[2025] KECPT 251 (KLR)

Mawira & 3 others v Mbuya & 4 others; Nairobi Tuk Tuk Sacco Soc. Ltd & another (Interested Parties) (Tribunal Case 969/E694 of 2023) [2025] KECPT 251 (KLR) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 251 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 969/E694 of 2023

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members

April 29, 2025

Between

Kenneth Mawira

1st Claimant

Simon Mwangi

2nd Claimant

Paul Thuku

3rd Claimant

Gideon Kamau

4th Claimant

and

Edward Mbuya

1st Respondent

Samuel Ngigi

2nd Respondent

Peter Mburu

3rd Respondent

Boniface Wambua

4th Respondent

Simon Mwangi

5th Respondent

and

Nairobi Tuk Tuk Sacco Soc. Ltd

Interested Party

Commissioner of Co-operative Societies

Interested Party

Ruling

1. This ruling dispenses with the Preliminary Objection dated 1st August 2024 in which the 1st to 4th Respondent has raised an objection on the ground that the 1st Interested party does not exist. Further that the Claimants are not members of Nairobi Tuk Tuk Owners Sacco Ltd and hence not entitled to any rights accruing to members. The preliminary objection also raises the issue that the Claimants are not members of Nairobi TukTuk Owners Ltd (sic) and are not, therefore, entitled to any right accruing to members.

2. The Claimants filed grounds of opposition dated 11th September 2014. In opposing the Preliminary Objection, the Claimants aver that the grounds raised do not suffice to warrant a Preliminary Objection as the same are issues of fact and not purely of law.

3. The Application was canvassed by way of written submissions and only the 1st to 4th Respondents filed submissions.

4. In their submissions, 1st-4th Respondents argued that the preliminary objection is merited because the 1st Interested party does not exist and orders against it will be in vain. That they filed this Preliminary Objection in 2024 and yet the Claimant has not rectified the defect. They directed this court to look at the certificate of registration which bears the name Nairobi Tuk Tuk Owners Sacco Society Ltd and not Nairobi Tuk Tuk Sacco Society Ltd. They also submitted that the CooperativeSocieties Act, at section 14, as well as Rule 14(vi) of the by laws of Nairobi Tuk Tuk Owners Sacco Ltd, bar the claimants from being members of Nairobi Tuk Tuk Owners Sacco Society. They challenge the Claimants to provide evidence of ownership of Tuk Tuk complete with NTSA licenses and approvals.

5. This Tribunal has taken note of the P.O raised by the 1st -4th Respondent. It has also noted the submissions of the 1st to 4th Respondent, as well as the grounds of opposition raised by the Claimants.

6. The question before this court is whether the P.O is merited.

7. The principles that the Court is enjoined to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. At page 700 Law JA stated:“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

8. In this case, the Preliminary Objection relates to the existence of the 1st Interested Party, Nairobi Tuk Tuk Sacco Society Ltd.

9. The Claimants, in their grounds of opposition, prayed this court to strike out the Preliminary Objection for reason that legal provisions on parties to a suit are found in Order 1 of the Civil Procedure Rule, and the same could remedy the issue in the Preliminary Objection.

10. Misjoinder and Non-joinder of parties is [Order 1, rule 9];No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.Substitution and addition of parties [Order 1, rule 10. ](2)The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

11. We are inclined to agree with the Claimants that if there is indeed a misjoinder of Nairobi Tuk Tuk Sacco Society Limited instead of Nairobi Tuk Tuk Owners Sacco Society Limited, the same should not be a fatal mistake to be disposed of by a preliminary objection. This court notes with concern that the Claimants are aware of the issue the 1st to 4th Respondents are raising yet they have not moved to make the necessary amendments. That said, we find that for this court to establish if indeed the 1st Interested party has been misjoined, it has to interrogate facts, to wit registration documents and membership registers. The second question would then be whether the Claimants are members of Nairobi Tuk Tuk Owners Sacco Society. In our view, these are not pure points of law to qualify as a Preliminary Objection. The question of nature of a cooperative society, membership and rights to a Cooperative Society is question of fact, unless the Preliminary Objection raised is on jurisdiction of this Tribunal, which in this case, it is not.

12. Flowing from above, the final orders are that the Notice of Preliminary Objection dated 1st August 2024 lacks merit and is hereby dismissed with costs.Mention for directions on 3. 6.2025

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 29. 4.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 4.2025HON. BEATRICE SAWE - MEMBER SIGNED 29. 4.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 4.2025HON. PHILIP GICHUKI - MEMBER SIGNED 29. 4.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 29. 4.2025Tribunal Clerk JemimahMburu advocate holding brief for Opiyo advocate for Claimant.Mbuthia advocate for Respondent