Mbogo v Kamukunji Juakali Association & 2 others (Claim E001 of 2024) [2026] KEMSET 2 (KLR) (3 July 2026) (Ruling)

Mbogo v Kamukunji Juakali Association & 2 others (Claim E001 of 2024) [2026] KEMSET 2 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEMSET 2 (KLR) Republic of Kenya In the Micro and Small Enterprises Tribunal Claim E001 of 2024 J.Bett, Chair, R.Katina, Vice Chair & JK Biwott, Member July 3, 2026 Between Joseph Mbogo Claimant and Kamukunji Juakali Association 1st Respondent Joel Mwangi 2nd Respondent Kiragu Macharia 3rd Respondent Ruling 1.The Claimant’s/Applicant’s Notice of Motion application dated 22nd February, 2026 was brought under the provisions of Section 10 of the Magistrates Court Act, Section 63 (e) of the Civil Procedure Act, Order 40 Rule 3 and Order 51of the Civil Procedure Rules, and Article 159(2)(d) of the 2010 Constitution and all the enabling provisions of the law. 2.He sought the following orders:-a.That this Tribunal be pleased to cite the Respondents namely, the management of Kamukunji Jua Kali Association- Tom Ogello-Secretary and Mwaura Thuo (1st Respondent), Joel Mwangi (2nd Respondent), Kiragu Macharia (3rd Respondent) for contempt of Tribunal orders issued on the 3rd October, 2024 in Tribunal Case No. E001 of 2024.b.That this Honorable Tribunal be pleased to commit those management (Tom Ogello-Secretary and Macharia Thuo, Chairman of Kamukunji Jua Kali Association, the 2nd and 3rd Respondents to civil jail and/or impose such penalty as the Tribunal may deem fit, for wilful disobedience of its lawful orders.c.That this Tribunal be pleased to compel immediate compliance with its order issued 3rd October, 2024.d.That costs of this application be provided for. 3.The Claimant/Applicant relied on the following grounds to support his application: -I.That on the 2nd October, 2024, this Honourable Tribunal issued orders in Tribunal case No. E001/2024II.That the Tribunal ordered:a.That the management of the 1st Respondent to fairly and equitably allocate the Claimant with a worksite on renewal of his membership-b.That on request to renew the Claimant’s membership, the same should be done in adherence to the due process without antagonizing the Claimant. 1.In the Supporting Affidavit sworn on 20th February 2026 by Joseph Mbogo, the Claimant/Applicant, he states that on the 30th October, 2024, this Honourable Tribunal delivered its judgment and issued orders in Tribunal Case No. E001/2024.The Tribunal ordered the management of the 1st Respondent to fairly and equitably allocate the Claimant/applicant a worksite upon renewal of his membership. 2.The deponent stated that he duly renewed his membership with the 1st Respondent and paid the required funds. He stated that despite compliance on his part, the Respondents have failed, refused and/or neglected to allocate him a worksite. He deposes that the Respondents have instead continued to frustrate him in violation of the Tribunal orders. 3.He further states that the Respondents are fully aware of the Tribunal orders and were present in court. He states that the Respondents ordered him him to remove his goods that were on worksite earlier. Finally, he deposes the Respondent’s refusal to comply is deliberate, wilful and calculated to defeat the orders of this Tribunal. 4.Both the Claimant and the Respondents filed their written submissions. The Claimant’s submissions is dated 11th June, 2026 and the Respondents’ submissions is dated 12th June, 2026. 5.The Tribunal on a number of occasions, requested the parties to use Alternative Disputes Resolution, but the same did not resolve the outstanding issues and claim by the applicant. At the request of the Claimant/applicant, tribunal allowed the parties to appear in court on the 5th, June, 2026, for hearing of this application, notwithstanding that the same would, as it were, be canvassed by way of submissions. The tribunal, after the hearing of the parties, asked the Claimant and the Respondents to file their respective submissions, on the application, which the applicant urged the tribunal to cite the Respondents for contempt of tribunal’s orders dated 1st August, 2024. 6.The Tribunal has perused the respective parties’ submissions. The tribunal shall proceed to determine whether or not the Respondents may be cited for contempt of its orders. 7.First, this Tribunal should examine and find that it has jurisdiction and power to punish contempt of its own orders. Indeed, what the Act (Micro and Small Enterprises Act, No.55 of 22012, Section 64(2), provides that:-“It shall be an offence for any person to engage in acts or make omissions amounting to contempt of the Tribunal and the Tribunal may punish such person for contempt in accordance with the provisions of this Act.’ 8.For purposes of this application before the Tribunal, the statute specifically grants the Tribunal contempt jurisdiction. 