[2023] KECPT 59 (KLR)

Kabogo v Githunguri Dairy Farmers Co-operative Society Ltd & 2 others (Tribunal Case 373 of 2021) [2023] KECPT 59 (KLR) (28 February 2023) (Ruling)

Neutral citation: [2023] KECPT 59 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 373 of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair & M. Mbeneka, Member

February 28, 2023

Between

Simon Njoroge Kabogo

Claimant

and

Githunguri Dairy Farmers Co-operative Society Ltd

1st Respondent

Sub-County Co-operative Officer, Githunguri

2nd Respondent

Director, Co-operative Development County Government of Kiambu

3rd Respondent

Ruling

1. Application for determination is dated August 26, 2021. It is being determined together with the Application, Notice of Motion, dated January 12, 2022. We shall begin with the Application dated August 26, 2021. The Application is a chamber summons brought under Section 78 of Co-operative Societies Act.The Application seeks for order:a.Spent.b.Spent.c.That an order of injunction do issue to restrain the 1st Respondent, by herself, her agents and/or servants and/or employees from convening and/or holding a meeting on September 4, 2021 at Kiambururu Primary School or on any other day and venue to transact the business of conducting elections for the Management Committee member representing Route 6 (Kanjai) pending hearing and final determination of this claim.d.The costs of this Application be provided for.It is supported by Affidavit of Service Njoroge Kabogo who avers the 1st Respondent issued a notice to convene elections for societies’ meeting to represent route 6 (Kayari) which were to be held on July 24, 2021. Elections were held as daily scheduled and outcome was; Simon Njoroge Kabogo – 595 votes.

Titus Wainaina Kinyua – 543 votes.

James Murimi Mugo – 430 votes.

The Claimant was declared winner and on August 5, 2021 he received a call from the 2nd Respondent to collect a letter cancelling the elections of July 24, 2021. That acting on the letter 1st Respondent issued notice dated August 18, 2021 for repeat election for route 6 Kayari to be held on September 14, 2021. Complaints regarding outcome was based on improperly of Kayari Primary School which Applicant avers he’s always been the venue for conveying meetings.The Applicant’s sought for declaration that there is no legal basis to cancel the elections of July 24, 2021 Interim Orders were given.

2. The 2nd Respondent filed a Replying Affidavit sworn by Abigail Taabu sworn on September 13, 2021 as Director Commissioner for Cooperative Development – Kiambu County who stated;She received a complaint from 1st Respondent on July 27, 2021 on irregularities of the elections held on July 24, 2021 at Kayari Primary School route 6. Complaint was based on a choice of venue, clearance cards, vote counting and total number of voters present.She stated that there was no verification of members on the day of elections, ballot cards exceeded total number of voters which is 100 votes.They thus directed for repeat elections thus prayed for the Application and suit to be dismissed.

3. The 1st Respondent filed a Replying Affidavit sworn by George Kinyanjui Chairman of 1st Respondent on November 5, 2021 filed on even date.He confirmed notice was given for elections in route 6 and elections conducted. However, on July 30, 2021 he received communication from 2nd Respondent on the Complaints and sought assistance to verify members of society and they established 114 names out of those submitted that 109 were member. There were irregularities in the 5 other names.As such we received instructions to undervalue other elections.On August 18, 2021 they issued notice for repeat elections however on August 31, 2021. Applicant filed an Application.Further members cleared to vote were 1418 and results were for 1568, thus was an irregularity.Due to the variance between the voters the elections cannot be credible.

4. Simon Njoroge the Applicant filed a Further Affidavit and stated; 3rd Respondent had no powers to count an election, their duty was to oversee, supervise Co-operative Societies. That the powers are vested at the Tribunal and ought to have voters to count and not filing complaint with 3rd Respondent.2nd Respondent was the Returning officer of the elections and conducted elections declaring him winner.It is dishonest of her to turn around and say elections she conducted are not proper, yet she was a key player in the entire process.That he reiterates his position and requests for the Application to be allowed.Applicant filed written submissions dated March 3, 2022 on March 4, 2022 and 2nd and 3rd Respondents filed written submissions dated April 14, 2022 on May 11, 2022. The same are considered.

