https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9133

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT MISCELLANEOUS CIVIL CASE NO. E033 OF 2025** **JOHN KIRUGUMI MATHENGE ……………………………….APPLICANT** **VERSUS** **THE MANAGEMENT COMMITTEE THIRIKU COFFEE GROWERS** **CO-OP SOCIETY LIMITED AND THREE OTHERS….….RESPONDENT** **RULING** 1. Before this Court is the Notice of Motion dated **4th June 2025** by which the Applicant **JOHN KIRUGUMI MATHENGE** seeks the following orders:- **“1. SPENT.** **2. THAT this Honourable Court be pleased to reinstate the management committee in the office-prior to 16/9/2022 in conformity with the orders of the Tribunal.** **3. THAT the Respondent having willfully and without lawful cause disobeyed the Orders issued by this Honourable Court on 14th September 2023 be found to be in** **contempt of court.** **4. THAT the Defendant/Respondents do appear personally before this Honourable Court to show cause why they should not be punished for the Defendant/Respondent’s willful disobedience of the Orders issued by this Honourable Court on 14th September, 2023.** **5. THAT the O.C.S Nyeri Police Station be compelled to enforce the Orders of this Honourable Court as the O.C.S Ndugamano said she will not comply with the Orders.** **6. THAT this Honoruable Court be pleased to order that the Respondents immediately complies with the Orders made on 14th September, 2023.** **7. THAT the costs of this Application be borne by the Respondents.”** 2. The application was brought under **Section 5** of the **Judicature Act,** **Order 51 Rule 1 of the Civil Procedure Rules 2010** and all other enabling provisions of the law and was supported by the affidavit of even date sworn by the Applicant. 3. The 1st Respondent, **THE MANAGEMENT COMMITTEE OF** **THIRIKU COFFEE GROWERS CO-OPERATIVE SOCIETY LTD** and the 2nd Respondent **THE** **SUPERVSIORY COMMITTEE THIRIKU COFFEE GROWERS CO-OPERATIVE SOCIETY LTD** filed Grounds of Opposition dated **25th June 2025** as well as a Replying Affidavit dated **28th October 2025** arguing that the application filed by the Applicant was defective unmeritous and amounted to an abuse of court process. 4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated **10th December 2025** whilst the Respondents did not file any submissions. **BACKGROUND** 5. The applicant is a member of **Thiriku Coffee Growers Co-operative Society Limited** (hereinafter (the society). He goes on to aver in his Supporting affidavit as follows:- **(a) THAT the Society called for elections of members of** **committees through the notice of the 2022 Annual General Meeting dated 1/9/2022 issued by the previous chairperson.** **(b) THAT from the Notice issued, it was a requirement** **for any prospective candidate to have attained a minimum of K.C.S.E level education and should have submitted their application to the District Co-operative Officer (D.C.O) Tetu Sub-County not later than 14th September, 2022.** **(c) THAT however, on 16/9/2022 the D.C.O Tetu Sub-** **County went ahead to preside over the elections without ascertaining whether the prospective candidates were eligible to be members of the committee and whether they had submitted their applications to him as per the requirements of the Notice.** **(d) THAT on 29th September, 2022 the Applicant filed a** **notice of motion praying the Honourable Court to regulate the conduct of the respondents herein so that they wouldn’t jeopardize the entire society and that the Honourable Court orders that all elected members do proof their eligibility by submitting all the requirements as provided under article 33 of** **the society’s by-laws.** **(e) THAT on 31/8/2023, the Honourable Court entered** **a judgment and issued a decree and ordering that the respondent’s election held on 16/9/2022 were null and void for flouting society’s by-laws.** **(f) THAT on 29/9/2023 the Applicant forwarded the** **said copies of Decree** **and Certificate of costs dated 14/9/2023 to the Respondents via letters dated 21/9/2023.** **(g) THAT the Respondents herein have refused and/or** **declined to effect the Orders of the Decree of Court** **dated 14th September 2023 which includes the** **Certificate of Stated Costs granted to myself at the** **tune of Kshs. 119,300/=.** **(h) THAT in pursuit of the respondents herein for** **contempt of valid court order, I wish to further state** **that they have continued to illegally be in office and** **have been in furtherance of abuse of Court by perpetrating malice against the competent members including the former legitimate officials including the Chairman. One CYRUS KAROKI WAIGANJO irregularly and with malicious intent to defraud.** 1. **THAT despite the above matter being brought to the attention to the society, it fell on deaf ears and further reference of the issue to the D.C.C Tetu Sub-County in a letter dated 30th July 2023 went unattended.** **(j) THAT the Respondents herein have ignored and/or** **rubbished the competent Decree Issued by Court with impunity as the intervention even by the Legal Office for the Society M/S GRACE N. MAINA ADVOCATE to have the decree effected.** **(k) THAT later the society using the services of M/S** **MUTHONI MUHORO & CO-ADVOCATES blatantly and without justifiable reasons dismissed the Decree of court on the ground of unenforced ability** **through a letter dated 5th October 2023.