[2025] KECPT 235 (KLR)

Mwonga v Kinatwa Sacco Limited & another (Tribunal Case E1035 of 2024) [2025] KECPT 235 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 235 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E1035 of 2024

BM Kimemia, Chair, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members

March 27, 2025

Between

Ezekiel Mambo Mwonga

Claimant

and

Kinatwa Sacco Limited & another

Respondent

Ruling

1. The Notice of Motion Application dated 20th December, 2024 is brought under Order 51 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law seeking among others:i.That the Court be pleased to issue an order directing the Respondents to apply for the renewal of the Road Service Licence (RSL) for the Applicant motor vehicle registration number KCL 492 R and allow the said motor vehicle to resume operations under the name, brand and style of the 1st Respondentii.That the court be pleased to issue an order restraining the Respondents from frustrating the Applicant from enjoying and exercising his rights as a member of the 1st Respondent pending the hearing and determination of the Applicationiii.That the Applicant be compensated for the financial loss suffered due to the unilateral, arbitrary, unlawful and irregular actions of the Respondentsiv.That the Commissioner for Cooperatives and the Director for Cooperatives Kitui County to ensure compliance with the Orders

2. The Application was based on the grounds:a.That the Respondents unilaterally, arbitrarily, unlawfully and irregularly refused to apply for the renewal of the Road Service License (RSL) for the Applicant’s motor vehicle contrary to provisions of Co-operative Laws, the 1st Respondent’s by-laws and other enabling statutory provisionsb.That the unilateral, arbitrary, unlawful and irregular refusal to apply for the renewal of the Road Service License (RSL) has led to the grounding /packing of the Applicant's motor vehicle denying him much needed income/returns during these hard economic times hence denying the applicant an opportunity to earn an income and benefit from his investmentsc.That the Respondents have refused to respond to the Applicant's application letter for the RSL renewal and the Applicant's efforts to reach out to the Respondents through phone calls and follow ups for our response have been ignored, and the Applicant continues to suffer severe economic loss as the Applicant’s motor vehicle continues to waste away and depreciate without earning him returnsd.That the Applicant has paid the requisite fee for the renewal of the RSL, money which the Respondents are still holding but not utilizing for the intended purpose causing the Applicant unbearable pain and sufferinge.That the Applicant shall continue to suffer irreparable loss if the Respondents are not compelled to apply for the renewal of the RSL for the Applicant's motor vehiclef.That the Applicant shall continue to suffer irreparable loss if the Respondents are not compelled to apply for the renewal of the RSL for the Applicant's motor vehicle as the motor vehicle continues to waste away and incurring unnecessary expenses like parking fees, insurance, security and county levies without generating any incomeg.That the Applicant continues to suffer recurring expenses like insurance, parking fees and security for the vehicle, if the vehicle continues to be un-operationalh.That the Applicant is likely to suffer great prejudice unless the orders sought are granted, and the Respondents will not suffer any prejudice or loss if the order sought are granted and therefore it is in the best interest of justice that the Application be determined in favor of the Applicant

3. This tribunal on 24th December, 2024 gave directions for the Claimant to serve all parties, the Respondent’s to file their pleadings, witness statement and documents within 14 days. The Tribunal also ordered the Respondents to apply for the renewal of RSL and to allow the motor vehicle registration number KCL 492R belonging to the Claimant to resume operations under the name and style of the 1st Respondent pending the hearing of the Application on 15th January, 2025.

