[2021] KECPT 503 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.226 OF 2020

JEVONS SIMIYU MUKHONGO.........................................................CLAIMANT

VERSUS

HARAMBEE SACCO SOCIETY LIMITED................................RESPONDENT

RULING

This is our Ruling on the Claimant’s Application dated 29. 7.2020. Vide the instant Application, the Claimant has moved the Tribunal seeking for Orders inter alia:

1. That this Application be certified urgent and service hereof be dispensed with in the first instance;

2. That pending the hearing and determination of this dispute, this Honourable Tribunal be pleased to issue a temporary injunction directing the Respondent to withdraw and retract its letter to the Claimant’s/Applicant employer advising that a by-election be conducted for electing a new delegate while the Claimant/Applicant was and still is a duly elected Delegate;

3. That pending the hearing and determination of this dispute, this Honourable Tribunal be pleased to issue an Order directing the Respondent to reinstate the Claimant/Applicant as a delegate;

4. That the Honourable Tribunal be to issue any other or further Order in the interest of justice; and

5. That the costs of this Application be provided for.

The Application is supported by the grounds on its face the following Affidavits:

a. Supporting Affidavit sworn by the Claimant on 29. 7.2020; and

b. Further Affidavit sworn by Claimant on 3. 9.2020.

The Respondent has opposed the Application by filing a Replying Affidavit sworn by Rosemary Ooko, the Respondent’s Delegates Relations Officer on 21. 8.2020.

Vide the directions given on 24. 8.2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions on 9. 4.2020 while the Respondent did so on 8. 10. 2020.

Claimant’s Contention

It is the Claimant’s contention that the Respondent suspended him for allegedly spreading falsehood and malicious allegations against members of the Board of Directors; that on 16. 4.2019, he presented his defence totally denying the allegations leveled against him. That subsequently he was invited to a hearing of his case on 8. 5.2019. That after the said hearing, the Respondent did not furnish him with its verdict. That whilst the matter remained unresolved, the Respondent wrote to his employer, the Kenya Defence Forces, Nanyuki Airbase, advising that a by-election be conducted for the election of a new delegate yet he was still a delegate.

That the actions of the Respondent amounted to breach of its by-laws.

Respondent’s case

Vide the Replying Affidavit sworn by Rosemary Ooko on 21. 8.2020, the Respondent has opposed the Application on grounds that the Claimant was suspended from being one of its delegates with effect from 9. 4.2019 for circulating an alleged report from the Sacco Regulatory Authority (SASRA)via his whatsapp No. 0728303069. That he also circulated hard copies of the said document to other delegates and members of the society. That the Claimant did not have authority to share the said document. That the Claimant’s actions contravened clause 39-8. 1of the Respondent’s by –laws.

That it was therefore within the Respondent’s right to suspect the Claimant.

That Upon being suspended the Claimant was invited to appear before the Respondent’s Administrative Inquiry Committee on 8. 5.2019. That he indeed appeared and made an oral and written defence.

That whilst the Administrative inquiry committee was considering the Claimant’s Defence and before it communicated its decision to the Claimant, the terms of the various delegates, including the Claimant came to us and the Respondent’s Branch elections were held between 16thand18th January, 2020.

That by dint of clause 39. 7 of the Respondent’s by-laws, there were certain qualifications each candidate was supposed to meet before being eligible to contest in the said elections.

That the Claimant was not eligible to contest in the said elections because he had defaulted in repaying his loan during the election period. That the said loan was attached to his guarantors.

That is on the basis of the foregoing that the Respondent authorized the Claimant’s employer to conduct elections.

That it is thus not true that the Claimant is still a delegate for the following reasons:

(i) As per clause 39. 6.(IV), of the Respondent’s by-laws, a delegates term is for a period of three (3) years and therefore by the time the Respondent’s circular of 31. 12. 2019, was issued, the Claimant’s term as a delegate had expired;

(ii) That as pointed out in the letter closed 5. 6.2020, the Claimant was not eligible to contest as a delegate in the 2020 Branch elections since he had defaulted in repayment of his loan.

Claimant’s further Affidavit sworn on 3. 9.2020.

Vide this Affidavit, the Claimant has rebutted the averments made in the Replying Affidavit sworn on 21. 8.2020 as follows:

That he has never circulated the said SASRA report via his whatsapp Cell phone NO. [….] or physically as alleged.

That clauses 39. 9 and 39. 10 of the Respondent’s by-laws envisage an expeditious disciplinary process and that failure of the Respondent’s board to determine his matter for a period of one (1) year five(5) months amounts to violation of the provisions of the fair administrative Act and Article 47 and 50 of the Constitution.

