Mulwa v Mbithi & another [2023] KECPT 1105 (KLR)

Mulwa v Mbithi & another (Tribunal Case 34 of 2013) [2023] KECPT 1105 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KECPT 1105 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 34 of 2013

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

December 14, 2023

Between

Joseph Ndunda Mulwa

Claimant

and

Rose Katheu Mbithi

1st Respondent

katelembo Athian Mavuti Farming & Ranching Cooperative Limited

2nd Respondent

Ruling

1. The claimant’s notice of motion application dated August 16, 2023, filed on August 25, 2023 is before us for determination.The Application is brought under section 28(3)(b), 28(b), 83,94(1) and 94(2) of the Co-operative Societies Act.

2. In the application, the claimant prays for orders:-1. That, the executive officials of the 1st respondent be cited for contempt.2. That, the executive officials of the 1st respondents be fined fifty thousand shillings each.3. That the executive officials of the 1st respondent be imprisoned for two years.4. That costs herein be borne by the 1st respondent.The application is premised on the grounds on the face of the application and supported by the affidavit sworn by the claimant on August 15, 2023 and filed on 25th August, 2023. The claimant’s application is not opposed by either of the respondent’s despite service. While the claimant has sought orders against the 1st respondent’s officials, we believe that it is out of error and the orders are sought against the executive officials of the 2nd respondent.

Claimant’s Case. 3. The claimant seeks the stated orders against the executive officials of the 2nd respondent on the grounds that they have failed to comply with the lawful orders of the tribunal issued on May 6, 2016, the order that the respondent specifically do issue the claimant with title deed to plot No. 991 located at Central Katalembu area.It is the claimant’s case that the Committee Members have failed in their duty to act prudently and diligently like ordinary men of business, and that they are jointly and severally liable for any losses sustained through any of their acts which are contrary to the Co-operative Societies Act.

Determination. 4. We have considered the claimant’s application, supporting affidavit, the pleadings and proceedings herein and the relevant provisions of the Co-operative Societies Act, specifically sections 28(b) and 083 and find that:1. The Tribunal indeed ordered the 2nd respondent to issue the claimant with title deed to his plot number 991. 2.Since the 5th day of April, 2016 to the filing of the application herein, the 2nd respondent did not comply with the said orders.3. There is evidence to the effect that the 2nd respondent was served with the said order on 10th May, 2016. 4.The executive officials of the 2nd respondent did not act diligently in running the affairs of the society as required of them under the Section 29(b) of the Co-operative Societies Act. They are therefore liable jointly and severally for the resultant orders and consequently the disobedience or thereof. It is trite law that orders are not issued in vain. The Executive Officials of the 2nd Respondent was required to obey and give effect to the orders of the Tribunal.

5. In the upshot, we find that the executive officials of the 2nd respondent have disobeyed the orders of the tribunal and issued on May 6, 2016 and hereby allow the claimant’s notice of motion application dated August 16, 2023 as follows:-1. The executive officials of the 2nd respondent are cited for contempt of the Tribunal.2. The executive officials of the 2nd respondent are each fined the sum of Kshs. 50,000/= (Kenya Shillings fifty thousand) to the Tribunal within 21 (Twenty-one) days from the date of service of this Ruling.3. A warrant of arrest and committal of each of the executive officials of the 2nd respondent to civil jail for six (6) months in civil jail is hereby issued.4. The costs of the application to be borne by the 2nd respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 14. 12. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 14. 12. 2023HON. BEATRICE SAWE MEMBER SIGNED 14. 12. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 14. 12. 2023HON. PHILIP GICHUKI MEMBER SIGNED 14. 12. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 14. 12. 2023HON. PAUL AOL MEMBER SIGNED 14. 12. 2023Tribunal Clerk JonahMbuthia advocate for the Claimant/ApplicantGladys Gichuki advocate for 2nd Respondent – No appearanceNgolya & Associates advocate for 1st Respondent- No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 14. 12. 2023