Fredrick Thirikwa Wahome v Unitas Sacco Society Ltd

3. The Petition is fatally defective and amounts to an abuse of the court process as it attempts to improperly invoke constitutional jurisdiction to resolve a private commercial/co-operative dispute, contrary to the doctrine of constitutional avoidance. 4. The Petition fails to raise any justiciable constitutional question or cause of action and falls below the legal threshold established in Anarita Karimi Njeru v Republic and reiterated in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. 5. The Petition constitutes forum shopping and a duplication of proceedings, aimed at undermining the lawful mandate and processes of the Co-operative Tribunal, and is therefore an abuse of the court process. 6. The Petition offends the principle of Material Non-disclosure of an existing case of the same similar dispute involving the same parties and the same subject matter pending before the Cooperative Tribunal. Submissions 3. On 28.5.25, the court directed that the PO be heard first. 4. The PO was canvassed through written submissions. The petitioner and the respondent filed written submissions dated 26.9.2025 and 11.9.2025. 5. The respondent argued that the court lacks the jurisdiction to entertain and determine the Petition as the Co-operative Tribunal is vested with the jurisdiction over the matter as per section 76 of the Cooperative Societies Act. Reliance was placed on Republic Versus Matheka Kithome and 4 Others Misc. Civil. Appl. No 664 Of 2010 [2011] eKLR, Wakenya Pamoja Sacco Society Ltd v Stephen Ogamba [2008] KEHC 1472 (KLR). 6. The respondent emphasized the importance of jurisdiction in dispute adjudication and cited Motor Vessel Lillian “S” v Caltex oil Kenya Ltd [1989] KLR, Samuel Kamau Macharia & Anor v K.C.B. & 2 Others, Mary Ariviza Mwami v Nairobi City County Assembly Service Board & 2 others [2019] eKLR and Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & another [2017] eKLR. 7. The respondent confirmed that Tribunal Case No. E232 of 2025: Fredrick Thirikwa Wahome Versus Unaitas CO-Operative Sacco and Onesmus Macharia t/a Watts Auctions has since been withdrawn. It therefore abandoned ground 2 of the PO since it has been overtaken by events. 8. The respondent submitted on the doctrine of constitutional avoidance. That when a party has an appropriate forum before which to seek redress, it is incumbent upon them to raise their concerns before the said forum as opposed to invoking the constitutional jurisdiction of the court at the outset. In support, it relied on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment), CNM v WGM [2018] eKLR, Gabriel Mutava, Elizabeth Kwini & Mary Martha Masyuki v Managing Director Kenya Ports Authority & Kenya Ports Authority [2016] KECA 411 (KLR). 9. The respondent highlighted that the petitioner has confirmed that he is a member of the respondent. It also highlighted that the core dispute in the present petition emanates from a contractual relationship between the petitioner and the Respondent as a borrower and lender in the business of a cooperative society. It therefore argued that the Cooperative Societies Act has sufficient remedies to the alleged breach if any. In this regard, it relied on Caroline Mbevi v Kings Capital & Others [2012] KEHC 568 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7162/eng@2026-04-23 2

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for the proposition that a constitutional court cannot be used as a general substitute for the normal procedures in cases where those procedures are available somewhere else. 10. The respondent asserted that the petitioner has not met the requirement of precision in constitutional petitions established in Anarita Karimi Njeru v Republic [1979] eKLR. It also cited Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Ochieng v Airtel Networks Kenya Limited & 2 others [2025] KEHC 2900 (KLR). 11. The respondent further relied on K K B v S C M & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) to the effect that a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. 12. The respondent argued that the petition is fatally defective, misconceived and mischievous or otherwise an abuse of the court process. 13. The petitioner argued that through the present petition, he specifically invokes his rights as a consumer under Article 46 of the Constitution and the Consumer Protection Act, placing this matter squarely within the jurisdiction of this court. He specifically mentioned article 165 of the Constitution and section 88 of the Consumer Protection Act. 14. The petitioner submitted that the constitutional remedies sought cannot be granted by the Cooperative Tribunal and therefore, the doctrine of constitutional avoidance is inapplicable. He relied on Communications Commission of Kenya & 5 Others v Royal Media Services [Supra] and Omwoyo ν Attorney General & 4 others [2024] KEHC 7511 (KLR) 15. The petitioner asserted that the Tribunal has no jurisdiction to interpret the Constitution or to grant constitutional remedies, as this is the exclusive preserve of the High Court under Article 165 of the Constitution. He added that nothing bars a consumer of loan products from seeking redress before the High Court where during dealings with the lender, there is an infringement of the consumer’s constitutional rights. 16. The petitioner contended that the doctrine of sub judice is inapplicable since the matter before the Tribunal was withdrawn before the petition had been heard on merits. 17. The petition sought that the PO be dismissed with costs. Analysis and Determination 18. The issue for determination is whether the PO is merited. Threshold 19. A PO ought to be on “a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.” Oraro v Mbaja [2005] KEHC 3182 (KLR) Sub Judice 20. Before looking at other grounds, the court notes the parties’ consensus that Tribunal Case No. E232 of 2025: Fredrick Thirikwa Wahome Versus Unaitas Co-operative Sacco and Onesmus Macharia t/ a Watts Auctions has since been withdrawn. The doctrine of sub judice prevents the court from proceeding with a suit while another claim between the same parties and subject matter is pending https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7162/eng@2026-04-23 3

