Njuguna v Mburu & another (Tribunal Case E289 of 2025) [2025] KECPT 293 (KLR) (Commercial & Admiralty) (29 May 2025) (Ruling)
Neutral citation:
[2025] KECPT 293 (KLR)
Republic of Kenya
Tribunal Case E289 of 2025
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & PO Aol, Members
May 29, 2025
Between
Samuel Njuguna
Claimant
and
John Mburu
1st Respondent
Robert Njoroge
2nd Respondent
Ruling
1.The Notice of Motion dated 4th April, 2025 filed by the Claimant is before the Tribunal for determination. Therein, the Claimant prays for orders:a.SPENT.b.THAT a temporary order suspending the execution of any resolution emanating from the impugned Special General Meeting held on 28th March, 2025 rife with illegalities and contravention of the enabling laws.c.THAT a temporary order suspending or restraining the purported officials elected in the unlawful elections held on 28th March, 2025 from taking or fundamentally affecting operations of the Sacco and interference of ongoing legal proceedings on behalf of the Sacco.d.THAT the Court does make any other appropriate orders convenient for justice to prevail.e.THAT the costs of this Application be provided for.
2.The Application is supported by the annexed Supporting Affidavit of the Claimant sworn on 4th April, 2025, the Further Affidavit sworn on 30th April, 2025 and the grounds that the notice of the meeting was not properly served as per the law and laws of the Sacco. That the election of the officials was neither on the meeting agenda not properly communicated to the Claimant and members. That the notice period for the meeting was too short. That the Respondents changed the venue of the meeting without providing a valid reason or adequate notice to the claimant and members. That the said meeting was held with an insufficient number of members to meet the required minimum. That the Respondents have not provided the minutes of the meeting contrary to the law. That unless the Respondent is not restrained, the Claimant will suffer serious irreparable harm as he stands to be unjustly deprived of his position and role within the society.
3.In the Supporting Affidavit, the Claimant introduces himself as the Chairman of Munga Travellers Savings and Credit Co-operative Society Limited, which operates the business of ferrying passengers by Public Service Vehicle license within Ruiru-Thika Road-Thika Town-Ngoliba-Munyu-Juja Farm route and back. That the 1st Respondent is the Vice-Chairman of Munga Travellers Savings and Credit Cooperative Society Limited and the 2nd Respondent is the Secretary of Munga Travellers Savings and Credit Society Limited. That on 25th March, 2025, the Claimant received a letter notifying him of a Special General Meeting scheduled for 28th March, 2025. That the notice period was too short. That the letter did not state that there was to be a general election in the agendas of the meeting and he became aware of the elections on the material day of the meeting. That while the letter indicated the venue of the meeting as Stema, the location was changed on the day of the meeting to a different venue in Thika Dreams, causing inconvenience and potential prejudice to the Claimant’s ability to participate effectively. That the number of members in attendance was insufficient to meet the minimum participation threshold required by the by-laws and the minutes of the meeting have not been …
4.The Respondent in reply to the Application, filed a Replying Affidavit sworn by the 1st Respondent, John Mburu on 14th April 2025 wherein he depones that the Application dated 4th April, 2025 is bad in law as the Respondents have been served as individuals rather that the officials of Munga Travellers Sacco. That the dispute as stated by the Claimant revolves around Munga Travellers Sacco so he cannot be sued as an individual. That he is the Chairman of Munga Travellers Sacco while the 2nd Respondent is the Secretary. That the Claimant/Applicant is the former elected official in the capacity of Chairman since 21st March, 2022 till 28th March, 2025. That the term of office as per paragraph 36 of the Constitution is 3 years. That the Secretary at the time, who is also the 2nd Respondent was instructed on 6th March, 2025 by the Claimant who was then the Chairman, to call for the meeting in the presence of David Michubu, a member and official of the Sacco. That on 11th March, 2025 the said Secretary visited the office of the Thika Sub-counter Cooperative offices and the said officer gave them a meeting date of the 28th March, 2025 due to the Sacco elections.
