[2019] KECPT 24 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

CASE NO.361 OF 2015

MSL SAVINGS AND CREDIT

CO-OPERATIVE SOCIETY ...................................................CLAIMANT

VERSUS

MIGORI TEACHERS SAVINGS AND

CREDIT SOCIETY LIMITED..................................................RESPONDENT

PROCEEDINGS

12/6/2015

Certificate of urgency, Notice of Motion, Supporting Affidavit, Statement of claim and verifying Affidavit dated 12/6/2015 filed by Ndungu Karanja & Company Advocate.

Signed

M. T. Kariuki

Chairman

24/06/2015

Before:

M. T. Kariuki - Chairman

(In Chambers)

Bring for orders

Order:

I have read the application dated 12th June 2015 brought under a certificate of urgency. I find no urgency in the matter and direct that the same be served and a hearing date be fixed in the registry.

Signed

M. T. Kariuki

Chairman

28/9/2015

Certificate of urgency dated 25th September 2015 filed by Ndungu Karanja & Company Advocate.

Signed

A. Ithuku

Chairman

28/9/2015

ITHUKU A. K. – Ag Chairman

Order: I have read the application dated 12/6/2015 and certificate of urgency filed on 28/9/2015. I note that on 24/9/2015, the application was ordered to be served upon the Respondents. There is no evidence of her serving. The circumstances have not changed. The Claimant is directed to serve this application and fix the date for hearing in the registry.

Signed

A. Ithuku

Chairman

28/9/2015

Later at 3. 30

Ms. Kiiru for Claimant. The application is urgent.

Signed

A. Ithuku

Chairman

Court: Hearing on 16/10/2015. Notice to issue.

Signed

A. Ithuku

Chairman

28/9/2015

16/10/2015

Before:

Alex Ithuku - Chairman

Nerea Obura - Court clerk

Ms. Kiiru: I am for Applicant

Mr. Getange for Respondent

Mr. Getange: I was instructed on 13/10/2015. I filed my replying affidavit yesterday. I was unable to serve on time for that reason I pray for adjournment. I pray for another and the date.

Signed

A. Ithuku

Chairman

Ms Kiiru:We served the Respondents on 2/10/2015. I will need time to go through the affidavit. I would pray for orders in terms of prayer no. 2. The Respondent had not acted in good faith.

Signed

A. Ithuku

Chairman

Mr. Getange: We have put in a Preliminary Objection. The prayer is not sustainable in law. The agreement they seek to enforce is statute based. No order can be issued to enforce such agreement. Nothing is urgent. It has been in existence since 2008.

Signed

A. Ithuku

Chairman

Ms Kiiru: The cause of action is not out of the agreement. It is as a result of breach of trust. The Respondent is trying to dispose of the shares.

Court: I note the application by Mr. Getange, who has come on record. He has come to court late. The Respondents were served in good time. It is just that they be given their day in court. The Claimants have asked for leave to file a supplementary affidavit if necessary. It is granted. On the issue of prayer No. 2, I find that the subject of this suit should be preserved. It the shares are sold then substratum of the suit may be lost. I note that the share certificate is not annexed. The best I can do is to restrain the Respondent from disposing or dealing with the shares that are subject of the sale against referred to in the agreement. Hearing on 19/11/2015.

Signed

A. Ithuku

Chairman

Mr. Gitonga: I pray for leave to file supplementary affidavit.

Signed

A. Ithuku

Chairman

Court: Leave granted.

Signed

A. Ithuku

Chairman

16/10/2019

19/11/2015

Before:

Alex Ithuku - Chairman

Elizabeth Nyaberi - Court clerk

Ms Kiiru: I am for Applicant. We have not filed a further affidavit. We pray for more time. I can take another date.

Mr. Getange is absent.

Signed

A. Ithuku

Chairman

Court: Mr. Getange walks in.

Signed

A. Ithuku

Chairman

Mr. Getange: In my view, the application is spent. We can hear the Preliminary Objection. The order can remain.

Signed

A. Ithuku

Chairman

19/11/2015

5/02/2016

Bwoigara Getange Advocates takes an ex-parte application hearing date on 5/4/2016.

5. 4.2016

ITHUKU A. K. CHAIRMAN

Mr. Getange: I am for Claimant. Ms Kiiru for Respondent. I am ready to proceed.

Signed

A. Ithuku

Chairman

Ms Kiiru: There is a Preliminary Objection raised. We can proceed.

Signed

A. Ithuku

Chairman

Court: Matter to proceed on the Preliminary Objection.

Signed

A. Ithuku

Chairman

5/4/2016

Mr. Getange: I propose that we file submissions on the Preliminary Objection. I will file mine in 10 days.

Signed

A. Ithuku

Chairman

Ms Kiiru:That’s okay.

Signed

A. Ithuku

Chairman

Court: Parties to file written submissions. Mention on 27/4/2016.

Signed

A. Ithuku

Chairman

27/4/2016

Before:

Alex Ithuku - Chairman

D. Mosongo - Court clerk

Mr. Getange: I am for Respondent. Ms Kiiru for Claimant. I have been unable to file submissions. I was bereaved. I seek more time. 10 days.

Signed

A. Ithuku

Chairman

Ms. Kiiru:that’s okay.

Court: Mention on 24/5/2016. To file submissions.

Signed

A. Ithuku

Chairman

27/4/2016

24/5/2016

Before:

Alex Ithuku - Chairman

C. Kithinji - Deputy Chairman

Evans Njau - Court clerk

Mr. Getange for the Respondent.

Mr. Muka holding brief for Ms Kiiru for the Claimant.

Mention is to confirm filing of submissions on the Preliminary Objection.We requested further time. On our part we needed time since we were to file upon service. We were served on 19/5/2016. We request 14 days to enable us file our submissions.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange:That is the position. We filed on 19/5/2016 and the Tribunal was not sitting from 9/5/2016 – 16/5/2016. The matter is very urgent and needs to be disposed as my client is being affected. We served them on 19/5/2016. They can be given 10 days. We request a date to highlight the submissions – 29/6/2016 is convenient.

Signed

C. Kithinji

Deputy Chairman

Ms Muka: It is convenient.

Signed

C. Kithinji

Deputy Chairman

Court: Mention on 29/6/2016 for purpose of confirming filing of submissions and highlighting the same.

Signed

C. Kithinji

Deputy Chairman

24/5/2016

29/6/2016

Before:

C. Kithinji - Deputy Chairman

F. Odhiambo - Member

S. Irea - Member

D. Mosongo - Court clerk

Mr. Onyango: I have been requested by Mr. Getange to hold his brief. He appears for the Respondent.

Signed

C. Kithinji

Deputy Chairman

Ms. Kiiru: I do appear for the Claimant/Respondent. Mention is for submissions. We are yet to file and request 14 days to enable us file.

Signed

C. Kithinji

Deputy Chairman

Mr. Onyango: My instructions are that Mr. Getange was requesting time allocation for 11. 00 a.m. We do not oppose the application.

Signed

C. Kithinji

Deputy Chairman

Court: Claimant granted time to file their submissions by 5/7/2016. Ruling on 29/7/2016.

Signed

C. Kithinji

Deputy Chairman

29/6/2016

11/8/2016

Jack Ngedi for Ndungu Karanja for Plaintiff Nick for Bwoigara for Respondent. By consent Hearing fixed for 26/9/2016 at 9. 00 a.m.

26/9/2019

Before:

C. Kithinji - Deputy Chairman

Ken Oduor - Court clerk

Ms Kiiru: I am for the Claimant. Mr. Getange is present for the Respondent. Mention is for directions on application dated 12/6/2015. We suggest to proceed by way of written submissions in 14 days of service.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: I am agreeable. We will require three weeks to put in a response upon service.

Court: Mention on 4/11/2016 to confirm filing of submissions.

Signed

C. Kithinji

Deputy Chairman

29/9/2016

4/11/2016

Before:

C. Kithinji - Deputy Chairman

Nereah Obura - Court clerk

Claimant Absent

Respondent Absent

No representation.

Stood over generally.

Signed

C. Kithinji

Deputy Chairman

Ms Nyaga: They request file be placed aside as they are in the process of filing submissions.

Signed

C. Kithinji

Deputy Chairman

Court: Mention on 11/11/2016. Notice to issue.

Signed

C. Kithinji

Deputy Chairman

4/11/2016

11/11/2016

Before:

A. Ithuku - Chairman

Nereah Obura - Court clerk

Ms Kiiru: I am for Claimant. Mr. Getange present for Respondent.

Signed

A. Ithuku

Chairman

Mr. Getange: I was served on 4/11/2016 with Claimant’s submissions. I need time to file mine. Previous orders were issued on 9/11/2015. The Respondent was restrained from dealing and transferring the shares. This application is spent. My client has complied. In view of that, this application serves no purpose. Matter should go for full hearing.

Signed

A. Ithuku

Chairman

11/11/2016

Ms Kiiru: We are seeking injunction against all share held by the applicant. They have been split. The orders in place are in respect of 61,000/= shares. Application should proceed. Our position is that all shares in Co-op Holdings should be restrained.

