Kaunda v Nation Sacco Limited [2023] KECPT 840 (KLR)

Kaunda v Nation Sacco Limited (Tribunal Case 397 (E192) of 2021) [2023] KECPT 840 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 840 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 397 (E192) of 2021

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

August 31, 2023

Between

Ken Vincent Kaunda

Claimant

and

Nation Sacco Limited

Respondent

Ruling

1. This ruling dispenses with the Claimants Notice of Motion Application dated 8th June 2022 supported by an Affidavit sworn by one, Jacob Kimathi, the Chief Executive Officer of the Respondent. The application seeks the following orders:a.That the Respondent herein be struck out of the proceedings for misjoinder.b.That cost of this Application and the suit be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The Respondent has been wrongly enjoined in the suit since it is not a Cooperative Society governed under the Co-operative Act which provides that a claim can only be brought to the Cooperative Tribunal against Cooperative Societies by members of the society.

3. In their Grounds of Opposition, the Claimant claims that the Application is premature and preempts the evidence to be adduced at the hearing. That although the Claimant cannot remember his member number, they have produced a payslip certified by Nation Media Group which clearly indicates the Sacco Savings.

4. Both parties filed their Written Submissions. In the Respondents/Applicant’s submissions, they seek answers to two questions, whether the Respondent was wrongly enjoined, and whether the court can allow the Application as prayed. On the first question on whether they are wrongly enjoined, the Applicants contend that the Claimant does not have a membership number, without which no one can claim to be a member of a Sacco. They further submit that without being a member of the Sacco, the Claimant cannot in law institute a case in the Cooperative tribunal because Section 76 of the Cooperative Societies Act limit the persons who can bring claims to the Tribunal against Cooperatives to only members, or past members of a Cooperative Society. On the second question on whether the Tribunal can allow the Application as prayed, the Applicants rely on Order 1 Rule 10(2) of the Civil Procedure Rules that provides that:“The court may at any stage of the proceedings, either upon or without the Application of either part, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendants, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

5. In their submissions, the Claimants reiterate the contents of their Grounds of Opposition. The Claimants further submit that it would be unfair for the Respondent to escape liability on the basis of lack of information by the Claimant. He further submits that it would be in the interest of justice to allow the Claimant to present its case.

6. The Respondent in this suit has invited this Honourable Tribunal to strike it out of the suit for having been wrongfully enjoined. With regard to joinder of parties, Order 1 rule 9 of the Civil Procedure Rules states that no suit shall be defeated for misjoinder or non-joinder of parties and requires that the court deals with the matter in controversy, so far as regards the rights and interests of the parties actually before it. On the other hand, Order 1 Rule 10 (2) of the Civil Procedure Rules also provides that: -“The court may at any stage of the proceedings, either upon or without the Application of either part, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendants, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

7. From the above provisions, it is a clear indication that the court on its own Motion or with the Application of either of the parties can order for the striking out of a party not properly joined to a suit. The court has to consider whether that party is a necessary party to a suit. In this case, the Claimant claims that he was a member, and has indeed produced a payslip that makes references to monies paid to a Cooperative Society in his payslip. The Claimant should therefore be given an opportunity to adduce evidence that the monies was indeed paid to the Respondent, and under what basis that monies was paid.

8. Considering the above submissions of the parties, the Tribunal finds that misjoinder does not lie in this matter. Disallowing the Application does not cause any prejudice to the Respondent and allows the Claimant to present its case.

9. In the upshot of the foregoing, the Tribunal finds the Notice of Motion Application dated 8th June 2022 lacks merit and is hereby dismissed with costs in the cause.

10. Mention for Pre-trial direction on 19. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHMISS AUGA FOR RESPONDENT/APPLICANTOKIRING HOLDING BRIEF FOR OBUYA FOR CLAIMANTHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023