Sam Aberi Okemwa (Suing on his own behalf and on behalf of other aggrieved Graduate Engineers of the Institution of Engineers of Kenya) v Institution of The Engineers of Kenya & 1 other

ENG. NATHANIEL WILSON MATALANGA AND ENG. ISAIAH K.W. MUTONYI (Suing on behalf of the Eminent Engineers Forum)..................................................2 ND INTERESTED PARTY JUDGMENT Introduction 1. Before the Court for determination is a constitutional petition dated 16th February, 2026. The Petitioner, Sam Aberi Okemwa, describes himself as a graduate engineer, a paid-up Graduate Member of the Institution of Engineers of Kenya, and a person suing on his own behalf and on behalf of other aggrieved Graduate Engineers of the Institution of Engineers of Kenya. The 1st Respondent is the Institution of Engineers of Kenya, a professional membership body in the engineering profession. The 2nd Respondent is sued as the President of the 1st Respondent. The 1st Interested Party, Howard Ashihundu Mmayi, is a Fellow member of the 1st Respondent. The 2nd Interested Party comprises Eng. Nathaniel Wilson Matalanga and Eng. Isaiah K.W. 2

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Mutonyi, who participate on behalf of the Eminent Engineers Forum. 2. The dispute is presented as a constitutional challenge to provisions of the Institution of Engineers of Kenya Constitution, 2015. The Petitioner contends that the impugned constitutional framework excludes Graduate Engineers from voting in Council elections, from being elected or nominated into the Council, and from meaningful participation in the national governance of the Institution, notwithstanding that Graduate Engineers are members, pay subscriptions, and allegedly constitute about fifty-four per cent of the membership. 3. The Respondents and Interested Parties have opposed the Petition. They take the view that the 1st Respondent is a voluntary professional association registered Constitution; that membership may lawfully governed different have by its categories of different rights and obligations; that Graduate Members participate at branch level; that the limitation of Council voting to certain categories is rationally 3 connected to professional

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qualification and public interest; and that the Petition is an attempt to rewrite a private association constitution by judicial decree. 4. The Court is therefore invited to address issues where constitutional values, professional self-governance, freedom of association, the law of voluntary associations, and the regulation of engineering practice overlap. However, the task of the Court is not to design the best constitution for engineers but to decide whether the particular provisions impugned have been shown, on the evidence and the law, to violate the Constitution of Kenya, 2010. The Petition and the Orders Sought 5. The Petition pleads that the Petitioner is a Graduate Engineer of member Number G.11943 and that he is in good standing with the 1st Respondent. He avers that Graduate Members constitute the majority of the 1st Respondent’s membership and that they are bound by the 1st Respondent’s constitution, subscriptions, ethics and institutional obligations. His complaint is that Clauses 4

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9.02, 9.10, 9.12, 11.05, 11.06 and 12.06 of the 2015, IEK Constitution deny Graduate Engineers voting and representation rights at Council level, and thereby allegedly violate Articles 10, 27, 36, 38 and 47 of the Constitution. 6. The Petition further pleads that the 1st Respondent had scheduled elections in March 2026, under the 2015 Constitution. The Petitioner states that unless the Court intervenes, those unconstitutional elections governance would structure entrench and an perpetuate marginalization of Graduate Engineers. He also pleads that attempts to amend the 2015 Constitution and make it more inclusive were frustrated by those he describes as gatekeepers of the profession. 7. The Petition is anchored on Articles 2, 3, 10, 19, 20, 21, 22, 23, 27, 36, 38, 47, 48 and 258 of the Constitution, the Fair Administrative Action Act, 2015, and the IEK Constitution, 2015. The Petitioner contends that exclusion from voting and governance amounts to discrimination on the basis of professional status, that association without a 5

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meaningful voice is hollow, and that the governance structure of the 1st Respondent is irrational, unreasonable and disproportionate. In the Petition, the Petitioner prays for the following orders: a. DECLARATION that the 1st Respondent’s governance structure, as currently constituted under the 2015 IEK Constitution, is inconsistent Articles 10, with 27, and 36, a and violation 47 of of the Constitution of Kenya, 2010. b. A DECLARATION that Clauses 9.02, 9.10, 9.12, 11.05, 11.06, and 12.06 of the 1st Respondent’s Constitution (2015) are unconstitutional, null, and void to the extent that they arbitrarily exclude Graduate Engineers from voting, representation in the Council, and meaningful participation in governance. c. A DECLARATION that Graduate Engineers, being duly registered and paid-up members 6

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of the 1st Respondent, are entitled to the full enjoyment of their right to equality and nondiscrimination, which includes the right to participate in the democratic electoral processes of the Institution. d. A CONSERVATORY ORDER suspending the implementation and use of the 2015 IEK Constitution for the purposes of conducting the elections scheduled for March, 2026, or any subsequent elections, pending the hearing and determination of this Petition. e. AN ORDER OF PERMANENT INJUNCTION restraining the 1st and 2nd Respondents, their agents, or any person acting on their behalf, from conducting any elections based on a disenfranchising and discriminatory constitutional framework that excludes Graduate Engineers. f. A MANDATORY INJUNCTION compelling the 1st Respondent to immediately initiate a 7

