Ochola v Njaramba [2025] KECPT 308 (KLR)

Ochola v Njaramba (Tribunal Case E479 of 2025) [2025] KECPT 308 (KLR) (Civ) (29 May 2025) (Ruling)

Neutral citation: [2025] KECPT 308 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E479 of 2025

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

May 29, 2025

Between

Jane Ngeso Ochola

Claimant

and

Beth Njaramba

Respondent

Ruling

1. Matter for determination is the Notice of Motion Application dated 22/5/2025The Application is brought under Section 76 and 79 Cooperative Societies Act Rule 11 Cooperative Tribunal (Practice and Procedure) Rules.a.Spentb.That pending the hearing and determination of this application, this Honourable Tribunal be pleased to issue a temporary injunction restraining the 1st and 2nd Respondents, whether by themselves, their agents or representatives , from participating in contesting for, or otherwise presenting themselves as candidates in the forthcoming delegate elections of the 3rd Respondent scheduled for the 31st day of May, 2025. c.That pending the hearing and determination of the claim herein, this Honourable Tribunal be pleased to issue a temporary injunction restraining the 1st and 2nd Respondents , whether by themselves, their agents or representatives , from participating in contesting for, or otherwise presenting themselves as candidates in the forthcoming delegate elections of the 3rd Respondent scheduled for the 31st day of May, 2025. d.That the costs of this application be provided for.

2. The Application is supported by the Affidavit of Jane Ngeso Ochole sworn on 22/5/2025 and states she is a member of Afya Sacco society ltd and she is aware the 1st and 2nd Respondent were vetted and subsequently cleared to participate as candidates in the upcoming elections to the Board of Directors of the Sacco which is scheduled for 31/5/2025.

3. She avers the 1st and 2nd Respondent are not eligible to be elected as members of the board of directors pursuant to Section 39(b) of the 1st Respondent By-laws which provision expressly disqualifies individuals who have not served as a delegate for a term of 3years.

4. She states1st Respondent herein Ms. Beth Njaramba has only served one as opposed to the minimum requirement of 3 years same fees for 2nd Respondent Fredrick Olela making them ineligible for participation in the elections. Their participation will constitute direct contravention of Saccos internal governance.They attached notice of the annual delegates meeting held and 3rd Respondent By-laws as their documents to support their claim.

5. The 1st ,2nd and 3rd Respondent to the ApplicationThe 1st and 2nd Respondent filed Replying Affidavit with 1st Respondent filing Replying Affidavit sworn on 27/5/2025 who responded and stated she is member No. 71425 of Afya cooperative savings and credit society. She stated in paragraph 6 of her Affidavit she has been a delegate member of 3rd Respondent for the years 2008 to 2021 and 2024 to 2025 and attached certificates awarded as highest server as a delegate.

6. 1st Respondent avers she qualifies to run for a position as Board member having met the threshold of Sec 3(B) of the Sacco By-laws.In para 9 of her Replying Affidavit she states the By-laws do not specify whether the 3 years are uninterrupted or otherwiseShe states she is eligible to run for the position as member of the Board of Directors and the Application ought to be dismissed with costs.

7. The 2nd Respondent filed a Replying Affidavit as well sworn on 27/5/2025 where he confirmed he is member No.54417 of the 3rd Respondent Afya Sacco society ltd. He was 1st elected delegate in March 2010 and posted in charge of JKIA Branch.One term as per the By- laws consists of 3 years of service.He avers to have held the position for 3 consecutive terms until March 2021 when he vied again in the year 2021. He provided proof of being a long serving branch committee member certification.FO1 as part of his evidenceHe prayed for the Application to be dismissed.

8. The 3rd Respondent their response was done by Florence Gatheru who is the Chief Executive Officer sworn on 27/5/2025 who confirmed 1st and 2nd Respondent were vetted and cleared to participate as consideration in the Board of Directors’ election slated for May 31st 2025She avers the vetting and nomination process of the 1st and 2nd Respondent was done lawfully and carried out in accordance to Sec 36(b) By-laws of the SaccoThe 3rd Respondent avers the 1st Respondent has served as a delegate for more than 5 terms and 2nd Respondent served for more than 4 terms as a delegate as well and application are mainly false accusations and misleading the Tribunal.

9. 3rd Respondent further avers the Applicant ought to have followed the appeal or dispute resolution mechanisms placed in the 3rd Respondent in accordance to section 36(c) as read with Section 37(f) Sacco by- laws.3rd Respondent further avers 1st and 2nd Respondent have been delegates for many years as per their annexed documents marked FG-3 which contains minutes evidencing the 1st and 2nd respondent have served as delegates on years in various branches.

10. The 3rd Respondent avers the Application does not demonstrate to the Tribunal what damage/loss they stand to suffer if orders are not granted and indeed it is the 1st and 2nd respondent who stand to suffer irreparable damage/loss if unlawful contended not to vieThe 3rd respondent also filed a Preliminary Objection dated 27/5/2025 where the society in the Preliminary Objection raised issue of:a.That this Honourable Tribunal Lacks jurisdiction to hear and determine this suit at this stage as the suit has been filed prematurely. The Claimants /Applicant have not exhausted all available remedies/avenues before filing this suit pursuant to Section 37 (f) of the 3rd Respondent’s Sacco by-laws. That this Honourable Tribunal has no jurisdiction to entertain this matter as the first port of call should have been at the vetting and nomination committee in accordance with the saccos election and vetting policy.b.That this suit is therefore an abuse of the court process, frivolous and vexatious and ought to be struck out with costs without the necessity of the matter proceeding for hearing.

11. The Applicants filed a Further Affidavit by 1st Applicant Jane Ngeso Ochola paragraph 4 states or confirms the 1st and 2nd respondent lost re-election in 2025 and were only reelected in year 2024 and is their 2nd year.Applicants do not dispute the 1st and 2nd respondent elections in 2011The Applicants avers the 1st and 2nd Respondent have not served as delegates for the mandatory period of 3 years preceding their clearance to contest as board members as required by the by laws.

12. The matter came for inter parties hearing on 28/3/2025 where the parties canvass the Preliminary Objection dated 27/5/2025 first with the 3rd Respondent submitting Tribunal lacks jurisdiction by virtue of the fact that the doctrine of exhaustion and pursuant to Section 37(f) of the 3rd Respondents Sacco by laws the Applicants ought to have gone through the internal dispute resolution mechanism first before coming to court.

13. The Applicants stated the Preliminary Objection dated 27/5/2025 fails at the very first instant for relying on evidence/documents for it to be substantiatedApplicants stated a Preliminary objection ought to stand on its own as it is anchored on law.A Preliminary Objection raises issues of law and the moment it deviously to evidentiary evidence as alluded by the 3rd Respondent it ceases to be a Preliminary Objection.

14. Issue to be determined:

Issue one Whether the Preliminary Objection dated 27. 5.2025 has merit? 15. A Preliminary Objection is a formal objection revised by a party to a suit challenging the legal basis of the case and is a must be on a pure point of law and not on disputed facts.

16. In the case of Mukisa biscuit manufacturing v west end distributors’ 1969 EA 696The court observed“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit..”Hassan Nyaye Charo v Khatib Mwashetani and 3 others [2014 ]EKLR the court held that“Thus a Preliminary Objection may only be raised as a pure question of law….”

17. The dispute resolution mechanism being referred to by the 3rd respondent in their Preliminary Objection is Section 37(f) 3rd Respondent by-laws as submitted by Applicants the said sec is in regard to the electionsWe have looked into the said section 37 which looked into the said Section 37 which looks into the heading is election of delegates:37(f) goes into the election of delegates while the case at hand is one for Board Member’s election the section used is wrong.

18. Be that as it may looking into the nature of the case and orders being south we consider the practicality of the doctrine in the present case.There is an election that is bound to take place on 31st May 2025Referring the parties back to any internal dispute resolution mechanism this stage would be an exercise in futility.We ask ourselves is there an exception to the doctrine of exhaustion?Our answer is in the position where the rights of an individual are enshrined in the constitution and the circumstances as in the present case referring parties back to 3rd respondent may as well be driving the final nail to the coffin.