5. From the above the issues for determination are;Issue OneWhether the elections of July 24, 2021 were fair?Issue TwoWhether the Applicants are eligible for the orders requested?Issue OneWhether the elections of July 24, 2021 were fair and procedural?From the pleadings and documents before the Tribunal the question we ask is if the elections of July 24, 2021 were fair and procedural.The elections done on July 24, 2021 were done on the day they were advertised.We presume there were no glaring mishaps as the results were announced and winner declared.If there was an issue, the same would have been brought to the attention of the 2nd Respondent immediately after the elections or after vote counting or even after declaration of the winner.None of this was done. A complaint was done later that the other contenders were not satisfied with the outcome and as a result they attempted to cancel the elections and hold fresh onesQuestion – Why wouldn’t the Complainant state their grievances on the same date?We have looked into the 1st Respondent’s Replying Affidavit and they state their register did not recognize 5 of the members who were present on the said day.Are 5 votes a big figure that would have altered the outcome of the elections?Our answer is in the negative.

6. The other issue on the Respondent is that the votes cast in total were more than its members?This information came out after the elections and results declared.It is clear with such a huge discrepancy the 2nd respondent ought to have realized the same and acted on it on the ground.Why did it have to wait until a later date for this to transpire?Was the 2nd Respondent negligent in performing her duties?At the elections held on July 24, 2021?It seems the same is an afterthought on part of the Claimant to revoke her own results and election process, and state there were irregularities.Indeed, if that was the case if at all the participants/ candidates ought to have been called and interrogated on the same and not just cancel peaceful elections as they were because of a mere outburst/ realization done later after declaration of results.

7. Issue TwoWhether the Applicant is entitled to the orders south.For any Application to be granted orders sought the principles ofGiella –vs- Cassman Brown (1973) EA 358 are to be looked into which 3 ingredients are;1. Prima facie case2. Irreparable harm3. Balance of conveniencePrima facie caseThe Applicant from the face of it has a prima facie case against the Respondent.Nguruman limited -vs- Jan Bonde Nielsen & 2 othersIn determining whether there is a prima facie case, has been established, the court does not hold a mini trial and must not examine the merits of the case closely except to declare that the Applicant has a right which has been threatened with violation.Irreparable harmAn Applicant must show that he might otherwise suffer irreparable injure which cannot be adequately remedied by damages in the absence of an injunction and speculation injury will not do nor will unfortunate further on Apprehension.Balance of Convenience.Andrew Muriuki Wanjohi –vs- Equity building Society Limited and 2 others [2006] eKLR.Where is the real risk if the orders are not granted?To this end we find Application satisfied the 1st ingredient that is of prima facie case and as such agree with him.In carrying out another set of elections means the elections were marred with irregularities which on our end do not agree with UpshotApplication dated August 26, 2021 is allowed as prayed.

8. The Application dated January 12, 2022 seeks for orders:a.Spent.b.That an order of mandatory injunction do issue to compel the 1st Respondent to allow the Applicant to forthwith assume office as management committee member of the society representing route 6 (Kanjai) until or further orders of this Tribunal.c.The costs of this Application be provided for.This Application as it were and for the reasons in Application dated August 26, 2021, we shall not go back to the area.We order for the 1st Respondent to allow the Applicant to assume office as Meeting Committee member of 1st Respondent Society representing route 6 Kayari

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF FEBRUARY, 2023. Hon. Beatrice Kimemia Chairperson Signed 28. 2.2023Hon. J. Mwatsama Deputy Chairperson Signed 28. 2.2023M. Mbeneka Member Signed 28. 2.2023Tribunal Clerk J. MutaiHon. J. Mwatsama Deputy Chairperson Signed 28. 2.2023