Nguta & another v Chung & 2 others; Kissa & another (Interested Parties) [2023] KEHC 24884 (KLR)

Nguta & another v Chung & 2 others; Kissa & another (Interested Parties) (Constitutional Petition E22 of 2022) [2023] KEHC 24884 (KLR) (1 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24884 (KLR)

Republic of Kenya

In the High Court at Nakuru

Constitutional Petition E22 of 2022

HM Nyaga, J

November 1, 2023

Between

Rosemary Mutheu Nguta

1st Petitioner

Samuel Muisyo Kyoyo

2nd Petitioner

and

Bonnie Chung

1st Respondent

The Registrar Of Societies

2nd Respondent

The Honourable Attorney General

3rd Respondent

and

Zeke Cheborin Kissa

Interested Party

Wongi Kang

Interested Party

Judgment

1. On 30th September 2022 the petitioners filed the instant petition pursuant to the provisions of Articles 2, 3, 20(1)-(4), 21, 22, 23, 28, 29, 32, 36, 165, 243, 244 & 245 of the Constitution 2010 seeking the following orders:-a.A declaration that the Annual General Meeting purportedly held on 31st March, 2022 violated clause 8(b) of the Constitution of Lamb keepers Ministries and was thus unlawful, null and void.b.A declaration that the decision by the 1st respondent to remove the petitioners as Treasurer and Secretary of Lamb Keepers Ministry and appointing the interested parties in their place without following the due process was illegal and in violation of the Petitioners’ Rights to association and equal protection and benefit of the Law.c.A declaration that the 2nd Respondent’s decision to rectify the register and remove the petitioners as treasurer and secretary of Lamb keepers ministry and replacing the interested parties in their place without ensuring adherence to the law was illegal and in violation of the Petitioner’s rights to association and equal protection and benefit of the Law.d.A declaration that the decision of the 1st respondent to remove the 1st petitioners as a trustee of Lamb Keepers Ministries and replacing her with the 1st interested party without following the due process violated the first petitioners’ rights to human dignity, right of association and equal protection and benefit of the law.e.An order of certiorari be issued quashing the decision of the 1st respondent effecting changes by illegally appointing the interested parties as Treasurer and Secretary of Lamb Keepers Ministries in place of the petitioners.f.An order of Mandamus compelling the Registrar of Societies, the 2nd Respondent herein to restore the petitioners as the treasurer and secretary of LAMBSEEKERS ministries as per the list of the society’s office bearer’s before 31st March, 2022g.An order of injunction be issued restraining the 1st interested party from assuming the role as a trustee of Lamb Keepers Ministries in place of the 1st Petitioner or acting in any way that will be prejudicial to the 1st petitioner’s interest as a trustee of Lamb Keepers Ministries.h.An Order of injunction be issued restraining the interested party from assuming the roles as Treasurer and secretary of Lamb Keepers Ministries in place of the Petitioners or acting in any way that will be prejudicial to the Petitioners’ interest as Treasurer and Secretary of Lamb Keepers Ministries.

2. The Petition is supported by an affidavit of Rose Mutheu Nguta the 1st petitioner herein who describes herself as the lawful treasurer of the Lamb Keepers Ministries.

Background and Summary of Facts 3. The petitioners aver that sometime in 2009, together with the 1st respondent and Pastor John Muguti Masai came together and started a ministry to support teenage mothers in Ogilgei in Ngata area in Nakuru Kenya, and they sourced for funds and expanded the ministry by opening branches in Ponda Mali Kaptembwa and Kanu Street in Nakuru.

4. That in 2010 the 1st petitioner ,1st respondent and the said pastor John Muguti Masai registered Lamb Keepers Ministries as a Society, and they were issued with registration certificate number 33637 as Chairman, Secretary and treasurer.

5. They assert that subsequently they drafted a constitution as mandatory requirement that was to guide the members and activities of the society.

6. It is their case that in 2012 the said pastor John Muguti Maasai unceremoniously left the society due to irreconcilable differences with the 1st respondent leaving a vacancy in their position of the secretary of the society and the committee of Lamb Keepers Ministries in exercising its powers under clause 129(a) of the Constitution appointed the 2nd petitioner to fill the void and the changes were communicated to the 2nd respondent who made changes in the register.

7. They contend that as the society expanded, it started acquiring properties which as per clause 10 were to be vested in the 1st petitioner and the 1st respondent by virtue of being the founder members of the society and trustees and as such all the immovable properties acquired by the society were registered in their names as trustees.

