[2020] KECPT 16 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.739 OF 2019

KONZA RANCHING & FARMING

CO-OPERATIVE SOCIETY LIMITED..............................CLAIMANT

VERSUS

JOHN KIMEU MUINDI............................................1ST RESPONDENT

ROBERT NZUKI KAMETU...................................2ND RESPONDENT

PURITY MUTHEU MUTUA...................................3RD RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Originating Summons dated 3. 12. 2019. It seeks for Orders inter alia:

1. That the Honourable Court be pleased to hear this Application ex-parte in the first instance;

2. That the Honourable Court be pleased to Grant leave to the Applicant to file suit against the Respondents herein out of time;

3. That this Honourable Court be pleased to order that the statement of claim annexed to the Supporting Affidavit together with the respective documents in support of the suit be adopted as duly filled upon payment of the requisite fees; and

4. That the costs of this Application be in the cause.

The Application is supported by the grounds on its face and the following Affidavits:

a. Supporting Affidavit sworn by David M. Mutangili on 3. 12. 2019; and

b. Further Affidavit sworn by the said David M. Mutangili on 25. 8.2020.

The Respondents have opposed the Application by filing the following documents:

a. Statement of Grounds of Opposition dated 26. 2.2020;

b. Replying Affidavit sworn by the 1st Respondent on 10. 8. 2020; and

c. Notice of Preliminary Objection dated 10. 8.2020.

Vide the directions given on 27. 7.2020; the Application was canvassed by way of written submissions. The Claimant filed its submissions on 25. 8.2020 while the Respondents did so on 14. 9.2020.

Disposal of the Application and the Notice of Preliminary Objection

Since there exist a preliminary objection challenging our jurisdiction to entertain the Application, we will consider it first before we embark on the Application.

Preliminary Objection

Vide the Notice of Preliminary Objection dated 10. 8.2020, the 1st Respondent has challenged this Tribunal’s Jurisdiction to entertain the Application on the grounds that there is no legal basis for founding the said Application. That in terms of Section 27 of the Limitation of Action Act (Caps 22) Laws of Kenya, the Court has only power to extend time for filing suits in cases of tort and where the action is for negligence, nuisance of a breach of duty “ in respect of personal injuries of any person”. That the court in the case of Josphat Muchiri Rugano & Another – vs- County Government of Kirinyaga & Another [2017]eKLR confirmed this position in terms that;

“ The section clearly lays down the circumstances in which the court would have jurisdiction to extend time. The action must be founded on tort and must relate to a tort of negligence, nuisance, or breach of duty and the damages are in respect of personal injuries to the plaintiff as a result of the tort. The Section does not give jurisdiction to extend time for filing a suit in cases involving a contract or any other cause of action than those in fort.”

Further, the 1st Respondent contend that the Orders sought in the present Application do not comprise disputes envisaged under Section 76of the Co-operative Societies Act (Cap 490) Laws of Kenya.

Response to the Preliminary Objection

The Claimant has responded to the Preliminary Objection vide the further Affidavit sworn by David Mutangili on 25. 8.2020. That the Tribunal has Jurisdiction to entertain the Application as the subject matter of the dispute involves a dispute concerning the business of a registered society. That the 1st Respondent is a member of the Claimant and the 2nd and 3rd Respondents are claiming through him (1st Respondent). It cited the decision of the Court in the case of Charles Keragita Arwenya – vs- Nyakoe Farmers’ Co-operative Society Limited[2010]eKLR. Where the court held thus:

“ Section 76 of the Co-operative Societies Act provide that any dispute concerning the business of a Co-operative Society and arising among members of the society or between members and the society or its committee or any Officer of the Society shall be referred to the Co-operative Tribunal and under Section 81 (1) of the Act any Party aggrieved by the Order....”

Determination

The law relating to Preliminary Objections was aptly enunciated in the celebrated case of Mukisa Biscuit Manufacturing Company Limited- vs – West End Distributors Limited [1960] EA 69. At page 700, the Court held thus:

“...So far as I am aware, a Preliminary Objection consist of a point of law which has been pleaded, or which arise, by clear implication of the pleadings and which, if argued as a Preliminary point, will dispose off the suit.”

