[2021] KECPT 566 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.583 OF 2013

CHARLES NZIOKA MUTISYA ................................CLAIMANT

VERSUS

KWETU SACCO LIMITED ..................................RESPONDENT

RULING

1. This is a Ruling on the Applicant’s Notice of Motion dated 5th March 2021, 9th Marchand 15th March 2021which seek for the following orders:

Application – Notice of Motion dated 5th March 2021 filed on 8th March 2021.

1. Spent

2. That pending the hearing and determination of this Application the Honourable Court be pleased to issue an order of stay of execution of the judgment and decree issued on 3rd October 2017, 10th May 2017, 9th May 2017 and 3rd October 2018, CTC NO. 400 of 2013, CTC.NO.396 of 2013, CTC.NO. 583 of 2013, CTC. NO. 584 of 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO.402 of 2013 and CTC.NO.579 of 2013.

3. That pending the hearing and determination of the main suit the Honourable Court be pleased to issue an order of stay of execution of the judgment and decree issued on 3rd October 2017,10th May 2017, 9th May 2017 and 3rd October 2018, CTC NO. 400 of 2013, CTC.NO.396 of 2013, CTC.NO. 583 of 2013, CTC. NO. 584 of 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO.402 of 2013 and CTC.NO.579 of 2013.

4. That pending the hearing and determination of this Application a temporary injunction do issue restraining Betabase Auctioneers and clear Real Auctioneers either by themselves or agents from in any way whatsoever proclaiming, removing and auctioning or selling the Respondent’s/Applicant’s moveable property itemized in the proclamation Notices dated 24th February 2021 and 23rd February 2021 respectively issued in CTC.NO. 400 of 2013, CTC.NO.396 of 2013, CTC.NO. 583 of 2013, CTC. NO. 584 of 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO.402 of 2013 and CTC.NO.579 of 2013.

Application – Notice of Motion dated 7th March 2021 filed on 10th March 2021.

Application – Notice of Motion dated 11th March 2021 filed on even date seeking for orders:

1. That this matter be certified as urgent and service be dispensed with in the first instance.

2. That pending the hearing and determination of this Application the Honourable court be pleased to issue an order of stay of execution of the judgment and decree issued on 3rd October, 2017,10th May 2017, 9th May 2017 and 3rd October 2018 in CTC.NO. 400 of 2013, CTC.NO. 396 of 2013, CTC.NO. 583 of 2013, CTC.NO. 584 OF 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO. 402 of 2013 and 579 of 2013.

3. That a temporary injunction restraining Betabase Auctioneers and Clear Real Auctioneers either by themselves or agents from in any way whatsoever proclaiming, removing and auctioning or selling the Respondent’s/Applicant’s moveable property itemized in the proclamation Notices dated 24th February 2021 and 23rd February 2021 respectively issued in CTC.NO. 400 of 2013, CTC.NO. 396 of 2013, CTC.NO. 583 of 2013, CTC.NO. 584 OF 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO. 402 of 2013 and 579 of 2013 is granted pending the hearing and determination of this Application.

4. That pending the hearing and determination of the Application and main suit an injunction do issue restraining the Claimants appointed Auctioneers Betabase Auctioneers and clear Real Auctioneers in CTC.NO. 400 of 2013, CTC.NO. 396 of 2013, CTC.NO. 583 of 2013, CTC.NO. 584 OF 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO. 402 of 2013 and 579 of 2013 either by themselves and/or agents auctioning or selling the Respondent’s /Applicant’s moveable property.

Application - Notice of Motion dated 15th March 2021 sworn on even date seeking for orders:

1. That this matter be certified as urgent and service be dispensed with in the first instance.

2. That pending the hearing and determination of this Application the Honourable Court be pleased to issue an order of stay of execution of the judgment and decree issued on 3rd October 2017, 10th May 2017, 9th May 2017 and 3rd October 2018, CTC NO. 400 of 2013, CTC.NO.396 of 2013, CTC.NO. 583 of 2013, CTC. NO. 584 of 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO.402 of 2013 and CTC.NO.579 of 2013.

