Kirinyaga United Bar Owners Organization v County Secretary Kirinyaga County Government –Kirinyaga County, County Public Health Officer-Kirinyaga County, Sub County Administrator Mwea Kirinyaga County, Sub County Administrator Kirinyaga Central Kirinyaga County, Sub County Administrator Kirinyaga East Kirinyaga County, Sub County Administrator Kirinyaga West (Ndia) Kirinyaga County & County Chairman Liquor Licensing Committee- Kirinyaga County [2014] KEHC 1831 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO.  16 OF 2014

IN THE MATTER OF CHAPTER FOUR OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF RULES 11, 12, AND 13 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION & PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL)

HIGH COURT PRACTICE AND PROCEDURE RULES, MUTUNGA RULES

AND

IN THE MATTER OF CONTRAVENTION AND OR ALLEGED CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 22, 23, 26,27,31,47 OF THE CONSTITUTION.

BETWEEN

KIRINYAGA UNITED BAR OWNERS ORGANIZATION……………………….PETITIONER

VERSUS

THE COUNTY SECRETARY KIRINYAGA COUNTY

GOVERNMENT –KIRINYAGA COUNTY………………………..............1ST RESPONDENT

THE COUNTY PUBLIC HEALTH

OFFICER -KIRINYAGA COUNTY ……………....…………………….....2ND RESPONDENT

THE SUB COUNTY ADMINISTRATOR

MWEA KIRINYAGA COUNTY ………………………….………………3RD RESPONDENT

THE SUB COUNTY ADMINISTRATOR KIRINYAGA

CENTRAL KIRINYAGA COUNTY ………………………..………….....4TH RESPONDENT

THE SUB COUNTY ADMINISTRATOR KIRINYAGA

EAST KIRINYAGA COUNTY ………………………………………….…5TH RESPONDENT

THE SUB COUNTY ADMINISTRATOR KIRINYAGA

WEST (NDIA) KIRINYAGA COUNTY…………………..……………….6TH RESPONDENT

THE COUNTY CHAIRMAN LIQUOR LICENSING

COMMITTEE- KIRINYAGA COUNTY……………...........………………7TH RESPONDENT

RULING

KIRINYAGA UNITED BAR OWNERS ORGANIZATION the petitioner herein has brought a Notice of Motion dated 29th September, 2014 before this court asking for the following orders:

That the application be certified  urgent and be heard  in Nairobi owing to its urgency and the fact that the Resident Judge at the station  and neighbour hood  were way when the petition was filed.

That  pending the hearing  of this application this Honourable court be pleased to issue an injunction order restraining the Respondents  either by themselves, servants , agents assigns and/or  those claiming  to act  on their behalf implementing The Kirinyaga County Alcoholic Drinks Control Act 2014  from unlawfully  carrying out a second inspection, harassing, coercing, arbitrary, intimidating and or in any other manner  whatsoever interfering  or disrupting  the already licensed business premises  for the period 2014-2015 belonging to the Applicants members, their employees, servants and/or  agents in the course  of operating, selling, disposing and or dealing  with licensed  alcoholic drinks  within  Kirinyaga County.

That pending the hearing and determination of the petition  herein this Honourable court be pleased to issue a conservatory  order of prohibition  restraining the Respondents  whether jointly or severally and whether by themselves or their agents  from unlawfully harassing, coercing, arbitrary inspecting, intimidating   and /or in any  manner  whatsoever interfering  or disrupting the business  operation  of the Applicants members  their employees, servants and /or agents  in the course  of operating, selling, disposing and /or dealing with  licensed  alcoholic drinks.

Any further or other orders, directions or writs that this Honourable court deem fit, just and appropriate to grant.

That the costs of this application be costs in the petition.

The applicants listed ten grounds in support of their application before me but the main ground   for the application  is that the  Respondents  have acted  in a manner that have violated  the Petitioner’s Constitutional Rights  to wit;

Rights to privacy under Article 31 of the Constitution.

Rights to acquire property under Article 40 of the Constitution.

Fundamental Rights under the bill of rights of the Constitution.

The Petitioner has also cited harassments and constant inspection as the basis of their grievances hence the reason  why they  have come to court.