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consultative and inclusive review of its Constitution (2015) to align it with the national values of inclusivity and public participation enshrined in the Constitution of Kenya, 2010. g. AN ORDER that the 1st Respondent pays general damages to the Petitioner for the blatant violation of their fundamental rights, discrimination, and the professional marginalization occasioned by the impugned governance structure. h. THAT the costs of and incidental to this Petition be borne by the Respondents. i. ANY OTHER OR FURTHER RELIEF that this Honourable Court may deem fit if and just to grant in the interest of justice and the protection of constitutionalism. The 1st and 2nd Respondents’ Replying Affidavit 8

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8. The 1st and 2nd Respondents opposed the Petition through a Replying Affidavit sworn by Eng. Shammah Kiteme, the President of the 1st and 2nd Respondents herein. He depones that he is duly authorized to swear the affidavit on behalf of the Respondents and that he is aware of the matters in issue. 9. Firstly, Eng. Kiteme has taken issue with his joinder in these proceedings in a personal capacity. He states that on advice of counsel, he lacks independent legal personality separate from the 1st Respondent. He describes the 1st Respondent as a private voluntary professional membership association registered under the Societies Act and established to promote advancement of the engineering profession, cooperation among engineers, competence, ethics and public safety. 10. On issue of eligibility to vote, Eng. Kiteme states that the right to vote within the Institution is limited to members who meet competence thresholds under the 1st Respondent’s Constitution. He depones that until 2025, the 1st Respondent operated under the 2015 Constitution 9

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wherein only Corporate Members, Fellows and Associates were allowed to vote. He further states that a constitutional review amendment process was initiated and it culminated in 2025 amendments which provide that Graduate Members, including the Petitioner, would be eligible to vote. 11. According to Eng. Kiteme, the 1st Respondent commenced the election process for the 2026 elections scheduled for 23rd March, 2026 under the 2025 constitutional amendments. However, while that process was underway, a member filed Nairobi High Court Constitutional Petition No. E853 of 2025 seeking to restrain the implementation of the 2025 Constitution amendments and to stop elections under those amendments. The Petitioner in that suit also sought orders declaring the 2015 Constitution as the operative governance instrument of the Institution. 12. Eng. Kiteme further depones that a dispute arose as to which of the two constitutions was to govern the 2026 elections. And that on 12th February 2026, the Court in the Nairobi matter issued orders directing the parties to 10

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maintain the status quo obtaining at the time of filing that petition pending hearing and disposal of the application. He annexed the order and contended that, since status quo orders were in place, the interests of the present Petitioner were already protected and the instant Petition was therefore unmerited. The 1st Interested Party’s Replying Affidavit 13. The 1st Interested Party, Howard Ashihundu Mmayi, filed a Replying Affidavit in response to the Petition. Wherein he states that he is conversant with the facts and that Institution of Engineers of Kenya (IEK) is a professional society registered under the Societies Act with a constitution registered under the said Act. He depones that the operative constitution is the IEK Constitution, 2015 registered with the Registrar of Societies. 14. The 1st Interested Party emphasizes that membership of IEK is voluntary and that persons who join the Institution accept the terms and conditions set out in its Constitution. He states that the 2015 Constitution creates different categories of membership 11 with different powers and

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privileges, including Fellows, Corporate Members, Graduate Members and Associate Members. He further states that the Constitution has two levels of governance being the Council under Section 9 and the Branch Committee under the Regulations and By-laws. 15. According to Mr. Mmayi, the 2015 Constitution allows Corporate Members and Fellows to vote in Council elections because they are fully licensed to practice as professional engineers under the Engineers Act, 2011. He also depones that Graduate Members are not wholly excluded from governance because they are allowed to vote at Branch Committee elections and to contest for positions of ordinary member of a Branch Committee. 16. Mr. Mmayi states that the Petitioner and the Graduate Members he purports to represent, are not allowed to practice engineering on their own under the Laws of Kenya because they have not sat for and passed the professional examination. He contends that they therefore have limited rights under the Engineers Act and under the current IEK Constitution. He further depones that the Petitioner 12

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joined IEK voluntarily and is bound by its Constitution, rules and regulations. 17. The 1st Interested Party has also addressed the question of subscription fees and he states that fees differ according to membership category; For example, the graduate member’s annual subscription is stated to be Kshs. 2,000 while a Fellow pays Kshs. 10,000 and a Corporate Member pays Kshs. 5,000. He argues that the Petitioner can only enjoy the rights prescribed for his class unless those rights are adjusted through a constitutional review process. 18. On the alleged violation of Article 27 of the Constitution, Mr. Mmayi deponed that the rights and limitations in the IEK Constitution apply to all members in their respective categories and are not based on race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. He asserts that the limitation is necessary, proportional and meant to protect the rights of Fellows and Corporate Members and to ensure equity among members. 13

