[2021] KECPT 24 (KLR)
The Tribunal found that the Applicant failed to comply with its orders to file written submissions in support of the application for stay of proceedings. The Tribunal considered that the Applicant could have sought a stay in the High Court as well and that the matter was old, having been filed in 2018 for costs of...
Source-derived case information.
- Citation
- [2021] KECPT 24 (KLR)
- Parties
- Applicant: Boniface M. Karanja (Suing as liquidator Nkuene Farmers’ Co-operative Society Limited); Respondent: Mikumbune Farmers Co-operative Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 57 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Proceedings, Liquidation Expenses, Counterclaim Striking Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface M. Karanja (Suing as liquidator Nkuene Farmers’ Co-operative Society Limited)
Applicant
Mikumbune Farmers Co-operative Society Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the Tribunal should grant a stay of further proceedings pending the hearing and determination of the Applicant's appeal in Nairobi H.C.CA NO. E180 of 2021.
- 2 Whether the failure by the Applicant to file written submissions as ordered affects the merits of the application for stay.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Tribunal found that the Applicant failed to comply with its orders to file written submissions in support of the application for stay of proceedings. The Tribunal considered that the Applicant could have sought a stay in the High Court as well and that the matter was old, having been filed in 2018 for costs of liquidation. The Tribunal held that even if the appeal were successful, it would not be rendered nugatory if a stay was not granted, as the Applicant could file a new suit for the dismissed counterclaim. The absence of written submissions by the Applicant further undermined the merits of the application. Consequently, the Tribunal dismissed the application for stay of...
Court Disposition
application dismissed with costs
Orders
- The application dated 14.6.2021 for stay of proceedings is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. 57 OF 2018
BONIFACE M. KARANJA
(Suing as liquidator Nkuene Farmers’
Co-operative Society Limited).........................................CLAIMANT
VERSUS
MIKUMBUNE FARMERS CO-OPERATIVE
SOCIETY LIMITED..............................................RESPONDENT
RULING
1. The matter for determination is an Application dated 14. 6.2021 seeking the following orders:
a. That this Honourable court be pleased to grant an order for stay of further proceedings in this matter consequent to the orders made in the Tribunal’s decision/Ruling delivered on 4th March, 2021 pending the hearing and determination of the Applicant’s Appeal in Nairobi H.C.CA NO. E180 of 2021.
b. That costs of this Application be in the cause.
The same is based on the grounds on the face of the Application and supported by the Affidavit of David K. Mugiira deponed on 14. 6.2021.
2. The Application is opposed vide the Replying of Affidavit of Boniface Karanja the liquidator Claimant deponed on 11. 8.2021.
3. The Claimant filed their written submissions on 1. 10. 2021 and the Respondent, despite the reminders by the Tribunal on 28. 9.2021, failed/neglected and/or refused to file their written submissions in the matter.
4. In this case therefore, the applicant has failed and/or refused /neglected to comply with the Tribunal orders issued on 7. 7.2021 and 12. 8.2021.
We have carefully considered the pleadings on record. The Applicant seeks a stay of further proceedings in the matter pending Appeal HCC.AE180/2021.
5. In this matter, the Applicant has appealed against the decision of striking out the counter- claim for want of jurisdiction.
6. The Respondent avers that the Applicant can file another suit for determination of the issues in the dismissed Counter- Claim if the Appeal is successful. That the society was placed under liquidation over 22 years ago and the Respondent has had sufficient time to have their issues determined.
That this is a suit seeking for an agreed sum of Kshs. 3,081,333/= being expenses of liquidation.
7. We note that the Applicant did not file their written submissions to argue out their Application as ordered. We have looked at the Application and the Supporting Affidavit and we note that the Applicant would have as well sought a stay of proceedings in the High Court. This is an old matter filed in 2018 for costs of the liquidation process.
8. We find that the Appeal, even if filed and successful, will not be rendered nugatory if a stay of proceedings is not granted.
9. There are no written submissions filed by the Applicant to argue out their Application hence we find that the Application has no merits, the same is dismissed with costs.
Hearing on 7. 6.2021 in Nyeri.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2021.
Hon. B. Kimemia Chairperson Signed 4. 11. 2021
Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021
Mr. Gitonga Kamiti Member Signed 4. 11. 2021
Mr. B. Akusala Member Signed 4. 11. 2021
Mr. P. Gichuki Member Signed 4. 11. 2021
Tribunal Clerk R. Leweri
Mugambi for the Applicant
Getange for the Respondent.
Mungambi – Before Ruling is read parties were to file their submissions. We were unable to do so until 1st November when I was able to pay.
Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021