Republic v Registrar of Societies

Constitution 2018, allegedly lodged by the 1st and 2nd Interested Parties herein and registered by the Respondent herein. 2. 2. An order of certiorari to remove into the High Court and quash the Respondent’s directives issued on 27th August 2025, directing Pentecostal Evangelistic Fellowship of Africa to amend its Constitution and Bylaws, otherwise referred to as PEFA Constitution and Bylaws, 2018, within a period of ninety (90) days. 3. An order of prohibition prohibiting the 1st and 2nd Interested Parties from calling, conducting, and/or presiding over a Special Annual General Meeting (SGM) now reserved for 19th September 2025, and from calling an Annual General Assembly of Members of PEFA Church Kenya to rectify the procedural omission made during the process of ratifying the First Amendment of the 2018 PEFA Constitution and Bylaws, which was purportedly ratified by the members and lodged for registration by the Respondent herein. 4. An order of prohibition directed at the Registrar of Societies, the Respondent herein, prohibiting the Respondent or any other person acting in the capacity of the Registrar of Societies from entertaining, receiving, and/or lodging any amendments to the said PEFA Constitution of 2018, or accepting any resolution passed at a Special Annual General Meeting (SGM) now scheduled for 19th September 2025 by the 1st and 2ndInterested Parties herein. 5. That costs of this Application be provided. The 2nd Application is the one dated 16th September 2025 by the interested parties who are seeking the following orders: 1. That this Application be and is hereby certified urgent, service thereof is dispensed with for hearing ex-parte in the first instance. 2. That pending the inter-partes hearing and determination of this Application, an interim order be and is hereby issued suspending the ex-parte Orders issued on 10 September 2025 in so far as they directed that the leave so granted to the Ex-Parte Applicants to commence the judicial review proceedings herein shall operate as a stay of the intended Special Annual General Assembly scheduled for 19 September 2025and the directives issued Respondent in its letter dated27 August 2025. 3. That pending the hearing and determination of these judicial review proceedings, an order be and is hereby issued setting aside and/or varying the ex-parte Orders issued by this Honourable Court on 10 September 2025 directing that the leave so granted to the Ex-Parte Applicants to commence the judicial review proceedings herein shall operate as a stay of the intended Special Annual General Assembly scheduled for 19 September 2025 and the directives issued Respondent in its letter dated 27 August 2025. 4. That the ex-parte Orders issued by this Honourable Court on 10 September 2025 be and are hereby set aside and in consequence thereof the Ex-Parte Applicants’ Chamber Summons Application and Statutory Statement dated 8 September 2025 be and are hereby struck out and/or dismissed. 5. That the costs of and incidental to this Application be borne by the Ex-Parte Applicants. The Exparte Applicants Case; 3. The applicant's case is supported by the verifying affidavit of the 1st Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 2

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4. He is a credentialed member of the Pentecostal Evangelistic Fellowship of Africa PEFA and work as a pastor and/or minister of the gospel under the PEFA Church/organisation. 5. He is a regional official of PEFA Church, Nairobi Region, conversant with the workings of PEFA Church, the laws and regulations governing the structure of PEFA Church organisation. 6. It is the applicants case that the Pentecostal Evangelistic Fellowship of Africa (PEFA Church Kenya) is an Evangelical church, founded to preach the full Gospel of Jesus Christ, with believers who fellowship together and recognise themselves as the very body of Jesus Christ, PEFA Church Kenya is, for all intents and purposes, registered as a society in accordance with the provisions of the Societies Act Chapter 108 Laws of Kenya. 7. The PEFA Church in Kenya has been governed by the PEFA Constitution of 1973, which outlines the administrative structure of the PEFA Church. 8. In 2018, a resolution was passed to enact a new Constitution, now referred to as the PEFA Constitution and Bylaws 2018. 9. It is his case that the said PEFA Constitution and Bylaws 2018 have no legal effect, as they were not lodged with the Respondent for registration as required by law, and the official records of the Respondent show that the Constitution of PEFA Church is the 1973 Constitution. 10. In 2018, when expressing a wish to adopt a new Constitution to replace the PEFA Constitution of 1973, the Annual General Assembly Members—comprising the National Executive Board (NEB), Council of Elders (COE), Board of Trustees (BOT), National Executive Council (NEC), Regional Councils (RCs), District Councils, and Accredited Missionaries—passed a resolution to revoke the PEFA Constitution of 1973 and replace it with the PEFA Constitution and Bylaws of 2018. 11. Under the operating framework of the church at the time, the 1st and 2nd Interested Parties assumed the duty and obligation to lodge and/or file the said 2018 Constitution with the Respondent herein, together with the Minutes and Resolution authorising the adoption of the said Constitution pursuant to section 20(2) of the Societies Act Chapter 108 Laws of Kenya. 12. An effort to ensure compliance with the regulatory requirements under the Societies Act Chapter 108 Laws of Kenya, the Applicants herein sought assurance from the Interested Parties regarding whether the 2018 Constitution was duly filed and with utmost confidence, the Interested Parties assured the Applicants and the wider PEFA Church Community that the PEFA Constitution and Bylaws 2018 were properly lodged with the Registrar for proper registration in accordance with section 20(2) of the Societies Act Chapter 108 Laws of Kenya. 13. This made the applicants to believe that, because the PEFA Constitution of 2018 was registered, the PEFA Constitution of 1973 was effectively repealed and no longer possesses any legal authority. 14. In 2024, due to the need to amend certain clauses in the 2018 PEFA Constitution and Bylaws, members of PEFA Church collected signatures with the aim of initiating an amendment process to the 2018 Constitution and Bylaws. 15. The Interested Parties purported to issue a 21-day notice dated 25th January 2024, claiming to convene a PEFA Annual General Meeting scheduled for 14 February 2024 at South B PEFA Cathedral. 16. The said AGM never took place, and even more surprisingly, the Interested Parties herein falsified minutes and other documents to evidence the alleged AGM that supposedly ratified the adoption and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 3

