Thumbi & 4 others v Kairu & 5 others [2022] KEHC 16409 (KLR)

Thumbi & 4 others v Kairu & 5 others (Civil Suit E275 of 2021) [2022] KEHC 16409 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16409 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Suit E275 of 2021

CW Meoli, J

December 8, 2022

Between

George Njigu Thumbi

1st Applicant

Judy Wairimu Kimemia

2nd Applicant

Wilson Kingori

3rd Applicant

Michael Njoroge

4th Applicant

Association

5th Applicant

and

Geoffrey Gichobe Kairu

1st Respondent

Florence Njeri Mwaura

2nd Respondent

John Kiarie Mahuti

3rd Respondent

Mary Ndunge Mutuku

4th Respondent

Karira Kimara

5th Respondent

Registrar of Societies

6th Respondent

Ruling

1. George Njigu Thumbi, Judy Wairimu Kimemia, Wilson Kingori, Michael Njoroge and Kandara Residence Association (the 1st, 2nd, 3rd, 4th, & 5th Plaintiff(s)/Applicant(s)) filed a motion dated 04. 11. 2021 seeking the following interlocutory orders. An order to restrain Geoffrey Gichobe Kairu, Florence Njeri Mwaura, John Kiarie Mahuti, Mary Ndunge Mutuku and Karira Kimara, (hereafter 1st, 2nd, 3rd , 4th & 5th Defendant(s)/Respondent(s)) from conducting or purporting to conduct any business as officials of Kandara Residence Association pending hearing and determination of the suit; an order of restoration of the status quo ante in the official register regarding the name and the officials of the 5th Applicant, as existing prior to the impugned changes pending hearing and determination of the suit; and an order to compel the Registrar of Societies (hereafter the 6th Defendant/Respondent) to furnish the Applicants with all the necessary documentation touching on the changes of name and change of officers of the 5th Applicant. The motion is expressed to be brought inter alia under Section 1A, 1B, 3A & 63(e) of the Civil Procedure Act, Order 40 of the Civil Procedure Rules.

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by the 1st Applicant on his own behalf and on behalf of his co-Applicants. The deponent describes himself as the secretary of the 5th Applicant and fully conversant with the facts giving rise to these proceedings and duly authorized by the 2nd, 3rd, 4th & 5th Applicants to swear the affidavit. That the 5th Applicant is a society registered under the Societies Act and the 2nd to 4th Applicants are the treasurer, vice chairperson and the assistant secretary of the 5th Applicant (hereafter the society), respectively.

3. He asserts that in July 2021 the Applicants discovered that the 1st to 5th Respondents had clandestinely altered the society’s officials’ register by registering their names as the new officials of the society whose name they also changed. That the documents effecting the changes and submitted to the 6th Respondent by the 1st to 5th Respondents included minutes and resolutions purportedly signed by the Applicants. That the said documents were forgeries.

4. He deposes further that the purported change of name of the society and its officials was made in contravention of the Societies Act and the Constitution of the Society the latter which provides that the elections of office bearers be conducted in the society’s annual general meeting (AGM). That no such AGM had taken place in this instance. He asserts that upon the discovery the Applicants had lodged a complaint with the 6th Respondent whose response was that the impugned changes were proper. The deponent states that the 6th Respondent purported in correspondence that the society changes were approved on 28. 07. 2021 while an official search dated 02. 07. 2021 issued by the same office indicated the 1st, 2nd, 3rd, 4th & 5th Respondents as the new officials of the society.

5. The deponent accuses the 6th Respondent of bias or negligence for failing to inquire into allegations of forgery raised by the Applicants and to satisfy themselves that the impugned changes were in accordance with the law or constitution of the society. The deponent asserts further that the impugned changes contravened clause 4 and 8 of the society’s constitution whereas the change of the 5th Applicant’s address without the knowledge of the 6th Respondent was in contravention of the provisions of Section 16(c) of the Society’s Act.

6. The deponent states the Applicants also lodged a criminal complaint with the Directorate of Criminal Investigations (DCI) and that if the court does not intervene, the Respondents will illegally take over the running of the society which eventuality will jeopardize the society’s operations, finances and assets, cause chaos among society members and incurrence of unsanctioned liabilities, plunder and misappropriation of assets through the 1st to 5th Respondents. In conclusion he states that it is in the interest of justice that the motion is allowed as prayed.