3. That pending the hearing and determination of the main suit the Honourable Court be pleased to issue an order of stay of execution of the judgment and decree issued on 3rd October 2017,10th May 2017, 9th May 2017 and 3rd October 2018, CTC NO. 400 of 2013, CTC.NO.396 of 2013, CTC.NO. 583 of 2013, CTC. NO. 584 of 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO.402 of 2013 and CTC.NO.579 of 2013.

4. That pending the hearing and determination of this Application a temporary injunction do issue restraining Betabase Auctioneers and clear Real Auctioneers either by themselves or agents from in any way whatsoever proclaiming, removing and auctioning or selling the Respondent’s/Applicant’s moveable property itemized in the proclamation Notices dated 24th February 2021 and 23rd February 2021 respectively issued in CTC.NO. 400 of 2013, CTC.NO.396 of 2013, CTC.NO. 583 of 2013, CTC. NO. 584 of 2013, CTC.NO. 385 of 2017, CTC.NO. 387 of 2017, CTC.NO.402 of 2013 and CTC.NO.579 of 2013.

2. The Claimant’s Advocate filed a Replying Affidavit dated 18th March, 2021 opposing the application on grounds the Respondents had entered and/or recorded consent judgments and were adopted by the Honorable Tribunal.

The Replying Affidavit further reiterated the Applications before court were a mischievous attempt by the Respondent to renege on the consents recorded.

3. The Applicant’s filed a Further Affidavit and what stood out is that the fact that the Replying Affidavit was sworn by an Advocate ( paragraph 4,7,8. )

(i) That after protracted litigations in all the matter the respondent willfully agreed to settle the matters and consent judgments were recorded in court for the matters herein and others not in the list.

(ii) That for example in CTC.NO. 583 OF 2013 the consent was recorded on 3. 10. 2017 and an alleged payment of Kshs. 91,936/= was made to the direct claimant on 14th March 2018. The judgment was for the said amount plus costs and interest which remains unsettled to date the balance of unpaid amount is Kshs.113,277/=.

(iii) That in CTC.NO. 584 of 2013, judgment was for kshs.109,150/= plus costs and interest, the balance of unpaid amount is kshs.92,479/=.

4. The parties were directed to file submissions to dispose the applications filed by the Respondents.

B. APPLICANT’S SUBMISSIONS

5. On grant of stay of execution, the Applicant submitted they stand to suffer loss if the orders are not granted on the basis of material non-disclosure and consent was entered without the knowledge and authority of the Respondent.

6. The Applicant further submitted the Claimants have always been members of the SACCO and contributions continue being made.

7. They further submitted on issue of the Claimant’s advocate swearing the Replying Affidavit dated 18th March 2021citing Order 19 Rule 3 (1), which stipulate that Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove.

8. They further submitted on the issue of setting aside the consent judgment.

The Applicants state when the consent was being recorded the Respondent was not present in court. They questioned the authority of Liko & Anam Advocate in recording the consent judgment on 22nd September 2017.

C. CLAIMANT’S SUBMISSIONS

9. The Claimant submitted there are no main suits pending before court.

Secondly the Applicant has not proposed to stay the decrees for any purpose as envisaged underOrder 22 Rule 22either to appear or under Order 45 to review the same or set aside.

Thirdly there were consents by both parties which were adopted by court.

D. ISSUES

1. Whether the consent recorded in court on 22nd September 2017 valid.

2. Whether an affidavit sworn by advocate can stand

3. Stay of execution

10. Issue 1:

Consent judgment – setting aside consent judgment

Four years later the Respondent’s approach the court to set aside the consent filed citing the said advocate did not have instructions from them and or not acting on their behalf.

Question – has the Applicant satisfied the conditions for setting aside the consent order dated 22. 9.2017.

