Kevin Turunga Ithagi v Fred Ochieng, Letizia Wachira, Bryan Khaemba, Rashid Ali Omar, Derrick Kuto & Peter-Miriam Mugure (being sued as officials of the Kenya Judges and Magistrates Association) [2015] KEHC 1952 (KLR) | Locus Standi | Esheria

Kevin Turunga Ithagi v Fred Ochieng, Letizia Wachira, Bryan Khaemba, Rashid Ali Omar, Derrick Kuto & Peter-Miriam Mugure (being sued as officials of the Kenya Judges and Magistrates Association) [2015] KEHC 1952 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 442 OF 2015

KEVIN  TURUNGA  ITHAGI...........................................PETITIONER

VERSUS

HON. JUSTICE FRED OCHIENG

HON. LETIZIA WACHIRA

HON. BRYAN KHAEMBA

HON. RASHID ALI OMAR

HON. DERRICK KUTO

HON. PETER-MIRIAM MUGURE

(being sued as officials of

THE KENYA JUDGES AND MAGISTRATES

ASSOCIATION)………………………………........RESPONDENTS

RULING

Introduction

1. The Petition herein was filed on 19th October 2015. The Petitioner who describes himself as an Advocate of the High Court of Kenya has sued the six Respondents on behalf of the Kenya Magistrates and Judges Association ( herein also “KMJA”).

2. KMJA was registered, under the Societies Act (Cap 108) Laws of Kenya, on 5th October 2010. Its membership is now open to, and is largely drawn from Judges of the Superior Courts, Magistrates, Kadhis and other judicial staff. The aims and objectives of KMJA include safeguarding the independence of the Judiciary and the rule of law, protecting and improving the welfare of the judicial officers and improving the quality of dispensation of justice in Kenya.

3. The Petitioner seeks an array of declaratory reliefs. He also seeks an order to stay the actions of the five respondents.

4. Simultaneously with the filing of the Petition, the Petitioner also lodged a Notice of Motion. The motion sought various conservatory orders.

5. The core question currently before me is whether on the basis of the documents and pleadings filed and without the benefit of a full interrogation of the parties’ respective cases, I can grant the conservatory orders to the Petitioner.

Background facts and chronology

6. Gathering the facts largely (but not entirely) from the Affidavit of the Petitioner sworn in support of the Petition, the Petition may be stated to have evolved as follows.

7. The Kenya Magistrates and Judges Association  was first registered in October 2010 under Section 10 of the Societies Act (Cap 108) Laws of Kenya. As required by the law, the Kenya Magistrates and Judges Association (KMJA) then also lodged its Constitution with the Registrar of Societies at the point of registration. Likewise, its officials were also disclosed to the Registrar of Societies. In 2012, the Kenya Magistrates and Judges Association held its 1st Annual General Meeting and new officials were elected. Then in October 2013, the Kenya Magistrates and Judges Association held its 2nd Annual General Meeting. Another group of officials was elected.

8. In April 2014, the national council of the Kenya Magistrates and Judges Association ,consisting of the National Chairman, Vice Chairman, Secretary General, Vice Secretary General, National Treasurer, Vice-Treasurer and Chairman of all the regional councils  met and approved a draft constitution of Kenya Magistrates and Judges Association . The draft was intended to substantively amend the existing constitution.

9. In June 2015, the Executive Director of Kenya Magistrates and Judges Association issued a notice to its membership. The notice was to the effect that a sub-committee of KMJA had developed election rules. The rules were to guide the election of members of the Kenya Magistrates and Judges Association to the Judicial Service Commission (herein also “the JSC”) pursuant to Article 171 (2) (d) of the Constitution of Kenya and to any other elective post within Kenya Magistrates and Judges Association.

10. Finally, on 25th August 2015 the Secretary General of KMJA issued a notice calling for the Kenya Magistrates and Judges Association Annual General Meeting on 31st October 2015. At the said Annual General Meeting, an election of a Kenya Magistrates and Judges Association (Magistrates’) representative to the Judicial Service Commission was to be held. Elections of the Kenya Magistrates and Judges Association office bearers were then also to be conducted.

11. It is the meeting scheduled for 31st October 2015 that prompted this Petition and in particular the interlocutory motion.

Petitioner’s Case

12. The Petitioner contends that the Kenya Magistrates and Judges Association has, since its registration, been embroiled in illegalities and irregularities. Its business has been conducted irregularly, unlawfully and unconstitutionally.

