[2023] KECPT 769 (KLR)

Kulohoma v Rembo Shuttle Savings & Credit Co-operative Society (Cause 232 of 2020) [2023] KECPT 769 (KLR) (Civ) (26 October 2023) (Judgment)

Neutral citation: [2023] KECPT 769 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Cause 232 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

October 26, 2023

Between

Kazito Bwire Kulohoma

Claimant

and

Rembo Shuttle Savings & Credit Co-operative Society

Respondent

Judgment

1. The matter for determination is contained in a claimant statement of claim dated July 20, 2020. The claimant is a member of the respondent. Upon payment of Kshs.100, 000/= registration the claimant was elected to assist in the stage management at Kitengela stage in an Annual General Meeting held on February 20, 2020. The Claimant states that the members of the Respondent approved a Kshs.30, 000/= per month remuneration.He avers that the suspension was unfair as it did not follow clause 14 of the respondent by laws.He states that the Respondent Management Committee action to suspend the Claimant is illegal.

2. In his Claimant witness statement dated 20/7/2020, the Claimant Mr. Kazito Bwire Kulohoma confirms being a member of the Respondent Cooperative.He states that he was in attendance in the 29/2/2020 Annual General Meeting that approved his election to assist in stage operations at Kitengela stage at a Kshs. 30,000/= monthly pay.He confirm that he performed his duties diligently but was suspended on June 17, 2020. He avers that his suspension was illegal.The second Claimant witness Mr. Nelson Issa Parsitay in his witness statement dated July 19, 2020, collaborates the 1st Claimant’s statementThe 3rd Claimants statement by Mr. Shem Atullo Angaya, dated 20. 7.2020 confirms the statement of the 1st Claimant statement .The witness was in attendance in the 29. 2.2020 Annual General Meeting that elected the 1st Claimant as a Stage Supervisor.

3. During the hearing of the case on 31/8/2022, the Claimant Mr. Larry surumpen Nakudana, the 4th Claimant witness, vide his witness statement dated February 12, 2021 collaborated the claimant’s statement of July 20, 2020. He confirmed that, he was the one who took minutes of the members meeting that appointed the Claimant.Mr. Kazito Bwire Kulahoma adopted his witness statement dated 20/7/2020 and his further affidavit dated 4. 9.2020 as his evidence in chief.He confirm he has sued the Respondent for unlawful suspension.

4. On cross examination he confirmed that he left the Sacco voluntarily and that his vehicle is now operating in another Sacco named Msafi in KitengelaBy the time of filing this case, the Claimant was a member of the RespondentHe confirmed that he has no employment letter from the RespondentHe also confirmed that as per the Annual General minutes he was appointed and not electedHe also confirmed that the minutes do not mention any salary and that there was no pays lip from the Respondent.He avers that he was employed by the members and not the BoardHe states that the Board can only suspend a member from the stage until the next Annual General meeting.He confirmed that his duties at the stage were to check how vehicles were operating.There was a stage member employed by the SaccoHe confirmed that the salary of Kshs.30, 000/= was in the Respondent’s budget under stage member allowances items.The Claimant confirm having been paid for 2 months and had worked for four months

5. On Re-examination the Claimant confirmed that he was appointed by the members to the stage duties during the Annual General Meeting and that allowances were passed in the Annual General meeting.The Kshs. 30,000/=was derived from calculating (720,000 for 2 persons for 12 months)He confirmed the suspension letter referred to appointment.He states that he was not given time to defend himself in the 16. 6.2020 meeting, and that he was not replacing to the stage manager.He affirms that he was suspended as a worker and not a member .The Claimant avers that the board has no power to suspend him.The Claimant filed Claimant’s written submissions 4. 9.2020 highlighting the Claimants issues for court consideration.The Claimant maintained that he was appointed by the Respondent general meeting to the Kitengela stage and that his suspension by the management committee was illegal. He maintained that he was elected by the members to assist in stage operations a task he performed well.The Claimant avers that he can only be removed from office in the same manner and procedure he was appointed /elected i.e. Through an Annual General Meeting or Special General Meeting.He states that the Respondent did not convene a General Meeting to discuss in Agenda.

