REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. E049 OF 2025
IN MATTER OF ARTICLE 2, 10, 22, 23, 47,50 & 165 OF THE CONSTITUTION OF KENYA ,2010
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, NO.14 OF 2015
AND
IN THE MATTER OF COOPERATIVE SOCIETY ACT, CAP 490 LAWS OF KENYA
AND
IN THE MATTER OF MUKA MUKUU FARMERS COOPERATIVE SOCIETY LTD
BETWEEN
PETER MUASYA WILFRED – Chairman ....................................1ST PETITIONER/ APPLICANT
BRIGIT NGINA MUIUNGA - Vice Chairperson ..........................2ND PETITONER/ APPLICANT
MICHAEL WAMBUA NGOVI- Secretary ........ ...........................3RD PETITIONER/ APPLICANT
ROBERT NYAMWEYA MENGE- Treasurer.................................4TH PETITIONER/APPLICANT
KIOKO KASILIA NZIOKA -Committee Member..........................5TH PETITIONER/ APPLICANT
PAUL NZIOKI NYAMA1-Committee Member... .........................6TH PETIONER/ APPLICANT
DANIEL MUNYAMBU NZILI- Committee Member. ................... 7TH PETITIONER/ APPLICANT
JUSTUS MUTHUSI NZIOKA-Committee Member.. ....................8TH PETITIONER/ APPLICANT
JOSEPH MUNDI MUTISO- Committee Member.. ..... ...............9TH PETITIONER/ APPLICANT
-VERSUS-
THE COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT.....................1ST RESPONDENT
THE COMMISSIONER FOR COOPERATIVE
DEVELOPMENT (MACHAKOS) ................................................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL (STATE LAW OFFICE..............................3RD RESPONDENT
DOMINIC MUTUKU MHWAO .....................................................................4TH RESPONDENT
ROBERT MUSYOKI. . . . ..............................................................................5TH RESPONDENT
MICHAEL KYAVI MWANZIA.......................................................................6TH RESPONDENT
THOMASMUTHIANIMUTISYA.....................................................................7TH RESPONDENT
JOSEPHKIMEUNGWATU............................................................................8TH RESPONDENT
JOHN BOSCO MWANZA.............................................................................9TH RESPONDENT
STEPHEN KARIUKI KIANIE................................................. .......................I0TH RESPONDENT
MICHAEL KIMOTE.....................................................................................IITH RESPONDENT
VINCENT MATHEKA.................................................................................12TH RESPONDENT
RULING
1. In a Notice of Motion application brought under certificate of urgency dated 18/12/2025 and filed together with a Petition of even date, the Petitioners/Applicants seek among other prayers to freeze various accounts held by MUKA MUKUU FARMERS COOPERATIVE SOCIETY LIMITED (hereinafter referred to as “the Society”) Banks. On 19/12/2025 the Duty court partly allowed the application by granting the freezing orders in terms of prayer 6 of the application pending hearing and determination of the application.
2. Following the issuance of the above freezing orders, the 4th - 12th Respondents through their advocates filed a Notice of Motion application under certificate of urgency dated 23/12/2025 basically seeking to discharge, vary and or set aside the ex-parte freezing orders for the reason that the same were obtained illegally, irregularly and unlawfully. On 25/12/2025, the duty Judge considered this second application and certified it as urgent and directed that the same be heard before this court on 13/01/2026. On this date the court did not seat and the matter was listed for directions on 15/01/2026.
3. Upon considering the two applications. I noted that the application dated 18/12/2025 was not certified urgent whereas the application dated 23/12/2025 (though erroneously indicated as 24/12/2025 in the order dated 25/12/2025) was certified urgent. I therefore directed parties to file and exchange responses to the application dated 23/12/2025 and appear before me on 21/01/2026 for further directions.
4. On 21/01/2026 the matter came before me whereby I directed the Parties’ Advocates to submit on whether or not the court should discharge, vary or set aside the bank accounts freezing orders in place. The Advocates for the 4th - 12th Respondents and the Petitioners’ Advocate made oral submissions. The parties have also filed their respective affidavits on the said application.
5. The court is now being called upon to determine whether or not to discharge, vary and or set aside the ex-parte interim freezing orders in place and unfreeze the affected bank accounts.
6. As regards the freezing orders, the 4th to 12th Respondents state that as a result of the orders, the day to day running and activities of the Society have substantially crippled and grossly affected including but not limited to; payment of members dividends, unable to pay employees' salaries, payment of electricity and other utility bills, not able to facilitate costs for transfers, searches and survey fees for members who are desirous of selling their properties to third parties.
