JULIUS MWANIKI KIHAMBA & another v COMMISSIONER OF CO-OPERATIVE DEVELOPMENT & 2 others [2009] KEHC 1427 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

MISC APPLI 371 OF 2007

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS FOR MANDAMUS, CERTIORARI &PROHIOBITION

AND

IN THE MATTER OF SECTION 61 OF THE CO-OPERATIVE SOCIETIES ACT CAP.490 LAWS OF KENYA

AND

IN THE MATTER OF MURUKA FARMERS CO-OPERATIVESOCIETY LIMITED

AND

IN THE MATTER OF CRIMINAL COURT PROCEEDINGS IN DMCC’S COURT CR. CASE NO. 195/2007 (KANDARA)

BETWEEN

JULIUS MWANIKI KIHAMBA....................................................... 1ST APPLICANT

GEORGE ITONGU KIRAGU......................................................... 2ND APPLICANT

(MURUKA FARMERS CO-OPERATIVE SOCIETY LIMITED)

APPLYING FOR AND ON BEHALF OF ABOUT 3,000 MEMBERS OF

VERSUS

COMMISSIONER OF CO-OPERATIVEDEVELOPMENT..1ST RESPONDENT

MANAGEMENT COMMITTEE, MURUKA FARMERS

CO-OPERATIVE SOCIETY LTD.............................................2ND RESPONDENT

DISTRICT MAGISTRATE,KANDARA LAW COURT.........3RD RESPONDENT

JUDGMENT

What had come up for hearing before me was the Chamber Summons dated 12. 4.07 filed by the Applicant, Julius Mwaniki Kihamba and George Itongu Kiragu who claimed to be applying on behalf of 3000 members of Muruka Farmers Co-operative Society Ltd.  They sought leave of the court to commence Judicial Review Proceedings against the Commissioner of Co-operative Development, Management Committee, Muruka Farmers Co-operative Society Ltd and the District Magistrate Kandara Law Courts – 1st to 3rd Respondents.  The Applicant sought leave to seek the following orders:-

(1)       Leave to apply for an order of mandamus directed against the 1st Respondent to compel him to order an inquiry into the management of Muruka Farmers Co-operative Society.

(2)       Leave to apply for an order of mandamus directed at the 1st Respondent to compel him to convene a special general meeting of Muruka Farmers Co-operative Society and keenly address the members grievances against its management committee.

(3)       Leave to apply for an order of certiorari to remove and  bring to the High Court for purposes of quashing the meeting of Muruka Farmers Co-operative Society held on 8/3/07 at the Society’s head office.

(4)       Leave to apply for an order of prohibition directed at the current management committee of the Co-operative Society prohibiting them from further conducting the business or adopting the implementation, the resolutions passed on the purported Annual General Meeting of the Co-operative Society held on 8/3/07 at the Society’s Local Office.

(5)       Leave to apply for an order of prohibition to prohibit the 3rd Respondent from proceeding with Criminal Case 165/07 investigated by agents of the 1st and 2nd Respondents.

(6)       Leave granted, to operate as stay of the implementation of the resolutions passed at the purported Annual General Meeting of 8. 3.07.

(7)       Costs be provided for.

When the Applicants came to court ex parte as is required by order 53 Civil Procedure Rules,  the court directed that the Chamber Summons be served and heard inter partes: For one reason or the other, the application for leave has never been heard and when it came up for hearing inter partes on 16/7/09, the 1st Applicant who addressed the court told the court that the meeting had been convened, they had been acquitted of the offence that they faced in Kandara court,  and all the prayers sought had been overtaken by events.  What was left for determination was the issue of costs which they contend they should not be condemned to pay because they are not the cause of the delay.  Counsel for the 1st Respondent insists that they be paid costs because the application was an abuse of the court process and they have come to court severally.

Mr. Nyakundi counsel for the 2nd Respondent also added his voice to the prayer for costs arguing that the Muruka Co-operative Society has over 3,000 members and there is no evidence that the Applicants acted for the members when they filed the Notice of Motion and that their capacity in questionable.  That the application was malicious and it was an abuse of the court process.  That the Applicants were aware that the Commissioner had conducted an enquiry and concluded in May 2007 and the application was made when the two cases were ongoing and that this application should have been terminated earlier in 2007.  Mr. Meso counsel for the 3rd Respondent did not insist on getting the costs  arguing that  the Applicants acted in person, the prayers sought were overtaken by events and they were even acquitted of the charges they sought to prohibit due to the delay.

I have considered the prayer for costs.  It is worth noting that this application was filed by the two applicants acting in their personal capacity.  It is the court that directed that the matter be heard inter partes.  It is also not in dispute that the matter was not heard on merit but due to the delay, the prayers have been overtaken by events including the prayer that the Applicants sought to prohibit the Kandara court for trying them.  They have been acquitted of the charges.  They were acquitted under S.215 their case may have as well had some merit.  The Applicants have generally attended this court without fail.  However sometime due to non service or absence of the defence counsel, the matter has been adjourned.  The delay in hearing of the matter that rendered the prayers spent  is not entirely on the Applicants.

The 1st and 2nd Respondents claim that the proceedings were mischevious and have taken long but the application was not considered on merit nor can the delay be wholly attributed to the Applicants.

Ordinarily costs would follow the event.  In this case, the prayers having been overtaken by events, it is not even clear what the event would have been and in exercise of this court’s discretion and taking into account all the circumstances of this case, I order that each party bears their own costs.

It is so ordered.

Dated and Delivered this 24th day of July 2009

R.P.V. WENDOH

JUDGE

Present

Applicants in person  - present

Mr. Mutai holding brief for Mr. Nyamichaba for 1st Respondent

Mr. Maina C.K. holding brief  for Mr. Meso for 3rd Respondent and Mr. Meso

Muturi court clerk