[2021] KECPT 559 (KLR)
The Tribunal held that Section 76 of the Co-operative Societies Act (Cap 490) expressly grants it jurisdiction to determine disputes arising between a co-operative society and its members, or between co-operative societies. This statutory jurisdiction is not subordinate to or ousted by the society's internal...
Source-derived case information.
- Citation
- [2021] KECPT 559 (KLR)
- Parties
- Applicant: Patricia Jeckonia and 46 others; Respondent: Liverpool VCT SACCO Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 145 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the claimants
- Legal Topics
- Jurisdiction of Tribunal, Cooperative Society Disputes, Interpretation of by Laws
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patricia Jeckonia and 46 others
Applicant
Liverpool VCT SACCO Society Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Tribunal has jurisdiction to entertain the claim despite the Respondent's By-laws requiring disputes to be first presented to the Annual General Meeting.
- 2 What orders are appropriate in the circumstances.
Ratio Decidendi
The Tribunal held that Section 76 of the Co-operative Societies Act (Cap 490) expressly grants it jurisdiction to determine disputes arising between a co-operative society and its members, or between co-operative societies. This statutory jurisdiction is not subordinate to or ousted by the society's internal By-laws, including any requirement to first refer disputes to the Annual General Meeting. Therefore, the Tribunal has jurisdiction to hear and determine the claim, and the Respondent's preliminary objection is without merit.
Court Disposition
preliminary objection dismissed with costs to the claimants
Orders
- The Respondent's Notice of Preliminary Objection dated 19.10.2020 is dismissed with costs to the Claimants.
- Matter to be mentioned for pre-trial directions on 16.3.2021.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.145 OF 2020
PATRICIA JECKONIA AND 46 OTHERS........................................CLAIMANTS
VERSUS
LIVERPOOL VCT SACCO SOCIETY LIMITED......................RESPONDENT
RULING
This is our Ruling on the Respondents Notice of Preliminary (P.O) dated 19. 10. 2020. The substance of the Preliminary Objection is that this Tribunal does not have jurisdiction to entertain the claim in lieu of the Respondent’s By-laws. The Respondent expounded on the Preliminary Objection vide its written submissions filed on 13. 11. 2020. Vide the said submissions, the Respondent contend that Clause 75 of its By-laws provides thus:
“ Any dispute, arising out of these By-laws or concerning the business of the society, which cannot be settled amicably by the Management Committee on the Annual General Meeting shall be referred to the Tribunal.”
The Respondent submits that the Claimant has jumped the gun by originating the claim before this Tribunal without first presenting it to the Annual General Meeting. It submits that it is on this basis that the Tribunal does not have jurisdiction to entertain the claim. Claimant’s Case
The Claimants has opposed by Preliminary Objection vide the submissions filed on 9. 11. 2020. Vide these submissions, the Claimant contend that this Tribunal has jurisdiction to entertain the claim inlieu of Section 76 of the Co-operative Societies Act (Cap 490) Laws of Kenya.
Issues for determination
The Respondent’s Notice of Preliminary Objection has presented the following issues for determination.
a. Whether this Tribunal has jurisdiction to entertain the claim.
b. What Orders are available in the circumstances?
Jurisdiction
Jurisdiction is everything. Without it, a court/ Tribunal downs its tools. This was the holding in the celebrated case of in the matter of Motor Vessel “ Lilians” – vs- Catex Oil (Kenya ) Limited [1989] eKLR.
The question then is whether we have jurisdiction to entertain the claim herein. We draw our jurisdiction from Section 76 of the Co-operative Societies Act. We replicate it as follows:
“ 76 (1) A If any dispute concerning the business of a Co-operative Society....
a. among members, past members and persons claiming through members, past members and deceased members; or
b. between members, past members or deceased members, and the society, its committee or any officer of the society; or
c. between the society and any other Co-operative Society;
It shall be referred to the Tribunal.
(2) A dispute for the purpose of this Section shall include-
a. a claim by a Co-operative Society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt, or demand is admitted or not or
b. a claim by a member, past member or the nominee or personal representative of a deceased, member for any debt or demand, due from a Co-operative Society, whether such debt or demand is admitted or not. “
It follows therefore that Section 76 of the Co-operative Society Act (Cap 490) endows the Tribunal with jurisdiction to handle virtually any dispute arising between a Co-operative Society and its members, a Co-operative Society and another Co-operative society and members of Co-operative Societies. This jurisdiction is not and can never be subordinate to the Society’s By-laws. Therefore, to the extent that Societies incorporate clauses relating to Dispute Resolution Mechanisms in their By-laws, as in the case with the Respondent herein, the same does not bar a party from seeking redress from the Tribunal as a court of first instance. It therefore follows that the current claim is rightly before us and that we have jurisdiction to entertain it.
Conclusion
The upshot of the foregoing is that we dismiss the Respondent’s Notice of Preliminary Objection dated 19. 10. 2020 with costs to the Claimants.
Ruling signed, dated and delivered virtually this 28th day of January, 2021.
Hon. B. Kimemia Chairperson Signed 28. 1.2021
Mr. B. Akusala Member Signed 28. 1.2021
Mr. R. Mwambura Member Signed 28. 1.2021
Miss Nambiriga holding brief for Ambega for the Claimants : Present
No Appearance for Respondent
Mention for Pre-trial directions on 16. 3.2021. Notice to issue.