https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11203

Republic v Co-operative Tribunal & another; Muiruri (Ex parte) (Judicial Review E124 of 2026) [2026] KEHC 11203 (KLR) (Judicial Review) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11203 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E124 of 2026 WM Musyoka, J July 24, 2026 Between Republic Applicant and The Co-operative Tribunal 1st Respondent Joinas Sacco Society Limited 2nd Respondent and Monicah Wanjiru Muiruri Ex parte Judgment 1.The ex parte applicant moved this court by way of a motion, dated 8th May 2026, consequent upon obtaining leave on 4th May 2026. She seeks the orders of certiorari and prohibition, with respect to a judgement and a decree in Nairobi Cooperative Tribunal Case No. CTC/E352/2023, delivered and passed on 29th January 2026. The instant application is based on a statutory statement, dated 29th April 2026, and an affidavit, verifying the facts relied on, sworn by Monicah Wanjiru Muiruri, on the same date. 2.The argument is that the 1st respondent herein had no jurisdiction to hear the matter in Nairobi Cooperative Tribunal Case No. CTC/E352/2023, as the dispute turned largely on employment and labour relations issues. It is averred that the jurisdiction of the 1st respondent is spelt out in section 76 of the Cooperative Societies Act, Cap. 490, Laws of Kenya, and employment disputes are not listed in that provision. Mischaracterisation of pleadings, error of law, illegality and nullity are raised. A copy of the judgment rendered, in Nairobi Cooperative Tribunal Case No. CTC/E352/2023, is attached. 3.The 1st respondent has not reacted to the application, by filing a response of any kind; but the 2nd respondent has reacted, by filing grounds of opposition and an affidavit. 4.In the grounds, the 2nd respondent argues that the judicial review application challenges merit, evidentiary findings and conclusions; that it seeks to reopen and re-litigate issues conclusively dealt with by the 1st respondent; that illegality, irrationality, procedural impropriety, excess jurisdiction, breach of natural justice or violation of right to fair administrative action have not been demonstrated in it; that jurisdiction was properly exercised, under section 76 of the Cooperative Societies Act; among others. 5.The affidavit, sworn by Mr. Peter Kinuthia Mugacha, the Chairman of the 2nd respondent, discloses that the dispute was that between a cooperative society and its member, over recovery of a loan, liabilities, accrued interest and monies due and owing. The fact of membership and indebtedness based on loans taken was admitted by the ex parte applicant, before the 1st respondent. It is averred that the ex parte applicant submitted to the jurisdiction of the 1st respondent, and cannot now turn around to raise jurisdictional questions. A copy of the defence and the written submissions, filed before the 1st respondent, by the ex parte applicant, are attached. 6.The application has been canvassed by way of written submissions. 7.The ex parte applicant submits that the 1st respondent exceeded the jurisdiction conferred upon it by section 76 of the Co-operative Societies Act, by entertaining, hearing and determining allegations founded on her conduct as the former Chief Executive Officer and employee of the 2nd respondent. She argues that the 1st respondent lacked jurisdiction to adjudicate allegations of fraud, collusion, financial malpractice, abuse of office arising from her employment and managerial relationship with the 2nd respondent. She claims that the 1st respondent lacked jurisdiction to determine allegations relating to her conduct in her capacity as Chief Executive Officer and manager, including alleged breaches of duty, financial malpractice and abuse of office, which, according to her, are disciplinary and employment related in character, and, therefore, falling outside the jurisdiction of the 1st respondent. The ex parte applicant cites Republic vs. Chief Magistrates Bungoma; Wandabwa (Interested Party); Nee Chesikaki Farmers Co-op Society Limited (Ex parte Applicant) [2023] KEELRC 3244 (KLR). 8.The 2nd respondent submits that the application is devoid of merit, and fails to meet the threshold for the grant of judicial review remedies, and the ex parte applicant has not demonstrated any illegality, irrationality, procedural impropriety, excess of jurisdiction or breach of the rules of natural justice on the part of the 1st respondent. The 2nd respondent relies on Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] eKLR, where the court emphasized that judicial review is not an avenue through which a court re-evaluates evidence, or substitutes its own decision for that of the statutory body entrusted with the mandate to determine the dispute; and Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] KEHC 489(KLR), where it was held that; “Judicial review proceedings are directed to the decision-making process as opposed to the merit of the decision.” It also cites Chief Constable vs. Evans [1982] 3 All ER 141 and Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR. 9.It is submitted that the claim before the 1st respondent was for recovery of monies allegedly owed to the 2nd respondent, by the ex parte applicant, and that section 76(1) of the Co-operative