[2021] KECPT 571 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

MISC. APPL. TRIBUNAL CASE NO.11 OF 2019

JAMES MWERI KAHUNYO...................................................................1ST CLAIMANT

GEORGE ABONG....................................................................................2ND CLAIMANT

GEORGE ONYARA..................................................................................3RD CLAIMANT

WYCLIFFE OGAL...................................................................................4TH CLAIMANT

CHARLES OLUNGAH.............................................................................5TH CLAIMANT

JOSEPH ESAU...........................................................................................6TH CLAIMANT

SALOME MUCHERE...............................................................................7TH CLAIMANT

VERSUS

THE COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT.....RESPONDENT

RULING

What is before us for consideration and determination is the 1st – 7th Applicants Misc. Application dated 10. 9.2019. It seeks for Orders inter alia:

1. Spent;

2. That this Tribunal be pleased to grant leave to the Applicants to Appeal out of time against the surcharge Orders made by the Commissioner for Co-operative Development on 19. 6.2018;

3. That pending the hearing and determination of this Application, this Honourable Tribunal be pleased to grant a temporary injunction restraining the Respondent by themselves, their agents and/or employees or whomsoever is acting on their behalf from executing a surcharge against the applicants for honoraria they earned in respect of years 2013, 2014 and 2015;

4. That pending the hearing and determination of this appeal, this Honourable Tribunal be pleased to grant a temporary injunction restraining the Respondent by themselves, their agents and/or employees or whomsoever is acting on their behalf from executing a surcharge against the Applicants for honoraria they earned in respect of years 2013, 2014 and 2015; and

5. That costs be in the cause.

The Application is supported by the grounds on its face and the Affidavit sworn by the 1st Claimant on even date (10. 9.2019).Despite service, the Respondent did not respond to it. Owing to the nature of the Application, we directed the Applicants to file their written submissions on 6. 8.2020. They did so on 3. 9.2020.

Applicant’s Case

Vide the instant Application, the Applicants contend that the Respondent issued a surcharge Order against them on 19. 6.2018. That in terms of section 73 (1) of the Co-operative Societies Act, they had 30 days to Appeal against the said decision. That the said time has elapsed. That delay in filing the Appeal was occasioned by the following:

a. That the Applicants firstly originated the dispute in the High Court vide JR. MISC.NO. 279/18. That vide a Ruling delivered by Hon. Justice Mativo on 5. 9.2019the High Court dismissed the Application on account of the fact that the Applicants had not exhausted available mechanisms for resolving the dispute.

b. That the Applicants then filed CTC.NO. 260/19 which was again dismissed for lack of jurisdiction on 22. 8.19.

That the reason why the Applicants did not Appeal within the time limited by law is that they were held up in other courts over the same subject matter.

Written submissions

Vide their written submissions filed on 3. 9.2020, the Applicant’s reiterated their contentions above. They also cited the decision of the court in the case of the owners of the Motor Vehicle Vessel Lilian”s” –vs- Caltex oil (Kenya) Limited [1989] KLR and submitted that we have jurisdiction to enlarge time within which to lodge an Appeal. They also referred to the provisions of section 76 of the Co-operative Societies Act. They further cited the decision of the courts in the cases of Council of Civil service union - vs- AC 374 at 40 and Anisminic – vs - Foreign Compensation Commission[1969] I AII ER 208 at 233.

The Applicants have also submitted that they have an arguable Appeal and cited the holding of the court at the case of Francis Gichohi & Another – vs- Baragwi Fames Co-operative Society Limited [2015] eKLR.

Further they submitted on the Tribunal’s jurisdiction to extend time and cited the case of First American Bank of Kenya Limited - vs- Galab P.Shah & 2others–Nairobi(Milimani) H.C.C.NO.2258/2000[2003] EA 65.

We will consider the foregoing arguments whilst determining the issues raised by the Application below.

Issues for determination

This miscellaneous Application has presented the following issues for determination:

a. Whether this Tribunal has jurisdiction to enlarge time within which a party may Appeal against a surcharge Order;

b. What Orders are available in the circumstances?

Appeal against surcharge Orders

As was correctly held by the court in the celebrated in the case case of Motor Vessel Lilian” s” - vs- Caltex Oil (Kenya) Limited [1989] KLR, jurisdiction is everything and without it, the court downs its tools. This position was underscored by the Supreme Court of Kenya in the Matter of Advisory opinion of the Supreme Court under Article 63 (3) of the Constitution- Constitutional Application No. 2 of 2011 in the following terms:

“ The Lilian”s” Case [1989] KLR1 establishes that jurisdiction flows from the law, and the recipient court is to apply the same with any limitation’s embodied therein. Such a court may not arrogate to itself jurisdiction through a craft interpretation or by way of endeavors’ to discern or interpret the intention of parliament, where the wording of legislation is clear and there is no ambiguity.”

We associate ourselves with the holding of the supreme court in its Advisory opinion above and state that indeed, our jurisdiction flows from the law and in this case, the Co-operative Societies Act (cap 490) laws of Kenya and the Rules made thereunder.

As far as Appeals against surcharging Orders is concerned, Section 74 (1) of this Act provides thus:

“ Any person aggrieved by an Order of the Commissioner under section 73 (1) may, within 30 days Appeal to the Tribunal.”

This Tribunal ( separately constituted) has consistently interpreted and applied this provision in many of its decisions to mean that once the 30 days period lapses, there is no room for enlargement of time. One of such decisions is the CTC.NO.91/2004 others are:

a. Butere Teachers Savings & Credit society Limited - vs- Andrea Kechala; CTC.NO.8/2005;

b. Butere Teachers Savings and credit Sacco society Limited - vs- Aggrey Osiyei CTC.NO.9/2005;

c. Kakamega teachers Sacco Society Limited - vs- Joshua Aura Lutomia CTC.NO. 13/2006

d. Kibirigwi Farmers’ Co-operative society Limited – vs- Peter Kiro, CTC.NO. 74/2004 ; and

e. Kakamega Teacher’s Sacco – vs- M. Aganyanya, CTC.NO. 33/2006

In Kibirigwi Farmers’ Co-operative Society Limited –vs- Jacob Mwangi, CTC.NO. 91/2004, the Tribunal held thus:

“ The only way surcharging Order can be challenged in this Tribunal is on Appeal under section 74 of the Act, which must be filed within 30 days. There is no provision for enlargement of time.”

The current Application is indifferent. The Applicants wants us to enlarge time to Appeal against surcharge Orders issued on 19. 6.2018. Their main excuse is that they erroneously instituted the claim in a wrong form and therefore ended up being referred to the Tribunal while the window period for filing the Appeal had lapsed. Ignorance of the law can never be a Defence.

Conclusion

The upshot of the foregoing is that we find that we do not have jurisdiction to entertain this Application and hereby proceed to dismiss it with no Orders as to costs.

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

Hon. F. Terer Deputy Chairman Signed 7. 1.2021

Mr. P. Gichuki Member Signed 7. 1.2021

Mr. B. Akusala Member Signed 7. 1.2021

In the presence of Mr. Gitau for the Applicant

Respondent absent

Court clerk Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021