[2019] KEHC 10587 (KLR)
The High Court lacks jurisdiction to entertain the petition as the core dispute concerns business and contractual obligations between co-operative societies, which are statutorily mandated to be resolved by the Co-operative Tribunal under the Co-operative Societies Act. The petition, though framed as a...
Source-derived case information.
- Citation
- [2019] KEHC 10587 (KLR)
- Parties
- Applicant: Kariua Farmers Co-operative Society Ltd; Respondent: Commissioner for Co-operative Development; Respondent: Commissioner for Co-operative Development Murang’a County; Interested Party: Mumathi Staff Savings & Credit Co-operative Society Ltd
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Petition 49 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Jurisdiction and Preliminary Objection
- Outcome
- Petition struck out for want of jurisdiction, with liberty to ventilate the dispute before the Co-operative Tribunal. Each party to bear its own costs.
- Judges
- K Kimondo
- Legal Topics
- Cooperative Societies Disputes, Jurisdiction of Tribunals, Agency Notices, Constitutional Petitions, Remedies Certiorari
- 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
Kariua Farmers Co-operative Society Ltd
Applicant
Commissioner for Co-operative Development
Respondent
Commissioner for Co-operative Development Murang’a County
Respondent
Mumathi Staff Savings & Credit Co-operative Society Ltd
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Jurisdiction and Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear a dispute between co-operative societies regarding agency notices and remittance of deductions.
- 2 Whether the dispute should first be ventilated before the Co-operative Tribunal under the Co-operative Societies Act.
- 3 Whether the petition raises genuine constitutional issues or is a contractual/commercial dispute disguised as a constitutional petition.
Ratio Decidendi
The High Court lacks jurisdiction to entertain the petition as the core dispute concerns business and contractual obligations between co-operative societies, which are statutorily mandated to be resolved by the Co-operative Tribunal under the Co-operative Societies Act. The petition, though framed as a constitutional matter, is in substance a commercial dispute regarding the validity of agency notices and remittance of deductions. The parties are already litigating the same subject matter before the Tribunal, and any aggrieved party has a right of appeal to the High Court only after the Tribunal’s determination. Accordingly, the petition is struck out for want of jurisdiction, with...
Court Disposition
Petition struck out for want of jurisdiction, with liberty to ventilate the dispute before the Co-operative Tribunal. Each party to bear its own costs.
Orders
- The petition is struck out suo motu for want of jurisdiction.
- Leave is granted to ventilate the dispute before the Co-operative Tribunal.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
PETITION NO. 49 OF 2018
KARIUA FARMERS CO-OPERATIVE SOCIETY LTD…....…...PETITIONER
VERSUS
COMMISSIONER FOR
CO-OPERATIVE DEVELOPMENT.….........….……………..1ST RESPONDENT
COMMISSIONER FOR CO-OPERATIVE
DEVELOPMENT MURANG’A COUNTY…….............…….2ND RESPONDENT
MUMATHI STAFF SAVINGS & CREDIT
CO-OPERATIVE SOCIETY LTD…………...................…INTERESTED PARTY
RULING
1. The root of the dispute is the failure by the petitioner to remit check-off deductions of Kshs 2,484,535. 90 to the interested party. But the action has been clothed as a constitutionalpetition.
2. Both the petitioner and the interested party are co-operative societiesregistered under the Co-operative Societies Act. I thus asked the parties to first address me on the question of jurisdiction.
3. It is alleged that on the 20th December 2006, the 1st respondent issued agency notices to the petitioner to enforce the payment under section 35 of the Co-operative Societies Act.Subsequent agency notices were issued in 2007 and 2009. Under section 35 of the Act, the deductions from members should be remitted within seven days.
4. The petitioner’s case is that the 1st respondent did not accord it a fair hearing; that a proper inquiry was notconducted; and, that the action was capricious.
5. The interested party in the meantime filed at the Co-operative Tribunal Civil Suit Number 557 of 2014 Mumathi Staff Savings & Credit Co-operative Society Ltd v Kariua Farmers Co-operative Society Ltd. That claim is partly heard by the Tribunal; and, the interested party has closed its case.
6. The petitioner now seeks the writ of certiorari in this court to quash the agency notices. But it is evident that the principal questions revolve around the interpretation of the agency agreement between the parties; the powers of the Commissioner of Co-operatives under sections 3, 35, 51, 58, 59, 61, 73 and 74 of the Act; and, the validity of the various agency notices.
7. 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 or contractual obligations of the two co-operative societies. However the action is camouflaged as a constitutionalpetition founded on Articles 2, 19, 22, 23, 24, 27, 47, 165, 258 and 259 of the Constitution. When unpacked, all that the petitioner seeks is a writ of certiorari to quash the impugned agency notices.
8. The core dispute, 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. I am fortified by the fact that the disputants are already litigating over the same subject matter before the Tribunal.
9. Jurisdiction is everything. Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1. I am not seized of jurisdiction.
10. I thus strike out the petition suo motu but with leave to ventilate the dispute before the Co-operative Tribunal.
11. 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’A this 17th day of January 2019.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
No appearance by counsel for the petitioner.
Mr. G. K. Kimani holding brief for Ms. R. Kimani for the respondents instructed by R. M. Kimani & Company Advocates.
No appearance by counsel for the interested party.
Ms. Dorcas and Ms. Elizabeth, Court Clerks.