[2020] KECPT 3 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.660 OF 2017

CHARLES MWANGI KIRIGWI.............................................................1ST CLAIMANT

CENTOIL LIMITED ................................................................................2ND CLAIMANT

VERSUS

UNAITAS SACCO SOCIETY LIMITED...........................................1ST RESPONDENT

ELIUD CHAI WAMBU T/A CHADOR AUCTIONEERS..............2ND RESPONDENT

RULING

What is before us for consideration and determination is the 2nd Respondent’s Application dated 6. 9.2018. It seeks, for Orders Inter alia.

1. That this Tribunal be pleased to strike out the suit against the 2nd Defendant; and

2. That the costs of this Application be provided for.

The Application is supported by the grounds on its face and the Affidavit of the 2nd Respondent sworn on 6. 8.2018. the Claimant has opposed the Application by filing Grounds of Opposition dated 18. 9.20198. Vide the directions given on 13. 1.2020, the Application was canvassed by way of written submissions. The 2nd Respondent filed his on 03. 3.2020 while the Claimant did so on 21. 7.2020.

2nd Respondent Contention

Vide the Instant Application the 2nd Respondent contend that this Tribunal does not have jurisdiction to entertain the instant claim as against him on the ground that he is not a member of the 1st Respondent within the meaning of Section 76 of the Co-operative Societies Act (Cap 490) Laws of Kenya. That he is thus enjoined wrongly in the claim.

Claimant’s Case

Vide the Statement of Grounds of Opposition filed on 20. 9.2018, the Claimant contend that, Section 76 of the Co-operative Societies Act does not exclude him being enjoined in the claim.

Written Submissions

Vide his written submissions filed on 3. 3.2020, the 2nd Respondent reiterated the contention made above and went ahead to cite the decision of the court in the case of Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Limited & 2 others [2012]eKLR. He further went ahead to cite verbatim, the provision of Section 76 of the Act. He further cited the case of Republic –vs- Chief Magistrates court ex-parte Edward Kibet Kimetto[2013]eKLR.

Claimant’s Submissions

Vide his submissions filed 21. 7.2020, the Claimant submits that the duties discharged by the 2nd Respondent and which precipitated the institution of this claim fails within the Rubric of the business of the Tribunal as envisaged by Section 76 of the Act. He cited the case of Bingwa Sacco Society Limited –vs- Quick line Auctioneers & Another [2017]eKLR where the court held:

“....business of the society is not confined to the internal management of the society but covers clearly every activity of the society within the ambits of by-laws and rules”. He further cited the case of Gitanga Coffee Growers – vs- Gitau[1970] EA 361.

Issues for determination

We have framed the following issues for determination:

a. Whether the Respondent has laid a proper basis to be discharged from these proceedings;

b. Who should meet the costs of the Application?

Jurisdiction

The Graveman in the instant Preliminary Objection is whether the Tribunal has jurisdiction to entertain the claim as against the 2nd Respondent. The 2nd Respondent contends that he is an auctioneer and not a member of the 1st Respondent hence not bound by the provisions of Section 76 of the Co-operative Societies Act.

On the other hand, the Claimant contends that the role played by the 2nd Respondent in recovering the loans owed to by him to the 1st Respondent constituted the business of the Tribunal within the meaning of Section 76 of the Act.

To unravel this issue, we will refer to the decision of the court in the case of Bingwa Sacco Society Limited -vs- Quickline Auctioneers & Another [2017]eKLR. At paragraph 12 thereof, the court held thus:

“ The learned trial Magistrate was saying that the claim was against the Auctioneer who had attached the property of the 2nd Respondent. The 2nd Respondent has sued the Auctioneer and the Appellant. The dispute was a loan which was advanced to the 2nd Respondent by the Appellant which he failed to repay. The Auctioneer was an Agent of the Appellant to attach the 2nd Respondent’s properties to recover the loan. The activity of lending loans to a member is a business of Savings and Credit Society. Any dispute arising from the loan is a business of the Society.”

We take ...from the holding of the court above and find that from the dispute before us revolves the loan advanced to the Claimant by the 1st Respondent. Upon alleged default, the 1st Respondent instructed the 2nd Respondent to recover the same. For all intends and purposes therefore, the 2nd Respondent is the Agent of the 1st Respondent. By recovering the said loan on behalf of the 1st Respondent, the 2nd Respondent was merely discharging the business of the 1st Respondent. Now that the said business of the 1st Respondent has become the subject matter of proceedings before the Tribunal the 2nd Respondent cannot be ... to distance himself from the claim in the guise that it is not a member of the 1st Respondent.

Conclusion

From the foregoing, we find that the Tribunal has jurisdiction to entertain the claim as against the 2nd Respondent. Accordingly, we find that the 2nd Respondent’s Application is unmerited and hereby dismiss it with costs to the Claimant. Orders accordingly.

Ruling signed, dated and delivered virtually this 3rdday of November, 2020.

Hon. B. Kimemia Chairperson ...........................

Hon. F. Terer Deputy Chairman ............................

Mr. P. Gichuki Member ..............................