https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/317

**REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT MOMBASA COOPERATIVE TRIBUNAL CASE NO. CTC/E042/2025** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **KILIFI KALAMA KARISA *(Suing on his*** ***own behalf and on behalf of bona*** ***fide members of Vipingo Workers*** ***Savings and Credit Cooperative*** ***Society Limited........................****...............................***CLAIMANT/APPLICANT VERSUS** **VIPINGO SACCO COOPERATIVE** **SOCIETY LIMITED................................................................1st RESPONDENT** **THE COMMISSIONER FOR** **COOPERATIVE DEVELOPMENT .......................................2nd RESPONDENT** **RULING OF THE TRIBUNAL** 1. The matter for determination herein is the Claimant/Applicant’s Notice of Motion Application dated 12th January, 2026 for ORDERS: 1. SPENT 2. SPENT 3. **THAT** pending the hearing and determination of the substantive claim herein, this Honourable Tribunal be pleased to issue interlocutory orders staying, suspending, and restraining the said Management Committee members from assuming office, exercising powers, accessing Sacco accounts, executing resolutions, or otherwise discharging any functions of the Management Committee of Vipingo Workers Savings and Credit Cooperative Society Limited. 4. **THAT** this Honourable Tribunal be pleased to issue a conservatory order invalidating and nullifying the elections conducted on 11th January 2026 for having been conducted in blatant defiance of the orders of this Honourable Tribunal issued on the 22nd December, 2025 and 30th December, 2025, the Cooperative Societies Act, and the By-Laws of the Sacco. 5. **THAT** this Honourable Tribunal be pleased to issue an order directing the 2nd Respondent to reconvene a proper, lawful, inclusive, and compliant General Meeting within thirty (30) days from the date of this Order, comprising all the Claimants and all bona fide members of Vipingo Sacco Society Limited, for purposes of electing Management Committee members strictly in accordance with the law and the directions of this Honourable Tribunal. 6. **THAT** the Officer Commanding Station (OCS) nearest the venue of the reconvened meeting do provide security to ensure compliance with these orders, if necessary. 7. **THAT** the costs of this application be provided for. 1. The Claimant/Applicant avers that the applicationis grounded on Sections 3, 58, 76, and 93 of the Cooperative Societies Act; Articles 10, 27, 36, 38, 47, and 159 of the Constitution of Kenya; the inherent jurisdiction of this Honourable Tribunal; the Supporting Affidavit sworn by him on 12th January, 2026. 2. In the supporting affidavit, the Claimant/Applicant depones that he is a bona fide member 481 of Vipingo Workers Savings and Credit Cooperative Society Limited (hereinafter “the Sacco”); that the Tribunal issued clear and unambiguous orders, directing that the elections of the Sacco’s Management Committee be conducted with the participation of all eligible members; that the orders issued on 22nd December 2025, were subsequently affirmed by the Tribunal in a subsequent order; that despite the clarity of the said orders, the 1st Respondent issued a letter and notice dated 28th December 2025, which unlawfully set the agenda of the meeting and restricted participation to so-called “active members”; that the said notice was deliberately designed to seclude, exclude, lock out, and disenfranchise the Claimants, who are bona fide and eligible members of the Sacco; that the Cooperative Societies Act, the Regulations, and the registered By-Laws of the Sacco do not define or recognize the term “active members” as a basis for exclusion from elections; that despite several reminders by the Claimants drawing the 2nd Respondent to the Tribunal’s orders that were confirmed and affirmed on the 30th December, 2025, without any lawful justification, the 2nd Respondent proceeded on 11th January 2026 to physically lock out, restrain, and bar the Claimants from accessing the meeting venue and participating in the election exercise; that only a selected few persons, numbering a paltry twenty-five (25) individuals, were permitted to participate in the elections, rendering the process a sham, exclusive, and fundamentally undemocratic, contrary to By-Law 35 of the 1st Respondent; that the actions of the 2nd Respondent were in blatant defiance of the authority of this Honourable Tribunal and amount to conduct bordering on contempt as affirmed in the Claimants/Applicants application dated 30th December, 2025; that the exclusion of the Claimants violated Articles 10, 27, 36, 38, and 47 of the Constitution of Kenya and was a direct violation of the registered By-Laws 7, 9, 10, 12(b) and (c), 13, 33, 35 and 41 of the Sacco, which guarantees equal participation of all members in general meetings and elections; that the persons purportedly elected on 11th January 2026 are therefore not lawfully elected, and their election is illegal, null, and void ab initio; that elections conducted in violation of court or tribunal orders cannot stand, as held in Republic v Registrar of Societies & Another ex parte Justus Nyang’aya [2014] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, and Speaker of the National Assembly v Karume [1992] KLR 21; that unless interim, conservatory, and interlocutory orders are granted, the illegal Management Committee will continue to exercise power and prejudice the Claimants, rendering the proceedings nugatory; that it is therefore just, equitable, and in the interest of justice that the elections of 11th January 2026 be invalidated, the purported officials restrained and a fresh, inclusive election ordered under the supervision of this Honourable Tribunal. 