[2022] KEHC 10681 (KLR)

Republic v National Transport and Safety Authority & 2 others; Maina & 3 others (Exparte) (Miscellaneous Civil Application 267 of 2019) [2022] KEHC 10681 (KLR) (Judicial Review) (25 March 2022) (Ruling)

Neutral citation: [2022] KEHC 10681 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application 267 of 2019

J Ngaah, J

March 25, 2022

Between

Republic

Applicant

and

National Transport and Safety Authority

1st Respondent

Co-Operative Tribunal

2nd Respondent

Mwiki Sacco PSV Savings Credit Co-Operative Society Limited

3rd Respondent

and

Peter Maina

Exparte

Wilson Gitau

Exparte

Margaret Mwangi

Exparte

Simon Karangu

Exparte

(Tribunal Case No. No. 454 of 2019 Tribunal Case 54 of 2019 )

Ruling

1. Before court is a chamber summons dated 12 September 2019 brought under order 53 rules 1 and 2 of the Civil Procedure Rules. The application seeks the following orders:1. That this application be certified as extremely urgent to be heard forthwith.2. Thatleave be granted to the applicants to apply for judicial review orders of:Certiorarito remove into this Honourable court to quash the decision of the National Transport and Safety Authority refusing to investigate and or act on a complaint dated 8. 8.2019 lodged by the Applicants concerning the management of Public Transport Business under the 3rd Respondent where extortion and illegal money collection by ex-Mungiki and other illegal gangs is being adopted and legitimized by the 2nd Respondent as daily operation fees of Kshs.500/= per vehicle contrary to the law and the by-laws of the 3rd Respondent.Prohibitiondirected against the Co-operative Tribunal prohibiting it from conducting, hearing and or carrying out investigations and/or issuing pronunciations or determinations or orders regarding the Applicants running of their Public Transport Business and or issuing orders compelling the Applicants independently, jointly and/or severally to pay daily operation fees of Kshs.500/= per vehicle to Mwiki PSV Savings Credit Co-operative Society Limited which is a pure preserve and jurisdiction of the National Transport and Safety Authority.Certiorarito remove into this Honourable court to quash the decision by the Co-operative Tribunal to investigate the complaint filed with the Co-operative Tribunal by Mwiki PSV Savings and Credit Co-operative Society Limited about the management and running of Public Transport Business where the Co-operative Tribunal has ordered the applicants individually, jointly and or severally to pay daily operation fee to Mwiki PSV Savings and Credit Co-operative Society Limited of Kshs.500/= per vehicle from 2/8/2019. 3.Thatthe leave if granted do operate as a stay of the hearing by the Co-operative Tribunal that is scheduled for 20/11/2019 and any subsequent hearing on the running, management and operation of the applicants’ Public motor vehicles and or collections of the daily operation fees of Kshs.500/= per vehicle.4. That costs be borne by the Respondents.”

2. The application is based on a statement of facts dated 12 September 2019 and a verifying affidavit sworn by the 4th applicant on even date.According to the deponent, the applicants are all members of the 3rd respondent Sacco Society and own a total of 34 buses. Of these buses Peter Maina owns five, Wilson Gitau has six, Margaret Mwangi owns eight and Simon Karangu owns twelve.

3. It is deposed that the applicants have been condemned by the 3rd Respondent to pay the sum of Kshs.500/= per vehicle per day which amount is collected at bus stations by illegal gangs through extortion and threats.The 3rd respondent is alleged to have abdicated its responsibility of running its affairs and managing members’ businesses strictly in accordance with its by-laws and the Co-operative Act by allowing the collection of illegal levies.

4. Although the applicants have previously lodged their complainant with the 1st respondent, the latter has declined to act. They contend that the daily operation fees of Kshs.500/= is allegedly supposed to assist the 3rd respondent manage its affairs and therefore the issue is directly within the 1st respondent’s docket.

5. The applicants also allege that they were previously officials of the 3rd respondent but were ejected from office when the 3rd respondent’s town office was closed and moved to Mwiki.In addition to the Kshs.500/= daily fees they have to pay, the applicants are expected to pay a non-refundable fee of Kshs.100/= at the end of each trip which totals to Kshs. 1,400/= for every vehicle per day. The 34 vehicles pay a total sum of Kshs. 47,600/= per day in addition to the Kshs.500/= which the 3rd respondent is now demanding.

6. The applicants also deposed that the 3rd respondent filed a Co-operative Tribunal Case No.453 of 2019. There is also in the Co-operative Tribunal Case No. No. 454 of 2019 in which the same parties were, or, are involved.The applicants are aggrieved by the decision of the 1st respondent in refusing to act on their complaint and the 2nd respondent’s decision to allow and entertain a dispute that does not fall within its jurisdiction.

7. The 1st respondent filed a replying affidavit sworn on 3 October 2019 by Hared Hassan, the 1st respondent’s Deputy Director in charge of Licensing.He has deposed that the daily running of the 3rd respondent, or the affairs of its members or contributions is not the responsibility of the 1st respondent. According to Hassan, the 1st respondent does not register individual member’s operating license but it only does through companies registered under the Companies Act and the Co-operative Societies Act.