Societies Act provides that where a dispute concerning the business of a cooperative society arises, between a society and its members, such dispute should be referred to the cooperative tribunal for determination. Bingwa Sacco Society Ltd vs. Quickline Auctioneers & Another [2017] KEHC 1457 (KLR) and Gatanga Coffee Growers Co-operative Society Limited vs. Gitau [1970] EA 361 are cited. It is further argued that the judgement was founded on the self-admission of indebtedness by the ex parte applicant, and the 1st respondent entered judgement on admission, in the sum of Kshs. 5,732,370.00, and did not enter judgement on allegations of fraud, collusion, misconduct or abuse of office as now alleged by the ex parte applicant. It is further submitted that the 1st respondent did not make any findings or holdings on employment rights, disciplinary sanctions, wrongful conduct in employment, or on any other matter falling within the exclusive jurisdiction of the Employment and Labour Relations Court. 10.There is only 1 issue for determination, and that is whether the motion, dated 8th May, 2026, is merited. 11.Judicial Review is not concerned with the merits of a decision, but the legality or propriety of the decision-making process. It is not intended to serve as a substitute for an appeal. where a party is dissatisfied with the findings or ultimate decision of a tribunal, the proper recourse is an appeal and not judicial review proceedings. 12.In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR, the court stated as follows, with respect to judicial review:“Judicial Review is concerned with the decision-making process not with the merits of the decision itself. The court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision, the decision maker took into account irrelevant matters. The court should not act as a court of appeal over the decider which would involve going into the merits of a decision itself, such as whether there was or there was not sufficient evidence to support the decision. It is the duty of the decision maker to comply with the law in coming to its decision and common sense and fairness demand that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorized by the statue creating it and, in the manner, authorized by statute.” 13.In Republic vs. Retirement Benefits Appeals Tribunal; Post office savings Bank & Another (interested Parties); Kalume & 75 others (Ex parte Applicant) [2025] KEHC 5419 (KLR), it was asserted that “Judicial Review is not an appeal mechanism.” Judicial Review is not intended to be a way to appeal or re-examine the substantive merits of a case, it focuses on whether a public body or tribunal acted unlawfully, irrationally, or unfairly in making its decision. 14.The ex parte applicant has failed to demonstrate any illegality, procedural impropriety and irrationality on the part of the 1st respondent, in the handling of the matter that was before it. The legal threshold, for grant of judicial review remedies of certiorari and prohibition, has not been reached. 15.The 1st respondent acted within the jurisdiction conferred upon it by section 76(1) of the Co-operative Societies Act, which defines the jurisdiction of the 1st respondent, with respect to disputes: among members, past members, and persons claiming through members, past members and deceased members; or between members, past members or deceased members, and the society, its committee or any officer of the society; or between the society and any other co-operative society; and as including a claim by a cooperative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such demand is admitted or not, a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt is admitted or not, and a claim by a Sacco society against a refusal to grant revocation of a license or any other due from the authority. 16.I find that the judgement was founded on the financial indebtedness of the ex parte applicant, to the 2nd respondent, and not on allegations of fraud, misconduct or abuse of office. The ex parte applicant participated, throughout, in the proceedings of the 1st respondent, and at no point did she raise a preliminary objection to the jurisdiction of the 1st respondent, to handle the dispute, until when judgement was entered. Secondly, the judgment of the 1st respondent does not touch, leave alone turning, on the employment and labour relationship between the ex parte applicant and the 2nd respondent. The ex parte applicant did not place, before the court, the pleadings filed by the 2nd respondent, to demonstrate that the same framed an employment and labour relations dispute. This application is, no doubt, a mischief to avoid execution being levied on the ex parte applicant, with respect to the judgement that was delivered on 29th January, 2026. 17.In the end, I find that the ex parte applicant has not satisfied the court that she is entitled to any of the orders sought in her motion, dated 8th May 2026, and the same is hereby dismissed, with costs to the 2nd respondent. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 24TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.Ms. L Wafula, Legal Researcher.AdvocatesMr. Muthama, instructed by Anyanzwa JS Advocates, for the ex parte applicant.Ms. Munyao, instructed by Chege Kibathi & Company LLP, for the 2nd respondent.