https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8607

Osodo & another v Makasa & 2 others (Miscellaneous Civil Application E859 of 2024) [2026] KEHC 8607 (KLR) (Civ) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8607 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E859 of 2024 JN Mulwa, J June 18, 2026 Between Jared Oduor Osodo 1st Plaintiff Wazee Makadara Self Help Group 2nd Plaintiff and Pauline Makasa Respondent and Jesse Gitau 1st Interested Party Peter Muthee Kahora & 5 others 2nd Interested Party Ruling 1.The Applicants (hereinafter the Plaintiffs) brought the motion dated 19/09/2024 seeking against the Respondent (hereinafter Defendant) several reliefs hereunder:-a.Spentb.Spentc.That pending the full hearing and determination of High Court Nairobi Environment and Land Court (ELC) 508 of 2010, the 1st Respondent is restrained from holding the meeting scheduled for the 20th September, 2024, and in the event adjourn any other subsequent meeting called by any members of the 2nd Respondent until after the full hearing and determination of High Court Nairobi Environment and Land Court (ELC) 508 of 2010.d.That pending the full hearing and determination of High Court Nairobi Environment and Land Court (ELC) 508 of 2010, the 1st Respondent is restrained from effecting and registering any changes affecting the current 2nd plaintiff/Applicants current group of official’s bearers before the full and final determination of High Court Nairobi Environment and land Court (ELC) 508 of 2020e.Spentf.Similar to (e) aboveg.That the Defendant Respondent or its agents or other officials in the said office be hereby restrained from effecting and or causing registration of change of officials from the current group officials, and registering other new group officials until a full membership meeting of the group is called by its Secretary, held and resolution of all members passed procedurally.h.Spenti.That cost of the application be in the cause. 2.The application is premised on provisions of Section 1A, 1B and 3A of the Civil Procedure Act (CPA) and Order 5 Rule 1 & 2 of the Civil Procedure Rules (CPR) alongside the grounds found on its face and supporting affidavit sworn by the 1st Plaintiff being the 2nd Plaintiff’s group secretary dated 18/09/2024 3.On 20/09/2024 the Applicants (Plaintiffs) by their application dated 24/01/2024 brought under a certificate of urgency, the court issued interim orders of injunction in terms of prayer (g) and (h) thereof which are instant application dated 19/09/2024. The said interim orders are in force, having been extended by the court pending determination of the motion dated 19/09/2024. 4.Meanwhile by a motion dated 4/11/2024 had been brought by 7 individuals seeking to be enjoined in the suit as interested parties. The Plaintiffs opposed the motion. However, upon interrogation of the same the court rendered in its ruling dated 10/07/2025 that the intended interested parties had sufficiently demonstrated their stake and interest in the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th were enjoined to the suit as the interested parties as appears on the face of the instant application. 5.They have filed their responses by their Advocates, WWK Advocates LLP, opposing the motion by way of a replying affidavit sworn on 8/08/2025 by Peter Muthee Kahora describing himself as Chairman of the Wazee Makadara Self Help Group, the 2nd Plaintiff. 6.Likewise, the Defendant opposes the motion by a replying affidavit sworn by Pauline Makasa, sued as the Defendant herein. 7.That said, by the Plaintiffs and Defendants affidavit material placed before the court, the court postulates the issues over the dispute as anchored upon leadership wrangles of the 2nd Plaintiff, by unprocedural change of the duly registered officials orchestrated by the defendant this necessitated the 1st Plaintiff to approach the court for restraining injunctive orders as stated in the motion under review. 8.In opposition to the motion, the Defendant Pauline Makasa by here replying affidavit sworn on 31/10/2024 posts that upon being approached by three officials of the 2nd Defendant, to wit the Chairperson, Secretary and Treasurer with the aim of amending the signatories to the Groups Bank Account, and presented an affidavit dated 30/05/2024 sworn by the 1st Plaintiff (Secretary) 9.That in good faith, she proceeded to effect the desired changes by a letter dated 10/06/2024 to the manager Cooperative Bank Utawala Branch Marked as “PM2” 10.It is her averments that soon thereafter, another group of members particularly the group of members particularly the 1st Plaintiff raised issues over the change of officials which prompted an invitation of members of the group to a meeting scheduled for 20/09/2024 to address the complaint, which she says took place on with 25 members in attendance. 