8. They aver that despite having the constitution prescribing responsibilities of each official the 1st respondent continuously violated the said constitution by interfering with the duties of the other officials as she had blocked the 2nd petitioner from calling for Annual General Meetings as required under the societies constitution , diverted funds meant for the welfare of the society to her personal use, disposed off a motor vehicle purchased by the society and pocketed the money causing a fall out with them.

9. They aver that on 24th May, 2022, the 1st petitioner received a letter from the firm of Mutonyi Mbiyu & Company Advocates informing her that an annual general meeting had been held on 31st March, 2022 and she had been removed as a trustee of Lamb Keeper’s Ministries and replaced with the 1st interested party and was further summoned to the said firm to sign the application and consent to rectify the land register and remove her name from the title deeds. That this communication sounded absurd to the 1st petitioner as she had never been notified of any meeting as required under clause 8(b)(1) of the Lamb Keepers Constitution.

10. That the 1st petitioner then inquired from the 2nd petitioner who was the secretary on the minutes of the Annual General meeting but the 2nd petitioner was also not cognizant of the said meeting despite being the person mandated under clause 5 of the constitution of Lamb Keepers Ministries to keep minutes of such meetings.

11. The petitioners then through their advocates proceeded to the registrar of societies the 2nd respondent herein where upon inquiry discovered that they had been un-procedurally and unlawfully removed as treasurer and secretary of Lamb Keepers Ministries and replaced with the interested parties.

12. They aver that their advocates thereafter wrote a letter to the 2nd respondent’s advocates seeking among other documents certified copies of the minutes of the alleged annual general meeting held on 31st March 2022 which were availed on 9th September, 2022, and upon perusal, it was clear that they were doctored and that the 1st Respondent was the one who caused their removal as officials.

13. The Petitioners aver that from the minutes of the purported annual general meeting there was no mention of election of the treasurer and secretary but only a trustee. However the 1st respondent misrepresented facts to the 2nd respondent that in the said meeting the petitioners were removed as treasurer and secretary of the society and replaced with the interested parties. Notably at the time of the alleged meeting was held the 2nd petitioner was the lawful secretary of the society but the minutes state otherwise.

14. That upon further scrutiny of the list of members who allegedly attended the meeting some of the names included belonged to people who have never at any time been members of Lamb Keepers Ministries and the said members never signed anything to prove that they indeed attended the meeting as alleged.

15. They state that the 1st respondent has since purported to kick them out of Lamb Keepers Ministries and in the process shutting down all the churches under Lamb Keepers Ministries thus denying them a place to worship.

16. The Petitioners further state that the 1st Respondent is hell bent on disposing off the assets acquired by the society and move back to USA as she has already disposed off the Motor Vehicle Registration Number KBQ 713 V Toyota Surf purchased by Lamb Keepers Ministries in 2011 and pocketed the proceeds, and further on 31st August, 2021 transferred huge amounts from the society’s account to her personal account without involving the treasurer for her own financial gains.

17. The 1st respondent swore a replying affidavit and further Affidavit in opposition to the petition on 9th March, 2023 and 8th May, 2023 respectively. He avers that the 1st petitioner has been a trustee of Lamb Keepers Ministries and that Rule 10 of the Lamb Keepers Ministries mandates all immovable property, investments and securities to be registered in the names of the trustees and for trustees to be appointed or removed at the Annual General Meeting.

18. He contends that on 23rd June, 2014, the 1st petitioner and the 1st respondent bought six parcels of Land at Bahati Area as trustees of the Lamb Keepers Ministries, and in the year 2014, the 1st petitioner and the 1st respondent were registered as owners and trustees of the Lamb Keepers Ministries of title numbers Bahati/Kabatini Block 1/4620, 14621, 14622, 14623, 14624, 14625, 14626, 14627, 14628, 14629 and 14630.

19. That in an Annual General Meeting of the Lamb Keepers Ministries held on 31st March,2022, it was resolved under MIN 03/2022 that the 1st petitioner be removed as a trustee of the Lamb Keepers Ministries and be replaced with Zeke Cheborin Kissa.

20. He deposes that on 24th May, 2022 his advocate wrote to the 1st petitioner informing her of her removal as a trustee of the Lamb Keepers Ministries and requiring her to sign the requisite applications and consent to facilitate the rectification of the land register to remove her name as a trustee of the Lamb Keepers Ministries in all the aforesaid parcels of land.

