https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11655

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E046 OF 2026** **NANAISIO SHUTTLE SAVINGS AND** **CREDIT COOPERATIVE SOCIETY LIMITED….…1ST APPELLANT** **PAUL NGANGA KARANJA……………….………...…2ND APPELLANT** **NANAISIO (K) LTD………………………………….….3RD APPELLANT** **JOSIAH MURIMI NJOGU……………………..…......4TH APPELLANT** **TABITHA KARANJA……………………….…………...5TH APPELLANT** **ANTHONY WANJOHI NGARI…………..…….……..6TH APPELLANT** **-VERSUS-** **JOHN NDINGURI…………………………………..…1ST RESPONDENT** **JAMES MARTIN NGUNJIRI…………….….……...2ND RESPONDENT** **JOSEPH MUTHIGANI………………..……..……...3RD RESPONDENT** **BENSON KAHIHU NDERITU……………………....4TH RESPONDENT** **-AND-** **SAMWEL NJUKI MAHIGA, THE CHIEF OFFICER IN CHARGE OF DEPARTMENT OF TRADE, TOURISM, ENTERPRISE DEVELOPMENT AND CO-OPERATIVES AT THE COUNTY GOVERNMENT OF LAIKIPIA…………..1ST INTERESTED PARTY** **RICHARD WACHIRA, DIRECTOR OF CO-OPERATIVES AT THE COUNTY GOVERNMENT OF LAIKIPIA..2ND INTERSTED PARTY** **FELISTA MUTHEE, SUB-COUNTY COOPERATIVE OFFICER, LAIKIPIA EAST……………………………..3RD INTERESTED PARTY** **RULING** **INTRODUCTION** 1. Before this Court are four interlocutory applications arising from the same appeal, all of which revolve around the management, governance and affairs of the 1st Appellant, **Nanaisio Shuttle Savings and Credit Co-operative Society Limited**, following the ruling of the Co-operative Tribunal delivered on **26th March 2026** in Tribunal Cause No. E045 of 2025. 2. The appeal challenges the Tribunal's determination regarding, inter alia, the membership of the Society, the legality of its management, the validity of resolutions passed in respect of its affairs, and the consequential orders issued by the Tribunal concerning the governance of the Society. The Appellants contend that the Tribunal improperly determined contested issues of membership at an interlocutory stage, relied on extraneous considerations in identifying members of the Society, and granted mandatory orders which effectively disposed of substantive issues before trial. 3. The four applications before the Court have been filed against the backdrop of continuing disputes concerning the administration of the Society while the appeal remains pending. Although each application seeks distinct reliefs, they arise from the same factual matrix and substantially overlap in their objective of either preserving or enforcing the position created by the Tribunal's ruling. In the interests of judicial economy and to avoid inconsistent findings, the Court directed that they be heard together, and this composite ruling determines all four applications. **Procedural Background** 1. The dispute traces its origin to proceedings before the Co-operative Tribunal in **Tribunal Cause No. E045 of 2025**, wherein the Respondents instituted proceedings against the present Appellants challenging the governance and management of the 1st Appellant Society. The Respondents asserted that they were lawful members of the Society and sought various declaratory, injunctive and consequential orders relating to its management and affairs. 2. The Appellants, on the other hand, disputed the Respondents' status as members of the Society and maintained that membership could only be acquired in accordance with the Society's registered by-laws. Their position was that the Respondents neither complied with the prescribed admission procedures nor satisfied the requirements for lawful membership. Consequently, they contended that the Respondents lacked the capacity to participate in the management of the Society or to invoke the Tribunal's jurisdiction as members. 3. Following various interlocutory proceedings, the Tribunal delivered its ruling on **26th March 2026**, determining, inter alia, the Notice of Motion dated 22nd December 2025, the Notice of Motion dated 23rd January 2026 and the Preliminary Objection dated 27th January 2026. In that ruling, the Tribunal issued orders which substantially affected the governance and administration of the Society. Dissatisfied with those findings and orders, the Appellants lodged the present appeal together with the interlocutory applications now before this Court. **The Applications before the Court** 1. The first application is the **Notice of Motion dated 2nd April 2026**, brought principally under **section 81 of the Co-operative Societies Act**, **Order 42 Rule 6 of the Civil Procedure Rules** and other enabling provisions of the law. Through that application, the Appellants seek, among other reliefs, orders of stay of execution of the Tribunal's ruling, preservation of the subject matter of the appeal, restraint against interference with the affairs of the Society, and protective orders directed at the National Transport and Safety Authority (NTSA) concerning the Society's PSV operator portal and motor vehicle fleet pending the hearing and determination of the appeal. 2. The second application is the **Notice of Motion dated 30th April 2026**, in which the Appellants seek leave to amend the appeal by expunging the 1st Appellant Society as a party to the proceedings. The Applicants contend that upon obtaining further legal advice, they became aware that the Society, having been a defendant before the Tribunal, ought not to have been joined as an appellant in the appeal, and that the intended amendment would not occasion prejudice to the Respondents. 3. The third application is the **Notice of Motion dated 6th May 2026**, filed after the institution of the appeal. The Appellants contend that subsequent to the filing of the principal application, the Respondents convened a Special General Meeting scheduled for **8th May 2026**, whose agenda included matters touching on the governance, membership, finances, bank accounts, by-laws and management of the Society. The Applicants therefore seek urgent preservatory orders restraining the holding of the meeting, restraining continued access to the Society's NTSA operator portal, and preserving the Society's assets and management pending the hearing and determination of the application dated 2nd April 2026. 