11.The deponent further posits that on the same dated 20/09/2024 around 4.00pm she was served with a court order issued on same day restraining her from effecting any changes to the leadership and or officials of the group; adding that she was acting in her official capacity hence there is no reasonable cause of action against her, and that she is not a party to Nairobi ELC No. 508/2010. 12.The Defendant summarily concluded by deponing that the Plaintiff came to court with unclean hands as the captioned ELC matter was still pending in court, and further that the Plaintiff has not attempted a resolution of the dispute terming the suit as premature. 13.The interested parties likewise filed their opposing replying affidavit sworn by Peter Muthee Kahora, describing himself as the Chairman of the 2nd Plaintiff Group. The gist of his deposition is that the 1st Plaintiffs application is frivolous scandalous and an abuse of court process. 14.He goes on to posit that the 1st plaintiff was by resolution of the 2nd Plaintiff replaced as the group secretary on 15/08/2024 due to his group misconduct, that there is no division within the group nor is there as plunder group as alleged, in order to protect their interest and their property, providing as exhibit marked “PMK” as the duly registered officials of the group as per the groups resolution. 15.That the 1st plaintiff has been charged for fraudulent dealings with the groups affairs in Makadara Criminal Case No. E 405/2025 with 7 counts. (Marked as “PMK2” with concurrence with the 1st Plaintiff, the 2nd Plaintiff called for several special General meetings however the members of the group in order to protect their interest the 1st Plaintiff filed this instant suit. 16.That instead of attending the meeting called the Defendant for 20/09/2024k which they posit to be a misguided attempt to delay the proper management of the groups affairs and suspected sub-division of the groups land without their knowledge. 17.It is further deponed that the suit and motion herein violates the doctrine of exhaustion as the 1st Plaintiff has refused to participate in the alternative dispute resolution by meetings called by the Interested Parties and eventually the Defendant urging the court to dismiss the application, that order issued on 23/09/2024 estopping the Defendant from effecting change of the groups officials and registration of the changes be set aside to allow the group change its signatories to the bank account, and the leaders. 18.Parties were directed to file their respective submissions. The 1st Plaintiff and the Interested Parties complied and proceeded to highlight. 19.Before I proceed further, it is necessary to highlight parties counsel take on the outcome of the ELC matter no. 508 of 2010. As earlier stated, judgment thereof was delivered on 17/12/2025 by the Hon. Okong’o Judge. A copy of the judgment was provided to the court. 20.Mr. Njenga Advocate for the 1st Plaintiff informed the court that the Interested Parties lost the case; that they preferred an appeal to the court of Appeal (Citation not provided) and were granted 90 days to file their record of appeal. No information was provided as to whether the said Record of Appeal and or stay orders are in force. 21.On the part of the Interested Parties, their Advocate Mr. Wakeya deposited that the appeal to the Court of Appeal is not relevant in this application and ought not to be dismissed in this court. 22.The court took note of the above, and will at the opportune time hereafter comment on counsel reservations. 1st Plaintiffs Submissions. 23.The submissions are dated 15/04/2026 with six (6) issues flagged for determination;a.Whether the Defendant can lawfully effect changes in the 2nd Plaintiffs official outside the groups constitution.b.Whether pending proceedings filed at the court of Appeal justifies the necessity of preserving the status quo of current officials.c.Whether the instituted Criminal cases against the current officials should justify their removal from office.d.Whether the Interested Parties have Locus Standi to interfere with the group’s leadership.e.Whether restraining order should be re-instatedf.Whether the 1st Plaintiff has demonstrated a prima facie case. 24.While citing the Constitution of the 2nd Plaintiff, Wazee Vacancy Self Help Group, it submitted that “Any vacancy in the office of Chairman, Treasurer, Secretary shall be filled only through elections conducted in accordance with this constitution” Towards the above, it is submitted that thee are no vacancies in the above positions to be filled, that the role of the Defendant must remain purely administrative and not judicial and cannot purport to override the constitution of the duly registered group (2nd Plaintiff and its duly registered members. 