6. Respondent CaseThe Respondent case is contained in the Respondent Memorandum of Defence dated 27. 1.2021. The Respondent denies that the Claimant was elected by the Respondents members to assist in stage operations at the Kitengela stage and that Kshs.30, 000/= was approved as a Claimant remunerations.The Respondent also denies the Claimant’s assertion that he worked diligently, that he was suspended by the Respondent and that he was not paid for the month of April, May and June 2020. The Respondent also denies that the Suspension of the Claimant was illegal and filed Respondents witness for the following on 27/1/2021;a.Stephen Okerio Momanyib.Joseph Mwangi – Manager /Accountsc.Geofry Chege – Stage Managerd.Benjamin Ongeri Onyirikwa – Membere.Patrick Lumumba Kyenze –Member

7. Mr. Stephen Momanyi Okerio, the chairman of the Respondent Sacco in his witness statement dated January 27, 2021 confirmed that the claimant was tasked with manning Kitengela and Nairobi stage as per the Annual General Meeting minute 05/2020He states that the Claimant had on several occasion contravened the Respondent by laws eventually occasioning his suspension.He confirmed that there was a budget items on allowances which catered for members who were assigned duties like those the Claimant was given.That the executive committee on 14/4/2020 decided to cut down cost or allowances on decision that affected the ClaimantThe Claimant reinstates that the Claimant was never an employee of the Respondent and no appointment letter was issued to him or nor a resolution passed to pay him Kshs. 30,000/= per month.All the five Respondent witnesses filed a separate witness statement in court as their evidence.

8. During the hearing of the case on 31/08/ 2022, Respondent witness Mr. Joseph Mwangi who is the manager /accountant in the Respondent Sacco adopted his witness statement of 27/1/21 as his evidence in chief .He also submitted his list of documents to support his defense.

9. On reexamination, the witness confirmed that he was in attendance in the 29/2/2020 Annual General Meeting where the Claimant was appointed to manage stage operations.He confirmed that indeed Kshs.30,000/= per month allowances was passed by the Annual General MeetingHe stated that to mitigate effects of covid, the Respondent executive board reviewed the allowances to Kshs.10, 000/= per month.He reiterated that that it was within the powers of the Executive Committee to renew allowancesHe stated that the Claimant was paid allowances up to the period he was suspended.On re exam the witness states that the Claimant is not an employee of the Sacco.He states that the Claimant created a special stage and favored some members which created disharmony.He stated that The Claimants operations were negatively affecting the Sacco.The 2nd Respondent witness Mr. Geoffrey Muturi Chege adopted his statement dated 27. 1.2021 as his evidence in chiefOn re- examination he confirmed that he was the stage manager when the Claimant was working at the StageHe confirmed that the Claimant has no appointment letter. He confirmed that the Claimant worked for the members.The witness stated that the Claimant performance was not good and when he left, the work environment improved.When the Claimant left the Sacco his vehicle was removed from the Sacco operations.

10. The 3rd Respondent Mr. Peter Lumumba adopted his witness statement dated 27. 1.2021. In his Evidence- in- Chief, he stated that he is a member of the Respondent Sacco M. NO.18. On cross examination he confirmed that he attended the 29. 2.2020 Annual General Meeting where the Claimant was appointed to supervise the stage operations.He also confirmed that there was a budget of Kshs. 720,000/= for allowances. He confirmed that there was no meeting held later to discuss the conduct of the Claimant largely due to the covidproblemOn re-examination he confirmed that the 29. 2.2020 Annual General Meeting appointed and did not employ the Claimant and that the supervision of the Claimant was within the power of the Management Committee .He confirmed that the duties of the management committee is the overall management of the Respondent Sacco.

