[2021] KECPT 523 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.83 OF 2018

TELEPOSTA SACCO SOCIETY LIMITED......................CLAIMANT

VERSUS

PHILIP TIROP KATAM.................................................RESPONDENT

AND

TOBIAS APOLLO...............................INTERESTED THIRD PARTY

RULING

Vide the Application dated 5. 9.2019, the Respondent has moved this Tribunal seeking for Orders inter alia:

1. That leave be granted to the Respondent to enjoin Tobias Apollo as a Third Party;.

2. Costs in the cause

The Application is supported by the grounds on its face and the Affidavit sworn by the Respondent on 5. 9.2019. The proposed Third Party has opposed the Application by filing a Replying Affidavit sworn by himself on 15. 10. 2019. The Claimant did not oppose the Application.

Vide the directions given on 24. 2.2020, the Application was canvassed by way of written submissions. The Respondent filed his on 17. 11. 2020 while the Proposed Third Party did so on 19. 11. 2020.

Respondent’s Contention

Vide the instant Application, the Respondent wants the proposed Third Party to be enjoined in the proceedings on the grounds that the said third party authorized the withdrawal of the monies the subject matter of the current claim. That at the material time, the proposed third party was the Chief Executive Officer (hereinafter referred to as the ‘CEO’) of the Claimant and was thus the Chief Accounting Officer. That the said CEO had given instructions that the said monies should not be posted in the system. That it will thus be interest of justice for the said Tobias Apollo to be enjoined in those proceedings.

Proposed Third Party’s Contention

The Proposed Third Party has opposed the Application on grounds that in 2016, the Sacco Societies Regulatory Authority (SASRA) undertook an onsite inspection whilst he was still the CEO and the issues in this claim were not raised against him and that he was not found culpable of any wrong doing.

That he was not involved in the alleged non-accounting of the funds the subject matter of these proceedings. That the Respondent has not led evidence to confirm his allegations. That the Respondent has previously acknowledged giving one of his Tellers, Mrs. Valarie Atieno a sum of Kshs.7,000,000/= as a personal loan without following due process.

Issues for determination

This Application has presented the following issues for determination:

a. Whether the Respondent has established a proper basis to warrant admission of the Proposed Third Party as a party in these proceedings;

b. What Orders are available in the circumstances.

Third Party Proceedings

Third Party proceedings are governed by the provisions of Order 1 Rule 15 of the Civil Procedure Rules. The Order provides in the pertinent part as follows:

“ 15. (1) Where the Defendant claims as against any other person not already a party to the suit (hereinafter called the Third Party):

a. That he is entitled to contribution or indemnity; or

b. That any question or issue related to or connected with the said subject – matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the Defendant but as between the Plaintiff, the Defendant and the Third Party or either of them. “

The court in the case of Joseph Njau Kingori – vs – Robert Maina Chege & 3 others [2002]eKLR set out the principles for enjoining parties to a suit as follows:

“...........it is clear that the guiding principles when an intending party is to be joined are as follows:

(1) He must be a necessary party;

(2) He must a proper party;

(3) In the case of a Defendant, there must be a relief flowing from that Defendant to the plaintiff;

(4) The ultimate Order or Decree cannot be enforced without his presence in the matter;

(5) His presence is necessary to enable the court to effectively and completely to adjudicate upon and settle all questions involved in the suit.”

The wording of Order 1 Rule 1 15 of the Civil Procedure is clear as regards the circumstances under which a person may be enjoined in the suit as a Third Party. We summarize them as follows:

a. That the said Third Party is entitled to contribution or indemnity;

b. That the question or issue relating to or connected with the said subject matter is substantially the same questions or issues arising between the Plaintiff and the Defendant and should properly be determined not only as between the plaintiff and the defendant, but as between the plaintiff and the defendant and the Third Party, or between any or either of them.....”

Looking at these principles in light of the circumstances of this Application, it is apparent that the subject matter of this claim is a sum of Kshs.24,194,000/=. The Respondent is accused to have mismanaged this money. That on diverse dates during his tenure with the Claimant, the Respondent withdrew funds from the Claimant’s account and failed to deliver then to its treasury. That the Respondent worked as the Claimant’s Front Office Services Activity Accountant.

In the current Application, the Respondent contend that the said monies were withdrawn under clear instructions from the Proposed Third Party, who was the Claimant’s CEO. That upon withdrawal, the Proposed Third Party kept the said monies to himself.

From the foregoing, it is apparent that during trial, the Tribunal would need to establish the manner in which the said monies were handled. In doing so, it will only be just and fair to have all persons who may be required to answer to the allegations to participate in these proceedings. As it is apparent, the Respondent has linked the Proposed Third Party directing to the said transactions. If after trial it becomes apparent that indeed the Proposed Third Party was involved, then the Respondent will be entitled to contribution or indemnity from him. We thus find that the Respondent has established a basis to enjoin the Tobias Apollo as a Third Party to these proceedings. In doing so, we are minded of the fact that he will not suffer any prejudice as he will have an opportunity to defend himself once he receives the third party notice. We are guided in this regard, by the holding of the court in the case of Judith Achieng Omondi- vs - June Nyaingo Hossel & Another [2018] eKLR where in the pertinent part, the court held thus, “ That being the case, I have no reason to deny the Applicants the prayers that she has sought. I see no prejudice to the proposed 3rd party as he will have a chance to defend himself, once the 3rd party notice is filed and served.”

Conclusion

The upshot of the foregoing is that we allow the Respondent’s Application dated 5. 9.2019 with costs in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JANUARY, 2021.

Hon. B. Kimemia Chairperson Signed 28. 1.2021

Mr. B. Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

Moenga holding brief for Kabugu for Claimant : Present

Hon. B. Kimemia Chairperson Signed 28. 1.2021