[2024] KECPT 978 (KLR)

Owuor v Regency Sacco Society Limited (Tribunal Case 743 of 2019) [2024] KECPT 978 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 978 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 743 of 2019

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

May 30, 2024

Between

Susan Atieno Owuor

Claimant

and

Regency Sacco Society Limited

Respondent

Ruling

1. The matter before us for determination is the Notice to Show Cause dated 14th December, 2023 issued to Mary Ondieki, Joseph Kibagendi and Clement Ouya, requiring them to show cause why execution should not be issued against in their capacity as the officials of the Respondent , why the Decree of Kshs. 207,670. 62/= should not be executed against them.The Notice to Show Cause is for execution of the Decree and Certificate of Costs dated 14th December, 2023, which was issued pursuant to the Judgement of the Tribunal entered on 16th December, 2023.

2. In response to the Notice to Show Cause, a Replying Affidavit sworn by Joseph Kibagendi on 9th February, 2024 was filed on 22nd February, 2024. The deponent states that he is the former Vice Chairman of the Respondent herein and has consent of the other former officials mentioned in the Notice to Show Cause. The deponent further states that the persons named in the Notice to Show Cause are not the proper officials of the Respondent; that the Respondent’s by-laws prescribes the leadership period of the officials to last for 3 years, which period has time lapsed as the officials were appointed in 2018 and their terms have since expired. That there is a case pending in the High Court in which former members have challenged the leadership of the Officials; that they have been participating in the suit subject to the fact that the suit was instituted before their term ended. That the Respondent Sacco is not operational as it was closed with the closure of LAICO Regency. That the Respondent’s members are waiting for the case between itself and the Libyan Arab African Investment Company Limited to end in order to be refunded.The deponent further states that the Respondent has always been desirous to settle its accounts with its members. The Claimant was paid the sum of Kshs. 50,000/= before suit and the sum of Kshs. 30,000/= and Kshs.8,251/= during the pendency of the suit. That the Respondent currently has no means of paying the civil debt and the arrest and committal to civil jail will not serve any useful purpose. The deponent finally urges the Tribunal to dismiss the Notice to Show Cause with costs.

Determination 3. We have considered the Notice to Show Cause before us together with the Replying Affidavit and we have observed the following:i.The Notice to Show Cause herein required the three parties in their capacity as officials of the Respondent to show cause why the Decree herein should not be executed against them.ii.That no document has been produced by Joseph Kibagendi to prove that he obtained consent to swear the Replying affidavit in response to the Notice to Show Cause on behalf of Mary Ondieki and Clement Ouya.

4. We therefore find that only Joseph Kibagendi has appeared to show cause why the Decree should not be executed against him. As to whether or not the said Joseph Kibagendi has shown sufficient cause, we find that though the said Joseph Kibagendi alleges that:i.He is no longer an official of the Respondent; that his term lapsed three years after his election in the year 2018; however, there is no evidence in his Replying Affidavit that there has been an election of new office bearers of the Respondent, neither is there a letter of resignation of Joseph Kibagendi from his position as the Vice Chairman of the Respondent. If anything, there is evidence on record that the said Joseph Kibagendi has participated in this suit all along in the capacity of Vice Chairman of the Respondent and even sworn affidavits to that effect dated over 3 years from the year 2018; including swearing an Affidavit sworn on 16th February, 2023, filed on even date. Further the deponents allegation that there are cases challenging his office bearing has no bearing herein as there is no decision from any court or Tribunal removing the officials including himself from office.ii.On the allegation that the Respondent, society was closed when the employer ceased, Joseph Kibagendi has not put forth any evidence. The upshot of the matter is that Joseph Kibagendi has failed to show sufficient cause why the decree dated 14th November, 2023.

5. We order as follows:-1. A warrant of arrest is hereby issued against Joseph Kibagendi for failure to show sufficient cause why the Decree dated 14th November, 2023, should not be executed against him.2. Warrants of arrest are hereby issued against Mary Ondieki and Clement Ouya Jointly and severally for failing to appear and show cause why the Decree dated 14th November 2023 should not be executed against them.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE - MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI - MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 5.2024HON. PAUL AOL - MEMBER SIGNED 30. 5.2024TRIBUNAL CLERK JONAHNo appearance by parties.Ruling delivered in absence of parties.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 5.2024