7. In answer to the motion, the 1st to 5th Respondents filed a preliminary objection dated 22. 11. 2021. The objection is based on grounds that that the plaint and motion are bad in law and fatally defective and ought to be struck out for offending the mandatory provisions of Rule 9 of the Oaths & Statutory Declarations Act, (which reference must be to Rule 9 of the Oaths and Statutory Declarations Rules) requiring that all exhibits be securely sealed under the seal of the commissioner and be marked with the serial letters of identification. The 1st to 5th Respondents did not file a replying affidavit.

8. The 6th Respondent opposed the motion through a replying affidavit sworn by Maria Goretti Nyariki who describes herself as a Deputy Chief State Counsel and the Registrar of Societies at the Office of the Attorney General and conversant with the facts giving rise to the instant. She takes the position that the motion is lacking in form and substance and ought to be dismissed with costs.

9. First, on the mandate of the 6th Respondent, she states that the 6th Respondent is mandated by the Societies Act to regulate and ensure compliance with the Act by registered societies and to ensure that every registered society that intends to change its name complies with the provisions of Section 20 of the Societies Act.

10. On the contested issues herein, she deposes that the 6th Respondent received an application for change of name dated 27. 05. 2021 seeking to change the erstwhile name of the society , namely, “Kandara Residence Association” to “Kandara Residents Association” and upon verifying that the signatures on the application matched with those of the Applicants herein, the 6th Respondent approved the application on 28. 05. 2021; further that the said application was compliant with Section 20 of the Societies Act as it was accompanied by minutes of the meeting where the requisite resolution was passed and was filed with 6th Respondent within fourteen days from the date of change; and that in line with Rule 11(2) of the Societies Rules the 6th Respondent issued a fresh certificate bearing the new name. Therefore, she asserts that the name “Kandara Residents Association” is duly registered by the 6th Respondent

11. The deponent further explains that the letter dated 22. 07. 2021 by the 6th Respondent addressed to the Applicants inadvertently indicated that the name change was approved on 28. 07. 2021 instead of 28. 05. 2021 and denies any intention to mislead or misinform the Applicants.

12. On the change of the society’s officials, the deponent stated that the notice of change dated 27. 05. 2021 was filed within the stipulated time, and duly executed, and supported by requisite and duly executed documents submitted by the 1st to 5th Respondent, in compliance with Section 17 of the Societies Act and was therefore approved. She contends that the 6th Respondent merely effected the changes in accordance with the Societies Act and that the Applicants have not demonstrated their allegations of bias.

13. She goes on to expresses willingness to furnish the Applicants with the documentation relating to the disputed changes. She reiterates that prior to approving the disputed changes, the 6th Respondent verified the signatures on the applications and requisite supporting documents. And that pursuant to forgery claims by the Applicants, the 6th Respondent had forwarded the disputed documents to the DCI after the Applicants for investigation.

14. Finally, she raised issues regarding the competence of the society as an unincorporated body to file the suit in its own name rather than in the name of its officials. She asserts that the suit and motion are premature as the Applicants have simultaneously lodged a complaint with the DCI and the outcome of investigations would guide the 6th Respondent in confirming or reversing the impugned changes.

15. In a rejoinder by way of a supplementary affidavit, the 1st Applicant in answer to the 1st to 5th Respondents’ preliminary objection swore that the Applicants’ counsel inadvertently and through honest mistake served unmarked exhibits upon the Respondents and the default ought not to be visited upon the innocent litigants. That in the circumstances, the court should exercise its discretion to administer substantive justice. He equally took issue with the 6th Respondent’s affidavit material by deposing that the process leading up to the change of officials and name of the society was marred by procedural impropriety.

16. Although the court had on 18. 11. 2021 directed the parties to file submissions on the motion before the 9. 03. 2022, and the subsequent hearing dates, by 23. 05. 2022, only the Applicants had complied and the court on that date decided to hear the parties’ oral arguments.

17. In the Applicants’ written and oral submissions, it was argued that the constitution of a society is the constitutive document that governs the society. He asserted that the manner by which the Respondents caused the change of name and officials did not conform with the society constitution. He submitted that under clause 8 of the constitution, the change of office bearers ought to be conducted through an election at the AGM. However, the Respondents have not tendered evidence of minutes of the AGM in which they were elected as office bearers of the society.

18. It was further submitted that even if the Respondents took office pursuant to a special general meeting (SGM) the constitution required that notice of the SGM be sent out to all members of the society including the Applicants who did not did not receive such notice. In that regard, he stated that clause 8(c) which provides for notice is couched in mandatory terms and non-compliance renders actions taken void ab initio. Hence he contends that the ouster of the Applicants from their various positions in the society was illegal and the court should grant an order of reinstatement of status quo ante .

