[2021] KECPT 505 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.119 OF 2020

NYAIGWA FARMERS CO-OPERATIVE

SOCIETY LIMITED................................................................CLAIMANT

VERSUS

GUSII COFFEE FARMERS CO-OPERATIVE

UNION LIMITED ........................................................... RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Application dated 4. 3.2020. It seeks for the following Orders:

1. Spent;

2. That this Honourable Tribunal be pleased to issue a temporary injunction to the Respondents by themselves, their agents, servants and/or any other person from suspending the Claimant from the Respondent’s union until the hearing and determination of this Application;

3. That this Honourable Tribunal be pleased to issue a permanent injunction against the Respondents by themselves, their agents, servants and/or any other person from suspending the Claimant from the Respondent’s union until the hearing and determination of this suit;

4. That the Honourable Tribunal be pleased to order the Re-admission of the Claimant into the Respondent’s Union forthwith;

5. That the OCS Kisii town to ensure compliance of the Orders of this Honourable Court; and

6. That the costs of this Application be provided for.

The Application is supported by the grounds on its face the Affidavit sworn by Stephen Ngare Ogamba, the Claimant’s Chairman on even (4. 3.2020). The Respondent has opposed the Application vide the Replying Affidavit sworn by Robert G.N.Mainya,itsChief Executive Officer on 5. 8.2020.

Vide the directions given on 23. 7.2020, the Application was canvassed by way of written submissions. The Claimant filed its written submissions on 28. 10. 2020 while the Claimant did so on 16. 11. 2020.

Claimant’s Contention

Vide the instant Application, the Claimant seeks injunctive Orders against the Respondent on grounds that on 24. 4.2018, the Respondent purportedly wrote a letter suspending the Claimant from its membership without being shown cause. That it was never invited to attend the alleged Annual General Meeting where the suspension was arrived at. That the Claimant protested as much about the said Annual General Meeting which is purported to have been held on 22. 12. 2017.

That the Claimant has suspended one John Nyakundi Omariba who was one of the officials of the Claimant in the year 2018 but the Chief Executive Officer of the Respondent recalled him and made him sign a letter dated 17. 8.2017.

That a letter dated 5. 5.2017 was copied to the County Commissioner of Co-operatives and the Claimant’s Chairman. That when the Chairman went to see the Commissioner in the year, 2018, the Commissioner brought up the issue of suspension and the chairman told him that he was not aware about the same. That it was at this point when the Commissioner handed him a copy of the letter of suspension.

That all the allegations leveled against it by the Respondent vide the letter dated 17. 8.2017 was false and fabricated and are only geared towards sending it away from the union because he was vocal in questioning fraud meted out by the management of the Management of the Respondent against individual societies. That in particular, the chairman of the Claimant has been questioning the Respondent for selling its properties arbitrarily and without obtaining the nod of its individual members. That secondly, the Claimant is being suspended from the Respondent is because the claimant prevailed upon the chief executive officer to retire since he had attained the mandatory retirement age and that he was only overstaying so as to continue mismanaging its properties.

That the Respondent has arbitrarily altered its by-laws without involving all its members.

Respondent’s Contention

Through the Replying Affidavit sworn by Robert G.N. Mainya on 5. 8.2020, the Respondent has opposed the Application on the following grounds:

That the Claimant is no longer a member of the Respondent as it jeopardized the Respondent’s operations by failing to participate in repayment of the loan the Respondent had thereby resulting in the Respondent selling its properties to salvage the situation.

That the Claimant’s members Zachary Mogaka, John Nyakundi Omariba, Hepsibah Bogonkoand James Mokanga never went to the Respondent’s office in 2017 to collect a cheque.

That the Respondent’s letter dated 17. 8.2017 required the Claimants management to appear before the Respondent on 8. 9.2017 but the claimant blatantly ignored the invitation. That the purpose of the invitation was because the Claimant had blatantly derailed from its obligation towards the Respondent. That it had totally violated its by-laws and also violated the Co-operative Societies Act and Rules and that the Respondent was giving it a chance to explain itself on the same.

