[2024] KECPT 1411 (KLR)

Musyoka v Akamba Handicraft Industry Cooperative Society Limited (Tribunal Case 338 (E470) of 2023) [2024] KECPT 1411 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1411 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 338 (E470) of 2023

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

August 29, 2024

Between

Joel Muli Musyoka

Claimant

and

Akamba Handicraft Industry Cooperative Society Limited

Respondent

Judgment

1. The Claim herein was brought by the Claimant vide the Statement of Claim dated 14th June, 2023, filed on 15th June, 2023, and his List of Documents dated 14th June 2023. In the Claim, the Claimant seeks judgement against the Defendant for:a.Temporary Injunction stopping the Respondent from expelling of purporting to expel the Claimant pending the hearing and determination of the suit.b.General Damages.c.Costs of this suit together with interest thereon at court rates.d.Any other or further relief that this Honourable Court may deem fit to get and expedient to grant.

2. The Claimant states that he is in the business of curving sculptures and he joined the Respondent in the year 1979 as a member and has been displaying his artefacts in the Respondent’s showroom. That on 8th June, 2023, he was stopped from displaying his sculptures on allegations that he had been expelled. That he is unable to display his goods and that he will suffer irreparable damage. That he does not have any disciplinary case and no formal communication has ever been made to him about being expelled. That his advocated wrote a demand letter on the issue dated 6th June, 2023. That on 7th June, 2023, the Claimant got a response informing him how he had been expelled from the society. That in total disregard of the by-laws the Respondent has refused to reinstate his membership despite him having not gone against the By-laws of the society.

3. The Respondent responded to the Claimant’s Claim vide the Statement of response dated 3rd July, 2023. It its Defence, the Respondent states that the Claimant joined the Respondent on 2nd October, 1978 under membership number 1415. That the Claimant was expelled from the Respondent in the year 1984. The Respondent states further that the Claimant has been displaying his artefacts at the Respondent’s showroom. That the Claimant went to the Respondent’s premises on 31st March, 2023 with the letter dated 3rd March, 2023 with the letter dated 3rd March, 2023 issued by the Respondent to one Obote Mutiso stopping for illegally, Irregularly and/or fraudulently using the membership number 1415 without the Respondent’s written approval for re-allocation. That the Claimant is not a member of the Respondent and he cannot allege to suffer damages. That the Claimant was expelled for illegally selling carvings to tourists from the Respondent’s sheds instead of the showroom thus denying the Respondent its commissions. That since he was expelled, the Claimant has never been paid dividends or issued with any shares/share certificates and his number was duly expelled and recorded in the Respondent’s register. That the Claimant was procedurally expelled and has never been reinstated. That there is no basis and/or justification for reinstatement of the Claimant. That the Respondent id not breach its by-laws. That it could not comply with the Claimant’s demand notice since the Claimant was procedurally expelled over 39 years ago. The Respondent prays that the Claimant’s suit be dismissed with costs.

Claimant’s Case 4. The Claimant adduced sworn evidence at the hearing and adduced evidence that in March – April 2023, he delivered his carvings to the Respondent which he was refused to display in the showroom and was told he was not a member of the Society, het he has been a member since 1977. That he was told his name was not on the list of members of the society. The Claimant states that he sued the Respondent after he was denied to use the showroom. That he has no other business and he asks the Tribunal to declare him a member.

5. The Claimant produced his Witness Statement filed on 15th June, 2023, and adopted it as his Evidence in Chief. On Cross-examination, the Claimant stated that the Respondent used to pay him through the Bank. That there was no document to show the Tribunal that you are a member of Njomo since 1992. That one could not be a member of Njomo without being a member of the Respondent.

6. On being asked on further Cross-examination whether he had seen the member register which shows member number 1415 was reinstated, the Claimant answered that he had not seen the register. That also, he did not know that the share register indicates that he was expelled.

7. Further, the Claimant stated on Cross-examination, that he was not paid dividends, that he left his account to one Obote Mutiso who was a member to who he used to send money to. Further, the Claimant stated that he came to the society when Obote was refused to stock the crafts using his name . that the management had consented to it. That the arrangement between himself and Obote was private and the money was being paid through Obote’s account. That though he has a FOSA card, it is not in his name.

Respondent’s Case. 8. The Respondent called three witnesses who adduced sworn evidence on its behalf. The first witness ‘Respondent Witness 1’, one Daudi Mutuku introduced himself as a crafter and produced and adopted his Written Statement dated 3rd July, 2023 as his evidence in Chief. Respondent Witness 1 stated in his evidence that he has been a member of the Respondent since 1971. That the Respondent member IDs have been charged many times. That he knows the Claimant who joined the Respondent after him. That there were issues of people who were selling crafts without following the procedure and taking money which was meant for the society. That in 1984, there was Fracas and Joel jumped the fence of the Respondent and disappeared after he was found selling crafts unlawfully. That the Respondent did not see the Claimant again until recently in 2023 when he returned to ask for permission but he was informed that he had been expelled.

9. On cross-examination, the Respondent Witness 1 states that he does not have evidence of Police action taken against the Claimant for the alleged illegalities, though there must be minutes of the meeting which expelled the Claimant.

10. On Re-examination, the Witness stated that the Claimant jumped the fence after he was found to have sold the crafts directly to tourists. Further, the said witness stated that money used to be paid through the Bank and Obote used to receive Joel’s money and his own money.

