[2021] KECPT 25 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT ELDORET

TRIBUNAL CASE NO. 316 OF 2019

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

SAMWEL CHILIA SAIKWA...............................2ND CLAIMANT

-VERSUS-

RAYMOND KIPKORIR CHERUIYOT.....1ST RESPONDENT

DANIEL KENDAGOR................................2ND RESPONDENT

WILLIAM KIGEN.......................................3RD RESPONDENT

RULING

1. A myriad of Applications have been filed in this case after the Judgment of this Tribunal issued on 6th May 2021 with the following Orders:

(a) The elections for Ngenda Investment Rural Co-operative Limited carried out on 31st May 2019 were declared null and void;

(b) The officials of Ngenda Investment Rural Co-operative Limited who were in office before the impugned elections to continue in office until fresh elections are conducted;

(c) An Annual General Meeting for Ngenda Investment Rural Co-operative Limited be called under the supervision and direction of the Director of Co-operatives, wherein fresh elections would be conducted within 90 days from the 6th May 2021;

(d) A proper members’ register of Ngenda Investment Rural Co-operative Limited be prepared. For purposes of the said elections; and

(e) Financial statements be availed to each member of Ngenda Investment Rural Co-operative Limited be availed.

2. The 1st and 2nd Respondents, together with other officials of Ngenda Investment Rural Co-operative Limited met on 26th May 2021 and elected new office bearers, to wit;

(i) Rebecca C. Chumo - Chairperson

(ii) Samson CHerop Kendagor - Vice Chairperson

(iii) Rose J. Koech - Secretary

(iv) William Kigen - Member

(v) Raymond Charuiyot - Member

(vi) Benjamin Miningwa - Member

(vii) Samuel Saikwa - Member

(viii) Hosea Chemweno - Member

(ix) Asto Ewoi - Member

Minutes of the meeting have been annexed by the Respondents. The meeting was attended by 5 of the 9 Officials.

3. From the onset, it would seem that the said meeting opted to pursue frolics of their own, and engaged in activities that were substantively ultra vires. This Tribunal did not endorse any powers to the Officials to conduct any elections, except those to be done by the members in a properly constituted Annual General Meeting of Ngenda Investment Rural Co-operative Limited. It is important to note that the present office bearers are on borrowed time, and the same needed to have been used judiciously.

4. By 5th August 2021, there ought to have been elections in an Annual General Meeting of the Co-operative Society, but the officials of Ngenda Investment Rural Co-operative Limited have elected to play games of cat and mouse, and craftily yet uncannily contemn Orders of this Tribunal. The singular role of the extension of the lifespan of these Officials’ term is for purposes of holding elections, and the running of the Co-operative Society at the barest minimum.

5. We find it necessary to Order for status quo ante 31st May 2019 in terms of officials and signatories, and to further extend the time for compliance of this Tribunal’s Orders dated 6th May 2021, failure to which very steep steps will be taken against the officials of Ngenda Investment Rural Co-operative Limited, jointly and severally. This Tribunal will not hesitate to enforce its Orders, as we are not issuing an advisory, but compulsory pronouncements, which must be complied with, in letter and in spirit. We have come short of citing the Respondents for Contempt of Court, but that grace of this Tribunal shall not be expanded.

On the Application of the intended 4th, 5th and 6th Respondents dated 30th July 2021, we find that they will add no value to the proceedings at this stage, and their Application for joinder is disallowed.

REASON WHEREFORE we order as follows:

(a) The supplemental elections of the Officials/Management of Ngenda Investment Rural Co-operative Limited carried out on 26th May 2021 be and are hereby declared null and void;

(b) We reiterate and Order status quo ante, in that the officials of Ngenda Investment Rural Co-operative Limited who were in office before the 31st May 2019 elections to continue in office until fresh elections are conducted. For avoidance of doubt, the Chairman, Vice Chairman, Secretary as well as signatories to the accounts remain as they were prior to the 31st May 2019 Elections.

(c) A General Meeting for Ngenda Investment Rural Co-operative Limited be called. The Director of Co-operatives is enjoined to direct and supervise this meeting, wherein fresh elections would be conducted within 60 days hereof;

(d) A proper members’ register of Ngenda Investment Rural Co-operative Limited be prepared. For purposes of the said elections; and

(e) Financial statements be availed to each member of Ngenda Investment Rural Co-operative Limited be availed.

(f) The Proposed Interested Parties’ Application dated 30th July 2021 be and is hereby dismissed with no orders as to costs.

(g) Mention for directions on 22. 3.2022

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF NOVEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 25. 11. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 25. 11. 2021

Mr. Gitonga Kamiti Member Signed 25. 11. 2021

Mr. B. Akusala Member Signed 25. 11. 2021

Mr. P. Gichuki Member Signed 25. 11. 2021

Tribunal clerk R. Leweri

No appearance by both parties

Hon. J. Mwatsama Deputy Chairperson Signed 25. 11. 2021

Delivered in absence of both parties.

Hon. J. Mwatsama Deputy Chairperson Signed 25. 11. 2021