https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/235

Mathenge v Kajiado Tradiary Co-operative Society & another (Tribunal Case 721 of 2019) [2026] KECOPT 235 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KECOPT 235 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 721 of 2019 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, PO Aol & M Chesikaw, Members May 14, 2026 Between Jane Wairimu Mathenge Claimant and Kajiado Tradiary Co-operative Society 1st Respondent Robert Kamani 2nd Respondent Ruling 1.The Notice of Motion dated 1st October, 2025 was filed by the Claimant/Applicant under Section 3A of the Civil Procedure Act, Order 40 Rules 1,4(1), 8 and 9 of the Civil Procedure Act Rules, Sections 27, 42 and 76 of the Cooperative Societies Act, Rule 4, 6 and 11 of the Cooperative Tribunal (Practice and Procedure) Rules. Therein, the Claimant prays for orders:1.Spent2.That pending the hearing and determination of this application and the main claim, a temporary mandatory injunction do issue compelling the Respondents to disclose and account for the current status, precise location and condition of the Society’s milk equipment including the 3,200-litre cooler, 500-litre pasteurizer, generator and solar panels and to file an inventory thereof.3.That the Respondents be compelled to notify members of the new registered office address of the 1st Respondent society in compliance with section 1 and 2 of the 1st Respondent’s By-laws.4.That pending the hearing and determination of this application and the main claim, an interim order be issued restraining the Respondents whether by themselves, agents, servants, employees, proxies or representatives from selling, leasing, transferring, relocating, disposing of, charging, wasting or otherwise interfering with the assets, equipment and property of the 1st Respondent Society.5.That this Honourable Tribunal do order the convening of a General meeting/Special General Meeting of the Society under the direct supervision of the Commissioner for Co-operative Development or the Kajiado County Executive Committee Member responsible for Co-operatives, within 30 days, to deliberate on the governance and affairs of the Society.6.That pending such meeting in clause 5 above, the Tribunal do order the appointment of an interim committee to manage the affairs of the society to protect members’ rights and assets.7.That the Respondents be compelled to surrender and produce to the Tribunal and members legal and statutory documents in their possession of the 1st Respondent Society, bank account details and returns filed with the Commissioner for co-operatives and all correspondence with regulators.8.That the Respondents be compelled to produce the minutes of the meeting of 25th June,2025, duly signed by the Chairman and one other Committee Member as required by Section 30 of the 1st Respondent’s By-laws.9.THAT the costs of this Application be provided for. 2.The Application is supported by the annexed Supporting Affidavit of the Claimant sworn on 1st October, 2025, the Supplementary Affidavit sworn on 10th January, 2026 and the grounds that:a.The Applicant is a founder member of the 1st Respondent Society and is directly affected by the Respondents’ unlawful actions.b.The Respondents convened irregular Special General Meetings on 20th and 25th June, 2025 with conflicting agendas first to sell the society’s property, then to transfer it without proper notice, without quorum and without lawful authority.c.The 25th June, 2025 meeting was invalid for failure to comply with the minimum 15 days’ notice, lack of quorum, introduction of new agenda not previously notified and lack of properly signed minutes, in breach of sections 27, 28,29 and 30 of the Co-operative Societies Act and By-laws.d.Pursuant to the impugned resolutions, the Respondents unlawfully relocated the society’s assets (cooler, pasteurizer, generator and solar panels) approximately 80 kilometers to Ewuaso Nkindong, outside the gazetted area of operation, without approval of members and in violation of express instructions from the State Department of Livestock and Section 1 of the 1st Respondent’s by-laws.e.The Respondents have failed, refused and/or neglected to disclose and communicate to members whether the property has been sold, leased, transferred or otherwise disposed of, or to provide any financial accounts or inventory.f.The Respondent’s actions constitute mismanagement, abuse of office, conflict of interest and breach of fiduciary duty in contravention of Sections 27, 28(3)(c) and 42 of the Cooperative Societies Act and Section 30 of the Society’s by-laws.g.Unless restrained by this Honourable Tribunal, the Respondents are likely to permanently alienate, waste or dispose of the Society’s property to the irreparable detriment of members.h.It is just, fair and in the interest of justice that this Tribunal intervenes to preserve the society’s assets, compel accountability and ensure compliance with the law through a supervised General Meeting and appointment of an interim management committee. 3.In the Supporting Affidavit, the Claimant/Applicant largely repeated the grounds on the face of the application and stated further that:a.On or about 4th June 2025, the Respondents sent to members of the 1st Respondent a notice of a Special General Meeting (SGM) of the 1st Respondent Society with an agenda limited to:(a)Sale of Tradairy property;(b)Rent arrears;(c)The way forward; and(d)Any other business.b.The meeting scheduled on 20th June 2025 lacked quorum.c.On the same day, another notice was issued to reschedule the meeting to 25th of June but this notice did not specify the agenda.d.Within five (5) days, on 25th June 2025, the Respondents and a few other individuals convened another SGM with a different agenda, namely, the transfer of the Society's property, which was attended by only 15 members out of 178 registered members.e.The developments from the agenda of the meeting dated 25th of June 2025 only became known after other members noticed