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Court of AppealPartially AllowedCivil Appeal No. 73 of 2015· [2016] KECA 392 (KLR)

Morris Jarha Maro & another v Registrar of Societies & another [2016] KECA 392 (KLR)

Court of Appeal
1 July 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,663 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that the Registrar of Societies must decide society registration applications within 120 days, and courts can force a decision.

What this practically means

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Executive summary

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The appellants applied on 3rd January 2014 for registration of the Coast Peoples Democratic Movement under the Societies Act, Cap 108, sending the application by registered mail to the postal address of the Office of the Attorney General. Receiving no response, they petitioned the High Court at Mombasa for a declaration that the Registrar of Societies' failure to register the society violated their constitutional rights and an order compelling registration. Emukule, J. dismissed the petition on 18th March 2015, finding no proof the Registrar received the application, but went on to hold, without prejudice, that the society's secessionist political agenda placed it outside the Act. On appeal, the Court of Appeal (Makhandia, Ouko and M'inoti, JJ.A) identified two issues: whether the High Court erred in finding the application was never received, and whether it erred in determining the merits of the application when the Registrar had not decided it. The court held the Registrar had received or was at least fully aware of the application, relying on his equivocal affidavit, the shared postal address, and the absence of returned mail. The Registrar's failure to decide within the statutory 120 days and to give reasons violated the Act and Article 47's guarantee of fair administrative action. The court further held that the High Court had wrongly usurped the Registrar's exclusive statutory function; the correct remedy for administrative inaction is mandamus compelling the Registrar to hear and determine the application. The appeal was allowed, the High Court order set aside, mandamus substituted, and the appellants awarded costs of the appeal.

Key legal issues

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01

Whether the Registrar of Societies received the application for registration sent by registered post to the Attorney General's postal address

Holding

The court found that the respondents did receive the application, drawing on the Registrar's equivocal denial, the shared postal address, and the fact that no mail was returned undelivered.

Reasoning

Paragraph 7 of the Registrar's replying affidavit was equivocal rather than a categorical denial of receipt. The application was sent by registered mail to the postal address of the Office of the Attorney General, within which the Registrar's office sits. The application and follow-up letters were never returned undelivered. Article 232 obliges public service offices to render prompt, effective service, and courts will not allow freedom of association to be defeated on flimsy artificial distinctions between offices.

p. 3
02

Whether the High Court could determine the merits of the registration application before the Registrar made a decision

Holding

The High Court erred; the duty to determine registration vests exclusively in the Registrar, and the court's proper remedy is mandamus compelling the Registrar to decide.

Reasoning

The legal duty to consider and determine whether to register a society is vested exclusively in the Registrar. A court usurping that function commits an error. Where the Registrar fails to act, mandamus is the appropriate remedy. Section 15 of the Act also prescribes an appeal route (to the Minister, then the High Court) that must be followed before a dispute reaches the High Court by way of appeal.

p. 4
03

Whether the Registrar's failure to communicate any decision violated the appellants' constitutional rights

Holding

Yes; failure to decide within the statutory 120 days and to notify reasons violated section 4(2) of the Act and Article 47's guarantee of fair administrative action.

Reasoning

Section 4(2) of the Act obliges the Registrar to consider an application and communicate his decision within 120 days, and Rule 6 of the Societies Rules requires notification of refusal in Form E. It was common ground that no decision or reasons were ever communicated. Article 47 guarantees written reasons where administrative action adversely affects rights, subjecting administrative processes to constitutional discipline.

p. 4

Legal principles established

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  • Where a registrar charged with a statutory duty fails to make a decision, the proper judicial remedy is mandamus compelling him to hear and determine the application, not a judicial determination of the merits.
  • A public body may not evade receipt of documents sent to a shared or parent office on artificial distinctions between offices; where documents are sent by registered post and not returned undelivered, receipt will be inferred.
  • Failure by the Registrar of Societies to consider an application and communicate a decision within the statutory period violates the applicant's right to fair administrative action under Article 47.

Court orders

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  1. 1.Set aside the order of the High Court dated 18th March 2015 dismissing Petition No. 73 of 2014
  2. 2.Substituted an order directing the 1st respondent to hear and determine the application for registration of the 2nd appellant in accordance with the law
  3. 3.Appellants awarded costs of the appeal

Authorities

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Legislation

  • Societies Act, Cap 108Section 50(1)
  • Societies Act, Cap 108Section 50(2)
  • Societies Act, Cap 108Section 4(2)
  • Societies Act, Cap 108Section 15
  • Societies RulesRule 6
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 20(3)
  • Constitution of Kenya, 2010Article 232(1) and 232(2)(b)
  • Constitution of Kenya, 2010Article 5
  • Political Parties Act

Cases cited (4)

  • R. v. Somerset County Council ex parte Fewings & Others
    (1995) 1 ALL ER 513
  • Dry Associates v. Capital Markets Authority & Another
    HC Petition No. 328 of 2011
  • Kenya National Examinations Council v Republic, ex parte Geoffrey Gathenji Njoroge & Others
    CA No. 266 of 1996
  • Mutanga Tea & Coffee Company Ltd v Shakira Ltd & Another
    CA No. 54 of 2014
On appeal from
High Court of Kenya at Mombasa
Constitutional Petition No. 73 of 2014
Jurisdiction invoked
First appellate jurisdiction over the High Court ruling in Constitutional Petition No. 73 of 2014 (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Morris Jarha Maro & another v Registrar of Societies & another [2016] KECA 392 (KLR)", Case Analysis (2016). Civil Appeal No. 73 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/392/eng@2016-07-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.