[2025] KECPT 310 (KLR)

Orient Saving & Credit Cooperative Society Limited v Ngigi (Tribunal Case 126 of 2021) [2025] KECPT 310 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KECPT 310 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 126 of 2021

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

June 12, 2025

Between

Orient Saving & Credit Cooperative Society Limited

Claimant

and

James Njoroge Ngigi

Respondent

Ruling

1. The Notice of Motion Application dated 4th June, 2024 is brought under Section 73 (1) & (2) of the Co-operative Societies Act, Rules 4, 8 (3) (b) & 17 of the Co operative Tribunal (Practice and Procedure) Rules, 2009 and Section 4 of the Fair Administrative Actions Act seeking among others:1. Spent2. Spent3. That the ruling of the Tribunal delivered on 16th December, 2022, be reviewed and set aside.4. That there be a stay of all proceedings against the Respondent pending hearing and determination of the Application.5. That the Inquiry Report relied upon by the Tribunal to find the Respondent guilty of misappropriating Kshs. 3,977,833. 48 or any amount be declared as null and void.6. That the Notice of Intention to Surcharge relied upon by the Tribunal to find the Respondent guilty of misappropriating Kshs. 3,977,833. 48 or any amount be declared as null and void.7. That the Surcharge Order relied upon by this Tribunal to find the applicant guilty of misappropriating Shs.3,977,833. 48 or any amount be declared as null and void.8. That the entire surcharge process carried out against the Respondent offended provisions of the Fair Administrative Actions Act.

2. The Application was based on the Affidavit of James Njoroge Ngigi on the grounds that:i.That the Inquiry Report was signed by Geoffrey N. Njang’ombe who was not and has never been a Commissioner of Co-operative Developmentii.That a delegate cannot further delegate and when an Act of Parliament demands a thing to be done by a particular person, only that person can do it.iii.That the actions of another person other than the Commissioner sanctioning an Inquiry and proceedings to Surcharge the Respondent was unlawful and against the Fair Administration Action Act and thus an infringement into the Respondent’s Constitutional rights.iv.That the Respondent was suffering from severe depression and was unable to fathom what was going on so he instructed his advocates who took advantage of his situation and did nothing to assist him.

3. This Tribunal on 6th June, 2025 gave orders for the Application to be served, with the Respondent given 14 days to Respond.

4. The Claimant through their Treasurer Bedan Kinyanjui Muranga filed a Replying affidavit dated 20th August, 2024 stating among others:a.That the Respondent’s claim is legally moot whereby he is challenging the inquiry report and the resultant process. That it is legally incompetent and untenable in the manner it has been commenced.b.That the Respondent’s contention challenging the finding of the Commissioner for Cooperative Development cannot be sustained in the manner the present Application has been commenced. That notably, the ground upon which a request for review can be sustained has been settled in law and the present Application does not have any grounds that could hold.c.That there is no new evidence that would warrant the tribunal to review its earlier decision that was rendered more than two years ago.d.That no proper explanation has been given on why the Application has been brought two years after delivery of the ruling.e.That the Respondent's case is way overtaken by time and barred in law since he did not file an appeal in time, leading the Claimant to commence those proceedings which were purely to enforce the recovery of the surcharged amount.f.That the reasons advanced by the Respondent for seeking review are reasons advanced in an appeal and not in the Application as filed. That the Honorable Tribunal cannot be moved by way of an appeal, hence it cannot determine the merits or demerits of the decision of the Commissioner for Cooperative Development.g.That the Respondent was aware of the ruling, and did not take or make any move to settle the decretal sum and only moved the Tribunal after being served with a notice to show cause.h.That Geoffrey N. Njang’ombe was holding the position of Commissioner for Cooperative Development when he signed the order.i.That no appeal was preferred by the Respondent in line with Section 74 of the Co-operative Societies Act to necessitate any stay or setting aside of the surcharge order.j.That as to whether the Commissioner for Cooperative Development can delegate, or whether he indeed delegated his mandate is an issue that the Honorable Tribunal cannot be called upon to consider, whereas it had never been raised despite the suit having been filed in 2021. k.That the Respondent cannot benefit out of a process that has already been overtaken by time as he had the opportunity to appeal the surcharge order and he opted not to pursue that option.

5. The Claimants also filed their Grounds of Opposition to the Application dated 5th June, 2024 stating among others:i.That the Application is an abuse of the court process commenced through ingenious ways that it is a review, yet it is an appeal camouflaged as the former.ii.That the Application is made by a party who is in default of payment of the decretal sum.iii.That if stay was to be granted, the Respondent should provide security for due performance and or satisfaction of the decree.iv.That the Respondent’s remedy lies elsewhere and not before the Honourable Tribunal, however he acquiesced his right thereby he cannot be heard crying fowl.v.That the entire application is an abuse of the court process, frivolous, vexatious and not deserving the orders sought. It is only amenable to dismissal without cost.