19. We are therefore not convinced that Section 37(f) 3rd Respondent Sacco by laws provides for internal dispute mechanism as the same reads.“Election disputes should be channeled to the vetting and Nomination committee within 24 hours after announcement of results in writing failure to which such disputes will lapse…”It is clear the above power backs of elections have been held.As such the Preliminary Objection dated 27/5/2025 fails.

20. Now to the Application dated 22/5/2025 we have looked into the nom and prayers being sought as well as avail submissions by the parties.The issue for determination is oneWhether Section 39 of 3rd Respondent by laws has been breached? Section 39 provides for eligibility for membership to the board of directors“No person shall be eligible as a member of the Board of Directors if he/sheIs not a member of the societyHas not served as a delegate for a term of 3 years”Paragraph b is the bone of contention herein

Whether the term of 3 years is/should be continuous preceding the elections of the board members or as long as the member has been a delegate. 21. What is not in dispute that the Applicants have also conceded is that the 1stand 2nd respondent have served as delegates beforeThere was an interruption of their considering when elections were held in 2021 however they managed to cling the Delegate seat in 2024Section 39(b) reads:“It only provides that the member must be a delegate for a term of 3 yearsThe question then is when does the 3 year period relate to? Does the 3 year period relate to current term?

Does the 3 year period relate to previous terms held by a member?

Does the 3 year period have to be continuous?

22. The by -law is silent and as such the tribunal shall interpret it as it deems fit.We choose to go by the context in which the By-laws were meaning of having served as a delegate for a 3 year periodOur interpretation is that a member who has served as a delegate for a 3 year period would be eligibleIt should not matter which period a member served as long as they have had a 3 year stint as a delegationThe spirit letter of the By-laws sec 39 (b) was or can be interrupted that the members must have served as a delegate.That is what ought to be looked out and not whether the 3 years are preceding or ongoing.In the case of Gaticau Peter Munya v Dickson Mwenda Kithinji and 2 others Supreme Court Petition No.26 of 2014[2014]The Supreme Court pronounced that a purposive interpretation should be given to constitutional provisions and statutes so as to reveal the intention of the statute.The court observed that in Pepper v Hart [1992]KLR Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguous in meaning. In this regard where the literal words used in a statute create the court is not to be held captive to such phraseology.Where the court is not surer of what the legislation meant, it is free to look beyond the words themselves and consider the historical context underpinning the legislation.The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seems to give effect to the true purpose of legislation and are prepared to look as much extraneous material that bears upon the background against which the legislation was enacted.

23. In the case of Reserve Bank of India v Peerless General Finance and Investment Company Limited and others [1987]ISCC474 on interpretation of legislation the court discussed the text and context thus:“Interpretation must depend on the text and the context.They are the basis of interpretation. Our making will see if the text is the texture, context is what giving the color. Neither can be ignored. Both are important.That interpretation is best which making the textual interpretation meaningful the contextual."

24. In the present case the words are clear but silent at the same time.We are thus guided by the case ofSwedish Match Ab & Another v Securities and Exchange Board India & Another the Supreme Court of Indiaheld that where the words of statute are absolutely clear and unambiguous recourse cannot be resorted to the principles of interpretation other than the literal rule.Guided by the aforementioned authorities or interpretation we are /reiterate over position above and agree with the respondent the 3 year period does not have to current. Any period served as delegate for 3 years would suffice.

25. Upshots1. We thus find that the Application dated 22 /5/2025 is not merited and is dismissed with costs to the respondents2. The orders being sought in the claim being similar the ruling shall serve as a judgment effectively.3. File ordered as closed.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 5.2025Hon. J. Mwatsama Deputy Chairperson Signed 29. 5.2025Hon. Beatrice Sawe Member Signed 29. 5.2025Hon. Fridah Lotuiya Member Signed 29. 5.2025Hon. Philip Gichuki Member Signed 29. 5.2025Hon. P. Aol Member Signed 29. 5.2025Tribunal Clerk MutaiBulowa advocate for the ClaimantsNjuguna advocate for the 1st and 2nd RespondentMutemi advocate holding brief for Thimba for the 3rd RespondentHon. J. Mwatsama Deputy Chairperson Signed 29. 5.2025