[2018] KEHC 3925 (KLR)
The court held that the dispute, though framed as a constitutional and human rights petition, fundamentally concerns the management and business of a co-operative society. Such disputes fall within the exclusive jurisdiction of the Co-operative Tribunal as established by the Co-operative Societies Act. The High...
Source-derived case information.
- Citation
- [2018] KEHC 3925 (KLR)
- Parties
- Applicant: Kangiri Farmers Co-operative Society Ltd; Respondent: Attorney General; Respondent: Murang’a County Co-operative Commissioner; Respondent: Edward Maina; Respondent: County Government of Murang’a; Respondent: James Kibugu; Respondent: William Waweru Hezron; Respondent: Peter Waweru Gichia; Respondent: John Mwangi; Respondent: Peterson Maina Njoroge; Respondent: Lincoln Macua; Respondent: Billy Gichuki; Respondent: Kaihura Karanja
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 48 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Jurisdiction/preliminary Objection
- Outcome
- petition struck out for want of jurisdiction, with liberty to file before the Co-operative Tribunal; no order as to costs
- Judges
- K Kimondo
- Legal Topics
- Jurisdiction of High Court, Cooperative Societies Disputes, Striking Out Petitions, Forum Selection, Constitutional Petitions, Management of Societies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kangiri Farmers Co-operative Society Ltd
Applicant
Attorney General
Respondent
Murang’a County Co-operative Commissioner
Respondent
Edward Maina
Respondent
County Government of Murang’a
Respondent
James Kibugu
Respondent
William Waweru Hezron
Respondent
Peter Waweru Gichia
Respondent
John Mwangi
Respondent
Peterson Maina Njoroge
Respondent
Lincoln Macua
Respondent
Billy Gichuki
Respondent
Kaihura Karanja
Respondent
Procedural Posture
Constitutional Petition / Ruling on Jurisdiction/preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear disputes relating to the management and business of a co-operative society presented as a constitutional petition.
- 2 Whether the dispute should first be determined by the Co-operative Tribunal under the Co-operative Societies Act.
Ratio Decidendi
The court held that the dispute, though framed as a constitutional and human rights petition, fundamentally concerns the management and business of a co-operative society. Such disputes fall within the exclusive jurisdiction of the Co-operative Tribunal as established by the Co-operative Societies Act. The High Court, therefore, lacks original jurisdiction to entertain the matter at this stage. The proper procedure is for the aggrieved party to first seek redress before the Tribunal, with a right of appeal to the High Court. Accordingly, the petition was struck out suo motu for want of jurisdiction, but the petitioner was granted leave to file the dispute before the appropriate forum.
Court Disposition
petition struck out for want of jurisdiction, with liberty to file before the Co-operative Tribunal; no order as to costs
Orders
- The petition is struck out suo motu for want of jurisdiction.
- The petitioner is granted leave to lodge the dispute in the Co-operative Tribunal.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CONSTITUTIONAL PETITION NO. 48 OF 2018
KANGIRI FARMERS CO-OPERATIVE SOCIETY LTD…....................…..PETITIONER
VERSUS
ATTORNEY GENERAL……..……………………..…..….……............1ST RESPONDENT
MURANG’A COUNTY CO-OPERATIVE COMMMISSIONER.…..2ND RESPONDENT
EDWARD MAINA……………………………………………...……….3RD RESPONDENT
COUNTY GOVERNMENT OF MURANG’A…….........................…..4TH RESPONDENT
JAMES KIBUGU……………………..................................................…5TH RESPONDENT
WILLIAM WAWERU HEZRON……..............................................….6TH RESPONDENT
PETER WAWERU GICHIA...................................................................7TH RESPONDENT
JOHN MWANGI…….............................................................................8TH RESPONDENT
PETERSON MAINA NJOROGE….....................................................9TH RESPONDENT
LINCOLN MACUA.............................................................................10TH RESPONDENT
BILLY GICHUKI.................................................................................11TH RESPONDENT
KAIHURA KARANJA........................................................................12TH RESPONDENT
RULING
1. The dispute relates to the business and management of a co-operative society. But it has been presented as a constitutional and human rights petition.
2. I thus asked the parties to first address me on the question of jurisdiction.
3. Kangiri Farmers Co-operative Society Limited (hereafter the society) is registered under the Co-operative Societies Act. Two factions of its members are fighting over the control of the society.
4. It is alleged that the 5th to 12th respondents have attempted to remove the management committee from office unlawfully; or, without complying with the bye-laws or the Co-operative Societies Rules. It is alleged further that the 5th respondent has stationed armed hoodlums outside the premises of the society; and, prevented the Chairman and the Treasurer of the society from accessing their offices.
5. The petitioner contends that the 5th respondent has tacit support of the 3rd and 4th respondents or other agents who are hostile to the current management of the society.
6. Furthermore, there is a disputed special general meeting of the society held on 9th August 2018 which was supervised by the 2nd respondent. The petitioner’s case is that the meeting did not raise the two thirds quorum required by the bye-laws or the Co-operative Societies Rules.
7. Although the petitioner seeks declarations that the respondents have violated Articles 2, 10, 19, 27, 36, 40, 232 and 260 of the Constitution, the principal reliefs sought are in prayers (vii) to (x) of the petition to wit: apermanent injunction to restrain the 3rd to 12th respondents from entering the offices of the society at Loc. 18/Gachocho/2123; a permanent injunction to restrain those respondents from interfering in the management or business of the society; or, molesting or intimidating the employees of the society; and, lastly, an order to remove the panga wielding gangs from the society’s premises.
8. It is not disputed that the 5th to 12th respondents are members of the society. It is also pleaded that the 2nd, 3rd and 4th respondents are acting at the behest or as agents of one of the belligerent faction of members.
9. I cannot comment on the merits of the action at this stage. But it is clear to me that the petition and reliefs sought revolve around the business and management of the co-operative society. However the action is camouflaged as a constitutional and human rights petition. It is a dispute that, in the first instance, belongs to the Co-operative Tribunal formed under the Co-operative Societies Act. Any aggrieved party would then be entitled to an appeal to the High Court under section 81 of the Act.
10. Jurisdiction is everything. SeeOwners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited[1989] KLR 1.
11. I thus strike out the petition suo motu but with leave to the petitioner to lodge the dispute in the Co-operative Tribunal.
12. In the interests of justice, I order that each party shall bear its own costs.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’Athis 2nd day of October 2018.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
Mr. Chege holding brief for Dr. Kamau Kuria for the petitioner instructed by Kamau Kuria & Company Advocates.
No appearance by the 1st to 12th respondents.
Ms. Dorcas and Ms. Elizabeth, Court Clerks.