4. In response, The 2nd Respondent filed their Replying Affidavit dated 27th January 2025 stating among others:i.That the Application is misconceived and lacking merit, bad in law and incompetent, frivolous, vexatious, scandalous and an abuse of the court processii.That the Application is the worst form of abuse of the Court process and has been made in bad faith and is solely intended to burden the 1st and 2nd Respondents with unnecessary litigation expensesiii.That the Claimant has not made the fullest possible disclosure and cannot obtain any advantage from the proceedings and as such he should be deprived of any advantage he may have already obtainediv.That there is deliberate concealment, suppression and non-disclosure of material particulars to the honorable Tribunal on the part of the Applicantv.That by-law No. 7 of the 1st Respondent is to the effect that a person becomes qualified and is eligible to be a member of the 1st Respondent if he is a matatu owner with a roadworthy PSV vehiclevi.That the Claimant sold his matatu vehicle registration number KCL 492R and is thereby no longer a member of the 1st Respondentvii.That the Claimant among others ceased to be a member of the 1st Respondent since March 2023, and his request to revive his membership with the 1st Respondent was unanimously rejected by the entire membership of the 1st Respondentviii.That the cessation of the membership of the Claimant as a member of the 1st Respondent has never been appealed against in accordance with the 1st Respondent by-laws or challenged in courtix.That the Claimant is not a member of the 1st Respondent and he never participated in the 1st Respondent AGM held on 16th March 2024x.That whereas matatu vehicle registration number KCL 492R is a 14-seater matatu, the management of the 1st Respondent since May 2024 no longer admits 14-seater matatus, a fact well known by the Claimantxi.That the 1st Respondent can only apply for a renewal of a Road Service License (RSL) for its members and 16-seater matatus and since the Claimant is not a member of the 1st Respondent and matatu vehicle registration number KCL 492R is a 14-seater, neither the 1st Respondent nor the 2nd Respondent has the obligation to apply for a new RSL for the Claimant or matatu vehicle registration number KCL 492Rxii.That the Claimant also voluntarily removed matatu vehicle registration number KCL 492R and stopped operating under the 1st Respondent since April 2024, and the Claimant removed the brand name and colors of the 1st respondent from his motor vehicle. The claimant cannot suddenly turn around and start demanding through the back door that the 1st Respondent should apply for a renewal of RSL for his matatu vehicle registration number KCL 492Rxiii.That according to the 1st Respondent by-laws, once a vehicle voluntarily stops from operating under the 1st Respondent, there is a process to be followed for the readmission of the vehicle to operate under the 1st Respondent. The Claimant must write a letter requesting for the admission of his matatu vehicle registration number KCL 492R to operate under the 1st Respondent which position he is aware of and was duly advised by the 1st Respondent Advocate one J.K Mwalimu and Company Advocatesxiv.That it is only after a vehicle has been re-admitted to operate under the 1st Respondent that a member can apply for a renewal of RSL for his motor vehiclexv.That moreover, matatu vehicle registration number KCL 492R is currently detained at Kitui Police Station and has so been detained for the last three months, and consequently, even if the Claimant was a member of the 1st Respondent which is denied, the RSL for the said vehicle cannot be renewed while impounded and detained at a Police Stationxvi.That the failure to apply for a renewal of RSL for matatu vehicle registration number KCL 492R is not unlawful, irregular or arbitrary as alleged, but is lawful and justified in the circumstancesxvii.That the current suit has been instituted for ulterior motives to achieve mischievous ends so that the Claimant can participate in the affairs of the 1st Respondent, in particular the incoming AGM of the 1st Respondent through the back door and by abusing the honorable Court’s processxviii.That the Notice of Motion Application dated 20th Dec., 2024 should be dismissed.

