[2017] KEHC 1145 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

MISC.CIVIL CASE NO.33 OF 2015

STANLEY KINOTI & 15 OTHERS.....................................CLAIMANTS

VERSUS

SIMON GITOBU ITHIRIA.......................................1ST RESPONDENT

KATHERI FARMERS COOP SOCIETY LTD........2ND RESPONDENT

RULING

By an application dated 15th May 2015 the claimants herein through the firm of M/S Chariles Kariuki and Koome Associates Advocates sought that Co-operatives Tribunal Cause No.38 of 2005 at Nairobi be transferred for trial and disposal at the Meru High Court has requisite jurisdiction to adjudicate matters in dispute. They also sought for costs of the application. The grounds upon which application was brought was that on 26th March 2015 when they appeared before the Tribunal they were informed the Tribunal had no jurisdiction to hear the matter and they were referred to High court at Meru.

The application was also supported by affidavit of Stanely Kinoti sworn on 15th May 2015. The 1st Respondent opposed the application vide Replying Affidavit sworn on 15th June 2015 in which he attached a copy of an order dismissing the claimants case at the Tribunal on 13th April 2010 – SG12 – for want of appearance. The 1st Respondent also said that the claimants have not annexed the order purporting to refer the claimants to the High court at Meru.

Daniel Muruingi the Chairman Manager of the 2nd Respondent also swore a Replying Affidavit and averred that the claimants are time barred to execute award of the tribunal.

Mr Daniel Muriungi confirmed that the Tribunal had expressed their view that they lacked jurisdiction to hear and determine the matter due to legal issues involved and that the terms of the award were clear that 1st Respondent was to compensate the Claimants and share cost of lunch, allowances with the 2nd Respondent.

It was averred that most claimants had died and therefore it would be important to identify them physically and thus paying the award by 2nd Respondent will be unfair and unjust enrichment for the claimant without establishing their physical existence.

The 2nd Respondent was not opposed to the Co-operative Tribunal Cause No. 38 of 2008 being transferred to the High Court for Adjudication.

In submissions the claimants counsel have argued that they seek adoption of the award dated 23rd June 2012 as judgment of the court for purposed of the execution of Kshs 367,200/- and interest from 23rd June 1997 and costs. It was argue that application for execution was pending before the Tribunal until on 26th March 2015 when the Tribunal declared that it had no jurisdiction to hear the matter 15 years down the line.

That the Tribunal sitting was of the opinion that matter ought to be heard by the High court for the enforcement of the award pursuant to S. 80 of the 1996 Act. – Co-operative Societies Act.

The 2nd Respondents in submission said that supporting affidavit doesn’t have annexed consents of the 15 claimants for whom Stanley Kinoti claims to be acting on their behalf and this from itself to another court or from another court to itself. It was also argued that the award that is intended to be executed is over taken by events as most claimants have died and or statute barred by limitation of time and it is not comprehended how the applicant is deponing on behalf of dead people.

What is jurisdiction of the High Court in regard to matters arising from the Co-operative Societies Tribunal? Section 81 provided as follows:

81(1) Any party to the proceedings before the Tribunal who is aggrieved by an order of the Tribunal may within 30 days of such order appeal against such order to the High court; provided that the High court may where it is satisfied that there is sufficient reason for so doing extend the said period of 30 days upon such conditions if any as it may think fit.

81(2) Upon hearing of an appeal under this section the High Court may

a) Confirm, set aside or vary the order in question

b) Remit the proceedings to the Tribunal with such instructions for further consideration report, proceedings or evidence as the court may deem fit to give.

c) Exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought; or

d) Mae such other order as it may deem just, including an order as to costs of the appeal or earlier proceedings in the matter before the Tribunal.

81(3) The decision of the High Court on any appeal shall be final.

Section 79 provides for an award of the Tribunal thus:-

79(3) Where the Tribunal enters judgment in terms of the award together with costs it shall issue a decree which shall be enforceable as a decree of the court.

79(4) The Tribunal shall have unlimited geographical and pecuniary jurisdiction in matters of Co-operative disputes.

Section 96 provides for Repeal and savings from the Co-operatives Act of 1966 as follows:-

S.96 (2)(d)

Any orders, directions appointment and other acts lawfully made or done under any of the provisions of the repealed Act and enforce immediately before the commencement of this Act shall be deemed to have been made or done under the corresponding provision of this Act and shall continue to have effect accordingly.

I have quoted the 3 above relevant sections of the Co-operative Societies Act 2012 to show that the High Court’s jurisdiction in relation to disputes before the Co-operative Societies Tribunal is that of an appellate court and that although the Co-operatives societies Act 1966 was repealed S.96 has transition clauses that are applicable in the matter so that a cause should not collapse or rendered nugatory merely because of the repeal. It therefore follows that the Tribunal should be able to enforce its own decrees expeditiously to avoid exposing litigants before it to hardships and confusion as to which forum they should seek redress.

The grounds upon which Stanley Kinoti’s application dated 15th May 2015 is based are that he and 15 others were referred to the High court at Meru. The 1st Respondent as the others had claimed the cause at Tribunal was dismissed. The applicant has annexed an award dated 23rd June 1997 but the order allegedly transferring the cause to the High court is not annexed. The 2nd Respondent admits that the Tribunal felt they could not handle matters due to the issues involved in the cause.

Those issues are not specified and again certified copies of the proceedings which could have enabled, the court to make an informed decision as to whether it should handle the matter from the Tribunal is not annexed.

Whether the cause at the Tribunal was dismissed or whether it has been pending for 15 years awaiting execution of the Tribunals award can therefore only be unravelled by the production as in this court of the proceedings of the Tribunal.

This court is not satisfied that the application should be allowed without material facts but at the same time and in the interest of justice cannot dismiss it seeing that parties herein have been waiting Justice for such a long period of time. Their cause needs to be heard exhaustively and substantively.

Chairman Co-operative Societies Tribunal is therefore hereby ordered to provide this court with certified copies of the proceedings and award in cause No.38 of 2005 to enable a more conclusive decision in the matter to be made.

HON. A.ONG’INJO

JUDGE

Ruling Signed, Delivered and Dated this 15th of November 2017

In the presence of;

C/A :Penina

Claimants:Mr Mwiti Advocate for Claimants

Respondent: Mr Mutunga Advocate for 2nd Respondent

1st Respondent – M/s Ondabu and Co Advocate- No appearance

HON. A.ONG’INJO

JUDGE

Order

Deputy Registrar to execute the order by calling for proceedings in cause No 38 of 2005.

Mention 28. 2.2018. Parties to be supplied with copies of ruling at own costs.

HON. A.ONG’INJO

JUDGE