7. Basically, the Applicants/4th -12th Respondents aver that the operations of the Society have been brought to a halt. About 2616 members who receive dividends annually have not received the same a result of the orders.
8. The Applicants/4th -12th Respondents state that the Petitioners misled the Honourable Court into granting the said ex-parte orders by way of concealment of material facts, deceit and falsehood which are meant to serve their selfish interests and intended to sabotage the operations of the Society at the detriment of the majority of the members of the Society.
9. On the other hand, the Petitioners/Applicants state that they were validly elected as officials of the Society in an Annual General Meeting that was held on 05/12/2025. The 1st Petitioner has in his further affidavit sworn on 21/01/2025 deponed that the Society is not in dire need of finances as alleged and that the Society continues to receive huge finances daily from transfer and searches fees and the same is not banked but received in cash. He avers that the 4th -12th Respondents /Applicants are likely to misuse the members funds if the account is unfrozen as there are clearly wrangles in leadership. The Petitioners are therefore asking this court not to unfrozen the bank accounts at this stage but after hearing their application dated 18/12/2025.
10. I have considered the application dated 23/12/2025, the supporting affidavit, supplementary affidavit, replying affidavit, further affidavit and oral submissions made thereto.
11. In UBA Kenya Bank Limited v Sylvia Mututi Magotsi [2015] eKLR, the court outlined the threshold for the grant of a freezing order which is different from the principles set down in Giella vs Cassman Brown & Co. Limited [1971] EA 358 and held as follows: -
“However, a Mareva injunction is a freezing order and is an order in persona restraining or enjoining a person from dissipating an asset directly or indirectly, Goode on Commercial Law 4th Edition at page 1287 states thus;
i. The grant of a freezing injunction is governed by principles quite distinct from those laid down for ordinary interim injunctions. Before granting a freezing injunction, the Court will usually require to be satisfied that;
a. The Claimant has ‘a good arguable case’ based on a pre- existing cause of action.
b. The Claim is one over which the Court has jurisdiction
c. The Defendant appears to have assets within the jurisdiction.
d. There is real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted.
e. The balance of convenience is in favour of granting the injunction.
f. The Court can also order disclosure of documents or the administration of requests for further information to assist the Claimant in ascertaining the location of the Defendant’s assets.”
12. Going by the above thresholds, I have noted that the 4th – 12th Applicants/Respondents have filed a Notice of Preliminary objection dated 20/01/2026 challenging the jurisdiction of this court to hear and determine the Petitioners’ application dated 18/12/2025 as well as the Petition herein.
13. The Petitioners have also failed to demonstrate by way of cogent and tangible evidence how the 4th -12th Respondents or the Management Committee have or will mismanage and/or fail to account for the society finances to warrant the granting of the freezing order. I have had a keen look at the documents annexed as “PMW la, b, c, d” on the further affidavit of the 1st Petitioner and I note that they are neither receipts or proof of amount received by the Society but rather exchanged between some of the Society members and only two of the documents are shown for this year with very meagre amounts that cannot meet the financial obligations of the Society.
14. Wrangles between the leaders of the Society should not bring all the major activities of the Society to a halt and cripple it to the detriment of other innocent members. The said orders have and will affect the interests of the larger/ majority of the members of the Society and other third parties. Clearly, the balance of convenience tilts in favour of the Society which calls for the discharge of the ex-parte interim bank accounts freezing orders herein.
15. Having found as aforesaid, I hereby discharge the interim orders dated 19/12/2025 freezing the Bank Accounts of MUKA MUKUU FARMERS COOPERATIVE SOCIETY LIMITED (hereinafter referred to as “the Society”).
16. I order that during the pendency of these proceedings, any money withdrawn from the Society’s bank accounts shall fully be accounted for by the mandated account signatories who shall produce the statements of accounts or bank statements to show the transactions of the Society as and when required.
