https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/270

Olimba v Braemeg SACCO (Tribunal Case E795 of 2025) [2026] KECOPT 270 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KECOPT 270 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E795 of 2025 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 24, 2026 Between Dolly Oyiela Olimba Claimant and Braemeg SACCO Respondent Ruling 1.This Ruling dispenses the Respondents Preliminary Objection Application dated 11/2/2026 which is seeking the striking off of an originating Summon Application dated 26/1/2026 which was filled by the Claimant. The following grounds were adduced as the basis for the striking it off.a.That the originating summons is filed in contravention of Regulation 9 and 11 of the Co-operative Tribunal (Practice and Procedure) Rulesb.That the Originating summons is time-barred and is filled in contravention of Section 4 (1) and 4 (3) of the Limitation of Actions Act.c.That as a result of the foregoing, this Honourable Tribunal lacks Jurisdiction to hear the Originating Summons. 2.The Preliminary Objection was contested by the Claimant on the basis that this court has jurisdiction over the dispute. 3.The brief facts about this suit is that the Claimant first filed a Statement of Claim on 13/09/2025 and later filed un-dated amended claim seeking for payment of Ksh. 10,402/= plus interest from 2001, interest on a Ksh.11,000/= from 2001 to 2008, dividends for the years 2000 and 2001, damages and various compensations detailed in the claim together with the cost of the suit. The Preliminary Objection 4.The Respondents filed a Preliminary Objection dated 11/2/2026 objecting against Originating summons dated 26/1/2026. The Claimants Originating Summons on record is dated 16/1/2026. 5.In order to be sure on which Originating Summon to determine, the Tribunal send an email on 28/5/2026 to the Claimant and copied the Respondent and advised them to upload or supply the said Originating Summon dated 26/1/2026 which is not on record and not in the Tribunal’s portal. 6.On 29/5/2026 the Claimant uploaded in the Tribunal’s portal the Originating Summons dated 16/1/2026 yet the Respondent has not responded to the email as at time of writing this ruling. Nevertheless, the Tribunal is of the view that the date indicated by the Respondent of 26/1/2026 is a typing error which is excusable and correctable. 7.On this understanding, we will therefore proceed to determine the Preliminary Objection considering the objection relate to the Claimant’s Originating Summons dated 16/1/2026. 8.The brief facts of this case are: That the Claimant’s undated Amended Statement of Claim does not comply with the Regulation 9 and 11 of the Cooperative Tribunal (Practice and Procedure) Rules, it is time barred under Section 4(1) and 4(3) of the Limitation of Actions Act and finally that this Tribunal should decline to hear and determine the matter because it lacks jurisdiction. On the other hand, the Claimant argues out that the Tribunal has jurisdiction. Analysis 9.This Tribunal has considered the Respondents Application, the Claimant’s response and the parties Submissions. The question that need to be answered is: whether the Preliminary Objection is merited?To answer this question, the Tribunal place reliance on the decision of the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696 which held that:“... 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 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse issues. This improper practice should stop." 10.This case laid down the principles as to what constitutes a Preliminary Objection to be valid. That it must be on a point of law and that it must be founded on facts that are not in dispute. If evidence would require to be adduced to establish those facts, then a Preliminary Objection would not be sustainable. 11.Turning to the 1st ground of the Notice of the Preliminary Objection, the Respondents point out that the Claimant failed to commence the suit by way of a Statement of Claim as provided under Regulation 9 and 11 of the Cooperative Tribunal (Practice and Procedure) Rule and instead filed an originating Summons which is unknown to the rules. While we agree that the mode of moving the Tribunal is by way of filling a Statement of Claim or through a Notice of Motion but not Originating Summons, Rule 4 of the same Cooperative Tribunal (Practice and Procedure) Rules calls upon the Tribunal not to dwell on technicalities of procedure while deciding all matters before it.Rule 4 specifically reads as follows:“The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedure” (emphasis ours). 12.Fundamentally, it is noteworthy to know that the language of a plaint, Originating Summons, Notice of Motion, Chamber Summons etc is foreign to some members of Cooperative Societies particularly those who do not have the assistance of an advocate. There are many members of Cooperative Societies/Saccos in Kenya who may have genuine claims but are ignorant of the technical procedures of how to approach the Tribunal. That aside, the Claimant is a teacher by profession who had initially approached the Tribunal on 13/09/2025 by way of a Statement of Claim in compliance with Rule 9 of the Cooperative Tribunal (Practice and Procedure) Rules 2009. 