[2019] KECPT 25 (KLR)

REPUBLIC KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

CTC NO.570 OF 2017

CAROLYN ACHIENG OTIENO...................................CLAIMANT

VERSUS

LUHANO FSA SACCO SOCIETY LIMITED.......RESPONDENT

RULING

This is a Ruling on the application dated 7. 9.2018. It’s expressed to be brought under order 8 rule 3 (1) (27)&(5), rule 5 of the Civil Procedure Rules, Section 63C at 3A of the Civil Procedure Act and all the enabling provisions of the law. The orders sought are:-

1. That the Tribunal be pleased to grant the Claimant leave to additionally re-amend her statement of claim filed herein.

2. That the Respondents be condemned to pay the costs of this application.

The Application is premised on the three grounds listed on the face of it and supported by the affidavit annexed thereto. It’s opposed. The Respondent filed a Replying Affidavit. It came up for hearing on 22. 11. 2018. Parties took directions to canvass the application by way of written submissions. They have since complied.

The gist of the Application is that the Claimant has since received a valuation report and wish to reflect the figures in the claim and to remove the 2nd Respondent as he was an agent of the Respondent. The purpose for which the 2nd Respondent was joined is overtaken by events.

The basis of the opposition is that the valuation report could not have been produced by a truce not Surgeon as the cows had already been sold. A veterinary surgeon would need to examine physically the cows. The report cannot be objective. It relies on hearsay. That the 2nd Respondent carried out the sale hence cannot be removed from the claim and no justice will be served on the part of the 1st Respondent.

We have considered the application, rival affidavits, and submissions.

Order 8 Rule 3 of the Civil procedure Rules governs amendment of pleadings.

In Andrew Ouko versus Kenya Commercial Bank Limited and 3 others (2014) eKLR the court held that:

“ The overriding consideration in Applications for leave is whether the amendments are necessary for the just determination of the controversy between the parties”

In Hiram Bere Kinuthia and 2 others versus Edick Omondi and 3 others (2014)eKLR the court stated that:-

“.......the court under order 8 Rule 3 (1) has unfettend discretion to allow amendment of pleadings at any stage of the proceedings on such terms as to costs or otherwise as may be just and in such manner as it may direct”.

The objection by the Respondents in the present case is on the basis and validity of the evidence the Claimants intends to rely on to amend the claim.

In our view the validity of the report is an issue for main trail.

The report will be subjected to the rules of evidence and the Respondent will have their say on it.

It is the Claimant’s case and they decide what aspects they wish to bring out and the nature of evidence to rely on. It will be prejudicial for the Tribunal to substantively comment on the report at this juncture. He who alleges must proof and we believe the Claimant appreciates this Rule.

On the removal of 2nd Respondents from the pleadings, an amendment of that nature is contemplated under order 8. The claimants indicate that the 2nd Respondents is no longer a necessary party.

In our view and as correctly stated by the claimant, the 2nd Respondent can only be sued at this Tribunal as an agent of the 1st Respondent.

If the course of action were separate from Section 76 of the

Co-operative Societies Act will oust the jurisdiction of the Tribunal against the Respondent. It is in this regard therefore that this Respondent need not to be mentioned as a party. No orders can issue directly and/or specifically against this Respondent from this Tribunal. The amendment to remove it is thus in order.

The Claimant is the successful party. We will however not award costs as the application was equally necessary on its part. Costs will abide the outcome of the claim.

In the upshot, the Application is allowed in terms of prayer 1. The Claimant to facilitate filing on the re-amended claim on record within 14 days of this Ruling by payment of requisite fees and date stamping. It will then be served for the Respondent who are hereby granted corresponding leave. Orders accordingly.

C. Kithinji

Deputy Chairman Signed

P. Swanya

Member Signed

F.F Odhiambo

Member Signed

Delivered in open court

Ms. Oburu holding brief for Onyango for 1st Respondent

Court clerk C. Maina

Signed

C. Kithinji

Deputy Chairman

7. 01. 2019