13. In particular, the Petitioner states that the Kenya Magistrates and Judges Association  has no registered officials to conduct the business of Kenya Magistrates and Judges Association including calling for an Annual General Meeting . The registered ones (save two) long left the judicial service. The current ones just like their predecessors have never been recognized by the Registrar of Societies. No returns, too, have been filed since 2012 with the Registrar of Societies, contrary to the mandatory provisions of the Societies Act (Cap 108).

14. Secondly, the Petitioner argues that the officials of KMJA have, through the National Council, illegally amended the Constitution and illegally created additional regional councils. The Petitioner also adds that the Charter or Constitution of Kenya Magistrates and Judges Association has been amended contrary to the stringent procedures provided for under the Kenya Magistrates and Judges Association (KMJA) Constitution for its amendment. The Petitioner also asserts that the officials of the Kenya Magistrates and Judges Association (KMJA) are in office illegally and improperly and have continued to conduct themselves in a manner not expected of state officers pursuant to Article 10 of the Constitution.

15. For completeness, the Petitioner states that all the alleged illegalities and irregularities are set to affect the important election that the Kenya Magistrates and Judges Association is expected to conduct. That is the election of one of the commissioners of the Judicial Service Commission.

The Respondents’ Case

16. The Respondents’ case which may be gathered from both the Preliminary Objection and the Replying Affidavit of Daniel Sepu Mayabi filed on 21st October 2015 can be summarized as follows.

17. The Petitioner lacks the requisite standing to present and prosecute the instant Petition. The Petition does not raise any constitutional questions and is imprecise in so far as the Petitioners grievances are concerned. The Petitioner is guilty of delay and thus does not deserve any conservatory orders. The alleged breaches, contraventions and illegalities, if at all, should be subjected to a statutory provided avenue of dispute resolution, that is to say; that appropriate complaints ought to be lodged with the Registrar of Societies and appropriate action taken thereat.

18. The Respondents contend that the Petitioner has not demonstrated any rights as infringed or threatened with infringement to be entitled to present the Petition. The Respondents further state that the Petitioner delayed in filing the instant Petition given that the impugned Annual General Meeting was called nearly two months ago.

19. On the raft of alleged irregularities, the Respondents firstly state that the Constitution of KMJA alleged not to have been approved was regularly approved by all the regions. That, indeed it was launched at the annual general meeting of the Association held in November 2014. Secondly, on the challenged election rules, the Respondents state that the said rules are scheduled for adoption at the meeting now convened for 31st October 2015.  On the issue of the delayed filing of returns, the Respondents state that the process of regularizing the records of the Association with the registrar of societies is already underway.

20. Whilst agreeing that the election of a representative of Judges and Magistrates to the JSC is a Constitutional obligation, the Respondents however deny that such election is the responsibility of the Independent electoral and Boundaries Commission established under Article 88(1) of the Constitution of Kenya. Finally, the Respondents contend that the penalty for non-compliance with the relevant statutory provisions as to the timely filing of returns and notices is adequately provided for under the Societies Act (Cap 108) and to invoke the courts’ intervention without exhausting that mechanism is premature.

Arguments

21. On my direction and with the parties consent, as a case management strategy, the Preliminary Objection and the application were simultaneously and orally urged on 23rd October 2015.

Petitioner’s submissions

22. The pithy arguments made by the Petitioner’s Counsel, Ms. Njoki Gachihi, were as follows.

23. That the Petitioner seeks the various conservatory orders on the basis that the Respondents have through a notice called for a meeting to elect the Kenya Magistrates and Judges Association (Magistrates’) representative to the JSC. That such notification was predicated on irregularities.

24. Ms. Gachihi added that there was need to ensure that the process of the election of the JSC representative was above board and the integrity of such process not subjected to any doubt or question. Ms. Gachihi added that all the Respondents were state officers and were duty bound to observe the Articles of the Constitution when acting either in their official or unofficial capacities. As it were, submitted Ms. Gachihi, the Respondents failure to comply with the law as to amendment of an Association’s Constitution, filing of returns with the Registrar of Societies, filing notifications as to new officials of KMJA with the Registrar of Societies meant that the intended business of KMJA at the impugned Annual General Meeting including the election of a representative to Judicial Service Commission was devoid of integrity, propriety, accountability and transparency. This was contrary to all Constitutional values and principles.

