[2023] KEHC 26959 (KLR)

Imarisha Sacco Society Ltd v Co-operative Society Tribunal; Geofrey & another (Interested Parties) (Judicial Review 12 of 2023) [2023] KEHC 26959 (KLR) (Judicial Review) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26959 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review 12 of 2023

JM Chigiti, J

December 1, 2023

Between

Imarisha Sacco Society Ltd

Exparte Applicant

and

Co-Operative Society Tribunal

Respondent

and

Kiprotich Korir Geofrey

Interested Party

Paul Kipngetich Langat

Interested Party

Ruling

1. The Application That is before this court is the Chamber Summons Application dated 28th September, 2023 wherein the Applicant seeks the following Orders: -1. That this matter be certified urgent and be heard Ex parte in the First Instance.2. That leave be granted to the Exparte Applicant herein, The Board Of Directors Imarisha Sacco Soceity Ltd to file a Judicial Review Application (Notice of motion) for an Order of Certiorari, to bring into his court to quash the ruling/decision of the Co-operative Societies Tribunal dated 27th April, 2023 for quashing.3. That leave be issued to the Ex parte Applicant to make an Application for an order of Prohibation do issue prohibiting the Co-operative Societies Tribunal from further proceedings in the hearing of Dispute No. 130 of 2018. 4.That orders granted in terms of prayers 3 and 4 above do operate as Stay.5. The court be pleased to give such orders as it may deem fit to meet the interest of justice.6. Costs of this Application be provided for.

2. The Application is supported by the Statutory Statement and verifying Affidavit sworn by its CEO, one Mathew Rotich on 28th September, 2023.

3. It is the Applicants case That the Co-operative Society Tribunal had initially ordered the Interested parties herein to avail all the documents in their possession in the original form for inspection and verification by the Ex-parte Applicant and its advocates.

4. Later the tribunal contradicted itself by directing That the matter does proceed to full hearing, notwithstanding its initial decision.

5. According to the Applicant the following issues call for the courts determination: -i.Whether the Respondent proceeded on a sound basis of law in directing That the matter be heard, notwithstanding the production of original documents for inspection and verification.ii.Whether the matter could go to full hearing without filing and effecting summons to enter appearance.

6. It is the Applicant’s submission That inspection of the original document, and authentication of its sources was crucial in enabling the Ex-parte Applicant to conduct effective cross-examination which amounts to procedural irregularity.

7. The jurisdiction of the Respondent is based on its authority to issue summons. As it is, the Interested Parties did not prepare and lodge summons. Summons were never effected on the Ex-parte Applicant.

8. The Ex-parte Applicant is not obliged or under any duty to file a Defence in the absence of Summons given That the Tribunal Rules of Procedure makes service of Summons mandatory.

9. According to Rule 10 of the Co-operative Tribunal (Practice and Procedure) Rules, 2009 Cap 490 makes it mandatory to file and serve summons, alongside the verifying Affidavit and Memorandum of Claim. This was not done.

The Interested Parties case 10. Kiprotich Korir Geoffrey the 1st Interested Party herein brought to the attention of the court numerous documents being a letter from Kenya Revenue Authority, (KRA) addressed to Chief Executive Officer, (CEO) of Sacco Societies Regulatory Authority, (SASRA) and copied to us in reference to our complaint letter to KRA over misappropriation of Imarisha Sacco Society Ltd members' funds, a copy of management letter from external auditor, Langat & Associates, note 6. , highlighting the payment of Ksh.3. 5 million and Ksh.7. 5 million, Letters to the ex parte informing them That the external auditor gave a qualified Audit Report and the other letter is requesting them to be furnished with the documents which were not availed to the external auditor.

11. Which he says he is not the holders of original documents and such could be verified with KRA, SASRA and Langat & Associates being the makers of the documents by leave of the court.

12. He also made reference to extracts of the Ex parte’s Balance sheet and public documents displayed during the Annual General Meetings as per Cooperative Societies Act 490.

13. It is his case That copies of the originals are certified and stamped by SASRA, being the regulator before publication and incase the Ex parte Applicant has misplaced the originals, it can request to verify the same with SASRA.

