[2019] KEHC 7474 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

JUDICIAL REVIEW APPLICATION NO. 130 OF 2018

IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE ACT

-AND-

IN THE MATTER OF COOPERATIVE SOCIETIES ACT CAP 490 LAWS OF KENYA

-AND-

IN THE MATTER OF GAZETTE NOTICE NO. 10193

IN THE MATTER OF INQUIRY ORDER DATED 3RD OCTOBER 2018

IN THE MATTER OF COOPERATIVE TRIBUNAL CASE NO. 228 OF 2016 (ABDU HATI HERSI V HASSAN HALLO & 2 OTHERS

REPUBLIC..................................................APPLICANT

-V-

THE CHAIRMAN COOPERATIVE TRIBUNAL...............1ST RESPONDENT

THE COMMISSIONER FOR COOPERATIVE DEVELOPMENT.................2ND RESPONDENT

RAGO ABDUREHMAN..............................1ST INTRESTED PARTY

REGINA KAGWIRIA.............................2ND INTRESTED PARTY

EXPARTE APPLICANT ...................................HASSAN HALO

JUDGMENT

1. Before me is a Notice of Motion Application dated 6th November 2018 and filed in court on 7th November 2018 in which the Exparte applicant seeks an order of Certiorari to issue to remove to this court the Gazette Notice No. 10193, inquiry order dated 3rd October 2018, the resultant inquiry report and quash the same and other orders made therein with bias, malice, without regard to rules of natural justice and against the laws of the land.

2. The Motion is premised on the grounds inter alia that the respondents had issued Gazette Notice number 10193 and an inquiry order dated 3rd October 2018, without notifying the Chairman and members of Isiolo Central Cooperative Society and that the inquiry had already began before 3rd October 2018, yet the same was gazetted on 5th October 2018.

3. It was contended that the inquiry had not been requested by bonafide members but by imposters acting in bad faith, personal vendetta and malice including interested parties and that further the procedure for conducting an inquiry was not followed and the respondents did not want to listen to the real officials and bonafide members of the Isiolo Central Farmers Cooperative Society. The applicant further contended that the decision made in Nairobi Cooperative Tribunal Case No. 228 of 2016 made on 18th May 2018, stated inter alia that issues involving Isiolo Central Farmers Society could have been resolved through a Special General meeting or pass it to the Commissioner for Cooperatives and that the Respondent had a legal obligation to give the Applicants a fair hearing and involve the membership of the society before commencing an inquiry and issuing a Gazette notice to that effect.

4. The Motion was opposed by the 2nd Respondent vide an affidavit filed in court on 8th March 2019, where she deposed inter alia that the genesis of this suit was Cooperative Tribunal Case No. 228 of 2016 between the 1st interested party herein who was then a claimant together with 5 others against the applicant and that the outcome of the suit vide judgment delivered on 18th May 2018, was that the claimants concerns could be resolved through a special general meeting or alternatively pass it to the Commissioner of Cooperatives and that on 23rd May 2018, the interested parties herein on behalf of 45 other members and pursuant to the tribunal’s judgment requested the 2nd respondent to conduct an inquiry and make necessary recommendations.

5. That, their request was considered and as such by way of a gazette notice number 10193, dated 3rd October 2018, directed that an inquiry be instituted to look into the affairs of the society whereupon two cooperative officers were appointed to conduct the inquiry and on 3rd October 2018, the two appointed officers issued an inquiry notice to all members inviting them to make submissions whereupon the inquiry report was conducted from 3rd October to 13th October and a report prepared on 19th October 2018, by the gazette inquiry officers and that pursuant to the report, she directed that a special general meeting be convened with a view of the presentation and adoption of the report by the society.

6. That, on 28th November 2018, the report was adopted and several resolutions were made including but not limited to election of a 5 member interim committee to run the affairs of the society for a period of 90 days and that the full import of the special general meeting was an overhaul of the society’s management which included the Applicant . It was thus contended that the orders being sought could not issue since the gazette notice was a process and not an end itself since the inquiry afforded the applicant an opportunity to be heard and challenge any findings.

7. The interested party on the other hand while in opposition to the Motion contended that pursuant to a claim they had filed against the applicant in the Cooperative Tribunal, the tribunal pronounced itself and made a finding that there were serious issues raised in the claim and directed that the same be resolved by the society’s general meeting or the Commissioner for Cooperatives and that subsequent to that judgment the interested parties petitioned the Commissioner of Cooperatives, whereupon the Commissioner in exercise of his powers ordered an inquiry to look into the affairs of the society and that further in the order of 3rd October 2018, the Commissioner appointed two officers to conduct the enquiry which inquiry was conducted in public and that further every member who attended the meeting was given an opportunity to give his/her submissions and nobody was denied a chance to present views.

