[2021] KECPT 583 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.260 OF 2020

JOSEPH MWANGI MAINA........................................................................CLAIMANT

VERSUS

BARICHU FARMERS CO-OPERATIVESOCIETY LIMITED....... RESPONDENT

RULING

Vide the Application dated 20. 8.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

a. That the Application be certified as urgent, be heard ex-parte in the first instance and service be dispensed with in the first instance;

b. That pending the hearing and determination of this Application, this Honourable Tribunal be pleased to order the Respondent either by itself, its servants, agents or howsoever to unconditionally reinstate the Claimant/applicant to the Respondent’s Management Committee forthwith;

c. That pending the hearing and determination of this suit, this Honourable Tribunal be pleased to order the Respondent either by itself, its servants, agents or howsoever to unconditionally reinstate the Claimant/applicant to the Respondent’s Management Committee forthwith;

d. That pending the hearing and determination of this Application, this Honourable Tribunal be pleased to issue orders restraining the Respondent either by itself, its servants, agents or howsoever from suspending, harassing, intimidating or in any other manner whatsoever interfering with the Claimant/applicant’s position and membership in the Respondent;

e. That pending the hearing and determination of this suit, this Honourable Tribunal be pleased to issue orders restraining the Respondent either by itself, its servants, agents or howsoever from suspending, harassing, intimidating or in any other manner whatsoever interfering with the Claimant/applicant’s position and membership in the Respondent; and

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

The Application is supported by the grounds on its face and the Supporting Affidavit sworn by Claimant on 20. 8.2020, and the supplementary Affidavit sworn by the Claimant on 18. 11. 2020.

The Respondent has opposed the Application by filing the following Affidavits:

a. Replying Affidavit sworn James Giting’a Gathiru on 21. 9.2020; and

b. Further affidavit sworn by the said James Giting’a Gathiru on 22. 12. 2020.

Vide the directions given on 14. 9.2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions on 4. 11. 2020 while the Respondent did so on 11. 11. 2020.

Claimant’s Contention

Vide the instant Application, the Claimant wants to be reinstated as a member of the Respondent’s management committee on grounds that the Respondent illegally suspended him as such. That his suspension was triggered by a letter he wrote to the Respondent’s Management Committee on 17. 2.2020. That Vide the said letter, he complained about the conduct of the Management Committee.

That on 15. 7.2020, he was ordered out of the Board meeting by the chairman of the Respondent’s Management committee on the guise that the committee wanted to discuss his conduct.

That after the said meeting, the Respondent did not communicate to him its outcome. That this prompted him to write to the Respondent on 23. 7.2020. That the said letter has never been responded to.

That his continued exclusion from management committee meetings constitute constructive suspension from the Board.

Respondent’s Contention

Vide the Replying Affidavit sworn by James Giting’a on 21. 9.2020, the Respondent has opposed the Application on the grounds:

That the Claimant, who was its Vice Chairman, was, during his tenure involved in gross misconduct which informed the management committee to summon him to appear before the Board to answer the said allegations.

That on 15. 7.2020, the Board met and the Claimant was amongst the members present. That among the issues deliberated by the Board was the accusation of the Claimant for gross- misconduct.

That the Claimant was never at any point in time chased out the meeting as the charges were read to him and granted an opportunity to defend himself.

That after deliberation, the Board members voted in favour of his suspension.

That upon suspension, the Claimant can only resume office upon deliberation by the Annual General Meeting.

That it has not been possible to convene the said meeting due to restrictions relating to Covid- 19 pandemic.

That in the circumstances, the Claimant’s suspension is valid as the Respondent followed due process in doing so.

Claimant’s Supplementary Affidavit

Vide the Supplementary Affidavit sworn on 18. 11. 2020, the Claimant has rebutted the averments made by the Respondent vide the foregoing Replying Affidavit and state thus:

That his complaint was dismissed in the meeting held on 26. 2.2020.

That he has never been summoned for any disciplinary meeting or account of his conduct. That he has never seen annexture JGG3.

