[2023] KECPT 800 (KLR)

Ongeri (Suing for and on behalf of members of Wells Fargo Employees) v Metropolitan National Sacco Ltd (Tribunal Case 154 (E184) of 2023) [2023] KECPT 800 (KLR) (26 October 2023) (Ruling)

Neutral citation: [2023] KECPT 800 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 154 (E184) of 2023

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

October 26, 2023

Between

Geoffrey Mbugi Ongeri (Suing for and on behalf of members of Wells Fargo Employees)

Claimant

and

Metropolitan national sacco Ltd

Respondent

Ruling

1. The Claimant began this case by filing a Notice of Motion Application on 5th March, 2023 seeking orders that;i.The Respondent be compelled to issue the wells fargo membership with their current statements of accounts.ii.the respondent be ordered to refund all the savings of its wells fargo membership individually and collectively and consequently terminate their membership forthwith.iii.Costs of the Application.The Respondents filed their Notice of Preliminary Objection on 11th April, 2023 stating that this Tribunal lacks Jurisdiction.There was written submissions filed by the Claimant dated 1st July 2023 filed on 9th August 2023, and Respondent filed theirs dated 12th May 2023 filed on 9th August, 2023

2. Issues for Determination.i.Whether the Tribunal lacks Jurisdiction to entertain this Claim.ii.Whether the suit has been filed properly as a Representative suit or a class action suit Issue One. (i) Whether The Tribunal Lacks Jurisdiction Of The Cooperative TribunalJurisdiction is the Authority which a court or a Tribunal has to entertain and decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. There is at the background or base, a statute, charter or commission or a legal instrument, under which the court or tribunal is constituted, and the limits to its authority also imposed.First, It is important to also take note that even in cases where a Tribunal or a court is given jurisdiction, some limitations may still be imposed either as to the kind and nature of the actions and matters of which the particular court of Tribunal has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake both of the Characteristics.Second, It is also important to note that it is settled law, that where a court or a tribunal abrogates itself the power to exercise a jurisdiction which it does not posses, its decision on that particular matter or suit is of no legal consequence as jurisdiction must first be conferred or acquired before judgement is given.Third, It is also important to note that a court or a Tribunal has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. 3. In most cases, jurisdiction on the face of it, is determined by a court or Tribunal by looking at the pleadings and not the substantive merits of the case. this is simply because it's the pleadings that contain the legal basis of the claim under which the party before the court has chosen to hook the court of Tribunal's competence.The Jurisdiction of the Cooperative Tribunal, is captured within Section 76 of the Cooperatives Act and Rule 3 and 4 of the Cooperative Tribunal Court Practices and Procedure Rules.Section 76 of the Cooperative Societies Act Provided that;“Any dispute concerning the business of a Cooperative Society and arising among members of the Society or its committee or any officers of the Society shall be referred to the Cooperative Tribunal under section 81(II) of the Act by any party aggrieved by the order."Rule 3 of the Cooperative Tribunal Court Practices and Procedure Rules is clear to the effect that the Cooperative Tribunal has the inherent power to make such orders as may be necessary for the ends of justice, while Rule 4 gives the Tribunal discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedure.

4. From evidence or facts presented in this case a few things are clear in conformity with the law as captured by section 76 of the Cooperatives Act. The facts that are clear include;i.There is a dispute.ii.That dispute involve the nature of business of a Cooperative Society - Issuance or approval of loans, the furnishing of Statements of Accounts, Refunds of Savings and or the termination of membership to mention but a few.iii.The dispute is arising between a member or members of a Cooperative Society and a Cooperative Society.The Framing of the pleadings or at which point should this case be determined as to whether it has been properly filed as a representative suit notwithstanding, we are embarrassed and shocked to note the lengths some parties would go in order to hide from being accountable or hide under technicalities to prevent the Tribunal from issuing orders that are matters of right, and in a well-functioning system, members should actually not come to court for a Cooperative Society to be ordered to do the service to its members.

5. Why would a member of a Co-operative Society have to come to court and wait for jurisdiction of a Tribunal to be determined for a Cooperative society to either be ordered to present such a member with their Statements of Account or have their membership terminated?For the avoidance of doubt, we state that the jurisdiction of a court or Tribunal has nothing to do with whether that court can answer in the positive all the prayers that party is seeking, but to whether that case can be determined before it. From the facts of this case as captured in the pleadings filed so far, we confirm that we have jurisdiction and as such decline to hoist procedural technicalities over substance.

Issue Two - (ii) Whether The Suit Has Been Filed Properly As A Representative Suit Or A Class Action Suit.In as much as the Civil Procedure Rules specifically Order 1 Rule 8 provides for the guidelines of how to commence a representative suit, it is our position in this matter that pleadings are yet to close and as such it will be premature to make a finding that what has been filed so far is not in conformity with the procedure of filing a representative suit. It is not in the interest of justice and public policy at this stage of proceedings to entertain the question of whether this is a representative suit or not.The practice is that the Respondent has to first file a Statement of Defence, and in that Statement of Defence raise the intention to challenge the proceedings by raising the issue of whether what is in the Statement of Claim is a representative suit. In this particular case, the Respondent is even yet to file his Statement of Defence. Equity demands that he who insists on certain procedures being followed strictly, must also follow strict procedures in their quest.

Upshoti.The Notice of Preliminary Objection dated 11. 4.2023 filed on 11th April, 2023 is dismissed with costs.ii.The Respondent is ordered to file his Statement of Defence and Witness Statement within 14 days of this Ruling.iii.Mention for further directions on 16. 1.2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 10. 2023HON. PAUL AOL MEMBER SIGNED 26. 10. 2023Tribunal Clerk JonahOloo advocate for the ClaimantKorir advocate for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 26. 10. 2023