25. Counsel stressed that the Petitioner’s interest was specifically with the election of the representative to the Judicial Service Commission which ought to be conducted in a fair transparent and legal manner devoid of any questions.

Respondents’ Submissions

26. Mr. Elisha Ongoya urged the Respondents’ case. He argued that, for no less than five reasons, the Petitioner had not shown that he was entitled to the conservatory orders sought.

27. First, the Petitioner lacked the necessary standing as he had not demonstrated any interest or under what pigeon-hole he fell under Article 258 of the Constitution.

28. Secondly, counsel submitted, the Petitioner was also non-suited as the Petitioner had failed to enjoin any of the candidates seeking to be elected as the Magistrates’ representative to the JSC. By so moving the court, the Petitioner was abusing the same Constitution it was relying upon and seeking to defend or protect as the Petitioner wanted the court to condemn the candidates without any hearing.

29. Next, the Petitioner had failed to explain to and convince the court why the Petition was filed “in the very last minute”.According to Mr. Ongoya such delay meant that the court could not exercise any discretion in favour of the Petitioner.

30. Relying on the case of Anarita Karimi Njeru –v- Republic [1979] eKLR, [1979] KLR 154,counsel then submitted that the Petition did not meet the Constitutional threshold of a Constitutional Petition as the Petition was imprecise. The Petitioner, asserted Mr. Ongoya, had also failed to identify with reasonable precision the alleged acts of violation or intended violation of the Constitution.

31. The Respondents also submitted that the Petitioner had failed to show that any of his rights had been violated but was rather groping on private rights under a membership association. In these respects, counsel added, the Petitioner had failed to show that any of the members of KMJA was incapable of acting for himself.

32. On the alleged non-observance of statutory requirements counsel submitted that the Constitution had been adapted by the members at an annual general meeting held on 8th November 2014, whereat the same was launched. Counsel referred to the minutes of the said meeting.

33. With regard to the impugned election rules, counsel stated that the same were to be the subject of the now impugned meeting of 31st October 2015. Counsel wound up by stating that all the irregularities, if any, were subject to a penal statutory process and should not be subjected to civil remedies sought by a non- member. Counsel relied upon the case of Njenga Karume –v- Speaker of the National Assembly [1992] eKLRfor this proposition.

34. Mr. Ongoya’s précis was that the Petitioner had failed to establish a prima facie case with a likelihood of success.

Petitioner’s Rejoinder

35. By way of rejoinder, Ms Gachihi reiterated that the Respondents who were state officers were guilty of non-observance of Articles 10, 73 and 75. Secondly, counsel submitted that the Petitioner could file the Petition in his own name pursuant to Article 258 of the Constitution. Finally, Ms. Gachihi stated that the Petition raised various Constitutional questions. The single most important one being about the integrity and legality of the process leading to and the actual election of a representative of the magistrates to the JSC.

Discussion and analysis

36. At this stage of the proceedings and for purposes of the Notion of Motion, I would identify three issues for determination.

37. These are:

a) Has the Petitioner the necessary locus standi?

b) Is the Petition fatally defective in so far as it raises no Constitutional issue or matter and facts to comply with the principle enunciated in Anarita Karimi Njeru –v- Republic [1979] KLR 124?

c) Is the Petitioner entitled to the conservatory orders sought or at all?

A question of standing

38. The Respondents’ counsel was emphatic that the Petitioner lacked the requisite standing to present the Petition as the matters raised and couched in the form of constitutional questions were purely matters of private nature not capable of being adjudicated upon as constitutional issues. Further, it was counsel’s view that the Petitioner had not appropriately plugged himself within any of the slots under Article 258(2) of the Constitution. The Petitioner’s answer was simple: Article 258 gave the Petitioner like all other persons the unfettered right to move the court where the Constitution was violated or threatened with violation.

39. The Constitution under both Articles 22 and 258 grants ‘any person’ the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been denied, violated or infringed or is threatened with violation or infringement. Article 258(1) is even more expansive. Any person may move the court claiming that the Constitution has been contravened or is threatened with contravention.

40. Even with a textualized and restricted reading of those two Articles of the Constitution, it is apparent that the avenues for litigants to come to court were made wider in 2010. A party need not necessarily be personally affected by the alleged violation of any Constitutional provision. The idea, in my view, is to ensure that any person is in a position to protect and defend the Constitution by all means, including litigation. A restricted reading of both Articles 22 and 258 of the Constitution ought, consequently, to be discouraged.

