[2023] KECPT 1057 (KLR)

Biwott v Kerio Prestige Shuttle Savings and Credit Co-operative Society Limited (Tribunal Case E113/326 of 2021) [2023] KECPT 1057 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1057 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E113/326 of 2021

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

November 30, 2023

Between

Laban Kipkosgei Biwott

Claimant

and

Kerio Prestige Shuttle Savings and Credit Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of claim 26th July 2021 in which the claimant avers that he was a member of the respondent and he had a motor vehicle registration number KDA 431D under the respondent and had complied with all the respondent’s by-laws. The claimant claims that he raised a number of issues concerning the Annual General Meeting held on the 4th of July 2021 and he was suspended by the respondent for raising those issues. He further claims that the suspension is against the respondent’s by-laws. He claims that he has been aggrieved by the decision of the respondent and prays that judgement be entered against the respondent for the followinga.A declaration that the action of the respondent of suspending the claimant from carrying his business is unlawful, coupled with a perpetual injunction seeking to restrain the respondent whether by itself, its servants and/or agents from preventing the claimant from his business.b.General damages from the respondent for illegal shutting down his motor vehicle from operating.c.Compensation for the period he has been out of operations.d.Costs and interest of this suit.e.Any other relief (s) this Honourable Court may deem just and fit to grant.

2. The respondent filed a Statement of Defence dated 11th Day of August 2021. In their Defence, the respondents aver that their main role is making profits for members who have their vehicles with the respondents. They contend that the respondents had its elections in 4th July and the majority democratically had their say through elections in which the Returning Officer was the County Commissioner of Cooperatives Elgeyo Marakwet County. It is the respondent’s position that if the claimant was aggrieved, he should have exhausted the internal mechanisms before coming to this tribunal. They pray to this Tribunal to dismiss the claimant’s claim.

3. During the hearing, the claimant adopted his Witness Statement. On cross examination, the claimant answered that he is still a member of the Sacco and that he did not Appeal the suspension as required by the by-laws because the procedure followed in suspending him was flawed. He also testified that he attended the Annual General Meeting but did not vote while many other members boycotted. He also testified that not all those who raised issues on the Annual General Meeting were suspended but he was because he has always been targeted.

4. The Chairman of the respondent also testified. He confirmed that the claimant was suspended because he incited members and gave false information to the DCI that officials were ‘eating’ money. He also testified that the Sacco refunded the claimant’s savings and that the claimant continued with another Sacco. On cross examination, the witness responded that the claimant became inciteful when he lost during the elections at the Annual General Meeting.

5. Both parties filed their submissions. In their submissions, the claimant reiterated their claim and urged the court to grant them their prayers. The claimants submit that the procedure of suspension was contrary to the bylaws as he did not a 30-day notice, and neither was he accorded an opportunity to defend himself. They also submit that the claimant is entitled to general damages because due process was not followed, and this occasioned loss to the claimant.

6. In their submissions, the respondents maintained their position that the procedure followed to suspend the claimant was lawful. They further submit that the claimant is not entitled to the compensation sought because the claimant has since moved to another Sacco, and that he has failed to plead the loss and it cannot be ascertained how the claimant came to a loss of Kshs. 226,000/-.

Analysis 7. The question before this Tribunal is whether the claimant is entitled to the prayers sought in his Statement of claim as against the respondent. In answering this question, the Tribunal notes that it is not in dispute that the claimant was a member of the respondent. It is also not in dispute that the claimant had put his motor vehicle under the respondent’s Sacco. Finally, it is not in dispute that the claimant was suspended for the events that followed the Sacco’s Annual General Meeting dated 4th July 2022.

8. On the first prayer, on declaration that the actions of the respondents in suspending the claimant as unlawful, this was extensively dealt with by this Tribunal in the Ruling delivered on 23rd June 2022, and where this Tribunal found the respondent’s actions to be unlawful since they did not follow the right procedure. On the question of whether this court can issue a perpetual injunction to restrain the respondent from preventing the claimant from his business, we find that this prayer has been overtaken by events noting that the claimant has since resigned from the respondent and his deposits have been refunded. The evidence on record indicate that the claimant has since moved his motor vehicle to another Sacco and the claimant did not deny this. The respondents have submitted that that they have no means or mechanisms of stopping the claimant’s motor vehicle from operating within its designated route.

9. On the prayer for general damages, this Tribunal notes that general damages are damages that follow from breach of contract. The question before us under this prayer is whether indeed there was a breach, and whether that breach warrants the award of damages. We note that indeed there was breach as Clause 16 of the By-Laws was not followed. However, does this breach warrant the award of damages? We are inclined to find that this breach does not warrant the award of damages, and hence this prayer fails.

10. On special damages, its trite law that special damages must not only be pleaded, but proven. The claimant did not produce any evidence to warrant compensation for the period he was out of business, or indeed that he was out of business at all. Accordingly, this prayer fails.

11. It is with this in mind that we find in favour of claimant against respondent and make the following orders:a.The suspension of the claimant by the respondent was unlawful.b.The prayer for general damages failsc.The prayer for compensation failsd.The claimant is awarded the costs of this suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahMs. Kinyanjui advocate holding brief for Mr. Mathai advocate for the claimant.Ms. Talan advocate holding brief for Kariuki Mwaniki advocate for the respondent.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023