21. He asserts that the 1st petitioner did not respond to the said letter and when a reminder dated 16th August, 2022 was issued, the 1st petitioner requested and was supplied with the minutes of the Annual General Meeting held on 31st March, 2022.

22. He contends that the 1st petitioner did not comply with their request but instead rushed to this court.

23. He asserts that the real motive of the 1st petitioner is to illegally remain as a trustee by frustrating the rectification of the land registers.

24. He deposes that the petitioners are no longer office bearers of Lamb Keepers Ministries, that the instant petition does not raise any constitutional issues and that the issues raised herein should be addressed in an ordinary civil suit.

25. He states that the 2nd petitioner resigned as a Secretary of Lamb Keepers Ministries through his letter dated 29th September, 2021.

26. The 2nd and 3rd respondents opposed the petition through the grounds of opposition dated 31st October,2022 on grounds that: -a.That the Petitioners have not exhausted the dispute resolution mechanisms specifically provided for under Section 18 of the Societies Act Cap 108 and in line with Section 9(2) & (3) of the Fair Administrative Action Act No.4 of 2015. b.That the petition directly offends Article 159(2) (c) of the Constitution of Kenya 2010. c.That the suit is premature and is otherwise an abuse of the court process.

27. The 2nd Petitioner swore a Supplementary Affidavit in response to the aforestated Replying Affidavit on 8th August,2023 wherein he deposes that he did not resign as a secretary of Lamb Keepers Ministries as alleged but was removed vide the sham AGM allegedly held on 31st March,2022.

28. He avers that the said resignation letter was never tendered to the said Ministries as his official resignation letter and he is shocked as to how the 1st Respondent came across the same.

29. He asserts that as the secretary of Lamb Keepers Ministries he is aware that the offices have an official stamp used by the Chairperson for receiving all documents which case if he had truly resigned then his resignation letter ought to have been received and stamped.

30. The petition was canvassed through written submissions.

Petitioner’s Submissions 31. The petitioners filed submissions on 25th July, 2023 and supplementary submissions on 10th August, 2023.

32. On whether the court lacks jurisdiction to hear this matter, the petitioners submitted that this court has jurisdiction to hear and determine this matter under Article 23(1) (3) and 165(3) (b).

33. Citing the provisions of Section 18 of the Societies Act, the Petitioner submitted that the said section is irrelevant herein as it refers to a situation where the identity of the officials of the society are unknown due to leadership wrangles . In buttressing their submissions, the petitioners placed reliance on the decision in Tarak Khawaja & 5 others v Registrar of Societies & 9 Others [2017] eKLR

34. The petitioners submitted that this dispute falls under Section 17 of the Societies Act and that they are challenging their removal orchestrated by the 1st Respondent and rubberstamped by the registrar of societies and telling them that their dispute ought to be resolved by the same registrar of societies who approved and took part in their unlawful removal violates the principles of Natural Justice and the doctrine of Nemo Judex in Causa sua.

35. The petitioners placed reliance on the case of Republic vs. Registration of Societies & 5 others ex-parte Uhuru Kenyatta & 6 others [2007]eKLR for the proposition that the registrar has a duty to ensure any change of officials under Section 17 of the Act conforms with the Society’s Constitution.

36. The petitioners argued that there is no provision of settling disputes once the registrar exercises the powers under Section 17. Reliance was placed on the Supreme Court case of NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) for the proposition that an Act of parliament must clearly provide for an internal dispute resolution mechanism before an aggrieved party can be bound by such a mechanism.

37. With regard to whether the 2nd petitioner has Locus Standi to file this Petition, the petitioners submitted in the affirmative. They argued that locus standi in a constitutional petition is provided under Article 22 of the Constitution.

38. It was the petitioners’ submissions that the 2nd Petitioner did not tender the resignation letter to the Society and that if he had done so, the said letter would have been submitted to the registrar and a new secretary elected pursuant to the Society’s Constitution and his name not included in the list of attendees of alleged meeting.

39. With respect to whether the Annual General meeting allegedly held on 31st March, 2023 violated the Society’s constitution, the petitioners submitted that no notice of the aforesaid meeting was given as required by the society’s constitution thus if such meeting was held then it was in violation of the constitution of the society and Section 29(1) of the Societies Act thus null and void.

