[2021] KECPT 543 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.526 OF 2018

SIMON KARANGU..................................................................................... CLAIMANT

VERSUS

MWIKI PSV SACCO SOCIETY LIMITED.......................................RESPONDENT

RULING

1. The Application before court is one dated 2. 11. 2018 asking court for orders:

(i) This application be certified as extremely urgent and be heard forthwith and service be dispensed of in the first instance.

(ii) Pending the determination of this application an order do issue staying the Respondent’s decision made on 31. 10. 2018 to suspend the applicant from its membership forthwith.

(iii) Pending the determination of this suit an order do issue staying the Respondent’s decision made on 31. 10. 18 to suspend the applicant from its membership forthwith.

(iv) Pending the hearing and determination of this application the respondent, its agents, servant and/or employees be restrained and prevented by an order of this Honourable court from harassing, preventing or interfering in any way whatsoever with the applicant’s matatu business pertaining to motor vehicles registration numbers KBS 778D, KBS 338Y,KBQ 177P,KBW 918K, KBW 956Z,KCA 354K, KCB 185G,KCB 069A,KCG 987K,KCG 511M,KCG 661Q and KCF 163K from conducting the business along the PSV Routes of operation known as Route No. 17B( Mwiki to Nairobi Bus station and back via Thika Superhighway,) Routes No. 17C (Mwiki to Nairobi Commercial Terminus through Thika Superhighway and Muranga road and back) and other routes as designated by the Respondent and from using all the stages allocated to the Respondent that the applicant is entitled to conduct his matatu business in by virtue of being a member of the Respondent Co-operative /Sacco and a matatu business owner generally.

(v) Pending the hearing and determination of this suit the respondent, its agents, servant and/or employees be restrained and prevented by an order of this Honourable court from harassing, preventing or interfering in any way whatsoever with the applicant’s matatu business pertaining to motor vehicles registration numbers KBS 778D, KBS 338Y,KBQ 177P,KBW 918K, KBW 956Z,KCA 354K, KCB 185G,KCB 069A,KCG 987K,KCG 511M,KCG 661Q and KCF 163K from conducting the business along the PSV Routes of operation known as Route No. 17B( Mwiki to Nairobi Bus station and back via Thika Superhighway,) Routes No. 17C (Mwiki to Nairobi Commercial Terminus through Thika Superhighway and Muranga road and back) and other routes as designated by the Respondent and from using all the stages allocated to the Respondent that the Applicant is entitled to conduct his matatu business in by virtue of being a member of the Respondent Co-operative /Sacco and a matatu business owner generally.

(vi) Pending the hearing and determination of this application the applicant be allowed to enjoy all his full rights and benefits as entitled to by virtue of being a member of the Respondent’s Sacco.

(vii) Pending the hearing and determination of this suit the applicant be allowed to enjoy all his full rights and benefits as entitled to by virtue of being a member of the Respondent’s Sacco.

(viii) That the office commanding station (OCS) Central Police Station Nairobi and the National Transport and safety authority (NTSA) do ensure compliance of the orders given herein.

(ix) Costs of this Application.

2. The Affidavit is supported by Affidavit of Simon Karangu sworn on 2. 11. 2018 to which he states he is a member of the Respondent Sacco with 12 motor vehicles plying the route. He claims to have been illegally and unprocedurally been barred from operating his motor vehicles thus not generating any income and causing financial hardship in loan repayments.

3. The Application was opposed by the Respondent by them filing grounds of opposition dated 29. 1.2020.

Stating the applicant has failed/refused to exhaust the Respondent Internal Dispute Resolution Mechanism as per clause 93 of Respondent By- law.

There are other similar suits filed by claimant in our courts.

The Application should fail on the principle of material non-Disclosure of the relevant facts.

4. The Application dated 2. 11. 2018 was directed to proceed by way of written submissions. The Claimant/ applicant filed their submissions dated 10. 12. 2020 on 15. 12. 2020.

The Respondent despite several mention dates 17. 12. 2021, 2. 2.2021 and 23. 3.2021 failed to file their written submissions.

5. The Applicant has demonstrated he would suffer loss and financial constraints if the Respondents actions of suspension are not halted because due process was not followed.

The letter marked SMK 1 dated 31st October 2018 evidences his suspension pegging it on the Claimant handing over Sacco documents.