17. The 4th -12th Respondents’ notice of preliminary objection dated 20/01/2026 shall be heard and determined first.
18. Costs of the application shall be in the cause. It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 22ND JANUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 2 2ND JANUARY 2026
In the presence of:-
Mr. Ayieko for the 4th -12th Respondents
Mr. Kuria for the 1st, 2nd 7 3rd Respondent
NA for the Petitioners
Millygrace- Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. E049 OF 2025
IN MATTER OF ARTICLE 2, 10, 22, 23, 47,50 & 165 OF THE CONSTITUTION OF KENYA ,2010
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, NO.14 OF 2015
AND
IN THE MATTER OF COOPERATIVE SOCIETY ACT, CAP 490 LAWS OF KENYA
AND
IN THE MATTER OF MUKA MUKUU FARMERS COOPERATIVE SOCIETY LTD
BETWEEN
PETER MUASYA WILFRED – Chairman ....................................1ST PETITIONER/ APPLICANT
BRIGIT NGINA MUIUNGA - Vice Chairperson ..........................2ND PETITONER/ APPLICANT
MICHAEL WAMBUA NGOVI- Secretary ........ ...........................3RD PETITIONER/ APPLICANT
ROBERT NYAMWEYA MENGE- Treasurer.................................4TH PETITIONER/APPLICANT
KIOKO KASILIA NZIOKA -Committee Member..........................5TH PETITIONER/ APPLICANT
PAUL NZIOKI NYAMA1-Committee Member... .........................6TH PETIONER/ APPLICANT
DANIEL MUNYAMBU NZILI- Committee Member. ................... 7TH PETITIONER/ APPLICANT
JUSTUS MUTHUSI NZIOKA-Committee Member.. ....................8TH PETITIONER/ APPLICANT
JOSEPH MUNDI MUTISO- Committee Member.. ..... ...............9TH PETITIONER/ APPLICANT
-VERSUS-
THE COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT.....................1ST RESPONDENT
THE COMMISSIONER FOR COOPERATIVE
DEVELOPMENT (MACHAKOS) ................................................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL (STATE LAW OFFICE..............................3RD RESPONDENT
DOMINIC MUTUKU MHWAO .....................................................................4TH RESPONDENT
ROBERT MUSYOKI. . . . ..............................................................................5TH RESPONDENT
MICHAEL KYAVI MWANZIA.......................................................................6TH RESPONDENT
THOMASMUTHIANIMUTISYA.....................................................................7TH RESPONDENT
JOSEPHKIMEUNGWATU............................................................................8TH RESPONDENT
JOHN BOSCO MWANZA.............................................................................9TH RESPONDENT
STEPHEN KARIUKI KIANIE................................................. .......................I0TH RESPONDENT
MICHAEL KIMOTE.....................................................................................IITH RESPONDENT
VINCENT MATHEKA.................................................................................12TH RESPONDENT
RULING
1. In a Notice of Motion application brought under certificate of urgency dated 18/12/2025 and filed together with a Petition of even date, the Petitioners/Applicants seek among other prayers to freeze various accounts held by MUKA MUKUU FARMERS COOPERATIVE SOCIETY LIMITED (hereinafter referred to as “the Society”) Banks. On 19/12/2025 the Duty court partly allowed the application by granting the freezing orders in terms of prayer 6 of the application pending hearing and determination of the application.
2. Following the issuance of the above freezing orders, the 4th - 12th Respondents through their advocates filed a Notice of Motion application under certificate of urgency dated 23/12/2025 basically seeking to discharge, vary and or set aside the ex-parte freezing orders for the reason that the same were obtained illegally, irregularly and unlawfully. On 25/12/2025, the duty Judge considered this second application and certified it as urgent and directed that the same be heard before this court on 13/01/2026. On this date the court did not seat and the matter was listed for directions on 15/01/2026.
3. Upon considering the two applications. I noted that the application dated 18/12/2025 was not certified urgent whereas the application dated 23/12/2025 (though erroneously indicated as 24/12/2025 in the order dated 25/12/2025) was certified urgent. I therefore directed parties to file and exchange responses to the application dated 23/12/2025 and appear before me on 21/01/2026 for further directions.
4. On 21/01/2026 the matter came before me whereby I directed the Parties’ Advocates to submit on whether or not the court should discharge, vary or set aside the bank accounts freezing orders in place. The Advocates for the 4th - 12th Respondents and the Petitioners’ Advocate made oral submissions. The parties have also filed their respective affidavits on the said application.
5. The court is now being called upon to determine whether or not to discharge, vary and or set aside the ex-parte interim freezing orders in place and unfreeze the affected bank accounts.
6. As regards the freezing orders, the 4th to 12th Respondents state that as a result of the orders, the day to day running and activities of the Society have substantially crippled and grossly affected including but not limited to; payment of members dividends, unable to pay employees' salaries, payment of electricity and other utility bills, not able to facilitate costs for transfers, searches and survey fees for members who are desirous of selling their properties to third parties.