When the Motion was canvassed before this court, the Applicant added another new ground amid protests from the Respondents who felt that the new ground was being adduced from the bar and therefore prejudicial to their opposition.  All the same, the Applicant raised   it and stated that the 1st   to 7th Respondents never involved them as key stake holders in the process that led to enactment of new legislation in the County to regulate alcoholic industry.  Within Kirinyaga County. The new legislation the subject matter in the petition is the Kirinyaga Alcoholic Drinks Control Act (Act  NO. 1 of 2014) (herein to be referred to as the new legislation/impugned legislation)  The Applicant contended from the bar that this new law was imposed on them with no public participation. This is what the Respondents  contend that it was a departure from the pleadings  filed in court and upon looking at what is pleaded  in the papers filed by the Petitioner it true that this crucial point which appeared to be the main anchor of the application  is either missing  or  at best  just given a mention  in passing.  The Applicants was at pain to explain to the Respondents and this court  why they did not specifically plead what turned out to be their main ground for the application in order to give a chance to the Respondents at least to respond with  equal measure of vigour to ventilate their opposition to the attack on the new legislation.  I will address this issue at the later stage in this ruling because this court gave latitude to the Respondents to respond to the same which they did.

The Applicant   has pointed out that the Respondents have harassed   them and even closed their business premises under the guise of enforcing the new legislation.  The Petitioner contends that this form of harassment is a  violation of their rights under Article 10 of the Constitution.  It was also argued that the new legislation lacks the two main principles expounded under Article 10 of the Constitution that is;

Principle of inclusiveness.

Principle  of non discrimination

To demonstrate this, Mr Mungai counsel for the Petitioner pointed out what  he termed inadequacies in the impugned legislation. These are  the licensing aspect and establishment of licensing committee under Section 9(4) of the Act.  According to the counsel for the Applicant the establishment of the committee without the input of the Petitioner is a demonstration of bias and deliberate effort to real  the Applicant when renewing their licenses.

Wanjiru Wambugu advocate for 1st to 7th Respondents has made spirited effort   to oppose the Petitioner’s application.  She relied on the affidavit of Joe Murimi, the 1st Respondent herein, submissions filed and the cited  authorities.

The main grounds of the Respondents opposition to the application can be summarized as follows:

That the application and Petition does not disclose a cause  of action.

That the application does not meet the threshold for injunctive reliefs sought.

That the application and petition itself are vague and the Petitioner has not demonstrated what has been violated and precisely in what manner and that the application and their entire petition is bad for lack of specificity.

That the Applicant lacks capacity to sue in the absence of specific person or persons.

That the Petitioner’s main complaint of lack of participation in the legislative   process  lacks  merit  in view  of the deliberate  steps  taken by the Respondents  to involve  them.

That the Petitioner’s main grounds were adduced from the bar and hence should not be considered.

That the rights of the Petitioner should not be considered in isolation but the rights of others and in particular consumer rights under Article 43(1) and 46(1) of the Constitution.

That allowing the application will not only  bring chaos  but cripple  the Respondents  from discharging  their mandate under  the Constitution and specifically  under the 4th schedule  of the Constitution.

That the Petitioner’s application lacks in merit and misleading to the extent that permits exhibited is insufficient in the absence of liquor license under the Alcoholic Drinks Control Act NO. 4 of 2010.

Having set out the respective parties positions and submissions on the

Application before court I shall now frame down what I consider important issues in the application before me for determination in no particular order.

ISSUES FOR DETERMINATION.

Whether the Petitioner’s application meets the threshold for a grant of reliefs sought.

Whether the Petitioner can rely on new grounds not raised in the pleadings in the application.

Whether the Petitioner/Applicant has capacity in law to launch the petition and the application now before court.

Whether this court should consider the effect of granting the reliefs on the operations of the Respondents and the interests of the public at large.

( i )     Whether the petitioner  can adduce new grounds  at the hearing of  the application .

