[2021] KECPT 600 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.298 OF 2020

SYLVIA NAIPUTA JOHN...............................................................................CLAIMANT

VERSUS

METROPOLITAN NATIONAL SACCO SOCIETY LIMITED........ RESPONDENT

RULING

Vide the Application dated 14. 9.2020, the Claimant has moved this Tribunal seeking for the Orders inter alia:

1. That this Application be certified as urgent in the first instance and the same be heard on a priority basis.

2. That pending hearing and determination of this suit the Respondent be ordered to give accounts of the Claimant’s contribution and pay the sum as due to date.

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

The Application is supported by the grounds on its face and the Affidavit sworn by Claimant on even date (14. 9.2020).

The Respondent has belatedly responded to the Application vide the Replying Affidavit sworn by David Muhoro on 22. 12. 2020.

Vide the directions given on 17. 9.2020, the Application was canvassed by way of written submissions. The Claimant filed his submissions on 9. 10. 2020, while the Respondent did so on 27. 10. 2020.

Claimant’s Contention

It is the Claimant’s Contention that despite being the Respondent’s member since the year, 2007, the Respondent has refused and/or declined to account and refund him his contributions. That he relinquished his membership in the year, 2019. That he is thus exposed to heavy financial loss.

Respondent’s Case

On its part, the Respondent has opposed the application on grounds that the Claimant has not served it with a formal Notice of withdrawal. That it only became aware of the Claimant’s intention to withdraw from it when the Claimant filed a suit similar to this one at Milimani Commercial Courts.

That it operates its accounts diligently and in accordance with the customs and practices of banking and thus cannot be engaged in negligent and malicious retention of members funds upon cessation of membership.

That as far as rendering of accounts is concerned, the Respondent contend that it was accounted for the Claimant’s contributions issuing her with her statement of account.

Issues for determination

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

a. Whether the Claimant has established a proper basis to warrant the grant of an Order of mandatory injunction;

b. Who should meet the costs of the Application?

Mandatory injunction

The Orders sought by the Claimant in the instant Application are in the nature of a mandatory injunction. She wants the Respondent to be compelled to render accounts and pay her contributions. This being the case, what are the conditions for the grant of a mandatory injunction? We find the answer in the holding of the court in the case of Kenya Breweries Limited & Another - vs- Washington Okeyo [2002]eKLR. In the pertinent part, the court sets out the tests in the following terms.

“ The test whether to grant a mandatory injunction or not is correctly stated in Vol.24, Haishunyi Laws of England, 4th Edition, page 948 which reads:

A mandatory injunction can be granted at an interlocutory stage as well as at the hearing, but in the absence of special circumstances, it will not normally be granted.”

In the case of Local bail International Finance Limited –vs- Agroeports & others [1986] ALLER 9017- the court held thus:

“ A mandatory injunction ought not to be granted on an interlocutory Application in the absence of special circumstances, and then only in clear cases, either where the court thought the matter ought to be decided at once or where the injunction was directed at a simple and summary which could be easily remedied or where the Defendant had attempted to steal a match from the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial, it would appear that the injunction had rightly been granted, that being a different and a higher standard than was required for a prohibitory injunction.”

The question then is whether there exist special circumstances in the present Application to warrant the grant of the Orders sought. The Claimant has couched prayer 2 of the Application in a manner that if the Order is granted, then nothing will be left to be determined in the main claim. We have perused the prayers in the main claim and note that the same are substantially similar to those in the present Application.

The prayers in the present Application can comfortably be addressed during pre-trials in the main claim. There is nothing urgent and special in the Orders sought in the instant Application so as to call for intervention at the interlocutory stage.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 14. 9.2020 and hereby dismiss it with costs in the cause. We then give the following directions in respect to the main claim:

a. The Respondent to file and serve a Response to the claim together with witness statements and list and bundle of documents within 14 days herein;

b. The Claimant to file and serve a Reply to Defence as well as supplementary witness statements and documents within 14 days of service; and

c. Mention for Pre-trials on 3. 3.2021.

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. Wachakana for Claimant.

Mr. Mutemi holding for Mr. Thimba for Respondent

Court clerk Maina

HON. F. TERER DEPUTY CHAIRMAN SIGNED 7. 1.2021