[2004] KEHC 917 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO CIVIL SUIT NO. 20 OF 1999

KOROKWONY COMPANY LTD…..……………………....1ST PLAINTIFF

KOROKWONY WOMEN GROUP

(Suing through its Officials MRS PRICILLA C. TESOT (CHAIRLADY)

ESTHER KOROMICHA (SECRETARY)

ALICE KOSKEI (TREASURER) ………………………..…….2ND PLAINTIFF

VERSUS

EVERLINE KIMETO……………..……………………..……..1ST DEFENDANT

LYDIA NGENO……………………...…………………………2ND DEFENDANT

MRS ELIZABETH SALAT

T/A KOROKWONY WOMEN GROUP…..…………………..3RD DEFENDANT

JUDGMENT

The Defendants have made an application under the provisions of Order XXXIX Rule 2 of the Civil Procedure Rulesseeking the orders of this Court to restrain the Plaintiffs/Respondents by themselves their agents or servants from taking over as the officials of Korokwony women group, harassing the Defendants or any other members of the group, demanding the certificate of registration or in any way interfering with the operations of Korokwony Women Group pending the hearing and determination of the counterclaim filed. The grounds in support of the application as stated on the face of the Application are that the Plaintiffs were attempting to take over the leadership of Korokwony Women Group and had demanded that the Defendants surrender the Certificate of registration. The Defendants stated that the Plaintiffs were spreading rumours that they had purportedly taken over the leadership of Korokwony Women Group and therefore caused confusion among the members of the group. The 2nd Defendant stated that she had been coerced to record statements with the police for refusing to surrender the said certificate. She further states that her employment had been jeopardised due to the fact that her superiors have been influenced to threaten commence disciplinary action if the 2nd Defendant did not surrender the certificate of registration of the said group. The 2nd Defendant further stated that she was facing unwarranted harassment for championing the rights of the group. The Defendants were apprehensive that the affairs of Korokwony Women Group would be conducted to the detriment of its members. The Application is opposed. Priscilla Chepkurui Tesot, who claims to be the chairlady of Korokwony Women Group has sworn a lengthy replying affidavit in opposition to the Application.

At the hearing of the Application, Mr Kipkenei, Learned Counsel submitted that the Plaintiffs had purported to take over the leadership of Korokwony Women Group (hereinafter referred to as the said women group) . It was contended on behalf of the Defendants that the Plaintiffs were spreading malicious rumours to the effect that they were the duly elected leaders of the said Women Group. It was further contended that the 2nd Defendant had been harassed and intimidated by the Police and her superiors at her place of work for championing the rights of the members of the said women group. The Defendants were apprehensive that the affairs of the said women group would be hijacked and its assets wasted. Learned Counsel submitted that the purported meeting which allegedly led to the Plaintiffs being elected was irregularly convened. Further, they contend that the said elections were illegally held. It was further contended by the Defendants that the Plaintiffs had incorporated the company known as Korokwony Company Limited without the authority of the members of the said women group. It further contended that the members of the said women group had not benefited from the funds raised for their projects because the said amount was still being held at the District Treasury, Bomet. Learned Counsel for the Defendants argued that the Plaintiffs were acting in conflict with the interest of the entire membership of the said women group. The Defendants argued that the elections held on the 17th of July 2004 were not valid as the proper and legitimate elections had earlier taken place on the 26th of June 2004. The Defendants urged the Court to allow their application for injunction.

Mr Matwere, Learned Counsel for the Plaintiffs opposed the Application. He submitted that Korokwony Women Group owned Korokwony Company Limited. It was contended on behalf of the Plaintiffs that if the Defendants had any complaint against the company, they ought to have filed a Petition as provided by the Companies Act. It was further contended that the Defendants, who were the previous office bearers of the said women group, had been voted out of the office when elections were held on the 17th of July 2004. The Plaintiffs argued that since the said elections, the Defendants had refused to hand over the office. The Plaintiffs contended that they were the rightful and duly elected leaders of the said women group and further that they were recognised by the Social Services Department of the Ministry of Gender, Sports Culture and Social Services. Learned Counsel argued that the Defendants had refused to return the certificate of registration of the said women group. Learned Counsel further argued that the Defendants were no longer the signatories of the said women group and were not therefore allowed to undertake any transactions on behalf of the said women group. It was further contended that the Defendants had not established a prima facie case to entitle them to the orders of injunction sought. The Plaintiffs argued that the allegations of harassment had not been proved. The Plaintiffs submitted that the money for the said women group was in safe hands. It was the Plaintiff’s view that the Defendants were a splinter group who were not interested in the good of the said women group. The Plaintiffs argued that if the Defendants were dissatisfied with the leadership of the said women group they ought to seek redress from the members of the group first. Learned Counsel submitted that the Defendants did not have any complaint against the Plaintiffs in the way they were managing the said women group. It was contended that the Defendants had been sued in their personal capacity and not in the their official capacity as the officials of the said women group. The Plaintiffs argued that the application filed was frivolous and was meant to confuse the real issues in controversy. The Plaintiffs contended that if the application was allowed, it would lead to the project proposed to be started by the said women group being disrupted. The Plaintiffs urged the Court to dismiss the application.

