[2023] KECPT 1050 (KLR)

Eastlands Biashara Sacco Society Limited v Muhia & 2 others (Tribunal Case 765 of 2015) [2023] KECPT 1050 (KLR) (Civ) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1050 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 765 of 2015

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

November 30, 2023

Between

Eastlands Biashara Sacco Society Limited

Claimant

and

Tabitha Muhia

1st Respondent

Maxwel Omuse

2nd Respondent

Penina Kariuki

3rd Respondent

Ruling

1. The matter before for determination is the 2nd Respondent/Applicant Notice of Motion Application dated 28th January 2020, ;filed on even date. The said Application is brought under Order 22 Rule 52 of the Civil procedure Rules Section 3A and 63(e) of the Civil Procedure Act. In the Application, the 2nd Respondent seeks for the following orders: -a.Spentb.That there be a stay of proceedings and all Consequential Orders arising therefrom pending the interparties hearing and final disposal of this Application.c.That the costs of this Application be in the cause.

2. The Application is premised on the grounds on the face of the Application and supported by the Affidavit of the 2nd Respondent Maxwell Omuse sworn on January, 2020 and filed on even date.

3. The grounds on which the Application is based are: -a)Ex-parte Judgement on liability was entered in favor of the Claimant.b)The 2nd Respondent has an arguable Defence to the sum being claimed and raises serious triable issues thus the need to allow their side to be heard.c)That the Applicant stands to suffer irreparable loss and/ or harm if the orders sought herein are not granted.d)No prejudice shall be occasioned upon the Claimant if orders herein are granted, save that the correct position of the law and proper dispensation of justice shall be done once and for all.e)It is mete and in the interest of justice that the orders sought are granted and that the 2nd Respondent be accorded its day in the court.

4. That the evidence of the Claimant states: -1. That judgement was entered ex-parte in favor of the Plaintiff on 8th December, 2016 on default of appearance of the Respondents.2. That the Claimant executed the judgement and recovered a sum of Kshs. 344,030/= from the joint account, then held by the Respondents as signatories.3. That the Claimant wats to recover the sum of Kshs. 600,000/= yet there is not Claim against the Respondents since all the money owed by the members was paid into the new Sacco account with the exception of three members who paid in the joint account and their payment was part of the Kshs. 344,030 recovered from the joint account.4. That in January 2020, the 2nd Respondent called informing him that he had a case before the Tribunal on 21st January, and he was required to attend.5. That at the time the 2nd Respondent was out of the country and when he returned on 23rd January he perused the file and found that a warrant of arrest had been issued against him.6. That he would like to file a response towards the Notice to Show Cause and the Claim in general as there are serious triable issues of law with overruling chances of success.

5. The Claimant opposed the 2nd Respondent’s Application vide its grounds of objection dated 28th February, 2020, filed on even date. The Claimant’s grounds of objection are that:1. The Application has no merit, is unintelligible and one cannot legal sense of what the 2nd Respondent/Applicant is seeking.2. The 2nd Respondent/ Applicant has appeared in Court on many instances concerning this matter and sometimes represented by counsel and therefore it is in bad faith for him to say that the matter was heard and determined without his participation or ex-parte.3. The 2nd Respondent/ Applicant put in a response/ reply verbally and in writing and even filed Submissions in this case which were heard and dismissed and orders made in favor of the Claimant.4. There has already been part execution of the orders of the court and what is remaining is final execution. Therefore, it cannot make sense to set aside a judgement that is partly executed.5. The 2nd Respondent has not demonstrated that he has an arguable Defence in this case.6. The 2nd Respondent’s Application is bad in law, vexatious, an abuse of the court process and is an avid attempt seeking to delay final execution of orders of the court, and the 2nd Respondent/Applicant is not entitled to the orders sought and it is in the interest of justice that the Application is dismissed with costs.

6. Parties canvassed the Application by way of Written Submissions. The 2nd Respondent/ Applicant’s Written Submissions dated 19th October, 2022 and the Claimant/Respondent’s Submissions dated 9th August 2023 and were filed on 14th August 2023.

