[2023] KECPT 53 (KLR)
The Tribunal found that the Respondent and Interested Party were duly served with the pleadings and notices but failed to enter appearance or file any defence. The Appellant's grounds of appeal, which challenged the regularity and lawfulness of the surcharge decision, were uncontroverted. The Tribunal held that the...
Source-derived case information.
- Citation
- [2023] KECPT 53 (KLR)
- Parties
- Appellant: Lawrence Owiti; Respondent: The Commissioner for Co-operative Development & Marketing; Interested Party: Comply Staff Society Sacco Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 3 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Commissioner's decision to surcharge the Appellant quashed and set aside.
- Judges
- M Mwatsama, Gitonga Kamiti, M. Mbeneka
- Legal Topics
- Surcharge Decisions, Procedural Fairness, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Owiti
Appellant
The Commissioner for Co-operative Development & Marketing
Respondent
Comply Staff Society Sacco Ltd
Interested Party
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the decision by the Commissioner to surcharge the Appellant was lawful and regular.
- 2 Whether the Respondent and Interested Party were properly served and given an opportunity to respond.
- 3 Whether the absence of a defence or response affects the outcome of the appeal.
Ratio Decidendi
The Tribunal found that the Respondent and Interested Party were duly served with the pleadings and notices but failed to enter appearance or file any defence. The Appellant's grounds of appeal, which challenged the regularity and lawfulness of the surcharge decision, were uncontroverted. The Tribunal held that the Commissioner's decision to surcharge the Appellant was made in breach of procedural fairness and was based on irregularities in the underlying report. Consequently, the decision was quashed and set aside, and the appeal was allowed as prayed.
Court Disposition
Appeal allowed. Commissioner's decision to surcharge the Appellant quashed and set aside.
Orders
- The decision by the Commissioner to surcharge the Appellant is quashed and set aside due to irregularities in the report.
- Orders to apply in Appeal No CTC 4/17 and Appeal 2/17.
Full Case Text
Judgment text and source record
21 paragraphs
Owiti v Commissioner for Co-operative Development & Marketing; Comply Staff Society Sacco Ltd (Interested Party) (Tribunal Case 3 of 2017) [2023] KECPT 53 (KLR) (Civ) (23 February 2023) (Judgment)
Neutral citation: [2023] KECPT 53 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 3 of 2017
M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members
February 23, 2023
Between
Lawrence Owiti
Appellant
and
The Commissioner for Co-operative Development & Marketing
Respondent
and
Comply Staff Society Sacco Ltd
Interested Party
Judgment
1. The Request for Judgment dated February 23, 2021 filed on May 21, 2021 and Affidavit of Service of James M Mbuvi sworn on April 11, 2018, April 13, 2022, September 23, 2022 is considered.We note the Respondent and Interested party have been served severally with pleadings and Notices but have failed to enter appearance.The matter was coming up for determination that is judgment of Memorandum of Appeal dated June 15, 2017 filed by the Appellants.We have carefully considered the Appeal and its various grounds. The same raises issues which the Respondent and Interested Party ought to have responded to but chose not to do so despite the various opportunities granted to them.
2. In absence of response or Defence by Interested Party and Respondent the Appeal as per the Memo of Appeal dated June 15, 2017 filed on even date is allowed as prayed in terms of Prayer C- Decision by the Commissioner to surcharge the Appellant is hereby quashed and set aside because of irregularities in the report.Orders to apply in Appeal No CTC 4/17, Appeal 2/17.
JUDGMENT, READ AND DELIVERED VIRTUALLY ON 23RD FEBRUARY, 2023Hon. Mjeni Mwatsama D/Chairperson Signed 23. 2.2023Gitonga Kamiti Member Signed 23. 2.2023Maria Mbeneka Member Signed 23. 2.2023In the presenceMbuthia Advocate for the AppellantNo Appearance for Respondent and Interested PartySignedHon. Mjeni MwatsamaDeputy Chairperson23/2/2023