In reply, Mr Kipkenei Learned Counsel for the Defendants argued that no share certificates had been issued to establish that there was a relationship between the company and the said women group. He further submitted that no allegation of fraud had been made against the Defendants.

I have considered the submissions made by the Counsel for the Plaintiffs and Counsel for the Defendants. I have carefully read the application filed by the Defendants and the response made to it by the Plaintiffs. The issue for determination by this Court is whether on the facts of this case the Defendants ought to be granted the orders of injunction sought. In my evaluation of the pleadings filed in Court by the parties to this suit, the real issue in controversy is the leadership of Korokwony Women Group. It appears that the said women group was formed with the noble intention of improving the welfare of its members. A fundraising was held in 1997 with a view of assisting the said women group achieve its objectives. There is evidence that the said women group owns several parcels of land including a plot within Kericho municipality There is also evidence that through the efforts of the officials of the said women group, a promise was made by the Chinese Government to the effect that it would donate a flour mill to the said women group to enable it generate income for its members. The money which was raised in 1997, to date, is still held by the District Treasury, Bomet. It has not been released to the said women group. From the submissions made and the pleading filed in this case, it is clear that because of the potential that the said project would generate a considerable amount of income, ambitious members of the said women group have sought to be elected to leadership positions. Due to the fact that the said positions are few, naturally, not all the contenders for the said leadership positions would be accommodated. Since the conception of the said Flour Milling Project, there has been leadership wrangles of the said women group. This leadership wrangles have adversely affected the implementation of the said project. The members of the said women group have not, to date, benefitted from any project initiated by the said women group. Matters have not been helped by the fact that the local Provincial Administration seems to be interested parties in the management of the affairs of the said women group. This Court finds it strange that a meeting convened by a women group should be attended by the District Commissioner, the Officer Commanding Police Division, the District Criminal Investigation Officer, and the District Security Intelligence Officer. What was so threatening about the meeting held on the 17th of July 2004 that it had to attract such attendance from the District Security Committee? As can be seen from the minutes of the meeting which was annexed as Plaintiffs annexture No BCT 3, the whole purpose of the meeting was to oust the leadership of the said women group. The meeting did not have any other agenda.The Local Provincial Administration wanted to form a Management Committee to run the affairs of the said women group by reconciling the two factions that were apparently vying for leadership positions at the said women group. It is not indicated who mandated the Local Provincial Administration to make a decision to form a Management Committee, contrary to the wishes of the members of the said women group. In the circumstances of this case, it was not surprising that an impromptu election was held whereby the leaders of the said women group were removed from office and replaced by others. It is instructive that the then office bearers of the said group chose to boycott the elections.

This Court’s assessment of the events of the 17th of July 2004 shows clearly that the said elections were manipulated to favour one set of members of the said women group. The meeting was irregularly convened. An issue (i.e. the election of official) which was not an agenda of the meeting was introduced resulting in the Local Provincial administration blantantly interfering with the Management of the said women group. It is no wonder that the Defendants were aggrieved by their being ousted from office. As stated earlier in this ruling, the real issue in controversy is the leadership of Korokwony Women Group. To grant the injunction sought by the Defendants would not assist in resolving the dispute between the members of the said group. To uphold the elections held on the 17th of July 2004 would amount to this Court putting a stamp of approval on an illegality. The solution to the leadership crisis of the said women group lies with the members.

In the circumstances of this case, and to address the dispute at hand, this Court makes the following orders:-

(i) The purported elections held on the 26th of June 2004 and the 17th of July 2004 are hereby set aside.

(ii) The Election of the officials of Korokwony Women Group shall be held within forty five days of today’s date.

(iii) The said elections shall be held under the supervision of the Provincial Social Services Officer, Nakuru. The District Commissioner, Bomet District shall provide all the security necessary to enable the said elections to take place. He and the District Security Committee shall however not participate in any way in the organisation of the said elections.

(iv) The official register of the members shall be availed to the Provincial Social Services Officer at least fifteen (15) days before the said election date.

(v) All members of Korokwony Women Group shall be informed and notified of the date of election and the venue where the elections shall be held, at least twenty one (21) days, before the said agreed election dated. The dated of the election shall be fixed by the Provincial Social Services Officer.

(vi) After the said elections, a list of the duly elected officials shall be filed in Court for indorsement by this Court.

(vii) The costs of the said elections shall be borne by Korokwony Women group.

(viii) Each party shall be at liberty to apply.

In view of the above finding of this Court, there shall be no orders as to costs. DATED at KERICHO this 19th day of November 2004.

L. KIMARU

JUDGE