[2023] KEHC 25509 (KLR)

Ochengo v Commissioner of Co-operatives Development & another (Civil Case E003 of 2022) [2023] KEHC 25509 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25509 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Case E003 of 2022

WA Okwany, J

November 16, 2023

Between

James Ochengo

Plaintiff

and

The Commissioner of Co-operatives Development

1st Defendant

the Hon Attorney General

2nd Defendant

Ruling

1. The plaintiff sued the defendants seeking, inter alia, an order directing the defendants, its agents, servants or employees to hold elections after reading the budget of Sironga Farmers’ Co-operative Limited. The plaintiff’s case is that he is one of the members that were elected for a specified period of time which period had expired. He claimed that an election should therefore be scheduled urgently.

2. The defendants filed a joint Statement of Defence wherein they denied the plaintiff’s allegation that he is a member of Sironga Farmers’ Co-operative Society (SFCS). They aver that the orders sought in the Plaint are misconceived, untenable and amount to an abuse of the court process.

3. The defendants raised a Preliminary Objection (PO) to the suit and listed the following grounds of objection: -a.The plaintiff lacks the requisite locus standi to institute and maintain this suit;b.The suit does not disclose any reasonable cause of action against the defendants; andc.The mandatory order sought in the Plaint is in the nature of an application for judicial review filed contrary to the provisions of order 53 of the Civil Procedure Rules, 2010.

4. This ruling is in respect to the PO which was canvassed by way of written submissions.

5. What constitutes a PO was discussed int the case of Mukisa Biscuit Manufacturing Co Ltd …vs… West End Distributors Ltd (1969) EA 696, where Law J A stated that;“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which objection point may dispose the suit”.The Court further stated;“A preliminary objection raises a pure point to law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

6. The defendants argued that the Plaintiff does not have the locus standi to institute the proceedings as he has not supplied them with proof of his membership of the Co-operative Society.

7. The plaintiff, on his part, maintained that he is a member of the 1st defendant and is therefore entitled to file the suit in court.

8. In the case of Law Society of Kenya vs Commissioner of Lands &others, Nakuru High Court Civil Case No 464 of 2000, the Court held that: -“Locus standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in court of law”.

9. Locus standi is the right to appear and be heard in court or other proceedings and literally, it means ‘a place of standing’. If a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. This means that if this court was to find that the Plaintiff has no locus standi, then he cannot be heard and that point alone may dispose of the suit. In the case of Quick Enterprises Ltd vs Kenya Railways Corporation, Kisumu High Court Civil Case No 22 of 1999, the Court held that: -“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”.

10. I have considered the objection raised by the defendants and I find that lack of locus standi can dispose of the matter preliminarily without having to resort to ascertaining of facts. The Preliminary Objection raised by the Defendants fits the description of Preliminary Objection as stated in the Mukisa Biscuit case (Supra).

11. My finding that the issue of locus standi is a Preliminary Objection rightly raised notwithstanding, in this instant suit, I note that the plaintiff’s case is that he is a bona fide member of the 1st defendant and is therefore entitled to file the instant suit. As I have already stated in this ruling, the defendants claim that the plaintiff has not presented any evidence to show that he is a member of the 1st defendant. The parties’ rival arguments are an indication that the issue of membership is a contested issue that can only be unpacked, through evidence, at the hearing.

12. I similarly find that the issue of whether the orders sought in the Plaint are in the nature of a judicial review and whether the suit discloses a reasonable cause of action are also issues that do not fall within the realm of a preliminary objection.

13. In sum, I find that the preliminary objection is not merited and I therefore dismiss it with orders that costs shall abide the outcome of the suit.

14. Orders accordingly.

RULING DATED SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 16THDAY OF NOVEMBER 2023. W. A. OKWANYJUDGE