[2025] KECPT 99 (KLR)

Ukulima Cooperative Savings & Credit Society Limited v Omuony (Tribunal Case 1008/E1046 of 2022) [2025] KECPT 99 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 99 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1008/E1046 of 2022

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

January 30, 2025

Between

Ukulima Cooperative Savings & Credit Society Limited

Claimant

and

Bernard Odhiambo Omuony

Respondent

Ruling

1. This ruling dispenses with the Notice of Motion Application is dated 11th October 2023 and supported by an Affidavit sworn by one Bernard Odhiambo Omuony, the Respondent and brought under Order 11 Rule 3(1)(h) of the Civil Procedure Rules and Section 79(1) of the Cooperative Societies Act. The Application seeks the following orders:a.That the Respondent/Applicant be granted leave to take out and serve a third party notice upon Jacqueline Akinyi Aderob.That the cost of this application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: the subject matter of the claims has the same nexus, that the claims concern the same questions of fact and law and that the reliefs sought are the same. Further that the co-Respondents in all the matters have agreed to have the matter consolidated.

3. The brief background of the four matters is that the Claimant, Ukulima Sacco, filed claims against four Respondents to recover defaulted loan amounts.

4. The Respondent filed Grounds of Opposition dated 8th February 2024 in which they opposed the Application. They aver, that the suits do not arise out of the same transactions, that they are based on contractual claims which are independent and distinct from each other, and that the loans sought to be recovered were advanced separately and also that the Respondents are different as well as the reliefs sought. Further that the documents filed in support of each of the suit are many and if combined, they will cause confusion in the conduct of the case.

5. In their submissions, the Claimants submitted that all the Respondents filed applications to bring one Jackline Akinyi Odero on board and this court allowed. The Respondents also aver that all the responses raise the questions of misrepresentations, fraud, insider lending and predatory lending services.

6. Analysis

7. This Tribunal has noted the application, the response, and the submissions. It is not in dispute that the Applicants are members of the Claimant. It is also not in dispute that the matters are all instituted by the same Claimant against the Respondents for repayment of loans allegedly advanced to the Respondents and defaulted. What is in dispute is whether the matters ought to be consolidated. The Applicants position is that the matter ought to be consolidated because all the claims are for repayment of a debt, and the Respondents have all similar defenses. They also submit that there is a third party who has been brought on board in all the matters, and who all the Respondents claim indemnity from. The Respondents on the other hand, posit that the matters should not be consolidated because they arise out of distinct contracts.

8. In Law Society of Kenya v Centre for Human Rights & Democracy & 12 others, SC Petition No 14 of 2013, [2014] eKLR, the court pronounced that:“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it.”In Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa [2000] eKLR, the court held: -“The situations in which consolidation can be ordered include where there are two or more suits for matters pending in the same court where: -a.Some common questions of law or fact arises in both or all of them.b.The rights or reliefs claimed in them are in respect of the same transactions;c.For some other reasons, it is desirable to make an order for consolidating them.”

9. This court notes that it has jurisdiction to consolidate matters, and that consolidation is justified to facilitate efficient and expeditious disposal of matters. The reasons for consolidation are also well laid out in the above case law. In this matter, we agree with the Claimants that the Claims arise out of different contracts. We also agree with them that the Respondents are different in all the matters. However, this court notes that the it has earlier given allowed the Respondents to take out third party proceedings against one Jackline Odero Akinyi. This brings in another dimension because the third party is a common party who the respondents are all seeking indemnity from. This court has perused the file, and notes that all the Respondents in their witness statements mention the alleged involvement of the third party in their plight. This court therefore finds this to be reason enough to allow consolidation of these matters.

10. On the second prayer of compelling the Sacco Society Regulatory Authority (SASRA) to produce an investigation report, we find that the Applicant has not substantiated this prayer before us. SASRA is not a party in these proceedings, and this means that they did not have the privilege of responding to the prayer. It would, therefore, be unfair for this court to ambush SASRA with an order, in an application that they did not get an opportunity to be heard. This prayer, therefore, fails.

11. In the upshot of the foregoing, we make the following orders;a.The Applicant’s Notice of Motion Application dated 11th October 2023 is merited and we allow the consolidation of CTC 1008/E1046 of 2022, CTC 1010/E1048 of 2022, CTC 1015/E1050 of 2022, and CTC 1016/E1052 of 2022. b.Third party, Jackqueline Akinyi Odero be enjoined in the consolidated matter, before any further proceedingsc.Costs of the Application be in the cause.d.Mention for Pre-trial directions on 10. 4.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE - MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI - MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 1.2025HON. PAUL AOL - MEMBER SIGNED 30. 1.2025TRIBUNAL CLERK MUTAIOluoch advocate for the RespondentMuuo advocate holding brief for Ms. Mbaabu advocate for the Claimant.