[2025] KECPT 279 (KLR)

Muriuki v Idakho Sacco Limited and another & another (Tribunal Case Miscellaneous 1 of 2017) [2025] KECPT 279 (KLR) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 279 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case Miscellaneous 1 of 2017

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

April 29, 2025

Between

Peris Wangu Muriuki

Claimant

and

Idakho Sacco Limited and another

1st Respondent

Cooperative Bank of Kenya Limited

2nd Respondent

Ruling

1. The matter for determination is a Miscellaneous claim brought under Notice of Motion dated 06/01/2024 filed on 07/01/2025. The Application is brought under Section 76(1) C 77, 78, 79 and 87 Cooperative Society Act, Rule 6. Cooperative Tribunal (Practice and Procedure) Rules, Section 1A, 3, 3B of Civil Procedure Act Section 21, 51, Rule 1 Civil Procedure Rule 2010 and all other enabling statutes.The Application seeks for orders:i.Spentii.That the Honorable Court be pleased to issue an Order directing the refund of the entire sum of Kshs. 56,800 which is unlawfully retained by the 1st Respondent in their bank account held with the 2nd Respondent.iii.That any other remedy the Honorable Court may seem fit be provided foriv.That cost of this suit be provided for

2. The Application is supported by Affidavit of Peris Wangu Muriuki sworn on 05/01/2025 to which she avers she was member of B.A.T Sacco and has been making deposits to the said account.She avers on 23/12/2024 Applicant made an error in payment of her B.A.T Sacco membership contribution of Kshs. 56,800/= into the 1st Respondent account. The Pay Bill Business No. 400222 where the Claimant inadvertently entered Account No. 44610 instead of Account No. 446110. Applicant avers she has tried getting a reversal but to no avail from 1st and 2nd Respondent.Th refusal by the Respondent’s constitute an act of unjust enrichment at her expense and her prayers are for Orders directing the Respondent to refund Kshs. 56,800/=.

3. The 2nd Respondent filed a Preliminary Objection dated 04/02/2025 on grounds of jurisdiction that:a.That this Honorable Tribunal lacks the Jurisdiction to entertain hear and determine the Claimant’s Application and/or suit therewith to the extent that it relates to or is against the 2nd Respondentb.That the 2nd Respondent is improperly joined to the Claimant’s said Application and/or suitThe 1st Respondent did not file any response to the Application.The Applicant filed Written Submissions dated 28/02/2025. Applicant submitted that Section 76 of Cooperative Societies Act outlines the specific authority and scope of The Tribunal and types of dispute to deal with. They are convinced the Tribunal has jurisdiction on the light of Claimant being an active member of B.A.T Sacco and erroneously depositing money in a different account of Idakho Sacco…Applicant stated the resistance to jurisdiction by 2nd Respondent is misplaced and untenable.Further on issue of 2nd Respondent, The Applicant avers they rely on “Doctrine of Necessary Parties” dictating it is essential to the effective resolution of the dispute as 2nd Respondent holds an obligation impacting the rights of the ApplicantLastly the Preliminary Objection by 2nd Respondent is an attempt to evade the responsibility of their role in disputes.As such the issue for determination before we look into the merit of the case is whether The Tribunal has jurisdiction to entertain the Application.The 2nd Respondent revised issue of jurisdiction on its part. The Applicant has opposed the same via its Written Submissions dated 28/02/2025. Both relied on Cooperative Society Act Cap 490 to convince us of the jurisdiction.However, from the two vital points we differ in the interpretation of Section 76 Cooperative Society Act with the Applicant.When the Act talks of Section 76(1)b … dispute between members, past members or deceased members and the society, its committee or any officer of the society or between the Society and any other Co-operative Society, it shall be referred to the Tribunal.To this section the Act envisaged the member being in the same society that a dispute arises.It cannot be for a member of a different society suing another society.This cannot workSubject matter jurisdiction [Jurisdiction ratione materiae] personal jurisdiction [Jurisdiction "ratione personae] and temporal jurisdiction [Jurisdiction ratione temporis] to proceed with any claim or petition.In the case ofOwners of Motor Vessel “Lillians” Vs Caltex Oil (Kenya) Ltd [1989] KLR 1Ngarangi, JA at Page 14“I think it is reasonably plain that a question of jurisdiction ought to be revised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it.Jurisdiction is everything; without it, a court has no power to move one more step.”

4. Looking into the Preliminary Objection raised by the 2nd Respondent the Applicant and 2nd Respondent indeed have no relations.Jurisdiction is the authority, commander power. The right to govern and determine a case as it were.Commercial Case E003 of 2023 – Mombasa Jelan Athman Abayere Mohammed Vs Mohammed Omar Abayere and 10 others Justice Magare quoted in Paragraph 4 of the ruling.Sheila Munubi Vs Adah Onyango & another (202) eKLR Justice Rina stated as follows:On jurisdiction a court must always be satisfied that it has the Jurisdiction therefore flows from the law. The guiding law for Cooperative Tribunal is the Cooperative Societies Act Cap 490 Section 76 Cooperative Societies Act Cap 490 provides for the disputes which Tribunal handles which include“Section 76 of the Co-operative Societies Act Provides 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; orb.Between members, past members or deceased members, and the society, its committee or any officer of the society; orc.Between the Society and any other Co-operative Society, it shall be referred to the Tribunal.2. a dispute for the purposes 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; orb.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.”Form a casual look we note the Applicant and Respondent have no relation in terms of Section 76(1) a-c.The Applicant is not a member of 1st Respondent nor is she a part member. There is no nexus therefore between Applicant and Respondent if at all.

5. The 2nd Respondent has rightly put up a Preliminary Objection and indeed they also do not fall under the ambit of Section 76 Cooperative Society Act.What more do we say.Without much further ado, we have already established that indeed the Applicant and 1st Respondent have no relation and the Application cannot be entertained by The Tribunal.

UpshotThe Preliminary Objection dated 04/02/2025 is found to be with merit.The Tribunal is found to be without jurisdiction and we down our tools.Miscellaneous Application is therefore dismissed. File ordered as closed.

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. 4.2025HON. P. AOL - MEMBER SIGNED 29. 4.2025Tribunal Clerk JemimahApplicant - Maina advocateRespondent- Kalonzo for 2nd Respondent.HON. B. KIMEMIA - CHAIRPERSON SIGNED 29. 4.2025