19. Citing Giella v Cassman Brown (1973) EA 358 and Kenya Commercial Finance Co. Ltd v Afraha Education Society (2001) Vol 1 EA 86 he reiterated the legal threshold to be met in a successful application for an interlocutory injunction. Addressing the court on whether a prima facie case has been established, counsel submitted that there was no dispute that the 1st to 4th Applicants have been officials of the society and that there is prima facie evidence that the Respondents flouted the constitution of “Kandara Residence Association” in their ouster bid.

20. As to whether the Applicants stand to suffer irreparable loss, counsel contended that allowing the 1st to 5th Respondent to run the affairs of “Kandara Residence Association” will not only jeopardize the interests of Applicants but also those of the association at large. That the balance of convenience tilts in the Applicants’ favour. In conclusion counsel urged the court to exercise its discretion in favour of the Applicants.

21. On the part of the 1st to 5th Respondents counsel’s oral submissions were exclusively anchored on the preliminary objection dated 26. 11. 2021. He particularly urged the court to give weight to the said objection and dismiss the Applicants’ motion with costs.

22. Counsel for the 6th Respondent on his part confined his submissions to three issues. Firstly, citing the provisions of Section 17 and 20 of the Societies Act counsel argued that the Applicants are not entitled to the orders sought as they have not presented any evidence to demonstrate that the 6th Respondent irregularly approved the change of officials and name in respect of the society. That the requisite documentation was submitted within prescribed time hence the disputed changes were effected procedurally and in compliance with statute.

23. Addressing the second issue, counsel placed reliance on the decision in A.N.M v P.M.N [2016] eKLR to argue that arising from the Applicants’ failure to prove non-compliance on the part of the 6th Respondent, the Applicants have not established a prima facie case to warrant the interim orders being sought. On the final issue counsel anchored his submissions on the decision in Peter Taracha & Anor v Holiness Church & Anor [2016] eKLR to assert that societies being unincorporated bodies have no legal capacity to sue or be sued in their own names. That in the circumstances, the motion and suit herein are incompetent and ought to be dismissed with costs.

24. The court has considered the material canvassed in respect of the motion. It is necessary to first address the two preliminary issues raised by the Respondents. Firstly, counsel for the 1st to 5th Respondent raised a preliminary objection on ground that the plaint and motion dated 04. 11. 2021 are fatally defective and ought to be struck out for offending the mandatory provisions of Rule 9 of the Oaths & Statutory Declarations Rules. The Rule prescribes that all exhibits to an affidavit supporting a motion shall be securely sealed thereto under the seal of the commissioner for oaths and shall be marked with the serial letters of identification.

25. The second objection raised within the 6th Respondent’s affidavit and submissions is to the effect that the 5th Applicant being a society which is an unincorporated body lacks the legal capacity to sue or be sued in its own name and hence the suit herein is incompetent and liable for dismissal.

26. As to what constitutes a preliminary objection, the court in Mukisa Biscuits Manufacturing Company Ltd v. West End Distributors (1969) EA 696, Law J. A. stated that:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration…...A preliminary objection is in the nature of what used to be a demurrer: It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, or occasion, confuse the issues, and this improper practice should stop.”

27. In the case of Oraro v Mbaja (2005) KLR 141, Ojwang J (as he then was) reiterated the foregoing by stating that:“A preliminary objection correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested, and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.Where a court needs to investigate facts; a matter cannot be raised as a preliminary point…. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

28. Applying the above definitions to the objections at hand, the court has no doubt that the preliminary objections raise pure points of law. The first preliminary objection by the 1st to 5th Respondents is premised on Rule 9 of the Oaths & Statutory Declarations Rules which states that: -All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.

29. The Applicants’ response to the 1st to 5th Respondents’ preliminary objection was to the effect that counsel inadvertently and through honest mistake served the Respondents with unmarked exhibits and urged the court to aim to administer substantive justice. The Applicants’ annexures though marked with serial letters of identification by which they were referred to in the supporting affidavit were not sealed with the seal of the commissioner for oaths.