11. The Respondent’s second witness, Respondent Witness 2, was Mang’eng’e Mwanzia, who stated that he signed a Witness Statement dated 3rd July, 2023 which statement he proceeded to adopt as his evidence in chief.

12. The said Witness stated that he joined the Respondent in 1977. That the member ID has changed 3 times since then. That every member has an ID.

13. The witness further stated that he knows the Claimant who he said joined the society after him. That they worked together over 10 years before he was removed in 1984 for selling crafts without using Society. That the police would have arrested him but he jumped the fence. That a meeting was called in which he was dismissed but he kept returning without knowledge of the committee.

14. The witness further stated that he knows Mr. Obote. That it was discovered I 2023 Obote was selling unlawfully for Joel the Claimant. That Obote was summoned to a meeting to apologize but he refused. On cross examination, the Witness stated that the Claimant was a member of the Respondent for no more than 15 years before he was dismissed. On being asked if the Claimant had been issued with notice, the witness jumped the fence. That the Claimant’s colleagues were however caught by police. That the society does not allow assignment. That there is a register of members and that the Claimant was not given an opportunity to defend himself. On re-examination, the witness stated that he was not in the management of the Respondent in 1984 but the members were called, the Claimant and others, to the Annual General Meeting where they were expelled.

15. The Respondent’s third witness, Respondent Witness 3, Julius M. Mwatu, stated that he is the current chairman of the Respondent. That he has been a member of the Respondent since 1998, when he inherited his father’s membership.Respondent Witness 3 produced his Written Statement dated 3rd July, 2023 and adopted the same as his evidence in chief.

16. The Witness stated in his evidence that they were informed that membership number 1415 was operating illegally. That on checking the files, we found that it was expelled and that on the register, it was relinquished. The witness referred to the register produced under the Respondent’s list of documents dated 3rd July, 2013. That a member’s number can only be used by another member with written authority. That such letters of authority are kept in the files since 2018. Before 2018, a member could not trade with another’s number. That it is mandatory for every member of the Respondent o have an ID. That Joel was not given any delivery book before as they were not there before 2012. That the delivery book produced by the Claimant in evidence was being operated by Obote. That the money would go to the Claimant through Obote.

17. The witness stated that the preparing committee were informed that the Claimant was expelled in 1984 as he had been selling crafts to the tourists. That they found in the records of the Respondent for 1984 the Claimant’s name in the list of expelled members. That prior , committee was aware of the claimant’s expulsion and did not give him any dividends. That Njomo multipurpose started in 1991, the Claimant came, has a varied ID. That it is not clear why the Claimant had a delivery book in 2012 yet he had been expelled. The parties were directed to file Written Submissions in support of their respective cases.Though the Claimant submitted Written Submissions dated 25th April, 2024, court fees had not been paid for the same as at the date of writing this judgement hence not duly filed.The Respondent’s Written Submissions 13th May, 2024 were filed on 30th July, 2023.

Analysis and Determination. 18. We have considered all the documents filed by the parties including the Submissions and we find the following issues to be determined.1. Whether or not the Claimant was a member of the Respondent from the year 1979 and if so, did his membership cease in the year 1984?It is not in dispute that the Claimant joined the Respondent in the year 1979 as a member. The evidence of all three witnesses of the Respondent confirmed the Claimant’s entry into membership of the Respondent.

19. As to when the Claimant ceased to be a member of the Respondent, the Claimant’s statement is strongly disputed by the Respondent’s Witnesses who adduced evidence to the effect that the Claimant was expelled in the year 1984 after he was found to have been illegally selling his crafts directly to tourists instead of selling through the Respondent as every member was requited.

20. It is trite that he who alleges must prove. It is our finding that the Claimant has not proved that he was a member of the Respondent after the year 1984. There is no evidence of clear connection between him and the Respondent. He has not produced either of the different ID cards issued to members after 1984. He has not produced evidence of payment from him to the Respondent of from the Respondent to him. In fact, in his own evidence, the Claimant stated that there was a private arrangement between one Obote a member of the Respondent and himself wherein the said Obote would sell the Claimant’s artifacts and payment thereof would be made into Obote’s account. Indeed, it was admitted by all the witnesses that payments were through same account.

21. If the Claimant was a member of the Respondent at any including recent times, there would have been no reason why his crafts would be paid through an account other than his own irrespective of how they were delivered. There is evidence documentarily to show that the Claimant was stated in the register of members as expelled and also having relinquished.

22. Having considered the totality of the evidence both documentary and oral, we are convinced on a balance of probability, that the Claimant ceased to be a member of the Respondent in the year 1984 and that his delivery of artefacts through Obote was a personal arrangement which was not approved by the Respondent.

2. Whether or not the Claimant is entitled to the prayers sought.In his claim, the Claimant sought under prayer (a) a temporary injunction pending the hearing and determination of this case and sought general damages.

23. We find that the prayer for temporary injunction as drawn is spent and cannot be issued at this juncture. Further, on the prayer for damages we find and agreed with the Respondent that having been expelled in 1984 from the Respondent, the Claimant lost all rights and privileges accorded to members of the Respondent.

24. As such, the issue of damages which would have accrued if the Claimant had been denied his rights as a member, does not arise.Consequently, we hold that the Claimant’s suit lacks merit and dismiss the same with costs to the Respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024TRIBUNAL CLERK JONAHMs. Ngigi advocate for the RespondentManguro Onyango advocate for the ClaimantHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024