4. The fourth application is the **Notice of Motion dated 12th May 2026**, filed by the Respondents. Through that application, the Respondents seek injunctive orders restraining the Appellants from interfering with the management of the Society, holding themselves out as officials of the Society or acting contrary to the orders issued by the Co-operative Tribunal. In essence, the Respondents urge the Court to maintain and give effect to the Tribunal's ruling pending the hearing and determination of the appeal. **The Parties' Respective Positions** 1. The Appellants' case, as discerned from the Memorandum of Appeal, the various applications and the supporting affidavits, is that the Tribunal fundamentally misdirected itself both in law and in fact by treating disputed questions of membership as conclusively determined at an interlocutory stage. They contend that the Tribunal improperly relied on NTSA records rather than the Society's by-laws and register of members in determining who qualified as members of the Society. They further assert that unless preservatory orders are granted, the Respondents will continue to alter the Society's governance structures, membership records, finances and regulatory records in a manner that will render the appeal nugatory. 2. The Respondents oppose the applications and maintain that the Tribunal properly exercised its jurisdiction and correctly identified the lawful members and officials of the Society. Their position is that the Tribunal's orders remain valid and binding until set aside by this Court and ought to be respected. They therefore contend that it is the Appellants, rather than the Respondents, who should be restrained from interfering with the management of the Society pending the determination of the appeal. **Issues for determination** 1. Having considered the pleadings, the Tribunal's ruling, the Memorandum of Appeal, the four applications and the affidavits filed in support thereof, the Court is of the considered view that the following issues arise for determination: 2. ***Whether the Notice of Motion dated 2nd April 2026 satisfies the legal requirements for the grant of stay of execution and conservatory relief pending appeal.*** 3. ***Whether sufficient grounds have been established to warrant the amendment sought in the Notice of Motion dated 30th April 2026 by expunging the 1st Appellant from the appeal.*** 4. ***Whether the circumstances disclosed in the Notice of Motion dated 6th May 2026 justify the grant of further interim preservatory and injunctive relief pending determination of the principal application.*** 5. ***Whether the Respondents have established a basis for the grant of the injunctive orders sought in the Notice of Motion dated 12th May 2026.*** 6. ***What orders should issue as to costs and the future conduct of the appeal.*** 7. Before addressing each of the four applications individually, it is necessary to first set out the applicable legal principles governing the grant of stay pending appeal, interlocutory injunctions, preservatory orders, amendment of parties, and the scope of the Court's jurisdiction as a first appellate court. **The Role of the Court as a First Appellate Court** 1. Although the present matter concerns interlocutory applications pending appeal, this Court cannot lose sight of the fact that it sits as a first appellate court from the Co-operative Tribunal. Consequently, while the Court is not at this stage called upon to determine the merits of the appeal conclusively, it must nevertheless satisfy itself that the appeal raises bona fide and arguable issues deserving preservation pending its eventual hearing. 2. The duty of a first appellate court has long been settled. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123**, the former Court of Appeal for East Africa held that a first appellate court is obliged to reconsider the evidence, evaluate it afresh and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 3. That principle has consistently been reaffirmed by the Court of Appeal, including in ***Peters v Sunday Post Ltd* [1958] EA 424,** where the Court emphasized that although an appellate court exercises jurisdiction by way of rehearing, it should exercise caution before interfering with findings of fact made by the trial court, particularly where those findings depend upon the credibility of witnesses. 4. It follows that, at this interlocutory stage, the Court is not expected to determine whether the appeal will ultimately succeed. Rather, its duty is limited to considering whether the appeal discloses serious and arguable questions of law or fact that justify preservation of the subject matter pending its final determination. **Principles Governing Stay of Execution Pending Appeal** 1. The principal application dated **2nd April 2026** principally seeks stay of execution of the Tribunal's ruling pending appeal. The jurisdiction of this Court to grant such relief is donated by **Order 42 Rule 6 of the Civil Procedure Rules**, which provides that no appeal shall operate as a stay unless the court orders otherwise and sets out the conditions that must be satisfied before stay may issue. 2. The jurisprudence of the superior courts has consistently held that an applicant seeking stay pending appeal must satisfy three cumulative requirements: 3. ***that substantial loss may result unless the order is granted;*** 4. ***that the application has been made without unreasonable delay; and*** 5. ***that the applicant is willing to furnish such security as the court may order for the due performance of the decree or order ultimately binding upon him.*** 6. In ***Halai & Another v Thornton & Turpin (1963) Ltd* [1990] KLR 365**, the Court of Appeal held that those conditions are mandatory and must be satisfied before the court exercises its discretion in favour of an applicant. 7. Equally instructive is the decision in ***Butt v Rent Restriction Tribunal* [1982] KLR 417**, where the Court of Appeal observed that the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory where there exists a genuine appeal deserving judicial consideration. The Court further emphasized that the discretion should be exercised judiciously and not capriciously. 8. The concept of "substantial loss" remains the cornerstone of an application for stay. In ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another* [1986] KLR 410**, the Court of Appeal held that substantial loss is what has to be prevented by preserving the status quo because, without evidence of substantial loss, it is difficult to justify keeping a successful litigant away from the fruits of his judgment. 9. Accordingly, the Court's task is to balance two competing rights: on the one hand, the right of a successful litigant to enjoy the benefit of a judgment lawfully obtained, and on the other, the constitutional and statutory right of an unsuccessful party to pursue an appeal without that appeal being rendered futile by intervening events. **Preservation of the Subject Matter Pending Appeal** 1. The applications dated **2nd April 2026** and **6th May 2026** seek, in substance, preservatory orders aimed at safeguarding the governance structures, assets, regulatory records and operational affairs of the 1st Appellant Society pending the hearing of the appeal. 