5.That the management committee members were informed of the said dates and on 13th March, 2025, the Secretary drafted the meeting notice and showed all the members including the Chairman in the presence of other members. That before the meeting and due to security reasons and proximity to Sacco’s main operating stage, the venue of the meeting was changed and communicated to the members. That on 28th March, 2025, Members met and agendas were set and one of the agendas was election since the term of officials had expired. That minutes were taken down and members present signed the attendance sheet. That the meeting was chaired by the Applicant and he cannot purport that he did not know of the meeting and its agendas. That the meeting was called for by the Chairperson as the only one mandated. That the Chairperson cannot stay in office as his term had expired and he will be in office illegally. That the Sacco has 21 members, 18 were in attendance hence there was quorum for election. That the matters herein relate to the Sacco and other stakeholders in the industry. That the Sacco is the one being sued and not the Chairperson in his own capacity. That the Claimant cannot purport that the elections will affect the cases as they revolve around the Sacco and not him individually. That the issue of service is untrue as the Claimant was served in good time and he visited the offices of the Sub-County Co-operative Societies to confirm the meeting date.
6.That granting the orders sought by the Claimant at this Stage would be detrimental to the Sacco as the election was done in the presence of the Co-operative officer who is in receipt of the minutes and resolution. That the prayers sought are untenable as the resolutions were effected and the matters relate to the Sacco and not individual persons.
7.In his Further Affidavit and in response to the Respondent’s Replying Affidavit, the Claimant states that the Respondents are correctly sued in their individual capacities as he is challenging their validity as elected officials; the said elections having been unlawful. That it is true that as per paragraph 36 of the Sacco’s by-laws, members of the Committee, including the Chairman, vice Chairman, Treasurer and Secretary shall hold office for a period of 3 years, but the by-laws do not prohibit re-election of Committee members. That the issue in dispute is not the limitation on term of office but the manner in which the election process was conducted. That the Claimant does not seek to extend his tenure beyond the prescribed term, but rather challenge the unlawful and irregular procedure by which the election was held which contravenes the Sacco’s by-laws. That he did not call for the meeting and did not chair it. That the meeting venue changed at the last minute and by the time he arrived, the meeting had started and it was therefore impossible for him to have chaired it. That upon arrival, I observed a majority of those in attendance were not actively contributing or operating vehicles in the Sacco, hence could not vote.
8.That the member list of vehicles attached is 31 vehicles that were collectively introduced into the Sacco and were instrumental in stabilizing and reviving the Sacco’s functions during a critical period when it faced financial distress. That it was agreed in his term as Chairman that their membership status would be reconciled progressively through deductions from future savings and the Sacco’s financial position normalized. That the individuals have been acknowledged is practice as members of the Sacco. That the Respondent’s attempt to exclude the persons who brought the 31 vehicles from membership is inconsistent with the Sacco’s prior resolutions. That the attached list does not refer to only vehicles but to identifiable individuals whose involvement was well-known and accepted by the Sacco’s leadership.
9.That the elections were therefore in the absence of legitimate contributions and with the participation of individuals who have not maintained active status or fulfilled ongoing obligations were irregular. That there was no legitimate reason for change of the venue and the Sacco has always held its meetings at Stema. That since he left, he did not Chair or sign the attendance sheet of the meeting; that his name, ID number and signature were forged on the attendance sheet. That he swore documents in the said cases in his capacity as the Chairman and not in his personal capacity. That he only visited the Sub-County Co-operatives office to complain about the short notice. That despite the Co-operative officers’ attendance and receipt of minutes, the election process was conducted in a manner which violates the Sacco by-laws, laws of Kenya and the principles of fairness.The parties filed Submissions in respect of the Application dated 4/4/2025. The Claimant/Applicant’s submissions are dated 30th April, 2025 while the Respondents’ Submissions are dated 12th May, 2025.
Analysis and Determination.
10.We have considered all the documents filed by the parties herein including the Written Submissions and have two issues for determination, at this stage of the proceedings:
i.Whether the Claimant/Applicant is entitled to the orders sought in the Application dated 4th April, 2025.We note from the onset, that the meeting in issue herein is a general meeting of a Society registered as Muga Travellers Savings and Credit Co-operative Society Limited.Without going into the substantial merits of the case, we must decide whether the Special General Meeting of the Society held on 28th March, 2025 was convened and held in accordance with the law and the by-laws of the subject society. We must determine the issue without paying any regard to the issue of non-joinder of the said Sacco in these proceedings, which though raised in this Application, we had rather leave for determination in the main hearing.
