[2023] KECPT 826 (KLR)

Munyi v Tekangu Farmers Co-operative Society (Tribunal Case 278/E303 of 2022) [2023] KECPT 826 (KLR) (Civ) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 826 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 278/E303 of 2022

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

August 31, 2023

Between

Harrison Munyi

Claimant

and

Tekangu Farmers Co-operative Society

Respondent

Judgment

1. The Complainant’s case is constrained in Plaint (first track) dated 5/5/2022. The Complainant is a member of the Respondent, member number 3401. He is a trained coffee farmer and delivers his coffee to Karogoto Factory of the Respondent. He states that the Respondent Society consists of three factories.

2. He states that he was denied by Karogoto Factory from taking his coffee beans from processing. He claims that he has written severally to the Respondent enquiring on why he has been denied processing services.

3. He avers that he has been denied the right to attend and participate in decisions taken in general meetings. He avers that he has incurred losses.The Claimant prays to this court:a.To order his reinstatement as a member of the Respondent Co-operative Society.b.A permanent injunction to be given prohibiting and restricting the defendant from declining the Plaintiff coffee beans for processingc.Costs of this suit.

4. The Claimant in his Witness Statement dated 5/5/2022 states that he has been barred from delivering his coffee for processing for the last two years thus incurring a lot of losses.

5. He claims that the Respondent has not explained to he why he was expelled.

6. The Claimant prays to this court to order the Respondent to allow his coffee to be processed.

7. In Claimant’s Written Submissions, the Claimant states that he was expelled from the Respondent without following due process and that the Respondent’s by laws were not followed.

8. He avers that the Complainant was not given a chance of appeal as per the Respondent’s by laws.

9. During trial, the Claimant in his sworn evidence and witness statement dated 5/5/2022 stated that in 2020, the Respondent refused to accept and process his coffee, and confirms that he was not given a chance to defend himself as prescribed in the by-laws.

10. On cross examination the Claimant avers that he was not given a letter of expulsion. The Claimant confirmed that he had other cases with the Respondent.

11. He also confirmed that he has filed complaints with the DCI. He confirmed that he has been in expulsion for two years. He confirmed having attended an Annual General Meeting briefly and he still cannot deliver his coffee to the Respondent’s factories.

Respondent’s Case. 12. The Defence case is contained in the Statement of Defence dated 26/8/2022. The Defence denies that the Claimant is a member of the Respondent having been expelled on 30/1/2020 vide minute 13th Annual General Meeting on 30/01/2020. The Respondent avers that upon expulsion, the Claimant cannot deliver his coffee to any of the three factories under the umbrella of the Respondent.

13. The Respondent confirms receiving letters from the Complainant but could not comply due to aforementioned facts. The Respondent denies that the Claimant suffered any loss from the expulsion.The Respondent prays the Claimant’s suit be dismissed with costs.

14. Mr. Moses Mwai Maina is his Witness Statement states that he is the Chairman of the Respondent Co-operative Society. He avers that the Claimant is not a member of the Respondent since he is already expelled and as such he was denied delivery of his coffee for processing at the Respondent premises.

15. At the trial, the Respondent Witness Mr. Moses Mwai Maina confirmed recording his statement on 20/8/2022 which he adopted as his evidence in chief. He stated that the Claimant was given a chance during the Annual General Meeting to defend himself but alleged that the Claimant did not have any good reason.

16. He Claimed that the Claimant was expelled for spreading rumors of theft of coffee at Tegu and Karogoto factories. He denied that the Claimant was kicked out of the meeting.

17. The witness stated that the Claimant had written many letters against the management of the Co-operative society. The witness denied that the Claimant has pleaded to the general meeting on his expulsion.

18. On cross examination the witness asserted that they are bound by the Cooperative Societies’ By-laws11 (d) on right to appeal to the general meeting.

19. He confirmed that the Claimant was in the general meeting but no appeal letter was given.

20. The witness confirmed that there was no agenda of expulsion during the Annual General Meeting and the expulsion matter was discussed under A.O.B.

21. He averred that the Claimant was expelled under by-law no.14 “… acts in any manner prejudicial to the Society.”

22. He stated that the Claimant did not write any appeal letter to the management committee.

Findings. 23. It is evident that the Claimant was expelled from the Respondent Co-operative Society under minute 13th Annual General Meeting on 30/01/2020.

24. The reasons advanced by the Respondent was that the Claimant violated by-law no 14 (d).

25. No evidence was adduced by the Respondent on a formal communication to the Claimant as require by the Respondent’s By-law no. 15. 1 (d) was done to the Annual General Meeting.

26. The Claimant has provided evidence of his letters to the respondent to provide him with reasons for the expulsion and the resolution thereof.

27. The Claimant was not accorded fair hearing as provided for in by-law no 15 of the Respondent Society.

Conclusion. 28. We find that the Claimant was not given adequate opportunity to be heard in a general meeting of the members. We also note that the Claimant has been a member of the Respondent Co-operative Society for 13 years. The Respondent Co-operative Society Processes Coffee on behalf of its members. Coffee is a crop that requires mechanized processing facility which the Claimant needed to process his coffee. Denying the claimant thus critical processing facility without providing for an alternative is unfair to the Claimant.

29. Not facilitating the Claimant to be heard by the Annual General Meeting is a miscarriage of justice and fairness.In view of the foregoing, we order as follows;Prayer;a.An order for the Plaintiff to be reinstated as a member is allowedb.A Permanent injunction prohibiting and restricting the Defendant from declining the Plaintiff’s coffee beans for processing failsc.Costs of this suit allowed.

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 JEMIMAHMwetu advocate for the ClaimantNo appearance for Respondent.Judgment as read out on 31. 8.2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 31. 8.2023