[2023] KECPT 408 (KLR)

Athi River Development Housing Investment Co-operative Society Limited (Formally Syokimau Bright Homes Housing Co-operative Society Limited) v Makori & 7 others (Tribunal Case 493 of 2014) [2023] KECPT 408 (KLR) (Civ) (27 April 2023) (Judgment)

Neutral citation: [2023] KECPT 408 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 493 of 2014

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

April 27, 2023

Between

Athi River Development Housing Investment Co-operative Society Limited (Formally Syokimau Bright Homes Housing Co-operative Society Limited)

Claimant

and

Susan Kwamboka Makori

1st Respondent

Pastor Francis Mbithi

2nd Respondent

Benjamin Komen

3rd Respondent

Kephar Marube

4th Respondent

Juvenalis Maragia

5th Respondent

Stephen Otieno Opiyo

6th Respondent

Joyce Kerubo Okongo

7th Respondent

Ann Wayua Kamau

8th Respondent

(Coram: Hon.B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Judgment

1. Claimants Case.This claim was instituted by way of a Statement of Claim dated 24. 10. 2014 and filed on 24. 10. 2014. The Claimant prays this court to consider the following :a.The proceedings, resolutions and election of a purported interim Management Committee of the Claimant Society on 4. 10. 2014 be declared illegal, null and void.b.The Claimant’s Management Committee elected in the Annual General Meeting of the Claimant’s members held 5. 1.2013 be declared to be validly in office until elections are conducted in accordance with both the law and the Claimant’s By-law.c.The Respondents be restrained, either by themselves their agents and/or servants, from usurping the functions of the respondent’s Management Committee, and from purporting to call for, and to convene any meeting or General Meeting of the members of the Claimant Society in any manner other than as provided for under the law and the Claimant Society’s By-laws; and from in any way interfering with the functions and functioning of the Claimant’s Management Committee.d.Costs of these proceedings be paid by the Respondents.e.Any other order that this Honourable Tribunal may deem fit and just to grant.

2. The Claimant alleges that the Respondents convened an illegal Special General Meeting on 4. 10. 2014 where the Claimants were removed from office and the Respondents purportedly elected as Interim Committee members of the Claimant Cooperative.The Claimant further alleges that the Respondent convened yet another meeting on 25. 10. 2014.

3. The Claimant alleges that the meeting of 25. 10. 2014 by the Respondents is unlawful. During this meeting of 25. 10. 2014, the Respondents purported to hold elections of the Management Committee, an issue the Claimant contests. The Claimant avers that those elected in the 25. 10. 2014 illegal meeting are not bonafide officials of the Claimant Cooperative Society.

Respondent’s Case 4. The Respondent reply to Statement of Claim dated 20. 9.2017 and filed on 26. 9.2017. States the following:a.That Respondents 1st , 2nd and 3rd were members of the Claimant’s Supervisory Committee elected on 5. 1.2013, the same meeting where the Claimant’s Society Management Committee was elected.b.Denies paragraph 4 of Claimant’s claim that Respondents 1st, 2nd and 3rd usurped the powers of the Management Committee by convening General Meetings.c.Denies calling and or convening a Special General Meeting of members, claiming it was convened by the County Cooperative Commissioner pursuant to Cap 490 Section 27(8).d.As a response to paragraph 6 of Claimant Statement the Respondent states that they were duly elected during the 25. 10. 2014 members meeting.e.The Respondent denies content of paragraph 7 of Claimant’s claim that the Committee elected on 5. 1.2013 remain in office.

Issue For Determinationa.Whether the proceedings, resolution and elections of Claimant’s Cooperative Society on 4. 10. 2014 is illegal, null and void.b.Whether the Management Committee elected on 5. 1.2013 is legally elected.c.Whether to restrain the Respondents from usurping the functions of the Management Committee, other than as provided by the Cooperative Society by-laws.d.Costs of these proceedingse.Any other order by the Tribunal.

Analysis Of Issuesa.We have perused documents filed in court regarding several General Meetings held by the Claimant’s Cooperative Society and touch an election of Management Committee. 5. We observed that the Respondent agree that they were elected during the Special General Meetings of 26. 7.2014, 4. 10. 2014 and 25. 10. 2014The legality of meetings of 4. 10. 2014 and 25. 10. 14 is contested by the Claimant.We also observe that the meeting of 25. 10. 2014 where the Respondents were elected into office were held after this court issued an order to the Respondents dated 24. 10. 2014.

6. This thus renders the proceedings and outcomes of meeting of 25. 10. 2014 a contempt of this court’s orders.Since the 25. 10. 2014 meeting was convened against the orders of this court, the proceedings and outcomes/ resolution are null and void.

Upshot 7. The Claimants have proved their claim on a balance of probability and a such judgment is entered in favour of Claimant against Respondent in terms of Prayer:a.The proceedings, resolutions and election of a purported interim Management Committee of the Claimant Society on 4. 10. 2014 is hereby declared illegal, null and void.b.The Claimant’s Management Committee elected in the Annual General Meeting of the Claimant’s members held 5. 1.2013 is declared to be validly in office until elections are conducted in accordance with both the law and the Claimant’s By-law.c.The Respondents is hereby restrained, either by themselves their agents and/or servants, from usurping the functions of the respondent’s Management Committee, and from purporting to call for, and to convene any meeting or general meeting of the members of the Claimant society in any manner other than as provided for under the law and the Claimant Society’s By-laws; and from in any way interfering with the functions and functioning of the Claimant’s Management Committee.d.Costs and interest in the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahHon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023