Pondeni Farmers Co-operative Society Limited & 18 others v Commissioner of Co-operative Development & 15 others [2015] KEELC 473 (KLR)
The bottom line
#The court dismissed a co-op's bid to reverse its liquidation, ruling the members never used their appeal rights and proved no rights violations.
What this practically means
#Executive summary
#Key legal issues
#Capacity of a society under liquidation to file a constitutional petition
The first petitioner lacked capacity to bring the petition since it ceased to exist as a body corporate upon cancellation of registration; only the liquidator could sue or be sued
Under section 65 of the Co-operative Societies Act the society ceased to exist as a corporate body upon the cancellation order taking effect. Section 223 of the Companies Act, which applies to winding up of societies, restrains proceedings against such a body. The court held that a society under liquidation cannot sue or be sued, whether proceedings are clothed as a constitutional petition or not.
Whether the removal of the elected management committee and the inquiry process violated fair hearing and fair administrative action rights
No violation; the commissioner followed the Co-operative Societies Act and the committee members, having not appealed to the Minister, cannot complain of unfairness
The inquiry was duly gazetted under section 61(1); the elected management members gave the inquiry team the books of accounts and thus knew of the inquiry. There was no requirement that the report be read publicly. The committee was removed per section 64 and an appeal to the Minister was available under section 65(2) but was never exercised.
Whether sections 61 to 65 of the Co-operative Societies Act were discriminatory under section 82 of the old Constitution
No discrimination established; the provisions were applied to the management committee because of mismanagement, not any protected description
Discrimination under section 82(3) requires different treatment attributable to race, tribe, place of origin, political opinion, colour, creed or sex. The petitioners did not show the removal was on any such ground; rather it arose from poor financial management including cash kept in the treasurer's house and improper books of accounts.
Whether the right of access to information under Article 35(1) of the 2010 Constitution was violated
No violation; a juridical person is not a citizen under Article 35 and the petitioners did not meet the threshold of showing the information was needed to exercise or protect a right
Article 35 guarantees access to information to citizens. The first petitioner is a juridical person. Further, relying on Nairobi Law Monthly and South African authority, an applicant must state the right to be exercised or protected, the information required and how it would assist. The petitioners met none of these requirements.
Whether special damages of Kshs. 1 billion and eviction orders could issue against unidentified invaders
No; the claims were ambiguous, the invaders unidentified, no valuation report adduced, and blanket eviction orders cannot issue against unknown persons
Special damages must be particularly pleaded and proved. The petitioners could not identify the alleged invaders, as shown by prayer (k) which sought identification of invaders through court process. No evidence of the extent of land occupied or valuation was adduced; therefore neither special nor general damages for trespass could be granted.
Legal principles established
#- A petitioner alleging violation of fundamental rights must demonstrate the violation with precision; generalized allegations are insufficient
- A society under liquidation whose registration has been cancelled lacks capacity to sue; only the liquidator can sue or be sued
- A juridical person is not a citizen entitled to access to information under Article 35 of the Constitution
- Failure to exercise the statutory right of appeal against cancellation of registration precludes a complaint of denial of fair hearing
- Special damages must be specifically pleaded and particularized; a party cannot simply pick a figure
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear their own costs
- 3.Petitioners' advocate to be given certified copies of proceedings and judgment for purposes of appeal upon payment of requisite fees
- Jurisdiction invoked
- Article 22(1) & 2 of the Constitution (2010); Section 84(1) of the repealed (old) Constitution; Section 13(2)(a) of the Environment and Land Court Act 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pondeni Farmers Co-operative Society Limited & 18 others v Commissioner of Co-operative Development & 15 others [2015] KEELC 473 (KLR)", Case Analysis (2015). Petition No. 1 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/473/eng@2015-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.