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registration of the proposed Amendments to the 2018 Constitution, otherwise known as the PEFA Governance Guidelines, Elections Rules and Procedures, 2024. 17. It is their case that upon learning that the said amendments to the 2018 Constitution (PEFA Governance Guidelines, Elections Rules and Procedures, 2024) were duly registered by the Respondent herein following submission by the Interested Parties, without paying due regard to the well-established procedural rules under the Societies Act Chapter 108 Laws of Kenya and the Societies Rules. 18. The Applicants herein embarked on a search for the truth and on 27th November 2024, via a letter dated on the same date, the Applicant petitioned the Respondent to nullify the Amendments to the 2018 Constitution due to the unprocedural amendment process and in the letter emphasised that the PEFA Constitution and Bylaws of 2018 were never lodged for registration in accordance with the provisions of the Societies Act Chapter 108 Laws of Kenya. 19. In 2023, PEFA Churches within Nairobi sought to obtain a loan facility from NCBA Bank, and one of the documents the bank required was a copy of the Constitution. 20. When a copy of the 2018 Constitution was submitted to the bank to facilitate the loan application, the bank observed that the Constitution provided by PEFA Churches was in fact different from the version held at the Registrar of Societies, the Respondent’s file. 21. When prompted to furnish the Church with a certified copy of the current Constitution, on 8th February 2024, the Respondent herein provided a duly certified copy of the 1973 PEFA Constitution as the current Constitution of the PEFA church. 22. The production of the 1973 Constitution by the Respondent herein confirmed that the PEFA Constitution and Bylaws of 2018 were not filed and/or registered. 23. Consequently, any act carried out under its authority cannot be considered legal, and no amendments can be made to a document that the Respondent herein does not recognise as duly registered. 24. On 26th February 2025, the Respondent issued its first response through a letter dated the same day, highlighting the Applicant’s concerns regarding the Amendment process of the 2018 Constitution. 25. In doing so, it required the Interested Parties to provide clarity, particularly concerning the following discrepancies in the preliminary compliance requirements for the amendment process of the 2018 Constitution. 26. The Notice dated 31st January 2024 for an Ordinary National Executive Council Meeting scheduled for 14th February 2024, submitted by the complainant, and the notice of 23rd January 2024 for a Special National Executive Council Meeting scheduled for 13th February 2024 at Nairobi Pentecostal Bible College, Nairobi, submitted by the Secretary. 27. The Notice presented to the Registrar of Societies, the Respondent herein, by the General Secretary was dated 25th January 2024, for the PEFA Annual General Assembly to be held on Wednesday, 14th February 2024, at South B PEFA Cathedral, Nairobi. 28. Consequently, vide the said letter dated 26th February 2025, the Respondent required the Interested Parties herein to respond to the issues highlighted in the said letter and emanating from the Applicant’s concerns within seven (7) days from 26th February 2025. 29. During the National Executive Council meeting held on 14th February 2024, contrary to the evident fact corroborated by the records of the Respondent herein, the Interested Parties, led by the General https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 4

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Secretary, maintained that the 2018 Constitution had already been amended and approved by the Respondent herein. 30. The Applicants herein later proceeded to peruse the society's file, designated as file NO. SOC/4232 and discovered that the Interested Party Parties filed the said amendments to the Constitution on 14th February 2024, while falsifying crucial documents such as the mandatory 21-day notice in support of their filing. 31. It is their case that upon confirming that the PEFA Constitution and Bylaws of 2018 were neither filed with the Respondent nor registered. 32. The Applicants herein petitioned the Respondent herein to provide clarity on which Constitution was in force between the 1973 Constitution and the 2018 Constitution and Bylaws as of 2024. However, the Respondent failed to provide any clarity on this matter. 33. The Applicants, therefore, called on the Respondent herein to nullify the said amendments on the following grounds, contravention of PEFA’s Constitution and the Societies’ Rules and Requirements for Amendment of the Constitution and want of transparency, condor and openness. 34. The Applicants herein made several follow-ups to their letter dated 27th November 2024, but no meaningful response was forthcoming from the Respondent herein. 35. On 25th April 2025, the Applicants herein wrote to the Respondent seeking to have the said Amendments nullified for want of compliance with the procedural edicts under the Societies Act Chapter 108 Laws of Kenya and importantly, an indication with clarity as to which version of the PEFA Constitution is officially recognised by the Respondent herein. 36. On 4th June 2025, the Applicants herein wrote another letter to the Respondent herein seeking answers to their letters of 25th April 2025 and that of 27th November 2024 and 23rd June 2025 but the same elicited no response. 37. The said letter of the 23rd June 2025, the Applicants herein advanced the following requests: - 38. a. The Respondent declares that the amendment process of the PEFA Constitution did not comply with the legal and procedural requirements for constitutional amendments, as no proper notice was issued to convene an Annual General Meeting to ratify the amendments. b. The purported 21-day notice dated January 25, 2024, is declared fraudulent. c. The approval of the purported 2024 PEFA Constitution, along with any amendments made outside of due process, be nullified. d. The Respondent issues a formal communication indicating the version of the PEFA Constitution that is officially recognised by the office of the Registrar of Societies, and provides the Applicants with a certified copy of the same. e. If it is demonstrated that the leadership of PEFA Church used fraudulent and falsified documents in their filings for Constitutional amendment with the intent to deceive government officers, then the Respondent should consider taking appropriate legal and administrative action against those responsible. It is their case that after it became clear that the 2018 Constitution was not filed and that the Respondent itself when prompted to provide a certified copy of the recognised PEFA Constitution for purposes of processing a loan facility, it only produced the 1973 Constitution as the current https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 5

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Constitution for PEFA, and when asked to give clarity between the 1973 and 2018 Constitution which one is in force, the Respondent tactfully avoided to give clarity on that fundamental issue. 39. On 26th August 2025, the Applicants herein petitioned the Hon. Attorney General via a letter dated 26th August 2025. 40. In the said Petition, the Applicants outlined the grounds of their complaints and proffered the following prayers: a. The Hon. Attorney General do direct the Respondent herein to conclude the matter without any further delays and in full compliance with the law; b. The Hon Attorney General do investigate the preferential treatment accorded to PEFA General Secretary by the Respondent herein; c. The Hon. Attorney General do take appropriate legal action against the three PEFA officials for providing false information to public officers. d. That measures be put in place to ensure that the office of the Respondent herein conducts its mandate in a fair, impartial and constitutionally compliant manner. 41. On 27th August 2025 the respondent wrote a letter to the Interested Parties herein and in which letter, the Respondent herein took the view that the amendment process did not comply with the procedural requirements and thus expunged the amendments approved on 16th February 2024 from its records with immediate effect. 42. The Respondent herein directed the PEFA Church to amend its Constitution in line with the edicts of the Societies Act and file the same within ninety (90) days from 27th August 2025. 43. They argue that the Interested Parties then issued a Notice of Special Annual General Assembly (SAGA) on 28th August 2025, scheduling the Special Annual General Assembly for 19th September 2025 at Nairobi Pentecostal Bible College – Nairobi County. 44. Attached to the Notice is a memorandum for all National Executive Council (NEC) Members outlining the purpose of the meeting: to resolve the procedural concerns raised during the amendment process of the 2018 Constitution. 45. Whereas the Respondent has since directed that the amendment process of the 2018 Constitution be carried out in compliance with the edicts of the Societies Act, Chapter 108 Laws of Kenya, it is without no doubt that the Pentecostal Evangelistic Fellowship of Africa Constitution and Bylaws 2018 were never filed for registration and that the Respondent itself cannot produce a certified copy of the document. 46. The 2018 Constitution, which the Interested Parties now seek to amend vigorously, does not exist in the records of the Respondent herein and has no legal force. 47. The Interested Parties herein now seek to amend a non-existent document not recognised by the Respondent, and neither is in the custody or records of the Respondent herein. 48. The implication of this is that the 1973 Constitution is the duly recognised Constitution of PEFA and is wielding the force of law. 49. The Interested Parties herein have been acting based on illegalities and that anything done under the auspices of the 2018 Constitution remains void for having been done under a set of laws that derive no force of law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 6

