[2023] KEHC 25352 (KLR)

Mutindwa Farmers Co-operative Society Limited v Iriga Famers Society & 2 others (Civil Appeal 594 of 2018) [2023] KEHC 25352 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25352 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 594 of 2018

AN Ongeri, J

November 17, 2023

Between

Mutindwa Farmers Co-operative Society Limited

Appellant

and

Iriga Famers Society

1st Respondent

Kiriani Farmers Society Ltd

2nd Respondent

Co-Operative Society

3rd Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated January 3, 2019 brought under section 79G of the Civil Procedure Act chapter 21 laws of Kenya, section 81 of the Co-operative Act No 12 of 1997, and 51 rule 1 of the Civil Procedure Rules, rule 6 of the Co-operative Tribunal (Practice and Procedure) Rules 2009seeking the following ordersi.The honourable court be pleased to strike out the Memorandum of appeal dated December 18, 2018. ii.In the alternative and without prejudice to prayer (1) herein, the honourable court be pleased to strike out grounds 1, 2, 3, 4, 5, 11, 12 and 13 of the Memorandum of Appeal dated December 18, 2018. iii.The cost of this application be borne by the appellant herein.

2. The application is based on the following grounds;i.The appellant has filed one appeal in respect of two rulings delivered on 6th June and November 19, 2017. ii.The appeal in respect of the ruling delivered on June 6, 2017 is time-barred and contrary to section 81 of the Co-operative Societies Act having been filed on December 18, 2018. iii.The said appeal has been filed over eighteen (18) months out of time.iv.The appellant did not seek leave to file the appeal out of time.v.The court does not have jurisdiction to hear the said appeal.vi.The appellant’s Memorandum of Appeal is bad in law, substance and form as it seeks to challenge two decisions of the honourable Co-operative tribunal made on diverse dates and on different issues.vii.It is in the best interest of justice that the prayers sought herein are granted.

3. The appellant filed a Replying Affidavit sworn on September 29, 2023 in opposition to the application and disposed that a party who wishes to file an appeal of the decision of the tribunal has a right to appeal to the high court. The intended appellant is required to file an appeal within 30 days from the date of the decision.

4. The appeal in respect to the ruling delivered on June 6, 2017 has been filed 18 months out of time and without the leave of court. the appeal is statute barred and the court has no jurisdiction to hear and determine the appeal in respect of the ruling. A clear look at the memorandum of appeal is an afterthought and has no legal basis and lacks color of merit.

5. The 1st and 2nd respondents did not file any submissions.

6. The 3rd respondent and the appellant filed rival submissions as follows; the 3rd respondent submitted that the present Appeal is time-barred having been filed grossly late beyond the legally acceptable timelines and the court ought not entertain it any further by dint of the express provisions of section 81 of the Co-operatives Societies Act, section 79G of the Civil Procedure Act.

7. Section 81(1) of the Co-operatives Societies Act provides as follows:Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court:Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.Rule 6 of the Co-operatives Tribunal (Practice and Procedure) Rules, 2009 provides as follows:The provisions of the Civil Procedure Rules (Cap 21, Sub Leg) shall apply in respect of the proceedings of the Tribunal.

8. Section 79G of the Civil Procedure Act, cap 21 Laws of Kenya provides as follows:Time for filing appeals from subordinate courtsEvery appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

9. The 3rd respondent argued that appellant’s right of appeal only lies where the law specifically provides for such right to accrue and where no such right is automatic. The right of appeal is conferred by statute and cannot be inferred. Like any party seeking to appeal the decision of the Co-operatives Tribunal, the appellant should have first obtained leave of court to extend time.

10. That further an issue of time limitation goes to the jurisdiction of the Court. This Court is clothed with appellate jurisdiction solely under the provisions of section 81 of cap 490 which the appellant has violated. Therefore, this court does not have sufficient jurisdiction to entertain the various grounds of Appeal filed in respect of the ruling delivered on June 6, 2017.

11. The appellants on the other hand submitted that the application herein should be dismissed for being an abuse of court process because the application is sworn by a stranger. Mr. Ndegwa is neither the Chairman, Deputy Chairman, Treasurer, Secretary or a Board of Director of the committee. The 2nd respondent’s advocate further confessed to the court on October 3, 2023 that the officials were changed and they have not been able to access the new officials, he nevertheless supports the application by the 3rd applicant’s and associates himself with their submissions.

12. The appellants further submitted that article 41 of the Constitution, it need not be belabored that a cause of action against a Constitutional right arises on a daily basis as long as that right is infringed and cannot be barred by time. That the court should invoke its supervisory powers and determine for itself if the matters the Tribunal seeks to spend precious judicial time upon have been barred by statute and/or abated and proceed in the interest of justice instead of being fettered by procedural technicalities which are denounced under article 159 of the Constitution.

13. The issues for determination are:i.Whether the appeal should be struck off.ii.Whether the memorandum of appeal is statute time barred.

14. On the issue as to whether this appeal should be struck out, I find that the 3rd respondent submitted that the appeal was filed out of time.

15. I find that the said issue is one to be canvassed during the appeal.

16. On the issue as to whether the appeal is statute barred, again I find that the same can be canvassed during the appeal.

17. I find that striking out of a case no matter how hopeless should be the last resort of the court.

18. In the case ofStecol Corporation Limited v Susan Awuor Mudemb [2021] eKLR the court held as follows;“In Kamlesh Mansukhalal Damki PatnivsDirector of Public Prosecution & 3others [2015]eKLR, the Court of Appeal articulated that:“It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint.”

19. I dismiss the application dated January 31, 2015 and direct that the parties file their submissions for determination of the main appeal.

20. The costs of the application to abide the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ……………………….A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent……………………………..for the 3rd Respondent