Boro v Tower Sacco Society Ltd (Tribunal Case E20 of 2026) [2026] KECOPT 329 (KLR) (20 August 2026) (Ruling)

Boro v Tower Sacco Society Ltd (Tribunal Case E20 of 2026) [2026] KECOPT 329 (KLR) (20 August 2026) (Ruling) Neutral citation: [2026] KECOPT 329 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E20 of 2026 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members August 20, 2026 Between Naomi Njeri Boro Claimant and Tower Sacco Society Limited Respondent Ruling 1.This ruling dispenses with the notice of preliminary objection dated 20th April 2026. In the notice of Preliminary objection, the Respondents raise an issue with the jurisdiction of this Tribunal on the following grounds:a.That the suit offends Rule 37 (5) of the of The Banking (Credit Reference Bureau) Regulations, 2020b.That the Tribunal lacks jurisdiction to entertain matters on defamation and awarding damages on the same as per Sections 76 (1) and (2) of the Cooperative Societies Act.The Preliminary Objection was canvased by way of written submissions and both parties filed their submissions. 2.The Respondent submits that the Preliminary Objection was raised at the earliest practicable opportunity because the Claimant’s pleadings were vague and failed to disclose the true legal nature of the claim until evidence was presented at the hearing, thereby satisfying the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696. It is further submitted that the Claimant failed to exhaust the alternative dispute resolution mechanism under Rule 37(5) of the Banking (Credit Reference Bureau) Regulations, 2020, which required the Claimant to first notify the CRB of the alleged inaccurate listing before approaching the Tribunal; consequently, the claim was prematurely filed contrary to the doctrine of exhaustion, as affirmed in Njoroge v Kenya Power & Lighting Company [2023] KEHC 1924 (KLR). Finally, the Respondent contends that the Tribunal lacks jurisdiction to determine the Claimant’s prayer for damages arising from alleged wrongful CRB listing, as such a claim essentially involves proof of defamation, malice and reputational damage, matters falling outside the Tribunal’s jurisdiction under Section 76 of the Cooperative Societies Act; accordingly, the Claim ought to be struck out with costs. 3.The Claimant opposes the Respondent’s Preliminary Objection, arguing that it was raised 14 days after the hearing had concluded, contrary to the requirement that a Preliminary Objection be raised at the earliest opportunity as stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. The Claimant contends that the objection does not raise pure points of law but instead depends on contested factual matters, including alleged loan default, statutory notices, repayments and exhaustion of alternative remedies. She further maintains that she pursued the available CRB and SASRA remedies without effective resolution and that the Respondent’s alleged three-day notice, instead of the statutory 30-day notice, constituted procedural illegality. The Claimant asserts that the dispute concerns the loan relationship, the legality of the CRB listing and breach of statutory duties, all falling within the Tribunal’s jurisdiction, and that any reputational harm is merely incidental. She, therefore, submits that the Preliminary Objection is an afterthought, fact-dependent and an abuse of process, and prays that it be dismissed with costs, the Tribunal’s jurisdiction be affirmed, and the matter proceed to determination on its merits. Analysis 4.This Tribunal has considered the Application and the Submissions of the parties. The question that this Tribunal has to answer is whether the Preliminary Objection is merited and whether this court has no jurisdiction to handle that matter. 5.The purpose and character of a preliminary objection was well discussed by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696. The court laid down the principles as to what constitutes a preliminary objection. A preliminary objection to be valid must be on a point of law and must be founded on facts that are not in dispute. If evidence would require to be adduced to establish the facts, then a preliminary objection would not be sustainable. 6.In the notice of preliminary objection, the Respondents raise an objection based on jurisdiction. Jurisdiction is a legal question, conferred either by the constitution or statute. The question, therefore, is whether the same is merited. 7.It is trite law that jurisdiction flows from either a Statute or the Constitution, and no court assumes jurisdiction on its own. In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, the Court held that;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 8.The Jurisdiction of this Tribunal is drawn from the Cooperative Societies Act, at section 76(1) which provides as follows;If any dispute concerning the business of the Cooperative society arises:a.Among members, past members and persons claiming through members, past members and deceased orb.Between members, past members or deceased members and the society, its committee or any Officer of the society.c.Between the society and any other Cooperative Society. 9.Therefore, to answer this question we have to ask ourselves whether the dispute subject to this Claim falls between parties contemplated under section 76(1) above and whether these disputes concern the business of a cooperative society. It is not in dispute that the Claimant is a member of the Respondent and that the dispute regards how the Respondent dealt with a debt owed by the Claimant. We therefore, have jurisdiction under this limb. 10.As regards the doctrine of exhaustion, this Tribunal finds that it has to interrogate evidence, to answer that question. Using the applicant’s own words in the submissions, the decision to file a Preliminary Objection under this limb was arrived at after the Claimant testified. We find that since this requires us to interrogate evidence, then it does not fall under the ambit of preliminary objection as defined in the above case of Mukisa Biscuits. Even if it were a preliminary objection, the High Court in the case of Nyambori v Stanbic Bank Limited & another (Commercial Case E799 of 2021) [2023] KEHC 1353 (KLR) had this to say regarding Regulation 37(5) of the Banking (Credit Reference Bureau) Regulations 2020;-“It suffices to say that the Regulation is not couched on mandatory terms and is it misleading to argue that this provision provides for a mandatory procedure to be followed.” 11.Accordingly, we find that the Preliminary Objection dated 20th April 2026 lacks merit and is hereby dismissed with costs. RULING DATED AND DELIVERED VIRTUALLY AT NYERI THIS 20TH DAY OF AUGUST 2026.HON. J. MWATSAMA - CHAIRPERSON - SIGNED 20.8.2026HON. BEATRICE SAWE - MEMBER - SIGNED 20.8.2026HON. FRIDAH LOTUIYA - MEMBER - SIGNED 20.8.2026HON. MICHAEL CHESIKAW - MEMBER - SIGNED 20.8.2026HON. P. AOL - MEMBER - SIGNED 20.8.2026Tribunal Clerk KokiMugwe advocate for the Respondent.Njeri Boro – No appearance.