Postmail Sacco Limited v Milewa [2025] KECPT 218 (KLR)

Postmail Sacco Limited v Milewa (Tribunal Case E045/56 of 2023) [2025] KECPT 218 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 218 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E045/56 of 2023

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

March 27, 2025

Between

Postmail Sacco Limited

Claimant

and

Benard Milewa

Respondent

Ruling

1. This ruling dispenses with two notices of Preliminary Objection one dated 5th September 2024 and another dated 22nd August 2024 but both relating to the same issue. The notice of Preliminary Objection is centered on the jurisdiction of this Tribunal to hear and determine the Statement of Claim dated 26th January 2023. The objection is raised on the following grounds:a.The Honourable tribunal lacks the requisite jurisdiction to hear and determine the statement of claim dated 26th January, 2023. b.The statement of claim dated 26th January, 2023 is incompetent , frivolous , vexatious and an abuse of the court process hence should be struck out with costs to the respondent .c.The statement of claim dated 26th January, 2023 is fatally and incurably defective.d.The statement of claim dated 26th January, 2023 offends the clear and mandatory provisions of order 1 rule 4 (1) of the civil procedure rules.e.No suit lies on the basis of which a grant of the orders sought can issue.

2. The objection is premised on the grounds on its face which are inter alia that: The Statement of Claim as drawn is incurably defective since the provisions of the law to which the Claim has been brought cannot be the basis for this Honourable Court to grant the prayers that have been sought.

3. The brief background of this matter is that the Claimant, via a Statement of Claim dated 26th January 2023 instituted a claim against the Respondent for the repayment of a defaulted loan amounting to Ksh. 2,036,595/-.

4. The Claimant filed grounds of opposition dated 21st November 2024. The Claimant opposed the objection on the basis that the preliminary objection cannot be determined without the facts being ascertained from the evidence to be adduced by the parties.

5. Both parties filed their submissions.

6. In their submissions, the Applicant submitted that the preliminary objection is merited since it raises a question of law. They also submitted that this court has no jurisdiction to hear and determine this matter since the Claimant is not a cooperative society since the word ‘Co-operative’ does not form part of its name and also does not have the word ‘limited as its last word.

7. According to the Respondent's Claimant, the description of the Claimant in the Statement of Claim is “a Savings and Credit Cooperative society duly registered under the Co-operative Societies Act”. They submitted that the omission of the word Limited’ and ‘Co-operative’ from their name was an error that can be remedied by the amendment of the Statement of Claim.

Analysis 8. This Tribunal has considered the Application and the Submissions of the parties. The question that this Tribunal has to answer is whether the Applicant’s application is merited and whether this court has no jurisdiction to handle that matter.

9. The Jurisdiction of this Tribunal is drawn from the Cooperative Societies Act, at section 76(1) which provides as follows;If any dispute concerning the business of the Cooperative society arises:a.Among members, past members and persons claiming through members, past members and deceased orb.Between members, past members or deceased members and the society, its committee or any Officer of the society.c.Between the society and any other Cooperative Society.

10. Therefore, to answer this question we have to ask ourselves whether the dispute subject to this Claim falls is between parties contemplated under section 76(1) above, and whether these disputes concern the business of a cooperative society.

11. The Claimant’s description is that the Claimant is a Cooperative society registered under the Cooperative Societies Act and that the Respondent was its member number 161840. Any inquiry on the truth or otherwise by calling the evidence between the parties would need this court to call for evidence from the disputing parties. A Preliminary Objection is a question of law that does not require the calling of evidence. This court agrees that Jurisdiction is everything, and without it, a court would down its tools immediately. However, an applicant also has a responsibility of going beyond alleging that a court has no jurisdiction and to justify the lack of jurisdiction by showing that the Respondent is indeed something else other than a cooperative society. Without such, we find that the Applicant Respondent is on a fishing expedition, and as such he is free to put the Claimant on a strict proof during the hearing to show that it is indeed a cooperative society, and that the Respondent was its member.

12. In the upshot of the foregoing, we find no merit in the Preliminary Objections dated 5th September 2024 and dated 22nd August 2024 and are hereby dismissed with costs to the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahShikanda advocate holding brief for Mr. Osumba advocate for the RespondentMs. Njogu advocate for the claimantPre-trial directions on 18. 9. 2025Leave to appeal is allowed.