3. In a Further Supporting Affidavit sworn by the Claimant, the Claimant avers further that on 11th January 2026, the 2nd Respondent conducted elections for the management committee of the 1st Respondent during a Special General Meeting; that during the said elections, the Claimants and others comprising 160 Claimants attended the venue and as duly registered members of the 1st respondent, were unjustifiably locked out and denied participation in the elections by Madam Mukare the Director for Cooperative Development Kilifi County through the administration Police Officers for reasons unbeknown to the Claimant; that the Claimant personally engaged Madam Mukare seeking answers as to why she had resolved to have them restrained and restricted from attending and participating in the said elections and she was adamant that she will not allow them to voice their complaints with the Honourable Tribunal hence the Claimants’ application filed on the 12th January 2026; that only 44 members were allowed to participate in the said elections despite the fact that the 1st Respondent comprises a total membership that is inclusive of the Claimants herein, as acknowledged in the 2nd Respondent’s report on membership dated 26th January 2026; that the said report confirms that the 1st Respondent comprises a total membership of 306 members inclusive of the Claimants herein; that the elections held on 11th January 2026 are null and void ab initio for failure to involve the 160 Claimants herein contrary to: 1. The Orders of the Honourable Tribunal issued on 22nd December 2025; 2. The Sacco By-Laws; and 3. The provisions of the Co-operative Societies Act, Cap 490 Laws of Kenya; that the 160 claimants herein are bona fide and eligible members of the 1st respondent, having duly applied for membership in accordance with By-Law 7 of the Sacco; that the 1st Respondent admitted the Claimants into membership upon meeting the threshold set out in By-Laws 9 and 10 having paid the requisite entrance fees and subscribing to the minimum share capital stipulated therein; that the Claimants’ membership satisfies the provisions of Section 13(1) together with Section 17 of the Co-operative Societies Act; that the 160 claimants locked out from participating in the elections have neither withdrawn their membership nor been expelled from the 1st Respondent in accordance with By-Laws 18 and 19 as read together with Section 18(1) of the Co-operative Societies Act; that the 160 claimants are therefore lawful and eligible members of the 1st Respondent and were entitled to attend, participate, vie for elective positions and/or vote in line with By-Law 12(b) and (c) of the Sacco; that the 2nd Respondent failed to consider that the 160 Claimants are listed in the official register of members of the 1st Respondent as required under Section 40(1) and (2) of the Co-operative Societies Act despite acknowledging that the 1st Respondent comprises 306 members; that by locking out the 160 Claimants from participating in the elections held on 11th January 2026, the 2nd Respondent violated the Claimants’ rights as enshrined under By-Laws 33, 34 and 39 of the 1st Respondent’s Constitution; that all the election results and all persons elected on 11th January 2026 were in outright violation of By-Law 40 of the 1st Respondent’s Constitution, which governs the conduct of elections, having restrained and restricted eligible members from participating; that the 2nd Respondent disobeyed the Orders of the Honourable Tribunal which required her to allow all eligible members to participate in electing the management committee of the 1st Respondent; her actions amount to abdication of statutory responsibilities and deliberate defiance of court orders, as emphasized in Teachers Service Commission v Kenya National Union of Teachers & 2 others, where the Court stated that: “A court order is not a mere suggestion or an opinion; it is a command that must be obeyed.” 4. The Claimant avers further that the election of a management committee during a Special General Meeting is a fundamental governance function that requires the participation of all eligible members of the Sacco; that no evidence has been tabled in accordance with the By-Laws and the Co-operative Societies Act to demonstrate that the Claimant and /or the 160 claimants are not members or are ineligible to participate in the said elections; that the exclusion of 160 out of 306 members fundamentally undermined the democratic character of the election and rendered the entire process irregular, unlawful and void; that the Claimant urges the Honourable Tribunal to find that he and/or the 160 claimants are members of the 1st Respondent and therefore eligible to attend her meetings and participate, vie for elective posts including voting for a person of their choice, and establish a management committee of the Sacco; that it is just, fair and expedient that this Honourable Tribunal orders the setting aside, nullify, cancel and revoke the election results dated 27th January 2026 by the 2nd Respondent flowing from the meeting held on 11th January 2026 and order a properly convened Special General Meeting comprising all eligible members, including the 160 Claimants herein. 