40. The petitioners also cast doubt on whether the said meeting happened as they appear in the list of attendees yet they did not attend the meeting; the members allegedly present did not sign the minutes; & the 1st Respondent did not read the minutes of the previous meeting and take the minutes of that meeting.

41. The petitioners contended that further the minutes were never availed to the 2nd respondent before the changes were effected. In buttressing their submissions, the petitioners relied on the case of John Cancio De SA vs. V N Amin Civil Appeal No. 27 of 1933 [1934] 1 EACA 13 where the court observed thus:“Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.”

42. In regards to whether the removal of the Petitioners as officials of Lamb Keepers Ministry was unlawful, the petitioners submitted that no notice of meeting as envisaged under Section 17(1) of the Societies Act was issued and that the meeting might not have happened since there was no mention of election of Secretary or Treasurer which is the main dispute herein.

43. The petitioner further argued that it is not in doubt that the registrar has the duty to regulate societies and ensure that they abide by the Societies Act and their rules/constitution but in the instant case, the registrar failed to confirm whether their removal from office was in line with the Society’s Constitution. The case of Republic vs. Registration of Societies & 5 others ex-parte Uhuru Kenyatta & 6 others [2007] eKLR was relied upon for the proposition that Section 17(1) imposes a positive duty upon the registrar not merely to receive the notification of change and collect filing fees in respect thereof, but rather to examine the returns and establish whether the change of which the notification has been made was carried out in terms of the society’s constitution because Section 19(1) of the Societies Act imposes a duty upon the registrar of societies to ensure that the minimum matters to be provided for in Society’ constitution as required in the schedule to the act have been included and that provision complied with.

44. The Petitioners further argued that rule 99(e) of the Societies Act gives the registrar the power to call for minutes of the society and if registrar did that in this case it would have noted that their removal was not in accordance with the Law.

45. With respect to whether the removal of the 1st petitioner as a trustee of Lamb Keepers Ministries was procedural, it was submitted that the 1st interested party was removed on grounds that his term had expired yet under clause 10 of the constitution of Lamb Keepers Ministries upon expiry of contract of trustees are eligible for reelection. It was argued that the 1st petitioner had a right to seek for re-election which she was denied as she was not served with the notice of such meeting.

46. In regards to whether the petitioner’s rights were violated, the petitioners submitted that their removal from office in an illegal and un-procedural manner violated their right to dignity enshrined under Article 28 of the Constitution.

47. The petitioners argued that their freedom of association provided for under Article 36 of the Constitution was infringed as they were denied a chance to vote as members of the society and seek for re-election as trustees. Reliance was placed on the case of David Kipsang Kipyego & another vs Registrar of Documents & 4 others; Eric Kiptum Teimuge (Interested Parties) [2019] eKLR where the court found that the right to freedom of association of the petitioner’s had been violated given that their removal as trustees was in contravention of the trust deed and certificate of incorporation’s provisions.

48. The petitioners submitted that 1st respondent kicked them out of the church and further shut down the branches thus denying them a place of worship contrary to Article 32 of the Constitution.

49. The petitioners contended that they were denied right to equal protection and benefit of the law provided under Article 27 of the Constitution as the 1st respondent used un-procedural means to remove them from office and the 2nd respondent who had a duty to ensure that the process for their removal was lawful failed to do his/her mandate.

50. With regard to whether prayers sought should be granted, specifically Judicial review orders of mandamus& certiorari, the Petitioners cited the case of Wycliffe Khisa Lusaka v Independent Electoral and Boundaries Commission [2017] eKLR which defined judicial review as a judicial invention to ensure that a decision by the executive or a public body was made according to law, even if the decision does not otherwise involve an actionable wrong.

51. The case of Republic vs Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 6 others Ex-parte Africa Centre for Open Governance & 7 others [2017] eKLR for the proposition that if a public officer goes out of control or has exceeds the legal parameters and criteria set out for the exercise of his jurisdiction, the leash of the supervisory jurisdiction of the High Court must be activated and invoked.

52. Reliance was also placed on the case of Republic vs Registration Of Societies & 5 Others Ex-Perte Uhuru Kenyatta & 6 Others [2007] eKLR which elucidated the circumstances under which the judicial review orders of mandamus & certiorari can be issued.