25.Additionally, the 1st Plaintiff submits that any attempts to register new officials outside the constitutional imperatives is unlawful, irregular and made in bad faith, as the Defendant purported to do, citing the case of Republic v. Registrar of Societies ex parte Moses Mwangi & Others 920120 eKLR wherein it was emphasized that registrars cannot act whimsically but must respect the internal Constitution of Societies; and therefore allowing the Defendant to effect changes outside the constitution of the 2nd Plaintiff would be illegal and unlawful. 26.On whether pending proceedings filed at the Court of Appeal justifies the necessity of preserving the status quo of current officials, it is submitted that the 1st Plaintiff by lodging the Court of Appeal Application No. Nai E044/2026 was a positive action to protect, preserve and secure interests of the legitimate members of the group from manipulations of office operations by non-members of the group as the proposed changes do not benefit the legitimate members of the group, but just few members headed by the Interested Parties. 27.Counsel continued to submit that the ELC Court noted that certain members of the Interested Parties including the 2nd Interested party herein were interfering and intermeddling with the roles and operations and mandate of the group’s officials leading to escalation of filing criminal charges against the 1st Plaintiff, the current secretary of the group. 28.To that end therefore, upon lodging the appeal, it is submitted that the Court of Appeal on 10/03/2026 granted the applicants – including the 1st Plaintiff (1st Applicant) orders of ;a.Status quo obtaining on the ground today be maintained;b.Appeal be filed and served within 90 days of this date;c.Appeal be listed for hearing within 90 days of this date. 29.It is further submitted that this court is bound to respect the Court of Appeal orders, thus the group’s Chairman, Secretary and Treasurer must maintain their positions pending hearing and determination of the appeal, calling to aid the constitution of the 2nd plaintiff; that “where a dispute arises concerning leadership of the group, the current officials shall continue to hold office until the matter is resolved by the appropriate forum”. 30.On to whether the criminal cases against the current officials of the group should justify their removal from office, the 1st Plaintiff by counsel submits that this application was instituted by the 1st Plaintiff with expectation of winning in the ELC case wherein the 2nd Interested Party and his supporters are parties. That the plaintiffs and the Defendant ignored the constitutional imperative of the group to have disputes resolved through alternative dispute resolution by mediation within the group before resorting to court. 31.To the above end, this court has been urged not to allow criminal processes to be weaponized to settle civil disputes as is in the criminal charges against the current officials of the group; calling to aid the decision in Kuria & 3 Others V. AG [2002] e2KLR. 32.On the matter of locus standi of the interested parties in the case, it is submitted that by its constitution that “ Ordinary members shall not exercise executive authority or interfere with the mandate of elected officials” to state that the Interested Parties who are ordinary members of the group have no credible interest and therefore are being used by the 2nd Interested Party for his personal interest and benefit which action ought to be sanctioned by the court. 33.Whether restraining orders should be issued and or reinstated, the 1st Plaintiff by his counsel submit that due to the ongoing appeal and the malicious prosecution and internal wrangles within the group, judicial intervention to preserve order in the group ought to be welcome for collective benefit of the legitimate members of the 2nd Plaintiff citing the groups constitution that“The welfare of the group shall be paramount and all actions shall be taken in the best interest of the collective membership”. 34.It is summarily submitted that the 1st Plaintiff has demonstrated a prima facie case, by establishing a recognizable threat to that right, satisfying the first limb towards an order for an injunction. 35.Finally, the court is urged to allow the 1st Plaintiff reliefs as sought in the application under review. Interested parties submissions 36.Counsel for these parties began by submitting that the Interested Parties are duly registered members of the 2nd group, and that at inception of the application, the 1st Plaintiff sought prayers a, b, c, d, e and f which have since been spent through determination via judgment in ELC No. 508 of 2010, that for determination by this court should be prayers (g) and (i) thereof. 