Tarak Khawaja & 5 others v Registrar of Societies & 9 others [2017] KECA 599 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a registrar cannot recognise new society office bearers without first properly notifying and hearing those in office.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents were afforded an opportunity to be heard before the Registrar allowed the appellants to convene a meeting that purported to elect interim office bearers of the Society
- 2.Whether the Registrar's letters of 5th March and 15th May 2015 were validly served as required by section 50 of the Societies Act
- 3.Whether the appeal had merit ( ancillary issues: legitimacy of the respondents in office, alleged violation of the Society's constitution and the Act, religious affiliations of the contending groups)
Key legal issues
#Whether the respondents were afforded an opportunity to be heard before the Registrar recognised the appellants as interim office bearers
No. The right to fair administrative action under Article 47 and the Fair Administrative Action Act guaranteed the sitting office bearers prior notice and a hearing before they could be deposed, and that right was violated.
The court held that whatever statutory provision the Registrar relied on, he was obliged to hear the office bearers in place before sanctioning their removal. Article 47 and the Fair Administrative Action Act, 2015, in force two weeks before the decision, guaranteed fair administrative action including prior and adequate notice and an opportunity to make representations. The Registrar neither validly served the letters nor issued a public notice nor ensured the respondents were invited to the meeting of 28th June 2015.
Whether the Registrar's letters of 5th March and 15th May 2015 were validly served
No. The letters were issued pursuant to section 18 of the Societies Act and required to be served as prescribed by section 50; they were neither personally served nor sent by registered post, so no obligation to respond arose.
Section 16 obliges the Registrar to send communications to the society's registered postal address, and section 50 requires service by registered post, with deemed receipt after ninety-six hours. The court noted the copies to the appellants were hand-delivered and receipt acknowledged, contrasting the Registrar's failure to use the same diligence towards the respondents. Consequently the respondents could not be faulted for ignoring letters they never received.
Effect of breach of the right to be heard on the decision ultimately made
A decision made in violation of natural justice is null and void regardless of whether the same outcome would have resulted from a fair hearing.
Relying on Pashito Holdings, Mbaki v Macharia, Onyango Oloo and General Medical Council v Spackman, the court affirmed that an affected party's views must be heard before an adverse decision. It may be that the Registrar would have directed elections in any event, but the violation meant the decision was of no legal effect, rendering it unnecessary to decide the other contested issues.
Correct construction of the Registrar's powers under section 18 of the Societies Act
Section 18 prescribes a specific procedure: where there is a dispute over the identity of lawful officers, the Registrar must serve a written order requiring evidence of settlement of the dispute or proper appointment of officers, failing which he may cancel the registration.
The court set out section 18 verbatim and explained that once the Registrar cannot identify the legitimate office bearers, he must serve a written order giving the society one month to produce evidence of settlement of the dispute, proper appointment of officers, or initiation of proceedings. Only non-compliance with such notice empowers cancellation of registration. The letters in issue were issued under this provision, triggering the section 50 service requirements.
Legal principles established
#- Before an administrator allows action adverse to the holders of an office, those office bearers must be afforded prior notice and the right to be heard, irrespective of the statutory provision under which the administrator acts.
- Service of notices under the Societies Act must be effected in the manner prescribed by section 50; an administrator cannot rely on an opportunity to be heard that was not validly served.
- Violation of the right to be heard renders the ultimate decision null and void, even if the same decision would have been reached had a hearing been given.
- Pre-2010 statutes such as the Societies Act must be construed with the adaptations necessary to make them compliant with the Constitution, including the fair administrative action guarantees of Article 47.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Misc. C. App. No. 37 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court in a judicial review matter under the Societies Act (appeal from judicial review orders of certiorari and mandamus)
Relief refused
#Appellants' request that the High Court judgment be set aside and the Registrar's recognition of them as interim office bearers be upheld
The respondents' right to be heard before an adverse administrative decision was violated; the resulting decision was null and void
Costs
The appeal was dismissed with costs to the respondents (the High Court had earlier directed each party to bear their own costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly find that this appeal has no merit and is hereby dismissed with costs to the respondents. It is so ordered.
Irrespective of the provision of the Act under which the Registrar acted in the circumstances of this appeal, it cannot be gainsaid that before allowing the appellants to take action to depose the persons holding office in the Society immediately before 28th June 2015, he was obliged to hear those office bearers.
Before the Registrar can claim to have afforded the respondents an opportunity to be heard, which they failed to take up, he must first show that he had served them in the manner prescribed by the Act.
If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision.
The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.
Issues in the judgment
#The record contains an apparent typographical date error, referring to the meeting of '28th June 205' instead of 2015
The same KENC ex parte Gathenji authority is cited with the surname rendered differently in the two parties' citations ('Njuguna' vs 'Njoroge')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Tarak Khawaja & 5 others v Registrar of Societies & 9 others [2017] KECA 599 (KLR)", Case Analysis (2017). Civil Appeal No. 10 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/599/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.