https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/243

**REPUBLIC OF KENYA** **IN THE COOPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CTC. NO. E035 OF 2025** **(Coram: Hon. J. Mwatsama- Ag. Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **CHARLES KIMARU KINGORI………………………………………..CLAIMANT** **VS.** **OTHAYA FARMERS COOPERATIVE SOCIETY LTD……………..RESPONDENT** **RULING** **FACTS.** 1. The respondent is a duly registered coffee farmers’ cooperative society operating as such in Othaya Town within Nyeri county. The claimant is a member of the respondent and has held membership No.13715 from 2007. In 2015 he states that he applied and he was issued with an additional membership No.16398. Over time the claimant stated that he used the two (2) membership numbers to deliver his coffee cherry. That in 2024, he expanded his farming operations by leasing additional coffee farms thereby increase his total deliveries to Chinga factory using Membership No. 16398. For deliveries to Chinga factory, Thuti factory, Gatugi factory and Ichamama factory, he used membership No.13715. That on 9th September 2025 he was served with a letter by the respondents that he was in breach of the society’s by-laws for having double individual membership numbers which would earn him expulsion from the society. **The Claimants case.** 2. The Claimant filed a Notice of motion application dated 31st October 2025 seeking for the following orders; i) spent ii) That this tribunal be pleased to issue an order of temporary injunction restraining the respondent, its agents, servants, or officers from suspending, expelling, deregistering or any manner interfering with the applicant’s membership rights in the respondent’s society pending the hearing and determination of this application. iii). That this tribunal be pleased to issue interim orders directing the respondents to reactivate and restore the applicants suspended membership account No 16398 pending hearing and determination of this application and the suit. iv). That this tribunal be pleased to issue an injunction restraining the respondents, its agents or officers from expelling, suspending, deregistering or in any manner interfering with the applicant’s membership rights pending the hearing and determination of the suit. x) . That the cost of the application be provided for. 3. The application is premised on six (6) grounds that is on the face of it and supported by an affidavit sworn by Charles Kimaru King’ori dated 31st October 2025. **Respondents Response.** 4. Vide a replying affidavit dated 9th December 2025, the respondents denied the deactivation of the claimant’s membership No.16398.Iinstead they deboned that it is the claimant himself who voluntarily wrote a letter dated 25th September 2025 and requested for the deactivation of the same. 5. That after receiving the request, they went ahead to allocate the number 16398 to one Joyce Wangui Mwangi who had applied and paid for membership in accordance with their procedures and by-laws. 6. That their by-laws prohibit members from having double membership numbers because it would undermine internal governance and create unfair advantage to a particular member during voting in a general meeting. 7. That they regularized the anomaly by deactivating number 16398 and left the original number 13715 to remain the validly registered membership number in the claimant’s name. 8. Finally, the respondent stated that they have not expelled, suspended or deregistered the applicant from the cooperative society. That the claimant stands no threats of being expelled because the anomaly has been corrected. **Tribunals direction.** 9. After several mentions of this matter, the parties agreed to dispose the application by way of written submissions. On 10th December, 2025, the tribunal directed the parties as follows. i) Claimant was granted 21 days to file and serve further affidavit to file written submissions on the Notice of Motion dated 31st October, 2025. ii) The respondent was granted 21days to file written submission in response to the claimant’s submissions. 10. Both the parties complied with the directions. **Analysis** 1I. Upon consideration of the claimant’s pleadings, evidence filed and his written submissions and upon consideration of the respondents opposing statements, evidences and the written submissions, we have distilled the issues in the following two (2) issues for our determination. 1. **Whether an order of temporary injunction can be granted by this tribunal to restrain the respondents from interfering with the claimant’s membership rights pending the hearing and determination of this application?** 2. **Who would bear the cost of the application?** **Determination.** 1. **Whether an order of temporary injunction can be granted by this tribunal to restrain the respondents from interfering with the claimant’s membership rights pending the hearing and determination of this application?** 12. The power of the court to grant temporary injunction is governed by order 40 rule 1and 2 which provide as follows: ***Rule 1; “In any suit for restraining the defendant from committing a breach of contract or other injury of any kind whether nor not compensation is claimed in the suit, the plaintiff may at any time after commencement of the suit and either before or after judgement, apply to restrain the defendant from committing the breach or injury complained of or any of alike kind arising out of the same contract or relating to the same property or right”.*** 13. A plain reading of the above provision shows that the instant case falls rightly within the purview of order 40 (1) of the civil procedure rules 2010. However, the courtin the case of **Giella v. Cassman brown & co. ltd (1973) EA 358** set out athree-pillar test which must be demonstrated by the claimant in order to be granted a temporary injunction. These are: a) Whether the claimant has a prima facie case? b) irreparable injury c) Balance of convenience. **a) prima facie case** 14. To start with, the court of appeal defined what constitute a prima facie in the case of **Mrao Ltd V. First American Bank of Kenya ltd & 2 others (2003) Eklr** and stated as follows **“a prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which, on the materials 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 or rebuttal from the latter”** 15. The claimant in his Notice of motion application presented the fact that he possessed two (2) membership numbers in the respondent and went further to attach two schedules of coffee deliveries using the two numbers. This was noted as anomaly by the respondent for the reasons that are captured under paragraph 8 & 9 of the respondents replying affidavit to wit: 8) That their by-laws prohibit double membership because it creates unfair advantage in voting and representation, in dividends distribution and allocation of benefits. 