That as regards to the defaulted loan, the Claimant accuses the Respondent for engaging in serious financial malpractices and corruption by advancing free money disguised as “salary advance loans” to delegates against its policies and regulations with the sole aim of buying their silence and creating alliancesused when the scheme flops, the Respondent invokes the illegally advanced monies as a basis of getting rid of a delegate from office.

That it is no wonder that the alleged loan was advanced to him on 27. 2.2019 and since then, the Respondent had never demanded for repayment and has never recovered any part of it from his salary and that the loan statement dated 18. 8.2020 is a forgery.

Issues for determination

The Claimant’s Application dated 29. 7.2020 has presented the following issues for determination:

a. Whether the Claimant has established a proper basis to warrant issuance of an order directing the Respondent to withdraw or retract its letter advising his employer to conduct a by-election to elect a new delegate;

b. Whether an Order should issue compelling the Respondent to reinstate the Claimant as a delegate; and

c. Who should meet the costs of the Application?

Mandatory injunction

The order sought by the Claimant in prayer (3) of the Application is mandatory in nature. He wants the Respondent to be compelled to retract, withdraw or rescind a letter it issued to his employer advising it to conduct a by-election to elect a new delegate. This being the case, what parameters should we consider before allowing or rejecting such an Application? We found the answer in the decision of the court in the case of Kenya Breweries Limited & Another – vs- Washington Okeyo[2002]eKLRin the pertinent part, the court held thus:

“ The test whether to grant a mandatory injunction or not in correcting stayed in Vol. 24, Halbury- Laws of England, 4th Edition page 948 which reads;

“ A mandatory injunction can be granted at an interlocutory Application as well as at the hearing, but in the absence of special circumstances it will not normally be granted.”

The court in the case of Locabail International Finance Limited - vs- Agroexport & others [1986] ALL E.R 901- gave clarity to the rendition above as follows:

“ A mandatory injunction ought not to be granted on an interlocutory Application in the absence of special circumstances, and then only in clear case, either where the court thought the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a match from the plaintiff. Moreover, before granting a mandatory injunction, the court had to feel a higher degree of assurance that at the trial, it would appear that the injunction had rightly been granted, that being a different and a higher standard then was required for a prohibitory injunction.”

It follows therefore that for a mandatory injunction to be granted, the following conditions must obtain:

a. Existence of special circumstances

b. The case must be clear

With these principles in the fore, the question that begs is whether the Claimant has presented special circumstances to warrant the grant of an Order compelling the Respondent to withdraw and retract its letter to the Claimant’s employer advising it to conduct a by- election to elect a new delegate whilst he was still the duly elected delegate.

It is the Claimant’s case that whilst he was still the Respondent’s delegate, the Respondent called for a by-election vide its letter dated 23. 6.2019. That this action amounted to breach of its by-laws.

In a rejoinder, the Respondent avers that the Claimant’s terms as a delegate had come to an end and that fresh elections were scheduled for 16-18th January, 2020.

We pause here and ask the question whether indeed the Claimant’s term had come to an end.

We have perused the Claimant’s further Affidavit sworn on 3. 9.2020. At paragraphs 6 and 7 thereof we note that the Claimant has not denied if it is true that his term had ended as a delegate and that fresh election, were underway. By failing to do so, we are left to belief that indeed his term had ended and that the Respondent was within its right to call for fresh elections. The contention therefore that a by-elections was called for while he was still a delegate does not stand.

With this finding alone, we do not find any basis in prayer 2 of the Application. Simply put, we find that the Claimant has not established existence of special circumstances to warrant an Order compelling the Respondent to withdraw and retract its letter to the Claimant’s employer sanctioning the conduct of fresh elections.

Reinstatement

At paragraph 10 of his supporting Affidavit, the Claimant contend that:

“ despite a demand Notice and intention the commence legal proceedings, the Respondent has refused and/or neglected to reinstate me as a delegate and withdraw and retract its letter to my employer.”

The basis upon which the Claimant is asking for reinstatement is the pendency of his disciplinary proceedings. However, and as it were, the Claimant’s term came to an end and nothing has been led to show that he applied to be re-elected as a delegate. This being the case, we find that we do not have enough material with which to make an order for reinstatement.

Conclusion

The upshot of the foregoing, is that we do not find merit in the Claimant’s Application dated 29. 7.2020and hereby dismiss it with costs in the cause.

Ruling signed, dated and delivered virtually this 7th day of January, 2021.

Hon. F. Terer Deputy Chairman Signed 7. 1.2021

Mr. P. Gichuki Member Signed 7. 1.2021

Mr. B. Akusala Member Signed 7. 1.2021

Mr. Were holding brief for Mr. Brian Khaemba for the Claimant

Miss Rosemary Sossion holding brief for Miss Kavagi for Respondent

Court clerk- Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021.