Omondi Juma v Public Benefit Organisations Regulatory Authority & 4 others

MOHAMED MOUMINE TRAORE…………………..…9TH RESPONDENT FRED NEWTON BINKA……………………………...…10TH RESPONDENT OLIVIA LAURE NGOU ZANGUE……………………...11TH RESPONDENT AND DR. EMMANUEL HAKIZIMANA……………..…1ST INTERESTED PARTY DR. LYDIA WANJIKU KIBE…………………..…2ND INTERESTED PARTY DR. GISELE AURELIE FOKO DADJI………......3RD INTERESTED PARTY MS. SHEILA MONICA MAKONDE…………..…4TH INTERESTED PARTY PROF. SAMUEL K. DADZIE……………………...5THINTERES TED PARTY PROF. DELENASAW YEWHALAW……….. …….6THINTERESTED PARTY JUDGMENT INTRODUCTION AND SUMMARY OF PLEADINGS ON RECORD 1. The Petitioner challenges the legitimacy of the current Board of the 2nd Respondent, asserting that on 20 September 2023 the Founding Board unlawfully appointed the 4th–11th Respondents in disregard of the Association’s Constitution. He relies on Article IX, which stipulates that official “shall at the Annual General Meeting elect the officials who shall hold PET/E 815 OF 2025 Page 2 OF 19

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office for a period of three years,” and Article V, which limits the Board to seven members—both provisions said to have been violated. He further contends that several of the impugned office-holders are not registered members of the Association, thereby lacking the constitutional competence to hold office. In response to this perceived constitutional rupture, members convened an Extraordinary General Meeting on 20 December 2024, electing the 1st–6th Interested Parties as the lawful Board, yet the 1st Respondent allegedly declined to register the change despite formal notification. 2. The Petitioner maintains that the 1st Respondent’s inaction, despite acknowledging the complaint on 11 February 2025 and undertaking to investigate, constitutes a breach of Article 47 of the Constitution and Sections 4(1)–(2) of the Fair Administrative Action Act, which guarantee administrative processes that are “expeditious, efficient, lawful, reasonable and procedurally fair,” including the right to written reasons. He argues that by neither summoning the complainants nor communicating its findings, the 1st Respondent undermined the democratic rights of members to elect their leaders and PET/E 815 OF 2025 Page 3 OF 19

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permitted an unlawfully constituted Board to persist in office. The Petition therefore seeks declarations invalidating the current Board, compelling registration of the Interested Parties as duly elected officials, and nullifying the Nomination Committee’s circular of 8 December 2025, which invited nominations for “appointment” rather than election, contrary to the Association’s constitutional framework 3. In the affidavit in support of the Petition, the Petitioner affirms his standing as a registered member of PAMCA and sets out the factual basis for challenging the legitimacy of the current board. He states that the 4th–11th Respondents “were appointed… on 20th September, 2023,” a process he describes as irregular because Article IX of the Constitution requires election, not appointment, of board members. He further avers that the board was constituted with eight members in breach of Article V, which limits the number to seven, and that several appointees were not subscribed members of the Association, rendering them constitutionally incapable of holding office. 4. The affidavit recounts the steps taken by members to restore lawful governance, including convening an Extraordinary PET/E 815 OF 2025 Page 4 OF 19

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Annual General Meeting on 20 December 2024, where the 1st– 6th Interested Parties were elected as the new board. The deponent states that he notified the 1st Respondent of the change of officials, by his affidavit sworn on 23rd January, 2025, since the 4th–11th Respondents refused to sign the requisite documents to effect the transition. Despite multiple letters, including one dated 10 February 2025 notifying PBORA of the alleged illegality, the 1st Respondent neither acted nor resolved the dispute, notwithstanding its written undertaking of 11 February 2025 to investigate the matter. 5. The deponent asserts that the continued inaction of the 1st Respondent has infringed the rights of PAMCA members to lawful and democratic governance. He states that PBORA’s failure to confirm the elected officials has allowed individuals “illegally in office” to persist in exercising authority, contrary to Articles V and IX of the PAMCA Constitution and the principles of fair administrative action. 6. The 2nd–11th Respondents contend, by way of Preliminary Objection, that the Petition and accompanying Motion are PET/E 815 OF 2025 Page 5 OF 19