8. Briefly, it was submitted for the 1st and 2nd respondents that the genesis of this case was a dispute between members of Isiolo Farmers Cooperative Society and that in triggering the process of inquiry, the same was grounded on the judgment of the Cooperative tribunal dated 18th May 2018 and that further to this, a group of 45 members represented by the interested party made a formal request to the commissioner and that what followed was a series of activities all anchored on law which started with the gazzettment of two cooperative officers who were to carry out the inquiry and that a notice was issued on 3rd October 2018, to all members and that the commissioner on her own accord and further informed by the petition enabled the inquiry process and that this was a statutory process that upon initiated, proceeds to invite submissions from members whereupon they are given an opportunity to respond to the issues and that therefore it is was misconceived to allege that the process failed to follow due process.

9. I have carefully considered the instant Motion and the rival contentions by the parties. It is indeed not in dispute that vide a letter dated 23rd May 2018, the interested parties and 45 other members pursuant to Cooperative Tribunal Case no. 228 of 2016, petitioned the Commissioner for Cooperative Development (the 2nd respondent herein), for inquiry of Isiolo Central Cooperative Society on the grounds of mismanagement whereupon the 2nd respondent via gazette notice number 10193 authorized one Obed Mbae and Peter Kinuthia to conduct the said inquiry. It is also not in dispute that pursuant to the said inquiry, a notice was issued on 3rd October 2018, to all members of Isiolo Central Farmers Cooperative Society and stakeholders to make submissions if any to the inquiry team. It is also not in dispute that the 2nd respondent via a letter dated 14th November 2018, directed the chairman of Isiolo Central Cooperative Society to convene a special general meeting on 28th November 2018, for purposes of presentation of the inquiry report.

10. There is nothing to suggest that the applicant was not aware of the notice issued on 3rd October 2018, to all members of Isiolo Central Farmers Cooperative Society and stakeholders to make submissions if any to the inquiry team neither is there anything to suggest that he was prevented from making submissions. It is also not lost on this court that the letter dated 14th November 2018, by the 2nd respondent was addressed to the chairman of Isiolo Central Farmers Cooperative Society and the chairman at the time was the applicant herein. The applicants’ contention that they were not given a fair hearing does therefore not arise. Similarly the allegations of bias and malice were without basis since the same were not supported by any evidence. Similarly the Applicants contention that the said inquiry was not requested by bonafide members is without basis since the interested parties herein who were among the 45 members who had petitioned the 2nd respondent are indeed members of Isiolo Central Cooperative Society and they produced evidence to this effect.

11. It is common knowledge that judicial review remedies are discretionary in nature. As is appreciated, in Halsbury’s Laws of England4thEdn. Vol. 1(1) para 12 page 270: where it is stated thus

“The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus)…are all discretionary. The Court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court will take into account the conduct of the party applying, and consider whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question, would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfilment. The Court has an ultimate discretion whether to set aside decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief. Similarly, where public bodies are involved the court may allow ‘contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders.”

12. In any event section 58 of the Cooperative Societies Act CAP 490 of the laws of Kenya provides that as follows;

“the commissioner may of his own accord and shall on the direction of the Minister as the case maybe, or on the application of not less than one third of the members present and voting at a meeting of the society which has been duly advertised, hold an inquiry or direct any person authorized by him in writing to hold an inquiry, into the bylaws, working and financial conditions of any cooperative society.

13. The above section clearly gives the 2nd respondent either on his own motion or otherwise, the mandate hold an inquiry or to direct any person authorized by him to conduct such inquiry and if this court were to interfere with the said statutory mandate, the same would be tantamount to usurping his statutory mandate and the same would be illegal.

14. Taking into totality all the circumstances in this case, I find the instant motion to be without merit and the same is accordingly dismissed in its entirety with costs to the respondents and interested parties.

HON. A. ONG’INJO

JUDGE

JUDGMENT DELIVERED, DATED AND SIGNED IN COURT ON 9TH DAY OF MAY 2019.

In the presence of :

C/A:Mr Kinoti

Mr Nyenyire Advocate

Mr Murange Advocate for Interested parties

1st Respondent:-

2nd Respondent :-

1st Interested Party:- N/A

2nd Interested Party:-

Exparte Applicant

HON A. ONG’INJO

JUDGE