[2023] KECPT 1030 (KLR)

Kamau & others v Kenya Technical Teachers Sacco Ltd; Commissioner for Cooperative Development (Interested Party) (Appeal 1 of 2017) [2023] KECPT 1030 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1030 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Appeal 1 of 2017

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

November 30, 2023

Between

Njuguna Kamau & others

Applicant

and

Kenya Technical Teachers Sacco Ltd

Respondent

and

Commissioner for Cooperative Development

Interested Party

Ruling

1. There are two Applications for determination by the Tribunal. The first Application is the Notice of Motion dated 15th May 2023, filed by the Appellants on 30th May, 2023, in which they seek leave to amend the Memorandum of Appeal dated 22nd May, 2017 and leave to file and serve a further List if Documents. The second Application is the Notice of Motion dated 8th June, 2023 filed by the Respondent on 8th June, 2023 contesting the Jurisdiction of the Tribunal to hear and determine the Appeal.We shall first determine the Respondent’s Application as the decision we reach shall impact the survival of the Appeal before the Tribunal. Respondent’s Application dated 8th June, 2023. This is a Notice of Motion brought under Rule 11(1) of the Co-operative Tribunal (Practice and Procedure) Rules 2009, and Sections 74(1) and 78(2) of the Co-operative Societies Act 2012. The Respondent seeks the following orders:1. Spent.2. That this Honourable Court lacks jurisdiction to entertain the Appeal.3. That this Honourable Court be pleased to hold that the Appeal herein was filed out of time and consequently the Appeal be struck out4. That the costs of the Application be borne by the Appellant.

2. The Application is based on the grounds of the face of the application and it is supported by the affidavit of nancy kinyanjui sworn on 8th june, 2023. the grounds of the application as set out on the face of the Application and the supporting affidavit are:a.That as per the Memorandum of Appeal, the Inquiry Report was published and read out on 17th December, 2014. b.That the Memorandum of Appeal was filed on 24th May, 2017 several years after the inquiry report filed was read out.c.That the Appeal was filed outside the 30 days contrary to the requirements under section 74 of the Co-operatives Act.d.That the Law requires anybody aggrieved by the findings in the inquiry report to lodge an appeal within 30 days from the date of inquiry report.e.That the Appeal is time barred and as a consequence, the Tribunal lacks jurisdiction to hear an Appeal out of time.

3. The Appellants filed a Replying Affidavit to the Respondent on 20th June 2023 which was sworn by one Oyaro Mwamba on even date.Both parties filed Written Submissions in respect to the Application dated 8th June 2023.

Respondent/applicant’s Submissions. 4. The Respondent’s Submissions to both Applications are dated 2nd October, 2023 and filed on 6th October 2023. The Respondent submits that the Appeal is in objection to an inquiry report published following an investigation launched by the Interested Party to look into the affairs of the Respondent. That the Inquiry found the Appellants who were the officials of the Respondent, liable for unaccounted funds amounting to Kshs. 4,626,500/=. That aggrieved by the content of the Inquiry Report, the Appellants filed their Memorandum of Appeal on 24th May 2017. That the Appellants did not challenge the Inquiry Reports within the stipulated 30 days period after they became aware of it, having been read out on 17th December, 2014, but slept on their right for three years before filing the Memorandum of Appeal objecting to the finding thereof.

5. The Respondent stated two issues for determination:

Whether This Tribunal Has Jurisdiction To Hear And Determine The Appeal, And If It Does Not Have, What Are The Consequences Thereof? 6. On this issue, the Respondent reiterates the position that the appeal was filed on 24th May 2017 by the Appellants having been aggravated by the contents of an Inquiry Report by the Commissioner for Cooperative Development read on 17th December, 2014. That Section 74(1) of theCooperative Societies Act stipulates that any person aggrieved by an order of the Commissioner to inquire into their conduct may within thirty days, Appeal to the Tribunal. The Respondent sites three authorities in support of its argument for dismissal of the Appeal for lack of jurisdiction on the basis of the findings of the court of Appeal in the cited cases. That the timelines set in an Act of Parliament for doing something are fixed and cannot be changed and as a result, the Court of Appeal ruled that, it no longer has power to hear the Appeal; and submits that the Appellants clearly failed to adhere to the 30 day’s timeline set under section 74(1) of the Co-operative Societies Act and the Appeal is rendered null and void. To further demonstrate that if a matter is statute barred, a court has no jurisdiction to entertain it and that jurisdiction is everything. The Respondent, the case of Anadet Kalia Musari –v- Attorney Heneral & 2 others [2020] eKLR, Civil Appeal III of 2017 andOwners of Motor Vessel “Lilian’s” _-vs- Caltex Oil (Kenya) Ltd [1989) KLR 1.