7. The 2nd Respondent/Applicant, in his Submissions reiterated his case as set out in the Application and Supporting Affidavit and cited several authorities in support thereof. Notably, the 2nd Respondent on two issues, being the setting aside of the ex-parte judgement dated 8th December, 2016 and lifting up the warrants of arrest.

8. On the issue of setting aside of the ex-parte Judgment, the 2nd Respondent/Applicant states that the default of the 2nd Respondent was a mistake of his advocate which ought not to be visited on the Respondents; that he has an arguable Defence and should not be condemned unheard. On the issue of the lifting of the warrant of arrest, the 2nd Respondent/Applicant submitted that he got notice of the attendance for the hearing of the notice to show cause late by phone call but he was unable to attend as he was travelling; that the Tribunal should suspend the warrant of arrest pending final determination of the matter.

9. In its Submissions, the Claimant/Respondent while reiterating its grounds of objection and sums up by urging the Tribunal to dismiss the Application on the basis of the principle of Res Judicata.

Analysis And Determination. 10. We have considered the matters raised in the Application and Supporting Affidavit, the grounds of objection and the Written Submissions and only have the following issue for determination:

Whether or not the 2nd Respondent/Applicant is entitled to the prayers sought; prayer number 1 or the Application is overtaken by time and spent, having sought for stay of execution of the warrant of arrest ex-parte in the first instance under Certificate of Urgency. 11. Similarly, prayer number 2 of the Application which seeks that there be a stay of proceedings and all Consequential Orders arising therefrom pending the inter-parties hearing and disposal of this Application is spent.

12. We note that the 2nd Respondent has argued and submitted heavily on the issue of setting aside the judgement of the Tribunal. However, the prayers for setting aside the Judgement of the Tribunal is not one of the prayers made in the 2nd Respondent’s Application dated 28th January 2020.

13. It is well established in Law that a party is bound by his pleadings. As held in Court of Appeal Civil Appeal no. 97 of 2008 (in the decision of Koome, Wangare and Sichale JJA) that“if a party wishes the Court to determine or grant a prayer it must be specifically pleaded and proved…. It was also held that a court has no inherent jurisdiction to award damages, … where no such plea was made in the pleadings,”; the Tribunal is not able to entertain or determine a prayer which has hot been sought in the Application.

14. The upshot is that there is no substantive prayer for determination by the Tribunal in the 2nd Respondent/Applicant’s Application dated 28th January, 2020, save for the prayer for costs.

15. In regards to the prayer for costs, Section 27(1) of the Civil Procedure Act provides that the costs of any action, cause or other matter or issue shall follow the event unless the Court or Judge shall for good reason otherwise order.

16. Further, it is trite that the issue of costs is left to the discretion of the court and is issued to compensate the successful party, for the trouble taken in prosecuting or defending the case and not to penalize the losing party.

17. We are persuaded by the reasoning of the Court in High Court Civil Case No. E002 of 2021 (Nyahururu) in our finding that the Claimant/Respondent herein having obtained judgement and had to cease the execution process to defend the Application herein; and the Application of the 2nd Respondent/Applicant having failed, the Claimant is entitled to costs of the Application.

18. In conclusion, we hereby dismiss the 2nd Respondent’s Application dated 28th January, 2020 with costs to the Claimant/Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIACHAIRPERSONSIGNED 30. 11. 2023. ..............HON. J. MWATSAMADEPUTY CHAIRPERSONSIGNED 30. 11. 2023. ..............HON. BEATRICE SAWEMEMBERSIGNED 30. 11. 2023. ..............HON. FRIDAH LOTUIYAMEMBERSIGNED 30. 11. 2023. ..............HON. PHILIP GICHUKIMEMBERSIGNED 30. 11. 2023. ..............HON. PAUL AOLMEMBERSIGNED 30. 11. 2023. ..............TRIBUNAL CLERKJONAHNo appearance by parties.Ruling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 30. 11. 2023