[2021] KECPT 273 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.179 OF 2020

ANDREW GITHINJI MWIHURI & ANOTHER .........CLAIMANT

VERSUS

TAIFA SACCO SOCIETY LIMITED..........................RESPONDENT

RULING

1. The Application coming for determination is dated 30. 9.2020 by the Applicant seeking for Orders:

a. That the Application be heard exparte in the first instance in view of its urgency.

b. That the Application is brought under the public interest who owned NDCU from Mukurweini, Mathira, Tetu and Kieni.

c. May the court do order TAIFA SACCO as an illegal Co-operative Society as it was illegally registered by criminals.

d. The court do issue an order that all the banks operating under the registration of TAIFA SACCO LIMITED be put under the Central Bank Deposit Protection Fund Board Management until the final determination of this case?

e. That the court to order the deposit protection and to facilitate the court with the total amount and assets which are in the hand of TAIFA SACCO for the interest of the public and all the members of NDCU.

f. That the costs of this Application be costs in the cause

2. The same is premised on the grounds on the face of the Application to wit:

a. The transfer of Nyeri District Co-operative Union Limited whilst belonging to Nyeri Coffee Farmers and Nyeri Dairy Co-operatives Societies was illegally transferred by Nyeri Cartels to their new illegal Co-operatives Society.

b. There was no Annual General Meeting in all the Co-operatives Societies called to seek mandate for the newly formed Societies.

c. There are 36 branches of banking through the illegal registration in major towns in the Country.

d. The court to issue an injunction to Taifa sacco and Green Bells Auctioneers against any attachment of machines and investment of Rumukia Co-operative society in Mukurweini until Application is determined by court.

e. Did the Minister of Co-operatives act as per the Co-operative Act by transferring union assets to a Co-operative Society.

3. The Application is supported by the Affidavit of Andrew Githinji Mwihuri stating he is a member of Nyeri District Co-operative Society(NDCS) which is a collagomurate of Tetu Coffee Co-operative Society, Othaya Coffee Co-operative Society, Mukurweini Coffee Co-operative Society, Kieni Dairy Co-operative Society and Tetu Dairy Co-operative Society.

That the NDCU officials who were in office in 1999 registered an illegal Co-operative Society and transferred unknown amount of money to their accounts as per annexed documents marked AGM.

That no money was recorded in the Agreement. The Applicant requests for Taifa Sacco Limited the Respondent herein for their registration as illegal and for the Commissioner for Co-operative to reinstate the NDCU Registration No. 1418.

4. The Respondents filed responses in opposition of the Applications.

The 1st Respondent filed a Replying Affidavit dated 21. 12. 20 sworn by Samuel Ngugi the 1st Respondent Chief Executive Officer and stated the 1st Respondent emanated from Nyeri District Co-operative Union Limited which was a Co-operative Union duly registered under Co-operative Societies Act.

That in 1999 the NDCU assets and liabilities were taken over by Nyeri Farmers Savings and Credit Co-operative Society Limited which subsequently changed its name to Taifa Co-operative Savings and Credit Society Limited the 1st Respondent herein.

He averred the Application is frivolous, vexatious with no basis in law. That the 1st Respondent is properly registered by Commissioner of Co-operatives after all due procedures as per the Co-operative Societies Act were followed.

He further went on to state great prejudice would be suffered by 1st Respondent and its activities were the court to grant the Applicant’s prayers.

The 2nd Respondent has been wrongly joined as party to the suit.

He further stated the Application is coming too late in the day 22 years later after the 1st Respondent predecessor has been in existence since 1998.

The 1st Respondent further filed Grounds of Opposition dated 9. 11. 2020 filed on 12. 11. 2020.

The Applicant filed a further Affidavit in response to the Respondent Replying Affidavit and Grounds of Opposition and further stated and or re-iterated that:

a. Taifa Sacco society limited is illegal and its registration ought to be cancelled.

b. Commissioner of Co-operatives reinstate registration Act of NDCU Limited.

c. Registration Certificates of Mutheka and Aguthi Co-operatives be cancelled.

d. That all banking Account of Taifa Sacco, Aguthi and Mutheka be suspended.

5. Parties were directed to file written submissions on 30. 9.2020 and Applicant filed their submissions dated 10. 11. 2020on even date.

The Respondents filed their submissions dated 1. 3.2021 on 3. 3.2021.

Analysis

The Applicants seeks for revocation of 1st Respondent registration Certificate and have the NDCU Certificate re-instated.

As pointed out by the Respondents the Applicant is coming to court well over 20 years later.

At the point when the take over was done the Applicant ought to have moved the Commissioner to conduct an inquiry and if unsatisfied make an appeal.

The issue for determination is therefore one:

Issue one:

Whether the Tribunal can cancel and or recall the certificate of the 1st Respondent.

The procedure for deregistration of Co-operatives is outlined in Section 61 Co-operative Societies Act states:

1. “If the Commissioner, after holding an inquiry under Section 58 or making an inspection under Section 59 of this Act, or receiving an Application made by at least three fourths of the members of a Co-operative Society, is of the opinion that the Society ought to be dissolved, he may, in writing, order the dissolution of the Society and subsequent cancellation of registration.

2. Any member of a Co-operative Society who feels aggrieved by an Order under sub Section (1) may, within two months after the making of such Order, Appeal against the Order to the Minister with a final Appeal to the High Court.

3. Where no Appeal is filed within the prescribed time, the Order shall take effect on the expiry of that period, but where an Appeal is filed within the prescribed time the Order shall not take effect unless it is confirmed by the Minister or by the High court, as the case may be.

4. Where the Commissioner makes an Order under Subsection (1) he shall make such further order as he thinks fit for the custody of the books and documents and the protection of the assets of the Society.

5. No Co-operative Society shall be dissolved or wound up save by an Order of the Commissioner.”

Section 62 of Co-operative Societies Act states:

1. “ Where a Co-operative Society has-

a. Less than the prescribed number of members; or

b. Failed to file returns with the Commissioner for a period of three years; or

c. Failed to achieve its objects,

The Commissioner may, in writing , order the cancellation of its registration and dissolution of the Society and the order shall take effect immediately.

2. A person aggrieved by an order of the Commissioner under sub Section (1) may Appeal against such order to the Minister within thirty days of the Order.”

6. All this vests in the Commissioner of Co-operatives. Once the Applicant has followed due process only then can they be seen to seek further Orders or Appeal the decisions of the Commissioner of Co-operatives.

One would thus wonder why the Applicant has taken this long to address his dissatisfaction if any. The 1st Respondent has been in operation since 30th May 2006 when they were issued with a certificate of change of name.

7. We take note the Applicant has filed several suits regarding different issues against the Respondents. The current Application could be said to have no basis in law for seeking Orders which the Tribunal cannot grant as the law has laid down procedures on the Orders the Applicant seeks for.

The Tribunal should not be used as a back door to issue illegal orders or settle scores.

8. To this end we find the Application dated 30. 9.2020 lacks merit and dismiss the same with costs to the Respondent.

Ruling signed, dated and delivered virtually at Nairobi this 15thday of July, 2021.

Hon. B. Kimemia Chairperson Signed 15. 7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 15. 7.2021

Mr. Gitonga Kamiti Member Signed 15. 7.2021

Tribunal Clerk C. Maina

Odhiambo for the Respondents

Andrew Githinji – no appearance.

Hon. J. Mwatsama Deputy Chairperson Signed 15. 7.2021