[2025] KECPT 100 (KLR)

Amica Savings & Credit Limited v Musyoka (Tribunal Case 1050 of 2018) [2025] KECPT 100 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 100 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1050 of 2018

Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

January 30, 2025

Between

Amica Savings & Credit Limited

Claimant

and

Peter Kanyallu Musyoka

Respondent

Ruling

Notice of Motion Applications 1. The Notice of Motion Applications dated 10th and 11th June 2024 are brought under Order 51 Rule 1(3), Order 45 of the Civil Procedure Rules, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Articles 159(1), 159(2)(d) of the Constitution of Kenya seeking among others Orders:a.Spentb.That the Honorable Tribunal be pleased to review its orders of 10th June 2024 and allow the Claimant to call two more additional witnesses who are valuers to testify and adduce more evidence in the Claimant’s casec.That the Honorable Tribunal be pleased to set aside its orders on such terms as are just and allow the Respondent's case be reopened so as to give chance to the Claimant to cross examine the Respondentd.That in the alternative, the Honorable Tribunal be pleased to grant such other or further orders as it shall deem fit and just for the preservation of justice regarding the nature and circumstances

2. The Applications were supported by the annexed Affidavit of Jonathan Ngumo Mbogo on the grounds that:i.The Claimant’s main witness testified on 18th April 2024ii.The matter again came up for Defence hearing on 11th June 2024 which proceeded in the absence of the Claimant due to technical issues on the part of the Advocate holding briefiii.The Claimant is desirous of cross examining the Respondent who was heard in the absence of the Claimant and and/or his Advocateiv.The Claimant’s Advocate had on 10th June 2024 communicated to the Respondent Advocate via e-mail of their intention to adjourn the matterv.The Advocate holding brief on the part of the Claimant faced technical challenges during the virtual court session whereby he was not able to address the court on timevi.It was later brought to the attention of the Claimants Advocate that the hearing had proceeded in their absencevii.Failure to attend court was not intentional on the part of the Claimant and reopening shall not prejudice or embarrass the Respondent as the Respondent is at liberty to cross examine the proposed additional witnesses and evidenceviii.The application has been made without inordinate or unexplained delay and the Claimant’s new evidence shall help the court arrive at a fair decision as the application has merit within the provision of the relevant law by virtue of the overriding objectives provided by the Civil Procedure Act and Rules and it is in the interest of justice that the application be granted

3. The Tribunal gave directions on 12th June 2024 for the Application to be served on the Respondent with the Respondent given 14 days to file his response upon service. Further directions were given on 8th August 2024 for their Application to be canvassed by way of written submissions.

4. The Claimant filed their written submissions dated 22nd August 2024 stating among others that:i.The Claimant brought to the attention of their Advocates valuation reports after the close of the Claimant’s case, and that such reports can only be produced by their makers as they involve the questions raised by both parties and such clarifications or gaps if at all there are any, can only be addressed by the maker of such a reportsii.The Claimant courteously informed the Respondent through their Advocate of his intention to adjourn the matter to enable him bring more witnesses as evidenced by the annexed emails in the application, and on the morning of the hearing, the advocate for the Claimant logged in virtually but unfortunately got disconnected as other matters were being called out and was unable to log back in.iii.The Respondent’s Advocate was aware of his counterpart's intention and should have rightly accepted the adjournment and it has never been the Claimant’s advocates nature to miss court or seek adjournments and if the Respondent’s advocate would have communicated to decline, they would have made all effort to proceediv.The Claimant does not mean to prejudice or undermine the Respondent and that is why the court was moved immediately through the two applications and the Claimant has the right to cross examine the Respondent and prays that the court do allow them for final determination of the matter as the case being of debt recovery, the Claimant is keen on ensuring that the money owed to its members are settled and recovered from all debtors such as the Respondent

5. The Respondent on his part filed his written submissions dated 3rd September 2024 in response to the two applications dated 10th June and 11th June 2024 stating among others:i.That any party that seeks equity must come with clean hands and equity only aids the vigilant and not the indolent, as the documents that the Claimant intends to rely on were in their possession at all material timesii.That the claimant has not given any reasonable explanation as to why they never filed or produce the documents despite the documents being in their possessioniii.That the Claimant had secured judgment which was set aside, and when the Respondent filed their defence and counter-claim the claimant did not file the said documents - which can be construed to mean that they did not wish to rely on themiv.That the Claimant had the documents from 19th May 2017 and 9th June 2017 and during cross-examination the Claimant’s witness confirmed that indeed, the documents were in their position and thus would have produced them in court had they wanted tov.That both the Claimant and the Respondent were present in court on 18th April 2024 and the hearing date of 11th June 2024 was agreed on by both parties and the Claimant was expected to avail themselves in court but they failed to do so to their detrimentvi.That's the e-mail the Claimant’s advocate had sent was sent outside working hours and could not have been responded to appropriatelyvii.That parties are bound by their pleadings and should not be allowed to present new evidence that had not been pleaded as the documents the Claimant wants to be allowed to present are contrary to what they had pleadedviii.That the Claimant had pleaded that the motor vehicle was sold for Kshs. 600,000/= which their witness confirmed during his testimony and cross-examination and the documents that they wish to be allowed to rely on or introduce however indicate the selling price to be Kshs 1,300,000/=

6. We have considered the two applications, the affidavits and written submissions filed and the only question remaining for determination is as to whether the claimant has given sufficient reasons to enable this tribunal exercise its discretion to reopen the caseHas the Claimant given sufficient reasons to enable this Tribunal exercise its discretion to reopen the case?The exercise of judicial discretion is now settled, must be on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. This tribunal’s discretion being judicial, must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material facts falling squarely on the Claimant as they are the applicants of the two motions.

7. In Wavinya Mutavi v Isaac Njoroge & another (2020) eKLR the court in disallowing an application similar to this one held that:“Over the years, Kenya’s superior courts and courts in the Commonwealth have developed principles which guide the exercise of jurisdiction to re-open a case and receive additional evidence in a civil trial court. First, the jurisdiction is a discretionary one and is to be exercised judiciously. In exercising that discretion, the court is duty-bound to ensure that the proposed re-opening of a party’s case does not embarrass or prejudice the opposite party. Second, where the proposed re-opening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. Third, the plea for re-opening of a case will be rejected if there is inordinate and unexplained delay on the part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Fifth, the evidence must be such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible.”

8. Similarly, in Smith v New South Wales (1992) HCA 36 , (1992) 176 CLR 256 it was held:“If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.”This being a 2018 case, we are not persuaded that the reasons advanced are sufficient or are of good cause to re-open the case as we are of the considered view to also invoke the doctrine of estoppel for there is a season to commence proceedings and a season to terminate. Proceedings are not to be conducted ad infinitum. This is a formidable armoury against the Claimant’s motions. We are guided by the wise words of Bosire, J.A in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] eKLR where he stated as that:“This is a doctrine which enables the courts to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down.”

Final Orders:1. The Notice of Motion Applications dated 10th and 11th June 2024 are dismissed2. Costs are in the cause3. Parties to file their final written submissions on 10. 4.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 1.2025HON. PAUL AOL MEMBER SIGNED 30. 1.2025Tribunal Clerk MutaiMukua advocate for decree holder/Respondent- PresentJ. Ngumoadvocate for Claimant – No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025