The Petitioner herein listed eight grounds  listed above and annexed a supporting affidavit and looking at the same it is clear that apart from allegations of infringements   of rights under Article 31 and 40of theConstitution the Applicant  has mainly dwelt  on claims  of  harassment, intimidations  and closure of businesses as the main gist of the application.  This is deduced from paragraph 10 of the affidavit of REGINALD NJAGI NYAGA, the chairman of the Petitioner where he has deponed as follows:-

“Notwithstanding the fact that the Applicants members ,have a trading license for the current trading period there has been constant disruption and interruption of business operation in the following ways.

That police and County officials are continuing to frequently  harass, intimidate and frequently intrude into the Applicants members work place without any justification whatsoever.

Conducting arbitrary inspection without the knowledge of the bar owners.

Terrorizing the employees, staff at the licensed premises”.

However when the Applicant’s counsel canvased the motion before me, it was

clear from the onset that the main emphasis of their application or grievance was not the above but the issue of lack of public participation in the process of legislating the impugned legislation.  It was also a bit odd that the Applicant abandoned the claim against the 9th and 10th Respondent and yet continue to maintain a claim against them in their pleadings.  One could have expected them to amend their pleading to be in tandem with the shift of their position and submissions.  The Applicant mentions the issue of participation mildly under paragraph 11 of the said affidavit in support but even then their complaint is the lack of their participation in the enforcement of County Laws.   Under paragraph 11, the deponents states:-.

“that further , to the above (read paragraph 10) the said officers  have been indicating that they are duty bound to enforce  the County Laws  on Alcoholic Regulationwithout  offering  any explanation oblivious  of the participation of the stake holders  which  situation is a gross violation  of my freedom  and rights as provided  under the Constitution of Kenya (emphasis mine) . This position taken by the Petitioner is different  from the submissions  made from  the bar by Mr Mungai  the counsel  for the Petitioner and I agree  with Wanjiru Wambugu that the Applicant’s  counsel was out of line  in adding new evidence  and grounds  perhaps on realization  that what was  pleaded  was not providing enough ammunitions for his cause.

This court finds that the attempt by the Applicant’s counsel to fortify his pleaded grounds with completely new grounds amounted to a departure which is a violation to provisions of Order 2 Rule 6 Civil Procedure Rules.   The Petitioner/Applicant added a new weighty and substantive grounds in support of this application but unfortunately did so from the bar which is bad practice in a court of law and clear violations of the rules.   The  same is an abuse of court process.    Parties should and  are bound  by their  pleadings and where  a party discovers an inadvertent omission midstream, the legal option open is to comply  with the law  in introducing  the new evidence or further grounds  particularly in situation where one finds himself or herself  having to change  direction in a case  for one reason or the other.  The rules of procedure were and are formulated to regulate court proceedings and maintain order to give every party a chance and time to know before hand what is in store for them in order to prepare.  Playing cards  under the table and trying to pull a fast one on your adversary  is a practice that evokes bad memories of the past and  must be discouraged especially in an adversarial system  such as  ours .

(ii)   Whether this court should consider the effect of granting the reliefs sought on the operations of the Respondents and the interests of the public at large.

The Respondents in urging me to decline the application called upon me to consider the effect it will have on the operations of the Respondents.   This however is not the primary duty of a court of law and is not the only consideration to be taken into account.  The establishment  of this court  under the Constitution  2010  is to  inter alia  promote   the purpose  and principles  of the Constitution (Article 159(2) (e)) and to promote  and protect  fundamental  freedom  in the bill of rights  and determine  whether  any law  is inconsistent   or contravenes  the Constitution (Article 165(2) (b) and (d) ).  The main consideration in the decision making is to be found under Article 10 of the Constitution which are the national values and principles of good governance and Article 159 which enumerates the guiding principles in decision making.  In the case of Minister of Health and Others –VS- Treatment Action Campaign and Others (2002) 5 L.R.C. 216 and 248.    A South African Constitutional court viewed the duty of a court   in the following terms;

“Theprimary duty of courts is to the Constitution and the law which they must apply impartially and without fear, favour or prejudice.  The Constitution requires the state to respect, protect promote and fulfill the rights in the bill of rights.  Where the state policy is challenged as inconsistent with the Constitution, courts have to consider whether  in formulating and implementing  such policy he state has given effect to its Constitutional obligations…………..”

