[2024] KECPT 893 (KLR)

Waweru & others v Commissioner for Co-operative Development & another (Tribunal Appeal E011 of 2022) [2024] KECPT 893 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KECPT 893 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Appeal E011 of 2022

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

May 23, 2024

Between

Alphonzo Waweru & 26 others

Appellant

and

Commissioner for Co-operative Development

1st Respondent

MNK Savings & Credit Society Limited

2nd Respondent

Ruling

1. This Ruling dispenses with the Notice of Preliminary Objection to the Appeal dated 27th July 2022. In the Notice of Preliminary Objection, the 2nd Respondents raise an issue in the way the Appeal was filed on the following grounds:a.That the Appeal offends the provisions of Order1 rule 8 (2) and order 1 rule 13 of the Civil procedure Rules.b.That the apart from the 3rd Appellants all the other Appellants have no locus standi in this matter and should be struck out.c.That the Appeal against the 25 alleged Appellants is untenable as they lack capacity to institute the Appeal.d.That some of the alleged Appellants have admitted the surcharged amount, some have been paying the surcharged amount and others have fully settled the surcharged amounts.e.That the 1,2,4-26th Appellants should be struck out of these proceedings as their appeal is defective, misconceived, frivolous and vexatious.

2. The objection is premised on the grounds on its face which are inter alia that: The Appellant/Respondent filed an appeal in which the 3rd Respondent swore the Verifying Affidavit on his behalf and on behalf of the 26 co-appellants without the authority of the co-appellants.

3. The brief background of this matter is that the Appellants filed an Appeal against the surcharge orders issued by the 1st Respondent on 3rd June 2022, which required the Appellants to pay various sums of money allegedly found due from them to the 2nd Respondent.

Analysis 4. The appellants neither responded to the Preliminary Objection nor filed submissions. The Applicant/2ndRespondent filed their submissions. In their submissions, they relied on the CooperativeSocieties Act, The Cooperative Tribunal (Practice & Procedure Rules) The Civil Procedure Rules, and case law, and urged this court to strike out other Appellants and let the matter proceed against only the 3rd Appellant.

5. This Tribunal has considered the Application and the Submissions of the 2nd Respondent. The question that this Tribunal has to answer is whether the Applicant’s Application is merited and whether he is entitled to the reliefs sought, to wit, to strike out 26 Appellants out of this Appeal.Order 1 Rule 8 of the Civil Procedure Rules provides as follows: -“1)Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.2)The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case my direct.3)Any person on whose behalf or for whose benefit a suit is instituted or defended under sub rule (1) may apply to the Court to be made a party to such suit”.Order 1 Rule 13 of the Civil Procedure Rules provides as follow:-“1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.2)The authority shall be in writing signed by the party giving it and shall be filed in the case”.

6. A look at the pleadings filed by the appellants show that the 3rd Appellant only indicated in the verifying affidavit that he is filing a suit on his behalf and behalf of the 16 appellants. The 3rd Appellant did not file a written authority by the 26 appellants as required by order 1 Rule 13 (2) of the Civil Procedure Rules. In the case of Samwel Cheboi & 3 others v Paul Kanda & 4 others [2022] eKLR, the court in dismissing the Defendant’s Notice of Preliminary Objection noted that;“In this era, Courts should be hesitant to strike out cases on procedural technicalities unless what is omitted goes to the root of the case.”Therefore, the question before this Tribunal is whether what is omitted goes to the root of the case. The Appellants are appealing against surcharge orders of the Commissioner. Surcharge orders are issued to individuals who mismanaged the funds of a cooperative society, and the orders require the surcharged individuals to pay back the money to the Cooperative Society. The amount to be paid back differs from one individual to the other depending on the findings of the commissioner. This Tribunal, therefore, feels that it is material in such a case for everyone represented to give their individual authority to appeal the orders. According to the 2nd Respondent’s submissions, some of the appellants are in the process of settling the surcharged amount while some have even cleared. This statement has not been controverted by the Appellants who neither filed their responses or submissions. This Tribunal finds that the Appellants had enough time to put their house in order but they have failed or are not willing to do so.

7. In the upshot of the foregoing, we find the 2nd Respondent’s Preliminary Objection dated 27. 7.2022 is merited and we hereby strike 1st, 2nd, 4th – 27th Appellants from this Appeal, with costs to the Applicant/2nd Respondent.Mention for further directions on Appeal on 7. 8.2024. Notice to issue

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 23. 5.2024HON. BEATRICE SAWE - MEMBER SIGNED 23. 5.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 23. 5.2024HON. PHILIP GICHUKI - MEMBER SIGNED 23. 5.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 23. 5.2024HON. PAUL AOL - MEMBER SIGNED 23. 5.2024Tribunal Clerk JonahNo appearance by parties.Ruling delivered in absence of parties.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 23. 5.2024