[2023] KECPT 837 (KLR)

Njagi v Commissioner for Cooperative Development & Marketing (Tribunal Appeal 31 of 2019) [2023] KECPT 837 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 837 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Appeal 31 of 2019

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

September 21, 2023

Between

Morris Njagi

Claimant

and

Commissioner for Cooperative Development & Marketing

Respondent

Ruling

1. The present Appeal is vide a Memorandum of Appeal dated 9. 10. 2019 and filed on 11. 10. 2019. The Appeal is brought on the following grounds:a.The Commissioner erred in law and fact when he found that the Appellant was liable as per the Inquiry Report conducted on 27th November 2018, without considering the Resignation Acceptance Letter dated 12th July 2017 and failing to acknowledge that the letter did not provide or state that the Appellant had any outstanding or uncleared travel imprest amounting to Kshs. 600,000/= pertaining to travel imprest.b.The Commissioner errered in law and fact by not considering the exit clearance form for employees leaving the service of the society that was signed and stamped by Stima Sacco finance officials under surrender of imprest, surrender of revenue and SACCO dues clearing the Appellant from any liability.c.The Commissioner erred in law and fact by not considering that the Appellant imprest account had been cleared by the Finance Manager.d.The Commissioner erred in law and fact by not considering that the Appellant imprest account had been cleared by the Finance Manager.e.The Commissioner erred in law and fact by not acknowledging that since 13th July 2017, when the Appellant travelled and 4th July 2017, when the Appellant resigned the alleged amount was never recovered from his Salary as per Stima Investment Society Limited accounting and procedures’ manual.f.The Commissioner erred in law and fact not finding that the Appellant did subsequently travel on 18th November, 2016 to Botswana and South Africa hence could not have been issued with fresh imprest if he had not paid for the Kshs. 300,000/= imprest issued on 13th July 2016. g.The Commissioner erred in law and fact by not appreciating the board reports adopting the UK trips and Diaspora report for the month of August 2016. h.The Commissioner erred in law and fact for not finding that the Appellant had fully accounted for all the monies/imprest issued to him and had been cleared by both the Finance Manager and the Chief Executive Officer(CEO).i.The Commissioner erred in law and fact by failing to consider the resignation acceptance letter dated 12th July 2017 which did not acknowledge or recognize any debt or failure to surrender imprest by the Appellant.j.The Resignation Acceptance Letter and the exit clearance form have been signed by the Chief Executive Officer(CEO) and the Finance Manager and do not provide or admit to any outstanding imprest.k.That the Commissioner erred in law and fact in not finding that the Appellant resignation would not have been allowed if he had outstanding imprest.l.The Commissioner erred in law and fact by finding the Appellant liable as per the Inquiry Report, for negligence of the Finance department of Stima Investment and cooperative society limited over accounting for that had already been surrendered by the Appellant.m.The Surcharge Letter being a result of an Inquiry Report is faulty as board reports on UK business trip of July/August 2016 and the diaspora report for the month of August 2016. n.The Registration and Acceptance Letter dated 12th July 2017 and the exit clearance form which have been stamped by the Finance Manager that all imprest, revenue had been surrendered was not furnished to the officers conducting the inquiry neither did they demand them.o.The Commissioner erred in law and fact not finding that the imprest of Kshs. 600,000/= had been surrendered to Stima Investment and Cooperative Society Limited.p.The Commissioner erred in law and fact in not finding that if there was unpaid imprest by the Appellant as alleged the same could have been recovered from his salary or final dues.q.Commissioner erred in law and fact by not properly analyzing the Inquiry Report and nor warning himself that he is obliged to inform the Appellant the results of the inquiry after inspection given the Appellant fell in the category of creditor as recommended by the Cooperative Act.r.The Commissioner lacked a cogent reasoning and the evaluation of the Inquiry Report was unsatisfactory.

2. The Respondent did not enter appearance nor respond to the Appeal in any way. The Tribunal therefore directed that the Appellant to dispense off the Appeal by way of written submissions.

3. The Appellant filed their written submissions dated 6. 10. 2022 and filed on 6. 10. 2022.

Analysis And Determination 4. The tribunal will first look at whether it has jurisdiction to entertain the present Appeal. In Motor Vessel Lilian’s versus Caltex Oil (Kenya) Limited, the court held that jurisdiction is everything. Without it a court has no power to make one more step. Section 74 of the Cooperative Act requires any person aggrieved by an order of the Commissioner under Section 73 (1), may within 30 days, Appeal to the Tribunal.The Tribunal can therefore entertain the present Appeal since it has jurisdiction to listen to appeals against Surcharge Orders.

5. The Cooperative Tribunal (Practice and Procedure) Rules, 2009 Rules 8 (3), requires that at the time of filing the Memorandum of Appeal or before setting down the Appeal for hearing, the Appellant shall file a record of Appeal containing:a.The Memorandum of Appealb.The Inquiry Orderc.The Inquiry and/or Inspection Report.d.The minutes of the general meeting whose decision is appealed against.e.The notice of Intention to Surcharge.f.The Surcharge Orderg.Any other relevant order.

6. Rule 8 (3) contains the word “shall” that connote a mandatory obligation on what should be filed during Appeal. In Judicial Review Application 703 of 2017 the Court held that the general rule is that an absolute enactment must be obeyed or fulfilled substantially. Further it held that the word shall when used in a statutory provision imports a form of command or mandate. It is not permissive it is mandatory.

7. The Appellant in the present Appeal has not therefore complied with the requisite requirements of the law. It is the Tribunal opinion that the present Appeal due to the lack of filing the required documents lacks merit.

Determination 8. From the foregoing, the Appeal dated 9. 10. 2019 is dismissed for lack of merit with no orders as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023Judgment delivered in absence of parties.Judgment as read out on 21. 9.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023