This authority is relevant here in view of the fact our Constitution borrowed heavily from the South African’s version.  Furthermore under Article 160(1) of our Constitution, this court in exercise of its judicial authority is subjected only to the Constitution.   I therefore find the Respondents submissions on what must be considered in this application in respect to the effect of allowing the application to be erroneous  and secondary in terms of consideration.

The Petitioner at least is right though he raised  the point belatedly that legislations whether national or county must be guided by Article 10 of the Constitution particularly in regard to public participation with all the stake holders.  I do find the issue of public participation  in our Constitution new and important element that was deliberately given prominence by Kenyans when enacting the new Constitution and as such a lot of importance must be attached to it.   In the Constitutional Petition NO. 318 of 2012 at Nairobi, Law Society of Kenya –VS- Attorney General and 2 others the court in determining the legislative procedure and public participation stated;

“ In order to determine  whether there has been public participation the court  is required to interrogate  the entire process leading to the enactment  of the legislation; from the  formulation of the legislation  to the process leading to the enactment  of the statute……….”   The court went on to observe that  “there is public participation  in all the stages  a bill passes  through in parliament  and the same is provided for by parliamentary standing orders  which provide  for advertisement  of the bill and public  hearing  and invitation of the public to submit  written memorandum  and give their inputs.    This issue of public participation is a core value in our Constitution and in an open democratic state such as ours and should be taken seriously by all public bodies and state organs”. Public participation therefore  is not an issue to be taken as a matter of routine or to be taken   for granted.  The participation of the public must be real with sufficient details of the participation such as place of the meeting and the minutes of attendance and contributions being shown.  Furthermore there must be public advertisement through the print media or radio inviting members of the public and giving them sufficient and reasonable time to attend and make their contributions.    It is on the basis of this that I would have otherwise  found the concerns expressed by the Petitioner’s counsel legitimate.  The onus of showing that there is no due process in the enactment of a statute is on the party alleging it.  But as to whether this onus was discharged in the application before me is matter that I will come to shortly in this ruling.

It is not in doubt from opposition put forward by the Respondents that the Respondents indeed do appreciate the importance of public participation.  It is important to note the great length, the Respondents went to demonstrate that there was public participation in the enactment of the impugned legislation.  The affidavit of Joe Muriuki and the annextures therein is a clear demonstration that Respondents were aware that the issue was likely to be raised, the Applicants pleadings filed notwithstanding, and that the issue was important. Though this court has seen the efforts made by the Respondents to have  some measure of public participation, I am unable to find at this stage the logic or rationale behind giving the residents of Kirinyaga County one day notice to give any meaningful views and contributions.  To provide a modicum of public participation there is need to give reasonable time to the public to prepare and give their views.  This court  however has seen documents  attached to the 1st Respondent’s affidavit in reply that indicate that some public meetings  were held and  the members of the public invited  through local radio station  known as “Kameme”  which I understand  and indeed  I take judicial notice that   its popular  media of choice  on this region. I find  that the Applicant  did not rebut  this evidence  or demonstration by the respondents that members of the public invited participated  and since the same is deponed on oath, and the same being unchallenged this court at least for now is unable see basis to fault them.

(iii) Whether the Petitioner’s application meets the threshold for a grant of relief sought.

It is the Respondents case that the application before court does not meet the threshold to grant the reliefs sought the nature of reliefs being injunctive in nature.  The Respondents have raised two critical issues have the potential in my view to dispose of not only the application before me but the entire petition.  I will however deal with what is before me as I was not called upon to determine the petition at this state.  The two crucial issues are;-

That the petition does not disclose a cause of action.

That the application and the petition is incompetent for want of capacity by the Petitioner to file this petition.

The Applicant has cited a number of fundamental rights which it states have

been either violated or face danger of being violated.  Mungai cited Article 31 and 40 in the grounds in support of this motion.  Article 31 of the Constitution deals with right to privacy and I agree with the respondents submissions that the Applicant contention of infringements is without any basis.  In the first place the Applicant’s place of business cannot be viewed as private premises because it is open to public and the nature of business therein brings in the obligations of the respondent’s under Article 46(1) to ensure that the rights of members of public who visit such places are protected and ensured of goods and services of reasonable quality.  It is a misconception for a businessman to open up premises for legal business regulated by law and when regulators check in to ensure compliance, he uses Article 31 as shield.  Article 31 of the Constitutionprotects directing places or homes from arbitrary searches etc. from the state.  I am not persuaded that the Applicants right to privacy has been infringed or likely to be infringed in any of the cited reasons.   In addition, to this though I agree with the Petitioner’s counsel that the right to acquire and own property is guaranteed under Article 40 of the Constitution, this right is one of those rights that have limitations under Article 24(1) of the Constitution which justifies limitations on reasonable and justifiable grounds in an open and democratic society   with regard to larger public interests.  In the recent case of JOHN KINYUA MUNYAKA & 12 OTHERS –VS- COUNTY GOVERNMENT OF KIAMBU AND 3 OTHERS MURANGA PETITION NO. 2 OF 2014 HONOURABLE Justice Ngaataking the same position stated that limitation of fundamental stated rights under Article 24(1) is noble and necessary where it shown that it is necessary to protect the rights and fundamental freedoms of others.  This court finds no specific provision in the impugned legislation that is consistent with the Constitution at this stage.  The respondents faulted the petition and application for being unclear on what exactly their grievances are what rights have being infringed and how or to what extent have they been infringed.

In considering whether a law enacted is Constitutional or not it must be noted that there is general presumption that statutes by parliament  or like in our case County Assembly  are Constitutional legal and valid and the onus is on the one who rebuts, this presumption.  That is the position of the law and it is position that has been taken in by local jurisdictions in various decisions for example Nairobi H.C.C. Constitutional NO. 312 of 2012  Law Society of Kenya –VS- Attorney General of Kenya, Ndyamo-VS- Attorney General of Uganda (2001) EA, 495  and Muranga Bar Owners Association –VS- Minister of state for provincial Administration and Internal Security Nairobi  H.C. Petition NO. 3 of 2011.   This position can also be seen in other jurisdictions.   The Supreme Court of India in Hampard Wakhana –VS- Union of India Air (1960) AIR 554 the Supreme court observed as follows;

“ in examining  the Constitutionality of a statute it must be assumed the legislature understands and appreciates the needs of the people  and the law it enacts  are directed to problems  which are made manifest by experience  and the elected representatives  assembled  in a legislature  enacts laws which they consider to be reasonable for the purpose  for which they are enacted.  Presumption is therefore in favour of the constitutionality of an enactment “.

In the light of the above this court presumes that the Kirinyaga Alcoholic Drinks ControlAct NO. 1 of 2014 is Constitutional and valid as nothing has been adduced to rebut the presumption.  If anything, the counsel for the Petitioner uplouded the spirit and the objective of the Act.  This court finds no basis in Applicant’s complaint about the unconstitutionality of section of the impugned legislation to be unfounded.

The most glaring defect apparent on the Petition that calls into question not only the cause of action but its competency has been pointed out by the 3rd ground of objection filed by the Respondents.  The application and indeed the petition is linged on alleged violations of its Constitutional rights in regard to the new County legislation which the Applicant has impugned.  I have looked at the submissions made on the Applicants behalf.  It  is clear that it has not only  impugned  some sections  of the new legislation  but the process itself leading to the enactment of the same Article 185(1) of the Constitution vests  the legislative  authority of a County Government in the County Assembly  which is tasked  with all the legislation  under schedule four of the Constitution .  This important body whose work is now under scrutiny is not a party in this petition.  The omission renders the prayers/reliefs sought by the Applicant incompetent.  the question of whether the application does meet the threshold to grant the reliefs sought cannot even arise in view of the above.  I agree with the Respondents 1 to 7 herein that there is no cause demonstrated by the Applicant.  The 1st to 7th Respondents form part of County Executive whose functions are well spelt out under Article 183(1) which I quote

“A County Executive Committee shall:

Implement County legislation.

Implement, within the county National Legislation to the extent that the legislation so requires.

Manage and coordinate the functions of the County Administration and its departments.

Perform any other functions, conferred on it by this Constitution or National Legislation.

