[2022] KECPT 184 (KLR)

Gachuki & 2 others v Komothai Coffee Growers Co-operative Society Ltd & 3 others (Tribunal Case 293 E096 of 2021) [2022] KECPT 184 (KLR) (Civ) (17 February 2022) (Ruling)

Neutral citation: [2022] KECPT 184 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 293 E096 of 2021

M Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Joseph Kihura Gachuki & 2 others

Claimant

and

Komothai Coffee Growers Co-operative Society Ltd & 3 others

Respondent

Ruling

1. Application for determination is dated 21/7/21 filed on 22/7/21 the same has been bought under article 10(1), 47, 48, 50 & 73 of the Constitution of Kenya 2010 and sec. 79 (5) of the Co-operative Society Act & rules 3 & 4 of the Co-operative Practice & Procedure Rules2009. The application seeks for the following order;a)Spent ;b)The honourable court be pleased to issue a temporary injunction order restraining or prohibiting the 1st to 4th respondents and or their agents and or servants from holding further Elections of the remaining Members of Management Committee of the 1st respondent ( Gathiruini Coffee Factory, Kakamega Coffee Factory, Kirura Coffee Factory & Kagwanja Coffee Factory) and or further implementing the Recommendation of the inquiry Report date the 5th day of June, 2021 pending hearing and determination of this application inter-parties;c)The honourable court be pleased to issue a temporary injunction order restraining or prohibiting the 1st t 4th respondents and or their agents and or servants from holding Further Elections for remaining members of management committee of the 1st respondent(Gathiruini Coffee Factory, Kamuchege Coffee Factory, Kirura Coffee Factory & Kagwanja Coffee Factory ) for further implementing the Recommendation of the Inquiry Report dated the 5th day of June, 2021 pending hearing and determination of this claim;d)The honourable court be pleased to issue a temporary injunction order restraining or prohibiting the partial management committee and or committee members ( their agents and or servants) elected on the 5th day of July, 2021 from running the daily business and or affairs and or doing any other incidental act of the 1st respondent pending hearing and determination of this application inter-parties;e)The honourable court be pleased to issue a temporary injunction order restraining or prohibiting the partial management committee and or committee members (their agents and or servants) elected on the 5th day of July, 2021 from running the daily business and or affairs and or doing any other incidental act of the 1st respondent pending hearing and determination of the claim herein;f)That the former committee (barred by the inquiry report herein) be allowed to run the management of the 1st respondent pending hearing and determination of this application inter-parties;g)That the former Committee (barred by the inquiry report herein)be allowed to run the management of the 1st respondent pending hearing and determination of this Claim;h)That costs of this application be provided for.

2. The application is premised on the grounds on the face of the application and affidavit in support of Joseph Kihare Gachuki in that. The 1st to 4th respondent are in contravention of the claimant’s right to participate in elections of the 1st Respondent as enshrined in the constitution.That the 1st to 4th respondent conducted elections for members of management committee of 1st respondent on 5/7/21 and in the process contravened the Claimant’s constitution rights to fair hearing and fair administration action through conducting an inquiry report for the 1st Respondent dated 5/6/21. Recommendation of inquiry report is that claimants are barred from holding appointed/election positions in the Co-operative and barred from being members of Management Committee of 1st respondent without a justifiable case.The applicant’s further aver the inquiry was done in total disregard of claimant’s constitution right to fair administration and fair having as they were not availed an opportunity to appear before the Inquiry officer and raise their defence thus breaching rules of natural justice.The applicants further avers in paragraph 8 of the inquiry report that despite the Inquiry report being presented in a special General Meeting of the 1st respondent in its premises the same was not adopted and or approved by the special meeting.

3. The respondents arranged for elections of members. On 5/6/21 the same was boycotted by 4 coffee factories leading to its postpone mention and the other 5 factories which took part in the elections was marked with electoral irregularity.The respondent have ignored the complaints in the marred election and constituted a management committee composed of disputed elected committee members.

4. It is unfortunate the respondent despite service have not entered appearance in such a sensitive matter and thus we are to determine the matter without their input. The issues that come out in the Application are as follows;-

Issue OneWhether the right procedure been followed in filing this suit/Application?

ISSUE TWOIs the Applicant entitled to get the order sought?

ISSUE ONEWhether the right procedure been followed in filing this suit/application?We believe the applicants ought to have filed an Appeal and not a statement of claim. The applicants were not satisfied with the inquiry report and if it was adopted at all and thus their contention is that it cannot be used by its officials to conduct an election and or bar the claimant’s from holding office.We do find that indeed in the absence of any other evidence that the report was not adopted and thus cannot be used as a basis to exclude the claimants from any elections if at all unless evidence in the contrary is produced.

ISSUE TWOWhether the applicant are entitled to get an orders sought.The orders sought are injunctive in nature and whether or not the applicants have met the threshold is what matters.The threshold being;-I. Prima facie case;II. Irreparable harm;III. Balance of convenience

We do find that it may be premature to grant orders as sought in the Application dated 21/1/21 as granting such orders will also determine the suit as it were we direct as follows;-1)Order for a report from the Commissioner Co-operative Department on the status of the 1st Respondent within 21 days;2)Report on the elections hold on 5/7/21 within 21 days from today;3)Mention on 14/4/21. Notice to Issue.

RULING, PREPARED, READ AND DELIVERED VIRTUALLY THIS 17TH DAY OF FEBRUARY, 2022 WITH WHOM P. GICHUKI AND B. AKUSALA AGREE.Hon. Mjeni Mwatsama Deputy Chairperson Signed 17. 2.2022Gichuki Member Signed 17. 2.2022B. Akusala Member Signed 17. 2.2022In the presence ofNganga for the ClaimantsKomothai Coffee Growers – No AppearanceSignedHon. Mjeni MwatsamaDeputy Chairperson17/2/22