Case ID:182005

Joseph Wahome Kamau, Faith Tita Adu, Stella Wanjiru Njeru, Patrick Cheruiyot Mutai, Consolata Ngendo Njihia, Robert Kahiga Munene & Jane Akinyi Ojijo v Daniel Mithamo Kiongo [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 475 of 2020

Parties:

Joseph Wahome Kamau, Faith Tita Adu, Stella Wanjiru Njeru, Patrick Cheruiyot Mutai, Consolata Ngendo Njihia, Robert Kahiga Munene & Jane Akinyi Ojijo v Daniel Mithamo Kiongo

Date Delivered:

02 Sep 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

Hon. B. Kimemia Chairperson Signed 2.9.2021 Hon. J. Mwatsama Deputy Chairperson Signed 2.9.2021 Mr. Gitonga Kamiti Member Signed 2.9.2021 Mr. B. Akusala Member Signed 2.9.2021

Citation:

Joseph Wahome Kamau, Faith Tita Adu, Stella Wanjiru Njeru, Patrick Cheruiyot Mutai, Consolata Ngendo Njihia, Robert Kahiga Munene & Jane Akinyi Ojijo v Daniel Mithamo Kiongo [2021] eKLR

Advocates:

Onyango for the Claimant

Court Division:

Tribunal

County:

Nairobi

Advocates:

Onyango for the Claimant

History Advocates:

One party or some parties represented

Case Outcome:

Notice of Preliminary Objection dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.475 OF 2020

JOSEPH WAHOME KAMAU............1

ST

CLAIMANT

FAITH TITA ADU..................................2

ND

CLAIMANT

STELLA WANJIRU NJERU................3

RD

CLAIMANT

PATRICK CHERUIYOT MUTAI .......4

TH

CLAIMANT

CONSOLATA NGENDO NJIHIA..........5

TH

CLAIMANT

ROBERT KAHIGA MUNENE...............6

TH

CLAIMANT

JANE AKINYI OJIJO..............................7

TH

CLAIMANT

VERSUS

DANIEL MITHAMO KIONGO................RESPONDENT

RULING

The Claimants were members of Waumini Sacco Society Limited(hereinafter, “Sacco”).

They allege to have guaranteed the Respondent over a loan of

Kshs. 1,114,939.38/=

which was deducted from the deposits of the Claimants due to an act of default by the Respondent.

The Claimants filed a Statement of Claim over the deductions, which Statement of Claim is dated

30

th

November, 2020

. The Respondent entered Appearance on

22

nd

December, 2020

and filed an Amended Notice of Preliminary Objection dated

17

th

February 2021.

This Ruling is in terms of the Preliminary Objection raised by the Respondent on two grounds:

a. That the Honorable tribunal lacks jurisdiction to hear and determine this matter, hence the suit should be struck out with costs; and

b. The entire suit is fatally defective and ought to be struck out.

Parties proceeded by way of written submissions, which we have considered extensively.

Respondent’s Case

The Respondent argues that the entire suit is defective due to violation of

Order 4 Rule 2 of the Civil Procedure Act Rules 201

on High Court argues that the verifying Affidavit filed in accompaniment of the Statement of Claim was not commissioned as is required by

Section 5 of the Oaths and Statutory declarations Act.

The Respondent has relied on the case of

Rajput - vs- Barclays Bank of Kenya and 3 others [2014] eKLR 393

. The Respondent concludes by implore this Tribunal to strike out the suit for failing to adhere to

Order 4 Rule 2.

The Claimants have conceded that jurisdiction is everything. They have also reiterated that the subject matter of this case concerns a disputes between past Members of the Sacco, and as such it falls under the provisions of

Section 76 of the Co-operative Societies Act.

They have referred to a myriad of cases, which we have also considered.

On the issue of defectiveness of the Claim, the Chairman have positioned that the said Statement of Claim was indeed accompanied by a Verifying Affidavit which was commissioned by Henry Gachuna, an Advocate of the High Court and Commissioner of Oaths. The said Affidavit was consequently filed alongside the Statement of Claim on the

2

nd

December, 2020.