5. In response to the application, the 1st Respondent filed a Replying Affidavit by one WESTON BANDA, the Chairperson of the 1st Respondent, who states that the claimant’s application is wholly unmerited, legally baseless and fraudulent in nature and a means by the Claimant to circumvent set out statute and written law; that on 13th November 2025, the Tribunal issued an Order directing the 2nd Respondent to convene a Special General Meeting within 30 days for fresh elections, and stated that “both active and dormant members of the Sacco shall be eligible to participate and vote”; that on 22nd December 2025, the Tribunal issued corrected Orders acknowledging an “error” in the previous order and directing that fresh elections be conducted for “all those eligible to participate”; that on 30th December 2025, the Tribunal affirmed the corrected Orders; that the 1st Respondent categorically denies that the elections of 11th January 2026 were conducted “in blatant defiance” of the Tribunal’s Orders. To the contrary: a) The Tribunal’s Order of 22nd December 2025 directed fresh elections for “all those eligible to participate” not for all persons claiming to be members. b) The 2nd Respondent presided over the Special General Meeting and elections, as required by the Tribunal’s Order. c) The 2nd Respondent, as the statutory regulator, applied the Cooperative Societies Act and the registered By-Laws to determine eligibility. d) The notice dated 28th December 2025 was issued by the 2nd Respondent’s officer not by the 1st Respondent. The Claimant has misdirected his complaint. 1. THAT Further, the 1st Respondent invites this Honourable Tribunal to take judicial notice that the Commissioner for Cooperative Development is the primary regulatory authority responsible for ensuring compliance with the Cooperative Societies Act and would not have presided over unlawful elections; that eligibility to participate in Sacco elections is not automatic for every person whose name appears on a register; that eligibility is determined by Statutory Requirement under the Cooperative Societies Act and the Sacco By-Laws; that the individuals who participated in the elections of 11th January 2026 were those who had met the criteria for eligibility as provided by the Cooperatives Act and By-Laws of the 1st Respondent; that the present application by the Claimant is thus an attempt to use this Honourable Tribunal to circumvent the mandatory requirements of the Cooperative Societies Act by seeking to have the Tribunal ignore clear statutory language, override the Sacco’s registered By-Laws and grant voting rights to persons ineligible to vote; that Sacco elections are contractual and statutory processes governed by the Cooperative Societies Act and By-Laws; that the right to vote in a Sacco election is conditional upon meeting obligations set out in statute and by laws, a condition the Claimant has failed to satisfy; that in response to the Claimant's prayers: a) The 1st Respondent opposes the grant of Prayer 2 seeking a Stay of implementation of elected Management Committee. The elected committee consists of eligible members duly elected in a lawful process. A stay would paralyze the Sacco’s governance and reward the Claimant’s non-compliance with financial obligations. b) The 1st Respondent opposes the grant of Prayer 3 seeking to Restrain the elected officials from assuming office as no valid and legal basis has been brought to warrant such restraint c) The 1st Respondent opposes the grant of Prayer 4 to Invalidate/nullify elections of 11th January 2026 and maintains that elections were lawful, compliant with the Tribunal’s Order (as corrected), Section 17 of the Act, and By-Laws 13, 19, and 35. d) The 1st Respondent opposes the grant of Prayer 5 seeking an order that the 2nd Respondent to reconvene fresh elections. The 1st Respondent avers that this would be a futile exercise as the same eligibility criteria (Section 17 + By-Law 19(e)) would apply, and the Claimant would again be excluded; that the Claimant is among those who have not met their financial obligations, hence excluded; that if the Tribunal finds that the Claimant is not a member, then the entire suit, including the application to set aside elections, collapses for lack of locus standi. 1. THAT the 1st Respondent prays that this Honourable Tribunal be pleased to: a) Dismiss the Claimant/Applicant's Notice of Motion dated 19th January 2026 in its entirety for being incompetent, lacking merit, and constituting an abuse of court process. b) Declare that the elections of the Management Committee of Vipingo Workers Savings and Credit Cooperative Society Limited conducted on 11th January 2026 were lawful, valid, and conducted in compliance with the Tribunal's Orders of 22nd December 2025 and 30th December 2025, Provisions of the Cooperative Societies Act, Cap 490 and the Provisions of the 1st Respondent Constitution. c) Declare that the Claimant, Kilifi Kalama Karisa, is not a bona fide member of the 1st Respondent and lacks locus standi to bring or maintain these proceedings. 