30. Rule 9 of the Oaths and Statutory Declarations Rules has been the subject of several decisions of the Court of Appeal. In Bank of Africa Limited v Juja Coffee Exporters Limited & 4 others [2018] eKLR the Court while considering the effect of the Rule stated inter alia that:“We have examined the findings made by the trial court as extracted in paragraph 6 above and are satisfied that most of them were not final in nature and were made in the context of examining whether a prima facie case had been made out. Nevertheless, they were made on the assumption that there was no response by the bank, to the assertions made by the applicants. But the bank had filed a lengthy affidavit in reply supported by 428 pages of a bundle of documents marked 'BM1" which bundle the Commissioner of Oaths endorsed with his stamp on 14th June 2016 for verification. The affidavit, together with the annexures were rejected by the trial court on the basis that it flouted the provisions of Rule 9 of the Oaths and Statutory Declarations Rules which states as follows:“All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner and shall be marked with serial letters of identification".

31. Discussing the two schools of thought concerning the Rule, the Court observed as follows: - 20. The view taken by the trial court was that the provisions of that rule were mandatory, citing the decision of Havelock J. in the case of Fredrick Mwangi Nyaga vs Garam Investments & Another [2013] eKLR. In that case, Havelock J. was faced with an "annexure which was not marked at all." He agreed with Hayanga J. in the case of Abraham Mwangi v. S. O. Omboo & Othrs, HCCC No. 1511 of 2002 who applied the construction of Order 41 of the Rules of the Supreme Court of England and stated thus:“Exhibits to affidavits which are loose fly sheets for identification attached to them and do not bear Exhibit marks on them directly must be rejected. The danger is so great. These exhibits are therefore rejected and struck out from the record. That makes the affidavit incomplete hence also rejected. That being the case the application fails and is dismissed.”

21. On the flip side, there are several decisions of the High Court which have held that Rule 9 was directory but not mandatory, including by Ringera,J, (as he then was), Nyamu , J, (as he then was), and Bauni, J, in Milimani – HCCC No. 462 of 1997, Standard Chartered Bank Limited Vs. Lucton (Kenya) Ltd (unreported); Milimani HCCC No. 26 of 2004, Patrick Thinguri & 1, 006 Others Vs. Kenya Tea Development Agency Co. & Another (unreported); and Geoffrey Makano Asanyo vs. Kenya Agricultural Institute [2004] eKLR, respectively. The Judges were of the view that the Oaths and Statutory Declarations Rules are intended to be handmaidens of justice to aid the wheels of justice rather than clog it, and that they should not be a hindrance to delivery of substantive justice.

22. Those decisions were followed by Gikonyo J. in Litein Tea Factory Company Limited & another v. Davis Kiplangat Mutai & 5 others [2015] eKLR. The facts relating to the impugned affidavit in that case were similar to the case before us. Gikonyo J. observed that "...the affidavit clearly tendered the exhibits as a bundle, and it has referred to the particular exhibits as a bundle. The commissioner, then sealed, marked and identified the annexures as a bundle." On that basis, the learned Judge held:“where the exhibit is a report or a composite document made of different parts or materials consisting in other inextricable, incidental or accompanying documents, or a bundle of documents, it should be sufficiently described as such in the body of the affidavit, and, the sealing and the marking of only the cover or the first page of the report or the composite document or bundle of documents will be a sufficient compliance with the Oaths and Statutory Declarations Act and Rules. In any event, at worst, the matter complained of the annexure in question would be a mere irregularity which is a matter of form rather than substance, and such technicalities were deprecated by Article 159 of the Constitution."

32. The Court of Appeal concluded by stating that:“23. It is evident that there has been a difference of opinion in the High Court on the construction of Rule 9 of the Oaths and Statutory Declarations Rules. There is considerable force in rooting for compliance with procedural rules despite the provisions of Article 159 of the Constitution. As the Supreme Court has reminded us severally, 'Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do is to be guided by the principle that “justice shall be administered without undue regard to technicalities.” In the case of Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR the Supreme Court agreed with the dicta of Kiage, JA in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR that:"Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…”

24. Ultimately, the Supreme Court has reposed considerable scope for discretion in the courts, on a case-by-case basis, when it opined thus:“In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent. Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159 (2) (d) of the Constitution."See Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR.

25. In this case, Mr. Gichuhi submits that Rule 9 should be disregarded in view of Article 159 of the Constitution. But that is a simplistic way of approaching the subject. We must examine the facts and circumstances of the case against the provisions of Article 159(2) (d). Having done so, we are persuaded that Rule 9 aforesaid is not peremptory in terms, the employment of the word 'shall' notwithstanding. Even if it was, there was compliance in this case because the exhibits were produced in one bundle which the Commissioner of Oaths duly stamped and sealed.”

