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|Case Number:||JR Miscellaneous Application 308a of 2013|
|Parties:||Republic v Non-Governmental Organizations Co-ordination Board & Attorney General ex-parte Transgender Education and Advocacy (Suing Through Its Officials), Audrey Mbugua Ithibu (Chairperson), Maureen Muia (Secretary) & Annet Jennifer Muthoni Thiaya (Secretary)|
|Date Delivered:||23 Jul 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||George Vincent Odunga|
|Citation:||Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others  eKLR|
|Advocates:||Miss Chege for Mr Ojiambo for the ex parte applicant.|
|Court Division:||Judicial Review|
|Advocates:||Miss Chege for Mr Ojiambo for the ex parte applicant.|
Non-Governmental Organizations Co-ordination Board compelled to register Transgender Education and Advocacy as a Non-Governmental organization
Republic V Non-Governmental Organizations Co-ordination Board & Another exparte Transgender Education and Advocacy & 3 others (2014) e KLR
High Court at Nairobi
JR Misc. Application No. 308 A of 2013
GV Odunga, J
July, 23 2014
Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva
The Applicant, Transgender Education and Advocacy, described itself as a Non-Governmental Organization formed with the aim and objective of advocating for human rights and preventing stigma facing transsexual people in Kenya and internationally sought for an order of mandamus to compel the 1st Respondent (The Non-Governmental Organizations Co-ordination Board) to carry out its statutory mandate by registering the Applicant as a non-Government Organization.
It was argued that the Applicant provided all the necessary information ,met the requirements for such an application and paid the prescribed registration fee as required by the 1st Respondent and therefore had the legitimate expectation that the 1st Respondent would consider and process its application and grant it the registration.
The 1st Respondent submitted that the documents submitted by the Applicant for registration from two of the proposed officials of the intended Organization bore different names from those that appeared in their National Identification Cards and that two passport size photographs of the said officials filed appeared different from those in their National Identification Cards.
Judicial Review-mandamus-application to compel the Non-Governmental Organizations Co-ordination Board to register the Applicant as a non-Government Organization- Whether the Non-Governmental Organizations Co-ordination Board could exercise its discretion in refusing to register an organization on grounds of gender-Non-Governmental Organizations Co-ordination Act, 1990, section 10(3).
An order compelling the 1st Respondent to carry out its statutory mandate by registering the Applicant as a Non-Governmental Organization issued.
|History Advocates:||One party or some parties represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JR MISCELLANEOUS APPLICATION NO. 308A OF 2013
IN THE MATTER OF AN APPLICATION FOR JUDICIAL
IN THE MATTER OF NON-GOVERNMENTAL ORGANIZATIONS CO-ORDINATION ACT, 1990 OF KENYA
CO-ORDINATION BOARD.........................................................1ST RESPONDENT
THE ATTORNEY GENERAL.......................................................2nd RESPONDENT
TRANSGENDER EDUCATION AND ADVOCACY
(SUING THROUGH ITS OFFICIALS)
AUDREY MBUGUA ITHIBU (CHAIRPERSON)
MAUREEN MUIA (SECRETARY)
ANNET JENNIFER MUTHONI THIAYA (SECRETARY)...................................................EX-PARTE APPLICANTS
Ex Parte Applicant’s Case
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way… These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done”.
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
An application for registration shall be made by the chief officer of the proposed organization and specify—
“On the issue of discretion Prof Sir William Wade in his Book Administrative Law has summarized the position as follows: The powers of public authorities are --- essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land ……regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfillment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them… “
“A power which is abused should be treated as a power which has not been lawfully exercised….. Thus the courts role cannot be put in a straight jacket. The courts task is not to interfere or impede executive activity or interfere with policy concerns, but to reconcile and keep in balance, in the interest of fairness, the public authorities need to initiate or respond to change with the legitimate interests or expectation of citizens or strangers who have relied, and have been justified in relying on a current policy or an extant promise. As held in ex parte Unilever Plc (supra) the Court is there to ensure that the power to make and alter policy is not abused by unfairly frustrating legitimate individual expectations...The change of policy on such an issue must a pass a much higher test than that of rationality from the standpoint of the public body. The unfairness and arbitrariness in the case before me is so clear and patent as to amount to abuse of power which in turn calls upon the courts intervention in judicial review. A public authority must not be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as has happened in this matter, and in so acting abuse its powers. In this connection Lord Scarman put the need for the courts intervention beyond doubt in the ex-parte Preston where he stated the principle of intervention in these terms: “I must make clear my view that the principle of fairness has an important place in the law of judicial review: and that in an appropriate case, it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.” The same principle was affirmed by the same Judge in the House of Lords in Reg vs. Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Ltd  AC 617 that a claim for judicial review may arise where the Commissioners have failed to discharge their statutory duty to an individual or have abused their powers or acted outside them and also that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. In other words it is unimportant whether the unfairness is analytically within or beyond the power conferred by law: on either view, judicial review must reach it. Lord Templeman reached the same decision in the same case in those helpful words: “Judicial review is available where a decision making authority exceeds its powers, commits an error of law commits a breach of natural justice reaches a decision which no reasonable tribunal could have reached or abuses its powers.” Abuse of power includes the use of power for a collateral purpose, as set out in ex-parte Preston, reneging without adequate justification on an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals. I further find as in the case of R (Bibi) vs. Newham London Borough Council  EWCA 607,  WLR 237, that failure to consider a legitimate expectation is a failure to consider a relevant consideration and this would in turn call for the courts intervention in assuming jurisdiction and giving the necessary relief.”
The State shall not discriminate directly or indirectly against any person 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.
Dated at Nairobi this 23rd day of July 2014
G V ODUNGA
Delivered in the presence of:
Miss Chege for Mr Ojiambo for the ex parte applicant.