[2013] KEHC 5252 (KLR)
The High Court determined that it lacked jurisdiction to hear the dispute as it concerned the business of a co-operative society and should have been referred to the Co-operative Tribunal in accordance with Section 76 of the Co-operative Societies Act. Furthermore, the plaintiff lacked the legal capacity to...
Source-derived case information.
- Citation
- [2013] KEHC 5252 (KLR)
- Parties
- Plaintiff: Margaret Musaga Winda; Defendant: Booker Washingtone Bonyo; Defendant: Lolwe Housing Co-operative Society Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 78 of 2012
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit dismissed with costs
- Legal Topics
- Jurisdiction of Courts, Capacity to Sue, Cooperative Societies Disputes, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Musaga Winda
Plaintiff
Booker Washingtone Bonyo
Defendant
Lolwe Housing Co-operative Society Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear a dispute involving a co-operative society member or their estate, or if such disputes must be referred to the Co-operative Tribunal.
- 2 Whether the plaintiff has legal capacity to sue on behalf of the estate of the deceased without letters of administration.
Ratio Decidendi
The High Court determined that it lacked jurisdiction to hear the dispute as it concerned the business of a co-operative society and should have been referred to the Co-operative Tribunal in accordance with Section 76 of the Co-operative Societies Act. Furthermore, the plaintiff lacked the legal capacity to institute the suit on behalf of the deceased's estate as she had not obtained letters of administration. Both grounds of the preliminary objection were upheld, resulting in the dismissal of the suit with costs.
Court Disposition
preliminary objection upheld; suit dismissed with costs
Orders
- The preliminary objection is upheld.
- The suit is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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MARGARET MUSAGA WINDA.........................................................PLAINTIFF
VERSUS
BOOKER WASHINGTONE BONYO...................................1ST DEFENDANT
LOLWE HOUSING CO-OPERATIVE SOCIETY LTD.......2ND DEFENDANT
R U L I N G
This is a ruling on a Preliminary objection argued here on 17/12/2012 and whose notice was filed on 19/11/2012 and dated 16/11/2012.
The thrust of the preliminary Objection is two-pronged viz:
The Court lacks jurisdiction to hear and determine the suit, the same being a matter for co-operative tribunal.
The plaintiff lacks capacity to sue on behalf of the estate of the late GEORGE HABAKUK WINDA as she has not yet taken out letters of administration.
During hearing of the Preliminary Objection on 17/12/2012 Awino for respondent/2nd defendant reiterated the points put forward in the notice.
In reply, the applicant, Margaret Musanga, said she appeared before the 2nd respondent many times and was even given a letter telling her to take the matter wherever she wanted. She then changed immediately to say she was actually not given a letter to that effect BUT was actually told verbally to go wherever she wanted.
On the issue of Letters of Administration, she said she had applied for them BUT she was YET to get them.
To the Court, it is plain that it is a matter for Co-operative Tribunal. The applicant is bringing the matter on behalf of her late husband –GEORGE HABAKUK WINDA.
George is said to have been a member of the 2nd defendant/respondent. Section 76 of the CO-OPERATIVE SOCIETIES ACT (AMENDED) 2004 in the relevant part states as follows S.76(1) (b).
If any dispute concerning the business of a Co-operative society arises:
between members, past members, or deceased members, and the Society, its Committee, or any officer of the society, it shall be referred to the tribunal.
Its dispute is between a person acts on behalf of a deceased member and the 2nd defendant/respondent. That person then should be deemed to be a member. The matter then should be filed at the Co-operative Tribunal, not here. The Court agrees with Counsel for the 2nd respondent/defendant that the matter is wrongly here.
It is not enough for the applicant to say that the second respondent told him to go wherever she wanted. The 2nd respondent does not run the co-operative tribunal. She should have taken the matter to the tribunal.
There is also the other consideration namely: purporting to acting on behalf of the deceased – George Habakuk – without letters of administration. This is something that the law does not allow. This court cant allow it and, again, Awino's argument is upheld.
The upshot is that the preliminary Objection is upheld and the suit is hereby dismissed with costs.
A.K. KANIARU
JUDGE
28/1/2013
A.K. Kaniaru – Judge
Dianga – Court Clerk
Plaintiff/Applicant – Present
1st Defendant/Respondents – Absent
2nd defendant – Present through Konga Edward
Awino for 2nd defendant/Respondent
COURT:Ruling on Preliminary Objection raised here on 17/12/2012 read and delivered in open Court.
Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
28/1/2013
AKA/va.