The work of the Respondents is majority to implement what has been

enacted  by the County  Assembly  and may not be faulted for simply doing their work or duty save of course  where allegations of excess  of jurisdiction or mandate is made in which event a Judicial Review remedy  would be more appropriate .  I of course note from the prayers sought in this application is that prayer 3 is a remedy of prohibitions.  I am however not sure whether the same was prayed for deliberately or inadvertently since no material has been placed before me to warrant it.  Prohibition in its nature is a remedy that issues to forbid   some act or decision which would otherwise be ultra vires.  It is normally given where a public body is exceeding its jurisdiction in entertaining or doing things that are outside its statutory mandate.   The Respondents herein have not been faulted for acting outside their mandate and I with Wanjiru counsel for the respondents that the Respondents and in particular the 2nd Respondent was carrying out his duty under both National and County legislation for the public good in general.  The allegations of intimidations and harassments are unfounded.  There are no specific provided to support the same and I find no merit in the same.

(iv) Capacity of the petitioner to bring the suit on behalf   of the Welfare group.

The Petitioner herein is named as KIRINYAGA UNITED BAR OWNERS ORGANIZATION.  The Petition is however presented by KIRINYAGA UNITED BAR ASSOCIATION.  It is presented as follows;-

“The humble petition of Kirinyaga United Bar Association of P.O. BOX 642 EMBU……”.

The affidavit  in support of the application before  this court has been sworn by REGINALD NJAGI NYAGA who has deponed that he the chairman  of the association   and has presented  a certificate  of registration NO. 3519330 as annexture ‘ B’in his affidavit.  I have perused  at the certificate and there  is no doubt that group registered is a Community Based Organization  which is a self-help group known as KIRINYAGA UNITED BAR OWNERS ORGANIZATION . The deponent has not stated whether  the two entities are one  and the same .  However what I find inconsistent  is the exhibit ‘A’ which the deponent says” are  signatures  of the members  authorizing the chairman to petition this matter  on their behalf”.   The annexture ‘A’ is headed “manufactures , distributes wholesalers and retailers consultative Forum”.   The deponent again does not state  whether this group  is the same  as the first two or distinct and different .  So even before I address the issue of capacity  of the Petitioner, it is apparent  that the Respondent were  actually right when they submitted through counsel that the character  of the Petitioner and the Petition  is vague, unclear and unspecific .  It is actually a challenge to pinpoint  who they are  in view of the above descriptions.

The important question that arises however is whether KIRINYAGA UNITED BAR OWNERS ORGANIZATION  or ASSOCIATION  as a self help group  or CBO (Community Based Organization ) can institute proceedings of this nature .  To address this court  will examine the provisions of Article 22(1)  which has been invoked by the petitioner herein  which provides

“Every person has the right to institute  court proceedings  claiming that a right of fundamental freedom in the Bill of Rights  has been denied, violated or infringed  or  is threatened”.

Under Article  22(2) the Constitution goes ahead to show how a suit should be presented it states;

“ In additionto a person in theirown interest, court proceedings  under  clause (1) may be instituted by:

A person acting on behalf  of another person who cannot act in their own name;

A person acting as a member  of or in the interest  of a group or class of persons.

A person acting in the public interest .

An association acting in the interest of one or more of its members”. (emphasis Mine).