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fatally defective for failing to meet the constitutional pleading standard established in Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR. They argue that the Petitioner has not set out, with the requisite precision, the specific constitutional provisions allegedly violated, the manner of their violation, or the nexus between the impugned conduct and the rights claimed. In their view, the Petition is therefore incompetent as framed and ought to be dismissed with costs at the threshold stage, without the need for factual inquiry 7. The deponent, Prof. Tumani Prince Corrah, swears the affidavit on behalf of the 2nd–11th Respondents and asserts that the Petition is fundamentally defective for failing to meet the constitutional standard for pleadings as articulated in Anarita Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR)and affirmed in Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR). He states that the Petitioner has not set out “with a reasonable degree of precision” the alleged PET/E 815 OF 2025 Page 6 OF 19

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violations attributable to each Respondent. Substantively, he maintains that the appointments of the 4th–11th Respondents were lawful, relying on Article VIII of the Constitution, which empowers the Board to “appoint any member… in case of a vacancy or by way of addition,” and on Rule 2.6 of the Board Charter, which provides for a structured appointment process through the Nomination Committee. He further notes that the outgoing Board voluntarily resigned and that the new Board was duly appointed on 20 September 2023 and subsequently approved by the 1st Respondent on 15 November 2023. 8. Responding to allegations of an Extraordinary General Meeting electing new officials, the deponent argues that no valid requisition was ever served on the Board as required by Article XVII, and that only the sitting Board may convene such a meeting. He contends that the purported EGM was unconstitutional, that the alleged unverified, that the so-called and 413 members “Board were Nomination Committee” was illegitimate because former officials—having resigned—could not reconstitute themselves into such a body. PET/E 815 OF 2025 Page 7 OF 19

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He emphasizes that Article XIX restricts the business of an EGM and does not permit the election of Board members, rendering the purported election of the Interested Parties “illegal, null and void.” 9. On the question of administrative action, the deponent asserts that the 1st Respondent did not fail in its duty but instead undertook investigations, convened a joint meeting on 13 March 2025, and issued a final decision on 27 March 2025 confirming the 4th–11th Respondents as the bona fide Board. He argues that the Petitioner, acting merely as an agent of former officials, cannot now claim violation of Article 47 when the dispute was fully heard and resolved. He concludes that the Petition raises no constitutional issue but rather internal governance disputes suited for civil proceedings, and that the interim orders sought would “paralyze the operations” of PAMCA by preventing lawful recruitment and obstructing the Board’s routine function. 10. The Petitioner responds to the 2nd–11th Respondents’ Replying Affidavit by insisting that the Constitution of PAMCA does not empower the Board to constitute an entirely new PET/E 815 OF 2025 Page 8 OF 19

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Board, as the Respondents claim. He relies on Article VIII, which he quotes as permitting appointments only “in case of a vacancy, or by way of addition… provided that the prescribed maximum of seven (7) is not thereby exceeded.” In his view, this provision cannot be stretched to justify the wholesale replacement of an outgoing Board, nor can it override Article IX, which vests the primary appointing power in the members at the Annual General Meeting. He therefore maintains that the Respondents’ reliance on Article VIII is a misinterpretation that undermines the democratic structure of the organization. 11. The Petitioner further asserts that the Respondents’ interpretation of Article V is erroneous, arguing that the seven-member limit includes the honorary positions of Chairperson, Secretary, and Treasurer. He challenges the legitimacy of the Board Charter relied upon by the Respondents, describing it as a “secondary instrument” incapable of contradicting the organisations Constitution, and noting that the version annexed is unauthenticated. He also provides evidence PET/E 815 OF 2025 that members Page 9 OF 19 requisitioned an AGM