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The Exparte Applicants’ Submissions: 50. They submit that the Constitution of PEFA 2018 was never lodged for registration and thus does not exist. 51. The Pentecostal Evangelistic Fellowship of Africa (PEFA Church Kenya) is an Evangelical church, founded to preach the full Gospel of Jesus Christ, with believers who fellowship together and recognise themselves as the very body of Jesus Christ. 52. PEFA Church Kenya is, for all intents and purposes, registered as a society under the provisions of the Societies Act, Chapter 108, Laws of Kenya. Since its formation and registration, PEFA Church in Kenya has been governed by the PEFA Constitution of 1973, which establishes the PEFA Church's administrative structure. 53. In 2018, a resolution was passed to enact a new Constitution, now referred to as the PEFA Constitution and Bylaws 2018. 54. Relevant church officials (including the Ex parte Applicants herein) participated in the process leading up to the drafting of the said 2018 Constitution. 55. During the process, the Interested Parties herein were tasked with ensuring compliance with the procedural and substantive edicts set out in the Societies Act, Chapter 108, Laws of Kenya. 56. Section 20 of the Societies Act Chapter 108 provides that: a. b. No registered society shall— i. amend its name, or its constitution or rules; or ii. become a branch of, or affiliated to or connected with, any organization or group of a political nature established outside Kenya; or iii. dissolve itself, except with the prior consent in writing of the Registrar, obtained upon written application to him signed by three of the officers of the society. 57. They submit that the above statutory provision requires that, in the event of amending the Constitution of a society registered under the regime of the Act, prior consent to amend must be obtained from the Respondent. 58. In other words, the Society must secure the respondent's approval before proceeding with the amendment process, and immediately after the amendment is carried out, the society must deliver the so amended constitution for registration by the Respondent herein. 59. According to Section 20(2) of the Act dictates that an Application for approval to amend a Societies Constitution must be accompanied by a copy of the minutes of the meeting at which the resolution to Amend the Constitution was passed, certified as a true copy by three of the officers of the society, and the said application shall be delivered to the Registrar within fourteen days after the day on which the resolution was passed. 60. The said 2018 Constitution that sought to amend and/or replace the 1973 PEFA Constitution was deliberated upon and put in place before the consent and approval of the Respondent herein was sought and obtained, contrary to section 20 of the Societies Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 7

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61. This fact is glaring in the Minutes of the 56th PEFA AGA held at the African Nazarine University, Rongai, Kajiado County, on April 17th to 19th, 2018, at AGA Min 007. 62. At Aga Min 007 to receive, consider and, if approved, adopt the proposed pefa constitution and bylaws 2018: was captured as follows: a. The proposed constitution was tabled by the chairman of the Review Committee Rev. Kennedy Muturi and after a long deliberation and Consideration of the proposed Amendments the Constitution was unanimously adopted and Ratified as proposed. 63. A letter dated 3rdSeptember 2018, seeking approval of the said 2018 Constitution from the Respondent, the letter read in part, “…..I am writing this letter to kindly request an approval letter. The organisation recently made a constitutional Amendment and change of officers.” 64. The said 2018 Constitution was deliberated upon, drafted, and adopted before obtaining the consent and approval of the Respondent herein. 65. The minutes demonstrate that the Church established a review committee, considered the 2018 Constitution, put it together, approved, and adopted it long before seeking the consent and approval of the Respondent herein. 66. They submit that this violates the provisions of Section 20 of the Societies Act, Chapter 108 of the Laws of Kenya. 67. Upon amending their constitution, any society registered under the Act is required to lodge the same with the Respondent herein for record keeping purposes such that any interested member of the church can move the offices of the Respondent herein (being a public office) with the view to peruse the file relevant to PEFA Church and obtain any relevant document including the Constitution. 68. However, in the instant case, even upon passing the PEFA Constitution, 2018, that purportedly replaced the PEFA 1973 Constitution, in a manner that contravenes section 20 of the Societies Act, the same was never lodged with the Respondent herein for registration as by law required. 69. The Interested Parties herein assured the Ex parte Applicants and the wider PEFA Church Community that the PEFA Constitution and Bylaws 2018 were properly lodged with the Registrar for registration in accordance with the law. 70. Relying genuinely on the Interested Parties’ assurance, the Ex Parte Applicants here and the wider PEFA Community assumed that, because the PEFA Constitution of 2018 was registered, the PEFA Constitution of 1973 was effectively repealed and no longer holds any legal authority. 71. In 2023, PEFA Churches in Nairobi sought a loan facility from NCBA Bank, and one of the documents the bank required was a copy of the current PEFA Church Constitution, which, in the minds of all concerned parties at the time, was the PEFA 2018 Constitution. 72. However, when a copy of the 2018 Constitution was submitted to the bank to facilitate the loan application, the bank observed that the Constitution provided by PEFA Churches was in fact different from the version held at the Registrar of Societies, the Respondent’s file. 73. When the bank carried out its due diligence, the Respondent presented the bank with the PEFA 1973 Constitution, which was the current constitution in the bank's possession. 74. This raised questions about whether the 2018 Constitution was properly registered as required by law and, if not, what its legal status was. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 8

