[2021] KECPT 579 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.385 OF 2019

REUBEN KIPKEMOI KOSKEI................................................1ST CLAIMANT

MOSES ABULWA TETE...........................................................2ND CLAIMANT

VERSUS

WOTECO SACCO LIMITED.......................................................RESPONDENT

RULING

Vide the Application dated 2. 9..2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. That the Tribunal be pleased to restrain the Respondent from disposing of its shares worth Kshs. 5 million or thereabouts for any other purpose other than setting the claim herein;

2. That cost in the cause.

The Application is supported by the grounds on its face and the following Affidavit,

a. Supporting Affidavit sworn by Moses Abulwa Tete on 2. 9.2020;

b. Supplementary supporting affidavit sworn by the said Moses Abulwa Tete on 16. 10. 2020; and

c. Further Supplementary Affidavit sworn by the said Moses Abulwa Tete on 4. 11. 2020.

The Respondent has opposed the Application vide the following documents:

a. Response to the Supplementary Supporting Affidavit and Claimant’s submissions;

b. Response filed on 2. 3.2021.

Vide the directions given on 17. 9.2020, the Application was canvassed by way of written submissions. The Claimants filed theirs on 26. 10. 2020 we have not seen the Respondent’s submissions on record.

Claimant’s Contention

Vide the instant Application, the Claimants contend that they filed a claim against the Respondent for Kshs. 3,394,224/=. That the Respondent is in the process of disposing of shares worth Kshs.5 Million or thereabouts. That they are apprehensive that if the said assets are disposed of, their claim may not be settled.

Respondent’s Case

The Respondent has opposed the Application on the ground that in the Annual General Meeting held on 21. 4.2018, all members agreed that the Respondent does offload its shares to relief it from the burden of a bank loan. That the mandate was given to the executive office by the members under the supervision of the representative of Makadara Sub- county Co-operative Officers.

Issues for determination

The Claimant’s Application has presented the following issues for determination:

a. Whether the Claimants have established a proper basis to warrant the Tribunal to make an order restraining the Respondents from disposing of its shares worth Kshs.5 Million;

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......”

It follows therefore that for a party to establish existence of a prima facie case with a probability of success, he/she ought to establish existence of a right which has been infringed to as to call for a rebuttal from the infringing party.

Applying these principles to the facts of this case a question abound as to whether the claimants have established the existence of these rights so as to call for the grant of the orders sought. It is the Claimant’s case that the Respondent is in the process of disposing of 5 Million shares thus depriving them of the benefits of the Decree which may be passed should they succeed in their claim.

On its part, the Respondent has opposed the Application on the ground that its members sanctioned the sale of any of its shares of the Annual General Meeting held on 21. 4.2018.

We have considered the arguments for and against the Application. We have also perused the minutes of the Respondent’s meeting held on 21. 4.2018. At Min.VSS/AGM018/14titled: MEETING RESOLUTION :

Members resolved at item 7 that: Co-op Sacco shares to be sold if opportunity to sell is available proposed by Gilbert Masinde and seconded by Mr. Peter Mwanzia.

What we gather from this Resolution is that members of the Respondent sanctioned the disposal of its shares in the said meeting. What we understand further is that the said shares are the Respondent’s investments in a different institution. It does not include its core capital, that is its shares and members deposits. The Claimants have not explained the status of these shares and deposits. Further, they have not led evidence to prove that the said shares are the only assets held by the Respondent.

In simple terms, we are saying that the Claimants have not established a proper basis to warrant the grant of the orders sought. We say so taking into account the fact that this claim is progressively growing old. The Claimants should focus their energies and attention on fast tracking the matter so that the same is determined with finality. This will enable them obtain a decree if their claim succeed. They will then be able to commence execution proceedings without any further ado.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimants’ Application dated 2. 9.2020 and hereby dismiss it with costs in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MARCH, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 3.2021

HON. JANE MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 3.2021

MR. P. GICHUKI MEMBER SIGNED 25. 3.2021

Miss Kitonga for Claimant/Applicant

Cornelius for Wote Cooperative Sacco.

Mention on 27. 5.2021

HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 3.2021