[2021] KECPT 527 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 271 OF 2015

SIMEON MACHARIA.................................................................................CLAIMANT

VERSUS

SAUTI HOUSING SACCO SOCIETY LIMITED............................RESPONDENT

JUDGMENT

What is before us for consideration and determination is the Respondent’s Notice of Preliminary Objection (“ the P.O”)dated 3. 12. 2020 seeking for the entire claim to be struck out based on the following grounds:

1. An order of specific performance of contract compelling the Respondent to complete sale of the said plot No. 1757 being part of sub-division of Title No. Nairobi Block 82/4264 and to execute all the necessary documents so as to effect the transfer in respect thereof.

2. An order of refund of the said sum of kshs.30,000/= with interest at court rates with effect from 31st July, 1996 till payment in full;

3. An order that the Respondent do refund to the Claimant a sum of Kshs.85,000/= being his accumulated savings during his membership with the Respondent; and

4. Costs of the suit with interest at court rates.

Vide the directions given on 5. 11. 2020, the Preliminary Objection was canvassed by way of written submissions. The Respondent filed its written submissions on 4. 12. 2020 while the Claimant did so on 17. 2.2021.

RESPONDENTS CONTENTION

The Respondent has premised the Preliminary Objection on grounds that:

a.The issues raised and the orders sought in the suit are res judicata, the same having been directly and substantially in issue between the same parties in Milimani CM.CC.NO.11646 of 2006;

b. That to the extent that the suit seeks for an order of specific performance compelling the Respondent to cause a sub-division of Title No. 82/4264 cannot issue in law because the said title does not exist having been already sub-divided and the Respondent is no longer in control;

c. That the issue of withdrawal of membership and refund of savings is governed by the Respondent’s by-laws and therefore the instant claim was been instituted prematurely, and

d. That the Tribunal does not have jurisdiction to handle matters relating to the use, occupation and title to land.

Whilst referring to the holding of the court in the case of Mukisa Biscuits Manufacturing Company Limited –vs- West End Distributors Limited[1969] EA 696, the Respondent submitted that the instant preliminary Objection is competent as the factual circumstances that informs the said objection are not only uncontested but also arise from the pleadings before the court. It cited the decision of the court in the case of Peter Nganga Mwaura -vs- Alfred Mbugua Ngugi & Another [2017] eKLR to buttress this point.

Coming to the merits of the Preliminary Objection and whilst addressing the issue of jurisdiction, the Respondent cited the celebrated case of The owners of the motor vessel “Lillian S” – vs- Caltex Oil Kenya [1989] KLR- 1and submitted that the Tribunal’s jurisdiction under Section 76 (2) of the Co-operative Societies Act (Cap 490) laws of Kenya does not extend to the use, occupation and title to land as envisaged by Article 162 (2) (b) of the Constitution.

That the Claimant herein, being a member of the Defendant entered into a sale Agreement for purchase of Plot No. 601, 647 and 1757. That the Claimant made payment to the plots as follows:

a. Plot 601- kshs.80,000/=

b. Plot 647- Kshs.50,000/= and

c. Plot 1757- Kshs.15,000/=.

That the above payments went towards deposit of the said plots. That he, however did not complete payment for the said plots. That the plots were repossessed subsequently. That it is on this basis that the Claimant has originated this claim. That the Tribunal does not have jurisdiction to grant the orders sought herein. That then the court’s jurisdiction under Section 76 of Cap 490 is only limited to debts or demands does as against a member.

REFUND OF DEPOSITS

On refund of deposits the Respondent contend that its by-laws provides for a clear procedure to be followed by a member when he/she wants his/her deposits refunded. That the same cannot happen as the Claimant is still its member.

CLAIMANT’S CASE

The Claimant has opposed the Preliminary Objection principally on the ground that it does not meet the threshold for a Preliminary Objection. Whilst referring to the case of Mukisa Biscuits Company Limited - vs- West End distributors Limited (supra), the claimant submitted that the Preliminary Objection raises factual issues which require investigation. That the said factual issues include:

a. That the Respondent had offered three plots for sale namely, plot No. 601, 641 and 1757 and whether the Claimant paid for the same;

b. Whether the Claimant withdrew his membership from the Respondent; and

c. Whether or not the Respondent had offered plot No. 1757 as was held in CM.CC.NO.11646/06.

That owing to this it is best that he claim be heard on merits.

RES JUDICATA

The Claimant has opposed the contention that the suit is Res Judicata because of the following reasons:

1. That in the earlier suit there was no claim for refund of his deposit;

2. That the Chief Magistrate’s court in which the former suit was instituted has no jurisdiction to hear and determine the matters raised in this Application.

ISSUES FOR DETERMINATION

We have framed the following issues for determination:

a. Whether the Respondent’s Notice of Preliminary Objection dated 3. 12. 2020 is meritorious and should therefore succeed; and

b. Who should meet the costs of the preliminary objection.

JURISDICTION

The Respondent has sought for entire claim to be struck off on the ground that the Tribunal does not have jurisdiction to entertain the same. The Respondent has anchored the Preliminary Objection on the following grounds:

a. That the matters raised in the instant claim are Res judicata,the same having been directly and substantially in issue in Milimani CM.CC.NO.11646/2006;

b. That to the extent that the suit seeks for an order of specific performance compelling the Respondent to cause a sub-division of Title No. 82/4264 cannot issue in law because the said title does not exist having already been sub-dividend and the Respondent no longer in control.

c. That the issue of withdrawal of membership and refund of deposits is governed by the Respondent’s by-laws and therefore this claim has been instituted prematurely; and

d. That the Tribunal does not have jurisdiction to handle matters relating to the use, occupation and title to land.

As was rightly submitted by the Respondent, jurisdiction is everything and without it, the court has no choice by to down its tools. We rightfully associate ourselves in this regard with the holding of the court in the case of the Owner of Motor “Lillian S”- vs- Caltex Oil Kenya Limited [1989]KLR -where the court held in the pertinent part thus:

“ Jurisdiction is everything, without it a court has no power to make one more step. Where a court has no jurisdiction thee would be no basis for contribution of proceedings pending other evidence. A court of law downs tools in respect of the matter before the moment it holds, that it is without jurisdiction..”

As was rightly submitted by the parties also, the case of Mukisa Biscuits - vs- West End Distributors sets the law relating Preliminary Objections. We cite the pertinent part as follows:

“...A preliminary objection consists of a point of law which has been pleaded, on which arises by clear implication out of pleadings and which of argued as a Preliminary point, may dispose of the suit.”

Further Sir, Charles Newbold Jnr. Held at page 701 thus:

“ A Preliminary Objection - raises, a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretions..”

Clearly and as rightfully submitted by the Plaintiff the court in the Mukisa Biscuits Case set out the following facts to be considers before allowing a Preliminary Objection:

a. That the objection raises a pure point of law;

b. That the facts pleaded are correct; and

c. That the is no fact that pleads to be ascertained.

With these principles in mind, a question abound as to whether the instant objection has satisfied the said principles. We look at each of the issues independently as follows:

RES JUDICATA

The Respondent contend that the matters raised in the instant suit are similar to those raised in CM.CC.NO. 11646/2006. The Claimant has disputed this fact. This becomes a fact in issue which requires investigations. The Respondent has annexed the pleadings in CM.CC.NO. 11696/2006 to the Preliminary Objection. A question arises as to whether this is the correct procedure of introducing documents in court. Our answer is in the negative.

It is our finding that the issue of res judicata is not easily ascertainable from the pleadings as the Respondent would want us to believe. It is a contested fact which can only be proved as way of Affidavit evidence of production of documents during hearing. This is not the case in the current Preliminary Objection. It is that our finding that the issue of Res judicata is not a pure point of law as to invite as to strike out to claim.

WITHDRAWAL OF MEMBERSHIP

Without delving much into this issue, we apply our reasoning above and find that the issue of whether or not to Claimant is a member of the Respondent so as to qualify to demand for refund of savings/deposits is not a matter to be canvassed by way of Preliminary Objection. Equally, the issue as to whether or not there is a dispute resolution mechanism anchored on the Respondent’s by-laws is not a matter to be raised in a Preliminary Objection.

JURISDICTION ON LAND USE, AND ISSUANCE OF TITLE

Again as to whether the matter before the Tribunal re....to land use and title to land, evidence must be led. It is not within the preview of a preliminary objection.

CONCLUSION

The upshot of the foregoing is that we do not find merit in the Respondent’s Notice of Preliminary Objection dated 13. 12. 2020 and hereby dismiss it with costs to the Claimant.

Ruling signed, dated and delivered virtually this 6thday of May, 2021.

Hon. B. Kimemia Chairperson ...................................

Hon. J. Mwatsama Deputy Chairperson ....................................

Mr. P. Gichuki Member ....................................

Tribunal Clerk .............................