Samuel Marak, Zablon Change, Josiah Oyaro, David Nyaribo, Alfred Nyairo, Zachary Ondara & Samuel Moses v Nyabomite Farmers Co-Operative Society Ltd, Alloys Joseph Abuga, Stanley Michira, David Kireki & Josphat Mochomba Onchiri (Tribunal Case 328 of 2019) [2020] KECPT 118 (KLR) (9 April 2020) (Ruling)

REPUBLIC OF KENYA

IN THE COOPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 328 OF 2019

SAMUEL MARAK......................................................................1^ST CLAIMANT

ZABLON CHANGE...................................................................2^ND CLAIMANT

JOSIAH OYARO........................................................................3^RD CLAIMANT

DAVID NYARIBO......................................................................4^TH CLAIMANT

ALFRED NYAIRO....................................................................5^TH CLAIMANT

ZACHARY ONDARA..............................................................6^TH CLAIMANT

SAMUEL MOSES.....................................................................7^TH CLAIMANT

VERSUS

NYABOMITE FARMERS                                                                                      

CO-OPERATIVE SOCIETY LTD......................................1^ST RESPONDENT

ALLOYS JOSEPH ABUGA................................................2^ND RESPONDENT

STANLEY MICHIRA.........................................................3^RD RESPONDENT

DAVID KIREKI...................................................................4^TH RESPONDENT

JOSPHAT MOCHOMBA ONCHIRI................................5^TH RESPONDENT

RULING

What is before us for consideration and determination are the following Applications:

(a) Claimant’s Application dated 18.6.2019;

(b) Respondent’s Application dated 1.7.2019; and

(c) Claimant’s Application dated 31.7.2019.

For procedural order, we will determine the Applications on the basis of the order in which they were filed.

Mode of disposal

Vide the directions given by the Tribunal in 2018/2019, all the three Applications were canvassed by way of written submissions. The Claimants filed their initial set of submissions on 5.12.2019. They also filed their supplementary submissions on 28.1.2020.

The Respondents filed their written submissions on 21.1.2020.

Application dated 18.6.2019

Vide this Application, the Claimant is seeking Orders inter alia for the Respondents to be barred from holding the meeting scheduled for 25.6.2019 or on any other date until the suit is heard and determined. The Application is supported by the grounds on its face and the supporting Affidavit of Samwel Marak sworn on 18.6.2019.

Vide the said Application, the Claimants contend that they are the legal officials of the 1^st Respondent pursuant to an order of the court. That they will suffer irreparably if the Respondents are allowed to conduct the meeting scheduled for 25.6.2019.

Response to the application

The Respondents have opposed the Application by filing a Replying Affidavit sworn by Josphat Mochomba Onchiri on 14.8.2019. Vide this Response, the Respondents contend that the order of the High Court (at Nyamira) made on 2.11.2018, did not remove the Respondents from office. That the Respondents were duly elected into office on 11.10.2018. That the Claimants were surcharged by the Commissioner of Co-operatives and are yet to challenge the said surcharge order.

Determination

We have perused Annexutre SM-1 of the annextures to the Affidavit in support of the Application. They are two orders made by the High Court at Nyamira. The first order was made on 1.11.2018. The said order restrained the Respondents from removing the claimants from the 1^st Respondent’s Management Committee.

The order made on 14.2.2019 referred the matter to the Tribunal. Further, the court extended the orders made on 11.11.2018 and limited it to compromise by consent of both parties or setting aside by this Tribunal.

We have appreciated the averments made at paragraphs 5-8 of the Replying Affidavit sworn by the 5^th Respondent. We have particularly perused annexures JMO-1, JMO-2 (a) and JMO-2 (b). It is apparent that the Commissioner of Co-operatives Development instituted an inquiry into the affairs of the 1^st Respondent. That an inquiry report was presented and adopted by the members of the 1^st Respondent at an Annual General Meeting held on 11.10.2018. That the said Annual General Meeting approved the removal of the 1^st - 6^th Claimants and appointment of the Respondents as Interim Committee Members.

We have perused the record and note that the Claimants did not make any rebuttal to these contentions by the Respondents. If it is true that there was an inquiry undertaken by the Commissioner of Co-operatives which resulted in the Claimants being surcharged and removed from office, then we will not interfere  with the election of the current officials at this stage until the main claim is heard and determined. We say no noting that the High Court order issued on 19.2.2019 allowed us to set aside the interim orders granted.

 We say so taking into account the obtaining situation in the Country. It is common knowledge that the Country is facing an unprecedented pandemic which has compelled various Government Agencies and/or departments to pronounce certain measures. To this end, we take Judicial Notice of the Pronouncements made by the Commissioner of Co-operatives Development on 16.3.2020 and 26.3.2020. In order to guarantee seamless operation of the 1^st Respondent and compounded by our observations above, we disallow the Claimant’s Application dated 18.6.2019 and subsequently direct that the officials elected on 11.10.2018 to continue being in office pending the hearing and determination of the main claim.

Respondent’s application dated 1.7.2019

The Application seeks for orders, inter alia, that the Tribunal be pleased to set aside, vary and/or review the orders made on 19.6.2019 and allow them to convene the Special General Meeting as per the Notice dated 11.6.2019. That in the alternative, the Tribunal be pleased to direct that the Commissioner of Cooperative Development does call and convene a Special General Meeting for purposes of approving the Finance budget of the 1^st Respondent.

Response by the claimants

The Claimants have opposed the Application by filing statement of Grounds of Opposition dated 3.7.19 and Replying Affidavit sworn by Samwel Marak on even date.

Determination

In view of our finding in the Claimant’s Application dated 18.6.2019, we find that the instant Application is spent.

Claimant’s application dated 31.7.2019

Similarly, in light of our orders in the Claimant’s Application dated 18.6.19, we find that the Instant Application is spent.

Conclusion

The upshot of the foregoing is that we disallow Claimant’s Application dated 18.6.2019 and direct that the officials elected on 11.10.2018 to continue being in office pending the hearing and determination of the main claim. Consequently, the Respondent’s Application dated 1.7.2019 and the Claimant’s Application dated 31.7.2019 are hereby marked as spent.

Read and delivered in accordance with the guidelines issued by the Hon. Chief Justice on 15.3.2020, this 9^th  day of April, 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman  Signed 9.4.2020

Hon. F. Terer Deputy Chairman Signed 9.4.2020

P. Gichuki  Member  Signed 9.4.2020