Isaack Kigo Mbugua (Suing on his behalf and on behalf of 500 others member of Kenton Kijabe Hill Co-operative Society) v Kenton Kijabe Hill Sacco Limited (In Liquidation) [2020] KECPT 86 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 206 OF 2019

ISAACK KIGO MBUGUA

(Suing on his behalf and on behalf of

500 others member of Kenton Kijabe Hill Co-operative Society).......CLAIMANT

VERSUS

KENTON KIJABE HILL SACCO LIMITED

( In Liquidation)............................................................................RESPONDENT

RULING

Vide the Application dated 22/3/2019 the Claimant has moved this Honourable Tribunal seeking for Orders inter alia;-

a) That pending the hearing and determination of the suit, the Respondent be restrained by itself, its agents or servants from transferring, selling, leasing or in any manner whatsoever alienating parcel L.R.No. Longont /Kijabe Block 3 and Naivasha/Maraigushu Block 9; and

b) Costs.

The Application is supported by the grounds on its face and the Affidavit sworn by the Claimant on 22/3/2019.

It is the Claimant’s case that the liquidator of the Respondent is illegally in office as the High Court, sitting at Nakuru in Misc.Appl. No. 68/15 declared that the Society did not have a liquidator.  That the members of the Respondent are aggrieved by the dealing, undertaken by the alleged liquidator as regards the said parcels.

That the Respondent was put under liquidation.

That despite this declaration, the Commissioner of Co-operative continued with forceful liquidation through Gazette Notice No. 5272 of 26/9/1997.

That in 2009, the then Minister for Co-operative cancelled the said liquidation and directed the liquidator to be discharged .  That the minister also ordered the Commissioner of co-operatives to furnish it with a written statement of affairs regarding the said liquidation.  That the Commissioner then wrote to the Respondent on 3/4/2003 halting the liquidation.  That as a result, there is no liquidation in place.

Respondent’s Case

The Respondent has opposed the Application by filing a statement of Grounds of Opposition dated 1/7/2019.  Vide the said grounds, the Respondent contend that the instant Application is frivolous, vexations and is otherwise an abuse of the court process.

That the Claimant is a vexations litigant who has been filing case from one court to another.  That he has filed the following cases.

a) CTC No. 368/18;

b) Civil Suit No. 63/12; and

c) Pet. No. 27/16.

That there exist orders in CTC No. 368/18 which orders contradict the ones sought in the instant Application.

That he had filed a Judicial Review Application in Nakuru over similar matters but the same was dismissed by Hon-Justice Emukuu on 6/7/2012.

That the Claimant is an imposter who had been holding out and filing proceedings claiming to be the Respondent’s Chairman.

That the Claimant is misleading the Tribunal with the Hon. Minster’s Ruling.  That the only person with the power to appoint and revoke appointment of a liquidator is the Commissioner for Co-operative Development.

That the Claimant has been grossly and greatly interfering with the work of the liquidator.

Mode of disposal of the Applications

The Application was supposed to be disposed of by way of written submissions pursuant to the direction given in 2/7/2019 but as at the time of writing this Ruling, none of the parties had complied.

Issues for determination

We have framed the following issues for determination;

a) Whether the Claimant has laid a proper basis to warrant the Tribunal to issue an order of injunction restraining the Respondent from transferring and/or dealing with property L.R.No. Longonot /Kijabe Block 3 and Naivasha/Maraigushu Block  9.

b) Who should meet the cost of the Application.

Injunction

This Tribunal has jurisdiction to make orders regarding temporary injunction by dint of Order 40 of the Civil Procedure Rules.  Order 40 Rule 1(a) thereof provides thus;-

“ Where in any suit it is proved by Affidavit or otherwise (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit or wrongfully sold in execution of a decree, the court may, by order, grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit and the disposal of the suit or until further orders.”

Before we can exercise our Jurisdiction under Order 40 Rule 1(a) above, we  must satisfy ourselves that the Applicant has fulfilled the principles set out in the celebrated case of Giella –vs- Cassman Brown & Company Ltd [ 1973] EA 358 .  They include;

a) Prima facie case with probability of success;

b) Irreparable damage; and

c) Balance of convenience.

The court in the case of Mrao Ltd-vs-First American Bank of Kenya Ltd (2008) eKLR defined a prima facie case to mean;

“a prima facie case is more than an arguable case.  It is not sufficient to raise issues.  The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented to the 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 from then later….”

Dwelling on this principle, the question arises as to whether on the material, presented before us, the Claimant has demonstrated that he has a right which has been infringed by the Respondent so as to call for an explanation.  It is the Claimant’s case that the assets of the Respondent are in the verge of being wasted and /or dissipated by a liquidator who is illegally in office.  He contends that the appointment of the Receiver was lifted by the High Court sitting in Nakuru Vide Misc- Civil Application No. 68/15.  He produced the said Ruling as annexture No. 1KM IV in his Supporting Affidavit.  He also made reference to a Ministerial directive halting the appointment of the Receiver.

On the other hand, the Respondent has accused the Claimant of being a vexatious litigant.  That he has filed numerous case over the same subject matter in different forums.  That these cases include;-

a) CTC No. 368/18;

b) Civil Suit No. 63/12; and

c) Pet. No. 27/16.

The Respondent contend that there exist orders in CTC No. 36/15 which contradicts the ones the Claimant is seeking in the instant Application.  That his Judicial Review Application was dismissed in Nakuru.

We note that the Claimant did not disclose the existence of these mattes in the current Application, yet he is seeking an equitable remedy.  He who comes to Equity must come with clean hands.  If for instance, it is true that the matters in controversy in CTC No. 368/18 are similar to the ones sought in the instant Application and the suit in its entirety, then it is possible for the current suit to either be declared Res judicata or subjudice.

In light of this none-disclosure, we find that the Claimant has not established a prima facie case with a probability of success. In lieu of this finding, we direct that we will not consider the two other limbs of the Principles enunciated in Giella –vs- Cassman Brown.

Conclusion

The upshot of the foregoing is that we dismiss the Application with costs in the cause.  Parties are directed to comply with Order 11 and process the matter for hearing,

Ruling read, dated and delivered via email in accordance with the directions given by the Honourable , the Chief Justice on 15/3/2020, this 30th day of April, 2020.

Prepared by Hon. B. Kimemia – Chairman, Hon. F. Terer – Deputy Chairman and P. Gichuki – Member, with the consent of the parties.

The final orders to be delivered by email in accordance to the prevailing measures during the COVID-19.

Hon. B. Kimemia   -  Chairman

Hon. F. Terer   - Deputy Chairman

P. Gichuki  - Member