[2009] KEHC 1896 (KLR)
The court found that the applicants had filed the required verifying affidavit and statement with the Notice to the Registrar, thus the application was not defective. The existence of an alternative remedy under the Cooperative Societies Act did not automatically bar the applicants from seeking judicial review, as...
Source-derived case information.
- Citation
- [2009] KEHC 1896 (KLR)
- Parties
- Applicant: Boniface Ndui; Applicant: Jonathan Mweu Ndonye; Applicant: Raphael Wambua Mainga; Applicant: Issac Makau Mutua; Applicant: Joseph Mutisya Kaluvyu; Applicant: John Munyao Muindi; Applicant: John Kithuka Daudi; Applicant: Jones Mutuku Mwele; Applicant: Henry Musembi; Applicant: Stephen Nzioka Ngati; Respondent: Franklin Maina; Respondent: Jane Njuguna; Respondent: Commissioner for Co-operative Development; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 148 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Judicial Review and Stay Orders
- Outcome
- Leave granted to file judicial review proceedings; stay of implementation of inquiry report granted.
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Alternative Remedy, Leave to Apply, Cooperative Societies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Ndui
Applicant
Jonathan Mweu Ndonye
Applicant
Raphael Wambua Mainga
Applicant
Issac Makau Mutua
Applicant
Joseph Mutisya Kaluvyu
Applicant
John Munyao Muindi
Applicant
John Kithuka Daudi
Applicant
Jones Mutuku Mwele
Applicant
Henry Musembi
Applicant
Stephen Nzioka Ngati
Applicant
Franklin Maina
Respondent
Jane Njuguna
Respondent
Commissioner for Co-operative Development
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Judicial Review and Stay Orders
Legal Issues
- 1 Whether the applicants are entitled to leave to commence judicial review proceedings for certiorari and prohibition against the Commissioner for Co-operative Development.
- 2 Whether the application is fatally defective for lack of a statement and verifying affidavit.
- 3 Whether the existence of an alternative remedy under the Cooperative Societies Act bars judicial review proceedings.
Ratio Decidendi
The court found that the applicants had filed the required verifying affidavit and statement with the Notice to the Registrar, thus the application was not defective. The existence of an alternative remedy under the Cooperative Societies Act did not automatically bar the applicants from seeking judicial review, as each case must be considered on its own facts. The applicants demonstrated an arguable case warranting the grant of leave to commence judicial review proceedings. The court further held that if stay orders were not granted, the applicants would suffer substantial loss, justifying the grant of a stay pending the hearing and determination of the substantive motion.
Court Disposition
Leave granted to file judicial review proceedings; stay of implementation of inquiry report granted.
Orders
- Leave is granted to the applicants to file judicial review proceedings for certiorari and prohibition as requested. The Notice of Motion will be filed within 21 days from the date of the ruling.
- The grant of leave will operate as a stay of the implementation of the recommendations of the inquiry report until 22/7/2009 unless varied or extended by the court.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS APPLICATION 148 OF 2009
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PROCEEDINGS IN THE NATURE OF CERTIORARI & PROHIBITION AGAINST THE COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT BY BONIFACE NDUI, JONATHAN MWEU NDONYE, RAPHAEL WAMBUA MAINGA, ISAAC MAKAU MUTUA, JOSEPH MUTISYA KALUVYU, JOHN MUNYAO MUINDI, JOHN KITHUKA DAUDI, JONES MUTUKU MWELE, HENRY MUSEMBI AND STEPHEN NZIOKA NGATI
AND
IN THE MATTER OF LAW REFORM ACT
AND
IN THE MATTER OF COOPERATIVE SOCIETIES ACT NO. 12 OF 1997
AS AMMENDED BY ACT NO. 2 OF 2004
BETWEEN
1. BONIFACE NDUI
2. JONATHAN MWEU NDONYE
3. RAPHAEL WAMBUA MAINGA
4. ISSAC MAKAU MUTUA
5. JOSEPH MUTISYA KALUVYU
6. JOHN MUNYAO MUINDI
7. JOHN KITHUKA DAUDI
8. JONES MUTUKU MWELE
9. HENRY MUSEMBI
10. STEPHEN NZIOKA NGATI…………………...……. APPLICANTS
V E R S U S
1. FRANKLIN MAINA
2. JANE NJUGUNA
3. COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT
4. THE HON. ATTORNEY GENERAL.....................RESPONDENTS
R U L I N G
Before me is a Chamber Summons dated 12th March, 2009 filed by Timothy Mulekyo advocate for the applicants, who are 10 in number. The application was filed under Order 53 rule 1, 2, 3 and 4 of the Civil Procedure Rules and section 3 and 3A of the Civil Procedure Act. The orders sought are that-
1. This Court be pleased to grant leave to theApplicants to commence judicial review proceedings for-
(a) An order of certiorari to quash the findings of the inquiry report on Mbilini Farmers Cooperative Society Limited(CS/No. 0798)to surcharge the applicants.
(b) An order of prohibition directed to the 3rd respondent prohibiting him or anyone else acting under his authority from surcharging or taking any adverse actions against the Applicant on the basis of the inquiry report on Mbilini Cooperative Society Limited.
2. The grant of leave do operate as a stay on the implementation of the recommendations of the inquiry report on Mbiuni Farmers Cooperative Society Limited (CS/NO. 0798) by the 3rd respondent.
3. Costs of this application be provided for.
The application was filed with a supporting affidavit sworn by STEPHEN NZIOKA NGALI, one of the applicants on 12th March, 2009. It was deponed in the said affidavit, inter alia, that the 1st and 2nd respondents handed over a report to the 3rd respondent; that in the said report several adverse findings were made against the applicants and in particular there was a recommendation for surcharge of a total of Kshs.353,000/=; that the 3rd respondent wrote to the applicants to show cause within 14 days why they should not be surcharged a total of Kshs.353,000/=.
At the hearing Mr. Mulekyo appeared for the applicants while Mr. Abuta appeared for the respondents. The respondents’ counsel argued that the application was fatally defective as it was not filed with a STATEMENT and VERIFYING AFFIDAVIT. Counsel contended that they were not served with the subject documents. Secondly, counsel argued that there was existing procedure under the Cooperative Societies Act (Cap. 490) for appeal, which should have been followed instead of filing judicial review proceedings.
Having considered the application and submissions of both counsel, I find that a verifying affidavit and statement were filed with the Notice to the Registrar. Therefore, in my view, there is no defect with regard to those two documents.
In my view also, the availability of an alternative remedy, per se, is no bar to judicial review proceedings. Each case has to be considered on its own facts.
As for the merits, I find that the applicants have demonstrated an arguable case. I will grant leave to file judicial review proceedings.
I have been requested to grant stay orders. In my view, if stay orders are not granted, the applicants stand to suffer substantial loss. I will therefore grant stay.
Consequently, I order as follows-
1. Leave is granted to the applicants to file judicial review proceedings for certiorari and prohibition as requested. The Notice of Motion will be filed within 21 days form today.
2. The grant of leave herein will operate as a stayas requested until 22/7/2009 unless varied or extended by this court.
3. Mention on 22/7/2009.
Dated and delivered at Nairobi this 18th day of June, 2009.
George Dulu
Judge.