with disqualification of directors of the 2nd respondent company and which was invoked by the 3rd respondent.

168. The interested party maintained that the applicant was not removed but disqualified by his failure to possess the requisite minimum educational qualifications and therefore he could no longer hold office of director for want of qualifications hence he could not be placed as a candidate for election into the directorship of the 1st respondent Company.

169. It was further submitted that the applicant as a shareholder of the 2nd respondent is bound by the mandatory provisions of the Articles of Association thereof and the procedures laid therein. Further, that the 3rd respondent derived his power to direct and oversee the elections of directors from Article 88(g) of the Articles of Association of the 1st Respondent and the power to handle election petitions is derived from the Election Manual of KTDA.

170. Counsel reiterated that section 139 of the Companies Act deals with resolutions to remove directors from office and that subsection 6(b) thereof stipulates that the section does not limit any power to remove a director that may exist apart from that section. It was also submitted that the provision cited by the applicant does not take away the power of the 3rd respondent to handle complaints arising from nomination process or to communicate the result of any decision making from that.

171. It was submitted that all communication by the board of Directors is done by the Company Secretary and that in this case the Company Secretary acting in the capacity of director of Elections communicated to the applicant on the latters’ ineligibility to continue holding office of director, so that a fresh exercise of nominating and or electing director could commence, so that he can notify the Registrar of change of directors in accordance with section 138 of the Companies Act, to avoid penal consequences.

172. On the applicant’s submission that the Companies Act does not provide for the 3rd respondent to determine such disputes, it was submitted that the Companies are entitled to carry out such functions through internal mechanisms in accordance with the Articles of Association and Elections Manuals.

173. On whether the applicant was accorded a fair administrative action, it was submitted that he was accorded an opportunity to ventilate his response to the allegations levelled against him that he had no minimum academic qualifications to hold office of director and reasons given. Reliance was placed on the case of CA 50 of 2014 Judicial Service Commission v Gladys Boss Shollei &Another [2014] eKLR.It was submitted that there was no trial or taking of oral evidence so the issue of cross examination and legal representation did not arise in this case especially where he did not ask for such.

174. The interested party also submitted that the 3rd respondent is not a public officer but a Company Secretary of the two private companies and that the decision made was not for public consumption but for the benefit of the 1st respondent company.

175. On the allegations that the 3rd respondent was biased, it was submitted that the question of educational qualification could not have been decided otherwise than in accordance with the Articles of Association hence the issue of impartiality on the part of the 3rd respondent does not arise. Further, that a NINE FAIL does not constitute an ‘O’ level qualification. Further, that to date the applicant has never supplied his ‘O’ level certificate to demonstrate that he qualified in accordance with the Articles of Association. In addition, it was submitted in contention that a different umpire in similar circumstances would have arrived at the same decision as the 3rd respondent did in this case.

176. It was further submitted that the application seeks to attack the merits of the decision and not the decision making process and that no grounds for grant of judicial review remedies have been proved.

177. That the applicant had come to court with unclean hands hence he does not qualify to be issued with the orders sought and that what he seeks from this court is to be installed as director of the 2nd respondent despite his lack of qualification as stipulated in the Articles of Association of the Company, which this court should resist. The court was therefore urged to dismiss the application by the applicant.

178. In rejoinder oral submissions by Mr Kanjama, he maintained that the Companies Act stipulates who has the authority to appoint and remove directors and that under Memorandum and Articles of Association of the 1st respondent, Articles 86-89 thereof, it is the shareholders at the Annual General Meeting.

179. It was submitted that the applicant having served as director for 12 years, he could not be held to be unqualified to hold office of director in the subsequent elections and that any degree qualification as possessed by the applicant was above the O level qualification hence he qualified in all aspects.

180. It was submitted that Article 86 (b) of the Articles of Association is clear on the role of the 3rd respondent which is to appoint  and direct returning or presiding officers not to hear election petitions.

181. That the issue of qualifications were to be dealt with in accordance with nomination rules of the parent company by a dispute resolution committee comprising 7 members which should have been set up.

182. Mr Kanjama maintained that the rules provide for personal appearance and that section 4(4) of the Fair Administrative Action Act is clear that the administrator shall accord the person an opportunity to be heard in person.

183. On jurisdiction, it was submitted that the applicant never conceded the jurisdiction of the 3rd respondent, and that he contested it.

184. It was also submitted that the Shollei case was not relevant as the facts and issues were different

185. On necessity for legal representation, it was submitted that election rules and the Fair Administrative Action Act are clear and that in this case lawyer was necessary to persuade the 3rd respondent

186. On the timelines for hearing and determining this case, it was submitted that the Evans Kidero vs. Ferdinand Waititu case relates to timelines for filing of the petition and not for hearing and determining of the case once filed  and that the court is seized of the power to extend time to determine a matter

187. On the alleged attack on the merits of the case and not procedure, the applicant’s counsel relied on sections 8 and 4 of the Fair Administrative Action Act and the Ridge and Baldwin Case and submitted that procedure includes abuse of discretion and that  merits unsupported by evidence is a sign of bias.

188. It was submitted that where the decision is illegal or unreasonable the court can quash the decision. It was also submitted that this case is government by both contract in terms of Articles of Association and law which is the companies Act, the Fair Administrative Action Act and the Constitution.

189. On the powers of the court, it was submitted that the last prayer in the notice of motion is clear that the court can grant any other orders to implement its orders as per Articles 47, 50, 159 of the Constitution and section 11 of the FAIR Administrative Action Act in order to stop violation of the law. Counsel urged the court to allow the motion and make clear directions on the election of the applicant.

DETERMINATION

190. I have considered all the foregoing and in my humble view, the following issues flow for determination, as discussed one by one:

a. Whether Judicial Review Remedies sought  in this case  by the  exparte  applicant  lies against  private  entities or persons  who  are not  exercising  or performing  public duties.

191. The respondents and interested party maintained that case law cited is clear that judicial review remedies only lie against public entities that have a statutory public duty towards the applicant. Article  47 of the Constitution  provides that (1) every person  has the right  to  administrative  action that  is expeditious, efficient, lawful, reasonable  and  procedurally  fair.  (2)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  reasons for the  decision.

