[2021] KECPT 554 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 98 OF 2020

FREDRICK LIONDO......................................................CLAIMANT

VERSUS

TRAMOM COOPERATIVE SAVINGS

& CREDIT SOCIETY LIMITED...............................RESPONDENT

RULING

Vide the Application dated 2. 3.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. That the matter be certified as urgent and be heard exparte in the first instance;

2. Pending the hearing and determination of this Application interparties, the Respondent decision communicated vide the letter dated 10. 2.2020 suspending the Claimant from the position of Treasurer and its implementation thereof, be stayed;

3. Pending the hearing and determination of this claim, the Claimant be compelled by a mandatory injunction to reinstate the Claimant to the position of Treasurer for the remainder of his unexpired term;

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

The Application is supported by the grounds on its face and the Affidavit sworn by Claimant on 2. 3.2020. The Respondent has opposed the Application vide the Replying Affidavit sworn by the Nickson Isokha on 21. 9.2020.

Vide the directions given on 27. 7.2020, the Application was canvassed by way of written submissions. The Claimant filed her written submissions on 1. 10. 2020 while the Respondent filed its initial set of submissions on 26. 10. 2020 and Supplementary ones on 12. 10. 2020.

Claimant’s Contention

It’s the Claimant’s case that the Respondent illegally and unprocedurally suspended him as its treasurer on 10. 2.2020. That the action was taken through a purported inspection of his personal account. That the committee that purported to have suspended him was not properly constituted. That clause 55 of the Respondent’s by –laws only envision. Two scenarios where the Claimant can be suspended: the firstly,one is vide the Commissioner of Co-operative and secondly, through court orders in case of offences involving fraud or dishonesty or through a decision of a majority of the Board members for failure to disclose vested interest.

Respondent’s Case

The Respondent has opposed the Application on grounds that the Claimant was indeed suspended as a treasurer on 10. 2.2020 by the Respondent’s Board vide its meeting held on 8. 2.2020. That the said suspension was informed by the Report of the Supervisory Committee. That the said committee had found that the Claimant had abused office. That upon inspection of his personal account, it emerged that the Claimant had misappropriated the Respondent’s funds.

That upon suspension of the Claimant an acting treasurer was appointed to oversee the smooth running of its operations.

That further, the instant application has been overtaken by events since the Claimants term was due to end by end of April, 2020.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant has established a proper basis for the grant of an order of a mandatory injunction;

b. Who should meet the costs of the Application?

Mandatory Injunction

As was held in the case of Kenya Breweries Limited & Another -vs- Washington O. Okeya [2002]eKLR.

“ A mandatory injunction ought not to be granted in an interlocutory Application in the absence of special circumstances and then only in clear cases, either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedial or where the Defendants had attempted to steal a match on the plaintiff. ..”

It is thus manifest that before an order of a mandatory injunction is made, the Tribunal must satisfy itself that there exist special circumstances and that the standard for doing so is much higher than that applicable in the case of a prohibitory injunction.

A question abound as to whether the instant application has satisfied this condition. The claimant’s borne of contention is that his process of removal was brought and/or tainted with illegalities. That the decision to suspend him was arrived at without due process being followed. That the supervisory committee which recommended his removal was not properly constituted.

We have perused the letter communicating the Claimant’s suspension dated 10. 2.2020. We note that the Claimant was suspended after the Respondent’s Central Management Committee sat on 8. 2.2020.

Whilst the Claimant has question the legality of the composition of the Supervisory Committee, we note that the ultimate decision to suspend the Claimant was made by the Organ-mandated by the by-laws to do so. We therefore find that the issue as to whether or not the process was legal or not is a matter for full hearing. We say so noting that the Claimant has also been accused of mishandling the Respondents finances. These are matters to be determined after hearing both parties on merit. They are not matters to be canvassed at interlocutory stage.

In simple terms, we are saying that the Claimant has not established existence of special circumstances to warrant the issuance of an Order of a mandatory injunction.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 2. 3.2020 and hereby dismiss it with costs in the cause.

Ruling signed, dated and delivered virtually this 4th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala Member Signed 4. 3.2021