33. The marking of the annexures in this case was only part compliance with Rule 9. Ideally, the annexures ought to have been sealed with the commissioner’s seal as well. However, the failure by the Applicants to comply fully with the Rule was an irregularity in form and the deponent to the supporting affidavit expressly referred to the marked documents in his depositions. The irregularity cannot lead to the automatic striking out of the annexures. The requirement for sealing of annexure serves as a form of affirmation by the deponent of his reliance under oath on the identified annexures. In this case, the contents of some of the impugned annexures are replicated in the body of the deponent’s supporting affidavit and confirmed in part, by the annexures tendered by the 6th Respondent. The preliminary objection by the 1st to 5th Respondents is therefore not upheld.

34. Regarding the objection taken by the 6th Respondent, it is settled that a society being an unincorporated body and lacks the legal capacity to sue or be sued in its name. See Republic v Registrar of Societies Ex-parte Narok Muslim Welfare Association [2017] eKLR. In Free Pentecostal Fellowship in Kenya V Kenya Commercial Bank HCC No. 5116 of 1992 (O.S) cited in the former case, Bosire J (as he then was) expressed himself in the following terms: -“The position at common law is that a suit by or against unincorporated bodies of persons must be brought in the names of, or against all the members of the body or bodies. Where there are numerous members, the suit may be instituted by or against one or more such persons in a representative capacity pursuant to the provisions of Order 1 rule 8 Civil Procedure Rules.In the instant matter, the suit was instituted in the name of a religious organization. It is not a body corporate which would then mean it would sue as a legal personality. That being so it lacked the capacity to institute proceedings in its own name…It is important to appreciate that lack of capacity to sue or be sued is a weighty matter that goes to the root of the validity of proceedings before a court. It is not a mere procedural issue. The consequences of instituting a suit without legal capacity to sue are grave: such a suit is incompetent and any proceedings flowing from it are a nullity in law.”

35. In this case, it is evident from a cursory reading of the plaint and the material proffered by the 1st to 4th plaintiff/ Applicants that this suit was brought by them in their asserted capacities as office bearers of and primarily on behalf of the 5th Applicant, the society. And it is undisputed from the material tendered before the court by the Applicants and the 6th Respondent that the 1st to 4th Applicants are the supposed erstwhile officials of the 5th Applicant who were allegedly ousted by the 1st to 5th Respondents during the disputed SGM of the society allegedly held on 25th May 2021. However, on the face of the plaint, no nexus is pleaded between the names of the 1st to 4th plaintiff/ Applicants and the 5th plaintiff/ Applicant. So that, ex facie the latter plaintiff/Applicant appears on the face of plaint as an independent plaintiff. In my considered view, the 6th Respondent’s preliminary objection would have succeeded if the suit had been filed by the 5th Applicant alone and in its own name.

36. In the circumstances of the matter, the court is not persuaded that the entire suit is liable for striking out as urged by the 6th Respondent, but rather that, it is necessary for the plaint to be accordingly amended to show the nexus between the five plaintiffs. The preliminary objection by the 6th Respondent is similarly not upheld.

37. Moving on to the substance of the motion, the applicable principles are well settled since the famous pronouncement in Giella -Vs- Cassman Brown & Co. Limited [1973] EA 358 . These principles have been applied and reiterated in many decisions including Nguruman Limited vs Jan Bonde Nielsen & 2 Others (2014) eKLR. In the latter case, the Court of Appeal described the role of the judge in an interlocutory application to be merely to consider whether the principles for the grant of the interlocutory injunction were met. The Court further observed that:-“...Since the fundamentals about the implications of the interlocutory orders of injunctions are settled, at least over four decades since Giella’s case, they could neither be questioned nor be elaborated in detailed research. Since those principles are already ...... by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:In an interlocutory injunction application, the Appellants has to satisfy the triple requirements to:a)establish his case only at a prima facie levelb)demonstrate irreparable injury if a temporary injunction is not granted.c)allay any doubts as to (b) by showing that the balance of convenience is in his favor.”

38. The Court further stated that the three conditions apply separately as distinct and logical hurdles to be surmounted sequentially by an applicant. Such that, it is not enough for the Applicants to establish a prima facie case, they must further successfully establish irreparable injury, that is, injury for which damages recoverable at law would not be an adequate remedy. And where there is doubt as to the adequacy of damages, the court will consider the balance of convenience. Conversely, where no prima facie case is established, the court need not consider irreparable injury or balance of convenience. The Court of Appeal emphasized that the standard of proof is to prima facie standard.

