[2023] KECPT 753 (KLR)

Mathenge v Management Committee, Thiriku Coffee Growers Co-operative Society Ltd & 2 others (Tribunal Case E006 of 2022) [2023] KECPT 753 (KLR) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 753 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E006 of 2022

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

August 31, 2023

Between

John Kirugumi Mathenge

Claimant

and

The Management Committee, Thiriku Coffee Growers Co-operative Society Ltd & 2 others

Respondent

Judgment

1. Matter for determination was brought before the Tribunal vide a Statement of Claim dated September 28, 2022 filed on September 29, 2022

2. The Claimant avers that he is a member of Thiriku Coffee Growers Co-operative Society.

3. He stated that he was a newly elected Management Committee and 1st and 2nd respondent conducted elections of zonal representatives of Mathakwa-ini and Kianjogu zones and also Supervisory Committee representatives for; Karangia/Gura/Mutitu zone, Ndugamano/Mukarara/Kianjogu zone and Mathakwanini/Mbaani zone during the Annual General Meeting held on September 16, 2022.

4. The Claimant avers that the election conducted on 16. 9.2022 and presided over by 3rd Respondent were not credible, free or fair as it was marred with election malpractice for the reason the notice for the 20222 Annual General Meeting dated 1. 9.22 which was circulated directed any prospective candidate vying for an elective position to attain K.C.S.E level education and to apply to District County Officer Tetu not later than September 14, 2022”

5. Claimant further avers guidelines on Committee/Directors Elections – Nyeri County set out in circular No. 1/2016/2017 remained in force and were equally contravened during society’s election.

6. Claimant avers the District County Officer Tetu Sub-County who was returning officer failed to ensure that the prospective candidates provided valid documents for example title deed, log books ex etra which would have supported the declaration of indemnity by elected candidates.

7. The prospective candidates did not fill nomination forms which were to be submitted to office 3 days before elections.

8. The District County Officer did not confirm that the prospective candidates provided their K.C.S.E Certificates before the election date.

9. He avers the malpractice during election included:a.The District County Officer Tetu allowing prospective candidates to be elected without making their Applications by the 14th September 2022 as stipulated in the notice dated 01. 09. 2022. b.The D.C.O Tetu failing to call for the prospective candidates to supply their K.C.S.E certificates prior to the elections.c.The District County Officer Tetu failing to call for the supply of wealth declaration documents such as title deeds, log books etc from the prospective candidates prior to the elections.d.The District County Officer Tetu failing to constitute a committee 2 days before the election to vet the prospective candidates.e.Election of prospective candidates being conducted on the floor of the meeting hence the likelihood that the elected candidates were not eligible to be elected.

10. He thus prays for:1. A declaration that the Respondent’s elections held on 16. 09. 2022 were null and void for flouting the Society’s By-laws, Guidelines on Committees/Directors Elections- Nyeri County Circular No. 1/2016/2017 and the Provisions of the Co-operative Societies Act, Cap 490 Laws of Kenya.2. A declaration that the elected persons on the September 16, 2022 are not fit to hold office and hence should not assume office until proper elections are conducted.3. A declaration that the previous managing committee and supervisory committee will remain in office until the termination of this claim and or until the Tribunal direct otherwise.4. THAT the cost of this Application be provided for.

11. The claimant filed a list of documents dated September 28, 20222 which included:a.Notice for the 2022 Annual General Meeting dated September 1, 2022b.Society By-laws for Thiriku Coffee Growers Co-operative Ltdc.Guidelines on Committees/Directors Elections-Nyeri County, Circular No. 1/2016/2017 dated July 14, 2016d.Minutes of Special Management Committee Meeting held on September 21, 2022e.Any other Relevant document(s) as may be required by the leave of the court.

12. There is a further list of documents filed dated December 21, 2022 filed on even date i.e1. List of Members in support of the Claim2. Notice of Special General Meeting dated October 14, 20223. Any other Relevant document(s) as may be required by the leave of the court.

13. The 2nd respondent filed a statement of defense dated October 25, 2023 filed on October 28, 2022

14. The 2nd respondent stated he is a Bachelor of Education Graduate and he had submitted his Application dated September 11, 2022 and it was received on 21. 9.2022.

