[2023] KECPT 821 (KLR)

Mutanda & 2 others v Commissioner of Coop.Development & another (Miscellaneous Application E008 of 2022) [2023] KECPT 821 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 821 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Miscellaneous Application E008 of 2022

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

August 31, 2023

IN THE MATTER OF SECTION 27 & 28 OF LIMITATIONS OF ACTIONS ACT CHAPTER 22 OF LAWS OF KENYA IN THE MATTER OF COOPERATIVE ACT OF KENYA CHAPTER 490 OF 2012 LAWS OF KENYA

Between

Petronila Mutanda

1st Applicant

Rachel Nafula

2nd Applicant

George Mubweka

3rd Applicant

and

Commissioner of Coop.Development

1st Respondent

Faridi Housing Coop.Society Limited

2nd Respondent

Ruling

1. The present Application is brought vide originating Summons filed on 10/06/2022 and filed on 13/06/2022 under Certificate of Urgency filed on the same dates. The Application sought the following orders:i.Spentii.That the Honorable Tribunal be pleased to grant an ex-parte temporary injunction restraining the Respondents from executing the Surcharge order of the 1st Respondent as decree of this court against the Applicants pending inter-parties hearing of this Application.iii.That the Honorable Tribunal be pleased to grant an injunction restraining the Respondents from executing the Surcharge orders of the 1st Respondents from executing the Surcharge orders of the 1st Respondent as decree of this court against the Applicants pending the hearing of the intended Appeal.iv.That the Honorable Tribunal be pleased to grant an injunction restraining the Respondents from executing the Surcharge orders of the 1st Respondent as a decree of this court against the Applicant pending the hearing of the intended appeal.v.That leave be granted to the Applicants to file an Appeal against the 1st Respondent’s Surcharge order after the limitation period.vi.That the Honorable Tribunal be pleased to Order the Respondent to share with the Applicants and the Court, the impugned inquiry order, intention to surcharge and proceedings of 21/09/2021 to enable the Applicants successfully lodge the intended appeal against the 1st Respondent’s Surcharge Orders.vii.That the Honorable Tribunal be pleased to order the 2nd Respondent to share with the Applicants and the courts the minutes of the impugned general meeting adopting the 1st Respondent’s inquiry Report and the minutes of the impugned Special General Meeting of 31st July, 2021 to enable the Applicants to successfully lodge the intended appeal against the 1st Respondent’s Surcharge.viii.That costs of this Application abide the results of the intended appeal.

2. Parties were directed to dispense the Application through Written Submissions orders which both parties complied with.

Determination And Analysis. 3. After perusing all the pleadings and the Written Submissions, it’s the Tribunal’s opinion that the following are the issues to be determined.i.Whether a grant of injunction should be issued.ii.Whether leave should be granted to the Applicants to file appeal out of time.

Issue One.Whether A Grant Of Injunction Should Be Issued. 4. The established principles on grant of injunction are called out in the landmark case of Giella v Cassman Brown [1974] EA 358. The principles are as follows:a.An applicant must show a prima facie case with a probability of success.b.An applicant, if the injunction is not granted, will suffer irreparable injury which would not adequately be compensated by an award of damages.c.If the court is in doubt, it will decide an application on the balance of convenience.We will look at the three principles.

5. On the principle of prima facie case, the Applicant avers that they were condemned unheard and denied the opportunity to defend themselves. They further averred that they were highly prejudiced by the Respondent who declined to serve the mandatory documents. It is the Tribunal’s view that the matters raised fall under administrative duties and decisions. This falls under the purview of Judicial Review in Republic versus NLC ex parte Krystalline Salt, held that “Judicial review is available where a public body or Tribunal has acted illegally, unreasonably or failed to comply with rules of natural justice.”

6. Our view is therefore that it lacks jurisdiction thus the Applicant lacks a prima facie case with a probability of success.It will not be necessary to discuss the other principles since all have to be answered in the affirmative for injunctive orders to be granted.

ISSUE TWO.Whether Leave Should Be Granted To The Applicants To File Appeal Out Of Time. 7. The Co-operative Societies Act gives a thirty-day period for filing an appeal against a surcharge order. It does not have any provision that allows for extension of time. However, the Tribunal is inclined to look at what superior courts have held; in Thuita Mwangi v Kenya Airways Limited [2003] eKLR, the courts culled out principles that may be considered when giving leave for enlargement of time. The principles include: the reason for delay, degree of prejudice which could be suffered by parties if extension is granted, importance of compliance with time limits to the particular litigation issue, arguability if the Appeal, effect if any on administration of justice on public interest if any is involved.Look at the reason for delay, the Applicants rely on Rule 8(3) of Cooperative Tribunal (Practice and Procedure) Rules that indicate that the record of appeal shall contain Memorandum of Appeal, Inquiry Order, Inquiry and/or Inspection Report, Minutes of the General Meeting whose decision is appealed against. The rules were coined in mandatory terms evidenced by the word shall. In Judicial Review 703 of 2017, the court held that the word shall is mandatory in nature. Therefore, the Applicant’s reason for delay due to lack of required documents for filing of the appeal, is not acceptable since the Applicants were committee members and were aware of the Inquiry proceedings. The 1st Claimant confirmed receipt under letter dated 9/8/2021 (GS6) and requested for a meeting on 21/9/2021 for a fair hearing and hence cannot state that they were not accorded an opportunity to defend themselves before inquiry was conducted.

8. That the Applicants were duly served with the Notices of Intention to Surcharge and Notice to Surcharge (GS6) but they still delayed the filing of the Appeal within the stipulated period.We note that the Applicants participated in the Inquiry, they received the notices in good time and they were aware that they were required to file their Appeal within the stipulated period.

9. The Surcharge Order is dated 6/4/2022 and 19/4/2022, the Applicants were aware of the Inquiry and being former officials, should have kept track of the process for the purposes of accountability. The last date for filing the appeal was 18/5/2022. They filed this Application on 13/6/2022. Though the delay was not inordinate, we find that the Cooperative Societies Act Section 73 is crafted in mandatory terms.

10. The 2nd Respondent herein is the Cooperative Society which was affected with the misappropriation of the funds of its members. We note that the management should have carried the business of the Society in a diligent manner as provided under Section 28 Cooperative Societies Act. The Applicants were aware of the proceedings that were ongoing (inquiry) hence cannot claim not to have been aware of the conclusion of the same.In the circumstance, we find that the Application lacks merit and is accordingly dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHOpiyo advocate for ApplicantNo appearance for Respondent