https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10753

Tower Savings and Credit Co-operative Society Ltd v Commissioner for Co-operative Development & another (Constitutional Petition E002 of 2026) [2026] KEHC 10753 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10753 (KLR) Republic of Kenya In the High Court at Nyahururu Constitutional Petition E002 of 2026 LN Mutende, J July 9, 2026 IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 22, 23, 27, 36, 40, 47, 48, 50, 73, 159, 165, 174, 232 AND 258 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT NO 4 OF 2015 AND IN THE MATTER OF THE CO-OPERATIVE SOCIETIES ACT, CAP 490 LAWS OF KENYA AND IN THE MATTER OF CIRCULAR NO. CCD/2025/001 ON TRANSITION FROM GENERAL MEMBERSHIP TO DELEGATE SYSTEM OF GOVERNANCE Between Tower Savings and Credit Co-operative Society Limited Petitioner and The Commissioner for Co-operative Development 1st Respondent The Cabinet Secretary, Ministry of Co-operative and Micro, Small and medium Enterprises Development 2nd Respondent Ruling 1.By a Notice of Motion dated 8/6/2026, the Applicant seeks orders thus;a.Spentb.Spentc.Spentd.Spente.Pending the hearing and determination of the Petition, a conservatory order be and is hereby issued suspending, implementation, enforcement and operation of Circular No CCD/2025/001 dated 18th June 2025 and the reminder issued pursuant thereto on 13th April 2026 against the Petitioner/Applicant.f.Pending the hearing and determination of the Petition, a conservatory order be and is hereby issued restraining the Respondent from compelling the Petitioner/Applicant to abandon the general membership governance model or to adopt the delegate system of governance.g.Pending the hearing and determination of the Petitioner, a conservatory order be and is hereby issued restraining the Respondents from suspending, revoking, invalidating or otherwise interfering with the Petitioner/Applicant’s registered by-laws.h.The costs of this Application be provided for. 2.The application is premised on grounds that;a.The Petitioner is a registered deposit-taking co-operative society governed by the Constitution, the Co-operative Societies Act, the Sacco Societies Act, applicable regulations and its registered by-laws.b.The Respondents issued or caused to be issued Circular No, CCD/2025/001 dated 18th June 2025 compelling Sacco societies with membership exceeding 5,000/= members to adopt a delegate system of governance.c.The said circular directly affect the Petitioner’s internal governance structure and the rights of its members to participate directly in the affairs of their Society.d.The Petitioner placed the issue before its members during the Special General Meeting held on 27th September 2025 and the Annual General meeting held on 24th January 2026.e.The members opposed the directive and resolved to retain the general membership governance model.f.At the AGM held on 24th January 2026 members unanimously voted against adoption of the delegate system.g.The 1st respondent has threatened adverse administrative action, including suspension of the Petitioner’s by-laws upon expiry of the extended compliance period on 18th June 2026.h.Unless conservatory orders are granted, the Petition will be rendered nugatory.i.The Petitioner and its members will suffer irreparable constitutional prejudice if compelled to surrender direct democratic participation before the Petition is heard.j.The public interest favours preservation of the existing governance structure pending determination of the Petition. 3.The application is supported by an affidavit deponed by the Applicant’s legal officer; and, it is unopposed. 4.To obtain the order sought the Applicant is required to demonstrate existence of a prima facie case with a likelihood of success; that the Petition shall be rendered nugatory unless the order sought is granted; and, that the public interest tilts towards grant of the order. 5.In Law Society of Kenya v Attorney General & Judicial Service Commission [2020] eklr it was stated that;“At this stage I am alive to the fact that the court is not supposed to examine the merits of the petition but has to consider whether the petitioner has established a prima facie case to warrant interim orders of protection in order to secure the substratum of the suit and not to render the petition herein nugatory and become a mere academic exercise.” 6.The application herein being unopposed the averments of the Applicant are what is expressed for determination. 7.The Applicant has demonstrated that the Respondent intends to compel them to abandon some general membership, a governance model that has existed all along. It would be imperative for parties to be heard so as to determine what is suitable for the membership stated to comprise of more than 5,000 in number. 8.In that regard, without any opposition, the case is arguable which would make them suffer irreparable harm if orders sought are not granted as the Petition would be rendered nugatory. 9.It is stated that implementation of the impugned circular will occasion grave prejudice to the members of the Petitioner as it will amend the Applicant’s governance model. This calls for preservation of status quo therefore there is need to uphold the constitutional rights of the public involved pending determination of the petition. For that reason, I grant orders thus; a.Pending hearing and determination of the Petition;A.conservatory order be and is hereby issued suspending enforcement of Circular No. CCD/2025/001 dated 18/6/2025 and the reminder issued on 13/4/2026;B.The Respondents are restrained from compelling the Petitioner to abandon the general membership governance model; and, suspending, revoking, invalidating or otherwise interfering with the Applicant’s registered by-laws;C.Costs to abide the outcome of the Petition.It is so ordered. DATED, SIGNED AND DELIVERED ON 09TH JULY, 2026HON L. MUTENDEJUDGE