7. In conclusion, the Respondent submits that there is no Appeal before the Tribunal worthy of being amended and consequently, the Appellants’ Application dated 15th May, 2023 should be dismissed with costs.

Who Bears The Costs Of The Two Applications? 8. The Respondent submits that it be awarded costs of the two Applications citing precedent to stress that even though the awarding of costs is discretionary, costs ought to be awarded to the victorious party in a suit. The Respondent finally submits that it is fair, just and equitable that the Respondent’s Application dated 8th June, 2023 be allowed as prayed and Appellants Application dated 15th May, 2023 be dismissed with costs.

The Appellant’s Submissions. 9. The Appellant’s submissions dated 12th September, 2023 are in respect to the Respondent’s Application dated 8th June, 2023. The Appellants reiterates the content of the Replying Affidavit and set out the background of the matter before the filing of Appeal and states that the Interested Party led an inquiry into the affairs of the Respondent. That the officers appointed to conduct the Inquiry prepared a Report which was read to the Respondent’s members at a Special General Meeting and that the Interested Party on 24th April 2017 issued Surcharge Orders against the Appellants as mandated under Section 75 of the Co-operative Tribunal’s Act, under which Actthe Appellants had a legal right to Appeal against the orders issued by the Commissioner of Cooperatives within thirty (30) days. That in exercise of the said right of the Appeal, the Appellants filed a Memorandum of Appeal dated 22nd day of May, 2017, within a period of thirty (30) days as required under theCooperative Societies’ Act. That the Appeal was therefore filed within the statutory period. That the Tribunal has jurisdiction it hear and determine the Appeal as provided under Section 74 of the Cooperative Societies Act. Further, the Appellants submits to the effect that the deponent of the Respondent’s Application; one Nancy Kinyanjui is retired and no longer a member of the Respondent and is therefore a non-party to the case hence Affidavit incompetent and cited the case of Moijo Mataiya Ole Keiwua vs Chief Justice of Kenya & 6 others[2008], in support of their claim that the said Affidavit ­­­should be expunged from the court records.

10. The Appellant sums up by submitting that the Respondent’s Notice of Motion Application dated 8th June, 2023 be dismissed with costs. We note that the Appellants submissions did not touch on their own Application dated 15/05/2023.

Analysis And Determination. 11. We have considered the evidence by the parties and the Written Submissions and find three issues for consideration:1. Whether or not this Tribunal has jurisdiction to hear and determine the Appeal.2. Whether or not the Affidavit in support of the Respondent’s Application dated 8/6/2023 is incompetent.3. Who shall bear the costs of the Application.

Whether Or Not This Tribunal Has Jurisdiction To Hear And Determine The Appeal. 12. Section 73 of the Co-operative Societies Act provides as follows: “Where it appears that any person who has taken part in the organization or management of a Co-operative Society, or any past or present officer or member of the Society-a.Has misapplies or retained or become liable or accountable for any money or property of the society; orb.Has been guilty of mis finance of breach of trust in relation to the society.

13. The Commissioner may, on his own accord or on the application of the liquidator or of any creditor or member, inquire into the conduct of such person.

14. Upon Inquiry under sub-section (1),the Commissioner, may, if he considers it appropriate, make an order requiring the person to repay or restore any part thereof to the Cooperative Society together with interest at such rates as the Commissioner seems just or to contribute such sum to the assets of the society by way of compensation as the Commissioner seems just.”

15. Section 74(1) of the CooperativeSocieties Act provides that any person aggrieved by an order of the Commissioner under Section 73 may within thirty days appeal to the Tribunal. It therefore follows that an Appeal to the Tribunal under section 74, must be an appeal from the order of the Commissioner Surcharging the person; and such Appeal must be filed within 30 days from the date the Commissioner makes the order.

16. We have looked at the Memorandum of Appeal filed by the Appellants and observe that on the face of it, it presents itself as Appeal from the Inquiry Report as stated at the introduction that “the Appellants are aggrieved by the contents of an inquiry report by the commissioner for Development read on 17th December, 2014, conducted by…”

17. The Grounds of Appeal are mixed. We note that five of them are in reference to the order to surcharge by the Commissioner of Cooperatives. We also note that the Appellants’ prayers to the Tribunal include a prayer that the Surcharge Orders issued against the 1st to 9th Appellants on 24th April 2017 be declared null and void; and a prayer to set aside the surcharge orders issued against the appellants as served on them. We have seen the surcharge order and confirm that indeed, it was made on 24th April 2017. The fact that the Appeal was filed on 22nd May, 2017 within 30 days from the date of the Surcharge Orders, tells us that the Appellants intended to appeal against the Surcharge Orders. It is our funding that if the Appellants for whatever reasons believed that they had a right of appeal to the Tribunal upon being aggrieved by the content inquiry report, nothing stopped them from filing Appeal within 30 days from the 17th December, 2014.

