Kamuna Sacco Limited v Muna Supreme Shuttle;Nairobi County Government (Interested Party) [2021] KECPT 264 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.465 OF 2020

KAMUNA SACCO LIMITED  ...............................................CLAIMANT

VERSUS

MUNA SUPREME SHUTTLE.............................................. RESPONDENT

NAIROBI COUNTY GOVERNMENT......................INTERESTED PARTY

RULING

The Claimant is a Co-operative Society registered under the Cooperative Societies Act. The Respondent is also a Co-operative Society registered under the Cooperative Societies Act. The Interested Party is a County Government which allocates parking zones from, inter alia, the Claimant and Respondent.

The dispute relates to parking zones between the two Co-operative Societies as allocated by the Interested Party. The Claimant contend that the Respondent and the Interested Party are acting illegally, unlawfully and unconstitutionally thus crippling the Claimant’s business.

The Respondent dodged a Notice of Preliminary Objection dated 15/12/2020 citing want of jurisdiction. They argue that the Preliminary Objection is ambiguous and that it does not disclose the contravened law.

Issues For Determination

The Tribunal has considered the various submissions filed in this matter, and the robust points of the law raised. Consequently,

the following issues have been identified for determination.

a) Whether the Preliminary Objection is Valid

b) Whether the Prayers on the Preliminary Objection should be granted

We thus proceed as follows;

a)Whether the Preliminary Objection is Valid

The Notice of Preliminary Objection filed herein is worded thus:

“TAKE NOTICE that the Respondents herein shall raise a  Preliminary Objection on a point of law on the basis that this Honourable Tribunal has no jurisdiction to hear and determine this Claim”

The law on a Preliminary Objection is trite. A Preliminary Objection consist of a point law which has been pleaded, [emphasis], or which arises by clear implication out of pleadings, and if aligned as a preliminary point, may dispose of the suit. This was the ratio decidendi in the case of Mukisa Biscuits Manufacturing Co. Ltd  -vs- West End Distributors Ltd (1969) EA 696.

A court must be guided by this, therefore, a Preliminary Objection must raise a pure point of law, which is agreed on the assumption that all the facts pleaded are correct.

A cursory reading of the Notice of Preliminary Objection does not disclose any law. It merely cites want of jurisdiction , but no clarity is pronounced on the particular law that the objector is relying on.

As a consequence, the Preliminary Objection is legally insufficient and must fail. The Preliminary Objection is thus dismissed.

However, the Tribunal is enjoined to apply the law ,at times suo motoa reading of the Statement of Claim discloses that all three parties thereto;

a) Kamuna Sacco Limited

b) Muna Supreme Shuttle; and

c) Nairobi County Government

While the first two are Cooperative societies registered under the Cooperative Societies Act, the Nairobi County Government is not in the jurisdiction of this Tribunal.

Section 76 of the Cooperative Societies Act provides as follows;

“ 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.

2. a dispute  for the purposes  of  this section  shall include-

a.  a claim by a Co-operative  Society  for any  debt  or demand  due to  it  from a member  or past  member,  or from  the nominee  or personal  representative  of a deceased member,  whether  such  debt  or  demand  is admitted  or not; or

b.  a claim by a member, past member or the  nominee or personal  representative of a deceased member for any  debt  or demand  due  from a Co-operative  Society, whether  such debt  or demand  is admitted or not;

c.    a claim  by a Sacco Society  against  a refusal  to grant  or a revocation  of licence  or any other  due,  from the authority.”

It is therefore clear that while this Tribunal has  jurisdiction to deal with disputes concerning different Cooperative Societies, this jurisdiction is stolen away at the instance of introducing the Nairobi County Government.

As such, this Tribunal finds suo motothat it has no jurisdiction to entertain the dispute on that basis.

We thus order as follows:

1.  The Notice of Preliminary Objection dated 1st December 2020 fails and is dismissed with no orders as to costs.

2.  The Claim as filed, also fails as the Tribunal has no jurisdiction to entertain the same. The Claim is thus dismissed.

3.    Each party to bear their own costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia                  Chairperson                Signed       2. 9.2021

Hon. J. Mwatsama              Deputy Chairperson  Signed       2. 9.2021

Mr. Gitonga Kamiti              Member                       Signed       2. 9.2021

Mr. Boniface Akusala          Member                       Signed       2. 9.2021

Tribunal Clerk                       R. Leweri

Otenyo holding brief  for Achoki for Interested party: Present

No appearance  for Claimant

No appearance for  Respondent

Hon. B. Kimemia                  Chairperson                Signed       2. 9.2021