53. The Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where the court stated inter alia that in order to succeed in an application for judicial review ,the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

54. The petitioners then submitted that in this case there is no doubt that 2nd respondent in exercising his or her powers under Section 17 of the Societies Act was bound to ensure that the process to remove them as officials was within the constitution of the society and the societies act , however that procedure was not properly followed and in the circumstances ,it is only fair that the decision to remove them as treasurer and secretary respectively is quashed by an order of certiorari, and that further the removal of the 1st petitioner as a trustee based on a skewed meeting was marred with illegalities and ought to be quashed.

55. They further argued that it is prudent that the petitioners are restored to their positions by order of mandamus directed at the 2nd respondent before making the changes.

56. On injunctions, the petitioners submitted that it is quite clear that the process through which they came into office was skewed and it is only fair that they be restrained from taking office to the detriment of the petitioners.

57. In view of the foregoing, they urged this court to allow the petition as prayed.

1st Respondent and interested parties’ submissions 58. The parties herein framed four issues for determination. Namely;a.Whether the Honourable Court has jurisdiction to hear the matterb.Whether the petition raises any constitutional issues.c.Whether the 1st petitioner was legally removed as a trustee of the Lamb Keepers Ministriesd.Whether the 2nd petitioner has locus standi

59. On the first issue, the parties herein referred this court to the case of Samuel Kamau Macharia & Another va Kenya Commercial Bank Limited & others (2012) eKLR where the court held that;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law

60. The Court of Appeal decision in the case Geoffrey Muthinja & another vs Samuel Muguna Henry & 1756 others [2015] eKLR where the court held thus;“…it is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked…”

61. The case of Peter Ocharo Anam & 3 Others v Constituency Development Fund Board & 4 Others, Petition No 3 of 2010 for the proposition that it is not right for a litigant to ignore with abandon dispute resolution mechanisms provided for in a statute and which would easily address his concerns and rush to Court under the guise of a constitutional petition alleging breach of constitutional rights under the Bill of rights.

62. The 1st respondent and interested parties argued that the petitioners have deliberately avoided and ignored the procedure and remedy provided for under Section 18 of the Societies Act. Furthermore, they have not provided any information as to why they did not submit their complaints to the 2nd respondent as required by law and as such this Honourable court lacks jurisdiction to hear and determine this case.

63. With respect to the second issue, the 1st respondent and the interested parties submitted that the petitioners have not with reasonable precision set out their claim, the articles claimed to be infringed and the manner of infringement . To support this position, reliance was placed on the cases of Benard Ambasa v Institute of Human Resource Management & 3 others; Lilian Ngala Anyango (Interested Party) [2021] eKLR; Anarita Karimi Njeru v Republic (No. 1) [1979] 1 KLR 154; Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR; Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] eKLR;& Manase Guyo & 260 others v Kenya Forest Services [2016] eKLR for the proposition that a person seeking constitutional redress must set out with a reasonable degree of precision that which he complains of ,the provisions said to be infringed and the manner in which they are alleged to be infringed.

64. The 1st respondent and interested parties contended that this matter does not raise constitutional issues as removal of the petitioners as officials of the ministry and updating of the records of the 2nd respondent as alleged can be resolved in an ordinary civil suit. To buttress their submissions, the 1st respondent and the interested parties relied on the cases of Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and all past and present customers of banking institutions in Kenya) vs. Habil Olaka & Another [2018] eKLR for the proposition that a party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a rights or fundamental freedom. Any other claim should be filed in the appropriate forum and in the manner allowed by the applicable law and procedure; C O D & another v Nairobi City Water & Sewerage Co. Ltd [2015] eKLR where the court held that where there exist sufficient and adequate mechanisms or forums to deal with a specific issue or dispute by other designated constitutional organs or under a statute, the jurisdiction of the High Court under Article 165(3) (b) of the Constitution should not be invoked until such mechanisms have been exhausted; &Bernard Murage v Fineserve Africa Limited & 3 others [2015] eKLR for the proposition that where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.

65. The parties herein submitted that the issues raised concern the interpretation and application of the constitution of the Lamb Keepers Ministries, the Societies Act and Rules and the Land Registration Act and Regulations and can be well addressed in an ordinary civil suit as opposed to a constitutional petition.

66. In regards to the third issue, the 1st respondent and interested parties submitted that annual general meeting is provided for under clause 8 of the constitution of the Lamb Keepers Ministries and that clause 10 provides that a general meeting shall have power to remove any of the trustees and shall be filed at the same or next general meeting.