We take it with great stride that the Claimant is being arm twisted to hand over documents to enable him continue being a member of the Respondent.

6. The Respondent on the other hand in response in their grounds of opposition pine the Claimant had not exhausted the Internal Dispute Resolution Mechanism as per clause 93 of the Respondent By –laws (Constitution)which reads:

if any dispute concerning the business of the society arises:

(a) Among members, past members and persons claiming through members, past members and deceased members; or

(b) Between members, past members or deceased members, and the society , its committee or any officer of the society; or

(c) Between the society and any other co-operative society, which cannot be determined by the Management Committee or General Meeting, it shall be referred to the Tribunal. Appeals shall be taken to the High Court.

The Management Committee is to deal with the issue. We find it ironic the same management committee that claimant is to deal with is the same one that was arm twisting him.

Question- where could the claimant find recourse if not the Tribunal noting the Respondents had closed all available avenues and given conditions to the Claimant?

7. On the 2nd issue of the Respondent grounds of opposition is that of failure of material non- Disclosure of relevant facts to the case.

The material non-disclosure has not been made known to the Tribunal and how it affects the suit before the Tribunal mention is only made that the claimant was voted out of members in the Respondent’s Annual General Meeting. Being voted out as an official does not mean one ought to be removed from being a member of the Respondent Sacco.

8. Issues arising are:

One : whether the Claimant was unfairly suspended from the Respondent Sacco?

Two: whether the claimant meets the threshold of being granted an interlocutory reliefs?

9. Issue one:

Whether the Claimant was unfairly suspended from the Respondent Sacco?

The Respondent suspended the claimant via a letter dated 31st October 2018.

We perceive the same to be unfair because of the conditions given therein.. suspend until you handover documents.

This is more of a threat and thus we are left to wonder if the Claimant infact received a fair hearing if at all from the Respondents.

We therefore find the suspension unfair and not having followed due process of the law.

10. Issue two:

Whether the claimant meets the threshold of being granted an interlocutory reliefs?

The Claimant seeks for injunctive orders. The threshold for injunction is furiously laid out in Giella -vs- Cassman Brown and Company Limited [1973]EA 358.

The conditions that must be met are:-

a. Applicant must show a prima facie probability of success.

b. Applicant must demonstrate they stand to suffer irreparable loss that would not adequately be compensated by an award of damages.

c. Balance of probability.

11. The Claimant /Applicant has proved probability of success noting his suspension is questionable and the Respondents do not deny the say.

12. On the issue of irreparable loss, the Claimant has attached loan repayment schedules showing his financial obligations in the different financial institutions. He has invested in the transport industry and it would be unfair to him if the suspension went through unfairly.

He would indeed suffer loss and financial damage which would make him greatly prejudiced.

13. On a balance of probability Applicant has proven their case.

(x) To this the end,

(i) The Application is allowed as prayed.

(ii) Pending the determination of this suit an order is hereby granted staying the Respondent’s decision made on 31. 10. 18 to suspend the applicant from its membership forthwith

(iii) Pending the hearing and determination of this suit the Respondent, its agents, servant and/or employees are restrained and prevented by an order of this Honourable court from harassing, preventing or interfering in any way whatsoever with the applicant’s matatu business pertaining to motor vehicles registration numbers KBS 778D, KBS 338Y,KBQ 177P,KBW 918K, KBW 956Z,KCA 354K, KCB 185G,KCB 069A,KCG 987K,KCG 511M,KCG 661Q and KCF 163K from conducting the business along the PSV Routes of operation known as Route No. 17B( Mwiki to Nairobi Bus station and back via Thika Superhighway,) Routes No. 17C (Mwiki to Nairobi Commercial Terminus through Thika Superhighway and Muranga road and back) and other routes as designated by the Respondent and from using all the stages allocated to the Respondent that the applicant is entitled to conduct his matatu business in by virtue of being a member of the Respondent Co-operative /Sacco and a matatu business owner generally.

Parties to file and serve witness statement and documents within 30 days herein.

Mention for Pre- trial for directions on 28. 7.2021.

Ruling signed, dated and delivered virtually this 27thday of May, 2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Miss Wangui for the Claimant: Present

No appearance for Respondent

Notice to issue for Pre-trial mention on 28. 7.2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021