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19. Mr. Mmayi further depones that the 1st Respondent’s members resolved at a Constitutional AGM in 2024 to carry out a constitutional review process whereby that the Council appointed a Constitutional Review Committee. He confirms that he was a member of that process; and that a roadmap was approved and communicated. He states that the issue of voting by Graduate Engineers was one of the proposed changes captured in the draft 2025 Constitution, but that the proposal was to undergo stakeholder engagement and a members’ vote before final ratification. 20. He adds that the process was affected by complaints lodged with the Registrar of Societies and by Nairobi High Court Constitutional Petition No. E853 of 2025. He contends that the matters raised in this Petition are therefore already the subject of internal processes and other court proceedings, and that the proper forum for resolving the voting issue is the constitutional review process. He urges the Court to dismiss the Petition and allow the 2026 elections to proceed under the Institution of Engineers of Kenya (IEK) Constitution of 2015. 14

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The 2nd Interested Party’s Replying Affidavit 21. Eng. Isaiah K.W. Mutonyi swore a Replying Affidavit on his own behalf and that of Eng. Nathaniel Wilson Matalanga, appearing for the Eminent Engineers Forum. He states that he has practiced as an engineer for over thirty (30) years and is the Deputy Chairman of the Eminent Engineers Forum, a section comprising past chairmen and vice chairmen of the Institution. He states that he has authority from the other eminent engineers, including Eng. Matalanga, to swear the affidavit. 22. Eng. Mutonyi states that his affidavit is made partly in opposition to the Petition, partly in response to the Petitioner’s replying affidavit sworn on 9th April, 2026, and partly in response to the 1st Interested Party’s Notice of Motion dated 17th March, 2026. He reiterates the contents of an earlier affidavit sworn in support of the Eminent Engineers’ application dated 19th March, 2026. 15

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23. His principal complaint is that both the Petitioner and the Respondents concealed material facts from the Court and thereby obtained orders on 13th March 2026. He contends that the Petitioner failed to disclose the existence of Nairobi High Court Constitutional Petition No. E853 of 2025, Dennis Desmond Barongo Nyagwoka v Institution of Engineers of Kenya and Others, which concerned the validity of the 2025 constitutional review process on whether the 2015 or 2025 Constitution governed members’ rights, and whether the electoral process commenced by IEK should continue. 24. Eng. Mutonyi depones that on 12th February, 2026, Mugambi J. granted a status quo order in the Nairobi petition and that the present Petition was filed four days later. He contends that the present Petition was intended to defeat the orders in the Nairobi matter and to prevent the elections scheduled for 23rd March, 2026. 25. He further argues that the Petitioner’s case is contradictory because he seeks to rely on the 2015 Constitution to assert 16

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membership while attacking that Constitution for not granting him voting rights. He characterizes the relationship between members of IEK as a contract of association and contends that the dispute is contractual or internal to a voluntary association and not a constitutional controversy. He invokes the doctrines of constitutional avoidance, exhaustion, sub judice and freedom of contract. 26. Eng. Mutonyi also contends that the Petitioner has no cause of action because, under the Constitution by which he became a Graduate Member, he has no voting rights in Council elections and knew or ought to have known that fact when he filed the Petition. He states that the Court has no mandate to write a new constitution for the members of a professional association and that, if the Petitioner dislikes the current constitution, his remedy lies in internal constitutional reform or resignation from membership. 27. He relies on the IEK Constitution, the Engineers Act, previous pleadings in the Nairobi matter, and authorities on jurisdiction, sub judice, constitutional avoidance, contractual 17

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association, non-disclosure and costs. He urges the Court to strike out conservatory or dismiss orders, or the Petition, stay the discharge proceedings prior pending determination of the Nairobi petition. He also seeks that the costs of the Petition and related applications be borne by the Petitioner’s advocates. The Petitioner’s Submissions 28. In his written submissions dated 9th April, 2026, the Petitioner submits that the Petition is a plea for constitutional vindication by a disenfranchised majority of the Institution. He argues that Graduate Engineers constitute fifty-four per cent of IEK’s membership, are required to pay subscriptions, and are bound by the rules and ethical codes of the Institution, yet are excluded from voting and representation in the Council. He describes that arrangement as membership fees without representation. 29. The Petitioner has framed consideration being: 18 the issues for court’s