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75. The Ex-Parte Applicants herein requested the Respondent to provide them with a copy of the current PEFA Constitution through a letter dated 5thFebruary 2024. 76. The Respondent, being the custodian of the records, supplied the Ex-Parte Applicants with the 1973 Constitution as the Current Constitution, six years after the said 2018 Constitution was approved and adopted, albeit in contravention of the statutory provisions outlined under Section 20 of the Societies Act and purportedly registered by the Ex-Parte Applicants. 77. The alleged PEFA Constitution and Bylaws 2018 were never lodged or registered with the Respondent as required under Section 20(2) of the Societies Act, Cap 108, Laws of Kenya. 78. Being the statutory custodian of all registered constitutions of societies, bears a legal duty to maintain accurate and verifiable records. 79. When the Applicants sought clarification on the Constitution in force, the Respondent, through an official communication dated 5thFebruary 2024, certified and produced the 1973 PEFA Constitution as the valid Constitution of the Church.That official confirmation is conclusive proof that the alleged 2018 document was never registered. 80. Suffice to state from the very onset that the said PEFA Constitution and Bylaws 2018 derive no force of law as the same was not lodged with the Respondent herein for registration as by law required. 81. If the 2018 Constitution was lawfully lodged as required by law, the Respondent herein, being the custodian of the records, could not have issued a certified copy of the 1973 Constitution as the current Constitution on two separate accounts six (6) years after the same was purportedly replaced by the 2018 Constitution. 82. A law that has not passed a procedural test cannot amend or repeal another law.Section 109 of the Evidence Act provides that: - The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 83. Section 112 of the Evidence Chapter 80 Laws of Kenya provides that:- In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. 84. In the instant case, the Respondent herein maintains that the 2018 PEFA Constitution is legal and has authority. 85. The Respondent bears the burden of proving that the 2018 PEFA Constitution indeed complied with the provisions of the Societies Act Chapter 180 Laws of Kenya to be valid. 86. Furthermore, as the custodian of the records of the Societies registered under the Societies Act regime, the Respondent is the custodian of peculiar facts and records, including those contested in this instant case and thus bears the burden of proving whether the Interested Parties herein complied with the dictates of Section 20 of the Societies Act Chapter 108 Laws of Kenya or otherwise. 87. However, they have failed to place on record evidence showing that the interested parties herein complied with the provisions of section 20 of the Societies Act. 88. The Respondent herein maintains by furnishing the bank and the Ex Parte Applicants herein, the 1973 Constitution, as the current Constitution, is more than enough testimony from the Respondent that it does not recognise the 2018 Constitution and thus no amendments can be effected on a constitution not recognised by the Respondent herein.The proposed 2024 Amendments fall on their own weight. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 9

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89. The Respondent’s action only confirms that the alleged 2018 Constitution was never part of the Respondent’s lawful register. 90. The Ex parte Applicants submit that failure to lodge and register the PEFA 2018 Constitution deprives the same of any legal force or validity. 91. An unregistered constitution has no legal existence and therefore cannot serve as the basis for any administrative action, election, or amendment. 92. All acts and decisions purportedly undertaken under its authority are consequently null and void ab initio, and therefore, to permit the Interested Parties to proceed with the proposed 2024 Amendments to the 2018 Constitution will amount to an illegality perpetrated in the full glare of the eyes of the Respondent, who has been the aider and abettor of all these illegalities. 93. The applicant invites the court to make an adverse finding against the Respondent to the effect that the 2018 Constitution was not validly registered, and neither does it derive any force of law. 94. The Ex-Parte Applicant made all necessary efforts to exhaust available internal remedies without success. 95. The Ex-Parte Applicants demonstrated commendable restraint and good faith by exhausting every reasonable avenue to resolve the issues raised herein, both internally within the Church structures and externally with the Respondent, but their efforts were met with silence and inaction. 96. In church, the Interested parties herein who have since become dicators and desire to be so in perpetuity afforded the Ex-perteApplicants herein no listening ear. 97. The Ex-Parte Applicants herein were silenced at every meeting they attended and were afforded no audience. 98. The Ex-Parte Applicants herein made earnest efforts to engage the Respondent in good faith and with courtesy, but these attempts proved futile. 99. The Ex Parte Applicants sent several letters to the Respondent, yet all remained unanswered. paragraphs 12, 22, and 23 of the Verifying Affidavit sworn by Dr Peter Njoroge Ambuka on 8th September 2025 and paragraphs 14 and 15 of the Replying Affidavit of Dr Peter Njoroge Ambuka sworn on 23rdSeptember 2025, evidencing the numerous letters the Ex-Parte Applicants wrote to the Respondent herein but received no response. 100. They submit that all available and conceivable avenues of dispute resolution having been rendered unavailable, and frustrated as they were, the Ex Parte Applicants herein Petitioned the Office of the Honourable Attorney General, and as a knee-jerk reaction, the Respondent herein then issued the impugned directive requiring the Interested Parties herein to amend the 2018 Constitution within 90 days. 101. Reliance is placed on the case Geoffrey Muthinji & Another V Samuel Henry & 7 Others (2015) eKLR, where the court held that: It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the court is invoked, and that courts ought to be a forum of last resort. 102. Having exhausted all available and reasonable internal remedies and even petitioned the Honourable Attorney General without success, the Ex-Parte Applicants had no option but to invoke the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 10

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supervisory jurisdiction of this Honourable Court pursuant to Section 9(4) of the Fair Administrative Action Act and Sections 8 and 9 of the Law Reform Act. 103. They are therefore properly before this Court. Furthermore, the acts complained of and which the Ex Parte Applicants herein seek the court’s intervention over are matters that involve blatant disregard for the rule of law, violation of the Constitution and breach of statutory duties by the Respondent herein. 104. Article 10 (2)(c) of the Constitution provides that the national values and principles of governance include— (c) good governance, integrity, transparency and accountability;The Respondent herein has demonstrated a blatant disregard for the nation’s values and principles of good governance and integrity, and has shown a lack of transparency and accountability by failing to maintainproper and accurate records of PEFA Church (Society). 105. Reliance is placed on the case of County Government of Isiolo & 10 Others -vs- The Cabinet Secretary, Ministry of Interior and Coordination of National Government (Constitutional Petition No.511 Of 2015), the Court held that: 80. Consequently, a question of illegality once raised, as herein raised in this matter, overrides all other considerations, such as the subjection of a matter to alternative dispute resolution. It befalls upon a court to which such an issue is addressed to consider the question of illegality before any other consideration. Hence, this matter could not and cannot be subjected to ADR under the Act or under any law. 106. The nature of the orders sought will not destabilise the church. 107. Reference is made to the Book of Matthew 21:12-13, Jesus Christ whipped and drove away individuals who violated the sanctity of the temple by turning it into a marketplace, buying and selling therein. He did not hesitate to sweep the temple clean and restore sanity, and this did not destabilise the faith; many received healing and subsequently accepted the faith. Similarly, we submit that granting the sought orders will not destabilise PEFA Church. 108. Instead, if granted, the orders will cleanse PEFA Church and resolve the current crisis, which is marred by the illegitimate actions of a few individuals. 109. PEFA Church is built upon the rock Jesus Christ himself commissioned; no amount of wind or turbulence can bring it down. 110. However, be that as it may, Christ himself demands of man, including his servants in the church, to do the right so as not to lead His Sheep, fellowshipping at PEFA Church, to go astray—this begins with doing the right thing as required by the law. 111. They implore the court not to allow the proposed amendments to the non-existent 2018 Constitution (which lacks legal force) to pass on the purported possibility of the church being destabilised. 112. They submit that granting the orders sought will not cause any vacuum or disruption in PEFA’s governance. 113. The 1973 Constitution remains valid and operational until lawfully replaced in accordance with the Societies Act Chapter 108 Laws of Kenya. 114. The 1973 Constitution indeed provides for structures that can hold on for the time being, unless and until a lawful amendment process is undertaken. 115. Furthermore, should any governance gap arise, the Respondent retains power under the Act to institute interim administrative measures to ensure continuity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 11

