1. PATRICK SERRO 2. DAVID ODHIAMBO MUGA 3. RELI CO-OPERATIVE SAVINGS & CREDIT SOCIETY LIMITED vs 1. WILLIAM BOMET 2. JOSEPH ORICHO 3. JOHN AMULI AYANGA 4. ANTONY GOME AGUYO 5. CHARLES OWINO MUMBO 6. DAVID MUKUHA 7.IGNATIUS NDIRANGU 8.CHARLES MWAURA [1999] KECA 19 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: TUNOI, SHAH & OWUOR, JJ.A.) CIVIL APPLICATION NO. NAI. 56 OF 1999 BETWEEN

1. PATRICK SERRO

2. DAVID ODHIAMBO MUGA

3. RELI CO-OPERATIVE SAVINGS & CREDIT

4. SOCIETY LIMITED .......................................................................................... APPLICANTS

AND

1. WILLIAM BOMET

2. JOSEPH ORICHO

3. JOHN AMULI AYANGA

4. ANTONY GOME AGUYO

5. CHARLES OWINO MUMBO

6. DAVID MUKUHA

7. IGNATIUS NDIRANGU

8. CHARLES MWAURA

9. JOHN W. MAYENGE ........................................................................................ RESPONDENTS

(Application for Stay of Execution pending Appeal from the Ruling of the High Court of

at Nairobi (Mr. Justice E. Githinji) delivered at Nairobi on 28th January, 1999 in

H.C.C.C. NO. 2355 OF 1998)

****************

REASONS FOR THE RULING OF THE COURT

On 12th March, 1999, after hearing counsel for both parties we ordered that the application be dismissed with costs. We then reserved our reasons which we now give.

This is an application under rule5(2)(b) of the Rules of this Court seeking a stay of execution pending appeal of the ruling and orders made on 28th January, 1999, by Githinji J. whereby he ordered the 1st and 2nd applicants and other National Officials of the 3rd applicant ("the Society") to hold office only for the purposes of calling and organising the society's branch and national elections within a time limit stipulated by him.

The Society is a co-operative society within the meaning of the Co-operative Societies Act, 1997 ("the Act"). It is common knowledge that it has a large membership running into several thousands. The 1st and 2nd applicants are the National Chairman and Secretary of the Society respectively. All the respondents are its members.

It is averred in the plaint lodged in the superior court by the respondents on 26th October, 1998, that the 1st and 2nd applicants as members of the Central Management Committee have breached the by-laws, the rules and practice of the Society in calling for and presiding over the Society's Annual General Meeting without first calling for annual Branch elections of all the Society's Branches and without placing Election of National Officials as an item on the agenda for the Annual General Meeting, and at which meeting, the applicants passed resolutions illegally perpetrating themselves in office for an extra year. The applicants contend otherwise and state that they are entitled to hold office for 2 years as provided by the by-laws.

The applicants in their intended appeal will raise the question whether or not the learned Judge erred in ordering of the elections of the Society in accordance with the Act; the effect of Legal Notice No. 269 of 1990 on the operations of the Society; and; the validity of the resolution authorising the Society's current officials to pay Shs.25,000,000 to a firm of architects as fees for services rendered to the Society on a building project which, it is alleged, has never existed or taken off the ground.

We think these are indeed weighty issues and we are satisfied that the applicants have shown prima facie that they have substantial points to present on appeal.

However, we are far from being persuaded that the intended appeal, if successful, will be rendered nugatory if we do not accede to this application. The applicants, in fact, ask us to stop the elections whose preparations have actually been complete and were only two days away at the time we heard this application. They are beseeching us to sustain them in office whatever the validity of the elections and whatever their popularity.

In the spirit of the new Act and the by-laws of the Society, we would like to believe that the elections will be conducted democratically and as fairly as possible. And, if the applicants are popular, no doubt, they will be re-elected whatever the term of the office.

Dated and delivered at Nairobi this 26th day of March, 1999.

P.K. TUNOI

................

JUDGE OF APPEAL

A.B. SHAH

................

JUDGE OF APPEAL

E. OWUOR

................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR