[2023] KECPT 73 (KLR)

Kamangu & 7 others (Suing on ourselves and on behalf of other members of Yamumbi Uasin Gishu Farmer’s Cooperative Society) (in Liquidation)) v Kiragu & 4 others (Tribunal Case 548 of 2019) [2023] KECPT 73 (KLR) (23 February 2023) (Ruling)

Neutral citation: [2023] KECPT 73 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 548 of 2019

M Mwatsama, Vice Chair

February 23, 2023

Between

John Kamangu

1st Claimant

Jackson Mwangi

2nd Claimant

Joseph K. Muchinji

3rd Claimant

Charles Njunge

4th Claimant

John Nderi

5th Claimant

Daniel Gakuo Kariuki

6th Claimant

Kabete Wairati

7th Claimant

Njue Kinyori

8th Claimant

Suing on ourselves and on behalf of other members of Yamumbi Uasin Gishu Farmer’s Cooperative Society) (in Liquidation)

and

James Kiragu

1st Respondent

Joseph Kinuthia

2nd Respondent

Francis Mbatia

3rd Respondent

Benson Nyambati

4th Respondent

Ishmail B Mengich

5th Respondent

Ruling

1. The Application for determination is the Preliminary Objection dated February 11, 22, which challenges the suit herein as:a.It offends mandatory provision of Government Proceedings Act as read with Article 236 of the Constitution is so far as the Claimants purport to file suit against the 4th Respondent who was acting by virtue of office and as such by purporting to file suit against the Public Officer acting by virtue of office, the suit is non stater.b.By purporting to file suit on behalf of Yamumbi Farmers’ Cooperative Society when the Claimants are neither officials nor Liquidators, the suit is bad in law and in fact.c.By purporting to sue on behalf of a company already liquidated, the claim is bad in law.d.The Claim is bad in law for offending mandatory provisions of Section 5, 6, 7 and 17 of the Limitation of Actions Act, CAP 22 Laws of Kenya

2. Parties were directed to dispose of the Application by way of Written Submissions.4th Respondent filed written Submissions dated May 15, 22 on June 20, 22 as the authors of the preliminary Objection. Their Claim is that the suit offends Article 236 of the Constitution of Kenya as the 4th Respondent cannot be sued by virtue of his office.4th Respondent avers that Claimants are neither officials of liquidation of Yamumbi Farmers’ Cooperative Society thus have no locus to bring the case before the Tribunal.Further 4th Respondent aver that they cannot be sued as he is a public officer who cannot be sued on an individual capacity but by virtue of his office.

3. The 4th Respondent also stated the Limitations of Actions Act Section 5 which states:“Where under Section 3 of the Law Reform Act, a tortfeasor becomes entitled after the commencement of this act to a right to recover contribution in respect of any damage from another tortfeasor an action to recover contribution by that right shall not be brought after the end of two years from the date on which the right accrued to the first tortfeasor.”Public Authority Limitation provides:“He proceedings founded on tort shall be brought against the government or a local authority after the end of twelve months from the date on which the cause of action accrued and,Where the defence to any proceedings is that the Defendant was at the material time acting in the course of his employment by the government or a local authority and the proceedings were brought at the end.Twelve months in the case of proceedings founded on tort.”They Claim this suit is time barred as 4th Respondent was appointed in 1986 – over 36 years ago and that without facts the claim arose in 1952 and thus time barred

4. The Claimant filed their Written submissions dated July 19, 22 on July 27, 22 to which they responded to the 4th Respondent’s Preliminary Objection. The Claimant states:a.The suit against 4th Respondent is sustainable, they quoted Article 47 of the 2010 Constitution, which provides:“(i)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair(ii)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall:-a.Provide for the review of administrative action by a court or, if appropriate, an independent and impartial, tribunal; andb.Promote efficient administration.”as such, Section 2 Fair Administration Action Act 2015 is to be taken into consideration. Thus the 4th Respondent being a District Co-operative Officer, a liquidator and falls under the audit of Section 5(2) and Section 7 Fair Administration Action Act.A Public Officer in nature of 4th Respondent can thus be sued.

5. Question of the suit being time barred, the Claimant avers the Claim is for various complaints from 1987. The last complaint was to Commissioner of Co-operative Development through the Commissioner of Administrative Justice on July 3, 2019 and when they failed to act, the Claimant filed a Claim at the Co-operative Tribunal.Claimant quoted Article 40(2)Constitutionof Kenya:“Parliament shall not enact a law that permits the state or any person:a.To arbitrary deprive a person of property of any description or of any interest in, or right over, any property of any description orb.To limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4)c.The state shall not deprive a person of property of any description, or of any interest in, or right over, property of any description unless it is in accordance with chapter five or use for a public purpose if not such a person aggrieved has a right of access to a court of law.”

6. On the Claim against the Liquidator the Claimant submits the Liquidation is a process.The Claimant quoted Section 66(1) Cooperative Societies Act cap 490:“upon the cancellation of registration of a society under preceding sections, the society shall vest in the liquidator from the date upon which the order of cancellation takes effect.”From the above the issues for determination are whether the preliminary Objection raises issues solely of Law.The main issue for determination is whether the Preliminary objection is merited.It is well settled that a Preliminary Objection must raise only issues of law in the celebrated case of Mukisa Biscuit Manufacturing Company ltd. –vs- West End Distributors ltd. [1969] EA 696 Pg. 700 law suit stated,“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary Objection may dispose off the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”At page 7 Sir Charles Newbold added,“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

7. Having looked at the Preliminary Objection raised, the Claim as it were ad the response by the Claimants on the Preliminary Objection we find the matter cannot just be disposed off by way of a Preliminary Objection.We are at one point or the other as we were writing this ruling focused to look into the facts of the case and ascertain certain issues as alluded by 4th Respondent and Claimant.In itself that informs us the Preliminary Objection cannot stand. On the issue of Limitation of Action – we ask ourselves when did the cause of action accrue?The same has been ongoing and long standing and still in the process of crystallizing.

8. The issue of suing of Liquidator in his capacity Section 66(1) b Co-operative Society Act :“The liquidator shall have the power to institute and defend suits and other legal proceedings by and on behalf of the society in his own name or office and to appear before the tribunal as litigant in person on behalf of the society.”The 4th Respondent can and has been rightfully sued in the Claim. It is not disputed the matter is a part heard and Claimant witness was stepped down to pave way for the commissioner’s inquiry report to be filed. The 4th Respondent as it were ought to have raised the issue of:1. Limitation of Action2. Liquidator – Capacity way before thenWithout much further ado the Preliminary Objection seems to be an afterthought with no legal basis.As such the Preliminary Objection dated February 11, 22 is not merited and is dismissed with costs to Claimant.Mention on July 4, 23 for further directions on the hearing.Notice to Issue.

SignedHon Mjeni MwatsamaDeputy ChairpersonTribunal:Moronga holding brief or Moses M.K for the ClaimantsNo appearance by RespondentHon J Mwatsama Deputy Chairperson Signed 23. 2.23