[2025] KECPT 113 (KLR)

Makathimo v Ntima Farmers Co-operative Society Ltd (Tribunal Case E011 of 2024) [2025] KECPT 113 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 113 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E011 of 2024

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

January 30, 2025

Between

Francis Mburugu Makathimo

Claimant

and

Ntima Farmers Co-Operative Society Ltd

Respondent

Ruling

1. This ruling dispenses the Notice of Motion Application dated 18th June 2024. The Application is supported by an affidavit sworn by the Applicant Francis Mburugu Makathimo and brought under Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A,1B and 3A of the Civil Procedure Act 2012, and all other enabling provisions of the law. The Application seeks the following orders:a.Spentb.Spentc.That this Honorable court be pleased to issue an order of temporary injunction restraining the Respondent and/or their servants or agents from rejecting/turning away coffee produce delivered by the Claimant/Applicant at Kaaga Coffee Factory pending the hearing and determination of this suit.d.That the costs of this application be costs provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The Applicant is a member of the Respondent and he delivers coffee to the Respondent’s Kaaga Coffee Factory. However, on 14th May 2024, the Applicant delivered coffee as usual, but the factory manager refused to accept the Applicants produce on the basis that she was under instructions from the management of the Respondent not to accept any produce delivered by the Claimant. The applicant contends that he continues to suffer loss as coffee is are perishable goods and the same cannot be sold/delivered to any other factory safe for where he is registered.

3. The Respondent filed a Replying Affidavit dated 22nd July 2024. In their Response, the Respondents depone that the Applicant was expelled by members from membership on the Special General Meeting of 3rd October 2023, and that by the time of filing suit and making this application he had not applied for reinstatement. They further state that if a non-member or an expelled member is allowed to deliver coffee, the society membership will be rendered useless and needless.

4. The Applicant filed a Supplementary Affidavit in response to the Respondent’s Replying Affidavit dated 22nd July 2024. In his supplementary affidavit, the Applicant avers that the by-laws that were used to expel him were last amended in 2023 and the Respondent did not attach a Certificate by the Commissioner for Cooperatives and means that the same had not been registered and approved by the Commissioner, and therefore had no legal consequence. The Applicant also contends that he was not present in the Special General Meeting of 3rd October 2023 despite the minutes indicating that he was.

5. Both parties filed their submissions regarding the Application.

6. In their submissions, the Applicants argue that they have a prima facie case, and they stand to suffer irreparable loss should the application not be allowed.

7. The Respondents, in their submissions, submitted that application should be dismissed as the Applicant has failed to establish a prima facie case, since he is no longer a member of the Respondent after expulsion.

Analysis 8. This Tribunal has noted the application, response and the submissions with regards to this application. The question before this Tribunal is whether the Applicant is entitled to the reliefs sought, to wit, a temporary injunction retraining the Respondents from rejecting/turning away the coffee produce delivered by the Claimant.

9. The germane principles on interlocutory injunctions were stated by the Court of Appeal in East Africa in the case of Giella v Cassman Brown & Co. Ltd (1973) EA as follows:a)The Applicant must first establish a prima facie case with a probability of success.b)The Applicant must then demonstrate that he, she or it stands to suffer irreparable loss that cannot be adequately compensated through damages.c)Where there is doubt on the above, then the balance of convenience should tilt in favour of the Applicant.

10. The first question that this tribunal should address itself is whether the claimant has established a prima facie case with a probability of success. In the case of Mrao v First American Bank of Kenya Limited & 2 Others [2003] eKLR the court defined a prima facie case as one which on the material presented in court, a tribunal property 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 respondent.

11. And so in this case, the Applicant ought to show that the act of rejecting the Applicant’s coffee infringes on his existing right to deliver coffee to Kaaga Coffee Factory. The Applicant, in his application, has informed this court that one can only take coffee to a cooperative in which he is registered and that he is a member at the Respondent and thus is required to deliver his produce at the Respondent. He further informs this court that he is still a member since the by-laws that were used to expel him have not been registered with the commissioner. In our opinion, this is a right that has been infringed by the Respondent, that would call for an explanation or rebuttal by the Respondents. We are therefore inclined to believe that the Applicant has shown a prima facie case with a probability of success should the Respondent fail to rebut.

12. Having established a prima facie case, this Tribunal will not look at the other elements in Giella v Cassman Brown & Co. Ltd.

13. In the upshot we find merit in the Applicant’s Notice of Motion dated 18th June 2024 and make the following ordersi.Pending the determination of this Claim, a temporary injunction is hereby issued restraining the Respondent and/or their servants or agents from rejecting/turning away coffee produce delivered by the Claimant/Applicant at Kaaga Coffee Factory pending the hearing and determination of this suit pending mention on 10. 4.2025. ii.The costs of this Application to be in the cause.iii.Mention for Pre-trial directions on 10. 4.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 30. 1.2025HON. BEATRICE SAWE - MEMBER - SIGNED - 30. 1.2025HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 30. 1.2025HON. PHILIP GICHUKI - MEMBER - SIGNED - 30. 1.2025HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 30. 1.2025HON. PAUL AOL - MEMBER - SIGNED - 30. 1.2025Tribunal Clerk - MutaiKariuki advocate for Claimant- PresentGichuki Muthuri advocate for Respondent - PresentHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 30. 1.2025