11. In their written submissions dated 4. 9.2020 Claimant stated that the decision of the Respondent management committee to suspend the Claimant from his appointed position at the Kitengela stage was illegal and unprocedural and in breach and in breach of the rules of the natural justice.The Claimant has cited section 27(5) (e) of the CooperativeSocieties Actas the basis of his argument on the appointment of the ClaimantHe states that the Respondent did not convene a General meeting to discuss the allegation against the Claimant and that the Claimant was not accorded an opportunity to defend himself.The Claimant cites the dictum of the Justice Weldon Korir of the High Court in the Republic v Commissioner for Cooperative Development and 17 others Ex –parte Kenya Planters Cooperative Union Limited (2014) eKLR where bit was stated that;

12. In the Respondent submissions dated 28/4/2023 the Respondent denies that the Claimant was suspended from his assignment at the stage and not as a member of the Respondent’s Cooperative Society.He states that the Claimant was only entitled to an allowanceThe respond cites that clause 27(1) (c) and clause 8(a) of the Respondent by laws empowers the Management Committee to perform any other duties not completed in the Annual General MeetingHe states that the Claimant was appointed by the chairman and not elected by membersThe suspension letter by the Respondent to the Claimant dated 17. 7.2020 whose content does not refer to the suspension from membership but instead from the assignment at the stage.The Respondent avers that the Claimant has not provided any proof of payment of wages or allowances by the Respondent.

13. Analysis and FindingsThe matter for determination are basically whether the suspension of the Claimant by the Respondent is unlawful, unfair, unreasonable and contravenes the tenants of natural justice and whether the Claimants is entitled to the Kshs.90,000/= remuneration owed by the Respondent for the month of April, May, June 2020. The Claimant has proved that indeed he was appointed to perform the duties of supervising the Kitengela stage during the February 29, 2020 Annual General Meeting. What the Annual General Meeting did was to approve the Claimants appointment and not his election

14. Election in the Cooperative sector is totally different acting from appointment.Election of the Management Committee is clearly stipulated under clause 33 of the Respondent by-laws which does not include appointment into specific task or duties. Appointment and suspensions such as in the case of the Claimant falls under clause 38 of the Respondent by- Laws No 38 which enumerates the broad and specific duties of the Management Committee.The suspension of the Claimant is within the mandates of the Management Committee as enshrined in the Respondent by-laws clause 38Section 29 (1) (d) of the Respondent by-laws is very specific on the duties of the General Meeting with respect to elections. In this matter, the Claimant could not have been elected since his duties do not falls under those prescribed by this by-law.There is no record in the 29. 2.2020 Annual General Meeting minute where the specific salary of Kshs.30,000/= is discussed.Under minute 28/2020 stage management of 16. 6.2020 Management Committee minutes the suspension of the Claimant is done by the management until the ratification by the Annual General Meeting.

15. ConclusionAt the onset we wish to states that the Claim by the Claimant falls within the Jurisdiction of this court. The Claimant was not an employee of the of the Respondent but was a member who was merely assigned some specific duties within the Respondent scope of operations.The Claimant was not a member of the management committee since he was appointed and not elected to perform the stage dutiesWe are of the opinion that the Claimant has not prosecuted its case adequately to prove that his suspension of service at the stage operation at Kitengela was unlawfully, unfair, unreasonable and contravenes the tenants of natural justice.The Management Committee decision to suspend the Claimant from the service he was providing at Kitengela stage was within its mandates as enshrined in By-laws no 38 of their By-lawsAs regards the Claimant claim of Kshs 90,000/= for the month of April, May and June 2020 and for the subsequent month until judgment is delivered is not adequately prosecuted.In view of the foregoing a judgment is entered in favour of Claimant against Respondent and we order as follows:a.That: the respondent pay the claimant the remuneration rightfully owed to him for the month of April ,May ,June,16. 6.2020 at Kshs.10,000 per month.b.All other prayers fail.c.Each party to bear its own cost

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. Hon. Beatrice Kimemia - Chairperson Signed 26. 10. 2023Hon. J. Mwatsama - Deputy Chairperson Signed 26. 10. 2023Hon. Beatrice Sawe - Member Signed 26. 10. 2023Hon. Fridah Lotuiya - MemberSigned 26. 10. 2023Hon. Philip Gichuki - Member Signed 26. 10. 2023Hon. Michael Chesikaw - Member Signed 26. 10. 2023Hon. Paul Aol - Member Signed 26. 10. 2023Tribunal Clerk JonahMitugo advocate holding brief for Mr. Owiti for the Claimant.Ms. Kimathi advocate for Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 26. 10. 2023