7. Basically, the Applicants/4th -12th Respondents aver that the operations of the Society have been brought to a halt. About 2616 members who receive dividends annually have not received the same a result of the orders.
8. The Applicants/4th -12th Respondents state that the Petitioners misled the Honourable Court into granting the said ex-parte orders by way of concealment of material facts, deceit and falsehood which are meant to serve their selfish interests and intended to sabotage the operations of the Society at the detriment of the majority of the members of the Society.
9. On the other hand, the Petitioners/Applicants state that they were validly elected as officials of the Society in an Annual General Meeting that was held on 05/12/2025. The 1st Petitioner has in his further affidavit sworn on 21/01/2025 deponed that the Society is not in dire need of finances as alleged and that the Society continues to receive huge finances daily from transfer and searches fees and the same is not banked but received in cash. He avers that the 4th -12th Respondents /Applicants are likely to misuse the members funds if the account is unfrozen as there are clearly wrangles in leadership. The Petitioners are therefore asking this court not to unfrozen the bank accounts at this stage but after hearing their application dated 18/12/2025.
10. I have considered the application dated 23/12/2025, the supporting affidavit, supplementary affidavit, replying affidavit, further affidavit and oral submissions made thereto.
11. In UBA Kenya Bank Limited v Sylvia Mututi Magotsi [2015] eKLR, the court outlined the threshold for the grant of a freezing order which is different from the principles set down in Giella vs Cassman Brown & Co. Limited [1971] EA 358 and held as follows: -
“However, a Mareva injunction is a freezing order and is an order in persona restraining or enjoining a person from dissipating an asset directly or indirectly, Goode on Commercial Law 4th Edition at page 1287 states thus;
i. The grant of a freezing injunction is governed by principles quite distinct from those laid down for ordinary interim injunctions. Before granting a freezing injunction, the Court will usually require to be satisfied that;
a. The Claimant has ‘a good arguable case’ based on a pre- existing cause of action.
b. The Claim is one over which the Court has jurisdiction
c. The Defendant appears to have assets within the jurisdiction.
d. There is real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted.
e. The balance of convenience is in favour of granting the injunction.
f. The Court can also order disclosure of documents or the administration of requests for further information to assist the Claimant in ascertaining the location of the Defendant’s assets.”
12. Going by the above thresholds, I have noted that the 4th – 12th Applicants/Respondents have filed a Notice of Preliminary objection dated 20/01/2026 challenging the jurisdiction of this court to hear and determine the Petitioners’ application dated 18/12/2025 as well as the Petition herein.
13. The Petitioners have also failed to demonstrate by way of cogent and tangible evidence how the 4th -12th Respondents or the Management Committee have or will mismanage and/or fail to account for the society finances to warrant the granting of the freezing order. I have had a keen look at the documents annexed as “PMW la, b, c, d” on the further affidavit of the 1st Petitioner and I note that they are neither receipts or proof of amount received by the Society but rather exchanged between some of the Society members and only two of the documents are shown for this year with very meagre amounts that cannot meet the financial obligations of the Society.
14. Wrangles between the leaders of the Society should not bring all the major activities of the Society to a halt and cripple it to the detriment of other innocent members. The said orders have and will affect the interests of the larger/ majority of the members of the Society and other third parties. Clearly, the balance of convenience tilts in favour of the Society which calls for the discharge of the ex-parte interim bank accounts freezing orders herein.
15. Having found as aforesaid, I hereby discharge the interim orders dated 19/12/2025 freezing the Bank Accounts of MUKA MUKUU FARMERS COOPERATIVE SOCIETY LIMITED (hereinafter referred to as “the Society”).
16. I order that during the pendency of these proceedings, any money withdrawn from the Society’s bank accounts shall fully be accounted for by the mandated account signatories who shall produce the statements of accounts or bank statements to show the transactions of the Society as and when required.
17. The 4th -12th Respondents’ notice of preliminary objection dated 20/01/2026 shall be heard and determined first.
18. Costs of the application shall be in the cause. It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 22ND JANUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 2 2ND JANUARY 2026
In the presence of:-
Mr. Ayieko for the 4th -12th Respondents
Mr. Kuria for the 1st, 2nd 7 3rd Respondent
NA for the Petitioners
Millygrace- Court Assistant