that the business premises of the 1st Respondent remained closed and further observed that the property of the Society was missing at the society’s known official premises.f.The said aforesaid realization prompted concerned members the Claimant included, to seek more information from the relevant authorities including the state department of livestock production-cooler coordination to confirm whether agenda of the meeting dated 20th June 2025 had materialized.g.It turned out that the Respondents had sought approval to transfer operations of the 1st Respondent’s Society to a different location citing low milk production as the reason for the transfer and that an inspection of the new site was required.h.The 25th June 2025 meeting was irregular and unlawful for the following reasons:a.It was convened without the minimum 15 days’ notice required under the society’s By-laws since it had introduced a new agenda altogether,b.It lacked quorum as only 15 members attended out of 178 registered members,c.It introduced a new agenda (“transfer of property”) not contained in the initial notice of 20th June 2025, contrary to Section 31 of the 1st Respondent’s and;d.The purported minutes have not been made available to all the members. In accordance with Section 30 of the 1st Respondent’s By-laws.i.Pursuant to the impugned abrupt resolutions made, the Respondents could have unprocedurally relocated the Society’s cooler, pasteurizer, generator, and solar panels from Kiserian Town to Ewuaso Nkindong, a distance of approximately 80 kilometres, outside the Society’s registered area of operation, without the approval and disclosure, leading to paralysis to the day to day business and the operations of the 1st Respondent, with no office and with no dairy facilities in a manner that suggests that the society has been dissolved.j.Such important decisions as sale of equipment, transfer, movement of location of operations of the 1st Respondent require a special resolution and such acts contravene section 1 and 2 of the 1st Respondent’s By-laws that have outlined areas of the 1st Respondent’s operations.k.To date, the Respondents have failed, refused or neglected to disclose to members:a)The current physical address and offices of the 1st Respondent;b)Whether the equipment was sold, leased, transferred or otherwise disposed of;c)Any legal documents relating to the Society’s assets or operations.l.Members were initially notified that the property of the Society was to be sold, yet within days, the agenda was changed to “transfer of property” without lawful explanation, raising suspicion of bad faith, mismanagement and possible fraudulent disposal of Society property.m.Conduct contravenes provisions of the Cooperative Societies Act, the 1st Respondent’s By-laws and amounts to gross mismanagement and breach of trust, thereby prejudicing members’ rights and benefits.n.Unless restrained and compelled by this Honourable Tribunal, the Respondents may continue to alienate or waste the Society’s assets, to the irreparable detriment of members. 4.The Respondent in reply to the Application, filed a Replying Affidavit sworn by Bonface Njuguna on 4th November, 2025, wherein the Deponent state that:a.He is a member and the Chairperson of the 1st Respondent and knows for a fact and avers that the Claimant/Applicant herein has not made full, frank and candid disclosure of material facts to this case but to the contrary, has withheld material information from Court and made false and misleading statements in order to obtain from the Court Orders sought for herein.b.He is aware the Claimant is the former Secretary and she was aware of the Special General Meeting (SGM) held on 20.6.2025 and 25.6.2025 and the Members discussed the way forward so that the society can deliver on its promises.c.The agenda was on Rent Arrears and Transfer of Kajiado Tra dairy Co-Operative Society Cooler and after several deliberations eventually parties agreed as per the minutes as per the laws governing the 1st Respondent.d.The Claimant/Applicant herein at all times was present in all meetings (management committee and AGM and SGM) and being a member of the Management committee then she was well informed and aware of all the challenges/actions the 1st respondent took in management and therefore it is malicious for the Claimant to claim that she is not aware of the issues discussed.e.The Respondents oppose this Application as the 1st Respondent will be highly prejudiced, as operations of the 1st Respondent have stalled due to this casef.Granting the orders sought by the Claimant/Applicant at this Stage would be detrimental to the Sacco as the election was done in the presence of the Co-operative officer who is in receipt of the minutes and resolution.g.The prayers sought are untenable as the resolutions were effected and the matters relate to the Sacco and not individual persons. 5.In rejoinder to the Replying Affidavit, the Claimant/Applicant deponed in her Supplementary Affidavit that:a.Contrary to the averments made by the 1st Respondent, she was not present at the Special General Meetings held on 20th June 2025 and 25th June 2025, at which resolutions relating to the alleged sale, leasing, transfer and/or relocation of the Society's assets were purportedly discussed or made.b.While she was duly invited to attend the Special General Meeting scheduled for 20th June 2025, she formally communicated her apology for non-attendance, which apology was duly recorded by the Society as reflected in the minutes annexed by the Respondents as annexure 1 of their replying Affidavit.c.Prior to the said meeting of 20th June 2025, she expressly communicated her objection and disagreement with any agenda purporting to sell, lease, transfer or otherwise dispose of the Society's assets, on the basis that such actions were unlawful, procedurally improper and contrary to the provisions of the Cooperative Societies Act and in particular, pointed out to the conveners that;a)Disposal of the Society's property could only be undertaken in