Republic v Cooperative Tribunal; Borop Multipurpose Co-operative Society Limited & 2 others (Interested Parties); iongok & 10 others (Ex parte Applicants) (Judicial Review Application E010 of 2024) [2025] KEHC 10305 (KLR) (1 July 2025) (Ruling)
Neutral citation:
[2025] KEHC 10305 (KLR)
Republic of Kenya
Judicial Review Application E010 of 2024
SM Mohochi, J
July 1, 2025
IN THE MATTER OF: ARTICLE 65, 159 AND 162 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTION 13 OF THE ENVIRONMENT AND LAND COURT ACT NO.19 OF 2011
AND
IN THE MATTER O F THE PART XV OF THE CO-OPERATIVE SOCIETIES ACT
AND
IN THE MATTER OF: APPLICATION FOR LEAVE TO APPLY FOR AN ORDER PROHIBITION AND CERTIORARI
AND
IN THE MATTER OF: THE COOPERATIVE TRIBULNAL CAUSE 06 OF 2010 BETWEEN BOROP MULTIPURPOSE COOP SOCIETY LTD AND SONAIYA SERSER & 3 OTHERS.
Between
Republic
Applicant
and
The Cooperative Tribunal
Respondent
and
Borop Multipurpose Co-operative Society Limited
Interested Party
Chief Land Registrar
Interested Party
Land Registrar Nakuru
Interested Party
and
Moses K Siongok
Ex parte Applicant
Joel K Yegon
Ex parte Applicant
Caroline Chelangat Tuigong
Ex parte Applicant
James Kipruto Langat
Ex parte Applicant
Reuben Maritim Busienei
Ex parte Applicant
David Kiprono Ng'eno
Ex parte Applicant
Beatrice Chepkoskei Chumo
Ex parte Applicant
Chelule arap Elibo
Ex parte Applicant
Doune Farm Limited
Ex parte Applicant
Joel C Ronνο
Ex parte Applicant
Taita arap Towett
Ex parte Applicant
Ruling
1.On 10th May, 2024 this Court granted leave to the ex-parte Applicants to initiate judicial review proceedings.
2.The ex-parte Applicants consequently filed the judicial review Application on the 24th of May 2024pursuant to the provisions of Order 53 Rules 1(1), (2) and (4), rule 2 and Rule 3 of the Civil Procedure Rules, and Section 8(2) and 9 of the Law Reform Act, Cap 26, Laws of Kenya and all other enabling provisions of the law.
3.It is the ex-parte Applicants case that;i.Spentii.That this Honourable Court be pleased to issue judicial review orders of certiorari to quash the Respondents decision of the 30th November 2023 in which it ordered:a.That the Orders issued by the Cooperative Tribunal at Nairobi on the 30th March, 2015 are varied to the extent that the Respondent surrenders to the Claimants the title to LR no. 9045/10 or the title to subdivision from LR no 9045/10.b.Or in the alternative the cancellation of the titles originating from the subdivisions of LR no 9045/10 and order the registrar of titles to restore the Claimant's original title to LR no 9045/7 which is the mother title, for a fresh subdivision of the society land to their members.iii.That this Honourable Court be pleased to issue judicial review orders of prohibition prohibiting and/or preventing Respondent and the Interested Party, its agents, assigns, employees or anyone claiming under it from acting on and for implementing the Respondents decision of the 30th November 2023 in which it ordered:a.That the orders issued by the Cooperative Tribunal at Nairobi on the 30th March, 2015 are varied to the extent that the Respondent surrenders to the Claimants the title to LR no. 9045/10 or the title to subdivision from LR no 9045/10.b.Or in the alternative the cancellation of the titles originating from the subdivisions of LR no 9045/10 and order the registrar of titles to restore the Claimant's original title to LR no 9045/7 which is the mother title, for a fresh subdivision of the society land to their members.iv.That the costs of this suit be provided for.
4.The Application was opposed by the Respondent that raised grounds of opposition dated 10.6.24 arguing that the instant Application was fatally defective having been filed out of time.
The ex-parte Applicants case
5.It is the ex-parte Applicants case that having been granted leave to file as substantive judicial review motion on the 10th June 2024, that;i.The Application is premised on grounds in the Annexed Statutory Statement of fact and an Affidavit of support sworn by James Kipruto Langat dated 24th May 2024.ii.The ex-parte Applicants depone that the instant application is a substantive motion seeking judicial review orders and that it is their wish to rely on the Statutory Statement of Facts dated 8th April, 2024 and annexed to their application for leave to file the instant application.iii.Furthermore the ex-parte Applicants wish to rely on the Affidavit in Verification of Facts dated 8th April, 2024 and the annexures thereto as annexed to the application for leave to file the instant application.