2. The Supreme Court has repeatedly underscored that preservatory orders are intended to safeguard the subject matter of litigation so that the court's eventual determination is not rendered academic. 3. In ***Board of Governors, Moi High School Kabarak & Another v Malcolm Bell* [2013] eKLR**, the Supreme Court held that preservatory relief serves to maintain the status quo pending the hearing and determination of the dispute so as to safeguard the authority of the court and preserve the efficacy of its eventual decision. 4. Likewise, in ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others* [2014] eKLR**, the Supreme Court explained that preservatory orders are not granted merely because an applicant has demonstrated a prima facie case. Rather, the court must consider whether the order is necessary to preserve the substratum of the dispute, uphold the public interest where applicable, and ensure that the appeal, if successful, is not rendered nugatory. 5. Although the present dispute arises from the governance of a co-operative society rather than a constitutional petition, the underlying rationale remains the same. The Court must carefully consider whether the affairs of the Society ought to be preserved in their present state so that the issues raised in the appeal remain capable of effective adjudication. **Principles Governing Interlocutory Injunctions** 1. The applications dated **6th May 2026** and **12th May 2026** each seek injunctive relief restraining the opposing party from dealing with the affairs of the Society pending the determination of the appeal. 2. The applicable principles remain those set out in the celebrated decision of ***Giella v Cassman Brown & Co. Ltd* [1973] EA 358**, namely: 3. ***The applicant must establish a prima facie case with a probability of success;*** 4. ***The applicant must demonstrate that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages; and*** 5. ***Where the court is in doubt, it should determine the matter on a balance of convenience***. 6. Those principles were further clarified by the Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others* [2014] eKLR**, where the Court held that the three requirements are sequential and distinct. A court must first determine whether a prima facie case has been established before proceeding to consider irreparable harm and, only where necessary, the balance of convenience. 7. The Court further emphasized that a prima facie case is not one that must ultimately succeed, but one which demonstrates an apparent infringement of a legal right requiring an answer from the opposite party. **Arguability of an Appeal and the Nugatory Principle** 1. The Court has also considered the guidance of the Court of Appeal in ***Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others* [2013] eKLR**, where it was held that an arguable appeal is not one that must necessarily succeed but one that raises at least a single bona fide point worthy of consideration by the appellate court. 2. Although that decision concerned **Rule 5(2)(b) of the Court of Appeal Rules**, the principles regarding arguability and preservation of the appeal remain persuasive when this Court exercises its discretionary jurisdiction pending appeal. 3. Consequently, the Court is not required at this interlocutory stage to determine whether the Tribunal was right or wrong. Doing so would amount to pre-judging the appeal. Instead, the Court need only determine whether the appeal raises genuine issues deserving preservation pending final hearing. **Principles Governing Amendment of Parties** 1. The Notice of Motion dated **30th April 2026** seeks to expunge the 1st Appellant from the appeal. The applicable principles governing amendment of pleadings and parties are well settled. 2. In ***Central Kenya Ltd v Trust Bank Ltd & 5 Others* [2000] eKLR**, the Court of Appeal held that amendments should generally be freely allowed if they are made in good faith, are necessary for determining the real questions in controversy, do not introduce a completely new cause of action, and do not occasion prejudice incapable of compensation by an award of costs. 3. The overriding objective embodied in **sections 1A and 1B of the Civil Procedure Act** further enjoins courts to facilitate the just, expeditious, proportionate and affordable resolution of disputes. However, that objective cannot be invoked to sanction amendments that fundamentally alter the nature of proceedings or prejudice accrued rights of the opposite party. **Applicable Approach in the Present Matter** 1. Having considered the applicable statutory provisions and the jurisprudence of the Supreme Court and the Court of Appeal, it is evident that the four applications are interconnected. While they seek different forms of relief, they all revolve around one central concern: the preservation or implementation of the governance and management of the 1st Appellant Society pending the determination of the appeal. 2. The Court must therefore exercise its discretion cautiously, ensuring that it neither determines the appeal prematurely nor grants interlocutory relief that effectively confers final remedies upon either party before the substantive appeal is heard. The guiding consideration throughout must be the preservation of the subject matter of the appeal, the avoidance of prejudice to either side, and the facilitation of a fair hearing of the appeal on its merits. 3. It is against these principles that the Court now proceeds to examine each of the four applications separately, beginning with the Notice of Motion dated **2nd April 2026**, which forms the principal application upon which the subsequent applications substantially depend. 4. Before delving into the merits of the four applications, I have carefully considered the pleadings, the affidavits both in support and in opposition, the annexures thereto, the rival written submissions filed by the parties, the authorities cited, and the applicable constitutional and statutory framework. **Analysis and Determination of the Notice of Motion dated 2nd April 2026** **The Principal Application** 1. The Notice of Motion dated 2nd April 2026 is the principal application before the Court. Through it, the Appellants principally seek an order of stay of execution of the ruling and consequential orders of the Co-operative Tribunal delivered on 26th March 2026, together with various preservatory and injunctive orders aimed at restraining the Respondents from administering the affairs of the 1st Appellant Society pending the hearing and determination of the appeal. 