Mayieka & 104 others & 104 others v Uriithi Housing Cooperative Society & another; Keya & 109 others (Proposed Claimant) [2023] KECPT 922 (KLR)

Mayieka & 104 others & 104 others v Uriithi Housing Cooperative Society & another; Keya & 109 others (Proposed Claimant) (Tribunal Case 55 of 2021) [2023] KECPT 922 (KLR) (3 August 2023) (Ruling)

Neutral citation: [2023] KECPT 922 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 55 of 2021

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

August 3, 2023

Between

Mary Kemunto Mayieka & 104 others

Claimant

and

Uriithi Housing Cooperative Society

1st Respondent

Samuel Ngundo Maina

2nd Respondent

and

George Oluoch Keya & 109 others

Proposed Claimant

Ruling

1. This ruling dispenses with the Proposed Claimants Chamber Summons Application dated 23rd January 2023 supported by an Affidavit sworn by one, GEORGE OLUOCH KEYA, one of the Claimants, and brought under Articles 25,40, & 50 of the Constitution of Kenya, Section 3 & 3A of the Civil Procedure Act, Order 1 Rule 1, Order 1 Rule 8(3), Order 1 Rule 10 & Order 1 Rule 14 and Order 51 of the Civil Procedure Rules 2010, Section 17, 21, 26, 76, 77, 78, 79, 80, 81, 87 and 91 of the Cooperative Societies Act & all the other enabling provisions of the law. The application seeks the following orders:1. That leave be granted to the Proposed Claimant/Applicants herein to be enjoined and/or impleaded in this suit as the 105th to 214th Claimants respectively.2. That upon grant of prayer 1 herein above, leave be granted to the parties herein to file and/or amend their pleadings as necessary.3. That costs of this Application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The Applicants/ proposed Claimants are bonafide purchasers for value in the off-plan development project that was to be erected by the 1st and 2nd Respondents in all that parcel of land known as Mavoko Town Block 3/52732 situated in Machakos County.

3. The Claimants filed their Replying Affidavit in which they opposed the Application entirely. They depone that they filed the matter as a group of willing members ascribed to the same school of thought and that they have formed a welfare association to fight for collective reasons. They also depone that the proposed Claimants were against the institution of any Criminal or Civil suit on the subject matter herein and were working as the proponents of the 2nd Respondents. They claim that the current Application has been ostensibly filed to delay the trial of the matter. That the Claimants have invested in this matter by way of legal fees. That allowing this application would deny the Claimants control of the matter and this would benefit the Respondent.

4. The Claimants filed their submissions, but the Respondents did not.

Analysis 5. The question that the Tribunal asks itself in this matter is whether the Proposed Claimants can be joined in this case as Claimants. This Tribunal finds that this is matter that it had pronounced itself in this very same matter in a ruling delivered on 19th November 2021 when two claimants sought to be enjoined as Claimants in similar circumstances. In this same matter we note that this is not an Application to amend the Statement of Claim filed by the Claimants, but the Applicants seek to file their own claim. The proposed Claimants also seek to be enjoined as Claimants as opposed to interested parties. In the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR:“…Consequently, an Interested Party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.”Therefore, we opine that the Applicants herein ought to have sought to be enjoined as interested parties as opposed to Claimants.

6. Consequently, and in the upshot of the foregoing, this Tribunal finds the Chamber Summons Application dated 23rd January 2023 lacks merit and is hereby dismissed with costs.

7. Mention for Pre-trial directions on 18. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 3. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 3. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 8.2023HON. PAUL AOL MEMBER SIGNED 3. 8.2023Tribunal Clerk JemimahMwangi for RespondentNo appearance for ClaimantOdek for proposed ClaimantHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023