6.In their filed written submissions dated 19th May 2025 the ex-parte Applicants isolate the following issues as necessary for determination;i.Whether the Applicants have the right to institute judicial review proceedings.ii.Whether the Applicants have the right to be heard.iii.Whether the Tribunal's decision is barred by the doctrine of res judicata.iv.Whether the Cooperative Tribunal had the jurisdiction to order cancellation of titles of land.v.Whether the Cooperative Tribunal acted in ultra vires by ordering the cancellation of titles.vi.Whether the Applicants are entitled to the orders sought.
7.In the 1st issue the ex-parte Applicants submit thatSection 7 of the Fair Administrative Action Act states;i.Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to-a.a Court in accordance with section 8; orb.a tribunal in exercise of its jurisdiction conferred in that regard under any written law.ii.A Court or tribunal under subsection (1) may review administrative action or decision if;(a)The person who made the decision-i.Was not authorized to do so by the empowering provision;ii.Acted in excess of jurisdiction or power conferred under any written law....
8.Reference is made to the case of Republic v Judicial Commission of Inquiry into the Goldenberg Affair & 3 others ex-parte Mwalulu & & others [2004] KEHC 1337 (KLR), the learned judges quoted Administrative Law by Wade 8 Edition, which outlined the scope of judicial review to be:-
9.That it is thus ex-parte Applicants submission that, they do have a right to institute judicial review proceedings, having been aggrieved by the decision of the Co-operative Tribunal. On the 2nd issue as to whether the ex-parte Applicants have the right to be heard, Section 4(2) of The Fair Administrative Action Act, 2015 states;
10.That, the above position was echoed by the Court in the case of Catherine Chepkemol Mukenyang v Evanson Phemei Lomaduny & another [2022] eKLR, where the Court quashed the unlawful impeachment proceedings against the Petitioner by the Respondents.
11.That it is trite that in every Court proceeding parties thereto are given an opportunity to be heard. In the instant case, the Applicants together with several others who were members of the 1st Interested Party (Borop Multipurpose Co-operative Society Ltd) were allocated individual parcels and registered as;a.James Kipruto Langat- Mau Summit/Sachangwan Block 10/133b.Caroline C. Tuigong- Mau Summit/Sachangwan Block 10/140c.Moses A. Bi-Mau Summit/ Sachangwan Block 10/130d.Kipketer A. Maritim-Mau Summit Sachangwan Block 10/166e.Susan Chelangat Bett-Mau Summit/Sachangwan Block 10/92f.Paul K. Tuigong- Mau Summit/Sachangwan Block 10/8g.Chemeyet E. Arap Sang-Mau Summit Sachangwan Block 10/64h.David K. Ngeno-Mau Summit/Sachangwan Block 10/107i.Beatrice C. Chamo-Mau Summit/Sachangwan Block 10/197j.Chelule Arap Elibo-Mau Summit Sachangwan Block 10/185k.Reuben M. Busienei- Mau Summit/Sachangwan Block 10/96
12.That, it is noteworthy of the persons listed above, none were party to Co-operative Tribunal Case No. 06 of 2010, yet the effect of the Tribunal's order restoring LR no. 9045/7 is to nullify and/or cancel their titles without being accorded an opportunity to be heard.
13.Ex-parte Applicants submit that they were condemned unheard hence the reason for this Court to grant the orders sought.
14.On the 3rd issue as framed the ex-parte Applicants contend that Section 7 of the Civil Procedure Act states that:-
15.That in this instance, the Respondent pronounced itself in a matter already adjudged by the Nakuru High Court in Nakuru HCC No. 102 of 2004 consolidated with Nakuru HCC No. 41 of 2006 where the Court found no fault in the acquisition of title arising out of Mau Summit/Sachangwan Block 10 (Borop).
16.That, the doctrine of res judicata is to ensure finality in court matters. It prevents multiple law suits based on the same issue. It was therefore an abuse of the court process for the Respondent to pronounce itself on a matter already decided upon and more so by a superior court.
17.On the 4th Issue as to whether theRespondent had the jurisdiction to order cancellation of titles of land? It is submitted that, the Cooperative Societies Act establishes the Cooperative Tribunal under Section 77 which is mandated to under Section 76 to handle disputes concerning the business of a co-operative society;(1)(a)among members, past members and persons claiming through members, past members and deceased members; or(b)between members, past members or deceased members, and the society, its Committee or any officer of the society, or(c)between the society and any other co-operative society.2)A dispute for the purpose of this section shall include-(a)a claim by a co-operative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or(b)a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt or demand is admitted or not.(c)a claim by a Sacco society against a refusal to grant or a revocation of license or any other due, from the Authority.
