https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/288

Katelembo Athian Muvuti Coop Society v Nzilani (Tribunal Case 443 of 2026) [2026] KECOPT 288 (KLR) (Civ) (9 July 2026) (Ruling) Neutral citation: [2026] KECOPT 288 (KLR) Republic of Kenya In the Cooperative Tribunal Civil Tribunal Case 443 of 2026 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members July 9, 2026 Between Katelembo Athian Muvuti Coop Society Claimant and Janet Nzilani Respondent Ruling 1.Before the Tribunal for determination is a Notice of Motion dated 2nd June, February 2026 filed by the Claimant under a Certificate of Urgency seeking for the following orders:i).Spentii).That pending the hearing and determination of this Application interparties, this Tribunal be pleased to issue a Temporary Injunction compelling the Respondent/Respondent, whether by herself, her servants, agents and/or any person acting under her authority or instructions, to forthwith surrender to the Applicant/Applicant all keys, padlocks and access devices currently being used to deny access to the Applicant’s offices situated at Katelembo, Machakos County.iii).That pending the hearing and determination of this Application interparties, this Tribunal be pleased to issue a Temporary Injunction compelling the immediate reopening of the Applicant’s offices situated at Katelembo, Machakos County and restoration of access thereto to the Applicant’s Management Committee, employees, members and authorised service providers.iv)That pending the hearing and determination of the suit, the Respondent/Respondent, whether by herself, her servants, agents and/or any person acting under her authority, be restrained by way of a Temporary Injunction from locking, securing, obstructing, interfering with or otherwise denying access to the Applicant’s offices situated at Katelembo, Machakos County.v)That pending the hearing and determination of the suit, the Respondent/Respondent be restrained from interfering with the lawful management, administration and day-to-day operations of the Applicant Society.vi)That the Officer Commanding Station (OCS), Machakos Police Station, be and is hereby directed to provide security, maintain law and order and facilitate the enforcement of the orders issued by this tribunal.vii).That the implementation of the orders issued herein be undertaken in the presence of the Commissioner for Co-operative Development, Machakos County, or such officer as he may duly designate for that purpose.viii)That the costs of this Application be provided for. 2.The Claimants premised the Application on the grounds contained on the face of it and supported by Affidavit sworn by George Wambua of even date whose kernel is that on 15th May 2026 the Respondent without any lawful authority locked the society’s offices situated at Katelembo using padlocks and retained possession/control of the keys. As a result, the employees, the board of management committee were denied access to their place of work and at the same time, the service providers and the entire 3525 members were denied access to services. 3.The Respondent filed a Replying Affidavit dated 24th June 2026 and denied that she took possession of nor exercised exclusive control over the offices of the Claimant. She contended that the dispute stem from an ongoing governance disagreement between the current board and the respondent that aim to remove/replace her from her position in the supervisory committee. Brief Facts 4.The Respondent is the secretary of the supervisory committee of the Claimant. On 15th may 2026, she together with other unidentified persons went to the society’s offices at Katelembo and locked with padlocks and took the keys with them. 5.That, upon receipt of the information regarding the incident, the board committee wrote a letter dated 25th May 2026 to the chair of the supervisory and sought clarity whether the supervisory committee sanctioned the action taken by their secretary or not. On 29th may 2026, two (2) supervisory committee members Margaret Mutunga - the Chair and Joyce Mulili responded and categorically disassociated themselves with the actions of their secretary Janet Nzilani. Analysis 6.Having read and considered the Claimant and the Respondent Statements, the Affidavits and the evidence on record, two (2) issues emerge for our determination;i.whether the Respondent acted outside her mandate and breached her fiduciary duties or not?ii.Who will bear the cost of this Application? Determination i. Whether the Respondent acted outside her mandate and breached her fiduciary duties or not? 7.It is not in dispute that the Respondent is a member of the Claimant and the secretary of the supervisory committee. Under the Interpretation Clause of the Co-operative Societies Act cap 490;“Supervisory committee means an oversight committee elected at an annual general meeting”.Apart from being elected by an annual general meeting, the role of any supervisory committee in any given cooperative society is to act as an oversight or internal audit organ and they operate independently from the main board of directors committee. Their job is to safeguard the interests of the members by ensuring that the main board committee are accountable, transparent and adhere to the society’s by-laws, rules, credit policies and the cooperative society Act in the discharge of the overall management of the cooperative society. 