11. In the case of SMN –vs ZM S & others [2017] eKLR the court of Appeal stated:

“…..There is no dearth of authorities on the law governing the setting aside of consent judgments or orders, and we are grateful to counsel for citing some of them before us. Generally a court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties.”

12. The court went on to cite with approval various calls on grounds for setting aside consent judgment:

Engineering Company Limited [1982]KLR 485, Hauris J correctly held inter alia that:

“ Consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.”

13. Board of Trustees National Social Security Fund- vs- Michael Mwalo[2015] eKLR the Court of Appeal stated:

“ A court of Law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of court.”

We opine the Applicants have come to court with unclean hands. From the onset they were being represented by the firm of Liko & Anam Advocates who entered a consent with the Claimants on 22. 9.2017 and the same adopted as an Order of the court.

14. In the present case the Applicant’s counsel is merely stating their advocates on record did not have instructions to record the consent as it were. No contrary evidence has been adduced that the advocate did not have authority with this in mind having looked at all Applications dated 5th March 2021, 9th Marchand 15th March 2021there is no prayer for setting aside the consent order as alluded by Applicant’s in their submissions .

Even if the prayer would have been included the same ought to have failed for the reasons above.

Issue 2: Advocate Swearing Affidavit

15. The Application was opposed via Replying Affidavit sworn by Paul Mutinga Advocate, Advocate for the Claimant herein.

Haslbury’s Laws of England, 3rd edition paragraph 845 state as follows as regards affidavits.

“ Affidavits filed in the High court must deal only with facts which a witness can prove of his own knowledge, except that in interlocutory proceedings or with leave, statements as to a deponent’s information or belief, are admitted, provided the services and grounds thereof we states…..”

16. Order 19 Rule 3 of Civil Procedure Rules, it is clear that Affidavits should be confined to such facts as deponent is able of his own knowledge to prove.

Justice Mararo in HC.C. Petition No. 221 of 2018International Community of Women living with HIV Registered Trustees- vs- Non Governmental Organization, Coordination Board & 2 others.

Paragraph 11 of the judgment stated:

“ This therefore means not all affidavits sworn by Advocates are necessary defective. An affidavit that is sworn by an advocate which is confined on facts he is able by his own knowledge to prove and which does not disclose any matter requiring his cross examination or is not in my view defective.”

17. In the present Application the Replying Affidavit allude to how the advocate received instructions and later entered consent judgments.

He states he is still on record and none of the Claimant have gone to withdraw the money.

This in our opinion is an affidavit not revising contentious issues but something the advocate personally handled in his course of duty and thus is knowledge of the same.

We rely on paragraph 15 of this Ruling.

Issue 3: stay of execution

18. Its important to note that the power to stay execution of judgment/decree is a discretionary power exercised by the court.

The Application for stay has been brought under Order 22 Rule 22 Civil Procedure Rule 2010.

We invoke Section 3A Civil Procedure Act where we can make any such orders as may be necessary for the needs of justice or to prevent abuse of the process of the court.

19. The current Application only seeks stay of execution but no Appeal.

Further, the Applicants seeks for injunction against the auctioneers from proclaiming and selling.

20. as stated :

“ Paragraph 21- one of the very objectives in granting an order of stay is to preserve status quo pending hearing and determination of an intended Appeal.”

21. Granting a status quo in this case means the matter which had been determined is resuscitated and heard afresh and/or stays in it is without any justified/expected end.

Question then is- why this justice to the claimants?.

Litigation must come to an end. The Claimant is entitled to the fruits of their judgment.

22. The Upshot of the above, is the Application dated, 5th March 2021, 9th Marchand 15th March 2021and are dismissed with costs to the Claimants.

Orders apply to CTC.NO.396/13, 589/13, 400/13, 402/13, 579/13, 385/17 and 387/17.

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

Miss Onyango Opiyo for Applicant: Present

No appearance for Claimant.

Hon. B. Kimemia Chairperson Signed 27. 5.2021