[2025] KECPT 178 (KLR)

Wanda & 2 others (Suing on Behalf of 42 Members of Relisa Housing Co-operative Society Limited) v Relisa Housing Co-operative Society Limited (Tribunal Case 139/E244 of 2024) [2025] KECPT 178 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 178 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 139/E244 of 2024

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

February 27, 2025

Between

Joseph Njunge Wanda

1st Claimant

Charles Nganga Kimani

2nd Claimant

Serah Njeri Kinyanjui

3rd Claimant

Suing on Behalf of 42 Members of Relisa Housing Co-operative Society Limited

and

Relisa Housing Cooperative Society Limited

Respondent

Ruling

1. This ruling dispenses the Notice of Motion Application dated 4th of April 2024. The Application is supported by an affidavit sworn by the Applicants and brought under Order 40 Rules 2 & 4(1) of the Civil Procedure Rules, Rule 11 of the Cooperative Tribunal ( Practice and Procedure) Rules, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and All enabling provisions of the law. The Application seeks the following orders:a.Spentb.Spentc.This Honourable court be pleased to issue a temporary injunction restraining the Respondent either by itself , its agents, servants, officers and/or any other body or entity from offering for sale, selling, proceeding with any current transaction or undertaking any arrangements for the sale of the property comprised in Land Reference No. 209/4988(now converted to parcel number Nairobi/Block 28 /382) pending the hearing and determination of this suit.d.An order directing the Respondent to produce, the advertisement for the tender to sell Reli Cooperative House, the minutes of the meeting of the tender committee that considered the bids for the tender and appointed the estate agent, a copy of the letter of award, the instructions letter to the estate agent and a copy of the valuation report conducted in respect of the property; ande.Costs of this application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: the members of Relisa Housing Co-operative Society Limited raised complaints to the Commissioner of Co-operative Development regarding the management of the proceeds of the Reli Cooperative house. The commissioner appointed an inquiry and from the enquiry majority of members were of the views that the Reli Co-operative House be sold and proceeds shared among members of the society. The applicants aver that the resolution was then passed for the house to be sold, but the members of the Society have been kept in the dark in the arrangements made for the sale. They are questioning how Urban Tree Property Management Ltd was appointed to sell the property, and the nature of instructions given to them. According to the Applicants, if the property is sold during the prevailing circumstances, the applicants and other members stand to suffer irreparable loss and damage.

3. The Respondent filed a Replying Affidavit dated 18th April 2024 and grounds of opposition dated the same date. In their Response, the Respondents depone that the property LR No. 209/4988 was sold on 21st December 2023 as per members resolutions in 2022 and 2023. That the sale of the property was completed on 28th March 2024 and handed over to the purchaser on the 2nd April 2024. That the process of refunding member’s shares on a pro-rata basis is ongoing at an advanced stage and that the Claimants have received their shares or about to receive them shortly.

4. In the Grounds of Opposition, the Respondents aver that the Application is bad in law and unenforceable since the subject property is no longer owned by the Respondents as the property has already been sold and transferred to a 3rd party.

5. The Claimant filed a supplementary affidavit in which they questioned the Respondents for not providing any documentary proof of the sale of the property nor proof of payment of purchase price. Further that there has not been an update of the member’s register to determine what each member is entitled to.

6. The Respondents then filed a further affidavit in which they attach a copy of the sale agreement, a copy of the bank transfer, and minutes of the Special delegate meeting held on 3rd May 2024.

7. The Applicants filed their submissions. In their submissions, the Applicants argue that they have a prima facie case, and they stand to suffer irreparable loss should the application not be allowed.

Analysis 8. This Tribunal has noted the application, responses and the submissions with regards to this application. The question before this Tribunal is whether the Applicant is entitled to the reliefs sought, to wit, a temporary injunction retraining the Respondents from selling or in any way dealing with property comprised in Land reference No. 209/4988 (converted to Nairobi/Block28/382).

9. The germane principles on interlocutory injunctions were stated by the Court of Appeal in East Africa in the case of Giella v Cassman Brown & Co. Ltd (1973) EA as follows:a)The Applicant must first establish a prima facie case with a probability of success.b)The Applicant must then demonstrate that he, she or it stands to suffer irreparable loss that cannot be adequately compensated through damages.c)Where there is doubt on the above, then the balance of convenience should tilt in favour of the Applicant.

10. The first question that this tribunal should address itself is whether the claimant has established a prima facie case with a probability of success. In the case of Mrao v First American Bank of Kenya Limited & 2 Others [2003] eKLR the court defined a prima facie case as one which on the material presented in court, a Tribunal property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the respondent.

11. And so, in this case, the Applicant ought to show that the act of selling the subject property will in some way infringe an existing right. The Applicants claim that the action will cause them irreparable harm, while the Respondents claim that the property has since been sold. This court has looked at the documents supplied by the Respondents, on the alleged sale and transfer of the property and is inclined to belief that the same has already been sold. The Claimants did not dispute the validity of the sale agreement or the copies of cash transfers supplied by the Respondents.

12. In case of Esso Kenya Ltd vs Mark Makwata Okiya C.A Civil Appeal No. 69 of 1991, the court held that;“An injunction is not to be granted if the event meant to be restrained has taken place”Further in the case of Jane Kemunto Mayaka Vs Municipal Council of Nakuru & others, High Court Civil case No.124 of 2005, the Court held that;-“Injunctions are issued to prevent the occurrence of an event that has not occurred or that is threatened to occur that would likely injure an applicant and are not issued where such an event has taken place’’

13. Flowing from above, since the sale of the property for which the injunction is sought has already occurred, the prayer for injunction therefore fails.

14. In the second prayer for the Respondents to produce documents relating to the sale, this court notes that the Respondents have not disputed that the applicants are its members. Under Section 21(4) of the Cooperative Societies Act, the Act provides that members have a right to;-“All legitimate information relating to the society, including: internal regulations, registers, Minutes of general meetings, supervisory committees, reports, annual accounts, inventories and investigation reports, at the society's head office.”

15. The Applicants are requesting for documents that relate to the purported sale of the subject property. This court finds that the documents requested by the Applicants are legitimate information relating to the society, and therefore this prayer succeeds. The Applicants can use this information to seek for other reliefs should they feel that the purported sale of the property in question was not regular.

16. In the upshot we find that the Applicant’s Notice of Motion dated 4th Day April 2024 is partly merited, and make the following ordersi.Prayer for injunction fails.ii.The Respondents are hereby ordered to produce within 14 days of this ruling, the advertisement for the tender to sell Reli Co-operative House, the minutes of the meeting of the tender committee that considered the bids for the tender and appointment the Estate Agent, a copy of the letter of award, the instructions letter to the Estate agent and a copy of the valuation report conducted in respect of the property.iii.The costs of this Application to be in the cause.iv.Mention on 27. 3.2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 2.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 2.2025HON. PAUL AOL MEMBER SIGNED 27. 2.2025TRIBUNAL CLERK MUTAINo appearance by the parties.HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025