Signed

A. Ithuku

Chairman

Court: Submissions to be filed. Highlights on 25/1/2017.

Signed

A. Ithuku

Chairman

11/11/2016

25/1/2017

Before:

A. Ithuku - Chairman

C. Kithinji - Deputy Chairman

R. Mwambura - Member

D. Mosongo - Court clerk

Mr. Ndiso: I am holding brief for Getange

Ms Kiilu: For Claimant.

Mr. Ndiso: I have instructions to apply for adjournment. He filed his submissions.

Signed

A. Ithuku

Chairman

Ms Kiilu: I need time to file submissions.

Signed

A. Ithuku

Chairman

Court: Ruling on 28/3/2017.

Signed

A. Ithuku

Chairman

25/1/2017

3/7/2017

Certificate of urgency, Notice of Motion, Supporting Affidavit filed by Ndungu Karanja & company Advocates.

Signed

C. Kithinji

Deputy Chairman

3/7/2017

3/7/2017

Before:

C. Kithinji - Deputy Chairman

Court clerk - Ken Oduor

Ms Kiiru: for the Applicant/Claimant. We are seeking variation of the orders issued on 20/5/2017. The orders prohibited the Respondent from dealing with 61245 shares in Coop Holdings. We wish to add other benefit including share dividend of bonuses. The order sought was not specific. The issues were issued inter parte. We had sought dividends. We may be prejudiced if the additional benefits are not captured. The monies will be dispersed to shareholders on 30th June 2017, starting. We need to secure the same. They have previous gone to collect shares.

Signed

C. Kithinji

Deputy Chairman

Court: The application is noted. A temporary injunction is hereby issued against the Respondent dealing in the benefit accruing from the 61,245 shares the subject of litigation herein pending the hearing and determination of the current application. To be served for hearing on 18/7/2017.

Signed

C. Kithinji

Deputy Chairman

3. 7.2018

18/7/2017

Before:

C. Kithinji - Deputy Chairman

F. F. Odhiambo - Member

P. Swanya - Member

C. Maina - Court clerk

Mr. Kiiru for the Applicant

Signed

C. Kithinji

Deputy Chairman

Mr. Boha holding brief for Mr. Getange for the Respondent.

Signed

C. Kithinji

Deputy Chairman

Ms Kiiru:The Application dated 20/6/2017 comes up. The Respondent is yet to put in a response

Signed

C. Kithinji

Deputy Chairman

Mr. Boha: Mr. Getange requests 14 days to response. He requests a mention date.

Signed

C. Kithinji

Deputy Chairman

Mr. Kiiru: They were served on 6/7/2017 – 11 days ago. If indulged they should get only seven days. We request corresponding leave.

Signed

C. Kithinji

Deputy Chairman

Court: Each party allowed seven days to file and serve. Respondent to respond and Claimant’s corresponding leave. Hearing on 31/7/2017.

Signed

C. Kithinji

Deputy Chairman

18/7/2017

31/7/2017

Before:

C. Kithinji - Deputy Chairman

Ken Oduor - Court clerk

Mr. Maitha holding brief for Ms. Kiiru for the Claimant.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange:For the Respondent. It is the Claimant’s application dated 30/6/2017 coming up. We have our Reply. They sought to file a further affidavit.

Signed

C. Kithinji

Deputy Chairman

Mr. Maitha:Ms Kiiru was seeking time allocation. She was ready to proceed. We seek leave to file a further affidavit.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: They had seven days to file. Time has lapsed. There is an order that has transferred my client’s dividends. We can take directions to expedite disposal. We can proceed by way of written submissions within 14 days each. We can take a date before the full bench. I also pray in regard to orders of 5/7/2017, my client holds over 10 million shares. The dividends are a package and are now attached. Only those accruing from 61,245 shares are affected. The Tribunal can order that my client is paid the other dividends. The order is very clear. Other dividends should be paid as we prosecute this matter so that my client does not suffer.

Signed

C. Kithinji

Deputy Chairman

Mr. Maitha: Our seven days have not lapsed as we were served on 25/7/2017. On the other shares, that’s part of the main application. We have sought to amend the statement of claim to bring in 10 million shares as part of the claim. They should all be subject of claim. They cannot be set aside from the main body of shares.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange:The subject of ligation is 61,245 shares. Our issue is on the balance.

Signed

C. Kithinji

Deputy Chairman

Court:Timelines given here to be obeyed. Parties to file written submissions within 14 days each on reply to expedite the disposal of the application.

The order is very clear on which shares and dividends it refers. Coop Holdings is not a party in this matter and so if they are acting contrary to the orders then the issue needs to be specifically addressed with notice to them.

Mention on 7/9/2017.

Signed

C. Kithinji

Deputy Chairman

31. 7.19

7/9/2017

Before:

A. Ithuku - Chairman

C. Kithinji - Deputy Chairman

F. F. Odhiambo - Member

Evans Njau - Court clerk

Mr. Ochieng: I am holding brief for Njau for Claimant.

Mr. Getange: I am for Respondent.

Mr. OChieng: Ms Njau has not filed her submissions. She asks for 2 weeks.

Signed

A. Ithuku

Chairman

Mr. Getange: Submissions not filed. My clients are being frustrated.

Signed

A. Ithuku

Chairman

Order: Mention on 22/9/2017.

Signed

A. Ithuku

Chairman

7. 9.17

22/9/2017

Before:

C. Kithinji - Deputy Chairman

D. Mosongo - Court Clerk

Mr. Getange for the Respondents

Mr. Kimathi holding brief for Ms Kiiru for the Claimant. She has filed and requests for a ruling date.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: We can get a ruling date. We also have filed.

Signed

C. Kithinji

Deputy Chairman

Court: Ruling on 29/10/2017.

Signed

C. Kithinji

Deputy Chairman

5/10/2017

Before:

C. Kithinji - Deputy Chairman

J. Karimi - Court Clerk

Mr. Mutua for the intended Interested Party. Coming up is the Notice of Motion dated 4/10/2017. We are seeking to be joined as interested parties. We seek clarification on orders of 3/5/2017 and 5/7/2017. There is a demand for release of dividends by the Respondent. There are restraining orders on any dealings with 61,245 shares subject of litigation in this matter.

Signed

C. Kithinji

Deputy Chairman

5/10/2017

Court:Application is certified urgent. To be served for hearing on 18/10/2017.

Signed

C. Kithinji

Deputy Chairman

5. 10. 17

18/10/2017

Before:

A. Ithuku - Chairman

C. Kithinji - Deputy Chairman

P. Swanya - Member

R. Leweri - Court clerk

Mr. Getange: I am for Respondent.

Mr. Kariuki: For proposed interested party.

Mr. Orina: For Claimant.

Mr. Getange: I have not filed our response. There is another application by Claimant whose ruling is coming on 24/10/2017. I propose that we await the ruling. He is not a party. I pray that application here be mentioned after the Ruling.

Signed

A. Ithuku

Chairman

18/10/2017

Mr. Kariuki: We are willing to await the ruling of the court on 24/10/2017.

Signed

A. Ithuku

Chairman

Order: By consent application dated 4/10/2017 to await ruling to be delivered on 24/10/2017.

Signed

A. Ithuku

Chairman

18/10/2017

Mr. Orina: The Claimant is being represented by a firm whose proprietor died. We need more time.

Signed

A. Ithuku

Chairman

18/10/2017

Order: Ruling on 24/10/2017 for the application dated 30/6/2017.

Signed

A. Ithuku

Chairman

18/10/2017

24/10/2017

Before:

C. Kithinji - Deputy Chairman

F. Odhiambo - Member

P. Swanya - Member

R. Leweri - Court clerk

Mr. Kabogo holding brief for Ms Kiiru for the Claimant and Mr. Mutua for the proposed 3rd party.

Mr. Murithi: I am holding brief for Mr. Getange for the Respondent.

Signed

C. Kithinji

Deputy Chairman

Court: Ruling not ready. To be delivered on 14/11/2017.

Signed

C. Kithinji

Deputy Chairman

24/10/2017

14/11/2017

Before:

C. Kithinji - Deputy Chairman

F. Odhiambo - Member

P. Swanya - Member

Mr. Muturi Njoroge holding brief for Kabugu for the Claimant

Mr. Mugambi holding brief for Mr. Getange for the Respondent

Mr. Kariuki for the Proposed Interested party

Court clerk - R. Leweri

Signed

C. Kithinji

Deputy Chairman

14/11/2017

Court: Hearing of the Interested Parties application on 11/12/2019.

Directions be taken on issues arising.

Signed

C. Kithinji

Deputy Chairman

14/11/2017

11/12/2017

Before:

C. Kithinji - Deputy Chairman

H. Shidiye - Member

P. Swanya - Member

R. Leweri - Court clerk

Mr. Mugambi holding brief for Mr. Kabogo for the Claimant.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange:I am for the Respondent.