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The Interested Parties Case; 116. The interested parties oppose the application through the reply, affidavit of Dr. Thomas Tembo Chipa the 1st Interested Party who is the duly elected and serving as the General Secretary of the Pentecostal Evangelistic Fellowship of Africa (PEFA Church Kenya), a society lawfully registered under the Societies Act, Cap. 108. 117. What is his case that the Substantive Motion dated 25 September 2025 is fatally incompetent and ought to be struck out in limine because it purports to be supported by a Verifying Affidavit sworn by Dr. Peter Njoroge Ambuka on 8 September 2025, which pre-dates the Motion itself by seventeen (17) days. 118. An affidavit attests to the veracity of facts and documents at the time of swearing. It is a logical absurdity and a legal impossibility for an affidavit sworn on 8 September 2025 to verify the contents, grounds, and prayers contained in a Notice of Motion that only came into existence on 25 September 2025. A previously sworn affidavit cannot verify a future document 119. This is not a mere procedural technicality curable under Article 159 of the Constitution; it is a fundamental defect that goes to the very root of the Substantive Motion’s competence and the admissibility of the evidence supporting it. 120. The Verifying Affidavit is invalid ab initio for the purpose of supporting the Substantive Motion. Consequently, the Substantive Motion stands unsupported by any valid verifying evidence as mandatorily required by Order 53, Rule 4(1) of the Civil Procedure Rules and is therefore incompetent, incurably defective, and ripe for striking out. 121. Without prejudice to the foregoing preliminary objection, the Substantive Motion is a continuation of the Ex-Parte Applicants' pattern of abusing the court process through calculated deceit and suppression of material facts. 122. The leave upon which this Motion is predicated was obtained through profound non-disclosure.The Ex-Parte Applicants deliberately concealed from the Court at the leave stage that the PEFA Constitution 2018, which they falsely claimed was "non-existent" and unregistered, was in fact formally approved by the Respondent via its letter dated 5 September 2018. This approval followed the unanimous adoption at the 56th AGA on 18 April 2018 and due filing on 23rd April 2018. 123. Their own active participation (specifically Dr. Ambuka and Dr. Habwe) in the very Taskforce mandated in 2023 to draft the 2024 constitutional amendments they now seek to impugn, demonstrating their prior acceptance of the 2018 Constitution's legitimacy. 124. The most egregiously, they concealed that the Special Annual General Assembly (SAGA), whose prohibition they seek, was convened not unilaterally, but in direct compliance with the Respondent’s directive of 27 August 2025, a directive issued in their favour following their own complaints, mandating the Society to regularise its constitutional process within 90 days. 125. This pattern of concealment and misrepresentation disentitles the Ex-Parte Applicants to the discretionary remedies of Judicial Review. 126. They failed in their duty of utmost candour and sought to mislead the Court for collateral purposes, stemming from internal leadership disputes within the Society’s Nairobi Region where they were unsuccessful. 127. In in addition to the foregoing, the Substantive Motion lacks any arguable prima facie case. The foundational premise, that the 2018 Constitution is invalid, is demonstrably false. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 12

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128. The documentary evidence confirms its formal approval by the Respondent and its consistent use as the Society's governing instrument for over seven (7) years, evidenced by annual returns and elections conducted thereunder. 129. The prayer for Certiorari to quash the "purported lodgment and registration" of the 2018 Constitution is entirely baseless and seeks to invalidate a lawful and concluded administrative action taken by the Respondent in 2018. 130. The prayer for Certiorari to quash the Respondent's directive of 27 August 2025 is illogical and selfdefeating. That directive granted the Ex-Parte Applicants the relief they sought (expunging the flawed 2024 amendments) and directed a corrective process. 131. Seeking to quash a favourable directive demonstrates the Applicants' mala fides and their true intention, which is not procedural propriety but the disruption of the Society's governance. 132. The prayer for Prohibition against the Interested Parties convening the SAGA is misconceived. The SAGA was convened in compliance with, not in defiance of, the Respondent's lawful directive. Prohibition does not lie to prevent compliance with the law. Furthermore, the Interested Parties, as officers of a private society, are not amenable to Prohibition in these circumstances. 133. It is their case that the prayer for Prohibition against the Respondent accepting any future amendments is equally untenable. 134. It seeks to unlawfully fetter the Respondent's statutory mandate under Section 20 of the Societies Act to receive and consider constitutional amendments submitted by a duly registered society. 135. It is his case that this Honourable Court's jurisdiction is improperly invoked as the Applicants have demonstrably failed to exhaust the clear, adequate, and more suitable alternative remedies provided under the Societies Act. 136. Internal governance disputes, including constitutional interpretations and meeting procedures, fall squarely within the Society's internal mechanisms (General Meetings, Council of Elders) and the dispute resolution powers vested in the Respondent under Section 18 of the Act, with a further right of appeal under the Act. 137. The Judicial Review orders sought by the Ex-Parte Applicants, if granted, would have far-reaching and disastrous consequences for the PEFA Church Kenya, its governance, its property, its legal standing, and its thousands of members nationwide. 138. Quashing the registration or approval of the 2018 Constitution would create an immediate and catastrophic constitutional vacuum. It would invalidate: All leadership positions elected under the 2018 framework (including Regional, District, and potentially National offices); All decisions, policies, contracts, and financial transactions undertaken by the Society's organs based on the 2018 Constitution over the last seven (7) years. 139. The Society's current governance structure, potentially reverting it to an outdated 1973 framework unsuitable for its present size and complexity. 140. This would plunge the Society into administrative chaos, legal uncertainty, and potentially numerous collateral litigations challenging past actions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 13

