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Supreme CourtPartially AllowedCivil Application 29 of 2014

Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others

Supreme Court of Kenya
9 December 2014
Willy MutungaW. M. MutungaKalpana RawalK. H. RawalPhilip Kiptoo TunoiK. TunoiMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangNjoki Susanna NdunguN. S. Ndungu
10,512 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Deregistered NGOs can still sue in public interest under Kenya's Constitution.

What this practically means

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The Supreme Court ruled that a deregistered NGO can still bring a case if the matter involves public interest. A Gazette notice alone does not cancel an NGO's registration; the organization must be personally notified. Under the 2010 Constitution, any person or group can challenge constitutional violations, especially on leadership integrity. This expands access to justice for public interest litigants.

Executive summary

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This ruling by the Supreme Court of Kenya (Mutunga CJ, Rawal DCJ, Tunoi, Ibrahim, Ojwang, and Ndungu SCJJ) disposes of a preliminary objection by Mumo Matemu, the applicant, seeking to strike out an appeal filed by the Trusted Society of Human Rights Alliance (1st respondent) against the Court of Appeal's decision that had reinstated Matemu's appointment as Chairperson of the Ethics and Anti-Corruption Commission. The applicant argued that the 1st respondent had been deregistered under the Non-Governmental Organizations Co-ordination Act before filing the appeal on 2 September 2013, and therefore lacked locus standi. The Court examined the NGO Act, particularly Section 16(2), and held that the Gazette Notice relied upon by the applicant was not the 'notice' of cancellation required by the statute, which must be served on the organization itself. The Court also noted conflicting letters from the NGO Board regarding the 1st respondent's registration status, creating uncertainty. Crucially, the Court held that even if deregistration had occurred, the 2010 Constitution, through Articles 22, 258, and 260, has enlarged locus standi to allow any 'person'—including an unincorporated association—to bring constitutional claims in the public interest. The Court distinguished pre-2010 cases like Fort Hall Bakery and Elijah Sikona, which were decided under a different legal framework. Finding that the appeal raised constitutional issues of public interest (the integrity of leadership under Chapter Six), the Court disallowed the preliminary objection, directed that the appeal be set down for hearing, and ordered each party to bear their own costs. Justice Njoki Ndungu wrote a concurring opinion emphasizing the transformative role of public interest litigation and the need to interpret the NGO Act in conformity with the Constitution.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the 1st respondent herein has the locus standi to appear before the Supreme Court
  2. 2.whether costs should be awarded in this matter

Key legal issues

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01

Whether the 1st respondent had locus standi to file an appeal in the Supreme Court despite its alleged deregistration under the NGO Act.

Holding

The 1st respondent had locus standi. The Court held that the Gazette Notice was not the notice of cancellation required by Section 16(2) of the NGO Act, and that even if deregistration had occurred, Articles 22, 258, and 260 of the Constitution confer standing on any 'person', including an unincorporated association, to bring constitutional claims in the public interest.

Reasoning

The Court first examined the NGO Act and found that the Gazette Notice was not the 'notice' contemplated by Section 16(2), which requires service on the organization. It then noted that the two conflicting letters from the NGO Board created uncertainty about the 1st respondent's registration status. Crucially, the Court held that the 2010 Constitution has enlarged locus standi: Articles 22 and 258 allow any person, including an association, to institute proceedings alleging a constitutional violation, especially in the public interest. The Court distinguished pre-2010 cases like Fort Hall Bakery and Elijah Sikona, noting they were decided under a different constitutional dispensation. The Court concluded that the public interest nature of the case (challenging the appointment of the EACC chairperson) meant the 1st respondent retained standing regardless of its registration status.

p. 17
02

Whether the issue of locus standi is a procedural technicality under Article 159(2)(d) of the Constitution.

Holding

The Court did not definitively categorize locus standi as a procedural technicality, but held that in this public interest case, the constitutional provisions on standing (Articles 22 and 258) override any technical objections based on deregistration.

Reasoning

The Court noted that the categorization of what is a procedural technicality must be on a case-by-case basis. It acknowledged the applicant's argument that Article 159(2)(d) uses 'undue regard' and not 'without any regard', implying some technicalities remain relevant. However, the Court focused on the enlarged locus standi under the Constitution and the public interest nature of the case, concluding that the deregistration did not deprive the 1st respondent of standing.

p. 17
03

Whether costs should be awarded in a constitutional matter of public interest.

Holding

Each party should bear their own costs, as the matter raises constitutional issues of public interest and an award of costs would deter public interest litigation.