Signed

C. Kithinji

Deputy Chairman

Mr. Kariuki for the Interested Party.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: It is the Interested Party’s application dated 4/10/2017. We were not able to file our response. I sent it to my client. He was out of state. I request time. I will file in 2 weeks. We can take a mention date. We can dispose of the application by way of written submissions. The Claimant is not opposed to the application. I can file after two weeks subsequent to the response.

Signed

C. Kithinji

Deputy Chairman

Mr. Kariuki: It’s over 2 months since we filed. It is a simple application for interpretation. We can indulge them.

Signed

C. Kithinji

Deputy Chairman

Mr. Mugambi:My instructions are to seek time to file a response.

Signed

C. Kithinji

Deputy Chairman

Court:Leave granted to file and serve/response. Mention on 19/01/2018.

Signed

C. Kithinji

Deputy Chairman

11/12/2017

19/1/2018

Before:

A. Ithuku - Chairman

D. Mosongo - Court clerk

Mr. Njenga: I am holding brief for Kabugu for Claimant. I ask for further mention date. The other side is absent.

Signed

A. Ithuku

Chairman

Order: Mention on 1/3/2018. Notice to issue.

Signed

A. Ithuku

Chairman

22/1/2018

01/03/2018

Before:

C. Kithinji - Deputy Chairman

R. Mwambura - Member

H. Shidiye - Member

R. Leweri - Court clerk

Mr. Njenga holding brief for Mr. Kabugu for the Claimant.

Signed

C. Kithinji

Deputy Chairman

Mr. Muriuki holding brief for Mr. Getange for the Respondent.

Mr. Kariuki for the Interested Party.

Signed

C. Kithinji

Deputy Chairman

Mr. Muriuki: My instructions are that Mr. Getange is on his way, file be placed aside.

Signed

C. Kithinji

Deputy Chairman

Later

Quorum as before

Mr. Getange for the Respondent: We filed our response to the Interested Parties application dated 4/10/2017.

Signed

C. Kithinji

Deputy Chairman

Mr. Njenga: There is the order of 15/11/2017 which deals with the Interested Parties’ application. We have no objection to their application.

Mr. Kariuki: We can take directions on the application.

Signed

C. Kithinji

Deputy Chairman

Court: Parties to file written submissions within 14 days each. Mention on 6/4/2018.

Signed

C. Kithinji

Deputy Chairman

06/04/2018

Before:

Alex Ithuku - Chairman

C. Maina - Court clerk

Mr. Kemunto: I am holding brief for Kariuki for proposed Interested Party.

Mr. Getange: I am for Respondent.

Ms Njenga: I am for Respondent.

Signed

A. Ithuku

Chairman

Mr. Getange: I request for 7 days to file my submissions.

Signed

A. Ithuku

Chairman

Order: Leave granted. Ruling on 7/6/2018.

Signed

A. Ithuku

Chairman

6/4/2018

10/7/2018

Fridah for Getange & Company Advocates. Hearing fixed ex parte for 5/9/2018 at 9. 00 a.m. to serve Claimants

5/9/2018

Before:

C. Kithinji - Deputy Chairman

N. Kitiwa - Member

P. Swanya - Member

R. Leweri - Court clerk

Mr. Nganga for Claimant

Signed

C. Kithinji

Deputy Chairman

Mr. Getange for Respondent.

Signed

C. Kithinji

Deputy Chairman

Mr. Mwenesi holding brief for Mr. Kariuki for Interested Party.

Signed

C. Kithinji

Deputy Chairman

Mr. Nganga: We were ready to proceed. No documents have been served by the Respondent and the Interested Party. We are not ready to proceed with hearing.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: There are no documents and/or list of Documents filed by Claimant. On our part we have filed documents and statements.

We today filed a supplementary list. I am ready.

Signed

C. Kithinji

Deputy Chairman

Mr. Mwenesi: The Interested Party has no objection to the proceeding and will not be filing any documents.

Signed

C. Kithinji

Deputy Chairman

Mr. Nganga: We request time to file documents and statements.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: We took the date. The Claimants have orders that are suffocating my client. The Claimant has not shown interest in this matter. The Counsel is now serving me with documents. The never intended to prosecute this case.

If adjournment is allowed we pray for an early date. My client’s operations are affected. I pray for costs for time and Chairman of the Respondent being 12,100/=.

Signed

C. Kithinji

Deputy Chairman

Order: Both parties are filing documents today. The matter is thus not ready. The lists and documents filed today are deemed as properly filed. Hearing on 13/12/2018. Parties bear own costs for today.

Signed

C. Kithinji

Deputy Chairman

Mr. Getange: I pray for summons to County Co-operative Officer, Migori.

Signed

C. Kithinji

Deputy Chairman

Order: Summons to Co-operative Officer declined by virtue of their office.

Signed

C. Kithinji

Deputy Chairman

5/9/2018

13/12/2018

Before:

C. Kithinji - Deputy Chairman

P. Swanya - Member

R. Leweri - Member

Mr. Nganga for Defendant

Mr. Maseroni holding brief for Getange for Respondent.

Order: This is a fresh matter. I am on transfer. I am not taking up fresh matters. Hearing on 18/3/2019.

Signed

C. Kithinji

Deputy Chairman

13/12/2018

10/4/2019

Dickson for Kabuku & Co. Advocates, Farida for Getange & Company by consent take a hearing date for 6/5/2019. To serve the Interested Party.

6/5/2019

Before:

Hon. B. M. Kimemia - Chairman

P. Swanya - Member

R. Mwambura - Member

C. Maina - Court clerk

Mwenesi holding brief for Kariuki for Interested Party

Mr. Kabugu Advocate with Mr. Kega for Claimant

Getange Advocate for Respondent. I consulted Mr. Kabugu and myself. We are ready to proceed. We each have 1 witness in Court. Mwenesi Advocates, Mr. Kariuki is not ready to proceed, he is held up before Hon. J. Gacheru in ELC 11/2019 at Thika for hearing of Application.

Kabugu Advocate: I leave the application to Court.

Getange Advocate: I object to the application. The matter has come up on several occasions and has not proceeded.

The Claimant had obtained orders injuncting my client from receiving dividends. My Client’s operations have been grounded. The balance of convenience prejudices my client. The society has 207 members. Mr. Kariuki should have sent a representative. The matter does not touch him. It’s between the Claimant and Respondent and Interested Party is to confirm the amount. The Claimant is in court from Migori and has travelled all the way. I pray for the application be denied. I pray to proceed. If adjournment is granted, I pray for costs of travel for my client, that is, Kshs.10, 000/=

Mwenesi Advocate holding brief for Kariuki for Interested Party:

The date was taken without the participation of Mr. Kariuki. Justice will require input of all the parties to make an informed decision.

On costs, Kshs.10, 000/= is not reasonable but I leave the decision to court.

Kabugu Advocates: On the documents, the Interested Party was enjoined by the court suo motu as a necessary party in the proceedings. The Interested Party should have filed their documents if any and their application if granted should be marked as a final adjournment. The court can give further time for Interested Party to file any documents/witness statements.

Getange Advocates: The documents are already on record. They will only require highlighting on the shares sale. They should not hold us back for not filing any documents.

Court: The Interested Party granted 14 days to file witness statements and/or documents they may require in the matter. The final adjournment is granted to the Interested Party and in this instance, parties are ordered to avail their witness on the next hearing date.

Proceedings to be typed urgently to enable us to comprehend the earlier proceedings. Costs of the witness in the cause too.

For today, Interested Party to pay Court Adjournment Fee.

Hearing on 10/7/2019.

Signed

Hon.B. M. Kimemia

Chairman

20. 08. 19

Before:

Hon.B. M. Kimemia - Chairman

P. Swanya - Member

R. Mwambura - Member

C. Maina - Court clerk

Getange Advocate for Respondent

Kariuki for Interested Party

Kabugu Advocate for Claimant- Matter is for hearing, I have 2 witnesses ready. I will take 15 minutes each.

Getange Advocate for Respondent- I am ready- 3 witnesses. The documents were filed after close of pleadings ( witnesses statements and documents ). On 9. 7.19 there was no indication of the same.

We pray for the said documents be expunged from the records.

Kariuki advocate for Interested Party- We were served yesterday at 4p.m. The Claimant had not indicated that they were to file, we pray for documents be expunged. I have 1 witness ready.

Kabugu Advocate - The Respondent filed a witness statement of David Mwenda of 21. 6.2019 after close of pleadings. The Interested Party filed on 4. 7.2019 out of time. If they have a problem, then we expunge all the documents filed out of time. I filed witness statement to respond to issues raised by the said witness statement and documents.

Order- All documents and witness statement filed up to today are hereby marked as properly on record.

Matter to proceed at 2p.m.

Signed

Hon. B. Kimemia

Chairman

20. 8.2019.

2. 3.0p.m

Kabugu advocate for Claimants

Getange advocate for Respondents

Kariuki advocate for Interested Party.

Claimants Case

Cw1 Adult Male Christian Sworn In English States in English

Paul Mwangi Chairman MSL Sacco based in Nairobi.

