[2021] KECPT 561 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.316 OF 2019

HOSEA BARMAO CHEMWENO..............................................1ST CLAIMANT

SAMUEL CHILIA SAIKWA......................................................2ND CLAIMANT

VERSUS

RAYMOND KIPKORIR CHERUIYOT...............................1ST RESPONDENT

WILLIAM KIGEN...................................................................2ND RESPONDENT

DANIEL KINDAGOR.............................................................3RD RESPONDENT

JUDGMENT

1. The Claim before the Honourable Tribunal is dated 17th June 2019 and filed on even dates.

The Claimants are members of Ngenda Co-operative Society and claim to be the officials of Ngenda Co-operative and bring the claim on behalf of other aggrieved members.

The claim is against the Respondents who are the Management Committee who have failed to call for an Annual General Meeting as per the Society’s By-laws.

The claim thus prays for:

a. An order that Respondent call for annual general meeting [AGM] as demanded by society’s by laws.

b. An order to avail perusal financial statement to all its member

c. Cost of this suit.

2. The Respondents responded to the claim via statement of Defence dated 19. 7.2019 filed on 30. 7.2019.

In it, the Respondent denied the averments of the claimant and instead blame the Claimants for any stalemate and or negative influence within theNgenda Investment Rural Co-operative Limited. The Statement of Defence further requests the Honourable Tribunal to disregard the prayers sought by the Claimants and uphold the election and nomination of the 1-3rd Respondents.

3. Claimant’s Case

CW-1 Samuel Chilia- adopted witness statement dated 17. 6.2019 stated he was Chairman of Ngenda Co-operative Society from 22. 6.2018-to31. 5.2019. He states he was disputing the elections held on 31. 5.2019. His prayer is for them to go back to office and organize another election. He stated the election was illegal and Co-operative officer was biased and did not vet the members present for the meeting.

He stated there was no handing over done to the “new officials” as they disputed the elections and the whole process.

4. He further stated they called for a Special General Meeting via a notice dated 14. 5.2019. They had new By-laws of which were not used in the elections. As per the By-laws quorum would have to be 150 members which number was not achieved.

In his evidence he stated they had elections before and there are normally 2 or 3 Co-operative officers present. In the meeting on 31. 5.2019 there was only one officer and he insisted on being a signatory. He further gave evidence and started of all the elected committee members only one qualified to be elected. The rest did not have the requisite number of shares to be eligible for elections into office and they had not been vetted.

5. During cross- examination he started the Co-operative officer lost control of the meeting and thus vetting was not done.

6. CW2- Hosea Chemweno evidence was that the group from Baringo disrupted the meeting. It is important to note most members from Baringo had withdrawn from the Sacco thus their voting was illegal.

There was no representative from Bomet, or Kitale, Uasin Gishu and Laikipia, very few were from Keiyo.

His prayer is for another set of elections to be held.

His evidence collaborated CW1 by stating there were chaos in the elections and thus cannot be deemed to be a proper election. If elections were proper they would not have filed suit.

7. Respondent’s Case

RW1 Raymond Kipkurui Cheruiyot adopted his witness statement dated 1. 9.2020 and filed on 8. 9.2020he stated he is the current Chair of Ngenda Investment Rural Co-operative Limited elected on 31. 5.2019.

He stated he is the current Chair as per the letter dated 25. 6.2019 by Sub County Co-operative Officer Mr. Muchemi REX. 9.

He stated he was a member of the Interim Committee elected on 26. 6.2018 before the Special General Meeting on 31. 5.2019.

The Claimant Samuel Chilia Saikwa did not attend the handing over meeting on 10. 6.2019.

He further claimed the intention of the case is away to extend time in office for the old committee.

8. RW2 stated he was elected treasurer and stated there was no handing over of his office.

He was fired by the Claimant – Chairman because he asked for accountability of shares of the members.

He further stated some counties were merged thus the change in representation.

He however did not complain to the Sub County Co-operative Officer after being fired

9. Analysis/ issues

From the evidence adduced by both parties it is our view that elections were done on 31. 5.2019.

i. The borne of contention is whether the elections done on 31. 5.2019 were valid;

ii. Whether the Delegates in the meeting were members of Ngenda Investment rural co-operative Limited.

iii. Who are the bona fide officials of Ngenda Investment Rural Co-operative Limited.

10. Issue one:

The elections done on 31. 5.2019 did not meet the required threshold for the meeting to be validated.

We are constrained to agree with the Claimants that members were not vetted before voting.

There was only one Co-operative Officer which was not the norm.

There was chaos during the meeting with disruptions for a meeting to be valid and legitimate.

11. Issue two:

It is hard to establish whether all delegates were members of the Ngenda Investment Rural Sacco with no proper vetting and records.

12. Issue three:

To this end the elections of 31. 5.2019 were a sham and thus we find the officials of the Ngenda Investment Rural Co-operative Sacco Limited to be as they were before the Special General Meeting on 31. 5.2019.

Upshot

The upshot of the above is that the elections of 31. 5.2019 cannot be upheld.

Thus we find in favour of the Claimant to the extent of:

i. That the elections carried out on 31. 5.2019 are declared null and void. The officials who were in office before 31. 5.2019 to continue in office until a fresh election carried out.

ii. That the Commissioner for Co-operatives Development do supervise and direct the calling of an Annual General Meeting and fresh elections of officials of Ngenda Investment Rural Co-operative Limited within 90 days herein.

iii. That a proper member’s register be prepared before elections are carried out.

iv. We order for each member of Ngenda Investment Rural Co-operative Limited availed the financial statement for perusal.

v. Costs in the suit.

Judgment signed, dated and delivered virtually this 6th day of May, 2021.

Hon. B. Kimemia Chairperson Signed 6. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 6. 5.2021

Mr. P. Gichuki Member Signed 6. 5.2021

Tribunal Clerk R. Leweri

Raymond 1st Respondent: Present

No appearance for Claimant

Hon. B. Kimemia Chairperson Signed 6. 5.2021