[2020] KECPT 117 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.398 OF 2019

KIKUYU DAIRY FARMERS COOPERATIVE

SOCIETY LIMITED...................................................................CLAIMANT

VERSUS

DAVID KIANGONYO KUNGU....................................1ST RESPONDENT

SIMON KAMAU NJANE..............................................2ND RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Application dated 17. 7.2019. It seeks, in the main, the following orders:-

1. That the Tribunal be pleased to grant a temporary injunction restraining the Respondents, their servants, workmen and agents, and any other person not duly authorized by law or by the Boards of Kikuyu Dairy Farmers Co-operative Society Limited from conducting a meeting at PCEA Kahuho Gatuanabu Church or at ACK Kanyariri Hall on 18. 7.2019 or in any other venue and on any other subsequently date or time;

2. That an order issues to the OCS Kingeero Police Station to enforce prayer number 1 above;

3. The Honourable Tribunal be pleased to grant an order restraining the Respondents, servant, workmen and agents, and any other person not being duly authorized by law or by the board of Kikuyu Dairy Farmers Cooperative Society Limited from convening illegal meetings and issuing communication to the members and shareholders of Kikuyu Dairy Farmers Cooperative Society Limited or any members of the public regarding Claimant, its affairs and Property being Title Number Dagorreti/Thogoto/No.4084;

4. The Honourable Tribunal be pleased to grant an order restraining the Respondents, their servants, workmen and agents, and any other person not being duly authorized by law or by the board of Kikuyu Dairy Farmers Cooperative Society Limited from making and using a stamp with the impressions Kikuyu Dairy Farmers Cooperative Society Limited or in connection with Kikuyu Dairy Farmers Cooperative Society Limited;

5. The Honourable Tribunal be pleased to grant an order restraining the Respondents, servant, workmen and agents, and any other person not being duly authorized by law or by the board of Kikuyu Dairy Farmers Cooperative Society Limited from convening illegal meetings and issuing communication to the members and shareholders of Kikuyu Dairy Farmers Cooperative Society Limited or any members of the public regarding Claimant, its affairs and Property being Title Number Dagorreti/Thogoto/No.4084;

6. The Honourable Tribunal be pleased to grant an order restraining the Respondents, their servants, workmen and agents, and any other person not being duly authorized by law or by the board of Kikuyu Dairy Farmers Cooperative Society Limited from making and using a stamp with the impressions Kikuyu Dairy Farmers Cooperative Society Limited or in connection with Kikuyu Dairy Farmers Cooperative Society Limited;

7. The Honourable Tribunal be pleased to grant an order restraining the Respondents, their servants, workmen and agents, and any other person not being duly authorized by law or by the board of Kikuyu Dairy Farmers Cooperative Society Limited from impersonating the office of the Chairperson Kikuyu Dairy Farmers Cooperative Society Limited unless legally elected to hold the said position; and

8. The costs of this application are provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by John Kagiri Gitagia on 17. 7.2019.

It is the Claimant’s case that the Respondent has convened a meeting to be held on 18. 7.2019 whose purpose is to discuss Title No. Dagoretti/Thogoto No. 4084 which property is registered in its name. That the said meeting has not been sanctioned by the Claimant’s Board of Management.

That the 1st Respondent had, on 12. 4.19, attempted to convene an illegal meeting but the same was stopped vide a court order issued on 11. 4.19 by the Senior Principal Magistrate’s Court at Kikuyu in case number 96/19.

That the scheduled meeting is irregular a procedure for calling it is flawed.

That the Respondents did not obtain the sanction of the Claimant’s full Board in calling for the said meeting.

Respondent’s Case

We have perused the record and note that the Respondents have not filed a response to the Application. We note though that the Respondents have participated in the Application by filing written submissions on 7. 2.2020.

Vide the said submissions, the Respondents contend that the firm of advocates on record for the Claimant should recuse itself from the matter as it has a direct interest in the suit. That the advocate on record for the Claimant is one of its members and also a shareholder in the suit property that is Dagoretti/Thogoto/4084.

Further, the Respondents contend that the 1st Respondent was officially elected by the members and shareholders on 7. 11. 2014. That his term was to run for a period of 3 years but this did not become the case as he only worked as Chairperson until 23. 2.2016. That on 23. 2.2016, there was a meeting convened without Notice to him (1st Respondent). That in the said meeting, officials who attended it voted him out by way of a vote of no confidence. That the said procedure for voting him out was irregular and/or illegal.

That after the said meeting, no handing over was done and that to his knowledge, he is still the Chairperson of the Claimant. That as a result of this, he will continue occupying office until such time when he will be given a chance at the Annual General Meeting to do to a person who would have been legally elected.

As regards the land in question, that is Dagoretti/Thogoto /1487, the Respondents state that the said land belongs to the shareholders of the claimant and not a few officials.

That when the 1st Respondent got to know about the “dirty game” being played with respect to the property, he requested for a meeting with the shareholders to enlighten them about what was happening. That he wanted to let them know that they were entitled to dividends arising from their shares in the parcel. He avers that at this juncture, he was thrown out at the Claimant’s Board.

That since the shareholders were not notified of the meeting and owing to the fact that they knew him as the Chairperson, they kept asking him for a meeting and since the 1st Respondent knew about procedure for convening one, he asked them to write their names and append their signature, which totaled to 122. That the by- laws provide for a quorum of 70 members. That it was on this basis that he organized for the meeting. That the meeting did not, however, happen as he was arrested before it kicked off.

Determination

We have considered the Application, the grounds in support thereof as well as the Affidavit sworn by JohnKagiri Gitagia on 17. 7.2019. We have also appreciated the written submissions filed by both parties. What is apparent is that there is a dispute as regards the Management of the Claimant. On the one hand, the Claimant contend that the Respondents are interfering with its management by for instance, calling for meeting without the sanction of the Board, on the other hand, the 1st Respondent is crying foul. That he was unprocedurally hounded out of office by clique of officials of the Claimant. That the said meeting was attended by the Director of Co-operatives, one NancyNungari Karanja. That subsequently, and owing to the fact that he had not handed over as required by the by-laws and compounded by the fact that he was under pressure from shareholders to convene a meeting, he obliged and collected signatures of 122 members. That the said number surpassed the minimum threshold of 70 members.

We have perused annexture JKG-7 of the annextures to the Supporting Affidavit sworn by JohnKagiri Gitagia. It is a Judgment of the Tribunal in CTC.No.579/16. Vide the said claim; the 1st Respondent had sought orders inter alia that he be reinstated as the Claimant’s Chairperson. The suit was heard and subsequently dismissed with costs.

Our appreciation of this Judgment therefore is that the 1st Respondent was regularly removed as the Chairman of the Claimant by Board members of the Claimant. It follows therefore that as it stands, this is the status as regards its Chairmanship.

This being the case and owing to the current state of affairs in the country, and especially the directions given to Co-operative Societies by the Commissioner of Co-operatives on 16. 3.2020, we direct that the current status as regards the leadership of the Claimant to be maintained. Since all Annual General Meeting remain suspended, we direct that the parties to focus their energies on having the main suit heard and determined when the current situation returns to normalcy. Should the Respondents wish to convene any meetings once the Commissioner gives further directives, then they ought to do so in accordance with the Claimants by- laws.

Read and delivered pursuant to the directions issued by the Hon. Chief Justice on 15. 3.2020, this 9th day of April 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman Signed 9. 4.2020

Hon. F. Terer Deputy Chairman Signed 9. 4.2020

P. Gichuki Member Signed 9. 4.2020