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through a letter dated 6 November 2024, supported by 420 subscribed members, well above the one-third threshold required under Article XVI, yet the Board declined to convene the meeting. In his view, this refusal triggered the members’ right to convene an Extraordinary General Meeting, during which the Interested Parties were elected. 12. On the issue of administrative fairness, the Petitioner disputes the Respondents’ claim that the 1st Respondent conducted a proper inquiry. He states that the meeting of 13 March 2025 was “not all-inclusive,” as the Interested Parties, central to the dispute, were not invited, and no minutes have been produced to substantiate what transpired. He argues that the 1st Respondent failed to furnish written reasons to all affected parties, contrary to Article 47 of the Constitution, and that the process was marred by “lack of impartiality and transparency.” He concludes that the Respondents’ pattern of appointing their successors threatens the democratic governance of PAMCA, and that only the intervention of the Court can PET/E 815 OF 2025 Page 10 OF 19

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restore adherence to the PAMCA Constitution and protect the rights of members. SUMMARY OF SUBMISSIONS FILED 13. The Petitioner submits that the 1st Respondent, being a public body, violated Article 47 of the Constitution and Sections 4 and 6 of the Fair Administrative Action Act by failing to furnish written reasons for its decision and by conducting an inquiry that excluded persons “integral and central to the dispute,” namely the members of the 2nd Respondent and the Interested Parties. He argues that the letter of 27 March 2025 merely announced an outcome without disclosing the reasoning process, falling short of the statutory requirement that administrative decisions be accompanied by written reasons. Relying on Republic v NGO Coordination Foundation [2017] Board eKLR; ex parte Kenya Evans Kidero Human Rights Commission v NGO Coordination Board [2016] eKLR, and Evans Kidero v Capital Markets Authority Petition No. 518 of 2017 [2023] eKLR, he contends that the right to be heard and to receive reasons is a constitutional safeguard, PET/E 815 OF 2025 Page 11 OF 19

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and that the 1st Respondent’s omissions render its decision invalid. 14. On the legality of the 3rd Respondent’s Board, the Petitioner argues that Article IX of PAMCA’s Constitution vests the power to elect the Chairperson, Secretary, and Treasurer exclusively in the members at an Annual General Meeting, and that the Founding Board—having resigned—lacked capacity to appoint successors. He further submits that Article V limits the Board to seven members, inclusive of the honorary positions, and that no resolution exists enlarging this number. He challenges the Respondents’ reliance on the Board Charter, describing it as an inferior, document incapable of overriding the unauthenticated Constitution. He maintains that the 4th–11th Respondents are “strangers to the organization,” as no evidence has been produced showing their membership was approved under Article IV. 15. Finally, the Petitioner asserts that the Extraordinary General Meeting of 20 December 2024 was validly convened under Article XVII after 420 members—exceeding the one-third threshold, requisitioned it, and that the Board’s PET/E 815 OF 2025 Page 12 OF 19

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refusal to convene the meeting triggered the doctrine of necessity. He argues that the Interested Parties were therefore lawfully elected, and that the 3rd Respondent’s continued attempts to appoint its own successors, including through the Nomination Committee’s email of 8 December 2025, constitute an unconstitutional usurpation of members’ democratic rights. He urges the Court to uphold the primacy of the Constitution, find the 3rd Respondent illegally constituted, and grant the reliefs sought. 16. The 2nd–11th Respondents submit that the Petition is fundamentally defective and should be dismissed at the threshold for failing to meet the constitutional pleading standard established in Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and reaffirmed in Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR). They argue that the Petitioner has not identified any specific constitutional duty breached by them, noting that the Petition’s allegations of constitutional violation are directed solely at the 1st Respondent. They rely on Katiba Institute v Attorney General & 2 others; Ndii & PET/E 815 OF 2025 Page 13 OF 19