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i. Whether exclusion of Graduate Engineers from voting and governance constitutes unfair discrimination under Article 27; ii. Whether the impugned clauses violate freedom of association under Article 36 of the Constitution,2018 and fair Administrative Action Act under Article 47; and iii. Whether the Respondents should bear the costs of the Petition. 30. On the right, Article 27, the Petitioner submits that Clauses 9.02, 9.10, 9.12, 11.05, 11.06 and 12.06 Engineers of discriminatory Kenya,2015 governance Constitution, structure. He of the create a relies on Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR, Jacques Charl Hoffmann v South African Airways, Prinsloo v Van der Linde and Harksen v Lane NO for the proposition that discrimination is concerned not only with listed grounds but also with distinctions that impair dignity. He submits that Graduate Engineers are treated as a revenue stream and not as stakeholders in their profession. 19

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31. The Petitioner further argues that the differentiation has no rational connection to a legitimate objective. He points out that the 2015 Constitution allegedly grants voting rights to Associates while denying the same to Graduate Engineers. In his view, if the object were professional competence or public safety, the distinction between Associates and Graduates would not be defensible. He therefore submits that the exclusion is arbitrary, irrational and unfair. 32. On the rights under Article 36 of the Constitution, the Petitioner submits that freedom of association includes meaningful participation in the activities and governance of an association. He argues that the right just to associate is not a passive right to have one’s name listed on a register, and that a professional association that collects fees from members but denies them a voice in leadership selection operates as an exclusionary club rather than a constitutional association. 33. On Article 47 of the Constitution, the Petitioner submits that IEK is not a private inconsequential club, but the premier 20

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learned society of the engineering profession, exercising regulatory, representative and gatekeeping power over engineers in Kenya. He submits that its decisions and rulemaking constitute administrative action subject to the Fair Administrative Actions Act. He relies on the cases of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR and Republic v Public Procurement Administrative Review Board & 2 others Ex Parte Pelt Security Services Limited [2018] eKLR on proportionality and the Wednesbury unreasonableness. 34. The Petitioner has thus urged the Court to allow the Petition, declare the impugned clauses unconstitutional, restrain elections under the 2015 Constitution, compel an inclusive constitutional review process and award him general damages and costs. The 1st Interested Party’s Submissions 35. The 1st Interested Party submits that the Petitioner is a Graduate Member who participates in IEK governance at Branch Committee level. He submits that IEK’s 2015 21

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Constitution came into effect in 2015 and remains the operative registered constitution. He emphasizes that membership is voluntary and that members are bound by the Constitution, by-laws and regulations of the Institution. 36. The 1st Interested Party argues that the right to vote in the Council is not absolute and is subject to limitations provided as for in the Constitution of the Institution. He compares the position to professional bodies such as the Law Society of Kenya, where students, pupils and non-practising persons do not vote in Council elections. He submits that different membership categories enjoy different rights and responsibilities, and that such differentiation is rational, proportionate and justified. 37. He relies on R v Oakes [1986] 1 SCR 103 and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eklR to urge the proportionality He submits that the limitation pursues the legitimate objective of ensuring that the affairs of fully licensed 22

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engineering practitioners are not controlled by persons who are not themselves licensed to practice independently. 38. He has further relied on the case of Kingdom and Okpisz v Germany Willis v United to argue that for the proposition that discrimination involves differential treatment without objective and reasonable justification of persons in relevantly similar situations. He submits that Graduate Engineers are not similarly situated with Fellows and Corporate Members because they have not undergone the full process leading to professional registration and corporate membership. 39. The 1st Interested Party has also submitted that the constitutional review process is the correct forum for addressing proposals to expand voting rights. He contends that the Court should not compel the Institution to begin a process already underway, nor issue orders in vain. He asks that the Petition be dismissed, that the suspended elections be allowed to proceed under the IEK Constitution, 2015, and that costs be borne by the Petitioner. 23

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The 2nd Interested Party’s Submissions 40. The submissions filed on behalf of Eng. Nathaniel Wilson Matalanga and Eng. Isaiah K.W. Mutonyi are extensive. The Eminent Engineers Forum submits that the Petition is misconceived, amounts to forum shopping, and was filed to frustrate the justice system and the scheduled IEK elections. The 2nd Interested Party argues that the Petitioner and the Respondents failed to disclose material facts, particularly the existence of Nairobi High Court Constitutional Petition No. E853 of 2025 and the status quo orders issued therein. 41. The 2nd Interested Party Constitution of Kenya has relied on Rule 10 of the (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, to argue that a petition must disclose related civil or criminal cases involving the petitioner or related matters. It submits that the Nairobi petition raised issues concerning the 2025 constitutional review, the operative constitution of IEK, and the 2026 electoral process, and that this Court ought not 24

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to have been moved without disclosure of that pending matter. 42. The 2nd Interested Party submits that the Petition is not a genuine constitutional petition but a dispute about construction of a contract of association among members of a voluntary body. It relies on constitutional avoidance, exhaustion, sub judice under Section 6 of the Civil Procedure Act, alongside authorities on jurisdiction including cases of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others and Kenya Hotel Properties Limited v Attorney General & 5 others. It argues that a High Court Judge should not issue orders that undermine orders of another court of coordinate jurisdiction. 43. On the merits, the Eminent Engineers Forum submits that the IEK Constitution expressly limits the rights of each class of membership to those attached to that class. It argues that Graduate Members have no right to vote in Council elections or to offer themselves for election to Council and that the Petitioner joined IEK with knowledge of the class of 25