Reasoning

The Court relied on its previous decisions in Raila Odinga v. IEBC and Jasbir Singh Rai v. Estate of Tarlochan Singh Rai, where it held that in constitutional matters of public interest, costs should not be awarded to avoid a chilling effect on access to justice. The Court noted that the 1st respondent was acting in the public interest, not for private gain.

p. 19

Legal principles established

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  • A Gazette Notice alone does not cancel an NGO's registration under Section 16(2) of the NGO Act; personal service on the organization is required.
  • Under Articles 22, 258, and 260 of the Constitution, any person or association, even if deregistered, has standing to bring constitutional claims in the public interest.
  • The issue of locus standi, when it touches on jurisdiction, is a pure question of law that can be raised at any time.
  • Pre-2010 cases on locus standi (e.g., Fort Hall Bakery) are no longer binding under the current constitutional dispensation.
  • In constitutional matters of public interest, each party should bear their own costs to avoid chilling public interest litigation.

Court orders

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  1. 1.The preliminary objection is disallowed.
  2. 2.The matter shall come up before the Registrar for mention, and for the assignment of a priority hearing date for the appeal.
  3. 3.The parties shall bear their own respective costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Willy Mutunga
majority
Kalpana Rawal
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
concurring

Wrote the judgment

The concurring opinion emphasizes the transformative role of public interest litigation and the enlarged locus standi under Articles 22 and 258 of the Constitution. It notes a lacuna in the NGO Act regarding the legal interests of an NGO upon deregistration, but holds that in the special circumstances of this case, the deregistration does not fatally compromise the validity of the appeal, given the constitutional nature of the matter and the broad standing test under Article 258.

An interpretation of the provisions of section 16 of the NGO Act in line with the Constitution will find that, in the special circumstances of this case, the deregistration of the 1st Respondent does not fatally compromise the validity of the appeal before us.p. 21
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 290 of 2012
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010 (implied as the appeal is from the Court of Appeal in a constitutional matter)

Relief refused

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Striking out of the petition (Petition No. 12 of 2013)

The Court found that the 1st respondent had locus standi to file the appeal, as the deregistration under the NGO Act did not deprive it of standing in a matter of public interest, given Articles 22, 258, and 260 of the Constitution.

p. 17

Costs

The parties shall bear their own respective costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A close reading of Section 16(2) of the Non-Governmental Organization Co-ordination Act would show that the ‘notice’ contemplated in this provision is not a Gazette Notice.
p. 11 Statutory interpretation of Section 16(2) of the NGO Act
The issue of locus standi raises a point of law that touches on the jurisdiction of the Court, and it should be resolved at the earliest opportunity.
p. 10 Jurisdiction and locus standi

Key timeline

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2013-09-02
Trusted Society of Human Rights Alliance filed an appeal in the Supreme Court against the Court of Appeal decision reinstating Mumo Matemu as EACC chairperson.
Undated
Mumo Matemu filed a preliminary objection arguing the 1st respondent lacked locus standi due to alleged deregistration.
2014
Supreme Court delivered ruling disallowing the preliminary objection and ordering the appeal to be set down for hearing.

Practical implications

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For lawyers

Challenge locus standi carefully

When opposing standing, note that constitutional standing under Articles 22 and 258 overrides statutory registration status in public interest cases. Pre-2010 case law on standing is largely obsolete. Advise clients that technical objections based on deregistration may fail if the matter involves constitutional violations.

For businesses

Deregistration doesn't bar public interest suits

If your organization is deregistered, you may still have standing to sue on constitutional matters of public interest. Ensure you document the public interest nature of your claim. This ruling protects your ability to challenge government actions affecting the public, even if your registration status is in question.

For individuals

You can sue even if your group is unregistered

You can bring a constitutional case even if your association is not officially registered, as long as the matter involves public interest. The Court will not dismiss your case solely on technical registration issues. This empowers citizens to challenge leadership integrity and other constitutional violations.

Frequently asked questions

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Can a deregistered NGO in Kenya still file a court case?+

Yes, if the case involves a constitutional violation and is in the public interest. The Supreme Court in Mumo Matemu v. Trusted Society held that the Constitution gives standing to any person or association regardless of registration status.

What is the effect of a Gazette Notice on NGO deregistration in Kenya?+

A Gazette Notice alone is not sufficient to cancel an NGO's registration under Section 16(2) of the NGO Act. The NGO must be personally served with a notice of cancellation. The Court found that a Gazette notice does not meet the statutory requirement.

Does the 2010 Constitution change the rules on who can sue in Kenya?+

Yes. Articles 22 and 258 allow any person, including unincorporated associations, to bring constitutional claims in the public interest. This expanded standing overrides earlier restrictive rules that limited who could sue.

Can I be ordered to pay costs if I bring a public interest case in Kenya?+

In constitutional public interest cases, courts often order each party to bear their own costs to avoid discouraging public interest litigation, as seen in this Supreme Court ruling. This protects litigants from financial penalties for pursuing public interest matters.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others", Case Analysis (2014). Civil Application 29 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/6/eng@2014-12-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.