Witness statement dated 28. 8.2018 filed 5. 9.18, I confirm that is my witness statement and there is a list of documents filed on 5. 9.18 with 18 documents from pg.1-pg.52. – Exhibit 1bundle of documents filed on 5. 9.18. In 2008 Co-operative Bank was entering at Nairobi Stock Exchange and the Claimant wanted to buy shares and bought shares from Respondents. We did a share sale agreement- page 13 of bundle. It was executed by Kamotho Maiyo and Mbatia Advocates and we did agree total value Kshs. 6,926, 685/-. Total shares 61245 Co-operative Shares per value 100.

They were identified as per share certificates as listed. MSL were given shares transfer from page 26 of bundle duly signed and sealed.

They said the Share Certificates were lost but gave us indemnity and letter from Co-operative Bank page 27 and 28.

Page 28 Letter from Co-operative Bank dated 3. 9.2008.

A letter of Indemnity- page 29, signed by Chair, Vice, Secretary of Migori Teachers Sacco dated 1. 9.2008.

Statutory loss declaration issued by Company Secretary Co-operative Bank dated 1. 9.2008. We verified the Registration Certificate of Migori Teachers page 31 of bundle.

Power of Attorney was provided dated 1. 9.2008 signed by the officials. Having sold the shares, they gave us the Power of Attorney as we awaited the transfer as it was being listed. We were to take up the Shares. Power of Attorney refers to the total shares dated 1. 9.2008, signed, sealed and executed/registered by Registrar of Documents on 10. 11. 2008.

We in exchange prepared bankers cheque in favour of Migori Teachers Sacco through our advocates and they were received. Banker’s cheque dated 3. 9.2008. That was the date of the transfer.

Our advocates conducted due diligence as per records of 2007 of members in office.

We therefore established there was Executive Committee Meeting held on 8. 7.2008. There was also Annual General Meeting of 7. 6.2008, in attendance Committee members.

Minutes of Annual General Meeting showing the issue of shares under minutes 5. 6.2008- Society Sale of Shares. “Members resolved to sell......” proposed by Otieno Ochieng and another.

The minutes are signed page 6 to 9 of bundle of documents.

Extract of Executive Committee Meeting held on 8. 7.2008 signed by the officials of the Sacco.

There were 2 meetings which we saw and confirmed.

We confirmed the identity cards and copies- Peter Wadeya Odero Jairus Omiti, Paul Owour, Eunice Juma - identity’s page 32-36 of bundle.

All the documents were given to us by Migori Teachers Sacco. We then presented the shares for transfer but since they were going through the process of listing, they were deferred.

Migori did not honour the requirement to give us the Share Certificates after replacement after Indemnity.

Copies of registered financial statements from 2007 to 2014 December page 36-39 of bundle. By 31. 12. 2007, the Co-operative Shares were in their books of account but after December 2008, they struck them out of their list of assets – 6,124,500/=.

They removed them since they had sold them to us.

We engaged them before filing suit. We held a tripartite meeting between us, Respondent and Co-operative Bank Banking relations.

Minutes of meeting duly page 44-49 bundle of documents signed on 25. 3.2015 at Boardroom Co-operative Bank. They conceded that we had bought shares from their former officials.

We do not understand why they failed to transfer. I wish to produce the Bundle of documents filed on 5. 9.2008- (Claimant Exhibit 1 (18 documents).

We therefore pray for our shares, we pray for the original share certificates.

That is all.

Cross Examined By Getange Advocate for Respondent

- I am the Chairman MSL since 2010 elected.

- I was a member in 2008 and I was involved as a member of MSL.

- I do not know how the sale intention was established. Annual General Meeting of 7. 6.2018.

- I do not know the context under which the sale of shares was done.

- Notice of Annual General Meeting should have date, Agenda and Venue. I was not a member of Migori Teachers Sacco so I would not know of the Notice- list of documents filed 7. 11. 2011 page 1 (by Respondent ) minutes, there is no specific Agenda for the sale of Shares.

- Minutes 5. 6.08 Otieno proposed I am not aware of his witness statement.

- There were no original Share Certificates; we did not see even copies.

- Letter dated 3. 9.page 28.

- The agreement was released after confirmation by the Bank. MSL was dealing with 4 Bonafide officials who signed.

- We did not meet the Board.

- By 2008, there was no requirement to inform the Commissioner of Co-operatives approval. Now there are rules after listing. The By-Laws were thereafter amended.

- We worked with the Rules set by the Co-operative Bank.

- There was no requirement to inform commissioner of Co-operative by then (2008) page 4 (Claimant Exhibit 1)- Executive Committee the discussed and agreed as was resolved in the Annual General Meeting Resolution. The members framed resolution at Annual General Meeting to sell the shares.

- The Executive Committee cannot vary/ review resolution of Annual General Meeting.

- It was a private meeting which we could not have attended since we were not invited.

- Co-operative holdings wrote to (Respondent) them in 2012. I do not know of their response. I would not know of Board written minutes,

- We involved Co-operative Bank; Co-operatives Holdings was not in existence.

- Forms of transfer were filled. It was issued by Co-operative Bank. It has no stamp of Co-operative Bank. The document could not be availed since the original share certificates were not availed.

- Our members agreed and budgeted for the sale of shares. The Bank was not dictating the prices then. We did not fix the price. The commission was payable to bank on the point of transfer.

- The practice now since 2011 (after amendment of By Laws) you are required to pay first.

- Page 21 paragraph 12- Dispute Resolution – “if shares are not transferred plus interest of 20% per annum from date of receiving purchase price.”

- We first wanted our shares transferred; we did not invoke that clause.

- In the agreement, we bought shares plus benefits arising thereof. I am not aware of a clause for specific performance.

- Resolution from MSL Sacco, I do not remember presenting the same.

- It’s not true the Executive Committees of both Respondent and Claimants colluded to defraud the 2 Saccos.

- We have previous engagements to resolve the dispute before filing suit. When we could not resolve, we filed.

- We are aware the shares have been acquiring dividends.

- We paid Migori Teachers Sacco. There was no fraud on our part.

- Page 46 Minutes of Co-operative Bank line 4. The Chairman of Migori Teachers Sacco raised the issue, that was their internal issue, the money was paid to Migori Teachers Sacco.

- The foundation was not fraudulent, we pay the Sacco.

- Statements of Accounts were obtained from Commissioner of Co-operatives. The original is certified. We did not attach the request letter. The documents are extracts.

- That is all.

Cross Examined By Kariuki Advocate for Interested Party

- The shares were not listed; we got the value from open market. We did not have a valuation report.

- There was no share certificate provided by the Bank.

- Power of Attorney – we presented it with transfer, there were no share certificates.

The Bankers Cheques were to Migori Teachers Sacco for shares held at Co-operative Bank.

The Bank could not get its commission unless the transfer was completed.

- The Bank was not listed then. We only involved the Bank at the point of transfer.

- We did not have the Share Certificates.

- Dividends were paid, we prayed for them to be held. They cannot be paid because they are in dispute.

- Minutes 25. 3.2015- There was a dispute between the parties, we involved the Bank to try resolve the dispute.

- Prayers – transfer and Bonus.

- we cannot pay stamp duty before approval by Bank.

- The Bank can only effect transfer on presentation of documents.

Re Examination

- We paid Kshs.6, 920,685/- for - 61,245 shares- share agreement. Total price for all the shares as negotiated was Kshs.113 per share.

- We made the offer to purchase; they made an offer to sell. We learnt of the sale from Annual General Meeting. The value was 100/= per share. We offered 113/= as per resolutions of members. We involved the Bank at point of transfer and validity of loss.

- Page 28 letter 3. 9.2008- By Co-operative Bank signed by Oquory for Shares Registrar to Migori Teachers Sacco- Indemnity form for loss of Shares-

“We confirm having received statutory declaration........”

- Co-operative Bank was aware of the transfer.

- Commissioner of Co-operatives was the duty of seller to inform. Page 5 minutes - we were not invited, it was a meeting of Migori Teachers Sacco- on 7. 6.2008. Transfer 9/2008- 3 months before transfer, resolutions to sell shares- The minutes were provided by officials of Migori Teachers Sacco as Part of documents required.

- In attendance (1) PCO Zephaniah Osok”

(2) Manager Co-operative Bank

(3) Knut Chair

(4) DCO- Rongo Monda D

(5) DCA

......etc........

We had no reason to believe they were not involved. Minutes signed and stamped by District Co-operative Officer Migori.

Tripartite Minutes Meeting by 3 parties- Page 45 Paragraph 2

“Funds benefited individuals”

By Chairman Migori Teachers Sacco – in context of Sacco Internal issues

“In the year 2012. ..............balance could .......MTS did not set to disenfranchise the MSL,

They were short of money”

Balance of cheque to Migori Teachers Sacco. It was received and acknowledged. We had no role to know what they did with the money.

Prior to purchase, there was Annual General Meeting, there were Resolutions, members contributed and decided to buy the shares.

Documents lodged with Co-operative on 3. 10. 2008, Letter dated 29. 10. 2008. Page 1 – supplementary list of documents.