The court continued to hold (at Page 901) thus:

“...A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised it any fact has to be ascertained or if what is sought is the exercise of Judicial discretion.”

It follows therefore that for a Preliminary Objection to succeed, the same must consist of the following:

a. A point of law which has been pleaded or which arise by clear implication of pleadings; and

b. It is argued on the assumption that the facts pleaded by the other side are correct.

The 1st Respondent has raised Objections at two levels. Firstly, expressly vide the Notice of Preliminary Objection filed on 13. 8.2020 and impliedly vide his written submissions filed on 14. 9.2020. In the said submissions, the 1st Respondent contend that this Tribunal does not have power to extend time within which a party can file suit under Section 27 of the Limitations of Actions Act. Since the current Application is not seeking substantive Orders , we cannot make definitive findings on this Objection raised at submission stage. It is good material for objecting to the current Application being allowed. If we therefore overrule the 1st Respondent in the current Preliminary Objection (filed on 13. 8.2020) then we will consider his submissions on Limitation of Actions.

Coming to the substance of the current Preliminary Objection, the 1st Respondent has indicated to be founded under Section 76 of the Co-operative Societies Act (Cap 490) Laws of Kenya. Vide his written submissions, he quotes the said Section and goes ahead to submit thus:

“ From the foregoing provision of the law, the Orders sought in the subject Application do not comprise disputes envisaged therein. It is therefore our humble submission that the Orders sought cannot be granted and this Honourable Tribunal has no jurisdiction to entertain Application”.

We find the foregoing submission lacking in particulars as the 1st Respondent has not specifically stated the manner in which the Application offends Section 76 of (Cap 490). Is it the case that the Respondents are not members of the Claimant? This has not come out in the Preliminary Objection.

However, upon perusal of the averments made by David Mutangili vide his further Affidavit sworn on 28. 8.2020, it appears that the 2nd and 3rd Respondents are not members of the Claimant but are said to be claiming from the 1st Respondent.

As to whether or not the Respondents are members of the Claimant, evidence has to be tendered. This entails an elaborate process of fact finding which cannot be addressed and/or canvassed by way of a Preliminary Objection. In simple terms, we are saying that the Preliminary Objection dated 10. 8.2020 does not raise pure points of law and hereby dismiss it with no Orders as to costs.

Claimant’s Application

Having disallowed the 1st Respondent’s Preliminary Objection dated 10. 8.2020, we now consider the Claimant’s Application dated 3. 12. 2019. Vide the instant Application, the Claimant seeks for leave to file suit out of time based on the following reasons:

That it is the registered owner of parcel of land known as L.R.NO.1731/2/and 4938.

That the said property is held by the Claimant in trust for its members and following a resolution of its members passed at an Annual General Meeting held on 18. 12. 1999, the said properties were sub-divided into plots each measuring 2 acres. That subsequently, individual titles were processed.

That upon completion of the process of sub-division, the Claimant prepared ballot papers and invited members to ballot. That during balloting, each member was only required to pick one (1) ballot for one share. That however, the 1st Respondent acting in cahoots with the 2nd and 3rd Respondents, picked two (2) ballot papers (Nos. 213 and 214). That subsequently, the 1st Respondent proceeded to illegally and unlawfully install plot No. 213 to the 2nd and 3rd Respondents.

That upon realizing the anomaly, the Claimant’s Management Committee impressed upon the 1st Respondent to explain the circumstances under which he had picked the two ballot papers. That the 1st Respondent admitted that he had done so and agreed to surrender plot No. 213.

That due to the fact the 2nd and 3rd Respondents were already in occupation of the said plot the 1st Respondent requested to be allowed to return the two plots on the understanding that the Claimant would recover two (2) acres from his subsequent allocation of 10. 8 acres. That this meant that he was going to be entitled to 8. 8acres. That he swore an Affidavit to this effect. That subsequently, the 1st Respondent cunningly avoided to return the said two (2) acres.

That owing to this, the Claimant filed a suit at Machakos Chief Magistrate’s Court. That the suit would later be withdrawn for lack of jurisdiction. That further, 1st Respondent had lodged a complaint with the National Land Commission. That the Claimant has been unsuccessful in removing the 2nd and 3rd Respondents from plot No. 213.