2. The application invokes, inter alia, Order 42 Rule 6 of the Civil Procedure Rules. It is therefore incumbent upon the Applicants to satisfy the Court that they have met the well-established conditions for the grant of stay pending appeal. **Whether the Application was Filed Without Delay** 1. There is no dispute that the impugned ruling was delivered on 26th March 2026, while the present application was filed on 2nd April 2026. 2. The Court is satisfied that the application was filed timeously and without unreasonable delay. The first requirement under **Order 42 Rule 6** has therefore been met. **Whether the Appeal is Arguable** 1. Having considered the Memorandum of Appeal, this Court is satisfied that the appeal raises arguable questions concerning the Tribunal's interpretation of the Society's by-laws, the question of membership, the evidential basis upon which the Tribunal reached its conclusions and the propriety of the orders granted. 2. As stated by the Court of Appeal in ***Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR***, an arguable appeal is not one which must necessarily succeed but one that raises at least a single bona fide issue deserving consideration. 3. The present appeal cannot therefore be said to be frivolous. However, the mere existence of an arguable appeal does not automatically entitle an applicant to an order of stay. The requirements under **Order 42 Rule 6** are cumulative. **Whether the Applicants Have Demonstrated Substantial Loss** 1. The Applicants contend that unless stay is granted, the Respondents will continue managing the Society, operate the NTSA portal, collect members' contributions, convene meetings and generally administer the affairs of the Society. While those concerns cannot be dismissed lightly, the Court must equally consider the practical effect of granting the orders sought. 2. The Tribunal's ruling was not a money decree. Rather, it concerns the governance and administration of a co-operative society whose day-to-day operations directly affect its members, employees, creditors, transport operations and regulatory obligations. 3. The orders sought by the Applicants would effectively suspend the implementation of the Tribunal's ruling and prevent the Respondents from carrying out the functions that the Tribunal recognised them as being entitled to perform. 4. In the Court's considered view, the inevitable consequence of such an order would be to leave the Society without certainty as to its governance and management pending appeal. 5. Courts should be slow to issue orders whose practical effect is to paralyse the operations of a corporate entity, particularly a co-operative society whose continued functioning serves numerous members who are not parties to the present proceedings. 6. The Applicants have urged that the affairs of the Society should be frozen pending appeal. However, governance is not an activity that can simply be suspended. A co-operative society must continue to meet its statutory obligations, regulate its members, manage its finances, comply with regulatory requirements and conduct its day-to-day operations. 7. Granting the stay sought would therefore not preserve the subject matter of the appeal. On the contrary, it would expose the Society to operational uncertainty and create a governance vacuum likely to prejudice both the members of the Society and third parties dealing with it. 8. The Court is therefore not persuaded that the Applicants have demonstrated substantial loss within the meaning contemplated under **Order 42 Rule 6**. What the Applicants principally seek is to suspend the implementation of the Tribunal's determination pending appeal. Yet, the prejudice that would be occasioned to the Society by such suspension outweighs the prejudice alleged by the Applicants. **The Balance of Convenience** 1. Even assuming that the Applicants had established substantial loss, the balance of convenience would not favour the grant of stay. 2. The Court of Appeal in ***Butt v Rent Restriction Tribunal [1982] KLR 417*** observed that the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory, while at the same time bearing in mind that a successful litigant should not ordinarily be deprived of the fruits of a judgment. 3. In the present case, the Tribunal has already rendered a decision regarding the interim governance of the Society. 4. Granting stay would not merely suspend execution of that ruling; it would effectively halt the administration of the Society and create uncertainty regarding who is authorised to discharge statutory, regulatory and operational responsibilities on behalf of the Society. Such an outcome would not serve the interests of justice. 5. The Court is persuaded that the greater prejudice lies in interrupting the continued operations of the Society than in allowing the Tribunal's orders to remain in force pending the hearing of the appeal. 6. The balance of convenience therefore favours allowing the affairs of the Society to continue in accordance with the Tribunal's ruling while ensuring that the appeal is heard expeditiously. **Exercise of the Court's Discretion** 1. This Court bears in mind that an appeal does not operate as a stay as of right. 2. The discretion conferred under **Order 42 Rule 6** must be exercised judiciously, taking into account the peculiar circumstances of each case. 3. In the present matter, the Court is not persuaded that the Applicants have established exceptional circumstances warranting suspension of the Tribunal's orders. 4. More importantly, the Court considers that granting stay would have the unintended consequence of disrupting the governance and operations of the Society, thereby affecting not only the litigants before the Court but also members and stakeholders whose interests remain dependent upon the continued functioning of the Society. 5. The justice of the case therefore lies in allowing the Society's affairs to continue under the prevailing legal framework while fast-tracking the hearing of the appeal. **Determination** 1. Accordingly, the Notice of Motion dated 2nd April 2026 lacks merit. 2. The prayer for stay of execution of the ruling and orders of the Co-operative Tribunal delivered on 26th March 2026 is declined. 3. Likewise, the various injunctive and preservatory orders sought in that application are declined, the Court being satisfied that granting them would substantially interfere with the continued governance and administration of the Society and would not serve the interests of justice. 