[2024] KECPT 250 (KLR)

Nzii v Mariu (Tribunal Case E850 (777) of 2022) [2024] KECPT 250 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 250 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E850 (777) of 2022

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

March 7, 2024

Between

Thomas Muthui Nzii

Claimant

and

Doris Makena Mariu

Respondent

Ruling

1. This ruling dispenses with the Preliminary Objection dated October 20, 2022 in which the respondent requests for dismissal of the entire claim on the ground of lack of jurisdiction.

2. The Application is premised on the grounds on its face which are inter alia that the parties are husband and wife, and that the issues raised relate to a loan taken and utilized within the home and as such falls entirely under the ambits of matrimonial property and as such should be filed as a matrimonial cause under the Matrimonial Property Act as any recovery will potentially involve the division of matrimonial property.

3. The background of the application is that both the claimant and the respondent were members of the United Nations DT Sacco Limited. The respondent took a loan from the Sacco, and listed the claimant among other members as guarantors. The respondent defaulted on the loans and this resulted in the Sacco taking the savings of the claimant to settle the loans to the tune of Kshs. 721, 401/-. The claimant was aggrieved by the deduction and instituted this matter to recover the Kshs. 721,401/-.

4. Both parties, filed submissions.

5. In their submissions, the applicants/respondents argued that the preliminary objection is merited because it goes to the jurisdiction of this Tribunal. They relied on the case of Lillian 'S' [1989] KLR 1 in the Court succinctly set out the principles and context for determination of jurisdiction, whereby Nyarangi, JA stated:-“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”The applicants further submitted that this Tribunal has no jurisdiction since the matter falls under matrimonial property. They urged this Tribunal to grant the preliminary objection.

6. The claimants on the other hand in their submissions, submitted that the issues raised in the preliminary objection cannot be canvassed by was of a preliminary objection because they were no points of law. They submit that for the Tribunal to establish if indeed the property is matrimonial, it has to call for and ascertain evidence. They urge this court to dismiss the preliminary objection.

Analysis 7. Having considered the preliminary objection raised together with the submission of the parties, this Tribunal notes that the issue question before it is whether the issue raised in the preliminary objection is rightly brought under the preliminary objection, and whether the same is merited.

8. In answering the first question, we note that the preliminary objection has been brought before this court on the basis of Jurisdiction. In Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969)EA 696, the court observed thus:“……. 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…..”Jurisdiction is a clear point of law, and we find that the Preliminary Objective on jurisdiction was rightly brought.

9. To answer the second question on whether this court has jurisdiction to entertain the matter herein, this court will be guided by the Cooperative Societies Act This Tribunal draws its jurisdiction from Section 76 of the Cooperative Societies Act which provides that76. Disputes“(1)If any dispute concerning the business of a co-operative society arises—(a)among members, past members and persons claiming through members, past members and deceased members; or(b)between members, past members or deceased members, and the society, its Committee or any officer of the society; or(c)between the society and any other co-operative society, it shall be referred to the Tribunal.”The question we have to answer is whether the claimant and the respondent fall under any category under section 76 above. The claimant in his Plaint averred that both the claimant and the respondent were members of United Nations DT Sacco Society Limited, the claimant being number xxx and the respondent being member number xxx-2. This membership is not disputed by the respondent and is not the subject of the current Preliminary Objective. The cooperative Societies Act does not provide any exception based on any relationship between the parties. As such this court will not dwell on questions on whether the parties herein were husband and wife, and whether the subject of this suit is matrimonial property or not. It is enough that both parties were members of a Sacco, and the subject matter arose out of such membership.

10. Flowing from above, the final orders are that the Preliminary Objection dated October 20, 2022 lacks merit and is hereby dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahBaraza advocate holding brief for Kinyanjui Advocate for claimantMiss Gitonga advocate holding brief for Makori advocate for respondentHON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024