[2024] KECPT 967 (KLR)

Njagi v Mwiti (Tribunal Case 960 (E1032) of 2022) [2024] KECPT 967 (KLR) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 967 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 960 (E1032) of 2022

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

May 30, 2024

Between

Salesio Njiru Njagi

Claimant

and

David Mwiti

Respondent

Judgment

Claimant’s Case 1. The Claimant’s case is based on the Statement of Claim dated 8/12/2022, his Witness Statement of 7/7/2023 and documents dated 8. 12. 2022. He prosecuted his case during the hearing on 6/11/2023 and filed his Written Submissions on 14/1/2024.

2. In his Statement of Claim, the Claimant states that he was a member of the Respondent, member number 392 and he was a General Manager. He states that on 15/3/2022, he received a letter dated 24/2/2022 expelling him from the Respondent. The letter cited Annual General Meeting 11/2/2022 authority under min/5/11/2/2022. He claims that this letter was illegal.He states that the letter was served to him on 15/3/2022, 21 days after it was written.

3. The said letter quoted Section 15. 1 to 15. 4 of the Respondent’s By-laws and does not specify the specific clause. He further stated that the appealed his expulsion to the board on 10/3/2022 but his appeal was ignored.He avers that he was not given an opportunity to defend himself in the 11/2/2022 Annual General Meeting. He claims that he had not received any letter from the Respondent as alleged in Article 12 of the Annual General Meeting Report.He avers that the Board wanted to ambush him with the expulsion agenda during the Annual General Meeting.He denies ever conveying any misleading information to the members as alleged by the Respondent. He equally denies allegations of immorality and dimetia and states that this allegation is very serious.

4. In a subsequent letter dated 14/11/2022, the Respondent wrote to the Claimant advising him to collect the following: Sacco shares Kshs. 193,903. 23/=

Shares deposit Kshs. 147,123. 30/=

Co-operative Bank shares Kshs. 372,120/=

The Claimant does not agree with this tabulation.He states that he is being punished for highlighting the words in the Sacco (Respondent)He admits writing a memorandum dated 15/7/2019 and 9/9/2019 complaining on Board malpractices.The Claimant further wrote to the Country Director on 4/12/2019 on the same and states it is illegal to expel him for fighting for his rights.He again states expulsion from the Sacco will make him suffer loss of business as he was being forced to sell shares in a hurry.He prays this Court to stop the expulsion.

5. The same position is maintained by the Claimant in his Claimant Statement praying the Court to stop the expulsion.The 2nd Claimant Witness Ms. Rosemary Gitiri Njiru is dated 7/7/2023. The witness states that she knows the Claimant as a long serving director and Chairman of the Respondent.She confirms attending the 11/2/2022 Respondent’s Annual General Meeting and states that she heard the Chairman saying that the Claimant had been expelled from the Respondent.She stated that the Claimant requested for a chase to respond but was denied that chance.

6. During the hearing of the Claimant’s case on 6/11/2023, the Claimant Salesion Njiru Njage adopted his Statement and Documents as his Evidence- in-Chief.He states that his case revolves around the Respondent Annual General meeting of 4/2/2022 which he attended and allegedly expelled vide a letter from the Respondent dated 15/3/2022. He states that the Sacco threatened to close his accounts by 31/12/2022. The Claimant explained that he is being expelled for championing for his rights. He further confirmed writing memorandum to the Sacco (Respondent) which he believes occasioned his expulsion.He confirmed he is a pioneer member having served as: Security credit.

Chair-audit committee

Audit committee

Secretary to the Board

Chairman of the Board.

He states that he left the leadership voluntarily because of malpractices.The Claimant confirmed that there are other similar Saccos in the neighborhood which he has not joined claiming that his life is in the Respondent Sacco.claimant confirmed that he was accused of inciting the Sacco members and that the Claimant Witness Emilio Njagi was his cousin.The Claimant denied attempting to snatch microphone from the Chairman of the Respondent during the Annual General Meeting. He states that he wondered why he was the first to be expelled.He states that he was not given a chance to defend himself and that the Annual General meeting did not approve his expulsion.The Claimant prayer is this court to protect him from the illegal expulsion.

7. Claimant Witness number 2 Rosaline Njiru adopted her Written Statement 7/7/2023 as her Evidence- in- Chief. She confirmed she is member number, 2411 of the Respondent Sacco and that she attended the Annual General Meeting of 11/2/2023. She confirmed knowing the Claimant because he was once a Chairman until when he was voted out.She stated that the Claimant snatched the microphone from the Chairman. She confirmed that witness Emilio Njagi is familiar to her but does not know how they relate with the Claimant.She confirmed that her Statement was written in ‘Kimeru’ and another person interpreted in English.