67. In view of the above, the 1st Respondent and the interested parties argued that the ministries held the annual general meeting on 31st March, 2022 whereby the members elected new office bearers as provided by its constitution. That the 1st Petitioner whose term had lapsed was replaced with the 1st interested party and she was apprised of the same through a letter dated 24th May, 2023 in accordance with the Constitution of the Ministries.

68. With respect to whether the 2nd petitioner has locus standi, the 1st respondent and the interested parties referred this court to the case of Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR for the proposition that locus standi is the right to appear and be heard in Court or other proceedings and if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to and the case of Enrico Quercioli & another v Director of Public Prosecutions & 2 others; Maria Angela (Interested Party) [2021] eKLR where the court reaffirmed that any person who wants to sue either as an individual, organization, body corporate must show that he or she has locus standi being the right to sue for a remedy and capacity to pursue it before a Court of law. Locus standi does not even rest on the consent of parties to litigate on behalf of each other.

69. The 1st Respondent and the interested parties then submitted that 2nd petitioner voluntarily resigned from Lamb Keepers Ministries through a letter dated 20th September, 2021 and therefore he has no locus in this matter as he was no longer an employee, member or official of the ministries at the time of instituting this petition.

70. The 1st respondent and the interested parties urged this court to dismiss the petition with costs to them.

Analysis & Determination 71. Having considered the Petition, the affidavits in support and in opposition of the Petition, grounds of opposition and submissions on record, it is my considered view that the following issues fall for determinationi.Whether this Court has jurisdiction to consider the Petition.ii.Whether the petition raises constitutional questions.iii.If the answer to the above is in the affirmative, whether the Petitioners failed to set out their complaint with a reasonable degree of precision.iv.Whether the 2nd Petitioner has locus standi to file this Petition.v.Whether the applicant is entitled to the reliefs sought.

72. Jurisdiction is everything and without it the Court has no mandate to take any further step. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The locus classicus on jurisdiction is the celebrated case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd[24] where Justice Nyarangi held as follows :“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

73. It is without doubt that by dint of the provisions of Article 165(3) of the Constitution the High Court, has an unlimited jurisdiction to determine criminal and civil disputes. The court also has jurisdiction to deal with matters constitution as may fall for determination under Article 165 (3).

74. The question that I should answer based on the responses by the Respondents, is whether the Petitioners can seek to redress their grievance(s) through a constitutional petition under Article 165(3)(b).

75. The Respondent and interested parties contend that the Petitioners have not exhausted the dispute resolution mechanisms specifically provided for under Section 18 of the Societies Act Cap 108.

76. Article 159 (2) (c) of the Constitution enjoins this Court to promote alternative forms of dispute resolution involving even dispute resolution mechanisms.

77. Under Section 9 of the Fair Administrative Action Act, the provisions of Article 159 (2) of the Constitution is emphasized and thus enjoining the courts to promote alternative forms of dispute resolution including reconciliation; mediation; arbitration and traditional disputes resolution mechanisms.

78. In the case of Council County Governors vs Lake Basin Development Authority & 6 others (2017) eKLR Hon. Justice Mativo in a Constitutional Petition held thus: -“I have no doubt that alternative dispute resolution processes are complementary to the judicial process and by virtue of Article 159(2) (c) of the Constitution, the court is obligated to promote these modes of alternative dispute resolution. A court is entitled to either stay the proceedings until such a time as the alternative remedy has been pursued or bring an end to the proceedings before the court and leave the parties to pursue the alternative remedy.”

79. Further in the case of Jennifer Shamalla vs. Law Society of Kenya & 15 Others (2017) eKLR it was held: -“It has been said time without number that whentever an Act of Parliament provides for a clear procedure or mechanisms or redress, the same ought to be strictly followed.”

80. The Supreme Court of India has also held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. For instance, in Re Application by Bahadur[1986] LRC (Const) the Court expressed itself as follows at page 307;“The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... The Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not, “a general substitute for the normal procedures for invoking judicial control of administrative action.” (See Harrikissoon v A-G [1979] 3 WLR 62).

81. It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const(per (Georges C.J);“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.” (emphasis)

82. In view of the above precedents, it is crystal clear that where there exist sufficient and adequate mechanisms or forums to deal with a specific issue or dispute by other designated constitutional organs or under a statute, the jurisdiction of the High Court under Article 165(3) (b) of the Constitution should not be invoked until such mechanisms have been exhausted.