Share Registrar led to Re- purchase of shares received on 29. 10. 2008

Documentation of purchase of shares for 3 transfers including Migori Teachers Sacco....... (1)...............................

(2) Certified Statutory declaration forms...............”

(3) Share Purchase agreement

(4) Annual General Meeting Minutes trans putted to Co-operative Bank.

2 transfers were done for Kimute and Rupa Sacco. The said Shares were transferred.

Because of the 2 transfers, we gave the documents as were required. The Migori Teachers Sacco did not go through due to lack of Original Share Certificates.

Letters Respondent’s list of documents page 11, dated 2. 4.12 from Co-operatives Holdings

Co-operative Society to Migori Teachers Sacco, by Fredrick Ndegwa Manager,

CC- Company Secretary, Shares Registrar Migori Branch

“RE: Sale of 6124500 Co-operative Holdings Co-operative Society Shares.”.

“........- to complete the transfer to enable completion of transfer. “

7. 6.08- I was not in the meeting

I was member of MSL Sacco hence my involvement. I attended all the meetings. I contributed personally Kshs. 4 Million.

That is all.

Order- It is now 4. 40p.m. Matter adjourned by the Tribunal due to time.

By consent further hearing: 11. 9.2019 and 12. 9.2019 at Nakuru.

Signed

Hon. B. Kimemia

Chairman

20. 8.2019

11. 9.2019

Before:

Hon.B. M. Kimemia - Chairman

P. Swanya - Member

R. Mwambura - Member

Karimi - Court clerk

Getange for Respondent

Kariuki for Interested Party.

Kabungu Advocate for the Claimant – Matter is for further hearing. We are ready to proceed with 1 witness

Getange Advocate - I have 3 witnesses. 40 minutes, 5-10 minutes for the other witnesses.

Kariuki Advocate - I have 1 witness ready to proceed.

Matter to proceed at 2p.m.

Signed

Hon. B. Kimemia

Chairman

17. 9.19.

CW2 Adult Male Christian Sworn In English States in English

John Gichu Maina, I am a member and Secretary of MSL Sacco (Claimant).

I recorded my witness statement dated 19. 8.2019. I wish to adopt it as Evidence- in - Chief. I also filed 6 documents I wish to produce them as exhibits Supplementary List of documents dated 19. 8.19. Produced as (Claimant Exhibit 2)

MSL Savings bought shares from Migori Teachers in September 2008. I was a member then. There were documents and share purchase agreement- contract Exhibit 1 page 13. I was present during execution.

- Minutes of the Annual General Meeting of 7. 6.2008 at Migori Teachers Training College- Exhibit 1 page 6.

- Identity Cards of the officials Exhibit 1 page 32, 33, 34, 35 and 36.

- Copy of the By-Laws Migori Teachers Sacco

- Certificate of Registration page 31.

- Form of transfer of shares page 27 duly signed by both officials of MSL and Migori Teachers Sacco. Migori Teachers Sacco 61245 shares selling and MSL.

- Letter of Indemnity confirming loss of Share Certificates page 29.

- Power of Attorney.

- Share Registrar Certificate Co-operative Bank page 28.

- Statutory declaration of loss addressed to Company Secretary Co-operative page 30.

We were required to file the share Certificates but they gave us a power of Attorney page 11 since they had no share certificates.

We filed request for 3 purchases on 29. 10. 08 to Share Registrar Co-operative Bank Migori Sacco, Kimute Sacco and Rupa Sacco and attached documents therein. We did not obtain share Certificate for Migori but we got from Kimute 100,000/= (10M)

Rupa 1. 5M- we got the share certificate for both –

Exhibit page 11

We are still waiting to complete transfer of Migori Teachers Sacco since we have not been provided with the certificate.

My witness statement, we followed the rules, the documents were all similar except the share certificates for the 3 transfers.

Co-operative Bank of Kenya had issued the shares and we were dealing with the Shares Registrar.

Co-op Holdings Society Limited - We had no dealings with them then since the Share Registrar was dealing with all the matters and Co-op. Holdings was not in existence then to deal with the shares.

Notification – Notice to delegates of Co-op Holdings Resolution of Co-op Holdings - Amending By-Laws to create rules of transfer of Shares. They wished to change the By-Laws to accommodate page 12 exhibits 2.

The Rules were promulgated after the Resolution meeting date 5. 4.2011.

3. 9.2008 was the date of agreement to buy shares, 3 years prior. We paid Kshs.6. 9.M and paid by Bankers cheque page 112 Kshs. per value. The going price was over the counter trading, no fixed price Rupa 112/= Kimute 113-114/=.

MSL Sacco was formed in 2008 to engage in long- terms investments with a rare of common friends and investments clubs and Mayfair Securities Limited. For Investment in shares/securities.

In 2008, we were buying shares since the market was doing well in Insurance and Banking for keeps.

That’s all.

Cross Examined By Getange Advocate for Respondent

- There was a transfer in 2008, entered in September 3rd. It was a process; the Sale Agreement was executed in September 2008. I was the Chair and Member then.

- I was involved since I was consulted and advised.

- There were previous negotiations prior to the agreement. The negotiations were verbal, the officials came to Nairobi for the same, I do not remember if there were written negotiations. There were minutes for Sale/Agreement. We established through Mayfair Securities Limited that there were people selling shares. I was called before end of August. We were dealing with the 4 officials, we did not feel the need to go beyond the 4 officials. They gave us the minutes, through our advocates’ office.

- I would be surprised if you said that they had no capacity to sell. The By-laws of Migori Teachers were given to us.

- The officials of any entity are authorized to deal with the transfer of the Sacco. I am not sure of any provision authorizing that in the By-laws.

- Minutes of 7. 6.2008, I am not in a position to avail the notice to call the meeting.

- Any documents presented by the officials are presumed to be the proper position of the entity.

- We did not consult the Board.

- The Shares Certificates were lost. Co-operative Bank Registrar confirmed, there were no share certificates shown to me.

- I do not have any correspondence of the negotiations. I was issued the documents I produced; I believed it was the true position.

- The money was paid to Migori Teachers Account.

- We were dealing with the 4 officials. No I would not know if the members were informed. I do not recall the number of Board members. Our Management has 4 members.

- I did not know the other Committee members, the minutes had names. Listed, 9 of them.

- Page 6 of Respondent’s list of documents.

- The 4 were the officials; no we dealt with the officials.

- The Officials have capacity to carry out transactions of our Sacco as per our By-laws.

- The supreme authority is with the members Annual General Meeting and the same satisfied the decision to sell.

- That is all.

Cross Examined By Kariuki Advocate for Interested Party

- We notified Co-operative Bank on 29. 10. 08, the 2nd submissions was 11. 7.2012. By 11. 7.2012 the applicable law we had already submitted documents and they were rejected.

- The applicable By-law we 2nd time - they had changed.

- We were given a list of documents required and I submitted the forms and documents as required.

- The indemnity was signed; we did not confirm any changes on them.

- There was no requirement of approval by Commissioner for Co-operatives.

- By-laws clause – B.

- The holder of the shares are Migori Teachers Sacco today.

- Payment was made to Migori Teachers Sacco- Co-op. account.

- It was the market price.

- Shares were held at Co-operative Bank, the parties agree to buy and sell. The market determine the value, we did not involve the Bank in determining the value of the shares.

- That is all.

Re Examination

I knew 4 members plus 6 others later. Migori Teachers Sacco has many members may be 15000/=. I do not know the number. It’s not possible to deal with the members without involving the officials.

There were documents to show that the Annual General Meeting confirmed the sale of the shares. The minutes and Resolution are before the Tribunal exhibit 1 minutes of 7. 6.2008. We bought the shares, agreement on 3. 9.2008 about 2 ½ months later.

We issued a Bankers cheque issued by Co-operative Bank to Migori Teachers Sacco.

The shares belong to MSL because we entered the contract, we paid and hence it’s our property.

The share Certificate is in Migori Teachers Sacco hence the reason we are praying for the transfer.

We pray for our investment that is, the shares and benefits accrued plus costs and interest.

That is all.

Kabugu advocate for Claimant- that is the close of the Claimants case.

Respondent’s Case

Dw1 Adult Male Christian Sworn In English States in English

John Adul Osewe a teacher by profession. I recorded my witness statement on 5. 4.2018 and adopt it. I also filed documents II on 7. 11. 2018- and produce the documents Defence exhibit 1.

I joined as a member in 1993. I am the Chairman elected on 7. 7.2007 and joined as non- executive.

On 28. 10/09 is when I became the chair. I have been the chairman to date.

In June 2008, I was not the chairman until 2009.

On 7. 6.2008 I was in the meeting, 4th last in the list of page 6.

There must have been a notice of meeting dated 19. 5.2018. Document 1.

The meeting did not confirm sale of shares.

The sale was not discussed in the Board.

On 7. 6.2008 during Annual General Meeting, it was not discussed.

I am surprised to hear it was discussed.