192. Section 2  of the Fair  Administrative  Action Act, 2015  defines administrative  action to  include (1)  powers, functions  and duties exercised by authorities or quasi -judicial  tribunals; or (11) any  act or  omission  or decision  of  any  person, body  or authority  that  affects  the  legal rights  or interests  of any  person to whom  such action  relates.

193. In addition, Section 3 of the Act  states that the Act applies  to all state  organs  and  non-state agencies including any person exercising administrative authority; performing  a judicial  or quasi-judicial  function under the Constitution or any written law; or whose  action, omission  or decision  affects  the legal rights  or interests  of any person to whom such action, omission or decision relates.[emphasis added].

194. The respondents   and interested parties contend that they are private entities hence Judicial Review remedies cannot lie against them.  I disagree.  Judicial Review remedies have now been elevated from the traditional prerogative orders to constitutional remedies for violation of fundamental human rights and freedom under the Bill of Rights.

195. The right to administrative action is now a fundamental human right guaranteed by Article 47 of the Constitution and as implemented by the Fair Administrative Action Act, 2015, which clearly stipulates that the Act applies to both state and non-state agencies.

196. Under Article 20 of the Constitution, the Bill of Rights and therefore the right to fair administrative action, like all other human rights stipulated in the in the Constitution applies to all law and binds all state organs and all persons without exception. It follows that  the respondents herein, in so far as they were exercising administrative authority and make decisions  that  affects  legal rights or interests  of  other persons including the applicant who claims that his right to fair administrative action was violated, are bound by the  provisions  of the Act and the stipulations in the  Bill of Rights  under  the Constitution.

197. That right, however, to administrative action as guaranteed under Article 47 of the Constitution , is  distinguishable from  the right  to a fair  hearing  stipulated under Article  50(1)  of the Constitution as settled  in the JSC vs. Gladys  Shollei  case. Whereas the right to fair administrative action may be limited by statute, the right to a fair hearing cannot be limited as stipulated in Articles 24 and 25 of the Constitution and illuminated in the JSC vs. Gladys Shollei case.

198. The cases referred to by the respondents and interested party, including JR  483/2013  Jacinta Wanjiru Raphael  vs DCIO Makadara & 2 Others (supra); JR  32/2014 Republic vs Kamp, Prisk Exparte Nakuru  Municipality Pubs, Bars, Restaurants and Hotel Owners  Association (supra); Kenya National Examination Council  vs Republic exparte Geoffrey  Gathenji Njoroge  & 9 Others [1997] e KLR where it  was held, inter alia, that the remedies of Judicial Review  lie only against public  bodies not private entities  and that therefore the complaint by the applicant herein should  have been  lodged before  the ordinary  civil court  for  determination of the issues  raised, though useful but were decided before the Fair Administrative Action Act, 2015 which became operational on 17th June, 2015 was enacted and or operationalized. The provisions of Article 47 of the Constitution which are broad and the past judicial pronouncements on this issue of whether judicial review orders can issue against private entities must therefore be read in line with the implementing Act.

199. Article  165(6) of the Constitution vests  the High Court  with jurisdiction to Supervise Subordinate courts, any person, body or authority  exercising  a judicial or  quasi –judicial  function and the court   may, under  Article  165(7)  call for the record of any proceedings  before any subordinate   court or person, body or authority referred  to in Clause  (6)  and  may make any  order or give any  direction it considered appropriate to ensure fair administration of justice.

200. The only question would be whether the Judicial Review orders sought herein are available to the applicant, and that is an issue that this court will endeavor to resolve.

201. The right to fair administration action that is expeditious, efficient, lawful and  reasonable  and  procedurally  fair is  no doubt guaranteed in Article 47 of the Constitution as implemented  by  the Fair  Administrative  Action Act, 2015.

202. The Fair Administrative Action Act, 2015 defines an administrative action to include:

i. “The powers, functions and  duties  exercised by authorities or  quasi  judicial  tribunals or

ii. Any person, body or authority that affects the legal rights or interests of any person to whom such action relates.”

203. The term “administrative” on the other hand is defined as:

a. A person who takes an administrative action or who makes an administrative decision.

204. The Fair  Administrative  Action Act  contemplates  redress  by way of Judicial Review  as a way of enforcing  the right to fair  administrative  action under Article 47, and not  enforcement  of contractual obligations  between private  entities.  This is so, considering the remedies available under Section 11 of the Act which include:

1. Any order that is just  and  equitable  including

a. Declaring  rights  of the parties in respect  of any matter  to which  the administrative  action  relates;

b. Restraining the administrator  from acting  or continuing  to act in breach of  duty imposed upon the administrator under any  written law  or from  acting or continuing  to act in any manner that is prejudicial to the legal rights of an applicant;

c. Directing an administrator to give reasons for the administrative action or decision taken by the administrator;

d. Prohibiting the administrator from acting in a particular manner.

e. Setting aside the administrative action or decision and remitting the matter for reconsideration by the  administrator, with  or without directions;

f. Compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right.

205. From the above provisions of the applicable law, it is clear that first and foremost, mandamus as a Judicial Review remedy cannot issue against a person, body or authority not exercising   a public duty owed in law.

206. Accordingly, I find and hold that the Fair Administrative Action Act has enlarged the parameters for grant of judicial review remedies such that private individuals or entities can be called upon to account for their administrative actions and or failures.

b. The second issue for determination is whether this court is devoid of jurisdiction to hear and determine this matter for reasons that the provisions of the Fair Administrative Action Act, 2015 at section 8 stipulate that proceedings commenced under the Act shall be heard and determined within 90 days from the date of filing, and that as this matter has not been determined within the said period of 90 days, it is void.

207. In answering  this  question, I am  alive to the  provisions of Section 8 of the Fair  Administrative  Action  Act, 2015  which stipulates that an application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application. The respondents and interested party urged this court to find that its jurisdiction had lapsed in view of the above provisions.