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20 others (Interested Parties) [2026] KEHC 258 (KLR) to emphasize that constitutional litigation requires precision as to each respondent, and that vague or derivative allegations cannot sustain a cause of action. 17. On the merits, they contend that the 4th–11th Respondents are lawfully in office. They argue that Article IX of PAMCA’s Constitution concerns only the election of three officials— Chairperson, Secretary, and Treasurer—while Article VIII expressly empowers the Board to appoint additional members “in case of any vacancy or by way of addition,” provided the maximum number is not exceeded. They maintain that the outgoing Board voluntarily resigned, creating vacancies that were filled through a structured process under Rule 2.6 of the Board Charter, involving a Nomination Committee and culminating in appointments on 20 September 2023. They further assert that the 1st Respondent approved these appointments on 15 November 2023, confirming their legality. They also argue that the Board’s numerical composition complies with Article V, since the seven-member limit applies only to appointed members, not to the honorary positions PET/E 815 OF 2025 Page 14 OF 19

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elected at the AGM. On membership, they submit that Article IV permits honorary membership by invitation, and that the 4th–11th Respondents were duly conferred such status before appointment. 18. The Respondents further argue that the purported Extraordinary General Meeting of 20 December 2024 was unconstitutional and void. They assert that Article XVII requires requisitions to be deposited with the Board and that only the Board may convene such a meeting, conditions they say were never met. They highlight the absence of a valid requisition, the lack of proof of the alleged 413 members, and the improper re-emergence of former officials as a “Board Nomination Committee” without any Board resolution. They rely on Article XIX (1), which excludes the election of Board members from the business of an Extraordinary General Meeting, to argue that the Interested Parties’ purported election was ultra vires. Finally, they reject the claim of administrative injustice, asserting that the 1st Respondent conducted a proper inquiry, convened a joint meeting on 13 March 2025, and issued a final decision on 27 March 2025 PET/E 815 OF 2025 Page 15 OF 19

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confirming the 4th–11th Respondents as the bona fide Board. They therefore urge the Court to dismiss both the Petition and the Motion with costs. 19. The 2nd–11th Respondents reiterate that the Petition is improperly constituted as against them, arguing that the Petitioner’s own Written Submissions of 13 April 2026 concede that no constitutional violations are attributable to them. They submit that the Petition merely recycles allegations directed at the 1st Respondent, yet inexplicably seeks substantive remedies against parties who are not alleged to have breached the Constitution. Invoking Rule 5(d) (i) of the Mutunga Rules, they argue that improperly joined parties must be struck out. They further rely on Kitur v Center & 2 others [2024] KEHC 14806 (KLR), where the Court cautioned against constitutional disguising petitions and ordinary held civil that disputes as constitutional jurisdiction should not be invoked where an alternative legal remedy exists. In their view, the Petitioner’s claim is a governance dispute within PAMCA, not a constitutional controversy. PET/E 815 OF 2025 Page 16 OF 19

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20. On the alleged violation of fair administrative action, the Respondents contend that the Petitioner lacks standing to assert breaches of Article 47 on behalf of persons he has simultaneously sued as Interested Parties. They note that the letters forming the basis of the alleged violation were written not by the Petitioner but by the 1st–3rd Interested Parties, and that the Petition nowhere pleads that it is brought on behalf of those individuals as required by Rule 10(2)(d) of the Mutunga Rules. They argue that a litigant cannot purport to represent persons who have not authorised him, particularly where those persons are already before the Court in their own right. They emphasise that none of the Interested Parties has sworn an affidavit alleging violation of their rights, and that the Petitioner cannot “approbate and reprobate” by claiming injury on behalf of parties he has sued. 21. Finally, the Respondents maintain that the 1st Respondent fully complied with its statutory obligations under the Fair Administrative Action Act. They point to the letter of 11 February 2025, in which PBORA acknowledged multiple complaints and invited officials from both the current and PET/E 815 OF 2025 Page 17 OF 19

