[2023] KECPT 808 (KLR)

Sokoro Savings & Credit Co-operative Society Limited v Mwamburi (Tribunal Case 53 of 2022) [2023] KECPT 808 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 808 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 53 of 2022

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2023

Between

Sokoro Savings & Credit Co-operative Society Limited

Claimant

and

Abeid Mwamburi

Respondent

Ruling

1. This ruling dispenses with the Claimants Notice of Motion Application dated 15th February 2022 supported by an affidavit sworn by one, Joseph Ouko, former internal auditor of the Claimant, and brought under article 159 of the constitution, Sections 26,27 and 28 of the Limitation of Actions Act and Sections 78,79 and 80 of the Co-operative Societies Act. The Application seeks the following orders:1. That this Application be certified as urgent and service thereof be dispensed with ex-parte in the first instance.

2. That the Honourable court be pleased to grant leave to the Applicant to file suit against the Respondents herein out of time.

3. That this Honourable Court be pleased to order that the Statement of Claim annexed to the Supporting Affidavit together with the respective documents in support of the suit be adopted as duly filed upon payment of the requisite fees.

4. That the costs of Application be in the cause.

2. The Application is premised on the grounds on its face which are inter alia that: the Applicants filed a suit in Chief Magistrates Court at Molo, Case Number 319 of 2017 against the Respondents. The Respondent put in a Preliminary Objection on grounds of jurisdiction in which the court ruled in the favour of the Applicants. The Respondent appealed to the High Court via Case Number Nakuru HCA 154 of 2018, and the Judgment of Appeal was delivered in October 2021 at which the Preliminary Objection was upheld and the court directed that the matter be filed before the Cooperative Tribunal, hence the delay in filing suit.

3. In their submissions, the Claimants relied on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral Commission & 7 Others, which identified the salient principles to be considered in an Application for extension of time. Which are:a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtc.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the Application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

4. The Respondent did not put in any submissions. In their submissions the Claimants submit that it is a Sacco Society while the Respondent was its Chief Executive Officer between 2012 to 2016 when he was summarily dismissed. The Respondent is alleged to have fraudulently approved and signed member’s money without the consent of the society or the members. It is also the Claimant’s claim that the Respondent failed to deposit money brought in by members to their accounts.

5. In his Response, the Respondent filed a Replying Affidavit where he admits that he was indeed in the employment of the Claimant. The Respondent also admits that the Claimant instituted proceedings at Molo Chief Magistrate Court. He further submits that the time to institute the claim at the Tribunal has elapsed since the Tribunal is guided by the Limitations of Actions Act. The Respondent has not put in any response to the allegations by the Claimant.

6. The Tribunal has considered the Claimant’s Written Submissions and the Respondent’s Replying Affidavit on this matter. It is not in dispute that the Claimant and the Respondent had a contractual relationship that ended in the dismissal of the Respondent. It is also not in dispute that the Claimant instituted a case in Molo Chief Magistrates Court, and the same was dismissed for want of jurisdiction at the Appeal. It is also not in dispute that when the matter was instituted at Molo Chief Magistrates Court, it was still within time, and the only issue that prevented it from proceeding was the issue of jurisdiction.

7. In the case of Edith Gichungu Koine Vs Stephen Njagi Thoithi [2014]eKLR Odek JJA noted thus:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”Further in In Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015]eKLR, the Court of Appeal articulated that:“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.”

8. Considering the above authorities, submissions of the Claimant, as well as the Respondent’s response, the Tribunal finds that the delay was caused by the Claimant’s advocate filing the matter in the wrong fora. The Claimant’s claim also raised triable issues, and no prejudice will be occasioned on the Respondent if this Application is allowed.

9. In the upshot of the foregoing, the Tribunal finds the Notice of Motion Application dated 15th February 2022 meritorious and order as follows:a.The Statement of Claim filed together with the application herein together with the annexed documents is hereby deemed as duly filed on payment of filing fees.

b.The Statement of Claim together with the annexed documents be served upon the Respondent within 14 days herein.

c.Parties to file their pleadings, Witness Statement and documents within 30 days herein.

d.Each party to bear its own costs.

e.Mention for Pre-trial directions on 18. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER