Makori & 3 others v Cooperative Commissioner Nyamira County & 7 others [2025] KECPT 223 (KLR)

Makori & 3 others v Cooperative Commissioner Nyamira County & 7 others (Tribunal Case E001 of 2024) [2025] KECPT 223 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 223 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E001 of 2024

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

March 27, 2025

Between

Evans Omwenga Makori

1st Claimant

Moses Kengere

2nd Claimant

James Mokaya Magaki

3rd Claimant

Charles Ngare Ogongo

4th Claimant

and

The Cooperative Commissioner Nyamira County

1st Respondent

Gesongo Farmers Cooperative Society

2nd Respondent

Samuel Mokaya Boera

3rd Respondent

Veronica Anyona

4th Respondent

Josephine Kerubo Momanyi

5th Respondent

Joshwa Onyiengo Machoka

6th Respondent

Daniel Omesa

7th Respondent

Evans Mochache Ariemo

8th Respondent

Ruling

1. This ruling dispenses with two applications. The Notice of Preliminary Objective dated 31st May 2024 and the Respondent notice of motion application dated 13th February 2024.

The Preliminary Objection 2. The Notice of Preliminary objection dated 31st May 2024, the 2nd Respondent intends to raise a Preliminary Objection at the hearing of the Claimant’s case and the application dated 13th February 2024, on the following grounds:a.That these proceedings have been overtaken by events in view of elections held on 26th March, 2024. b.That these proceedings have been commenced contrary to the law.

3. The brief background of the matter is that the Claimants and 3rd to 8th Respondents are members of the 2nd Respondents. According to the Claimants, pursuant to a Special General Meeting of the society held on 23rd August 2023, the entire sitting management committee were removed from office and an interim committee that included 3rd to 7th Respondents were elected to run the affairs of the society. The responsibilities of the interim committee were, among other, to come up with an interim report on the affairs of the society and table the same for adoption at a general meeting. The claimants claim that the interim committee conducted inquiries and made their findings which they reduced into a report but instead of tabling the report before the members, they only submitted it to the 1st Respondent leaving the members in the darkness. That on June 5th 2023, the Claimants made a notice for an SGM for 20th June 2023 to discuss elections and mismanagement and destruction of societies assets but the 3rd to 8th Respondents countered it by issuing a parallel notice for 21st June 2023 which called for elections before the report by the interim committee was tabled at a general meeting. However, the 1st Respondent cancelled both meetings. The interim committee also issued a notice on 21st November 2023 for a special general meeting to be held on 6th December 2023, but the interim committee adjourned the same. The Claimants claim that they had made several complaints to the 1st Respondent regarding the conduct of the interim committee and even filed a police report at Sengera Manga Police Station but the 1st Respondents did not take any action, and hence this claim. The Claimant also filed a notice of motion application dated 13th February 2024 seeking among other things an injunction against the implementation of the 1st Respondent’s Notice dated 30th January 2024 calling for a Special General Meting and elections of a Management Committee and Supervisory Committee on 15th February.

4. In the Preliminary Objections, the 2nd Respondent informs this Tribunal that the proceedings have been overtaken by events in view of elections held on 26th March 2024.

5. The Claimants did not file any response or grounds of opposition on the Preliminary Objection.

6. Despite this court ordering that the matter be canvased by way of written submissions, neither of the parties filed submissions.

Analysis 7. The question before this Tribunal, therefore, is whether the proceedings in this matter have been overtaken by events. The event alleged to have happened is the election of management and supervisory committee on 26th March. On the question whether the 2nd Respondents assertions are true, this Tribunal is inclined to give a benefit of doubt that indeed elections occurred because on 25th March 2024, the 2nd Respondents moved this court to give a temporary injunction to a Special General Meeting scheduled for 26th March 2024 calling for the allegation (sic) of management and supervisory committees, and which orders this court did not grant.

8. Therefore, to answer the question of whether elections would lead to these proceedings being overtaken by events this court will go through the prayers sought in the statement of claim, and the effects of an election to those prayers.

9. Prayer A calls for a declaration that the term of office of the current interim committee that assumed office on 23rd August 2023 and lapsed on 23rd November 2023 ended and the committee is illegally in office. Elections would mean that the interim committee is no longer in office because elections would bring in a substantial management and supervisory committee. Prayer one has therefore lapsed.

10. The second prayer calls for an order directing the new society’s management committee to immediately inquire into the affairs and conduct of the outgoing interim committee. The effects of an election on this prayer is that elections would lead to a substantial supervisory committee that is charged with the supervision of the committee’s activities such as this. This prayer, therefore lapse.

11. Prayer C is for an order barring any member of the outgoing interim committee that came into office from presenting himself or herself for election to any elective post. If elections have occurred, this prayer accordingly lapse.

12. Prayer D calls for an order directed to the 2nd Respondent to appoint an independent auditor to undertake comprehensive audits of its financial accounts and present the audit report at an AGM. Unless otherwise demonstrated to this court, this prayer does not lapse by virtue of an election.