5. The 1st Respondents in response under Rules 3, 6, 11 and 17 of the Co-operative Tribunal (Practice and Procedure) Rules filed an Application dated 2nd January, 2025 stating among others:1. That the Honourable Tribunal should discharge and or set aside or vary the orders of 24th December, 2024 as it is well settled law that a litigant who makes an ex-parte Application, is under an obligation to the court to make the fullest possible disclosure of all material facts within their knowledge, and that duty of disclosure, applies not only to the material facts well known to a litigant but also to any additional facts which would have been well known if the litigant would have had made sufficient inquiries2. That if a litigant has not made the fullest possible disclosure, then he cannot obtain any advantage from the proceedings and as such he should be deprived of any advantage he may have already obtained3. That in the instant case, there has been deliberate concealment, suppression and non-disclosure of material particulars to the honorable Tribunal on the part of the Claimant4. That by dint of by-law No. 7 of the 1st Respondent, a person becomes qualified and is eligible to be a member of the 1st Respondent if he is a matatu owner with a roadworthy PSV vehicle5. That the Claimant sold his matatu vehicle registration number KCL 492R and is thereby no longer a member of the 1st Respondent6. That the Claimant among others ceased to be a member of the 1st Respondent since March 2023, and his request to revive his membership with the 1st Respondent was unanimously rejected by the entire membership of the 1st Respondent7. That the cessation of the membership of the Claimant as a member of the 1st Respondent has never been appealed against in accordance with the 1st Respondent by-laws or challenged in court8. That the Claimant is not a member of the 1st Respondent and never participated in the 1st Respondent AGM held on 16th March 20249. That whereas matatu vehicle registration number KCL 492R is a 14-seater matatu, the management of the 1st Respondent since May 2024 no longer admits 14-seater matatus, a fact well known by the Claimant10. That the 1st Respondent can only apply for a renewal of a Road Service License (RSL) for its members and 16-seater matatus and since the Claimant is not a member of the 1st Respondent and matatu vehicle registration number KCL 492R is a 14-seater, neither the 1st Respondent nor the 2nd Respondent has the obligation to apply for a new RSL for the Claimant or matatu vehicle registration number KCL 492R11. That the failure to apply for a renewal of RSL for matatu vehicle registration number KCL 492R is not unlawful, irregular or arbitrary as alleged, but is lawful and justified in the circumstances12. That the current suit has been instituted for ulterior motives to achieve mischievous ends so that the Claimant can participate in the affairs of the 1st Respondent, in particular the incoming AGM of the 1st Respondent through the back door and by abusing the honorable Court’s process.

6. The Claimants on 10th January, 2025 filed a Notice of Motion under the Contempt of Court Act No. 46 of 2016, Section 3A of the Civil Procedure Act stating among others:i.That on the 24th December, 2024 the Honourable Tribunal gave interim orders directing the Respondents to apply for the renewal of RSL for the Claimants motor vehicle registration number KCL 492R and allow the motor vehicle to resume operations under the name and style of the 1st Respondent, pending the hearing and determination of the application inter-partes on 15th Jan., 2025ii.That despite the Court Orders being served and the same being clear and unambiguous, the Respondents have willfully disobeyed the Tribunal Orders by refusing and or failing to apply for the renewal of the RSL for the Claimant's motor vehicle to allow it to resume operations under the name and style of the 1st Respondentiii.That the contemptuous actions and omissions by the Respondents have caused and have continued to cause unbearable social and economic suffering to the Claimant, who has lost a major source of income and livelihood, and the same has occasioned unbearable mental and psychological anguish and agony as the Claimant is now struggling to meet his basic socio-economic needsiv.That the contemptuous actions and or omissions by the Respondents are in violations of the Claimant’s rights and unless and until the Honorable Tribunal takes necessary steps to enforce its Orders, the continuing violations will continue unabatedv.That the Respondents willful disobedience of the Tribunal Orders manifestly undermine the authority of the Honorable Tribunal and it is crucial for the Honorable Tribunal to urgently intervene to safeguard the authority of the Honorable Tribunal and enforce its Ordersvi.That the Honorable Tribunal cannot proceed to hear and determine the Application by the Respondents and their Notice of Motion dated 2nd January 2025 praying for variation and or setting aside of the Tribunal Orders issued on 24th December 2024 when they have willfully and manifestly disobeyed, disregarded and ignored the said Orders, showing a blatant disrespect and disregard for the Honorable Tribunal and proceeding to hear the Application will render the Claimant’s Application and Suit nugatory, and will only embolden the Respondents knowing whatever the Orders the Tribunal will give, they will still ignore and disregard them without any legal consequencesvii.That the Honorable Tribunal should issue summons to the Executive Directors/Committee Members of the 1st Respondent (Kinatwa Sacco Society Limited) Amos Mutemi Wambua – Chairman, Frederick Kithongo Nzilu - Vice Chairman, John Bosco Muutu Musyoka – Secretary, and Omulo Duncan Omulo – Treasurer, for them to show cause why they should not be punished by the Honorable Tribunal for contempt of its Ordersviii.That Amos Mutemi Wambua – Chairman, Frederick Kithongo Nzilu - Vice Chairman, John Bosco Muutu Musyoka – Secretary, and Omulo Duncan Omulo – Treasurer be detained in prison for a period of six months or for such a period as the Honourable Tribunal shall deem necessary, for being in willful disobedience of the Orders of the honourable tribunal issued on 24th December 2024ix.That in addition to or in lieu of such committal, the Honorable Tribunal to be pleased to Order and direct the remaining five Non-executive Directors/Committee Members of the 1st Respondent to take the necessary steps required to comply with the Orders of the Honorable Tribunal issued on 24th December, 2024