39. As to what constitutes a prima facie case the Court stated:“Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues, but the evidence must show an infringement of a right, and the probability of success of the appellant’s case upon trial. That is clearly a standard, which is higher than an arguable case.We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Appellants need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the appellant’s case is more likely than not to ultimately succeed."

40. There is no dispute that the society was first registered in 2017 and that as of May 2021, the 1st to 4th Applicants together with the 5th Respondent held the positions of secretary, treasurer, vice chairman, assistant secretary, and chairman, respectively. The gravamen of the Applicants’ case is that the 1st to 5th Respondents purported to have held an SGM on 25th May 2021 during which resolutions were made inter alia to amend the constitution so as to increase the positions of office bearers of the society; to elect new officials to fill the new positions and to replace the Applicants; and to change the name of the society.

41. The Applicants assert that the changes were made in a clandestine manner as no written notice of the SGM had been sent to members or published at least 7 days prior to the meeting as required under article 8(c) of the society constitution. The Applicants assert in their submissions that despite the provisions of clause 11 of the society constitution and the requirements of section 20(a) of the Societies Act, the purported SGM purported to amend the society constitution to enlarge the categories of office bearers before proceeding to “elect” persons to fill the new positions even before the amendments got the Registrar’s approval.

42. Further, they claim that the minutes of the SGM, notice of change of officials and the application to change the name of the society purportedly signed by the erstwhile officials of the society and sent to the 6th Respondent consisted of fabrications and forgeries, a matter which had been reported to the DCI.

43. According to the 6th Respondent the documents in question were submitted by the 1st to 5th Respondents, and that the 6th Respondent upon being satisfied that they were bona fide and compliant with sections 17 and 20 of the Societies Act, approved the changes. For their part, the 1st to 5th Respondents did not file a replying affidavit and appeared content to rely on the preliminary objection. While the documents received by the 6th Respondent may have satisfied some of the legal requirements in the sections cited by the said Respondent, only the 1st to 5th Respondents could swear to the factual questions surrounding the alleged SGM. Such questions include whether such a meeting did in fact take place, whether due notice thereof was given in accordance with the society’s constitution, what transpired at the meeting and observance of the society constitution and the law.

44. The court has perused the documentation submitted to the 6th Respondent and attached as annexure “GN1-7” to the replying affidavit of Maria Goretti Nyariki, the Registrar of Societies. While the letter that is annexure “GN2” purports to forward inter alia the notice of the SGM and list of members in attendance of the SGM, no such documents are included in the annexures of the 6th Respondent. Clause 11 of the constitution provided that amendment to the constitution of the society required the Registrar’s prior consent or approval and could not be implemented until such approval was granted. It appears in this instance that the amendment of the constitution to enlarge the category of office bearers of the society was immediately implemented during the same SGM by the purported election of the additional office bearers.

45. Equally, although the claims relating to forgery of the Applicant’s signatures require a high degree of proof, it appears that following the complaint lodged by the Applicants to the DCI, the DCI had commenced investigations as evidenced by the 6th Respondent’s response (marked “GN7”) to an apparent request by the DCI for documentation.

46. Thus, in the absence of any evidence controverting the Applicants’ material, it appears that the Applicants have established a prima facie case with a likelihood of success. Contrary to what the documents submitted to the 6th Respondents purport, it appears that the 5th Respondent in cahoots with other purported new officials may have taken office through an apparent coup. The apparent unlawful removal from office of the Applicants appears likely, in the absence of a restraining order, to cause irreparable damage not only to the Applicants, but also more significantly, to cause dissension among the members of society and to jeopardize the society assets. Societies are expected to govern themselves in accordance with their constitutions and the law of the land, and where it appears that actions taken by members or supposed officials are unlawful, the court can intervene, especially in the interest of members and to protect assets of the society from dissipation.

47. Considering the foregoing, the Court will grant prayers (d) of the motion dated 4. 11. 2021 as well as prayer (f) which the 6th Respondent has conceded. As indicated elsewhere in this ruling, the Applicants ought to regularize the position of the 5th Applicant as a plaintiff by way of appropriate amendment. The costs of the motion will abide the outcome of the suit.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 8TH DAY OF DECEMBER 2022. C.MEOLIJUDGEIn the presence of:Mr.Karanja for the ApplicantsN/A for the 1stto 5thRespondentsMr. Mukuvi for the 6thRespondent