[2023] KECPT 916 (KLR)

Isaack Kigo Mbugua (Suing on his own behalf and on behalf of 500 others; Members of Kenton Kijabe Hill Cooperative Society) v Kenton Kijabe Hill Co-operative Society Limited (in liquidation) (Tribunal Case 206 of 2019) [2023] KECPT 916 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 916 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 206 of 2019

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

September 21, 2023

Between

Isaack Kigo Mbugua (Suing on his own behalf and on behalf of 500 others; Members of Kenton Kijabe Hill Cooperative Society)

Claimant

and

Kenton Kijabe Hill Co-operative Society Limited (in liquidation)

Respondent

Ruling

1. Vide a notice of Preliminary Objection dated 9/08/2021 and filed on 09/08/2021 the Respondent raised the following grounds.(a)That, the Claimant’s suit is defective, incompetent and bad in law in that it is in breach of order 1 rule 8 of the Civil Procedure Rules, 2010. (b)That, the Claimant lacks locus standi to institute the proceedings in that he has no legal capacity to bring this suit.(c)That, the matter in this court has already been executively and exhaustively dealt with I High Court Suit no 63 of 2012 Petition no 27 of 2016 by Hon. Justices Emukule and Lady Justice Korir.The Application is supported by a Witness Statement by Naftali Omari.

2. The Respondent Claims that the Claim brought by the Claimant is a Representative suit that is defective. Further, that the Claimant filed other similar cases in other courts touching on similar subject matter as the one present before this Tribunal.It is also the Respondent’s Claim, that the Claimant has not shown how acquired membership of the Society.The Application was disposed by way of Written Submissions pursuant to directions given on 10/08/2021 but as at the time of writing this Ruling, only the Respondent had complied.

Issues for Determination(i)Whether the Claim brought was defective considering order 1 Rule 8. (ii)Whether the Claimant has a legal standing in the matter at hand.(iii)Whether the current suit is res judicata. Issue One: Whether the Claim brought was defective considering order 1 Rule 8. Order 1 Rule 8(1) indicates that individual may represent parties to a suit where they have the same interests in the suit. Looking at how the parties have been indicated in the Claim, Isaac Kigo Mbugua is suing on his own behalf and that of five hundred (500) members, thus making it a representative suit. Order 1 Rule 8(2), indicates that parties in such a suit shall give notice to all such persons either by personal service or where the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. Order 1 Rule 13, states that where there are more Plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. Order 1 Rule 13(2) requires that such an authority shall be in writing signed by the party giving is and shall be filed in the case.From the above statutory requirements, the Claimant ought to have;(a)Given notice of the suit to all the parties being represented and the same be adduced in court.(b)The represented parties (Plaintiffs) should have given Isaac Kigo the authority to sue on their behalf. The authority should have been in writing and the same filed in court.(c)The Claimant failed to comply with the statutory provisions of how parties should approach the court, therefore the Claim is defective.

Issue Two: Whether the Claimant has a legal standing in the matter at handOn the second issue, there should be a relationship between the Plaintiff and the cause of action to enable the Plaintiff to move to court. According to Law Society of Kenya v Commissioner of Lands and others, Nakuru High Court Civil Procedure Case no 464 pf 2000, the Court stated that locus standi signifies a right to be heard. A person must have sufficient interest to sustain his standing to sue in court of law.

Issue Three: Whether the current suit is res judicata.Locus standi is so important that in its absence, party has no basis to claim anything before the court. 3. The Claimant, Isaac Kigo, In the absence of indicating his relationship with the Respondent and failing to provide evidence to prove the relationship falls short of proving a nexus between him and the Respondent.The Plaintiff therefore lacks any legal standing to institute the suit.The objection raised by the Respondent has merit and it is allowed and the suit is hereby struck out. For avoidance of doubt, there will be no need to discuss any other issues raised since the Plaintiff has no legal standing in the first place.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIACHAIRPERSONSigned 21. 9.2023HON. J. MWATSAMADEPUTY CHAIRPERSONSigned 21. 9.2023HON. BEATRICE SAWEMEMBERSigned 21. 9.2023HON. FRIDAH LOTUIYAMEMBERSigned 21. 9.2023HON. PHILIP GICHUKIMEMBERSigned 21. 9.2023HON. MICHAEL CHESIKAWMEMBERSigned 21. 9.2023HON. PAUL AOLMEMBERSigned 21. 9.2023Tribunal ClerkJemimahNo appearance by parties to the Respondent.Ruling delivered in the absence of the parties.Hon. J. MwatsamaDeputy ChairpersonSigned 21. 9.2023