1. The 2nd Respondent, on the directions of the Tribunal filed in the Tribunal a letter dated 27th January, 2026, it received from Mary C Mukare, Director for Co-operative Development in the County Government of Kilifi, wherein the Director cited the case herein and confirmed to the 2nd Respondent that a Special General Meeting was held on 11th January, 2026, in which elections were carried out and a Management and Supervisory Committee was put in place. Attached to the said letter are copies of the Notice that convened the Special General Meeting, the Minutes of the meeting, an inspection report and current status report. 2. The parties were directed to file written submissions in respect to the application herein. The 1st Respondent filed written submissions dated 26th April, 2026. As at the time of writing this ruling, the Claimant had not filed written submissions. ANALYSIS AND DETERMINATION 1. We have considered the application and all the documents filed in regard thereto by the parties and have one issue for determination, that is ***whether or not, the Claimants’ application has merit.*** The matters in issue in this application arise from three Orders of the Tribunal. The Claimants aver that the elections of the 1st Respondent held on 11th January, 2026 were conducted in blatant defiance of the orders of the Tribunal issued on 22nd December, 2025 and 30th December, 2025, the Cooperative Societies Act and the By-Laws of the Sacco. 1. In the Tribunal’s Orders made on 13th November, 2025, the Tribunal directed the 2nd Respondent who is the Commissioner for Cooperative Development to “convene and preside over a Special General Meeting of Vipingo Sacco Society Limited within thirty (30) days from the date of this order for purposes of conducting fresh elections of a properly constituted management committee and that both active and dormant members of the Sacco shall be eligible to participate and vote in such elections”. 2. In the Tribunal’s Orders made on 22nd December, 2025, the Tribunal stated that “the error was made in orders granted on 13th November 2025 and issued on 17th November, 2025 to include dormant members to be included in the elections that were to be conducted’. “the 2nd Respondent (Commissioner for Cooperatives Development) is directed to convene and preside over a Special General Meeting (SGM) of VIPINGO SACCO SOCIETY LIMITED within 30 days from the date of this order for purposes of conducting fresh elections of properly constituted Management Committee for all those eligible”. 1. In its further Directions issued on 31st December, 2025, the Tribunal ordered that “the Tribunal orders granted on 22nd December, 2025 to be adhered to having been given in presence of both parties”. 2. It is clear that the Tribunal Orders made on 22nd December, 2025 corrected the error made in the Tribunal Order made on 22nd December, 2025. 3. The elections that were ordered by the Tribunal therefore required participation of members who were eligible to participate. The context of participation in election is therefore key to this ruling. 4. The Claimants aver that the elections were conducted ultra vires, to suggest that the Commissioner by conducting the elections, the Commissioner, through his officer, acted beyond his powers. However, aside from the orders issued by this Tribunal directing the Commissioner to conduct the elections of the 1st Respondent, Section 93A (a) of the Coo-operative Societies Act empowers the Commissioner to call for elections in every society. 5. Further, it is not in question that the Special General Meeting was duly convened and elections were on the agenda of the meeting as evidenced by the Notice dated 24th December, 2025 issued by the Sub-County Cooperative office. 6. The question therefore begs as to who was eligible to participate in the 1st Respondent’s elections held in the Special General Meeting ordered by the Tribunal and which took place on the 11th day of January, 2026. 7. The Claimants aver that on the day of the Special General Meeting, 160 persons himself included, were unlawfully excluded and locked out of the elections while the 1st Respondent avers that the eligibility to participate in Sacco elections is not automatic for every person whose name appears on the register, that eligibility is determined by the Cooperative Societies Act and the By-laws. 8. According to Section 17 of the Co-operative Societies Act, no member of a co-operative society shall exercise any of the rights of a member unless he has made such payment to the society in respect of membership, or has acquired such interest in the society as may be prescribed under this Act or under the by-laws of the society. 9. As provided under Section 21of the Cooperative Societies Act, a member of a co-operative society shall have the right to: 10. attend and participate in decisions taken at all general meetings of the society and vote; 11. be elected to organs of the society, subject to its by-laws; 12. enjoy the use of all the facilities and services of the society subject to the society's by-laws; 13. all legitimate information relating to the society, including: internal regulations, registers, Minutes of general meetings, supervisory committees, reports, annual accounts, inventories and investigation reports, at the society's head office. 14. Section 27 (1) of the Co-operative Societies Act provides that the supreme authority of a co-operative society shall be vested in the general meeting at which members shall have the right to attend, participate and vote on all matters. 