[2024] KECPT 898 (KLR)

Agumba v Ushuru Sacco Society Limited & 2 others (Tribunal Case 127/E180 of 2023) [2024] KECPT 898 (KLR) (27 June 2024) (Ruling)

Neutral citation: [2024] KECPT 898 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 127/E180 of 2023

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

June 27, 2024

Between

Lameck Agumba

Claimant

and

Ushuru Sacco Society Limited

1st Respondent

Samuel Wachiuri

2nd Respondent

Sub County Coop. Officer Dagoretti

3rd 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. The matter before the Tribunal for determination is the Claimant/Applicant’s Notice of Motion Application dated 10th November, 2023; wherein the Applicant seeks the following orders:a.That the Honorable Tribunal be pleased and hereby grants leave to the Applicant to Amend Statement of Claim dated 2nd March, 2023. b.That the said plaint to be filed within 7 days of leave granted.c.Costs of this Application be in the cause.The Application is supported by the Affidavit of Lameck Agumba, the Claimant, sworn on the 10th day of November 2023.

2. The grounds of the Application as on the face thereof and as per the Supporting Affidavit are that the Statement of Claim was filed together with an urgent Application for orders to stop the elections of the 1st Respondent’s Board of Directors in its Annual Delegates Meeting of the 11th March 2023; that the 2nd Respondent be barred from participating in the said elections as a delegate and candidate on the basis that he was not qualified; that the Tribunal did not issue the orders sought and the Annual Delegates Meeting was held on the 11th March, 2023 with the participation of the 2nd Respondent who got elected as a Director of the 1st Respondent; that it is therefore necessary to amend the Statement of Claim, taking into account the change in facts; that it is important that the amendment is allowed so that the court can adjudicate the real issues in controversy that no prejudice will be occasioned to the Respondent. The Applicant has annexed to the Application and marked as exhibit “LA1”, the Draft Amended Statement of Claim. The Respondents opposed the Claimant’s Application vide a Replying Affidavit sworn by Isaac Kiprop sworn on 6th December, 2023.

3. The deponent states that he is the National Chairman of the 1st Respondent; that the Claimant’s Application is fatally incompetent, super flows, unnecessary and a waste of judicial time for the reasons that there is no discernible change in facts or circumstances warranting the grant of leave to amend the Statement of Claim; that the Application is an afterthought made belatedly that the Draft Amended Statement of Claim is malafide and tainted with profiling, targeting and gross suppression of material facts and cannot aide the Honourable Tribunal in determining the real issues in dispute. The deponent further states that the annexed Amended Statement of Claim is based. On the same matrix as the Original Statement that the 2nd Respondent was ineligible for election in the 1st Respondent’s Board of Directors elections held on 11th March, 2023; that amendments should be timeously applied and made in good faith; that the Tribunal lacks jurisdiction as the Annual Delegates Meeting held on 11th March 2023 was the appropriate forum to raise the grievances relating to electoral issues; that the 1st Respondent is poised to suffer grave prejudice if this Application is allowed as the same would be tantamount to giving a new lease of life to the Claimant’s claim jeopardizing the 1st Respondent’s management and repudiating the actions and decisions of the 1st Respondent’s delegates for the past 4 years.

Determination 4. We have considered the aforesaid documents filed by the parties including the written submissions of the Applicant dated 15th January 2024. The main reason for the suit herein according to the Claimant, is that the 2nd Respondent, not being an elected delegate of the 1st Respondent, is not qualified to participate in the Annual Delegates Meeting and/or get elected to the 1st Respondent’s Board of Directors. This is an issue to be canvassed and determined on merit.Save for the fact that the elections have already taken place and the 1st Respondent has been elected nothing else has changed and the main issue aforesaid has not changed.

5. We have perused and considered the Draft Amended Statement of Claim and find that the proposed amendments are in line with the new developments and that they are justified.As to whether the Application is frivolous, and ought to be dismissed for being filed late, we are guided by the provisions of the law that an Application for amendment can be allowed despite delay on such conditions as the court pray deem fit; that the Application is justified and indeed the amendment shall enable this Tribunal to have the correct issues and prayers before it for determination on merit.The issue of this Tribunal’s jurisdiction is not an issue for determination in this Application and we agree with the Applicant that the Respondents may raise the name appropriately at the right time; as per their Statement of Defence.

6. In the upshot, we find that the Claimant’s Notice of Motion Application dated 10th November, 2023 is merited and we allow the same with costs in the cause.We order further that the Draft Amended Statement of Claim be filed and served upon the Respondents’ advocates within seven (7) days from the date of this ruling and that the Respondents shall be at liberty to file and serve upon the Claimant’s advocate an Amended Statement of Defence within seven (7) days of service of the Amended Statement of Claim.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE, 2024. Hon. B. Kimemia Chairperson Signed 27. 6.2024Hon. J. Mwatsama Deputy Chairperson Signed 27. 6.2024Hon. Beatrice Sawe Member Signed 27. 6.2024Hon. Fridah Lotuiya Member Signed 27. 6.2024Hon. Philip Gichuki Member Signed 27. 6.2024Hon. Michael Chesikaw Member Signed 27. 6.2024Hon. Paul Aol Member Signed 27. 6.2024Tribunal Clerk JonahMwangi advocate holding brief for Mr. Karanja for the Respondent.Mr. Kiarie Mungai advocate for Claimant- No appearanceMwangi advocate- we were to record a consent in the matter.Tribunal ordersRuling held in abeyance to pave way for a consent to be filed.Mention 4. 7.2024. notice to issue.Hon. J. Mwatsama Deputy Chairperson Signed 27. 6.2024