https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/322

REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. E711 OF 2025 (Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. P. Aol- Member, Hon. M. Chesikaw-Member) KIMSAVE SACCO LIMITED…………………………………..……. CLAIMANT -VERSUS- RICHARD KIPTOO……………..…………………………. ……..RESPONDENT RULING 1. This ruling dispenses with the Notice of Preliminary Objection dated 17th March 2026. In the Notice of Preliminary objection, the Respondents raise an issue with the jurisdiction of this Tribunal on the following grounds: a) THAT the Plaintiff lacks locus standi to institute this suit in a claim for loan arrears owing to the fact that it has neither a constituted Board of TRIBUNAL CASE NO. E711 OF 2025 Directors nor its officials are members of the Sacco contrary to provisions of the Cooperative Societies Act CAP 490. b) This case amounts to an abuse of the court process and thus ought to be dismissed with costs to the Respondent. 2. The Claimant opposes the Respondent's Preliminary Objection through grounds of opposition dated 26th March 2026. In his opposition, the Claimant avers that the Preliminary Objection is incompetent and misconceived as it raises disputed issues of fact requiring evidentiary proof rather than pure points of law. That the Claimant is a duly registered Co-operative Society with the legal capacity to sue, and that this suit was properly instituted and authorized in accordance with the law and its by-laws. Further, that the Respondent has expressly admitted the loan indebtedness in his Witness Statement, rendering the objection frivolous, vexatious, and a mere attempt to delay the fair and expeditious determination of the claim. 3. In a Replying Affidavit sworn on 26th March 2026, the Chairman of the Claimant deposes that the Respondent’s Preliminary TRIBUNAL CASE NO. E711 OF 2025 Objection is misconceived as it raises disputed issues of fact rather than pure points of law. He states that the Claimant is a duly registered Co-operative Society with the legal capacity to sue, that the suit was properly authorized by its duly constituted Board of Directors, and that the Respondent has admitted the loan debt in his Witness Statement. He therefore contends that the Preliminary Objection is an afterthought brought in bad faith to delay the determination of the matter and should be dismissed with costs. 4. The Applicant did not file any response. 5. The Preliminary Objection was to be canvased by way of written submissions and none of the parties filed submissions. ANALYSIS 6. This Tribunal has considered the Application, and the response of the Claimant. The question that this Tribunal has to answer is whether the Preliminary Objection is merited and whether the Claimant lacks locus to institute the Claim because neither has it constituted a Board of Directors and neither are its officials members of the Sacco. TRIBUNAL CASE NO. E711 OF 2025 7. The purpose and character of a preliminary objection was well discussed by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696. The court laid down the principles as to what constitutes a preliminary objection. A preliminary objection to be valid must be on a point of law and must be founded on facts that are not in dispute. If evidence would require to be adduced to establish the facts, then a preliminary objection would not be sustainable. 8. The Court of Appeal considered the meaning and scope of locus standi in the case of Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR) where it stated: The Black’s Law Dictionary, 9th Edition (page 1026) defines locus standi as “the right to bring an action or to be heard in a given forum”. This Court in Alfred Njau and Others vs. City Council of Nairobi [1982] KAR 229 held that: “The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”. TRIBUNAL CASE NO. E711 OF 2025 9. Locus is therefore a pure point of that need not be established through evidence adduced through facts. It is either that one has locus or they do not have. If one has no locus, the Claim instituted by them cannot stand. 10. Having established that this application falls within the ambit of a Preliminary Objection, this Tribunal will them consider what would give the Claimant locus, and whether that is present. 11. In the Claim, the Claimants describe themselves as a registered society under the Co-operative Societies Act, CAP 490. In the Statement of Defence, the Respondent indeed admits that the Claimant is a registered society under the Co-operative Societies Act. Since its nature is not disputed, the question is whether such a body would have locus in such a case. 12. Section 12 of the Co-operative Societies Act, provides that; Upon registration, every society shall become a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold movable and immovable property of every description, to enter into contracts, to sue and be sued and to do all things necessary for the TRIBUNAL CASE NO. E711 OF 2025 purpose of, or in accordance with, its by-laws. (Underline ours) 13. Flowing from the above case, we find that the claimant being a registered Co-operative Society has locus to institute the Claim by virtue of Section 12 of the Co-operative Societies Act. 14. Accordingly, the Preliminary Objection dated 17th March 2026 is found to be without merit and the same is hereby dismissed with costs to the Claimant. Ruling dated and delivered virtually at Nairobi this 16th day of July, 2026. Hon. J. Mwatsama Chairperson Signed 16/7/2026 Hon. B. Sawe Member Signed 16/7/2026 Hon. Fridah Lotuiya Member Signed 16/7/2026 Hon. M. Chesikaw Member Signed 16/7/2026 Hon. P. Aol Member Signed 16/7/2026 Court Assistant – J. Koki Paul Ngugi – Claimant Gala & Co. Advocates for the Respondent – No appearance TRIBUNAL CASE NO. E711 OF 2025 Hon. J. Mwatsama Chairperson Signed 16/7/2026 TRIBUNAL CASE NO. E711 OF 2025