41. I am not convinced that the Petitioner is “a busy body” as was stated by Mr. Ongoya. He apparently has genuine grievances and concerns and would be entitled to come to court as a party: see generally, Lord Denning in, Attorney General of Gambia v Njie [1961] AC 617.

42. When the Petitioner alleges that state officers have failed to observe aspects of the Constitution especially Articles 10, 73 and 75 in relation to Article 171 or that Article 88(4) of the Constitution may not be observed, I would certainly view it that there is a genuine constitutional concern and grievance. As I am also not convinced that the Petition has been filed for any personal gain or ill-motives, I see and have no reason to shut out the Petition.

43. In my judgment, the standard and rather more universal guide to the issue of locus standi still remains the more complete Article 258 of the Constitution: see Mumo Matemu –v- Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.In the result, I find and hold that the Petitioner had and still has the standing to procesecute the Petition.

Of the Petition’s competence

44. There is no doubt that case law dictates that a party alleging violation or the threatened violation of his rights or fundamental freedoms must state with reasonable precision the right or fundamental freedom violated or threatened with violation. The party must also then describe how the rights have been violated or threatened with violation: see ,amongst others,the cases of Anarita Karimi Njeru -v- Republic [1976-80] 1 KLR 1272, Mumo Matemu -v- Trusted Society for Human Rights Alliance & 5 Others [2013] eKLR, Anami Silverse Lisamula -v- IEBC & 2 Others SCK No. 9 of 2014 [2014] eKLR, George Mike Wanjohi -v- Stephen Kariuki SCK No. 6 of 2014 [2014] eKLR, Kenya Youth Parliament & 2 Others  -v- Attorney General & AnotherandAttorney-General -v- WK Butambala [1993] TLR 46. See also Lawrence Tribein his treatise American Constitutional Law (2nd Ed)at page 67.

45. I do agree that fundamental freedoms and rights allegedly infringed ought not to be left to conjecture and deductions. I also agree that the ratio in Anarita Karimi Njeru –v- Republic (Supra)is still good law as affirmed by the Court of Appeal in Mumo Matemu –v- Trusted Society for Human Rights Alliance & 5 Others (Supra).However, caution must be taken prior to declaring Petitions fatally defective.

46. Anarita Karimi Njeru’s case stressed the need for reasonable precision not absolute precision. It ought to be so understood. This is further in view of the fact that Article 22(3) of the Constitution enjoins the Chief Justice to make rules providing for proceedings relating to Constitutional proceedings. Such rules are required to satisfy the norm that formalities relating to proceedings are kept to the bare minimum. Courts must be ready to, if necessary, handle Petitions filed informally or orally and deduce constitutional issues: see Rule 10(3) & (4) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules 2013.

47. In my view, the ratio of Anarita Karimi Njeru –v- Republic (Supra)should be applied by the court with caution and prudence. Thus where the pleadings filed and documentation availed reasonably take the trajectory of Constitutional interpretation or application then that should suffice to have the Petition admitted and determined on its merits.

48. The Respondents made reference to the reliefs sought to demonstrate that the Petition did not meet the threshold of what a Constitutional matter is all about. The Respondents also stated that the Petitioner merely made reference to the Constitution but without substance. The Petitioner of course, insists that the Petition is solid.

49. I have read the Petition closely.

50. I must admit it has a good chunk of what I may call ‘background facts’. The crux however, as pointed out by Ms. Njoki Gachihi, is in the election of the representative of High Court Judges and or Magistrates to the JSC. As I understood the Petition and the Petitioner, KMJA apparently has a Constitutional mandate to elect two of the Commissioners to the JSC. Article 171(1) (d) of the Constitution provides for this election. The Respondents do not contest this and actually say as much: see paragraph 14 of the Replying Affidavit. The Petitioner is of the view, though unproven still, that the Respondents are leading an illegal process which will culminate in the election. The Petitioner also contends that the Respondents who are State officers have not properly conducted themselves. The Petitioner has sought, in light of the Respondents’ alleged failure to meet the requirements of Article 10 and Chapter Six of the Constitution to stop them from conducting or even leading in the conduct of the elections. The background to all these, alleges the Petitioner, is the continuous non-observance and disobedience of the statutory requirements relating to societies.