18.That Section 80 of the Land Registration Act states that;
19.As to who has the jurisdiction to order cancellation of titles, the ex-parte Applicants submits that the Respondent lack jurisdiction and reference is made to the case of Donald Kawinzi Muteti v Mali Ya Mungu Mutel & another 120201 KEELC 1683 (KLR), the learned Judge noted that;
20.Reliance is placed on the case of Paul Mutua Mutwtwa v Kimeu Kyumba and 2 others Machakos HCCC No. 438 of 2012 where it was held:-
21.Further reference is made to the case of Toratio Nyang'au & 4 Others v Lietego FCS Limited (2011) eKLR Maraga J., (as he then was) observed
Respondent, 2nd and 3rd Intrested Parties Case
22.The Respondent opposed the Application by filed grounds of opposition dated 10.6.24 and filed written submissions on its own behalf and on the behalf of the 2nd and 3rd interested parties dated 13th May 2025 maintaining that the application offends the provisions of Order 53 of the Civil Procedure Rules and Section 9 of the Law Reform Act which states as follows:
23.That Order 53 rule 2 states;-
24.The Respondent refined only two issues as to whether the Application is merited and who bears the costs and submits that,the instant application is not merited hence should be dismissed.
25.That the application offends, stated above, the provisions of Order 53 r 2 of the Civil Procedure Rules and Section 9 of the Law Reforms Act. In this regard reliance is placed on the case of Republic v Salim & 2 others; Gami (ex-parte Applicant) (Environment and Land Judicial Review Case E006 of 2022) [2024] KEELC 5440 (KLR) (23 July 2024) (Judgment). J. Matheka in dismissing the suit stated as hereunder:
26.In addition to the above Section 81 of the Cooperative Societies Act states that any person aggrieved by the decision of the Cooperative Tribunal Decision shall within 30 days of the award appeal to the High Court against such decision. In the instant case the applicants never appealed against the impugned decision hence this honorable court lacks jurisdiction to hear and determine this suit.
27.The court is urged to consider the decision of Thomas Akinyl Apela v Lolwe Cooperative Society [2020] eKLR. J Ombwayo in dismissing the suit held as follows:
28.It is the Respondent submission that they acted within its jurisdiction and its decision was never tainted with any illegality. That the applicants have failed to avail evidence to the contrary. Placing reliance on the case of Republic v Cooperative Tribunal & 2 others ex-parte Jackson Wekesa Abala [2019] eKLR in which J Nyamweya stated thus:
29.Finally owing to the hopelessness of the Application by lacking evidence it is their submissions that they should be awarded costs.
The 1st Interested Party’s case
30.The 1st Interested party opposed the Application in its written submissions dated 27th June, 2025 that, it remains undisputed and is common ground is that the ex-parte applicants are engaged in the multiplicity of litigations as follows:a.Before this Honourable court seeking to quash the decision of the 1st respondent the Honourable Co-operative Tribunal delivered on the 30th November, 2023 vide the Judicial Review case herein dated the 8th April, 2024(Judicial Review dated the 8th April,2024).b.Before the Co-operative Tribunal at Nairobi Case No. 6 of 2010 Sonoiva Serser & 3 Others v Borop Multi-Purpose Co-operative Society Limited they filed an application dated 8th April, 2024 seeking the Honourable tribunal to set aside and/or vary its ruling of 30 November, 2023 which application is pending hearing (a review dated the 8th April, 2024).c.Before the High Court of Kenya at Nairobi Misc Application No. E 313 of 2024 Sonoiva Serser & 3 others v Borop Multi-Purpose Co-operative Society Limited vide an application dated the 8 April, 2024 seeking leave to lodge appeal (against the Honourable Tribunal ruling of the 1" respondent delivered on the 30th November, 2023) out of time, which application was subsequently withdrawn on the 8th April,2025.
31.That, tied to the multiplicity of actions dated the 8th April, 2024 is that therefore the ex-parte applicants were engaged in an abuse of the court process. Reference being made to the case of Water Front Holdings Limited v Registrar of Titles Mombasa & another (2022), the court held that:
32.The 1st interested Party further relies on the case of Diani Properties Limited & 2 others v Business Premises Rent Tribunal; Jurgen Fuks t/a Shakatak Disco 202 where the court in dismissing a Judicial Review Similar to this with several application in other courts noted that;
33.That, the practice of filing new and separate cases despite the existence of a similar case relating to the same subject matter amounts to an abuse of the court process. Courts usually frown on this practice since it leads to unnecessary backlog of cases and a waste of the precious judicial time.
