Bodo & 2 others v Nduati (Tribunal Case 625/E247 of 2023) [2025] KECPT 291 (KLR) (29 May 2025) (Ruling)
Neutral citation:
[2025] KECPT 291 (KLR)
Republic of Kenya
Tribunal Case 625/E247 of 2023
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & PO Aol, Members
May 29, 2025
Between
Nicholas Bodo
1st Claimant
George Gachora
2nd Claimant
Gichuki Kabukuru
3rd Claimant
and
Isaac Nduati
Respondent
Ruling
1.This ruling dispenses with the Notice of Preliminary Objection dated 15th August 2024. In the notice of Preliminary Objection, the Respondents raise an issue with the jurisdiction of this Tribunal on the following grounds:a.The Honourable tribunal lacks jurisdiction to entertain, hear and determine the instant claim as filed as the claim offends section 76 (2) of the Cooperative Societies Act, Cap 490.b.The Claimant’s suit against the Respondent is incompetent and incurably defective for want of jurisdiction and a proper cause of action.c.The suit as filed lacks legal foundation and is merely designed to harass the respondent and cause him unnecessary anxiety and taint his reputation.d.The suit is misconceived , frivolous, vexatious and an abuse of the due process of this Honourable Tribunal and ought to be struck out and/or dismissed with costs to the Respondent
2.The Preliminary Objection was canvased by way of written submissions and both parties filed their submissions.
3.In the Applicant Respondent’s submissions, they opined that this Tribunal lacks jurisdiction by virtue of section 76(2) of the Cooperative Societies Act. That the dispute fails to meet the mandatory requirements set under section 76(2) since it’s not one made by a cooperative society for any debt or demand due to it from a member or a past member, or from the nominee or personal representative of a deceased member. That it is also not by a Sacco society against a refusal to grant or a revocation of a licence. That the wording of section 76(2) is couched in mandatory terms by the use of the words SHALL.
4.The Claimants Respondents, in their submissions, opined that the dispute squarely lies with the Cooperative Tribunal pursuant to section 76 of the Co-operative Societies Act.
Analysis
5.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.
6.The Jurisdiction of this Tribunal is drawn from the Cooperative Societies Act, at section 76(1) which provides as follows;
7.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.
8.According to the Claim, the Claimants and the Respondent are members of one Co-operative Society, one Harambee Co-operative Savings and Credit Society Ltd. The dispute concerns the repayment of a loan that was accorded to the Respondent by Harambee Co-operative Savings and Credit Society, and the same was guaranteed by the Claimants. Indeed, a duly executed loan form has been filed to this effect. The Respondent defaulted in his loan, and they were attached to repay the defaulted loan. The Claimants fell aggrieved and they instituted this Claim.
9.The question before us, therefore, is whether this dispute can be said to be disputes envisaged by the Cooperative Societies Act.
10.Section 76 (1)(2)A dispute for the purpose 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;
11.We find that the above provisions speak to the subject of this application. Section 76(1)(a) provides for the disputes concerning the business of a cooperative society “among members” . This is a dispute among members of Harambee Cooperative Sacco Society Ltd, and therefore can be said to be a dispute “among members”.
12.On the question of the business of a Cooperative society, Section 76 (2) provides that “A dispute for the purpose of this section shall include— (a) a claim by a co-operative society for any debt or demand due to it from a member……..”. The dispute herein concerns a debt that the co-operative society claimed from the Respondent, who defaulted and the claim was then directed by the Cooperative society to the Claimants who are guarantors of the Respondent. We find this to be within the business of a cooperative society.
13.In the upshot of the foregoing, we find that this Tribunal has jurisdiction to handle this matter, and hereby dismiss the Preliminary Objection dated 15th August 2024 with costs to the Claimant/Respondent.
14.Mention for Pre-trial directions on 22.10.2025. Notice to issue.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025.HON. B. KIMEMIA - CHAIRPERSON SIGNED 29.5.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29.5.2025HON. BEATRICE SAWE - MEMBER SIGNED 29.5.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 29.5.2025HON. PHILIP GICHUKI - MEMBER SIGNED 29.5.2025HON. P. AOL - MEMBER SIGNED 29.5.2025Tribunal Clerk MutaiKimathi advocate for the Respondent.