[2021] KECPT 607 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.697 OF 2019

RICHARD MUGAMBI MAINGI..........................................................CLAIMANT

VERSUS

ST. MARY’S TRANSPORT SACCO SOCIETY LIMITED..........RESPONDENT

RULING

Vide the Application dated 28. 1.2020, the Claimant has moved this Tribunal seeking for the following Orders

a. That this Application be certified as urgent service to the Respondent be dispensed with and the Application be heard ex-parte in the 1st instance;

b. That this Honourable Tribunal does Order the Respondent to release and clear the Applicant’s motor vehicle Registration No. KAZ 193 E with the NTSA to enable him register with the Sacco of his choice, being LA Trans Limited to enable him operate his vehicle with and through the new Sacco.

c. That in the alternative, and without prejudice to the proceeding paragraph the Honourable Court does, at the 1st instance, Order and/or direct the National Transport and Safety Authority (NTSA) to remove and/or delete the registration of the Plaintiff’s motor vehicle registration No. KAZ 193E with the Respondent herein, being St. Mary’s Transport Sacco Society Limited and thereafter direct the said motor vehicle be registered with LA Trans Limited, the said choice of the Respondent.

d. That the Honourable Court does also issue injunctive Orders against the Respondent, its officials, servants, agents or any other person or institution acting under the Respondents direct and/or implied instructions from interfering with the operations of Registration No. KAZ 193E.

e. That the Honourable Court does subsequently allow the Applicant to amend his claim to include the Respondent’s Chairman as a Respondent in this claim.

f. That the Respondent be condemned to pay costs.

The Application is supported by the grounds on its face and the Affidavit sworn by himself on even date (28. 1.2020). The Respondent has opposed the same by filing a Replying Affidavit sworn by Joseph Mathenge Kabiru on 4. 3.2020. The Claimant filed a further Affidavit sworn by himself on 18. 8.2020.

Vide the directions given on 24. 4.2020, the Application was canvassed by way of written submissions. The Claimant filed his on 1. 9.2020. The Respondent did not do so despite service and several indulgence by the Tribunal.

Claimant’s Case

In the present Application the Claimant contend that the Respondent stopped his motor vehicle registration No. KAZ 193 E from operating under the Respondent’s route after he refused to pay extortionist charges imposed by the Respondent.

That the Respondent has thus spitefully and maliciously declined to discharge the said motor vehicle from the NTSA thus preventing him from registering it with another Sacco.

Respondent’s Contention

The Respondent has opposed the Application on the following grounds:

That the suit motor vehicle (KAZ 193E) is registered in the name of Samuel Kiptanui Boit, one of the its members as well. That annexture RMM-1 of the annextures to the Claimant’s supporting Affidavit (sworn on 28. 1.2020) confirms this fact.

That on 15. 11. 2012, Samuel Kiptarus Boit applied for a loan of kshs.400,000/= from the Respondent. That the said loan was approved on 16. 1.20. That subsequently, Mr. Boit defaulted in repaying the said loan and such, the Respondent has a lieu of over the suit motor vehicles.

That it is not its mandate to transfer motor vehicles as that is the exclusive mandate of the NTSA.

Claimant’s further Affidavit

Whilst rebutting the averments made by the Respondent above, the Claimant contends as follows in the instant Affidavit.

That the said motor vehicle is registered in his name. That a certificate of registration annexed to the Affidavit is marked as RM-1confirms the said fact.

That as regards the status of Samuel Boit in the Respondent, the said Samuel Boit resigned from the Respondent by virtue of being a policeman on 4. 1.2020. That he wrote a letter confirming that fact. That from the said letter, the security for repayment of Mr. Boit’s loan is Motor Vehicle Registration No. KAX 366W and not KAZ 193E.

That he never applied for a loan alluded to by the Respondent.

Issues for determination

We have framed the following issues for determination:-

a. Whether the Claimant has established a proper basis to warrant an Order issued directing the Respondent or NTSA to release and clear his motor vehicle registration No. KAZ 193E with NTSA.

b. Whether the Claimant has established a proper basis for the grant of an order restraining the Respondents from interfering with operation of Motor Vehicle Registration No. KAZ 193E.

c. Whether the Claimant should be allowed to amend his claim.

d. Who should meet the costs of the Application.