34.The 1st interested party refers to the case of Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 (2009) KLR 229, where the court of appeal held;
35.Further fortification of the abuse of process argument cites the case of Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others 12022] eKLR quoting paragraphs 29, 30, 31and 32 of the ruling-
36.That additionally, it is the interested party case that the judicial review litigation herein is fundamentally flawed since the ex-parte applicants are inviting this court to review the factual determinations or the merits of the decision, rather than the legality or procedural propriety of the decision-making process. Judicial review is not the appropriate remedy. Judicial review is concerned with the processes by which a decision is made, not with the correctness of the decision itself. Therefore since the ex-parte applicant's grievances pertain solely to factual determinations and not to any procedural impropriety or illegality, the application for judicial review is misconceived and should be dismissed. If the issue is that the Co-operative Tribunal get its facts wrong or that the J.R No.9045/7 was not part of the pleadings before the Tribunal, then those could constitute grounds of appeal and not for Judicial Review as it was a matter within the realm of the merits of the decision making.
37.That the orders sought are discretionary in nature. In Halsbury's Laws of England 4 Edition Volume 2 Page 508 where it is stated that;
38.The Court has held Republic v Cabinet Secretary for Interior & Co-ordination of National Government & another (supra) above,
39.That in the case of Water Front Holdings Limited Registrar of Titles Mombasa & another, Kandie (Interested Parts) (Judicial Review 13 of 2021) (2022) KEELC 13694 (KLR) (25 October 2022) (Ruling), the Court held.
40.That, in the case of Seventh Day Adventist Church(East Africa) Limited v Permanent Secretary Ministry of Nairobi Metropolitan Development & Assther [2014]KLR the court held that
41.That the ex-parte applicant's contention that the Co-operative Tribunal lacked jurisdiction over the land dispute among Co-operative members is untenable. The dispute in question pertains to the affairs of the cooperative society, specifically the allocation of land to its members, which squarely falls within the ambit of the Tribunal's jurisdiction ns stated in Section 76 of the Co-operative Societies Act. Section 76(1) of the Act which provides that disputes concerning the business of a co-operative society, arising among members, past members, or persons claiming through them, shall be referred to the Tribunal. The term "business of a co-operative society" has been interpreted broadly to include activities such as land allocation to members, which is a common function of housing and land-based Co-operatives such as the Borop Multipurpose Co-operative Society Limited.
42.That in the case of Innathan Maingai Ninguna & 12 others v Samuel Mwaura & 3 others 2010 KLR the court noted:
43.Further reference is made to the case of Kibus Distillers Limited & 4 others v Benson Ambati Adega 43 others (2020) KLR wherein the Court of Appeal [Makhandia J] emphasized this principle and stated the following regarding multifaceted pleadings; -
44.And in the the case of Republic v Inland Revenue Commissioner ex-parte Opman International 1986 1ALL ER 328, the Court held that the fact that there is an alternative procedure available to address a particular grievance does not mean one cannot apply for the remedy of Judicial Review. The Court stated that;
45.That in light of the foregoing the 1st Interested Party submits that the application for Judicial Review ought to be dismissed as inappropriate as there are other Litigations in other appropriate forums and specifically before the Co-operative Tribunal for review being the Co-operative Tribunal at Nairobi Case No.6 of 2010 which is an active litigation seeking to review the Co-operative Tribunal orders issued on the 30th November, 2023, the same orders which are also being challenged in the instant judicial review case. The very essence of judicial review is to correct procedural illegality, not to re-evaluate substantive findings already before the Co-operative Tribunal for review. Discretion to grant certiorari must be exercised sparingly where alternative efficacious remedies exist; and permitting this judicial review would amount to forum-shopping and an abuse of this court process. Accordingly, this Court ought to decline jurisdiction and leave the matter for the appropriate forum/tribunal.
Analysis and Determination
46.The issue for determination is whether the ex-parte Applicants application is competent or not and whether the ex-parte Applicants are entitled to the orders sought.
47.Judicial review jurisdiction is a special Jurisdiction which is neither Civil nor Criminal and it is governed by Section 8 and 9 of the Law Reform Act which is the substantive law while Order 53 of the Civil Procedure Rules set out the procedural law. By those provisions the court is mandated to issue orders of mandamus, certiorari or prohibition in appropriate judicial review proceedings.
