NAIROBI-Disputes in Kenya’s co-operative sector will now be handled by the Co-operative Court which will stand on its own aside from the existing Co-operative Tribunal, if the draft bill will be enacted into law.
According to Sacco Review, The Draft Co-operative Bill, 2021 which if enacted into law will repeal the long-term Co-operative Societies Act which was enacted in December 22, 1997; will see the establishment of a Co-operative Court which shall be presided over by a Magistrate of the rank of a Senior Principal Magistrate and above.
The kind of disputes which shall be referred to the Court include any dispute concerning the business of a cooperative arising among members, past members and persons claiming through members, past members and deceased members; or between members, past members or deceased members, and the board of directors of the cooperative, or any officer of the cooperative.
It will also deal with disputes between the cooperative and any other co-operative, a cooperative and an employer, between a liquidator and past members, creditors or other third parties; between a cooperative and any other third party entities that are not a cooperative concerning the cooperative business.
The disputes here shall include claims by members, past members and persons claiming through members, past members and deceased members arising from breach or violation of contractual obligations; claims for any debt or refunds or deposits or any other due.
A claim by a cooperative against an employer for non-remitted deductions arising from an agreement between the cooperative and the employer on remittance of deductions; and a claim by a cooperative against a member, past members and persons claiming through members, past members and deceased members in respect to a breach or violation of contractual obligations.
To a large extend, some of this disputes are currently being handled by the Co-operative Tribunal, which was the only organ mandated to settle disputes in the co-operative sector.
This therefore implies that the Tribunal, which if the bill will be enacted into law; will deal with different line of disputes different from what is currently dealing with.
According to the bill, the disputes which will be referred to the Tribunal shall include any dispute concerning the business, including but not limited to the management, governance, activities or operations of a co-operative arises between the Commissioner and a cooperative, Commissioner and an officer of a cooperative.
Director of County Cooperative and a cooperative, Director of County Cooperative and an officer of a cooperative, authority and a Cooperative, authority and an officer of a cooperative shall be referred to the tribunal.
This dispute shall include a rejection of an application for registration of a cooperative, a cancellation of registration of a cooperative; or a claim in respect of a surcharge imposed against any person, a claim by a Sacco Society against a refusal to grant or a revocation of license or any other matter with the Authority.
Others include a claim by the Commissioner or County Director for Cooperatives or the Authority or liquidator against a cooperative or an officer of a cooperative in respect of any surcharges, fines, or financial penalty imposed under this Act or any other written law; any claim by a cooperative against the Authority in respect of any administrative action commenced or instituted or imposed by the Authority pursuant to the Sacco Societies Act or any other written law; and any claim by a cooperative or an officer of a cooperative in respect of any administrative action commenced or instituted or imposed by the Commissioner or the Directors of County Cooperatives under this Act.
The bill requires that the appointment of the Court magistrates be done by the Judicial Service Commission (JSC) through a notice in the Gazette who will serve as cooperatives court magistrates or where the person appointed is a serving magistrate, designate by notice in the Gazette the person a Cooperatives court magistrate.
In the event the JSC designates a serving magistrate to serve as a cooperatives court magistrate, the person shall serve as a cooperative courts magistrate, in addition to any other judicial duties assigned to the person; though the Chief Justice shall ensure that there are not less than ten sitting cooperative magistrates’ courts at any given time.
Court registries and sittings
The bill further requires the Chief Justice to establish cooperatives court registries, within the existing court stations in the country; provided that there shall be at least 15 co-operative court registries in the country at any given time taking into account the geographical distribution of the counties.
A cooperatives court will hold its sittings in place where the cooperative court registry has been established, however, the Chief Justice may consolidate cases registered in one cooperative registry to be heard and determined in another registry taking into account the geographical locations and proximities of the registries; and further direct a co-operative court magistrate or more to sit in one or more places where the co-operative court registry is established guided by the principles of efficiency, ease of access and effective delivery of judicial services
The bill also states that the Cooperatives Court shall sit on such days as shall be designated by the Deputy Registrar of the court taking into account the number of cases filed in or pending before in each registry.
The draft bill is part of the mandate that was given to the Kuria-led taskforce committee which was formed in December last year to initiate and develop a framework for implementation of the National Co-operative Interventions, review of the Co-operative legislation, Co-operative Institutional Reforms and Co-operative Capacity Development.
The most recent amendments to the Co-operative Societies Act of 1997 is the one that was being sponsored by nominated Senator Agnes Zani, which was read the first time in senate on November 5, 2020; was meant to align it to the Constitution of Kenya, 2010 by setting out the functions of the National Government and the county governments in relation to governance of co-operative societies.
Despite the Co-operative societies falling under the county government in the Kenya’s 2010 constitution, the bill wanted to involve the national government in governing of the organization due to its role in the country’s economy, specifically by setting out the respective functions of the National government and those of the county governments.
The Zani Bill further wanted to provide that governance of primary co-operative societies be overseen by county governments while the National Government shall be responsible for national policy and be responsible for the apex society and co-operative unions.
https://thecooperator.news/kenyan-parliament-set-to-approve-saccos-inter-lending-facility/
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