[2007] KEHC 2280 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Misc Appli 382 of 2006

OBED NTHIWA…………………...………..…….........………….………..APPLICANT

Versus

COMMISSIONER CO-OPERATIVE DEVELOPMENT...................…RESPONDENT

KWA MATINGI FARMERS CO-OPERATIVE SOCIETY LTD..INTERESTED PARTY

JUDGMENT

By the Notice of Motion dated 28th July 2006, the Applicant seeks an order of certiorari to issue directing that the decision of the Commissioner for Co-operative Development dated 5th July 2006 be quashed for being null and void. The Applicant also prays for costs of the Application.

The Application is brought pursuant to the Law Reform Act, and Order 53 Rule 3 Civil Procedure Rules. The Application is premised on the Statement and Affidavit of the Applicant, both dated 10th July 2006 and filed in court on the same date. The Applicant also filed skeleton arguments dated 6th November 2006.

Though served with the Application and with hearing notice, the Respondent neither filed any reply nor appeared at the hearing and the Notice of Motion proceeded to hearing ex parte.

The factual background of this case is as follows:

Obed Nthiwa is a committee member and chairman of Kwa Matingi Farmers Co-operative Society Ltd. He was elected at the Society’s Special Annual General Meeting held on 21st April 2005 for a period of 3 years. This includes the other members of the Central Management Committee (hereinafter referred to as CMC).

By a letter dated 5th July 2006, the Respondent purported to suspend the Applicant as member of CMC and chairman of Kwa Matingi Farmers Co-operative Society Ltd. and any other Co-operative Society pending the outcome of a case where the Applicant was charged for being dishonest.

The Applicant challenges that decision by the Commissioner for being ultra vires the Respondents powers; that the Applicant was never heard before the decision was made; that the Applicant was never informed of the charges before the decision was made and that rules of natural justice were breached. Mr. Wainaina, Counsel for the Applicant submitted that under S.28 (7) of the Cooperatives Act, the Respondent has no power to suspend the Applicant from CMC and chairmanship but the Commissioner is given the power to suspend one from duty. Counsel urged that the Commissioner has the discretion as the word used is ‘may’ and he has no powers to suspend him from holding an office in any other Society.

On 20th September 2006 Antony Wambua, the Honarary Secretary of the Kwa Matingi Farmers Co-operative Society Ltd., the Interested Party, also swore an Affidavit in support of the Application. He maintained that the management committee was elected on 21st April for a term of 3 years but on 5th July 2005 the Commissioner 1st Respondent purported to suspend the Applicant from the CMC and Chairmanship, and the Management Committee met on 10th July 2006 to discuss the issue (AMN2) as they awaited the resolution of the matter by the Ministry because they were not aware of any problem between the Applicant and the Ministry. They therefore complied with the Ministry’s decision. Mr. Mwenda, Counsel for the Interested Party drew the court’s attention to the charge sheet (UN 4) in which the Applicant was charged, – prepared by Muthaiga Police Station yet the offence was committed in Machakos District. Counsel said that it raises eye brows that officers from Muthaiga could investigate an offence committed in Machakos. In his view, that demonstrates bad faith on the police.

The Applicant’s Counsel relied on several authorities in support of his case:

1. MIRUGI KARIUKI V AG CA 70/1997, where it was held that a decision affecting rights of an individual must be arrived at after principles of natural justice have been observed;

2. In DAVID OLOO ONYANGO V AG CA 152/1986, where the court held that rules of natural justice require that one be heard before a decision is made;

3. RIDGE V BALIDWIN (1964) A C, where it was held that rules of natural justice were paramount and any decision reached in violation of the rules, is a nullity.

Since the Respondent did not appear or file any papers, it is unknown how the decision to suspend the Applicant was arrived at.

Section 28 (7) of the Co-operatives Act reads “S 28(7). The Commissioner may suspend from duty any Committee member charged in a court of law with an offence involving fraud or dishonesty pending the determination of thematter.” The use of the word ‘may’ gives the commissioner a discretion which has to be exercised judiciously or fairly. Even where it is not expressly provided that rules of natural justice will apply, the same should be implied.

In the Onyango Case, the Court of Appeal observed that in order to act fairly the commissioner should have done the following:

(i) Inform the Applicant in a language he understands the offence he is alleged to have committed and the particulars thereof;

(ii) Should have offered the Applicant an opportunity to be heard in person or should have been given ample time to reply;

(iii) Thereafter, within reasonable time the Applicant should have been informed of the outcome.

I adopt the above principles as so.

In this case it seems none of the principles was observed. The Applicant was not informed of the charges against him nor was he accorded an opportunity to be heard and present his case. That omission amounts to breach of rules of natural justice.

Did the Commissioner have the power to make the decision of suspending the Applicant? The letter of suspension reads:

“…….You are hereby suspended with immediate effect from being a committee member and chairman of Kwa Matingi Farmers Co-operative Society Ltd. and any other Co-operative Society pending the outcome of your case.”

Under Section 28, one may be suspended from duty – not from being a committee member. Obviously the commissioner was overstepping his bounds. The Respondents even went further by suspending the Applicant from being a committee member and chairman of any other Co-operative Society. The Respondent did not have such power under that Act. The order of suspension should have been from duty not from CMC or chairmanship. The Respondent went on 3rd step further to suspend the Applicant from any other Co-operative Society. That was not covered under S.28. This is because the suspension relates to Kwa Matingi Co-operative Society but not any other Co-operative Society. If the suspension were to apply to another society then I believe a specific letter would have been addressed that Co-operative Society after due process was followed.

I find and hold that the Commissioner’s actions were ultra vires his powers and that decision is amenable to Judicial Review orders.

Having breached the rules of natural justice as relates to the Applicant and having acted ultra vires his powers, this court has no option but call for the decision to suspend the Applicant for purposes of being quashed and it is hereby quashed by order of certiorari.

Respondents should pay the costs of this Application.

Dated and delivered this 25th day of June 2007.

R.P.V. WENDOH

JUDGE