51. In the case of Peter Mungai Ngengi v Mama Ngina Kenyatta & Another [2015]eKLR I stated as follows:

[20]  What constitutes a constitutional matter is truly for the court to ascertain after pegging the various provisions of the Constitution to the facts as pleaded. The Constitution itself does not define what would constitute a constitutional matter and in view of the context in which various courts use the phrase and interchange the same with other like phrases to wit ”constitutional issue” and “constitutional question”, I would hesitate to give a complete definition of the phrase. Suffice though to point out that a constitutional matter would include all the matters listed as falling within  the court’s jurisdiction under Article 165(3) (b) to (e) (inclusive) of the Constitution. The list though is not to be deemed comprehensive and conclusive lest the transformative function of the constitution is missed and impaired. Suffice to note too that the court should not assume that a matter is constitutional simply because provisions of the Constitution are referred to and or constitutional remedies are prayed for. It is for the petitioner to demonstrate a bona fide and genuine constitutional matter through clear and concise pleadings. (emphasis)

52. That should be the approach. Even though the Petitioner ought to meticulously plead, the court is also duty bound to grill the pleadings and ascertain if there is a substantial question in relation to the Constitution.

53. As already stated, the Respondents’ counsel took me through the reliefs sought in the Petition in an endeavor to show the folly of the petition as drafted. In my view, it is not enough to only look at reliefs sought. That certainly is not what Trevelyan J and Hancox J (as he then was) meant when,  in Anarita Karimi Njeru’s  case, they stated as follows:

“We would however again stress that if a person is seeking redress from the High Court or an order which invokes a reference to the Constitution, it is important (if only to ensure that justice is done in his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed”.(emphasis)

54. Each case, in my judgment, ought to be considered on its own merits with the court ascertaining if one can painlessly identify the constitutional questions being raised or advanced. It is the substance of the claim that matters rather than the prayers. Besides, in the sphere of litigation over the Constitution, prayers and reliefs can always be “fashioned and innovatively forged out” by the court to help remedy any wrong: see Minister of Health and Others vs Treatment Action Campaign & Others [2002]5 LRC 216.

55. In ending, I hold the view that the instant Petition is not so vague as not to disclose what the Petitioner claims are constitutional concerns. I would not strike out the Petition on that basis.

A case for conservatory orders?

56. I now come to the final question warranting my determination. Is the Petitioner entitled to the conservatory orders sought?

57. In the recent case of Kenya Small Scale Forum –v- Cabinet Secretary Ministry of Education NBI HCCP No.399 of 2015 [2015]eKLR, I stated as follows with regard to the principles which ought to guide a the court dealing with an application for conservatory orders:

[30] . For the grant of conservatory orders ….. the court ought to consider certain pertinent factors. A series of cases may be stated to have laid down the proper guidelines applicable. I would state the principles which govern a court considering an application for interim or conservatory relief to be the following:

The applicant ought to demonstrate a prima facie case with a likelihood of success and that he is likely to suffer prejudice as a result of the violation or threatened violation if the conservatory order is not granted: see Centre for Rights Education and Awareness & 7 Others –v- The Attorney General HCCP No. 16 of 2011. It is not enough to show that the prima facie case is potentially arguable but rather that there is a likelihood of success: see Godfrey Mutahi Ngunyi –v- The Director of Public Prosecution & 4 Others NBI HCCP No. 428 of 2015and also Muslims for Human Rights and Others –v- Attorney General & Others HCCP No. 7 of 2011.

The grant or denial of the conservatory relief ought to enhance Constitutional values and objects specific to the rights or freedoms in the Bill of Rights: see Satrose Ayuma & 11 Others –v- Registered Trustees of Kenya Railways Staff Benefits Scheme [2011] eKLRand alsoPeter Musimba –v- The National Land Commission & 4 Others (No. 1) [2015] eKLR.

If the conservatory order is not granted, the Petition or its substratum will be rendered nugatory: see Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others HCCP No. 7 of 2014.

The Public interest should favour a grant of the conservatory order: see the Supreme Court of Kenya’s decision in Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR.

The circumstances dictate that the discretion of the court be exercised in favour of the applicant after a consideration of all material facts and avoidance of immaterial matters: see Centre for Human Rights and Democracy & 2 Others –v- Judges and Magistrates Vetting Board & 2 Others HCCP No. 11 of 2012as wellas Suleiman –v- Amboseli Resort Ltd [2004] 2 KLR 589.

