[2021] KECPT 581 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.751 OF 2019

DAVID MACHARIA KIBIRA....................................................1ST CLAIMANT

MARY NYAMBURA MACHARIA ...........................................2ND CLAIMANT

VERSUS

BIASHARA SACCO SOCIETY LIMITED.............................. RESPONDENT

RULING

Vide the Notice of Preliminary Objection dated 25. 2.2020, the Respondent has opposed the instant claim as well as the Claimant’s Application dated 13. 12. 2019 on grounds that the claim and the Application are Res judicata as per the Ruling in Nyeri CMCC.NO. 360 of 2019; David Macharia Kibira - vs- Biashara Sacco Society Limited & Another.

Vide the directions of 27. 7.2020, the Notice of Preliminary Objection was canvassed by way of written submissions. The Respondent filed its submissions on 10. 9.2020. While the Claimant did so on 11. 11. 2020.

Respondents Contention

Vide the submissions filed on 10. 9.2020, the Respondent contend that the instant Application and the claim is sub judice Nyeri CM.CC.NO.79/19. That as explained in the Replying Affidavit sworn by Joseph Kamau Njamuki on 27. 2.2020 the 2nd Claimant applied for and was granted by the Respondent a loan of Kshs.1,200,000/= in August 2017. That the 1st Claimant guaranteed the said loan. That the 1st Claimant’s security as a guarantor was property L.R.NO. Thegenge/Karia/4358. That the said property was charged to the Respondent as part of the 1st Claimant’s continuing financial accommodation. That the Claimant’s subsequently defaulted in repaying the loan prompting the Respondent to advertise the property for sale on three (3) occasions. That the sale of the said property has not materialized as the Claimants have obtained court injunctions to stop it from selling it. That this injunctions have been obtained as follows:

a. On 19. 2.2019 in CM.CC.NO.360/18- David Macharia Kibira and Mary Nyambura Macharia – vs- Biashara Sacco Society Limited & Providence Auctioneers,

b. On 11. 11. 2019 vide CM.CC.NO.79/19 David Macharia Kibira -vs- Biashara Sacco Society Limited & Providence Auctioneers.

That to the extent that the Claimants have failed to obtain injunctive Orders in the Civil Courts, current suits and Application are res judicata.

Claimant’s Case

Vide the submissions filed in 11. 11. 2020, the Claimants sought to address the issue of Res judicata as raised in the Preliminary Objection by setting out the Principles that govern the terminology. That in the case of Accredo Attorney General & 3 others - vs- Steffano Ucceli & Another [2019] eKLR, the court set out of paragraph 32 of the Ruling as to include.

a. That the suit or issue was directly and substantively in issue in the former suit.

b. That the former suit was between the same parties or parties under whom they or any of their claim;

c. The parties were litigating under the same title;

d. The issue was heard and finally determined in the former suit;

e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

After setting out the foregoing principles, the Claimants submit that the current suit is not Res judicata as the court in CMCC.NO.360/18 merely downed tools on account of lack of requisite jurisdiction to entertain the matter.

As regards CMCC.NO.79/19, the Claimants contend that the same has only been raised at submissions stage and as such this Tribunal does not have the benefit of interrogating it.

Issues for determination

The Respondent’s Notice of Preliminary Objection dated 25. 2.2020 has presented the following issues for determination:

a. Whether the instant claim and the Application dated 13. 11. 2019 are Res judicata ;

b. Whether the instant claim and Application dated 13. 11. 2019 are sub-judice CM.CC.NO. 79/19(Nyeri);

c. Who should meet the costs of the Application sub-judice.

We will clear with this issue as a Preliminary one. The Notice of Preliminary Objection dated 25. 2.2020 only confine itself to the issue of res judicata emanating from the court’s decision in CM.CC.NO.360/2018. The Respondent has introduced the aspect of CM.CC.NO.79/19 at submissions stage. We find that the said issue has not been properly moved by the Respondents. Needless to say that even if we were to consider the issue of sub judice as asserted by the Respondent in its written submissions, the same cannot be considered to be a pure point of law as was held by the court in the case of Mukisa Biscuit Manufacturing Company Limited - vs- West End Distributors Limited[1969] EA 696. In the pertinent part, the court held:

“ So far as I am aware, 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.”

By contending that the current claim is res judicata, the Respondent is inviting us to ascertain whether a suit by reference No. 79/19 exist and what is its current status. If we did that, then the issue ceases being a pure point of law. It will then be disqualified from being considered as such.

Res judicata

The Respondent contend that the instant claim is Res judicata Nyeri, CM.CC.NO.360 OF 18. The said Ruling is on record as part of the Claimants list and bundle of documents. It was delivered on 19. 2.2019.

Upon perusal, we note that the court suit and Application were struck off since the court did not have the requisite jurisdiction to entertain it. While doing so, the court made reference to section 76 of the Co-operative Societies Act, which Section confers jurisdiction to entertain matters of this nature in this Tribunal.

Nowhere in the said Ruling have we found a part where the court heard and determined the matter to its logical conclusion as is required in the case of Res judicata. By section 70 of the Civil Procedure Act (Cap 21) Laws of Kenya.

We thus agree with the Claimants that the current claim and the Claimant’s Application dated 13. 11. 2019 are nto Res judicata.

Conclusion

The upshot of the foregoing is that we do not find merit in the Respondent’s Notice of Preliminary Objection dated 25. 2.2020 and hereby dismiss it with costs to the Claimants.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JANUARY, 2021.

HON. F. TERER DEPUTY CHAIRMAN ................................

MR. P. GICHUKI MEMBER .................................

MR. B. AKUSALA MEMBER ..................................