[2022] KEHC 3045 (KLR)

Mwalimu National Savings & Credit Co-Operative Society Limited v Mwambi (Civil Suit E113 of 2022) [2022] KEHC 3045 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3045 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E113 of 2022

JK Sergon, J

June 17, 2022

Between

Mwalimu National Savings & Credit Co-Operative Society Limited

Appellant

and

James Oirere Mwambi

Respondent

Ruling

1. The respondent/applicant herein has filed the Notice of Motion dated 10th March, 2022. The Summons is supported by the grounds set out on its face and the facts stated in the affidavit of the Alice Oeri and sought for the following orders:a.Spent.b.That the orders issued by Honourable Justice Sergon on 7th March granting stay of execution of the orders issued by the co-operative tribunal on 3rd March 2022 be set aside.c.That the interim orders issued by the C-operative Tribunal during the inter-parties hearing of the application dated 3rd March, 2022 to wit directing that the status quo be maintained in that the Claimant /applicant remains a delegate of the Nairobi Branch and a member of the board of directors of the respondent as he was, prior to the elections held at the respondents branch in Nairobi on 5th February, 2021 pending hearing and determination of the application be reinstated.d.That the appellant application dated 7th March, 2022 be dismissed with costs to the respondent/applicant.e.That the costs of this application be provided for.f.That any other relief that this honorable court may deem fit to grant.

2. The appellant put in a replying affidavit sworn by advocate Brenda Kiberenge on 26th March, 2022, to oppose the Motion.

3. The respondent further filed a notice of preliminary objection dated 8th March, 2022 and raised the following points of laws as follows;a.That no appeal lies before this honourable court because no leave to appeal was ever sought and granted before the Co-operative Tribunal.b.That this Honourable Court therefore lacks jurisdiction to entertain the present proceedings.

4. When the parties attended court, directions were given that the preliminary objection and the instant Motion be heard and determined together.

5. The counsel for the respondent argued that the appellant did not seek for leave of the court before filing this appeal. She anchored her argument on the provisions of Order 43 (2) of the Civil Procedure Rules which clearly stipulates the Orders which one can appeal as of right and when to seek leave.

6. Mr. Maina counsel for the appellant stated that the cooperative tribunal does not exercise jurisdiction under the Civil Procedure Act but under the Co-operatives Societies Act .That Section 81 of the aforementioned Act expressly states that appeals emanating from the Tribunal shall lie to the High Court.

7. Counsel avers that the act and rules does not define which order one should seek for leave before appeal.

8. Reference is made to the case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 cited in the submissions by the respondent, where the court defined the term ‘preliminary objection’ in the following manner:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.”

9. I have perused the tribunal proceedings and nowhere does the appellant seek for leave of the court to appeal. The last remark was for the appellant to file a formal application for stay.

10. I am inclined to allow the preliminary objection. A formal application ought to be made before the trial court for leave to appeal to the high court. Article 159 of the constitution cannot be a cure to the defect pointed out. Leave ought to be obtained.

11. I uphold the preliminary objection and issue an order striking out the appeal with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent/Applicant