37.On prayer (g) cited verbatim above, it is submitted that it has no basis, that it is misconceived, impractical and intended to entrench a leadership dispute within the group, that the membership of the group should be allowed to resolve the dispute through internal mechanism such as a special general meeting called by the membership. 38.Counsel further submits that the impugned meeting called by the Defendant and held on 20/09/2024 was irregular unlawful and a violation of the group’s constitution that changes of the group's bank signatories and officials, replacing the Chairman, the 2nd interested party with John Kabutha pointing to leadership wrangles within the group. 39.Counsel for the Interested Parties postulated issues for determination as hereunder:-a.Whether this court miscellaneous application is competent in absence of a substantive suit.b.Whether the court should restrain the registration of new officials unless a full membership meeting is convened exclusively by the secretary.c.Whether the court should allow the registration of new officials based on the special general meeting held on 15/08/2024.d.Whether the court should allow the Respondent to call a meeting to facilitate the resolution of the dispute between the parties.e.Whether issues before the court of Appeal have a bearing on this matter.f.Whether the criminal charges in MCCR E 405/2025 & MCCR E6117/2025 against the 1st Applicant can be dismissed as malicious or irrelevant. 40.The court has considered the above issues. I propose to analyze them simultaneously as they are closely related save for (a), (e) and (f). 41.That said, whether the present application is incompetent, in absence of a substantive suit, it is submitted that Order 3 Rule (i), (ii) CPR provides formats for instituting suits by either a Plaint, Petition or an Originating Summons. That a Notice of Motion can only be filed with a properly instituted suit hence this Miscellaneous Application renders the entire suit defective and has urged the court to find so. 42.It is further submitted that the orders sought are not incidental or facilitative but substantive in nature, and cannot be granted in isolation as they affect the governance and administration of the Self-Help Group.Counsel called to aid the decision in Kalyonge v. Karanja [2022] KEHC 16174 (KLR) where a matter instituted by way of an application was rendered as incompetent and fatally defective. 43.It is further submitted that the bulk of the prayers sought in the application having been determined in the ELC case, the application is left hanging, devoid of a legal foundation upon which the court can exercise its jurisdiction. 44.As to whether the case pending before the Court of Appeal has a bearing on this matter, counsel submits that no evinced in this court to show issuance of the stay order of injunction, or directions affecting the proceedings before this court, adding that the substantive issues hereto have since been spent vide the judgment delivered on 17/12/2025 in the ELC case, and therefore the application is spent, leaving nothing for this court to reinstate, preserve by extending of the stay orders. 45.It is further submitted that the mere existence of an appeal without orders affecting these proceedings does not operate as stay or breathe life to extinguished reliefs. That the only issue left is registration or change of officials of the 2nd Plaintiff group, concluding that the Court of Appeal proceedings have no bearing on proceedings in this case. 46.On whether the criminal charges pending in Makadara Chief Magistrates Court against the 1st Plaintiff ought to be dismissed, counsel submits that such issues falls under the jurisdiction of the criminal court and ought to be left to the said court to determine. 47.On the substantive prayers sought by the 1st Plaintiff; whether the court should restrain registration of new officials unless a full membership of the group is convened by its secretary more particularly based on the meeting held on 15/08/2024; and whether the court should allow the Defendant to call a meeting to resolve the dispute of leadership between the parties, it is collectively submitted that the 1st Plaintiff unilaterally effected changes to the bank signatories and changed the officials without involving and or knowledge of the membership of the group as required under the group’s constitution. 