58. I trust that the above exposition is relatively clear. There is no need to expound on the principles. Perhaps, only to state that the doctrine of proportionality as stated by Odunga J in the case of Kevin K. Mwiti & Others –v- Kenya School of Law & 2 Others [2015] eKLR,would  be applicable to help in the exercise of discretion. So stated Odunga J at paragraph 14 of his ruling:

In considering whether or not to grant conservatory order, it is my view that the principle of proportionality plays a not remote role. As was stated by Ojwang, AJ (as he then was) in Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589 the Court, in responding to prayers should always opt for the lower rather than the higher risk of injustice.  The learned Judge expressed himself as follows:

“…Although the court is unable at this stage to say that the applicant has a prima facie case with a probability of success, the Court is quite convinced that it will cause the applicant irreparable harm if his prayers for injunctive relief are not granted; and in these circumstances, the balance of convenience lies in favour of the applicant rather than the respondent. There would be a much larger risk of injustice if the court found in favour of the defendant, than if it determined this application in favour of the applicant”

59. So, has the Petitioner met the criteria?

60. ThePetitioner contends that the Respondents and the membership of KMJA have a Constitutional mandate to cause the elections of  High Court Judges’ representative and Magistrates’ representative to the JSC. This is not denied by the Respondents.

61. To the Petitioner however, the process which is scheduled to take place on 31st October 2015 is shrouded in illegalities. The constitution which the Respondents hope to use in the process of such election is not properly recognized and registered with the Registrar of Societies. Likewise, the Rules to govern the elections are yet to be approved by the members. Finally, the officials to oversee the elections and affirm the same are not properly in office. The answer by the Respondents is that the constitution has been adopted by the membership of KMJA and further that the rules being referred to by the Petitioner are merely interim rules to be adopted or amended at the scheduled annual general meeting.

62. On the issue of not having notified the registrar of societies of the elected officials, the Respondents admit that the records of KMJA with the registrar of societies are yet to be updated. The Respondents however add that the process of regularizing this slip is underway but that the same should not constitute the subject of any complaint by the Petitioner as there are statutory mechanisms for addressing such mishaps. Finally, as far as the constitution of KMJA is concerned, the Respondents assert that the constitution was approved and adopted in the month of November 2014. The Respondents in this regard referred me to the minutes of a meeting held on 8th November 2014.

63. The JSC is a body corporate established pursuant to Article 171 of the Constitution. The Commissioners of the JSC are either elected or appointed. They hold office for five years, renewable. The functions of the JSC are wide ranging. The functions include recommending to the President suitable persons for appointment as judges, reviewing and making recommendations on the conditions of service of judicial officers and other staff of the judiciary. The JSC also advises the national government on improving the efficiency of the administration of justice. It is, in short, an important Commission in the web of governance generally and of administration of justice specifically. The commissioners of JSC are not on full time engagement. They all draw allowances from and have access to public funds in many ways. That the election or appointment of any person to the JSC as a commissioner is important is therefore without question.

64. First, it is important to point out that in view of the position and role of the JSC in our society, the Petitioner like all other Kenyans, including the membership of KMJA would be interested in ensuring that the process leading to the appointment or election of a Commissioner is without any constitutional hiccups. Secondly, it is common ground that in KMJA electing a representative as a Commissioner, the association would be exercising a constitutional mandate. Thirdly, once appointed or elected and sworn in, a Commissioner of the JSC would be holding an office of a constitutional commission. It may be assumed, a priori, that a Commissioner of the JSC holds a constitutional office.

65. There is conviction and I am persuaded when the Petitioner submits that the process of electing a Commissioner ought not to be tainted with illegalities and irregularities. I am also satisfied when both parties are in agreement that in the conduct of elections of a JSC Commissioner, the KMJA would be honoring a constitutional obligation.

66. The controversy that the Court will be expected to resolve and which must now be established on a prima facie basis is whether there is any violation or threatened violation of the Constitution in the process.

67. The Petitioner submits that the process is already tainted, from the unrecognized (through non registration) officials to an illegal constitution. It would appear that the Petitioner has a point.

68. There is already an apparent confusion on which Constitution (of KMJA) should be used to elect the JSC Commissioner. The Registrar of Societies has one. There are two other constitutions out there with the members of KMJA. Of the two constitutions out there, one was launched in 2014. At the hearing of the application, counsel for the Respondents pointed out that the 2014 Constitution was adopted and approved by the members. Counsel stressed that the minutes reveal that the Constitution was launched. The natural and ordinary meaning of the word to ‘launch ‘ is to ‘initiate’ or ‘inaugurate’ or ‘ start’. The constitution could have been launched but when was it adopted by the members?  There are no minutes of any SGM or AGM where the said constitution had been presented and adopted by the membership. To proceed and act under such a constitution would lead to an act or resolve being deemed null and void.

