[2021] KECPT 585 (KLR)

REPUBLIC OF KENYA

IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. 63 OF 2021

VINCENT OWUOR aliasVINNY MKULIMA.....................APPELLANT

VERSUS

NOMINATION COMMITTEE,

SHERIA SACCO SOCIETY LIMITED............................RESPONDENT

RULING

The matter for determination is an application dated 4. 2.2021 seeking the prayers on the face of the application and the grounds thereof, supported by the affidavit of the applicant, the same filed under certificate of urgency.

The Application is opposed vide the Replying Affidavit of Peter Kariuki the Chief Executive Officer of Sheria Sacco and grounds of opposition filed on 10. 2.2021.

The Application was heard vide oral submissions of the parties online.

The applicant submitted that the Respondent locked him out of the elections for the late presentation of the nomination papers. That the delegates were issued with notices to submit their nominations on or before 18. 3.2020 for an Annual Delegate Meeting to be held on 26 and 27/3/2020. That the Annual Delegate Meeting was postponed due to the Covid- 19 pandemic. That due to the Executive Order issued on 15. 3.2020, the Government directive ordered a prohibition of meetings and stay/work at home order.

That he was not able to access the government offices to obtain in good time the certificate of good conduct until there was a relaxation of the Executive Order when he obtained the certificate of good conduct and then submitted his nomination on 14. 4.2020. when he presented the nomination application, the same was rejected vide a letter dated 29. 5.2020 and he appealed against the decision on 17. 6. 2020 and there was no response by the Respondent till 21. 1.2021 when the Respondent only acknowledged receipt of the appeal and not the status of the same. That he was therefore forced to file this application due to the silence of the Respondent on the status of his appeal. He sought for clearance to vie in the Annual Delegates Meeting to be held on 12. 2.2021.

In Response, the Respondent’s advocate submitted that there were issues not in dispute. That the dispute arose out of the lateness to comply to the deadline of the submissions for applications. That the deadline for submissions was not extended and as at 18. 3.2020, there was no proper and valid application by the Applicant. That the nomination process is the mandate of the nomination committee which enables them to vet the candidates’ suitability to serve in the board. That since he did not comply, the Tribunal cannot consider his application/nomination and cannot do the work of the nomination committee. That Covid- 19 did not freeze the operation of the Co-operative Societies which is an essential service provider.

That there is an on-going Annual Delegates Meeting culminating to the elections on 12. 2.21. That the Respondent has incurred expenses to the tune of 7 million and there is no commitment from the Applicant to furnish or cater for the expenses.

That Section 23 Co-operative Society Act Rules gives the mandate for the terms of service for the committees and if the elections are postponed, then the committee members will continue to be in office illegally.

We have carefully considered the pleadings, documents filed and the submissions of the parties herein and address the issues as follows:

1. Whether the Tribunal has jurisdiction in the matter.

The grounds of opposition have raised the issue of jurisdiction and the parties to the suit.

We note that the parties notably the Respondent herein is the Nomination committee Sheria Sacco Society Limited. The Respondent submitted that the Co-operative Society is a legal entity which can be sued or be sued and yet the Applicant sued the nomination committee. We note that there is no confusion on the face of the records on who the actual Respondent is.

The Applicant having sued the Respondent as it appear a technicality which can be early ….by way of an amendment. We also note the provisions of Article 159 (2) d, Constitution the Co-operative Society Act Practice and Procedure Rule 4 which provides for justice to be done without undue regard to technicalities. We therefore find no merit in the issue of the Respondent being sued as the nomination committee. In essence, the members of the committees are the governing body and direct the affairs of the society as provided for under section 28 (3) of the Co-operative Society Act.

On the issue of jurisdiction section 77 Co-operative Society Act is clear on the jurisdiction of the Tribunal, and in essence section 77 (1) b provides for the disputes between a member and the Committee or any officer of the Society. We therefore find that the Tribunal has jurisdiction to determine the dispute between the member (Applicant) and the nomination committee.

We note that the committees of the Co-operative Societies do not run the Societies by their own, but by the process vested to them by the members, and decisions made by the committee members must be made with exercise of prudence and diligence as per the provisions of Section 28 (6) Co-operative Societies Act.

2. Whether the Applicant has proved his prayers on a balance of probabilities:

(i) Reason for late submissions

(ii) Reason for late appeal to the Tribunal.

Sub issue (i) Reason for late submissions

(ii)Reason for late filing of suit.