48.It is further submitted that the role of the secretary of the group is provided in its constitution which the 1st Plaintiff ignored and held himself as the absolute authority to act on behalf of the group citing the case of Hirbo v University of Nairobi [2025] KEHC 3835 (KLR), that in respect of the meeting held on 15/08/2024, and the resolutions to change the officials of the group and bank signatories, submitting that it is only the secretary who is mandated to call a Special General Meeting, but due to the splinter group and wrangles within, the Defendant had to call the meeting to break the governance deadlock thus urge the court to allow the resolutions therefrom to be effected. 49.The interested parties further submit that should the secretary (1st Plaintiff) be the only one authorized to call group meetings, he may never do so in a bid to frustrate the efforts of the Interested Parties and the wider membership of the group. 50.The Interested Parties submit that should the court deny the registration of officials elected at the 15/08/2024 meeting, then, an order should issue to allow members to convene another special general meeting for election of officials without restricting the convening of the meeting to the 1st Plaintiff/Secretary, but to allow the Defendant to convene the meeting as provided under Section 6 of the Community Group Registration Act. Analysis and Determination 51.Upon the above parties pleadings, affidavit evidence and submissions, the court postulates rendition of issues for determination as concern:- 1.Whether this case by way of a Miscellaneous Application is competently before this court. 2.Whether judgment in ELC No. 508 of 2010 delivered on 17/12/2025 fully determined all issues in this application. 3.Whether the defendant can lawfully convene a meeting of members of the 2nd plaintiff’s group and effect changes of officials of the group, to wit, the meetings held on 20/09/2024. 4.Who bears costs of this application? 52.At the center of the dispute between the parties herein is leadership wrangles between the elected officials of the Wazee Makadara Self Help Group, the 2nd Plaintiff lead by its current Secretary, and the 1st Plaintiff as well as a splinter faction lead by the 2nd Interested Party, Peter Muthee Kahora, who is the current Chairman of the group. 53.Interrogation of the dispute shows the disconnect between the group officials and the Interested parties to have arisen as to ownership and eventual subdivision and sharing of the property namely Nairobi Block 83/530 (herewith the suit property) which the Plaintiffs and the Interested Parties claim ownership, to wit, which issues have been determined by the ELC court case No. 508 of 2010 pitting the Plaintiffs and the Interested parties in this suit. 54.At the inception of this case, the above cited land dispute was underway at the ELC court and was expected to have been concluded before institution of the case, but was concluded by a judgment delivered on 17/12/2025. 55.As garnered from the pleadings, affidavit material placed before this court, the Plaintiffs, and indeed all members of the 2nd Plaintiff anticipated a win in the case to wit, that they would be declared as the duly registered owners of the suit property, but which decision was not in their favour, to wit, they lost the case. 56.The Notice of Motion dated 19/09/2024 is coached towards the above end, as seen at prayer (c) (d), (e), (f) whereof the disputant parties, and more particularly the Plaintiffs sought restraining orders against the Defendant, her agents and other officials from holding and or effecting resolutions arising from the meeting scheduled for 20/09/2024, and subsequent other meetings called by any members of the 2nd Plaintiff, including the Interested Parties (enjoined to the suit by a court order on 10/07/2025) pending hearing and determination of the application. 57.Of relevance here are two meetings dated 15/8/2024 and 20/9/2024. In both the main agenda were to effect changes in the leadership of the 2nd Plaintiff group– particularly the officials thereof. The 2nd Plaintiff group was registered on 2/09/2009, and consisted of over 200 members. 58.Here, the group purported to have been allocated the suit land, consisting of 23 hectares of land within Nairobi County. Subsequently the group was in the process of subdivision to its members when other parties as stated in the ELC case also claimed ownership of the said land parcel. That prompted filing of the ELC case vide ELC No. 508 of 2010 as earlier stated. Being a prime land parcel within Nairobi County, the ownership was extremely emotive. 59.As agreed by all parties in this application, the outcome of the land case was awaited with high expectations by the Plaintiffs and the Interested Parties. The reliefs sought in the instant application as garnered from their pleadings and affidavit material would somewhat dispose of their dispute. 