9.The Claimant/applicant, erroneously moved the Tribunal through various sections, orders, rules, the constitution and all other enabling provisions of the law, (See the Notice of Motion). We hasten to state that, though they were the wrong provisions and procedures, we entertained the same through physical hearing and written submissions, simply because the Tribunal was/is keen on the justice of the case rather than procedural technicalities. The Tribunal is well guided to rely less on procedural technicalities. 10.Having so allowed the application in its current format, we now proceed to resolve the issue of whether or not, the deponent has established grounds to find the Respondents are indeed in contempt of the tribunals orders aforesaid. 11.This Tribunal rendered a judgment dated 1st August, 2024, in which it decreed as follows:-a.That the management of the 1st Respondent to fairly and equitably allocate the Claimant with worksite on renewal of his membership,b.That on request to renew the Claimant’s membership, the same should be done in adherence to due process without antagonizing the Claimant. 12.It is the Claimant’s deposition and submission in support of the contempt proceedings against the Respondents that they have refused, failed or neglected to comply with the orders of this Tribunal. 13.On the filing of main claim, the Tribunal was invited/requested by the parties to visit Kamukunji Juakali Assocation and specifically Shade Number 15. The Tribunal visited the shade, heard both the Claimant and Respondents, in the presence of many other members who work within shade 15 and even gave a chance to a number of the other members a chance to air their views, opinions and evidence on the dispute/claim raised by the Claimant before court. Having heard the parties and having been shown the specific site where the Claimant used work from, the Tribunal found out, that shade 15, is an open worksite designed for specific work description, accommodating many juakali artisans that deal with making of metal pans and related work. 14.It was the Claimant’s position that he has a worksite in the shade but contented that he wanted to fence off his space and engage in making of jikos, a new product not authorized by the association for that particular Shade 15. 15.During the site visit, the Tribunal heard from the Respondents. They said they had no problem with the Claimant resuming his work as long as he complies with the constitution of the Juakali in terms of renewing his membership and paying monthly subscription of Kshs.100. The Tribunal urged the parties to use ADR mechanism to resolve the dispute and proceeded to render a judgment as aforesaid. From the Respondents submissions, it is evident that they have consistently denied the allegations by the Claimant. 16.They have jointly and severally welcomed the Claimant back to the membership of Kamukunji Jua Kali Assocation by renewing his membership up to the year 2029. However, the Claimant has refused to pay the monthly subscription of Ksh. 100/=, which he readily admitted in open court during the hearing on the 5th June, 2026. 17.The Claimant submits that the Respondents are in contempt of the Tribunal’s orders and must be cited for the same and committed to civil jail for a period of 6 months and/or alternative of a fine to be imposed by the Tribunal when it deems fit. 18.The Tribunal has perused the application, heard the parties and further perused the submissions by both parties. As alluded earlier, this Tribunal has the jurisdiction to punish for contempt of its orders. What the Tribunal needs to find is evidence of the contempt of its orders. Has the Claimant proved that the contemnors or the Respondents failed to comply with the decree issued by the court on the 1st August, 2024? To answer the question, the Tribunal has seen the annextures in the Supporting affidavit of the Claimant, Joseph Mbogo. 19.It is apparent from the face of record that indeed, the Claimant was re-admitted as a member of Kamukunji Juakali Association by being issued with a membership card number KJA 1540 valid from 20/05/2024 to 20/05/2029. To that extent, the Respondents complied fully with order number one of the decree. Has the Claimant paid the monthly subscription fee of Ksh.100/= as per the decree of this tribunal? From the affidavit in support of the application for contempt of court by the Claimant/Applicant, there is no evidence/annexture to proof that he paid. He equally admitted so during the hearing on the 5th of June 2026. To that extent, he is the one who has failed to comply with the decree and orders of the Tribunal. As a matter of fact, he is the author of his own misfortune. He who comes to Equity must do Equity, or come with clean hands. The Respondents have been consistent about their position on the Claimant. 