[2021] KECPT 619 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT KISUMU

TRIBUNAL CASE NO.423 OF 2019

NYAMIRA TEA FARMERS SACCO LIMITED........................CLAIMANT

VERSUS

ASKA KEMENTO ONGONDU.................................................RESPONDENT

RULING

What is before us for consideration and determination is the Respondent’s Notice of Preliminary Objection dated 13. 9.2019. The said objection seeks for the entire claims to be dismissed because of the following grounds:

a. That the Tribunal lacks jurisdiction to entertain the claim;

b. That the claim is statute barred; and

c. That the claim is for beyond allowed in law pursuant to the banking Act.

Vide the directions given on 13. 2.2020, the Preliminary Objection was to be canvassed by way of written submissions. Whilst the Respondent filed his written submissions on 13. 3.2020the Claimant did not file its submissions despite service.

RESPONDENT’S CASE

Vide the said written submissions, the Respondent has faulted the competency of the claim on account of the fact that he was an employee of the Claimant and not its member within the meaning of Section 76 of the Co-operative societies Act, (Cap 490) Laws of Kenya. That she was initially employed as a typist/Secretary on 2. 8.2020. That her services were terminated on 3. 12. 2009. That the alleged loan was advanced to her as a staff member and that the Tribunal lacks jurisdiction to entertain the same.

On the issue of limitation of actions, the Respondent contend that the statute is time barred as the same was lodged 9 years after the cause of action arose. He has founded this claim from the Loan Application Form which he contends is dated 15. 10. 2020.

ISSUES FOR DETERMINATION

The Respondent’s Preliminary Objection has presented the following issues for determination:

a. Whether the Tribunal does not have jurisdiction to entertain the claim in view of the Claimants’ membership with the Respondent;

b. Whether the claim is statute barred.

JURISDICTION IN LIGHT OF MEMBERSHIP

As rightfully submitted by the Respondent, Section 76 of the Co-operative Societies Act confers jurisdiction to this Tribunal to deal and/or handle disputes inter alia between a Co-operative Societies and its members. The Respondent however, contend that she was advanced a loan in her capacity as an employee and not as a member of the Claimant. This argument raises two issues; firstly whether the contention is a pure point of law within so as to be brought within a ambit of a Preliminary objection and secondly, whether he was advanced loan as a member of the Claimant or as an employee.

As regards the first issue whether the issue of membership is a pure point of law, we are of the view that the same is not a pure point of law so as to fall within the rubric of a Preliminary Objection. As was held by the court in the case of Mukisa Biscuit Manufacturing Company Limited – vs- West End Distributors Limited [1960]EA 69,

“.. A Preliminary Objection consist of a point of law which has been pleaded or which arise by clear implication of the pleadings and which if argued as a Preliminary point, will dispute of the suit.”

At page 90, the court went further to hold thus:

“ A Preliminary Objection is in the nature of what used to be a ...... It raises a pure point of law which is argued on the consumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

By raising the issue of membership, the Respondent is pleading a factual point which requires verification or authentication by way adduction of evidence. It is not a pure point of law which can be argued and disposed of in a summary manner.

With this finding in the fore, we find that there is no need to consider and determine the issue of whether or not he was a member of the Claimant.

LIMITATION OF TIME.

The Respondent has raised another pertinent issue of limitation of time. According to him, this claim is statute barred as the cause of action arose in the year, 2009. That by dint of Section 4 (1) of the Limitation of Action Act, the cause of action ought to have been founded within a period of 6 years. That the claim herein has been brought after the lapse of a period of 10 years.

We have perused the Statement of Claim dated 23. 7.2019. Nowhere in it do we find an averment to the effect that the cause of action arose in the year, 2009 as alleged by the Respondent. In any event, the Respondent has only referred to a loan Application form.

As is apparent, a loan Application form cannot be axed to reckoned a cause of action in a matter of this nature. To the contrary, the date of default is in doing so. As such, we find the Respondent’s contention on limitation of time unfounded and hereby dismiss it.

CONCLUSION

The upshot of the foregoing is that we do not find merit in the Respondent’s Notice of Preliminary Objection dated 13. 9.2019 and hereby dismiss it with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF MAY, 2021.

Hon. B. Kimemia Chairperson Signed 6. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 6. 5.2021

Mr. P. Gichuki Member Signed 6. 5.2021

Tribunal Clerk Leweri

Onyancha for Claimant: No appearance

Parties to comply by filing and serving Witness Statement and documents within 30 days herein.

Mention 7. 6.2021. Notice to issue.

Hon. B. Kimemia Chairperson Signed 6. 5.2021