Gitonga v Commissioner for Cooperative & another (Tribunal Appeal 4 of 2018) [2025] KECPT 328 (KLR) (Civ) (12 June 2025) (Judgment)
Neutral citation:
[2025] KECPT 328 (KLR)
Republic of Kenya
Tribunal Appeal 4 of 2018
Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
June 12, 2025
Between
Alvin Richard Njiru Gitonga
Claimant
and
Commissioner for Cooperative
1st Respondent
Central Ngandori Farmers' Cooperative Society Limited
2nd Respondent
Judgment
1.Matter for determination is the Amended Memorandum of Appeal dated 22/2/2024.The Applicant’s Appeal is against the Surcharge Order issued via a letter dated 11/7/2018 stating1.The Commissioner erred in law and fact when he found that the Appellant was liable as per the Inquiry Report conducted in February 2018, without considering financial statements of the society for the past ten years which had been presented and adopted by full management committee who vowed to accept all liability arising from those accounts and failing to acknowledge there is in place a duly appointed management committee as per the cooperatives act who had given the financial statements a clean bill of health.2.The Commissioner erred in law and fact by not acknowledging the role of County Cooperative Commissioner and Sub -County Cooperative Officer who are the overseers or supervisors and advisors to the Cooperative Societies who never cited any signs of mismanagement or any form of internal weakness for corrections in Ngadori Farmers’ Cooperative their input was downplayed in preparation of the Inquiry Report.3.The Inquiry Report is faulty and defective as the Ngadori Farmer’s Cooperative audited accounts are registered with auditor general at Ministry of Trade in Cooperative Department who have not raised any issue of mismanagement in the aforesaid Cooperative Society a factor that was never considered by the officers compiling the Inquiry Report.4.The Commissioner erred in law and fact by finding the Appellant liable as per the Inquiry Report for acts committed by the procedure committee of central Ngadori Farmer’s Cooperative of which the Appellant was never and is not a member.5.The Commissioner erred in law and fact by not finding that the new officials of Central Ngadori Farmers’ Cooperative Society Limited had colluded to frame the Appellant as no interview or questionnaire that generated the Inquiry Report was conducted on the Appellant to clarify the issues raised hence he was condemned unheard.6.The Commissioner erred in law and fact by not appreciating that an Inquiry Report while being conducted should involve all key stakeholders and failing to inform himself that the audited accounts have regularly been presented in the Annual General Meeting for consideration and approval of which members adopted as true position of the Cooperative hence it beats logic an Inquiry Report finds fault where there is none.7.The Surcharge letter is faulty in that the proceedings that recommended the same being the inquiry report conducted in February 2018 of Central Ngadori Farmers’ Cooperative Society Limited grossly violated the rights of the Appellants being as a member of the society as provided in the Cooperatives Act.8.The Surcharge letter being a result of an Inquiry Report is faulty as cashbooks documents and securities of the society or crucial information in regard to the affairs of the society was not furnished to the officers conducting the inquiry neither did they demand them.9.The Inquiry Report failed to include the report of Supervisory Committee which is the society watch dog and never cited any form of mismanagement in the society.10.The Commissioner erred in law and fact by not properly analyzing the Inquiry Report and not warning himself that he is obliged to inform the Appellant the results of the inquiry after inspection given the Appellant fell in the category of creditor as recommended by the Cooperative Act.11.The Commissioner erred in law and fact in not finding that the Inquiry Report was tainted and fraudulent as nothing was relied on in processing of the same as it was prepared at the behest of the new management committee who colluded with hired goons and inquiry officers to implicate the Appellant due to personal vendetta between him and some of the new committee members.12.The Commissioner lacked a cogent reasoning and the evaluation of the inquiry report was unsatisfactory.
2.Looking into the Amended Appeal dated 22/2/2024 and having considered the Amended Appeal and looking into cooperative Tribunal (Practice and Procedures).Rules 2009 it provides for practice rules that minutes be part of the Record of Appeal.We have looked into the Record of Appeal filed and we note that the minutes which led to the Surcharge Orders have not been filedTo enable the Tribunal to determine the matter in a just manner we are inclined to direct the Interested Party to file minutes of the Special General meeting that adopted the Inquiry Report and resolved to Surcharge the Appellant.
3.The Interested party Central Ngandori Cooperative Society Limited to file and serve minutes of the Special General Meeting resolving to adopt the Inquiry Report 21 days from today.
4.Judgement on 24/07/2025.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2025.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 12.6.2025HON. BEATRICE SAWE - MEMBER SIGNED 12.6.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 12.6.2025HON. PHILIP GICHUKI - MEMBER SIGNED 12.6.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 12.6.2025HON. PAUL AOL - MEMBER SIGNED 12.6.2025Tribunal Clerk : J. MutaiTribunal order:No appearance by partiesDirections to be sent to the parties on 24.7.2025 for judgment.