Ngotho v GRAFCO Savings and Credit Cooperative Society [2024] KECPT 1386 (KLR)

Ngotho v GRAFCO Savings and Credit Cooperative Society (Tribunal Case 187/E251 of 2023) [2024] KECPT 1386 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1386 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 187/E251 of 2023

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

August 29, 2024

Between

Eunice Muakami Ngotho

Claimant

and

GRAFCO Savings and Credit Cooperative Society

Respondent

Ruling

Nature of Mention Application 1. The Notice of Motion Application dated 28th March, 2023 and filed on 29th March, 2023 is brought under Article 159 of the Constitution, Section 1A,1B,3A of the Civil Procedure Act, Order 40 Rule 1,2,4 (1) Order 51 Rule 1,2,3,4, 10, 11 and 12 of the Civil Procedure Rules, Rule of the Co-operative Tribunal Certificate and Procedure Rules 2009 seeking among other orders that:a.Spentb.The Honorable court be pleased the issue the orders to temporary injunction restraining the Respondent whether by themselves their servants/ agents/auctioneers or any person they may purport to appoint from cheating disposing/ selling or dealing in a manner with all Applicant’s business stock or business pending the hearing and determination of the noted suit.c.The Honorable court be pleased the issue the orders of temporary injunction restraining the Respondent whether by themselves their servants’/ agents Auctioneers or any person they may purpose to appoint from alienating disposing/ selling or dealing in any manner with all Applicant’s business stock or business pending the hearing and determination of the Applicationd.The Honorable court be to direct that the Applicant continues paying the Respondent on weekly tasks as agreed pending hearing and determination of the suit

2. The Application was on the grounds that:i.The Claimants is a member of the Respondent Sacco who had saved and qualified for she had facilityii.The Claimant applied and received a facility of Kshs. 4,000,000/= which she used to open and operate a business at the Wetlands City Council Market and began repaying as agreediii.The Applicant religious repaid the suit facility for over one year before facing setbacks in the business at which paint she negotiated with Respondent who agreed that she could make weekly payments until settlement in full.iv.The Applicant been serving the said 10am on a weekly basis paying from Kshs 1000/= which payments the Respondent has been receipting faithfully thereby reducing the balance to Kshs. 225,222. 32/= however the Respondent shyly send Icon Auctioneer’s to recover the Applicant’s business stock even without notice despite the Applicant making all efforts to repay the loan.

3. The Tribunal on 30th March, 2023 issued an order of temporary injunction restraining the Respondent by themselves/ servants/ Agents/ Auctioneer’s or any person that may purported to appoint from disposing/ selling or dealing in any manner with all Applicant’s business stock or business pending for mention for further directions. That orders were subsequently extended on 17th August, 2023 where parties were ordered to file supplementary documents.Now that supplementary documents have filed has the Applicant made a case for orders of temporary injunction

Orders for temporary injunction 4. The consideration for grant of orders of temporary injunction are well known as set clearly in the judicial decision of Giella Versus Cassman Brown(1973) EA358 which this Tribunal to consider whether the applicant has satisfied the title requirements of:i.Establishing their case of a Prima Face Levelii.Demonstrating that they will suffer an irreparable injury that claim of be compensated by costs if they are not granted the orders on temporary injunction the applicantiii.Showing that the balance of convince is in her in the event that there are debts to (ii) above

5. To begin with the first requirement to establish a prima face case the Applicant needed to convince this Tribunal of the existence of legal right which has been infringed on the other party, from evidence before court, there seems to be consented payments weekly which tends to suggest that the Applicant is “honoring” some arrangements and or agreement and as such to send auctioneers will infringe on that arrangementsSecond it is not in doubt that if the stock of the Applicant is proclaimed by auctioneers she will suffer damage as she is using those stocks to “honor” the arrangements they have with Respondent

6. In as much as its not the role of courts and tribunals to re-write contracts and Agreement between parties to mean parties will not evade forever from honoring their commitments, we give the applicant the benefit of doubt by issuing the orders of temporary injunction till the determination of the case as the Respondent has also now filed a counter- claim. Final ordersi.Application dated 29/3/23 is merited and we allow prayers number C-a.The Honorable court is pleased the issue the orders of temporary injunction restraining the Respondent whether by themselves their servants’/ agents Auctioneers or any person they may purpose to appoint from alienating disposing/ selling or dealing in any manner with all Applicant’s business stock or business pending the hearing and determination of the Application.Temporary injunction do issue restraining the Respondent their servants, agents, auctioneers. purporting to appoint from alienating/disposing/selling Applicant’s Business stock pending hearing of main suit.ii.Parties to file all documents to be used at trial 21 days from to dayiii.Mention Pre-Trial Directions on 4/2/2024.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia - Chairperson Signed 29. 8.2024Hon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe - Member Signed 29. 8.2024Hon. Fridah Lotuiya - Member Signed 29. 8.2024Hon. Philip Gichuki - Member Signed 29. 8.2024Hon. Michael Chesikaw - Member Signed 29. 8.2024Hon. Paul Aol - Member Signed 29. 8.2024Tribunal Clerk JonahMburu advocate holding for Opiyo Advocate for the Claimant/Applicant.Samuel Gatimu for Respondent – PresentI am operations supervisor of RespondentHon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024.