BONIFACE NDUI & 9 others v FRANKLIN MAINA & 3 others [2009] KEHC 1896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION 148 OF 2009

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PROCEEDINGS IN THE NATURE OF CERTIORARI & PROHIBITION AGAINST THE COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT BY BONIFACE NDUI, JONATHAN MWEU NDONYE, RAPHAEL WAMBUA MAINGA, ISAAC MAKAU MUTUA, JOSEPH MUTISYA KALUVYU, JOHN MUNYAO MUINDI, JOHN KITHUKA DAUDI, JONES MUTUKU MWELE, HENRY MUSEMBI AND STEPHEN NZIOKA NGATI

AND

IN THE MATTER OF LAW REFORM ACT

AND

IN THE MATTER OF COOPERATIVE SOCIETIES ACT NO. 12 OF 1997

AS AMMENDED BY ACT NO. 2 OF 2004

BETWEEN

1.    BONIFACE NDUI

2.    JONATHAN MWEU NDONYE

3.    RAPHAEL WAMBUA MAINGA

4.    ISSAC MAKAU MUTUA

5.    JOSEPH MUTISYA KALUVYU

6.    JOHN MUNYAO MUINDI

7.    JOHN KITHUKA DAUDI

8.    JONES MUTUKU MWELE

9.    HENRY MUSEMBI

10.    STEPHEN NZIOKA NGATI…………………...……. APPLICANTS

V E R S U S

1.    FRANKLIN MAINA

2.    JANE NJUGUNA

3.    COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT

4.    THE HON. ATTORNEY GENERAL.....................RESPONDENTS

R U L I N G

Before me is a Chamber Summons dated 12th March, 2009 filed by Timothy Mulekyo advocate for the applicants, who are 10 in number.  The application was filed under Order 53 rule 1, 2, 3 and 4 of the Civil Procedure Rules and section 3 and 3A of the Civil Procedure Act.  The orders sought are that-

1. This Court be pleased to grant leave to theApplicants to commence judicial review proceedings for-

(a) An order of certiorari to quash the findings of the inquiry report on Mbilini Farmers Cooperative Society Limited(CS/No. 0798)to surcharge the applicants.

(b)   An order of prohibition directed to the 3rd respondent prohibiting him or anyone else acting under his authority from surcharging or taking any adverse actions against the Applicant on the basis of the inquiry report on Mbilini Cooperative Society Limited.

2.   The grant of leave do operate as a stay on the implementation of the recommendations of the inquiry report on Mbiuni Farmers Cooperative Society Limited (CS/NO. 0798) by the 3rd respondent.

3.   Costs of this application be provided for.

The application was filed with a supporting affidavit sworn by STEPHEN NZIOKA NGALI, one of the applicants on 12th March, 2009.  It was deponed in the said affidavit, inter alia, that the 1st and 2nd respondents handed over a report to the 3rd respondent; that in the said report several adverse findings were made against the applicants and in particular there was a recommendation for surcharge of a total of Kshs.353,000/=; that the 3rd respondent wrote to the applicants to  show cause within 14 days why they should not be surcharged a total of Kshs.353,000/=.

At the hearing Mr. Mulekyo appeared for the applicants while Mr. Abuta appeared for the respondents.  The respondents’ counsel argued that the application was fatally defective as it was not filed with a STATEMENT and VERIFYING AFFIDAVIT.  Counsel contended that they were not served with the subject documents.  Secondly, counsel argued that there was existing procedure under the Cooperative Societies Act (Cap. 490) for appeal, which should have been followed instead of filing judicial review proceedings.

Having considered the application and submissions of both counsel, I find that a verifying affidavit and statement were filed with the Notice to the Registrar.  Therefore, in my view, there is no defect with regard to those two documents.

In my view also, the availability of an alternative remedy, per se, is no bar to judicial review proceedings.  Each case has to be considered on its own facts.

As for the merits, I find that the applicants have demonstrated an arguable case.  I will grant leave to file judicial review proceedings.

I have been requested to grant stay orders.  In my view, if stay orders are not granted, the applicants stand to suffer substantial loss.  I will therefore grant stay.

Consequently, I order as follows-

1.   Leave is granted to the applicants to file judicial review proceedings for certiorari and prohibition as requested.  The Notice of Motion will be filed within 21 days form today.

2. The grant of leave herein will operate as a stayas requested until 22/7/2009 unless varied or extended by this court.

3. Mention on 22/7/2009.

Dated and delivered at Nairobi this 18th day of June, 2009.

George Dulu

Judge.