[2024] KECPT 242 (KLR)

Makathimo v M’Itirithia & 3 others (Tribunal Case 566 (E003) of 2023) [2024] KECPT 242 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 242 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 566 (E003) of 2023

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

March 7, 2024

Between

Francis Mburugu Makathimo

Claimant

and

Andrew Mwirigi M’Itirithia

1st Respondent

Ntima Farmers Coop Society Limited

2nd Respondent

Imenti North Sub County Coop Officer

3rd Respondent

County Government Of Meru

4th Respondent

Ruling

Facts of the Case 1. On 10th August 2023, the 2nd Respondent hold its Annual General Meeting in which a clause, 17 (K) to be more specific, was amended. The initial clause before it was amended at the Annual General Meeting required that for a member to qualify for the position of a committee member, that member must have delivered produce to the society – for three consecutive years of not less than 500 kilograms for each year.After amendment, it read that to qualify for the position of a committee member you only needed to have delivered a average of 500 kilograms of the total production for the previous three years.

2. Following the amendment at the Annual General Meeting, on 17th August 2023, there were elections for the 2nd Respondent’s Management Committee member representative from Kaaga factory in which the Claimant and the 1st Respondent offered their candidacies for election and the 1st Respondent was elected ahead of the Claimant.Once the results came out, the Claimant on 5th September, 2023 filed this claim challenging that election that it was irregular based on the following:a.That the 1st Respondent was a member of another society, Nzaki farmers cooperative society which is operating within the same area as the 2nd Respondent Cooperative Society and as such ineligible.b.That the 1st Respondent was ineligible for having not delivered produce to the 2nd Respondent for three consecutive years of not less than 500 kilograms for each year immediately preceding the election – as the amendments were yet to be registered and ratified by the Commissioner of Cooperatives.c.That the election was irregular because it was held on the background of amendments that were yet to be registered and ratified by the Commissioner of Cooperatives.Upon being served, the Respondents filed their Defences and Replying Affidavits, which in summary raised the following issues:i.That the election was conducted legally and procedurally in accordance with the law, and that the claimant would not be in court questioning the procedures leading to the election if he had won.ii.That the amendments were done by the majority, and the claimant supper fed those amendments and did not raise any issue. The issues he is raising are an afterthought after losing the elections. That at best he is abusing the court process to sort out or advance his politics.iii.That the 1st Respondent was elected by majority of members of the 2nd Respondent.iv.That the orders the Claimant is seeking will leave the 2nd Respondent and its members in disarray as the newly elected officials have already taken up their respective roles.

3. Having considered the various issues raised by both the claimant and the Respondents, at this very moment, the only question remaining for this Tribunal to determine is as to whether it should issue an order of temporary injunction to restrain the 1st Respondent from transacting or conducting any business as a Management Committee members of the 2nd Respondent.Considerations for issuance of the order of temporary injunctionIt is settled law that courts have to consider a number of things to guide it before it issues or overturns an application for temporary injunction. Some of those things court have to consider are well explained in the case of Mrao Limited versus first American Bank of Kenya Limited (2003)eKLR.The first thing to be considered is as to whether the party making the Application for injunction has established a prima facie case. To establish a prima facie case, a party must present before court material that shows some infringement of a legal right.The second thing to be considered, is the case of irreparable injury- irreparable injury means that the injury must be one that cannot be adequately compensated for in damages- there must not be any other remedy open to the party making the Application that can protect them from the consequences of the apprehended injury.The third thing to be considered, is as to whether the party applying for injunction has demonstrated that the balance of convenience tilts in their favour. For balance of convenience to favour a party, that party must demonstrate that if an injunction is not granted and the suit is ultimately decided in their favour, the inconvenience caused to them would be greater than that which would be caused to the other party if the injunction was granted but the suit ultimately dismissed.And last, courts are also required to consider or opt for a lower risk of injustice when deciding on whether to issue or not issue orders for injunction.

4. We have looked and considered all the above independent of each other and we have made a decision as a Tribunal to deny issuing the injunction as to issue the injunction will occasion injustice as things stand. There are competing claims by both parties that require further interrogation at trial. Special circumstances do not exist to warrant a temporary injunction as the case is proceeding.

Final Ordersi.The Notice of Motion Application dated 5th September, 2023 is dismissed with costs.ii.The claim to proceed for full hearing.iii.Pre-trial directions on 6. 5.2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahMuriuki advocate for 4th Respondent and holding brief for Mwenda Advocate for 3rd RespondentMugo Advocate for 1st and 2nd RespondentGitari advocate for Claimant.HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024