15. He further stated that election of each individual committee member should be considered individually.

16. He filed his list of documents dated October 25, 2022.

17. The 3rd Respondent filed a response to statement of claim dated October 24, 2022

18. They admitted 1st and 2nd respondent conducted elections of zonal representatives and supervisory committee representatives at the Society’s Annual General Meeting held at September 16, 2022.

19. The 3rd respondent deny that the elections were not credible and the same were conducted in line with Civil Society Act and Society’s By-laws

20. 3rd Respondent further aver that the directive contained in the notice was not a statutory requirement and circular was no longer in use.

21. The 3rd Respondent further stated in their defense that it is not a requirement in law to have a vetting committee prior to elections of a society and on strength of society’s by-laws, elections are to be conducted on the floor of annual general meeting.

22. They states people elected in the impugned elections had served in the management of society and possess no records of mismanagement.

23. The 3rd Respondent filed their list of documents dated 24. 10. 22 filed on 26. 10. 2022 which included:1. Minutes of the management committee’s meeting held on August 26, 20222. Minutes of the management committee’s meeting held on September 21, 20223. Written Application by Paul Macharia and his school leaving certificate.4. Written Application by David Maina and his masonry certificate.

24. 1st Respondent later filed statement of Defense dated October 17, 2022 on November 1, 2022 on behalf of the 1st and 2nd respondents and denied the averments of the claimant.

25. They further filed a preliminary objection and counter-claim statingi.Jurisdiction of Tribunal is put in question in as far as electoral jurisdiction was concerned andii.Claimant lacks requisite locus standi to move any legal forum, to challenge zonal elections as the same was not conducted in his zone.

26. That the statement of claim dated September 28, 2022 ought to be struck out with costs.

27. The 1st and 2nd Respondent filed a list of Documents dated October 17, 20221. Minutes of the management committee’s meeting held on 26th August, 2022. 2.Minutes of the management committee’s meeting held on 21st September 2022. 3.Minute s number Min. No. 288/16/09/2022: Management Committee Elections.4. Written application by Paul Macharia and his school leaving certificate.5. Written Application by David Maina and his masonry certificate.8. Matter came for hearing of mention suit on January 9, 2023 with CW1 – John Kingumi Mathenge testifying he adopted his witness statement dated 28. 9.2022 as his evidence in chief.

28. He produced the documents in list of documents dated 28. 9.2022 and further list of documents dated December 21, 2022 as claimant Ex I and II respectively.

29. He confirmed his contention was there was to be a rotation of each members 2 years each.

30. Members were to write to the Committee on the intention to vie and K.C.S.E was a factor together with collateral of over 1M.

31. He testified and said members were to be vetted however the education requirement and collateral value of property was not checked. Vetting process was not done

32. The Notice was not considered and they were not informed who was vying.

33. On cross examination, the claimant confirmed being present during the annual general meeting. He stated that he wanted the election being cancelled as it did not achieve to the notice requirement.

34. He confirmed that his zone did not have elections and his zone was not affected.

35. He clarified that he was interested in the other zones and wanted to cancel the elections because the zonal elections affected the management committee.

36. Claimant further stated when asked how the District County Officer did not fully produce he stated the documents as per the notice were never awarded.

37. He was categorical when he said the DCO did not check and confirm viability of members.

38. He confirmed the management committee was similar to the previous one, difference is that the notice for the elections of 16. 9.2022 stated qualifications of those who would wish to vie.

39. On further Cross-examination, he confirmed that Sec. 28 Co-operative Society Actdid not have a requirement of KCSE.

40. Also the society by-laws which was produced as C EX 2 had no qualification of being literate.

41. On re-examination, he clarified the notice for the elections specified KCSE qualification and members are the ones who agreed on the same. He stated that the issue was not raised in the subsequent management of 16. 9.2022 as the DCIO stated they were to write their grievances and he was to look into them.

42. They went home without electing the officials.

The 1st and 2nd Respondents Case 43. RW1 – David Maina Ndirangu adopted his witness statement dated October 17, 2022 filed on November 1, 2022. He further produced his evidence as filed in List of Documents dated October 17, 2022

44. He confirmed he was a member of Thiriku Farmers Coffee Growers. He confirmed the notice issued had a requirement with qualification. He confirmed he is a masonry and as such he does not have the qualifications as per the Notice.