208. This issue of jurisdiction of the court on matters which are beyond the stipulated period for determination, other than election petitions was the  subject of JR 502 AND   503  OF  2016, REPUBLIC VS THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD, KENYA POWER &LIGHTING COMPANY LIMITED EXPARTE KLEEN HOMES SECURITY SERVICES LIMITEDwhere this court  pronounced  itself  that Parliament  which represents  the will of the  people  could not  have intended to legislate  to  take away discretion of the courts and to cause an injustice  to the people  who have  delegated their  sovereign  power to it to legislate, by taking  away the  role of the  court in case management.

209. The cases cited in extensor by  the respondents  concern  election petitions  whose timelines are not only stipulated by the Elections Act but  by the Constitution  at Article 87 (1) of the Constitution and with a historical background to it that in the past constitutional dispensation and before the 27th August 2010 effective date of the 2010 Constitution, election petitions used to drag in court until the next election thereby defeating the very purpose for which the petitions challenging elections were lodged. The same cannot be for the persons seeking judicial review of administrative actions.

210. Article 87 (1) of the constitution empowers Parliament to enact legislation providing for timely determination of electoral disputes. The elections Act stipulates that election petitions must be heard and determined within 6 months from the date of filing. And with regard to presidential petitions, they are to be heard and determined in 14 days from date of filing. I therefore  in adopting  my own  decision and  applying the decision  in the case of  Republic Vs. Public Procurement  Administrative Review Board &Another Exparte Selex Sistemi Integrati [2008]eKLR by Nyamu  J and find and hold that this matter is not void  by virtue  of the determination  coming after  the 90 days stipulated in section 8 of the Fair Administrative Action Act. 2015. A matter which is filed within the stipulated statutory timelines unless it is an election petition cannot be void for reasons that the determination by the court has not been rendered within 45 of 60 or 90 days. This court appreciates that the Fair Administrative Action Act is an Act of Parliament implementing Article 47 of the Constitution which guarantees the right to fair administrative action. And whereas the court appreciates that the Act was enacted with the objectives of hastening or expediting the fair administrative action;  And whereas the intention of expedition, efficiency, lawfulness, reasonableness and procedural fairness must be appreciated if fair administrative action is to be achieved,   I doubt that the legislature could have intended to give the remedy with one hand and remove it with another by the stifling the court with strict timelines for determination of such disputes.

c. The third issue for determination is Whether  the  3rd respondent had jurisdiction  to hear and  determine an election Petition relating  to election of directors, and therefore whether  the  3rd respondent acted ultra vires  or whether  he abused  his powers or usurped  jurisdiction of the Board  in making  determination

211. The applicant asserted that the 3rd respondent had no power to disqualify the applicant from office of director and or to ask him to vacate office of the director because the applicant was an elected director by shareholders and that only shareholders had the power to remove him from office in accordance with Articles of Association of the 2nd respondent Company. The respondents and the interested party contended that there was no disqualification or removal of the applicant from office by the 3rd respondent, but that the 3rd respondent being charged with overseeing of election of directors and implementer of the Companies Act and the Articles of Association of the 1st and 2nd respondents was under a duty to seek clarification from Kenya National Examinations Council (KNEC) and communicate the position to the applicant.

212. In my humble view, the letter written by the 3rd respondent communicated  the  status of the  applicant  as  director following verification of his academic  qualifications by the KNEC and therefore the communication  was not a removal   of the applicant  but   a pronouncement  on the requirements under Articles  88(2), 104 (a) (a) as read with Article 105 (a) of the Articles of Association of the 2nd Respondent Factory Company which  binds  the applicant.

213. Therefore, on whether the 3rd respondent had jurisdiction to hear and determine the petition filed by the interested party and two others, the nature of the  dispute raised by the interested party and 2 others  during the nomination period for Zone 4 directors, it required the  3rd respondent   as the Company Secretary responsible for implementation of the Tea Act and the Companies Act as well as the  Articles of Association of the 1st and 2nd Respondent Companies and overseeing elections, as per his job description, to write  to the Kenya National Examinations Council (KNEC)  seeking  clarification of the applicant’s  “O” level qualifications if any.  It was not for the 3rd respondent to determine the qualifications of the applicant, as the qualification was determined by KNEC which declared that the applicant had a fail 9(NINE) in his ‘O’ level education.

214. This court is unable to find that the process conducted by the 3rd respondent on behalf of the 2nd and 1st respondents involved a process leading to the removal of the applicant as a director as stipulated in Article 89 and 90 of the Articles of Association of the Company but that the 3rd respondent having received communication from KNEC to the effect that the applicant had failed in his O level examinations, it was necessary to seek a response from the applicant on the revelations by KNEC. Therefore, a communication after satisfying himself that Articles 104 (a)(a) and  105 of the Articles of Association  had taken effect  in view  of the  confirmation  by KNEC that the applicant had failed in his ‘O’ level  examinations cannot be equated to a process requiring a full trial, legal representation and cross examination of those who had written to the 3rd respondent complaining that the applicant did not meet the minimum ‘O’ level academic qualifications required for one to vie for directorship in the Factory Company.

215. Although the applicant claims that he had a degree and pre degree qualifications, a degree and pre degree qualification was subject to the ‘O’ level qualification and therefore where it is clear that the applicant had failed in his O level as opposed to getting a low grade, and as the applicant had no academic qualifications by virtue of his FAIL in his O level examinations, he could not have simply done a pre-university examinations and gained entry into a degree Programme. That would be a mockery to academic qualifications and amounts to an overt academic dishonesty.

216. The applicant did not produce his O level certificate or other relevant or equivalent qualification, for purposes of evaluation by the Evaluation Committee to exercise their discretion whether to accept the O level or the degree or other qualification besides the O level qualification.

217. In this case, Section 4 of the Tea (elections) Regulations 2005 contemplates academic qualifications for one to be a director of a Tea Factory Company.  However, the Articles of Associations of the 1st and 2nd respondents at Article 88(2) stipulates that for one to qualify to vie for directorship in the company, one must have, among others, a minimum of ‘O’ level qualification.