83. From the facts of this case, it is apparent that the dispute herein revolves around the procedure deployed by the society, for the removal of the petitioners as officials of the Lamb Keepers Ministries.

84. The Petitioners have in fact expressly submitted that they are challenging their removal that was orchestrated by the 1st Respondent and rubberstamped by the Registrar of Societies.

85. Section 18 of the Societies Act provides as below: -“18. Disputes as to officers(1)If the Registrar is of the opinion that a dispute has occurred among the numbers or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of the society, the Registrar may by order in writing, require the Society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers of the society or of the constitution of proceeding for the settlement of such dispute.(2)If an order subsection (1) of this section is not complied with to the satisfaction of the Registrar within the period of one month or any longer period which the Registrar may allow, the Registrar may cancel the registration of the society.(3)A society aggrieved by the cancellation of its registration under subsection (2) may appeal to the High Court within thirty days of such cancellation.”

86. It is the court’s view that the above section is clear that before the Registrar can take a decision under the provision he/she must hear the parties involved.

87. In Tarak Khawaja & 5 others vs Registrar of Societies & 9 others(Supra) the court held that under Section 18 of the said Act, once the Registrar is satisfied that there is a dispute between members or officers of a Society so that he cannot tell the identity of the legitimate office bearers, he is required to serve a written order upon the Society requiring it to produce, within a month either evidence of settlement of the dispute, or of the properly appointed officers or evidence that proceedings have been initiated to resolve the dispute. Where the society fails to comply with the notice, the Registrar has power to order cancellation of the society’s registration.

88. The respondent herein submitted that the Petitioners were lawfully removed as the officials of the said Ministries in a meeting allegedly held on 31st March,2022 whereas the Petitioners averred that their replacement was done without following the due process as no notice of such meeting was ever served upon them. The petitioners also doubted whether such meeting happened.

89. It is my view that the Registrar is the person/office mandated to take the first measures to resolve the dispute relating to the officials of the society. In the instant matter the petitioners did not notify the Registrar of the issues raised in this petition the moment they learnt of their removal as trustees of the Lamb Keepers Ministries.

90. From the facts of this case, it is thus clear that there was no dispute raised prior to the said Registrar effecting change of officers. The registrar cannot therefore be faulted for effecting the said changes.

91. For the above reasons, I agree with the respondents and interested parties that this petition is premature and the petitioners ought to have exhausted all the mechanisms for dispute resolution, provided for under the Societies Act before coming to court.

92. In the premises, I find that the jurisdiction of this court, is as such barred by virtue of existence of alternative mechanism of resolution of the dispute.

93. Do the applicants raise Constitutional issues? That is the next question to be answered.

94. I have perused the Petitioners’ Petition, which is premised under the provisions of Articles, 27, 28, 32, and 35 of the Constitution. As much as the Petitioners have alleged a violation of those rights it must be remembered that the crux of their case, as already stated, is based on the dispute regarding the procedure deployed by the society, for their removal as officials of the Lamb Keepers Ministries.

95. The allegations raised in the petition are on breach statutory provisions and the constitution of the society. The petitioners have referred this court to the Sections 17, & 29(1) of the Societies Act and clause 8(b)(2)(3) of the Constitution of Lamb Keepers Ministries in urging the court to find that the meeting held on 31st March,2022 was in violation of the Constitution of the Society and Societies Act and thus null and void.

96. The question then would be whether due process was followed in removal of the petitioners as trustees of Lamb Keepers Ministries.

97. In my opinion, the court can answer the question but not through a constitutional petition. It is my view also that the Petitioners allegations have nothing to do with rights and fundamental freedoms under the Bill of Rights. Moreover, as stated earlier, there is already a mechanism in place that can resolve the issues raised by the petitioners.

98. The above finding is in line with the doctrine of Constitutional avoidance.

99. What is constitutional avoidance?The Supreme Court in Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] eKLR stated as follows:-“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue,that is the course which should be followed.”Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).”

100. In Sumayya Athmani Hassan vs Paul Masinde Simidi & Another [2019] eKLR the Court of Appeal stated:“… Where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. …”

101. The court in KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) cited by the respondent stated that Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved.

102. Flowing from above, it is clear that one of the circumstances which would deprive the petitioner hearing before a constitutional court is the doctrine of constitutional avoidance, which the respondent herein has invoked.