4. The costs of the application shall abide the outcome of the appeal. **Analysis and Determination of the Notice of Motion dated 30th April 2026** **The Application** 1. The second application for determination is the Notice of Motion dated **30th April 2026**, brought by the Appellants/Applicants seeking principally that the **1st Appellant, Nanaisio Shuttle Savings and Credit Co-operative Society Limited**, be struck out or expunged from these appellate proceedings. The application is predicated upon the contention that upon obtaining further legal advice after lodging the appeal, the Applicants realized that the Society, having been sued as the **1st Defendant** before the Co-operative Tribunal, ought not to have been joined as an appellant in these proceedings. They therefore urge the Court to allow the amendment so that the appeal proceeds in the names of the remaining Appellants. 2. The application is supported by the affidavit of **Paul Ng'ang'a Karanja**, who deposes that the intended amendment is merely intended to regularize the proceedings, does not alter the substance of the appeal, introduces no new cause of action and will not occasion prejudice to the Respondents. 3. The Respondents oppose the application and contend that the appeal, as filed, was deliberate and that the Applicants ought not to be permitted to alter the character of the proceedings after the Respondents have responded to the appeal. **Applicable Principles** 1. The Court's jurisdiction to permit amendment of pleadings and parties is well established. The overarching consideration is whether the amendment is necessary for the just determination of the real questions in controversy and whether it can be allowed without occasioning injustice or prejudice incapable of compensation by costs. 2. In ***Central Kenya Ltd v Trust Bank Ltd & 5 Others******[2000] eKLR***, the Court of Appeal held that amendments before hearing should generally be freely allowed provided they are made in good faith, do not introduce a substantially different cause of action, and do not prejudice the opposite party beyond compensation by costs. 3. Likewise, in ***Institute For Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR***, the Court of Appeal reiterated that procedural rules are intended to facilitate, rather than hinder, the determination of disputes on their merits, and that amendments should ordinarily be permitted where they assist the Court in determining the real controversy between the parties. 4. These principles are further reinforced by **sections 1A and 1B of the Civil Procedure Act**, which require courts to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. Nonetheless, the Court must also ensure that the overriding objective is not invoked to sanction amendments that fundamentally alter the nature of proceedings or deprive the opposing party of accrued legal rights. **Whether the Intended Amendment is Necessary** 1. The Court has carefully considered the explanation offered by the Applicants. It is evident that the application stems from a concern regarding the proper constitution of the appeal following the realization that the Society itself, which was a defendant before the Tribunal, was also named as the 1st Appellant. However, this Court must interrogate not merely the explanation offered, but also the legal consequences of the amendment sought. 2. The Memorandum of Appeal challenges the Tribunal's findings concerning the governance and management of the Society. The Society itself is the corporate entity whose affairs form the very subject of the appeal. The orders issued by the Tribunal were directed, in significant measure, at the governance and administration of the Society. Consequently, the Society is not a peripheral party to these proceedings; rather, it lies at the centre of the dispute. 3. If the Society were removed as an appellant, questions would inevitably arise as to whether some of the substantive reliefs sought in the Memorandum of Appeal, and indeed in the interlocutory applications, could still be effectively pursued. Many of the preservatory orders sought relate directly to the Society's assets, management, NTSA operator portal, financial affairs and governance. Those are matters concerning the Society itself. 4. The Court is therefore unable to accept, without closer scrutiny, the Applicants' contention that removal of the Society would have no impact upon the nature or scope of the appeal. **Whether the Amendment Would Prejudice the Respondents** 1. The Respondents argue that they have responded to the appeal as framed and that permitting the amendment would fundamentally alter the proceedings. 2. While the Court accepts that the law favours amendments where they facilitate the determination of the real issues in controversy, it is equally true that amendments should not be allowed where they substantially alter the substratum of the proceedings or create uncertainty regarding the rights and obligations of the parties. 3. In the present case, the Court is not persuaded that the amendment sought is merely cosmetic or clerical. Rather, it concerns the identity of one of the principal parties in litigation involving the governance of a corporate body. 4. The Applicants have not demonstrated that the inclusion of the Society renders the appeal incompetent or that the continued presence of the Society would occasion any prejudice incapable of being addressed during the hearing of the appeal. 5. Conversely, striking out the Society at this interlocutory stage may generate additional procedural questions touching on locus standi, representation and the efficacy of the reliefs sought, thereby complicating rather than simplifying the determination of the appeal. **The Court's Exercise of Discretion** 1. The discretion to permit amendments is undoubtedly wide, but it is a judicial discretion to be exercised on settled principles and in furtherance of substantive justice. 2. In the circumstances of this case, the Court is not persuaded that the Applicants have established sufficient grounds to warrant the exercise of that discretion in their favour at this interlocutory stage. 3. The issue of whether the Society was properly joined as an appellant is not one that, on the material presently before the Court, threatens the competence of the appeal or prevents the Court from determining the substantive issues raised therein. If any questions arise concerning the capacity in which the Society participates in the proceedings, such issues can appropriately be canvassed at the hearing of the appeal or by way of specific legal argument directed to that question. 4. More importantly, this Court is mindful that the principal dispute concerns the governance and administration of the Society itself. It would therefore be imprudent, at this interlocutory stage and before hearing the appeal on its merits, to sanction the removal of the very corporate entity whose affairs constitute the subject matter of the litigation. 