Respondent’s Case. 8. The Respondent’s case is based on the Statement of Defence dated 11/1/2023, Witness Statement of 6/2/2023 and 11/1/2023. He has also filed documents dated 7/2/2023 to support his case.In the Defence Statement, the Respondent denies that the Claimant is a member of the Respondent since he was expelled on 11/2/2022. The Respondent states that the Claimant did not make any appeal to the Annual General Meeting.The Respondent avers that the letter of expulsion dated 27/3/2021 was very clear and that the reasons for the expulsion were well enumerated.The Respondent admits the Claimant’s Statement number 12 which tabulates the amounts claimed; that isi.Sacco shares – Kshs. 193,903. 23/=ii.Shares deposits – Kshs. 147,123. 30/=iii.Cooperative Bank Class A shares – Kshs. 372,120. 00/=

9. The Respondent denies that the act of expelling the Claimant was malicious and that the Claimant did not exhaust available dispute resolution mechanisms before coming to this court.The Respondent had 3 Witness Statements, namely; Emilio Ireri Njagi

Henry Njue Mbogo

In his Written Statement, Mr. Emilion Ireri Njagi confirmed he is a member of the Respondent and he is a cousin to the Claimant.He states he was approached by the Claimant with a view to cause chaos during the Respondent’s Annual General Meeting. He states that the Claimant tried to persuade him to vote out the incumbent Board. He stated that some members withdrew their pay points of their tea sales.He stated the Claimant tried to snatch the microphone from the Chairman of the Respondent during an Annual General Meeting.

10. On his part, Mr. Henry Njue Mbogo confirmed that he knows the Claimant. He stated that he is the current Chairman of the Respondent.He confirmed that in March 2011, his Board decided to expel the Claimant from being a member of the Board for violating by-law number 15 (i) and (iv).He states that the Claimant had incited members of the Respondent against the Respondent. He has tabulated the issues that informed the Board decision.He states that the board of the Respondent legally suspended the Claimant and avers that the Claimant attempted to strip him from addressing the Annual General Meeting by snatching the microphone from him.He states that the Claimants supporters were shouting that the Claimant was the Chairman and not himself.He stated that he was informed that the Claimant’s intention was to mobilize his supporters to vote the current Board out of the office. He asserts that the Claimant is not a good leader.

11. The Respondent has filed various documents on 9/2/2023 to support his case. Among these documents are: Letter to various government offices.

Chairman’s report in 25/3/2023 Annual General Meeting

Various letters to the Claimant

Minutes of 11/2/2022 Annual General Meeting

Respondent’s bylaws.

During the hearing of the Respondent’s case on 6/11/2023, the Respondent Mr. Henry Njue Mbogo adopted his statement of 6/2/2023 and his documents dated 9/2/2023 as his Evidence- in -Chief.

12. On cross examination, he stated that he expelled the Claimant using the by-laws of the Respondent which he stated had produced in court.He explained the process of expelling a board member. He confirmed writing the 27/3/2021 letter to the Claimant.He confirmed that the letter dated 27/3/2021 was a suspension not expulsion.He stated that he wanted the Claimant expelled due to his persistent trouble making and that the Claimant’s major problem was writing letters to government offices and inciting members against the Board.He confirmed that none of the government offices responded to the Claimant’s letters.RW1confirmed that some letters were written by the Claimant while he was in office.He testified that he was not aware why the Claimant was fighting his board.He denied that his action to expel the Claimant was not extreme.RW1 confirmed that the Claimant was the first member to be expelled in his tenure as chairman. He confirmed that the expulsion of the Claimant was not a substantive agenda in the Annual General Meeting and that it was in the Chairman report.He stated that the Claimant is difficult and can’t change and that he rejects his prayer to be taken back.

13. Respondent Witness Ms. Teresa Wanjiku Ndwiga states she is a tea farmer and adopted her Witness Statement of 11/1/2023 as her evidence. She states that the Claimant tried to snatch the microphone from the Chairperson.

14. The Respondent Witness Mr. Emilio Njagi also adopted his Statement of 11/1/2023 as his Evidence- in -Chief. He confirmed attending the Annual General Meeting and confirms that the Claimant was not allowed to talk.

15. In his Written Submissions dated 1/1/2024, the Respondent states that the Claimant has not proved his case.He argues that the Claimant’s case is in bad faith, he states that the expulsion of the Claimant was legal.He states that the Respondent’s Witness had proved that the Claimant had committed gross misconduct that warrant removal from the Respondent.He states that the Claimant did not exhaust the dispute resolution options available before filing the case.

Analysis. 16. We have perused all the documents and Statements filed by both parties and the hearing of the case and find that the Respondent did not accord the suspension and subsequent expulsion of the Claimant adequate room before the matter was filed in this court.During the board meeting of 25/3/2021 where the Claimant was suspended, we note that the suspension agenda was substantive in the meeting agenda.

17. We observe that the matter was discussed under MIN/7/25/3/2021 Sub-committee reports item (iii). Given the nature of and implications of such action, we feel that this should have been a substantive agenda in the meeting.

18. We also observe that during the Annual General Meeting of 11/2/2022 the expulsion of the Claimant was mentioned in the Chairman’s report and not in a substantive agenda.

19. Under Min 5/11/2/2022 Chairman’s Report, item (xi) … expulsion from the Society, the Claimant’s fate was sealed through a wholesome proposing and seconding of the Chairman’s report.The expulsion item was not separately discussed in the spirit of Law and natural justice.We have also noted from the Respondent Witness that the Claimant was a persistent complainant regarding the way the board was running the Respondent.We are of the opinion that it is the Claimant’s right to express himself but within the prescribed rules and regulation of the Respondent.

20. In view of the foregoing, we find that the Claimant has adequately prosecuted his case and pass judgement in favour of the Claimant against Respondent and order as follows:1. Reinstatement of the Claimant back to the Respondent Sacco with all benefits due to him.2. Costs of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 5.2024HON. PAUL AOL MEMBER SIGNED 30. 5.2024Tribunal Clerk JonahNjiru Mbogo advocate for the Claimant.Ms. Njagi advocate for the Respondent.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024