Thambu v Yetu DT Sacco Limited [2025] KECPT 243 (KLR)

Thambu v Yetu DT Sacco Limited (Tribunal Case E073 of 2025) [2025] KECPT 243 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 243 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E073 of 2025

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

March 27, 2025

Between

Fredrick Kinyua Thambu

Claimant

and

Yetu DT Sacco Limited

Respondent

(Coram: Hon. B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. Application for determination is Notice of Motion dated 10/3/2025 which is brought pursuant to Order Rule 210 Rule 2 Civil Procedure Rule, Section 1 A and 1 B and Section 3 Civil Procedure Act.The Application seeks for orders:1. Spent2. Spent3. That this Honourable court be pleased to order the Respondent to reinstate the Applicant as a candidate for nomination in the elections pending the hearing and determination of this application.4. That this Honourable court be pleased to issue a temporary injunction and/or stay of the elections by the Respondent slated on 18th March 2025, pending the hearing and determination of the suit.5. That this Honourable court be pleased to order the Respondent to reinstate the Applicant as a candidate for nomination in the elections pending the hearing and determination of the suit.6. That the costs of this application be provided for.

2. The Application is supported by Supporting Affidavit of Fredrick Kinyua Thambu sworn on 10/3/2025 where the Applicant avers he is a member of Respondent Sacco and vied for a position of Board member in Kinoro Zone.He tendered his application for nomination because he had meet the qualifications for the position.However, to his surprise his nomination was rejected.The reason for his rejection is because he had a case against the Respondent which suit he withdrawn with no orders as to costs.Further he states at the time of considering his nomination he had a case which was determined in Meru High Court Constitution Petition No. E003 of 2023.

3. In paragraph 10 of the Supporting Affidavit he averred another reason he was rejected is because he had a relative sitting at the Supervisory Board which state is not deference for consideration under the By Laws.The Applicant further states the Respondent alleges By Laws were ratified in April 2024 yet there were no minutes under the said state of affairs.On 26/2/2024 Respondent held elections at Kinoro Yetu sacco grounds where there was a draw between two of the candidates which included the applicant. Which still he had a relative at the supervisory Board and did not hinder him from vying.He sought for orders prayed to be granted.The Applicant relied on the following documents to support his Applicationa.Letter dated 4/2/2025b.Nomination certificatec.Letter dated 28/2/2025d.Notice of withdrawal of suit.e.Copy of Ruling dated 28/2/2025f.Copy of respondent By-Laws

4. The Respondent filed a Replying Affidavit drawn by Denis Kirimi on 12/3/2025 to respond and oppose the said Application.He 1st states that By- laws alluded to by the Applicant are non-existence because there are Amended By-Laws approved by General meeting held on 18/11/2022 Approved by the Commissioner for cooperatives on 18/9/2024. The Respondent referred the Tribunal to Clause 20 which provides for the election process clause 20:2 provides for an election policy which itemizes guidelines of election process.Respondent referred Clause 15:2 (xxiii) provides that one cannot vie for membership of the Board if he has a relative who is an employee as or serving in the Board of Supervisory Committee.Respondent prayed for the Application to be dismissed with costs.The Respondent relied on the following documents to advance their case:a.Respondent’s By- Lawsb.Electoral policy of the Respondentc.Minutes/ Interim Report of vetting committee.

5. The Applicant filed a Supplementary Affidavit sworn on 12/3/2025. He stated in the year 2024 he was issued with a nomination certificate dated 10/2/2024 yet the General meeting was held on 18/11/2022 and registered by Commissioner for Co-operatives on 16/9/2024. He challenged the Respondent’s Response by stating Page 32 of the Amended By Laws of 2023 were applaud by the same signatories who approved By -Laws of the year 2022 and ratified in the year 2024. Further he stated the Respondent are not being truthful as the Director of co-operatives Meru County wrote a letter dated 6/7/2024 to the Respondent Congratulating them for getting co-operative society By laws Amendments registered pursuant to provision of Meru County Co-operative Act 2014. No explanation has been done for the delay in implementation of 2022 By -Laws.

