[2021] KECPT 274 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.475 OF 2020

JOSEPH WAHOME KAMAU............1ST CLAIMANT

FAITH TITA ADU..................................2ND CLAIMANT

STELLA WANJIRU NJERU................3RD CLAIMANT

PATRICK CHERUIYOT MUTAI .......4TH CLAIMANT

CONSOLATA NGENDO NJIHIA..........5TH CLAIMANT

ROBERT KAHIGA MUNENE...............6TH CLAIMANT

JANE AKINYI OJIJO..............................7TH CLAIMANT

VERSUS

DANIEL MITHAMO KIONGO................RESPONDENT

RULING

The Claimants were members of Waumini Sacco Society Limited(hereinafter, “Sacco”).

They allege to have guaranteed the Respondent over a loan of Kshs. 1,114,939. 38/= which was deducted from the deposits of the Claimants due to an act of default by the Respondent.

The Claimants filed a Statement of Claim over the deductions, which Statement of Claim is dated 30th November, 2020. The Respondent entered Appearance on 22nd December, 2020 and filed an Amended Notice of Preliminary Objection dated 17th February 2021.

This Ruling is in terms of the Preliminary Objection raised by the Respondent on two grounds:

a. That the Honorable tribunal lacks jurisdiction to hear and determine this matter, hence the suit should be struck out with costs; and

b. The entire suit is fatally defective and ought to be struck out.

Parties proceeded by way of written submissions, which we have considered extensively.

Respondent’s Case

The Respondent argues that the entire suit is defective due to violation of Order 4 Rule 2 of the Civil Procedure Act Rules 201 on High Court argues that the verifying Affidavit filed in accompaniment of the Statement of Claim was not commissioned as is required by Section 5 of the Oaths and Statutory declarations Act.

The Respondent has relied on the case of Rajput - vs- Barclays Bank of Kenya and 3 others [2014] eKLR 393. The Respondent concludes by implore this Tribunal to strike out the suit for failing to adhere to Order 4 Rule 2.

The Claimants have conceded that jurisdiction is everything. They have also reiterated that the subject matter of this case concerns a disputes between past Members of the Sacco, and as such it falls under the provisions of Section 76 of the Co-operative Societies Act. They have referred to a myriad of cases, which we have also considered.

On the issue of defectiveness of the Claim, the Chairman have positioned that the said Statement of Claim was indeed accompanied by a Verifying Affidavit which was commissioned by Henry Gachuna, an Advocate of the High Court and Commissioner of Oaths. The said Affidavit was consequently filed alongside the Statement of Claim on the 2nd December, 2020.

The Claimants conclude that the Preliminary Objection is frivolous, unfounded and lack merit, and same to be dismissed with costs.

Issues for determination

This Tribunal has framed the following as issues necessary for determination.

a. Whether the Preliminary Objection is valid.

b. Whether the Tribunal is benefit of jurisdiction to determine the Claim.

c. Whether the Statement of Claim is fatally defective.

d. Who bears the costs of the Preliminary Objection.

We will now dissect the issues.

a. Whether the Preliminary Objection is valid.

A Preliminary Objection must address it to pure point of law. It should be, but that can determine the case at once, if it is argued on the assumption that all the facts pleaded are correct. It cannot be raised when a fact is subject to ascertainment, or if what is sought calls for judicial discretion. This was the ratio decidevidi is the landmark case of Mukisa Biscuits Manufacturing Company Limited - vs- West End Distributors [1969] EA 696.

The Preliminary Objection in this case raises the question of validity of pleadings, and if this is to be determined in the affirmative, the Tribunal will strike out the said pleading and if this is to be determined in the affirmative, the Tribunal will strike out the said pleading, and thus determine the claim at once. The Preliminary Objection also list the particulars under which the objection is raised, and this satisfies the requirements of raising a Preliminary Objection.

This Tribunal is satisfied that the Preliminary Objection is justiciable, and is thus valid.

b. Whether the tribunal has jurisdiction

The claim concerns former members of the Sacco, one of whom was guaranteed by the others. Section 76 of the Co-operative Societies Act Provides as follows:

“ 1. If any dispute concerning the business of a Co-operative society arises:

a. Among members, past members and persons claiming through members, past members and deceased members; or

b. Between members, past members or deceased members, and the society, its committee or any officer of the society; or

c. Between the Society and any other Co-operative Society, it shall be referred to the Tribunal.

2. a dispute for the purposes of this section shall include-

a. a claim by a Co-operative Society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or

b. a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a Co-operative Society, whether such debt or demand is admitted or not;

c. a claim by a Sacco Society against a refusal to grant or a revocation of licence or any other due, from the authority.”

It is therefore clear that this case is in line with Section 76 (1) (a) of the Co-operative Societies Act, and the Tribunal is thus clothed with jurisdiction thereon.

We thus find that this Tribunal has jurisdiction to hear and determine the claim. This ground of the Preliminary Objection must therefore fail.

c. Whether the Statement of Claim is fatally defective

The evidence on record shows that the Statement of Claim was filed on 2nd December 2020, and at the time of filing, the same was accompanied by an Affidavit dated 30th November, 2020. The Affidavit is stamped as commissioned by Henry Gachuba, an Advocate and Commissioner of Oaths.

It is thus clear that the claim has been properly instituted before his tribunal, in his ……Order 4 Rule 2 of the Civil Procedure Act.

In any event, even if the Affidavit was not stamped as commissioned, the remedy available would be to require the Claimant to comply, rather than strike out the entire suit. The Civil Procedure Act and appurtenant unless envisage substantive justice served upon parties, and striking out pleadings when they could be rectified and justice served.

This ground of the Preliminary Objection suffers the same fate of failure.

Costs

The cost follow the event. The Respondent has set the parties to wild goose chase, delaying the matter. He must be condemned to pay costs, and we so order.

Orders

We order as follows:

a. The Notice of Preliminary Objection dated 17th February 2021 fails.

b. The Respondent to pay costs to the Claimant.

c. Mention for Pre-trial directions on 9. 11. 2021.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member Signed 2. 9.2021

Mr. B. Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Onyango for Claimant: Present

No appearance for Respondent

Hon. B. Kimemia Chairperson Signed 2. 9.2021