[2025] KECPT 207 (KLR)

Litein Kiopangenge Farmers Co-opetative Society Limited & 3 others v Boit & 9 others (Miscellaneous Case E001 of 2024) [2025] KECPT 207 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 207 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Miscellaneous Case E001 of 2024

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

March 27, 2025

Between

Litein Kiopangenge Farmers Co-opetative Society Limited & 3 others & 3 others

Claimant

and

Benard K Boit & 9 others & 9 others

Respondent

Ruling

1. Application dated 30/6/2024 is for determination. The same is brought under Section 14,19,21,27 and 28 Co-operative Societies Act and Rules 9,11,20,21 and 22 Co-operative Tribunal Practice and Procedure Rules 2009. The same seeks for orders:a.Spent.b.That this Honourable Tribunal be pleased to issue a temporary stay of injunction against the 1st to 8th Respondents from dealing, handling and or in any way representing themselves as Committee members of the Litein Kipangenge Farmers Cooperative Society Limited pending the hearing and determination of this Application.c.That this Honourable Tribunal be pleased to Declare the Special General Meeting held on 9th July 2024 as null and void and the resolutions ensuing therefore be set aside.d.That this Honourable Tribunal be pleased to declare the Special General Meeting held on the 20th June, 2024 and the consequent resolutions therefrom as valid and proper.e.That this Honourable Tribunal be pleased to Order the conduct of the 9th and 10th Respondents as improper and or ultra-vires.f.That costs of this Application be provided for.The Application is supported by the Affidavit of Sammy Tonui sworn on 30/6/2024. He stated he is a member of Litein Kipangenge Farmers Co-operative Society Limited. He states on 23/5/2024 there was a judgment delivered by the Tribunal in CTC E005/2023 Nakuru where the Tribunal nullified the Respondent’s appointments that took place on 18/5/2023 and parties were to conduct fresh elections within 60 days of judgment.

2. On 28/5/2024 a notice was given calling for an Annual General Meeting to be held on 20/6/2024 and thus gave notice in their personal capacities as shareholders in accordance to Section 27 (6,b) and 7 Co-operative Societies Act.On the said 20/6/2024 the elections were held and was attended by over 104 delegates and they served the Cabinet Secretary, Principal Secretary, Commissioner and Kericho County County Executive Committee Member (CEC) with …… of 20/6/2024. The Applicant avers on 18/6/2024 the 3rd Respondent while purporting to be Secretary of 1st Applicant issued a notice calling for elections to be held on 9/7/2024. To this end the Respondent’s were informed the meeting of 9/7/2024 could not take place as there were elections already on 20/6/2024 and thus overtaken by events.

3. Despite the letter the 9th and 10th Respondent allowed for the meeting of 9/7/2024 to take place. The Respondent ignored all Notices by the Applicant’s and held illegal elections. The Respondent that is 1st to 8th Respondent have been withdrawing money from 1st Applicant Bank Account without permission or confirmation.Actions of 9th and 10th Respondent chairing the election process and has brought unrest, distress and fear amongst other shareholders.As such the Application to be allowed.

4. The Respondent filed Replying Affidavit sworn by Gilbert Ondieki the 10th Respondent on 12/9/2024. He is the Co-operative Officer working for Kericho County Government. He stated he is aware of Kericho County Co-operative Societies Act 2017 which commenced on 8/6/2017. The object of the Act is to give effect to Section 7(e) of part ii of the 4th schedule of the Constitution of Kenya to make provisions relating to the formation, registration and regulation of Co-operative Societies.He avers following the nullification of the election.He stated elections were held on 18/5/2023 after nullification another election was held on 9/7/2024. The confirm meeting was issued on 18/6/2024. He states verification of members was done before the meeting and only eligible members were allowed to enter and vote.The exercise was complete and there was reconstitution of the meeting and supervisory committee.They want the Application be dismissed.

5. The 1st to 7th Respondent filed a Preliminary Objection dated 22/9/2024 which they stated;2nd to 4th Claimant have no authority locus standi to sue on behalf of 1st Claimant.There is no suit before court for determination.Application has been commenced through unprocedural means hence it is defective.The Application was to be canvassed by way of Written Submissions the 1st to 7th Respondent filed Written Submissions dated 10/10/2024 on 12/2/2025. The Applicant’s filed Written Submissions dated 4/11/2024. Having looked into the pleadings and Written Submissions by the parties we shall first deal with the Preliminary Objection dated 22/10/2024 where the 1st to 7th Respondent states;a.That the 2nd - 4th Claimants have no authority locus standi to sue on behalf of the 1st Claimant.b.That there is no suit before court for determination.c.That the application has been commenced though unprocedural means hence the it is defective.d.That the 1st - 7th Respondents pray this Preliminary Objection be allowed with costs.We note that this Miscellaneous Appeal number E001/2024 is related to file number 286/2023/E005/2023 (Nakuru) where the Honourable Tribunal pronounced its judgment on 23/5/2024. As such the Tribunal become functus officio upon pronouncement of the judgments.As such there is no other place the Applicant’s would have gone to then file a Miscellaneous Application.The issue of there being no a suit before court for determination and Application being commenced through unprocedural means as alluded in the Preliminary Objection dated 22/9/2024 cannot stand.The Applicant’s are rightly before court and as such the Preliminary Objection dated 22/9/2024 is found to be without merit and dismissed with no orders as to costs.

6. Section 7 Civil Procedure Act stipulates;“no court shall try any suit or issue in which the matter directly and substantially in issue in former suit between the same parties or between parties under whom they or any of them, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently revised and has been heard and finally decided by such court’s.To draw in the issue of functus officio we have case of;Jersey Evening Post Limited vs Al Thani[2002] JLR 542 at page 550 where the court stated:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties.Proceedings are only fully concluded and the court functus when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings have been concluded the court cannot review or alter its decision, any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”From the above we emphasize that we are functus officio in earlier case filed by Applicants and their only way of ventilation is through the Miscellaneous Application.

7. The Application at hand is next to ………. dated 30/6/2024. The Applicant seeks to have the;1st to 8th Respondent stopped from representing themselves as Committee members of Litein Kipangenge Farmers Co-operative Society andFor the Tribunal to declare the Special General Meeting held on 9/7/2024 as null and void.The Special General Meeting held on 20/6/2024 be upheld. We have looked into the Annexed documents into the Application and thus ….. includei.Judgment of the Tribunal for E005/2023 Nakuru.ii.Attendance register for meeting held on 20/6/2024. iii.Notice of SGM to be held on 9/7/2024. iv.Letter from Advocate dated 5/7/2024. v.Notice of meeting dated 28/5/2024 for 20/6/2024. vi.Minutes of meeting held 20/6/2024. Issue for determination is which of the 2 meeting was legitimate/followed laid down procedures.

8. From the above we note proper notice was issued to the members of Society and meeting held.Our observation is that the agenda for the meeting held 20/6/2024 does not have an agenda for “elections” which the members present went ahead and carried out elections.To add on to that from the minutes shared by the Applicants the same does not indicate which officials were present from the Commissioner of Co-operative office. We are unable to verify/ know whether a Co-operative officer was in attendance of the meeting.On the other hand the 9th and 10th Respondent having filed a Replying Affidavit clearly produced its following documentsa.Notice of meeting issued on 18/6/2024. b.Employment letters of 9th and 10th Respondent.c.Minutes of meeting held on 9/7/2024 and register of those in attendance.From the said documents we note from the notice of the meeting the agenda is clearly indicated to be elections.To add onto that the minutes therein clearly indicate the persons in attendance being Dorine Chepkemoi and Gilbert Ondieki as Sub-county Co-operative officers.We are clearly drawn to the Respondents documents as being more clearer and having the requisite information we would need in such a scenario.The lack of County Co-operative Society officials from the meeting held by Applicant’s speaks volumes and the fact that Applicants agenda lacked “elections” as part of the agenda.

9. The Applicant’s have not informed the Tribunal whether any officials from the County Co-operative office attended their meeting held at 20/6/2024 and why the same is not indicated in their minutes.This is a clear case of the legality of meetings held by two …. in a society. However from the documents presented before the Tribunal, we find that the meeting held on 9/7/2024 was properly held with all requirements of the procedure being followed.

UpshotApplication dated 30/6/2024 is found to be without merit and dismissed with costs to the Respondent.File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 3.2025HON. PAUL AOL - MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahMiruka Advocate for the 1st - 7th Respondent.Morata Advocate for the ApplicantHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 3.2025