69. Counsel for the Respondents agreed that such a process may itself be a nullity and lead to a nullity but that ,if at all that be so, the court will always have time and opportunity to regulate and rectify the position at the time of the hearing of the Petition.

70. It is, in my view, unnecessary to go that route. If an act is likely to be null and void there is no need to prompt or pre-empt it in the first place. In these respects, I would only wish to refer to the words of Lord Denning in Macfoy v United Africa Company Ltd [1961] 3 All.E.R. 1169. Lord Denning delivering the opinion of the Privy Council, at page 1172, said;

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”

71. I see no reason why an irregularity or defect should be brought to the attention of one party and still that party be allowed to argue before the court that rectification could always be subsequently effected by the court.

72. Secondly, in my judgment, there is prima facie evidence on record of a likely violation of the Constitution. That is where the Petitioner’s stead is more solid. At paragraph 13 of the Replying Affidavit of Daniel Sepu Mayabi, the deponent states as follows:

“[13] That it is not true that the Constitution of Kenya at Article 88(4) mandates the Independent Electoral and Boundaries Commission to take responsibility for the election of the representatives of Judges and Magistrates to the Judicial Service Commission”

73. This deposition was in response to the Petitioner’s stand that the Constitution has placed a mandate and chain of responsibility on the shoulders of the Independent Electoral and Boundaries Commission (IEBC) to conduct and oversee the elections.

74. It is evident from the Replying Affidavit that even if the elections are to go on as scheduled, the Respondents have no intention of engaging the services of IEBC.

75. Article 88 of the Constitution, inter alia, reads as follows:

“88. (1) There is established the Independent Electoral and Boundaries Commission

(2)…

(3)…

(4)The Commission is responsible for conducting or  supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament …”

76. Without making any firm and final interpretation, my quick reading of Article 88(4) of the Constitution appears to reveal that the IEBC has the mandate to conduct and supervise elections to any elective body or office established by the Constitution. The office of a Commissioner of the JSC is established under the Constitution. Likewise, the election of a High Court Judge or a magistrate to the office of a Commissioner of the JSC is prescribed by the Constitution. It would appear that IEBC ought to get involved in such elections. In so far as the Respondents deny the IEBC’s involvement, the petitioner has a prima facie case that the likelihood of a violation of the Constitution appears practical and real.

77. I now come to the issue of ‘state officers’.

78. It is beyond controversy that the Respondents who are either judges of the High Court or judicial officers are all state officers. I did not hear counsel for the Respondent contest this and wisely so. Neither did I hear counsel contest the submission made on behalf of the Petitioner that state officers are obliged to strictly adhere to the values prescribed under Articles 10,73 and 75. I however heard counsel complain that the complaints by the Petitioner vis-a vis these Articles were too generalized. Counsel for the Petitioner was of the view that the conduct of the Respondents tickled the very root of what KMJA does.

79. While I am not convinced that the conduct of the Respondents as state officers goes to the root of the Petition , I am rather staggered by the approach adopted in response to the application and the petition.

80. To suggest as has been stated by the Respondents that even if there has been no compliance with the rather mandatory provisions of the Societies Act (Cap 108) there are already adequate safeguards thereunder to ensure compliance does not augur well with the individual Respondents considering that they are officers of the law trained to and sworn to upholding the law. The Respondents, it is true, may not be individually responsible for the physical filing of returns. They are however duty bound to ensure compliance with the law. When there is non-compliance, hindsight ought to get the better of the Respondents and invite acts of contrition rather than a casual willingness to pay a penalty or serve a jail term that may be prescribed under the Societies Act (Cap 108) !  It appears to me, that the Respondents are aware about the irregularities and defects but not the perils or dangers that may ultimately arise off such defects.

81. The totality of the foregoing together with the documents filed and the submissions made before me lead me to the irresistible inference that the Petitioner has made out a case with a likelihood of success.

A dawdle too long

82. The Respondents contended that even if the Petitioner has a prima facie case, the Petitioner took too long to commence action against the Respondents. Counsel for the Respondents stressed that such delay was enough to deny the Petitioner any discretionary remedy.