1st Respondent’s Response

Vide the Replying Affidavit filed on 12. 8.2020, the 1st Respondent has opposed the Application on grounds thus:

That one Muyanga Mutwiri (deceased) was a member of the Claimant (Member No. 518). That during his lifetime, the said Muyanga Mutwiri sold his share/membership No. 518 to him in consideration of his two parcel of land No. Kalama/Kiitini/1269 8/289. That as a consequence, the deceased surrendered his original membership certificate to him.

That as at the time of the said Agreement, title deed for his parcels of land had not been issued and as such it was agreed between themselves that the transfer of the shares, (membership Number) in the Claimant would be done upon transfer of title deeds to the deceased. That he subsequently put the family of the deceased in occupation and use of the aforesaid parcels but the deceased died before the transfer of the membership (shares) by the Claimant could be done. That during allocation of land by the Claimant in the year, 2000, and owing to the fact that the Applicant knew of the aforesaid agreement, he was duly allocated two plots for membership numbers 408 and 518. That he did not therefore acquire the plots fraudulently.

That in light of the foregoing, the instant Application lacks basis and should be dismissed with costs.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant/Applicant has established a proper basis to warrant extension of time to file claim;

b. Who should meet the costs of the Application?

Extension of time

The limitation of Actions Act (Cap 22) Laws of Kenya provides for the time limit within which causes of action may be founded. The current Application involves an action for recovery of land. The Applicant wants an Order to be made for the recovery of plot No. 213 comprising L.R.NO.1731/2 and 4938. That the 1st Respondent fraudulently acquired the said plot in the year 2000. Section 7 of the Limitations of Actions Act provide in this regard thus:

“ An Action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him and if it first accrued to some person through whom he claims, to that person.”

Once a cause of action to recover land accrues and a period of 12 years has lapsed, then there is no room for extension of such time. However, if the cause of Action involve and/or relate to fraud or mistake, then under Section 26 of the Limitation of Action Act, such time can be extended. This was the holding in the case of Stephen Motari Isaboke-vs- Pariken Moko Parastun [2017] eKLR. In the pertinent part, the court held thus:

“ The legal framework for limitation of causes of action relating to recovery of land and land sale contracts is contained in section 4 (1) and Section 7 of the Limitation of Action Act..... The legal framework on extension of time within which to bring action in relation to certain causes of action is spelt out in Section 26 and 27 of the Limitation of Actions Act which provide as follows:

“26 Extension of Limitation period in cases of fraud, or mistake:

Where in the case of an action for which a period of limitation is prescribed, either-

(a) The action is based upon fraud of the defendant or his agent, or of any person through whom he claims or his agent

(b) The right of action is concealed by the fraud of any such person as aforesaid ....”

The court went further to hold thus:

“ My understanding of the above legal framework is that the court is empowered to extend limitation period in cases of fraud or Bonafide mistakes.....”

Taking cue from the holding of the court above, we note that the Applicant’s herein have proposed to found the instant claim on fraud. Paragraph 10 on the draft statement of claim states thus:

“ The Claimant avers that the 1st Respondent was required to pick one ballot paper for one share. However, for unknown reason to the Claimant the 1st Respondent acting in cahoots with the 2nd Respondent and 3rd Respondent who are not members of the Claimant fraudulently picked two ballot papers number 213 and 214. The Claimant Management Committee did not authorize or sanction the 1st Respondent to pick the two ballot papers.”

We thus find that we have jurisdiction under Section 26 of the Limitations of Action Act to extend time within which the Applicant can found a claim.

Having considered the reasons advanced for not filing the claim within time, we are satisfied that the Applicants have demonstrated effort to have the matter resolved through other avenues including civil courts to no avail.

Conclusion

The upshot of the foregoing is that we find merit in the Applicant’s Originating Summons dated 3. 12. 2019 and hereby allow it on terms of prayer 2.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER, 2020.

Hon. B. Kimemia Chairperson Signed 5. 11. 2020

Hon. F. Terer Deputy Chairman Signed 5. 11. 2020

Mr. P. Gichuki Member Signed 5. 11. 2020

Parties absent

Court Assistant Margaret

Hon. F. Terer Deputy Chairman Signed 5. 11. 2020