Havi & 3 others v Njenga & 10 others
The bottom line
#Kenya's Court of Appeal upheld orders freezing Law Society of Kenya council decisions, confirming members can go straight to court when internal remedies are broken.
What this practically means
#Executive summary
#Key legal issues
#Competence of the appeal by interested parties
The Court declined to strike out the appeal on the ground that the appellants were interested parties below, because Rule 84 of the Court of Appeal Rules provides the only procedure for impugning an appeal and none was invoked
The Supreme Court's jurisprudence that interested parties cannot frame issues is binding, but the legality of the appeal was raised only through written submissions. Rule 84 prescribes a clear procedure, including a thirty-day time limit, for striking out a notice of appeal or record of appeal. No other rule clothed the Court with the mandate to vitiate the record as invited, so the appeal proceeded on its merits.
Exhaustion of alternative dispute resolution mechanisms
The trial Judge correctly found that the 1st respondent's request for exemption met the prerequisites in section 9(4) of the Fair Administrative Action Act; the LSK's in-built mechanisms were not effective, available or adequate in the circumstances
It was common ground that Regulations 95 and 96 entrench internal dispute resolution mechanisms. However, the LSK governance organ was conflicted, there was no consensus on the resolutions reached at the SGM, and the officer mandated to draft resolutions was conflicted or had failed in her mandate. These undisputed facts showed that an effective remedy through the internal mechanisms was remote, justifying exemption.
Locus standi of the 1st respondent
The 1st respondent, a member of the LSK affected by the SGM resolutions, had locus standi under Articles 22(1), 23(1) and 258 of the Constitution to file the petition and the motion
Applying Mumo Matemu as adopted in LSK Nairobi branch v Malindi Law Society, the promulgation of the 2010 Constitution enlarged the scope of locus standi. Article 258 permits a person acting in their own interest, as a member of a group, or in the public interest to institute proceedings. A contrary ruling would have prejudiced the 1st respondent and those he championed, given the support of the co-respondents.
Arguable case and conservatory orders
A prima facie case was demonstrated; contested issues such as whether the entire council or only some members were suspended required evidence at the hearing of the main petition, and the 1st respondent stood to suffer prejudice if resolutions of unascertained validity were implemented
Applying the Nubian Rights Forum and Gatirau Peter Munya thresholds, the Court found the 1st appellant was already working towards implementing resolutions whose legitimacy was unascertained by the time he moved to court. There was serious contention whether the SGM gave all participants equal opportunity to vote. These issues could not be decided at the interlocutory stage, and the order preserved the substratum of the petition.
Public interest
The conservatory order met the public interest threshold by preserving the dignity of the LSK as a public body and upholding the rule of law before sanctioning implementation of the impugned resolutions
Articles 22(2) and 258 allow proceedings in the public interest. Statutory bodies such as the LSK must operate within the parameters of the law and the Constitution. The Court accepted the trial Judge's view that any delay to implementation was a necessary sacrifice to ascertain that the impugned vote items were arrived at in accordance with the law before their implementation.
Legal principles established
#- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account matters he should not have, failed to take account of matters he should have, or the decision is plainly wrong
- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed, save in exceptional circumstances
- Jurisdiction flows from the Constitution or legislation or both, and a court may not arrogate to itself jurisdiction through the craft of interpretation
- The standard guide for locus standi in constitutional litigation is the command in Article 258 of the Constitution, read with Articles 22(1) and 23(1)
- An internal remedy is effective if it offers the prospect of success and can be objectively implemented, available if it can be pursued without obstruction, and adequate if capable of redressing the complaint
Court orders
#- 1.The appeal is dismissed
- 2.Each party shall bear their own costs
- On appeal from
- High Court of Kenya at Nairobi (Constitutional and Human Rights Division)
- Petition No. E025 of 2021
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules from the High Court's discretionary ruling; underlying jurisdiction founded on Articles 22, 23 and 165(3)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Havi & 3 others v Njenga & 10 others", Case Analysis (2022). Civil Appeal E044 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/928/eng@2022-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.