103. As I have stated, if the petitioners were aggrieved by the alleged actions of their counterparts in the society, then they had an avenue provided by the Act itself.

104. Now, assuming that the petitioners are aggrieved by the decision of the Registrar to effect the changes the Act provides for an appeal to the High Court. If they are concerned with the manner the Registrar acted, then the avenue to pursue is by way of Judicial Review. That way the court will be called upon to examine the process that led to the removal of the applicants as officials of the Society.

105. As far as I can discern, there are no grounds to argue this case as a constitutional petition. In the circumstances, I find that the petition flouts the doctrine of constitutional avoidance.

106. On this finding, I fully agree with the position taken by Hon. Chacha, J. in Godfrey Paul Okutoyi vs Habil Olaka [2017] eKLR that:“It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a Court of law in the manner allowed by that particular statute or in an ordinary suit as provided for by procedure. It is not every failure to act in accordance with a statutory provision or where an action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum and in the manner allowed by the applicable law and procedure.”

107. The sentiments of the learned Judge are plain and clear.

108. On this ground I find that the petition ought to be struck out with costs to the Respondents.

109. Having stated the above, I may not need to proceed any further but I think it is important to consider the other grounds raised in opposing this petition.

110. The 1st respondent and the interested parties submitted that the petitioners have not satisfied the requirement laid out in Anarita Karimi Njeru vs The Republic(supra) as they have provided very little particulars as to the alleged infringement of their constitutional rights.

111. The court in Anarita Karimi Njeru vs The Republic (supra) held that a Constitutional petition should set out with a degree of precision the petitioner’s complaint, the provisions infringed and the manner in which they are alleged to be infringed.

112. This principle was later reaffirmed by the Court of Appeal in the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR when the Court at paragraph 87(3) of the judgment stated as follows: -“It is our finding that the petition before the High Court was not pleaded with precision as required in Constitutional Petitions. Having reviewed the petition and supporting affidavit we have concluded, that they did not provide adequate particulars of the claims relating to the alleged violations of the constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011, accordingly the petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”

113. It is thus well settled law that in a constitutional petition, a party is not supposed to merely cite constitutional provisions. He/she must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation and state some particulars of alleged infringement to enable the respondent to be able to respond to each allegation accordingly.

114. I have perused the petition and I do note that the Petitioners did indeed cite Articles,27, 28, 32 & 36 purportedly infringed and set out the manner in which the said articles are alleged to be infringed at paragraphs 22 to 24 thereof.

115. In my view, it is incorrect to state that the petition has insufficient particulars regarding the manner in which the aforesaid articles of the constitution were allegedly infringed. Some articles do not require to be elaborated as they merely refer to general rights and powers under the Constitution. In any case, the Petitioners’ claims are easily discernible from the Petition and the Affidavits filed. It is also evident from the responses and submissions filed by the Respondent and interested parties that they were able to understand the issues in controversy.I therefore decline to accept the argument that the Petition was imprecisely drafted. However, as I have found, the facts of the case do not raise any issues pertinent to the said provisions of the Constitution. It’s one thing to allege, and quite another to prove that allegation.

116. The question was also raised as to whether the applicants have the necessary locus standi to bring the action.

117. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum”

118. The respondent contended that the 2nd petitioner has no locus standi to institute this petition as he resigned as a secretary of Lamb Keepers Ministries vide a letter dated 29th September 2021. The resignation letter has been annexed to substantiate this position. The 2nd petitioner on his part admits to writing such a letter but states that he changed his mind and did not tender it to the society. He stated that being a secretary of the ministries he was aware that all documents are normally received and stamped using the office official stamp. He also submitted that had he resigned then the said letter would have been forwarded to the registrar and a new secretary elected and that his name would not have been in the list of attendees of the meeting held on 31st March, 2022.

119. I have perused that letter and I note that it was not received by the Lamb Keepers Ministry and thus does not have the effect of its intention. In any case, resignation as a secretary is not equivalent to resignation as a member of that society. On a balance of probability, I find that the 2nd petitioner did not formally tender it to the Society and as such he has locus standi to participate in this petition, or any other suit. This is without prejudice to my earlier findings on the propriety of the petition.

120. In conclusion, I find that this petition does not raise any Constitutional issues.

121. Consequently, the Petition is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenifferMr. Mbiyu for Mutonyi for 1st respondent and interested partyMs Towett for Petitioners