1. Through the application dated 31st January 2024 the applicant seeks the following orders:
1) SPENT.
2) THAT leave be granted for the Applicant to apply for the following Judicial Review orders:
a. An Order of CERTIORARI to be exercised by the Honourable Court and quash the decision and/or report generated by the Inquiry Team/Committee of theRespondent dated 6th July 2023 of finding the Applicants liable and accountable for the interest on the overdraft loan amounting to Kenya Shillings One Million, Six Hundred and Ninety-NineThousand, Six Hundred and Twelve Shillings(Kshs.1,699,612/=).
b. An Order of PROHIBITION to be exercised by the Honourable Court in preventing the Respondent and/or Interested Party from effecting therecommendations of the Respondent’s Inquiry Team.
c. An Order of MANDAMUS to be exercised by the Honourable Court to compelling the Respondent’s Inquiry Team to carry out proper investigations with respect to the relevant officials of the Interested Party involved in the transaction of 8thJanuary 2019.
3) THAT the leave so granted to operate as a Stay of the decision of 6th July 2023 conveyed by the Respondent to the Interested Party with respect to the Applicants.
4) THAT Costs of this Application be provided for.
Brief background;
2. The 1st and 2nd Applicants are former members of the Interested Party’s Management Committee, with their last days of service being on or before 31st December 2018.
3. On 18th January 2022, the then Chairperson of the Co-operative wrote to the Respondent’s office seeing an in-depth audit of the Co-operative Society’s accounts, which report was duly prepared and signed off on 6th July 2023.
4. The Interested Party was granted an overdraft facility from Bingwa SACCO Society Ltd of Kenya Shillings Three Million (Kshs. 3,000,000/=) on 8thJanuary, 2019 following a request from its management and New KCC to Bingwa SACCO Society Limited in a bid to cushion farmers from delayed remittances of their milk dues from the processor.
5. As per the July 2023 Report, it was further established that on 18th January 2019, the Interested Party received a transfer from Cooperative Bank to its Bingwa account to thetune of Kshs. 3,159,000/-.
6. The gravamen of the Report is that the Management of the Interested Party misapplied the overdraft facility by paying farmers for their outstanding milk deliveries and other pending utility bills rather than settling the outstanding overdraft as has had earlier been agreed upon.
7. Feeling dissatisfied with the Respondent’s Report, the 1st and 2nd Applicants seek to institute Judicial Review proceedings against the Respondent and particularly that the said Report is quashed, that enforcement of the findings halted and that the Respondent be compelled to carry out proper investigations into the issue surrounding the manner in which the funds were utilized.
8. Order 53 Rule 1 (1) provides as follows:
“No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.”
9. Reliance is placed in the case of Republic vCounty Council of Kwale & another ex parte Kondo & 57 others (1998) 1 KLR (E&L) where Waki, J. (as he then was) provided parameters for granting leave for filing judicial review as below:
“The purpose of the application for leave to apply for judicial review is firstly toeliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly, to ensure that the applicant is only allowed to proceed to the substantive hearing if the court is satisfied that there is a case fit for further consideration.”
10. They argue that their case is confirmed by not only the Certificate of Appreciation issued by the Interested Party but also the Respondent’s 2023 Inquiry Report that the Applicants at all material times were former members of theInterested Party as of 8th and 18th January 2019.
11. They hold the view that the provisions of Section 28 (3) of the Act delineates prerogative of a Co-Operative Society’s Management Committee to inter alia enter into contacts and do all other things that is necessary to further the objects of the said Society.
12. It is their case that in order for any individual to carry out such activities as provided for by the Act, they are first and foremost required to be members and members of the Management Committee, lest such actions be taken to be ultra-vires, rendering the same void ab-initio.
13. The Applicants are part of the Interested Party’s Management Committee who took out an overdraft but failed to honour the same obligation, thus attracting the surcharge.
14. It would have been both legally and factually incorrect for the Respondent to conclude that the 1st and 2nd Applicants were involved with the overdraft facility of 8th January 2019 in capacity as Management Committee for thesurcharge to warrant.
15. They argue that as a result of the above, the 1st and 2nd Applicants have been extremely prejudiced as not only have they been locked out of any upcoming elections, and that the enforcement of the irregularly compiled 2023 Report by the Respondent would subject them to unwarranted financial loss.
ANALYSIS AND DETERMINATION;
From reading the application and the supporting Affidavit,the following turn put to he the issues for determination;
A.Whether or not this court has jurisdiction.
B.Whether or not the orders sought can be granted as prayed.
Whether or not this court has jurisdiction.
16. The authority of the court flows from the Constitution and statutes.
17. The Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] wherein it was observed that,
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
19. It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
20.Section 9(2) and (4) of Fair Administrative Actions Act Which stipulates that:
“(2) The High Court or a subordinate court under Sub section (I) 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.
(4) notwithstanding sub section (3),theHigh Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.”
22. In the case of Clifford Keya v Jackline Inguitiah & 5 others; Atieno Aoko & 3 others (Interested Party) [2022] Eklr;
“The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable.
The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution.
The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act, 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.”
23. In Jamlick Muriithi Mwenda v Law Society of Kenya & 10 others [2022] eKLR it was stated that the doctrine of exhaustion appears to be closely intertwined with the doctrine of constitutional avoidance which doctrine is also referred to as the constitutional avoidance rule. The doctrine is part of the wider doctrine of non-justiciability. Speaking to the doctrine of constitutional avoidance, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR observed thus: -
“The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as: “The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
24. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held:
“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
25. On the applicability of the doctrine of exhaustion in Kenya, suffice to say that the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: - In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.
26. The same was also reiterated in the case of Clifford Keya V Jackline Inguitiah, Anna Konuche, Christine Kipsang, Attorney General, The Law Society OfKenya & Independent Electoral And Boundaries Commission; Atieno Aoko, Jane Nyaboke, Julie Soweto & LSK Elections Board (Interested Party) [2022] eKLR, Council of County Governors v Attorney General & 12 others [2018] eKLR
“Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”
27. It is this court finding, and I so hold that the applicant did not exhaust all that available for the redress including the Cooperative Society Act.
28. The applicant has not filed any application nor has it secured an order exempting it from the application of the Section 9 of the Fair Administrative Action Act.
29. The applicant is caught up by the doctrine of exhaustion that takes away the jurisdiction of the court.
The second issue:
30. Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
The court cannot address its mind to the second issue.
DISPOSITION:
31. Republic v County Council of Kwale & another ex parte Kondo & 57 others(1998) 1 KLR (E&L) where Waki, J. (as he then was) provided parameters for granting leave for filing judicial review as below:
“The purpose of the application for leave to apply for judicial review is firstly toeliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly, to ensure that the applicant is only allowed to proceed to the substantive hearing if the court is satisfied that there is a case fit for further consideration.
32. The applicant is not entitled to the orders sought.
ORDER;
The application dated 31st January 2024 is dismissed with costs.