Kibunja v Attorney General & 12 others

High Court, at Nairobi

August 13, 1998

Mitei J

 Miscellaneous Civil Application No 259 of 1998

Co-operative Society – disputes – disputes concerning the business of a registered society – whether the court has jurisdiction to hear such a matter – section 80 of the Co-operative Societies Act (cap 490).

The applicant prayed for an interlocutory mandatory injunction against the 13th respondent to allow the applicant to sell his coffee through the 13th respondent.

The applicant averred that his expulsion by the 13th respondent was illegal thus the status quo prevailing before the expulsion be maintained. He submitted that the court had jurisdiction in the matter as he had made out a prima facie case and was therefore entitled to interim orders.

The 2nd and 5th respondents contended that the applicant was not entitled to the relief sought. They further submitted that the court had no jurisdiction to hear the matter.

The 7th to 13th respondents also opposed the application and urged the court to dismiss the application. They stressed that the applicant had not appealed against the expulsion in the manner provided by the Co-operative Societies Act (cap 490).

Held:

1. Section 80 of the Co-operative Societies Act (cap 490) expressly ousts the jurisdiction of the court in disputes concerning the business of a registered society.

2. Instead of referring the dispute to the Commissioner of Co-operative Societies, the applicant filed the present motion without reason for not complying with the express provisions of the law.

Application dismissed.

Cases

1. Gusii Mwalimu Investment Co Ltd & 2 others v Mwalimu Hotel Kisii Ltd Civil Appeal No 160 of 1995

 2. Jaundoo v Attorney General of Guyana [1971] AC 972; [1971] 3 WLR 13; 115 SJ 445

3. Giella v Cassman Brown & Co Ltd [1973] EA 358

4. Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others Civil Application No NAI 140 of 1995 (UR 62/95)

5. Githunguri v Jimba Credit Corporation Ltd (No 2) [1988] KLR 838

6. Njoroge, Ernest Muiruri & 28 others v Kabiru Karanja & 4 others Civil Appeal No 114 of 1997

7. John, Thomas Kinoti & 8 others v Benjamin Mugambi & 31 others Meru HCCC No 99 of 1997

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2, 3

2. Co-operative Societies Act (cap 490) sections 8, 80(1)(a),(b),(c)

Advocates

Mr Kibe Mungai for the Applicant.

Mr Gichuru for the 2nd and 5th Respondents.

Mr Mwangi for the 7th-13th Respondents.