218. Albeit the exparte applicant claimed  that he had  served for over  12 years as director with his ‘O’ level qualifications which had never been questioned after he requested the Kenya National Examination Council to write to the Company, and that in this case the respondents and interested party were  malicious for seeking  clarification from KNEC, I find that the applicant  has not  demonstrated  that during the previous tenure, his ‘O’ level minimum qualification was   subjected  to any  form of  vetting  to establish whether it  was  a qualification. In my view, the applicant served as a director in default.

219. In addition, this court wonders why the applicant never submitted his ‘O’ level certificate for verification with Kenya National Examination Council to determine whether it was genuine or whether it was a qualification. This is because the applicant only wrote to KNEC asking them to write to the Company to verify his results. In my view, a result is not necessarily a qualification.  A result could be a report but a qualification must be accompanied by a certificate of such qualification which the applicant herein lacks.

22. In my humble view, the clarification sought by the 3rd respondent  following  the petition by the interested  party and  others  was in  order  and cannot  under any imagination  be attributed to malice, bias or acting at  the behest of the interested party  who was  his boss.

221. Further, albeit the applicant claims that he has a post graduate degree and therefore the ‘O’ level minimum qualification would not matter, I disagree. The company is governed by the Companies Act and its Constitution is the Memorandum and Articles of Association.  If the  Articles of Association clearly stipulates  at Article 88(2)  that the  candidates  required  a minimum  qualification  of ‘ O’ academic qualification level then  the applicant cannot  demand that irrespective  of whether or not he had any ‘O’ level qualification, he was  qualified to vie as a director because he had higher  qualification beyond ‘O’ level or that because he had served as a director for over 12 years without his O level qualifications being questioned. The fact that one’s qualifications had never been questioned is not a license to that person to plead estoppel where it is discovered subsequently that in fact, the company was under mistaken belief that the applicant had such qualifications. An oversight on the part of the respondents cannot be used to create a legitimate expectation. There is no right to an entitlement where there is breach of the Articles of the Company.

222. In this case, I must clarify that there was no removal of the applicant as director by the respondents.  After his election in  accordance with the election manual  which  prohibited stoppage  of elections  on account  of an objection  or petition  pending, the applicant would then proceed to submit  his candidature for election at the Annual General Meeting as the director for the 1st  respondent.  It is at that stage that he faced an obstacle upon clarification from Kenya National Examination Council that he had attained a 9 (NINE) FAIL which the 3rd respondent found not to be  a qualification, and communicated to him.

223. What the 3rd respondent did,  in my humble view,  as  the  Group Company Secretary, was to communicate to the applicant  the stipulations  in Article  88(2) of the Articles of  Association, and the  fact that  under Article 104 (a)(a) as read  with Articles 105(a)  of the said Articles of Association, the applicant automatically stood disqualified  from being  a director of the  2nd  respondent and therefore he had to vacate the office of director.

224. It  should be noted that the statement of Examination Results  submitted by the Kenya National Examination Council  on the  request  by the applicant  did  not stipulate that  A NINE (9) was a fail until the  3rd  respondent sought  the  clarification.

225. It is the Kenya National Examination Council that declared that the applicant had failed in his ‘O’ level examinations and in my view, that is why no certificate was issued to him.

226. The applicant referred  to the Election of Tea Factory Company Directors Nominees Members procedure -2015/2016 annexed to his further supplementary affidavit filed in court on 1st December  2016 and claimed that the  procedure established for resolving  election petitions was not  followed by the respondents  who had no  mandate to hear and determine  an Election Petition against him. A closer look at the annexed procedures show that they specifically refer to elections which were to be held in January 2016.

227. In this case, no procedures for the October 2016 elections were provided.  On the other hand, the notification for  candidates  to submit  their  applications for the Kenya Tea Development Agency  Holdings Director  Position for  Zones 2,4,7 and  8  which were  coming up for  rotational cycle  was  for October 2016.  The notice   was issued by the 3rd respondent company Secretary in September 2016(Annexture PTK 3’ is the notification for zone 4.

228. Even assuming that the procedures referred  to above applied to  elections  which were scheduled for October  2016  which is not the case here, at page 3 paragraph 7 states that “where the condition  in the  notification for candidature, refers  to ‘O’ level or other professional qualification as  a requirement, the original  certificates(s)  must be been and  a copy of the same  retained. The applicant has not demonstrate that he presented his original certificate or other professional qualifications, a requirement which was mandatory. Paragraph 8 states: “ in the unlikely event that one has lost his  certificate(s) he must apply for the replacement  certificate/confirmation  from the  relevant  examining  body and  the original receipt  supporting  such  application  submitted to the FUM/Company Secretary.”Paragraph 10 states: A candidate will not be acceptable in the absence of such proof.”At page 12 thereof  is Complaints/Dispute Appeals Resolution Rules which provide that a committee shall be appointed  by the Managing Director of the Managing Agent, comprising of a Chairman, Secretary and at least  seven(7) members  and the  quorum shall be 4, to receive complaints  Disputes/petition/appeals out of the pre-qualification verification exercise   carried  out.

229. At paragraph 8, just to demonstrate that those Rules or procedures  are  not  for  general application  but  were  specific  to the  2015/2016  elections, it is provided as follows: “8: The committee  shall sit  between 13th and  15th  December  2015and  conclude  its business  within the  two days  to enable  the preparation and  printing  of the  ballots for the nomination elections.”

230. At paragraph 12, it is provided that, “The decision of the committee  shall be in  writing  and  shall be  communicated through the Factory Unit Manager from the Factory Company  that the complainant/disputant /appellant  has applied  from such decisions  shall be prepared  and sent not later  than 15th December  2015. ”

231. On Dispute/Complaint/Petition/Appeal – Requirements, at paragraph 4 page 13 of the procedures, it is stated:

“In the event that the issue is in respect of lack of submission of required documents, Original “O” level qualification certificate.  The petitioner/disputant/appellant must attach the original certificate (Regional Manager will attest that the original certificate has been seen by him and attach a copy duly stamped with the stamp of the Regional Manager .A Petition/dispute/appeal in respect to (4) above without the documents mentioned therein attached shall not be entertained.”

232. I reiterate that the above  procedures  are not  applicable  to the elections  which took place in October  2016  and which gave  rise to these proceedings  as they are  specific  as to the period  that they related. The applicant did not produce any rules or procedures for the 2016 October elections which he claims were flouted by the respondents.

