[2021] KECPT 502 (KLR)

REPUBLIC OF KENYA

IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. 98 OF 2021

ISAIAH IKINDU MWANIA...............................................................1ST CLAIMANT

COLLINS MUENDO MUSYOKA..................................................2ND CLAIMANT

VERSUS

JOSEPH KITHEKA ...................................................................1ST RESPONDENT

CYRUS MUATHA .......................................................................2ND RESPONDENT

ONESMUS MAYU.......................................................................3RD RESPONDENT

BONIFACE MBURU.................................................................4TH RESPONDENT

KINATWA CO-OPERATIVE SAVINGS &

CREDIT SOCIETY LIMITED..................................................5TH RESPONDENT

AND

DANCUN KYALO, STAGE MANAGER

AFYA CENTER…..............................................................ST INTERESTED PARTY

FREDRICK MULI MBITI,STAGE

MANAGER KITUI........................................................2ND INTERESTED PARTY

RULING

1. The Notice of Motion dated 9. 2.2021 and filed on 10. 2.2021 is up for determination. The Applicant herein seeks the following Orders.

(i) Spent

(ii) Spent

(iii) That no management resolutions should be effected without properly constituted management committees and with proper notification of all committee members.

(iv) That pending the hearing and determination of this matter, no vehicle belonging to any SACCO member nor new members awaiting ratification at the Annual General Meeting should be stopped/suspended from carrying out business in the Sacco by any Sacco official or manager.

(v) That all staff get their payments pending the hearing and determination of this suit.

(vi) That no driver duly authorized by the KINATWA SACCO members should be suspended/stopped from doing so until the determination of this matter;

(vii) Cost of this Application be in the cause.

2. The Application is based on the following grounds:

(i) That there has been an ongoing dispute between the committees of the KINATWA SACCO which has affected the operations of the SACCO.

(ii) That the Respondents have been issuing letters of suspension against some officials and against some members which is contrary to the SACCO by-laws.

(iii) That the Respondents have also been issuing instructions to the 1st interested parties not to allow the vehicles belonging to some members of the SACCO including the applicants herein from carrying passengers at the designated SACCO picking and dropping bays.

(iv) That the SACCO special general meeting has not been held and thus the Respondents are continuing to harass the members without any formal resolutions in place.

(v) The Respondents will not suffer any prejudice that if the said orders are made and the matter proceeds for hearing.

(vi) It is in the interest of justice and fairness that the orders sought herein be granted.

3. The Application is further supported by the Affidavit of Isaiah Ikindu Mwania the 1st Applicant who reiterated the grounds on the face of the Application and seeks for orders ‘protection’ as the Respondents have frustrated their transport business.

The Applicant avers there is harassment, intimidation and cruel treatment by the Respondents which affects their business and cannot repay their loans in good time.

4. The Respondent in opposition to the Application filed Replying Affidavit sworn by Joseph Kitheka on 16. 3.2021 filed on 20. 5.2021, 1st Respondent is the chairman of the 5th Respondent herein.

He avers they act according to the guidelines given by NTSA.

That they summoned the Applicants herein vide letter dated 12. 2.2021 pursuant to complaints they had received from some customers and drivers of other motor vehicles within the Sacco.

That they have not harassed the Applicants but indeed the Applicants are not acting in good faith having worked with former officials of the 5th Respondent.

The 1st Respondent avers that at the time of the lodging the case the Applicants motor vehicles had been allowed back to Kitakwa Sacco fleet (paragraph 13 Replying Affidavit).

They proceeded to state the Applicant’s application lacked merit and that the same ought to be dismissed.

Further Affidavit was filed by 2nd Applicant on 1. 4.2021.

5. The parties were ordered for the Application to be canvassed by way of written submissions on 17. 3.2021.

The claimant filed their submissions dated 1. 4.2021 on even date and Respondent filed their submissions dated 11. 3.2021 on 12. 4.2021.

The claimant submitted that they are members of 5R Kinatwa Sacco and operate matatu business the Respondents have been harassing them through intimidation not allowing them to carry passengers at designated Sacco stages.

The Applicants further aver there have been disputes between the committees in the Sacco which resulted to lack of quorum for decision to be effectively made.

6. The Respondents in their submissions aver the only issue for determination is whether the Respondent have defied the interim order granted pending the hearing and determination of the Application. they state the Claimant ought to have stated the specific motor vehicles which have been denied access by the Kinatwa Sacco and denied ferrying passengers from stages managed by the Sacco.

The Respondent aver the Applicants have not demonstrated which particular dates the Respondent expressly contravened the said order.

They stated the Tribunal is being called upon to speculate that Claimant’s motor vehicles exist.

Further the Respondent state the averments in their Replying Affidavit have not been contravened through further affidavit.

7. We note that the applicants went into great lengths to submit on Annual General Meeting and Special General Meeting to be held and the Respondents responded to the same.

Prayer for of the Application calls for pending the hearing and determination of this matter no vehicle belonging to any Sacco member nor new members awaiting ratification at the Annual General Meeting should be stopped/suspended from carrying out business in the Sacco by any Sacco official or Manager.

We note the applicant’s Supporting Affidavit Paragraph 7 states there was to be a Special General Meeting on 16. 1.2021 but the same was cancelled.

He avers the meeting was cancelled because of the disputes amongst the officials.

The Respondent in their responses Replying affidavit state in paragraph 14 that ..” there is an inquiry into the affairs of kinatwa Sacco ordered by Commissioner of Cooperatives into the alleged malpractices committed by the former officials ... and as such all Special General Meeting and Annual General Meetings were suspended to await outcome of the inquiry..”

8. We have read and considered the application the grounds relied upon by both parties and the submissions and the key question for determination is whether the application is merited.

9. We note the Respondent have claimed that none of the Claimant’s motor vehicles have been barred and or not given opportunity to transact business as alleged.

10. Special General Meeting

The Respondent have stated there is an inquiry ongoing however, no evidence has been placed before the Tribunal stopping us from making orders of a Special General Meeting which may be a useful tool in compromising the situation pitting against the parties.

11. A court or Tribunal may make an order for prohibition in conditions where they feel justifiable in the circumstances.

A prohibition order is usually granted for a specified time from or until the occurrence of a certain action.

12. For the reasons above we are satisfied the Claimant are at risk of losing their livelihood which would cause financial burdens to them if the prohibition orders are not granted.

On issue of the Special General Meeting- it is imperative for the Sacco to have a meeting Special General Meeting to enable all members raise concerns in the meeting, resolutions passed for the success of the Co-operative whose aim is to serve its members.

For the foregoing reasons, we find merit in the Notice of Motion dated 9. 2.21and grant the following orders:

1. An order for prohibition do issue directed at the Respondents and Interested Party to allow the Claimant’s motor vehicles to operate and carry out business in the Sacco pending Special General Meeting.

2. We Order for a Special General Meeting to be scheduled and held within 60 days hereof by the current officials in the office to be supervised by the Commissioner Co-operatives Draft.

3. Parties to file and serve witness statement and documents within 30 days herein.

4. Mention for Pre-trial on 5. 7.2021.

Ruling signed, dated and delivered virtually this 27thday of May, 2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Miss Luchubereri holding brief for Mwangi for 3rd to 9th Interest parties

Miss Luchubereri for the Claimant: present

J.K. Mwalimu for Respondent: Present

Miss Aluda for Applicant/Claimant: Present

Mention on 7. 6.2021 for further direction on the Applications pending.

Hon. B. Kimemia Chairperson Signed 27. 5.2021