13. Prayer E calls for an order that members shares be shared following the split of Gesongo Framers Co-operative Society from Kemera Co-operative Society in the year 2014. Unless otherwise demonstrated to this court, this prayer does not lapse by virtue of an election.

14. Prayer E calls for an order that the 2nd Respondent settle the society’s employees’ salaries and wages. Unless otherwise demonstrated to this court, this prayer does not lapse by virtue of an election.

15. In conclusion, therefore, all prayers have not been overtaken by elections of a substantial management and supervisory committee and the Preliminary Objection accordingly fails.

The Notice of Motion 16. The Notice of Motion Application is dated 13th February 2024. The Application is supported by an affidavit sworn by one Evans Omwenga Makori, the 1st Claimant, and brought under Rules 3, 4, 6 and 11 of the Cooperative Tribunal (Practice and Procedure Rules, 2009, Order 40 Rules 1, 2, 3(1) & Order 51 Rule 1 & 15 of the Civil Procedure Rules, Sections; 1A, 1B, 3 & 3A & 64 of the Civil Procedure Act and All other enabling provisions of the law. The Application seeks the following orders:a.That this application be certified urgent and service be dispensed with in the first instance, as substantiated by the urgency disclosed on the certificate of urgency and the affidavit in support of this application.b.That pending hearing and determination of this application this honorable court be pleased to issue the temporary injunction against the implementation of 1st Respondent’s notice dated 30th January 2024, to the 2nd Respondent calling for a special general meeting and elections of a management committee and supervisory committee on 15th February, 2024. c.That pending hearing and determination of this application this Honourable court be pleased to issue temporary injunction against 3rd-8th respondents or their agents and assigns and/or any other person from accessing and operating the bank accounts of the 2nd Respondent until further orders of this court.d.That this Honourable court be pleased to direct the OCPD and/or the OCS Manga police station and/or Nyamira police station to implement and keep the peace during the implementation of the orders herein.e.That pending hearing and determination of this application and the main claim herein this Honourable court be pleased to order the 1st Respondent to convene a special general meeting of the 2nd Respondent to conduct an election of an interim committee to hold office for a period not exceeding of seventy (70) days.f.That pending hearing and determination of this application and the main claim herein, this Honourable court be pleased to order the current interim and outgoing committee to present its report at the special general meeting convened by 1st Respondent pursuant to order 3 above, for consideration by members of the 2nd Respondent.g.That pending hearing and determination of this application and the main claim herein this Honourable court be pleased to order that the 2nd respondent’s pending amendments of its by-laws be adopted and ratified at the special general meeting convened by 1st Respondent pursuant to order 3 above , and presented to the 1st Respondent for registration before the election of a management committee and supervisory committee is held.h.That pending hearing and determination of this application and the main claim this Honourable court be pleased to order that a date for a general meeting for the election of management committee and supervisory committee be fixed at the special general meeting convened by 1st Respondent pursuant to order 3 above , and the amendments be presented to the 1st Respondent registration.i.That pending hearing and determination of the main claim this honorable court be pleased to issue temporary injunction against 3rd- 8th Respondents or their agents and assigns or any other person from accessing and operating the bank accounts of the 2nd Respondent until further orders of this court.j.That the costs of this application be provided for.

17. The Application is premised on the grounds on its face which are inter alia that: pursuant to a Special General Meeting of the society held on 23rd August 2023, the entire sitting management committee were removed from office and an interim committee that included 3rd to 7th Respondents were elected to run the affairs of the society. The responsibilities of the interim committee were, among other, to come up with an interim report on the affairs of the society and table the same for adoption at a general meeting. The claimants claim that the interim committee conducted inquiries and made their findings which they reduced into a report but instead of tabling the report before the members, they only submitted it to the 1st Respondent leaving the members in the darkness.

18. No submission was filed in respect of the application.

Analysis 19. The question that this tribunal ought to answer is whether the Applicant is entitled to the orders sought. The prayers sought, prayers 1-9, relate to an impending election of a substantive management and supervisory committee and a current interim committee. In the determination of the Preliminary objection above, this court established that an election of a substantive management committee happened on 26th March 2024. Therefore, in light of the election, the prayers sought in the Notice of Motion Application dated 13th February 2024 have lapsed.

20. In the upshot of the foregoing, we make the following orders;a.The preliminary Objection date 31st May 2024 fails.b.Notice of Motion application dated 13th February 2024 has been overtaken by events and is hereby dismissed.c.The costs of the application be in the cause.No appearance by parties.1. We note the notice of withdrawal dated 29. 3.2024 and letter from the respondent Gesongo farmers cooperative society letter dated 10. 3.2025 filed on 27. 3.2025 where Respondent have no objection to the withdrawal of the suit.2. Matter marked as withdrawn with no orders as to costs.3. Ruling herein shall not be delivered.4. File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia - Chairperson Signed 27. 3.2025Hon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025Hon. Beatrice Sawe - Member Signed 27. 3.2025Hon. Fridah Lotuiya - Member Signed 27. 3.2025Hon. Philip Gichuki - Member Signed 27. 3.2025Hon. Michael Chesikaw - Member Signed 27. 3.2025Tribunal Clerk JonahHon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025