Nyabomite Farmers Co-operative Society Ltd v Oyaro & 2 others (Tribunal Case E969 of 2025) [2026] KECOPT 293 (KLR) (9 July 2026) (Ruling)

Nyabomite Farmers Co-operative Society Ltd v Oyaro & 2 others (Tribunal Case E969 of 2025) [2026] KECOPT 293 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KECOPT 293 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E969 of 2025 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members July 9, 2026 Between Nyabomite Farmers Co-operative Society Ltd Claimant and Josiah Oyaro 1st Respondent David Nyaribo 2nd Respondent Alfred Nyairo 3rd Respondent Ruling 1.The Notice of Motion Application dated 13th November, 2025 is brought under Section 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule (1) of the Civil Procedure Rules, Section 27(6), (8), (9) and (10) and Section 78(5) of the Co-Operative Societies Act (No. 12 of 1997) seeking among others Orders:1.Spent.2.That pending the hearing and determination of the Application, the Honourable Court be pleased to suspend the Notice dated 4/11/2025 calling for a Special General Meeting of the Applicant Society on 18/11/2025.3.That pending the hearing and determination of the Application or until further orders of the court, the Honourable Court be pleased to issue a temporary injunction restraining the Respondents, their agents, proxies or anybody else from issuing Notices, calling any meeting of the Applicant Society or interfering with the management affairs of the Claimant/Applicant.4.That pending the hearing and determination of the suit or until further orders of the court, the Honourable Court be pleased to issue a temporary injunction restraining the Respondents their agents, servants, proxies or anybody else from calling any meeting of the Applicant Society or interfering with the management affairs of the Claimant/Applicant.5.That the OCS Nyamira Police Station be ordered to enforce the Orders of this Honourable Court.The Application was supported by the Affidavit of Jeremiah Okinyi Obaga on the grounds:i.That the Respondents together with other illegitimate members have illegally issued a Notice dated 4th November, 2025 calling for the Special General Meeting of the Applicant Society on 18th November, 2025 and are determined to chair the said meeting when they are not duly elected in office to call or preside any Society the meeting contrary to the clear provisions of the Act, Rules and by-laws of the Applicant Society.ii.That the Applicant Society held its Annual General Meeting on 25th September, 2025 less than two months back, if the Applicant had any issue the same would have been raised in the said general Meeting for deliberations.iii.That the Respondents are calling the Special General Meeting for the "Ministry of Co-Operatives to attend" and read the Inspection Report. It is very strange that the Respondents have not specified who has the report from the Ministry of Co-operatives. The attendance of the "Ministry" for the said SGM is not known.iv.That Applicant Society has got over eight thousand (8000) members, a handful of them cannot purport to sign a piece of paper and convene the meeting of the Society. This is clearly a recipe for chaos.v.That if at all there is a report to be read by the Commissioner or his representative, the said Commissioner has powers (himself) to convene the Special General Meeting under Section 27(8) and (9) of the Act, to table the agenda item to be discussed at the floor of the meeting and preside over the said meeting as mandated by law.vi.That be as it may, it is illegal and uncalled for, for the members of the Society to purport to call a Special General Meeting of the Society and direct the Commissioner or his representative which matters are to be discussed in the said meeting. This is absolutely illegal and out of order.vii.That the Respondents were removed from office on 11/10/2018 following the recommendations contained in the Inquiry report prepared by the Commissioner for Cooperatives and adopted by the members Special General Meeting.viii.That the Respondents were surcharged by the Commissioner for Cooperatives pursuant to Section 73 of the Cooperative Societies Act which Surcharge was confirmed by the Honourable Cooperative Tribunal in its Ruling delivered on 23/7/2020 and the High Court Nyamira also confirmed the award of the Cooperative Tribunal on 1/7/2021.ix.That despite the High Court pronouncing itself on the matter and upholding the Surcharge Orders, the Respondents are stubbornly purporting to assert themselves as the officials of the Claimant/Applicant Society and are inciting other members to cause disharmony within the membership of the Society.x.That the Respondents have in the previous occasions held illegal meetings when they are not in office thus masquerading as the duly elected officials of the Society which is not the case here. 2.This Tribunal on 17th November, 2025 granted prayer 2 in the interim, suspending the Notice dated 4/11/2025 calling for a Special General Meeting of the Applicant Society on 18/11/2025. The Tribunal also gave the Respondents 30 days to respond to the Application and the main claim.As at the time of writing the judgement, the Respondents had not filed any response to the main claim or the application. 