1.This ruling is in respect of two applications. They are the petitioner’s notice of motion dated December 28, 2020 (hereinafter referred to as ‘the application’) and the notice of preliminary objection dated February 9, 2021 (hereinafter referred to as ‘the objection’) which was taken out by the 2nd and 4th Respondents.
2.The application sought an array of 7 orders, as under: -
3.The application was premised on the grounds appearing on the body thereof and was supported by the Affidavit of Brown Ashira Olaly, the 1st Petitioner herein.
4.The objection was tailored as follows: -
5.On this Court’s directions, the application and the objection were to be heard together and by way of written submissions. Whereas the Petitioners and the 1st and 3rd Respondents duly complied with the filing of submissions, the 2nd and 4th Respondents did not. Instead, the 2nd and 4th Respondents they relied on the submissions filed by the 1st and 3rd Respondents.
6.The objection impugned the jurisdiction of this Court on the basis of the doctrine of exhaustion. It was contended that the Petitioners had not exhausted the internal dispute mechanisms and the statutory dispute resolution mechanisms prior to making their way to Court.
7.Surprisingly, none of the parties addressed that aspect of the objection. The Petitioners and the 1st and 3rd Respondents laid more premium on the application. Be that as it may, since the issue runs to the jurisdiction of this Court, this Court remains under a duty to deal with it on priority basis. (See the Supreme Court of Kenya onPetition No 7 of 2013, Mary Wambui Munene v Peter Gichuki Kingara and Six Others  eKLR).
8.This Court will, therefore, address itself on whether the doctrine of exhaustion applies in this matter as a complete jurisdictional bar.
9.In Kenya, the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -
10.Clause 3 is on traditional dispute resolution mechanisms.
12.The court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
15.From the foregoing discussion, the doctrine of exhaustion is a complete bar to the jurisdiction of a Court save in cases where any of the exceptions apply.
16.Applying the above to this matter, there is no doubt that the Petition herein relates to the affairs of a registered society being the 4th Respondent herein, the Association of Public Health Officers (Kenya).
17.From the reading of the Petition and the application, it is apparent that the Petitioners, who are members of the 4th Respondent, are utterly dissatisfied with the manner in which the affairs of the 4th Respondent are carried out more so by the members of the Executive Committee.
18.The complaints include failure by the 4th Respondent to conduct Annual General Meetings, attempts to privatize the 4th Respondent, that the Acting Chairman is in office illegally, elections of office bearers, amendments to the 4th Respondent’s constitution, failure to file annual returns over time, failure to audit the operations and finances of the 4th Respondent among many others.
19.The Petitioners enjoined the Registrar of Societies as an Interested Party in these proceedings. That means the Petitioners were well aware that the Registrar of Societies has an identifiable interest in this matter.
20.As the 4th Respondent is a society registered under the Societies Act, Cap 108 of the Laws of Kenya, then its first port of operational call must be the said statute. Of course, the said statute runs surbodinate to the Constitution of Kenya.
21.The Societies Act is an Act of Parliament providing for the registration and control of societies. Section 8 creates the Office of the Registrar of Societies. Under the Act, the Registrar has significant responsibilities and powers to ensure that the affairs of registered societies are within the confines of the Constitution and the law. To that end, the Registrar has powers to even cancel or suspend the registration of any society, to hear and determine disputes under Section 18 of the Act, to carry out investigations into the affairs of a society either on its own motion or on a complaint lodged among many more powers.
22.The statutory design under the Societies Act is, therefore, to accord the Registrar of Societies the first bite of the cherry in respect to all operational bottlenecks within registered societies. The obvious exception will be in cases where the exceptions to the doctrine of exhaustion discussed above apply.
23.In this case, there is no mention by the Petitioners of having, in any way, involved the Registrar of Societies prior to instituting the instant proceedings. Be that as it may, the Petitioners have also not demonstrated any of the settled exceptions to the doctrine of exhaustion.
24.The Registrar of Societies is a public officer. By dint of Article 10 of the Constitution, the Registrar must adhere to the national values and principles of governance while discharging its duties. The Registrar is also under a non-derogable duty to respect, defend and uphold the Constitution on the basis of Article 3 thereof.
25.The matters in dispute in this case are purely operational in nature. Such are the matters which the Registrar ought to first deal with. In the event the parties or any of them will be dissatisfied with the manner in which the Registrar deals with the issues, such can always access this Court for further redress.
26.Having said so, this Court undoubtedly arrives at the finding that the institution of the instant proceedings before this Court was premature. As such, the Court’s jurisdiction has been improperly invoked. The Court must down its tools.
27.Coming to the end of this judgment, this Court wishes to profusely apologize for the late delivery of the decision. The delay was mainly occasioned by the number of election-related matters which were filed in the Constitutional and Human Rights Division from December 2021. From their nature and given that the country was heading to a General election, the said matters had priority over the rest. The Court was also transferred in July 2022, on need basis, to a new station which had serious demands that called for urgent attention. The totality of it all yielded to the delay herein. Galore apologies once again.
28.In the end, the following orders do hereby issue: -a.This court declines jurisdiction on the basis of the doctrine of exhaustion.b.The notice of preliminary objection dated February 9, 2021 is hereby allowed.c.The petition and the notice of motion dated December 28, 2020 are hereby struck out.d.Since the disputes within the Association of Public Health Officers (Kenya) still subsist and the parties herein shall engage further, each party shall bear its own costs of these proceedings.Orders accordingly.