Doune Farm Limited v Commissioner for Co-operative Development & another; Borop Multipurpose Co-operative Society (Interested Party) (Judicial Review Application E018 of 2023) [2024] KEHC 7041 (KLR) (12 June 2024) (Ruling)
Neutral citation:
[2024] KEHC 7041 (KLR)
Republic of Kenya
Judicial Review Application E018 of 2023
HM Nyaga, J
June 12, 2024
IN THE MATTER OF AN APPLICATION BY DOUNE FARM
LIMITED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
ORDERS OF MANDAMUS
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW
REFORMS ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF SECTIONS 58,59,60,61,62,63,64 OF
THE CO-OPERATIVE SOCIETIES ACT NO.12 OF 1997
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL
PROCEDURE RULES 2010
Between
Doune Farm Limited
Exparte Applicant
and
Commissioner for Co-operative Development
1st Respondent
Co-operative Commissioner Nakuru County
2nd Respondent
and
Borop Multipurpose Co-operative Society
Interested Party
Ruling
1.The ex-parte Applicant herein Doune Farm Limited filed judicial review proceedings herein by way of a Notice of Motion application dated 21st September,2023, seeking the following orders:
II. Costs of these proceedings be borne by the Respondents.
2.The grounds for the application were set out in a statutory statement by the ex parte Applicant dated 21st September, 2023, and a verifying affidavit sworn on the same date by the ex parte Applicant’s director one Richard Kay Muir.
3.It is the Ex parte Applicant’s case that it obtained judgement against the Interested party and was issued with a certificate of taxation on 8th November, 2019 arising from a decree issued on 17th May 2012 in Nairobi Milimani Civil Suit No. 1561 of 2002, and additionally it was issued with a certificate of costs on 24th August, 2021 emanating from a court order issued on 20th February 2020 in Nakuru Civil Appeal No.189 of 2012. That furthermore , it was issued with a certificate of costs against the interested party emanating from a court decree issued on 30th October,2021 in Molo SPMCC No. 80 of 2005 in the sum of Ksh. 754,914/=, inclusive of interests as at 25th July,2014 , awarded costs against the Interested Party, emanating from a court decree in MOLO SPMCC No. 194 of 2005 in the sum of Ksh.95,755/= inclusive of interests as at 23rd September,2010 and costs against the interested party emanating from a court decree in Molo SPMCC No. 63 of 2004 in the sum of Ksh. 329,261/= inclusive of interests as at 4th July,2012
4.The Exparte Applicant contends that the interested party is indebted to it in terms of the aggregate sum of Ksh. two million three hundred and six thousand, seven hundred and twenty seven (Ksh.2, 306,727/-) exclusive of interest accruing, and that the interested party has failed to satisfy the decree of the court despite several reminders.
5.The Ex parte Applicant asserts that upon making an inquiry into the operations of the Interested party from the Respondents, the respondents drafted a report dated 17th June, 2022 whereby they found that the interested party was non-compliant with Section 25 of the Cooperatives Societies Act Cap 490 as their books of account was last registered by the Commissioner for Cooperatives in the year 2005. Consequently, the Respondents gave the interested party 3 months grace period within which to settle the debts owed to it failing which the respondents would proceed to appoint a Liquidator who may declare it insolvent.
6.The Ex parte Applicant avers that it is now over one year and despite several reminders the Respondent has neglected to dissolve the interested party and cancel its registration as stipulated under Section 62 and 62 of the Cooperative Societies Act and as such it has continued to suffer financial loss.
7.The Ex parte applicant is apprehensive that the Respondent’s laxity in implementing the said report and appointing a liquidator will encourage the interested party to continue defaulting in its debts to its detriment.