233. At pages 14 and 15 of the exparte applicant’s notice of motion is a document titled “Directors.  It is  annexed to the  further  supplementary affidavit and  comes just after  the  Kenya Tea Development Agency Election of Tea Factory company Directors, Nominees and  Buying Centre Committee Members –procedures -2015/2016.  The document is an annexture AM1 referred to at paragraph11 of the further supplementary affidavit and thereat, the applicant deposes that:

“ According to the Articles of Association of Kenya Tea Development Agency Holdings  Ltd,  the 1st respondent herein, and  qualified  nominees  are eligible for election as Directors of the Company at the Annual General Meeting  and the Directors  so elected shall be confirmed  at the Annual General Meeting  (annexed as  page  15-16  of ‘AMI’ is a true  copy  of the relevant  pages of the Articles  of Association for Kenya Tea Development Agency Holdings Ltd,  and also referred  by the interested party replying affidavit sworn by Peter Tiras Kanyago, interested party herein and dated 27th November  2016”

234. The same document is mentioned at paragraph 16(c) of the same supplementary affidavit sworn by the applicant on 1st December 2016. In the said documents reproducing Article  86(b)  of the Kenya Tea Development Agency Holdings Company, it is provided that:

“No person nominated in an electoral area specified by the  company under Article 86 (c ) shall be qualified to hold the office  of a Director unless-

i. ..

ii. He has attained a minimum educational or qualification  equivalent to ‘O’ level

235. The applicant has annexed qualification of a bridging pre university degree and not his ‘O’ level certificate or equivalent qualification.  From the clarification by Kenya National Examination Council that the applicant’s results are a NINE (9) FAIL,this court is unable to interpret that a Nine Fail result is an academic  qualification of any kind and therefore it cannot  be  said  that it is the  3rd  respondent  who determined  that  the applicant  was not qualified,  but the Kenya National Examination Council.  It is  therefore upon  the applicant  to challenge  the determination  by Kenya National Examination Council’s result of a NINE(9)  FAIL, and not to claim that the respondents disqualified him from vying for directorship on account of  absence of an O level qualification.

236. The wordings in Article 86(b) as annexed to the exparte  applicant’s further supplementary affidavit  are clear that the nominee must  meet all the  qualifications in (i)- (v) since the  conjunctive   words used are  and  throughout, and  not or.

237. Accordingly, I find that the 3rd respondent did not act ultra vires his powers and neither did he usurp powers of the Board of Directors as the determination of the applicant’s FAIL and therefore no-disqualification was not made by the 3rd respondent but by the KNEC. I also find that the 3rd respondent as an implementer of the companies’ Articles of Association and the Companies Act had jurisdiction to receive the petition and consider it THE WAY HE DID BY seeking clarification from KNEC on the applicant’s academic qualifications, according him an opportunity to know the position held by KNEC and giving him an opportunity to respond thereto.

d. On the fourth issue of whether the 3rd respondent accorded the  applicant  fair  Administrative  Action as  stipulated under Article  47(1)  of the Constitution and the Fair Administrative Action Act, 2015,it is worth noting that  upon the 3rd respondent receiving an email concerning the alleged or suspected lack of qualification by the exparte applicant to vie for the director’s position, he wrote to KNEC seeking clarification and wrote to the applicant notifying him of the developments and  asked the applicant to respond thereto and upon receipt of the detailed response by the applicant, the 3rd respondent, after consulting several legal minds for an advisory, communicated to the applicant the official  position as per the clarification by KNEC. The applicant never requested for an oral hearing on the subject, before the 3rd respondent to cross examine his accusers and or to be represented by an advocate of his choice. Furthermore, the applicant’s so called accusers never made any oral representations before the 3rd respondent. They simply raised an issue which they considered critical as it would affect the outcome of the elections on the academic qualifications of the applicant to vie for directorship of the Company.

238. In this case the court finds that albeit the 3rd respondent purported to conduct a hearing of the petition, the question of O LEVEL qualification was already determined by KNEC and therefore it was not the 3rd respondent or the interested party and others who were to determine the qualification of the applicant but KNEC which had already determined that the applicant had failed in his O LEVEL examinations. The applicant’s role was to simply communicate the statement of results to the applicant and the implications thereof, which he did.

239. The court also finds that the person responsible for the result of fail is not the interested party but KNEC  whose records concerning the applicant show that he did not  have any  academic qualification.  It follows that the person to be cross-examined as to the qualification is KNEC, and not the 3rd respondent or the interested party and two other persons who raised concerns over the applicant’s O level qualifications..

240. The court further finds that the applicant is at liberty to sue KNEC to explain how they arrived at NINE (9) FAIL which is not a qualification.

241. Further, the court finds that the interested party was not the party in possession of the evidence of disqualification of the applicant.  He only raised the issue for the 3rd respondent to seek confirmation from KNEC and to communicate to the applicant which the 3rd respondent did.  Therefore, Cross examination   of the interested party could not have assisted the applicant get any favorable outcome as it is not the applicant or the 3rd respondent who arrived at the decision that the applicant had failed in his O level examinations.

242. In addition, there  was no violation  of the  applicant’s right to a fair hearing stipulated in Article 50(1) of the Constitution as the  3rd respondent  did not make  a decision to  disqualify the applicant  but  communicated to him the   status of the alleged  qualifications in line with Articles  88(2) , 104  (a)(a) and  105  of the  2nd Respondent’s  Articles of Association.

243. In my  humble  view, this is not  a case where the applicant  can be heard  to complain that  he  was  not given  a fair hearing  or a fair administrative action as  stipulated  in  Articles  50(1)  and  47 of the Constitution respectively.  The reasons are that upon the 3rd respondent receiving the clarification from Kenya National Examination Council that the applicant had a nine (9) fail at ‘O’ level and before invoking Articles 88(2), 104 (a)(a) and 105 (a) of the 2nd Respondent’s Articles of Association, since the interested party had simply raised the issue based on allegations that the applicant may not have had an ‘O’ level qualification, it was upon the respondents to establish the position and communicate to the applicant to elicit his response.