That annexture JGG4 has been fabricated. That items 4, and 5 were not the original notice sent out to the Board.

That it is not true that he sat throughout the meeting of 15. 7.2020. that he was, instead, ordered to step out.

That, it indeed he had sat throughout the meeting, he would have been entitled to an allowance. That he was not paid any allowance.

Respondent’s further Affidavit

Vide the Affidavit sworn by James Giting’a on 2/12. 2020, the Respondent has rebutted the contentions made by the Claimant vide his supplementary Affidavit referred to above.

Issues for determination

The Claimant’s determination has presented the following issues for determination:

a. Whether the Claimant has laid a proper basis to warrant the grant of the Orders sought;

b. Who should meet the costs of suit?

Temporary injunction

The Orders sought by the Claimant are in the nature of a temporary injunction. What is the law then as regards temporary injunctions?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ Where in any suit it is proved by Affidavit or otherwise –

(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

(a) A prima facie case with a probability of success;

(b) Irreparable damage; and

(c) Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Facie case in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented, to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter......”

Prima facie case

Flowing from the decision of the court in the Mrao case above, it is apparent that for a party to prove existence of a prima facie case with probability of success, he or she has to demonstrate existence of a right which has been trampled by the opposing party so as to call for explanation. The question arises therefore as to whether the Claimant has established the existence of the said right so as to call for our intervention at this stage.

It is the claimant’s contention that he has been suspended by the Respondent constructively without being afforded an opportunity to defend himself. That the Respondent’s Management Committee ordered him out of the meeting held on 15. 7.2020 on account of the fact that it wanted to discuss his conduct. That after the said deliberations, no communication was given to him.

On rebuttal, the Respondent denied the allegations made by the Claimant and aver that the Claimant was taken through due process before being suspended from its management committee. That he was never chased away in the meeting held on 15. 7.2020.

We have perused the Replying Affidavit sworn by James Giting’a Gathiru on 2. 9.2021. Annexture JGG-3 thereof is a letter addressed to the Claimant dated 7. 7.2020. The said letter is a summons addressed to the Claimant asking him to appear and show cause why section 53 (b) (1) of its by-laws should not be invoked by the Board. The said letter was copied to the Director of Co-operatives, Nyeri County and the Mathira East Sub –county Co-operative Officer.

Annexture JGG-4 is a Notice dated 13. 7.2020. The said Notice is calling and/or convening the Respondent’s Board Meeting to be held on 15. 7.2020. Agenda 5 of the said Notice is titled.

“ Gross misconduct by the vice-chairman”

Annexture JGG-5are the minutes of the Respondent arising out of the said meeting. At Min. 89/mgm/2020, the conduct of the Claimant is discussed. In the pertinent part, the minute reads;

“ The accusations were read to the vice-chairman. He was then given a chance to defend himself against the accusations. The vice chairman did not deny any of these accusations.”

Looking at these annextures in light of the averment made by the Claimant, we draw the following conclusions:

a. That the claimant was well aware about the accusations leveled against him.

b. That he was aware that part of the agenda Board meeting of 15. 7.2020 was to discuss his conduct as a member of the Board.

c. That the Claimant attended the said meeting where allegations of gross-misconduct were read to him.

d. That he did not deny the said allegations.

Looking at these conclusions in light of the current Application, it is apparent that the Claimant has not established existence of a right that the Respondent has violated so as to call for our protection at this interlocutory stage. The material placed before us point to a situation where the Claimant was taken through due process before being suspended from the Respondents Board. We say so noting that we are drawing inferences from material presented to as in affidavit form. We are yet to hear the claim on merits whereupon witnesses will be examined to test the veracity of the material presented and the allegations made.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimants Application dated 20. 8.2020 and hereby dismiss it with costs in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 4. 3.2021

HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 4. 3.2021

B. AKUSALA MEMBER SIGNED 4. 3.2021

Karuga Munya for Claimant

Mention for Pre- trial on 26. 5.2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 4. 3.2021