Taifa Sacco Society Limited v Gichuki & another [2024] KECPT 1167 (KLR)

Taifa Sacco Society Limited v Gichuki & another (Tribunal Case 266 (E002) of 2023) [2024] KECPT 1167 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1167 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 266 (E002) of 2023

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

July 25, 2024

Between

Taifa Sacco Society Limited

Claimant

and

Samuel Muchemi Gichuki

1st Respondent

Jefigs Credit Limited

2nd Respondent

(Coram: Hon. B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member)

Ruling

1. Matter for determination is Preliminary Objection dated 6. 6.2023 and Notice of Motion dated 27. 9.2023. The Preliminary Objection raises issues of :a.The 2nd Respondent is neither a Cooperative Society nor a member of the Claimant.b.The Statement of Claim is currently pleaded is defective as it does not establish whether the 1st Respondent is a member of the Claimant.c.Consequently, this Honourable Tribunal lacks the jurisdiction to hear and determine this suit.A Preliminary Objection in the literal sense is a point of law which has been pleaded and which if argued as a Preliminary point may dispose off the suit.The Preliminary Objection raised first point is on jurisdiction.As we all know jurisdiction is everything. Jurisdiction is the legal right to act on something.“….anything that purports to be a preliminary must not deal with disputed facts and it must not delve its foundation from factual”.

2. The Tribunal on October 5, 2023 dismissed the Application against 2nd Respondent for want of jurisdiction.Thus the Preliminary Objection was dealt with via the directive of the Chairperson Cooperative Tribunal. As such prayer number 1 in the preliminary Objection has been dealt with.The 2nd and 3rd grounds are not legal per se and require evidence as such cannot be tackled as a Preliminary Objection.

UpshotAs such the Preliminary Objection dated July 6, 2023 is allowed in terms of ground number 1 only. 3. The Notice of Motion dated September 27, 2023 is brought under Order 40 Rules 1,2 and 4 as well as Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010, and Sections 1A, 1B,3A and 63 (e ) of the Civil Procedure Act , the Movable Property Security Rights Act and all enabling provisions of the law.

The Application seeks for prayers:a.Spentb.That the Honorable court be pleased to grant a temporary injunction restraining the 2nd Respondent , its agents and or servants from, advertising for sale, selling by public auction or by private treaty/and/or otherwise handling or dealing with motor vehicle registration number KCF 079E Toyota Fielder in any manner whatsoever pending the hearing and determination of this Application.c.That the Honorable court be pleased to grant a temporary injunction restraining the 2nd Respondent , its agents and or servants from, advertising for sale, selling by public auction or by private treaty/and/or otherwise handling or dealing with motor vehicle registration number KCF 079E Toyota Fielder in any manner whatsoever pending the hearing and determination of this suit..d.That the Honorable court be pleased to issue a mandatory injunction compelling the 2nd Respondent, its agents and/or servants to release motor vehicle registration number KCF 079E Toyota Fielder to the custody of the Applicant, pending the hearing and determination of this suit.e.That the costs of this Application be borne by the Respondents.f.That the Honourable court be pleased to grant any further orders as it deems fit.From what we have noted from the Preliminary Objection the 2nd Respondent was struck out from the proceedings. As such the Application and its prayers cannot stand as the same are aimed toward the 2nd Respondent.The Application dated September 27, 2023 is thus dismissed with no orders as to costs. Preliminary Objection is upheld costs in the cause.As such we order for the 1st Respondent to file and serve Statement of Defence, Witness Statement and List of Documents 21 days from date of this ruling.Pre- trial directions on October 16, 2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. Hon. B. Kimemia Chairperson Signed 25. 7.2024Hon. J. Mwatsama Deputy Chairperson Signed 25. 7.2024Hon. Beatrice Sawe Member Signed 25. 7.2024Hon. Fridah Lotuiya Member Signed 25. 7.2024Hon. Philip Gichuki Member Signed 25. 7.2024Hon. Michael Chesikaw Member Signed 25. 7.2024Hon. Paul Aol Member Signed 25. 7.2024Hon. B. Kimemia Chairperson Signed 25. 7.2024.