[2021] KECPT 243 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.166 OF 2020

NATION SACCO SOCIETY LIMITED ..........................................................CLAIMANT

VERSUS

ISAAC MWANGI.........................................................................................RESPONDENT

RULING

1. The claim relates to a loan granted to the Respondent by the Claimant. The claimant filed a Statement of Claim dated 09/3/2020 wherein the claimant seeks a Judgment of Kshs. 1,618,565. 81/=,among other supporting prayers.

2. The Respondent entered appearance and filed a Statement of Defence dated 3rd February 2021. Additionally, the Respondent filed a Notice of Preliminary Objection dated 27/7/2020, citing two grounds:

a. That the claim is statutory based hence the Tribunal lacks jurisdiction; and

b. Annexure PM5 in the affidavit of Paul Mwita be expunged from the record for failure to comply with Rule 9 of the Oaths Statutory Declaration Rules 2 Section 106B of the Evidence Act.

3. Parties proceeded by way of written Submissions, which we have considered.

4. ISSUES FOR DETERMINATION:

Having considered the argument of parties and their written submission, the Tribunal proceeds to frame the issues for Determination as follows:

a) Whether the suit is time-bound;

b) Whether the Affidavit should be struck out; and

c) Whether the Preliminary Objection succeeds.

a) Whether the suit is time-bound;

The Respondent avers that the last payment of the loan was in November 2013. There is a disagreement as to when the cause of action indeed took place. This means that this Tribunal will be invited to look at evidence in order to evaluate this fact. Indeed, it is an issue in contention.

A preliminary Objection has been defined in the case of Mukisa Biscuits Manufacturing Co. Ltd Vs. West End Distributors Ltd (1969) EA 696 as follows:

“A preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

In Oraro Vs. Mbaja [2005] eKLR 141, the court stated this:

“Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of Evidence.”

In light of the foregoing, it is clear that this ground the Preliminary Objection is muting the Tribunal to delve into factual issues for determination and as such it must fail.

b) Whether the Documents PM5 Affidavit of Paul Mwita must be expunged.

The Respondent posits that the Annexure marked as PM5 be expunged for failure to secure the said exhibit by way of stamping by commissioner for Oaths. The offended provision are Rule 9 of the Oaths 2 Statutory Declarations Rules and Section 106B of the Evidence Act.

The Respondent has relied on various authorities, which we have considered. We hold that this Tribunal is not strictly bound by Rules of procedure and evidence, but seeks to sustain substantive justice to parties, as provided in Section 78(1) of the Cooperative Societies Act.In any case, the Respondent will be given o chance to interrogate the makes of the documents to ascertain its veracity, and the Tribunal will determine its legitimacy or otherwise.

In the interest of justice, we decline to expunge the said documents consequently the Preliminary Objection fails.

We thus Order as follows:

a) The Notice of Preliminary Objection dated 27/7/2020 is dismissed, with no orders as to costs;

b) Parties to comply by filing and serving witness statements and documents within 30 days;

c) Mention for Directions on 9. 11. 2021.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER , 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 2. 9.2021

HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 2. 9.2021

MR. GITONGA KAMITI MEMBER SIGNED 2. 9.2021

MR. B. AKUSALA MEMBER SIGNED 2. 9.2021

TRIBUNAL CLERK R. LEWERI

GETANGE ADVOCATE FOR CLAIMANT PRESENT

ISAAC MWANGI RESPONDENT IN PERSONS