[2021] KECPT 591 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.204 OF 2020

BRAMWEL MUSAMIA.........................................................................CLAIMANT

VERSUS

THE BOARD OF DIRECTORS, NACICO SACCO.................... RESPONDENT

RULING

Vide the Application dated 24. 7.2020, the Claimant has moved this Tribunal seeking for the following Orders:

1. That this Application be certified as urgent;

2. That pending the hearing and final determination of this Application and this case, the Respondent be restrained from replacing the Claimant as the Chairman of NACICO INVESTMENT CO-OPERATIVE SOCIETY LIMITED; and

3. That the costs of this Application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by himself on even date. The Respondent has opposed the Application by filing a Replying Affidavit sworn by Tom Seme, on 12. 8.2020.

Vide the directions given on 30. 7.2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions on 27. 10. 2020 while the Respondent did so earlier on 25. 9.2020.

Claimant’s Case

It is the Claimant’s case that the Respondent has threatened to replace him as the Chairman of Nacico Investment Co-Operative Society Limited. That the Respondent and Nacico Investment Co-operative Society Limited is yet to hold its Annual General Meeting (Annual General Meeting) for purposes of electing its office bearers. That further, the Commissioner for Co-operatives has placed a moratorium on the replacement of officer bearers whose term of office expires before the Annual General Meeting are held. That he will suffer great injustice in the hands of the Respondent if the Orders sought are not granted.

Respondent’s Case

Vide the Replying Affidavit sworn by Tom Seme (who has described himself as the Chairman of the Respondent and Nacico Investment Co-operative Society Limited) on 12. 8.2020, the Respondent has opposed the Application on grounds that the Claimant is no longer the Chairman of Nacico Investment Co-operative Society Limited. That the Respondent is the parent Co-operative of Nacico Investment.

That once the Investment Sacco was incorporated, the Management Committee of the Respondent became its interim Management Committee. That as such, the Chairman of the Respondent became the Chairman of the investment Society.

That when he (Tom Seme) lost the Chairmanship of the Respondent to the Claimant in the elections of 2017, he automatically ceded his position of Chairmanship of the investment society to him as well.

That once he was re-elected as Chairman of the Respondent, he automatically became the Chairman of the investment society. That this is as per the by-laws of the investment society. That this position was confirmed by the sub- county Co-operative Officer vide a letter dated 15. 6.2020. That the Claimant has not demonstrated how he became the Chairman of the investment society so us to entitle him to the reliefs sought. That the investment society is yet to hold its Annual General Meeting. That at the moment, the Management of the Respondent cannot be detached from that of the investment society.

Issues for determination

The Claimant’s Application has presented the following issues for determination:-

a.Whether the Claimant has established a prima facie case to warrant the Respondent to be restrained from replacing him from being the Chairman of Nacico Investment Co-operative Society Limited; and

b.Who should meet the costs of the Application?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of Order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ Where in any suit it is proved by Affidavit or otherwise –

(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

(a) A prima facie case with a probability of success;

(b) Irreparable damage; and

(c) Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Faciecase in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented, to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter......”

Prima facie Case

As was held by the court in the Mrao Case above, a Prima facie is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right. It is a case which on the material presented to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed to call for an explanation from the other.

The question begs as to whether the Claimant in the present Application has demonstrated existence of right that has been infringed by the Respondent so as to warrant an explanation. It is the Claimant’s case that he is the current Chairman of Nacico Investment Co-operative Society Limited and that the Respondents have threatened to remove him without any colour or right. That the members of Nacico Investment Co-operative Society Limitedhas not held its Annual General Meeting to elect its officials. That the Respondent and Nacico Investment Co-operative Society Limitedare two distinct and separate legal entities.

On its part the 1st Respondent contend that whilst the two entities are separate in their legal personalities, they are intertwined in that the Management Committee of the Respondent has always automatically become the Management Committee of the Investment Society. That this has been the norm and the Claimant has benefited from it in the past. That when the current Chairman of the Respondent, Tom Seme lost elections to the Claimant in the year 2017, he ceded his Chairmanship of the Investment Society to the Claimant. That now that the Claimant has lost Chairmanship of the Respondent, he cannot be heard to decline to relinquish his chairmanship in the investment society as well.

The remedy sought by the Claimant is an equitable one and the maxim goes; he who comes to equity must come with clear hands.While the Claimant contends that he is the current Chairman of the Investment Society, he has not explained the circumstances under which he became so. He has not also explained circumstances under which one loses a seat as an official of the said society. He has also not disclosed to us that when he was the Chairman of the Respondent, he was also the automatic chairman of the Claimant. By concealing this crucial and material facts, the Claimant has come to the court of equity with ‘dirty hands’.

What we discern from the material placed before us is that the current procedure becoming an official of Nacico Investment Society Limited is through election to be an official of the Respondent. The Claimant has not refuted this fact. This being the case and looking at the contention of the Claimant, it is apparent that he has no right which has been violated by the Respondent so as to call for explanation. Put it the other way round, the Claimant has not established a prima facie case with a probability of success.

With the foregoing in mind, we find that the balance of convenience militates against the grant of the Orders sought by the Claimant.

Conclusion

The upshot of the foregoing is that we dismiss the Claimant’s Application dated 24. 7.2020 with costs to the 1st Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JANUARY, 2021.

HON. F. TERER DEPUTY CHAIRMAN SIGNED 7. 1.2021

MR. P. GICHUKI MEMBER SIGNED 7. 1.2021

MR. B. AKUSALA MEMBER SIGNED 7. 1.2021

In the absence of both parties

Court clerk Maina

HON. F. TERER DEPUTY CHAIRMAN SIGNED 7. 1.2021

12. 00

Chege for Claimant

HON. F. TERER DEPUTY CHAIRMAN SIGNED 7. 1.2021