9) Would set a dangerous and unlawful precedent, undermine internal governance and disadvantage other law-abiding members. 15. Given that the claimant and the respondent are standing on two different opinions, we consider that the law will bring harmony. A perusal of the second international cooperative principles on democratic control states that every member of a primary cooperative society has equal voting rights that is to say “one member, one vote”. Our section 19 of the cooperative societies Act cap 490 provide that: **“Each member of a cooperative society shall have one vote only in the affairs of the society irrespective of the number of shares he holds”** 16**.** This therefore means that a member holding two distinct membership numbers as in the case of the claimant is unlawful because in our view such practice will create several layers of administrative and ethical mischief. For example, the practice is a violation of the internationally accepted cooperative democratic principle of “one member one vote principle’, it creates confusion during the casting of the two votes by a member thereby give an unfair democratic advantage over others. 17**.** The argument made by the claimant thatthere is no by-law that wasviolated is a futile academic exercise in our opinion because many cooperative societies in Kenya have by-laws which, explicitly state that a person shall not hold more than one membership number and we don’t think that the respondent is an exception. Section 13 of the cooperative societies Act provide that; “***Every cooperative society shall keep a copy of this Act and of the rules made thereunder and of its by-laws and a list of its members (excluding details of nominees and shareholding) at its registered office and shall keep them open for inspection by any person, free of charge at all reasonable time s during business hours”.*** (emphasis ours) 18. If that practice of having double membership numbers was to be left unchecked, there are high chances that would lead to ghost membership numbers which would inflate a society’s actual membership size. 19. On this 1st pillar test, it is our considered reasoning that the claimants have violated the international cooperative principles of democratic control, the cooperative societies Act and the by-laws of the respondent, yet the claimant has not demonstrated why he holds two membership numbers yet he could still use his original membership number to deliver his coffee cherry. In this regard, we consider that he has failed to show that he has a prima facie case with a probability of success. **b) On the second –test of irreparable injury.** 20. The tribunal expected the claimant to demonstrate that he would suffer an injury that cannot be adequately compensated by an award of damages if the injunction is not granted, but instead the claimant has made unsubstantiated statements like “the suspension of that account directly jeopardizes his entitlement to payment and restrict his ability to transact within the cooperative society’. 21. The above statement is not factual, because the claimants 2nd membership number is not suspended but deactivated and allocated to a new member. Further, the Claimants original number 13715 has not been interfered with and that he will continue to transact his business with the cooperative society using that identity with his full membership rights secured. Thirdly, being given a warning letter dated 9th September, 2025 does not mean that the claimant is expelled. 22. On proceeds from the transferred membership number 16398, the respondent is very categorical that they processed the proceeds in accordance with the transfer procedures. However, if the claimant has apprehension that he was not paid for his coffee proceeds that he delivered against the membership number that has been taken away, it is his right to visit his cooperative society and put across his demand with an aim to have it sorted out. 23. Having stated so, with all the factor constant, the tribunal does not comprehend how the claimant would suffer irreparable injury and or from which transaction or from which right that has been denied? The claimant must demonstrate the injury to be suffered with cogent evidence but not imaginations or sweeping statements. 24. Our finding on the 2nd pillar test of irreparable injury, is that the claimant has failed to demonstrate that he will suffer irreparable injury and therefore failed to prove that he deserves to be granted a temporary injunction. **c) Balance of convenience.** 25. On the 3rd and final test of “balance of convenience” the claimant seems to have a fixed mind that, it is his right to have two membership numbers which the tribunal does not agree with him. The respondent on the other hand has shown that allowing the claimant to hold two membership numbers is a breach of their by-laws, that it will create ghost membership numbers which will inflate the members size of the cooperative society, that it will create an unfair advantage in the distribution of dividends, voting and will attract audit queries from the regulator. 26. Finally, given that the respondent will suffer more than the claimant if the temporary order is granted and that the claimant will not suffer in either way, we find that the scale of justice tilts more in favour of the respondent than the claimant. Accordingly, the claimant fails on the 3rd and final test. **Conclusion.** 25. From the analysis above, it is our considered view that the claimant’s application dated 31st October 2025 lack merit, incompetent and must fail in its entirety. **Final orders.** We order as follows: 1. The Claimant’s Notice of Motion Application dated 31st October 2025 is found to lack merit and all the prayers numbered 2,3 & 4 are hereby dismissed. 2. That the cost of this application will be borne by the Claimant. 3. Pretrial Direction on 25.6.2026 before the Assistant Deputy Registrar. Notice to issue. Ruling dated and delivered *virtually* at **Nairobi** this **14th** day of **May, 2026.** **Hon. J. Mwatsama Ag. Chairperson** **signed 14.5.2026** **Hon. Beatrice Sawe Member signed 14.5.2026** **Hon. Fridah Lotuiya Member signed 14.5.2026** **Hon. Michael Chesikaw Member signed 14.5.2026** **Hon. P. Aol Member signed 14.5.2026** Mutai Court Assistant Gichuki Nderitu advocate for the Claimant/Applicant Othaya Farmers- No appearance Mshilashuma advocate for the Respondent – No appearance **Hon. J. Mwatsama Ag. Chairperson signed 14.5.2026**