60.In the interim this court granted the 1st Plaintiff temporary orders of injunction, to wit, on 20/09/2024 thus;’ at prayers (g). The Defendant or its agents and or other officials were restrained from effecting or causing registration of change of officials until a full membership meeting of the group is called by its secretary , held and a resolution of all the members passed procedurally;(h).In the event, the meeting called by the Defendant for 20/09/2024 proceeds on 20/09/2024 and renders a decision, the defendant was retrained from effecting the said decision arising from the said meeting ;i.Specifically restrained from effecting changes of the current officials of the group until after final hearing and determination of the ELC case aforestated. 61.It is evident that the outcome of the ELC case was very crucial in the final determination of the application before me.The long awaited ELC case judgment was delivered on 17/12/2025 by the Hon. Okongo J. I have read the same.The 1st Plaintiff is captioned as the 1st Plaintiff in the ELC case. The Interested Parties thereof are also Interested Parties in this application. 62.The dispute in the ELC case was stated as to-“Whether the Plaintiffs are the lawful owners of the land parcel No. Nairobi/Block 83/893 claimed by the 1st and 2nd Defendants to be parcel No. Nairobi Block 83/530 and its subdivisions”. 63.Upon full hearing of the ELC matter, the court rendered its conclusion that:Par. 256: 1.The Plaintiff’s suit is dismissed with costs to the 1st and 2nd Defendants. 2.The Interested parties shall bear their own costs of the suit. 3.Judgment is entered for the 2nd Defendant against the Plaintiffs in the counterclaim. 4.(a)a permanent injunction restraining the plaintiffs and the members of Wazee Makadara Self Help Group (the group) from trespassing, interfering, claiming or dealing in any way with the 2nd Defendants parcels of land known as Nairobi/Block 83/899 -1222(b)the costs of the counter-claim. 64.A careful consideration of the above judgment shows that both Plaintiffs in this case and the Interested Parties lost the case and therefore the property Nairobi/Block 83/899-1222.That said, I agree with both the 1st Plaintiff and the Interested Parties that the ELC Judgment disposed of substantively issues arising in the instant application.However, it is also to be garnered therefrom that the leadership wrangles within the 2nd Plaintiff group were not disposed of. 65.That in my consideration, there are only two issues pending before me for determination. The first being whether the Miscellaneous application thereto is competently filed before this court. Whether this by way of a Misc. application is competently before this court. 66.Order 3 Rule (i) & (ii) CPR provides for the various modes of institution of suits; by plaint; petition or an Originating Summons. The instant motion is predicated upon Sections 1A, 1B & 3A of the Civil Procedure Act (CPA) as well as Order 5 Rule 1 and 2 CPR. Clearly, the latter provisions are irrelevant as they relate to issuance and duration of summons and not institution of pleadings. 67.A cursory glance of the reliefs sought by the Plaintiffs confirm that interim injunctive orders under Order 40 CPR are the subject of the application. A suit may be instituted by way of an application when what is sought are interim orders or summary orders. If a consideration of the totality of the orders and the case has semblance of a cause of action, it should be sustained. To strike it out would be denying the litigant its constitutional right to fair hearing and access to justice for the reason that his pleadings are not according to the prescribed format, like by a plaint or petition. 68.The court borrows wisdom from the learned decisions in the cases of D. T. Dobie & company (Kenya) Limited v Muchina & another (1980) KLR 1980, Odera t/a Odera Associates v Machira t/a Machira & co Advocates & Another (2013) KECA 208 wherein the court rendered that generally that a claim should not be struck out for lack of form, that a court of justice should aim at sustaining a suit rather than terminating it summarily. 69.It is evident that there is in the claim as filed a threat of violation of the plaintiff’s right as enshrined in the group’s constitution. It is also true that there was a substantive suit pending full hearing at the ELC court. Though not filed in this court, it related to issues brought by the Plaintiffs and the Interested Parties. 