5. The Court is fortified in this conclusion by the need to preserve the integrity of the appellate process and to avoid making procedural orders that may inadvertently affect the substantive rights of the parties before those rights have been fully adjudicated. **Determination of the Application dated 30th April 2026** 1. Having carefully considered the Notice of Motion dated **30th April 2026**, the supporting affidavit, the applicable legal principles and the competing arguments of the parties, the Court finds that the Applicants have not demonstrated sufficient grounds to justify the amendment sought. 2. While the Court accepts that amendments should ordinarily be freely allowed, the amendment proposed in the present case touches on the participation of a central party to the proceedings and raises questions that are better addressed within the substantive appeal rather than through an interlocutory application. 3. Consequently, the **Notice of Motion dated 30th April 2026 is declined**. The question of the proper participation and representation of the 1st Appellant, should it remain a live issue, may be raised and determined during the hearing of the appeal, when the Court will have the benefit of the complete record and full submissions from the parties. 4. The costs of the application shall abide the outcome of the appeal. **Transition to the Remaining Applications** 1. Having determined the procedural application dated **30th April 2026**, the Court now turns to the two remaining interlocutory applications, both of which were precipitated by developments occurring after the filing of the principal application dated **2nd April 2026**. Unlike the application just determined, these applications concern competing claims to the interim management and control of the 1st Appellant Society and call for the Court to carefully balance the competing interests of preserving the subject matter of the appeal while avoiding the premature implementation or frustration of the Tribunal's impugned ruling. **Analysis and Determination of the Notice of Motion dated 6th May 2026** **The Application** 1. The third application before the Court is the Notice of Motion dated **6th May 2026**. The application was filed after the Court declined to grant *ex parte* interim orders in respect of the Notice of Motion dated **2nd April 2026** and directed that the same be served for inter partes hearing. 2. The Applicants contend that subsequent to the filing of the earlier application, the Respondents issued a notice convening a Special General Meeting scheduled for **8th May 2026** whose agenda included matters touching on the management of the Society, membership, financial affairs, appointment of advocates, issuance of by-laws, operation of the NTSA portal and other matters which, according to the Applicants, form the subject matter of the pending appeal. 3. The Applicants therefore urge the Court to restrain the Respondents from convening the meeting, operating the Society's affairs, accessing the NTSA portal and carrying out various administrative functions pending the hearing and determination of both the application dated **2nd April 2026** and the appeal itself. **Whether the Application is Distinct from the Earlier Application** 1. Having carefully considered the pleadings, the Court is of the view that the present application cannot be viewed in isolation. 2. The application expressly states that it is intended to preserve the subject matter pending the hearing of the Notice of Motion dated **2nd April 2026**. 3. Indeed, the substantive reliefs sought substantially mirror those sought in the earlier application, save that they are directed at developments said to have occurred after the filing of the first application. 4. The Court therefore considers the application dated **6th May 2026** to be supplementary to the principal application rather than an entirely independent application. **Whether the Court Should Restrain the Special General Meeting** 1. The Applicants urge the Court to restrain the Respondents from convening or conducting the Special General Meeting. 2. The basis of that prayer is that the proposed agenda touches upon the governance of the Society and may affect issues raised in the appeal. 3. While the Court appreciates those concerns, it must equally bear in mind that the Tribunal had already rendered its decision concerning the governance of the Society. 4. Unless stayed or set aside, judicial orders remain valid and enforceable. 5. The Court has already found that the Applicants have not established sufficient grounds to warrant an order staying the Tribunal's ruling. 6. It would therefore be inconsistent for the Court to decline stay on the one hand while simultaneously restraining the implementation of actions that flow directly from the Tribunal's decision on the other. 7. To grant the orders sought would, in substance, amount to granting a stay through the back door. 8. Courts ought not to grant indirectly what they have declined to grant directly. **Whether the Court Should Restrain the Respondents from Managing the Society** 1. The Applicants further seek orders restraining the Respondents from managing the Society, operating bank accounts, collecting members' contributions, appointing advocates, issuing by-laws, accessing the NTSA portal and generally administering the affairs of the Society. 2. Those prayers go beyond mere preservation. 3. If granted, they would effectively suspend the implementation of the Tribunal's ruling and prevent the Respondents from exercising the authority recognised by that decision. 4. The Court reiterates that an appeal does not automatically suspend the legal effect of a judgment or ruling. 5. More importantly, granting such sweeping orders would inevitably create uncertainty in the day-to-day administration of the Society. 6. A co-operative society is a continuing legal entity with statutory obligations owed to its members, regulators, financial institutions and third parties. 7. It cannot be placed in a position where no one can effectively discharge those responsibilities pending an appeal whose determination may take time. 8. The Court is therefore persuaded that the public interest, the interests of the members of the Society and the proper administration of the Society outweigh the prejudice alleged by the Applicants. 9. In the Court's view, allowing the Tribunal's orders to continue operating pending appeal is less prejudicial than suspending the governance of the Society altogether. **The NTSA Portal** 1. The Applicants also seek orders directed at the Director General of the National Transport and Safety Authority restraining implementation of any requests concerning the Society's PSV operator portal. 