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before a competent court. section 6 of the Civil Procedure Act. Therefore, due to the withdrawal of the matter that was pending before the Co-operative Tribunal, ground 2 is overtaken by events. Jurisdiction 21. The respondent challenged the court’s jurisdiction over the dispute. The respondent contended that section 76 of the Co-operative Societies Act vests exclusive jurisdiction in the Co-operative Tribunal over disputes involving co-operative societies. 22. Section 76 of the Co-operative Societies Act states: 76. Disputes (1) If any dispute concerning the business of a co-operative society arises: — (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between members, past members or deceased members, and the society, its Committee or any officer of the society; or (c) between the society and any other co-operative Society; it shall be referred to the Tribunal. (2) A dispute for the purpose of this section shall include— (a) a claim by a co-operative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or (b) a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt or demand is admitted or not. (c) a claim by a Sacco society against a refusal to grant or a revocation of licence or any other due, from the Authority.” 23. The High Court has, among others, unlimited original jurisdiction in criminal and civil matters, jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened and jurisdiction to hear any question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution. Article 165 of the Constitution. 24. Except, the High Court shall not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court and those falling within the jurisdiction of the Environment and Land and Employment and Labour Courts. Article 165 (5) of the Constitution. 25. The court holds the view that section 76 of the Co-operative Societies Act does not oust the court’s jurisdiction to hear the matter. 26. However, it has been held that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7162/eng@2026-04-23 4

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Doctrine of Exhaustion of Remedies 27. In Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others (Civil Appeal No. 10 of 2015) [2015] eKLR, the Court of Appeal observed that: “ Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 28. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, a five Judge bench of the High Court set out the two exceptions to the doctrine of exhaustion as follows: “ 60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. 61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.” 29. In Republic v Kenya School of Law 2 others Exparte Kgaborone Tsholofelo Wekesa 2019 KEHC 11107 (KLR), the court extensively discussed what pertains exceptional circumstances regarding the doctrine of exhaustion. 30. The court observed that the exceptional circumstances are not exhaustive and that: “ 28. 31. …. courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. [23] The High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.” The petitioner contended that the doctrine of exhaustion is inapplicable because the Co-operative Tribunal has no jurisdiction to grant the remedies sought. On the other hand, the respondent insisted https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7162/eng@2026-04-23 5

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that the appropriate forum for the hearing and determination of the dispute is the Co-operative Tribunal before the petitioner can invoke the constitutional jurisdiction of the Court. Nature of the dispute 32. From the petition, the petitioner was the employee of the respondent and before termination of his employment, he had borrowed a loan facility for Kshs. 6,900,000/- and Kshs. 500,000/- secured by a charge over property known as Thika Municipality Block 19/2199. 33. The petitioner stated that upon his termination he was unable to pay the monthly installment of Kshs. 83,000 and sought to restructure the loan repayment terms. That however, the respondent refused and the loan became non-performing. 34. The petitioner contended that he cleared the loan arrears. He faulted the respondent for frustrating repayments of the loan deliberately to force him to default so that his property is auctioned. He also faulted the respondent for appointing an auctioneer to dispose of his charged property before the loan was non-performing. 35. The petitioner therefore seeks various remedies including a declaration that the respondent has violated his rights under Article 10, 25, 35 and 46 of the Constitution and a permanent injunction to restrain the respondent from selling or transferring the charged property in an un-procedural manner. 36. There is no dispute that the petitioner is a member of the respondent corporative society. 37. According to section 76 of the Cooperative Societies Act, any dispute concerning the business of a co-operative society between a member and a cooperative society shall be referred to the Co-operative Tribunal. 38. As earlier noted, under Article 165 of the Constitution, it is the High Court’s jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened and jurisdiction to hear any question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution. 39. The petitioner argued that the Co-operative Tribunal has neither the jurisdiction to determine the constitutional questions nor to grant the remedies sought. 40. On its part, the respondent relied on the doctrine of avoidance. 41. The petitioner retorted that the doctrine of avoidance is inapplicable. 42. In Communications Commission of Kenya & 5 Others v Royal Media Services [supra] the Supreme Court observed that the principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. 43. The Supreme Court applied the doctrine and held that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyrightinfringement claim, and it was not properly laid before that court as a constitutional issue. 44. The court has considered the nature of the dispute. The dispute is between a borrower and a cooperative society. The petitioner challenges the way the respondent sought to sell the charged property. An issue is whether the loan became non-performing or not. Another issue is whether the respondent declined to restructure the loan after the petitioner’s termination and whether it frustrated repayments to force him to default so that his property is auctioned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7162/eng@2026-04-23 6

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45. Guided by the above case law, the court is of the considered view that the twin doctrines of exhaustion of remedies and avoidance are applicable here. 46. The court finds that the petitioner’s claim is a loan dispute which would hardly pass for or be presented before the court as a constitutional issue. Even where exercise of chargee’s power of sale arise, it is a matter for ordinary litigation rather than constitutional petition. 47. Therefore, the court declines to hear the petition. 48. To this extent, therefore, the respondent’s PO succeeds. Disposal 49. The petition dated 10.4.2025 is struck out with no order as to costs given the nature of these proceedings. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 23RD DAY OF APRIL, 2026 ------------F. GIKONYO M JUDGE In the presence of: Onchiri for Petitioner Ms Magugu for Chimei for Respondent CA - Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7162/eng@2026-04-23 7

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