[2020] KECPT 92 (KLR)
The Tribunal found that the subject matter of the appeal is the inquiry and subsequent surcharge order issued by the Commissioner for Co-operative Development against members of Maseno University Sacco Society Limited. The Sacco, being the entity whose affairs are under inquiry and whose members are affected by the...
Source-derived case information.
- Citation
- [2020] KECPT 92 (KLR)
- Parties
- Appellant: Richard Olendo; Appellant: Dr. Constantine Wasonga; Appellant: Loi Muhunja Kirui; Respondent: Commissioner for Co-operative Development, Ministry of Industry, Trade & Co-operatives; Respondent: Maseno University Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Appeal 2 of 2019
- Procedural Posture
- Tribunal Appeal / Ruling on Application for Joinder of Party
- Outcome
- application allowed
- Legal Topics
- Joinder of Parties, Locus Standi, Cooperative Societies Inquiries, Surcharge Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Olendo
Appellant
Dr. Constantine Wasonga
Appellant
Loi Muhunja Kirui
Appellant
Commissioner for Co-operative Development, Ministry of Industry, Trade & Co-operatives
Respondent
Maseno University Sacco Society Limited
Respondent
Procedural Posture
Tribunal Appeal / Ruling on Application for Joinder of Party
Legal Issues
- 1 Whether Maseno University Sacco Society Limited should be enjoined as the 2nd Respondent in the appeal.
- 2 Whether the Applicant has locus standi to participate in the proceedings.
- 3 Whether the joinder is necessary for the adjudication and settlement of all questions involved in the suit.
Ratio Decidendi
The Tribunal found that the subject matter of the appeal is the inquiry and subsequent surcharge order issued by the Commissioner for Co-operative Development against members of Maseno University Sacco Society Limited. The Sacco, being the entity whose affairs are under inquiry and whose members are affected by the surcharge, is a necessary party to the proceedings. The Tribunal emphasized that the Co-operative Society is central to the implementation of the inquiry's recommendations and that its exclusion could prejudice its members. The Tribunal further noted that the Commissioner acts as an administrative body on behalf of the Society, and that the proper challenge to the...
Court Disposition
application allowed
Orders
- Maseno University Sacco Society Limited is enjoined as the 2nd Respondent.
- The 2nd Respondent is allowed to participate in all the proceedings herein.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL APPEAL NO. 2 OF 2019
RICHARD OLENDO ...........................................................1STAPPELLANT
DR. CONSTANTINE WASONGA.....................................2ND APPELLANT
LOI MUHUNJA KIRUI.....................................................3RD APPELLANT
VERSUS
COMMISSIONER FOR CO-OPERATIVE
DEVELOPMENT, MINISTRY OF INDUSTRY,
TRADE & CO-OPERATIVES..........................................1ST RESPONDENT
MASENO UNIVERSITY SACCO
SOCIETY LIMITED................................PROPOSED 2ND RESPONDENT
RULING
The matter for determination is a Notice of Motion application dated 28. 6.19 seeking the following orders:
1. That this matter be certified urgent and be heard exparte in the first instance.
2. That the Applicant Maseno University Sacco Society Limited be enjoined as the 2nd Respondent and allowed to participate in all proceedings herein.
3. That the costs of the Application be provided for.
Based on the grounds on the face of the Application and supported by the Affidavit of Prof. Andrew Oduor, treasurer of Maseno University Sacco deponed and filed on 28. 6.2019. The Application is opposed vide the Replying Affidavit of Dr. Constantine Wasonga filed on 8. 7.2019.
The parties filed written submissions, the Appellant on 29. 8.19, the proposed 2nd Respondent/Applicant on 30. 8.2019.
The Applicant prays to be enjoined in the Appeal, being the Co-operative Society who is the subject matter of the inquiry.
The Applicant has submitted that they hold the crucial records which aided the inquiry and its for their benefit to be enjoined as parties to the Appeal. That the matter in issue is the inquiry made by the 1st Respondent against the Appellants who were serving in the proposed 2nd Respondents, being the Society. That Order 1 Rule 10 (2) Civil Procedure Rule provides for enjoining of parties as may be necessary to adjudicate the matter and settle all questions involved in the suit.
The Appellants have submitted that the Applicant lacks locus standi since they have no legal role to play in the matter, this being a decision made by the 1st Respondent in its administration. That there are other suits CTC269/19,271/19 and 272/19 pending and they have not been disclosed hence the Applicant’s Application is sub-judice.
That the Application lacks merit and is not founded on any provisions of the Law and should therefore be dismissed.
We have carefully considered the Application and the submissions in the matter. We note that a surcharge arises out of an inquiry into the affairs of a Co-operative Society under section 58 of Co-operative Society Act. Indeed after an inquiry, the Commissioner is required to report the findings of the inquiry at a General Meeting of the Society and then give directions for the implementation of the recommendations of the inquiry report. The Co-operative Society therefore forms the subject matter over which the inquiry is done and its therefore critical that the said Society be involved in all the matters or proceedings which are based on its affairs. It’s imperative to note that the Commissioner carries out the inquiry on behalf of the Co-operative Society as an oversight or administrative body. The Co-operative Society is therefore the basic organ which carries the responsibilities of the members. The Commissioner is an administrative body and if in fact the appellants had intended to challenge the actions of the Commissioner in carrying out the surcharge, then a Judicial Review would suffice. We note that this is an Appeal against the Surcharge Order of the Co-operative Society against it’s members. It therefore goes without say that the Co-operative Society form a necessary party to the Appeal, noting that the members of the Co-operative Society may be prejudiced if they are not enjoined as a Party to the Appeal.
We therefore find that the Application dated 28. 6.2019 has merits and accordingly order as follows:
1. That Maseno University Sacco Society Limited be enjoined as the 2nd Respondent.
2. That the 2nd Respondent is allowed to participate in all the proceedings herein.
3. Costs in the cause.
Read and delivered in accordance with the guidelines issued by the Hon. Chief Justice on 15. 3.2020, this 9thday of April, 2020.
Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.
With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.
Hon. B. Kimemia Chairman Signed 9. 4.2020
Hon. F. Terer Deputy Chairman Signed 9. 4.2020
P. Gichuki Member Signed 9. 4.2020