2. Apart from the fact that NTSA is not a party to these proceedings, no sufficient evidential basis has been laid demonstrating that immediate judicial intervention is necessary. 3. The apprehension expressed by the Applicants remains largely speculative. 4. Courts do not ordinarily grant injunctive relief on the basis of speculative fears unsupported by cogent evidence. 5. In any event, granting such orders would substantially interfere with the implementation of the Tribunal's decision, contrary to this Court's earlier findings. **Exercise of Judicial Discretion** 1. Judicial discretion must always be exercised in a manner that promotes substantive justice. 2. In the peculiar circumstances of this dispute, the Court considers that the greater prejudice lies in interrupting the operations of the Society than in allowing the Tribunal's orders to continue pending appeal. 3. The Applicants retain their undoubted right to prosecute the appeal. 4. Should the appeal ultimately succeed, this Court will be at liberty to grant appropriate reliefs. 5. However, at this interlocutory stage, the Court is not persuaded that sufficient grounds exist to restrain the continued administration of the Society. **Determination** 1. Consequently, the Notice of Motion dated **6th May 2026** is **without merit**. 2. The prayers seeking to restrain the Special General Meeting, management of the Society, operation of the NTSA portal, administration of the Society's affairs and the ancillary reliefs sought therein are **declined**. 3. The costs of the application shall abide the outcome of the appeal. **Analysis and Determination of the Notice of Motion dated 12th May 2026** **The Application** 1. The final application before the Court is the Notice of Motion dated **12th May 2026** filed by the Respondents. The application principally seeks orders restraining the Appellants from interfering with the management and affairs of the 1st Appellant Society pending the hearing and determination of the appeal. 2. The Respondents contend that the Co-operative Tribunal, in its ruling delivered on **26th March 2026**, determined the dispute regarding the interim management of the Society and recognized the Respondents as the persons entitled to administer its affairs pending the hearing of the claim before the Tribunal. 3. They aver that notwithstanding those orders, the Appellants have continued to hold themselves out as officials of the Society, interfere with its operations and frustrate the implementation of the Tribunal's ruling, thereby creating uncertainty in the governance of the Society. 4. The Respondents therefore urge the Court to restrain the Appellants from interfering with the management of the Society and to safeguard the implementation of the Tribunal's orders pending the hearing of the appeal. **Applicable Principles** 1. The Respondents seek injunctive relief under **Order 40 Rule 1** of the Civil Procedure Rules. 2. The principles governing the grant of interlocutory injunctions are now well settled. In ***Giella v Cassman Brown & Co. Ltd [1973] EA 358***, the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that irreparable injury would result if the injunction is withheld, and where the Court is in doubt, the application is determined on the balance of convenience. 3. The Court of Appeal reaffirmed those principles in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR***, emphasizing that the three requirements are sequential and not conjunctive. Unless a prima facie case is established, the Court need not proceed to consider the remaining limbs. **Whether the Respondents Have Established a Prima Facie Case** 1. The Respondents rely principally upon the Tribunal's ruling delivered on **26th March 2026**. 2. There is no dispute that the Tribunal issued orders concerning the interim governance of the Society. 3. Equally, there is no dispute that those orders remain in force, this Court having declined to stay their implementation. 4. In those circumstances, the Respondents continue to enjoy the benefit of the Tribunal's orders unless and until they are set aside by this Court upon determination of the appeal. 5. The question therefore becomes whether the Respondents require additional injunctive relief from this Court to secure rights that are already protected by the subsisting orders of the Tribunal. 6. In the Court's considered view, the answer is in the negative. 7. The Respondents have not demonstrated that the Tribunal's orders are incapable of enforcement or that there exists a legal vacuum necessitating fresh injunctive orders from this Court. 8. Should the Appellants act in disobedience of the Tribunal's orders, the law provides appropriate mechanisms for enforcement of court orders. The appellate process should not be converted into parallel enforcement proceedings. **Whether Additional Injunctive Orders Are Necessary** 1. This Court has already found that there is no sufficient basis for suspending the Tribunal's ruling pending appeal. 2. It necessarily follows that the Tribunal's orders continue to regulate the affairs of the Society unless varied or set aside. 3. The issuance of further injunctive orders by this Court would therefore add little practical value and would merely duplicate orders already in existence. 4. Courts do not ordinarily issue orders that are unnecessary, repetitive or incapable of serving any useful legal purpose. 5. Moreover, granting the orders sought may inadvertently be construed as affirming the correctness of the Tribunal's findings before the appeal has been heard and determined. 6. Such a course would be inconsistent with the Court's duty, as an appellate court, to approach the appeal with an open and impartial mind. **The Proper Course** 1. The Court considers that the proper course is to allow the Tribunal's orders to continue operating in accordance with the law while the appeal is prepared for hearing. 2. The parties remain under a legal obligation to obey those orders. 3. If either party considers that the Tribunal's orders are being disobeyed, the appropriate remedy lies in the lawful enforcement of those orders before the court or tribunal clothed with the requisite jurisdiction, and not through the issuance of fresh interlocutory injunctions in the appeal. 4. This Court is therefore not persuaded that the circumstances of this case warrant the grant of the additional injunctive relief sought by the Respondents. **Determination** 1. Accordingly, the Notice of Motion dated **12th May 2026** is **declined**. 2. The Court does so not because the Tribunal's orders lack force, but because those orders remain valid and enforceable unless set aside, and no sufficient basis has been established for the issuance of further or duplicative injunctive orders by this Court. 