48.Section 9 of the FAAA makes provision for judicial review. In order to appreciate the full import of the provision, it is necessary to reproduce the entire Section 9 as hereunder:i.Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.ii.The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.iii.The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).iv.Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.v.A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
49.A person aggrieved by an administrative action or quasi-judicial decision may apply to this Court, for review of such action or decision. Where such administrative action or decision results in denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights has been denied, such person may pursuant to Article 22 of the Constitution, institute court proceedings. An order of judicial review is one of the appropriate reliefs that this Court may grant, under Article 23.
50.Applications for prerogative orders have a limitation period. The Law Reform Act Cap 26 Laws of Kenya, provides as follows at Section 9 (3):-
51.The above provision is echoed in the Civil Procedure Rules, 2010, which in Order 53 rule 2 provides as follows:-
52.It is discernible from the above, that one needs to file an application seeking leave to apply for orders of certiorari, within a period of 6 months of impugned decision. The decision of the Respondent that is sought to be quashed is dated 30th November 2023. This Decision was a Review of a decision dated 30th March 2015.
53.This application for leave was filed on 24th of May 2024. The leave was granted on the 10th of June 2024 and the Applicants filed the Application for judicial Review on the 24th June 2024 the Application dated 24th June 2024 was filed within the statutory timelines but is bereft of any evidence and there is a futile attempt to invite the court to refer to the statement of facts as filed in the motion for leave.
54.That the Onus was upon the ex-parte Applicants to file together with their substantive motion a statement of facts together with a detailed verifying Affidavit including such an impugned ruling sought to be quashed.
55.This court cannot import spent and exhausted pleadings as the basis of the review.
56.One would wonder that the impugned ruling under attack was a review of a decision by the Respondent dated 30th March, 2015 which is currently not in issue before this court as to its legality or otherwise. The decision by the Respondent dated 30th March, 2015 was never challenged on Appeal or review and its legality and lawfulness remains unimpeached.
57.This court finds that, the Application for judicial review herein lack requisite evidence that would persuade this court to grant reliefs sought, a case in point is the supporting affidavit of James Kipruto Langat, dated 24th June 2024 that depones that,the ex-parte Applicants wish to rely on the Statutory Statement of Facts dated 8th April, 2024 and annexed to their application for leave and the ex-parte Applicants further wish to rely on the Affidavit in Verification of Facts dated 8th April, 2024 and the annexures thereto as annexed to the application for leave to file the instant application.
58.While the failure to file the Verifying, Affidavit is itself not fatal and under the circumstances the court ought to consider the supporting Affidavit filed together with the substantive motion.
59.The attempted reliance on pleadings filed in the motion seeking leave cannot pass which motion is spent and exhausted and the same does not form part of the pleadings envisioned underSection 8 and 9 of the Law Reform Act.
60.The Court in Sabina Zaverio Masaku v County Secretary, County Government of Meru & 2 Others [2021] eKLR while dealing with a similar issue stated thus;
61.The import of a Verifying Affidavit in judicial review proceedings was discussed by the Court of Appeal in Commissioner General, Kenya Revenue Authority thro’ Republic v Silvano Onema Owaki T/A Marenga Filling Station [2001] eKLR, where it was stated as follows;
62.The court in Commissioner General(supra) relied on the Supreme Court Practice 1976 Vol. 1 paragraph 53/1/7 which stated: -
63.This position was reinforced in the case of Republic v Busia Chief Magistrate and 2 Others Exparte - Mathias Murumbe Makokha [2016] eKLR where the Court restated that.
64.This thus leads be to the inevitable conclusion that the Application contravenes the provisions of Order 53 r 2 of the Civil Procedure Rules and Section 9 of the Law Reforms Act. reference is made to the case of Republic v Salim & 2 others; Gami (Exparte Applicant) (Environment and Land Judicial Review Case E006 of 2022) [2024] KEELC 5440 (KLR) (23 July 2024).
65.The ex-parte Applicants have failed to demonstrate by way of evidence that, the reviewed ruling by the tribunal is illegal, irrational and tainted with procedural any impropriety hence their application is frivolous, vexations and an abuse of the court process.
66.The ex-parte Applicants equally failed to demonstrate as to why they never preferred an Appeal as is provided for under the Cooperatives Act.
67.It is noteworthy that the underlying decision by the Respondent dated 30th March, 2015 not in contest now, has never been reversed and while the same revolves on the affairs of the 1st interested party and its assets, the Respondents therein were to return documents in their possession relating to the cooperative they were once leaders of. I further note that, the proper forum to adjudicate disputes relating to ownership and use of land is the environmental and land court.
68.I thus find the Application dated 24th June 2024 to be without merit and the same is dismissed with costs to the Respondent, the 1st, 2nd and the 3rd Interested Party.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF JULY 2025.MOHOCHI S.M.JUDGE.