8. The 1st respondent has also urged that leave should not be granted as the applicants are intent on circumventing a decision that has been rendered by the Co-operative Tribunal in respect of the same dispute that they have now escalated to this honourable court.The 1st respondent also deposed that if the applicants are not satisfied with the services of the 3rd respondent they are free to move to other Saccos or even form their own Sacco so long as they meet the requirements set by the law which include having a minimum number of thirty serviceable motor vehicles.

9. It is also the 1st respondent’s case that the applicants have not exhausted internal mechanisms for resolution of their dispute and that issues between the Sacco and 1st respondent should be filed and determined at the Transport Licensing Appeals Board.The 2nd respondent did not file any response.On its part, the 3rd respondent filed a replying affidavit sworn on 30 September 2019 by Joshua Githinji who has described himself as the chairman of the 3rd respondent.

10. Mr. Githinji deposed that the instant application is aimed at frustrating the proceedings at the Tribunal where a dispute similar to the one which the applicants seek to bring to this court has been lodged. The application, it is urged, is couched as an appeal but filed as a judicial review application. He has urged that if the applicants were dissatisfied by the orders apparently issued by the Tribunal they ought to have filed an appeal against the tribunal’s orders in this Honourable Court.

11. The applicants are alleged to be perennial litigants and have filed other numerous suits such as Civil Suit No 820 of 2019, Wilson Gitau, Peter Maina and Margaret Mwangi v Mwiki PSV Sacco and Cooperative Tribunal Case No.526 of 2019; Simon Karangu vs. Mwiki PSV Sacco Society Limited.

12. They only commenced filing numerous suits immediately after they were voted out of office for financial impropriety. Mr. Githinji has also deposed that the applicants have failed to demonstrate how the order by the 2nd respondent is discriminatory and how they are the only ones affected when other members of the 3rd respondent have been paying their fees. The fees were paid without any complaint when the applicants were officials of the 3rd respondent.

13. I have considered the application, the affidavits filed in support of and in opposition to the application. I have also considered the submissions by parties on their respective positions. Although parties have submitted substantially on the merits of the applicants’ case it must not be forgotten that the application before court is for leave to file the substantive motion for judicial review orders. Until it is granted, it would be futile to delve into merits of the case. What concerns the court at the moment is whether the applicants have demonstrated that they have a case which, if leave was to be granted, would be arguable.

14. In considering whether leave should be granted or not, one issue that has stood out and which, by its very nature, I have to consider in limine is that of jurisdiction. That is whether this Honourable Court has the requisite jurisdiction to entertain the suit that the applicants are intent on filing.It is clear from the verifying affidavit that the applicants are members of Mwiki Sacco PSV Society Limited, the 3rd respondent in this application. It is also clear from the same affidavit that they are aggrieved by the Sacco’s decision to charge them, amongst other members of the society, a daily fee in order for their public passenger vehicles to operate under the umbrella of the society.

15. This is clearly a dispute between members of the society and the society. It is a dispute that falls under one of the categories of disputes contemplated under section 76 of the Co-operative Societies Act. That section reads as follows:76. Disputes(1)If any dispute concerning the business of a co-operative society arises—(a)among members, past members and persons claiming through members, past members and deceased members; or(b)between members, past members or deceased members, and the society, its Committee or any officer of the society; or(c)between the society and any other co-operative society, it shall be referred to the Tribunal.

16. What I gather from the affidavits filed by the respective parties is that the dispute is either amongst members of the 3rd respondent it is a dispute that is between members and the society. These are disputes contemplated in section 76 (1) (a) and (b) and which the Act says must be referred to the Tribunal.The Tribunal to which reference has been made is established under section 77 of the Co-operative Societies Act.Without belabouring the point, section 76 (1) (a) and (b) of the Act expressly states in mandatory terms that the dispute which the applicants seek this court to determine ought to be lodged in the Tribunal.

17. Indeed, there is evidence that the society has lodged the dispute before the tribunal in Tribunal Case No. 454 of 2019 against the applicants in this matter and as at the time they filed the instant application an order had been granted by the Tribunal compelling them to pay the fee which they are questioning in these proceedings.The order which was made on 2 August 2019 reads in part:2. That, an order compelling the respondents individually, jointly and/or severally to pay daily operation fees to the applicant of Kshs. 500 per vehicle like all other members of the Sacco do from the date of this orders (sic) onwards is hereby granted pending further directions.3. Parties to file their witness statements and documents in preparation for the main suit.”

18. So, it is clear that at the time the applicants filed the instant application, there was a live dispute over the same issue in the Co-operative Tribunal. The applicant’s application is therefore not only contrary to section 76 of the Co-operative Societies Act but it also an abuse of the due process of this Honourable Court.

19. If, peradventure, if the applicants were not satisfied with the Tribunal’s order, all they were required to do was to invoke section 81 (1) of the Act and file an appeal in this Honourable Court. This section reads as follows:81. Appeal to High Court(1)Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court:Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.

20. It is apparent that judicial review is not an option open to the applicants.Section 9(2) of the Fair Administrative Action Act No. 4 of 2015 reaffirms the position that the effect that the High Court or a subordinate court shall not review an administrative action decision under that Act unless the mechanisms, including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

21. And it has been held by the Court of Appeal in Speaker of the National Assembly v James Njenga Karume [1992] eKLR that …where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”.The applicant’s application is thus not only misconceived but it is also an abuse of the process of the court. Leave is refused and the application dismissed with costs.

SIGNED, DATED AND DELIVERED ON 25 MARCH 2022. NGAAH JAIRUSJUDGE