11.For the law relating to General meetings, we shall rely on the Sacco Ny-laws produced by the Claimant/Applicant as Exhibit “SN1” of his Supporting Affidavit, and the Co-operative Societies Act Cap 490 of the Laws of Kenya.Under By-Law 30 1 (a), an Annual General Meeting will be convened within 4 months after the end of the of Society’s Financial year. By-Law 30.1 (b) states that Special General Meeting of the Society may be held when convened by:i.The Committee,ii.The Commissioner,iii.The Committee within 15 days of receipt of a Written request by at least 50% of the members.iv.The members if the Committee fails to convene the meeting as per (iii) above.Among the duties of the General Meeting, as provided under By-law 31.1, is to elect or remove members of the Committee and the Supervisory Committee subject to the Act, Rules and the by-laws. By-Law 33(c) of the said By-Laws. The General … all notice of the general meeting shall include a statement of business to be dealt with.Further, By-law 35 (a) provides that with every notice of the General Meeting convened in accordance with these by laws where elections will be held, the Committee shall notify the members of the vacancies arising in both the Committee and Supervisory Committee.”
12.The Notice dated 13th March, 2025, which has not been disputed by the Respondents convenes a Special General Meeting on 28th March, 2025 at Stema with the following agendas:a.Reading of the previous minutes.b.Matters arising.c.Committee’s report.d.Way forward for our Sacco.It is clear to us the aforesaid Notice did not contain the entire business which was dealt with in the General Meeting of 28th March, 2025, and particularly, the notice failed to notify the member that the elections of the committee was an agenda in the meeting; and to state the vacant positions .From the minutes of the meeting held on 28th March, 2025, the Agenda (d) is elections. It is clear therefore that the agenda of “way forward for our Sacco” in the notice was replaced with “Elections”, in the minutes. This contravenes express the Society’s By-Laws which direct how a meeting in which elections are to be held is convened. It is not an excuse for the Respondents to say that the Claimant/Applicant should have expected the election at the Annual General Meeting as his term had lapsed.
13.It is therefore our considered view that elections held in General Meeting held on 28th March 2025 were not lawfully held as the same was not listed as an agenda in the notice, neither did the notice contain the notice of vacant positions as required by the By-laws. The involvement of the Co-operatives officer in the meeting and by thereafter handling the minutes does not regularize the irregularity.In view of the foregoing, we find that the Claimant/Applicant’s Notice of Motion Application dated 4th April, 2025 has merit and order as follows:1.An order is hereby issued suspending the execution of any resolutions emanating from the Elections’ Agenda of the General Meeting of Muga Travellers Savings and Credit Co-operative Society Limited,2.An order is hereby issued suspending or restraining the officials elected in the elections of Muga Travellers Savings and credit Co-operative Society Limited held on 28th March, 2025 from taking office or undertaking operations of the Sacco in the capacity of officials,3.Having looked into the prayers in the main suit where they seek prayer:a.A declaration that the elections held on the 28th of March 2025 were illegal and invalid, having been conducted in contravention of the enabling laws.b.A declaration that the purported officials elected in the unlawful elections held on the 28th March 2025 were not validly elected and their election is null and void.We find that the ruling has dealt wit the prayers therein for elections as election were not part of the Special General Meeting held on 28.3.2021 and as such are an illegality.Matter is therefore marked as closed.4.Costs to the Claimant.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025.HON. B. KIMEMIA CHAIRPERSON SIGNED 29.5.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29.5.2025HON. BEATRICE SAWE MEMBER SIGNED 29.5.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29.5.2025HON. PHILIP GICHUKI MEMBER SIGNED 29.5.2025HON. P. AOL MEMBER SIGNED 29.5.2025Tribunal Clerk MutaiMs. Waiyego advocate holding brief for Karugu Mbugua advocate for the Claimant/ApplicantGachari advocate holding brief for Mr. Waweru Nyambura advocate for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 29.5.2025