The applicant submitted that he knew the deadline for submission of the application for the nomination. However, 3 days before the deadline, that is, 15. 3.2020, there was an Executive order owing to the Covid-19 Pandemic. The effect of this Executive order was a stay at home order for non-essential service providers to work from home. The Applicant has submitted that he is not an essential service person hence he could not wilfully disobey the Executive order. That the government offices were also closed hence he was not able to obtain the certificate of good conduct in good time and was only able to obtain the same when the Executive Orders were relaxed. The Respondent submitted that the only reason the applicant’s application was rejected was because it was filed after the deadline, which was never extended.

The Applicant submitted that on communication of the rejection of his application, he sought an appeal on 17. 6.2020 vide a letter and there was no response by the Respondent on the status of his appeal until 18. 1.21 when the Respondent acknowledged receipt of his appeal with no communication on the status or outcome of the appeal todate.

We note that the applicant was diligent in the pursuit of his nomination but the Respondent did not take any steps to reconsider the late application.

We note that the special delegate meeting was suspended indefinitely as a result of the Covid- 19 pandemic and the Executive order.

Thereafter, there was a notice issued for annual Delegates Meeting on 26. 1.2021 for meeting on 12. 2.21 at 8. 30a.m. We note that after the re-schedule of the Annual Delegates Meeting, there was no opening for fresh nomination of applicants. This means that there may have been other delegates who would have wanted to vie. However we deem that the Respondents were aware of the adverse effects of Covid- 19 and the Executive Orders issued.

The Respondent was an essential service provider whereas the applicant was not and therefore was restricted in terms of movement. We therefore take judicial notice that due to the Covid-19 pandemic and the Executive Order issued, the applicant has reasonable excuse/ explanation as to why he did not submit before the deadline.

The Respondent’ s submissions is that the only reason the applicant was not cleared is the late submission of the application. The applicant has submitted that he is qualified to vie and there is no question or issue raised in this regard. Therefore in the determination of this issue, we are not taking over the mandate of the nomination committee to vet the applicants, but determining the administrative action of the nomination committee for failing to clear the applicant, and failing to respond to the appeal despite having sufficient time and follow ups by the applicant.

The committees under section 28 (6) Co-operative Society Act are Mandatorily required to conduct the affairs of the Co-operative Society by exercising the prudence and diligence of ordinary mess of business…..”

By failing to inform the applicant on the status of his appeal, the nomination committee did not exercise due diligence in their mandate and hence cannot blame the applicant for instituting this suit.

We therefore find that the applicant exercised due diligence and within good time hence the reasons given in issue 2 (i) (ii) by the applicant are reasonable.

3. Whether there is prejudice in the issuance of the orders sough.

The applicant submitted that there would be no prejudice to the Respondent if he was cleared to vie. There was no contra-submission by the Respondent on the issue of prejudice on clearing the applicant to present himself for elections. The only prejudice submitted by the Respondent was on the issue of the alternative prayer (3) of postponing/ suspending the Annual Delegates Meeting elections. We have noted the costs of the Annual Delegates Meeting and it would not be reasonable to postpone or suspend the Board elections.

The members/delegates exercise their right to vote for the candidate of their choice and all the delegates willing to offer themselves should be given a fair opportunity to subject themselves to the elections by the delegates – Section 3 A Civil Procedure Act provides for exercise of inherent powers to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court.

Section 1A Civil Procedure Act facilitates the first expeditious, proportionate and affordable resolution of disputes.

Section 3 Co-operative Societies Act nothing shall limit or otherwise affect the inherent power of the Tribunal to make such orders as may be necessary for the ends of justice….. it is in this light that substantive justice must be given to the parties in light of any prejudice, that may be suffered by any party.

4. Remedies by the Tribunal in regard to the above arguments in the Ruling,

We find that the applicant is entitled to present himself as a candidate for the Board elections. There will be no prejudice suffered by the Respondent in clearing the applicant to vie as a Board member. The Tribunal has considered the substantive justice to each party vis- a- vis the prejudice that may be suffered by the other. It is in the interest of justice and fairness that we order as follows:-

1. That the Respondent be and is hereby ordered to clear the applicant to vie for the position of Board member of Sheria Sacco Society Limited in the Annual Delegates Meeting scheduled for 12. 2.2021.

2. Costs in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF FEBRUARY, 2021.

In the presence of:

Claimant : Victor present

Advocate :

Respondent : No appearance

Advocate : Getange for Respondent

Court Clerk : I Buluma

Hon. B. Kimemia Chairperson Signed 11. 2.2021

Mr. B. Akusala Member Signed 11. 2.2021

Mr. R. Mwambura Member Signed 11. 2.2021