[2020] KECPT 115 (KLR)

REPUBLIC OF KENYA

IN THE COOPERATIVE TRIBUNAL

AT NAIROBI TRIBUNAL CASE NO. 386 OF 2019

WILSON GITAU KABATA...................................................................................CLAIMANT

VERSUS

CITY HOPPA SACCO.................................................................................1ST RESPONDENT

SPEED CAPITAL LIMITED.......................................................................2ND RESPONDENT

NATIONAL TRANSPORT AND SAFETY AUTHORITY ..................3RD RESPONDENT

PHRASIA WANJIRU KARIUKI.........INTENDED INTERESTED PARTY/APPLICANT

RULING

What is coming up for consideration and determination is the Intended Interested Party’s Application dated 23. 7.2019. It seeks, in the main, the following Orders:-

a. That leave be granted to the Intended Interested Party to be enjoined as a party to the suit;

b. That the Tribunal be pleased to issue an order further proceedings in the matter pending the hearing and determination of CM.CC.NO. 5039/2017; and

c. Costs .

The Application is predicated on the grounds on its face and the Supporting Affidavit of the Proposed Interested Party sworn on 23. 7.2019.

The Claimant has opposed the Application by filing a Replying Affidavit sworn by himself on 30. 9.2019.

Proposed Interested Party’s Case

Vide this Application, the Proposed Interested Party contend that the orders sought by the Claimant in this claim adversely affects her and that it will only be fair if she is granted an opportunity to participate in the proceedings.

That she is the co-registered owner of motor vehicle registration number KCG 067R, Nissan Diesel. That she took a loan with the 2nd Defendant to purchase it. That the suit Motor vehicle is the subject matter of proceedings in CMCC NO. 5039 OF 2017.

That there exist orders in CMCC NO. 5039 OF 2017 prohibiting the sale of the suit Motor Vehicle. That the said orders were issued on 7. 12. 18.

That despite existence of the said orders, the 2nd Respondent proceeded to sell the motor vehicle.

That the said suit is yet to be heard and determined. That she thus prays to be enjoined in the proceedings so as to assist the Tribunal arrive at a just finding.

Claimant’s Case

Vide his Replying Affidavit sworn on 30. 9.2019, the Claimant contend that he is the legitimate owner of the suit motor vehicle. That he bought the said vehicle at a Public Auction. That prior to its purchase, there were no stay orders.

That if there exist issues between the proposed Interested Party and the 2nd Respondent, then the same should be addressed through civil Proceedings.

1st – 3rd Respondents Responses

Though served with the instant Application, the 1st – 3rd Respondents have not made any representations.

Disposal of the Application

Vide the directions given on 1. 10. 2019, the Application was canvassed by way of written submissions. The Proposed Interested Party filed hers on 7. 11. 2019 while the Claimant did so on 10. 10. 2019.

Issues for determination

We have framed the following issues for determination:-

a. Whether the Tribunal has Jurisdiction to enjoin the Proposed Interested Party as a party to these proceedings; and

b. Who should meet the costs of the Application?

Jurisdiction

Jurisdiction is everything. Without it, a court has no power to make one more step. This was the holding in locus classicus case of Owners of the motor vessel “Lillian S Versus Caltex & Oil (Kenya) Ltd [1989] KLRI.In the pertinent part, the court further held thus;

“……Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

Section 76 of the Co-operative Societies Act (Cap 490) Laws of Kenya delineates the jurisdiction of this Tribunal.

Section 76 (1) a-c thereof provides thus;

“76(1) if any dispute concerning the business of a Co-operative Society arises-

a. Among members, past members and persons claiming through members, past members and deceased members; or

b. Between members, past members or deceased members, and the society, its Committee or any officer of the society; or

c. Between the Society and any other Co-operative Society,

It shall be referred to the Tribunal”

Flowing from the foregoing, the question arises as to whether the issue and/or dispute presented by the Instant Application concerns the “business” of a Co-operative Society.

The gist of the Proposed Interested Party’s Application is that the matters raised in the instant suit adversely affect her. That she is the owner of the suit motor vehicle which the 2nd Respondent sold it out to the Claimant. Subsequent to the said sale, she has filed a suit at the Chief Magistrates Court impugning the alleged sale.

From our appreciation of the facts raised by the Application, the Proposed Interested Party’s case revolve around ownership of the said motor vehicle.

The claim does not in any way concern the business of the 1st Respondent. Much as she may have a legitimate claim against the claimant, we respectfully find that this is not the appropriate forum to do so. Section 76 (1) of the Co-operative Societies Act, precludes us from wading into matters that does not touch on our jurisdiction.

Conclusion

The upshot of the foregoing is that we find that we do not have jurisdiction to entertain the Application and hereby dismiss it with no orders as to costs.

Ruling read, dated and signed delivered in line with the directions issued by the Hon. The Chief Justice on 15. 3.2020, this 9thday of April, 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman Signed 9. 4.2020

Hon. F. Terer Deputy Chairman Signed 9. 4.2020

P. Gichuki Member Signed 9. 4.2020