[2024] KECPT 234 (KLR)

Gichui & 8014 others v Wanjiku & 10 others (Tribunal Case 181 (E240) of 2022) [2024] KECPT 234 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 234 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 181 (E240) of 2022

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

March 7, 2024

Between

John Mwangi Gichui

1st Plaintiff

Maina Muchiri

2nd Plaintiff

Harrison Gacheru

3rd Plaintiff

Maina Munene

4th Plaintiff

Nahashon Wachira Maina

5th Plaintiff

Duncan Maina

6th Plaintiff

Gibson Maraao

7th Plaintiff

David Mwangi

8th Plaintiff

Johnson Mubao

9th Plaintiff

Maina Kamau

10th Plaintiff

Robert Muigo

11th Plaintiff

Sammy Njiru Migue

12th Plaintiff

Donald Wachira

13th Plaintiff

Alfaksad Wandaro

14th Plaintiff

Donald Gachau & 8000 others

15th Plaintiff

and

Jane Wanjiku

1st Respondent

Harrison Thiongo

2nd Respondent

Jonathan Muchiri Maina

3rd Respondent

Samweri Mwangi Kiberia

4th Respondent

Chalse Githinji Wahindura

5th Respondent

Joseph Mwangi Maina

6th Respondent

Kenneth Wachira Mwangi

7th Respondent

Peter Mukuha

8th Respondent

John Wangoru Kirinyu

9th Respondent

Gichihi Wanyaga

10th Respondent

The County Co-Operative Commissioner Muranga County

11th Respondent

Ruling

1. The matter before the Tribunal for determination is the Claimant/Applicant’s Notice of Motion Application dated 11th September, 2023; filed on 18th September, 2023. The Application sought under Section4 and 5 of the Contempt of Court Act No 46 of 2016, Sections 1, 1A & 1B, 3, 3A of the Civil Procedure Act;Seeks orders:1. Spent.2. That this Honorable Tribunal may be pleased to find the first to seventh Respondents guilty of Contempt for disobeying the order of 7th June, 2023. 3.That consequent to above, this Tribunal may be pleased to order the said named individual to appear in person to show cause why this Tribunal should not punish them by committal to Civil jail for six (6) calendar months.4. That this Honorable Tribunal may make orders on costs of this Application.

2The Application is premised on the grounds:1. That on 7th June, 2023, the Tribunal issued an order to allow the Applicants to deliver their produce.2. That the Applicants served the said order to the Respondents.3. That the Respondents refused them to deliver Mbuni and refused to give Claimants AMICA Sacco clearance forms to access financial farm inputs services.4. That compliance with and adhering to judicial decisions to go to the root of the rule of law and integrity of the Courts and Tribunals.5. That Courts and Tribunals do not give orders in vain.6. That the dignity, integrity and authority of this court is at stake.7. That the refusal smacks of impunity and disregard of the rule of law and it behooves this Honorable Tribunal to stamp its authority.

3The Application is supported by the Affidavit of Gibson Marano Kariuki sworn on 11th September, 2023.

4The Supporting Affidavit mirrors the grounds on the face of the Application and adds that the continued refusal may affect the Claimants’ 2024 coffee production negatively for lack of manure, fertilizer, pesticides and herbicides.

5The Application is opposed vide the 1st Respondent’s Replying Affidavit sworn on 27th September, 2023. Therein, the 1st Respondent states:1. That it is a lie that the Applicants have been denied to deliver their coffee as per the Tribunal orders.2. That the Applicants have continually delivered their coffee which the orders were issued on 7/6/2023. 3.That the statement of the 7th Claimant/ Applicant who is the deponent of the supporting Affidavit sworn on 11th September, 2023 shows that upto 27/9/2023, he has delivered sherry Kilos 44. 5 and had a balance of Kshs 10,800/=4. That the balance of Kshs 10,800/= indicated in the receipt was due to 2 bags of fertilizer delivered to the said Gibson Marano on June 16th 2023, each costing 5,400/= and was issued by a clerk called Naomi Wanjiru.5. That the other fertilizer is being issued by the Government of Kenya and members have registered, among them, the said Gibson Marano.6. That the Applicants have been delivering their coffee and ordering fertilizer like everyone else and the application is brought maliciously.7. That Mbuni is usually taken in the months of March, April and it cannot be taken in exclusion of other members, a fact the Claimants are aware of.8. That the issue of AMICA and other third parties is irrelevant as it was not part and parcel of the court order.9. That the court order was specific on delivery of coffee berries which has been complied with.10. That the Applicants who are trying to misuse the Honorable Tribunal and are in breach of clause 2 of the order.

