Moda Sacco Limited v Waithima [2022] KECPT 163 (KLR)

Moda Sacco Limited v Waithima (Tribunal Case 102 of 2013) [2022] KECPT 163 (KLR) (Civ) (17 March 2022) (Ruling)

Neutral citation: [2022] KECPT 163 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 102 of 2013

J. Mwatsama, Vice Chair, M. Mbeneka & B. Akusala, Members

March 17, 2022

Between

Moda Sacco Limited

Claimant

and

Rebecca Warukira Waithima

Respondent

Ruling

1. The Application for determination is dated 29. 6.2016 which – is brought under Order 36, Order 2 Rule 11, sub-rule 3 and 4 and rule 15, Order 13 Rule 2 and Order 51 Rule Civil Procedure Rule 2 .The Application seeks for Orders :a.Summary Judgment be entered for the Claimant against the Respondent herein with cost as prayed in the suit.b.The Respondent’s Statement of Defence on record be struck out.c.Alternatively, judgment be entered for the Claimant against the Respondent on her own admission in the sum of Kenya shillings one million seventy eight thousand three hundred and fifty six (Kshs.1,078,356/=).d.That cost of this Application and the entire suit be provided for.The same is premised on the grounds on the face of the Application and Affidavit is support of Lazaro Maina sworn on 29. 6.2016 to court.He is the Claimant’s Secretary and avers Respondent was a former employee of the Claimant. Respondent was an accounting officer until 2011. The Claimant found some discrepancies in their account records and an impromptu audit revealed Kshs. 1,078,356/= had been misappropriated as at June 2011 and after the full audit was completed a sum of Kshs.1,428,814/= was found to be missing.The Respondent was asked about it and she owned up to misappropriating Kshs. 1,078,356/= she voluntarily executed a debt repayment agreement dated 16. 11. 11 a copy of which is annexed.Despite numerous reminders the Respondent has neglected or refused to pay the Claimant necessitating filing of this suit.The Respondent committed to pay the sum of Kshs.1,078,356/= and Respondent’s Statement of Defence is sham, frivolous and vexatious.They therefore pray for judgment to be entered as prayed.

2. The Respondent filed Grounds of Opposition stating the Application is bad in law, frivolous and abuse of the court process.Parties were directed to file written submissions on 27. 7.2016 and Claimant filed their written submissions dated 30. 8.2021 on 23. 9.2021. The Respondent did not file any submissions and we note there is a pending Application to cease from Acting by the Respondent Advocate.

3. The issues at hand is for Summary Judgment we have looked into the Statement of Claim filed by Claimant dated 7. 3.2013 on 27. 3.2013 and we note this matter is between an employee and employee and not touching on matters prescribed under the CooperativeSocieties Act Section 76 (1) and 2 provides:(1) if any dispute concerning the business of a Cooperative 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 cooperative society, it shall be referred to the Tribunal.(2)A dispute for the purpose of this section shall include-a.a claim by a Cooperative 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; orb.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 cooperative 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.”

Jurisdiction as they say is everything.Jurisdiction is what gives this Tribunal on any court power or authority to determine cases before it.In the case of Joseph Muthee Kamau and Another - vs- David Mwangi Gichure & Another (2013) eKLR.The court stated"When a suit has been filed in a court without jurisdiction, it is nullity; many cases have established that; the most famous being Kagenyi-vs-Musirambo (1968)EA 43. The same would apply to pecuniary jurisdiction.We hold that jurisdiction cannot be conferred at the time of delivery of judgment, jurisdiction does not operate retroactively, jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.”The issue of contention in the present claim has been filed before a Tribunal devoid of jurisdiction in the matters raised.Therefore we have no authority to entertain the matter further and thus suit is struck out for lack of jurisdiction.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17 TH DAY OF MARCH, 2022. Prepared by:Hon. J. Mwatsama Deputy Chairperson Signed 17. 3.2022M. Mbeneka Member Signed 17. 3.2022Mr. B. Akusala Member Signed 17. 3.2022R. Leweri Tribunal ClerkMs. Watitu holding for Mr. Mahinda for Claimant/ApplicantMs. Maina holding brief for Mr. Ng’ang’a for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 17. 3.2022