6. This Tribunal on 7th October, 2025 gave further orders for the Application to be canvassed by way of written submissions.

7The Claimants filed their submissions dated 15th April, 2025 stating among others that:i.The Claimant commenced the suit by way of a Statement of Claim dated 28/11/2021 and sought to recover the surcharged amount of Kshs 3,977,833. 48/=. That the Respondent filed a Defence dated 8/4/2021. That thereafter the Claimant filed an Application dated 26/8/2021 seeking to strike out the Defence and upon the hearing of the Application on merit, the Honourable Tribunal delivered a ruling on 16/12/2022 striking out the Defence. That a decree was extracted and the amount due was Kshs 5,237,161. 71/= and costs of Kshs 206,448/= which were issued on 18/10/2023. ii.That the Respondent had never appointed any advocate to represent him before in the proceedings and acted himself, and had also never indicated in the course of the proceedings (even in his Defence) that he was in severe depression. That he only filed the Application as the Claimant was in the course of execution proceedings once he was served with the notice to show causeiii.That had the Respondent been unwell, he ought to have tendered documents evidencing this early in time. That to raise the issue 3 years after the case commenced and 2 years after striking out of the Defence is an afterthought. That this means that the Respondent all along had that information, and he cannot seek review based on information that he had all through.iv.That the Respondent is not presenting anything new or information that has come to his knowledge now, and as such the information presented do not warrant grounds for review.v.That even if the information is true, the Respondent had failed in his duty to disclose the information and is using the information as an afterthought in a bid to defeat execution.vi.That Section 74 of the CooperativeSocieties Act provides for the procedure to challenge a surcharge order, and the Respondent did not appeal to the Honourable Tribunal after 30 days of being surcharged by the Commissioner for Cooperative Developmentvii.That the Application is couched as an appeal but carefully seeking orders to reverse the Inquiry after 5 years of the conclusion of the Inquiry. That the Honourable Tribunal lacks jurisdiction to hear an appeal out of time.viii.That the Respondent admitted previously to receiving the Surcharge Order and if he had any issue with whoever signed it, he ought to have filed an appeal. That the Respondent equally failed to demonstrate that Mr. Geoffrey Njang’ombe was not the Commissioner for Cooperatives. A claim that the Commissioner for Cooperatives delegated his power without any evidence on the Surcharge Order being signed by any other person is just wishful thinking. There had been no challenge of who signed the Surcharge Order and this would only be an issue for consideration on appeal.ix.That the Application dated 4/6/2024 is unmerited having failed to meet the criteria for review under Section 80 as read with Order 45 of the Civil Procedure Act and should be dismissed as it has also been filed after unexplained inordinate delay.

8. We have considered the Application and the response, and the only question remaining for determination is as to whether the Application has met the threshold for review.

Has the Application met the threshold for review? 9. Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules provide for the framework for review. Section 80 states that:“Any person who considers himself aggrieved—a.By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

10. Order 45 Rule 1 of the Civil Procedure Rules on the other hand provides that:“1. Any person considering himself aggrieved—a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being Respondent, he can present to the appellate court the case on which he applies for the review”

11. The Rules limit the ground for review to be: -a.Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.On account of some mistake or error apparent on the face of the record,c.For any other sufficient reason desires to obtain a review of the decree or order may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay

12. In this particular case, we are not persuaded that there is any new information that has come to the fore that necessitates a review, neither are we persuaded that there was any mistake or error with the process of surcharging the Respondent. Just to be clear, Geoffrey N. Njang’ombe was substantively the Commissioner for Co-operative Development as at the time the Inquiry was conducted and he had the legal authority to sanction the process of Inquiry, and also to sign the Notice of Intention to surcharge.

13. It is also important to note that The Co-operative Societies Act is clear on jurisdictional timelines for appeal once a surcharge order is served on a party, timelines that this Honourable Tribunal does not have discretion over.

Final Orders:1. The Notice of Motion Application dated 4th June, 2024 is dismissed with costs.2. Notice to show cause on 9. 9.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 12. 6.2025HON. BEATRICE SAWE - MEMBER - SIGNED - 12. 6.2025HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 12. 6.2025HON. PHILIP GICHUKI - MEMBER - SIGNED - 12. 6.2025HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 12. 6.2025HON. P. AOL - MEMBER - SIGNED - 12. 6.2025Tribunal Clerk MutaiMathenge advocate for the ClaimantMbuthia advocate for the Respondent – no appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 12. 6.2025