https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7727

Republic v Mathira West Sub-County Cooperative Officer & 2 others; Kiumi & another (Ex parte Applicants) (Judicial Review Application E003 of 2025) [2026] KEHC 7727 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7727 (KLR) Republic of Kenya In the High Court at Nyeri Judicial Review Application E003 of 2025 DKN Magare, J May 28, 2026 IN THE MATTER OF THE COOPERATIVES ACT AND IN THE MATTER OF THE LAW REFORM ACT, SECTIONS 8 AND 9 AND IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION AND IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT Between Republic Applicant and Mathira West Sub-County Cooperative Officer 1st Respondent New Tekangu Farmers Cooperative Society Limited 2nd Respondent and Fredrick Ndirangu Weru Interested Party and Gerald Kariuki Kiumi Ex parte Applicant Starnely Ndiritu Karinga Ex parte Applicant Judgment 1.This is a judgment in respect of the Judicial Review Application dated 17.3.2025. The Applicant is seeking for orders as follows:a.The court be pleased to issue an order of certiorari removing to this court for the purpose of quashing the decision of the Subcounty Cooperative Officer, Mathira West made on 12.2.2025 cancelling the election of the Interested Party, Fredrick Ndirangu Weru as the Chairman, Ngunguru Coffee Factory and ordering for fresh elections for that post on 10.3.2025.d)Costs 2.The application is premised on the grounds on its face and is supported by the affidavit of the even date, sworn by the Applicant. 3.It is deposed as follows:i.The Interested Party had been proposed as chairman in the elections that were held on 22.1.2025.ii.Handing over of the office was duly and peacefully done and the Interested Party took over office.iii.The 2nd Respondent called its annual general meeting held on 12.2.2025 and announced cancelling of the election of the Interested Party.iv.The 2nd Respondent then issued a notice constituting repeat elections dated 17.2.2025.v.No reasons were given as to the cancellation of the election of the interested party.vi.The Applicant was invited to appear before the Senate Committee on 11.2.2025 and appeared before the Disciplinary Committee without any prior notice.vii.The cancellation affected the ex parte Applicants’ right to elect an official of their choice.viii.The concerns of the ex parte applicants and the interested party were not considered and the right to natural justice was infringed.ix.The 1st Respondent had no power to cancel elections and were ultra vires. 4.The 2nd Respondent filed a Replying Affidavit sworn by Monica Wachira on 29.7.2025 on the material grounds that:a.She received a petition challenging the election of the interested party signed by 113 members.b.There were issues related to lack of member verification, bribery and drunkard voting and voting by recently registered share B members.c.The elected person at factory level was not presented at the GM for approval as required and this was an irregularity.d.The issues raised were to be address on 12.2.2025.e.The members agreed to the irregularities that marred the elections as required under rule 28 of the general meeting.f.The general meeting had power to elect or remove members under Rule 29.g.The application arises from matters that were marred with illegality from which the Applicants cannot benefit. Submissions 5.The Applicant filed submissions dated 21.5.2025. It was submitted that the 1st Respondent was a public body and did not challenge the case against it and should be held liable. They cited inter alia the case of R v Barsley Borough Council (1976) WLR 1052. 6.It was submitted that the burden was on the public body to demonstrate that they followed the procedure and its actions were not irregular, unprocedural and ultra vires. 7.The Respondents opposed the application and stated that the decision was left to the general meeting to resolve the issues. Members have always devised ways of resolving their issues as coffee societies. They relied on the legal maxim of ex turpi cause non oritur action. 8.They submitted that the elections resulted in election of a third party, Wilson Waihenya Kariuki who is not party to the suit. They pleaded audi alterum partum. Analysis 9.The Applicant maintained that the acts of the Respondent were irregular, illegal and infringed on Article 47 of the Constitution as it violated the Applicants’ right to choose their desired representative and imposed an unwarranted official upon them. On the other hand, the Respondents appear to maintain the position that the decision was proper and in compliance with the Rules of the General Meeting and the Cooperatives Societies Act. 10.The right to fair administrative action is enshrined under Article 47 of the 2010 Constitution as doth;(1)Every person has the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration. 11.In light of the matters under this Judicial Review Application, the court is concerned with the decision-making process, not with the merits of the decision itself. The procedure appertains whether the Respondents had the jurisdiction, whether the Applicant who was affected by the decision was heard before the decision was made and whether in making the decision the Respondents took into account relevant matters or did take into account irrelevant matters. In the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR, the Court of Appeal held that: -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 relevant matters or did take 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 the decision itself-such as whether there was or there was not sufficient evidence to support the decision.’ 12.The cadre of judicial review under our constitutional dispensation is higher and administrative law is now hinged on Article 47 of the Constitution whose effect is to be enforced as a threat to the right to fair administrative action. Under this pretext, the state’s administrative bodies only act within their mandate and not more and for whatever is done outside the mandate, judicial review is the corrective measure. In Daniel Ingida Aluvaala and another vs Council of Legal Education & Another,[ Pet No. 254 of 2017]I observed that:-“Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decisions to be allowed to stand, it must be demonstrated that the decision is grounded on law. 13.The constitution has thus embedded into our legal system a transformative development of administrative justice which not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies but also entrenches the right to fair administrative action in the Bill of Rights. In Judicial Service Commission vs. Mbalu Mutava & Another [ {2015} eKLR] the Court of Appeal held that:-“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.” 14.The importance of fair administrative action as a Constitutional right was appreciated in the South African case of President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others CCT16/98) 2000 (1) SA 1 at paragraphs135 -136 as follows with regard to similar provisions on just administrative action in Section 33 of the South African Constitution:-“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” 15.As a derivative of Article 47 of the Constitution, Section 7(2) of the Fair Administrative Action Act, 2015 provides for grounds of Judicial Review which include bias, procedural impropriety, ulterior motive, failure to consider relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power. 16.It was the duty of the ex parte Applicants to prove how the infringement of their fair administrative rights was occasioned. Then, the Respondents would be expected to bring material before this court to justify the assertion that they acted in compliance with the General Meeting. 17.The response furnished by the 2nd Respondent was reasonable and not controverted. The ex parte Applicants’ case was that their right to choose a representative was denied through acts of the respondents that were ultra vires, irrational and illegal, leading them to be subject to a leader they would not have chosen and denying them the Interested Party as their duly elected leader that themselves voted and selected. It is trite law that elections in cooperative societies are by democratic processes. The 2nd Respondent’s case was that 113 members voted in disapproval of the election that the Interested Party had been declared winner. This fact was not controverted by the Applicants. The Interested Party himself did not actively participate in the case and appeared to rely on the pleadings by the ex parte Applicants. 18.Based on the above analogy, the ex parte Applicant sought certiorari order. The principles for Judicial Review reliefs were set out in a land mark case of Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996, where the Court of Appeal stated inter alia:‘An order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted unprocedurally, that his decision was unreasonable and that the impugned decision was illegal.’’ 19.Having found that the actions of the 2nd Respondent were not proved to be irrational, unreasonable and ultra vires, as demonstrated by the Response that was not controverted, I am not inclined to issue judicial review prerogative orders of certiorari in favour of the ex parte Applicants. 20.On costs, an award of costs in this court are governed by Section 27 of the Civil Procedure Act. They are discretionary. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. 21.Although costs follow the event, the court takes note of the special relationship of the parties herein. I direct each party to bear their own costs. Determination 22.The upshot is that I make the following orders: -a.The application dated 5.3.2025 is devoid of merit and is dismissed.b.Each party to bear own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for partiesCourt Assistant – Martin