That some of the gross –violations against the by-laws include;

a. Abandoning the Respondent’s service, including signing and controlling their expenses as per the unions’ by-laws, since the year, 2015 without notifying the union;

b. Excluding the Respondent from being a signatory to its Co-operative Bank Accounts contrary to the Rules;

c. Secretly opening a bank account at family bank;

d. Holding management and special Annual General Meetings since 2015 without involving the Respondent;

e. Failing to remit cash journal to the Respondent 2015; and

f. Quietly de-affiliating itself without following due process.

That the allegation that the claimant did not receive the invitation for the meeting of 17. 8.2017 is a diversionary tact to avoid facing non-attendance. That paragraph 4 of the supporting affidavit of Stephen Ngare Ogamba is a confirmation that the letter of 17. 8.2019 was collected by John Nyakundi Omariba and that the allegation that the said official was suspended is neither here nor there as the Claimant has not stated the exact period when he was allegedly suspended.

That based on the foregoing explanation, it is apparent that the Claimant withdrew from the Respondent by conduct. That the letter dated 26. 4.2018 was written way long after suspension and therefore has no basis in law. That the letter from the County Co-operative Commissioner dated 8. 5.2018, was generally advisory in nature and was authored long after the Claimant had been suspended from the Respondent.

Issues for determination

The instant application has presented the following issues for determination:

a. Whether the Claimant has laid proper basis to warrant the granting of an Order of temporary injunction;

b. Who should meet the costs of the Application?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ Where in any suit it is proved by Affidavit or otherwise –

(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

(a) A prima facie case with a probability of success;

(b) Irreparable damage; and

(c) Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Facie case in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. 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 from the latter......”

Prima facie case

The question that begs is whether the Claimant has established a prima facie case with probability of such. It is the Claimant’s case that the Respondent suspended it vide a letter dated 24. 4.2018 without any lawful cause. That it was not invited to attend the Annual General Meeting held on 22. 12. 2017 where the purported resolution to suspend it happened.

That the person who received the letter dated 17. 8.2017 was no longer its official. Hat the said official ( John Nyakundi Omariba)received the said letter and retained it. That the allegations raised against it vide the letter dated 17. 8.2017 are false and fabricated because the Claimant has been questioning acts of fraud meted by the Respondent’s management against individual societies comprising it. That in particular, its chairman has been questioning the manner in which the Respondent has been selling its properties without obtaining concurrence from individual societies comprising it.

On its part, the Respondent has opposed the application and accused the Claimant for not observing its by-laws and the Co-operative Societies Act. It has accused the Claimant of not involving it in crucial decision making processes like signing and control of its expenses. Further, it has accused the Claimant of the following acts or omissions.

a. Excluding it from being a signatory to its accounts;

b. Secretly opening a bank account at family bank.

c. Holding meetings (management and special/Annual General Meetings without involving the Respondent; and

d. Failing to remit cash journal to the Respondent.

The relief sought by the claimant is an equitable one and he who seeks such a remedy must come with clean hands. In the instant application, the claimant seeks for an injunction restraining the Respondent from suspending it or one of its members. However, the claimant has not rebutted the accusations raised by the Respondent at paragraph 6 of Replying Affidavit sworn by Robert Mainyaon 5. 8.2020. These allegations questions the Claimants compliance with the by-laws of the Respondent. To the extend that the Claimant has not done so, we find that it has not established a prima facie case with a probability of success.

With this finding in the fore, we therefore do not find merit in the instant application and hereby dismiss it with costs in the cause.

Ruling signed, dated and delivered virtually this 7th day of January, 2021.

Hon. F. Terer Deputy Chairman Signed 7. 1.2021

Mr. P. Gichuki Member Signed 7. 1.2021

Mr. B. Akusala Member Signed 7. 1.2021

In the presence of Mr. Wachira holding brief for Moindi for Claimant

Respondent absent

Court assistant Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021