[2023] KECPT 65 (KLR)

Nzuma (Legal representative of the Estate of Ndaka Nzuma (Deceased) v Muoki & another; Konza Ranching & Farming Coop Society Ltd (Interested Party) (Tribunal Case 234 of 2019) [2023] KECPT 65 (KLR) (16 February 2023) (Ruling)

Neutral citation: [2023] KECPT 65 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 234 of 2019

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

February 16, 2023

Between

Mweu Ndaka Nzuma (Legal representative of the Estate of Ndaka Nzuma (Deceased)

Claimant

and

Agnes Mwelu Muoki

1st Respondent

Nathan Mukundi Muoki

2nd Respondent

and

Konza Ranching & Farming Coop Society Ltd

Interested Party

Ruling

1. Vide the notice of Preliminary Objection dated September 27, 2021 the Interested Party has moved this court inviting the Tribunal to make orders that it lacks Jurisdiction over the matter before it. The interested Party raised the following Grounds of Objection;a.That the entire suit offends the mandatory provisions of the law in particular, section 76 of the law of Succession Act, Cap 160 laws of Kenya.b.That this Honourable Court lacks Jurisdiction to entertain the matter under Section 76 of the Laws of Succession Act, Cap 160 Laws of Kenya as the subject matter is premised on Machakos Succession Cause No 626 of 2012, In the matter of Peter Muoki Ndaka which has neither been annulled nor revoked by a court of competent jurisdiction.c.That the Honourable court lacks jurisdiction to hear and determine the matter under Section 6,7 and 8 of the Civil Procedure Act, Cap 21 Laws of Kenya.d.That the entire suit is an abuse of the court process because the Claimant has not applied to the High court for relief by way of summons for revocation and the same should be dismissed with costs in favour of the Interested party.

2. The same was directed to be canvassed by way of written submissions. The Interested Party filed their Submissions dated February 1, 2022, the Respondents filed their submissions dated February 17, 2022 and the Claimants filed their Submissions dated April 29, 2022. We have considered all the Submissions and evidence on record and have Raised the main issue for determination.

Whether the Preliminary Objection is merited.The case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a Preliminary Objection where his Lordships Sir Charles Newbold, P. stated:“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 if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.”On the other hand, the Jurisdiction of the Co-operative Tribunal is well spent under Section 76 of the Cooperative Societies Act;Disputes;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; orb.between members, past members or deceased members, and the society, its Committee or any officer of the society; orc.between the society and any other co-operative society, it shall be referred to the Tribunal. 3. The Tribunal has jurisdiction to handle matters deriving from the Co-operative Society and or Sacco.Any property purchased or sold by the Society is within the ambit of the Tribunal.As much as the matter is being handled in the Family Court High Court Succession Cause No. 626 of 2012 which has jurisdiction the matters of the deceased the suit property herein is under the Co-operative.The Tribunal is dealing with the same under Sec. 39 Co-operative Society Act which provides for;i.In the case of a co-operative society with unlimited liability, such nominee or personal representative, as the case may be, may require the society to pay him the value of the share or interest of the deceased member ascertained in the manner mentioned in this subsection; orii.In the case of a co-operative society with limited liability, the society shall transfer the share or interest of the deceased member to such nominee or personal representative, as the case may be, being qualified in accordance with this Act or any rules made thereunder or the by-laws of such society for membership of the society, or on his application within one month of the death, to any person specified in the application who is so qualified gives the tribunal mandate to deal with the file.

4. The Applicant herein filed suit before the Cooperative Tribunal involving a Cooperative society and one a Legal representative of the Estate of Ndaka Nzuma a deceased member of the Society involving his shares is therefore found to be within the Jurisdiction of this Court and therefore these are the orders given towards the same;

a.The Preliminary Objection dated 27th September, 2021 is found to be without merit thus dismissed with costs in the cause.b.Parties to comply with order 11 Civil Procedure Rules 2010 within 30 days. Parties to exchange documents.c.Mention for Pre-trial directions on 3rd May, 2023

RULING, READ AND DELIVERED VIRTUALLY ON 16TH FEBRUARY, 23HON. MJENI MWATSAMA D/CHAIRPERSON SIGNED 16. 2.23GITONGA KAMITI MEMBER SIGNED 16. 2.23M. MBENEKA MEMBER SIGNED 16. 2.23In the presenceKamau Advocate for the 2nd RespondentOrina Advocate hold brief for Orina Rieu for Interested PartyWaiyaki Advocate hold brief for Mr. Mvunde for the Claimant.SignedHon. Mjeni MwatsamaDeputy Chairperson16/2/23