accordance with the statutory procedure for dissolution under Sections 61-66 of the Cooperative Societies Act;b)That creditors had recourse to the Commissioner for Cooperative Development under Section 59 of the Act;c)That the Society's indebtedness necessitated a full and detailed audit before any burden could be imposed upon members or any property dealt with.d.That the minutes annexed by the Respondents in which I am listed as having been present relate to earlier meetings held in March 2025, which meetings addressed issues of rent arrears and operational challenges only, and did not involve any resolutions on sale, leasing, transfer or relocation of the Society’s assets.e.The Respondents have therefore erroneously and misleadingly conflated her attendance at earlier meetings with the impugned Special General Meetings of June 2025, thereby creating the false impression that she participated in or consented to the resolutions complained of.f.She reiterates that she neither attended nor participated in the meetings at which the impugned resolutions were made, and that she expressly objected to the same in advance, and for lawful reasons. 6.The parties filed Submissions in respect of the Application dated 1st October, 2025. The Claimant/Applicant’s submissions are dated 1st February, 2026 while the 1st Respondents’ Submissions are dated 27th November, 2025. Analysis and Determination 7.We have considered all the documents filed by the parties herein including the Written Submissions and have two issues for determination, at this stage of the proceedings:i.Whether the Claimant/Applicant is entitled to the orders sought in the Application dated 1st October, 2025.ii.Who pays costs of the application? 8.In considering whether the Claimant/Applicant is entitled to the prayers sought, we will consider the prayers sought and pending. 9.It is evident from the evidence on record that the 1st Respondent was unable at some point, to pay for its office rent due to financial difficulties, as can be seen from the landlord’s notice dated 1st December, 2023 and as per the agenda and minutes of the Special General Meeting of 31st May, 2024, in which the Claimant/Applicant was in attendance. 10.It is also evident that meetings were held on 20th and 25th June, wherein the Claimant/Applicant was not present. The Claimant/Applicant admits that she did not attend the meetings and that she sent in her apology for non-attendance of the meeting of 20th June, 2025. It is therefore clear to us that the Claimant/Applicant was aware of the agenda of the meetings but failed to attend them. 11.Section 27 (1) of the Cooperative Societies Act provides that the supreme authority of a cooperative society shall be vested in the general meeting at which members shall have the right to attend, participate and vote on all matters.The law gives society members the right to attend meetings and vote on all matters therein. We find it curious that the Claimant/Applicant failed to exercise her right under Section 27 of the Cooperative Societies Act when the agenda contained matters that she strongly objected to. 12.While the Claimant argues that she is entitled to the prayers sought, we have noted that most of the prayers sought in the application do not have corresponding substantive prayers in the main claim. It is trite that parties are bound by their pleadings. It is also trite that interlocutory orders preserve the subject matter of the suit pending final determination and they cannot exist in a vacuum, hence a temporary remedy, must be based on a permanent prayer made in the plaint. It follows therefore that a prayer for temporary orders sought without a corresponding substantive prayer in the plaint will fail. 13.In the current application, the Claimant/Applicant has made several prayers which are not anchored in the main suit and such prayers are found by this Tribunal to be unsustainable from the onset. We therefore find that Prayers 2,3, 4, 7 and 8 are unmerited for failing to be anchored on the main suit. This Tribunal shall therefore not go into the issue of its discretion or the threshold for the grant of such prayers as it would in ordinary circumstances.We are guided by the finding in the case of Nandan Pictures V Art Ltd & Others, AIR 1956 1956 CAL 428, wherein the Court established that a temporary injunction should is not supposed to establish a new state of things, differing from the state which existed at the date when the suit was instituted. 14.Prayers 5 and 6 of the Claimant’s application are of such mandatory nature that are not capable of being granted at the interlocutory stage, as they would dispose of a substantive portion of the reliefs sought by the Claimant and that there would be need to determine the issues on merit before such orders can be issued. This position was stated in the case of Locabail International Finance Ltd v Agro-export and Others (1986) ALL ER 901, it was stated that:“The matter before the Court is not only an application for a mandatory injunction, it is an application for a mandatory injunction, which, if granted, would amount to the grant of a major part of the relief claimed in the action…..”. 15.On the issue of costs, this Tribunal would not wish to depart from established precent in regards to costs of an interlocutory application. 16.In the Upshot, we find that the Claimant/Applicant is not entitled to the orders sought in prayers 2 to 8 of her application dated 1st October, 2025. 17.Consequently, the said application is dismissed. 18.Costs shall be in the cause. Mention for pretrial direction on 30.7.2026 before the Assistant Deputy Registrar. Notice to issue. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 14.5.2026HON. BEATRICE SAWE - MEMBER SIGNED 14.5.2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 14.5.2026HON. PAUL AOL - MEMBER SIGNED 14.5.2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 14.5.2026Mutai Court AssistantJN. Wekesa advocate for the Claimant/Applicant – N/ANyangera advocate for the 1st Respondent.