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former Boards to a hearing. They highlight that the Petitioner himself admitted receiving this communication and that his own affidavit of 23 January 2025 confirms he acted merely as an administrative agent for former officials—who were duly summoned and represented the interests of all factions. They argue that no legitimate expectation existed for the Petitioner or Interested Parties to be separately invited, and that the 1st Respondent’s final decision of 27 March 2025, communicated after the joint meeting of 13 March 2025, conclusively resolved the dispute. On this basis, they urge the Court to dismiss the Petition with costs. ANALYSIS AND DETERMINATION 22. Having considered the pleadings and submissions filed herein, I frame the issues for determination to be a. Whether the Preliminary Objection should be upheld b. Whether the Prayers sought in the Petition should issue c. Arising from (a) and (b) above what are consequential orders Whether the Preliminary Objection Should Be Upheld PET/E 815 OF 2025 Page 18 OF 19 the

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23. The question whether the Preliminary Objection should be upheld turns on the standard as set out in Anarita Karimi Njeru case as to the requirement of precision in constitutional pleadings and the requirement that a petitioner must disclose a specific constitutional violation attributable to each respondent. The 2nd–11th Respondents argue that the Petition, even when read generously, alleges constitutional breaches only against the 1st Respondent, while the claims against them concern internal governance disputes under PAMCA’s Constitution. It is submitted that constitutional litigation demands clarity, specificity, and a demonstrated nexus between each respondent and the alleged violation. They further invoke Kitur v Center & 2 others [2024] KEHC 14806 (KLR) to argue that the Petition is a disguised civil dispute and therefore improperly before the constitutional court. 24. Against this, the Petitioner maintains that the 2nd–11th Respondents’ actions form part of a broader pattern of unconstitutional governance and that their continued occupation of office is intertwined with the alleged violation of PET/E 815 OF 2025 Page 19 OF 19

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Article 47 by the 1st Respondent. However, the Petitioner’s own submissions concede that no direct constitutional violation is pleaded against the 2nd–11th Respondents. The absence of pleaded injury attributable to these respondents, weakens the foundation for maintaining them as substantive respondents in a constitutional claim. 25. With this in mind, and applying the discipline of constitutional adjudication articulated in Anarita Karimi Njeru case (supra), Mumo Matemu case (supra), and Katiba Institute case (Supra), a court will be reluctant to sustain a petition that fails to disclose a specific, justiciable constitutional controversy against the parties raising the objection. Where the pleadings reveal, as here, that the dispute between the Petitioner and the 2nd–11th Respondents is primarily organisational and regulatory, and where the alleged constitutional infraction is directed solely at the 1st Respondent, the Preliminary Objection, limited to the 2nd– 11th Respondents, is well-founded and is upheld. The constitutional court is not the forum for resolving internal PET/E 815 OF 2025 Page 20 OF 19

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association governance disputes unless a clear constitutional question is properly framed against each respondent. Whether the Prayers sought in the Petition should issue 26. In light of the finding on the Preliminary Objection, the only prayers properly before the Court are those directed at the 1st Respondent. These are: a. A declaration that the 1st Respondent’s failure to expeditiously furnish the Petitioner, the Interested Parties, and the 2nd Respondent with its written decision on the legality of the 3rd Respondent’s Board violated Article 47 of the Constitution; and b. A declaration that the 1st Respondent’s failure to summon or invite the Petitioner, members of the 2nd Respondent, and the Interested Parties to present their views on the complaint concerning the legality of the 3rd–11th Respondents’ tenure violated Article 47 of the Constitution. 27. The Petitioner’s case is that the 1st Respondent’s conduct amounted to a denial of fair administrative action under Article 47. He contends that the 1st Respondent’s subsequent handling of the dispute, culminating in a decision communicated without reasons, fell short of constitutional and statutory standards. PET/E 815 OF 2025 Page 21 OF 19