Document 3, original minutes book of Migori Teachers Sacco page 5 there is an addition on the margin.

The same must have been added by the officials to fulfill their illegal things. It’s not normal for that. Page 103 minute books, it’s there in the original minute. At the back the handwriting and pen is different.

Original record- produced exhibit 2. Minute book of the Respondent page 103, 104. (Page 3-7).

No resolution was made; no discussion was done with the Board.

Executive Committee meeting page 4 ( claimant Exhibit 1)

The Executive Committee does not have the power to review. The Board is the one with the power.

The Board, once resolution are passed, it’s the mandate of the Board and there’s no separate meeting of Executive Committee.

Letter of Co-op Holdings seeking approval for sale of shares (to validate the sale of shares).

List of documents Dexh.1R.document 11 addressed to Migori Teachers Sacco. Seeking confirmation of the transaction of sale of shares dated 2. 4.12.

We responded through our lawyer dated 19. 4.2012, we did not validate the sale of the shares.

(Claimant Exh. 2 Document 2.

We met with the Representatives of Bank, Migori Teachers Sacco and MSL.

Minutes of Tripartite meeting held on - it was a discussion to reconcile.

The members refused,

We never met again as parties to resolve the matter. I signed the minutes as an attendance

Sale agreement, I have never seen the share certificates there are only the members shown. We have never discussed any loss of shares or any discussion at Annual General Meeting

I am surprised to hear there was loss of share certificates

Indemnity, declaration, page 28-30 (exhibit 1) - the signing of the documents were never discussed.

Letter from Co-operative Bank page 28, 2nd and 3rd September 2008- indemnity forms

I am not aware of that letter, it’s not received by Migori Teachers Sacco. I had never seen the letter.

Migori Teachers Sacco has shares at Co-operative holdings page 10 Defence exh.1- 3 share certificates- members - Those in the agreement did not exist.

Counter claim

Migori Teachers Sacco is the owners of the Shares because they did not sell their shares.

There was no approved by Commissioner of Co-operatives and the Board.

That is all.

Cross Examined By Kabugu Advocate for Claimant

- I became the Chairman of Migori Teacher Sacco on 2. 9.2009. The Chairman was Paul Owour Mise

Secretary – Odero Odeya Peter

Vice - Jairus Owiti

Treasurer - Eunice Odera

I was a Committee member,Non-Executive Committee member

- Migori Teachers Sacco had invested 61,245 shares then with Co-op holdings.

- Paragraph 6 witness statements – “......I also know that all the share certificates were in the custody of Respondent’s Custody.......”

- The society was holding the shares.

- We have about 4000 members

- The CEO is the custodian of the documents. I have never been a CEO so I have never been in custody of the documents.

- The Respondent has never lost its shares page 30 (Exh.1)

“We Migori Teachers Sacco...3. 9.2008, Migori Teachers Sacco had 61245 shares with Co-op holdings ...lost, misplaced, destroyed...”

Letter addressed to Company Secretary signed by Paul Owuor , Peter Odera, John Owiti, Eunice Odera, sworn before a Commissioner of oaths.

They are lying on the issue.

- Letter from Co-operative Bank 3/9/Claimant Witness Exh1. page 27- to chairman Migori Teachers Sacco “...we confirm that .....verifying ......for 61245 after share split, the shares will be printed and sent to your address......”by Share Registrar.

- There was no agreement between MSL and Migori Teachers Sacco for sale of Shares.

I was not involved; I have never seen the document so it’s false.

Migori Teachers Sacco has never been paid for the shares sold.

Page 5 CExh.1 Bankers cheque of Co-operative Bank dated 3. 9.08 to Migori Teachers Sacco for 6,920,685/=, I do not know about that payment.

Agreement between Migori Teachers Sacco and MSL for 61245 shares for Kshs.6, 920,685/=, same amount on the cheque.

I attended Annual General meeting on 7. 6.2008

Typed minutes - I confirm they are the minutes, signed by Secretary and Chairman , I was neither then. I confirm the typed minutes and minutes in the minutes’ book are the same.

Minute No. 5 Otieno Ochieng Collins, Obute (deceased)

Resolution must come from the notice.

Agenda Reading

Surcharge order

Chairman report

Audited account

Budget for 2009.

I do not have any other issues with the minutes.

Minute 4 – increased borrowing powers to 30 million- it’s not in the notice, it was discussed.

Minute 8 – Appointment of auditor

-Not on the notice.

There are matters not in the Agenda but were discussed in the meeting.

Share certificates, I do not know if they were re-issued.

That is all.

Cross Examined By Kariuki Advocate for Interested Party

- Sale agreement done in 2008.

- Letter dated 3. 9.2008- addressed to Migori Teachers Sacco- confirmation of receipt of statutory declaration.

- The shares at Co-operative were 6,124,000/- amount sold was 61,245.

- There was tripartite meeting but there was no resolution, we were to go consult with the members. There was no transfer effected hence the members disagreed.

- Replacement of share certificate, there is no indication that Migori Teachers Sacco was selling their shares.

- That is all.

Re Examination

- Resolution of Annual General Meeting of 7. 6.2008 the minutes has no “borrowing powers” and “auditors reports”. Those are the requirements in the Sacco and are not required to be mentioned in the notice.

- Migori Teachers Sacco have certificates are in the custody of Migori Teachers Sacco, the CEO holds the keys.

- In 2008 the CEO had custody of the keys.

- Letter confirming loss of share certificates.

- Date of cheque 3. 9.2008.

- The letter confirming loss of shares, cheque are all written on the same day.

The two transfers could not have been done the same day.

- In 2008 we had 6124. 500 shares

Agreement of sale of 61425 shares.

That is all.

Orders- it’s now 5. 30pa.m matter to precede tomorrow 12. 9.19 at 9. 30a.m.

Signed

Hon. B. Kimemia

Chairman

11. 9.2019

12. 9.2019

Before:

Hon.B. M. Kimemia - Chairman

P. Swanya - Member

R. Mwambura - Member

Karimi - Court clerk

Kabugu for claimant

Kariuki for Interested Party

Getange for Respondent: Matter is for further defence hearing; we are ready.

DW 2: Adult Male Christian Sworn In English States in English

David Mwenda Maranga from Kisii, I am a farmer. I was a Deputy Co-operative office. (Retired.)

I recorded my witness statement dated 20. 6.19, I wish to adopt it as my evidence in chief.

In 2008 I was working at Migori district Co-operative Office Migori Teachers Sacco was under my jurisdiction.

On 7. 6.2008, I was present in that meeting, there was a notice issued, I was served with the notice Document 1 DExh1 dated 19. 5.2008 copied to my office District Cooperative Officer Migori. I attended the meeting. The issue of sale of shares was not discussed. As DCO, I had the right to attend the Board meetings, by notice even the Annual General Meetings, as per the law Section 93 B Co-operative Societies Act.

In that meeting, the issue of sale of shares was never discussed. I would be surprised to hear that there was such a resolution.

The notice was received, the minutes are stamped but it’s not my signature.

I never received any information on sale of shares by Migori Teachers Sacco.

Page 9 DExh.1 letter from County Co-operative office dated 23. 7.2015.

“...Migori Teachers Sacco has never sold any shares, share certificate No...”

There was no information of sale of the said shares.

I was not informed of any payment to Migori Teachers Sacco.

That is all.

Cross Examined By Kabugu Advocate For Claimant.

- I retired in June 2014. There were 7 Saccos in Migori when I was the District Cooperative Officer. I cannot remember how many meetings they held. Migori Teachers Sacco held very many meetings.

- I attended the meeting in June 2008, (21. 6.2008).

- I do not know pastor Kangia. There were many people about 200 at the Annual General Meeting. I cannot remember the issues on the agenda but I can refer to the agenda.

There was no agenda for shares I remember there was a chairman’s report, but I cannot remember the agenda for shares.

- I do not remember Pastor Kangia starting the meeting with prayer.

- In the auditor’s report, I cannot remember what was discussed.

- Migori Teachers Sacco was making their annual returns. I was the District Co-operative Officer in 2008 and part of 2009.

- Page 37 CExh.1 audit report investment “.....Kusco shares, Co-operative Bank Shares......” 2007 list of assets.

- * 2008 list investments audited account “.....Kusco shares.....Co-operative Bank shares........”

- * 2009-2010 list of investments “....Kusco shares, KNFC Shares.....”

- No Co-operative Bank shares in the audit report.

- I do not know of voting to increase the borrowing powers.

- Minutes of the meeting of 7. 6.2008, I attended, there is my name, there was no discussion on shares. I cannot remember the voting of the increase of borrowing powers.

- It’s not true that I have come with an agenda and that I am not a truthful witness.

- The Chairman was Paul Muse. I cannot remember the officials.

- The Chairman now is Osewe. I left Migori in mid-2009. I went to Transmara, I learnt of this matter in June 2019.

- The meeting was 11 years ago. I have attended very many meetings over that period.

- I cannot remember everything that was discussed in the meeting; I just remember that the issue of shares was not discussed.

