[2022] KEMSET 236 (KLR)

Association v Mbiyu & 2 others (Tribunal Case 1 of 2022) [2022] KEMSET 236 (KLR) (6 May 2022) (Ruling)

Neutral citation: [2022] KEMSET 236 (KLR)

Republic of Kenya

In the Micro and Small Enterprises Tribunal

Tribunal Case 1 of 2022

J.Bett, Chair, R.Katina, Vice Chair, J.Were, A.Gikuya & A.Kibet, Members

May 6, 2022

Between

Kamukunji Jua Kali Association

Applicant

and

Eliud Muthiga Mbiyu

1st Respondent

Joseph Oyoo Nyaoro

2nd Respondent

Joseph Mungai Mburi

3rd Respondent

Ruling

1. The Jua Kali Association represented by Ms Cindy Tikolo from the firm of Nguu and Company Advocates brought this application dated 17th January 2022 under Certificate of Urgency and a corresponding plaint was filed on even date.The Plaintiff /Applicant has been described as a duly registered society under the Societies Act, Cap 108 of the Laws of Kenya,

2. The 1st Defendant is described as a Kenyan male adult of sound mind residing and/or carrying on business in Nairobi within the Republic of Kenya.The 2nd Defendant is described as Kenyan male adult of sound mind residing and/or carrying on business in Nairobi within the Republic of Kenya.The 3rd Defendant is also described as Kenyan male adult of sound mind residing and/or carrying on business in Nairobi within the Republic of Kenya. All represented by Mr.Kinyua of the Firm of Mbichi Mboroki and Kinyua Advocates.

The Dispute 3. The dispute between the parties relates to a long-standing leadership disagreement among the officials of the Kamkunji Jua Kali Association.Theprayers sought by the plaintiff /applicant;a.Spentb.Thatthe Honourable Tribunal be pleased to order the Registrar of Societies to confirm the new officials as per the results of the elections held on 28th.August 2021, by effecting changes in the register in respect of the Applicant.c.Thatthe Honourable Tribunal be pleased to order the Respondents to undertake the handover process of the Applicant’s management and assets to the current officials within seven (7) of service of this Application at the Applicant’s offices.d.Thatof utmost urgency, this Honourable Tribunal be pleased to order the Respondents to assist and facilitate the handover process and subsequent access of the Applicant’s bank account Equity Bank Account Number 0430290955056, Gikomba Branch.e.Thatthis Honourable Tribunal be pleased to order that should the Respondents fail, neglect and or refuse to comply with orders (c) and (d) above,that they be summoned before this Honourable Tribunal to give an account of their disobedience.f.Thatin the alternative, this Honourable Tribunal be pleased to issue an order of injunction against the Respondents by themselves, servants, legal representatives, agents or howsoever from undertaking in the administration of the Applicant pending the hearing and determination of this Application.g.Thatthis Honourable Tribunal be pleased to issue an order of injunction against the Respondents by themselves, servants, legal representatives, agents or howsoever from undertaking in the administration of the Applicant pending the hearing and determination of the main suit.h.Thatthe O.C.S. Kamkunji Police Station with the assistance of any other relevant authority do supervise and ensure compliance with the orders.i.Thatthe costs of the Application be provided for.

4. The application is supported by the grounds on the face of it and the affidavits of Tom Ogello

The Applicant’s Contention 5. In this instance the Applicant avers that election of new officials of Kamkunji Jua Kali Associationheld on the 28th of August 2021, were declared free and fair with James Mwaura, Tom Ogello and David Atubwa were elected into the following offices; the Chairman, the Secretary and the Treasurer respectively.

6. It is further averred that the said elections were overseen by police officers, a number of other Law enforcement officers. the District Officer, and government observers.

7. The Plaintiff further avers that the Defendants through themselves, servants, legal representatives and/or agents participated in the said elections and therefore knew that they had lost the elections but continued to carry themselves as the bona fide officials.

8. The Plaintiff avers that the Defendants have failed, refused, ignored and or neglected to proceed with the handover process of the Plaintiff’s management, including but not limited to the change of office bearers’ details in the register of societies.

The Defendant/respondent’s Response 9. The Respondents relying on their replying affidavits sworn on 1st February 2022 and Further replying affidavit Sworn on 8th March 2022 opposed the Application in its entirety and stated that the suit is defective as it is brought by Kamukunji Jua kali Association which is not capable of suing.

10. That there were pending orders of (MSET Nairobi No.1 of 2021) restraining the Respondents then ,who are now Applicants from change of office bearers and a temporary order did issue baring the respondents then (now applicants) from interfering with the running of the Association.

11. That the said orders issued by this Tribunal at Nairobi on 21st April 2021 were ignored by the Plaintiffs applicants when they proceeded to conduct the disputed elections on 28th August 2021.

12. That an application by the Applicant/Plaintiff to set aside the said orders was dismissed by High court vide ruling dated 30th December 2021 and therefore they were bereft of any mandate to conduct elections on 28th August 2021.

13. The Defendants /Respondents’ contend that the High court in its ruling dated 30th December coupled with the orders of the tribunal which are in place, they were still bonafide officials of the Kamukunji Jua Kali Association.

Issues For Determination 9. Before delving into issues for determination, at onset the Tribunal was confronted with two very pertinent questions begging for consideration.

