https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/326

**** **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E544 OF 2025** **(Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. P. Aol- Member, Hon. M. Chesikaw-Member)** **SIMON LENG’ETE MASHUA ……………………………. CLAIMANT** **VERSUS** **ELIAS K. NTOIPO …………………………………. 1ST RESPONDENT** **ERIC MUGO (SECRETARY) …………….………. 2ND RESPONDENT** **ALICE W. KIMANI (TREASURER) ………………. 3RD RESPONDENT** **NAINI MUSHAO (MEMBER) ……………………. 4TH RESPONDENT** **MUSANGAIRO FARMERS CO-OPERATIVE** **SOCIETY LTD ………………………………….……. 5TH RESPONDENT** **JUDGEMENT** The Statement of Claim dated 16th June, 2025 was filed as a result of suspension from office. According to the Claimant, he was a duly elected Management Committee Member of Musangairo Farmers’ Co-operative until on or about 5th February, 2025 when he was suspended from office by the 1st to 4th Respondents on the allegations that he petitioned the management committee. It is the Claimant’s averment that the Management Committee alleged that he incited his supporters during the AGM but failed to prove the allegations nor tender any evidence of the same. The Claimant asserts that he was suspended on the grounds that he addressed a press conference. According to the Claimant, there is no by-law of the society that define such allegation as a violation of Section 14 or any other Section of the Co-operative Societies Act or the Constitution. It was the Claimant’s position that he was not afforded an opportunity to be heard in complete disregard of the society’s by-laws and the provisions of the Cooperative Societies Act, and as such the suspension amounts to a violation of the principles of natural justice and procedural fairness. To the Claimant, the 1st to 4th Respondent acted without authority and the Society did not validly endorse or ratify their actions, as such, he suffered reputational harm, emotional distress making him seek the following reliefs: 1. A declaration that the Claimant’s suspension was unlawful, null and void. 2. An Order for the immediate reinstatement of the Claimant as a Management Committee Member 3. An injunction restraining the Respondents from further interfering with the Claimant’s duties 4. General damages for reputational and emotional harm 5. Costs of the Claim 6. Any other relief the Honourable Tribunal deems just and fit to grant Despite the Respondents being served physically, they failed to enter appearance or respond to the claim leading to the request for judgement dated 6th January 2026. This Tribunal on 24th February 2026 entered default judgement and ordered for formal proof hearing on 9th June, 2026. **Formal Proof Hearing** At the hearing the Claimant adopted his witness statement dated 16th June, 2025 and testified that he was a member of Musangairo Farmers’ Co-operative. It was his testimony that he was irregularly removed because he did a press conference and he has not been reinstated despite writing several protest letters. It was also his testimony that he was elected and entitled to traveling allowances and sitting allowances amounting to a sum of Kshs. 500, 000/= in compensation from the date of his suspension - 5th February, 2025. We have considered the claim and the evidence adduced during formal proof and there are only two questions remaining for determination as follows: 1. Was the Claimant condemned unheard, or was due process followed to suspend the Claimant? 2. Whether the Claimant is entitled to any reliefs sought? **Was the Claimant condemned unheard, or was due process followed to suspend the Claimant?** Due process, in simple terms, refers to the procedures laid down by law or contained in legal principles which must be adhered to in dealing with a subject of the legal process for justice to not only be done but also seen to have been done. Due process in regard to administrative decisions is circumscribed by Article 47 of [*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution) and further reinforced by the Fair Administrative Actions Act. Article 47 of [*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution) of Kenya provides as follows: 1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. The [*Fair Administrative Action Act*](https://kenyalaw.org/akn/ke/act/2015/4) under Section 4; in particular Section 4(1) & (2) provides thus: 1. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision— 2. prior and adequate notice of the nature and reasons for the proposed administrative action; 3. an opportunity to be heard and to make representations in that regard; 4. notice of a right to a review or internal appeal against an administrative decision, where applicable; 5. a statement of reasons pursuant to Section 6; 6. notice of the right to legal representation, where applicable; 7. notice of the right to cross-examine or where applicable; or 8. information, materials and evidence to be relied upon in making the decision or taking the administrative action. 9. The administrator shall accord the person against whom administrative action is taken an opportunity to— 10. attend proceedings, in person or in the company of an expert of his choice; 11. be heard; 12. cross-examine persons who give adverse evidence against him; and 13. request for an adjournment of the proceedings, where necessary to ensure a fair hearing. Section 7 (2) of the [*Fair Administrative Action Act*](https://kenyalaw.org/akn/ke/act/2015/4), further provides the grounds of review by a Court or Tribunal as: bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power. The importance of fair administrative action as a constitutional right was appreciated by the Supreme Court in **Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR)** as follows: 1. ***“Article 47(1) of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In 2015, Parliament in adherence to article 47 of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***enacted the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***, No 4 of 2014, Laws of Kenya (FAA Act)."