[2017] KEHC 42 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

PETITION NO. 8 OF 2015

(MUMIAS) SUKARI SACCO SOCIETY LTD..........OBJECTOR/RESPONDENT

VERSUS

PETER WAMBOYI SIDONGE...............................RESPONDENT/PETITIONER

RULING

(Notice of Preliminary Objection dated 13th April, 2016)

1. The Petitioner is Peter Wamboyi Sidonge. The Respondent is (Mumias) Sukari Society Ltd whereas as Remma Auctioneers is the Interested Party. This ruling answers the Respondent’s Notice of Preliminary Objection dated 13th April, 2016 but indicated to have been filed on the earlier date of 3rd April, 2016. The dating of the notice could be erroneous.

2. Through the said notice the Respondent raises objection to the Petitioner’s petition on the grounds that:-

“1. This matter is res judicata by virtue of the court’s decision in BUSIACMCC No. 426 of 2015.

2. This Court lacks jurisdiction to entertain this matter by virtue of theprovisions of Section 76 of the Co-operative Societies Act.

3. The petition is an abuse of the court process and is waste of Court’sjudicial time.

4. The petition does not disclose any rights being deprived and the Petitioner is only wrongly using this petition to avoid settling the Respondent’s Debt and in itself he is violating the very Constitution.”

3. What is the nature of the Petition before this Court? Through the Petition dated 9th December, 2015, the Petitioner informs the Court that the Respondent had moved, through the Interested Party, to attach his property in respect to a debt unknown to him. It is his case therefore that this is an abuse of his constitutional right to property as protected by Article 40 of the Constitution. He therefore seeks orders directing the Respondent to file any claim against him before a competent forum. He also seeks an order prohibiting the Respondent from attaching his property. Finally, he prays for a declaration of any law allowing the Respondent to attach his property void.

4. The Preliminary Objection before this Court has two grounds. Firstly, that this petition is res judicata as a similar claim that had been filed before Busia Chief Magistrate’s Court in Civil Case No. 426 of 2015 had been dismissed. Secondly, that this Court has no jurisdiction to entertain this matter as the same falls within the jurisdiction of the Tribunal established under the Co-operative Societies Act, Cap 490.

5. On the issue of res judicata, I note that none of the parties has exhibited the ruling of the Magistrate’s Court in Busia CMCC No. 426 of 2014 or is it Busia CMCC No. 326 of 2015? There is however agreement between the Applicant and the Petitioner that the said case was dismissed for want of jurisdiction by the Magistrate’s Court. In Tom Martins Kibisu v Republic [2014] eKLR, the Supreme Court at paragraphs 35 and 36 of its judgement condensed the doctrine of res judicata thus:

“Res judicata is a rule to restrain repetitive claims before Courts of concurrent jurisdiction. As a rule of finality to litigation, it bars a party from re-litigating concluded similar-issue claims, involving same parties and same subject matter, where a Court of competent jurisdiction has made a final determination…..

The rule applies to bar a party from re-instituting a claim that had previously been determined before a Court of concurrent jurisdiction. However, it does not stop such a party from lodging an appeal to a higher Court.”

The doctrine of res judicata is thus not available here as the matter has not been determined on merit by a Court of competent jurisdiction.

6. The remaining question is whether this is a matter that should have been taken before the Co-operative Tribunal established by Section 77 of the Co-operative Societies Act, Cap. 490 (“the Act”).

7. The Petitioner filed a reply dated 3rd May, 2016 in which he opposes the Preliminary Objection on the ground that his is about breach of constitutional rights as he is not aware of any loan he owes to the Respondent.

8. Section 76(1) of the Act provides the jurisdiction of the Co-operative Tribunal as follows:-

“(1) If any dispute concerning the business of a co-operative society arises-

(a) among members, past members and persons claiming through members, past members and deceased members; or

(b) between members, past members or deceased members, and the society, its Committee or any officer of the society; or

(c) between the society and any other co-operative society, it shall be referred to the Tribunal.”

9. Sub-section 2 clarifies what a dispute means by providing that:-

“(2) A dispute for the purpose of this section shall include -

(a) a claim by a co-operative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or

(b) a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt or demand is admitted or not;

(c) a claim by a Sacco society against a refusal to grant or a revocation of licence or any other due, from the Authority. [Act No. 2 of 2004, s. 35, Act No. 14 of 2008, s. 71. ].”

10. From the pleadings filed in Court, it is clear that the Respondent alleges that the Petitioner owes it some money and has even gone ahead to engage an auctioneer (the Interested Party) to attach and auction the Petitioner’s property. The Petitioner says he is not aware of such a debt. This is indeed a dispute that requires the expertise of the Co-operative Tribunal.

11. There is no dispute that the Petitioner is a member of the Respondent as defined by Section 2 of the Act. Nothing would have been easier than for the Petitioner to approach the Co-operative Tribunal and seek the necessary reliefs.

12. This case like every other case may have an element of breach of the Constitution but not every alleged breach of the Constitution must be resolved through a constitutional petition. The laws of this country have provided several avenues for resolving disputes one of them being the Co-operative Tribunal. It would therefore amount to an abuse of process for this Court to latch onto a dispute whose resolution an avenue has been clearly provided by the law.

13. In short, I agree with the Respondent/Objector that this is not a matter for consideration by this Court. The Preliminary Objection is upheld and the Petitioner’s petition is dismissed.

14. The Respondent/Objector will have the costs of these proceedings from the Petitioner/Respondent.

Dated, signed and delivered at Busia this 9th day of March, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT