[2024] KECPT 1374 (KLR)

Amu Ranching Co-operative Society Ltd v Said (Tribunal Case 25 of 2016) [2024] KECPT 1374 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1374 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 25 of 2016

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 29, 2024

Between

Amu Ranching Co-operative Society Ltd

Claimant

and

Tahir Sheikh Said

Respondent

Judgment

CLAIMANT’S CASE 1. The Claimant’s case is based on the Statement of Claim dated 27th January 2016, Witness Statement undated but received on 8th August 2018, hearing on 24th January 2024 and written submissions dated 20th February 2024.

2. In the Statement of Claim the Claimant states that the Claimant is a Cooperative Society.

3. The matter revolves around a Special General Meeting of the Claimant held on 12th September 2015. During this Special General Meeting, the Respondent was the chairman of the Claimant cooperative. During this Special General Meeting, the entire management and the Supervisory Committee of the Claimant with the exception of the Chairman (the Respondent) stepped down.

4. The Claimant’s committee handed over the Cooperative documents to the Respondent as the remaining official.: Original title deed of the Claimant’s ranch.

Registration Certificate of the Cooperative Society.

Files and correspondences

Bank accounts of the Claimant.

5. The Claimant avers that the above documents are with the Respondent. The Claimant states that the Respondent would have handed over the said documents to the incoming management committee.

6. The Claimant states that the Respondent has totally refused to hand over to the incumbent committee. The Claimant states that the Respondent has refused to disclose the whereabouts of the documents and that he claims to be the chairman of the Claimant.

7. The Claimant avers that the action of the Respondent has caused the Claimant cooperation to grind to a halt. The Claimant also states that the members of the Claimant cooperative stand to lose the ranch and thus their livelihood.

8. The claimant prays for judgment against the Respondent for:a.Compel Respondent to hand over the said documents.b.Damagesc.Interests from date of filing.d.Costse.Such further orders as this court may deem just and expedient to grant.

9. In their witness statement, the Claimant through Mr. Mohammed Mkanja confirm that the witness is the Lamu County Cooperative Commission is in charge of the cooperatives in Lamu.

10. He stated that he knows the Claimant Cooperative Society well and that it held a Special General Meeting on 12th September 2015 for purposes of electing a new Board of Management.

11. He states that a new Management Committee was elected and that the outgoing Chairman who is the Respondent refused to hand over the Cooperative Society (Claimant) documents. He prays this court to compel the Respondent to hand over the Claimant’s documents.

12. The Claimant has filed documents to support this case, among them a bundle statement indicating that the Claimant’s cooperative had Ksh. 26,098,850. 34 before the Respondent left office. A demand letter by the County Cooperatives Officer to the Respondent is also filed.

13. During the hearing of the case on 24th January 2024, the Respondent was not in court. Mr. Omar Mzee the Claimant witness adopted his Witness Statement dated 27th January 2016 and his documents dated 11th December 2015 as his evidence in chief. This closed the Claimant’s case as there was no cross examination.

14. In his Claimant’s written submissions dated 20th February 2024, the Claimant stated that the Respondent has never filed a Defence thus claiming that his claim is unopposed.

15. He states that the Respondent passed away during the course of the proceedings and was replaced by his executors of his Estate on 13th December 2018 following the Claimant’s Application for substitution dated 20th September 2018.

16. The Claimants seek judgment for Ksh. 26,698,880. 34 money misappropriated by the Respondent when he was the Chairman of the Claimant.

Respondent’s Case 17. The Respondent’s case emanates from the reference dated 30th September 2016, List of Documents of 3rd April 2018, hearing of 24th January 2024 and Respondent’s submissions dated 6th December 2018. He has also filed List of Authorities dated 3rd April 2018 to support his case.

18. The Respondent affirms that he was the Chairman of the Claimant at the time of elections on 12th September 2015.

19. He denies that the Special General Meeting on 12th September 2015 removed the officials of the Claimant. The Respondent denies that he was holding any of the Claimant’s documents as listed by the Claimant in his statement of claim item 5(a) to (d).

20. He also denies that he was the custodian of the documents listed in paragraph 5(a) to (d) of the claim. The Respondent denies the claim in total. The claim of malice as per Statement of Claim paragraph 8 is also denied by the Respondent.

21. Finally, the Respondent states that the Claimant is not entitled to all or any of the reliefs sought and prays that the claim is dismissed with costs.

Findings 22. The Court has observed that the Statement of Claim has not indicated the particulars of the Claimant’s Title deed it seeks to receive from the Respondent.

23. The Claimant’s prayers vide the Statement of claim are:a.An order compelling him to hand over the said documents.b.Damages jointly and severally against the defendant.c.Interests only at court rates from the date of filing suit till payment.d.Costse.Such further relief

24. It is evident that the main prayer (a) does not specify which document the Court will grant orders on. We also observe that the Claimant’s submissions have largely dwelt on the misappropriated Ksh. 26,698,880. 34 but very little about the prayers as in the Statement of Claim. Ideally a written Claimant’s submission should be a summary of the case proceedings and should not vary radically from the Statement of Claim.

25. In this case, the gist of the written Claimant submission deviates radically from the prayers as per the Statement of Claim. A prayer should be specific to enable the Court to issue enforceable judgments. In this case, judgment in favour of the Claimant would be a judgment in futility, a judgment not executable because the documents being sought are not specified.

Conclusion 26. We observe that the Claimant has not adequately prosecuted his case especially considering that the prayers as per his Statement of claim are not specific especially regarding the documents he is seeking from the Respondent.

27. As regards prayer (a) of the Statement of Clam, we find it difficult to grant such a prayer since the prayer does not specify the documents. We note that in the body of the Statement of Claim number 5(a), the Claimant mentions the original title deed of Amu Ranching Cooperative Society Limited without indicating the particulars of such title deed.

28. Further, the Claimant in his written submissions has dwelt more on the claim of Ksh. 26,698,880. 34, instead of dealing with the prayers as per the Statement of Claim.

29. In view of the above findings, we find that the Claimant’s case is not adequately prosecuted and therefore dismiss the claim with no orders to costs.

Upshot 30. The Claimant’s claim dated 27th January 2016 is found to be without merit and the same is dismissed with no orders as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia Chairperson Signed 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Tribunal Clerk MutaiMbuthia advocate for the ClaimantMuriu Mungai advocate for the Respondent- No appearanceHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024.