- The minutes produced in court are false. I do not have any other minutes. The secretary prepares the minutes and is the custodian of the minutes.

- The minutes were brought to our office, I have no copy

- The minutes book.

- Paragraph 5 witness statement of DW2. “ purported minutes , I wish to state that the same is false...” I was shown by the advocate the minutes of the meeting. This is a handwritten minutes. I have never seen the true minutes of the meeting.

- My role as DCO was to supervise all the societies in the district.

- I cannot remember the secretary, the minutes are signed by the chairman and secretary, I was not required to sign the minutes.

- District Cooperative Officer Rongo was Konje, Osoka Zephaniah Provincial Cooperative Officer, Evans Omondi was the secretary.

- Officers in attendance DCO, PCO.

- I cannot remember seeing the chairman of Kenya National Union of Teachers.

- That is all.

Cross Examined By Kariuki Advocate for Interested Party

- I was to supervise what happened in the Saccos. I was supposed to be informed of the Annual General Meeting. I was informed of the agenda; the shares sale was not in the agenda. I was to protect the interest of the members.

- I attend to ensure the Co-operatives operate within the law. I did not maintain the accounts of the Sacco.

- I do not have documents of Migori Co-op Societies.

- My role was to protect the members.

Re Examination

- I am aware of Annual General Meeting of 7. 6.2008, I attended the meeting on 7. 6.2008 not 21. 6.2008.

- I was not preparing their accounts, the accounts are supervised by District Co-operative Auditors and was in charge of the accounts.

- I was not involved in the preparation of the accounts

- Page 37 – there is no stamp of District Cooperative Officer/Migori Teachers Sacco. I am not able to tell who prepared the account.

- There were 7 Sacco’s in Migori Soniga Sacco, SOFA Sacco, Migori Teachers Sacco.

- Not all minutes were filed with us. I left everything at the office and handed over to the incoming officer.

- Paragraph 5 of witness statement (DW2), there were no resolution of sale of shares, the minutes were false. The minutes on sale of shares were fraud.

- I was to forward the request to the Commissioner for authorization, none was issued to Migori Teachers Sacco.

- That is all.

Dw3: Adult Male Christian Sworn In English States in English

Otieno Ochieng Collins, teacher from Migori County. I have been a member since 1993 to date, number 327669(Teachers Service Commission).

Annual General Meeting held on 7. 6.2008, I attended the Annual General Minutes held on 7/6/08, I attended the Annual General Meeting, I received the notice to attend as produced.

There was no agenda for sale of shares discussed and resolved.

Minutes 5. 6.2008, “...proposed by Otieno ...” I did not propose the same. It’s a false agenda and my name is used.

I was told later after this case was filed of the payment of 6M. The minutes of 5. 6.2018 are false. That agenda was not there and should be removed.

That is all.

Cross Examined By Kabugu Advocate for Claimant

- I have shares contribution of savings of 1 thousand per month. I have a loan. I am a very active member.

- I cannot remember any time the society had financial constraints.

- I came to learn later of the claim of sale of shares.

- I was a member in 2008. The chairman was Paul Misi, Jairus Owiti- vice, Peter- Secretary, Eunice – Treasurer.

- Page 5 (Claimant Exh.1) Bankers cheque to Migori Teachers Sacco limited for 6,920,685/= dated 3. 9.2008 there was no such payment to Migori Teachers Sacco. The accounts custodian was the treasurer; I have never been a treasurer in the Sacco.

- Share purchase agreement page 13 Claimant Exh.1- seller Migori Teachers Sacco buyer MSL, the people claiming to have bought shares – Co-op. shares.

- I would not know the shares owned by Migori Teachers Sacco.

- I am a member of supervisory committee. I do not know the number of shares Migori Teachers Sacco had with Co-op or any other shares.

- The agreement is signed by chairman, vice, secretary and treasurer and manager.

- The chairman and executive is mandated by members to carry out the business of the society.

- The members delegate the functions to the executive committee.

- The minutes page 3 Dexh.1 documents 4. Stamped by the manager as a certified copy.

- Meeting of 7. 6.2008- there is a mark on the contested minute 5 proposed by...it does not say there is no seconder.....

- The MSL members did not attend the meeting.

- Migori Teachers Sacco has never held any other shares or assets.

- I am not aware of any meetings in 2015 to resolve this matter at Co-operative Bank.

- I did not second the minutes.

- If there was a problem with finances, it could be resolved by changing borrowing powers.

There was a discussion of increase of borrowing powers to 30M, the agenda is not there in the notice. It’s an annual issue.

- Mr. Zephaniah Osok PCO, there is no agenda on address by PCO. He spoke about share contribution enhancement- no agenda on share contribution.

- It’s true we discussed issues not in the agenda.

- That is all.

Cross Examined By Kariuki Advocate for Interested Party

NIL

Re Examination

- I was a member; I was not involved in management in 2008.

- Agreement of sale of shares was never introduced to the members, neither was the Kshs.6M.

- The decision of 4 members is not final. I am not aware of the sale of shares. The members were to make the decisions.

- The management had to operate on consultation not in isolation.

- Minutes book was in the custody of the executive, I did not at any time access it for perusal.

- Liquidity issues are within the knowledge of the management and members make decisions.

- Borrowing powers was not in notice but its annual issue. That’s all and members renew it.

- Getange advocate for Respondent: That’s the close of the Respondent’s case.

Interested Party W1 Adult male Christian sworn in English states in English.

Fredrick Ndegwa Manager Co-op Holding Society since 2009. Before then I was working at Co-op. Bank in various departments.

I recorded my witness statement on 1. 7.19 filed on 4. 7.19.

Co-op holdings has around 3820 members and membership changes constantly – ( Co-operative Societies ).

In 2008 before Co-op holdings was Co-operative Bank of Kenya. In August 2008, we changed to Co-op holdings Co-operative Society and Co-op Bank were registered as a company.

On 8. 8.08, there was a name change in preparation of the Bank’s listing so all the Co-operatives which held shares in Co-op Society became shareholders of Co-op Holdings.

The shares were split per value 100 shillings per 100 share to 1 shilling per share.

The Respondent’s shares 61245 to 6,124,500 shares with a par value of 1 shilling per share.

Sale agreement of 2008/3/9 Migori Teachers Sacco shares as at 3. 9.2008 was 6,124,500 shares.

The shares have increased in 2011, 2013 and 2016 have grown without further purchase.

We learnt of the dispute when the documents were presented to the Registrar in 2012. After receiving the documents we did a call back to confirm the validity. I contacted Migori Teachers Sacco to confirm. The Migori Teachers Sacco Society said they had not sold the shares. The two being members, I reached out to them since there were documents, the reason I did not transfer is because of the documentation. I requested to agree and formalize the transfer.

Proper documentation – Minimum requirements were changed due to frequent unclearly authorized documents and pricing. We put a list of requirements for anyone who wanted to transact in the shares. The two parties had not met the requirements.

Procedure before 2008

- Negotiation plus close of deal was on their own under the guidance of the share registrar – who ensured that the parties paid the required taxes before transferring the shares.

After renewal of process (2011)

- The documents would be submitted to the share registrar and processed with the list of requirements which involve

o 1. Agreement

o 2. Transfer form

o 3. Minutes of Annual General Meeting – selling Society to guide members on pricing to ensure agreement or not based on the price advised.

o * The members can also mandate the sale at the best price which meets the minimum requirement.

o 4. The Commissioner of Co-operatives from the region should confirm that they are aware of the sale by way of letter or endorsing the minutes of Annual General Meeting that approval was granted.

o 5. Endorsement of minutes of Board Meeting which agreed to sell and price of shares.

- Payments were to be processed through Co-op holdings, the Society buying deposits the money with Co-op holdings, the seller brings the share certificates, we then process the documents, pay the required commissions, then release the money to the seller and issue the certificate of shares to the buyer. They then sign a certificate of payment (seller) and buyer receives the certificates.

- The sale was not completed because by the time the documents were brought, they did not meet the minimum procedure. They met but did not agree on how to formalize the procedure.

- That is all.

Cross Examined By Kabugu Advocate for Claimant

- The Co-operative Bank was founded in 1965 under Co-operative Societies Act as a Co-operative Society.

- Between 1965 and that period other Co-operative Societies bought shares of Co-op Bank.

- Co-operative Bank is not a limited co-operative society now.

- Co-op holdings were registered on 19. 6.1965.

- Co-operative Bank of Kenya Limited was registered in 2008.

- Co-operative Holdings limited is a society, changed name in August 2008.

- Before August 2008, Co-op holdings Co-operative society existed in a different name.

- I was working at Co-operative Bank of Kenya Limited.

- In 2008, Banking business and Co-operative Business were separated.

- Before 2008, Co-operative Bank had share - holders. 3820 were our societies share -holders and became share-holders under the new name.

- There are Co-operative unions, Societies etc.

- Before 2008, our members were buying and selling shares to each other, there was a portion of shares belonging to individuals and the registrar would do the book work.

- The Share Registrar was to register and keep the books of the shares.