20.The Tribunal has had the advantage of reading Kamukunji Juakali Association Constitution, which is a document that governs that affairs of the Association. On the constitution and rules, Section 3 provides for Membership and it reads as follows:a.Any person over eighteen years shall be eligible for membership to the society and shall, subject to the approval of the committee, become a member on payment of non-refundable fee of Kshs.5,000/=b.Every member shall pay a monthly subscription of Kshs.100/= not later than the 15th day of each month...c.Any member may be expelled from membership if the committee so recommends and if a general meeting of the society shall resolve by a two-thirds majority of the members present that such member should be expelled on the grounds that his conduct has adversely affected the reputation or dignity of the society, or that he has contravened the provisions of the society. The committee shall have the power to suspend a member from his membership until the next general meeting of the society following such suspension but notwithstanding such suspension a member whose expulsion is proposed shall have the right to address the general meeting at which his expulsion is to be considered…d.Any person who resigns or is removed from membership shall not be entitled to a refund of his subscription or any part thereof or any moneys contributed by him at any time…e.Any member who falls into arrears with his monthly subscription for more than six months shall automatically cease to be a member of the society and his name shall be struck off the register of members. The committee may, however, at its discretion reinstate such member on payment of the total amount of subscription outstanding. 21.The plain reading and interpretation of the above constitution and the sections therewith, presents the Claimant with a clear road map and appreciation as to whether he has complied with the constitution of Kamukunji Jua Kali Association as against his application to cite the Respondents with contempt of the Tribunals orders. The Tribunal finds that the Respondents have not failed to comply with its orders dated 1st August, 2024. On the contrary, the Claimant has failed to follow the orders of the Tribunal on monthly subscription. 22.There is also the other issue on worksite. The Respondents, who are the officials and/or committee members running the affairs of the association have demonstrated both when the Tribunal visited Worksite Shade 15, that they asked the Claimant to resume his work on the space allocated to him by the previous committee members. They testified as such in court, they had several meetings in the associations office and worksite but the Claimant has been adamant and wants to introduce products like making of jikos, not meant/ authorized nor suitable for shade number 15. 23.Contempt of court/tribunal orders is a serious accusation against a party accused of such. The Claimant herein needed to prove:a.That the Order was clear and unambiguous and is binding,b.The Respondent had notice of the order,c.Actual breach of the terms of the orders,d.Deliberate/intentional conduct by the Respondents. 24.In the case of North Tetu Farmers Co.Ltd vs Joseph Nderitu Wanjohi, the court stated that the standard of prove must be ‘higher than the balance probability, almost but not exactly beyond reasonable doubt.’ 25.This Tribunal was approached by way of NOTICE OF MOTION, however in rendering our ruling, we have considered the fact some aspects of the application were canvassed by oral evidence, so that quite apart from contempt of court proceedings, we shall proceed to look keenly at the justice of this application. Taking into consideration the above, the Tribunal hereby dismisses the Claimant’s Notice of Motion application dated and filed on 20th February 2026 as the same was not merited. 26.The Claimant is ordered to pay the monthly subscription of Kshs.100/= forthwith and event before the 15th July 2026, failure to which his membership is terminated by operation of Kamukunji Jua Kali Assocation Constitution on Membership. 27.Upon compliance of the above subscription, the Claimant is allowed to the worksite on Shade 15, with strict adherence to the associations existing structures and mode of running business according to its rules without introducing products not suitable or meant for Shade 15. 28.Each party to meet its own costs. 29.It is so ordered. DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JULY, 2026.HON. DR. J. BETT - [CHAIRMAN]HON. R. KATINA - [VICE-CHAIR]HON. J K BIWOTT - [MEMBER]Judgement delivered virtually in the presence of:Mr. Joseph Mbogo, ClaimantMr. Tom Ogello, Secretary to the RespondentMr. Isaac Kapelikinei, Tribunal Assistant