Mwania & another v Kitheka & 4 others; Kyalo & another (Respondent) (Stage Manager Afya Center) [2023] KECPT 67 (KLR)

Mwania & another v Kitheka & 4 others; Kyalo & another (Respondent) (Stage Manager Afya Center) (Tribunal Case 98 of 2021) [2023] KECPT 67 (KLR) (Civ) (23 February 2023) (Judgment)

Neutral citation: [2023] KECPT 67 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 98 of 2021

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

February 23, 2023

Between

Isaiah Ikindu Mwania

1st Claimant

Collins Muendo Musyoka

2nd Claimant

and

Joseph Kitheka & 4 others

Respondent

and

Dancun Kyalo & another

Respondent

Stage Manager Afya Center

Judgment

1. Matter for determination is vide statement of claim dated February 9, 2021. Which claimant aver the respondent have been harassing the members of the Sacco and intimidating the through issuance of notice to show cause letters.Further paragraph 8 and 9 of statement of claim.

2. The 5th respondent were to hold an special general meeting on January 16, 2021 but 1st respondent suspended some of them.The claimant thus sought for prayers;a)An order to compel the respondents to formally allow the special general meeting to take place;b)An order to prohibiting the respondents from suspending any member of the Sacco without any due process;c)An order compelling the respondents to allow the member to conduct their matatu business without any intimidation;d)Cost of this suit;e)Any other relief this honourable court may deem fit.

3. The respondent have not filed any defence to the claim.We however as we write this judgment cannot turn our eyes from the fact that there was an application dated February 9, 2021 filed on February 10, 2021 by the claimants herein.The application was determined vide a ruling delivered on May 27, 2021 and the orders issued therein were;a)An order for prohibition do issue directed at the respondents and interested party to allow the claimant’s motor vehicles to operate and carry out business in the Sacco pending special general meeting;b)We order for a special general meeting to be scheduled and held within 60 days hereof by the current officials in the office to be supervised by the commissioner Co-operatives for Development;c)Parties to file and serve witness statement and documents within 30 days herein;d)Mention for pre-trial on July 5, 2021

4. The special general meeting that was ordered by the tribunal has not been held as at the time of writing judgment.We take note of the respondent’s supplementary affidavit of Cyrus Muatha Kanyalu sworn on January 21, 2022 filed on March 29, 2022 to which in paragraph 2 he states the officials of Kinatwa Sacco issued notice for an special general meeting to be held on July 3, 2021 in compliance with the tribunal orders.However the claimant/applicants in the application dated February 9, 2021 saw it fit to file a case at CMCC E915 of 2021 in Milimani Commercial Law Courts under certificate of urgency and got orders injucting meeting slated for July 3, 2021 aforementioned from taking place.We note the Chief Magistrate Court –Milimani issued orders of temporary injunction restraining the respondent herein from holding the special general meeting yet there were express orders from the tribunal directing for parties to hold a special general meeting in a bid to progress and resolve the issues before the tribunal.

5. Now the claimant is crying wolf that the respondent’s have refused to hold a meeting yet they acted dishonestly and in a shrewd manner all along.Which we wonder other issues are left to be determined yet the claimant/applicants are acting vexatious and dishonestly.The case E915 of 2021 filed at Milimani Law Courts the claimant’s therein include the claimants in the current case at the tribunal as 5th plaintiff and 11th plaintiff respectively.

6. From the conduct of the parties herein we find prayer a- an order to compel the respondents to formally allow the special general meeting to take place- fails.Claimant’s were granted an opportunity and they did not obey the orders of the tribunal.Prayer No. b- An order to prohibiting the respondents from suspending any member of the Sacco without any due process-fails.Prayer c –An order compelling the respondents to allow the member to conduct their matatu business without any intimidation- fails.Cannot be granted as well as the actions being sought are futuristic and as such the same cannot be granted. Claimant’s case is dismissed each party to been its own costs to the respondent.We note file E296/22 had been withdrawn and this despite the files having been consolidated the same would not stand.Claim dismissed with costs.

JUDGMENT, READ AND DELIVERED ON 23RD FEBRUARY, 2023Hon. Mjeni Mwatsama D/Chairperson Signed 23. 2.2023Gitonga Kamiti Member Signed 23. 2.2023Maria Mbeneka Member Signed 23. 2.2023In the presenceNo Appearance by parties.SignedHon. Mjeni MwatsamaDeputy Chairperson26/5/2022