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membership he occupied. It submits that the Petitioner cannot approbate and reprobate by accepting membership under the 2015 Constitution while rejecting the consequences of that membership category. 44. The 2nd Interested Party also submits that the Petitioner’s case is philosophical, academic and revolutionary rather than legal, because he seeks to have the Court rewrite the Constitution of IEK so that Graduate Engineers, who allegedly form a majority of the membership may control the affairs of the Institution. It argues that the appropriate mechanism is the internal constitutional reform and not judicial amendment of a voluntary association’s constitution. It prays for orders that the Petition be struck out or dismissed, that prior orders be reviewed or set aside, and that costs be borne by the Petitioner’s advocates. ANALYSIS AND DETERMINATION: 44. Having considered the Petition, the affidavits, the documents placed before the Court and the rival submissions by all the 26

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parties herein and find the following issues arise for determination: a) Firstly, whether the Petition is properly before this Court notwithstanding the objections founded on sub judice in view of the Nairobi Petition, exhaustion, and constitutional avoidance; b) Secondly, whether the Petition meets the constitutional pleading threshold; c) Thirdly, whether the impugned clauses of the IEK Constitution, 2015 violate Article 27 of the Constitution; d) Fourthly, whether the impugned clauses violate Articles 36, 38 and 47 of the Constitution; e) Fifthly, whether the Petitioner is entitled to the reliefs sought; and f) Sixthly, who should bear the costs of the proceedings. Whether the Petition is Properly Before the Court 46. The starting point is jurisdiction. Article 165(3)(b) of the Constitution gives the High Court jurisdiction to determine 27

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whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. Article 165(3)(d) gives this Court jurisdiction to hear any question respecting the interpretation of the Constitution, including whether anything said to be done under the authority of the Constitution or any law is inconsistent with the Constitution. Articles 22 and 258 further entitle a person to institute court proceedings alleging violation of the Bill of Rights or contravention of the Constitution. 47. on account of the above –cited provisions, in principle, the Court therefore has jurisdiction in principle to consider a petition alleging violation of Articles 27, 36, 38 and 47 of the Constitution. However, jurisdiction in the abstract does not answer all procedural objections. The Court is still required to determine whether the matter is barred or should be deferred by reason of sub judice, exhaustion, constitutional avoidance or abuse of process. 48. The doctrine of exhaustion has been enunciated in several decisions in our jurisdiction of including Speaker of the 28

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National Assembly v Karume [1992] KLR 21, Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, and Republic v National Environment Management Authority Ex Parte Sound Equipment Limited [2011] eKLR. In the respective cases, it has been stated that where a statute or contractually binding framework provides for a clear dispute resolution mechanism, parties are ordinarily required to pursue that mechanism before invoking the Court’s jurisdiction, unless exceptional circumstances are demonstrated to justify litigation in court in the first instance. 49. The Institution of Engineers of Kenya (IEK) Constitution contains provisions for internal dispute resolution and arbitration. The 2nd Interested Party has also argued that the dispute concerns the construction of the Constitution of a voluntary association and should first be addressed within the Institution or through the mechanism contemplated by the IEK Constitution. The Petitioner is a member of the Institution and the impugned rules arise from the instrument 29

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which regulates the relationship between members inter se and between members and the Institution. 50. However, I am not persuaded that the existence of an internal mechanism, by itself, wholly ousts the jurisdiction of the Court where a petitioner directly challenges the constitutionality of provisions in the governing instrument of a professional association and seeks declarations under Article 23 of the Constitution,2010. An arbitral tribunal may interpret a constitution of a society, but it cannot declare provisions thereof unconstitutional in the same manner and with the same public law effect as this Court. Therefore, the court finds tht it cannot strike out this petition safely on the ground of exhaustion. 51. On the issue of sub judice, Section 6 of the Civil Procedure Act prevents a court from proceeding with a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, or parties under whom they claim, litigating under the same title, where such suit is pending before a court of competent jurisdiction. 30

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52. I have read through the annexed proceedings of the Nairobi petition and find the same concerns the validity and implementation of the 2025 constitutional amendments and whether the 2015 Constitution remains the operative governance instrument. The present Petition challenges the constitutionality of the 2015 Constitution in so far as it excludes Graduate Engineers from voting in Council elections. Of course, there is an overlap because both proceedings touch on the 2026 IEK elections and the operative governance instrument. But the issues raised in either petition are not perfectly identical. 53. What has troubled the Court are filing of the petition before it evidence the issues of and non-disclosure. The in the Nairobi High Court availed shows Constitutional Petition No. E853 of 2025, issued timing in orders were directing maintenance of status quo on the 12 th Febraury,2026. The present Petition was filed on 16th February, 2026, which is four(4) days later. Rule 10(2)(e) of the Mutunga Rules requires disclosure of related civil or criminal cases involving the petitioner or related matters by 31

