[2022] KECA 1212 (KLR)
The application was dismissed due to the non-appearance of the applicant at the hearing. The court found that, since the applicant was not present to confirm the state of affairs or prosecute its application, and given that the society had already been placed under receivership as submitted by the respondents, there...
Source-derived case information.
- Citation
- [2022] KECA 1212 (KLR)
- Parties
- Applicant: Kaaga Farmers Cooperative Society; Respondent: Commissioner of Cooperatives; Respondent: Industrialization and Co-operative Development; Interested Party: Daniel Githiora Gatua; Interested Party: Grace Wangui Mwaura; Interested Party: Francis Gathu Ngure; Interested Party: Daniel Muthee Mwangi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 17 of 2016
- Procedural Posture
- Civil Application / Ruling on Application for Injunction and Stay Pending Appeal
- Outcome
- application dismissed for non-appearance with costs
- Judges
- HA Omondi, KI Laibuta, PM Gachoka
- Legal Topics
- Injunctions, Stay of Execution, Cooperative Societies Liquidation, Judicial Review, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaaga Farmers Cooperative Society
Applicant
Commissioner of Cooperatives
Respondent
Industrialization and Co-operative Development
Respondent
Daniel Githiora Gatua
Interested Party
Grace Wangui Mwaura
Interested Party
Francis Gathu Ngure
Interested Party
Daniel Muthee Mwangi
Interested Party
Procedural Posture
Civil Application / Ruling on Application for Injunction and Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an injunction restraining the 1st respondent from proceeding with liquidation as per the Gazette Notice.
- 2 Whether an order of stay of execution of the Co-operative Tribunal orders should issue pending appeal.
- 3 Whether non-appearance of the applicant warrants dismissal of the application.
Ratio Decidendi
The application was dismissed due to the non-appearance of the applicant at the hearing. The court found that, since the applicant was not present to confirm the state of affairs or prosecute its application, and given that the society had already been placed under receivership as submitted by the respondents, there was no basis to grant the orders sought. The only natural consequence in such circumstances is to dismiss the application for non-appearance with costs.
Court Disposition
application dismissed for non-appearance with costs
Orders
- The application dated January 21, 2016 is dismissed for non-appearance with costs.
Full Case Text
Judgment text and source record
32 paragraphs
Kaaga Farmers Cooperative Society v Commissioner of Cooperatives & another; Gatua & 3 others (Interested Parties) (Civil Application 17 of 2016) [2022] KECA 1212 (KLR) (4 November 2022) (Ruling)
Neutral citation: [2022] KECA 1212 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application 17 of 2016
HA Omondi, KI Laibuta & PM Gachoka, JJA
November 4, 2022
Between
Kaaga Farmers Cooperative Society
Applicant
and
The Commissioner of Cooperatives
1st Respondent
Industrialization and Co-operative Development
2nd Respondent
and
Daniel Githiora Gatua
Interested Party
Grace Wangui Mwaura
Interested Party
Francis Gathu Ngure
Interested Party
Daniel Muthee Mwangi
Interested Party
(Being an application for injunction against the intended liquidation from the High Court of Kenya at Nairobi (G.V. Odunga, J.) dated 4{{^th}} December 2015 in Miscellaneous Application JR NO. 68 of 2015)
Ruling
1. The notice of motion dated January 21, 2016 is made pursuant to rules 5 and 42 of the Court of Appeal Rules, seeking: an order of injunction to issue, and directed to the 1st respondent, barring him/her from commencing, undertaking, or in any way proceeding with, the intended liquidation of the applicant herein ostensibly as intimated in the Gazette Notice published on September 5, 2015; and. in the alternative, an order of stay of execution of the Co-operative Tribunal orders dated March 14, 2014 given in Co-operative Tribunal Case No 234 of 2011 do issue.
2. The background to this matter is that the Commissioner of Co-operatives, by Kenya Gazette Notice of September 5, 2014, made a decision to dissolve the applicant society and place it on liquidation. This decision was challenged in the High Court in Judicial Review Application No 68 of 2015 through a notice of motion dated March 31, 2015.
3. On December 4, 2015, Odunga, J rendered a decision dismissing the prayers sought by the applicant. Aggrieved by the outcome, the applicant lodged the appeal herein, and also filed the notice of motion coming for hearing before us.
4. When the matter was called out this morning, learned counsel Mr Kariuki was present for the 1st respondent and learned Counsel Mr Kaburu was present for the 2nd respondent. The applicant, though duly served as confirmed by the hearing notice availed to us, was not present.
5. Mr Kariuki informed the court that the applicant society has already been placed under receivership, and that this might explain the nonattendance of the applicants. Mr Kaburu concurred with the sentiments. The applicant, not being present to confirm the state of affairs, then the only natural consequence is to dismiss the application dated January 21, 2016 for non- appearance with cost. Orders accordingly.
DATED AND DELIVERED AT NAIROBI, THIS 4TH DAY OF NOVEMBER, 2022. H. A. OMONDI..................................JUDGE OF APPEALDR. K. I. LAIBUTA..................................JUDGE OF APPEAL..................................M. GACHOKA – CI Arb, FCIARB..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR