[2024] KECPT 934 (KLR)

Gituhu v Orient Sacco Society Limited; Commissioner for Cooperatives (Interested Party) (Tribunal Appeal 21 of 2019) [2024] KECPT 934 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 934 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Appeal 21 of 2019

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

May 30, 2024

Between

Emmanuel Ngaru Gituhu

Appellant

and

Orient Sacco Society Limited

Respondent

and

The Commissioner for Cooperatives

Interested Party

Ruling

1. This Ruling dispenses with the Claimant’s Notice of Motion Application dated 1st September 2023 supported by an affidavit sworn by the Appellant, Emmanuel Ngaru Gituhu and brought under Rules 3,4, and 11 of the Cooperative Tribunal (Practice & Procedure) Rules, 2009 and all other enabling provisions of the law. The application seeks the following orders:1. That the inquiry officer (s) in inquiry report pf CS/8012 orient sacco society limited attend the tribunal for cross examination on the contents of the report.2. That the costs of the application be provided for.

2. The Application is premised on the grounds on its face, and in the Supporting Affidavit of the Appellant, which are inter alia that: The interested party did not follow due process in the conduct of the inquiry. That the surcharge orders were not taken up during the inquiry and is a stranger to the contents of the inquiry report. Further the Appellant never had the chance to interrogate the contents of the report and the surcharge.

3. A brief background of this matter is that the Commissioner of Cooperative Development issued a surcharge order against the Appellant dated 3rd July 2019. The appellant felt aggrieved by the surcharge order and filed the present appeal.

4. The matter was to be canvased by way of written submissions, and both parties filed their submissions. Appellants filed their written submissions dated 14. 12. 2023 filed on 12. 1.2024, Respondent filed written submissions dated 22. 1.2024.

5. In their submissions, the Appellants reiterate the contents of their application and urge this court to call the makers of the inquiry report for cross-examination. They base their arguments on the Evidence Act and Article 50(2) of the Constitution.

6. In their submissions, the Respondent urged this court to dismiss the appellant’s application on the basis that it is an abuse of court process.

Analysis 7. This Tribunal has considered the application, and submission of the parties, together with the authorities relied upon by the parties. The question before this Tribunal is whether the Claimant is entitled to the reliefs sought in his application dated 1st September 2023.

8. The Applicant is asking this tribunal to call for the makers of the inquiry report of CS/8012 Orient Sacco Society Limited.

9. Section 73 of the Cooperative Societies Act gives the commissioner powers to conduct inquiries and issue surcharge orders. After the Commissioner concludes the inquiry, the report is tabled before the Annual General Meeting where members consider the report, and then the affected parties are called to show cause why they should not be surcharged.We find that the Appellant had all the opportunity to interrogate the makers of the inquiry report, especially so when it is tabled before the annual general meeting. The inquiry report is made using various documents, various statements of accounts, and other documents that are not before this court. It will be in futility for this Tribunal to witness a cross-examination of a final document without a reference to the documentation that was used to generate the report. We feel that the questions to be asked on the maker of the inquiry report should have been asked when the Appellant was called upon to show cause why Surcharge Orders could not be issued. We note that the Appellant was issued with a notice of intention to surcharge dated 9th May 2019, in which he made a response dated 22nd May 2019 and received by the Cooperative on 23rd May 2019. The Appellant was accorded an opportunity to interogare the report and respond.

10. In the upshot of the foregoing, the Notice of Motion application dated 1st September 2023 is hereby dismissed with costs to the Respondent.

11. Parties to file written submissions on Appeal 30 days from today.Mention to confirm compliance and get a judgment date on 7. 10. 2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe - Member Signed 30. 5.2024Hon. Fridah Lotuiya - Member Signed 30. 5.2024Hon. Philip Gichuki - Member Signed 30. 5.2024Hon. Michael Chesikaw - Member Signed 30. 5.2024Hon. Paul Aol - Member Signed 30. 5.2024Tribunal Clerk JonahModi advocate for the AppellantMathenge advocate for the Respondent.Modi advocate advocate- we pray for 14 days to file on Amended Record of Appeal.Mathenge advocate - we need to see the Amendment before we concede.Tribunal order:a. Appellant granted 14 days to file and serve Amended Memorandum of appeal.b. Respondent granted 14 days upon service to file response therein.c. Appellant to file written submissions on Amended Appeal 30 days from today.d. Respondent to file written submissions 30 days from date of service.e. In the event a party has not complied the other party is at liberty to file their documents.f. Mention to confirm compliance on 7. 10. 2024. Hon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024