18. Article 159 of the Constitution of Kenya 2010 provides that the courts and Tribunals established by or under the Constitution shall administer justice without undue regard to technicalities. This Tribunal is not a court of Technicalities. We find that the Appeal contains matters which this Tribunal has jurisdiction to hear and determine. The rest of the matters are irrelevant and at most, can render the Appeal wanting in form but not so incurably as to ­­­oust the jurisdiction of the Tribunal to hear and determine the issues rightly before it.

19. Rule 4 of the Cooperative Tribunal (practice and Procedure) Rules, 2009 is clear in its provision which guides us to our discretion to decide all matters before it with due speed and dispatch without regard to technicalities or procedure.

20. We are duly guided by the reasoning of the Court in Narok Civil Appeal no. 20 of 2020. (Gikonyo, J), (2021)eKLR, when it declined to strike out an appeal for having been filed out of time. Consequently for the stated reasons, we find that the Tribunal has Jurisdiction to hear and determine the Appeal herein.

Whether Or Not The Affidavit In Support Of The Respondent’s Application Us Defective. 21. Rule 11(1) of the Cooperative Tribunal (Practice and Procedure) Rules, 2009, provides that all interlocutory Applications made to the Tribunal shall be by chamber summons or Notice of Motion, signed by the Claimant, his Advocate or duly authorized agent supported by an Affidavit. The appellant’s fault the capacity of the deponent to the Respondent’s supporting Affidavit on grounds that the deponent had left employment in public service.

22. On our part, guided by the provisions of Rule 11 aforesaid we are satisfied that the application is signed by the Respondent’s Advocate and supported by an Affidavit.

Who Shall Bear The Costs Of The Application? 23. It is trite law that costs follow the course. We therefore find that the Appellants being the successful parties herein, are entitled to costs of the Application. Ultimately, the Respondent’s Application dated 8th June, 2023 is dismissed with costs to the Appellants.

The Appellant’s Application Dated 15Th May, 2023. 24. Having found that this Tribunal has Jurisdiction to hear and determine the Appeal herein, we proceeded to consider the Appellant’s Notice of Motion Application dated 15th May, 2023 for orders:1. Spent.2. That the Appellants/Applicants be granted leave to amend their memorandum of Appeal dated 22nd May, 2017. 3.That the Appellants/Applicants be granted leave to file and serve a further list of documents.4. That costs of this Application being the cause.

25. The Application is premised on grounds set out on the face thereof and on the Supporting Affidavit sworn by Oyaro Mwamba on 15th May, 2023.

26. The Appellant’s main reason for the Application is that the Tribunal on 18th April, 2003 granted orders enjoining the Commissioner of Cooperative Development to this Appeal, hence the need to amend the Memorandum of Appeal to include Specific Omissions and Commissions following the Commissioner of Cooperative Development and need for leave to file documents which were not in their possession at the time of filing appeal. The Respondent opposes the Appellant’s Application.

27. Rule 6 of the Co-operative Tribunal (Practice and Procedure) Rules , 2009 provides that the Provisions of theCivil Procedure Rules (Cap 21) shall apply on respect to the proceedings of the Tribunal.

28. We have considered the Application and the grounds thereof, the grounds of opposition and submissions filed. The appellant’s prayers sought by the appellants are justified by the fact that the Commissioner of Cooperatives having been enjoined hereto the Memorandum of Appeal has to be amended so as to bring all the issues before the Tribunal and we are guided by the ruling if the court of appeal in Nairobi (Warsame J. A) in civil Application no. NAI 64 of 2023 (2021) eKLR as we exercise our discretion in terms of the provisions of Order 8 Rule 3 of the Civil Procedure Rules; without undue regard to technicalities of procedure and in the interest of justice, allow the Appellant’s application and order as follows:1. Respondent’s Notice of Motion Application dated 8. 6.2023 is dismissed with costs to the Appellants2. The Appellant’s Application dated 15. 5.2023 is allowed in terms of prayer 2 and 3. 3.Leave is hereby granted to the Appellants/Applicants to file and serve their Amended Memorandum of Appeal dated 22nd May, 2019 within fourteen(14) days from the date of this ruling.4. Leave is hereby granted to the Appellants/Applicants to file and serve a supplementary List of Documents together with the Amended Memorandum of Appeal.5. The costs of this Application be borne by the Appellants to the Respondent.6. Mention to confirm compliance and for further directions on 18. 4.2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahKingori advocate for Respondent/ApplicantMitambo advocate holding brief for Orina advocate for the Appellant.Ruling as read out.Hon. J. Mwatsama Deputy Chairperson Signed 30. 11. 2023