Kabare Farmers Co-operative Society v Kithaka (Tribunal Case 59 of 2008) [2024] KECPT 1498 (KLR) (26 September 2024) (Judgment)
Neutral citation:
[2024] KECPT 1498 (KLR)
Republic of Kenya
Tribunal Case 59 of 2008
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
September 26, 2024
Between
Kabare Farmers Co-operative Society
Claimant
and
Andrew Kithaka
Respondent
Judgment
1.The claim for determination is dated 24/10/2008. The Claimant is a registered Co-operative Society with over 7,730 active members at the time of filing this Claim.The expenses of the Claimant include: -i.Maintenance of Coffee pulping factories;ii.Salaries of the employees of the Claimant working in the various factories;iii.Transport of the Claimant’s coffee from Kirinyaga to KPCU, Nairobi;iv.Repair of Claimant’s vehicles.
2.In paragraph 4 of the Statement of Claim, the Claimant avers the Respondent was a member of the Claimant and member of its Management Committee.The Claimant avers between 1999 and 2005, the Management Committee of the Claimant breached the contract between the management and its members as pleaded in paragraph 2 above.In contravention of Section 28 of the Cooperative Societies Act, the Claimant lost Kshs. 11,407,965/= as such in August 2005, the commissioner for Co-operative Development instituted an inquiry and the Inquiry Report, the Respondent was found to have an unaccounted Kshs. 477,850/= .Vide a Special General Meeting, the members resolved and adopted the Inquiry Respondent resolving for the Management Committee members to be Surcharged.The Claimant’s prayers are thus for:a.The said sum of Kshs. 477,850.00/=b.Costs of this suit.c.Interest thereon at court rate from the date…d.Any other relief this Honourable Court may deem fit to grant.
3.The Claimant filed a List of Documents dated 4/6/2012 on even date which include:1.Notice of Intention to Surcharge dated 22nd December 2005.2.Submission in Opposition to Notice of Intention to Surcharge dated 29th December, 2005.3.Surcharge orders dated 30th March, 2006.4.Invoices, delivery notes and payment vouchers for the period between 1999 and 2005.
4.In the Court file, we do not see any Statement of Defence filed by the Respondent.The Claimants filed their Written submissions dated 4/9/2013 filed on 5/9/2013. In the Written Submissions, the Claimant aver the Report by the Commissioner found the Respondent liable for mismanagement of the Society’s fund for an amount of Kshs. 447,850.00/=.
5.We have looked into the document bundle by the Claimant dated 4/6/2012 and we find no mention of the Respondent Andrew Kithaka in the Notice of Intention to Surcharge dated 22/12/2005 and also Surcharge Orders dated 30/3/2006 and do not find the name of the Respondent.
6.In light of the above without further ado;The relevant documents do not implicate the Respondent herein as per the documents produced. The Claim is therefore not produced and is dismissed with costs.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024.HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 26.9.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 26.9.2024HON. BEATRICE SAWE - MEMBER - SIGNED - 26.9.2024HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 26.9.2024HON. PHILIP GICHUKI - MEMBER - SIGNED - 26.9.2024HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 26.9.2024HON. PAUL AOL - MEMBER - SIGNED - 26.9.2024Tribunal Clerk MutaiWere advocate for the Claimant.Andrew Kithaka - RespondentHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 26.9.2024