Makemba & 2 others v Florimon Limited & 4 others [2023] KECPT 831 (KLR)

Makemba & 2 others v Florimon Limited & 4 others (Tribunal Case 147 of 2021) [2023] KECPT 831 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 831 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 147 of 2021

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

August 31, 2023

Between

Mwachirera Makemba & 2 others

Claimant

and

Florimon Limited & 4 others

Respondent

Ruling

1. The Claim herein was presented by the Claimants to the Tribunal vide document of claim dated 23rd October 2020 and filed on 4th March 2021. The 1st Claimant brought the Claim as the Chairman, Vice-chairman and Secretary of the Management Committee of Monflo SACCO Society Limited; which Society is the 2nd Claimant.The 1st and 2nd Respondents described are limited liability companies registered under the Companies Act.The 3rd, 4th and 5th Respondents are described as the Directors of the 1st Respondent whereas the 5th Respondent is a Director of the 2nd Respondent.

2. In a nutshell, the first Claimant’s claim is for payment of contributions deducted by the 1st and 2nd Respondents monthly from their salaries and were not remitted to the 2nd Claimant.Ultimately, the Claimant’s prayer for judgment against the Respondents is for KSH 5. 421,318/= with interest and costs.When the Claim came up before the Tribunal for hearing, the issue of whether or not the Tribunal has Jurisdiction to hear and determine the same arose.We are called upon to make a determination of the raised issue.The parties have filed written submissions on the issue. The Claimant’s submission dated 17th October 2022 were filed on 10th January 2023 while the Respondent’s submissions dated 31st October 2022 were filed on 9th November 2022.

Determination 3. The Jurisdiction of the Tribunal is well established under Section 76(1) of the Co-operative Societies Act.It follows thereafter that the Tribunal shall hear and determine disputes concerning business of a Co-operative Society which 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

4. We find that the dispute in the present claim in its nature does not fall under Section 76(2) of the Co-operative Societies Act and is neither a dispute among members, past members or persons claiming through members, past members and deceased members or a dispute between members, past members or deceased members and the society, its committee or any other Officer of the Society, or a dispute between the Society and any other Co-operative Society.

5. Whereas the Claimants are officials and the Society on whose behalf they have brought the claim herein, the 1st and 2nd Respondents are Limited Liability Companies which do not fall under Section 76 of the Cooperative Societies and their Directors in the official capacities.The claim herein therefore being a claim against Respondents who are not covered by the provisions of Sections 76 of the Cooperative Tribunal Act, is wrongfully filed before the Tribunal

6. We therefore find that the claim herein has not arisen from a dispute within the provisions of Section 76(1) of the Co-operative Societies Act.

7. Section 35 of the Co-operativesSocieties Actprovides for action which can be taken by the Commissioner for Co-operative Development against an employer for recovery of unremitted SACCO contribution as civil debt.It is our finding that the Commissioner is not a party to dispute contemplated by the provisions of Sections 76(1) of the Co-operative Societies Act and other action taken by him under Section 35 of the Act would lie elsewhere away from the Tribunal.As rightfully stated in the Respondent’s submissions, Jurisdiction is everything and without it, a court has no power to raise one more step.

8. We therefore declare that this Tribunal lacks the Jurisdiction to hear and determine Claimant’s claim and Counter Claim dismissed.

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 JemimahRuling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023NRB.CTC.NO. 147 OF 2021 RULING A.W.N 0