15. Section 27 (8) of the Co-operative Societies Act provides that the Commissioner may convene a special general meeting of a society at which he may direct the matters to be discussed at the meeting. Section 27 (10) provides further that the Commissioner may preside at any meeting convened under subsection (8). The Tribunal therefore directed the Commissioner do perform a mandate already given to him by Section 27(8) of the Act. 1. Rule 20 (1) of the Co-operative Societies Rules provides that the quorum of general meetings of a co-operative Society shall be laid down in the By-laws. Subrule (2) of the said Rules provides that where a meeting is convened by the Commissioner under the provisions of Section 27 (8) of the Act, members present at such meetings shall be deemed to constitute a quorum. It follows therefore that the 44, members who attended the Special General Meeting of 11th January, 2026 as per the Minutes produced by the 2nd Respondent, constituted a quorum. 2. The condition set out by section 17 of the Co-operative Societies Act is couched in mandatory terms. A member of a society shall not therefore enjoy any of the rights of a member including the right to vote unless he has made all due payments to the Society. 3. In the Status Report produced by the 2nd Respondent before the Tribunal, the total number of members of the 1st Respondent was 306, out of whom 74 were active and 232 were Dormant. 4. In the letter by the employer, REA Vipingo Plantations dated 22nd November, 2022, the employer notifies the 1st Respondent that the employer had stopped deducting its employees, contributions and would only deduct loan payments. The employer also raised issue with the delay in issuing share refunds of the members who had withdrawn. The question we pose at this juncture is whether or not in the present case, the members who had withdrawn from the Sacco and were waiting refunds while making no contributions were eligible to participate in the election and further, whether or not the members who had not withdrawn from membership but were not contributing to the Sacco, were eligible to participate in the election in terms of the orders of the Tribunal made on 22nd December, 2025 and finally, whether or not the “active ,members” to whom the notice dated 24th December, 2025 convening the general meeting of 11th January2026 referred to eligible members in the context of the Tribunal Orders. 5. Having perused the list of “members” who according to the Claimants, were denied attendance in meeting of 11th January, 2026 together with the list of dormant members and the list of members awaiting share refunds on record, we find that: 6. The Claimants have authorized Kilifi Kalama Karisa to represent them in the claim herein; 7. Though the name of Kilifi Kalama Karisa is on the list of those who claim to have been denied entry into the meeting, the said name is neither on the list of Dormant or on the list of members who have withdrawn from membership. Though his membership status may be a matter of further proof, no evidence has been provided to show that he was either dormant nor withdrawn. 8. None of the Claimants whose names appear on the List of dormant or withdrawn members have denied that they were dormant or had withdrawn from the Sacco, hence the list, status report and the letter from the employer are not disputed. 9. We find that most of the members on the list of those who claim to have been excluded from the meeting of 11th January, 2025 were listed either on the list of dormant members or that of members who had withdrawn from membership and were awaiting refunds. For reasons that the said members had either withdrawn or were no longer contributing, hence dormant, we find that they were not eligible members within the purview of Section 17 of the Co-operative Societies Act. 10. The Claimants aver that the notice was addressed to active members with the intent to lock our or exclude the claimants from participating from the election. The requirement for eligibility provided by the orders of the Tribunal was informed by Section 17 of the Cooperative Societies act and the Sacco Societies Act. The Sacco Societies Act requires all Sacco members to contribute savings that are withdrawable on cessation of membership. We therefore hold that “active members” to whom the notice dated 24th December, 2025 were addressed were members who had complied with the relevant provisions of the law that entitled them to the rights of a member, including the right to vote in the general election and were therefore eligible to participate. 11. It is trite that he who alleges must prove the existence of what he alleges. It is our finding that the Claimants have not demonstrated on a balance of probability that the elections held on 11th January, 2026 were not conducted as per the Tribunal orders or were ultra vires and against the Co-operative Societies Act and the By-laws. 12. We find that the Claimants’ application dated 12th January, 2026 lacks merit and the same is hereby dismissed. 13. Costs are in the cause. Ruling dated and delivered *virtually* at **Nairobi** this **30th** day of **June, 2026.** **Hon. J. Mwatsama Chairperson** **signed** **30.6.2025** **Hon. Beatrice Sawe Member signed 30.6.2025** **Hon. Fridah Lotuiya Member signed 30.6.2025** **Hon. Michael Chesikaw Member signed 30.6.2025** **Hon. P. Aol Member signed 30.6.2025** **Tribunal Clerk Jemimah** Khisa advocate for the Claimant. Advocate for the Respondent – No appearance.