3.Has the Claimant met the threshold for grant of Temporary Injunction?The threshold for the grant of temporary injunction was set out in the case of Giella v Cassman Brown Co. Ltd (1973) 358. That threshold first begins by the party applying for the grant of Temporary Injunction establishing a prima facie case with a probability of success, then second the Applicant must also show that they would suffer irreparable injury which would not adequately be compensated in damages, and third if the court is in doubt, it will decide the application on a balance of probabilities.A prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank Kenya Ltd & 2 others [2003] eKLR as follows:“a prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”The High Court also in the case of Dr. Simon Waiharo Chege v. Paramount Bank of Kenya Ltd. Nairobi (Milimani) HCCC No. 360 of 2001 held that:“The remedy of injunction is one of the greatest equitable reliefs. It will issue in appropriate cases to protect the legal and equitable rights of a party to litigation which have been, or are being or are likely to be violated by the adversary. To benefit from the remedy, at an interlocutory stage, the applicant must, in the first instance show he has a prima facie case with a probability of success at the trial. If the court is in doubt as to the existence of such a case, it should decide the application on a balance of convenience. And because of its origin and foundation in the equity stream of the jurisdiction of the courts of judicature, the applicant is normally required to show that damages would not be an adequate remedy for the injury suffered or likely to be suffered if he is to obtain an interlocutory injunction. As the relief is equitable in origin, it is discretionary in application and will not issue to a party whose conduct as appertains to the subject matter of the suit does not meet the approval of the eye of equity.” 4.For the record, the instant application is not opposed and this Honourable Tribunal is persuaded at this preliminary stage that the issues raised meet the threshold of a prima facie case with the probability of success. Those issues include but not limited to:i.The fact that the Respondents were removed from office through an inquiry report and are not the current office holders, and such cannot convene a meeting of the society,ii.The alleged illegal notice dated 4th November, 2025iii.The fact that the SGM is being called within two months after the SGM without a clear reason of why the issues were not discussed at the AGM or the urgency of the SGM explainediv.The opaqueness of who is coming to read the Investigation Report in the Notice from the Ministry of Co-operativesv.The fact that it is only a handful of members who have registered for the SGM against the background that the society has 8000 members 5.Second, by the application being unopposed, this Honourable Tribunal has no evidence or argument on record to assure itself that the Respondents are able to satisfy the award of damages in the event of any damages being awarded to the applicants by the Tribunal. In Nguruman Limited v Jan Bonde Nielson [2014] KEHC 1718 (KLR), the High Court observed that:“The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 6.Last, by the application being unopposed, this Honourable Tribunal is not persuaded that it is the most fair and right thing to do, to give the benefit of doubt to a party who has not presented any argument or evidence to show how they will suffer or get hurt by their SGM being paused awaiting the hearing and determination of the suit. As such, the balance of convenience can only favour the parties who presented their evidence and argument of how they will suffer or get hurt. Final Orders 7.We find merit in the Notice of Motion Application dated 13th November, 2025 and order as follows:1.The Notice dated 4/11/2025 calling for a Special General Meeting of the Applicant Society on 18/11/2025 is suspended pending the hearing and determination of the main suit2.The Respondents, their agents, proxies or anybody else are temporarily restrained from issuing Notices, calling any meeting of the Applicant Society or interfering with the management affairs of the Claimant/Applicant Society pending the hearing and determination of the main suit.3.The OCS Nyamira Police Station is ordered to enforce the Orders of this Honourable Tribunal pending the hearing and determination of the main suit. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JULY, 2026.HON. J. MWATSAMA CHAIRPERSON SIGNED 9/7/2026HON. B. SAWE MEMBER SIGNED 9/7/2026HON. FRIDAH LOTUIYA MEMBER SIGNED 9/7/2026HON. M. CHESIKAW MEMBER SIGNED 9/7/2026HON. P. AOL MEMBER SIGNED 9/7/2026Court Assistant – MutaiRuling delivered in the absence of parties.Mention for pre-trial directions on 15/9/2026HON. J. MWATSAMA CHAIRPERSON SIGNED 9/7/2026