8.The Claimants filed the instant Application under Certificate of Urgency because the Respondent caused disruption of the business of the society by locking with a padlock the society’s office. This is after the Claimants made several requests to the Respondent to reopen the society’s offices but she refused to reopen thus causing substantial losses and inconveniences to the members, employees, suppliers and the committee.Upon re-reading the Respondents Replying Affidavit there is no express denial by the Respondent that she did not lock the Society’s offices. Instead, the Respondent’s Affidavit reveals her several frolics of disagreements with the management committee. 9.The Respondent demonstrated her bitterness under paragraph 5 of her Replying Affidavit where she stated that the current board has expressed intentions to remove/replace or terminate her from her position as the secretary of the supervisory committee. Without doubt, a bystander or a stranger hearing this, is easily persuaded that the respondent went overboard to ventilate her bitterness against the board committee by locking the society’s offices. It is wrong and the Tribunal cannot tolerate that kind of behaviour.Faced with similar circumstances the court in the case of Republic V. Commissioner for Cooperative Development and Another exparte Murati Farmers’ Cooperative Society Ltd (2018) eKLR stated that:“The courts have consistently held that the roles of the management board and the supervisory committee are distinct and complementary not competitive, the supervisory committee cannot interfere with the day-to-day administration or the running of the society”. 10.What the Respondent could have done is to hold her horses until the next Annual General Meeting then she reports her observations/tribulations with the committee or management and allow the apex body of members to make a resolution over it. Legally her disagreement with the board or management does not warrant her to go and lock the offices of the society which has caused harm and losses to many innocent members of the society, the employees, suppliers and other stakeholders. In our view this is the height of naivety and irresponsibility on the part of the respondent who hold a critical, legally mandated oversight role as one of the supervisory committees. 11.Further, Section 24 of the Cooperative Society Act provide that every registered cooperative society must have an office where the business of the society is carried out. Locking a society’s office for whatever reason and for whatever disagreement by a member, board member, or supervisory committee member is illegal and an act of trespass that cause irreparable harm to the society and her members. 12.For this reason, we hereby order the Respondent to immediately re-open the society’s offices in order to have the society’s operations to resume and continue. The Respondent is further ordered to desist from any interference with the society’s premises or operations now and in future. 13.The Tribunal has noted that the disagreement between the Respondent and the board of management created a governance dispute that has caused severe breakdown of communication between one (1) member of the supervisory committee and the main board committee. To help dig into the root cause of the disagreement and to help the parties to resolve the dispute amicably, we invoke the provisions of Section 58b (1) (c) of the Civil Procedure Act which grants power to the Tribunal to refer disputes to mediation (Suo Moto) even without the mutual consent of all the parties provided the case is suited for compromise. This Section provides that:“59B. (1) The Court may−(c)where the law so requires, direct that any dispute presented before it shall be referred to mediation."Section 59 C goes further to provide that;“A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral." 14.Pursuant to these provisions of the law, we hereby appoint the Commissioner of Cooperatives to dig into the root cause of the dispute by summoning the Respondent and the board committee/the management staff with whom the Respondent allegedly has some disagreement with, to attend a mediation session during which each party be allowed to voice their systemic grievances with a view to reach a settlement. 15.The choice of the Commissioner of Cooperative as the mediator of this governance issues is because ordinarily such matters could have been handled by the board committee of a society according to their by-laws, but because the board committee are party to the suit, it is only fair that a neutral and independent expert like the commissioner of cooperatives be and is hereby appointed to mediate over the dispute. 16.In the light of the foregoing and having referred the underlying issues of the disputes to the Commissioner of Cooperatives, we find that the prayers of the Claimants Notice of Motion dated 2nd June 2026 are merited and is hereby allowed. Ordersi.That the Respondents to open the offices of the Claimants on or before 10/7/2026.ii.Failure to open the offices on or before the end of the day 10/7/2026, the OCS Machakos police station is hereby advised to summon the Respondent and to supervise the reopening of the society offices.iii.That the cost of this Application shall be borne by the Respondent.It is so ordered. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JULY, 2026.HON. J. MWATSAMA CHAIRPERSON SIGNED 9/7/2026Hon. B. Sawe Member Signed 9/7/2026Hon. Fridah Lotuiya Member Signed 9/7/2026Hon. M. Chesikaw Member Signed 9/7/2026Hon. P. Aol Member Signed 9/7/2026Court Assistant – MutaiMuli advocate for the RespondentHon. J. Mwatsama Chairperson Signed 9/7/2026