70.That said, the application is also predicted upon provisions of Sections 1A, 1B and 3A CPA. Here, the court is mandated to do justice without regard to technical and procedural technicalities. Thus denying a litigant his right to justice. A claim to be struck out for want of form is against the oxygen principle enshrined at the above provisions. The court should exercise its discretion in regard thereto with extreme caution and care. I am persuaded that the claim as filed ought to be sustained for justice to be done, as provided at Article 159 (2) (d) of the Constitution. 71.On the second issue: Whether the Defendant can lawfully convene a meeting of members of the 2nd Plaintiff, pass resolutions and effect change of officials of the group, to wit, the meeting held on 20/9/2024? 72.There is no dispute that the 2nd Defendant convened a meeting for only one purpose: election of new officials of the group and changing the signatories to its Bank Accounts at the Co-operative Bank.At the relevant period, the 1st Plaintiff was the duly elected secretary of the group and signatory to its Bank Accounts. His mandate as secretary is stated at its constitution among others, to issue notices convening all meetings of the committee and all general meetings of the group, keeping minutes of such meetings and for the preservation of all proceedings of the group and of the committee. 73.The constitution of the group that I have read provides that in the absence of the Secretary, the Assistant Secretary shall perform all duties of the secretary.The procedure of calling such meetings, to wit, Annual General Meeting and special general meetings is also provided. 74.Here, the impugned meeting dated 20/9/2024 was not called by the Secretary but by the Defendant. It is during the said meeting that the Defendant attempted to change the group’s officials and signatories to its Bank accounts. 75.In her replying affidavit to the application, the Defendant averred that she was approached by three officials of the group, to wit, the 2nd Interested Party (Chairman), secretary (1st Plaintiff) and the Treasurer with a request to amend the signatories of the bank accounts and also change the office bearers. This averment is monumental, as it confirms without a doubt that the procedure for the intended changes was not followed, as such is provided under the group’s Constitution. 76.The 1st Plaintiff was among the officials who sought and coerced the Defendant to call for the meeting for purposes of effecting the changes of officials and Bank signatories; to wit, having been a party to the illegality cannot approach the court and expect it to vindicate him, yet being the secretary of the group and his mandate thereto, he was bound to adhere to the group's constitution and follow due process as provided thereto. 77.Similarly, the Defendant on her part cannot earn sympathy from the court, as she was aware of the mandate in respect of her duties, cannot feign lack of what she was expected to do yet urging the court to find that she was acting in her official capacity. What comes out clearly is that the 1st Plaintiff, the 2nd Interested Parties and the Defendant acted together to unlawfully and unprocedurally change the officials of the group including the Bank signatories; being an upfront to the laid down procedure provided in the group constitution. 78.It is upon the above that the court on 20/9/2025 issued the temporary restraining orders directed to the 2nd Defendant and her agents from effecting and or causing registration or change of officials from the current group officials, and registering the same until a full membership meeting of the group is called lawfully and procedurally. 79.However, here, the secretary being one of the officials who colluded with the Chairman and treasurer and filled the instant application, in my estimation cannot be trusted anymore. The court therefore agrees with the Interested Parties that should the court confirm the interim orders of injunction, an order do issue that the special general meeting be called, not by the secretary (1st Plaintiff) but by the Defendant in exercise of her official duties as a neutral arbiter. 80.As to whether the court should allow the registration of new officials resulting from the meeting held on 15/8/2024, the court notes and has stated earlier that the officials of the group are all entangled in the leadership wars. I do not agree to the proposal by the Interested Parties that the resolutions passed in the said meeting of 15/8/2024 should be effected. To do so would in effect be legitimizing and legalizing the unprocedural and illegal meeting where new officials were elected in regard to the procedure provided under its constitution. 81.The 2nd Plaintiff’s constitution underscores the principle of internal dispute resolution mechanism, when disputes arise as follows:-“Members shall resolve disputes through mediation within the group before resorting to external forums.” 