[2022] KEHC 10168 (KLR)

Chepchabas Farmers Co-operative Society Limited v Cheruiyot (Miscellaneous Civil Application E078 of 2021) [2022] KEHC 10168 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10168 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E078 of 2021

JK Sergon, J

July 8, 2022

Between

Chepchabas Farmers Co-operative Society Limited

Applicant

and

Jackson Marusoi Cheruiyot

Respondent

Ruling

1. This ruling the product of the Chamber Summons (“the Summons”) dated 9th February, 2022 brought by the respondent/applicant (‘the applicant”) under the provisions of Sections 1A. 1B, 3, 3A, 63(e), 99 and 100 of the Civil Procedure Act and Paragraph 11(4) of the Advocates (Remuneration) Order 2014. The Motion is supported by the grounds laid out on its face and the facts stated in the affidavit of the applicant, who sought for the orders hereunder:i.Spent.ii.Thatthe ruling that was delivered on 23rd July, 2021 be varied and as the case may be set aside so as to conform with the directions that were issued by the court on 24th March, 2021 thereby having the court confine itself in its ruling to an application dated 24th February, 2021 containing five (5) prayers only.iii.Thatin the alternative and without prejudice to prayer two (2) hereinabove, the court does make a finding that the respondent did not comply with the order of the court that is contained in paragraph 17 of the ruling that was delivered on 23rd July, 2021 and thus proceed to strike out the application dated 2nd August, 2021 with costs to the applicant.iv.Thatcosts of the application be provided for.

2. The Summons remains unopposed, in the absence of any response by the applicant/respondent (“the respondent”) despite there being evidence of service.

3. I have considered the grounds set out on the face of the Summons and the facts deponed in the affidavit supporting it.

4. A brief background of the matter is that the applicant herein lodged a claim against the respondent before the Cooperative Tribunal (“the Tribunal”) namely Tribunal Case No. 20 of 2011 and sought for the sum of Kshs.418,638/= plus costs of the claim and interest thereon.

5. Upon close of the hearing, the Tribunal delivered its judgment on 29th March, 2017 in favour of the applicant and against the respondent, thereby awarding him the sum of Kshs.406,638/=.

6. The applicant thereafter filed the Party and Party Bill of Costs dated 19th December, 2019 and which was taxed on 4th February, 2020 at the sum of Kshs.312,225/=.

7. Following the foregoing taxation, the respondent filed two (2) separate applications both dated 24th February, 2021. In the first application, the respondent sought for the enlargement of time to enable it file a reference out of time against the ruling on taxation, whereas in the second application, it sought inter alia, for leave for the firm of D. M. Kyalo & Associates to come on record for the respondent and a further order seeking to have the ruling on taxation set aside and for the Party and Party Bill of Costs to be re-assessed on various items listed therein.

8. Going by the record, the two (2) applications mentioned hereinabove were heard before this court, following which it delivered a ruling on 23rd July, 2021 allowing specific aspects of both applications and therefore limiting its orders to granting the abovementioned firm the liberty to appear for the respondent in the reference; and enlarging the time for the respondent to file its reference against the ruling on taxation within 10 days therefrom.

9. It is the aforesaid ruling that the applicant now seeks to vary and set aside.

10. In his grounds and affidavit in support of the Summons, the applicant states that the court had on 24th March, 2021 directed that out of the two (2) applications dated 24th February, 2021 the one bearing five (5) prayers would be heard first and that the two (2) applications were never consolidated and yet this court delivered a ruling in respect to both applications.

11. The applicant further states that he was not given an opportunity to respond to the second application of 24th February, 2021 which sought eight (8) prayers and he therefore urges this court to vary and/or set aside the ruling in question.

12. It is also the applicant’s assertion that if at all the findings in the ruling are to apply, the respondent has not complied with the order of this court regarding the timelines for filing a reference.

13. Upon my study of the record, more specifically the directions given by the court on 24th March, 2021 I have not come across anything which supports the assertions by the applicant that either of the applications was to be heard first.

14. Upon my further study of the record, I note that the applicant; who was at all material times represented by his counsel; participated in the court attendances in respect to the applications and even put in responses thereto.

15. In its subject ruling, this court considered the positions presented by both the applicant and the respondent and upon doing so, granted the orders set out hereinabove.

16. In view of all the foregoing factors, I find that the applicant herein has not demonstrated credible reasons which would necessitate the varying and/or setting aside of the subject ruling.

17. Concerning the alternative prayer, upon my perusal of the record and Summons, I note that the respondent filed the Reference dated 2nd August, 2021 on or about the same date.

18. In light of the above, there is nothing to indicate that the aforesaid Reference was filed outside the timelines set by this court.

19. In the end therefore, the Chamber Summons dated 9th February, 2022 is hereby dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ............................J. K. SERGONJUDGEIn the presence of:..........for the Applicant/Respondent..........................for the Applicant