[2021] KECPT 495 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.291 OF 2020

STEPHEN NDEHI GIKURA.............................................................................CLAIMANT

VERSUS

KOMOTHAI COFFEE GROWERS

CO-OPERATIVE SOCIETY LIMITED ....................................................RESPONDENT

RULING

Vide the Application dated 10. 9.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. That this matter be certified urgent and be heard exparte in the first instance;

2. That the defendant chairman Daniel Njuguna Kiunyu and the sub county Co-operative Officer be restrained from mingling with issues concerning Kagwanja farm factory ;

3. That the defendant be compelled to produce the Original Records and receipt book as recorded on 1st instance;

4. That the defendant’s agent Mr. Njuguna Kiunyu by himself or through his agents do forthwith estopped from transferring employees from the 13th member factories;

5. That the plaintiff be reinstated as the Kagwanja farm factory representative;

6. That the suspension letter be rendered null and void;

7. That the Officer Commanding Station at Kibichoi Police Station do enforce the orders herein;

8. That cost of this application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by the Claimant on 10. 9.2020.

The Respondent has opposed the Application vide the Replying Affidavit sworn by Daniel Njuguna Kiunyu on 6. 10. 2020.

Vide the directions given on 14. 9.2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions on 16. 10. 2020 while the Respondent did so on 27. 11. 2020.

Claimant’s Contention

It is the Claimant’s case that the Defendants through its chairman, Daniel Njuguna Kiunyu and the Sub-county Officer, Mr. Antony Kamau constantly interfere with its management. That the two took away the record, and receipts from the Defendant’s office and have never returned them back to the office.

That they have constantly negatively influenced the smooth operation of the factory.

That the said chairman or persons acting on his behalf has been transferring the Defendant’s employees from the 13 members factories.

That the chairman has deprived the plaintiff from maximizing his involvement in the defendant’s wellbeing.

Respondent’s case

The Respondent has opposed the Application on the ground that at no point in time it interfered with interest and welfare of its members. That none of its officials has equally done so. That if indeed some of the employees were transferred from one factory to the other, then there is nothing wrong and illegal about it.

That the chairman and its Board were given the mandate by members to conduct the daily activities of the Defendant and all its factories and thus it will be detrimental for the Board to be restrained from undertaking the said activity.

That the Claimant was suspended by the Board following a discovery that he had forged the early crop produce record I order to attain the requisite threshold as a committee member. That he forged records of one Magdalene Wairimu, member, number[MNO.9778] and was paid Kshs.64,741/= for coffee that was not delivered. That the Defendant has proceeded to demand refund of the said monies from the Claimant.

That as regards the prayer for production of records, it is unable to produce the same as the request is not particular in terms of membership date and the year in which the records relate to. That the Application should therefore be dismissed.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant has established a proper basis for the grant of the orders sought;

b. Who should meet the costs of the Application?

Temporary injunction

Vide prayer 2 of the Application, the Claimant has sought for injunctive orders against the Respondent. He wants the Respondent’s chairman and the sub-county Co-operative officer to be restrained from interfering with the affairs of the Respondent. A question abound as to whether he has established the grounds for the grant of temporary injunction.

The court in the case of Giella – versus- Cassman Brown [1973] EA. Set out the principles to be considered before an order of a temporary injunction can be made. 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......”

From the foregoing, a question abound as to whether the Claimant has established existence of a right which has been infringed by the Respondent or its officials so as to call for explanation. It is the Claimant’s case that the Respondent through its chairman and the sub-county Co-operative officer have constantly interfered with the management of Kagwanja Factory. That the said chairman took away the original records of the factory and is yet to return them. That the said chairman has been engaged in the activity of transfers of employees in the 13 factories comprising the Respondent thus seriously affecting the smooth operation of the said factories.

On rebuttal, the Respondent has denied the allegations leveled against it and its officials by the Claimant. It has instead accused the Claimant of misconduct to wit, forging the early crop produce record in order to attain the requisite threshold to be made a committee member. That he was suspended on account of this conduct.

We have considered the arguments in favour of the grant of the injunction vis-a-vis those against it. We have particularly perused the annextures attached to Replying Affidavit of Daniel Njuguna Kiunyu. We note that there is evidence that the Claimant was accused of allegedly delivering 2369kilograms of coffee which delivery was paid by the Respondent. That it turned out that the said delivery was a forgery and fabrication of records. The Claimant has not made any rebuttal to this accusation. The accusations leveled against the Claimant paint a picture of a person who has come to equity with unclear hands. He wants to obtain orders yet he himself has not explained the circumstances under which he was linked to fabrication of coffee deliveries.

With the foregoing in mind, we find that the Claimant has not established a proper basis to warrant the issuance of an order of injunction.

Production of original records and receipts books

Apart from seeking for this prayer, the Claimant has not led evidence to justify the making of the said order. We say so taking into account that production of documents is an exercise to be undertaken during pre-trial stage yet. We thus find the prayer superfinos......

Transfer of employees

We again find that there is no evidence has been led to warrant the grant of the same.

Reinstatement

The Claimant wants to be reinstated as an official of Kagwanja Farm Factory Committee. We find this prayer untenable in light of our finding above.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 10. 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

Stephen Ndehi present

Mention 24. 5.2021 for direction

Hon. B. Kimemia Chairperson Signed 25. 3.2021