[2021] KECPT 32 (KLR)

REPUBLIC OF KENYA

IN THE COOPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO 247 OF 2021

E033/2021

MARTIN MUNGAI KAMUGU.....................................CLAIMANT

VERSUS

PATRICK NZIMBI...............................................1ST RESPONDENT

KENNEDY MULATYA MUTUA.......................2ND RESPONDENT

JOHNSTONE MUIA NDIVO.............................3RD RESPONDENT

JOACHEM MACHARIA MUCHEKE..............4TH RESPONDENT

JACINTA MWENDE............................................5TH RESPONDENT

SEMAKA COOPERATIVE SAVINGS &

CREDIT SOCIETY LIMITED..........................6TH RESPONDENT

RULING

The matter has various Applications pending determination viz:

1. Claimant’s Notice of Motion Under Certificate of Urgency dated 31. 5.2021

2. Claimant’s Certificate of Urgency dated 14. 6.2021( these are deemed as one Application dated 31. 5.2021)

3. Respondent’s Notice of Motion Under Certificate of Urgency dated 12. 7.2021.

4. Claimant’s Notice of Motion Under Certificate of Urgency dated 15. 7.2021.

The Application dated 31. 5.2021 seeks the following orders:

1. That this Application be certified urgent and be heard ex-parte in the first instance.

2. That this Honourable Tribunal be pleased to issue a temporary injunction restraining the Respondents whether by themselves, their servants, agents , officers or anyone acting under their instructions from suspending the Applicant’s membership from undertaking the public transport business under the Sacco pending the hearing and determination of this Application.

3. That this Honourable Tribunal be pleased to issue a temporary injunction restraining the Respondents whether by themselves, their servants, agents , officers or anyone acting under their instructions from suspending the Applicant’s membership from undertaking the public transport business under the Sacco pending the hearing and determination of this suit.

4. That this Honourable Tribunal be pleased to issue a declaration that the Respondents action for suspending the Applicant’s membership from the Sacco on the 19th of May 2021 was unconstitutional and in violation of Article 47 of the constitution of Kenya and Section 4 of the Fair Administrative Action Act 2015.

5. That the Honourable Tribunal be pleased to issue an order compelling the Respondents to reinstate the Applicant’s motor vehicles registration number KCJ 528S, KCS 482L, KCX 032S and KDA 060 V in the National Transport and Safety Authority (NTSA) system pending the hearing and determination of this suit.

6. That the said orders to be enforced by the Officer Commanding Station, Kamukunji Police Station.

7. That the Honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.

8. That the costs of this Application be provided for.

It is based on the quench on the face of the Application and supported by the Affidavit of the Claimant Martin Mungai Kamungu deponed on 31. 5.2021.

The Application is opposed vide the Replying Affidavit deponed by Patrick Nzimibi on 21. 6.2021.

In this Application, there were orders which were recorded by consent of parties dated 8. 7.2021 and the Respondent filed the notice of motion Application Under Certificate of Urgency dated 12. 7.2021 seeking stay of the implementation of the orders issued on 8. 7.2021. Interim orders were issued on 13. 7.2021 staying the orders of 8. 7.2021 till 12. 8.2021 and the Claimant filed Notice of Motion Application Under Certificate dated 15. 7.2021 to set aside the orders of 13. 7.2021 pending the hearing and determination of the Application dated 31. 5.2021.

The parties were ordered to file written submissions to dispense with the Applications. The Respondents filed written submissions on 7. 7.2021 and 9. 8.2021 while the Claimants filed their written submissions on 18. 8.2021.

We note that all these Applications can be dealt with and dispensed with under the Application dated 31. 5.2021 from which all the issues in all the other Applications emanate.

Application dated 31. 5.2021

The Claimant submitted in the written submissions filed on 9. 8.2021 that the Claimant received a letter from Kennedy Mutua the Vice Chair of the 6th Respondent that he was suspended. That the meeting of the members of the Management Committee resolved that the Claimant be suspended and therefore his motor vehicles KCJ 528S, KCS 482L, KCX 032S and KDA 060 V were removed from the National Transport and Safety Authority(NTSA) portal rendering the Claimant to massive losses.

That the Respondent failed to follow the laid down rules and regulations under the Sacco By-laws to give the Claimant an opportunity to be heard and make his presentation before his suspension and removed of his motor vehicles from National Transport and Safety Authority(NTSA) portal.

The Respondents in their written submissions filed on 7. 7.2021 submitted that the Claimant sought to disrupt and stop the society’s operations at the Nairobi terminus.

That the decision to suspend and eventually remove the Applicant was taken as an emergency decision to avoid collapse of the operation of the Sacco.

That the Claimant was given a 14 days window to appear and appeal and/or defend himself.

The Applicant seeks injunctive orders and we will discuss the same under the Principles held in Giella – vs- Cassman Brown Company Limited 1973 EA 358

(i) Prima facie case with a probability of success

The Claimant seeks for orders of injunction against his suspension. The Respondents aver that the Claimant was suspended owing to his conduct which pored serious threat to the reputation and operation of the Sacco. That the Claimant was expelled and served with the letter dated 28. 1.2021 subject to the Section 21 (d) and Section 23 of the By-laws. That he was given 14 days to appeal the decision of the Central Management Committee and he did not appeal despite having been served with the expulsion letter.

That the Respondent has embarked on frustrating the peaceful operation of the Sacco leading to his expulsion.

We note that the Claimant seeks for an injunction against his suspension. According to his documents on record, the Claimant was suspended on 19. 5.2021. The letter dated 19. 5.2021 communicated the suspension to the claimant. The Claimant wrote to the Society on 20. 5.2021 challenging the decision on the grounds that the committee was not properly constituted .

We have noted that in January 2021, the Claimant had been expelled and there is no follow up on that issue. The Claimant was then suspended in May 2021. We note that the Claimant may be the cause of his own misfortune since it has not been explained why he had been expelled in January 2021 and then again suspended in May 2021.

The Claimant avers that the quorum for the Management Committee was 3 hence their decision not legal. However, he has not availed any minutes or proof to show that the quorum was not sufficient to suspend him. He who alleges must proof.

In the circumstances, we find that the Claimant has not established a prima facie case on a balance of probabilities. Indeed the Claimant seeks an injunction against the Respondent from suspending him from the society. The Claimant has already been suspended hence it would not be logical to issue an order on an action which has already occurred.

We note prayer 3 that:

“ The action was unconstitutional and a violation of Section 4 Transport Authority Act the Tribunal being on the same level as a subordinate court, does not possess the jurisdiction to determine constitutional matters under Article 47 and Section 4 Transport Authority Act. “

On the issue of reinstatement, the Claimant has not provided any evidence on the illegality or otherwise of the suspension.

(ii) Irreparable harm

The Claimant having not established a prima facie case as argued above, we find that the issue of irreparable harm is tied to the issue of suspension, that is, its legality or otherwise. The same can be satisfied by an award in damages since any loss would be quantifiable.

(iii) Balance of convenience

We note that after his suspension, the Claimant did not lodge an appeal with the society as required in the doctrine of exhaustion of available internet remedies, before lodging his claim in the Tribunal. The Claimant was already suspended and he has not availed any proof of illegality of the said expulsion on any steps taken to lift the suspension/decision of the Management Committee.

The balance of convenience therefore does not favour the Claimant in the circumstances.

In totality therefore, we find that the Application of the Claimant dated 31. 5.2021 lacks merits and is accordingly dismissed with costs.

The effect of this decision therefore deems the Applications dated 12. 7.2021, 15. 7.2021 and 27. 8.2021 as spent.

The parties to fix the matter for the hearing of the main claim and to thus effect, to file and serve witness statement and documents within 30 days herein.

Mention for Pre-trial directions on2. 12. 2021

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.

Hon. B. Kimemia Chairperson Signed 7. 10. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021

Mr. P. Gichuki Member Signed 7. 10. 2021

Mr. B. Akusala Member Signed 7. 10. 2021

Tribunal Clerk R. Leweri

Chimei for the Respondent

Atutu & Associates for Claimant- No appearance

Mention notice to issue

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021