[2020] KEHC 6701 (KLR)
The High Court found that, although the dispute was not one that must mandatorily be referred to the Co-operative Tribunal, its nature was such that it broadly concerned the business of a Co-operative Society. The Tribunal is the most suitable forum for adjudicating such disputes, and referring the matter aligns...
Source-derived case information.
- Citation
- [2020] KEHC 6701 (KLR)
- Parties
- Plaintiff: Samwel Marak; Plaintiff: Zablon Change; Plaintiff: Josiah Oyaro; Plaintiff: David Nyaribo; Plaintiff: Alfred Nyairo; Plaintiff: Zachary Ondara; Plaintiff: Samwel Moses; Defendant: The Commissioner for Co-operatives
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 40 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Recall Referral to Tribunal
- Outcome
- application dismissed
- Judges
- EM Muchoki
- Legal Topics
- Jurisdiction of Tribunals, Referral of Disputes, Ultra Vires Actions, Alternative Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Marak
Plaintiff
Zablon Change
Plaintiff
Josiah Oyaro
Plaintiff
David Nyaribo
Plaintiff
Alfred Nyairo
Plaintiff
Zachary Ondara
Plaintiff
Samwel Moses
Plaintiff
The Commissioner for Co-operatives
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Recall Referral to Tribunal
Legal Issues
- 1 Whether the High Court acted ultra vires in referring the dispute to the Co-operative Tribunal.
- 2 Whether the Co-operative Tribunal has jurisdiction to hear the dispute between the parties.
- 3 Whether there is merit in recalling the referral order.
Ratio Decidendi
The High Court found that, although the dispute was not one that must mandatorily be referred to the Co-operative Tribunal, its nature was such that it broadly concerned the business of a Co-operative Society. The Tribunal is the most suitable forum for adjudicating such disputes, and referring the matter aligns with the court's constitutional obligation to promote alternative dispute resolution mechanisms. The applicant failed to demonstrate any compelling reason or legal basis for recalling the referral. Therefore, the application to recall the referral was dismissed, and the dispute remains before the Tribunal unless the Tribunal itself declines jurisdiction.
Court Disposition
application dismissed
Orders
- The application to recall the referral to the Co-operative Tribunal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
MISC. CIVIL SUIT NO. 40 OF 2019
1. SAMWEL MARAK…......……………………….……………………1ST PLAINTIFF
2. ZABLON CHANGE….......……………………………………...……2ND PLAINTIFF
3. JOSIAH OYARO…......….……………………………………...…….3RD PLAINTIFF
4. DAVID NYARIBO…........……………………………………...……..4TH PLAINTIFF
5. ALFRED NYAIRO…….....………………………………………..…5TH PLAINTIFF
6. ZACHARY ONDARA……….....…………………………………….6TH PLAINTIFF
7. SAMWEL MOSES…………......………………………………….….7TH PLAINTIFF
VERSUS
THE COMMISSIONER FOR CO-OPERATIVES………………………...DEFENDANT
RULING
Before me is the Notice of Motion dated 27th September 2019 which principally seeks an order that this court be pleased to recall Nyamira HCCC No. 1 of 2018 referred by this court to the Co-operative Tribunal by a ruling dated 14th February, 2019. The gist of the application is that the Co-operative Tribunal does not have jurisdiction to hear the dispute between the parties and hence the action of this court was ultra vires. The application is supported by the affidavit of Josiah Oyako sworn on 27th September, 2019 in which he deposes that the Co-operative Tribunal has no jurisdiction to dispose this matter and hence the case cannot proceed there.
The application was opposed by way of grounds of opposition filed out of time without leave on 20th November 2019 and which in the circumstance this court shall ignore.
On 24th October, 2019 this court directed counsel for the parties to file written submissions but by 30th January, 2020 and even by the time of writing this ruling only those of the Learned counsel for the applicant had been received. As it were the application is unopposed.
I have nevertheless carefully considered the application and my finding is that the same has no merit. As stated in the impugned ruling this court recognized that the dispute between the parties was not one of those that it was mandatory to refer to the Co-operative Tribunal. Nevertheless, this court referred the dispute there given that its nature was one that can broadly be regarded as “one concerning the business of a Co-operative Society” and the Tribunal being the best adjudicator of such disputes and in view of this court’s obligation to promote alternative dispute resolution under Article 159 of the Constitution it was in the interest of justice to do so. The applicant has not by his arguments persuaded this court otherwise and in the premises this court finds no good reason to recall the dispute. The same shall be adjudicated by the Tribunal unless the Tribunal itself informs this court that it has no capacity to dispose of it. This application is accordingly dismissed but there shall be no order for costs given that it was not opposed.
Signed, dated and delivered in Nyamira this 23rd day of April 2020.
E. N. MAINA
JUDGE
This Ruling was delivered electronically in view of the Ministry of Health and the World Health Organization’s guidelines on combating the Covid-19 pandemic, the Advocates for the parties having consented.