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141. Prohibiting the SAGA or the Respondent from accepting future amendments would perpetuate the very procedural uncertainty the Respondent sought to cure. 142. It would effectively freeze the Society's ability to govern itself according to its members' will and to comply with the Societies Act, leaving it rudderless and potentially exposing it to deregistration. 143. Such judicial intervention would constitute an unwarranted and disproportionate intrusion into the internal ecclesiastical affairs of a religious society, undermining its autonomy and the religious freedom of its members guaranteed under Article 32 of the Constitution. 144. The potential harm and disruption to the Society and its vast membership far outweigh any alleged grievance of the three Ex-Parte Applicants, whose complaints stem from internal disagreements rather than fundamental breaches of public law. The Interest Parties Submissions; 145. They submit that the Ex-Parte Applicants' entire expedition before this Court is a quintessential abuse of the judicial process, predicated on a fatal combination of procedural incompetence, calculated material non-disclosure, and a manifest failure to establish any grounds for judicial review. 146. The Ex-Parte Applicants are improperly using the jurisdiction of this Court to unlawfully fetter the statutory mandate of the Respondent Registrar of Societies and to paralyse the internal governance of a lawful society, all without adducing any or any evidence that the Respondent has acted illegally, irrationally, or unprocedurally. 147. The Ex-Parte Applicants have presented a curated and misleading narrative. 148. The incontrovertible facts, as established by the affidavits of Dr. Thomas Tembo Chipa (sworn on 16 September 2025, 14 October 2025 and 21 October 2025) and, critically, by the Respondent's own Replying Affidavit (sworn by Ms. Zahra Ahmed on 22nd October 2025), are as follows: 149. The 2018 Constitution was approved: Following its adoption by the 56th Annual General Assembly (AGA), the PEFA Constitution 2018 was duly filed, and on 5 September 2018, the Respondent expressly approved the said Constitution. 150. This is confirmed by the Respondent at paragraph 15 of its Replying Affidavit. This is the central fact the Applicants concealed. 151. The Applicants' Participation: The 1st and 2nd Ex-Parte Applicants were not only aware of the 2018 Constitution but were appointed to and actively participated in the 2023 Taskforce mandated to draft the 2024 amendments to it. 152. The Applicants' Grievance: The Applicants' complaints to the Respondent in late 2024 were actuated by mala fides, arising only after they were unsuccessful in internal leadership contests within the Society's Nairobi Region. 153. The Respondent's Lawful Action: In response to the Applicants’ complaints, the Respondent, on 27 August 2025, issued a directive expunging the 2024 amendments due to procedural discrepancies and, crucially, directed the Society to conduct a fresh, compliant amendment process within ninety (90) days. 154. Compliance by the Society: The Special Annual General Assembly (SAGA) scheduled for 19 September 2025 was convened in direct compliance with this lawful directive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 14

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155. The Deceit: The Applicants approached this Court ex-parte and falsely portrayed the SAGA as an illegal act and the 2018 Constitution as "non-existent," all while concealing the 2018 approval, their own participation, and the fact that the SAGA was the very remedy they had instigated. 156. The Substantive Motion dated 25 September 2025 is incurably defective and must be struck out. The Motion purports to be supported by a Verifying Affidavit sworn by Dr. Peter Njoroge Ambuka on 8 September 2025. 157. They submit that it is a logical and legal impossibility for an affidavit sworn on 8 September to verify the contents, grounds, and prayers contained in a Notice of Motion that only came into existence seventeen (17) days later. An affidavit is a solemn declaration of facts in praesenti. A previously sworn affidavit cannot prophetically verify a future legal process. 158. This is not a curable procedural technicality under Article 159 of the Constitution. It is a fundamental, substantive defect that goes to the very root of the application's competence and the admissibility of its supporting evidence. The Verifying Affidavit is invalid ab initio for this purpose, and the Substantive Motion therefore stands naked, unsupported by any valid verifying evidence as mandatorily required by Order 53. It is, in law, a nullity and must be struck out. 159. A party who approaches the Court ex-parte is under a sacred and uncompromising duty to make a full, frank, and fair disclosure of all material facts, including those that may be adverse to their case. The Ex-Parte Applicants failed this test spectacularly. 160. Where an ex-parte order is obtained through material non-disclosure, the court is entitled to discharge the order forthwith, without regard to the merits of the case. 161. It is their case that the Applicants' non-disclosures; i. They concealed the Respondent's 2018 Approval Letter, the very document that destroys their "non-existent constitution" narrative. ii. They concealed their active participation in the 2023 Taskforce, which proves their mala fides and prior acquiescence; and iii. They concealed the fact that the SAGA was an act of lawful compliance with a directive they themselves had instigated. iv. This is a classic abuse of process. The Ex-Parte Applicants have engaged in the unconscionable conduct of approbating and reprobating, invoking the Respondent's jurisdiction to obtain a favourable directive, and then invoking this Court's jurisdiction to prohibit compliance with that very directive. Such duplicity disentitles them to any equitable remedy. v. No Grounds for Judicial Review have been demonstrated and the Ex-Parte Applicant’s have failed to exhaust internal remedies. vi. The Ex-Parte Applicants have failed to establish any ground for judicial review, and their case is premature. 162. No Illegality or Irrationality by the Respondent has been demonstrated. The core of the Ex-Parte Applicants' case is an attempt to fetter the lawful statutory mandate of the Respondent. 163. However, the Respondent’s actions were textbook examples of lawful and rational administration as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 15