- The Co-operative Bank Co-op holdings Society members are societies who were members and others who bought. 64% of Co-op Bank Shares are held there 3820 have 36% share holdings is split into 2. 64. 5.% held by Co-op holdings, 35. 5.% individuals and Co-operative Societies and those are the shares trading in the stock market.

- In 2008, the Bank could not list shares in the stock market in order to raise capital as a Co-operative Society so that it would place its shares in the market to enable trading.

- Transactions up to 2008 societies would agree, then go to Share Registrar. This process was reviewed in 2011.

- Power of Attorney of 3. 9.2008.

- The transaction documents were brought to me in 2012.

- In 2008, the Share Registrar would do the transfer.

- Manager in 2009 of Co-op holdings

- Letter dated 2. 4.2012 from Co-op holdings to Chairman Migori Teachers Sacco. - It’s my letter seeking confirmation to transfer if they had confirmed, I would have asked them to formalize the transfer.

- CExh. 2 page 8 certificates to MSL Sacco in 2012. I was the manager then, I am aware of other transfers with Rupa and Kimute Saccos, those transfers were completed and sales formalized.

The procedure used, I would have to refer.

- We have minimum requirements now

o – There is an agreement.

o Minutes of Annual General Minutes

o In attendance are Co-operative Ministry Officials.

o Transfer form – undated, but executed.

o No share certificates but there were indemnity and POA.

- Before 2008, the establishment of Co-op holdings, the Share Registrar received the documents who would evaluate and complete the transfer.

- The Registrar still does the register and my approval is sought to ensure minimum requirements are met and that the transfer is above board.

- In 2008 the shares were split into a factor of 100. 61245 shares became 6124500 they would be the same.

Page 1 CExh.2. Letter dated 29. 10. 2008 to Share Registrar Co-op Bank of Kenya.

Documents relating to transfers of Migori Teachers Sacco, Rupa and Kimute based on the letter, it’s possible that the documents were submitted.

- The seller declined to confirm the sale of the shares.

- That is all.

Cross Examined By Getange Advocate for Respondent

- I have been with Co-operative holdings since 2009. Migori Teachers Sacco and MSL were our members.

- Letters dated 12. 4.2012- page 11 DExh.1 “we are in receipt of ........”

The documents were availed by MSL. DExh. 1 document 2 response dated 19. 4. 12. . . .

“......kindly advise illegal buyer such transfer will attract legal consequences......”

Paragraph 2 “....our client denies having authorized ......approved in Annual General Meeting called and convened ........”

- With the letter, I could not proceed, I made effort for them to clarify the matter of buying and selling.

- They met but did not agree on the issue.

- The documents submitted were not sufficient to effect the transfer I did not receive the original share certificate.

Paragraph 14 Interest Party witness statement – price

- We did not receive several items.

- Before 2008, the documents were lodged with Registrar and the Share Certificate was essential.

- * “ There are situations where members want to transact, they should not enter into agreement before replacing so they should replace first”*

- If documents are brought without share certificates, they have to wait.

- In 2012 documents had to be approved either my office or the Registrar could receive the documents.

- I was involved in April 2012 and parties could not agree.

- Issuance of cheque CExh.1 page 5 issued by Co-op. Bank of Kenya 3. 9.2008; 6920685, issuance is not involvement.

- Letter by Co-op Bank page 28 Claimant exhibit 2 the member of. Staff author was working with Shares Registrar. Shares indicated 6124500 held as at 3. 9.2008- I would have refused to the amount of shares as 6124500.

I am CEO Co-op holdings.

The owner of the shares as per the register is Migori Teachers Sacco, but due to this matter, in 2015, we received guidance from the Tribunal to wait for that issue to be determined.

The register indicates the Migori Teachers Sacco in the shareholder and is entitled to the dividends.

- Among the compliance issues Resolution by the Board effect the approval of Annual General Meeting.

- That is all.

RE EXAMINATION

- Co-operative Bank of Kenya Limited was incorporated in 2008. Name changed to Co-op holdings.

- There was no confirmation of Migori Teachers Sacco.

- Transfer documents were incomplete, the price, compliance to minimum price was not met.

That is all.

Mr. Kariuki Advocate: That is the close of Interested Party’s case.

ORAL APPLICATION

Kabugu advocate for Claimant- I pray to invoke the inquisitorial jurisdiction of the Tribunal in pursuant to requesting the Tribunal to request from the Ministry of Co-operative Societies that the annual reports and financial statements of Migori Teachers Society Limited and MSL as filed for the period between 31. 12. 2007 to 31. 12. 2015 be made available for perusal by the Tribunal.

I rely on the provisions of Article 149 and 259 for the Tribunal to go into the substance of the issues than to rely on procedural technicalities.

I am alive to the fact that the Tribunal has power to enquire if the ends and means of justice require it.

Getange advocate for Respondent: - The Application is made after the close of the case. There is no explanation for the requirement of the Tribunal, is it for Tribunal or for the case. The request is for both parties.

He has documents of MSL.

From Migori Teachers Sacco, it needs to be clear what the documents are required for. It’s an afterthought and should be disallowed. We do not require the documents, we could have availed the same if the documents are not there, what will happen.

They should have given notice to produce.

R3 Nothing prevents.......

R4 – decide with due speed without undue regard to technicalities.

Section 78(5) Co-operative Societies Act- Governing its own procedure.

If the same is allowed, we pray to examine the witness.

Kariuki Advocate for Interested Party: Nil

Kabugu Advocate for Claimant: The document I am requesting for is not a private document of the Respondent I do not require it from Respondent. The Respondent must file their audited reports every year with the Ministry of Co-operatives.

The reports are relevant to the matter and the resource is readily available to the Tribunal. This Tribunal as set up to address the special issues using special resources, those documents are this special resource.

I only pray for the Tribunal to peruse the same hence the reason we pray to have them availed.

RULING

Order: We have considered the application of the applicant and the submissions on the matter by the Respondent, we refer to the provisions of section 78 (5) Co-operative Societies Act.

“........the Tribunal shall regulate its own procedures.......”

Section 79 © Co-operative Societies Act

“....the Tribunal may make such orders for the purposes of .....Discovery/production of any document or ........”

R 3 Cooperative Tribunal Practice &Procedure Rules 2009

“............nothing shall limit or otherwise affect the inherent power of the Tribunal to make such orders as may be necessary for the ends of justice......”

R 4. ....disregard of technicalities......”

In this regard, if the Claimant feels that the audit reports filed with the Commissioner of Co-operatives will enable the Tribunal to reach an informed decision, an order to meet the ends of justice, we accordingly, order as follows:-

1. The Commissioner for Co-operatives Development is hereby ordered to avail the annual Reports and financial statements of Migori Teachers Co-operative Savings and Credit Society Limited and MSL Savings and Credit Co-operative Society Limited for the period between 31. 12. 2007 to 31. 12. 2015 within 21 days herein.

2. The said Annual Reports and Financial Statements to be filed in this matter at Nairobi.

3. Mention to confirm compliance and for further directions on mention 3. 10. 19. At Nairobi.

Hon B. Kimemia Chairman Signed

R. Mwambura Member Signed

P. Swanya Member Signed

Jackline Karimi Court Assistant

3. 10. 2019

Before:

Hon. B. M. Kimemia - Chairman

P. Swanya - Member

R. Mwambura - Member

C. Maina - Court clerk

Mr. Kariuki for Interested Party

Ofwa holding brief for Getange for Respondent

Njunge Advocate holding brief for Kabugu for Claimants- Matter is to confirm compliance of orders of 12. 9.19. We have not been served. The statements are in order but MSL documents has no 2007, 2008, 2009 statements.

Kabungu Advocate: Statements for Migori Sacco 2007-2015 have been filed.

MSL Sacco- 2010- 2015. MSL was discharged in 2008 so books missing are for 2009.

We can proceed with the records supplied.

Getange Advocate for Respondent: We have complied. We did not require MSL statements. We can now proceed with written submissions.

Mr. Kariuki Advocate: We can take directions on filing written submissions.

Order: - Claimants to file and serve written submissions within 14 days herein. The Respondents and Interested Party to file and serve their written submissions within 21 days of service.

Further mention to confirm compliance 8. 11. 2019 to fix Judgment date.

Signed

Hon. B. Kimemia

Chairman

3. 10. 2019

8. 11. 2019

Dickson Clerk to Kabugu and Company Advocate for plaintiff

Emily Clerk to Getange for Respondent -

Gathuka for Gachangi Partners Advocate – for interested party.

By consent hearing fixed for 21. 1.2020.

Signed

Leweri

Tribunal Clerk

21. 1.20

Before:

Hon. B. M. Kimemia - Chairman

Hon. F. Terer Deputy Chairman

R. Mwambura - Member

C. Maina - Court clerk

Moenga advocate holding brief for Kabugu for Claimant

Getange advocate for Respondent

Kariuki advocate for Interested Party

Getange advocate- parties have filed their written submissions.

Order: judgment 26. 2.2020.

Signed

Hon. B.Kimemia

Chairman

21. 1.2020.