[2021] KECPT 264 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.465 OF 2020

KAMUNA SACCO LIMITED ...............................................CLAIMANT

VERSUS

MUNA SUPREME SHUTTLE.............................................. RESPONDENT

NAIROBI COUNTY GOVERNMENT......................INTERESTED PARTY

RULING

The Claimant is a Co-operative Society registered under the Cooperative Societies Act. The Respondent is also a Co-operative Society registered under the Cooperative Societies Act. The Interested Party is a County Government which allocates parking zones from, inter alia, the Claimant and Respondent.

The dispute relates to parking zones between the two Co-operative Societies as allocated by the Interested Party. The Claimant contend that the Respondent and the Interested Party are acting illegally, unlawfully and unconstitutionally thus crippling the Claimant’s business.

The Respondent dodged a Notice of Preliminary Objection dated 15/12/2020 citing want of jurisdiction. They argue that the Preliminary Objection is ambiguous and that it does not disclose the contravened law.

Issues For Determination

The Tribunal has considered the various submissions filed in this matter, and the robust points of the law raised. Consequently,

the following issues have been identified for determination.

a) Whether the Preliminary Objection is Valid

b) Whether the Prayers on the Preliminary Objection should be granted

We thus proceed as follows;

a)Whether the Preliminary Objection is Valid

The Notice of Preliminary Objection filed herein is worded thus:

“TAKE NOTICE that the Respondents herein shall raise a Preliminary Objection on a point of law on the basis that this Honourable Tribunal has no jurisdiction to hear and determine this Claim”

The law on a Preliminary Objection is trite. A Preliminary Objection consist of a point law which has been pleaded, [emphasis], or which arises by clear implication out of pleadings, and if aligned as a preliminary point, may dispose of the suit. This was the ratio decidendi in the case of Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696.

A court must be guided by this, therefore, a Preliminary Objection must raise a pure point of law, which is agreed on the assumption that all the facts pleaded are correct.

A cursory reading of the Notice of Preliminary Objection does not disclose any law. It merely cites want of jurisdiction , but no clarity is pronounced on the particular law that the objector is relying on.

As a consequence, the Preliminary Objection is legally insufficient and must fail. The Preliminary Objection is thus dismissed.

However, the Tribunal is enjoined to apply the law ,at times suo motoa reading of the Statement of Claim discloses that all three parties thereto;

a) Kamuna Sacco Limited

b) Muna Supreme Shuttle; and

c) Nairobi County Government

While the first two are Cooperative societies registered under the Cooperative Societies Act, the Nairobi County Government is not in the jurisdiction of this Tribunal.

Section 76 of the Cooperative 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 while this Tribunal has jurisdiction to deal with disputes concerning different Cooperative Societies, this jurisdiction is stolen away at the instance of introducing the Nairobi County Government.

As such, this Tribunal finds suo motothat it has no jurisdiction to entertain the dispute on that basis.

We thus order as follows:

1. The Notice of Preliminary Objection dated 1st December 2020 fails and is dismissed with no orders as to costs.

2. The Claim as filed, also fails as the Tribunal has no jurisdiction to entertain the same. The Claim is thus dismissed.

3. Each party to bear their own costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY 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. Boniface Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Otenyo holding brief for Achoki for Interested party: Present

No appearance for Claimant

No appearance for Respondent

Hon. B. Kimemia Chairperson Signed 2. 9.2021