Makathimo v Ntima Farmers cooperative Sacco Limited [2025] KECPT 171 (KLR)

Makathimo v Ntima Farmers cooperative Sacco Limited (Tribunal Case E011 of 2024) [2025] KECPT 171 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 171 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E011 of 2024

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

February 27, 2025

Between

Francis Mburugu Makathimo

Claimant

and

Ntima Farmers cooperative Sacco Limited

Respondent

Ruling

1. The Notice of Motion Application dated 18th June, 2024 is brought under Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, Section A1, 1B and 3A the Civil Procedure Act seeking among others Orders:1. That the Honorable Tribunal be pleased to certify the Application as urgent and proceed to consider the same ex-parte at the first instance and to issue appropriate orders or directions accordingly2. That the Honorable Tribunal be pleased to issue an order of temporary injunction restraining the Respondent, their servants or agents from rejecting or turning away coffee produced or delivered by the Claimant at Kaaga Coffee Factory pending the inter-partes hearing of the application and thereafter as the court shall order3. That the Honorable Tribunal be pleased to issue an order of temporary injunction restraining the Respondent and or their servants or agents from rejecting or turning away coffee produced or delivered by the Claimant at Kaaga Coffee Factory pending the hearing and determination of the suit

2. The application was premised on the grounds:a.That the Claimant is a member of the Respondent under membership number 0623 and he delivers his coffee produce at the Respondent’s Kaaga Coffee Factoryb.That on 14/05/2024 the Claimant delivered over 70kg of coffee produce at Kaaga Coffee Factory, but the factory manager Salome Mukiri refused to accept the Claimant’s produce on the basis that she was under instructions from the management of the Respondent not to accept any produce by the Claimantc.That the Claimant was therefore forced to take back his produce which could now not be sold as cherry thereby occasioning the Claimant immense lossd.That the Respondent without any justification illegally and unlawfully instructed the manager at Kaaga Coffee Factory not to accept any produce delivered by the Claimante.That the said directives and or instructions to the factory manager are illegal and unlawful since the Claimant is a legitimate member of the Respondent and therefore there is no lawful justification for rejecting the Claimant’s producef.That the Respondent is yet to provide the Claimant with any reason for the decision to reject his coffee produceg.That the Claimant continues to suffer double losses since the rejected coffee produce are perishable goods with a short lifespan and cannot be sold or delivered to any other factory save for where the Claimant is registeredh.That it is only fair and just that the orders sort are granted in order to put an end to the huge losses incurred by the Claimanti.That despite having been served with the demand notices, the Respondent has yet to give any reason and or lawful excuse on the basis of which the Claimant’s Coffee produce is being rejectedj.That the facts, nature and circumstances of the case are in favor of granting of prayers being sought by the application.

3. This Tribunal on 20th June 2024 gave directions and granted a temporary injunction in terms of prayer 2 of the application, restraining the Respondents and or their servants or agents from preventing the Claimant from delivering the Coffee produce at Kaaga Coffee Factory till hearing of the Application.

4. The Respondent in response, filed a Replying Affidavit through their Chairman Peter Mwongera sworn on 22nd July 2024 stating among others that the Claimant was a former member since he was expelled by members in a Special General Meeting (SGM) held on the 3rd October 2023 and that the Claimant was present in that meeting and is well aware of his expulsion. It is the Respondent’s position that by 14th May 2023 when the Claimant’s coffee produce was turned away, and as at 18th June 2024 when he filed the suit, he had not applied to be reinstated as a member of the Respondent as per the society by-laws.