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parties. In this regard, the Petitioner ought to have disclosed the Nairobi proceedings because they were plainly related to the IEK constitutional framework and the 2026 elections. Nonetheless, non-disclosure does not automatically extinguish the Petition, but it is relevant to the exercise of court’s discretion and to the propriety of the reliefs sought. 54. The doctrine of constitutional avoidance is also material. In the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court emphasized that ‘‘courts should not determine a constitutional issue where a matter may properly be decided on another basis.’’ Similarly, in the case of Benard Murage v Fine Serve Africa Limited & 3 Others [2015] eKLR, the Court cautioned that not every legal grievance should be transformed into a constitutional petition. In the instant matter , I find it contains a genuine constitutional vocabulary, but at its root it also concerns the construction of a society’s constitution and allocation of rights among voluntary membership categories. 32

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55. In my view, the proper approach is therefore not to shut the door at the threshold, but to decide the constitutional questions with restraint and due respect for the autonomy of voluntary professional associations. In doing this, this Court must resist the temptation to become a constitutional drafting committee for Institution of Engineers of Kenya, (IEK). It must only intervene if it finds that the Petitioner has demonstrated the manner in which that the impugned provisions are unconstitutional. Whether the Petition Meets the required threshold in Constitutional Pleading. 56. On whether the petition meets the threshold required in constitutional pleadings, the courts in the case of Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the respectively emphasized that ‘a constitutional petitioner must plead with reasonable precision the constitutional provisions violated, the manner of violation and the relief sought.’’ The purpose of that requirement is 33

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not to erect a procedural barricade, but to ensure that the respondent knows the case required to be responded to or answered and for the court to know the controversy it must resolve. 57. The Petition has identified Articles 10, 27, 36, 38 and 47 as the principal provisions that are allegedly violated by the Institution of Constitution,2015. Engineers Constitution of Kenya It identifies Clauses 9.02, 9.10, 9.12, 11.05, 11.06 and 12.06 of the IEK Constitution as the impugned provisions. It has elaborated the manner of violation to be exclusion from voting, representation in Council and meaningful governance participation. It also specified the reliefs sought. I therefore find that the Petition meets the minimum threshold required for a constitutional pleading. Having established so, the real issue is not pleading. It is proof and legal merit of the claim and remedies sought. The Legal Nature of IEK and the Court’s Role 34

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58. From the pleading filed by the parties herein, it is not disputed that Institution of Engineers of Kenya (IEK) is a professional society registered under the Societies Act. It is also not disputed that its membership is categorized and that the categories carry different rights, obligations, qualifications and privileges. The documents before the Court show that the 2015 Constitution distinguishes among its members Fellows, Corporate Members, Associates, Graduates, Students and other categories. Clause 3.05 provides that no Honorary Member not being a Corporate Member, and no Companion, Associate, Graduate or Student shall, by reason of membership, be entitled to rights or privileges other than those attached to that specific class. 59. The autonomy of voluntary associations is an important value protected by freedom of association. Persons may form associations and regulate them by constitutions, articles, rules or by-laws. Those instruments operate as a contract of association among members. Generally, the duty of the Courts is to enforce such instruments, construe them when disputed, and restrain breaches of them. Courts do not, save 35

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where the law or the Constitution is violated, remake or rewrite these instruments according to what appears institutionally attractive or socially fashionable. 60. That said, Institution of Engineers of Kenya (IEK) is a learned professional institution in a field whose practice touches public safety, infrastructure, public procurement, education, professional progression and the national economy. Its governance therefore has a public dimension and the Court cannot accept the proposition that constitutional values never touch such a body. Article 20(1) of the Constitution provides that the Bill of Rights applies to all law and binds all state organs and all persons. Article 10 of the same Constitution binds persons whenever they apply or interpret the Constitution, enact or apply law, or make or implement public policy decisions. Therefore, Court mustbalance institutional autonomy with constitutional accountability. 61. This balance is that: the Court may intervene where a professional association acts 36 unlawfully, irrationally,

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oppressively, discriminatorily or contrary to the Constitution. But, the Court will not interfere merely because an alternative governance model is possible or even preferable. Constitutional invalidity is not established by demonstrating that the Court, or some members, would have designed the association differently. Whether the Impugned Clauses Violate Article 27 of the Constitution,2010. 62. Article 27(1) of the Constitution, 2010 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 27(2) guarantees full and equal enjoyment of all rights and fundamental freedoms. Article 27(4) prohibits direct or indirect discrimination on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. 63. The law is settled that equality does not require identical treatment in all circumstances. Differentiation is permissible 37

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where it rests on a rational and objective basis. What Article 27 forbids is unfair discrimination. In the case of John Kabui Mwai & 3 others v Kenya National Examination Council & 2 Others [2011] eKLR, the Court stated that discrimination involves differential treatment, that such treatment must amount to discrimination, and that the discrimination must be unfair. Comparative jurisprudence in the case of Harksen v Lane NO and Prinsloo v Van der Linde is helpful to the extent that it focuses on rationality, dignity, impact and fairness. 64. In the present case, differential treatment is established. The 2015 IEK Constitution does not give Graduate Members the same voting and office-holding rights in Council elections as Fellows, Corporate question is Members whether that and Associates. differentiation The is key unfair discrimination or a rational membership classification within a professional association. 65. The Petitioner submits that Graduate Engineers constitute about fifty-four (50%) per cent of the membership and are 38

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therefore the majority. That assertion, even if accepted, does not of itself determine the constitutional question raised. A professional institution may legitimately allocate governance rights by reference to competence, experience, statutory status, responsibility and professional progression rather than numerical majority. The democratic principle is important, but in professional regulation and professional societies, democracy often sits beside competence regulations. A medical board, an advocates’ professional council, an engineering society or a specialist accreditation body may permissibly limit certain governance functions to persons who have attained specified professional thresholds. 66. The evidence advanced shows that a Graduate Member is a person who holds prescribed academic qualifications, is registered with the Engineers Board of Kenya as a graduate and intends in due time to seek Corporate Membership. Under Section 18 of the Engineers Act, a graduate engineer is a person who holds a degree in engineering from a recognized university or other qualification determined by the Board and is a citizen or permanent resident. Under 39

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section 16 of the Act, a professional engineer must, among other things, be registered as a graduate engineer, obtain practical experience as prescribed, pass professional assessment conducted by the Board and be a Corporate Member of IEK. The statutory scheme therefore treats Graduate Engineer status as an important but transitional stage towards professional registration. 67. It must be recognized and appreciated that Engineering is a profession whose independent practice carries public safety consequences. Bridges do not negotiate, dams do not forgive, and electrical systems do not become safer because a committee was popular. The law requires progressive professional qualification for a reason. In that context, it is not irrational for a professional society to reserve Council voting or Council office to categories it considers to have attained particular professional experience or responsibility. 68. The Petitioner’s strongest argument is that Associates are allowed to vote while Graduate Engineers are not and yet Associates may not necessarily be professional engineers. 40

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The 2015 Constitution, however, defines Associate membership by reference to at least ten years’ experience in a position of responsibility related to engineering and historically the Institution appears to have treated Associates as a distinct category allowed to vote. Whether that policy is the best or most elegant is not the question. The question is whether it is so arbitrary, irrational or dignity-impairing as to offend Article 27. I am not persuaded that it is. 69. The differentiation here is not based on a listed suspect ground such as race, sex, ethnicity, disability or religion. It is based on membership category, professional qualification and institutional role. Such differentiation may still be unconstitutional if it has the effect of impairing dignity or imposing unfair disadvantage without legitimate reason. But the Petitioner has not shown that the classification is hostile, capricious, punitive or unrelated to the objectives of the Institution. He has shown dissatisfaction with a rule. He has not shown unfair discrimination. 41

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70. The argument that payment of subscriptions automatically entitles every member to the same national electoral rights is also not sustainable in the circumstances of this case. Different classes of membership pay different fees and enjoy different rights. Therefore, Students, honorary members, graduates, associates, corporate members and fellows may all belong to the same association without possessing identical governance rights. The Constitution does not impose a rule that every voluntary association must adopt universal equal suffrage across all internal categories irrespective of professional qualification, class or institutional purpose. 71. I have also take into account that Graduate Members are not excluded from all governance. The material before the Court shows that Graduate Members may vote in Branch Committee elections and may contest for ordinary member positions at branch level. In my view, the Petitioner may be considering that participation inadequate. But inadequacy, without more, is not unconstitutionality. 42

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72. I therefore find that the Petitioner has not demonstrated that Clauses 9.02, 9.10, 9.12, 11.05, 11.06 and 12.06 in the Institution of Engineers of Kenya (IEK) violate Article 27 of the Constitution. The differentiation complained of is rationally connected to membership categorization, professional progression and the governance structure of a voluntary professional society. It has not been shown to amount to unfair discrimination. Whether Articles 36, 38 and 47 of the Constitution Have Been Violated 73. Article 36 of the Constitution guarantees ‘every person the right to freedom of association.’’ That right includes the right to form, join or participate in the activities of an association of any kind hence, the Petitioner is correct in holding that participation in an association is not meaningless. However, freedom of association also protects the ability of members to organize their association through rules, categories and governance structures. It includes the freedom to associate 43

