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SETTLEMENT OF DISPUTE


Under Section 76 of the Statute it is provided that if any dispute concerning the business of a cooperative 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; or
(c)                Between the society and any other cooperative society it shall be referred to the tribunal.

A claim by a cooperative 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 a debt or demand is admitted or not is a dispute.

Section 77 established the cooperative tribunal consisting of a chairman and deputy chairman appointed by the Chief justice , 3 members appointed by the minister or of whom shall be legally qualified  and at least one of whom shall be an advocate of the high court of Kenya.

However, no person shall be qualified for appointment as chairman or deputy chairman unless he holds or has held for a total period of not less than 5 years the qualifications specified in sections 12 and 13 of the advocates Act.  All appointments to the tribunal are by Gazette notice issued by the minister for a period of 3 years.

The officer of a member of the tribunal shall become vacant under the following circumstances;

a.                   at the expiration of 3 years from the date of his appointment;
b.                  if he accepts any office the holding of which if he were not a member of the tribunal would make it ineligible for appointment to office of a member of the tribunal;
c.                   If he is removed from membership for failure to discharge the functions of his office whether arising form infirmity of body or mind or from any other cause or for misconduct;
d.                  If he resigns from office.

In its proceedings the tribunal is not bound by the rules of evidence.  Section 78(2) provides as follows the tribunal shall upon an application made to it in writing by any party or a reference made to it by the commissioner, the registrar or any committee or officer of a society on any matter relating to the Act, the rules or bylaws inquire into the matter and make an award thereon and every award made shall be notified to the parties concerned.  The tribunal sits at such times and in such places as it may decide.  Currently they are sitting at Re insurance plaza.

The proceedings of the tribunal are open to the public except where otherwise directed by the Tribunal.  Except as expressly provided the tribunal regulated its own procedure.  Under Section 79 the Tribunal may

1.                  Make such orders for the purposes of securing the attendance of any person at any place, the discovery or production of any document or the investigation of contravention of the Act as it deems necessary or expedient;
2.                  The tribunal may take evidence on oath and for that purpose administer oaths; or
3.                  On its own motion summon and hear any person as a witness.

Any person who under paragraph 79(2)
(a)                fails to attend to the tribunal after being summoned;
(b)               Refused to take oath or to answer satisfactorily to the best of his knowledge and belief any question lawfully put to him in any proceedings before the tribunal; or to produce any article or document when required to do so or
(c)                Knowingly gives false evidence or information which he knows to be misleading or;
(d)               At any sitting of the tribunal wilfully insults any member or officer or wilfully interrupts the proceedings  or commits contempt of the tribunal shall be guilty of an offence.

For the purposes of hearing and determining any cause or matter the chairman and two members form a quorum.  Provided that where for any reason either or both of the members is or are not present for any part of the hearing the jurisdiction of the tribunal may be exercised by the chairman sitting either with one such member or alone.

A tribunal member who has a direct interest in any matter which is the subject of the proceedings before it shall not take part in those proceedings.  Any matter considered by the tribunal shall be decided by majority vote and the person presiding has a casting as well as deliberative vote.  But any point of law arising in any proceedings shall be reserved to and pronounced upon by the person presiding exclusively. All interlocutory applications shall be determined by the Chairman of the Tribunal.

However any power conferred or duty imposed on the chairman may unless a contrary intent appears be exercised or  performed by the deputy chairman if the chairman is unable to exercise or perform that power, due to illness or absence or where the Chairman authorises the deputy chairman to exercise or perform that power or duty.

Section 81 deals with appeals and is to the effect that any party to the proceedings aggrieved by any order of the tribunal may within 30 days of such order appeal against it to the High Court.  the high court reserves the power to extend that period.  upon the hearing of an appeal, the high court may do any of the following

1.                  Confirm set aside or vary the order in question;
2.                  Remit the proceedings to the tribunal with such instructions for further consideration, report proceedings or evidence as the court may deem fit to hear;
3.                  Exercise any of the powers which could have been exercised by the tribunal in the proceedings in connection with which the appeal is brought or;
4.                  Make such other order as it may deem just including an order as to the costs of the Appeal or of earlier proceedings in the matter before the tribunal.

It should be noted that the decision of the high court on any appeal is final.

Under Section 82 the Chairman of the tribunal may appoint any person with special skills or knowledge on cooperative issues which are the subject matter of any proceedings or inquiry before it to act as an assessor in an advisory capacity in any case where it appears to him that those skills are required for the proper determination of the matter.  It is an offence for any person to engage in acts or commission amounting to contempt of the tribunal and it may punish such person for contempt. 

The remuneration of the Chairman and Tribunal members  shall be determined by the minister from time to time.  Further the minister shall appoint a public officer to be secretary to the tribunal whose allowances shall be determined by the minister.  The minister is further empowered to establish one or more branches of the tribunal in any part of Kenya as he deems appropriate in consultation with the chairman.

Any person who is a party to proceedings may appear in person or be represented by an Advocate.

Section 88 deals with immunity herein, the chairman or other members of the tribunal shall not be liable to be sued in a civil court for an act done or omitted to be done or ordered to be done by them in the discharge of their duties whether or not within the limits or their jurisdiction as long as they at the time in good faith believed themselves to have jurisdiction to do or order the acts complained of.  No officer of the tribunal or other person bound to execute the lawful warrants, orders or other processes of the tribunal shall be liable to be sued in any court for the execution of a warrant order or process which he would have been bound to  execute if within the jurisdiction of the Tribunal issuing it.

 
 
 

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