8.The Interested Party appeared and filed a Notice of Preliminary Objection 1st December, 2023 in response to the application. The Interested Party’s objection is based on four major grounds namely ;-a.That the ex parte Applicant’s application is statute barred by limitation, having been filed outside the prescribed time limit of six months.b.That the Application offends the doctrine of exhaustion as the exparte applicant has not exhausted the internal dispute resolution.c.That the application is sub judice in view of six live litigations pending in court between the parties. Namely; ELC No. 142 of 2019(Formerly Civil Suit No.86 of 2002 Doune Farm Ltd vs. Richard Soi & others and Borop Multipurpose Co-operatives Society LTD; ELC No. E13 OF 2023 Doune Farm Limited Vs Philip Kirui &Others; Nakuru Civil Appeal No. E083 of 2021 Borop Multipurpose Co-operative Society LTD Vs. Doune Farm Limited & 6 Others; Nakuru Civil Appeal No. E024 of 2023 Borop Multipurpose Co-operative Society LTD Vs. Sonaiya Arap Serser & 3 others; ELC Petition No.22 of 2019 Joshua K. Tanui & Others Vs. Borop Multipurpose Co-operative Society Ltd & 2 others & In the Co-operative Tribunal at Nairobi Case No. 06/2010 Borop Multipurpose Co-operative Society Ltd Vs. Sonaiya Serser & Others.d.That the application is fatally defective based on its Intitulement and citing of inapplicable provisions of Civil Procedure Rules on the amendment of pleadings.
9.The Respondents did not file any response and/or participate in this matter.
10.On 6th December, 2023, this Court directed that the Interested Party’s Preliminary Objection would be heard first, by way of written submissions. The parties duly complied.
The Interested Party’s Submissions
11.Citing Section 9(2) of the Law Reform Act and Order 53 Rule 1(1) of the Civil Procedure Rules, the interested party submitted that the instant application has been brought outside the stipulated time frame as the Report the ex parte Applicant seeks to enforce is dated 17th June, 2023 and therefore the entire case herein ought to be struck out suo moto and pronto.
12.In buttressing its submissions, the interested party relied on the cases of Raila Odinga & 6 Others vs Nairobi City Council Nairobi HCCC No. 899 of 1993; [1990-1994] EA 482 for the proposition that the 6 months period within which to seek leave to commence judicial review matters was imposed by the parliament in its wisdom and it is only the parliament which can amend it; Republic vs Council of Legal Education & another Ex parte Sabiha Kassamia & another [2018] eKLR where court in allowing a preliminary objection opined that Section 9(3) of the Law Reform Act and Oder 53 Rule 2 of the Civil Procedure Rules,2010 are couched in mandatory terms ; Milka Nyambura Wanderi & another vs Principal Magistrate's Court Murang'a & 4 others [2014] eKLR where the court dismissed an application for leave which was filed six months after the decision sought to be enforced & Speaker of the National Assembly vs James Njenga Karume [1992] eKLR where the court opined that where there is clear procedure for redress of any particular grievance prescribed by the constitution or an act of parliament , that procedure should be followed strictly.
13.The Interested party further submitted that Judicial Review Proceedings under Order 53 of the Civil Procedure Rules is a special Jurisdiction in law which is neither criminal nor civil and therefore the provisions of the Civil Procedure Rules on the amendment of pleadings are inapplicable in the event a party desires to amend the Judicial Review or seek enlargement of time under Order 50 Rule 6 of the Civil Procedure Rules, and as such the instant judicial review is fatally defective and no life can be breathed and or injected into it. In support of this position, reliance was placed on the case of Commissioner of Lands vs Kunste Hotel Ltd. (1995-1998) EA.
14.The Interested party urged this court to strike out and/or dismiss this matter with costs to it.
15.The Interested party also asked this court to deem the other grounds of preliminary objection not highlighted as abandoned.
Ex-parte Applicant’s Submissions
16.Citing the cases of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969)EA 696 & Oraro vs. Mbaja [2005] 1 KLR 141, the Ex-parte Applicant submitted that the Interested Party’s P.O. is not merited as there are contentious facts between the parties which needs to be ascertained through hearing of the application on merits.
17.The Ex-parte applicant submitted that the orders sought in its application are twofold and it is clear the interested party has no contention in regards to prayer 1(b) as its P.O. only pertains to prayer 1(a).