7. This Tribunal on 15th January, 2025 gave directions for the Applications to be canvassed by way of written submissions, except the Contempt Application dated 10. 1.2025 and also extended the Orders of 24th December 2024.

8. The Claimant filed three sets of written submissions all dated 9th March, 2025 for applications dated 20. 12. 2024,2. 1.2025 and 10. 1.2025 stating among others:i.That the Claimant has demonstrated that the refusal by the Respondents to renew Road Service License (RSL) for his motor vehicle registration number KCL492R was in clear violation of his rights as a member of 1st Respondent.ii.That the Claimant has demonstrated that he owns KCL 492R by attaching the necessary statutory documentsiii.That mere averments by the 2nd Respondent without any evidence to substantiate his claims do not amount to factsiv.The Claimant’s vehicle has been operating under the name and style of the 1st Respondent since 2017 when he became a member of the 1st Respondent, a fact the 2nd Respondent agrees with, save for the alleged cessation.v.That despite the 2nd Respondent alleging that the Claimant ceased being a member of the 1st Respondent on 31/12/2022 and 11/3/2023, the Claimant has annexed the list of management committee members as at 15th May 2023, showing that the Claimant was a committee member of Kinatwa.vi.That as per Bylaws 37(a) as read together with 47(a) of the 1st Respondent Bylaws, as well as Section 28(4) (a) of the Cooperative Societies Act, only members of 1st Respondent can be management committee members of the 1st Respondentvii.That if the Claimant ceased being a member of the 1st Respondent as alleged by the 2nd Respondent on 11th March 2023 AGM, the 1st Respondent's members would have elected another management committee member to replace the Claimant as provided for in the bylaws, as only members of 1st Respondent can be management committee members. That Indeed the Claimant attended the said AGM, as both a management committee member and a member of the 1st Respondent, and no such resolution was passed.viii.That the Claimant has established a prima facie case with a probability of success, by clearly showing that his rights as a member of the 1st Respondent were violated by the Respondents for unilaterally, arbitrarily, irregularly, unlawfully and without any legal justification for refusing to renew a Road Service License (RSL) for his motor vehicle registration number KCL492Rix.That the Claimant totally refutes the Respondents' claims that his membership ceased, the same cannot be determined at preliminary stage, the Respondent’s can argue the same substantively during the hearing of the main suit/claim.x.That the Claimant has suffered irreparable harm, immense economic loss, psychological anguish and social humiliation as he depends on the motor vehicle's returns/income to carter for his basic economic needs and that of his dependants. That for the last four (4) months, since the Respondents refused to apply for the renewal of the Road Service License (RSL) for his motor vehicle, the motor vehicle has been parked.xi.That in contrast, the Respondents stand to suffer nothing even if the Claimant was to continue operating his vehicle under the 1st Respondent's name, where it has been operating since 2017 and the Claimant goes on to lose the main case/claim. That the Respondents decision is purely political and an economic sabotage, for the political differences between the 2nd Respondent and the Claimant.xii.That the balance of convenience tilts in favor of confirming the interim orders issued on 24th December 2024, pending the hearing and determination of the suit. That the Respondents stand to suffer nothing while the Claimant will suffer irreparable harm/loss/injury, both economically, socially, psychologically and mentally, which will also extend to his dependants.xiii.That the argument by the Respondents that they cannot apply for the renewal of RSL for the Claimant's motor vehicle because it is detained in Kitui Police Station is lame and baseless, as the vehicle is not detained and no charges have been preferred against the driver of the said motor vehicle and the vehicle is road worthy, and only awaiting RSL to resume operations.As at the date of writing this ruling, the Respondents had not filed their written submissions.

