[2025] KECPT 161 (KLR)

Imbwaga v Besco Cooperative Sacco Society (Miscellaneous Application E010 of 2024) [2025] KECPT 161 (KLR) (29 January 2025) (Ruling)

Neutral citation: [2025] KECPT 161 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Miscellaneous Application E010 of 2024

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

January 29, 2025

Between

Humphrey Imbwaga

Claimant

and

Besco Cooperative Sacco Society

Respondent

Ruling

1. Matter for determination is Misc. Application dated 2. 8.2024 which seeks for orders:a.Spentb.This Honourable Tribunal be pleased to stay proceedings in Tribunal Case No. CTC.NO. E341 of 2024 pending hearing and determination of this application.c.This Honourable Tribunal be pleased to grant the Applicant herein leave to appeal out of time against the Surcharge Order dated 5th March, 2024 issued by the Commissioner for Cooperative Development against the Applicant herein.d.The Costs of this Application be in the cause.On grounds that on 5. 3.2024 a Surcharging Order was issued and Applicant had 30 day to file an appeal which has already lapsed.They state they were not served or notified of the Surcharge Order.Applicant avers he only came to know about it when his advocate was served with a Statement of Claim for CTC.NO. E341 of 2024.

2. The Respondent was served however no appearance was entered and as such the Application is undefended. The Applicant requested for the Application to be allowed as prayed.

3. The Tribunal has considered the Application and the Section 74 Cooperative Societies Act 2012 which applicant relies on to seek leave to file the Appeal out of time.Section 74 (1) any person aggrieved by an order of the commissioner under section 73 (1) may within 30 days appeal to the Tribunal (2) a party aggrieved by the decision of the Tribunal may within 30 days appeal to the High Court on matters of law.We note that the Applicant refer to the Tribunal to a suit filed CTC.NO. E341 of 2024 which was filed by Respondent against them following the Surcharge Order.

4. We then look into the reasons for not filing this application in the file CTCNO. E341 of 2024 since it comes from/the genesis of this Misc. Application is CTC.NO. E341 of 2024 which brought the Applicant to the attention of the surcharge if at all.We have confirmed from CTC.NO. E341 of 2024 that indeed the suit is against the applicant herein and there is default judgment entered for failure to enter appearance.Default judgment was entered on 4. 12. 2024. the said Affidavit of Service in CTC.NO. E341 of 2024 states Respondent that the Applicant herein was served on 7. 6.2024. We have looked into the current Application dated 2. 8.2024 and question why Applicant did not respond to the claim CTC.NO. E341 of 2024 nor did not take action in June and has waited for 2 months and now waits an Appeal.

5. We have also considered the Supporting Affidavit in Misc. Appeal. E010 of 2024 and note no sufficient reason on convincing reasons have been given why the orders in the application ought to be granted.The delay in filing is not explained and as such the Application should fail.Further it is important to note the draft Memorandum of Appeal alludes to the process not followed which then the Applicant’s recourse would be lie to the High Court Judicial Review and not the Tribunal.

6. We are not persuaded by the Applicant and despite the Application not been opposed we decline to grant orders.

UpshotApplication dated 2. 8.2024 is dismissed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 1.2025HON. BEATRICE SAWE- MEMBER SIGNED 29. 1.2025HON. FRIDAH LOTUIYA- MEMBER SIGNED 29. 1.2025HON. PHILIP GICHUKI -MEMBER SIGNED 29. 1.2025HON. MICHAEL CHESIKAW -MEMBER SIGNED 29. 1.2025HON. PAUL AOL- MEMBER SIGNED 29. 1.2025TRIBUNAL CLERK MUTAIMwangi Advocate for the ApplicantMBUTHIA ADVOCATE FOR THE RESPONDENTFile ordered as closed.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 1.2025