Executive summary

The High Court of Kenya held, on 30 April 2025, that it is unconstitutional to require nongovernmental organizations (NGOs) previously registered under the repealed Non-Governmental Organizations Co-ordination Act (Cap 19 of 1990) to undergo fresh registration under the recently enacted Public Benefits Organizations Act (PBO Act). The underlying constitutional petition had been filed by officials of several public benefit organizations (PBOs) and civil society representatives. The petition challenged multiple provisions within the PBO Act, citing violations of fundamental rights and freedoms.

The High Court also declared that the provisions mandating involuntary disclosure of personal data, including details of members and donors violate the constitutional right to privacy.

The High Court affirmed that joining civil society networks, such as federations or umbrella associations, must remain voluntary, striking down the legal provisions imposing compulsory affiliation.

Background

The judgment came shortly after the Cabinet Secretary for Interior and National Administration extended the transition period for registration under the PBO Act from 13 May 2025 to 13 May 2026.

Fresh registration requirement and right to fair administrative action

One of the central issues raised concerned Paragraphs 5(1) and 5(2) of the Fifth Schedule to the PBO Act, which required all NGOs previously registered under the repealed NGO Coordination Act to apply afresh for registration as PBOs. The Petitioners argued that this requirement contravened their legitimate expectation of indefinite registration, which could only be canceled through due legal process. They contended that the provision effectively rendered existing NGOs noncompliant and stripped them of legal status arbitrarily, without individualized assessment or procedural safeguards. Additionally, they challenged the legitimacy of the PBO Regulatory Authority itself, arguing it was improperly constituted.

Agreeing with the Petitioners, the Court held that the requirement for fresh registration failed the constitutional test of fair administrative action. The requirement was found to be unjustified, unreasonable and procedurally unfair. Consequently, the Court declared Paragraphs 5(1) and 5(2) of the PBO Act to be null and void. The Court further ordered that all NGOs previously registered be automatically and unconditionally transitioned to PBOs.

Privacy versus public accountability

The Petitioners also challenged Section 32 of the PBO Act, which mandates annual reporting by PBOs, including financial statements, donor lists and personal details of officials, contending that this level of disclosure infringed on the right to privacy. The PBO Authority argued that such transparency was necessary to prevent financial crimes such as money laundering.

While the Court affirmed the legitimacy of requiring audited accounts and financial disclosures, it held that the provision lacked safeguards to protect personal data and unnecessarily exposed private information. The Court declared Section 32 unconstitutional to the extent it compels PBOs to disclose personal information of their members, donors or beneficiaries or other private affairs without sufficient safeguards or justification.

Board composition and quasi-judicial impartiality

Concerns were also raised over the composition of the PBO Authority's Board, which comprises members appointed solely by the Cabinet Secretary. The Petitioners argued that this undermined the Authority's independence and impartiality in its quasi-judicial functions. The Court agreed, finding that the current structure compromised constitutional expectations of independence.

Judicial independence and appointment of Tribunal members

Section 50 of the Act was challenged on grounds that it permitted the appointment of members to the PBO Disputes Tribunal without the involvement of the Judicial Service Commission (JSC). The Court ruled that this provision infringed on judicial independence and the exclusive constitutional mandate of the JSC in matters relating to judicial officer appointments.

Freedom of association: Federation membership and self-regulation forums

The Petitioners had also contended that Sections 21(1) and 21(9) create an impression of mandatory membership, implying that all PBOs must join or operate under the jurisdiction of the National Federation of PBO's. The Court held that these provisions are to be read as permissive rather than mandatory as they offend the freedom of association. Membership in the federation is therefore strictly voluntary.

The Petitioners also challenged the constitutionality of Section 23(2) of the PBO Act which provides that only self-regulation forums representing a "significant number" of PBOs, as prescribed by the Cabinet Secretary, shall be recognized by the PBO Authority. They argued that the term "significant number" is undefined and vague and granted the Cabinet Secretary broad power to set an arbitrary threshold. The Court agreed that Section 23(2) of the PBO Act unjustifiably limits PBOs' freedom of association and allows the state to dictate which associations of PBOs are worthy of formal existence, which is antithetical to an "open and democratic society."

Suspension and deregistration processes

Finally, the Court examined Sections 18(1)(3) and 19(1)(b), which give the PBO Authority to suspend or deregister organizations for breaching their own constitutions. Petitioners argued that this placed disproportionate power in the Authority's hands, particularly because the process was limited to written representations, with no right to a hearing or to challenge evidence. The Court was persuaded that this framework lacked procedural fairness and independence, allowing deregistration even for minor internal breaches such as delayed annual general meetings. The Court concluded that these provisions enabled arbitrary interference in internal governance and violated Article 36(3)(a) of the Constitution, which protects organizations from unjustified withdrawal of registration.

Orders issued by the Court

The High Court issued several declaratory and mandatory orders in favor of the Petitioners:

1. Paragraphs 5(1) and 5(2) of the Fifth Schedule were declared unconstitutional for infringing constitutional rights, affirming that PBOs previously registered under the repealed NGO Coordination Act are not required to reapply under the PBO Act.
2. An order was issued compelling the PBO Authority to automatically transition and register all NGOs existing as of 14 May 2024 under the PBO Act, without requiring fresh applications.
3. Section 32 of the PBO Act was declared unconstitutional to the extent that it mandates disclosure of personal information relating to members, donors, beneficiaries or other private affairs, without adequate safeguards or compelling justification.
4. The existing structure and appointment process of the PBO Authority Board, including its transitional arrangements, were found to be unconstitutional and declared void.
5. Sections 50(1), 50(5) and 50(6)(c), governing the composition of the PBO Disputes Tribunal, were held to violate the Constitution for undermining institutional independence.
6. Sections 21(1) and 21(9) of the PBO Act were declared unconstitutional to the extent they purport to impose mandatory membership or jurisdiction under the National Federation of Public Benefit Organizations, contrary to the freedom of association guaranteed under the Constitution.

Next Steps

Unless the decision is successfully appealed, NGOs that have not complied with the reregistration requirement under the PBO Act need not do so; their continued legal status is preserved. Further, public benefit organizations retain the autonomy to decide whether to affiliate with the National Federation of Public Benefit Organizations, with no legal obligation to join. Finally, PBOs are not required to disclose personal data of members, donors, or beneficiaries where such disclosure would unjustifiably infringe on the right to privacy.

Additionally, in light of the Court's findings, it is anticipated that amendments to the PBO Act will be necessary to preserve constitutional alignment. The legislative review likely will include the composition and appointment process of the PBO Authority Board to ensure institutional independence, as well as reforms to Section 50 to safeguard the constitutional role of the Judicial Service Commission in appointing members of the Disputes Tribunal. The goals of these reforms will include not only reinforcing the legitimacy of the regulatory framework but also fostering institutional trust and compliance across the sector.