82.Here, the 1st Plaintiff when he deemed that his wishes, together with the chairman and treasurer could not be effected, in an attempt to clean his hands swiftly moved the court under the instant motion to restrain the Defendant from effecting changes he and his other officials caused unprocedurally. Could this official then be trusted with the running and management of the affairs of the group? 83.In my considered view, the issue can only be resolved by a meeting of the full membership of the group who can either re-elect the current officials or send them home. Interestingly, the chairman of the group, the 2nd Interested parties, is the complainant in the criminal allegations against the group officials. I dare state that this is a classical misuse of the court process and weaponized criminal processes to settle civil disputes. 84.However, as I have held elsewhere above, let the criminal process be dealt with in the criminal court handling the same as held in the case of Kuria & 3 others v Attorney General (2002) 2KLR that criminal proceedings should not be used to achieve collateral purposes. 85.As to the Interested Parties, other than the 2nd Interested Party, they are ordinary members of the 2nd Plaintiff. The constitution of the group provides in respect to their mandate that:“Ordinary members shall not exercise executive authority or interfere with the mandate of elected officials” 86.That said, they should steer away from the leadership wrangles, and or approach the court by way of a derivative suit against the officials of the group. That is the only way their legitimate concerns and interests in the group as against the officials could be fully addressed. 87.The interim injunction orders issued by the court on 20/9/2024 are in place.I have been urged by the 1st Plaintiff to uphold the resolutions from the Special General Meeting held on 15/8/2024 wherein the group’s officials were changed and or permit members to convene a fresh general meeting without restricting its convention to the 1st plaintiff, the secretary of the group. 88.In view of the conduct of the Secretary, the Chairman and other officials of the group it is my estimation that they cannot be trusted any more, having undertaken and involved themselves in the illegal and unlawful change of officials and signatures to the group's bank accounts. 89.The only viable option that I deem fit, and to bring order and decorum to the group’s operations is to find a neutral arbiter to oversee a properly convened meeting of the full membership of the group. 90.Under the Community Groups Registration Act and Rules, Section 6 thereof provides for Dispute Resolution and Management of Community groups. This option of dispute resolution should have been the first call and stop before parties think of approaching the court.It is therefore this court’s view, and more as the 2nd Plaintiff and the interested parties lost the ownership of their land as captioned above, that they engage and exhaust the Alternative Dispute Resolution Mechanism (ADR) which is encouraged at Article 159 (2) (c) of the Kenya Constitution, as well as under Section 6 of the Community Groups Act and rules being a cost effective and fast manner of settling disputes. 91.Lastly, Article 159 (2) of the Constitution implores courts to do justice to all irrespective of status, shall not be delayed and shall be administered without undue procedural technicalities.With the foregoing in reserve, and taking into account that the dispute involves the officials and membership of the 2nd Plaintiff group, the following orders do issue: -1.That the current officials prior to the special general meeting held on 15/8/2024 shall remain in office up and until an ADR meeting is called by the Defendant, and to be presided over by the said Pauline Makasa Defendant, within 30 days of this order.2.Should the ADR mechanism not be successful, a Special General Meeting of the group shall be convened by the Defendant for the purpose of election of officials of the group within 30 days of notice of failure of ADR mechanism.3.That the Defendant is directed to convene and supervise the above two ADR mechanisms within the time frames as stated.4.That the injunctive orders of this court issued on 20/9/2024 shall remain in place and in force pending implementation of orders and directions above.5.This matter shall be mentioned before this court’s Deputy Registrar for further orders as to compliance with the above directions on 4/08/2026.6.That costs of this application shall be in the cause. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026.……………………….JANET MULWA.JUDGE