244. The 3rd respondent’s communication was based on the statement of examination results provided by Kenya National Examination Council that the applicant had a fail in his ‘O’ level examination.

245. With that result, the 3rd respondent struggled to understand  whether a fail is a qualifications  and hence  the legal  opinions that he sought and  received, prior to  invoking  Articles 88(2),  104(a)(a)  and  105(a) of the Articles of Association of the 2nd respondent  company, to notify  the applicant  and the Chinga Tea Factory  Company Ltd and zone 4 of the development ensuring  following  elections.

246. It is worth noting that the communication by the 3rd respondent based on the determination by KNEC that the applicant had failed is not  a matter that required a hearing by the 3rd respondent but a communication to him of the statement of results by KNEC and invocation of Articles 104(a)(a) and 105(a) of the 2nd respondent’s Articles of Association, which Articles of Association clearly stipulate circumstances under which one would be unqualified as a director, and therefore vacation of office of director. The 3rd respondent nonetheless gave the applicant an opportunity to state his position on the matter upon which the 3rd respondent communicated to the applicant the official legal position as regards failure to have minimum O level academic qualifications.

247. More importantly, an examination  of the documents  submitted to the  Company Secretary on 5th October  2016 by the applicant  accompanying   his application for  consideration as a zone  4  representative being a Director of Chinga Tea Factory, he stated  :……  The confirmation  has been  sent to the Company Secretary’s office from Kenya National Examination Council on  Wednesday 5th October 2016 by EACL waybill No. 203348…”

248. There was no other advanced certificate or degree submitted to the Company Secretary to show that notwithstanding his NINE (9) FAIL result, he had other equivalent qualifications to vie for directorship.

249. My humble view is that the applicant is not being honest when he challenges the clarification sought by the 3rd respondent from Kenya National Examination Council as to whether NINE (9) was a qualification.  This lives an irresistible impression  that  the applicant  had something  to hide all  through concerning  his O level  Kenya National Examination Council results, and that  is why he resisted the inquiry made by the 3rd  respondent  on 24th  October 2016 to the Kenya National Examination Council to clarify whether the statement of examination results communicated is equivalent  to the  qualification.

250. The  3rd respondent’s letter  of  24th October  2016  at paragraph 3 states that his letter of 7th January 2013 did not elicit any response  and noted  that two statements, one was specific  that the result  was a FAIL and  one  was  silent on the same.

251. By a letter dated 25thOctober 2016, the Kenya National Examination Council wrote to the 3rd respondent stating that the statement issued on 4thOctober 2016 had typographical errors and annexed a complete statement and gave the result of 9(NINE) FAIL.

252. In my humble  view, albeit  the applicant received  his elections  certificate  for zone  4  for the elections  held on  28th October  2016   while  the  issue  of his ‘O’ level  qualifications was still pending, the respondents were not precluded  from invoking  the provisions of the Articles of Association that    rendered his election null and void for want of the requisite  minimum ‘O’ level  qualification.

253. In my humble view, the minimum qualifications were  mandatory and  in the absence  of any evidence   to the contrary, the applicant remained disqualified to hold the position  of director  from the moment  of discovery of the results hence  the  question of the respondents removing him from directorship of the company  did not  and  does  not arise.

e. Therefore, on whether  the  applicant  was accorded  a  fair hearing  and  fair administrative  action, although  the  applicant  claims  that he  was not accorded  a fair administrative action and  a fair hearing, in his letter of  31st October  2016 of  more than two  pages, while claiming  that the petition was not merited, he stated  that he  was  qualified  under Article  88(2) of the Chinga Tea  Factory  Company Ltd  and  gave  his defence  to the effect  that having been  cleared  to contest  the  vacant  seat together with others  and having  served since 2004  as director for 12 years, the petition  served no validity.  He claims that he had served with the interested party who all along knew that the applicant had completed his 4 years Secondary  Education and that  the  3rd  respondent  had no power or authority  to nullify  the declaration  issued by the Returning Officer appointed by the 3rd  respondent.

254. The applicant  also attached certificates from: Strayer College Certificate, District Columba for Bachelor of Science, Business  Administration and  Degree  in Arts, Marketing   and  Retailing; Institute  of  Certified  Public Secretaries of  Kenya; Certificate  of  Participation from Strathmore  Business  School  Executive  Education in Corporate  Governance  Executive Programme. The Degree  of Associate in Arts Marketing and  Retailing    was  obtained  in 1982 whereas  the  Degree of Bachelor  of Science  Business Administration  was obtained  in  1983.

255. However, the applicant  has not demonstrated that when  he applied for the position  of director, besides  his ‘O’ level  qualification, he also  annexed  his degree certificates to show  that in fact, besides his O level academic “qualification”, he  was more  than qualified  to vie for  position  of director.

256. That being  the case, I find  that the applicant   did not  even give  the  respondents  an  opportunity  to have  his degree  certificates  obtained outside of Kenya,  after a  fail in his ‘O’ level, to be vetted to determine whether they were genuine qualifications. I reiterate that the degree and associate degree were not part of the documents that he submitted to the verification committee.

257. Section 2 of the Kenya National Qualification Framework Act defines “qualification to mean “qualification in education and training as recognized by the Authority in accordance with this Act.”

258. The guiding principles for the framework under Section 3 shall be, among others, to promote access to and equity in education, quality and relevance of qualifications.

259. The applicant needed to demonstrate that the NINE (9) FAIL result is a qualification which enabled him to proceed to acquire a pre university qualification and a University Degree qualification in education and training as stipulated in section 3 of theKenya National Qualification Framework Act.  This provision on the definition of “qualification” overrides the Tea Regulations Elections 2005.  I am in agreement with the respondents that the Company’s Articles of Association is the constitution of the company which binds its members, the applicant included.

260. The applicant was all along aware of the minimum requirements for one to be elected as a director.  He however got away  with it  for close to12 years  and  is now resisting  any attempt  to establish  whether  his ‘O’ level  examination results showing  a NINE(FAIL) is not a  qualification for all purposes as stipulated  in Article 88(2)  of the Chinga Tea Factory Articles  of Association. In plain words, the applicant   was not a successful candidate at his ‘O’ levels.  He failed  his examination  after attending 4 years of secondary education “ordinary level” and has got no academic  qualification and  was therefore  not suitable, in  the first  instance to hold the office of a director  or to pursue  any other advanced professional training unless he re-sat that  “o” level examinations or its equivalent and  passed.

