[2021] KECPT 547 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 13 OF 2020

BERNARD GICHUKI.......................................................................................CLAIMANT

VERSUS

STIMA INVESTMENT CO-OPERATIVE SOCIETY LIMITED ..........RESPONDENT

RULING

The matter for determination is a Notice of Motion dated 9. 9.2020 seeking the following orders:-

i. That Honorable Tribunal be pleased to declare that this cause has been wholly adjusted by a lawful agreement entered by the parties.

ii. That the Honorable Tribunal be pleased to adopt the agreement entered into by the parties as the judgment of the Tribunal.

iii. That the Honorable Tribunal be pleased to order that implementation and execution of the resulting decree thereof.

iv. Costs.

The Application is based on the grounds on face of Affidavit supported by affidavit of Bernard Gichuki deponed on 9. 9.2020.

The Application was opposed vide a Replying Affidavit of Viola Odhiambo legal counsel for the Respondent deponed on 27. 10. 2020.

The Application was determined by way of written submissions as ordered.

Parties filed their written submissions on 11. 12. 2020 and 9. 12. 2020.

APPLICANT’S SUBMISSIONS

1. The Applicant submitted that by a letter dated 27. 6. 2020.

The Respondent through its lawyer wrote to Claimant’s Advocate proposing an out of court settlement and the Advocate accepted the Respondent proposal vide a letter dated 6. 7.2020.

That both parties had met and agreed and a tentative agreement had been reached subject to the confirmation of the parties, that thereafter on 19. 8.2020 the Respondent Advocate wrote back with a counter –offer which was accepted by Claimant a letter dated 21. 8.2020.

2. That what remained was the Respondent to satisfy the agreement. However, the Respondent stated they are not willing to settle the accrued interest not withstanding that the parties had negotiated and agreed on the same.

RESPONDENT’S SUBMISSIONS

3. In response the Respondent submitted that in good faith they invited the Claimant for an out of court settlement that while negotiations were still ongoing they were served with the current Application.

4. That the negotiations were still ongoing and there was no obligation set by either party to complete the agreement on a specific date. That no valid agreement can be established from the instant case since there was no conclusion on the negotiations.

5. That the previous contract between the parties necessitated payment as follows:

i. Purchase price for ¼ acre plot kshs.270,000/=

ii. Investment share Kshs.30,000/=

iii. Investment contribution Kshs.5000/=

iv. Application fees Kshs.1000/=

That the contract purchase price was Kshs.270,000/= and anything sought outside this sum is not enforceable.

That the claimant therefore filed this application in bad faith and he rejected the cheque despite communication that the interest would be negotiated.

6. That the Respondent acknowledged its obligation towards the Claimant and is ready to fulfill their for purchase price of Kshs.270,000/=, interest 13. 37%.

That it was only prudent to settle the matter as agreed relying on the negotiations to write the alleged default in performance.

That it is prejudicial for the Claimant to seek enforcement of a non-existing contract hence the Application ought to be dismissed with costs.

issues

i. Whether there was a legal agreement that is enforceable.

ii. Costs.

a. Whether there was a legal agreement that is enforceable.

7. The Claimant submitted that vide letter dated 27. 6.2020 the Respondent proposed an out of court settlement. That 6. 7.2020 the Claimant accepted the proposal but the Advocates wrote and agreed as per letter dated 14. 7.2020.

In which letter the total investment income was tabulated as kshs.635,805/= and costs at Kshs.101,358/= as party to party costs that is,

Interest kshs.6,388/=

Filing fees kshs.13,090/=

Service fees kshs.2000/=

Attendance kshs.2100/=

8. That thereafter there were subsequent negotiations which vacated the agreement which the Claimant seeks to enforce.

9. That the Respondent did not file before the Tribunal the subsequent negotiations that vacated the earlier agreement.

10. That the Respondent has failed to demonstrate any valid reason why the agreement should not be enforced.

11. That the Respondent did not respond to letter of demand and has not filed a response to the claim therefore they engaged in futile negotiations knowing very well they had no intention of honoring the negotiations.

12. The Respondent submitted that the Claimant abandoned the negotiations and disrupted the aim of settlement by filing this application in order to intimidate the Respondent in agreeing to the clauses that are not part of the contract.

That this can be deduced from the Claimant’s prayer in enforcing a non-existing contract.

13. We have carefully considered the submissions, pleadings and documents filed by the parties and we note that indeed the parties were engaged in negotiations.

There were letters exchanged between the parties but there was no conclusive agreement reached in terms of a settlement.

14. It is trite law that when parties are negotiating an out of court/Tribunal settlement both parties must reach a conclusive decision/agreement and which agreement is filed for adoption by consent of both parties.

15. In the instant case all that is on record are offers and counter offers, in terms of letters which have not reached a conclusion.

16. The Claimant seeks for the “agreement reached” be declared as “wholly adjusted by a lawful agreement entered by the parties” however, we have noted that no document filed by either of the parties amounts to an agreement entered into by the parties to settle the matter.

17. In the circumstances thereof we find that there is no agreement that is legally binding and enforceable between the parties as prayed for in the application as dated 9. 9.2020.

We therefore find the application has no merit and dismiss it as premature.

i. Costs

Costs follow the event in this instant case we order for the costs to be in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY, 2021

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Bernard claimant present in person: Present

No appearance for Respondent

Parties to file and serve witness statement and documents within 30 days herein.

Pre- trial mention on 28. 7.2021. Notice to issue.

Hon. B. Kimemia Chairperson Signed 27. 5.2021