10. Whether the Applicant/Plaintiff ie, Kamukunji Jua Kali Association being a registered Society under the Societies Act Cap 108 has any capacity or locus to sue in its own name?

11. The Tribunal did consider at length the import of this contention by the Respondents that the Plaintiff/Applicant herein has no locus to institute these proceedings in its name and therefore the application deserved to be struck off.

12. It was found that it is true, indeed Section 41(1) of the societies Act stipulates that a society can only appear in a suit through an appointed representative. It was also found that Many a case law and precedents supported this fact.

13. It is clear that the counsel for the plaintiff/Applicant chose to front the Kamukunji Jua kali Association as the Plaintiff/ Applicant instead of using the names of the 3 named deponents who are asserting to have validly been elected as officials of kamukunji Jua kali Association

14. Curious as it may seem, the plaintiff /Applicant was unwittingly pitting this suit against provisions of the Societies Act cap108 quoted above, save for the fact that this was brought before a tribunal.

15. The Tribunal endeavours not to exalt technicality over the substance of the suit. we had to ask ourselves if this apparent lack of locus goes to the root of this dispute?

16. Considering that the Micro and Small Enterprises Tribunal was established to ease resolution disputes by and between the members of an association in the fastest and simplest means possible. The tribunal further invoked Article 159 ( 2) (d) of the Constitution of Kenya which provides that Justice shall be administered without undue regard to procedural technicalities;

17. The Tribunal therefore chose not to loose sight of the overall purpose of its existence and intentionally avoided at this Juncture to strike out this application for want of locus and instead sustained it in the meantime in order to address the dispute.

18. The Chronological order in this dispute would be pointed out as follows;Facts presented by both the Plaintiff applicants and Defendant/Respondents, show that this dispute has had a long and winding history that can be traced to the Magistrates courts, the Tribunal, the High Court and currently back at the Tribunal

19. It has become clear that this is not a new matter as the Plaintiff /Applicant would want us to believe. The major issue being Dispute Over leadership of the Association known as Kamukunji Jua Kali Association, the bone of contention being who are the validly elected officials.

20. The elections of 28th August 2021 said to be valid by the plaintiff/applicant were conducted while the Application for stay was pending at the High Court and whose determination was made in December 2021.

21. As to whether the elections were done in accordance to the Association’s Constitution, is a matter for the substative consideration.We do not want to delve into the legalities of the said election at this stage. However it is worth pointing out that the Tribunal through its interim orders of 21stApril 2021 acknowledged that the Respondents were the bonafide officials of the Association. The Tribunal further denounced the purported take over as it was in contravention of the Association’s Constitution and public policy generally.

22. If the bonafide officials as confirmed by the Tribunal in April 2021 were the Respondents then, it would be assumed that in the absence of an order to the contrary, they would continue discharging their mandate until the end of their term.

23. The tribunal observed that the end of their term of office of the respondents was in August 2021 when there was a live matter pending at the High Court with a heavy bearing on leadership and management of the office.

24. It therefore follows that in the absence of any other orders to the contrary, the Respondents were stuck with the management of the office until the dispute was determined. In the circumstances the interim orders of this tribunal dated, 21st April 2021 had not been vacated nor could they be said to have expired since High Court matter kept it alive until the Application was dismissed ie at High court and reverted back to the Tribunal which continues to be seized of the matter.

25. Now here is an application hot in the heals of the High Court application.The Tribunal finds that the parties have in their hands a revolving dispute around elections; handing over of leadership; and management of the Association that is the genesis of the multiple applications. The dispute in MSET Nairobi 1/2021 is about Leadership, management and elections as well and this must be put to a stop to assist the Association get back on its feet.

Two Live Matters Before The Tribunal. 9. It is trite law that the doctrine of res sub-judice prevents a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before same or another court with jurisdiction to determine it.In light of the High Court ruling, essentially, the Tribunal is seized with two live matters: Nairobi MSET No. 1 of 2021 and Nairobi MSET No. 1 of 2022. Both matters are intricately connected in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before same court.

Conclusion 32. In the interest of justice once again the Tribunal chooses to address the substance; being the dispute, instead of striking out this application for obviously flying against provisions of S.6 of the Civil procedure Act which prohibits any court from proceeding with such same matters, and directs that this matters ought to be disposed off singularly and conclusively put to rest.

The interim orders sought. 33. We find that the interim orders sought form the fundamental basis of the substantive suit.1. It is in the best interest of the Tribunal and parties that this long protracted dispute be resolved conclusively.2. We therefore decline to grant interim orders at this stage and in the alternative direct as follows:a.Nairobi MSET No. 1 of 2021 and Nairobi MSET No. 1 of 2022 be consolidated.b.The consolidated suit be heard and determined on a on a priority basis.c.The cost shall be on the cause.This then is the Ruling of the Tribunal.

DATED DELIVERED AND SIGNED ON THIS 6TH DAY OF MAY; 2022J. BETT .....[CHAIRMAN]R. KATINA .....[VICE-CHAIR]J. WERE ......[MEMBER]A. GIKUYA ......[MEMBER}A. KIBET........[MEMBER]Judgement delivered virtually in the presence of:1. Ms Tikolo for the Plaintiff/Applicant2. Mr.Kinyua for the defendants3. Mr Denis kibet tribunal assistant4. Ms.Joy Kendi Tribunal Assisstant5. Ms Zulekha Abdullahi-Tribunal Assistant.