83. The delay complained of was the period between the Notice convening the impugned AGM and the date of filing the Petition. The period works to some odd 50 days.

84. While I, of course, have no doubt that in matters constitution an aggrieved party should always have some zeal and motivation in enforcing his or her rights if the same have been violated or threatened with violation: see Attorney General of Uganda & Another –v- Omar Awadh & 6 others [EACJ] No. 2 of 2012, I would be reluctant to even rebuke the Petitioner in the instant case.

85. The Petitioner is not a member of the KMJA so certainly he never received the Notice convening the annual general meeting. I have also not been told when he became aware that the meeting was already scheduled.  He cannot in the circumstances be accused of any delay in filing the Petition and I view it that it would be inappropriate to discuss this point any further.

Of the Proportionality dogma

86. It was also the Respondent’s contention that pursuant to the principle of proportionality, an order for maintenance of the state of affairs should not issue in the Petitioner’s favour. To the Respondents, the logistics of re-organizing and re-convening the meeting as well as the possible costs to be wasted and further expended are overburdening and high. They would be disproportionate to a situation where the intended meeting is allowed to be held. In the circumstances, the Petitioner ought to be denied the orders sought. The Petitioner contended that the Respondents would bear no hardship if the meeting was stayed.

87. Even as I ponder on the hardships that may be occasioned to either party, I must also ask myself whether it would be in order to sweep under the rag all the irregularities admitted by the Respondents albeit with the rider that they are being regularized. I do not take it as well that public interest would lay favour to the court ignoring such irregularities at the altar of expediency. Considering the fact that the party accused of irregularities and likely irregularities constitute judicial officers, the public is likely to frown.

88. In my view too , proportionality should ideally and truly come into play where facts appear to be evenly balanced or where notwithstanding the lack of a prima facie case the court still holds the view that justice will be better served if further considerations and inquiries are made on whether to maintain the state of affairs: see Ojwang AJ (as he then was) inSuleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.

89. In the circumstances of this Petition public interest would not favour the Respondents.

90. I need not answer the question as to whether the Petition will be rendered nugatory.

Disposition

91. I hold that the Petitioner has made out a prima facie case and also a case for conservatory orders.

Appropriate relief.

92. I now need to ascertain the appropriate orders in the circumstances of this Petition.

93. In my view, though conservatory orders ought to issue they ought to be limited.  A constitutional mandate is set to be undertaken. The setting is however not perfect. It can be made perfect. The Respondents have undertaken to ensure this is done. The process of regularizing everything is underway. How long it will take , I know not. I am also unaware as to how soon the Petition will be disposed of.

94. I take into account the fact that in constitutional litigation, the court may fashion and make appropriate orders as the situation demands: seeNancy Makokha Baraza v Judicial Service Commission & 9 Others [2012]eKLRand the South African decision of  Fose v Minister of Safety & Security (CCT 14/96) 1997 ZACC 6. I also appreciate that the Petition is still at its infancy. I further take into account that most of the reliefs sought in the Petition are declaratory in nature and hence even a limited conservatory order may serve the purpose. It is in the interest of the Petitioner as well as the Respondents that ultimately the AGM is held and all business quickly and legally conducted. An effective interlocutory relief may be necessary, in given circumstances, to ensure that the values and principles as well as provisions of the Constitution are upheld or enhanced.

95. In the circumstances of the instant Petition, the orders which best lend themselves to me and which I make, are as follows:

a.There is granted a conservatory order staying the Annual General Meeting and annual General conference of the Kenya Magistrates and Judges Association scheduled for 29th through 31st of October 2015 for a period of One Hundred and Twenty (120) days to enable the Respondents comply and or ensure compliance with the provisions of the Societies Act.

b.There is also granted a conservatory order staying the elections by the Kenya Magistrates and Judges Association of a commissioner to the Judicial Service Commission for a period of One hundred and Twenty days to enable the Respondents comply with (a) above and involve all relevant Constitutional bodies in the election.

c. Liberty to apply is also hereby granted to both parties

Costs

96. The costs of the application shall abide the ultimate result of the Petition.

97. Orders accordingly

Dated, signed and delivered at Nairobi this 26th day October, 2015

J.L.ONGUTO

JUDGE

Delivered in the presence of:

....................................... for the Applicant

.......................................for the Respondents

C/Clerk: Richard