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28. It is common ground that the 1st Respondent convened a meeting involving the current Board and the founding members of the 2nd Respondent, and thereafter issued a communication purporting to resolve the dispute. The Petitioner argues that the decision was unsupported by reasons and therefore constitutionally infirm. 29. It is not disputed that the 2nd Respondent is registered under the Public Benefit Organizations Act, 2013, which establishes the administrative and regulatory framework governing public benefit organizations. 30. The Act provides a deliberate and structured dispute-resolution mechanism. After internal mechanisms are exhausted, disputes are to be lodged with the Public Benefit Organizations Regulatory Authority established under Section 34, whose functions are set out in Section 42. 31. The Act further establishes the Public Benefit Organizations Disputes Tribunal under Part V. Section 51(1) confers jurisdiction on the Tribunal to: (a) hear and determine complaints arising from breaches of the Act; PET/E 815 OF 2025 Page 22 OF 19

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(b) hear and determine matters or appeals made pursuant to the Act; and (c) perform such other functions as may be conferred by the Act or any other written law. 32. Section 52(7) empowers the Tribunal, upon hearing an appeal, to: (a) confirm, set aside, vary, or quash the decision in question; (b) require the Authority to revise or review its decision; (c) require the Authority to inquire further into specific details; or (d) make any other appropriate order. 33. Section 52(11) provides a right of appeal from the Tribunal to the High Court. It is evident that the Public Benefit Organizations Act, 2013 establishes a comprehensive and specialized dispute-resolution framework. The Petitioner did not invoke or exhaust this statutory mechanism. That omission has direct implications for the justiciability of the Petition. 34. Judicial precedent firmly establishes that where Parliament has provided an alternative dispute-resolution mechanism, a party must exhaust that mechanism before invoking the original jurisdiction of the High Court. PET/E 815 OF 2025 Page 23 OF 19

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35. The doctrine of exhaustion was comprehensively articulated by the five-judge bench in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR. The Court emphasized that exhaustion ensures diligence, respects statutory frameworks, and aligns with the Constitutional directive under Article 159 that encourages alternative dispute resolution. The Court cited with approval the Court of Appeal’s pronouncement in Speaker of the National Assembly v Karume [1992] KLR that where a statute prescribes a procedure for redress, that procedure must be strictly followed. The same principle was echoed in R v IEBC ex parte NASA Kenya & 6 others [2017] eKLR. 36. The Court of Appeal in Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR reaffirmed that courts are fora of last resort, not first instance, and that the exhaustion doctrine postpones judicial intervention until statutory mechanisms have been pursued. 37. In view of the foregoing, the Petition fails the test of justiciability. The dispute falls squarely within the statutory PET/E 815 OF 2025 Page 24 OF 19

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framework established by the Public Benefit Organizations Act, and the Petitioner did not exhaust that mechanism. The Court’s jurisdiction is therefore improperly invoked, and the Petition cannot be sustained Arising from (a) and (b) above what are the Consequential Orders 38. For the foregoing reasons, the Petition fails and is hereby dismissed. 39. On costs, Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 vests discretion in the Court. The Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (SC Petition 4 of 2012) affirmed that while costs generally follow the event, the Court retains equitable discretion to depart from that rule where justice so demands. 40. I find no extenuating circumstances warranting departure from the general rule. Accordingly, the Petitioner shall bear the costs of the 2nd–11th Respondents. It is so ordered SIGNED, DATED AND DELIVERED NAIROBI THIS 2ND DAY OF JULY 2026. PET/E 815 OF 2025 Page 25 OF 19 VIRTUALLY AT

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P. M. NYAUNDI JUDGE In the presence of; Fardosa Court Assistant Ogembo for Respondents Muriti for Petitioners PET/E 815 OF 2025 Page 26 OF 19

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