[2024] KECPT 214 (KLR)

Maingi v Maingi & 3 others (Tribunal Case 315/ E 107 of 2021) [2024] KECPT 214 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 214 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 315/ E 107 of 2021

BM Kimemia, Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

March 7, 2024

Between

Michael Mutunga Maingi

Claimant

and

Francis Ndolo Maingi

1st Respondent

Jones Musembi Maingi

2nd Respondent

James Mbungi Maingi

3rd Respondent

Innocentus Kyalo Maingi

4th Respondent

Ruling

1. The issue for determination is the Respondents’ Notice of Preliminary Objection dated 9th January, 2023; filed on 1st February, 2023.

2. The grounds of the objection are that: -1. This Honorable Tribunal lacks jurisdiction to hear and determine the Claimant’s suit herein as drawn and filed.2. That the High Court at Nairobi in Succession Cause No. 1515 of 2009 has already made a determination on the same issues brought before this Honorable Tribunal in the Claimant’s suit.3. That the Claimant’s suit herein is frivolous, vexatious and an abuse of the Court process and should be expunged from this Tribunal record with costs.

3. The parties canvassed the Notice by way of Written Submissions. The Respondents’ Submissions dated 9th June, 2023 were filed on 15th June, 2023, while the Claimant’s Submissions dated 15th June, 2023.

4. The only issue for determination herein is Jurisdiction. To determine the issue of whether or not this Tribunal has jurisdiction to hear and determine the Claimant’s suit against the Respondent, we must look at the nature of claim as stated in the Statement of Claim.

5. As per the Plaint, the issue in dispute relates to alleged “Fraudulent Liquidation of nominees and/ or ownership of share no. 5 issued in the name of Paul Maingi Kathukya by Komarock Housing Co-operative Society Limited and the unlawful sharing of the proceeds and/ or plot allocations issued under the said share without involving other beneficiaries. Further, it is stated that upon the demise of the deceased, the court appointed Francis Ndolo and Patrick Kirwa the Administrators of the estate of the deceased Paul Maingi Kathukya, the registered member number 5 Komarock Housing Co-operative Society Limited; that the Respondents were unlawfully nominated under share No. 5 to as trustees to represent all the other beneficiaries of the estate and the same was done without involving all beneficiaries of the estate….”

6. In short, the Claim herein appeared out of alleged disputes between nominees under the membership of the deceased and the beneficiaries/ Administrators of the estate of the deceased.

7. From the facts stated in the Statement of Claim and the nature of prayers sought, the dispute herein is a succession dispute and is not properly before the Tribunal as a dispute as would be expected under the provisions of Section 76 of the Co-operative Societies Act 2005. We distinguish between res judicata and the capacity or lack thereof, of the Tribunal to entertain all the dispute before it due to the nature thereof.

8. The Claimant’s remedy therefore lies elsewhere. We agree with the Respondents though they have, in their Submissions, delved unnecessarily on the Jurisdiction and supervisory role of the high court; that this Tribunal lacks jurisdiction to hear and determine the Claim herein.

9. Consequently, we find that the Notice of Preliminary Objection dated 9th January, is merited and we allow the same and strike out the Statement of Claim with costs to the Respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahAshiruma advocate for RespondentMusyimi advocate for ClaimantHon. Beatrice Kimemia Chairperson Signed 7. 3.2024