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on terms accepted by the members, provided those terms do not violate the law or the Constitution. 74. In the instant case it has been shown that, the Petitioner voluntarily joined IEK as a Graduate Member. The rights attached to that class were ascertainable in the governing Constitution as at the time. The fact that the Petitioner now desires greater participation in Council elections does not prove that his rights Article 36 have been violated. Freedom of association does not require a court to equalize every category of membership in a voluntary professional association. It protects participation according to lawful rules, and it also permits members to agitate internally for reform. The evidence shows that constitutional review processes have in fact been undertaken and that the issue of Graduate Members’ voting rights was part of proposed reforms. 75. The Petitioner’s argument on the right under Article 38 of the Constitution is even weaker. Article 38 protects political rights in the constitutional sense, including the right to make 44

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political choices, form or participate in political parties, campaign, and vote in elections and referenda contemplated by the Constitution and electoral law. While internal election of a professional society is important, but the same is not an Article 38 right on elections in the strict constitutional sense. The principles of representation and accountability may inform institutional fairness, but Article 38 cannot be mechanically transported into the internal elections of every society, club, professional body or association. 76. On the right under Article 47 of the Constitution, the Court accepts that decisions of appropriate cases amount particularly where they professional to affect bodies administrative rights, status, may in action, licences, disciplinary consequences, admission, expulsion or statutory entitlements. The Fair Administrative Action Act requires administrative action to be lawful, reasonable and procedurally fair. The difficulty for the Petitioner is that he has not challenge a specific administrative decision taken against him after a process. He challenges the content of a constitution of a voluntary association. 45

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77. The decision to issue election notices under the registered 2015 Constitution cannot be said to be unreasonable merely because the Constitution limits voting by Graduate Members. The Petitioner has not provided evidence to show that the 1st Respondent acted outside the registered Constitution, ignored a mandatory procedure under that Constitution, denied him a hearing in a process where he was entitled to one, or made a decision so unreasonable that no reasonable body could have made it. The authorities on Wednesbury unreasonableness and proportionality, including case Suchan Investment and Pelt Security Services, would not come to his aid unless there is first a demonstration or evidence that an administrative action was unlawful, unreasonable or procedurally unfair. I therefore find that the Petitioner has not established violation of Articles 36, 38 or 47 of the Constitution by the Respondents or interested parties or the institution Constitution of Kenya of 2015. The Effect of the 2025 Constitutional Review and pending Nairobi Petition 46 the

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78. A significant part of the evidence placed before the court concerns the 2025 Constitutional review process and Nairobi High Court Constitutional Petition No. E853 of 2025. The Respondents and Interested Parties state that the 2025 draft or amendment process would have expanded the participation of Graduate Members, but that its legal status was challenged before the Registrar of Societies and in the Nairobi petition. The Registrar of Societies had not approved the 2025 amendments and the Nairobi Court issued status quo orders. 79. This Court must be careful not to determine the validity of the 2025 Constitution or the propriety of the Nairobi proceedings because that matter is not directly before it for final determination. What is relevant here is that the existence of that process undermines the plea for a mandatory injunction compelling the 1st Respondent to immediately initiate a constitutional review. The evidence shows that a review process had already been initiated, though contested. It would therefore be imprudent for this Court to issue an open-ended mandatory order compelling a 47

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process whose legality, content and consequences are entangled in another pending High Court in Nairobi and with the statutory role of the Registrar of Societies. 81. Further, to the extent that the Petitioner seeks this Court to suspend the use of the 2015 Constitution for elections, the Court must ask itself? This Question What would govern the Institution in the interim since the 2025 amendments are contested and unregistered, and if the 2015 Constitution remains the registered instrument in my considered view, suspending the 2015 Constitution without a legally enacted replacement would risk creating chaos and governance paralysis that the Petitioner the very says it seeks to avoid. 82. In warning against judicial overreach, the Court of Appeal in the Mumo material case(2013) (syra) stated: ‘Courts cannot amputate an institution governing instrument and then leave it to stagger in the dark.’’ In this case, suspending the Institutes 2015 Constitution could cause a governance vacuum that would render it 48

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unable to discharge its functions an or conduct of elections for its members. Even if some of the clauses in the 2015 Constitution were to be found unconstitutional, then the court’s duty would be to provide a remedy that would suit it but not amputate it, first to enable the institution to still function for its members. Disposition 83. In the resultant, the court finds the Petition dated 16th February, 2026 wanting in merit and proceeds to dismiss it. Consequentially, any interim conservatory orders issued in this Petition suspending the 1st Respondent’s elections are hereby discharged, subject always to any subsisting orders issued by any other court of competent jurisdiction, including Nairobi High Court Constitutional Petition No. E853 of 2025, if still in force. Each party shall bear its own costs. Orders accordingly. DATED, SIGNED AND DELIVERED AT KIAMBU THIS 17TH DAY OF JUNE, 2026. .............................................................. 49

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LADY JUSTICE DORAH CHEPKWONY JUDGE 50

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