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164. The Respondent's approval of the 2018 Constitution was a valid exercise of power under the Societies Act. 165. The Respondent’s directive of 27 August 2025, which the Ex-Parte Applicants seek to quash, was a rational and lawful exercise of its supervisory and dispute-resolution powers under the Act. The Respondent received a complaint (from the Ex-Parte Applicants), investigated, and issued a directive for the Society to correct its procedures. This is precisely what the law empowers the Registrar to do. 166. The Ex-Parte Applicants have failed to show how this conduct was ultra vires, irrational, or illegal. 167. Their entire case is an attack on the merits of an internal constitutional framework, disguised as a process review. As the Court aptly stated in Republic v Registrar of Societies & 5 others ex-parte Moses Kirima & 2 others [2017] eKLR: “ Judicial review, it has been held time and again, is not concerned with the merits of the decision... The Registrar is... given a pivotal role in the management of societies... It is not the business of the High Court to manage the affairs of societies." 168. Reliance on the MacFoy "nullity" principle is misplaced. They assert that the 2018 Constitution was "nothing" and the 2024 amendments were "something put on nothing." This is fallacious. The "something" upon which all subsequent actions were founded was the Respondent's lawful approval of 5 September 2018. The "nothing" is the Applicants' false premise. The claim in their Replying Affidavit that the production of the 1973 Constitution in 2024 invalidates the 2018 approval is a desperate non sequitur. An administrative clerk's filing error in 2024 cannot retroactively nullify a formal statutory approval issued by the Registrar in 2018. In any event, the Registrar legally has statutory power and mandate to remedy the previous oversight. 169. The Ex-Parte Applicants have bypassed multiple, adequate, and more appropriate remedies including Statutory Remedy: Section 18 of the Societies Act empowers the Registrar to inquire into and resolve disputes between members, a remedy the Ex-Parte Applicants triggered but now seek to abandon midstream. 170. The court in Republic v Attorney General & 2 others Ex-parte David K. M'itirikia [2018] eKLR affirmed that this section provides a valid alternative remedy. The most potent remedy was the SAGA itself—the supreme democratic organ of the Society, convened specifically to resolve this impasse. The Ex-Parte Applicants chose to sue rather than participate in the SAGA. 171. Reliance is placed in The Court of Appeal in Republic v National Environment Management Authority [2011] eKLR confirmed that the exhaustion doctrine is "a cardinal principle" and "not a matter of judicial discretion" where a statutory remedy exists. The Ex-Parte Applicants have not demonstrated that their case falls into any of the narrow exceptions. 172. They submit that to grant the orders would be to create a catastrophic constitutional vacuum within a national religious society.It would retroactively invalidate seven (7) years of governance, calling into question every election, every contract, every financial decision, and every appointment made under the 2018 Constitution. 173. This Court is being invited to plunge a stable, functioning society into administrative chaos based on the vexatious claims of three (3) disgruntled members. 174. The ex-parte stay has already caused irreparable harm by halting the SAGA and placing the Society in legal jeopardy for non-compliance with the Respondent's 90-day directive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 16

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175. The balance of convenience overwhelmingly militates in favour of discharging the stay and dismissing this suit. The Ex-Parte Applicants suffer no prejudice, as their remedy was, and remains, within the democratic organs of the Society they purport to be members of. The Respondent's Case: 176. The Respondent opposes the exparte applicants’ application through the replying affidavit of Teresia Gathagu the Registrar of Societies in the Republic of Kenya and as such in charge of the Societies Section and conversant with the matters pertaining to registration and regulation of Societies under the Societies Act, (Cap 108) Laws of Kenya. 177. PEFA Church Kenya was registered on 18th July 1962 bearing Certificate Number 1240.The Church has been operating with an outdated Constitution, and it is the intention of the Church's officials, the 1 st and the 2 ndInterested Parties to amend its Constitution. 178. Pursuant to the Church's request and the Church's Compliance with Section 20 of the Societies Act, the Respondent on 16th February, 2024 approved a request for Constitution amendment of the Church. 179. After approval of the Constitution Amendment, the Ex-parte Applicants lodged a complaint with the Respondent claiming due process was not followed whilst amending the Constitution. 180. The Respondents sought clarification from the 1 st and 2 nd Interested Parties on legality of the process used to amend the Church's Constitution. 181. The 1 st and 2 nd Interested Parties gave a detailed explanation on how the procedure was followed. There was a discrepancy on the date of the meeting and the Respondent was not satisfied due process was followed by the Church whilst amending the Constitution. 182. The Respondent operates in good faith and relies mainly on information availed by Clients whilst making approvals of any requests lodged by the said clients. 183. Consequently, the Respondent expunged the amended Constitution on account of the Church's non adherence to due process. 184. Once the Respondent expunged the Church's amended Constitution, the Church is governed by the previous legal Constitution until another amendment process is carried out. 185. The Respondent through her power from Section 19 of the Societies Act directed the Church to amend its Constitution within ninety (90) days. 186. The Respondent further directed the Church to follow the provisions of the Societies Act strictly whilst amending its Constitution. 187. The Respondent directed the Church to amend its Constitution, not to amend a 2018 Constitution as claimed by the Ex parte Applicant. 188. In the letter dated 27th August 2025 the Respondent simply directs the Church to amend its Constitution in adherence to the Societies Act, the Respondent neither mentions the 2018 Constitution nor implies it's the Constitution to be amended. 189. The Ex-Parte Applicants main issue is that the Church cannot amend a Constitution that does not exist. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 17

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190. Any registered Society has the legal mandate according to Section 19 and 20 of the Societies Act, to amend its Constitution, upon verification of Compliance with the Societies Act and written laws of Kenya, the Respondent has a legal obligation to approve the Constitution Amendments. 191. The Ex-parte Applicants have not given sufficient reason in their Notice of Motion and verifying affidavit dated 8 thSeptember, 2025 on why the Respondent should NOT approve the Church's Constitution. 192. The Ex-parte applicants have not given any legal justification to this Court or to the Respondent on why the Respondent should not approve the Church's Constitution. The Respondent's Submissions; 193. It submits that the Ex-parte Applicants main argument is that officials of the PEFA church cannot amend a Constitution that does not exist. 194. For a Constitution of a Registered Society to be amended, the following requirements MUST be met. And they include; a. A request letter to the Respondent informing her that amendments to the Constitution were done and requesting approval of the amended Constitution, signed by ALL the officials on record. No registration of the amendments can be done without seeking the Respondents approval this is provided for in Section 20 the Societies Act. b. A 21-day NOTICE convening the meeting, indicating amendment of the constitution in the agenda, signed by the Secretary on record. c. Minutes of the Meeting signed by the Chairman, Secretary and Treasurer on record. d. A signed list of attendees of the meeting. 195. It submits that the Interested Parties lodged a request for Constitution amendment on 16th February, 2024 and the abovementioned requirements were met, henceforth, the Respondent approved their application for Constitution amendment. 196. A couple of weeks later, a complaint was lodged to the Respondents by the ExParte Applicants claiming the Constitution amended on 16th February, 2024 was procedurally flawed and action should be taken. 197. The Respondent is a neutral office and operates in good faith. 198. The Respondent relies mainly on information availed by its clients. In light of this statement. The Respondent forwarded the complaint to the Interested Parties and requested further clarifications. 199. The Interested Parties availed to the Respondent on 16th August, 2025 a notice calling the meeting, minutes and a signed list of members bearing different dates from the documents availed in 16th February, 2025. 200. The Respondent was not satisfied that the amendment process adhered to the provisions of the Societies Act and expunged the said documents from records immediately. 201. Consequently, PEFA Church will be governed by the previous Constitution before the amended one on 16th February, 2025 which is the Constitution amended on 2018. 202. The complaint lodged in this office by the Ex-Parte Applicants was for the Constitution amended in this office on 16th February, 2025 and NOT for the Constitution amended in 2018. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 18