18.The Ex-parte applicant posited that the interested party’s P.O. has been brought under the wrong provisions of the law as it relates specifically to orders for certiorari and as such it ought to fail.
19.It argued that the Commissioner can dissolve or wind up the society in accordance with Section 61(1)of the Society Act after holding an inquiry as provided under Sections 58 and 59 of the Act and as such the Interested Party’s contention that prayer for mandamus sought is statute barred is misplaced since the same does not expire.
20.The Ex-parte Applicant posited that the application has been brought within a reasonable time and without prejudice this court can still order dissolution of the interested party even without the Report dated 17th June, 2022 after another inquiry is carried out by the Respondents as required under Section 58(b) of the Societies Act.
21.The ex-parte applicant urged this court to dismiss the P.O with costs to it.
Analysis and Determination
22.I have considered the notice of preliminary objection herein and the parties’ rival submissions.
23.As to what constitutes a preliminary objection, in the celebrated case of Mukisa Biscuit Company Ltd v West End Distributors Limited (1969) EA 696 it was held as follows:
24.It is thus well settled law that a Preliminary Objection consists of pure points of law and if successfully raised it is capable of bringing the matter to an end at that preliminary point. This was so affirmed in the case of Quick Enterprises Ltd. vs. Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999, where the Court held that:-
25.The nature of a preliminary objection was also described in the case of Avtar Singh Bhamra & Another vs Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004, the Court held that:-
26.In the instant case, the preliminary objection is based on limitation of the period within which an application for leave to apply for Judicial Review Orders ought to have been brought.
27.It is interested party’s position that the Exparte Applicant’s Application is statute barred as it has been brought outside the 6 months from the date the report sought to be enforced was issued.
28.It is not in doubt that the issue of limitation goes to the jurisdiction of the Court and the same does not require ascertainment of facts. The Court is only required to determine what the law says and whether indeed the suit is barred by Limitation of Action. The objection therefore raises a pure point of law.
29.The report in issue that the Ex parte Applicant seeks to enforce is dated 17th June, 2022. According to the interested party this report cannot be enforced as it statutorily barred.
30.The Ex parte Applicant on his part argued that the Preliminary Objection is unmerited as it has been brought under Section 9(3) of the Law Reform Act that relate specifically to the prerogative orders of certiorari. The ex parte’s position is that the prayer for mandamus sought in their application does not expire.
31.I have perused the Interested party’s submissions and I note that it relies on Section 9(2) of the Law of Reform Act in support of its P.O.
32.Section 9(2) provides that subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.
33.Section 9(3) which I consider crucial to this case provides that;-
34.It is therefore clear from the above provisions that the only instance Section 9 specifically limits the time in issue is where an applicant seeks for orders of certiorari.
35.The interest party also relied on Order 53 Rule 1(1) of the Civil Procedure Rules. Order 53 Rule 1(1) of the Civil Procedure Rules which provides that:
36.The question of whether an order for mandamus is restricted by limitation of time was discussed by the Court of Appeal in Lucy Mirigo & 550 others vs Minister for Lands & 4 others [2014] eKLR. The Court held as follows;
37.Similarly, in Joseph Muriithi Nyaga v Embu County Government [2021] eKLR it was held that;
38.Lastly in Republic vs Land Registrar Busia & 2 others; Nyabola (Exparte Applicant) (Environment and Land Judicial Review Case E003 of 2023) [2024] KEELC 1319 (KLR) the court held that;
39.I am in total agreement with the above findings that the limitation period set out in under the Act is only in respect to orders of certiorari and cannot extend the orders sought herein, those of mandamus. It is apparent the above order does not provide for the timeline within which to apply for an order of mandamus.
40.The Interested party, in my view, misunderstood the cited legal provisions in raising the objection, based on limitation of time.
41.In view of the foregoing, I find that the Preliminary Objection raised is unmeritorious and it is hereby dismissed with costs to the Ex parte Applicant.
42.Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2024.H. M. NYAGAJUDGEIn the presence of;C/A JenifferMr. Langat for Administrator/RespondentNo appearance for Applicant