The above Constitutional provisions for me indicates that a person named  with a capacity to act  on his own can bring a representative suit on his behalf and on behalf of others.  A person who lack capacity to institute  a suit can  also bring an action  under Article 22(1) through another  person.  The person bringing  the action should clearly indicate  his name in the suit stating  that he/she is bringing  the action behalf of another or  on  his own behalf  in addition to others who for purposes of clarity must be named and  must give authority or mandate if they wish to benefit  or obligated  from   the reliefs  sought.  In the absence  of a named person, then it  becomes  difficult to know whether legal capacity is vested or not.   Under Article 260 of the Constitution a “person”  includes  a company , association or other body of persons whether incorporated  or not.  Of course bodies  have  capacity to sue or be sued as  the law vests them with legal capacity.  What the Constitution addresses here are unincorporated  bodies or class of persons such as self help groups.  The law does not bestow them with the legal capacity per se  but Constitution provides  for an avenue through which they can  competently appear in court and this is  through person(s) vested  with legal capacity.  It is a bit absurd to imagine  that the new Constitution has opened  doors  for anybody including people of sound mind, minors, bankrupts  etc to institute proceedings without a next friend  or a person with legal and  sound capacity to represent  them   Self help groups  or community  based organizations were created by the government to address  poverty  eradication and other noble  causes but were not clothed with the capacity to sue but can do so through its elected officials whose description should be given to show who they are and who they represent.    In the case of DENNIS OLOLOIGERO AND 2 OTHERS –VS- THE ART OF VENTURES LTD  AND 2 OTHERS , NAIROBI HCCC 1353 of 2005 (2006) e KLR, a suit was  brought by persons who described themselves as members of a Community  based Organization (C.B.O) registered under the Ministry  of Gender, Sports  Culture & Social Services.  The court held that such organization  lacked legal capacity  to institute  a suit  and the suit was struck out .  Similarly in the recent case  of KIPSIWO  COMMUNITY SELF  HELP GROUP –VS- ATTORNEY GENERAL& 6 OTHERS  ELDORET E & L   Petition NO. 9 of 2013, a petition  was presented  to court  by a self help group representing squatters at an ADC farm claiming that their rights had been  infringed through historical land  injustices .  Honourable Justice Sila Munyao was called upon to make a decision  on the capacity of the self help group  to bring the said action.  The Judge  was clear and categorical  that the group lacked legal capacity and I am persuaded  by his reasoning which was as follows

“KIPSIWO Self Help Group had no capacity to institute action in its own name. A person recognized in law had to sue on behalf of members of KIPSIWO Self help Group and such members had to be named and identified with precision.  The person bringing the action has to demonstrate that he has permission to bring the action on behalf of the members of the group or on behalf of the people he seeks to represent, if it is representative suit.  The importance of this  is so as to recognize  the persons who seek legal redress and so that orders are not issued  in favour or against  people  who cannot be precisely identified ……………………….In litigation rights and duties will be imposed  on the litigants .  If the court does not know who the litigants are, then it becomes  impossible  for the court to enforce its own orders, for it will never be clear who the beneficiary of the order was or who had obligation to obey or enforce such order”.

The same position is replicated  in the case NYERI QUARRY TRANSPORTERS  SELF HELP GROUP –VS- MUNICIPAL COUNCIL OF NYERI & ANOTHER (2014) e KLR  and KISUMU  BAR OWNERS ASSOCIATION  SELF HELP –VS- DISTRICT COMMISSIONER  & 3 OTHERS (2014) e KLR  where  Honourable Justice Hilarly Chemtei stated,

“there is no doubt that the Petitioner  is registered as a Self help Group……….Ordinarily it is only a limited company or a petition or file a suit  in the  manner filed by the Petitioner herein.   The Petitioner  is not an association  under the societies Act.         I do find that the suit  ought to have been filed by the officials of the group.  I respectfully do not find the basis in law  where a self-help group is a legal or juristic person capable of suing on its own”.

The Petition before court suffers even more serious handicap in my view because  what is stated  to be  200 members  are indicated to be members of another  forum   Furthermore  I find   some other people  who claim  to be members  of the organization  in the annexed  affidavit of Joe Muriuki, the 2nd Respondents, to have disowned  the petition.  The court is  unable to know whether  the persons in annexed   JMI a, b,c & d are bona fide members of the petitioner or not.  I am unable to tell with precision going by the papers filed who  the members of the petitioner  actually are  for the aforesaid reasons.

In the light of the above  it is quite obvious that the application before me as presented  does not meet  the required threshold  for the grant of reliefs sought.  The application as demonstrated above was doomed  to fail from the start  and unless concrete corrective measures are taken on the petition itself to get some life into it  will face the same fate.  The application dated 29th September, 2014  must fail.  It is struck out and dismissed with costs to the Respondents.

R.K. LIMO

JUDGE

DATED,SIGNED AND DELIVERED AT KERUGOYA THIS 14TH  DAY OF NOVEMBER, 2014 in the presence of

Mr Mungai Counsel for the Applicants

M/S Wanjiru Wambugu counsel for 1st to 7th Respondents

Mbogo Court Clerk