[2024] KECPT 1380 (KLR)

Vikiru v Nacico Sacco Limited (Tribunal Case 387/E184 of 2021) [2024] KECPT 1380 (KLR) (Civ) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1380 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 387/E184 of 2021

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

August 29, 2024

Between

Timothy Bunyali Vikiru

Claimant

and

Nacico Sacco Limited

Respondent

Judgment

1. The claim dated 8th September 2021 was filed on the same day, seeking among others that this Tribunal:i.Find that the officials of the Respondent contravened articles of the by-laws of Nacico Society Sacco by failing to follow the procedure for calling of the Annual Delegates Meetingii.Find that the officials of the Respondent contravened articles of the by-laws of Nacico society sacco by failing to hold elections for the positions of delegates whose terms had expired before calling of the Annual Delegates Meetingiii.Find that the officials of the Respondent contravened articles of the by-laws of Nacico society sacco by illegally and unprocedurally extending terms of delegates whose terms had expired before calling of the Annual Delegates Meetingiv.Find that any decision and/or resolutions reached during 40thAnnual Delegates Meeting held on the 9th of September 2024 to be illegal, null and void ab initiov.Issues a permanent injunction restraining and prohibiting the Respondent or its officials or delegates from convening, holding and/or reaching solutions in the Annual Delegates Meeting until elections of all delegates and board supervisory committee representatives for former employees and transferees are held and concluded.

2. It was the Claimant’s position that contrary to Articles 59. 1, 59. 2, 47, 48, 49, 59. 3 of the by-laws of the Nacico Society Sacco, the Respondent illegally, unprocedurally and unlawfully convened the 40th Annual Delegates Meeting and extended the terms of delegates whose terms had expired.

3. It was also the Claimant’s position that on 30th March 2021, he participated in elections held by the Respondent for the position of delegate and board supervisory committee representative (a position for former employees and transferees), and despite members forming out to vote, the elections were dramatically halted and no reasons were given, and that as of the date of filing the claim, all positions in the Nacico sacco had been filled except the position for former employees and transferees.

4. At trial, it was the Claimant’s position that the Respondents are bond by Nacico Society Sacco by-laws and any inaction or action that contravenes the by-laws are unprocedural, unlawful and illegal and as such the decisions and ratifications made as per Article 59. 2 at the 40th Annual Delegates Meeting are null ab initioAt trial, it was the Respondent’s position that its officials did not halt or cancel elections, but the decision was made by police officers based at Kamukunji police station due to the fact that the Annual Delegates Meeting was during the Covid 19 pandemic and the high numbers in attendance could not allow for social distancing. That the cancellation of this gathering by the police led to the postponement of the elections and as such leading to the extension of terms of delegates in office.

5. We have considered the pleadings and evidence taken at trial and the only question remaining for determination is as to whether given the circumstances, is the Respondent or its officials culpable or responsible for the situation obtaining, and/or should this Tribunal grant the prayers the Claimant is seekingWhether given the circumstances, is the Respondent or its officials culpable or responsible for the situation obtaining, and/or should this Tribunal grant the prayers the Claimant is seeking

6. The starting point is to admit that Covid 19 affected all areas of public life necessitating a rethink or suspension of how life was before the first case of Covid 19 was reported in Kenya. To mention just a few, there was indefinite suspension of public gatherings in churches and congregational meetings, weddings and funeral, national curfew was put in place between 7. 00 p.m. and 5. 00 a.m., flights were suspended and even the judiciary suspended court sittings except for only urgent matters.

7. The role of the police in public life also became enhanced during the time of Covid 19 and from evidence adduced at trial, the Claimant did not bring any evidence to show that the action of the officers at Kamukunji police station was instigated by the Respondent.That being the case, we find the failure to adhere strictly to the by-laws as a result of Covid 19 and the action taken by the police to have been well explained and excusable and as such decline to grant the prayers sought by the Claimant.

Tribunal orders; 1. The Statement of Claim dated 8/9/2021 is found to be without merit, prayers cannot be sustained and is dismissed.

2. Each party to bear is own costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Wambui advocate for the Respondents.RBZ advocate for the Claimant.Odipo for the Claimant.Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024.