Kangiri Farmers Co-operative Society Ltd v Attorney General,Murang’a County Co-operative Commmissioner, Edward Maina, County Government Of Murang’a, James Kibugu, William Waweru Hezron, Peter Waweru Gichia, John Mwangi, Peterson Maina Njoroge, Lincoln Macua, Billy Gichuki & Kaihura Karanja [2018] KEHC 3925 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CONSTITUTIONAL PETITION NO. 48 OF 2018

KANGIRI FARMERS CO-OPERATIVE SOCIETY LTD…....................…..PETITIONER

VERSUS

ATTORNEY GENERAL……..……………………..…..….……............1ST RESPONDENT

MURANG’A COUNTY CO-OPERATIVE COMMMISSIONER.…..2ND RESPONDENT

EDWARD MAINA……………………………………………...……….3RD RESPONDENT

COUNTY GOVERNMENT OF MURANG’A…….........................…..4TH RESPONDENT

JAMES KIBUGU……………………..................................................…5TH RESPONDENT

WILLIAM WAWERU HEZRON……..............................................….6TH RESPONDENT

PETER WAWERU GICHIA...................................................................7TH RESPONDENT

JOHN MWANGI…….............................................................................8TH RESPONDENT

PETERSON MAINA NJOROGE….....................................................9TH RESPONDENT

LINCOLN MACUA.............................................................................10TH RESPONDENT

BILLY GICHUKI.................................................................................11TH RESPONDENT

KAIHURA KARANJA........................................................................12TH RESPONDENT

RULING

1. The dispute relates to the business and management of a co-operative society. But it has been presented as a constitutional and human rights petition.

2. I thus asked the parties to first address me on the question of jurisdiction.

3. Kangiri Farmers Co-operative Society Limited (hereafter the society) is registered under the Co-operative Societies Act. Two factions of its members are fighting over the control of the society.

4. It is alleged that the 5th to 12th respondents have attempted to remove the management committee from office unlawfully; or, without complying with the bye-laws or the Co-operative Societies Rules. It is alleged further that the 5th respondent has stationed armed hoodlums outside the premises of the society; and, prevented the Chairman and the Treasurer of the society from accessing their offices.

5. The petitioner contends that the 5th respondent has tacit support of the 3rd and 4th respondents or other agents who are hostile to the current management of the society.

6. Furthermore, there is a disputed special general meeting of the society held on 9th August 2018 which was supervised by the 2nd respondent. The petitioner’s case is that the meeting did not raise the two thirds quorum required by the bye-laws or the Co-operative Societies Rules.

7. Although the petitioner seeks declarations that the respondents have violated Articles 2, 10, 19, 27, 36, 40, 232 and 260 of the Constitution, the principal reliefs sought are in prayers (vii) to (x) of the petition to wit: apermanent injunction to restrain the 3rd to 12th respondents from entering the offices of the society at Loc. 18/Gachocho/2123; a permanent injunction to restrain those respondents from interfering in the management or business of the society; or, molesting or intimidating the employees of the society; and, lastly, an order to remove the panga wielding gangs from the society’s premises.

8. It is not disputed that the 5th to 12th respondents are members of the society. It is also pleaded that the 2nd, 3rd and 4th respondents are acting at the behest or as agents of one of the belligerent faction of members.

9. I cannot comment on the merits of the action at this stage. But it is clear to me that the petition and reliefs sought revolve around the business and management of the co-operative society. However the action is camouflaged as a constitutional and human rights petition. It is a dispute that, in the first instance, belongs to the Co-operative Tribunal formed under the Co-operative Societies Act. Any aggrieved party would then be entitled to an appeal to the High Court under section 81 of the Act.

10. Jurisdiction is everything. SeeOwners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited[1989] KLR 1.

11. I thus strike out the petition suo motu but with leave to the petitioner to lodge the dispute in the Co-operative Tribunal.

12. In the interests of justice, I order that each party shall bear its own costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’Athis 2nd day of October 2018.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Mr. Chege holding brief for Dr. Kamau Kuria for the petitioner instructed by Kamau Kuria & Company Advocates.

No appearance by the 1st to 12th respondents.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.