The Claimants conclude that the Preliminary Objection is frivolous, unfounded and lack merit, and same to be dismissed with costs.

Issues for determination

This Tribunal has framed the following as issues necessary for determination.

a. Whether the Preliminary Objection is valid.

b. Whether the Tribunal is benefit of jurisdiction to determine the Claim.

c. Whether the Statement of Claim is fatally defective.

d. Who bears the costs of the Preliminary Objection.

We will now dissect the issues.

a. Whether the Preliminary Objection is valid.

A Preliminary Objection must address it to pure point of law. It should be, but that can determine the case at once, if it is argued on the assumption that all the facts pleaded are correct. It cannot be raised when a fact is subject to ascertainment, or if what is sought calls for judicial discretion. This was the ratio decidevidi is the landmark case of

Mukisa Biscuits Manufacturing Company Limited - vs- West End Distributors [1969] EA 696.

The Preliminary Objection in this case raises the question of validity of pleadings, and if this is to be determined in the affirmative, the Tribunal will strike out the said pleading and if this is to be determined in the affirmative, the Tribunal will strike out the said pleading, and thus determine the claim at once. The Preliminary Objection also list the particulars under which the objection is raised, and this satisfies the requirements of raising a Preliminary Objection.

This Tribunal is satisfied that the Preliminary Objection is justiciable, and is thus valid.

b. Whether the tribunal has jurisdiction

The claim concerns former members of the Sacco, one of whom was guaranteed by the others.

Section 76 of the Co-operative Societies Act

Provides as follows:

“ 1. If any dispute concerning the business of a Co-operative society arises:

a. Among members, past members and persons claiming through members, past members and deceased members; or

b. Between members, past members or deceased members, and the society, its committee or any officer of the society; or

c. Between the Society and any other Co-operative Society, it shall be referred to the Tribunal.

2. a dispute for the purposes of this section shall include-

a. a claim by a Co-operative 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; or

b. 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 Co-operative 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.”

It is therefore clear that this case is in line with

Section 76 (1) (a) of the Co-operative Societies Act,

and the Tribunal is thus clothed with jurisdiction thereon.

We thus find that this Tribunal has jurisdiction to hear and determine the claim. This ground of the Preliminary Objection must therefore fail.

c. Whether the Statement of Claim is fatally defective

The evidence on record shows that the Statement of Claim was filed on

2

nd

December 2020,

and at the time of filing, the same was accompanied by an Affidavit dated

30

th

November, 2020

. The Affidavit is stamped as commissioned by

Henry Gachuba

, an Advocate and Commissioner of Oaths.

It is thus clear that the claim has been properly instituted before his tribunal, in his ……

Order 4 Rule 2 of the Civil Procedure Act.

In any event, even if the Affidavit was not stamped as commissioned, the remedy available would be to require the Claimant to comply, rather than strike out the entire suit. The Civil Procedure Act and appurtenant unless envisage substantive justice served upon parties, and striking out pleadings when they could be rectified and justice served.

This ground of the Preliminary Objection suffers the same fate of failure.

Costs

The cost follow the event. The Respondent has set the parties to wild goose chase, delaying the matter. He must be condemned to pay costs, and we so order.

Orders

We order as follows:

a. The Notice of Preliminary Objection dated 17

th

February 2021 fails.

b. The Respondent to pay costs to the Claimant.

c. Mention for Pre-trial directions on 9.11.2021.

RULING SIGNED, DATED AND DELIVERED

VIRTUALLY

AT NAIROBI THIS 2

ND

DAY OF SEPTEMBER, 2021

Hon. B. Kimemia Chairperson Signed 2.9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2.9.2021

Mr. Gitonga Kamiti Member Signed 2.9.2021

Mr. B. Akusala Member Signed 2.9.2021

Tribunal Clerk R. Leweri

Onyango for Claimant: Present

No appearance for Respondent

Hon. B. Kimemia Chairperson Signed 2.9.2021