Alex Malikhe Wafubwa & 7 others v Elias Nambakha Wamita & 4 others
Alex Malikhe Wafubwa & 7 others v Elias Nambakha Wamita & 4 others eKLR
Compiled by Dorcas Onam Mac'Andere
Constitutional law-right to vote under Article 38 of the Constitution-jurisdiction of High Court under Article 165 of the Constitution-proper interpretation of section 19 of Sixth Schedule of the Constitution--Constitution of Kenya, 2010
Co-operative Societies-proper construction of section 76-matters relating to the business of a co-operative society to be adjudicated by the Co-operative Tribunal-Section 76 of the Co-operative Societies Act
1. Whether the High Court has jurisdiction to hear matters pertaining to a co-operative society.
1. Not all grievances under the Cooperative Societies Act are disputes within the jurisdiction of the Tribunal. The court should therefore carefully consider the claims before it to determine whether they amount to a dispute concerning the business of the society in the sense of section 76(1) and (2) of the Co-operative Societies Act.
2. The fact that the High Court is the final court in cooperative societies' matters, only reinforces the need for the court to ensure that a proper analysis is done to determine whether a dispute is one that falls within the jurisdiction of the Tribunal in order to avoid prejudice of the right of access to justice under the Constitution, but not a bar for the High Court to determine matters falling outside the ambit of the Tribunal.
3. Section 76(2) of the Co-operative Societies Act should be construed ejusdem generis , and as far as possible, include only matters of the same kinds, class, or nature, as to restrict it within the overall objective of the Act, especially because section 76(2) is on ouster of the jurisdiction of the High Court.
4. Grievances relating to; elections, illegal holding of office, failure to convene a general meeting by the management committee, or special general meeting by the Commissioner for Cooperatives are not akin to the powers of the Tribunal under section 76, 77 and 80 of the Act.
5. The Co-operative Tribunal does not have jurisdiction to issue a judicial review order to compel the Commissioner for Co-operatives to act in accordance with a statutory or legal obligation in relation to elections.
6. Judicial review is a relief under Article 23(3) (f) of the Constitution, and is not confined to the Law Reform Act or Order 53 of the Civil Procedure Rules as neither of the two establishes the remedy of judicial review but provide for the mechanisms which give effect to the relief of judicial review.
7. The correct interpretation of section 19 of the Sixth Schedule of the Constitution, 2010, is that the High Court Practice and Procedure Rules, 2006, will continue to apply in proceedings for enforcement of the Bill of Rights in the Constitution of Kenya, 2010, until the Chief Justice makes the rules anticipated under Article 22(3).The rules however should be read in conformity with the Constitution. Absence of the rules under Article 22(3) of the Constitution does not foreclose the right to apply for constitutional remedies under the Bill of Rights.
8. Elevating every legal complaint to a constitutional issue would greatly diminished the value of constitutional remedies, but, in my assessment, the allegations in the Petition are not trivial complaints which have merely been inflated in the hope that they will pass for constitutional issues. They are issues which merit a trial by this court; it is the one with jurisdiction to hear and decide constitutional issues under Article 165 of the Constitution.
Preliminary objection disallowed.