Nzyuko & 9 others v Katheka-Kai Farmers Co-operative Society [2025] KECPT 175 (KLR)

Nzyuko & 9 others v Katheka-Kai Farmers Co-operative Society (Tribunal Case 553/E731 of 2023) [2025] KECPT 175 (KLR) (Civ) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 175 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 553/E731 of 2023

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

February 27, 2025

Between

Alphonce Meundo Nzyuko & 9 others

Claimant

and

Katheka-Kai Farmers Co-operative Society

Respondent

Ruling

1. Filed with the members Statement of Claim was a Notice of Motion Application dated 22/9/2023 which was filed under a Certificate of Urgency seeking for a temporary injunction against the Respondents who had removed the caveat lodged by the Claimants on the parcels of land and the Respondents are in the process of sub-dividing the said parcels without approval of the Claimants and the other members.

2. The Notice of Motion was anchored on the provisions of Section 1A,1B,3A and 63(e),orders 51 Rules of the Civil Procedure Rules. In accompaniment, the Claimants filed Supporting Affidavit and a witness statement both sworn by Alphonce Muendo Nzyuko, a List of Documents and other evidence.

3. On the Tribunals record in an Affidavit of Service dated 24/10/2023 which shows that the Notice of Motion and the Tribunals order dated 28th September, 2023 were served upon the Respondents on different dates.

4. The 1st Respondent filed a Notice of Preliminary Objection dated 26th/10/2023 stating that the Tribunal lacks jurisdiction to entertain the suit on the ground that the subject matter being a land matter is reserved for determination by the environment and land court.

5. The Tribunal directed the claimants to file their response on the preliminary objection within 14 days and further directed that the Preliminary Objection be canvassed by way of written submission thereby granted 21 days to the parties to file their written submission.

6. Before determination of the Preliminary Objection, the Claimants filed a Notice to Withdraw the suit against the 2nd and the 3rd Respondents.On this; the tribunal ordered as follows“Notice of withdrawal of suit against 2nd &3rd Respondent dated 19/1/2024 filed on 22/1/2024 noted and hereby marked as withdrawn against 2nd&3rd Respondents with no order as to costs’’However, the 1st and the 4th Respondents were ordered to comply by filing their written submissions and document within 14 days.

7. During pre-trial directions held on 21/2/2024 the Tribunal suspended the Applications dated 22/9/2023 filed on 27/11/2023 to pave way for the hearing of the main claim. In the same breath, the Tribunal directed that the Preliminary Objection will be determined within the main claim.

8. Before the main suit was set for hearing ,a committee member of the 1st Respondent Mr. Patrick Mutunga filed a Notice of Motion dated 7/3/2024 and prayed to enjoined in the suit as an Interested Party on the following grounds;1. That he seeks to provide vital information to assist the Tribunal to make fair determination of the matter on hand.2. That the information that he seeks to produce before the Tribunal is not in public knowledge and that the 1st &4th Respondent may not include some facts which will be determined to the Applicant.3. That the applicant and other members of the 1st respondent will suffer irreparable loss and damage if the application is not allowed.4. that the actions of the 4th respondent have proven to be detrimental to the applicant and other members of the society.

9. Having read through the parties statements and the grounds raised in the Notice of Motion application, we have one issue for determination;

(I) Whether the application is merited. 10. To help us answer this question, we draw guidance from order/rule, which states that:“All persons may be joined as plaintiff in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, severally or in the alternative where if each persons brought separate suits any common question of law or fact would arise”.The Application before the Tribunal is that of seeking to be enjoined in the suit as an Interested Party.According to Black Law dictionary, 11th edition, an interested party is defined as “a party who has a recognizable stake in the matter’’.The Kenya Supreme Court defined an Interested party in the case of Communication Commissions of Kenya & four others, versus Royal Media Services Limited & seven others as;“An interested party is one has a stake in the proceedings, though he or she was not party to the cause abinitio, he or she is one who will be affected by the decision of the court when made either way, such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings and champions his or her Case”.

11. The Applicant in this case Seeks to be joined as an interested party because he has information which is not in public knowledge and which when presented, it will assist the Tribunal to make adjust determination.The Applicant is apprehensive that most of the members of the 1st Respondent including the various committees are old and illiterate and there is a possibility that the chairman (4th Respondent) may have taken advantage of their inability to comprehend certain actions of their chairman.

12. To demonstrate that the 4th Respondent and his witnesses may not devulge certain information which will safe the members of the society, the Applicant under paragraph 16 of this Supporting Affidavit noted that.“Most of the members of the Management Committee are excluded when decisions are made by the 4th Respondents, except the Treasurer and the Secretary’’.This averment if proven to be factual makes this application of the Interested Party to Have substance.

13. In Francis Karioki Muruatetu and another versus Republic and 5 others (2016) the court set on the principles where a party seeking to be enjoined in proceeding must meet include:I.The personal interest all stake that the party has in the matter and should be set out in the application.II.That the interests must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.III.The prejudice to be suffered by the Intended Interested Party in the case of non-joinderApplying these principles to the instant application, we note that have discussed the first part of the principle and come to the conclusion that the Applicant is having in his custody some relevant information or documents which no other member has except himself.Further, the Applicant is ready and willing to give or produce before the Tribunal in order to assist in making a Just determination.

14. On the principle of prejudice to be suffered, the Applicant has demonstrated that there is an imminent loss that might be occasioned to him together with the other members of the society if his application an Interested Party is disallowed his interest and other members interests that may be tampered with include members interest in their societies land ownership and other societies business.On this principle, we find that the Applicant has reason to be apprehensive and will suffer losses if cannot be enjoined as an Interested Party in the case.On the principle that interest must be identifiable and proximate enough, a look at the averments under paragraph 6 of the Applicant’s Supporting Affidavit, If it is true that the 4th Respondent, lifted the caveats without approval of the members in order to sell the parcels of land, then the interest is identifiable and proximate enough to be stopped.

15. Finally, having noted that the Notice of Motion dated 7th March 2024 meets all the principled threshold as inunciated by the Supreme Court in the Muruatetu Case, and exercising our discretion as a tribunal, we make the following orders.a.That the application by the intended interested party, Mr. Patrick Mutunga has merit and is hereby allowed with costs in the cause.b.The intended party to file and serve their response/pleadings witness statement and documents within 14 days herein.c.The Claimant and Respondent to file their pleadings/Replies within 14 days of service together with documents and witness statement.d.Pre-trial directions on 6. 5.2025. Notice to issue to Claimant.

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. 2.2025Tribunal Clerk J.MutaiNzuli advocate for Applicant/Interested PartyMs. Muiruri advocate holding brief for Nyandeka for 1st Respondent