6. The Respondent has conveniently taken Amended By Laws for 2023 from its website in support of the allegation in paragraph 18 of Replying Affidavit.Applicant avers if there was any Amendment of the By Laws of 2022 the Respondent ought to have been taken back to members for such approval.He/ the Applicant added and relied on the following supplementary documentsa.Letter dated 6/7/2023b.Screenshot of Respondent websiteThe parties highlighted their cases orally and having considered the pleadings more so Affidavits by the parties, Documents produced the issue for determination isIssue oneWhich By -Laws are in use by the RespondentIssue TwoWhether there is discrimination against the Applicant to vie for Board Members in Kinoro zone.Issue oneWhich By -Laws are in force and to be used by the Respondent?As at the time of notice for the Annual General Meeting being issued that is for elections to be held on 18. 3.2025 we note the applicant avers to have been locked out of elections on by laws that did not exist at the time.The Respondent response was that the application was anchored on wrong premises and the then by-laws were repelled. Respondents state the correct by-laws were approved in a General Meeting held on 18. 11. 2022 which were registered on 16. 9.2024. Issue twoWhether there is discrimination against the Applicant with the by-laws?The Respondent referred the Tribunal to clause 20 which is in page 36 of the By-laws Amended in April 2024 a per the Respondent’s documentsWe note there is no clause 20. 9 as alluded by Respondent.Paragraph 15. 2 of eligibility of Board of Directors 15. 2 xii where it states “…Any litigation in a court of law or tribunal against the Sacco society and 15. 2xxiii which reads/provides“….has been a member of staff with less than 10 years exiting employment with Yetu Sacco Society Limited or its subsidiary or a relative of a siting board/supervisory committee member…”

7. The Respondent have not informed us when the Amended by-laws herein came into force or were registered by the commissioner of cooperative developmentbe that as it may even if we were to give benefit of doubt for the same which we are not convinced the specific sections at barring a party from vying because they have a case against the society this is a violation of the person/members rights and in contravention of new Constitution of Kenya 2010. The question is where is an aggrieved party supposed to go and get justice if not the Tribunal or courts.This means the society has contention one’s freedom to sell justice and as such the same is not right or proper”Article 27 of the Kenya Constitution guarantees equality and freedom from discrimination. It ensures that every person is equal before the law, with equal protection and benefit of the law, and includes the full and equal enjoyment of all rights. Equality extends to women and men, including equal treatment in political, economic, cultural, and social spheres.b.The Amended By-laws of the Respondent clause 15. 2 xxiii where a member cannot vie if they have a relative who is an employee and or serving in the Supervisory Committee.This is also in our view discriminatory. A member joints a society as an individual and should be able to enjoy all the benefits as a member of the given society.The position the Claimant is seeking for is an elective post. It has no bearing as to whether the person has a relative or not as such we find the provisions as much as they may be by-laws have contravened the Constitution of Kenya 2010 and rights of the members.

8. We therefore are not convinced that the Articles by-laws herein are proper and further there is no evidence from the respondent to confirm the Commissioner for Cooperative development endorsed the Amendment By-laws.We therefore find the amended by-laws could not be used for the elections of 2025 if at all and further there are offending provisions in the said Amended By-laws of April 2024 and the same would go to the Elections and Vetting Policy document 2024. It is important to note and advice societies that their by-laws despite being their supreme laws should be in tune with the Constitution of Kenya 2010 and should not offend the provisions of the Constitution of Kenya.UPSHOTThe Application dated 10/3/2025 is found to be with Merit and we Order as follows:1. The Respondent to allow the Applicant to vie for Board Member in Kinoro Zone at a date as shall be given by the Respondent.2. Parties to bear their own costs.3. Prayers in the Application being same to those in the Claim, the matter is marked as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia Chairperson Signed 27. 3.2025Hon. J. Mwatsama Deputy Chairperson Signed 27. 3.2025Hon. Beatrice Sawe Member Signed 27. 3.2025Hon. Fridah Lotuiya Member Signed 27. 3.2025Hon. Philip Gichuki Member Signed 27. 3.2025Hon. Michael Chesikaw Member Signed 27. 3.2025Tribunal Clerk JonahMutuma advocate for the Claimant/ApplicantMs. Maina advocate holding brief for Kimaita advocate for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 27. 3.2025