[2021] KECPT 31 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 150 OF 2018

ANTHONY NDUNG’U KIBORO..............................CLAIMANT

-VERSUS-

UNAITAS SACCO SOCIETY LIMITED......1ST RESPONDENT

SUPERFEW AUCTIONEERS.......................2ND RESPONDENT

RULING

1. The Applicant has filed a Notice of Motion Application dated 6th May, 2021. In the said Application, the Applicant is seeking, inter alia, inspection of motor vehicle KBL 343Q and compensation for any damages thereupon. This is after Judgment was rendered on 10th December 2020, directing that the motor vehicle KBL 343Q be released to the Claimant by the 1st Respondent. The Claimant alleges that upon release of the said motor vehicle, it was dilapidated, and this necessitated the filing of the attendant Application for inspection and compensation.

2. The Respondents opposed the Application, citing the principle of functus officio. In their Grounds of Opposition dated 2nd June 2021, they contend that the application is tantamount to reopening of the case, and the subject thereof is unrelated to the already concluded cause of action.

3. We have read and considered the Pleadings and elaborate submissions of both parties, which have assisted this Tribunal to come to the determination of these present issues.

4. ISSUES FOR DETERMINATION

Having carefully considered the documents and arguments by both parties, we have framed the following issues for determination:

a. Whether this Tribunal is functus officio in relation to the Application; and

b. Whether this Tribunal can issue the Orders to inspect the motor vehicle.

5. ANALYSIS OF THE ISSUES

a. Whether this Tribunal is functus officio

The Respondents have posited that upon rendering its decision, this Tribunal became functus officio. This is because, upon delivery of its decision, the Tribunal is estopped from reopening a case which would require evidence of parties by way of testimonies.

Does this Tribunal actually become functus officio?

The Black's Law Dictionary, Ninth Edition defines the describes functus officio as: -

“[Having performed his or her office]” (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

The Court of Appeal in Telcom Kenya Limited -vs- John Ochanda(suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR held that:

“Functus officiois an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon”

6. An Application for inspection a motor vehicle after a decision has been made for its release is indeed outside the ambit of this Tribunal, as it is in fact interfering with the Judgment. It is a re-litigation of the case, as is it a reopening of arguments on merits or otherwise of the decided cause. This Tribunal is effectively functus officio.

a. Whether this Tribunal can issue Orders for Inspection of the Motor Vehicle

In view of the foregoing, we are persuaded that this Tribunal is bereft of Jurisdiction to entertain an Application for inspection of the suit motor vehicle.

7. We thus find that the Orders sought should not be granted and the Application dated 6th May 2021 must fail. The Applicant, has other avenues to pursue compensation for damages (if any) on the suit motor vehicle, but the Application as was filed is not the right avenue.

ORDERS

We therefore Order as follows:

a. The Applicant’s Application dated 6th May 2021 is dismissed;

b. Each Party to bear its own costs.

RULINGSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021

Hon. B. Kimemia Chairperson Signed 7. 10. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021

Mr. P. Gichuki Member Signed 7. 10. 2021

Mr. B. Akusala Member Signed 7. 10. 2021

Tribunal Clerk R. Leweri

No appearance by both parties

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021