** **(l) THAT in implementation of the orders of and Decree** **of Court, the substantive Chairman, one CYRSUS KAROKI WAIGANJO informed the** **irregularly in office officials and the Respondents herein of his assumption of office and invitation of the board meeting to fix date for the election, maintenance of status quo and other preparations. The same fell on deaf ears and was not implemented.** **(m) THAT in reply to the above-mentioned letter, M/S** **MUTHONI MUHORO & ASSOCIATES acting under the instructions of incompetent in office Respondents purported to forcefully evict and/or expel the substantive Chairman one CYRUS KAROKI WAIGANJO from membership register irregularly via a letter dated 11th October 2023.** **(n) THAT in October 17th 2023, the continue disregard of the Court Decree is evidenced by the calling of** **special General Meeting (SM) by persons illegally** **in office.** **(o) THAT the orders sought for in any Application if** **granted to do not in way pose any threat of prejudice to the Respondents and that issuance of interim orders of eviction from Office against the respondents pending the hearing** **and determination of this suit shall be in the interests of justice.** **(p) THAT the prayers sought in the instance Application are extremely necessary so as to safeguard this Honourable Court’s Orders and prevent the Respondent from denying the Applicant from enjoying the fruits of this Honourable Orders.** **(q) THAT unless the orders sought are granted, this Court’s orders will continue to be blatantly abused and/or disregarded by the Defendant.** **(r) THAT in balancing the interests of the parties herein, the scale tilts in my favour and as such I** **pray that my application be allowed as prayed.** 6. In the Replying Affidavit dated **28th October 2025** the 1st and 2nd Respondents averred as follows:- **(a) THAT it is true that the claimant/applicant moved the co-operative tribunal vide a notice of motion dated 28th September 2022.** **(b) THAT while the tribunal pronounced itself on the 31st August 2023, the hearing and submissions were heard and put in as early as 23rd January 2023.** **(c) THAT the application that is before this Honourable court is in incurable, defective, unmeritorious and an abuse of court process.** **(d) THAT there is no proof of service purported order in question on any of the said respondents.** **(e) THAT the said orders were never extracted nor served upon the 1st and 2nd respondents herein.** **(f) THAT without prejudice the orders as issued on or about the 14th September 2023 were to be implemented within a strict span and or period of 60 days.** **(g) THAT the orders issued on the 14th September 2023** **have since become stale.** **(h) THAT the current application is res judicata in view of similar facts and prayers in High Court of Kenya at Nyeri Misc. Case No. E046 of 2023 in which the matter was withdrawn with costs of Kshs. 35,000.** **(i) THAT the application has been filed after an inordinate delay.** **(j) THAT before 31st August 2023, Thiriku farmers’ co-operative society limited called for an AGM, as is mandatory on a yearly basis in which they elected new officials for the management and supervisory committees that is on the 5th April 2023.** 7. The only issue for determination is whether the prayer to hold the Respondents in contempt of court has merit. **Section 5** of the **Judicature Act Cap 8, Laws of Kenya** provides as follows:- **“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the** **authority and dignity of subordinate courts.”** 8. The procedure to be followed is that set out in **Orders 45 and 53** of the Supreme Court of England Rules. Under **Order 45 rule 5** of the Supreme Court Rules the application for contempt should be preceded by an application for leave. The application for leave is ex-parte and it takes the form of a Chamber Summons supported by a statutory statement and a verifying affidavit. Once leave is granted the substantive application should be filed within 21 days, taking the form of a Notice of Motion. 9. The Applicant herein did not follow the correct procedure as he did not seek leave to bring contempt proceedings. The court is mindful of the provisions of **Article 159(1) (d)** of the **Constitution of Kenya**, however this provision cannot be used as an excuse to ignore statutory procedure. 10. Procedure it is said is the handmaiden of Justice. In **MUMO MATEMU** **-VS- TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 Others [2012] eKLR** the court stated as follows:- **“In our view it is a misconception to claim, as it has been in recent times with increased frequency, that compliance with rules of procedure is antiethical to Article 159 of the constitution** **and the overriding objective principle under Section 1A and 1B of the Civil Procedure Act (Cap 21) and Section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also handmaiden of just determination of cases” [Own emphasis]** 11. Similarly in the case of **MOSES MWICIGI & Others -vs- IEBC & Others [2017] eKLR** the Supreme Court of Kenya observed as follows **“This Court has on a number of occasions remarked upon the importance of rules of procedure in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of a mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the court would not hesitate to declare the attendant pleadings incompetent.”** 12. I find that the Applicant failed to follow procedure as required by **Order 45 and 53** in seeking leave to file an application for contempt. Accordingly the application dated **4th June 2025** is incompetent and is hereby struck out. Costs to be met by the Applicant. **Dated in Nyeri this 29th day of June 2026.** **………………………..** **MAUREEN A. ODERO** **JUDGE**