[2025] KECPT 229 (KLR)

Ruo & 2 others v Management Committee of Mwana Wikio Farmers Cooperative Society Limited (Cause 188/ E250 of 2023) [2025] KECPT 229 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KECPT 229 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Cause 188/ E250 of 2023

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

March 27, 2025

Between

Gachina Ruo

1st Claimant

Wilfred Kiarie

2nd Claimant

Peter Ngige Kangethe

3rd Claimant

and

Management Committee of Mwana Wikio Farmers Cooperative Society Limited

Respondent

Judgment

1. The Claimants case is contained in the Statement of Claim dated 28/03/2023 and supported by the 3 Claimant‘s witness statement, their documents dated 28/08/2023 and the hearing proceedings on 3/7/2024,

2. The Claimants’ case is summarized in their written submissions.

3. In their statement of Claim, the Claimants avers that they are members of the Respondent and that they have consent to represent 126 members.

4. The Claimant state that the current management of the Respondent was elected in 2008, and there has not been an Annual General Meeting since then.

5. They further aver that in 2015 members demanded for an Annual General Meeting and accounts to be done. The Respondent went to court and got an injunction stopping the Annual General Meeting .The Respondent did not hold an Annual General Meeting despite court orders on the same.

6. The Claimant state that a further request to call for an Annual General Meeting in 2022 was ignored by the Respondent.The Claimant pray for the following:a.A permanent injunction against the Respondent, their agents and/or assignees from in any way holding an annual general meeting for the society until an election is conductedb.accounts to be prepared and rendered to the membersc.costs and interest of the suitd.any such other or further relief as this Honourable court may deem fit and just to grant.

7. The Statement of Claim is supported by three Claimant’s witness statement and their documents.

8. The Claimants case was heard physically on 3/7/2024 where 1st and 2nd Claimants stated that they were in court on behalf of 126 members of the Respondent. And averred that they were seeking for orders to hold an Annual General Meeting, with election as the main agenda.

9. They further stated that the Respondent by- laws are for 1997, amended but not registered by county commissioner for cooperatives development in 1997 and 2008.

10. In their written submissions of 3/12/2024 argues that the applicant followed the law to call a special General Meeting but Respondent locked them by calling 2 weeks before their meeting ,where the Respondent purported to hold election. Where the incumbent board was retained, The Claimant avers that they need to be granted a free and fair election where new office bearers can be elected.

11. They aver that the current office bears leave have been in office since 2009 against the Respondent that a board member should serve for a term of 3 years.

12. The Respondent case is based on Respondent response dated 17/5/2023 and supported by the Respondent witness statement of 17/05/2023, Respondent’s documents dated 17/05/2023 and hearing of the matter on 3/7/2024.

13. In the Respondent’s response, the Respondent states that a special general meeting was held on 4/4/2023 thus negating paragraph 10 of the Statement of Claim where the Claimant state that they called their own for 6/4/2023.

14. The Respondent states that the 2nd Claimant Mr. Wilfred Kiarie not their member having sold all their shares in the Respondent cooperative society.

15. The Respondent further states that some of the 25 members alleged to have signed for the petition to file this case had denied being part of the signatories.

16. In the Respondent witness statement dated 17/5/2023 the witness Mr. James K Njoroge ,the secretary of the of the Respondent stated that the Respondent had 35 members but rose to 182 .He further states that the 2nd Claimant is not their member and can therefore not file a claim against the Respondent

17. He avers that the Respondent has shared out all they had to its members except for 88,000 shares with the cooperative bank.

18. He further states that the Annual General Meeting of 4/4/2023 resolve to sell the said shares With The Cooperative Bank and thus give a way for winding up.

19. He denied that no elections had been held since 2008 averring there were elections in 2013 and 4/4/2023 where the current officials were retained .He re-states that the office did not prevent the Claimants from holding their meeting on 6/4/2023

20. In their written submissions dated 3/11/2024, the Respondents maintain 11 of the current board is in office legally having been endorsed on 3/7/2013 to serve the Respondent until it is wound up.

21. The Respondent denies that the Claimant denies that the Claimants represent 126 members since there were no consent to the same.

Analysis 22. We note that the issue of determination are contained in the statement of Claim, the jist of the matter being the election of the management committee.

23. We also note that the local cooperative office vide their letter of 6/7/2024 has filed a report on the Respondent as requested by this Tribunal.Key among the issues contained in the cooperative office letter are; Currently the cooperative does not execute any common activity

The only activity the Respondent is undertaking today is transferring remaining plots to members

The current committee of 5 was elected on 4/4/2023 in a meeting presided by his office.

In essence the cooperative society has outlived its usefulness and the only remaining activity does not warrant a full board of 5 members and 3 supervisory committee.

24. We are of the opinion that the officials should give themselves timeframes to finish the transfers to members and then have the cooperative liquidatedAs regards the prayers as prayed by the Claimants;

25. We note that indeed there was a special general meeting on 4/4/2023, where the current officials were re-elected in the election presided over by the local cooperative office.

26. In the same meeting the official were re-elected to oversee the cooperative remaining work before winding up.

27. As per the Respondent witness statement ,the Claimants cannot legally file a claim the Tribunal because the 2nd Claimant Mr. Wilfred Kiarie sold all his shares and that the 3rd Claimant was surcharged by the Commissioner for cooperative development, around 2011 for kshs.29,329/=

28. We are not determining the suitability of the Claimants to hold elective position in the cooperative but rather we are invited to determine whether the incumbent officials have the mandate of convening a general meeting before election requested by the Claimants are held.

29. So far we have established that the incumbent officials are in office legally having been elected in a legally constituted meeting on 4/4/2023.

30. Throughout the proceedings of this case we have observed that there is an apparent mistrust between the Claimant and the Respondent

31. We have also noted that both parties and the local cooperative office have severally alluded to the fact that the Respondent has accomplished its objects as outlined in the by-laws and thus it is save for winding up.

32. The Claimants issues in their Claim revolve around election and accountability which can be resolved through a general meeting

33. Considering the animosity existing between the Claimants and the Respondent it is only fair to have a meeting convened by an impartial party, the local cooperative office, the issue raised by the Claimants until be discussed

34. In view of the above this Tribunal makes the following orders in response to the prayers by the Claimant and defence by the Respondents.a)The director of the cooperative to convene a meeting within 60 days to discuss the status of the Respondent cooperative society chat the way forwards including the winding up of the Respondent cooperative .b)The director of the cooperative Muranga County in liaison with the management committee of the Respondent cooperative society prepare final accounts to be tabled during the members meeting.c)Each party to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia - Chairperson Signed 27. 3.2025Hon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025Hon. Beatrice Sawe - Member Signed 27. 3.2025Hon. Fridah Lotuiya - Member Signed 27. 3.2025Hon. Philip Gichuki - Member Signed 27. 3.2025Hon. Michael Chesikaw - Member Signed 27. 3.2025Tribunal Clerk JonahKiplagat advocate for the Claimant.David Waithaka – Chairman of RespondentJulius Kamau – Treasurer RespondentMaranga advocate for the RespondentJames Njoroge -Secretary of the RespondentHon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025