Discharge of the Claimant’s Motor Vehicle

Rule 5 of the NTSC (Operation of Public Service Vehicles) Regulations, 2014 provide the manner in which a person desirous of operating a Public Service Vehicle can obtain a license to undertake such a business. It provides in the pertinent part thus:

“ 5 (1) A person desirous of operating Public Service Vehicle, shall be a member of a body Corporate which shall-

a. Be licensed to operate if the body corporate owns a minimum of thirty serviceable vehicles registered as public service vehicle, or in respect to which an application for a license has been or is to be lodged with the authority..”

It follows therefore that a person can only secure a Road Service License through a Corporate entity. In the circumstances of this case, a Co-operative Society.

What is discernible further is that the NTSA only issues Public Service License to Corporate entities who meet the requirements of Rule 5 of the Rules aforesaid. Once this happens, it will now be incumbent upon the corporate entity to submit details of vehicle operating under it to facilitate issuance of Road Service Licenses. What this means therefore is that a Road Service License of a particular vehicle can only be withdrawn upon approval by the Corporate entity under which its operating.

In the present Application, the Claimant contends that his motor vehicle registration No. KAZ 193E operates under the Respondent. That it is desirous of leaving the Respondent but it has unreasonably refused and/or declined to discharge it. That it now wants the Respondent to be compelled to release him.

On its part, the Respondent contend that it does not have power to effect the transfers as that is the sole preserve of NTSC. That in any event, the Claimant is not the registered owner of the Motor Vehicle Registration No. KAZ 193E. That the registered owner is one Samuel Kiptanui Boit. That the said Samuel Boit has a loan which he took and it thus holds the said motor vehicle as its lien.

We have perused annexture RM-1 of the annextures to the Claimant’s further Affidavit sworn on 18. 8.2020. It is the certificate of official search of Motor Vehicle Registration No. KAZ 193 E. It shows the current registered owner as Richard Mugambi Maingi, the Claimant herein. With this revelation in the fore, we find the Respondent’s arguments surrounding ownership of the said motor vehicle baseless.

As to whether or not the Claimant is indebted to the Respondent, we have perused the Respondent’s Replying Affidavit sworn on 4. 3.2020. We note that the only document pointing towards the Claimants indebtedness to it is annexture DRD4. It is a letter addressed to the Claimant dated 1. 11. 2019. Vide the said letter, the Respondent is calling for repayment of an outstanding loan of Kshs.40,000/=. The Respondent has not annexed documents to show advancement and accrual of the said loan. This is the loan Application form and loan statement. In the absence of these documents, we are unable to ascertain if indeed the Claimant has an outstanding loan with it.

The totality of the foregoing therefore is that we are satisfied that the Claimant has established a proper basis to warrant us issue an Order directing the Respondent to discharge and/or release motor vehicle registration KAZ 193E from its membership.

Order against NTSC

We find that we do not have jurisdiction to make any Order against NTSC.

Amendment of Claim

As regards the prayer for amendment of the claim, we note that the Respondent has not opposed it and that the Respondent will not suffer any prejudice if the same is allowed. We however, do not find a basis with which the Claimant wants to include the Respondent’s Chairman as a party while it has already said the Respondent as a Principal party. We however do not want to direct the Claimant on what to do with his case.

Conclusion

The upshot of the foregoing is that we allow the Claimant’s Application as follows:

a. That an Order is hereby issued directing the Respondent to release and clear the Claimant’s Motor Vehicle registration No. KAZ 193E with NTSC to enable him register with a Sacco of his choice;

b. The Order (a) above to subsist pending the hearing and determination of the main claim; and

c. Costs in the cause

Ruling signed, dated and delivered virtually this 28thday 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. Mwikali holding brief for Mutua for defendant: Present

Mention for Pre- trial directions on 16. 3.2021. Notice to issue.

Hon. B. Kimemia Chairperson Signed 28. 1.2021