5. On 15th August, 2024, this Tribunal gave further directions for the Application to be canvassed by way of written submissions. The Claimant filed his written submissions dated 6th September 2024 stating among others:i.That he has never been offered any reasons for the decision to reject his coffee produceii.That's the decision to reject his coffee produce are illegal and unlawful since he is a legitimate member of the Respondent Society and therefore there is no lawful justification for rejecting the his produceiii.That he has continued to suffer double losses since the rejected coffee produce are perishable goods with a short lifespan and cannot be sold or delivered to any other factory save for where he is registered as a memberiv.That he never attended the purported Special General Meeting held on the 3rd October 2023 and that the by-laws of the Respondent were lastly amended and approved by the Commissioner for Co-operatives on 16th October 2023, which by-laws are yet to be registered and therefore have no legal effectv.That it's not possible that the Claimant was expelled from membership of the Respondent without being accorded a hearing, and it is against public policy for a member to be expelled for filing a suit, as that is their constitutional rightvi.That the Claimant has established a prima facie case to warrant the granting of an injunctionvii.That the purported expulsion was done on the basis of by-laws that are not in conformity with Section 8 (2) of the Co-operatives Societies Actviii.That the Claimant stands to suffer irreparable damage since he cannot sell his coffee to any other factory, and the coffee produce is a perishable commodity that is harvested and delivered within a dayix.That it's not possible that the Claimant was dismissed from membership of the Respondent on 3rd October 2023, as the Claimant continued to deliver his coffee until 14th June 2024 when it was first rejected

6. The Respondent’s filed their written submissions dated 9th September 2024 stating among others:a.That the Claimant is economical with the truth as he has failed to inform the court that he was expelled by members in a Special General Meeting held on 3rd October 2023b.That the decision to expel the Claimant from membership of the Respondent with other members was arrived at in the presence of the sub-county cooperative officers and the Claimant was also present and is well aware of the decisionc.That the Claimant cannot put the cart before the horse as he has failed to comply with the by-laws of the Respondent which provides for an appeal to the general meeting through the management committee and as such, the suit is therefore prematured.That the Claimant has three other cases against the society and has vowed to frustrate the new office holders with endless litigation having lost in the competitive elections of 2023, and if an expelled member who is technically a non-member is allowed to deliver coffee and participate in the affairs of the society, then membership of the society will be rendered useless and needlesse.That the Claimant is not a legitimate member of the society with 69 members having voted to expel the Claimant out of 73 members presentf.That the Claimant has not exhausted the dispute resolution mechanism as set out in the by-laws and as such the case is premature before that Tribunalg.That the Claimant has not satisfied the tests for granting of injunction orders

7. We have considered the Application and the submissions filed, and the only question remaining for this determination is as to whether the Claimant has satisfied the tests for granting of injunction orders

Has the Claimant satisfied the tests for granting of injunction orders? 8. We begin by indicating that an injunction order, is a court order made in the early stages of a suit that prohibits the parties from doing some acts to preserve the status quo until a pending ruling or outcome. The purpose of a temporary injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the court’s ability to render a meaningful decision after a trial on the merits.

9. In the case of Nguruman Limited Vs Jan Bonde Nielson & 2 Others [2014] eKLR, the Court of Appeal expounded on the tests when it held that;“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;a.establish his case only at a prima facie level,b.demonstrate irreparable injury if a temporary injunction is not granted, andc.ally any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logical hurdles that the applicant is expected to surmount sequentially.”

10. In this particular case, we are persuaded that on the interim, the Claimant has been able to establish a prima facie case as he has been able to point to issues of rights and procedures that may need evidence to determine, and he has also been able to indicate that he will suffer irreparable harm as his perishable coffee cannot be taken to any other factory at the moment. As such, we find that the balance of convenience in the interim, tilts in his favour.

Final Orders 11,The Application dated 18. 6.2024 has merits and is allowed in the following terms:i.Temporary injunction is granted restraining the Respondent, their servants or agents from rejecting or turning away coffee produced or delivered by the Claimant at Kaaga Coffee Factory pending the hearing and determination of the claim.ii.Mention for pre-trial directions on 7. 5.2025. notice to issue. Parties to comply by filing written statement and documents within 21 days herein.iii.Costs in the cause

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 2.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 2.2025HON. PAUL AOL MEMBER SIGNED 27. 2.2025TRIBUNAL CLERK MUTAINo appearance by the parties.HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025nrb.ctc.no. e011 of 2024 ruling a.w.n.pa 0