[2023] KECPT 448 (KLR)

Thogo v Commissioner for Cooperatives Development & Marketing; Wanandege Housing Coop Society Limited (Interested Party) (Tribunal Appeal 5 of 2018) [2023] KECPT 448 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 448 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Appeal 5 of 2018

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

April 27, 2023

Between

Purity Thogo

Claimant

and

The Commissioner for Cooperatives Development & Marketing

Respondent

and

Wanandege Housing Coop Society Limited

Interested Party

Ruling

1. The matter for determination is a Memorandum of Appeal dated 15. 8.2018 filed on 15. 8.2018 seeking to appeal the surcharge orders of the commissioner cooperatives development made under Section 58 and 73 Cooperative Societies act on 20. 7.2018 for Kshs. 2,541,232/=. The appeal is based on the grounds on the face of the Memorandum of Appeal and it seeks the following prayers:a.The Inquiry by Michael A. Mbeka and Stella Muia is tainted with bias and irregularities.b.Michael A. Mbeka and Stella Muia usurped the mandate of the Commissioner in surcharging the Appellant.c.The decision by the Commissioner to surcharge the Appellant being founded on bias and illegalities is quashed and set asided.The respondent pays costs herein

2. The appellant also filed the list of documents dated 15. 8.2018. The respondent did not file any response in the matter.

3. The Interested Party, the Cooperative Society filed a replying affidavit deponed on 16. 6.2022 by leave of the Tribunal and Further Affidavit deponed on 7. 7.2022.

4. The matter proceeded by way of written submissions. The appellant filed written submissions dated 4. 4.2022 and the Interested Party filed written submissions dated 7. 7.2021.

Background and procedure 1. The basis of the Appeal is the Surcharge Orders of the Commissioner for Cooperative Development dated 4. 7.2018 for Kshs. 2,541,232/= and against the Claimant herein.

2. Issuance of Surcharge Orders is the mandate of the Commissioner for Cooperative Development under section 58 of Cooperative Societies’ Act. The Commissioner for Cooperative Development appoints Inquiry Officers vide a gazette notice. After the Inquiry is completed, the Inquiry Report is presented to the Annual General Meeting by the Commissioner for Cooperative Development and a resolution is issued by the members on how to implement the recommendations. Thereafter the Commissioner for Cooperative Development issues a notice of intention to surcharge those adversely mentioned on the Inquiry Report, requiring them to show cause within 14 days why they should not be surcharged. Thereafter, if no cause is shown, the Commissioner for Cooperatives Development issues the Surcharge Orders which are served upon the affected persons.The surcharged persons once served, may file their Appeal under section 74Cooperative Societies Act within 30 days.

3. The procedure for filing an Appeal is provided for under rule 8 (3) Cooperative Tribunal (Practice and Procedure) Rules2009. They are:a.Memorandum of appealb.Inquiry orderc.Inquiry/inspection orderd.Minutes of annual general meetinge.Notice of intention surchargef.Surcharge orderg.Any other relevant.

4. Upon perusal of the said documents, we note that the Memorandum of Appeal was filed on 18. 8.2018. The law is clear that an Appeal may be filed within 30 days after issuance of the Surcharge Order.

5. We have looked at the documents filed by the Appellant and note as follows.i.Memorandum of appeal dated 15th August 2018 filed on 15. 8.2018. ii.Inquiry report dated 5. 4.2016iii.Notice of intention to surcharge dated 8. 4.2016iv.Letter from advocate challenging the notice of intention to surcharge dated 20. 4.2016. v.Surcharge order dated 4. 7.2018.

6. Section 74 (1)Cooperative Societies Act is very clear that:“any person aggrieved by an order of the commissioner under section 73 (1) may, within 30 days, appeal to the Tribunal.”

7. On a quick perusal of the documents above, we find that the Surcharge Order dated 4. 7.2018. The Appellant was expected to file an Appeal within 30 days from 4. 7.2018, hence the final date for filing an Appeal should have been 5. 8.2018.

8. The Memorandum of Appeal is dated 15. 8.2018. the advocate on the face of the Memorandum of Appeal cited the date of Surcharge Order as 20. 7.2018. It is not clear which Surcharge Order the advocate was referring to since the one on record is dated 4. 7.2018. It is very clear from the onset that the advocate on record for the Appellant misquoted the date of the Surcharge Order. The intention of the advocate is not clear, but it is very unfortunate that an officer of the court would intentionally misquote a date of a document on which the Appeal is based on.

9. From the onset, we note that the date of the Surcharge Order being 4. 7.2018, the Appellant having filed the Memorandum of Appeal on 15. 8.2018, it is clear that the Appeal was filed out of time and there was no leave or extension of time issued in the matter to regularize this position.

10. The Appeal therefore having been filed out of time, we find that the Appeal fails. The provisions of section 74 (1) Cooperative Societies’ Actare clear, that time is of essence when lodging an Appeal against a Surcharge Order.

11. We therefore on the onset find that the Appeal has no merits, having been filed out of time. The Appeal is therefore dismissed with costs to be awarded to the interested party.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahMbuthia advocate for the AppellantMbugua, Atudo and Macharia advocate for Interested Party- No appearanceMbuthia advocate - We pray for certified copy of judgment and proceedingsDIVISION - Tribunal –PARA 1. Appellant to apply for the copy of judgment and proceedingsPARA 2. 30 days stay granted.PARA 3. Orders to apply to CTA.5,6 and 7 of 2018. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023