[2021] KECPT 515 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.302 OF 2019

METHODIST SAVINGS &

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

VERSUS

PANGANI AUCTION CENTRE...............................................1ST RESPONDENT

BERNARD NDUNG’U KIBERA................................................2ND RESPONDENT

ARISING FROM

METHODIST SAVING &

CREDIT CO-OPERATIVE SOCIETY LIMITED................................PLAINTIFF

VERSUS

BERNARD NDUNG’U KIBERA..........................................................DEFENDANT

RULING

1. The Application Notice of Motion dated 29. 1.2021 and filed on 2. 2.2021 seeking for orders:

a. Spent

b. That pending the hearing and determination of this application, a temporary order of injunction do issue restraining the 1st Respondent whether by themselves or their representatives, servants, agents, and/or assigns from howsoever transferring, selling, disposing of, offering for a sale by public auction or private treaty or alienating in any manner whatsoever the motor vehicle Registration Number KBP 026T ( the suit vehicle);

c. That pending the hearing and determination of this suit, an order of prohibitory injunction do issue restraining the 1st Respondent whether by themselves or their representatives, servants, agents, and/or assigns from howsoever transferring, selling, disposing of, offering for a sale by public auction or private treaty or alienating in any manner whatsoever the motor vehicle Registration Number KBP 026T ( the suit vehicle);

d. That the costs of this Application be awarded to the Applicant.

2. The Application was opposed by the 1st Respondent Pangani Auction Centre as it were via a Replying Affidavit dated 15. 2.2021 and filed on 16. 2.21.

There in, they stated the 1st Respondent is not party to the suit case No. 302 of 2019. Since no cause of action has been brought against it.

3. The Respondent further raised a Preliminary Objection in the paragraphs 12 and 13 of the Replying affidavit dated and stated the following:

a. That I am advised by our Advocates on record which advise I verily believe to be true that this Tribunal’s jurisdiction is only limited to issues relating to the constitution, registration and regulation of Co-operative Societies and we are not parties to the dispute as between the Plaintiff and Defendant so as to be subject to the Tribunal’s jurisdiction and the Tribunal has no jurisdiction to addresses matters arising from Disposal of Uncollected Goods Act;

b. That we hereby give notice that we shall be raising a Preliminary Objection on the Application before the court as well as this court’s competence to hear it.

4. The Ruling herein is restricted to the Preliminary Objection raised therein. Parties were directed to file submissions on the issue of the Preliminary Objection and 1st Respondent filed their submissions dated 24. 2.2021 on 8th March 2021.

And Claimant filed their submissions dated 24. 2.2021 on 26. 2.2021.

5. The issues that arise are as follows:

a. Whether Pangani Auction Centre is a party to this dispute;

b. Whether Pangani Auction Centre were correctly enjoined to the suit;

c. Whether the Tribunal has jurisdiction to determine the case against Pangani Auction Centre.

6. Issue 1:

Whether Pangani Auction Centre is a party to dispute;

The position is the parties to Tribunal case No. 302 of 2019 are Methodist Savings and Credit Co-operative Society – vs- Bernard Ndung’u Kibera.

We note that there has been no Application for any other party to be enjoined in the suit at whichever stage before the Application dated 29. 1.2021 was made. We are then tasked to ask ourselves how a party is enjoined in an existing suit.

7. How do parties get enjoined in suit?

Further, we take note judgment had already been entered in the suit herein, no party can be introduced in the suit after judgment.

Order 1 Rule 10 civil procedure Rules 28

(4) Blacks Laws Dictionary , 9th edition defines “ intervener” at page 897as:

“ one who voluntarily enters a pending law suit because of a personal stake in it”

An amicus on the other hand is defined in Black’s Law Dictionaryas

“ A person who is not a party to a law suit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong, interest in the subject matter.”

An Interested Party usually makes an Application before court to be enjoined in a suit.

Further the other parties can request for leave of court. To add a party to the suit and only then can a party be enjoined in a suit.

8. Issue 2:

Whether Pangani Auction Centre were correctly enjoined to the suit;

No leave was sought from the Tribunal for Pangani Auction Centre to be enjoined in the suit.

A mere mention of a “party” though connected to the parties of in the suit does not warrant adding and/or enjoining any party to a suit.

The correct procedure in adding a party to a suit has to be followed and none was followed in this instance.

9. Issue 3:

Whether the Tribunal has jurisdiction to determine the case against Pangani Auction Centre.

The Tribunal has jurisdiction to address any matter which touches on Co-operative Societies as envisaged in Section 76 Co-operative Societies Act (Cap 490).

The motor vehicle in question KBP 026T has been part of the subject matter of this case from the time the suit was filed and thus orders against it can be made.

However, since the motor vehicle is now under the custody of Pangani Auction Centre, the question would then be can the Tribunal issue orders against Pangani Auction Centre?

The answer to the above is in the affirmative. Not as a party to the suit but persons of interest with ”subject Matter” of an Application or suit.

The Tribunal does have jurisdiction of all matters which touch on Co-operatives party that is subject matter to it thus it can deal with matters of disposal of uncollected Goods if the subject matter of claim falls under it.

Thus, the Preliminary Objection succeeds to the extent.

1. Pangani Auction Centre are not party to the suit and orders cannot be issued against it as a party introduced after entry of judgment and leave not sought to them to be enjoined.

2. The motor vehicle KBP 026T being subject matter of the case herein is preserved pending hearing and determination of the case. Pangani Auction Centre is ordered against selling it.

3. Parties to comply with Order II Civil Procedure Rule within 30 days.

4. Mention on ..............

Ruling signed, dated and delivered virtually this 13th day of May, 2021.

Hon. B. Kimemia Chairperson Signed 6. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 6. 5.2021

Mr. P. Gichuki Member Signed 6. 5.2021

Tribunal Clerk Leweri