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203. The Respondent can categorically confirm there is no complaint lodged in this office regarding the 2018 Constitution. 204. It submits that the Constitution amended in 2018 has been the governing doctrine for PEFA Church for seven (7) years. 205. Section 19(2) of the Societies Act Cap 108 Laws of Kenya provides the following; 'The Registrar may, if he thinks fit, by order in writing, require any society which, is registered to amend its constitution or rules. .. " 206. Reliance is placed in the case of Kaigi 4 others v Registrar of Societies: Mugo & 3 others (Interested Parties) (Judicial Review E006 0f 2024 2025 KEHC10765 eKLR 23 Jul 2025 A.K Ndungu, declared the following; “ That the Respondent (Registrar ofSocieties)has powers to resolve dispute on the ambiguity of the society's constitution under Section 19(2) of the Societies Act which gives the Respondent powers to order any society to amend its constitution to be compliant with the Societies Act. " A.K Ndung'u also ordered the following in the above case; "The Respondent to within 90 days invoke the provision of Section 19 of the Societies Act to cause amendment to the Constitution of Mount Kenya West Nanyuki Community Forest Association to cure the ambiguity in clauses 2(a) and 4(c) of the Society's Constitution.” 207. The Respondent's directive to the officials of PEFA Church to amend their Constitution was meant to cure a procedurally flawed expunged Constitution approved on 16th February, 2024. 208. The directive was made in good faith and to guide the officials of PEFA Church to amend their Constitution in strict adherence to the Societies Act and all written laws in Kenya. 209. The Ex-Parte Applicants have not demonstrated to this Court why the Interested Parties should not amend their Constitution. 210. It is the Respondent's humble submission that the Ex-Parte Applicants Notice of Motion lacks merit, it is vexatious and its main intent is to abuse the Court to satisfy selfish needs, and consequently, it should be struck out Analysis and determination: The following are the issues for determination: 1. Whether the Court has jurisdiction to determine the applications before it. 2. Whether the Applications have merit. 3. Who shall bear the costs. Whether the Court has jurisdiction. 211. In determining this issue the court has looked at the question whether or not the ex parte applicants have exhausted, the alternative dispute resolution mechanisms and whether they are properly before this court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 19

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212. In the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others [2015] eKLR the Court of Appeal stated that: “ It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be of last resort and not the first port of call the moment a storm brew… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts...These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution." 213. The exparte Applicants argued that efforts to resolve the issues in church have borne no fruit since the Interested parties have since become dictators and desire to be so in perpetuity afforded the Ex-perte Applicants herein no listening ear. 214. The Ex-Parte Applicants argued that they were silenced at every meeting they attended and were afforded no audience. 215. The Ex-Parte Applicants case is that made earnest efforts to engage the Respondent in good faith and with courtesy, but these attempts proved futile and that they sent several letters to the Respondent, yet all remained unanswered. 216. It was the Exparte Applicants’ case that all available and conceivable avenues of dispute resolution having been rendered unavailable, and frustrated. 217. The Ex Parte Applicants argued that they petitioned the Office of the Honourable Attorney General, and as a knee-jerk reaction, the Respondent issued the impugned directive requiring the Interested Parties herein to amend the 2018 Constitution within 90 days. The Respondent confirmed that it issued the directive. 218. The court is satisfied that the Exparte applicants have demonstrated that they made efforts to address the dispute out of court before moving this court. 219. The court has however noted that the Exparte Applicants argued that having exhausted all available and reasonable internal remedies and even petitioned the Honourable Attorney General without success, the Ex-Parte Applicants had no option but to invoke the supervisory jurisdiction of this Honourable Court pursuant to Section 9(4) of the Fair Administrative Action Act and Sections 8 and 9 of the Law Reform Act. 220. Section 9(4) of The Fair Administrative Actions Act provides that notwithstanding the provisions of section 9(2) and (3) of the Fair Administrative Actions Act on exhaustion of available alternative remedies, the High Court or the Subordinate Court may in exceptional circumstances and on application by the applicant exempt such a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. 221. This Section is very clear that a party who seeks to be exempted must make an application to the court. It is categorical that the High Court may in exceptional circumstances and on application by the applicant exempt such a person the applicants did not make an application for exemption and section 9(4) of the fair administrative action act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 20

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222. The Act uses the word “and” which means there are two conditions that an applicant for exemption of the application of the doctrine of exhaustion must fulfill. 223. Justice Mativo in Republic v Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] eKLR held as follows: “ Section 9 (2) of the Fair Administrative action Act provides that the High Court or a subordinate court under subsection (1)shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). The use of the word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. It is the duty of Courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory. Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory. A proper construction of section 9 (2) & (3) above leads to the conclusion that they are couched in mandatory terms. The only way out is the exception provided by 9 (4) which provides that:-"Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above sub-section. First, the applicant must demonstrate exceptional circumstances. Second, on application by the applicant, the Court may exempt the person from the obligation. The ex parte applicants counsel made a statement that there are exceptional circumstances in this case after the Court drew his attention to the above sections. He however did not provide specific cases that bring this case under the exceptions, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 21

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except stating that the applicants are young which to me does not fit into the definition of "exceptional circumstances" discussed below. It is settled that the impugned decision constitutes administrative action as defined in section 2 of the Fair Administrative Action Act. Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement. What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue. Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct. An internal remedy is adequate if it is capable of redressing the complaint. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional Interpretation especially in virgin areas or where an important constitutional value is at stake. Indeed, in this case, no such argument was advanced before me nor can I discern any virgin argument touching on Constitutional interpretation. The principle running through decided cases is that where there is an alternative remedy or where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the Court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it.” 224. There is justification and a rationale for the requirement for an application to be made for leave to be exempted by the court before the exemption can be granted. 225. The reason behind having this requirement is for properties of ensuring that Article 159 of the Constitution is promoted. In the instant case, the applicants are clear, that there were alternative dispute resolution mechanisms. 226. However it is not for parties to determine or to decide that they have exhausted alternative these resolution mechanisms. It is the Court that decides whether to exempt a litigant from the application of the doctrine of exemption under Section 9(4) of The Fair Administrative Action Act after hearing an application for leave. 227. Having found that the ex parte applicants did not make an a application for exemption, then the doctrine of exhaustion takes away this court’s power. 228. As such the other issues cannot be determined given that the court lacks jurisdiction and I so hold. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 22

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229. Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019/ eKLR, /36) wherein it was observed that, “ Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a millity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel "Lillian S" Caltex Oil, (Kenya) Ltd [1989) KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step". Costs; 230. The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that; 'In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” 231. The interested parties are entitled to costs of the suit. Determination: 232. The lacks jurisdiction to hear and determine the suit. Order: The suit is struck out with costs to the interested parties. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF DECEMBER 2025. ………………………… J. M. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19324/eng@2025-12-24 23

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