14. He referred to copies of External auditor's reports addressed to Imarisha Sacco Ltd members and That Chumo & Associates being the makers are custodians of the originals and copies of job advertisements for the positions of Chief Executive Officer and Deputy Chief Executive officer, where several copies were made inviting interested persons to apply. The current CEO is a product of this advert and requesting to verify the original is not being genuine and copies of Co-operative Bank Ltd's statements and same copies were produced by Mathew Rotich and marked MR11 confirming payment of Ksh. 2. 5 million made to Mathew Rotich.

15. The other statement indicates payment of Ksh.1,128,000/= to former CEO, Paul Sigei, while at a function in Mombasa as claimed by the current CEO, Mathew Rotich and admits That the payment was made as per their clause 32 of their replying affidavit dated 12/06/2018.

16. The originals can be verified from the makers of the Statements, Co-operative Bank Ltd.

17. ‘KKG 13’, a letter from Kipkorir Tele & Kitur Advocates addressed to legal manager, Co-operative bank of Kenya Ltd is the same copy filed by Mathew Rotich, marked ‘MR4’ in their replying affidavit dated 12/06/2018 inter alia.

Analysis and determination: 18. The requirement to seek for leave to file for judicial review orders is provided for under Order 53 Rule 1 of the Civil Procedure Rules which stipulates under mandatory terms That no Application for an order of Certiorari, Mandamus or Prohibition shall be made unless leave therefore has been granted in accordance with the rule.

19. In IRC V National Federation of Self-Employed and Small Businesses Ltd (1982) 617, (1981) 2 ALL ER 93 Lord Diplock explained the need for leave as follows:“Its purpose is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

20. It would therefore appear That the reasons for leave are therefore two-fold and That is number one to save the court’s time and, two, so as not to leave public authorities in a state of uncertainty as to whether they can safely proceed with their operations.

21. In the same case, Lord Scarman saw the need for leave as ‘an essential protection against abuse of legal process’. In his words, “it enables the court to prevent abuse by busybodies, cranks and other mischief makers”. (see pages 653 and 113).

22. On his part, Woolf LJ referred to the need for leave, in the same case, as ‘the unique statutory means by which the court can protect itself against abuse of judicial review’.

23. In order to avoid from delving into the merits of the case, Lord Diplock, in IRC V National Federation of Self-Employed and Small Businesses Ltd (supra) suggested the following approach:“If, on a quick perusal of the material then available, the court thinks the Application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for That relief.”

24. Thus, on this basis, the applicant only has to show not That it is, but That it might turn out to be, an arguable case.

25. The question of whether a case is arguable or not may occasionally require some questioning on the case's merits, but this type of questioning won't go far enough to determine whether the case will win or fail. The questioning will be severely constrained or limited, only going as far as is required to decide whether the matter can be argued, and nothing beyond. It is from this perspective That I will consider the applicant’s Application.

26. On a quick perusal of the material then available, the court thinks the Application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the leave sought.

27. Without getting into merits which this court must not do at this stage, I am satisfied That the Application brings out issues around the right to fair hearing under The Fair Administrative Action Act That calls for a deeper analysis which no doubt must be heard at the subsequent stage within Order 53 of the Civil Procedure Act.

28. In my reasoning not to delve into the merits of the case which is what the Interested Party seems to be inviting me to do, I believe That parties have not lost their opportunity to ventilate their respective cases.

Disposition: 29. The Applicant has made out a prima face case as a result of which leave to institute Judicial review proceedings do issue and I so hold.

Order: 1. The Application is allowed.

2. Leave is hereby granted in terms of prayer 2 and 3 of the Chamber Summons dated 28. 9.23.

3. The leave shall operate as a stay in terms of prayer 4.

4. The motion shall be filed and served within three days of today’s date.

5. The Respondents and interested parties shall file and serve their responses within 14 days of the date of service of the applicant's Motion.

6. The Applicant shall thereafter file and serve its submissions within 14 days of the date of service.

7. The Respondent and Interested Parties shall file and serve their submissions within 14 days thereafter.

8. The matter shall be mentioned on 31. 1.2024 with the view to securing a judgment date.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023………………………………J. CHIGITI (SC)JUDGE