Kariua Farmers Co-operative Society Ltd v Commissioner for Co-operative Development & Commissioner for Co-operative Development Murang’a County; Mumathi Staff Savings & Credit Co-operative Society Ltd (Interested Party) [2019] KEHC 10587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

PETITION NO. 49 OF 2018

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

VERSUS

COMMISSIONER FOR

CO-OPERATIVE DEVELOPMENT.….........….……………..1ST RESPONDENT

COMMISSIONER FOR CO-OPERATIVE

DEVELOPMENT MURANG’A COUNTY…….............…….2ND RESPONDENT

MUMATHI STAFF SAVINGS & CREDIT

CO-OPERATIVE SOCIETY LTD…………...................…INTERESTED PARTY

RULING

1. The root of the dispute is the failure by the petitioner to remit check-off deductions of Kshs 2,484,535. 90 to the interested party. But the action has been clothed as a constitutionalpetition.

2. Both the petitioner and the interested party are co-operative societiesregistered under the Co-operative Societies Act. I thus asked the parties to first address me on the question of jurisdiction.

3. It is alleged that on the 20th December 2006, the 1st respondent issued agency notices to the petitioner to enforce the payment under section 35 of the Co-operative Societies Act.Subsequent agency notices were issued in 2007 and 2009. Under section 35 of the Act, the deductions from members should be remitted within seven days.

4. The petitioner’s case is that the 1st respondent did not accord it a fair hearing; that a proper inquiry was notconducted; and, that the action was capricious.

5. The interested party in the meantime filed at the Co-operative Tribunal Civil Suit Number 557 of 2014 Mumathi Staff Savings & Credit Co-operative Society Ltd v Kariua Farmers Co-operative Society Ltd. That claim is partly heard by the Tribunal; and, the interested party has closed its case.

6. The petitioner now seeks the writ of certiorari in this court to quash the agency notices. But it is evident that the principal questions revolve around the interpretation of the agency agreement between the parties; the powers of the Commissioner of Co-operatives under sections 3, 35, 51, 58, 59, 61, 73 and 74 of the Act; and, the validity of the various agency notices.

7. 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 or contractual obligations of the two co-operative societies. However the action is camouflaged as a constitutionalpetition founded on Articles 2, 19, 22, 23, 24, 27, 47, 165, 258 and 259 of the Constitution. When unpacked, all that the petitioner seeks is a writ of certiorari to quash the impugned agency notices.

8. The core dispute, 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. I am fortified by the fact that the disputants are already litigating over the same subject matter before the Tribunal.

9. Jurisdiction is everything. Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1. I am not seized of jurisdiction.

10. I thus strike out the petition suo motu but with leave to ventilate the dispute before the Co-operative Tribunal.

11. 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’A this 17th day of January 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

No appearance by counsel for the petitioner.

Mr. G. K. Kimani holding brief for Ms. R. Kimani for the respondents instructed by R. M. Kimani & Company Advocates.

No appearance by counsel for the interested party.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.