45. He did not have the KCSE Certificate when asked if he objected the Notice with requirement for KCSE Certificate he stated the negative.

46. He confirmed that there was such a circular dated 14. 7.2016 from County Government.

47. 3rd Respondent – RW2 – Francis Kiiru testified. He confirmed he confirmed he is a senior Co-operative official in Nyeri and Tetu sub-county.

48. He adopted his witness statement dated October 24, 2022 as his evidence in chief and produced his list of documents dated October 24, 2022 produced as R Ex 1-5.

49. He stated they are guided by Co-operative Society Act and By-laws of the society and KCSE is not a requirement in the Act.

50. On cross-examination, he confirmed receiving the Notice and he was aware about the circular.

51. However, he stated that it was no longer in use but clarified it was not no longer in use but clarified it was not recalled.

52. He stated he confirmed eligibility of candidates after they were proposed.

53. He confirmed members of Thiriku Coffee Growers wanted to reconstitute the Board.

54. Parties closed their cases and were directed to file written submissions.

55. The Claimant filed written submissions dated January 23, 2023 on March 3, 2023.

56. 1st and 2nd Respondent filed written submissions dated February 3, 2023 on March 3, 2023

57. 3rd respondent filed written submissions dated March 1, 2023 on March 3, 2023

58. Having heard the evidence before the Tribunal and looked into the pleadings the issues for determination are:i.Whether the Tribunal has Jurisdiction to hear the case

59. If issue number 1 is affirmative.ii.Whether the elections were marred with irregularities and illegalities

Issue OneWhether the Tribunal has Jurisdiction to hear the case.

Issue TwoWhether the elections were marred with irregularities. 60. It is not in contention that Thiriku Coffee Growers Co-operative Society held Zonal elections on September 16, 2022

61. It is also not in contention that there was a notice to that effect; notice dated---- C.EX.

62. The Notice is dated September 1, 2022 which was Reference No. N9/2022/2023.

63. It was indeed captured that any prospective candidate vying for the elective position ought to have attained KCSE level and was to apply to DCO Tetu.

64. The question then is to be answered is whether the candidates did qualify for the elections?

65. RW1 – David Mana informed the Tribunal they were elected into office.

66. He confirmed he did not have a KCSE Certificate as per the requirement in the notice.

67. Despite the evidence of RW2 who stated the same was not mandatory the notice was never challenged.

68. The requirements were clear and the same can not be ---after the elections and the same having been challenged.

69. The requirement of having a KCSE Certificate must have been an informed decision and mere fact that it was not challenged means all participants were bound by it.

70. By that fact alone, any candidate without KCSE Certificate was not eligible to vie for Office.

71. As such, we agree with Claimant that the elections were irregularly conducted as no vetting seems to have been done by the officials and 3rd Respondent.

72. There is no other way of putting it; the 3rd Respondent were negligent in their duties, having full knowledge of the notice before them.

73. The Co-operative Society Act Cap might be silent on the requirements of elective positions.

74. The By-laws of Thiriku Coffee Growers is also silent on the same however, we can not turn a blind eye on a notice which sought qualification as that was what had earlier been agreed upon.

75. We thus find that indeed the elections were not prepared as vetting was not done and members who vied did not qualify.

76. As such, we have no otherwise have to cancel the elections held on 16. 9.2023

77. We find in favor of Claimant against Respondent and grant prayers:1. A declaration that the Respondent’s elections held on September 16, 2022 were null and void for flouting the Society’s By-laws, Guidelines on Committees/Directors Elections- Nyeri County Circular No. 1/2016/2017 and the Provisions of the Co-operative Societies Act, cap 490 Laws of Kenya.2. A declaration that the elected persons on the September 16, 2022 are not fit to hold office and hence should not assume office until proper elections are conducted within 60 days.3. A declaration that the previous managing committee and supervisory committee will remain in office until the elections are done.

78. With costs to claimant

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahMs. Wangechi advocate for the Claimant.Wambugu advocate for 1st and 2nd Respondent.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023