|Miscellaneous Application 78 of 2011
|MAULED JASHO, EBRAHIM ATHUMANI & JUMA ALI BOY v REGISTRAR OF SOCIETIES
|14 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Daniel Kiio Musinga
|MAULED JASHO & 2 others v REGISTRAR OF SOCIETIES  eKLR
|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
IN THE HIGH COURT OF KENYA
JR. MISCELLENEOUS APPLICATION NO. 78 OF 2011
IN THE MATTER OF AN APPLICATION BY MAULED JASHO, EBRAHIM ATHUMANI AND JUMA ALI BOY THE FORMER OFFICIALS OF THE
PANGANI MOSQUES SHAURI MOYO SOCIETY FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION
The main grounds upon which these proceedings were brought are that the respondent had by a letter dated 16th March, 2011 confirmed the Interested Parties as the bona fide officials of the Pangani Mosque Shauri Moyo Society, hereinafter referred to as “the society”. Prior to registering the Interested Parties as the officials of the society, the respondent ignored a complaint by the applicants through their advocates informing him that one of the Interested Parties, Omar Kamira is not a bona fide member of the society. As a result of the registration of the Interested Parties as the officials of the society, the said officials served a notice on the applicants requiring them to handover the affairs and management of the society to them.
In their replying affidavit sworn by Accrram Jasho, the Interested Parties stated that they had been members of the society for more than ten (10) years. They accused the applicants, being former officials of the society, of failing to maintain proper records of the registered members. He further stated that for a period in excess of fifteen (15) years, the applicants had failed to carry elections of officials of the society and thus breached the provisions of the Society’s Constitution. As a result the Interested Parties sought the assistance of the Registrar of Societies, the respondent.
That notwithstanding the applicants failed to convene a proper general meeting hence necessitating the actions of the respondent in his letter of 1st February, 2011. In that letter Mr. Ali Omar Kamira, the 2nd Interested Party was directed to make arrangements to issue a notice of not less than twenty one (21) days for a general meeting at which elections would be held.
In an application of this nature the court cannot go into a detailed analysis of the issues raised by parties and the applicable law as that may prejudice a fair hearing of the substantive motion. In deciding whether the leave granted ought to operate as a stay of the impugned decision, the court has to consider the loss, damage and/or prejudice that may be occasioned by grant or refusal of the orders sought before the substantive motion is heard and determined.
Although it was alleged that the Interested Parties are not paid up members of the society, no evidence was adduced by the applicants in support thereof. The burden of proof is on he who alleges. When the applicant’s advocates wrote to the respondent, they alleged that the 2nd Interested Party was not a member of the society but did not make any reference to the other two Interested Parties and even in respect of the 2nd Interested Party there was no evidence to support the allegation made.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF APRIL, 2011.