[2025] KECPT 369 (KLR)

Nzuma (Legal Representative of the Estate of Ndaka Nzuma -Deceased) v Muoki & another; Ndaka & Ndaka (Suing as the Legalre Presentative of the Estate of Ndaka Nzuma - Deceased) (Applicant); Konza Ranching & Farming Co-operative Society Limited (Interested Party) (Tribunal Case 234 of 2019) [2025] KECPT 369 (KLR) (10 July 2025) (Ruling)

Neutral citation: [2025] KECPT 369 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 234 of 2019

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

July 10, 2025

Between

Mweu Ndaka Nzuma (Legal Representative of the Estate of Ndaka Nzuma - Deceased)

Claimant

and

Agnes Mwelu Muoki

1st Respondent

Nathan Mukundi Muoki (Legal Representative of the Estate of Peter Muoki Ndaka - Deceased)

2nd Respondent

and

Nduuti Ndaka & Munee Ndaka (Suing as the Legalre Presentative of the Estate of Ndaka Nzuma - Deceased)

Applicant

and

Konza Ranching & Farming Co-operative Society Limited

Interested Party

Ruling

1. It is unfortunate that this matter is preceded by several deaths within the family of the late Ndaka Nzuma who was member no. 391 in Konza Ranching & Farmers’ Co-operative Society. From the List of Documents filed in Court by the Interested party vide an Application dated 22nd November, 2021, it is noted that the Late Ndaka Nzuma filed a nominee form on 12/9/1985 and nominated one Mr. Peter Muoki Ndaka ID. No. 1085608164 as his nominee who stepped on the shoes of the deceased and enjoyed all the rights and obligations that relate to a member.

2. Upon the demise of Peter Muoki Ndaka, his wife Agnes Mweu Muoki and her son petitioned the court for Letters of administration, Succession cause no. 626 of 2012 which grant was confirmed and took possession of the share at Konza Ranch and farming Co-operative Society Limited.

3. Vide a Statement of Claim dated 23rd April, 2019, the Claimant Mr. Mweu Ndaka Nzuma who stated that he is the son of the deceased approached the Tribunal using a Limited grant of administration ‘ad litem’ dated 15/12/2016 and sought to be enabled to be part of the beneficiaries of the estate of the late Ndaka Nzuma.

4. While the Tribunal was processing the earlier Notice of Motion Application, another Notice of Motion Application was filed to include Konza Ranching & Farming Co-operative Society Ltd as an Interested Party. The Tribunal considered the Application and allowed it. Thereafter, an amended Statement of Claim was filed in the Tribunal on 14th June, 2021.

5. Unfortunately, before the suit was determined, the Claimant Mr. Mweu Ndaka Nzuma passed on 02/02/2023, which has necessitated the Notice of Motion dated 5/6/2024 seeking for orders:i.Spent.ii.The Tribunal to extend the time limited in law for the substitution of the deceased Claimant herein.iii.The Tribunal be pleased to allow the substitution of the name of the deceased with that of Nduuti Ndaka & Munee Ndaka.iv.The Tribunal be pleased to order for the revival of the claim.v.The costs of the Application.

6. Having read through the grounds and the Written Submissions of the parties together with the authorities attached, the Tribunal has isolated three (3) issues for determination.i.Whether the Tribunal can extend the time limited in law and allow substitution of the Claimants.ii.Whether the Tribunal can order for the revival of the Claimants.iii.Who should bear the cost of this Application.

Analysis and Determination. Whether the Tribunal can extend the time limited in Law and aloe the substitution of the Claimants. 7. It is a settled principle of law that a suit abates after one (1) year upon the death of a Claimant/Plaintiff. On the same note, the Court has pronounced itself that if no Application is made within one (1) year or within the time extended by leave of the Count, the suit shall abate.

8. The Tribunal records show that when this matter was still under Pretrial directions, the Tribunal granted leave four (4) times to the Applicant to cause substitution on 16th February, 2023, 3rd June, 2023, 9th August, 2023 and 10th November, 2023 and the Applicants failed to take advantage. Under paragraph 10 of the Applicant’s Written Submissions, the Applicants stated that they could not substitute despite the leave granted because the family of the late Ndaka Nzuma comprise 150 members spanning across four (4) generations with difficulties in convening a family meeting and agree on who would take out the letters of administration.Upon consideration of this explanation, the Tribunal is not persuaded that that reason could cause the prolonged period to agree on who was to act in substitution.

9. Further, we find the reason of waiting to obtain a grant of representation before they could file the Application for substitution to be far-fetched. This is because the Applicants could have petitioned for a limited grant ‘ad-litem’ which could have been used specifically to make the Application before the Tribunal. At the same time, the Applicants have failed to provide to the Tribunal details as to when they applied ex-parte for the limited grant ad-litem which normally take less than one (1) month to obtain.

10. From 16th February, 2023, the Applicants knew that they were supposed to file and serve an Application for substitution but they chose not to take the orders seriously.We therefore find no plausible reason to grant the Applicants extension of time and stick to the provisions of order 24 rule 3 (2) which states:2. “where within one year no application is made under sub-rule (1), the suit shall abate so far as the deceased Plaintiff is concerned and on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

11. On substitution of Nduuti Ndaka and Munee NDaka as Claimants, it is on record by the Witness of Konza Ranching and Farming Co-operative Society Ltd. that before their member NDaka Nzuma died, he nominated his son Peter Muoki ndaka in 1985 according to the Society’s by-las.Section 39(1)(a) of the Co-operative Society’s Act 1997 speak to the issue of nomination as follows:1. On the death of a member, a Co-operative Society may transfer the share interest of the deceased member to:a.The person nominated in accordance with this Act and any rules made thereunderNow that the late Peter Muoki Ndaka was nominated and he continued receiving dividends, bonuses and other benefits relating to member no. 391, it cannot be said that after more than thirty (30) years he ceases to be a nominee.

12. Once a nominee’s name has been entered in a Co-operative Society’s Register, he/she assumed all responsibilities, rights and obligations as if he/she was the original member. Regarding the issue at hand, the Tribunal finds that allowing the Applicants whose father is from the 2nd house of their grandfather, noting stops Ndaka Nzuma from nominating the late Mweu Ndaka Nzuma if he wanted to. However, the choice of a nominee is a personal decision of a member and Co-operative Societies/Saccos which must be honored at all costs.

13. Having analyzed the totality of the evidence presented in this matter, we find that granting leave to the Applicants is not tenable in this case using the discretionary powers granted to the Tribunal under Rule 15 of the Co-operative Tribunal (Practice and Procedure) Rules 2009. We find that the Notice of Motion dated 5/6/2024 lacks merit and is hereby dismissed.

14. Finally, we hereby make the following orders:1. Prayer No. 1 – spent2. Prayer No. 2 – Dismissed.3. Prayer No. 3 – Has no merit and dismissed.4. Prayer No. 4 – Fail.5. Costs of this Application to be borne by the Applicant. UpshotNotice of Motion dated 5. 6.2024 lacks merit and is hereby dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2025. HON. J. MWATSAMA - BDEPUTY CHAIRPERSON SIGNED 10. 7.2025HON. BEATRICE SAWE - MEMBER SIGNED 10. 7.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 10. 7.2025HON. PHILIP GICHUKI - MEMBER SIGNED 10. 7.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 10. 7.2025HON. P. AOL - MEMBER SIGNED 10. 7.2025Tribunal Clerk KokiWaiyaki advocate holding brief for Mr. Muumbi for Claimant /ApplicantWangui Kabuu holding brief for Kui advocate for 1st and 2nd RespondentsHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 10. 7.2025