[2021] KECPT 22 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 036 OF 2020

CATHERINE MUNYIRI..............................................................CLAIMANT

-VERSUS-

FEP SACCO SOCIETY LIMITED..................................1ST RESPONDENT

PURPLE ROYAL AUCTIONEERS................................2ND RESPONDENT

RULING

1. The Applicant has filed a Notice of Motion Application under Certificate of Urgency, dated 8th January, 2021. In the said Application, the Applicant is seeking various orders, most significant thereof being a prayer for Stay of Execution of the Tribunal’s Orders dated 7th January 2021, pursuant to the Ruling issued on even date by this Tribunal, pending appeal in the High Court. The Applicant has also prayed for certified copies of proceedings, the Ruling and Orders of the Tribunal.

2. The Application was supported by an Affidavit dated 8th January 2021, deponed by Catherine Munyiri. In opposition of the aforesaid Application, the Respondent filed a Replying Affidavit dated 10th March 2021, deponed by one Jackson Wanjau, the 1st Respondent’s Chief Executive Officer. Parties were directed to proceed by way of written Submissions, which directions were complied with.

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, upon rendering its Judgment on 7th January 2021,this Tribunal became functus officio; and

(b)Whether justifiable grounds have been proffered to this Tribunal to warrant issuance of Stay of Execution Orders.

5. ANALYSIS OF THE ISSUES

(a) Whether this Tribunal has jurisdiction to Stay its Decision

The Respondent has posited that upon rendering its decision, this Tribunal became functus officio. This is because, upon delivery of its decision, the only avenue available to the Applicant herein is to Appeal, and as such, stay can be sought in the appellate court. The Respondent has argued, and supported by a number of Authorities, that this Tribunal is functus officio in respect to the Claimant’s previous attempt to seek interim relief.

The Claimant, on her part, has invoked the powers of this Tribunal to make such orders as may be necessary for the ends of justice to be met. She has disabused the doctrine of functus officio, and qualified the circumstances under which the trial court and/or Tribunal may entertain Applications subsequent to its judgment.

Does this Tribunal actually become functus officio?

Order 42 Rule 6 of the Civil Procedure rules provide as follows:

No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside

6. This is one such circumstance that a Trial Court is clothed with jurisdiction to handle a matter after delivery of a Judgment or Ruling, without breaching the principle in 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 officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon

7. An Application for Stay of Execution is within the ambit of the Trial Court/Tribunal, as it is not in any way interfering with the Judgment. It is not a re-litigation of the case, neither is it a reopening of arguments on merits or otherwise of the Judgment. In view of the foregoing, we are not persuaded that this Tribunal is bereft of Jurisdiction to entertain an Application for Stay of Execution. However, there ought to be sufficient grounds to warrant a stay of execution.

(b) Whether justifiable grounds warrant stay orders.

Order 42 Rule 6 empowers the trial court/Tribunal to grant stay of execution. Ordinarily, the Tribunal would issue a Stay period of 30 days, or if being very philanthropic, extend it to 60 days. This is to enable a party to pursue the appellate options, wherefrom a further stay can be sought.

We note that the herein Application under Certificate of Urgency is dated 8th January, 2021. This Tribunal issued interim orders dated 12th January 2021, staying execution of the Decree. Justice delayed is justice denied, and from the time interim orders were sought and granted, the Applicant has not demonstrated any efforts to have justice done and seen to be done timeously.

8. It would appear to us that the Applicant is not keen to have the Appeal, if any, heard. The Application for stay is a smokescreen, carefully crafted to keep this Tribunal busy, and to deny the Decree Holder the fruits of their Judgment.

9. The Applicant’s Application in the present case smacks of bad faith, unreasonable and undue delay, and more so, no basis has been laid to the satisfaction of this Tribunal to warrant the extension of stay orders. It is important that litigation comes to an end, and the Decree Holder be permitted to enjoy the fruits of their judgment,

Order 42 Rule 6(2) provides as follows:

(2) No order for stay of execution shall be made under subrule (1) unless—

a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant

10. The Application has not in the least satisfied this Tribunal that the Applicant is eligible to the benefits of equity, and as such, the second issue for determination of the Application is found against the Respondent.

11. In the interest of justice, we find that the Orders sought should not be granted and the Application dated 8th January 2021 must fail. The Applicant, having lodged an Appeal, is at liberty to seek Stay of Execution in the Appellate Court within the ambit of Order 42 Rule 6(1) of the Civil Procedure Rules.

ORDERS

We therefore Order as follows:

(a) The Applicant’s Application dated 8th January 2021is dismissed with costs.

RULING SIGNED, 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

Mutisya for the Claimant.

Chimei for Respondent present

Mutisya : We have filed notice of Appeal we seek for 10 days stay.

Court: 10 days stay of execution granted.

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