[2014] KEHC 7631 (KLR)
The court held that the defendants, being public officers subordinate to the Commissioner of Co-operatives, do not have the legal capacity to be sued in their official capacity under the Co-operative Societies Act. The Commissioner himself is not accorded such capacity by statute, and therefore his subordinates...
Source-derived case information.
- Citation
- [2014] KEHC 7631 (KLR)
- Parties
- Plaintiff: Mutithi Farmers Co-operative Society Ltd; Defendant: The Commissioner of Co-operatives, Muranga Sub County; Defendant: The Commissioner of Co-operatives, Thika Sub County
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 524 of 2013
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection/striking Out
- Outcome
- suit struck out
- Judges
- DW Mbuteti
- Legal Topics
- Capacity to Sue, Proper Parties, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutithi Farmers Co-operative Society Ltd
Plaintiff
The Commissioner of Co-operatives, Muranga Sub County
Defendant
The Commissioner of Co-operatives, Thika Sub County
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection/striking Out
Legal Issues
- 1 Whether the defendants, as public officers subordinate to the Commissioner of Co-operatives, have legal capacity to be sued in their official capacity.
- 2 Whether the suit discloses a proper cause of action against the named defendants.
- 3 Whether the dispute over management of the plaintiff co-operative can be resolved by suing the Commissioner or his subordinates.
Ratio Decidendi
The court held that the defendants, being public officers subordinate to the Commissioner of Co-operatives, do not have the legal capacity to be sued in their official capacity under the Co-operative Societies Act. The Commissioner himself is not accorded such capacity by statute, and therefore his subordinates cannot possess it either. The dispute at hand is an internal management issue within the plaintiff co-operative society, and cannot be resolved by instituting proceedings against the Commissioner or his subordinates. As such, the defendants are not proper parties to the suit, and the plaintiff is non-suited against them. Consequently, the suit is struck out for want of proper parties.
Court Disposition
suit struck out
Orders
- The suit is hereby struck out with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 524 OF 2013
MUTITHI FARMERS CO-OPERATIVE
SOCIETY LTD …………....................................................PLAINTIFF
V E R S U S
1. THE COMMISSIONER OF CO-OPERATIVES,
MURANGA SUB COUNTY
2. THE COMMISSIONER OF CO-OPERATIVES,
THIKA SUB COUNTY ……………….................DEFENDANTS
R U L I N G
1. The Defendants are public officers subordinate to the Commissioner of Co-operatives created under section 3of theCo-operative Societies Act, Cap 490.
2. Under subsection (1)ofsection 3the Commissioner is an officer in the Public Service. He has not been accorded capacity to sue or be sued. So, how can his subordinates have that capacity?
3. It has not been demonstrated that the Defendants have under the law, such capacity. This is an ordinary suit commenced by plaint. It is not a judicial review application or a constitutional petition.
4. Pleadings as filed, and the representations made by the two learned counsels, both purporting to act for the Plaintiff, disclose a dispute over the management of the Plaintiff co-operative between two opposing groups of members of the co-operative. Such dispute cannot be resolved by suing the Commissioner for Co-operatives or his subordinates.
5. The Plaintiff is non-suited against the Defendants. The Defendants are not proper parties in the suit.
6. In the result the suit is hereby struck out with no order as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 13th DAY OF FEBRUARY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 21ST DAY OF FEBRUARY 2014