*** 2. ***67.Also instructive to the application of judicial review, is that article 10 of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.”*** The Court went on further to note that: ***“74.It is our considered opinion that the framers of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer-employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi- judicial functions. We further take the view, that this approach is consistent with realizing the right of access to justice because justice can be obtained in other places besides a courtroom.*** 1. ***In order for the court to get through this extensive examination of Section 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge.”*** Equally in **Muigana & 16 others v County Government of [2024] KEHC 960 (KLR**) the Court observed as follows: ***“36 In general, the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***has introduced six aspects that are important in enhancing access to administrative justice in Kenya. First, Section 3(1) has expanded the scope of judicial review to include the actions of public and private bodies. This implies that it is not only the actions of public bodies that are subjected to judicial review but also the actions of private actors that may be subjected to judicial review where they violate the rights or interests of affected individuals.*** 1. ***Second, the Act has expounded on the constitutional grounds for judicial review and codified the grounds for judicial review under common law such as ultra vires, procedural fairness, and reasonableness. Section 7(2) of the Act provides for the grounds upon which a court or tribunal may review an administrative action or decision.*** 2. ***Third, Section 9 of the Act outlines the procedure for judicial review Fifth schedule, under Part IV of the Act (titled ‘Miscellaneous’), stated that the provisions of the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***are additional to and not derogations from the rules of common law and natural justice. See M Akech, Administrative Law (2016).*** 3. ***The acknowledgment of common law principles in the review of administrative action has a significant impact on how Article 47 of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***should be interpreted. According to OJ Dudley, in ‘***[***The Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***of Kenya 2010 and Judicial Review, Courts that interpreted the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***have continued to appreciate and apply the principles of common law in the post-2015 jurisprudence. Courts have further interpreted Article 47 and the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***in a way that ensures common law principles and rules of natural justice are further developed.*** 4. ***Lastly, the Act has elaborated the right to be given written reasons for administrative action. The requirement to give reasons for administrative action under the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***has both substantive and procedural aspects. Substantively, Section 4(2) of the***[***Fair Administrative Action Act***](https://kenyalaw.org/akn/ke/act/2015/4)***recognizes that every person has a right to be given written reasons for any administrative action that is taken against him/her. See Chirwa (n 47); H Corder, ‘Administrative Justice in the Final Constitution.”*** In like manner, the principles of natural justice require that a person receive a fair and unbiased hearing. **The Halsbury’s Laws of England, 5th Edition Vol. 61 at page 539 Paragraph 639** on the rule of natural justice states as follows: ***“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard the (audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adopted to govern proceedings of bodies other than Judicial tribunals, and duty to act in conformity with the rule has been imposed by common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court. Moreover, even in the absence of any charge, the severity of the impact of an administrative decision on the interests of an individual may suffice itself to attract a duty to comply with this rule. Common law and statutory obligations of procedural fairness now also have to be read in right of the right under the convention for the protections of Human Rights and Fundamental Freedoms to a fair trial which will be engaged in cases involving the determination and civil rights or obligations on any criminal charge.”*** This principle has been discussed in a number of authorities. For example, in **Judicial Service Comission v Mbalu Mutava & another [2015] eKLR** it was stated that: ***“In exercise of its powers under***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***or under legislation, public officers, state officers, state organs and independent bodies or tribunals may make decisions which may be characterized as judicial, quasi-judicial or administrative depending on the empowering provision of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***or the law. The landmark decision of the House of Lords in Ridge v. Baldwin [1964] AC 40 clarified the law, that the rules of natural justice, in particular right to fair hearing, (audi alteram partem rule) applied not only to bodies having a duty to act judicially but also to the bodies exercising administrative duties. In that case, Lord Hodson at page 132 identified three features of natural justice as:*** 1. ***the right to be heard by an unbiased tribunal.*** 2. ***the right to have notice of charges of misconduct*** 3. ***the right to be heard in answer to those charges.