Githui & 2 others v Mose & 5 others [2023] KECPT 1055 (KLR)

Githui & 2 others v Mose & 5 others (Tribunal Case E399 of 2023) [2023] KECPT 1055 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1055 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E399 of 2023

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

November 30, 2023

Between

Peter Githui

1st Claimant

James Kahara Mwangi

2nd Claimant

Noah Monyenye

3rd Claimant

and

Hezron Mose

1st Respondent

Kelvin Mwaura Wairimu

2nd Respondent

Robert Wafula Barasa

3rd Respondent

Jonathan Abere Omudi

4th Respondent

The Commissioner of Co-operatives

5th Respondent

The Director of Registration & Lisencing National Transport & Safety Authority

6th Respondent

Ruling

1. This ruling dispenses with the respondents’ preliminary objection dated 7th June 2023 and filed on the same date. The same is supported by a replying affidavit sworn by the 1st Respondent on his behalf and on behalf of the 2nd, 3rd and 4th Respondent.

2. The gist of the Preliminary Objection is that the Tribunal has no jurisdiction to hear and determine the Application as the same offends the provision of the Cooperative societies Actbecause the 1st, 2nd and 3rd Claimants have no locus standi to institute the proceedings on behalf of Manmo Sacco Ltd.

3. The foundation of the Application and the claim is that the Claimants claim that the Respondents, and in particular the 1st to the 4th Respondents have registered a company illegally and they are using the company to swindle the Manmo Sacco’s funds. Further, that said Respondents have gone ahead and opened a rival Sacco using the Manmo Sacco’s KRA pin.

4. Both parties, the Applicants and the Respondents, filed submissions for and against the preliminary objection respectively.

5. In their submissions, the Claimants submit that this Honourable Tribunal is vested with jurisdiction to deal with the subject matter of the Application. The applicants rely on section 76 of the Co-operative Societies Act and further submit that the dispute is between members of Manmo Sacco. They further contend that the case against the 3rd, 4th, 5th and the 6th Respondent has been withdrawn.

6. Respondents on the other hand in their submissions, sought to answer three questions. Question one is on the jurisdiction of the Tribunal, question 2 on whether the Claimants have locus standi to institute proceedings on behalf of Manmo Sacco Ltd, and question 3 on whether the application and suit is an abuse of court process.

7. In the case of Mukisa Biscuits Manufacturing Limited v West-end Distributors (1969)E.A696, the lordship observed what constitute a Preliminary Objection as:“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a Preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a Plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.The Preliminary Objection filed raises 2 issues, the jurisdiction of this Honourable Tribunal and Locus Standi of the Claimants to institute suit on behalf of the Sacco.

8. The question of the Jurisdiction of the co-operative tribunal is well spent under section 76 of the Cooperative Societies Act which provides that;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; orb)Between members, past members or deceased members, and the society, its Committee or any officer of the society; orc)Between the society and any other co-operative society,it shall be referred to the Tribunal.In this matter, the Claimants contend that the Claimants are officials of Manmo Sacco and therefore can be inferred that they are members. The 1st Respondent is a member of the society, while the 2nd Respondent is an employee of the society. Therefore, as regards the parties of this claim, the Tribunal rightly has jurisdiction to handle the claim as against the Claimants and the 1st Respondent, but no jurisdiction with regards to the claim against the 2nd Respondent.

9. On the issue of Locus Standi, we note that that the Claimants have instituted this claim in their own names and on behalf of Manmo Sacco Society Limited. The Co-operative Societies Act at section 12 provides that“a Cooperative Society is a body corporate with power .... to sue and being sued ... ”Locus Standi means the capacity to sue. Accordingly, the court in the case of Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others [2002] eKLR while canvassing the issue of Locus Standi stated thus:“for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.”It is clear that the claimants are not the ones vested in the subject matter but the Sacco. The Sacco has legal capacity to institute suits in its own name. Therefore we find that the Claimants have no locus standi to institute these proceedings.

10. Flowing from above, the final orders are that the notice of preliminary objection dated june 7, 2023 is upheld and the claimant’s claim is hereby struck out with costs to the respondents.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA- CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal - Clerk JonahJulius - Nyakiangara advocate for the claimant.Ariga advocate for the 1st -4th Respondent.