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Mathu & 10 others v Commissioner for Cooperative Development and Marketing; Riitho Farmers Co-op Society (Interested Party) (Tribunal Appeal 1 of 2019) [2023] KECPT 431 (KLR) (Civ) (15 June 2023) (Judgment)
Neutral citation:
[2023] KECPT 431 (KLR)
Republic of Kenya
Tribunal Appeal 1 of 2019
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
June 15, 2023
Between
Wilfred Mahia Mathu & 10 others
Appellant
and
The Commissioner for Cooperative Development and Marketing
Respondent
and
Riitho Farmers Co-op Society
Interested Party
Judgment
1.On 8th February 2022 the Appellants filed an Amended Memorandum of Appeal seeking the following orders;
2.In the Appeal, the Appellants argue that the Respondents committed an illegality by surcharging the Appellants when they had no authority to do so. Further, they argue that no Inquiry was carried out.The Respondents have not filed any Response. On 14th March 2022 the Interested Party filed a Replying Affidavit in Response. They claim provisions of the law are expressly clear that the Respondent and all other officers below him legal authority to execute any function that falls under the Cooperative Societies Act. Further, the Respondent through an order dated 27th March 2018, state that they appointed an Inquiry Team that compiled a report that established there was mismanagement of funds by the Appellants. They pray that the Appeal be dismissed with costs.
3.The issues for determination are:a. Whether the Deputy Commissioner of Cooperative Development one Geoffrey Njangómbe had capacity to sign Surcharge Orders under the Cooperative Societies Act.Section 73(2) of the Cooperative Societies Act is the law that governs surcharges and provides that the Commissioner may make an order requiring the person to repay or restore the money or property to the Cooperative Society. The same was highlighted in Tribunal Appeal Case No. 2 of 2020 Betty Joyce Matiangi versus Wevarsity Sacco Society Ltd. The Commissioner therefore, is an administrative body which carries out its function as mandated by the Cooperative Societies Act.The office of the Deputy Commissioner for Cooperative Development is a creature of statutes in Section 3(2) of the Cooperative Societies Act. They are deployed in the department of cooperatives where they are assigned various duties listed under Section 3(3) of the Cooperative Societies Act. The Cooperative Societies Act Section 3(1) & (2)provides that there shall be a Commissioner for Cooperative Development whose office shall be an office in the Public Service and that there shall be a number of officers, including Deputy Commissioners, as may be necessary to assist the Commissioner in the administration of the provisions of this Act.Similarly, Article 260 of the Constitution of Kenya and Section 2 of the Public Officers Ethics Act define who a State Officer and Public Officer is respectively. They both define Public Officer to be a holder of a State Office, who are paid by the Government and perform various duties.Therefore, from the above provisions of law it is clear there is no dispute as to whether Geoffrey Njangómbe is a Public Officer and it defeats any logic to dispute documents signed by the same officer in the course of his legal duties.b. Whether an inquiry was conducted into the financial affairs of the interested party.It is the Interested Party submission that the Respondent appointed a team of Inquiry Officers under Section 58 of the Cooperative Societies Act. The said Officers were required to examine the Interested Party’s financial activities and compile a report of their finding and recommendations. The Inquiry Report is part of the Appellants list of documents marked page 2 to 98.
UpshotAfter consideration of the Amended Memorandum of Appeal, the Appellants written submissions and Interested Party’s written submissions, we find the Appeal is without merit and the same is dismissed with no orders as to costs.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JUNE, 2023.Hon. Beatrice Kimemia Chairperson Signed 15.6.2023Hon. J. Mwatsama Deputy Chairperson Signed 15.6.2023Hon. Beatrice Sawe Member Signed 15.6.2023Hon. Fridah Lotuiya Member Signed 15.6.2023Hon. Philip Gichuki Member Signed 15.6.2023Hon. Michael Chesikaw Member Signed 15.6.2023Hon. Paul Aol Member Signed 15.6.2023Tribunal Clerk JonahNo appearance by partiesJudgment delivered in the absence of partiesHon. J. Mwatsama Deputy Chairperson Signed 15.6.2023