6The Application was canvassed by way of Written Submissions.

7The Claimants’ Submissions dated 5th October, 2023 and filed on the same date. The Respondent’s Submissions are dated 18th October, 2023.

Determination. 8We have considered the evidence and submissions of the parties in respect to the Application dated 11th September, 2023. We shall order the following:

1. The applicable law and jurisdiction ot the tribunal. 9The Claimants have moved the court by virtue of the provisions of Sections 4 and 5 of the Contempt of Court Act, No 46 of 2016, Sections 1, 1A and 1B 3, 3A of the Civil Procedure Act. The Contempt of Court Act has since been declared unconstitutional by the Constitutional Court in Kenya Human Rights Commission v Attorney General and another (2018) eKLR and as such we shall not address ourselves to it. The Respondents have submitted that the Judicature Act it the Applicable law herein.

10However, we differ with the Respondent, for the reason that the Co-operative Societies Act, provides for Contempt of the Tribunal under Section 83 thereof. It states: “it shall be an offence for any person to engage in acts or make omissions amounting to contempt of the Tribunal and the Tribunal may punish any such person for contempt of the provisions of this Act”.

11Section 94(e) of the Act provides that “it shall be an offence under this Act if any person willfully and without reasonable excuse disobeys any summons, requirement or lawful order issued under this Act…”

12The Tribunal therefore has jurisdiction to entertain contempt proceedings in respect to its orders.

13As regards, the Application herein,…

14We are guided by Article 159 of the Constitution, Rule 3, 4 and 6 of the Co-operative Tribunal (Practice and Procedure) Rules, 2009 in finding that the Applicant’s Application herein is properly before the Tribunal and shall be considered in its merits.

2. The issue of whether or not the respondents are in contempt of the tribunal; in respect to the orders of 7th June, 2023: 15It is trite that in order to succeed in Civil Contempt Proceedings the Applicant has to prove to the required standard that:i.The terms of the order;ii.Knowledge of these terms by the Respondent;iii.Failure by the Respondent to comply with the terms of the order

16In the present case, the orders of the Tribunal made on 7th June, 2023 emanated from the consent of parties recorded and adopted by the Tribunal on the same date. As such, the Respondents had knowledge of the order and its terms. Further the Respondent’s Advocate was served with the order which they duly received. In the said circumstances therefore, it suffices to find that the Claimants’ have proved requirements (i) and (ii).

17As to requirement (iii) concerning failure by the Respondents to comply with the terms of the order; we find that:a.The orders issued by the Tribunal allowed the Claimants to deliver their coffee berries within their respective factories affiliated to Kamacharia Coffee Factory until the matters herein are resolved.b.The Claimants were directed by the said order to note that the orders to note that the orders are only subject to the delivery and procuring of the coffee and it does not affect any other resolution made by the General Meeting;c.The Applicants, save foe claiming that the Respondents have refused them to deliver coffee cherries, have produced or adduced no evidence of the said refusal such as when by whom or at which factory specific refusal took place.d.The Respondents have rebutted the Applicants’ claims and shown that the only order made was in respect only of the delivery of coffee cherries and on a balance of probability, that the Respondents complied with order 1 of the orders issued by the Tribunal on 7th June, 2023.

18Consequently, we find that the Claimants’ Notice of Motion Application dated 11th September, 2023 lacks merit and dismiss the sane with costs to the Respondents.

19The matter is fixed for mention for Pre-trial directions on the 6th date of May, 2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. .....................HON. BEATRICE KIMEMIACHAIRPERSON.....................HON. BEATRICE SAWEMEMBER.....................HON. FRIDAH LOTUIYAMEMBER.....................HON. PHILIP GICHUKIMEMBER.....................HON. MICHAEL CHESIKAWMEMBER.....................HON. PAUL AOLMEMBERTribunal Clerk JemimahTribunal Clerk JemimahPeter Muthomi advocate for Claimants/ApplicantsNo appearance for RespondentHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024