[2019] KECPT 58 (KLR)
The Tribunal found that under Section 28(3) of the Cooperative Societies Act, the management committee is the governing authority of the society and is responsible for ensuring compliance with court orders, including payment of decretal amounts. The officials named in the notice to show cause are obligated to do all...
Source-derived case information.
- Citation
- [2019] KECPT 58 (KLR)
- Parties
- Applicant: Stephen Munyoki Nyamai; Respondent: Regency Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 134 of 2018
- Procedural Posture
- Notice to Show Cause / Ruling on Notice to Show Cause and Execution Proceedings
- Outcome
- Objection to notice to show cause dismissed; warrant of arrest to issue against named officials.
- Legal Topics
- Execution of Judgment, Liability of Officials, Cooperative Societies, Civil Jail, Debt Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Munyoki Nyamai
Applicant
Regency Sacco Society Limited
Respondent
Procedural Posture
Notice to Show Cause / Ruling on Notice to Show Cause and Execution Proceedings
Legal Issues
- 1 Whether the officials of the respondent cooperative society can be arrested and committed to civil jail for failure to pay the decretal amount.
- 2 Whether the respondent has demonstrated inability to pay the decretal sum as ordered by the court.
- 3 Whether the objections raised in the replying affidavit have merit under the Cooperative Societies Act.
Ratio Decidendi
The Tribunal found that under Section 28(3) of the Cooperative Societies Act, the management committee is the governing authority of the society and is responsible for ensuring compliance with court orders, including payment of decretal amounts. The officials named in the notice to show cause are obligated to do all things necessary to achieve the objectives of the cooperative, which includes satisfying court decrees. The respondent failed to file any affidavit of means to demonstrate inability to pay, and the objections raised in the replying affidavit were found to lack merit. The Tribunal held that the officials could be arrested and committed to civil jail for the society's debt, and...
Court Disposition
Objection to notice to show cause dismissed; warrant of arrest to issue against named officials.
Orders
- Objection/opposition to the notice to show cause dated 19.6.2019 is dismissed with costs.
- Warrant of arrest to issue against Joseph Kibangendi, Mary Ondieki, Sammy Sambu, and Clement Onyango.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO. 134 OF 2018
STEPHEN MUNYOKI NYAMAI..........................CLAIMANT
VERSUS
REGENCY SACCO SOCIETY LIMITED......RESPONDENT
RULING
Matter for determination is a notice to show cause dated 19. 6.2019 seeking for the respondent to show cause why JOSEPH KIBANGENDI, MARY ONDIEKI, SAMMY SAMBUand CLEMENT ONYANGO should not be arrested and committed to civil jail for failing to pay the decretal amount of Kshs. 268,194. 40. The same was opposed vide a replying affidavit of JOSEPH KIBANGENDI the vice chair of the respondent indicating that there was no declaration that the said mentioned persons are personally liable to pay the judgment amount which is against the Cooperative Society as a distinct separate legal entity.
That the said officials have not in any way delayed or frustrated the execution of the decree issued.
That the respondent is facing financial constraints due to failure by RAYCO REYENT HOTEL LTD to remit members contributions to the respondent as demonstrated in CTC 431 of 2016 REGENCY COOPERATIVE SAVINGS &CREDIT VERSUS CO-OP HOLDINGS COOPERATIVE SOCIETY LIMITED AND 6 OTHERS.
That the respondent is willing and ready to satisfy the decretal sum if the remittances from the employer of the members is received.
We have carefully considered the application and the replying affidavit. We note that this suit was filed on 17. 4.18 for refund of share contributions to the claimants amounting to 231,040/=. Judgment was entered on 24. 1.2019.
The respondent filed an application dated 2. 4.19 seeking to set aside the stay of execution; the application was dismissed with costs on 6. 6.2019 paving way for execution proceedings.
Section 28 (3) of Cooperative Societies Act, is clear on the duties of the management committee in the governing authority of the society hence they are mandated to direct the affairs of the Society with powers to 3 (b) to institute and defend suits and other legal proceedings brought in the name of or against the society, and 3( c) do all other things necessary to achieve the society’s objectives.
In the circumstances therefore, the management committee as per section 28 of Cooperative Society Act are the governing body and SHALL institute and defend suits and other legal proceedings brought in the name of or against the Cooperative Society. It therefore goes without saying that they are capable of being arrested and committed to civil jail for the debts of the society.
In the circumstances thereof, the said JOSEPH KIBANGENDI, MARY ONDIEKI, SAMMY SAMBU and CLEMENT ONYANGO being the officials of the respondent must ensure that they do all other things necessary to achieve the objectives of the Cooperative Society in accordance with its by Laws, payment of decretal amounts being one of the duties/obligation enumerated under section 28 (3). We therefore find that the replying affidavit does not properly reflect this position. On the issue of CTC 431 OF 2016 we note that the judgment is not binding in this matter. The claimant gave his contributions to the Respondent hence the respondent is obligated to satisfy the decretal amount in full without any conditions unless otherwise ordered.
The Respondent has not filed any affidavit of means to show inability or lack of ability to settle the decretal amount. The claimant is entitled to the fruits of the judgment issued on 24. 1.19. in the circumstances we find that the objections /oppositions of the notice to show cause dated 19. 6.2019 has no merits and we accordingly dismiss the same with costs.
Consequently warrant of arrest to issue against JOSEPH KIBANGENDI,MARY ONDIEKI, SAMMY SAMBU and CLEMENT ONYANGO
Read and delivered in open court, this 7th November,2019.
In the presence of:
Claimant:Stephen Nyamai
Respondent:Miss Muthuri holding brief for Nyarango
Court Assistant:Leweri and Buluma
B.Kimemia - Chairman-signed
R.Mwambura – Member-Signed
P.Swanya - Member-signed