261. In Romauld  James vs Attorney General of Trinidad and  Tobago  [2010] UK PC Privy Council  Appeal No. 0112/2009, cited in  Republic vs  Council  of Legal Education Exparte  James Njuguna & 14 Others[2007] e KLR it  was  held,  and  I concur that:

“ The failure  of the candidates  who had  gone through the Diploma  course offered  by the Kenya School  of Law in those circumstances did  not constitute a qualification for  entry  into the Bar”.

262. The applicant  wants this court to believe and find  that it  was erroneous  for the 3rd respondent to pronounce that the  applicant was not qualified  as stipulated  in Article  88(2) of the Articles  of  Association of the Company because  the applicant had other  higher qualifications  than the ‘O’ level.

263. As earlier  stated, there  was  no ‘O’ level certificate  annexed  to show that  the  applicant  had  such minimum  qualifications.

264. Therefore, as to whether the procedure was followed in disqualifying the applicant from the position of director of the 1st and 2nd respondents, I find and hold that even the procedures for 2015/2016 elections which the applicant relied on required that an original certificate must be availed.  Instead, from his own evidence the applicant had all along asked Kenya National Examination Council to avail the Company Secretary  his results  to confirm  that he had an ‘O’ level qualification. I however find that those procedures were inapplicable and the applicant did not demonstrate to court which applicable procedures were not followed in the pronouncement that he stood disqualified from holding the position of director hence he should vacate office as required by the Articles of Association.

265. Before the applicant can be heard to complain that the respondents had no power to hear and determine the petition on his “O” level qualification; that they were biased, or that they never followed procedures which are non-existent, he must come to court with clean hands.  He must demonstrate that he was qualified to vie for directorship and that he was treated unfairly.  He did not demonstrate as such.

266. In Robert K. Bett and David Kimutai Bett HCC102/2009 Maraga J (as he then was) held, and I concur, inter alia:

“ where  the conditions  in  the Articles  refer to ‘O’ level or  other  professional  qualifications , he  original certificate must be  seen and  a copy retained”.  That clearly implies that the candidates had to annex  to their application copies of their academic certificates ….In the  circumstances, I find that  the Unit Manager  of the 3rd defendant  was right  in rejecting  the  plaintiff’s applications  as not meeting the set requirements.  Consequently I dismiss this application with costs.”

267. The above holding is self-explanatory and applies to this case.

268. On the issue of whether the 3rd respondent was impartial in his decision making, in this case, the applicant has raised a very important   matter touching on the qualifications but he has not stopped there.  In his detailed  letter to the  3rd respondent  dated  10th November  2016  he at  paragraph 24   claims that  the  qualifications under the Articles of Association are overridden by the Tea (Elections) Regulations  under the  Tea Act which stipulates  the  eligibility issue as “O” level Education or relevant professional qualifications or management experience in a public  organization and accuses the 3rd respondent of partial  interpretation  on just one aspect of ‘O’ level qualification which in his view, shows  possibility of partisanship and  against  the principles of impartiality, objectivity fairness and  justice  and  gives  the  impression of bias.

269. Further, that the Tea Act and Regulations thereunder are superior and override any conflicting Company Articles.  In other words, the applicant was disowning the provisions  of Article  88(2)  of the Company’s Articles of Association but nonetheless insisted that he possessed the recognized  alternative  to ‘O’ level qualifications stipulated in Article 88(2) of the said Articles of Association. He also claims at paragraph 26, that he had experience  as well as other  professional qualifications.  He   however did not state Regulations for which year he was referring to.

270. I have perused the Tea (Elections) Regulations, 2005 Gazetted vide LN No. 114, made under Cap 343(The Tea Act).  The Regulations at Regulation 4 on eligibility of the Board stipulates 4(1) every director of a Tea Factory Company; shall be eligible for election to the Board in accordance with the provisions of these Regulations.

No person shall be eligible to be a member of the Board if that person-

a. Is not a director  of a tea  factory company;

b. Is an undischarged bankrupt;

c. Is  of unsound mind;

d. Has been convicted for mismanagement or corrupt  practices;

e. Has been convicted  of an offence  under the Act;

f. Has not  attained the ‘O’ level certificate of education or

g. Does not have the professional qualifications or management experience relevant to the tea sector.

271. The applicant maintains that he has the professional qualifications or management experience relevant to the tea sector. Whereas  I agree that his  12 years  management  as director of the Tea Factory Company  may have  given him experience  in the Tea Sector, I find  that  during  that period, his academic  qualifications had not  been  put  into question  and once  his academic  qualifications were  put into question, therefore it  was  upon the applicant  to demonstrate  that he had  the required  minimum  academic qualifications of ‘O’ level certificate  which facilitated his acquisition of  professional  qualifications or management  experience  relevant to the tea sector.

272. In my humble view, a FAIL result  in the Kenya  ‘O’ level could not have facilitated  the applicant to acquire   professional  qualifications  or management  experience  relevant  to the relevant  to the tea sector.

273. As earlier stated, the applicant  did not  indicate  which Tea(Election) Regulations  he  was referring  to and  I have  just referred to the  2005  regulations above. But there is more to that.

274. In  2012, Tea ( Elections ) Regulations  were promulgated and with regard to election of directors to the Tea Factory eligibility, Part IV on Election  to the small holder Tea Factory  Companies   Regulations…….14 (1) stipulates that Board of Director shall be  elected in accordance  with  the  Articles of Association of the company and  refers to Regulation 11  Mutatis  Mutandis eligibility for election to  the leaf  Base Committee  and   stipulates:

a. He is ineligible under any of the provisions of regulations 5 and 6 of mutatis Mutandis.

b. He has not attained the ‘O’ level certificate of education or has no relevant professional qualification or management experience in a public organization.

275. In my humble view, the above regulations of 2012 which are the latest override the 2005 regulations referred to above. The 2012 Regulations stipulate that the minimum academic qualification is O level Certificate hence the professional qualification or management experience in a public organization can only be attained after the O level qualification as the minimum. In the end, I find and hold that there was no evidence to  suggest  that the 3rd respondent  was  biased  in concluding  that the applicant  was not qualified to be director as per the KNEC  statement of Examination results. He only communicated the crystallization of Articles 104 (a) (a) and  105(a)  of the Articles of Association of the 2nd respondent which provided for disqualification and vacation of office  by director who is found to be unqualified to be director.

f. On the issue of whether due process was followed or whether the applicant was denied legal representation by an advocate, the court notes that  the  applicant  never sought  audience  for an oral  hearing  before the 3rd  respondent  after he had submitted his detailed  write  up dated  31st October 2016  and  10th November  2016  indicating that he  was  qualified  to vie as a director  of  the  2nd respondent  company.

276. There is nothing on record to suggest that the applicant sought for an oral hearing and was denied.  In addition, this is a matter where the petitioners simply wrote to the Company Secretary to inquire into the allegation that the applicant had no O level qualification.  The petitioners were not the ones in possession of the evidence that was to disqualify the applicant from being a director. They had no evidence to adduce and that is the reason why the 3rd respondent had to seek clarification from KNEC and not from the interested party and his co petitioners. The applicant’s  qualification or otherwise would be determined by Kenya National Examination Council examination results and not by the 3rd respondent whose duty was to communicate that result to the applicant by invoking the relevant provisions of the Articles of Association.

277. The record is clear that previously, the Kenya National Examination Council only supplied the information on the status of the applicant’s ‘O’ level which status was later clarified to be a FAIL.

278. In my humble   view, the information submitted by the Kenya National Examination  Council did  not require cross examination of the petitioner because  the applicant  has not  denied  that the  statement  of  examination results submitted by   Kenya National Examination  Council was correct as regards his O level examination results.

279. Therefore, by the 3rd  respondent  writing  to the applicant  on 15th November  2016  notifying  him of  his disqualification and  vacation of office, I find  no  malice or impartiality.  The Company Secretary did so in accordance with Article 104 (a)(a)and 105(a) of the Articles of Association which stipulate that:

“The office of the Director shall be vacated if the Director. Ceases to be qualified in accordance with Article 88 herein.

In accordance with Article 87 no person shall be qualified to hold the office of a director unless-

He has attained a minimum ‘O’ level education qualification and can read and communicate in English and Kiswahili languages.

280. In the absence  of evidence  of the applicant’s qualifications, I find  and hold that  the invocation of Articles  104 (a) (a)and  105(a) of the Articles  of Association of the 2nd  respondent  by  the 3rd  respondent  was not  ultra  vires  the  Articles  of Association  of the company, which  Articles  the  applicant  is bound  by.

g. On whether the   orders sought are available  to be applicant, I find and hold as follows:

281. The first prayer on Certiorari would not lie as the letter dated 14th November 2016 was a communication by the 3rd respondent Company Secretary on the disqualification and vacation of office by the applicant as per the KNEC statement of examination clarification report and in accordance with Articles 88(2), 104 and 105 of the Articles of Association of the 2nd Respondent Company;

282. The second Prayer on certiorari would not lie as there is no decision made by the 3rd respondent removing the applicant from position of director. The disqualification as stipulated in Article 104 (a)(a)automatically meant that the applicant had to vacate office as stipulated in Article105 (a) of the Articles of Association which Articles the applicant has not sought to be declared unconstitutional or offensive to the law and which bind him as member of the company;

283. I find that the applicant having been found to be deficient of minimum academic qualifications to vie for position of director, the advertisement of 16th November 2016 was appropriate to allow for qualified candidates to vie in fresh elections in Zone 4. therefore the prayer for certiorari to quash that communication would lot lie;

284. As the position occupied by the applicant automatically fell vacant following his disqualification under  Article  104(a)  of the Articles of Association, and therefore the  2nd  respondent  is entitled to have fresh elections to elect a director  to represent  it in the  Holding  Company, unless the applicant is appointed. Prohibition would therefore not be  in the interests of the 2nd respondent’s shareholders who are entitled to elect a qualified person as director to represent them in the 1st respondent Company;

285. In view  of the  advertisement in (iii) and  (iv)  above,  the  1st respondent would have no reason to appoint a director to replace the applicant, without giving the 2nd respondent’s shareholders  an opportunity to elect  a person of their own choice as a director  in the  1st  respondent  holding  company;

286. The court finds that there was no violation of the applicant’s right to Fair Administrative Action and or Articles 47 and 50(1) of the Constitution;

287. The court declines to compel the respondents  to allow the applicant  to  assume office as director of 1strespondent  representing  zone  4  as the disqualification of the applicant is by operation of the Articles of Association  of the   2nd  respondents on qualifications  and  vacation of office of director. There is no public duty imposed on the respondents to readmit back into office a director who has been rendered unqualified and liable to vacate office by operation of the  company’s Articles of Association;

288. To get back into that office, the applicant has to either be appointed under Articles 89 or 90 or to apply afresh and his documents/application be verified to determine whether he is qualified to vie for the directorship position;

289. Any other  order  that the court deems fair and just to grant is that the court having learnt that the applicant on leaving court after the hearing of this matter was involved in a near fatal accident, and had to be hospitalized for long, I order that each party do bear their own costs of these proceedings.

290. As most of this judgment which is fairly long owing to the detailed submissions placed before court by all the parties’ advocates, is handwritten owing to technological hitches, a typed copy thereof shall be availed to the parties as soon as the typing and proof reading thereof is completed

291. In the end, the Notice of Motion dated 1st December, 2016 be and is hereby dismissed with an order that each party do bear their own costs of these proceedings.

Dated, signed ad delivered in open court at Nairobi this 4th day of December, 2017.

R.E ABURILI

JUDGE

In the presence of:

Miss Malowa Advocate h/b for Mr Kanjama for the exparte applicant

Mr Milimo Advocate for the Respondents

Mr J.K. Kibicho Advocate for the Interested Party

CA: George