*** ***On his part, Lord Reid when dealing with class of cases of dismissal from office “where there must be something against a man to warrant his dismissal” said at page 66: “There, I find an unbroken line of authority to the effect that an officer cannot be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”*** In this particular case, the Claimant’s suspension was through a letter dated 5th Feb., 2025 on allegations that he had made many unfounded, malicious, false and bad intended petitions both at County level and National Cooperative Offices against the former and current management committee, that the Claimant had incited his supporters to cause chaos during AGM and other meetings, and that he had also held a press conference on 22nd Jan., 2025 to disparage and paint the Society leadership as corrupt, inept, fraudulent and vindictive, which actions were considered as injurious to the Society. As a Tribunal, we have considered everything surrounding the case, including the fact that the Respondents were given adequate time and opportunity to respond and or controvert the evidence presented and for their own reasons they opted not to. In absence of evidence controverting the allegations, we find that the right to fair administrative action of the Claimant was violated as he was never given notice to respond to the allegations made against him before he was relieved of his position. We find that the Claimant’s rights under Article 47 were violated in addition to the failure by the Respondents to abide by the clear provisions of Fair Administrative Actions Act as already explained. **Whether the Claimant is entitled to any reliefs sought?** The Claim having succeeded, it goes without saying that the Claimant’s rights were violated hence he is entitled to some reliefs. First, given that there is no evidence on record that the Claimant was replaced or that the management committee was reconstituted, it is our considered position that the prayers for immediate reinstatement and an injunction restraining the Respondent from further interference with the Claimant duties are still plausible options and as such, they are allowed. Second, payment of damages is also another option in addition to the quashing of the unprocedural and unlawful suspension meted on the Claimant. The Court of Appeal in **Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others [2021] KECA 328 (KLR**) on what should guide a Court or a Tribunal on how to arrive at appropriate damages held that: ***“15.The relevant principles applicable to award of damages for constitutional violations under***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***were also explained by the Privy Council in the case of Siewchand Ramanoop vs The AG of T&T, PC Appeal No 13 of 2004. It was held by Lord Nicholls at Paragraphs 18 & 19 that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense as follows: “When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases, more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under Section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminus with the cause of action at law. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches.*** ***”16. The guiding principle to be gleaned from these decisions is that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case, and can indeed be granted as compensation for proven loss.”*** Also, in **Peter Mauki Kaijenja & 9 others v Chief of the Defence Forces & another [2019] KEHC 7530 (KLR)** it was observed that: ***“96. Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion. [46] The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Courts. The following principles clearly emerge from decided cases;*** 1. ***Monetary compensation for violation of fundamental rights is now an acknowledged remedy in public law for enforcement and protection of fundamental rights;*** 2. ***Such claim is distinct from, and in addition to remedy in private law for damages for tort;*** 3. ***This remedy would be available when it is the only practicable mode of redress available;*** 4. ***Against claim for compensation for violation of a fundamental right under***[***the constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***, the defence of Sovereign immunity would be inapplicable*** 5. ***Arriving at the award of damages is not an exact science. No monetary sum can really erase the scarring of the soul and the deprivation of dignity that some of these violations of rights entailed. When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right, which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases, more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. However, this measure is no more than a guide, because the award of compensation is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action in law.”*** In this particular case, the Claimant during the formal proof hearing urged the Honourable Tribunal to award him the sum of Kshs. 500,000/- in damages. However, we find that to be a little bit on the higher side and hereby make the following orders. **Final Orders** The Statement of Claim dated 16th June 2025 succeeds with the following orders: 1. A declaration is hereby made that the Claimant’s suspension was unlawful, null and void. 2. The suspension of the Claimant through the letter dated 5th February, 2025 is hereby quashed. 3. General damages awarded for the sum of Kshs. 150,000/= 4. Costs of the Claim. Judgment dated and delivered *virtually* at **Nairobi** this **13th** day of **August, 2026.** **Hon. J. Mwatsama Chairperson Signed 13/8/2026** **Hon. B. Sawe Member Signed 13/8/2026** **Hon. P. Aol Member Signed 13/8/2026** **Hon. Fridah Lotuiya Member Signed 13/8/2026** **Hon. M. Chesikaw Member Signed 13/8/2026** Court Assistant – Arnold No appearance by parties Judgment delivered in absence of parties 30 days stay of execution granted. **Hon. J. Mwatsama Chairperson Signed 13/8/2026**