13.However, Rule 11(1) state that:(1)“All interlocutory applications made to the Tribunal shall be by chamber summons or Notice of Motion signed by the Claimant, his advocate or a duly authorized agent supported by an Affidavit”At this point in time, the Claimant opted to file Originating Summons instead of a Notice of Motion as provided. Why she did not take the correct procedural approach to file her application is not ignorance because the adage that ignorance of the law is not a defence has not been extinguished by a competent court of law. However, while we agree that the Claimant made un procedural or irregular approach, the irregularity does not invalidate the claim, because we consider that the irregularity is curable under the principle of substantive justice. All the same, the procedure in the rules is coughed in mandatory terms and must be adhered to without faking ignorance of the law. It is therefore our finding that the Claimant contravened Rule 11(1) of the Cooperative Tribunal (Practice & Procedure) Rules 2009. 14.Regarding the Respondents’ 2nd ground that the claim is time-barred and in contravention of Section 4(1) and 4(3) of the Limitation of Actions Act Cap 22.Section 4 (1) provide that:“(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued(a)actions founded on contract;(b)actions to enforce a recognizance;(c)actions to enforce an award;(d)actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;(e)actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.To justify the ground that the claim is time barred, the Respondent state that the events relating to the Claimant’s claim date back to a Withdrawal Notice dated 7th June 2001, a payment of Ksh.39,000/= made to the Applicant in 2001 and a cheque refund of overpayment issued in 2008. On the other hand, the Claimant submitted that she provided proof of fraudulent actions, concealment of facts or mistakes that were perpetrated by the Respondent.There is no record of any statement, affidavit or material evidence about proof of the allegations made by the Claimant against the Respondent. Accordingly, we dismiss the submission as unfounded. 15.Under paragraph 8 of her Supporting Affidavit dated 16/1/2026, the Claimant state that the Respondent has been taking her in circles. Upon perusal of the file record, we find that for 15 years the Claimant did not communicate with the Respondent about the debt. Literally, we find no record of any demands or any communication from the Claimant to the Respondent from 2008 until 2nd February 2023 when she wrote to the Respondent to acknowledge some cash payment of Ksh.6,000/= made on 20/12/2007. This acknowledgement was made after 16 years from the date of payment. 16.With these facts, the Respondent submitted that the Claimant went silent after acknowledging receipt of payment in 2008 until August 2025 when she filed Case No. SCCCOMM/E98780/25 in Small Claims court, Milimani. On this, the Respondent state that the Claimant went into slumber only to come out after Seventeen (17) years to file the Originating Summons dated 16th January 2026 and that the matter is therefore time-barred on the face of it. 17.On 16th March 2023, the Chief Executive Officer Mr. Paul O. Asewe of the Sacco wrote to the Claimant and denied categorically that the Sacco does not owe any money to the Claimant. The letter concludes as follows:“Braemeg Sacco does not owe you any saving refund, overdrawn loans, interest on deposit or dividend on share capital”.This letter is a denial of the ongoing claim of liability and it does not reset the clock of Limitation of Actions Act. The Tribunal hold the view that for a letter to reset the clock, it must be explicit, clear and unequivocally acknowledging that a debt or liability currently exit. 18.Our reading of the letter dated 2nd February 2023 show a re-start of the original 2001 claim, and it prompted the Claimant to file the instant Originating Summon application dated 16/1/2026 seeking to be granted leave to file a suit out of time. In our opinion, this attempt to re-awaken indolence by the Claimant is an exercise in futility that even a court of equity cannot assist. For this reason, we agree with the Respondent and find that this claim is stale, time-barred and legally incompetent. 19.Regarding the 3rd Ground of lack of jurisdiction. The Tribunal is guided by the holding of the court in the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, that held;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 20.Having arrived at the conclusion that the Claimant contravened Regulation 11(1) of the Cooperative Tribunal (Practice and Procedure) Rules 2009 and that the claim is stale hence time barred, the ultimate result is that we do not hold any jurisdiction over the matter thus we down our tools.In the case of Owners of Motor vessel Lillian (“S”) Vs. Caltex Oil (k) Ltd (1989) 1KLR, the court held that;“Where a court has no jurisdiction, any proceedings taken would be null and void”. 21.Drawing from the foregoing, the Tribunal finds that the Respondents Preliminary Objection dated 11/2/2026 is merited and is hereby allowed. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG.CHAIRPERSON SIGNED 24/6/2026HON. BEATRICE SAWE MEMBER SIGNED 24/6/2026HON. FRIDAH LOTUIYA MEMBER SIGNED 24/6/2026HON. MICHAEL CHESIKAW MEMBER SIGNED 24/6/2026HON. P. AOL MEMBER SIGNED 24/6/2026Court Assistant - MutaiDolly Olimba – PresentShikule advocate appearing alongside San Ngure advocate for the RespondentHON. J. MWATSAMA AG. CHAIRPERSON SIGNED 24/6/2026