9. We have considered the three applications dated 20. 12. 2024,2. 1.2025 and 10. 1.2025 the Replying Affidavits, Objections and all the documents filed, and the only question remaining for determination is as to whether confirm or lift the interim orders given on 24th December, 2024. Should the Tribunal Confirm or lift the interim orders given on 24th December, 2024?

10. The beginning point is to state that at this point of proceedings, this Tribunal still does not have the benefit of the full facts more than what has been presented in writing, as no testimony or cross-examination has been done at this point. To mean, at this point this Tribunal is not able to establish without a full hearing the following clearly:i.Whether the Claimant is a member or he ceased being a memberii.Whether the Claimant vehicle was sold or not,iii.Whether there is material non-disclosure and concealment of facts by the Claimant among many other questions of fact and law

11. At this point of proceedings, this Tribunal is guided by many court decisions, for example the decision in Mary Aliviza and Okoth Mondoh versus Ag Kenya and Secretary General of East African Community, application no. 3 of 2010, EACS 2005-2011 which stated that:“At this stage we must of course refrain from making any determination on the merits of the application or any defence to it. Decision on the merits or demerits of the case must await the substantive consideration of the facts and applicable law after full hearing of the reference.”

12. As such, this Tribunal at this stage of proceedings has confined itself to only consider the three tier test that relate to the confirmation or lifting of temporary orders already given.The three tier test requirement is well stated in Giella vs Cassman Brown & Co Ltd, (1973) EA 358 , and they require the party applying for mandatory injunction to establish a prima facie case, he or she must also show that they will suffer irreparable loss which may not be compensated by an award of damages if the temporary orders are not granted, and if the Court finds that the two requirements are not sufficient, it may decide the application(s) on the balance of convenience.

13. In this particular case at this stage, first, the Claimant has been able to present preliminary evidence confirming his membership with the 1st Respondent and ownership of the motor vehicle in question. That in itself satisfies the requirement of establishing a legal right with the probability of success - a prima facie case.

14. Second, in as much as the Respondents have alleged that the Claimant motor vehicle is already registered and in the colors of another society, they have not presented to this Tribunal any evidence at this stage to confirm the same, and as such we find no reason at this stage to not agree agree with the Claimant that if the orders are not confirmed, he will suffer irreparable harm that cannot be compensated by costs.

15. Last, we also find the balance of convenience to be in favor of the Claimant, as at this stage, we don’t see the prejudice the Respondents will suffer if the motor vehicle is cleared to be back on the road during the hearing and determination of the case.UPSHOTFinal Orders in relation to the three applications dated 20th December, 2024, 2nd January, 2025 and 10th January, 2025:i.The orders of 24th December, 2024 are confirmed and the Respondents are ordered to apply for the renewal of Road Service License and to allow the motor vehicle registration number KCL 492R belonging to the Claimant to resume operations under the name and style of the 1st Respondent pending the hearing of the suit.The Application dated 28. 1.2025 be held in abeyance to pave way for full trial.ii.Mention for pre-trial directions on 17. 9.2025iii.Costs of the Applications are in the suitiv.The contempt application dated 10. 1.2025 shall not be determined at this stage because it will prejudice the main hearing.as such no orders have been given to the said application pending hearing and determination of the main claim.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahMuriyo advocate for the claimantKamwendwa advocate for the Respondent