3. The costs of the application shall abide the outcome of the appeal. **Transition to the Final Phase** 1. Having now determined all four interlocutory applications, what remains is to consolidate the Court’s findings into the final dispositive orders. 2. Those final orders will reflect the Court’s determination that: 3. ***The application dated 2nd April 2026 for stay lacks merit and is dismissed;*** 4. ***The application dated 30th April 2026 seeking to expunge the 1st Appellant is dismissed;*** 5. ***The application dated 6th May 2026 seeking supplementary preservatory and injunctive relief is dismissed; and*** 6. ***The application dated 12th May 2026 is likewise dismissed because the Tribunal’s orders remain operative and no additional injunctive orders are necessary***. **Transition to the Final Phase** 1. Having now determined each of the four interlocutory applications, it remains for the Court to consolidate its findings into final dispositive orders. In doing so, the Court will ensure that the orders issued are coherent, mutually consistent and directed towards preserving the subject matter of the appeal while facilitating its expeditious hearing. 2. Having carefully considered the four applications, the affidavits filed in support and in opposition thereto, the rival submissions by counsel, the Record of Appeal, the ruling of the Co-operative Tribunal delivered on 26th March 2026, and the applicable law, the Court now renders its determination. 3. This Court reiterates that it is presently exercising interlocutory jurisdiction. It is therefore neither required nor permitted to determine the merits of the appeal at this stage. The Court's mandate has been confined to determining whether the Applicants and the Respondents have respectively satisfied the legal thresholds for the interlocutory reliefs sought. 4. The Court has found that although the appeal raises arguable issues worthy of judicial consideration, the Appellants have failed to satisfy the requirements for the grant of an order of stay under **Order 42 Rule 6 of the Civil Procedure Rules.** 5. In particular, the Court is not persuaded that the Applicants have demonstrated substantial loss of the nature contemplated by the law. On the contrary, the evidence placed before the Court demonstrates that granting the orders sought would likely interrupt the governance and day-to-day operations of the 1st Appellant Society, thereby prejudicing not only the parties before the Court but also the Society's members and other stakeholders whose interests depend upon its continued operation. 6. The Court is alive to the fact that a co-operative society is a continuing corporate entity established for the benefit of its members. It cannot suspend its operations merely because an appeal has been lodged. Matters concerning governance, financial administration, regulatory compliance and the discharge of statutory obligations must continue pending the determination of the appeal. 7. The Court is therefore satisfied that the interests of justice are better served by allowing the orders of the Co-operative Tribunal to remain operative pending the hearing and determination of the appeal rather than creating uncertainty in the management of the Society. 8. Equally, the Court has found that the subsequent applications dated 6th May 2026 and 12th May 2026 do not disclose sufficient grounds warranting the grant of additional interlocutory relief. 9. The application dated 6th May 2026 substantially seeks orders whose effect would be to restrain the implementation of the Tribunal's ruling notwithstanding this Court's refusal to grant stay. To grant those orders would amount to indirectly granting the very relief that the Court has declined under the application dated 2nd April 2026. 10. Similarly, while the Respondents' application dated 12th May 2026 is founded upon the continued validity of the Tribunal's ruling, this Court finds that the Tribunal's orders remain enforceable in accordance with the law and that no sufficient basis has been established for the issuance of fresh injunctive orders duplicating the effect of those subsisting orders. 11. As regards the application dated 30th April 2026, the Court remains unconvinced that sufficient grounds have been established for the removal of the 1st Appellant from these proceedings at this interlocutory stage. The issue raised therein is one that may more appropriately be addressed during the hearing of the substantive appeal should it remain live. 12. In the premises, the Court reaches the conclusion that none of the four applications satisfies the threshold for the grant of the respective interlocutory reliefs sought. **Final Orders** 1. Accordingly, the Court makes the following orders: 2. ***The Notice of Motion dated 2nd April 2026 is dismissed.*** 3. ***The prayer for stay of execution of the ruling and orders of the Co-operative Tribunal delivered on 26th March 2026 is declined.*** 4. ***The Notice of Motion dated 30th April 2026 is dismissed.*** 5. ***The Notice of Motion dated 6th May 2026 is dismissed.*** 6. ***The Notice of Motion dated 12th May 2026 is dismissed.*** 7. ***The orders issued by the Co-operative Tribunal on 26th March 2026 shall remain in force pending the hearing and determination of the appeal unless varied or set aside by a competent court.*** 8. ***Nothing contained in this ruling shall be construed as determining the merits of the appeal, which shall be heard and determined on the basis of the Record of Appeal and the parties' respective submissions.*** **Directions on the Appeal** 1. While the Court has declined the interlocutory applications, it remains conscious that the appeal raises important questions touching on the governance of the 1st Appellant Society. It is therefore in the interests of justice that the appeal be heard and determined without undue delay. 2. Therefore, the Record of Appeal and submissions shall be filed within **Fourteen (14) days.** 3. The matter shall be mentioned before the Deputy Registrar on **18th August, 2026** for compliance. **Costs** 1. As all the applications arise from the same appeal and concern substantially the same dispute, the Court considers it appropriate that the costs of all the four applications shall abide the outcome of the appeal. **Conclusion** 1. Before taking leave of this matter, the Court reiterates that the findings contained in this ruling are confined solely to the interlocutory applications. They should not be construed as expressing any final opinion on the merits of the appeal, which shall be determined upon a full re-evaluation of the record and the applicable law. 2. It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2026.** **HON L. P. KASSAN** **JUDGE**